Patten v. Hyde

• Decision Date: 05 June 1899
• Citation: 57 P. 407,23 Mont. 23
• Parties: PATTEN v. HYDE.
• Court: Montana Supreme Court

57 P. 407

23 Mont. 23

PATTEN v. HYDE.

Supreme Court of Montana

June 5, 1899

Appeal from district court, Granite county; Theo. Brantly, Judge.

Action by James Patten against Joseph A. Hyde. There was a verdict for plaintiff. From an order granting defendant a new trial plaintiff appealed. Affirmed.

Rodgers & Rodgers, for appellant.

W. E Moore, for respondent.

PER CURIAM.

Plaintiff (appellant) sues the defendant (respondent) for $750 together with interest, alleged to be due him upon a rescission of a sale of certain banking interests by the defendant to plaintiff and others. Plaintiff's complaint alleges that on the 4th day of April, 1893, the plaintiff and one Freyschlag and one Reins bought, and the defendant sold to them, a two-fifths interest in and to the capital stock of the First National Bank of Phillipsburg, and in and to the banking firm of Hyde, Freyschlag & Co., and in and to the Joseph A. Hyde Banking Company, each of said persons agreeing to buy and to take for himself a one-third of said two-fifths interest; that in consideration of said sale the said parties agreed to pay to the said defendant the sum of $52,250, and did pay him $2,250 in cash, and gave him their promissory note for the sum of $50,000, payable on April 4, 1894; that afterwards, on the 28th day of July, 1894, it was mutually agreed between said defendant and the said plaintiff Freyschlag, and Reins that the said sale should be rescinded and that the said defendant should return to them for cancellation the $50,000 note, and should repay to each of said persons his proportionate share of said $2,250 which had theretofore been paid; that thereupon the plaintiff, Freyschlag, and Reins relinquished all their claim to said banking interest, and Hyde became the owner thereof; that Hyde released to the plaintiff and to Freyschlag and Reins the $50,000 note for cancellation, but refused to pay to the plaintiff his proportionate share of said $2,250. The answer denies that defendant ever agreed with plaintiff, Freyschlag, and Reins, or either of them, that upon the resumption of the ownership of the two-fifths interest in the banking institutions he would repay to plaintiff, or to each of said persons, or to either or any of them, his proportionate share, or any share, of the $2,250, as alleged in the complaint, or at all; and denies that there was any agreement whatever that all or every person a party to the said contract, as alleged, should be placed in exactly the same position in relation to the said $2,250, or that there should be any change of position at all of any of said parties with reference to the said sum, by reason of said rescission of the contract. The defendant alleges that at the time of the rescission, as alleged in plaintiff's complaint, it was agreed between plaintiff, Freyschlag, and Reins, and defendant that, in consideration of the rescission of the contract by defendant, he (defendant) should retain the said $2,250, and that no part of said sum should be repaid to plaintiff, Freyschlag, or Reins, or either of them, but that the return and cancellation of the said note for $50,000 was the only consideration that the said plaintiff, Freyschlag, and Reins, or either of them, was to receive for said...