Apple v. Edwards

• Decision Date: 10 November 1932
• Docket Number: 6933.
• Citation: 16 P.2d 700,92 Mont. 524
• Parties: APPLE v. EDWARDS et al.
• Court: Montana Supreme Court

16 P.2d 700

92 Mont. 524

APPLE v. EDWARDS et al.

No. 6933.

Supreme Court of Montana

November 10, 1932

Rehearing Denied Dec. 17, 1932.

Appeal from District Court, Fergus County; John C. Huntoon, Judge.

Action by N.M. Apple against Charles E. Edwards and another, in which defendants filed an affirmative defense. Judgment for defendants, and plaintiff appeals.

Reversed and remanded, with directions.

Ralph J. Anderson, of Lewistown, for appellant.

Cheadle & Baker, of Lewistown, for respondents.

ANGSTMAN J.

On December 1, 1928, defendants executed and delivered to J. B Fraser, doing business under the name of Northwestern Pure Bred Sow Company, their promissory note in the sum of $710 payable ten months from date, bearing 10 per cent. interest. The note was made payable to Northwestern Pure Bred Sow Company. It recited on its face that the consideration of the note was the purchase price of 10 Duroc Jersey sows and their pigs sold and delivered by the payee to the makers. It also recited that the title and ownership of the sows should remain in the payee until full payment of the principal and interest specified in the note. Upon failure to pay the principal or interest when due, or if the property was not properly cared for, if it was seized or levied upon, or if it was attempted to be sold or removed from Fergus county without the written consent of the payee, the latter might bring an action in claim and delivery for its recovery, or authorize the sheriff to take possession of it and sell it and apply the proceeds to the payment of the note. It provided that, if the sale did not bring sufficient to discharge the note, the balance remaining due should continue as an obligation of the makers, payable on demand.

This action is in claim and delivery to recover possession of the property described in the note, being the 10 sows and 69 pigs, or, in case delivery cannot be had, then its value which is alleged to be $1,200.

The complaint alleges that before maturity and for value the note was sold to plaintiff, who is the owner and holder thereof and the owner of the property therein described; that the note is past due and unpaid, though payment has been demanded.

The answer admits the making of the note containing the provisions as alleged in the complaint, its nonpayment and demand, and that the pigs are worth the sum of $1,200, and denies the other allegations of the complaint. The answer also contained what is designated an "affirmative defense in the nature of a cross-complaint and counterclaim," which on motion of plaintiff was stricken. The gist of the affirmative defense was as follows: That Fraser and R. D. Mulder were copartners doing business under the name of the Northwestern Pure Bred Sow Company; that defendants dealt with R. D. Mulder in making the note set out in the complaint; that they were induced to make the contract by false and fraudulent representations, in that Mulder falsely represented that the pigs were pure-bred Duroc Jersey pigs, entitled to registration papers, and that certificate of registration would be furnished; that defendants relied upon these representations in making the contract; that defendants made a part payment of $140 for the pigs by delivering other pigs agreed to be worth that amount; that, at the time of making the note and as a part of the same transaction, the Northwestern Pure Bred Sow Company signed a contract which is set out in the answer and which we shall hereafter for convenience call Exhibit A, by the terms of which the company agreed to furnish a certificate of registration and an experienced field man to advise defendants on the best methods of breeding, feeding, and caring for the pigs, and agreed to buy from defendants "all standard gilts weighing not less than 135 pounds, and not to exceed six months of age from at least the first two litters, of all sows" covered by the order, and "to pay therefor the sum of 14¢ per # providing said gilts are double treated for cholera by a veterinarian qualified to act, provided also that all gilts covered by this order are sired by a boar approved by the Northwestern Pure Bred Sow Co. and accompanied by a certificate of Registration."

It is alleged that the sows delivered to defendants are not pure bred; are not registered or entitled to be, and are valueless as breeding stock; that, when defendants learned of the falsity of the representations, they also learned that plaintiff was the owner of the conditional sale note and thereupon tendered to plaintiff all of the sows and their offspring upon condition that plaintiff repay to them the $140, together with the expense of caring for and feeding the sows and the offspring, alleged to be $2,386.91 at the time of filing the answer; that they are still willing to deliver the pigs upon those conditions; that demand was made upon plaintiff that he furnish a field man to defendants, which was refused by plaintiff and also by the Northwestern Pure Bred Sow Company; that demand was made upon plaintiff for certificates of registration, and this was refused by plaintiff, as well as by the Northwestern Pure Bred Sow Company; that both plaintiff and the Northwestern Pure Bred Sow Company have refused to buy the offspring of said sows from defendants at the price stated in the agreement; that defendants have a lien on all the pigs for the amount of $140 paid as part of the purchase price and for the expense of feeding and caring for them. It asked judgment against plaintiff for the sums above specified and that it be adjudged that the defendants have a lien upon the pigs, that the lien be foreclosed and the pigs sold, and, in case the proceeds are not sufficient to pay defendants' claim, that a deficiency judgment be entered against plaintiff.

The cause came on for trial before the court, sitting with a jury. The jury found for defendants and against plaintiff, and judgment was entered in favor of defendants for costs. At the trial plaintiff introduced the note, showed its indorsement and delivery to plaintiff before maturity for a cash consideration of $600, that he was still the owner of it, and that it was overdue and unpaid. Defendants were then permitted to introduce in evidence over plaintiff's objection Exhibit A, the other agreement between them and the Northwestern Pure Bred Sow Company. They then introduced evidence showing the breach of that contract by plaintiff's assignor in several particulars.

The first contention of plaintiff is that the court erred in permitting the defendants, over plaintiff's objection, to introduce in evidence Exhibit A on the ground that, since the affirmative defense had been stricken from the answer, there was no pleading before the court other than the general denial of plaintiff's right of possession of the pigs, and that therefore the pleadings were not sufficient to warrant the reception of this evidence, followed by evidence showing that there was a default under the contract.

Whether the evidence showing the breach of the contract by plaintiff's assignor was admissible under the general denial need not now be determined, for, if we assume that it was admissible, it does not warrant the verdict and judgment in favor of defendants, as we shall hereinafter point out.

On the evidence, as presented, the court should have sustained plaintiff's motion for a directed verdict. We are asked by plaintiff to reverse the judgment and direct the lower court to enter judgment in his favor. On the record we think the cause should be remanded for a new trial.

The motion to strike the affirmative defense was upon the ground that it "does not contain or state facts sufficient to constitute a cross-complaint or counterclaim or defense to the complaint."

By cross-assignment of error, defendants contend that the court erred in striking the affirmative defense. The affirmative defense, as we shall show, was not vulnerable to a motion to strike on the ground stated.

Plaintiff asserts that whether the court erred in striking the affirmative defense cannot be reviewed on this appeal. This contention is grounded upon the claim that the ruling of the court in sustaining the motion to strike was not properly and timely preserved by a bill of exceptions so as to make the question reviewable under section 9751, Rev. Codes 1921.

From the record it appears that the order striking the affirmative defense contained in the first answer was entered on April 11, 1930. An amended answer was filed setting forth the same affirmative matter in substantially the same words, and this was stricken on March 9, 1931. The cause was tried on March 28, 1931, and judgment was entered on September 25, 1931. Plaintiff presented his proposed bill of exceptions on April 4, 1931. The proposed bill did not include the proceedings on the motion to strike. Defendants offered amendments to the proposed bill, which incorporated these proceedings. To the amendments plaintiff filed objections on the ground that those proceedings took place long before the trial and more than 15 days prior to their service upon plaintiff and that no order extending the time for a bill of exceptions had been made, and that the time had elapsed within which a bill of exceptions might be proposed on those proceedings. The court ordered the amendments incorporated in the bill of excptions and, as thus amended, it was settled on May 16, 1931, before the final judgment was entered in the case.

The amendments offered by defendants to the proposed bill of exceptions were properly allowed by the court, and are properly before us as a part of the bill of exceptions. Section 9394, Rev. Codes 1921, provides: "Hereafter all district courts and judges, on settlement and allowance of any bill of exceptions at any...