Noyes v. Young

• Decision Date: 18 March 1905
• Parties: NOYES v. YOUNG et al.
• Court: Montana Supreme Court

79 P. 1063

32 Mont. 226

NOYES v. YOUNG et al.

Supreme Court of Montana

March 18, 1905

Commissioners' Opinion. Appeal from District Court, Silver Bow County; E. W Harney, Judge.

Action by John Noyes against W. H. Young and others. The death of the plaintiff being suggested, the court ordered Elmira Noyes, administratrix of his estate, substituted as plaintiff. From a judgment for plaintiff, defendants appeal. Affirmed.

W. A Clark, Jr., J. L. Templeman, and W. P. Gilchrist, for appellants.

Forbis & Evans, Forbis & Matteson, and M. J. Cavanaugh, for respondent.

POORMAN C.

This action was brought by John Noyes, who died pending suit, and Elmira Noyes, administratrix of his estate, was by order of court substituted as the plaintiff. The appeal is from a judgment and the order overruling a motion for a new trial.

The plaintiff alleges: That defendant Young was justly indebted to one Orlena E. Price in a sum exceeding $5,000 for moneys had and received by said defendant for the use and benefit of Orlena E. Price. That said defendant and Orlena E. Price, by a mutual agreement, settled and compromised that said indebtedness then existing, and by said mutual agreement and compromise the amount of the said indebtedness between the parties was fixed at the sum of $5,000, which sum Young agreed to pay to said Orlena E. Price. That she had made demand therefor but that Young had not paid the same. That she threatened to and was about to commence an action against Young to recover of him this amount. That on the 19th day of March, 1888, the defendant Young executed and delivered to the plaintiff his agreement as follows: "In consideration of my being justly indebted to Orlena E. Price, in the sum of five thousand dollars, I, William H. Young, of Butte, Silver Bow County, Mt., do hereby agree that in the event of my selling or otherwise disposing of the 'Cora' lode Claim, situated in Summit Valley Mining District, Silver Bow County, Montana, or any interest in said lode claim for cash, or for any consideration other than a corporate stock consideration, I will upon so selling or disposing of such property, pay to Orlena E. Price, the sum of five thousand dollars,--Provided, that in the event of my giving a bond for a deed upon such property, such bonding shall not be construed as a disposing of such property, unless I should receive a payment or payments, upon such bond, in which event I agree to pay 50% of the amount of such payment so received, to the said Orlena E. Price, to be applied by her upon the said $5,000.00 indebtedness, until such time as said indebtedness is fully paid. Provided, further, that in the event of my leasing the said property, 50% of the royalty or rent received for the property so leased shall be applied by me in payment of said $5,000.00 indebtedness, until the said indebtedness is fully paid. Should I convey any interest in the said Lode Claim to a corporation and stock of such corporation be issued in payment for such interest so conveyed I do hereby agree thereupon to transfer to the said Orlena E. Price stock of such corporation to the value of five thousand dollars, to be valued at the market value of such stock. Dated this 19th day of March, A. D. 1888. [Signed] W. H. Young. For valuable consideration we hereby assign the within to John Noyes, Orlena E. Price,--John W. Price, Aug. 20th, 1888. Duly verified. Endorsed Filed. June 29th, 1901. "That the consideration for said agreement was the promise on the part of Orlena E. Price to refrain from and forbear bringing suit to recover said indebtedness. That Orlena E. Price afterwards, for a valuable consideration, sold, assigned, transferred, and set over to the plaintiff, John Noyes, this agreement. That the contingency named in the agreement had happened. That Young had not paid the sum of $5,000, or any part thereof. That the same was then due. The defendant admitted the execution of this contract; admitted the assignment to Noyes; admitted the happening of the contingency; admitted that he had not paid the sum named therein, or any amount thereof; denied that there was any promise to forbear suing; denied that there was any consideration for the contract whatsoever; and alleged that at the time of the execution of the contract he was the owner of an interest in the Cora lode claim; that Orlena E. Price represented to him that she had sold or could sell said claim to one Conrad for the sum of $60,000; and that the $5,000 named in the contract was the amount of the commission which would be due to Orlena E. Price in the event she made the sale of the property to Conrad, but that such sale was never made, and that there was, therefore, no consideration for the contract. Defendant also alleged that action on the contract was barred by the statute of limitations. It appears from the evidence on the part of plaintiff that the contract on which the action is founded grew out of a claim made by Orlena E. Price against defendant Young on account of money and property belonging to her deceased brother's estate, which she claimed was converted by Young. The case was tried before a jury, and a verdict rendered in favor of the plaintiff. Judgment was entered thereon against defendant Young, the action as to all the other defendants having been dismissed. From this judgment and an order overruling defendant's motion for a new trial this appeal is taken.

Plaintiff submitted her case upon the admissions contained in the separate answer of defendant Young, and rested her case in chief upon these admissions. Defendant then moved for a nonsuit upon the grounds: (1) That the contract sued on was void for want of consideration, want of mutuality, and was uncertain; was merely evidence of an account stated. (2) That plaintiff pleads a forbearance to sue as a consideration; that this is denied by the defendant, and that no evidence was offered to sustain this allegation of the complaint; that the admissions in defendant's answer are immaterial, in that they in no way constitute, tend to constitute, or make out a cause of action for the plaintiff. This motion for nonsuit was overruled.

Viewing the instrument on which the action is based, we find a positive, unequivocal written admission of indebtedness on the part of appellant payable to Orlena E. Price; the specification of several contingencies, upon the happening of any one of which the sum admitted, or some part of it, become due; and a statement as to the manner in which payments were to be made. If this instrument arises from and is based upon transactions had between the parties at its date, it is as purely a contract as is a promissory note that became due on the happening of a contingency, for it acknowledges an indebtedness, and promises to pay it. If it is the result of an agreement relating to past transactions, it is, in effect, an account stated, and as such is a contract on which an action may be based. "'From an account stated the law implies a promise to pay whatever balance is thus acknowledged to be due.' Chace v. Trafford, 116 Mass.

529, 17 Am. Rep. 171. It is not necessary that there should be an express promise to pay. *** On the contrary, there is an implied promise in law on the part of him against whom the balance is found to pay, and action is maintainable thereon." Voight v. Brooks, 19 Mont. 374, 48 P 549. See, also, Stagg & Conrad v. St. Jean, 29 Mont. 288, 74 P. 740; Martin v. Heinze, 30 Mont. ___, 77 P. 427. In the Martin Case, Chief Justice Brantly, speaking for the court, uses this language: "An account stated is an agreement between the parties, either expressed or implied, that all the items are correct. [Citing cases.] The action is based upon the agreement, the consideration of which is the original account, and the agreement has the force of a contract. This contract is the cause of action,...