Mcallister v. McDonald

CourtUnited States State Supreme Court of Montana
Citation40 Mont. 375
PartiesMcALLISTER v. McDONALD et al.
Decision Date29 January 1910

40 Mont. 375

McDONALD et al.

Supreme Court of Montana.

Jan. 29, 1910.

Appeal from District Court, Silver Bow County; John B. McClernan, Judge.

Action by W. E. McAllister against Alexander McDonald and William Pelette, copartners as McDonald & Pelette. Plaintiff had judgment, from which and an order denying a new trial defendants appeal. Reversed.

Kirk, Bourquin & Kirk, for appellants. Jas. T. Fitzgerald and B. S. Thresher, for respondent.


The complaint in this action alleges that in the year 1907 the plaintiff sold to one Arthur Durand goods, wares, and merchandise of the value of $786.95; that thereafter the defendants, as copartners, agreed to pay plaintiff the said sum of $786.95 upon consideration that the plaintiff would cancel the obligation of Durand to pay such sum, and release said Durand from all liability on account thereof; that plaintiff accepted said promise of defendants as a substitute for the original promise of Durand to pay for said goods, and canceled the original obligation of Durand and released him from all liability thereunder; that on the 30th day of August, 1907, defendants paid the sum of $75 cash, in pursuance of the aforesaid agreement, leaving a balance due from them of $711.95, no portion of which has ever been paid. The answer denies each and every allegation of the complaint. The cause was tried before the district court of Silver Bow county, sitting with a jury. Testimony was introduced on both sides, and a verdict was returned in favor of the plaintiff for the full amount demanded. Upon this verdict judgment was entered against the defendants, and from this judgment and an order denying their motion for a new trial they have appealed to this court.

The testimony shows that McDonald & Pelette had a contract for grading a section of the Chicago, Milwaukee & St. Paul Railroad Company of Montana, in Madison county, and that they sublet a portion of the work to Arthur Durand; that Durand had an account with plaintiff, and thereafter purchased of him certain hay, oats, bran, salt, and flour, to the amount of the sum mentioned in the complaint. Durand testified that he afterwards had difficulty with one King, who was in charge of the horses with which the work was being done, and, on account thereof, he surrendered his contract to McDonald and Pelette and delivered to them the hay, oats, and other supplies which he had left on hand; that McDonald took a list of the property and placed a valuation upon the same.

This witness said: “I asked McDonald if he would let me quit and take the stuff. He said he would. I said: ‘All the bills I made down here on this contract I want you to pay them, and then what's left I want you to turn the money to me.’ He said: ‘All right, sir.’ He said that he would, and, if anything was left, he would pay it to me. Prior to this time I had a talk with McDonald & Pelette about the amount owing to McAllister. They knew how much I owed McAllister. I asked McDonald to let me have a check for about $350. I says, ‘Make it to McAllister’-on the 1st of June, I believe, or 26th of May. He said he would. I had asked them a couple of times before for a check for McAllister, to send it to him, because he was writing me to get some money. McAllister came down there afterwards. I had wrote to him and told him. I wrote him what McDonald told me. In response to that letter McAllister came over there. That was on Sunday. We saw Pelette. He said: “To-morrow is Monday, and they expected Mrs. McDonald down to-morrow or this afternoon. She was going to take charge of the books and take care of the bills, and they would send a check for $350 on Monday or Tuesday, or probably $400'-send a check to McAllister. He said: ‘A few days later will settle the balance’-that they would settle the balance. That conversation was directed to McAllister. He said: ‘All right, sir. Then I am coming back.’ McAllister has never asked payment of me since that day, and I have never paid him. The following receipt, which you show me, was signed by me: ‘McDonald's Camp, Lime Spur, June 12, 1907. I hereby agree not to hold McDonald & Pelette responsible for any portion of the nine hundred and sixty and no/100 ($960.00) dollars for supplies and implements sold to John King for the purpose of grading on C., M. & St. P. Ry., that they will not be able to collect from him through his work on C., M. & St. P. Ry. [Signed] Arthur Durand.’ I did not sell anything to King. I sold it to McDonald. I signed the paper you have just shown me, because three days after I sold him the stuff he came back and asked me to sign it. He kept after me, and then finally said he could get kind of a settlement quicker with the surveyor if I signed it. I objected to signing it for 15 minutes. I did it because I thought he would keep his word. The supplies mentioned were the supplies I have said I sold to McDonald & Pelette, and the money was the money I was expecting to receive from McDonald. I do not know whether I made any money on my contract or not. I quit because King was going to quit with his horses. I had no talk at all with King about taking over my contract. McAllister wrote to me to get him some money. I might write back what McDonald wrote me-let me have a check or send him a check. McDonald did not say that, if there was anything coming to me, he would pay it over to McAllister. I asked him for $350. He said he would let me have it. I thought it was coming to me. I did not think he would let me have the money unless it was coming. I did not expect he would pay my debts unless I had something coming. I did not expect that. The reason I expected him to pay this money, I know I had it coming. That was my opinion after my measurements. I would not ask him to pay anything for me if I did not think he owed me. McAllister asked Pelette: ‘How about that check?’ Pelette was to pay me or send him, because I wrote McAllister. Q. I just asked you what Pelette said to McAllister? A. He said he would send the check on Monday or Tuesday following, and he said he would pay the balance later. Q. What indebtedness was he talking about? A. About what I owed McAllister. Q. And what further was said at tha time between McAllister & Pelette? A. That is all I heard myself. Q. You didn't hear anything further? A. No, sir; not that I remember. Q. Mr. McAllister did not tell Mr. Pelette that he was going to look to him entirely for the money, and not to you, did he? A. He did; yes, sir. Q. And then Pelette said further they would stand good for the money and let you go? A. Never mentioned my name at all, not after I asked him. I asked him if he remembered I asked him for a $350 check. I sent an order to McDonald & Pelette every time there was a bill to pay. They were to pay my orders out of any money coming to me. I signed the following document: ‘Butte, Montana, June 17, 1907. McDonald & Pelette: Please pay to W. E. McAllister eight hundred and forty-two and 25/100 ($842.25) dollars payment to be made as fast as the money becomes due to Arthur Durand. Indorse all payments on this order and I will receipt for same. W. E. McAllister. Arthur Durand.’ Mr. McAllister gave me that. Q. And you signed it before he did? A. He made it out before me, and I signed it. Q. That was long after you had quit there-June 17, 1907? A. I had quit a day or two. Q. You had already signed the order for McDonald to pay you any money from King on June 12th hadn't you? A. Yes, sir. Q. And a moment or two ago you said you quit before that? A. I quit two days before that. Q. Before you signed this order, and before you came to town, McAllister had been out there, and had a talk with you and Pelette, hadn't he? A. Yes, sir. Q. And yet on June 17th you were giving an order on McDonald & Pelette to pay McAllister as the money came due to you? A. I signed two orders then. Q. I hand you another order, and ask you if you signed that one? A. Yes, sir; that is the one I was referring to. It is as follows: ‘Lime Spur, Montana, July 10, '07. To Alex McDonald and Wm. Pelette: Please pay W. E. McAllister of Butte, Montana, the sum of $842.40 out of any moneys that may come into your possession and belonging to me upon contracts, subcontracts or in any other manner whatsoever, and charge the same to my account. Arthur Durand.’ Mr. Fitzgerald, attorney for the plaintiff, wrote that. Mr. McAllister had it in his hand. After I signed it, I handed it to McDonald, or Fitzgerald did, one or the other. I did not know how much money was coming to me. I never did know. Any money coming to me was to be paid after the engineers measured up the work, made a statement. I believe it was about the 25th of May that I asked McDonald for a check for $350 for McAllister. I asked him if he would advance me-on account of high water I had to have plenty of feed-I asked him if he would let me have money to pay for it. He said he would, and it was to be charged to my account. He said he would give it to me in a few days. Under my contract with McDonald & Pelette they paid all my hired men as I give the orders. The last order given, when Mr. Fitzgerald went down with me, was after McAllister went over to the camp, and the other was given before. When McAllister was there, he asked Pelette if he had received the orders. He said, ‘Yes; there is an order here for you.’ I never had any conversation with King relative to the document dated June 12th, nor relative to the deal. When I signed it, McDonald said, if I would sign it, they would get a settlement with the surveyor of McIntosh Bros. and get a check, and as quick as they would get a check they would pay Mr. McAllister. I gave the second order, dated July 10th, because they claimed the first one was lost. They wanted a second one to show that McAllister would be paid before anybody else, so that they could stand the other people off. McDonald asked Fitzgerald to write it. The orders I gave McDonald & Pelette were to be...

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