Roach v. Rutter

• Court: Montana Supreme Court
• Writing for the Court: SMITH, J.
• Citation: Roach v. Rutter, 40 Mont. 167, 105 P. 555 (Mont. 1909)
• Decision Date: 17 December 1909
• Parties: ROACH v. RUTTER.

105 P. 555

40 Mont. 167

ROACH v. RUTTER.

Supreme Court of Montana

December 17, 1909

Appeal from District Court, Valley County; Jno. W. Tattan, Judge.

Action by N. A. Roach against J. H. Rutter. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. Reversed.

T. E Crutcher, for appellant.

Hurd & Lewis, for respondent.

SMITH J.

The complaint in this action alleges that on the 25th day of June, 1904, the defendant employed plaintiff to watch over a certain house and the goods contained therein, "and promised that he should receive as pay therefor the sum of three dollars per day, the same pay as a deputy sheriff"; that under said contract of employment he cared for the house and goods for a period of 53 days "that for said services the defendant promised to pay him the sum of $159." Then follows an allegation of demand and refusal to pay, and a prayer for judgment in the sum of $159, with interest. The defendant filed a general demurrer to the complaint, and, upon the same being overruled, filed an answer denying every allegation of the complaint. The cause was tried before the district court of Valley county sitting with a jury. After plaintiff had personally given certain testimony (it does not appear that his examination was concluded), and before he had rested his case, the defendant's counsel orally interposed the following motion for a nonsuit: "We will move the court to grant a nonsuit on the ground that the proof does not conform to the allegations of the complaint, and on the further ground that it is shown that the complaint is within the statute of frauds." The motion was granted, and plaintiff saved an exception. Afterwards judgment was entered in favor of the defendant, and a motion for a new trial was overruled. These appeals are from the judgment and order.

One ground of the motion for a new trial was "on account of the irregularity in the proceedings of the court in entertaining and granting a motion for a nonsuit before plaintiff had rested, and whilst plaintiff's first witness was on the stand undergoing cross-examination, and before plaintiff had an opportunity to introduce two other witnesses whom he proposed to have testify, and in granting said order prematurely, by which plaintiff was prevented from having a fair trial." At the hearing of the motion plaintiff's counsel presented his own affidavit, in which he set forth that he intended to call the defendant himself to prove that the contract was substantially as set forth in the complaint. He also alleged that, if opportunity had been given for redirect examination, he could have explained any apparent discrepancies in plaintiff's testimony on cross-examination. The plaintiff testified, in substance, as follows: "On or about the 25th day of June, 1904, the defendant employed me to watch over a house and the goods contained therein. He asked me to look after the goods and to report to him. I kept the keys and saw that no one entered the building during the daytime, and I slept in the building during the night and watched it all the time, cared for it from June 25th until the 16th of August, 53 days. At the end of that time I was relieved, and I demanded my pay. I demanded my fees of Mr. Rutter and the sheriff, Cosner. I guess when I presented my bill to the sheriff's office I claimed $6 per day, $306 for 53 days. I followed Mr Rutter's instructions. I couldn't make demand on anybody else except on the sheriff's office. No; I made no demand. I couldn't make any other demand than the demand I made. I could demand. I wrote to the sheriff. The demand was made to the sheriff, and was answered by Mr. Rutter himself. I demanded my fees, and his answer was that Mr. Duffy would settle for it. Mr. Rutter instructed me to turn the goods over to Mr. Duffy. I have a letter here signed by Harry Cosner, by J. H. Rutter, undersheriff of Valley county. I guess the demand was made on Mr. Cosner, and not on Mr. Rutter. I never made any demand on Rutter personally in any way whatever, only simply in the complaint, and never went to him to make a personal demand. There was a demand made by the attorney I employed. The reason I presented the bill for $304.50 to the sheriff instead of Mr. Rutter was that, according to his instructions, I was to report to the sheriff. I was to report to the sheriff when I turned the goods over. I was not to turn the goods over until I got orders from the sheriff's office. I presume I was working for the sheriff through Mr. Rutter. I was following Mr. Rutter's instructions. The services went to him. I would not have been watching the building if I had not been working for Mr. Rutter. I was working for Cosner through Mr. Rutter. I would not have been performing services unless it had been for Mr. Rutter. I performed services for J. H. Rutter, as I have stated. When I presented my bill for services, I presented it to the sheriff for $304.50. The other $159 was for staying in the building nights. Q. You say you were to get $3 per day? A. That is what he told me I would get. Q. When did Rutter say he would pay you the $3 a day that you say he agreed to pay you? A. He just said that I would receive that. He did not say directly who I would receive it from. Q. He did promise to pay you $3 per day, did he? A. He didn't promise to pay me, but that I would receive that." The only knowledge we have from the record as to what the sheriff's attitude toward the plaintiff's claim was is derived from a statement made by plaintiff's counsel during the course of examination of his client that he "disclaimed all liability," and plaintiff's statement that in answer to a written demand upon the sheriff Rutter answered that "Duffy would settle for it."

The principal contention of the appellant in this court is that the district court erred in granting the motion for a nonsuit before his own examination was completed, and before he had been given an opportunity to offer all of his evidence. The first ground of the motion for a nonsuit was, in effect, as we understand it, that there was a failure of proof on the part of the plaintiff; and the second was undoubtedly designed to comprehend the claim that the testimony disclosed an oral undertaking on the part of the defendant to answer for the debt, default, or miscarriage of the...