Flint Creek Lodge No. 11, A.F. & A.M., v. Brown
| Decision Date | 25 February 1928 |
| Docket Number | 6246. |
| Citation | 264 P. 394,81 Mont. 573 |
| Parties | FLINT CREEK LODGE NO. 11, A. F. & A. M., v. BROWN. |
| Court | Montana Supreme Court |
Appeal from District Court, Granite County; George B. Winston Judge.
Action by Flint Creek Lodge No. 11, A. F. & A. M., against Wingfield L. Brown. Judgment for plaintiff, and defendant appeals. Affirmed.
Maury & Brown, of Butte, for appellant.
W. E Moore, of Philipsburg, for respondent.
The complaint herein alleges that plaintiff, a corporation "rented" to defendant, and defendant "hired" from plaintiff, office rooms in the Masonic Temple at Philipsburg, owned by plaintiff, from August 1 1923, to April 1, 1924, at the agreed rental of $22.50 per month, and from the latter date to July 1, 1925, at the agreed rental of $15.00 per month, and that defendant occupied the offices during all of said period; that there was owing to plaintiff from defendant on July 1, 1925, the sum of $405, no part of which has been paid, except the sum of $55. It prays for judgment for $350.
The answer admits the occupancy, and denies all other allegations of the complaint. A jury was waived, and the cause tried to the court. The trial resulted in judgment for plaintiff for the amount claimed, and defendant has appealed. His specifications of error will sufficiently appear later. But two witnesses were called for the plaintiff and one for defendant.
Plaintiff introduced its articles of incorporation, and its ownership of the temple was admitted. The first witness called was a trustee of the lodge. He testified that defendant had rented and occupied the offices for years, sometimes under written lease and sometimes not; that the defendant vacated the offices on July 1, 1925; and that the rent for the first period mentioned in the complaint was fixed by agreement at $22.50 per month, at the end of which period it was either reduced $5 or to $15 per month. Defendant objected to this testimony on the ground that there was a written lease in existence, and, on cross-examination, produced the lease covering a period of two years from and after March 1, 1922, at a rental of $22.50 per month. Counsel for defendant then moved to strike the testimony of the witness on the ground that the lease was the best evidence The motion was denied.
The secretary of the lodge then took the stand. He testified that he kept the books of the lodge, and produced what he termed his "ledger" or "book of original entry," from which he showed a payment of $50 in cash and a credit for $5 for services. He stated that he did not enter debit charges for rent in the books, as they were fixed charges, and he only kept track of the payments made. This testimony was all objected to as not the best evidence. The witness testified that he made statements of account from time to time, which were delivered to defendant, and talked with defendant from time to time about the matter, each time mentioning the amount due, but could not recollect the amount, as "it is pretty ancient."
The first witness was then recalled, and testified that he had seen the statements rendered and reports of the secretary to the trustee, and knew therefrom that the amount was $350; that, after the offices were vacated, and defendant had received statements of the amount due, he talked with defendant, telling him that he would be expected to pay the balance due as soon as he could, to which defendant replied that when he paid that rent "it would be with a bankrupt note." This testimony was objected to on the ground that the books were the best evidence, but no ruling was made on the objection. Nowhere in the record does it appear that at any time the defendant questioned the correctness of the accounts rendered or disputed the claim that he was indebted to plaintiff in the sum of $350.
Plaintiff having rested, defendant moved for a nonsuit on the grounds that the complaint did not state a cause of action, and that there was a failure of proof. This motion was denied. Counsel for defendant was then sworn, and testified that he was the son of defendant, and was in the office with him up to March 1, 1924, and that there was no change made in the lease up to its expiration; that it was not altered or abrogated. No further testimony was offered on the part of the defendant...
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