Brown v. Daly

• Decision Date: 26 February 1906
• Parties: BROWN et al. v. DALY.
• Court: Montana Supreme Court

33 Mont. 523

BROWN et al.
v.
DALY.

Supreme Court of Montana.

Feb. 26, 1906.

Appeal from District Court, Deer Lodge County; Geo. B. Winston, Judge.

Action by Frank G. Brown and another against Margaret Daly, executrix of Marcus Daly, deceased. Judgment for defendant. Plaintiffs appeal. Affirmed.

Kirk & Clinton and C. M. Sawyer, for appellants.

A. J. Campbell and C. F. Kelley, for respondent.

HOLLOWAY, J.

On October 5, 1901, Frank G. Brown and Sadie J. Brown each presented to the executrix of the estate of Marcus Daly, deceased, a claim, duly verified, for the sum of $5,775. Each of the claims was in substantially the same form; that of Frank G. Brown being as follows:

“Estate of Marcus Daly, Deceased, to Frank G. Brown, Dr.

“To ( 1/2) one-half interest of balance due for certain real estate and water rights sold to Marcus Daly, deceased, as per agreement made and entered into on the 1st day of November, 1897, and that thereafter deed was duly made and executed by Frank G. Brown and Sadie J. Brown and delivered to Marcus Daly, deceased, for a consideration of twenty-five thousand ($25,000.00) dollars, conveying all the property mentioned in the said contract, and interest on the balance due at 10 per cent per annum from the 7th day of December, 1898, to and including the 16th day of October, 1901.

Each of these claims was disallowed by the executrix. On November 16, 1901, Frank G. Brown commenced an action in the district court of Deer Lodge county against Margaret Daly, as executrix of the last will and testament of Marcus Daly, deceased, to recover the amount of his individual claim, $5,775. To the complaint filed the defendant interposed a general demurrer, and a special demurrer on the ground of a defect of parties plaintiff. This demurrer was confessed, and thereafter, on April 17, 1903, by leave of court and without objection from defendant, the plaintiff filed an amended complaint, joining Sadie J. Brown as party plaintiff, incorporating into the cause of action the claim of Sadie J. Brown, and demanding judgment for $11,550 and certain interest. This amended complaint alleged that in November, 1897, Frank G. Brown and Sadie J. Brown entered into an oral agreement with Marcus Daly, by the terms of which the plaintiffs were to convey to Mr. Daly certain property situated in Deer Lodge county, for which Mr. Daly agreed to pay them $25,000 upon the execution and delivery of a deed, and that in December, 1898, the deed was duly executed and delivered, and...