Knox v. Gerhauser

• Citation: 3 Mont. 267
• Parties: KNOX, respondent, v. GERHAUSER, appellant.
• Decision Date: 31 August 1878
• Court: United States State Supreme Court of Montana

3 Mont. 267

KNOX, respondent,

v.GERHAUSER, appellant.

Supreme Court of the Territory of Montana.

August Term, 1878.

Appeal from Third District, Lewis and Clarke County.

THIS action was tried before WADE, C. J., who entered a judgment for Knox.

H. R. COMLY and E. W. TOOLE, for appellant.

No judgment could be entered on the verdict under the laws of this Territory. The judgment does not follow the verdict. Frohner v. Rodgers, 2 Mon. 179.

The action is barred by lapse of time. The limitation upon promissory notes in California is four years, and appellant's absence from the State cannot be deducted therefrom, because he was not a resident thereof at the time of the execution of the contract, but a resident of Nevada. Civ. Pr. Act, § 580; Cod. Sts. 518, § 21; Fletcher v. Spaulding, 9 Minn. 64;Thomas v. Black, 22 Mo. 330;Fike v. Clark, 55 Id. 105.

Appellant gave an order to respondent, and this was accepted and amounts to payment unless respondent shows that he gave notice of non-payment to appellant. No such notice was given. Kephart v. Butcher, 17 Iowa, 240.

Appellant was entitled to recoup $600, which the insurance company retained when it settled with appellant, on account of the order given to respondent by appellant. Kephart v. Butcher, supra, and cases cited.

Respondent retains the order given him by appellant, and does not account therefor. He cannot recover on this showing. 2 Am. L. C. 229; Jones v. Savage, 6 Wend. 658;Dayton v. Trull, 23 Id. 345.

SANDERS & CULLEN, for respondent.

The verdict found so much due respondent and the judgment is for this amount. The finding as to coin might be deemed surplusage.

Appellant's residence, so that he has been absent from California, is not material. Appellant admits in the answer that he resided in California October 1, 1869, and cannot now be allowed to assert otherwise.

If the maker of a note resides in California four years, an action is barred by the Statute of Limitations. If he continues to reside outside of the State, after making the note, no lapse of time bars the remedy. Appellant did not reside in California after giving the note.

Appellant did not ask for damages in his answer and therefore could not recover any.

Appellant did not plead that he gave an order to respondent in payment of the note. He alleged an absolute payment in money to respondent. The proof does not support the answer. The vital fact is the payment to respondent which is unproved. Griffith v. Grogan, 12 Cal. 317; Pomeroy on Rem., § 554.

The pleadings show that the parties resided in California when the note was made, and that appellant left forthwith and never returned. Respondent did not follow him up and re-deliver the order, and appellant cannot recover damages, which are not asked for in his pleadings. Pomeroy on Rem., § 556; Phillips v. Van Schaick, 37 Iowa, 229; Pier v. Heinrichoffen, 52 Mo. 333;Johnson v. Moss, 45 Cal. 515.

Appellant was required to prove that the insurance company did pay the order. Pomeroy on Rem., § 564. The order can have no other effect than that of collateral security for the note. It was neither appellant's own note, nor the note of a third party. Clark v. Young, 1 Cranch, 181;Peter v. Beverly, 10 Pet. 532;Downey v. Hicks, 14 How. (U. S.) 532; Brown v. Spofford, 95 U. S. 474.

The statute of Missouri is different from that of California, and the cases relied on by appellant are inapplicable.

The failure to enter a judgment for gold coin affects no substantial rights of appellant, and the judgment cannot be reversed therefor. Civ. Pr. Act, § 79.

H. R. COMLY and E. W. TOOLE, for appellant, in reply.

The evidence relating to the order was received upon the trial, and it is too late to object to its admissibility. The appellant's plea of payment was sufficient to admit it. If the parties stipulate to make the order a conditional payment, it is what the law makes it, and is admissible under the plea. 2 Am. L. C. 249-251; Pomeroy on Rem., §§ 700, 701; Byles on Bills (6th ed.), 304. The conditional payment is a payment, unless respondent produces the order or gives notice of its non-payment to appellant, so that the latter would suffer no injury.

BLAKE, J.

The respondent commenced this action April 1, 1875, to recover the amount due on a promissory note, which was made at Sacramento, State of California, October 1, 1869, and in which the appellant promised to pay to the order of the respondent, one day after date, $422.64 in gold coin of the United States, or its equivalent, with interest at the rate of one and one-half per centum per month. The case was tried by a jury and judgment was entered on the verdict in favor of the respondent. We will examine the questions that have been discussed by counsel.

The respondent filed an amended complaint May 10, 1875, which contained a number of allegations in addition to those which would be sufficient to support a judgment in ordinary causes for the owner of a promissory note. The following facts were stated in them: That the appellant at Helena, March 1, 1875, promised to pay the note; that the appellant and respondent were residents of the State of California, when the note was executed and delivered; that the appellant removed to the State of Nevada, May 1, 1871, and continued to reside there until June 1, 1872, when he removed to Montana; that the appellant has resided in Montana since June 1, 1872; and that this action was not barred by the Statute of Limitations of said Nevada and Montana.

The appellant filed a motion to strike from the complaint these allegations because they were “irrelevant, immaterial and redundant.” The motion was denied and the appellant contends that this ruling is erroneous. Under the Civil Practice Act, “if irrelevant or redundant matter be inserted in a pleading, it may be stricken out by the court on motion of any person aggrieved thereby.” Civ. Pr. Act, § 65. The original complaint and the orders that were made in the action before the amended complaint was filed might aid us in passing upon this question, but they do not appear in the transcript. We infer that these facts have been pleaded for the purpose of showing that the Statute of Limitations of this Territory did not defeat the action. Without these allegations, the complaint would be held insufficient on the ground that the action was barred by that statute. The pleadings should allege the facts concerning the residence of a party within this Territory or his absence therefrom, which take the subject of the action from the operation of the Statute of Limitations. Smith v. Richmond, 19 Cal. 481;Chabot v. Tucker, 39 Id. 434;Bass v. Berry, 51 Id. 264. The exceptional matters, which have been mentioned, were not irrelevant, immaterial or redundant and the action of the court on the motion was correct. The allegation that the action is not barred by the Statutes of Limitations of Nevada and Montana is a conclusion of law and the motion of the appellant to strike it from the complaint should have been sustained. But this error in the proceedings does not affect the substantial rights of the parties and the judgment cannot be reversed on account of it. Civ. Pr. Act, § 79.

The answer admitted the execution of the note, and that the appellant and respondent were residents of the State of California when it was executed. It alleged that the appellant removed to Nevada October 10, 1869; that he resided there until the month of May, 1870; and that he has been a resident of Montana since May, 1870. At the trial these facts, with one exception, which will be pointed out in this opinion, seem to have been established without any controversy, and the parties differed respecting the principles of law that should be applied to them. It is not necessary to refer to all the exceptions of the appellant to the instructions which were given and refused by the court, and the rulings upon the admission of evidence, that are determined by an examination of the Statute of Limitations of California. The appellant insists that the court erred in holding that the action was not barred by this statute. The following sections of the laws of this Territory govern the case. “When a cause of action has arisen in another State * * * and by the laws thereof an action thereon cannot be there maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in this Territory” * * *. Civ. Pr. Act, § 580. “When the cause of action shall have arisen in any other State * * * and by the laws thereof an action cannot be maintained against a person by reason of the lapse of time, no action thereon shall be commenced against him in this Territory.” Cod. Sts. 518, § 21. The laws of the State of California, which affect the parties, provide as follows: “If when the cause of action shall accrue against a person, he is out of the State, the action may be commenced within the time herein limited, after his return to the State, and if after the cause of action shall have accrued, he depart the State, the time of his absence shall not be a part of the time limited for the commencement of the action.” “An action upon any contract, obligation or liability founded upon an instrument of writing” must be commenced within four years. 2 Hittell's Laws of California, 633. It is maintained by the counsel for the appellant that this action is barred under the laws of this Territory “by reason of the lapse of time,” as the limitation upon promissory notes in the State of California is four years; that the period during which the appellant was absent from California cannot be deducted because he was a resident of the State of Nevada when the note was executed; and that the appellant resided in Montana more than four years prior to the commencement of this action. The appellant testified as follows upon the fact of his residence: “I resided in Nevada when the note was given and plaintiff (Knox) resided in California.” The...