Ayotte v. Nadeau
| Decision Date | 17 June 1905 |
| Parties | AYOTTE v. NADEAU. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; E. W. Harney, Judge.
Action by Samuel Ayotte against Peter Nadeau. From an order denying a new trial, defendant appeals. Reversed.
This action was brought by plaintiff to recover a judgment declaring him entitled to an undivided one-half interest in a certain building erected by the defendant upon a portion of a parcel or lot of land owned by the parties as tenants in common, and situate in Butte, Silver Bow county, as well as one-half of the rents already accrued and to accrue for its use. Judgment is also sought for one-half of the reasonable value of the use and occupation of other portions of the common property by the defendant and his tenants. The common property is described as a lot, 172 by 56 feet, fronting on the south side of Park street in said city.
It is alleged, in substance, that on or about January 1, 1897, the defendants entered upon the northerly portion of said lot and constructed a frame building thereon, to be used for the purpose of conducting a saloon business, and that it has been and still is used for that purpose; that it was erected by the defendant under an agreement between the plaintiff and defendant, by the terms of which the defendant agreed that plaintiff should receive a credit of $10 per month for the use of his interest in the ground occupied by the building to be applied on the cost of its construction, and that whenever the sum of such credits should equal one-half of the cost of construction, from that time the plaintiff should receive one-half of the rent of the building and be the owner of a half interest therein; that the cost of construction did not exceed $500; that since February 1, 1899, the defendant has been renting the building for a monthly rental of $75 and collecting the same and converting it to his own use; and that he has refused and still refuses to account to the plaintiff for his share, or $37.50, per month, though repeated demands have been made upon him by the plaintiff to do so. It is further alleged that on or about January 1, 1898, the defendant entered upon another portion of said lot towards the north, and erected and constructed thereon another building, which he occupied and still occupies exclusively as a residence; that this building was erected without the consent of the plaintiff; that the defendant, though often requested, has refused and still refuses to pay the plaintiff for the reasonable use and occupation of his interest in the ground occupied by said building, which is $10 per month; that plaintiff is the owner of two small buildings situate on the southerly portion of said lot, one of which he occupies as a residence, and the other he rents to tenants, but that plaintiff has always been, and still is, ready and willing to account for and pay to the defendant his share of the reasonable value of the use of that portion of the lot occupied by these buildings; that there are a blacksmith shop and a stable upon the central portion of said lot, which the plaintiff and defendant jointly rent to tenants, dividing the rents equally between them, but that the property in the possession of the defendant is claimed by him absolutely, he asserting the right to collect the rents thereof and reserve them to his own use. It is further alleged, by way of amendment and supplement to the complaint, that since the bringing of this action the defendant has entered upon the eastern portion of said lot and erected thereon a building which he has used for his own profit and has rented to different persons, collecting and appropriating the rent thereof to his own use and benefit; that the use of such portion of the lot since the erection of said building has been of the reasonable value of $10 per month, but that defendant has paid plaintiff no part thereof. Demand is made that the plaintiff have judgment that he is the owner of a one-half interest in the saloon building, and that he recover one-half of the rents of the same, and that by the final judgment the rents of all the property be divided equally between the plaintiff and defendant.
The defendant admits the tenancy in common in the lot described; that on or about January 1, 1897, he entered thereon and erected the saloon building as alleged, and for the purpose alleged; that he has refused to pay to the plaintiff the share in the rents thereof for which he alleges a claim, for the reason that the same was erected at defendant's own expense, and that the plaintiff has no interest therein; that on or about January 1, 1898, the defendant entered upon another portion of the lot on the north end thereof and erected a residence, which he has still in his exclusive possession; that he refuses to pay the plaintiff, or any other person, the sum of $10 per month, or any other sum, as rent for the ground occupied by this building; that there is a blacksmith shop and stable on the central portion of the lot, but averring that the defendant occupies the same under an agreement made with the plaintiff at the time the saloon building was erected; and that there is a building on the eastern portion of the lot which has been used by defendant for his own purposes and rented to other persons, the rents therefor being collected and used as his own. He denies that he erected the saloon building under the agreement alleged in the complaint, or any agreement, or that he has collected rent therefor to exceed the sum of $50 per month, or that the cost of erection was not to exceed $500, and alleges such cost to have been $1,000 or there about; that the reasonable value of the land occupied by his residence is $10, or any other or greater sum than $2.50, per month; and that the value of the rent for the ground occupied by the building on the eastern portion of the lot is $10, or any greater sum than $1, per month. It is alleged affirmatively that the said buildings were erected on the lot with the knowledge and approval and consent of the plaintiff, and that it was agreed that plaintiff should neither have not claim any interest therein or rents or profits thereof; that relying upon the promise of the plaintiff not to charge him any rent for his, plaintiff's interest in said ground other than the sum of $10 per month, which the defendant agreed to pay plaintiff for his interest in the ground occupied by the stable and blacksmith shop and certain other portions, thereof, upon which defendant intended to build the saloon and residence referred to in the complaint, the defendant erected said buildings, it being mutually agreed that the defendant should not be required to pay any ground rent for the portions of the land occupied by them, except the sum of $10, which it was agreed was all the rent the defendant should pay; and that it was further agreed that, in consideration of the fact that plaintiff should not claim any other rent than the $10 so promised as aforesaid, the plaintiff should have free use and enjoyment of the portion of the joint property occupied by him. All other allegations of the complaint are denied generally. Issue is joined by replication upon the affirmative allegations of the answer.
The controversy was submitted to a jury, which rendered a general verdict for plaintiff for $800, and judgment was entered accordingly. The defendant has appealed from an order denying him a new trial.
L. P. Forstell, for appellant.
John J. McHatton and T. J. Walker, for respondent.
(after stating the facts). 1. The contention is made by appellant that the complaint does not state a cause of action. Respondent argues that this contention presents a question which cannot be determined upon this appeal. The sufficiency of a pleading will not ordinarily be examined on the motion for a new trial, nor on appeal from an order disposing of it, because the motion presents for review only rulings made during the progress of the trial. Rulings made prior to trial are reviewable on appeal from the judgment. Scherrer v. Hale, 9 Mont. 63, 22 P. 151; Powder River Cattle Co. v. Commissioners, 9 Mont. 145, 22 P. 383. An exception to this rule is recognized, however, when the sufficiency of the pleading is challenged during the progress of the trial by objection to the introduction of evidence on the ground of want of substantial allegations therein, or other appropriate method. Campbell v. Great Falls, 27 Mont. 37, 69 P. 114; Alpers v. Hunt, 86 Cal. 78, 24 P. 846, 9 L. R. A. 483, 21 Am. St. Rep. 17; Hayne on New Trial and Appeal. § 1; Spelling on New Trial and Appellate Procedure, § 388. At the outset of the trial of this case appellant objected to the introduction of evidence by the plaintiff on the ground that the complaint does not state a cause of action; the court overruled the objection; the appellant brings himself within the recognized exception, and is entitled to the judgment of this court upon the correctness of this ruling.
The complaint presents a double aspect. In the first portion of it plaintiff seeks to recover on an express contract, under the terms of which there is alleged to be due him the sum of $37.50 per month since February 1, 1899. He also asks to be declared the owner of one-half of the saloon building. Then follow allegations setting forth, as ground for additional recovery, the occupation and use by defendant of the other portions of the common property without consent of the plaintiff. Two causes of action are therefore blended, whereas they should have been separately stated. Code Civ. Proc. § 672. No objection was made to the pleadings on this ground, however, and this feature of it may be passed without further notice.
The objections upon which appellant relies are...
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