Flinner v. McVay

• Decision Date: 25 June 1908
• Citation: 96 P. 340,37 Mont. 306
• Parties: FLINNER v. McVAY.
• Court: Montana Supreme Court

96 P. 340

37 Mont. 306

FLINNER v. McVAY.

Supreme Court of Montana

June 25, 1908

Appeal from District Court, Gallatin County; W. R. C. Stewart Judge.

Action by John Flinner against W. B. McVay for the purchase price of in assignment of a contract to sell land. From a judgment of nonsuit and an order denying a new trial, plaintiff appeals. Affirmed.

B. B Law and Walter Aitken, for appellant.

Hartman & Hartman, for respondent.

BRANTLY C.J.

It is alleged in the complaint herein, that on August 7, 1906, the plaintiff and one W. P. Knowlton entered into a contract, of which the following is a copy: "Belgrade, Mont., Aug 7th, 1906. This agreement made this day and date between W. P. Knowlton, of Belgrade, Mont., party of the first part, and John Flinner, of Leav., Kans., party of the second part: W. P. Knowlton, party of the first part, agrees to sell and convey to John Flinner, party of the second part, all right and title to S. 1/2 of N.E. 1/2 of Sec. 16, 80a.; S. 1/2 of N. 1/2 of Sec. 15, 160a.; S. 1/2 of Sec. 15, 320a.; N.W. 1/4 Sec. 22, 160a.; and the West 1/2 of N.E. 1/4 of Sec. 22. 80a-all located in Town. 2 N., R. 5 E., in Gallatin Co., Mont. Also all horses, cattle, harness, farm machinery and all other articles (except house furniture) upon above-named land for the sum of ($25,000) twenty-five thousand dollars. W. P. Knowlton, party of the first part, agrees to accept ($100) one hundred dollars as part payment, balance of ($24,900) twenty-four thousand nine hundred dollars to be paid on or before Nov. 1st, 1906, at which time W. P. Knowlton agrees to transfer to John Flinner a warranted deed and abstract with clear title to said land, also a clear title to all stock, etc. W. P. Knowlton. John Flinner." It is further alleged that upon the signing and delivery of this contract plaintiff paid to Knowlton $100 in cash; that thereafter, on October 29, 1906, plaintiff, with the knowledge and consent of Knowlton, sold and delivered the contract and assigned all of his rights thereunder to defendant for a consideration of $350, which the defendant agreed to pay; that, relying upon the said sale and assignment of the contract and the promise of defendant, the plaintiff refrained from asserting any rights thereunder; that under and by virtue of the assignment, the land and other property to be conveyed by said Knowlton to plaintiff as in the contract specified, was by him conveyed to defendant, who thereby received the benefits which had accrued to plaintiff under the contract; and that defendant having failed to pay the said sum of $350, there is now due and owing to plaintiff from him said amount. Judgment is demanded for the same. The answer denies that the assignment was made as alleged, that the plaintiff by reason of it refrained from asserting his rights under the contract, that the defendant obtained a conveyance to himself of the property mentioned, and that there is due plaintiff, in consideration of the assignment, the sum of $350 or any other sum.

At the close of plaintiff's case the defendant moved for a nonsuit, which was granted, and judgment was entered for the defendant. Plaintiff has appealed from the judgment and an order denying him a new trial. The grounds of the motion for nonsuit are, substantially: (1) That the evidence does not show that the plaintiff ever assigned his rights under the contract to defendant; (2) that the contract could not be assigned without the written consent of Knowlton, and the evidence does not show that such consent was given: (3) that on November 2d, subsequent to the date of the alleged assignment, the plaintiff received the contract back from defendant and attempted to enforce it in his own behalf, and that the assignment, if made, was revoked; and (4) that there, is no evidence tending to show that defendant obtained any conveyance from Knowlton of the property described in the contract. While the question presented by each of the grounds of the motion is submitted for decision, the principal contention is as to whether the facts show an assignment to defendant by plaintiff of his right under the contract. A solution of this question is, in our opinion, determinative of these appeals.

The plaintiff resides in the state of Kansas. The defendant and Knowlton reside, in Gallatin county, some miles from Bozeman, the county seat. On October 21st, a few days before the final payment was to be made under the contract, the defendant, having knowledge of it, approached plaintiff's son. William A. Flinner, who also resides in Gallatin county, and asked him if his father intended to take the Knowlton farm. Flinner replied that his father had not said much about the matter in his last letter, but that in a prior letter he had said that he had made arrangements for the money to enable him to do so. Then inquiry was made by defendant whether the father would sell his interest in the farm. This question Flinner could not answer. Thereupon defendant asked him to write to his father to conclude the purchase and to state to him that defendant would give him $250 for his bargain. Flinner then said he did not think his father would be willing to send out to Montana $24,900 to make final payment and then sell for so small a profit. An easier way, he said, would be for the defendant to buy the contract and have the conveyance made directly to himself. To this plan the defendant assented, offering to pay $250 besides the $100 already paid by the plaintiff. On the evening of the same day Flinner wrote to plaintiff to ascertain his wishes, as follows: "Belgrade, Mont., October, 1906. Dear Father: Mr. Boyd McVay was here to day. He wants to buy the contract you have with Perry Knowlton for his farm. He offers $250 and your $100 back, making $350 in all. Now, if you want to sell for that small amount you can send me the contract and necessary papers and I will turn them over to Mr. McVay. Now you can do as you please about this, but my advice would be not to take this, and go ahead and buy the place yourself, because you can make more money out of it. Mr. McVay is very anxious for the place, and you might sell to him later on for a better price, but you will have to act pretty quick one way or the other as the time is getting close. *** From Will."

To this letter the father replied: "Leavenworth, Kan., Oct. 26th, 1906. Dear Son: Being I have sent the agreement and not signing it I hereby send power of attorney for you to execute in my place. I can get the $10,000 from the Wulfekhuler Bank any time, but if Mr. McVay will do as you say, namely the $100 and $250, he may have the Knowlton farm. Yours respectfully, John Flinner."

On receipt of this letter Flinner went to the home of the defendant, and, finding him there, went with him to see Knowlton. Flinner told Knowlton that his father had sold his interest to defendant, showing his father's letter and power of attorney. After reading them over, Knowlton said to defendant, "All right; I'll meet you at Bozeman on Thursday," that day being November 1st. After leaving Knowlton, Flinner delivered the contract, his father's letter, and power of attorney to defendant. On the morning of Bozeman November 1st defendant, while on his way to Bozeman to meet...