Cassidy v. Slemons & Booth

• Decision Date: 30 June 1910
• Citation: 109 P. 976,41 Mont. 426
• Parties: CASSIDY v. SLEMONS & BOOTH.
• Court: Montana Supreme Court

109 P. 976

41 Mont. 426

CASSIDY v. SLEMONS & BOOTH.

Supreme Court of Montana

June 30, 1910

Appeal from District Court, Silver Bow County; John B. McClernan Judge.

Action by Charlotte Cassidy against Slemons & Booth. From a judgment for plaintiff, defendant appeals.

McBride & McBride and Kremer, Sanders & Kremer, for appellant.

Roote & Murray, for respondent.

HOLLOWAY J.

After setting forth that the defendant is a corporation, the complaint in this action alleges: "(2) That the plaintiff herein, Charlotte Cassidy, on September 15, 1905 loaned to the defendant corporation the sum of two thousand ($2,000) dollars in cash, for which the said defendant made executed and delivered to the plaintiff its receipt or certificate of deposit in words and figures as follows, to wit: 'Butte, Montana, Sept. 15, 1905. Received of Mrs Cassidy two thousand dollars on account cash deposit. $2,000 Slemons & Booth, by E. F. Booth."' It is then alleged that the defendant agreed to pay interest on the money thus loaned, at the rate of 1 per cent. per month; that no part of the principal has been repaid, and no interest has been paid since June 15, 1907. The amended answer admits that the defendant is a corporation; that it executed and delivered to plaintiff the receipt set forth above; and denies every other allegation of the complaint. By way of affirmative defense the answer sets forth that at all times mentioned in the complaint the defendant was engaged in the real estate and loan business; that prior to September 15, 1905, the plaintiff had requested defendant to secure for her a loan of $5,000 or any part thereof; that on September 15th the defendant submitted to plaintiff the application of one Charles Green to borrow $2,000; that plaintiff approved the application, and directed the defendant to arrange the loan, which the defendant did, and notified the plaintiff, who thereupon deposited with the defendant the sum of $2,000 to be loaned to Green, and defendant then executed and delivered to plaintiff the receipt mentioned above; that defendant delivered the money to Green, and thereafter, from time to time, acting as the agent of the plaintiff, it collected and turned over to her the interest; but before the commencement of this action the plaintiff personally took charge of the loan and thereafter collected the interest herself. It is then alleged, on information and belief, that the loan was fully paid and discharged by Green before this action was brought. Every material allegation of the affirmative defense is denied by reply. The trial of the cause resulted in a verdict and judgment in favor of the plaintiff. Defendant has appealed from the judgment and from an order denying it a new trial. There is not any contention made that the evidence is not sufficient to sustain the verdict. It is admitted by counsel for appellant that the evidence upon every material issue is conflicting and irreconcilable. The specifications of error will be treated in the order made.

1. It is urged that the complaint does not state facts sufficient to constitute a cause of action, for the reason that it counts upon a certificate of deposit and does not allege a presentation or demand. If this theory is correct, defendant's conclusion is unavoidable. Section 5140, Rev. Codes, provides: "A depositary is not bound to deliver a thing deposited without demand, even where the deposit is made for a specified time." In Stadler v. First National Bank, 22 Mont. 190, 56 P. 111, 74 Am. St. Rep. 582, this court held that a cause of action does not arise in favor of a depositor until demand and refusal, unless the depositary has waived demand. If such demand is necessary, it follows as of course that it must be alleged in the complaint. But in testing the sufficiency of a complaint, when attacked by general demurrer or by any other means of raising the same question, the court will not confine itself to determining whether it states a cause of action for particular relief. Forms of action are abolished. The Code enjoins upon the plaintiff the duty to set forth the facts constituting his cause of action. In Donovan v. McDevitt, 36 Mont. 61, 92 P. 49, this court said: "If the facts stated in the body of the complaint entitle the plaintiff to any relief, a general demurrer will not lie, no matter what may be the form of the prayer." This was followed in Raymond v. Blancgrass, 36 Mont. 449, 93 P. 648, 15 L. R. A. (N. S.) 976, where the court said: "The form in which an action is brought is of no consequence; nor does it matter that the complaint contains allegations not appropriate to the purpose sought to be attained. In determining the issue of law presented by a general demurrer to the complaint, or by any other appropriate method of raising the question-as here, by an objection to the admission of evidence at the trial, on the ground that the facts stated do not warrant any relief--matters of form will be disregarded, as well as allegations that are irrelevant or redundant; and, if upon any view, the plaintiff is entitled to relief, the pleading will be sustained." In speaking of the same rule, the court again, in Hoskins v. Northern Pacific Ry. Co., 39 Mont. 394, 102 P. 988, said: "As the complaint was simply the basis or foundation of plaintiff's proof, if it contained allegations sufficient to enable him to introduce testimony showing a liability on the part of the defendants, and he could, in the absence of the specific allegations, rest his case without proving the particulars in which the latter were negligent, then it seems to follow that, although he had made specific allegations of negligence, such allegations were immaterial, and should be disregarded." Applying to the facts set forth in the complaint above the rule thus established in this state, and there cannot be any question that it is sufficient to warrant recovery for money loaned by the plaintiff to the defendant. The allegation that the defendant gave to plaintiff the receipt copied above is immaterial--a pleading of evidence--and should be disregarded.

2. It is contended that there is a fatal variance between the allegations of the complaint and the proof offered by the plaintiff, in this: That, under plaintiff's theory, her complaint counts upon a loan for money due, while her evidence shows that the money was to be repaid to her only after 60 days' notice to defendant that she desired repayment. It is a general rule that, where money is to become due only after notice or demand, it is necessary for the plaintiff to allege and prove that the required notice or demand was given or made; but to that rule there is this exception, which is as well recognized as the rule itself namely: Where the defendant denies all liability upon the contract pleaded by the plaintiff, and it is apparent that a demand for payment would have been met by a refusal, a demand under such circumstances is not necessary, for the law does not require any one to do a wholly useless thing. In Thompson v. Whitney, 20 Utah, 1, 57 P. 429, the rule, and the reason for it, are stated as follows: "The purpose of the rule which requires a demand before bringing suit in certain cases is to enable the party upon whom it is made to discharge his obligation, or perform his contract, without incurring...