Neuman v. Grant

• Decision Date: 25 October 1907
• Citation: 92 P. 43,36 Mont. 77
• Parties: NEUMAN v. GRANT et al.
• Court: Montana Supreme Court

92 P. 43

36 Mont. 77

NEUMAN v. GRANT et al.

Supreme Court of Montana

October 25, 1907

Appeal from District Court, Flathead County; J. E. Erickson, Judge.

Action by A. T. Neuman against E. R. Grant and others. From a judgment for plaintiff, defendant Grant appeals. Modified and affirmed.

Charles W. Pomeroy, for appellant.

B. F Maiden, for respondent A. T. Neuman.

SMITH J.

This is an appeal from a decree of foreclosure of a mechanic's lien, entered by the district court of Flathead county. The complaint contains two counts, so called. The charging part of the first count is as follows: "That heretofore, to wit, on or about the 15th day of August, 1905, this plaintiff and the said defendant, Grant, entered into a contract and agreement, as follows: Said plaintiff, at the special instance and request of the defendant, Grant, agreed to dig and excavate, wall up with brick, line with cement, and finish in a good and workmanlike manner, one 50-barrel cistern on the premises hereinafter described, and then and there and now belonging in fee to the said Grant, situate in the town of Whitefish, county of Flathead, and state of Montana, all for a reasonable sum; and said Grant agreed that, in consideration of the plaintiff's doing such work and furnishing such material, he would pay to said plaintiff upon the completion of such work, a reasonable sum therefor. That thereafter, in a reasonable time, to wit, before the 29th day of October, 1905, plaintiff did all the work and furnished all the materials on and about the construction of said cistern, and completed the same in a good and workmanlike manner. And that such work and materials were and are reasonably worth the sum of $70." The second count sets forth: "That heretofore, to wit, on or about the 15th day of August, 1905, this plaintiff and said defendant Grant, entered into an agreement and contract as follows: Said plaintiff, at the special instance and request of said Grant, agreed to dig and excavate, wall up with brick, line with cement and finish in a good and workmanlike manner, one 50-barrel cistern on the premises hereinafter described and then and there and now belonging to the said Grant in fee, situate in the town of Whitefish, county of Flathead, and state of Montana, all for the sum of $70; and said Grant agreed that in consideration of the plaintiff's doing such work and furnishing such material, he would, on such completion of the same, pay to the said plaintiff the sum of $70. That thereafter, in a reasonable time, before the 29th day of October, 1905, [plaintiff] did all the work and furnished all the materials, in, on, and about such construction of said cistern, and completed the same in a good and workmanlike manner." Defendant filed a demurrer to this complaint, as follows: "That the said complaint is ambiguous: (a) In that two causes of action are therein attempted to be stated, neither of which are sufficiently distinct and separate so as to enable the defendant to determine whether the plaintiff relies upon the one or the other for his recovery. (b) In that one cause of action is stated in two separate counts which are contradictory and inconsistent." The court overruled the demurrer, and, in default of further pleading on defendant's part, entered a decree of foreclosure of the lien. Defendant appeals.

It is urged on the part of appellant that the court erred in overruling his demurrer, and he relies chiefly on the case of Reed v. Poindexter, 16 Mont. 294, 40 P. 596, where the late Justice De Witt, speaking for the court, said "The complaint was certainly ambiguous. The two causes of action to which the demurrer refers are in fact but one cause of action, differently stated, and contradictorily stated. The plaintiffs sought to follow the personal property into the hands of Poindexter and Jones, who were persons other than the original purchaser of the property. The complaint stated in one place that the property was transferred to said Poindexter and Jones as assignees for the benefit of creditors. Again, the complaint stated that the transfer was made to these persons in payment of a debt due by the Commercial Company to said Poindexter. One of these statements may be true. They are certainly not each true, for the reason that they contradict each other. It is true, as the defendants set up in their demurrer, that they cannot determine upon which of these contradictory allegations the plaintiffs rely. One may not set up his cause of action in terms which contradict each other and expect a defendant to answer. We think the judgment must be sustained upon the second ground of the demurrer." We,...