Brown v. Daly

• Decision Date: 26 February 1906
• Citation: 84 P. 883,33 Mont. 523
• Parties: BROWN et al. v. DALY.
• Court: Montana Supreme Court

84 P. 883

33 Mont. 523

BROWN et al. v. DALY.

Supreme Court of Montana

February 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.

Balance due on original contract ...	$4,500 00
Interest on same at 10% .............	1,275 00
	----------
	$5,775 00"

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 $16,000, and no more, was paid to them on the purchase price. It is then alleged that there is a balance of $9,000, with interest from December 7, 1898, due to the plaintiffs, no part of which has ever been paid, and that of such balance Frank G. Brown owns an undivided one-half interest, and Sadie J. Brown the remainder. It is then alleged that Marcus Daly died in November, 1900, and that Margaret Daly was named and appointed the sole executrix of his last will and testament and qualified as such, that she gave notice to creditors as required by law, and that each of these plaintiffs duly presented his claim as set forth above. To this amended complaint a general demurrer was interposed, and overruled. Thereafter defendant filed an answer, denying the material allegations of the complaint, and, as a separate defense, pleaded the bar of the statute of limitations. A reply was filed and the cause brought on for trial, whereupon the defendant objected to the introduction of any evidence on behalf of plaintiffs, "upon the ground that it affirmatively appears from the pleadings in the cause that said cause is barred by the provisions of section 2608 of the Code of Civil Procedure of the state of Montana," which objection was sustained, and on motion of the defendant a judgment was rendered and entered in her behalf for costs, from which judgment this appeal is prosecuted.

The argument of appellants is directed entirely to the order of the district...