McCaull-Dinsmore Co. v. Stevens
| Decision Date | 21 February 1921 |
| Docket Number | 4245. |
| Citation | 194 P. 213,59 Mont. 206 |
| Parties | MCCAULL-DINSMORE CO. v. STEVENS. |
| Court | Montana Supreme Court |
Appeal from District Court, Chouteau County; J. B. Leslie, Judge.
Action by the McCaull-Dinsmore Company against George H. Stevens. From judgment for plaintiff and from order denying motion for a new trial defendant appeals. Judgment and order reversed and new trial ordered.
Henry C. Smith and Park Smith, both of Helena, for appellant.
Norris & Hurd, of Great Falls, for respondent.
The complaint sets forth three causes of action, all in identical terms except so far as the amounts involved are concerned. The first counts upon a contract dated July 28, 1914, for the sale and delivery of 30,000 bushels of wheat, at 73 1/2 cents per bushel; the second upon a contract dated July 29, 1914 for 4,000 bushels, at 70 cents per bushel, and the third upon a contract dated July 30, 1914, for 8,000 bushels, at 75 cents per bushel. The complaint discloses the amount delivered on each contract, the amount not delivered, and the consequent damages. The same defense was made to each cause of action, and an exposition of one cause of action, and the defense thereto will suffice for all and illustrate the controversy in this court.
In support of its first cause of action, plaintiff introduced in evidence a writing (Exhibit A) in words and figures following, to wit:
"Helena Montana, July 28, 1914.
Geo. H. Stevens, Ft. Benton, Montana. We confirm purchase of you as follows: 30,000 bushels No. 2 or better Hard Montana wheat at 73 1/2c per bushel f. o. b. Benton, Montana. September-October delivery at Duluth. Duluth terms. Duluth terms are shipper pays on each car: Weighing and inspection $.75. Interest on draft. Freight on dockage. Billing--The McCaull-Dinsmore Co., Duluth, Minn.
Make draft with B/L attached on our Minneapolis office.
This contract accepted by
Geo. H. Stevens.
Evidence was also introduced tending to prove that this exhibit was signed and delivered by defendant, the amount of grain delivered under it, the amount which defendant failed and refused to deliver, and the damages suffered by plaintiff in consequence of the breach. In support of the second and third causes of action, plaintiff introduced Exhibits B and C, respectively, for all purposes of this case identical with Exhibit A, except as to the amounts involved.
As shown by his pleading and evidence, the defendant undertook to make substantially the following defense: Some time prior to July 28, 1914, he entered into an oral agreement with one G. A. Bailey, an agent of plaintiff, to the effect that he (defendant) should act as agent of plaintiff, for its accommodation and without compensation to defendant, in buying wheat for plaintiff from the growers in the neighborhood of Ft. Benton, where defendant resides; that in pursuance of that agreement he did purchase various amounts of grain for plaintiff's account; that thereafter, about August 14, 1914, Bailey presented to him Exhibit A (in the condition in which it was before his signature was attached), and requested him to sign it; that he refused to do so unless and until it was understood that the memorandum should be used only as evidence of the amount of grain purchased by defendant for plaintiff, and that defendant should not be held personally to deliver the grain; that thereupon Bailey promised and agreed that if he would sign and deliver the exhibit it would be used by Bailey only as a memorandum to complete the files and records in his office at Helena, and for no other purpose, and in no event would it be used to hold defendant personally liable to deliver the grain mentioned; that, relying upon the promise and representations made by Bailey in that behalf, and not otherwise, he signed and delivered the exhibit to Bailey; that he did not deliver any grain under any of these exhibits; that the only deliveries were made by the growers under the arrangement indicated, and that this fact was known to plaintiff. When the introduction of evidence was concluded, counsel for plaintiff moved the court to strike out substantially all of defendant's evidence. Counsel for defendant moved for a directed verdict, and counsel for plaintiff did likewise. The court first denied defendant's motion, then struck out defendant's evidence, and then directed a verdict for plaintiff. From the judgment entered pursuant to that verdict and from an order denying his motion for a new trial, defendant appealed.
Counsel for plaintiff contend that, since each party moved for a directed verdict in his favor, each is bound by the court's ruling if there is any substantial evidence to support it. That is the general rule recognized by the authorities and approved by this court in Fifty Associates Co. v. Quigley, 56 Mont. 348, 185 P. 155, but it cannot have any application to the case where, as in this instance the motion made by plaintiff was granted upon a record altogether different from the one upon which each of the motions was based.
The principal controversy presented is: Was error committed in striking out defendant's evidence? It is apparent from the record that the court proceeded upon the theory that the only effect of the evidence was to vary or...
To continue reading
Request your trial