Gillett v. Clark

• Decision Date: 31 January 1886
• Citation: 6 Mont. 190
• Parties: GILLETT, Adm'x, etc., v. CLARK and others.
• Court: Montana Supreme Court

6 Mont. 190

GILLETT, Adm'x, etc.,

v.CLARK and others.

Supreme Court of the Territory of Montana.

January Term, 1886.

Appeal from First district, Custer county.

A. F. Burleigh, for appellant.

E. H. Harwood, for respondent.

WADE, C. J.

In this case it appears that Gillett & Laundrie were partners and subcontractors under Heman Clark & Co., contractors on the extension of the Northern Pacific Railroad. On the twenty-third day of July, 1882, Gillett & Laundrie dissolved partnership, and Gillett sold his interest in certain teams and personal property, which theretofore had belonged to said partnership, to Laundrie, for the sum of $2,387.50, and, to secure the payment of that sum to Gillett, said Clark & Co. executed to him an instrument in writing, of which the following is a copy:

“Heman Clark. John Westbrook.

“H. CLARK & CO., CONTRACTORS, EXTENSION NORTHERN PACIFIC R. R., MONTANA TERRITORY.

“BILLINGS, M. T., July 23, 1882.

“E. A. Gillett: We will pay you, on Mr. Joseph Laundrie's order, thirty days from date, the sum of $2,387.50.

We understand you sell him one-half interest in 11 teams, and this document is given to insure you payment, on presenting his order at the time specified.

“Respectfully yours, H. CLARK & CO.”

And thereupon, on the same day, Laundrie executed an order upon Clark & Co., in favor of Gillett, in the words and figures following, to-wit:

“Heman Clark. John B. Westbrook.

“H. CLARK & CO., CONTRACTORS, EXTENSION NORTHERN PACIFIC RAILROAD, MONTANA TERRITORY.

“BILLINGS, M. T., July 23, 1882.

“ Messrs. H.Clark & Co.: Please pay to Mr. E. A. Gillett, thirty days from date, the sum of two thousand two hundred and eighty-seven dollars and fifty cents, ($2,287.50,) under the condition that any differences of the late copartnership be deducted thereof. JOSEPH LAUNDRIE.”

It is alleged in the complaint that upon the settlement of the joint affairs and transactions of said partnership there was nothing due from Gillett to Laundrie, but, on the contrary, that Laundrie is owing to Gillett, on account of such affairs and transactions, the sum of $300. Laundrie is made a party defendant in the action, and having failed to answer, and made default, thereby admits that these allegations are true, nor do the defendants deny them.

1. It is contended by the appellants that the order of Laundrie upon Clark & Co. was conditional and, until the condition was fulfilled, no action would lie to compel payment of the same. But the averments of the complaint show that the order had become absolute. The copartnership of Gillett & Laundrie, on settlement, did not owe Laundrie anything, and this Laundrie admits. There was nothing, therefore, to be deducted from the amount of the order, and the same became due and payable to Gillett.

2. The complaint sets forth the reasons assigned by Clark & Co. for not paying the order. These reasons were wholly immaterial, and ought to have been stricken from the complaint. There could have been no issue raised thereon, and was not. The defendants did not deny that they assigned the reasons alleged, and they could not have been prejudiced in any way by the failure of the court to strike out the same from the complaint. The error did not in any...