Gans v. Woolfolk

Decision Date31 January 1876
Citation2 Mont. 458
PartiesGANS, appellant, v. WOOLFOLK, respondent.
CourtMontana Supreme Court


Appeal from Third District, Lewis and Clarke County.

THIS action was tried before WADE, J., who entered the judgment of nonsuit.

W. F. SANDERS and CHUMASERO & CHADWICK, for appellants.

A new trial must be granted. The answer admits that respondents owe the appellants $184 and interest, and judgment should have been entered for this sum.

When appellants introduced the undertaking sued on, they could rest their case. The judgment for the return of the property was admitted, and the burden of proving that the conditions had been performed devolved upon respondents. The respondents were entitled to open and close, and there could be no nonsuit. Huntington v. Conkey, 33 Barb. 220;Ayrault v. Chamberlain, Id. 229;Elwell v. Chamberlin, 31 N. Y. 612;Millerd v. Thorn, 56 Id. 405; Bouv. Inst., § 3047; Scott v. Hull, 8 Conn. 303.

The appellants proved that the property had not been returned. They intended to prove by the witness, Sandford, that the carpet had been destroyed, and that respondents could not return it. The court ruled that this evidence was incompetent, and sustained the motion for a nonsuit because appellants did not prove the matter they proposed to by this witness. Respondents cannot take advantage of the lack of evidence when they excluded it by their objection. They are estopped by their conduct. Thompson v. McKay, 41 Cal. 230.

The respondents made a paper offer to return the property, and no actual offer. They were trespassers in holding the property after the judgment had been rendered for its return to appellants. They are liable upon their undertaking and cannot defeat this action by making an offer on paper to return the carpet. Sweeney v. Lomme, 22 Wall. 208.

H. M. PORTER and E. W. TOOLE, for respondent.

Appellants were required to prove that respondents did not deliver the carpet. When a right of action is grounded on a negative averment, it must be proved. 1 Greenl. Ev., § 78.

The offer to return the goods at the International Hotel was a compliance with the undertaking. Bouv. Dict., “Return;” Hisler v. Carr, 34 Cal. 641.

Evidence of waiver of tender is competent to support averment of tender. The refusal to receive the goods was a waiver of a perfect tender. 2 Greenl. Ev., § 603; Slingerland v. Morse, 8 Johns. 474;Munn v. Barnum, 24 Barb. 283;Hazard v. Loring, 10 Cush. 267;Mutual L. I. Co. v. Wager, 27 Barb. 367.

Appellants could not refuse to receive the carpet if it was depreciated or worn out. Compensation for the depreciation is allowed as damages. Allen v. Fox, 51 N. Y. 562.

The law presumes that the value of the goods was found at the date of the trial by the jury, $1,900. Brewster v. Silliman, 38 N. Y. 423;Young v. Willet, 8 Bosw. 486; Allen v. Fox, 51 N. Y. 562. No issue as to the value of the carpet was made in the pleadings.

The case of Sweeney v. Lomme is not applicable. After Wyttenbach tried to comply with the judgment by offering to return the goods, he ceased to be a trespasser. 2 Kent, 692; La Farge v. Rickert, 5 Wend. 187.

Appellants did not ask for judgment as to the sum admitted to be due. The nonsuit was upon the issues submitted. The offer to permit judgment for $184 was not accepted by appellants, who are therefore liable for the costs. The court can modify the judgment in any particular. Civ. Pr. Act, § 378.


The appellants commenced an action in July, 1871, against G. J. Germaine to recover $1,868.17, and procured a writ of attachment. W. L. Steele, then the sheriff of Lewis and Clarke county, levied upon the carpet in the International Hotel, in Helena, as the property of Germaine, under the writ. H. Wyttenbach brought an action against the officer to recover the possession of the property, and delivered an undertaking, executed by the respondents, with the following condition: “For the prosecution of said action for the return of the property to the defendant, if return thereof be adjudged, and for the payment thereof to the defendant of such sum as may, for any cause, be recovered against the said plaintiff.” The carpet was delivered afterward to Wyttenbach, according to the provisions of the statute for the claim and delivery of personal property. Civ. Pr. Act, title 5, ch. 2. On the trial of the action between Wyttenbach and Steele, judgment was entered March 6, 1873, that Steele recover the possession of the property, or $1,900 in case a delivery could not be had, and the costs, amounting to $184.90. Steele assigned this judgment and the undertaking to the appellants. The appellants obtained a judgment against Germaine November 10, 1871, for $1,929.72 damages, and $34 costs. No part of this judgment has been paid by Germaine or any person. At the time that the attachment writ was served the carpet, comprising six hundred yards, was tacked to the floor of the hotel and never removed by the sheriff or the appellants. The building and the carpet were destroyed by fire January 9, 1874.

The appellants bring this suit against the respondents upon their undertaking to recover $1,964.62 and interest from November 10, 1871, and $184.90 and interest from March 6, 1873, the said sums being the amounts of the judgments recovered by the appellants against Germaine, and by Steele against Wyttenbach. The respondents admit, in their answer, that they owe the judgment for $184.90 with the interest thereon, and allege that they are ready and willing to pay the same. They deny that they owe the sum of $1,964.42, or any part thereof, and aver that, upon the rendition of the judgment against Wyttenbach, the carpet was returned and delivered to the appellants, at the hotel, in the same situation in which it was found when the officer levied thereon; and that the appellants refused to receive the property at any place. These allegations are denied by the appellants in their replication to the answer.

Upon the trial the court sustained the motion of the respondents for a nonsuit, and judgment was rendered against the appellants for the costs of the suit. This motion should not be granted when a cause of action is proved or admitted by the pleadings. Goulding v. Hewitt, 2 Hill, 644;Van Rensselaer v. Jewett, 2 N. Y. 135. The appellants were entitled to a judgment against the respondents upon the pleadings for $184.90, and the interest thereon from March 6, 1873, and certain costs. The court erred in granting the motion relating to this cause of action, and entering the judgment against the appellants for the costs.

This error does not necessarily entitle the appellants to a new trial upon the issues between the parties. The complaint contains two distinct causes of action, arising in the cases of the appellants against Germaine, and Wyttenbach against Steele. The respondents admitted their liability upon one of the causes of action, and proceeded to a trial upon the other subject of controversy respecting which all the evidence was offered on the trial. A judgment of nonsuit may be entered by the court, upon the motion of the defendant, when, upon the trial, the plaintiff fails to prove a sufficient case for the jury. Civ. Pr. Act, § 184. The term “case” does not include the entire action stated in the complaint. Several causes of action may be united in the same complaint, and the defendant may demur to one or more of the causes and answer the remainder, and the defenses must refer to the cause of action which they are intended to answer. Id., §§ 52, 59, 72. We are of the opinion that a judgment of nonsuit may be entered when the plaintiff fails to establish by the proof one of his causes of action, and that no other cause of action is affected by the decision, and the same can be tried and submitted to the jury.

We will consider the ruling of the court in granting the nonsuit upon the cause of action in which the appellants seek to recover $1,964.62 and the interest. What facts were the appellants required to prove to maintain the material allegations of the complaint? This action is founded upon the alleged failure of the respondents to perform the conditions of their undertaking, and the complaint states that “no return of the property has been had,” and that no part of the judgment against Wyttenbach has been paid. Upon these issues the appellants must establish the negative allegation that “no return of the property has been had,” in order to sustain this cause of action. 1 Greenl. Ev., § 78; Machebeuf v. Clements, 2 Col. 36, affirmed in 92 S. C. 418. The assignment of the judgment recovered by Steele against Wyttenbach vested in the appellants the rights of the sheriff upon the undertaking made by the respondents. Bowdoin v. Coleman, 3 Abb. Pr. 431;Lomme v. Sweeney, 1 Mon. 584;S. C., 22 Wall. 208.

The evidence that was introduced by the appellants to maintain this allegation is set forth in the transcript. One of the appellants testified that the carpet had never been returned to them, and he did not remember whether it was offered to him by the respondents and refused after the judgment was entered against Wyttenbach. Steele testified that the property was not returned to him; that his term of office as sheriff expired in December, 1871; that in April, 1873, one of the respondents came to him on Main street, Helena, between the store of the appellants and the International Hotel, at a point about seventy-five or one hundred yards from the hotel, and handed him a written notice surrendering the carpet; that one of the respondents told him that the carpet was rolled up at the hotel, the place where it was attached, and asked him to go there and receive it; that he refused to receive the property, as he was out of office, and would have nothing to do with it; that he then went to one of the respondents and delivered him the notice, and he said he had received a similar notice; and that he (Steele) had no place of business in Helena at this...

To continue reading

Request your trial
11 cases
  • Vallancy v. Hunt
    • United States
    • North Dakota Supreme Court
    • January 20, 1914
    ...Capital Lumbering Co. v. Learned, 36 Ore. 544, 78 Am. St. Rep. 792, 59 P. 454; Frey v. Drahos, 10 Neb. 594, 7 N.W. 319; Gans v. Woolfolk, 2 Mont. 458; McClellan v. Marshall, 19 Iowa 561, 87 Am. Dec. 34 Cyc. 1575. On motion for a directed verdict, the trial court and the Supreme Court will a......
  • Grant v. Chicago, M. & St. P. Ry. Co.
    • United States
    • Montana Supreme Court
    • January 4, 1927
    ... ... recovery must be treated as proved (Grover v ... Hines, 66 Mont. 230, 213 P. 250; McLaughlin v ... Bardsen, 50 Mont. 177, 145 P. 954; Gans v ... Woolfolk, 2 Mont. 458); that plaintiff's evidence ... must be taken as true (Larson v. Marcy, 61 Mont. 1, ... 201 P. 685); and that the ... ...
  • Osterholm v. Butte Electric Ry. Co.
    • United States
    • Montana Supreme Court
    • May 23, 1921
    ... ... Lindell Ry. Co., 190 Mo. 342, 88 S.W ... 757; Lane v. United Electric L. & W. Co., 90 Conn ... 35, 96 A. 155, L. R. A. 1916C, 808; Gans v ... Woolfolk, 2 Mont. 458; Bielenberg v. Eyre, 44 ... Mont. 397, 120 P. 243; Atherton v. Fowler, 46 Cal ... 320; Spence v. Damrow, 32 Neb ... ...
  • Leeper, Graves & Co. v. First Nat. Bank of Hobart
    • United States
    • Oklahoma Supreme Court
    • July 12, 1910
    ...of tender: 1 Cobbey on Replevin, secs. 1318, 1350; 7 Wait on Actions and Defenses, 598, 599; Frey v. Drahos (Neb.) 7 N. W. 454; Gans v. Woolfolk, 2 Mont. 458; Larabee v. Cook (Kan.) 61 P. 815; Washington Ice Company v. Webster, 125 U.S. 426. L. M. Keys and Ledbetter, Stuart & Bell, for defe......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT