Doornbos v. Thomas
| Decision Date | 04 March 1915 |
| Docket Number | 3480. |
| Citation | 147 P. 277,50 Mont. 370 |
| Parties | DOORNBOS v. THOMAS ET AL. |
| Court | Montana Supreme Court |
Appeal from District Court, Gallatin County; B. B. Law, Judge.
Action by A. Doornbos against W. L. Thomas and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.
Walter Aitken, of Belgrade, for appellants.
John A Luce, of Bozeman, for respondent.
This action was brought against the defendants, as copartners under the firm name of the Gallatin Valley Trading Company to recover damages for an alleged breach of warranty of the quality of a seed drill sold by them to plaintiff on September 1, 1911. The warranty is alleged in the complaint as follows:
"That the defendants sold and delivered to the plaintiff one Peoria drill, which the defendants warranted to the plaintiff to be * * * reasonably fit and suitable for the purpose of properly sowing the divers and sundry kinds of grains--wheat, oats, rye, and the like."
The complaint alleges further, in substance, that the drill was not suitable for the purpose for which it was purchased; that the plaintiff used it to sow 116 acres of grain; that, as a result of the inefficiency of it, the crop harvested was much less than it would have been had the drill been efficiently serviceable; and that the plaintiff for this reason suffered damage to the amount of $1,147.20. The answer admits the sale of the drill, alleging that the plaintiff, who is a farmer and capable of judging for himself, made a careful inspection of it, and thereupon accepted it as suitable, executing to the defendants his promissory note in payment of the purchase price, with the understanding that if the drill proved unsuitable he might return it and receive back his note; that there was no express warranty of any kind; that the plaintiff used the drill to sow 65 acres without complaint; that, if it did not effectually accomplish the work for which it was intended, it was due to the fault of plaintiff in handling it; and that before the commencement of this action the plaintiff returned it to the defendants and received back from them his note. It is denied that he suffered any damage whatever. The reply admits the giving of the note; admits that plaintiff returned the drill to defendants and secured from them his note; and alleges that any use made by him of the drill after he discovered its defects was at the express instance and request of defendants and upon their warranty that it would do the work for which it was sold, and their agreement to "stand good for any damage to plaintiff by reason of his continuing the use of the same, and the promise of defendants to remedy all defects" therein. The plaintiff had verdict and judgment. The defendants have appealed from the judgment and an order denying their motion for a new trial.
At the hearing in this court, counsel for the plaintiff submitted written objections to a consideration of the appeals on the merits, and asked that they be dismissed because of an alleged omission by counsel for defendants to observe the provisions of the statute in the preparation of his record on the motion for a new trial, and his failure to have the record on appeal properly authenticated. We have examined the questions presented in this behalf, and have concluded that they are without substantial merit. It is true the notice of intention states that the motion for a new trial would be made upon the minutes of the court and upon affidavits, and that the record contains what purports to be a bill of exceptions and statement of the case, which contains no affidavits. It does not appear that any affidavits were filed. While the statute (Rev. Codes, § 6796) requires the moving party to state in his notice whether the motion will be made upon affidavits or a bill of exceptions, or the minutes of the court, it does not require him to pursue all these methods and rely upon all the grounds indicated by the notice, though his notice states them all. If he pursues one of the authorized methods, and the record made in pursuance thereof is so formulated as to present properly one or more of the statutory grounds, he is entitled to be heard upon the record as made. He may not notify his adversary that he will pursue one method, and thereafter change to another; nor may he state two or more methods in the alternative. Gamer v. Glenn, 8 Mont. 371, 20 P. 654; Cummings v. Reins Copper Co., 40 Mont. 579, 107 P. 904. He may state all the methods conjunctively, however, and the abandonment of all except one is no reason why the motion should not be heard. It appears that the motion was heard and denied on January 5, 1914, and that on January 10th the court granted defendants an extension of time in which to "prepare, serve, and file their bill of exceptions and statement of the case." Thereafter a document was prepared under this caption and settled and allowed by the judge as "a bill of exceptions or statement of the case." It embodies the minutes of the trial, and was prepared, as the statute contemplates, as the record upon which the order disposing of the motion was based. We cannot conceive how the inadvertent use, by the court and counsel, of the expression "bill of exceptions" in designating the document, renders it any less a statement of the case which it also purports to be, such as is required by the statute (Rev. Codes, §§ 6799, 7114) to be presented to this court on appeal. The distinction between the two is that a bill of exceptions is prepared before the motion is submitted, whereas a statement is made up after the motion has been determined; yet the office of each is the same, viz., to bring into the technical record matters which would not otherwise constitute a part of it. In any event, since the document upon which the defendants rely was prepared as a statement of the case, its character as such is not affected by the fact that it bears a double designation.
While the judgment roll is not authenticated by the clerk technically as such, the record contains copies, properly authenticated, of the several papers which go to make it up. This is sufficient under the statute (Rev. Codes, § 6799) to meet all requirements.
Many errors are assigned by counsel upon rulings made during the trial in admitting and excluding evidence, and upon the action of the court in submitting its instructions to the jury. He also submits the question whether, upon the case as made by the pleadings and disclosed by the evidence, the plaintiff is entitled to recover at all. It was presented during the trial by motion for nonsuit, and also for a directed verdict. As we view the case,...
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