Logan v. Billings & N. R. Co.

• Decision Date: 21 February 1910
• Citation: 107 P. 415,40 Mont. 467
• Parties: LOGAN v. BILLINGS & N. R. CO. et al.
• Court: Montana Supreme Court

107 P. 415

40 Mont. 467

LOGAN v. BILLINGS & N. R. CO. et al.

Supreme Court of Montana

February 21, 1910

Appeal from District Court, Fergus County; E. K. Cheadle, Judge.

Action by A. C. Logan against the Billings & Northern Railroad Company and others. From a judgment for plaintiff against defendant Guthrie & Company alone, it appeals. Affirmed.

Veazey & Veazey and E. L. Bishop, for appellant.

Blackford & Blackford, for respondent.

BRANTLY C.J.

The complaint herein alleges two causes of action--the first to foreclose a lien upon certain lumber, alleged to belong to the defendants, for the sum of $1,123, claimed to be due plaintiff for the sawing of said lumber under a contract with defendants; the second to recover the sum of $168, the value of lumber sold to defendants. The answer denies generally all the allegations contained in both causes of action, and then pleads certain affirmative matters in avoidance, upon which there is issue by reply. At the opening of the trial, the defendants objected to the introduction of any evidence in support of the first cause of action, on the ground that it does not state facts sufficient to warrant the relief demanded. Counsel for plaintiff having stated that they would abandon plaintiff's claim of lien and proceed against the defendants for a personal judgment for the amount claimed to be due under the contract, the objection was overruled. The evidence disclosed that the contract for sawing the lumber in question had been made by the plaintiff with the defendants A. Guthrie & Co., and not with all the defendants as alleged in the first cause of action. There was not sufficient evidence tending to show a sale of lumber to any of the defendants to warrant submission to the jury of any of the issues in connection with the second cause of action. The court, therefore, upon request of defendants for directed verdict as to all of them, instructed the jury to find for the defendants other than A. Guthrie & Co. upon the first cause of action, and as to all of the defendants upon the second, but left it to the jury to ascertain what, if any sum was due plaintiff under the contract with A. Guthrie & Co. The jury returned a verdict for the whole amount claimed and judgment was entered for this amount, with interest from the date of the completion of the contract. The defendants A Guthrie & Co. have appealed from the judgment. Two questions are submitted for decision: (1) In an action brought to foreclose a lien under section 5829 of the Revised Codes may the plaintiff have personal judgment against the defendant for the amount shown to be due, though he fails to establish his lien? (2) Though his complaint alleges a common or joint liability of several defendants, may he have judgment against any number less than all of them against whom a liability is shown?

1. Notwithstanding the waiver by plaintiff of his right to a lien, the complaint alleges all the facts necessary to recover for services performed in sawing the lumber under an express contract. We are therefore of the opinion that the court properly overruled the objection of defendants, and treated the case as an action upon the contract. In Raymond v. Blancgrass, 36 Mont. 449, 93 P. 648, 15 L. R. A. (N. S.) 976, it is said "The form in which an action is brought is of no consequence; nor does it matter that the complaint contains allegations not appropriate to the purpose sought to be attained. In determining the issue of law presented by a general demurrer to the complaint, or by any other appropriate method of raising the question--as here, by an objection to the admission of evidence at the trial, on the ground that the facts stated do not warrant any relief--matters of form will be disregarded, as well as allegations that are irrelevant or redundant; and if, upon any view, the plaintiff is entitled to relief, the pleading will be sustained." In the case of Donovan v. McDevitt, 36 Mont. 61, 92 P. 49, there is a discussion of the reason of the rule, with a citation of the decided cases. It is put upon the ground that while the courts of this state recognize the principles applicable to the different actions, particular forms of which are required in common-law jurisdictions, t...