Harrington v. Butte & B. Min. Co.

• Decision Date: 09 June 1902
• Citation: 69 P. 102,27 Mont. 1
• Parties: HARRINGTON v. BUTTE & B. MIN. CO. et al.
• Court: Montana Supreme Court

69 P. 102

27 Mont. 1

HARRINGTON v. BUTTE & B. MIN. CO. et al.

Supreme Court of Montana

June 9, 1902

Appeal from district court, Silver Bow county; Theo. Brantly, Judge.

Action by Phil. J. Harrington against the Butte & Boston Mining Company, impleaded with John A. Leggat. There was judgment for plaintiff and from an order granting a new trial plaintiff appeals. Affirmed.

J. E Healy, for appellant.

C. M Parr, for respondents.

SMITH Special Judge.

This action is brought to recover judgment upon a bank check. There was a verdict and judgment for the plaintiff. A motion for a new trial was granted, and the plaintiff appeals therefrom. This is the second appeal of the case. See Harrington v. Mining Co., 19 Mont. 411, 48 P. 758.

The order granting a new trial is general in terms, simply sustaining the defendant's motion; and, while the opinion of the trial judge is found in the transcript, it is not embraced in any bill of exceptions, is not part of the record, and cannot be considered. Menard v. Railway Co., 22 Mont. 340, 56 P. 502. One of the grounds of the motion was the insufficiency of the evidence to justify the verdict. The first contention of the appellant is that the specifications of particulars in which the evidence was insufficient are not explicit enough to justify the trial court in basing thereon an order for a new trial. Adopting the language employed by this court in Patten v Hyde, 23 Mont. 23, 57 P. 407, we think the specifications are sufficient to point out the particulars in which the evidence is alleged to be insufficient to justify the verdict. They gave the plaintiff notice and advised the court in plain language of the matters that would be urged on the hearing of the motion. This brings us to a consideration of the question whether the trial court erred in granting the motion. The plaintiff alleges in his complaint the giving of the check in question by the defendant to Leggat; that Leggat indorsed the same to Wearth, and Wearth indorsed to plaintiff, for value; and that plaintiff is the present owner and holder thereof. Defendant, by its answer, sets forth that Wearth obtained said check from Leggat by false, fraudulent and deceitful practices, and without consideration; that the check was delivered by Wearth to plaintiff without consideration for the purpose of cutting off any defense thereto by the defendant; and that plaintiff had knowledge that Wearth had acquired the check from Leggat fraudulently, and without consideration. The replication, in substance, denies these affirmative allegations of the answer. Upon the trial the plaintiff at once assumed the burden of showing the circumstances under which he acquired the check. The defendant then offered evidence in support of the allegations of its answer. In rebuttal, the...