Howard v. Fraser

• Court: Montana Supreme Court
• Writing for the Court: STARK, J.
• Citation: Howard v. Fraser, 83 Mont. 194, 271 P. 444 (Mont. 1928)
• Decision Date: 23 October 1928
• Docket Number: 6299.
• Parties: HOWARD v. FRASER.

271 P. 444

83 Mont. 194

HOWARD v. FRASER.

No. 6299.

Supreme Court of Montana

October 23, 1928

Appeal from District Court, Yellowstone County; O. F. Goddard Judge.

Action by Bert Howard against C. R. Fraser. Judgment for defendant and plaintiff appeals. Affirmed.

Benj. P. Harwood, of Billings, for appellant.

H. C Crippen, of Billings, for respondent.

STARK J.

In this case the plaintiff sought, by two causes of action set out in his complaint, to recover judgment against the defendant upon two promissory notes for the sum of $300 each, given by defendant to one A. Howard on May 3, 1926, due, respectively 9 and 12 months after date, alleged to have been "sold, assigned, and transferred" to him by said A. Howard.

The defendant's answer to each cause of action is the same. The making of the notes is admitted; but it is denied that they were made or executed for value, or that they were owned by plaintiff. The answer also sets forth three special defenses, and a counterclaim to each cause of action. In these special defenses it is alleged that the notes in suit were given as a part of the purchase price of a jack sold to defendant by A. Howard, which was warranted and represented by him to be fit and proper for the purpose of breeding mares, and at least 60 per cent. efficient as a foal getter, and "physically well and strong and free from disease." The counterclaims were for $150 cash paid at the time of the purchase of the jack and $150 damages for special care, attention, feed, etc., for said jack, above the income received from his services.

Plaintiff moved to strike out certain portions of the defendant's answer, on the ground that the same were redundant, and to require defendant to elect on which of the defenses he would rely. This motion was denied, and thereafter plaintiff filed a reply by which issue was joined on the affirmative allegations of the answer.

The cause was tried to a jury, and resulted in a verdict in favor of the defendant for one dollar. Plaintiff made a motion for a new trial, which was denied, and he has appealed from the judgment.

Counsel for plaintiff has made fifty specifications of error, some of which will require special mention, others will not. Counsel first charges error in the order of the court denying his motion to strike certain portions of the answer, and to require defendant to elect upon which defense he would rely. Under the provisions of section 9146, Revised Codes of 1921, a defendant may set forth in his answer as many defenses as he has and, being privileged to set them forth, may introduce evidence to sustain them. From this it follows that he may not be required, in advance, to elect upon which one he may rely. The court did not err in its ruling on the motion under consideration.

While defendant was on the stand in his own behalf he testified, without any objection on the part of the plaintiff, concerning the contents of a letter which he had written to A. Howard, notifying him that the jack was not as represented; and identified a copy of the letter, which was thereupon read in evidence, over plaintiff's objection that no proper foundation had been laid for the introduction of a copy, because no demand had been made upon him to produce the original. Since the witness had already, without objection, given the substance of the letter in his oral statement no prejudicial error was committed by allowing the copy to be read in evidence.

While defendant was on the stand he had testified, on cross-examination, that he had a certificate from the state permitting him to stand the jack for breeding purposes, which he kept in his house, and showed to anyone who wanted to see it, and thought he had complied with all of the laws of the state on the subject of standing a jack at public hire for breeding purposes. He was then asked whether he had "the license posted on the main door of the stable." To this question an objection, on the ground that it was immaterial was sustained. Plaintiff then offered to prove by the witness that he had kept at his place, where he kept the jack in question, notice of license required by section 3364, Revised Codes of 1921; that he advertised the jack, and inserted in the advertisement a copy of the license certificate as required by law, and therein represented that the jack was certified to be of pure breeding and reported...