Lewis v. Lambros

• Decision Date: 18 December 1922
• Docket Number: 4937.
• Citation: Lewis v. Lambros, 65 Mont. 366, 211 P. 212 (Mont. 1922)
• Parties: LEWIS v. LAMBROS.
• Court: Montana Supreme Court

211 P. 212

65 Mont. 366

LEWIS v. LAMBROS.

No. 4937.

Supreme Court of Montana

December 18, 1922

Commissioner's Opinion.

Appeal from District Court, Silver Bow County; Joseph R. Jackson Judge.

Action by Curtis U. Lewis against P. D. Lambros. From a judgment for plaintiff and an order overruling motion for new trial defendant appeals. Affirmed.

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

John A Shelton, of Butte, for respondent.

BORTON C.

This case was once before this court. The report of the decision is found in 58 Mont. 555, 194 P. 152. The judgment of the lower court was therein reversed. The case was again tried, resulting in a verdict for the plaintiff. Judgment was entered accordingly, and an order made, overruling defendant's motion for a new trial. The defendant has appealed, both from the judgment and the order overruling the motion for a new trial.

The plaintiff has also set out in his brief 10 cross-assignments of error, involving the ruling of the lower court on (a) the introduction by the plaintiff of certain evidence, and (b) in allowing the defendant to plead and prove a counterclaim. The plaintiff also moved to dismiss the appeal upon the ground that the notice of the appeal is fatally defective

Defendant, in 1916, was in possession, and represented himself to be the owner of a certain brick building in the city of Butte. He did not assert any ownership to the land on which the building rested. On July 24, 1916, the defendant sold the plaintiff the brick building, it being expressly understood between the parties that the sale was one of personal property. The defendant surrendered possession to the plaintiff on July 27, 1916. In the transaction it became necessary for the plaintiff to borrow $3,000. The defendant guaranteed plaintiff's note for that sum at the Miners' Bank in Butte on the day of the sale. The plaintiff made certain payments on the note, so that on December 1, 1917, there was due on the note $1,500.

The plaintiff first ascertained on December 31, 1917, that the defendant, when he sold the plaintiff the building on July 24, 1916, had no title to the building, and that the building was at the time he dealt with the defendant, and up to December 31, 1917, owned by one Kemper. Title having failed, plaintiff brought this suit for damages.

We consider first plaintiff's motion to dismiss the appeal. The ground of this motion is that the notice of appeal is fatally defective, in that the designation of the plaintiff and defendant is interchanged. The best that can be said for this is that it is highly technical. The position of plaintiff on this matter becomes even more technical when it is borne in mind that the notice of appeal contains, not only a notice of appeal from the judgment, but also an appeal from the order overruling defendant's motion for a new trial. It is not advanced that the notice of appeal from the order is defective in any particular. How, then, the plaintiff was prejudiced, or misled, we fail to perceive. To refuse to determine this case upon the merits by reason of the technicality pointed out would give such a technical objection a force and effect far beyond all reasonable grounds. The motion to dismiss the appeal is therefore without substantial merit.

We consider next the main question: What is the measure of damages to the buyer of personal property, when the title fails? The statutes of this state answer the question in this language:

"The detriment caused by the breach of a warranty of the title of personal property sold is deemed to be the value thereof to the buyer, when he is deprived of its possession, together with any costs which he has become liable to pay in an action brought for the property by the true owner." Section 8678, Rev. Codes 1921.

They also define the value to the buyer in these words:

"In estimating damages, except as provided by the next two sections, the value of property to a buyer or owner thereof, deprived of its possession, is deemed to be the price at which he might have bought an equivalent thing in the market

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