Church v. Zywert

• Decision Date: 24 May 1920
• Docket Number: 4141.
• Citation: 190 P. 291,58 Mont. 102
• Parties: CHURCH v. ZYWERT.
• Court: Montana Supreme Court

190 P. 291

58 Mont. 102

CHURCH v. ZYWERT.

No. 4141.

Supreme Court of Montana

May 24, 1920

Appeal from District Court, Yellowstone County; A. C. Spencer Judge.

Action by A. J. Church against J. Zywert. From judgment for plaintiff and an order denying new trial, defendant appeals. Affirmed.

H. C Crippen, of Billings, for appellant.

C. R Ingle, of Billings, for respondent.

MATTHEWS J.

The complaint herein alleges that plaintiff sold to defendant, at an agreed price per pound, approximately 100 head of cattle, to be delivered in lots during the months of August and September, 1916; that the first delivery was made August 1, received and paid for by defendant, but that thereafter, by reason of a decline in the market, he refused to receive and pay for the remainder of the cattle, although plaintiff was at all times ready, willing, and able to make the deliveries, and that by reason of the breach of the contract plaintiff was forced to sell at a loss, on the Billings market, of $1,350.75.

In his brief, counsel for defendant states:

"The theory of the defendant, as shown by his answer, was that whatever dealings he had with regard to the purchase of the cattle was had by him with the plaintiff and one Runkle, as partners. This theory is borne out by the evidence of the plaintiff."

The answer, however, merely denies specifically each of the allegations of the complaint, and goes no further. It contains no averment suggesting that defendant had any dealings with either Church or Church and Runkle; nor does it contain any intimation that plaintiff, in his individual capacity, was not the proper party plaintiff.

On the trial defendant was permitted, without objection, to show that while Church purchased the cattle and was sole owner of them, he had an agreement with Runkle that the latter was to assist in disposing of them, and was to receive one-half of the profit, if any, and to share any loss sustained. Both parties having rested, defendant moved for a directed verdict on the ground of nonjoinder of parties, insufficiency of the evidence as to the market value at Billings, and that the complaint did not state a cause of action, which latter objection also referred to suit by Church in his individual capacity. The motion was overruled, and the court refused all offered instructions based on the assumption that a partnership existed. The jury returned a verdict for the amount sued for. Defendant moved for a new trial, which motion was denied. The appeal is from the judgment and from the order denying his motion for a new trial.

1. The first assignment of error is predicated on the court's action in overruling defendant's objection to the question, "What did you receive for the cattle at Omaha?" While it is true that the measure of damages is deemed to be the difference between the contract price and the price which the seller could have obtained in the market nearest the place of delivery under the contract (section 6081, Rev. Codes; Brazell v. Cohn, 32 Mont. 556, 81 P. 339), and therefore the admission of proof of the price received in a different market, alone, for the purpose of fixing the damages, would constitute error, the plaintiff only incidentally proved the actual amount received for the cattle and thereafter introduced evidence of the market value of the cattle in the proper market. There is no error assigned on the insufficiency of this evidence; and the court properly instructed the jury as to the measure of damages under the statute. If, therefore, the ruling of the court was erroneous, it could not have affected the substantial rights of the parties, and must be disregarded. Section 9415, Rev. Codes; State ex rel. Nipp v. District Court, 46 Mont. 425, 128 P. 590, Ann. Cas. 1916B, 256.

2. The remaining assignments are directed to the action of the court in its refusal to direct a verdict, refusal to give certain offered instructions, and in overruling the motion for a new trial, and are all based on the contention that the evidence disclosed a partnership. They will therefore be considered together.

The facts on which defendant relies were known to him at the time he drew and filed his answer. They do not appear on the face of the complaint. Under our Code, if a defect in parties appears on the face of the complaint, it must be taken advantage of by demurrer (Rev. Codes, § 6534), and the demurrer must point out specifically the defect relied upon (section 6535). Poe v. Sheridan County, 52 Mont. 280,157 P. 185. When not so appearing, the objection may be taken by answer. Section 6538. "If no objection is taken, either by demurrer or answer, the defendant must be deemed to have waived the same." Section 6539. These provisions have been in effect since territorial days, the only change being that in the last provision quoted the word "must" has been substituted for that of "shall," and were construed in the case of Parchen v. Peck, 2 Mont. 567, where the court said:

"The evidence shows that the Northwest Transportation Company was a firm * * * composed of the appellant, Durfee and Coulson. Durfee has since died. It is claimed that the court erred in proceeding against Peck,

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