Nelson v. Spears

• Citation: 40 P. 786,16 Mont. 351
• Parties: NELSON v. SPEARS.
• Decision Date: 08 July 1895
• Court: Montana Supreme Court

40 P. 786

16 Mont. 351

NELSON v. SPEARS.

Supreme Court of Montana

July 8, 1895

Appeal from district court, Cascade county; C. H. Benton, Judge.

Action by H.H. Nelson against More Spears. Verdict for defendant. From an order denying a motion for a new trial, plaintiff appeals. Reversed.

A.J Shores, for appellant.

Leslie & Downing, for respondent.

PEMBERTON C.J.

Plaintiff sued the defendant in the district court to recover the sum of $900, claimed to be due for hay and other personal property sold by him to defendant. The answer denies the indebtedness, and sets up a counterclaim. From the pleadings and evidence it appears that on the 21st of October, 1891 plaintiff and defendant, by written contract, entered into copartnership in the sheep business. At the date of this contract the plaintiff owned a large number of sheep corrals, and lands, near Glasgow, in this state. This property was turned into the copartnership business, and became the property of the copartnership, by the terms of the articles of copartnership, the defendant giving his notes to plaintiff for a one-fourth interest therein. This copartnership continued to do business until the 22d day of September, 1892, when it was dissolved by the following written contract of the parties: "This agreement, made this 22d day of September, 1892, by and between H.H. Nelson of Cascade, in Cascade county, Montana, party of the first part, and More Spears, of Glasgow, state of Montana, party of the second part, witnesseth: That it is hereby mutually agreed that the partnership heretofore existing between said parties, in the sheep business, is dissolved by consent of both parties; that all contracts and agreements heretofore made by said parties, including notes and accounts, are hereby declared of no effect and void; that all sheep horses, implements, sheds, buildings, corrals, fences, and hay, and all other personal property of whatsoever description, having belonged or used in connection with the aforesaid business, and all parcels and pieces of land held by either party prior to said date, shall revert and belong to the party of the first part; for and in consideration of which said first party agrees to cancel all claims of whatever description, now held by first party against said second party. In witness whereof said parties have hereunto affixed their hand and seal the year and day aforesaid. H.H. Nelson. M. Spears." This contract was acknowledged before a notary by the parties. The defendant, in his answer, admits the making of this contract, but says that at the time the same was made the plaintiff agreed to pay him $125 per month from the 21st day of October, 1891, until the 22d day of September, 1892, when the copartnership was dissolved, and as long thereafter as he should work for plaintiff. Defendant claims this was a part of the contract of dissolution of the copartnership, and in his answer says "that at the time of the making of the said new contract with plaintiff aforesaid, to wit, on the 22d September, 1892, aforesaid, the same was attempted to be reduced to writing, but by inadvertence, fraud, or mistake of the draftsman, and by mistake or inadvertence of said parties thereto, the same failed to state the terms of said contract, and did not express the intentions of said plaintiff and this defendant, in failing to show that plaintiff was to pay this defendant $125 per month, from the ___ day of July, 1891, aforesaid, and thereafter, so long as defendant would work for plaintiff under said contract." Defendant, as part of his counterclaim, alleges that plaintiff is indebted to him in the sum of $650 for taking care of other sheep belonging to p...