Burden v. Elling State Bank
| Citation | 245 P. 958,76 Mont. 24 |
| Decision Date | 22 March 1926 |
| Docket Number | 5797. |
| Parties | BURDEN v. ELLING STATE BANK. |
| Court | Montana Supreme Court |
Rehearing Denied April 22, 1926.
Appeal from District Court, Madison County; W. E. Carroll, Judge.
Action by Charles A. Burden against the Elling State Bank. Judgment for plaintiff, and defendant appeals. Reversed and remanded with direction.
M. M Duncan, of Virginia City, for appellant.
S. P Wilson, of Deer Lodge, for respondent.
Charles A. Burden commenced this action as assignee of the Bicknell Corporation of Boise, Idaho, against the Elling State Bank, a corporation, for the recovery of damages alleged to have been suffered by his assignor by reason of certain willful and unlawful acts of the defendant, by which, it is alleged, defendant induced one Walter Garrison to break his contract to deliver certain lambs to the Bicknell Corporation. The contract is made a part of the complaint, and recites an advance payment of $1,200, received by Garrison. The complaint then alleges that Garrison produced his lambs at the place of delivery, and that the Bicknell Corporation "then and there and thereafter stood ready, willing, and anxious" to receive the lambs and make payment therefor, but that the defendant unlawfully, wickedly, and maliciously, and with the intent to defraud said corporation of the down payment and the profit to be derived from a resale of the lambs at the then market price, alleged to be two cents above the purchase price, induced Garrison to break his contract, and that Garrison did then and there refuse, and ever since has refused, to make delivery of the lambs or to accept payment therefor, to the damage of plaintiff in the sum of $2,585.34.
To this complaint defendant interposed a general demurrer, which was overruled, and thereupon filed a general denial. The cause came on regularly for trial, and at the opening thereof defendant objected to the introduction of any testimony on the ground that the complaint did not state facts sufficient to constitute a cause of action, which objection was overruled. At the close of plaintiff's case defendant moved for judgment of nonsuit on the ground of the insufficiency of the evidence, which motion was overruled, and at the close of all the evidence defendant moved the court to direct the jury to return a verdict for defendant, which motion was denied. The jury returned a verdict for plaintiff for damages and interest, totaling $1,742.20, and judgment was duly rendered and entered thereon. Thereafter defendant moved for a new trial, which motion was denied. The defendant has appealed from the judgment.
1. Assignments of error numbered 1 and 2, predicated upon the court's action in overruling defendant's demurrer and its objection to the introduction of any evidence, challenge the sufficiency of the complaint. Defendant contends that the action is on the contract, and that the complaint is fatally defective, in that it fails to allege that the Bicknell Corporation performed all conditions precedent by it to be performed, citing certain statutory provisions applicable to pleadings in an action for the breach of a contract.
Counsel is mistaken as to the nature of the action. The parties to a contract cannot impose any liability upon a stranger to the contract under the terms of the contract, but "every person is bound, without contract, to abstain from injuring the person or property of another, or infringing upon any of his rights" (section 7573, Rev. Codes 1921), and "every person who suffers detriment from the unlawful act or omission of another may recover from the person in fault a compensation therefor in money, which is called damages." Section 8659, Rev. Codes 1921. Thus the law, independent of the contract, imposes upon strangers to the contract the duty not to interfere with its performance. The violation of this duty is a tort, the remedy for such interference is by action in tort (Elliott on Contracts, vol. 3, § 2685), and therefore statutory provisions, respecting the pleading of the breach of a contract, have no application. The elements of a tort are a wrong committed and damage resulting therefrom (Cooley on Torts [3d Ed.] p. 3), and sufficient allegation showing the manner in which a defendant has committed an actionable wrong against a plaintiff and the resulting damage therefrom states a cause of action ex delicto.
The contract is set out merely for the purpose of showing that a valid contract was in existence at the time of the alleged wrongful action of defendant; it discloses that the plaintiff's assignor was not called upon to perform any act under the contract prior to the time Garrison was required to tender performance. The complaint alleges that Garrison refused performance, and that his action was induced by the unlawful and malicious acts of defendant, and alleges the damages resulting therefrom. It is clear therefore that the complaint states a cause of action.
2. Assignments numbered 3 and 4 are based on the overruling of defendant's motion for nonsuit and motion for a directed verdict, and question the sufficiency of the evidence to warrant a submission to the jury.
The general rule is that, where a defendant does not stand on his motion for nonsuit, he assumes the risk of aiding the plaintiff's case, and the evidence will be considered in its entirety. Liston v. Reynolds, 69 Mont. 480, 223 P. 507; Emery Con. Min. Co. v. Erickson, 64 Mont. 190, 208 P. 935; Pure Oil Co. v. Chicago, M. & St. P. Ry. Co., 56 Mont. 266, 185 P. 150; Cain v. Gold M. Min. Co., 27 Mont. 529, 71 P. 1004. However, the plaintiff here went into the enemy's camp for proof of the facts on which this question turns, and all facts favorable to either the plaintiff or the defendant were brought out on direct and cross examination, and there is nothing in defendant's case which aids the plaintiff. The facts, stated most favorably to the plaintiff, are:
In the year 1923 the defendant bank held a mortgage on Garrison's sheep and lambs, with other property, as security for the payment of notes aggregating over $30,000, and had control over the disposition of the property. On August 23 the defendant contracted, in the name of Garrison, for the sale of the lamb crop to the Bicknell Corporation, of Boise, Idaho, for delivery at Alder, Montana, on October 1, 1923, at 10 cents per pound, f. o. b. cars, after 12 hours shrink. The contract acknowledged receipt of $1,200 on the purchase price, which was credited to Garrison's account and checked out by him and his wife. Garrison made some objection to the contract, and the defendant agreed to credit him with the difference between the contract and market price at time of delivery, and assured the agents of the purchaser that it would see that delivery was made. The contract contained no provision as to time of payment or that time was of the essence thereof. On September 8 the purchaser's agent notified defendant that payment would be by check on the Live Stock National Bank of Chicago, and that the defendant could write that bank and secure a guaranty of payment of the check. On September 13 defendant wrote the bank, and at the same time notified the agent that the purchaser must come to Alder prepared to pay in cash or by guaranteed check, stating:
"Most assuredly will not accept any checks on Chicago with the possibility that they will be returned to us ten days after the lambs have been shipped."
On October 1 defendant received a reply from the Chicago bank stating that it would guarantee no checks without information as to the amount thereof and number of sheep purchased. Notwithstanding the fact that the agents had full knowledge that the contract called for payment in cash, and were advised two weeks in advance that this provision would only be modified to the extent of accepting a guaranteed check, they appeared at Alder offering only an ordinary check upon the Boise City National Bank.
Although Garrison had ordered cars at Alder for October 1 and had his lambs there for delivery at that time, the cars did not arrive until the morning of October 4, but, by mutual agreement, the contract was modified to the extent of calling for delivery on October 4 and a deduction of 2 per cent. from the gross weight in lieu of the 12 hours' shrink. Defendant's cashier was present at Alder and took part in all negotiations had, and, to some extent, advised Garrison. The lambs...
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