Lewis v. Lambros

• Decision Date: 29 November 1920
• Docket Number: 4443.
• Citation: 194 P. 152,58 Mont. 555
• Parties: LEWIS v. LAMBROS.
• Court: Montana Supreme Court

194 P. 152

58 Mont. 555

LEWIS v. LAMBROS.

No. 4443.

Supreme Court of Montana

November 29, 1920

Appeal from District Court, Silver Bow County; John V. Dwyer, Judge.

Action by C. U. Lewis against P. D. Lambros. From judgment of nonsuit, and from order denying motion for new trial plaintiff appeals. Reversed.

John A Shelton, of Butte, for appellant.

Walker & Walker and C. S. Wagner, all of Butte, for respondent.

HURLY J.

The complaint in this action alleges that on the 24th day of July, 1916, for a consideration of $3,000 paid by the plaintiff to the defendant, defendant sold and delivered to plaintiff a certain one-story brick building in Butte together with a stock of confectionery, furnishings, and furniture therein contained; that at the time of such sale and delivery the defendant was in the possession of the said property so sold, and represented to the plaintiff that he was the owner of said building, but not of the land on which the same was situated, and that plaintiff relied upon, and was induced to buy the said property because of, such representations. It is further alleged that the defendant on the date of sale had no title to said building, and has not since acquired the same; that on or about the 31st day of December, 1917, plaintiff was deprived of the possession of the building by the rightful owner; and that the building was then of the value of $3,000, for which sum plaintiff claims damages. The answer is a general denial.

At the commencement of the trial a stipulation signed by the respective attorneys for the parties, reading as follows, was introduced in evidence:

"It is hereby stipulated and agreed by and between the plaintiff and defendant herein that on the trial of the above-entitled cause it shall be deemed to have been proved that on the 24th day of July, 1916, defendant P. D. Lambros did not own and had no title to that certain building situated at No. 125 West Park street, Butte, Mont., or any part thereof, which building was then and there sold by him to the plaintiff, C. U. Lewis, and that the said defendant has not acquired any title or interest in or to the said building, and that said building was then and is now owned by S. V. Kemper and J. W. Kemper. The defendant may object to proof of said facts or any of them upon ground of irrelevancy, inadmissibility, and incompetency, but waives all right to object to the manner of proof of said facts or any of them." Plaintiff offered testimony as to the value of the building as of the date he alleged he was dispossessed of the same; and, after testifying that he took possession on the 24th day of July, 1916, stated that he continued in possession until said December 31, 1917, when he surrendered possession to one Kemper, the rightful owner thereof. On August 18, 1916, plaintiff executed and delivered to a Butte bank his promissory note for $3,000, which note was also signed or guaranteed by defendant. The proceeds derived from the negotiation of such note were paid to defendant.

Upon cross-examination certain documents, identified as Defendant's Exhibits Nos. 2 and 3, were proven, over plaintiff's objection. There was also cross-examination of the plaintiff as to the nature of the transaction and the date and conditions of sale. Exhibit No. 2 was an agreement of the parties, dated August 18, 1916, and recites that a bill of sale had been that day executed by the defendant and placed in escrow in a bank in Butte, that the plaintiff should pay monthly, during the life of the agreement, the sum of $200 to be credited upon the note executed by the parties in favor of said bank, and that, when the entire consideration of $3,000, together with interest thereon, should have been paid, the said bank would deliver to plaintiff such bill of sale. Exhibit No. 3 was a bill of sale, in the usual form, and of the same date as the agreement, and contained an express warranty of title. Payments were thereafter made to the bank upon the note, on which, at the time of the trial, there was a balance unpaid of $1,500, with interest. Plaintiff testified in effect that he ceased making payments because of the claim of ownership of Kemper. The plaintiff contended that the sale itself took place on July 24, 1916, and that the negotiations were oral. At the conclusion of plaintiff's evidence, the court granted a nonsuit. From the judgment entered thereon and from an order denying a new trial, the plaintiff has appealed.

It is apparent that the parties have at other times assumed positions inconsistent with those now maintained. In an action against the bank and this defendant (which had been dismissed as to this defendant) plaintiff alleged an executory contract of date August 18, 1916, failure of consideration on the part of defendant, partial performance by plaintiff, and asked for rescission and return of the money paid under the contract (Exhibit 2)--a position entirely opposed to the one now assumed. To that complaint defendant made answer, entirely at variance with the contention now adopted, alleging a sale to plaintiff and payment by plaintiff to defendant of the entire consideration of $3,000 on said date. However inconsistent these assertions of the parties may be, such inconsistencies could bear only upon the weight to be given...