Galvin v. O'Gorman

• Citation: 106 P. 887,40 Mont. 391
• Parties: GALVIN v. O'GORMAN.
• Decision Date: 29 January 1910
• Court: United States State Supreme Court of Montana

106 P. 887

40 Mont. 391

GALVIN v. O'GORMAN.

Supreme Court of Montana

January 29, 1910

Appeal from District Court, Madison County; Lew L. Callaway, Judge.

Action by William Galvin against John O'Gorman. From a judgment for plaintiff, and an order denying defendant's motion for a new trial, defendant appeals. Affirmed.

Clark & Duncan, for appellant.

Edmund J. Callaway, for respondent.

HOLLOWAY J.

The complaint in this action alleges that between May 1 and October 1, 1903, the plaintiff loaned to defendant, at defendant's special instance and request, $183, which defendant promised to repay, but has failed and neglected to do so, or to repay any part thereof. The answer consists of a general denial and a plea of the bar of the statute of limitations. The reply denies the allegations of the special plea, and contains the following: "(2) Alleges that the said cause of action as herein sued upon, and as pleaded in plaintiff's complaint, is in full force and effect, and still subsisting. (3) That the said transaction, as pleaded in plaintiff's complaint, took place within the five years next preceding the filing of the said complaint." A general verdict was returned in favor of the plaintiff, and the defendant appealed from the judgment entered thereon, and from the order denying his motion for a new trial.

The evidence offered on the part of the plaintiff tends to show that in May, 1903, he loaned defendant $100, in June, $75 and in September, $8. The action was commenced September 14 1908. The other evidence offered by plaintiff will be considered hereafter. At the conclusion of plaintiff's case defendant moved the court to withdraw from the jury's consideration all evidence touching the loan of $100 or the loan of $75, upon the following grounds "That the plaintiff's evidence shows that these two items were separate and distinct, and that they were contracted, if at all, more than five years prior to the date of the commencement of this action; that the testimony fails to show that the account is a mutual, open account within our statute; that in fact each item is a separate and distinct one, and it cannot be considered as a running account, or a mutual, open account between the parties." This motion was denied. The defendant requested the court to charge that if the jury found that the $100 and the $75 were received by defendant before September 14, 1903, then plaintiff's cause of action was barred as to those items. This request was also refused.

It seems clear from the evidence that plaintiff has three separate causes of action, and that he did not state them separately, as required by section 6533, Rev. Codes; but there was not any objection made by defendant on that ground. The motion above did not raise the objection. The proper practice in such a case is outlined in 5 Encyclopedia of Pleading & Practice, 336, where it is said: "The clear weight of authority, however, is that the proper remedy for a failure to state separately is a motion to make the complaint more definite and certain by separately stating the causes of action." This same rule is stated in Pomeroy's Code Remedies (4th Ed.) § 341 [*§ 447], and is approved in City Carpet Beating, etc., Works v. Jones, 102 Cal. 506, 36 P. 841.

The plaintiff sought to show that in 1904 and 1905 the defendant had acknowledged, in writing, the entire indebtedness, and had promised to pay the same, and to this end introduced in evidence five letters written by defendant to him. The first of these, dated May 12, 1904, is as follows: "I note what you say about going home next month & was glad you spoke of it & gave me so much time. Well Bill I will be able to send you at least 150 dollars the first of the month. I will try my best to send you all of it but if I can't I will send it after you." The plaintiff testified that this letter was a reply to one he had written to defendant about the money in controversy. Another letter, characteristic of the others received by plaintiff from defendant, was dated January 5, 1905, and is as follows: "Yours of the 3d inst. received just now. Well Bill my intentions were good. It was my mistake for not answering your letter but I could not get the money to send to you. Smith has bought out Boyd & I cannot get any money until everything...