Chealey v. Purdy

• Decision Date: 21 March 1918
• Docket Number: 3876.
• Citation: 171 P. 926,54 Mont. 489
• Parties: CHEALEY v. PURDY et al.
• Court: Montana Supreme Court

171 P. 926

54 Mont. 489

CHEALEY v. PURDY et al.

No. 3876.

Supreme Court of Montana

March 21, 1918

Appeal from District Court, Hill County; William A. Clark, Judge.

Action by W. T. Chealey against B. D. Purdy and others. From a judgment for plaintiff and from an order denying motion for new trial, defendants appeal. Affirmed.

H. S Kline and C. B. Elwell, both of Havre, for appellants.

Nelson & Turcotte, of Havre, for respondent.

BRANTLY C.J.

This action was brought against four defendants, B. D., E. L., W W., and Edythe Purdy, as copartners under the firm name of Purdy Bros., to recover of them the value of work done and material furnished by plaintiff in drilling a well for them under an oral contract. The complaint alleges that the plaintiff agreed on his part to drill the well at a place designated by defendants upon their land, or that of some one of them, for the purpose of obtaining water. It then alleges the terms of the contract, how and when payment was to be made, and that the plaintiff has fully performed the contract according to its terms, except in so far as he was prevented from doing so by the act of the defendants. It demands judgment for $591.50, less the sum of $21.49, which defendants have paid. The record does not disclose whether the defendants W. W. and Edythe Purdy interposed any defense or whether the action was discontinued as to them. They are not in any wise interested in these appeals. The defendants B. D. and E. L. Purdy joined in an answer which, besides specifically denying the existence of the partnership, denies generally all the allegations of the complaint "except as hereinafter specifically admitted, modified, qualified, or denied," and then interposed a counterclaim for $186.36 for services, team hire, etc., performed and furnished to plaintiff by them as copartners. Upon this counterclaim plaintiff joined issue by reply. The trial resulted in a verdict and judgment for plaintiff in the sum of $503.11 and costs. Defendants have appealed from the judgment and an order denying their motion for a new trial.

1. The first contention made is that the court erred to the prejudice of defendants in ruling that it was not competent for them, under their general denial, to show as a defense that the contract as made by the parties was different in substantial particulars from that alleged in the complaint and in excluding evidence offered for that purpose. They have presented an elaborate argument, with a citation of numerous authorities, to maintain their position. Technically, the denial as made is not a general denial. O'Donnell v. City of Butte, 44 Mont. 97, 119 Pac.

281. Since, however, counsel assume that it is, for the purposes of these appeals we accept their assumption as correct. As an abstract proposition there can be no doubt, either on principle or authority, of the soundness of the rule invoked by counsel. Whatever may be the nature of the cause of action upon which a plaintiff seeks to recover, he must allege in his complaint facts disclosing the presence of all the elements necessary to make it out. Rev. Codes, § 6532; Ellinghouse v. Ajax Live Stock Co., 51 Mont. 275, 152 P. 481, L. R. A. 1916D, 836. The answer may be a general denial (Rev. Codes, § 6540), the effect of which is to put in issue every material allegation constituting the cause of action alleged, and thus to cast upon the plaintiff the burden of establishing by his evidence, prima facie at least, the presence of every element of it, and hence his right to recover. If at the close of his evidence he has failed to do this, there is a total failure of proof and he is properly nonsuited. It logically follows that under his general denial the defendant may introduce any evidence which tends to controvert any fact material to plaintiff's case, and if he is successful in overcoming the prima facie case disclosed by plaintiff's evidence, as a whole, or in any particular, or in establishing an equipoise in the proof, he is entitled to a verdict. 1 Ency. Pl. & Pr. 817; De Sandro v. Missoula L. & W. Co., 48 Mont. 226, 136 P. 711; Stephens v. Conley, 48 Mont. 352, 138 P. 189, Ann. Cas. 1915D, 958.

These rules apply to all actions, whatever their nature, for the provisions of the Codes on the subject of pleadings cited supra furnish the exclusive guide as to what pleadings are required or are permitted in this jurisdiction. As applied to an action on a contract resting in parol, the plaintiff must allege the contract upon which he seeks to recover, a substantial performance of it according to its terms, a breach by the defendant, and the facts showing the amount he is entitled to recover. A general denial by defendant puts in issue all of these allegations. The burden is then cast upon the plaintiff to establish all of them by substantial evidence. If, for instance, he fails to establish the contract alleged, he fails to make out a cause of action ( Kalispell...