Gaffney Mercantile Co. v. Hopkins

Decision Date21 March 1898
Citation52 P. 561,21 Mont. 13
PartiesGAFFNEY MERCANTILE CO. v. HOPKINS.
CourtMontana Supreme Court

Appeal from district court, Jefferson county; M. H. Parker, Judge.

Action by the Gaffney Mercantile Company against Charles Hopkins to reform a contract. Defendant demurred to the complaint, and his demurrer was sustained. Plaintiff appeals. Affirmed.

Geo. F Cowan, for appellant.

Wm. H De Witt, for respondent.

PIGOTT J.

The Gaffney Mercantile Company brought this action to reform a certain written contract made between it and Charles Hopkins and to enjoin him from prosecuting an action commenced by him against it upon the contract. Defendant demurred to the complaint for insufficiency. The court sustained the demurrer, and, plaintiff electing to stand upon the complaint, judgment passed for the defendant, from which the plaintiff appeals. Pending the appeal, this court, as authorized by section 23, Code Civ. Proc., granted the injunction prayed by the plaintiff.

The single question presented is whether the complaint states facts sufficient to constitute a cause of action. It sets out that on July 19, 1897, plaintiff and defendant entered into a stipulation in writing, with respect to a certain suit entitled "Chas. Hopkins vs. H. Chambers and the Gaffney Mercantile Company," then pending and set for trial on that day, by the terms of which the case was to be continued and a referee appointed to hear the evidence and find the amount due from Chambers to Hopkins, and that judgment for the amount so found should be entered against Chambers "which said judgment, in consideration of this stipulation and in consideration of the further fact that there are now and there will be moneys in the hands of the said Gaffney Mercantile Company due to the said Chambers, the said Gaffney Mercantile Company agrees to pay said judgment within thirty days after the entry of said judgment." The complaint further charged that "the said stipulation was so then and there made and entered into by the parties thereto, upon the mutual understanding between said parties that this plaintiff was not the guarantor for the payment of any indebtedness then existing, or that might be found existing, from said H. Chambers to said Charles Hopkins upon an accounting and reference in said stipulation provided for, and that the same was wholly based, for its consideration, upon the theory that this plaintiff would have sufficient moneys in its hands belonging to said Chambers out of which any judgment that might be recovered in said action by Hopkins against Chambers could be paid, and that the stipulation was not made with any purpose or intent on the part of either of the parties thereto, or with any understanding or agreement between any of said parties, that the plaintiff should be bound thereby to any greater extent than the sum of money (not exceeding the amount of said judgment) which was then expected to be left in plaintiff's hands belonging to said Chambers, after balancing the account between the plaintiff and Chambers; that the agreements and understanding between the parties to said stipulation, both before and after the execution of the same, were that this plaintiff was only bound thereby to the extent of moneys in his hands belonging to said Chambers"; that in the action of Hopkins against Chambers and the Gaffney Mercantile Company the referee found $491.81 to be due from Chambers to Hopkins, for which sum judgment was entered, in accordance with the stipulation; that the mutual accounts between the plaintiff and Chambers had been balanced, disclosing an indebtedness from Chambers to the plaintiff instead of from the plaintiff to Chambers; that on October 7, 1897, defendant commenced an action against the plaintiff to recover said sum of $491.81 for the breach by the plaintiff of its promise contained in the stipulation to pay the defendant the amount of the judgment rendered...

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