Morgan v. Huffman
| Citation | 247 P. 326,76 Mont. 396 |
| Decision Date | 11 June 1926 |
| Docket Number | 5917. |
| Parties | MORGAN v. HUFFMAN. |
| Court | Montana Supreme Court |
Appeal from District Court, Granite County; George B. Winston Judge.
Action by Cyrus J. Morgan against A. S. Huffman on two promissory notes. Judgment for defendant, and plaintiff appeals. Affirmed.
J. J McDonald, of Philipsburg, and S. P. Wilson, of Deer Lodge for appellant.
D. M. Durfee and W. E. Moore, both of Philipsburg, for respondent.
In this action plaintiff seeks to recover judgment against the defendant as an indorser upon two promissory notes alleged to have been executed and delivered to a copartnership composed of this defendant and C. T. Huffman, now deceased, which was engaged in business under the firm name of C. T. Huffman.
In the first cause of action it is alleged that on July 6, 1911, one John Kaiser executed and delivered his promissory note to this partnership, due one day after date; that on or about December 19, 1911, said partnership indorsed and delivered this note to the plaintiff; that he is now the owner and holder thereof; and that no part of the same has been paid, except the interest down to January 6, 1922.
In the second cause of action the allegations are that on December 31, 1920, H. A. Terry gave his promissory note to this partnership, due one day after date; that on February 11, 1921, the partnership indorsed and delivered the same to the plaintiff, who is now the owner and holder thereof; that no part of the same has been paid, except the sum of $62.50.
In each of these causes of action it is alleged that the note therein mentioned has been "duly presented for payment and payment thereof demanded and refused." Judgment is asked for the balance due on the notes with attorneys' fees and costs.
The defendant, by way of answer, after admitting the existence of the partnership and the death of C. T. Huffman as set out in the complaint, denied all the other allegations thereof, and in addition set up numerous special defenses to each cause of action, among them being that the right to maintain a suit on the note mentioned in the first cause of action was barred by the provisions of section 9029, Revised Codes of 1921. Issue was joined on these defenses by plaintiff's reply thereto. On June 6, 1925, the cause was brought on for trial before the court sitting without a jury.
When plaintiff called his first witness, the defendant interposed an objection to the introduction of any evidence upon either cause of action, on the ground that it was not alleged in either that demand for payment had been made upon the maker of either of the notes, the nonpayment thereof and notice of that fact given to the defendant, for which reason the complaint did not state a cause of action against the defendant. This objection was overruled, and thereupon both plaintiff and defendant introduced their evidence. Neither party requested the court to make special findings, and the court made none, but found the issues generally in favor of the defendant upon each cause of action, and entered judgment thereon which recites "that the defendant, A. S. Huffman, is entitled to have judgment rendered herein on the merits in his favor and against the plaintiff on both causes of action set out in the plaintiff's complaint."
From this judgment the plaintiff has appealed and in this court makes two contentions: (1) That the court should merely have entered a judgment dismissing the complaint instead of rendering and entering a judgment on the merits, for the reason that the complaint does not state a cause of action against the defendant; (2) that, if the court was warranted in entering a judgment on the merits, it should have been in favor of the plaintiff.
1. If it should be conceded that the court erred in holding that the complaint in each of the two causes of action therein set forth stated facts sufficient to constitute a cause of action against the defendant, still the record shows that the plaintiff was permitted to introduce all the evidence which he produced in an effort to fix liability upon the defendant. When the alleged defect in the complaint was called to the plaintiff's attention at the opening of the trial and at different times during its progress by objection to the introduction of testimony, he could have asked leave to amend the complaint so as to cure the defect, or he could have dismissed his action without prejudice; he did not, however, pursue either course, but insisted on putting in all of his evidence and thereby induced the court to consider it and render judgment on the merits. If the court was at all in error, by doing so the error was committed at the plaintiff's invitation, and he cannot be heard to complain of it. Canonica v. St. George, 64 Mont. 200, 208 P. 607; Ferris v. McNally, 45 Mont. 20, 121 P. 889; Pelican v. Mutual Life Ins. Co., 44 Mont. 277, 119 P. 778; Bowlin Liquor Co. v. Fauver, 43 Mont. 472, 117 P. 103.
2. Upon the first cause of action the plaintiff introduced evidence for the purpose of showing that the copartnership composed of the defendant and C. T. Huffman had waived presentment demand of payment, and notice of nonpayment of the note mentioned therein. This note was dated July 6, 1911, and when introduced in evidence bore indorsements...
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