Riste v. Morton

• Decision Date: 10 July 1897
• Citation: 49 P. 656,20 Mont. 139
• Parties: RISTE et al. v. MORTON et al.
• Court: Montana Supreme Court

49 P. 656

20 Mont. 139

RISTE et al. v. MORTON et al.

Supreme Court of Montana

July 10, 1897

Appeal from district court, Park county; Frank Henry, Judge.

Action by Thomas Riste and another against Robert L. Morton and others. From a judgment for defendants, and from an order overruling a motion for a new trial, plaintiffs appeal. Affirmed.

This is an action to recover a part payment of the purchase price of certain mining claims mentioned in the complaint, on the ground of misrepresentations made as to the character and value of the property, and also on the ground that the title to said mining claims was defective. From the record it appears that on the 28th day of May, 1891, the defendants sold to the plaintiffs the mining claims described in the complaint for the sum of $8,000. Of this sum, $2,000 was paid at the time of the purchase. At the same time the defendants executed to the plaintiffs their bond by which they bound themselves to convey the mining claims in question to the plaintiffs upon the condition that they should pay to them the further sum of $2,000 on the 2d day of July, 1891, and $4,000 on the 1st day of December, 1891, with 6 per cent interest. On the 8th day of August, 1891, it seems, the plaintiffs came to the conclusion that they would not take the property, and notified the defendants thereof in writing alleging as their reasons for their action that the said property was misrepresented to them by the defendants, and also that the title thereto had failed, in that the defendants at the time only owned an undivided one-half interest in the Nevada King quartz lode, one of the mining claims mentioned in the complaint. Thereafter, on October 5 1891, the plaintiffs brought this suit to recover back the $2,000 paid by them as part of the purchase price of said mining claims. On the trial the plaintiffs waived their first ground of recovery (that is, that the mining claims had been misrepresented to them), and sought to recover the purchase money paid by them solely upon the ground that the defendants had no sufficient title to the claims in question. The case was tried to a jury. At the close of plaintiffs' testimony the defendants moved for a nonsuit on the ground among others, that plaintiffs had failed to show that the title to the property in question was in cumbered or imperfect in the defendants at the time of the alleged agreement of sale, or at the time the deed was deposited, and further that the plaintiffs had failed to point out any particular defects, if any, in the title of defendants to the property in controversy, or any part thereof. The court sustained the motion, and a verdict was rendered in favor of the defendants. From the judgment rendered in the case, and from an order overruling a motion for a new trial, the plaintiffs appeal.

Campbell & Stark, for appellants.

W. H. Poorman, for respondents.

PEMBERTON C.J. (after stating the facts).

This being an appeal from a judgment of nonsuit, the question for determination is as to whether there is any substantial evidence...