First Nat. Bank v. Silver

• Decision Date: 18 March 1912
• Citation: 122 P. 584,45 Mont. 231
• Parties: FIRST NAT. BANK OF BUTTE v. SILVER.
• Court: Montana Supreme Court

122 P. 584

45 Mont. 231

FIRST NAT. BANK OF BUTTE v. SILVER.

Supreme Court of Montana

March 18, 1912

Appeal from District Court, Silver Bow County; Jeremiah J. Lynch Judge.

Action by the First National Bank of Butte against J. R. Silver. From a judgment for plaintiff on the pleadings, defendant appeals. Reversed and remanded, with directions.

James H. Baldwin, of Butte, for appellant.

Robt. L. Clinton, of Butte, for respondent.

HOLLOWAY J.

This action was brought to enforce payment of a promissory note dated December 16, 1905, due on demand, and executed and delivered by defendant and one John Eakins to the plaintiff. Before the action was commenced, Eakins died. The complaint after alleging the execution and delivery of the note contains, in paragraph 3, the following: "That prior to the commencement of this action plaintiff demanded of the defendant the payment of said promissory note, and that the defendant has at all times failed, refused, and neglected to pay said promissory note or any part or portion thereof, and that the said John Eakins in his lifetime, and his legal representatives since his death, have failed, neglected, and refused to pay said promissory note or any part or portion thereof." It is further alleged that Eakins died, that an administratrix of his estate was appointed, that plaintiff presented its claim, and the same was duly allowed, and paragraph 5 concludes as follows: "That no part or portion of said claim has been paid." The defendant answered, admitted the execution and delivery of the note, the death of Eakins, that he (defendant) had not paid the note, and then denies any knowledge or information as to whether Eakins in his lifetime, or his legal representatives since his death, paid the note or the debt evidenced by it; and further denied, upon information and belief, that an administratrix had been appointed for Eakins' estate, and denied any knowledge or information as to whether plaintiff had presented its claim or whether the same had been allowed or remains unpaid. Defendant then pleaded two counterclaims, in the first of which he alleges that, prior to the execution of the note sued upon, he and Eakins formed a copartnership to carry on certain work in Butte; that the money represented by the note was borrowed by them as copartners for the use of the copartnership in carrying on its undertaking and was in fact used by them as copartners in their copartnership enterprise. It is alleged that about January 19, 1906, one O'Brien, in payment for work done by the copartnership, executed and delivered to Eakins a check drawn upon the Daly Bank & Trust Company for $424.20; that Eakins received such check as the property of the copartnership and held it as such, and had it in his possession unindorsed at the time of his death. It is alleged that about February 16, 1906, this plaintiff, after the death of Eakins, wrongfully obtained possession of such check, caused the name of John Eakins to be indorsed upon it, and then presented the check to the bank upon which it was drawn, collected the money, converted it to its own use, and ever since has failed and refused to account to the defendant for the same or any part thereof. The second counterclaim is in similar terms, except as to the amount of the check which it is alleged plaintiff procured and cashed. The prayer of the answer is that plaintiff take nothing; that defendant recover the amount of each of the two checks with interest, that he recover his costs, and for general relief. Upon these pleadings plaintiff moved for judgment, and the motion was granted. Plaintiff thereupon waived its claim for attorneys' fees, and the district court rendered and entered judgment, from which the defendant appealed.

1. Contention is made that paragraph 3 of the complaint, quoted above, does not contain allegations sufficiently specific to show nonpayment of the note; but with this we do not agree. It requires the most strained construction of the pleading to admit of a doubt that payment has not been made by any one, if the allegations above are true.

2. While it may well be said that the denial of information as to whether plaintiff presented its claim and had same allowed, and the further denial upon information and belief that an administratrix has been appointed for Eakins' estate are frivolous, since these facts can be ascertained from public records, still...