Easterly v. Jackson

• Decision Date: 01 February 1904
• Citation: 75 P. 357,29 Mont. 496
• Parties: EASTERLY v. JACKSON.
• Court: Montana Supreme Court

75 P. 357

29 Mont. 496

EASTERLY v. JACKSON.

Supreme Court of Montana

February 1, 1904

Commissioners' Opinion. Appeal from District Court, Broadwater County; W. L Holloway, Judge.

Action by Allen M. Easterly against James E. Jackson. From a judgment in favor of plaintiff and an order denying a new trial, defendant appeals. Reversed.

Walsh & Newman and Clayberg & Gunn, for appellant.

Shober & Rasch, for respondent.

POORMAN C.

This is an appeal by defendant from a judgment entered on a verdict in favor of plaintiff and from an order overruling defendant's motion for a new trial. The facts appearing in the record are, substantially: That on the 14th day of December, 1899, Allen M. Easterly (this plaintiff), James J Mayne, and Allen Easterly, Jr., agreed with James E. Jackson (this defendant) that for the sum of $75,000 they would sell and convey to Jackson, "or to such person or persons as he may designate," certain mining property. $7,500 of the purchase price was to be paid on or before December 31 1899, $12,500 on or before August 15, 1900, and the remaining $55,000 on or before February 15, 1901. That upon the making of the first payment the defendant should have the possession of the property, with the privilege of working the same except one tunnel. That he should deposit 25 per cent of the smelter returns from all ore extracted as fast as the same was realized, for the benefit of grantors, which sums were to be deducted from the final payment. Deeds were to be deposited in escrow with the Union Bank & Trust Company of Helena. Time was made the essence of the contract, and forfeiture was to be the result of any violation of its terms. It further appears that the real consideration which the owners were to receive for the property was $60,000, and that the remaining $15,000 was a profit to Jackson for his expenses and compensation in making the sale of the property. Jackson was to receive $2,500 from the first payment made and all of the $12,500 payment due August 15, 1900. On December 29, 1899, the first payment of $7,500 was made, and $2,500 of the amount was turned over to Jackson, and deeds to the property were executed, and placed in the bank. The grantors then gave an order, addressed to the Union Bank & Trust Company, authorizing and requesting the bank "to pay to James E. Jackson, Agent, the full sum of twelve thousand five hundred (12,500) dollars, being the second payment provided for (to be paid on or before August 15th, 1900)." Thereafter, on August 8, 1900, Jackson gave his personal check for $12,500 to the cashier, payable to the bank, and presented the order of the said grantors for the payment to him of this amount. The bank accepted this check with the sanction of Mayne, who was then present, indorsed it, "Pay to the order of James E. Jackson, agent, without recourse," and handed it back to Jackson, who receipted on the order as follows, after the same had been acknowledged by Mayne: "Full receipt acknowledged. James E. Jackson, Agent." The bank then indorsed on the escrow agreement: "8--8 1900. Rec'd $12,500. U. B. & T. Co. G. L. R." It further appears that this check was never presented for payment. These are substantially all of the facts, so far as they relate to the transactions, necessary to be considered at this time. Plaintiff claims, however, that the instrument sued upon grew out of and is connected with these transactions. This instrument is as follows: "Helena, Mont. Dec. 29, 1899. Allen M. Easterly, Helena, Mont.--Dear Sir: I hereby agree and promise to pay you Twenty-five hundred dollars out of & from the sum of Twelve thousand five hundred (12,500) dollars for which yourself, James J. Mayne & A. Allen Easterly, Jr. have given me this day an order on the Union Bank & Trust Co. Said sum to be paid on or before August 15th 1900 in accordance with terms of agreement made & entered into on Dec. 14 1899 between above named parties & myself. In case said payment of $12,500.00 is not made then this agreement is null and void. [50 cent Internal Rev. Stamp, Cancelled.] Yours truly, J. E. Jackson." This instrument is attacked by defendant as being without consideration. To repel this attack, plaintiff testified that the actual consideration to be paid to the owners for the property was $60,000, which was to be divided between plaintiff, his two sons, and James J. Mayne--$15,000 to each-- but that plaintiff had a verbal agreement with defendant, entered into prior to the execution of the agreement to convey, to the effect that plaintiff was to receive $3,000 additional; that $500 of this amount was to be paid when the first payment was made on the contract of conveyance, and $2,500 when the second or August payment was made; that defendant did pay the $500, and that plaintiff refused to sign the escrow agreement and deeds until defendant executed and delivered to him the instrument sued upon. With reference to this verbal agreement the...