Bennett v. Tillmon

• Decision Date: 09 March 1896
• Citation: 44 P. 80,18 Mont. 28
• Parties: BENNETT v. TILLMON.
• Court: Montana Supreme Court

44 P. 80

18 Mont. 28

BENNETT v. TILLMON.

Supreme Court of Montana

March 9, 1896

Appeal from district court, Missoula county; Frank H. Woody, Judge.

Action by Willard Bennett against S. J. Tillmon. Judgment for defendant, and plaintiff appeals. Affirmed.

This is a suit on three promissory notes. The answer admits the execution of the notes, and alleges that they were given in consideration of the purchase by defendant of certain improvements on real estate belonging to one G. A. Bennett that said improvements were sold to defendant by L. J Warner, the agent of said G. A. Bennett; that said Warner induced defendant to execute two of the notes, for $250 each directly to him (Warner), and the $500 note to the plaintiff that Warner was agent for G. A. Bennett, as well as for the plaintiff; that, at the time of the execution of the notes, G. A. Bennett was indebted to defendant on the account set out in the answer in the sum of $1,224.50; that the said Warner, as agent of plaintiff and G. A. Bennett, agreed that said notes should be offset by said account; that said notes were given as a memorandum of the sale of said improvements to defendant, and should be paid by being credited and offset with said account. After the execution of the notes, the two executed to Warner were by him assigned to plaintiff. The plaintiff moved for judgment on the pleadings. The motion was denied. The allegations of the answer are denied by replication. The case was tried to a jury, who returned a verdict for the defendant. From the judgment entered in accordance with the verdict, and an order refusing a new trial, the plaintiff appeals.

Beckford, Stiff & Hershey, for appellant.

PER CURIAM.

The plaintiff contends that the answer contains no defense, in that it attempts to vary a written contract by the oral agreement to allow the account pleaded to be offset against and credited upon the notes. This was the ground for plaintiff's motion for judgment on the pleadings, and of his objection to the introduction of any testimony in relation to said agreement. We do not think the oral agreement, set up in the answer, that G. A. Bennett's account or indebtedness to defendant was to be offset against or credited on the notes, is an attempt to vary the terms of the written contract as contended. The agreement contained in the answer as to the G. A. Bennett indebtedness or account amounted, in effect, to this: That the...