Sandeen v. Russell Lumber Co.

• Decision Date: 29 March 1912
• Citation: 122 P. 913,45 Mont. 273
• Parties: SANDEEN v. RUSSELL LUMBER CO.
• Court: Montana Supreme Court

122 P. 913

45 Mont. 273

SANDEEN v. RUSSELL LUMBER CO.

Supreme Court of Montana

March 29, 1912

Appeal from District Court, Yellowstone County; Frank Henry Presiding Judge.

Action by C. E. Sandeen against the Russell Lumber Company. From a judgment for plaintiff and an order denying its motion for new trial, defendant appeals. Affirmed.

Lou W Chapple and Noyes & Noyes, all of Billings, for appellant.

H. J Coleman and W. M. Johnston, both of Billings, for respondent.

HOLLOWAY J.

This action was brought to recover damages for an alleged breach of contract. The plaintiff recovered judgment, and defendant appealed therefrom and from an order denying it a new trial.

The complaint alleges that on November 17, 1908, plaintiff purchased from the defendant company, and defendant sold to plaintiff, 1 car of oats at $1.60 per hundred, 6 cars at $1.65 per hundred, 10 cars of alfalfa hay at $9.50 per ton and 6 cars of timothy hay at $13.50 per ton, f. o. b. Waco or Custer, as directed by plaintiff, delivery to be made at any time before June 15, 1909, upon 10 days' notice from plaintiff, and payment to be made by plaintiff 30 days after receipt of the goods. It is then alleged that the defendant company delivered 2 cars of oats, 2 1/2 of alfalfa, and 2 1/2 of timothy, for which plaintiff paid according to contract, "the last of which oats and hay were delivered to plaintiff by defendant under said contracts in December, 1908." It is further alleged that plaintiff made frequent demands upon defendant to deliver the remainder of the oats and hay; that defendant failed, neglected, and refused to deliver any more of either; and that plaintiff was forced to go into the markets and purchase oats and hay at greatly increased prices, to his damage in the sum of $1,973.90. The answer of defendant company admits that a contract was entered into between plaintiff and defendant with respect to the quantities of hay and grain mentioned in the complaint, that the contract prices were as plaintiff alleges, but defendant asserts that deliveries were to be made at any time between November 17, 1908, and May 1, 1909, at the option of the defendant, and that payments were to be made by plaintiff on the 1st of every month for all goods delivered during the preceding month. Defendant admits that it delivered 2 cars of oats and 2 1/2 each of alfalfa and timothy under the terms of the contract, but denies that plaintiff paid for the same according to the terms of the contract, and alleges that final payment for such goods was not made until April, 1909. It is alleged that defendant shipped to plaintiff at Custer 5 car loads of hay, but that plaintiff refused to receive or accept the same. Defendant, by way of counterclaim, alleges breach of the contract on the part of plaintiff, to defendant's damage in the sum of $222.50; and by way of a second counterclaim sets forth a claim for lumber sold and delivered to plaintiff of the value of $84. By reply plaintiff put in issue the affirmative allegations of the answer, except those contained in the second counterclaim, which are admitted. During the course of the trial plaintiff was permitted, over objection of defendant, to amend his complaint by substituting the words "March, 1909," for the words "December, 1908," in that portion of the complaint quoted above. In this court counsel for appellant urged (1) that the complaint does not state a cause of action; (2) that the court erred in receiving in evidence Plaintiff's Exhibits C, D, and H; (3) that the trial court erred in permitting the amendment to the complaint; and (4) that the court erred in denying defendant's motion for a new trial.

1. It is argued that according to plaintiff's own theory, as disclosed in the complaint, the contract was void for want of mutuality, in that it was left optional with the plaintiff whether he would or would not call for delivery of the goods the subject of the contract; but with this we do not agree. The complaint alleges facts from which it appears that a sale was made on November 17, 1908, of all the goods in question here, that plaintiff had the right to fix the time for delivery, but that he was obliged to call for all the goods before June 15, 1909. We think this is made very clear, and that the complaint states facts sufficient to constitute a cause of action.

2. Plaintiff's Exhibits C and D are letters, and Exhibit H is a telegram, all sent by plaintiff to defendant. They were properly admitted in evidence in support of plaintiff's allegation that he had made repeated demands upon defendant to deliver the balance of the goods in controversy.

3. That a sale was made by defendant to plaintiff on November 17, 1908, of one car of oats at $1.60 per hundred, six cars at $1.65 per hundred, ten cars of alfalfa at $9.50 per ton, and six cars of timothy at $13.50 per ton, is settled by the admissions in the pleadings. The only questions in dispute are as to the terms of payment, the place of delivery, the final date of delivery, and the party who had the right to fix the time of delivery within the limits of the term of the contract. All these disputed questions were determined in favor of the plaintiff by the general verdict of the jury.

4. Error is predicated upon the action of the trial court in permitting plaintiff to amend his complaint, and in refusing defendant a new trial. The authority of the trial court to permit a pleading to be amended so that it will correspond to the proof is recognized by statute (section 6589, Rev Codes). But the argument is advanced that in this particular instance the amendment changed the issues and placed the defendant at a disadvantage, in that it was not prepared to meet the proof admissible under the complaint as amended, and for this reason the amendment should not have been allowed. The ...