Carver v. Lynde
| Decision Date | 23 July 1887 |
| Citation | 14 P. 697,7 Mont. 108 |
| Parties | CARVER and another, Partners, etc., v. LYNDE and another, Partners, etc. |
| Court | Montana Supreme Court |
Appeal from district court Gallatin county.
Action to recover amount due upon an order. The opinion states the case.
Luce & Armstrong, for appellants.
Vivion & Shelton and Henry N. Blake, for respondents.
This was an action to recover the amount claimed to be due upon a certain order drawn by White Calfee, on the appellants, Lynde and Holden, and conditionally accepted by them, and payable to the respondents. The appellants had a contract with the Northern Pacific Railroad Company for the delivery of a great number of ties, and White Calfee was their subcontractor. White Calfee being indebted to the respondents for goods, wares, and merchandise, and the amount due him from appellants being greater than his indebtedness to the respondents, gave them an order on the appellants which was accepted by them, subject, however, to the payment of three other claims, which were to have precedence. This order was accepted on the tenth of September, 1883, and was for the sum of $2,814.70, and the amount of the claims subject to which it was to be paid was $6,421.39. The action was commenced on the second day of September, 1884. There was a demurrer to the complaint, which was overruled; and, after the case was at issue on complaint, answer, and replication the respondent filed a supplemental complaint, to which there was also a demurrer, which being overruled, the appellants filed an answer. The case was tried to a jury, which rendered a verdict for the respondents.
The errors relied upon are the action of the court in overruling the demurrers to the original and supplemental complaints of the respondents, and the insufficiency of the evidence to support the verdict of the jury. As to the first error complained of, viz., the overruling of the demurrer to the complaint, it is the settled rule of practice in this territory that when a defendant does not stand upon his demurrer, but, as in this case, answers over, and goes to trial upon the merits, he waives his right to be heard upon his objection to the action of the court in overruling his demurrer, unless the complaint should be so defective as not to support the judgment. Francisco v. Benepe, 6 Mont. 243, 11 P. 637; Collier v. Ervin, 3 Mont. 142; Perkins v. Davis, 2 Mont. 474. The same rule is applicable to the action of the court in overruling the demurrer to the supplemental complaint. To this there was an answer. The original and supplemental complaints support the judgment.
But it is also complained that the court erred in overruling the appellants' motion for a nonsuit: and that the evidence is not sufficient to sustain the verdict, in this: that it does not show that the claims to which the payment of the amount due on the order was subject, and the payment of which had precedence over that of the order, had been paid. The appellants did not introduce any evidence upon the trial, and therefore both these questions can be considered together. If the evidence will not sustain the verdict, the motion for nonsuit should have been granted. We understand the correct rule to be that the court should grant a nonsuit if, in view of all the evidence introduced by the plaintiff, it would grant a new trial, if the jury should bring in a verdict in his favor. Therefore, so far...
To continue reading
Request your trial