Hewitt v. Novak

• Decision Date: 15 May 1945
• Docket Number: 8590.
• Parties: HEWITT v. NOVAK et al.
• Court: Montana Supreme Court

158 P.2d 627

117 Mont. 365

HEWITT v. NOVAK et al.

No. 8590.

Supreme Court of Montana

May 15, 1945

Appeal from District Court, Fourth District, Lake County; C. E Comer, Judge.

Action by Perry R. Hewitt against Elizabeth Novak and Joe Novak on a note. From a judgment for plaintiff based on a directed verdict, the defendants appeal.

Affirmed.

Mark H. Derr, of Polson, for appellants.

T. R Delaney, of Polson, for respondent.

ANGSTMAN Justice.

This action was brought to recover upon a promissory note, dated August 9, 1939, and payable on or before three years after date, in the sum of $400, executed and delivered by defendants and made payable to Louise Hewitt, the wife of plaintiff. Prior to the commencement of the action the note was transferred by Louis Hewitt to plaintiff, who had full knowledge of all the circumstances under which the note was executed. The defendants by answer allege that the note was executed without consideration in that it was given pursuant to an agreement whereby Louise Hewitt was to yield possession of certain described lands on or before the 10th day of September, 1939, and that possession was not in fact surrendered until about the 20th day of October, 1939.

At the conclusion of all the evidence in the case the court granted plaintiff's motion for a directed verdict in his favor upon which judgment was entered and this appeal taken.

In view of the fact that the court took the case from the jury it becomes necessary to review the evidence and thus ascertain whether there was any issue in the case that should have been submitted to the jury. The salient facts developed at the trial were these: Louise Hewitt had entered into a written contract on the 19th day of October, 1935, with the Vermont Loan & Trust Company, whereby she purchased from the trust company certain described real estate for the sum of $2500. She paid $600 down at the time of entering into the contract and agreed to pay $320 on the first day of October 1936 and a like sum on the 1st day of October of each year thereafter until the full purchase price of $2500 was paid. In addition paying $600 at the time of making the contract, Louise Hewitt paid the sum of $368.30 on October 29, 1936, and has paid nothing since.

Time was made of the essence of the contract. It provided that failure of the vendee to make any payment shall 'at the option of the vendor, work a complete forfeiture to vendor of all money paid on account of this contract, * * *

'It is further agreed, that upon the forfeiture of this contract for any cause, vendee shall immediately thereupon quit and surrender up to vendor, without demand, peaceable possession of said premises * * *, and in case vendee neglects or refuses to surrender up such possession, it shall be lawful for vendor to enter upon and take possession of said premises, without notice, and remove all persons and their property therefrom and it shall not be liable therefor.'

On the 18th day of April, 1939, the Vermont Loan & Trust Company gave written notice to the Hewitts that they were in default and 'that unless said past due payments and all of them are made within 30 days from the receipt of this notice said contract will be forfeited; and in the event of your failure to make said past due payments and all of them within 30 days from receipt of this notice, demand is hereby made for return of the possession of said premises and that you quit and vacate the same on or before 30 days from receipt of this notice in order that the Vermont Loan & Trust Company may take possession thereof.'

Before the expiration of the 30-day period named in the notice of cancellation, the Hewitts went to Missoula to interview Mr P. L. Larsen, the agent of the Vermont Loan & Trust Company who sold the property to the Hewitts and asked him for time to get a buyer for their equity in the place. Mr. Larsen said, 'I told them I would take it up with the Vermont Loan, that I was sure it was all right.' He further said 'Q. Did you get permission to make such a deal? A. Yes, sir.'

Pursuant to this permission the Hewitts interested Mr. Novak in buying the property. Mr. and Mrs. Novak, Mr. and Mrs. Hewitt and the witness Larsen met in Mr. Marcy's office when the note involved in this action was executed. Mr. Larsen testified without objction: 'This was given for Mr. Hewitt's equity, that was all there was to it.' At the time the $400 note was executed the Novaks entered into an agreement with the Vermont Loan & Trust Company, agreeing to pay that company the sum of $2300 for the property which had theretofore been sold to the Hewitts. As above stated the Hewitts are the ones who found the purchaser, Mr. Novak, and told Larsen about it. Mr. Larsen stated that Mr. Crommelin, the vice president of the company, said he would like to see the Hewitts get something out of the place because they had made a good down payment.

At the time the note was executed Louise Hewitt signed the following agreement:

'Agreement to give Possession of real estate at stated date.

'In consideration of the sum of $400.00 to me in hand paid, I, Louise Hewitt, do hereby agree and by these presents do hereby release to Joe Novak, all my right title whatsoever, to the possession or use of the following described land viz, [here followed description which is the same property as that covered by the contract of sale between the Vermont Loan & Trust Company and defendants.]

'I also hereby agree to give to Joe Novak full and unqualified possession to the said land on or before the 10th day of September, 1939.'

It is conceded that the Hewitts did not surrender possession of the property until the 20th day of October, 1939, but gave this explanation for not doing so: Being unable to find another place on which to move, they decided to dispose of their livestock and machinery at public auction and were unable to secure the services of an auctioneer until on or about the 17th day of October, and three days after the auction sale had been held they surrendered possession of the property. Mrs. Hewitt testified that she consulted with defendants before the expiration of the time when she should have surrendered possession under her agreement and advised them of the difficulty in procuring the services of the auctioneer and that because...