Budd v. Power

Decision Date02 February 1889
Citation8 Mont. 380
PartiesBUDD v. POWER et al.
CourtMontana Supreme Court

OPINION TEXT STARTS HERE

Appeal from district court, Gallatin county; LIDDELL, Judge.

J. L. Staats, for appellant.

Armstrong & Hartman, for respondents.

McCONNELL, C. J.

The appellant, who was the plaintiff below, brought an action against the respondents, before a justice of the peace of Gallatin county, upon a promissory note for the sum of $272, dated November 22, 1886, payable to W. S. De Lancey, 90 days after date. The plaintiff below filed a complaint setting out the note sued on. To this there is no exception. The respondents filed an answer, which, after admitting that they executed and delivered the note sued on, proceeds to state that it was given for an “undivided half interest in a certain drove of stock cattle thereafter to be delivered by the plaintiff to them, which at the time plaintiff falsely represented to them that he was the owner of; and thereby, and without consideration, they were induced to make said note to him for the purchase price of said cattle; and that said representations were false, and that plaintiff never was the owner of said cattle, or any number or portion thereof, nor did he have any beneficial interest therein; and that they were misled by said false misrepresentations, and had never received said cattle, or any of them; and that plaintiff has failed, refused, and neglected to deliver said cattle to them.” The case was tried by the court without a jury, who found in favor of the respondents, upon the ground that there was a failure of consideration. Motion for new trial was made and overruled, and an appeal taken to this court.

The first objection made by the appellant is as to the sufficiency of the answer, it being contended by him that, to maintain the defense of a failure of consideration by reason of a failure of title, it must appear that the plaintiff was guilty of fraud or deceit, or that there was a warranty of the title to the cattle, either express or implied, and that the answer does not aver either. An inspection of the answer, the substance of which is given above, shows that it is insufficient for either defense; that is, of fraud or warranty. The averment that the representation that the plaintiff was the owner of the cattle was false, or that he falsely representation that the plaintiff was the owner of the cattle, is not sufficient to sustain the charge of fraud or deceit. A proper interpretation of such language is that the representation made was simply untrue. There is no pretense that the answer contains a warranty, either express or implied. As we have already noted, the case was brought before a justice of the peace; and the sufficiency or insufficiency of the answer must be decided by the provisions of the statute touching pleadings before justices of the peace. Section 768 et seq., Code Civil Proc., provides, pleadings in justices' courts shall be- First, the complaint by the plaintiff, stating the cause of action; second, the answer by the defendant, stating the ground for the defense; that, where the action is for the forcible or unlawful detention of lands, tenements, or other possessions, the pleading shall be in writing, but in all other cases the pleadings may be oral or in writing. This answer, then, being insufficient and demurrable upon that account, may be entirely disregarded, and the answer be treated as oral. The fact that the plaintiff below saw fit to go to trial without demurring to the answer, or moving to strike it out, was simply to ignore it, as he might well have done, and treated the answer as oral. Section 777 provides that in trials before justices of the peace “a variance between the proof on the trial and the allegations in pleading shall be disregarded as immaterial, unless the court be satisfied that the adverse party has been misled to his prejudice thereby.” There was no exception to any of the evidence introduced upon the ground of variance between it and the answer; in fact, the whole cause was tried without reference to the answer at all. Hence we hold that the objections upon the ground of the insufficiency of the answer are not sustained.

The court found twelve special findings of fact and two conclusions of law. The substance of the findings of fact are as follows, to-wit: That the respondents executed the joint note sued on as stated in the complaint; that the note was given as the purchase price of De Lancey's interest in the “F” brand of cattle on the range in Gallatin county; that De Lancey represented to the respondents that he owned a half interest in the brand; that at the time of sale he turned over to respondents a bill of sale from one Scribner to himself of an interest in the cattle, but did not mention any particular interest; that the plaintiff's intestate sold a half interest in the cattle, under the bill of sale which he had procured from...

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3 cases
  • Budd v. Power
    • United States
    • Montana Supreme Court
    • 2 Febrero 1889
  • Budd v. Power
    • United States
    • Montana Supreme Court
    • 5 Octubre 1889
    ...et al.Supreme Court of the Territory of Montana.Oct. 5, 1889. OPINION TEXT STARTS HERE On rehearing. For former report, see 20 Pac. Rep. 820.Armstrong & Hartman, for respondents.BLAKE, C. J. The respondents have filed a petition for a rehearing in this case, which is reported in 8 Mont. 380......
  • Budd v. Power
    • United States
    • Montana Supreme Court
    • 5 Octubre 1889
    ...P. 499 9 Mont. 99 BUDD v. POWER et al. Supreme Court of MontanaOctober 5, 1889 On rehearing. For former report, see 20 P. 820. Armstrong & Hartman, for BLAKE, C.J. The respondents have filed a petition for a rehearing in this case, which is reported in 8 Mont. 380, 20 P. 820. It was held th......

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