Cook v. MacGinniss

• Decision Date: 07 February 1925
• Docket Number: 5641.
• Citation: 233 P. 129,72 Mont. 280
• Parties: COOK v. MacGINNISS.
• Court: Montana Supreme Court

233 P. 129

72 Mont. 280

COOK v. MacGINNISS.

No. 5641.

Supreme Court of Montana

February 7, 1925

Appeal from District Court, Silver Bow County; Wm. E. Carroll Judge.

Action by A. B. Cook against John MacGinniss. From judgment for defendant on counterclaim, plaintiff appeals. Reversed and remanded, with directions.

Gunn Rasch & Hall, of Helena, and Walker & Walker, of Butte, for appellant.

Maury & Maury and George D. Toole, all of Butte, and William T Pigott, of Helena (John E. Corette, Carl J. Christian, and John F. Davies, all of Butte, of counsel), for respondent.

STARK J.

The complaint in this action, which was filed on August 11, 1921, alleges that on the 31st day of October, 1912, the defendant made, executed, and delivered to the plaintiff his promissory note for the sum of $15,739.25, due 10 months after date, bearing interest at the rate of 8 per cent. per annum from date until paid; that the plaintiff is the owner and holder of said note and that no part of the principal or interest thereof had been paid, except $5,000, paid on October 13, 1916, $2,500 on November 20, 1917, $1,250 on April 22, 1918, and $1,250 on September 14, 1918; and asks judgment for the amount due on the note together with interest and attorneys' fees.

To this complaint the defendant filed an answer on December 14, 1921, in which he admitted the execution and delivery of the note and the making of the payments thereon as alleged in the complaint, and further alleged that said note was not given, made, or executed for any consideration whatever; and for affirmative defenses set up four separate counterclaims against the plaintiff, as follows:

(1) For the sum of $23,494.22 and interest, alleged to be due to the defendant from the plaintiff on account of a certain transaction which at the trial was designated the Rochester deal.

(2) For the sum of $33,873.40 together with interest thereon from the 1st day of February, 1913, the allegations in connection therewith being as follows:

"That heretofore in the months of February, March and April of the year 1911 the plaintiff A. B. Cook and the defendant entered into a certain contract and agreement and joint adventure whereby it was agreed that A. B. Cook and this defendant should purchase" 265 bonds of the Billings Mutual Telephone Company of the par value of $1,000 each, and certain notes of the Interstate Consolidated Telephone Company and the Billings Mutual Telephone Company, the face value of such bonds and notes being $314,025.24 (these bonds and notes were referred to at the trial as the "Billings securities" and will be so designated in this opinion), "for the purpose of reselling the same and making a profit or sustaining a loss, which said profit or loss was to be divided in the proportion of one-fourth to the said defendant and three-fourths to the said plaintiff.

That the said plaintiff and defendant, but acting in the name of the plaintiff, and pursuant to said agreement, did purchase all of the said securities on or about April 11, 1911, for the sum of $78,506.31. That the said plaintiff took all of the said securities into his own possession, retained the possession of the same, and subsequently on or about January -----, 1913, and without the knowledge of the defendant, resold all of the said securities for the price of $214,000, all of which money was paid to the said A. B. Cook for the said securities, and thereon and thereby he made a profit of $135,493.69 on the said joint adventure, one-fourth of which said profit, to wit, the sum of $33,873.40, was thereby the property of this defendant John MacGinniss.

That the said A. B. Cook has never paid to the said John MacGinniss the said sum of $33,873.40, or any part thereof. That he never disclosed to the said John MacGinniss, nor did the said John MacGinniss ever know, any of the facts connected with the sale or the said transaction until the 27th day of June, 1924, except that the said John MacGinniss had been informed in December, 1918, and about the 27th day of December, 1918, that the said A. B. Cook had compromised a similar claim of Thaddeus S. Lane for $18,000.

That by reason of the foregoing facts A. B. Cook, the plaintiff above named, has breached his trust to the said John MacGinniss, and this before the 1st day of February, 1923, and at all times since, and he has been indebted, and is still indebted to the plaintiff in the sum of $33,873.40, and should be made to pay interest thereon since the said 1st day of February, 1913, until the same be paid." (3) For the sum of $5,358.71 with interest at 8 per cent. per annum from March 1, 1910, alleged to be due the defendant from the plaintiff on account of what was designated as the Silver Bow National Bank note.

(4) For the sum of $7,333.33 on account of what was designated as the State Savings Bank bond.

Issue was joined on all these counterclaims.

In his reply to the second counterclaim the plaintiff admitted that he purchased the "Billings securities" for the sum of $78,506.31; that he subsequently sold them for the sum of $214,000, all of which was paid to him; admitted that he had not paid the defendant any part of the money so received from their sale, but denied all the other allegations thereof, and affirmatively pleaded that the cause of action stated in said second counterclaim was barred by the provisions of subdivision 1 of section 9030, subdivision 3 of section 9031, and also by section 9041, Revised Codes of 1921. Further replying to said second counterclaim, the plaintiff alleged that on or about the 4th day of October, 1912, he rendered the defendant a statement of account between them showing the indebtedness of the defendant to him, from which it appeared that the defendant was then indebted to the plaintiff in the sum of $15,739.25, which statement was accepted and acknowledged by the defendant as being correct, and as evidence of the indebtedness shown thereby to be due and owing to the plaintiff the defendant executed and delivered to the plaintiff the note set out in the complaint, and that by said account stated and the execution and delivery of said note it was then and there agreed that all claims and demands of said defendant against the plaintiff, including the claim and demand set forth in the second counterclaim, were settled and adjusted between them.

The cause came on for trial on the 25th day of July, 1924. At the close of the testimony the court withdrew from the consideration of the jury the first and fourth counterclaims, and on plaintiff's motion directed a verdict in favor of the plaintiff upon the third counterclaim set out in the answer. The plaintiff also moved the court to direct the jury to return a verdict in his favor upon the cause of action stated in the complaint, which motion was granted, and likewise moved the court to direct the jury to return a verdict in his favor on the second counterclaim, which motion was denied. Thereupon the cause was submitted to the jury upon the defendant's second counterclaim and the plaintiff's reply thereto. The jury returned a verdict in favor of the defendant on the second counterclaim for the sum of $62,628.89, from which was deducted $21,088.89, the amount of the verdict in favor of the plaintiff on the cause of action stated in his complaint, making a net verdict in favor of the defendant for $41,540. Upon this verdict a judgment was duly entered, and the plaintiff has appealed therefrom.

In the respondent's brief there are eight cross-assignments of error, the first of which is based upon the action of the court in withdrawing from the consideration of the jury and instructing a verdict against him upon the third counterclaim, and the second has reference to the action of the court in directing a verdict in favor of the plaintiff on the cause of action set out in the complaint. The plaintiff contends that these alleged cross-errors cannot be considered upon this appeal.

In the federal courts and in many state courts, for want of statutory authority, such cross-assignments of error cannot be considered unless a cross-appeal has been taken by the appellee, while in other jurisdictions they are allowed and considered even in the absence of a statute expressly authorizing it. 3 C.J. 1403. In this state we are committed to the doctrine that the right to make cross-specifications of error and have them heard is purely statutory, and that in the absence of a compliance with the statutory requirements they cannot be considered. Thompson v. Two Dot Fertilizer Co., 70 Mont. ---, 230 P. 588.

If the respondent is entitled to have his cross-assignments of error considered at all, it is by virtue of section 9751, Revised Codes 1921, which provides:

"Whenever the record on appeal shall contain a bill of exceptions or statement of the case properly settled, setting forth any order, ruling, or proceeding of the trial court against the respondent, affecting his substantial rights on the appeal of said cause, together with the objection and exception of such respondent properly made, and reserved, settled, and allowed in such bill of exceptions or statement, the supreme court on such appeal shall consider such orders, rulings, or proceedings, and the objections and exceptions thereto, and shall reverse or affirm the cause on said appeal according to the substantial rights of the respective parties, as shown by the record. And no cause shall be reversed upon appeal by reason of any error committed by the trial court against the appellant, where the record shows that the same result would have been attained had such trial court not committed an error or errors against the respondent."

The scope of the statute under consideration was declared by this court in Olcott v. Gebo, ...