Sanford v. Gates, Townsend & Co.
Decision Date | 05 July 1898 |
Citation | 53 P. 749,21 Mont. 277 |
Parties | SANFORD v. GATES, TOWNSEND & CO. et al. |
Court | Montana Supreme Court |
Appeal from district court, Lewis and Clarke county; H. R. Buck Judge.
Replevin by J. R. Sanford against Gates, Townsend & Co. and another. From a judgment for plaintiff, and an order denying a new trial, defendants appeal. Affirmed.
Toole & Wallace, for appellants.
T. J Walsh, for respondent.
The complaint alleges, in substance, that the plaintiff is the owner and entitled to the possession of certain hotel furniture of the value of $649.06; that the same is unlawfully held by defendants, after demand therefor; that on October 2, 1893, plaintiff delivered the chattels in controversy to defendant Gates, Townsend & Co., a corporation, under the provisions of a contract entered into on that day between plaintiff and defendant corporation, as follows:
That afterwards the defendant assigned to its co-defendant all its interest in the property. That on September 2, 1894, there fell due as interest $2.50, which remains unpaid, and that on October 2, 1894, the sum of $50, with further accrued interest of $2.50, became due, and was not paid. That there was due and unpaid October 4, 1894, when the complaint was filed, the sum of $55, and that the additional sum of $150 had not then matured.
The answer admits that the chattels were delivered and received in pursuance of the contract set out in the complaint. For an equitable defense defendants plead that at and before the making of said contract one Rohrbaugh was renting from defendant corporation the Grandon Hotel, and had possession of and was using the chattels as part of the furniture of the hotel under some agreement with plaintiff, the terms of which were unknown to the defendants, that Rohrbaugh was then indebted to defendant company to the extent of $1,800 or thereabouts, and was insolvent, and unable to pay any part of such debt, except by a transfer of his interest in the said chattels, and that there was then due, or to become due, from Rohrbaugh to plaintiff, the sum of $449.06,--all of which plaintiff knew; that defendant company agreed to execute a contract in writing to pay plaintiff whatever was due, or to be paid by Rohrbaugh to plaintiff for the chattels, and thus become the owner thereof; that plaintiff and Rohrbaugh conspired together to defraud and cheat the company, and to carry out their wicked purpose fraudulently represented to the said defendant that there was due and to fall due from Rohrbaugh to plaintiff the sum of $649.06, instead of the real sum of $449.06, which latter was the amount defendant of right ought to pay to obtain title to the property; that the defendant company relied upon said fraudulent and false representations, and believed them to be true, and had no information or means of information to the contrary, and that it therefore executed the contract to pay $649.06, whereas the amount should, in truth and in fact, have been $449.06. It is further averred that defendants, before the commencement of the action, had paid in full the $449.06, which was the whole amount payable by Rohrbaugh, and that by reason of the said payment they are entitled to the property. They pray that the contract pleaded in the complaint be declared void; that an accounting be had according to the agreement of the parties; that the defendants be decreed the owners and rightfully in the possession of the property; that if, on an accounting, anything be found due the plaintiff, defendants be permitted to pay the same into court, which they offer to do; and ask for general relief. No issue was made as to value. For convenience we shall, in this opinion, treat the company as the only defendant.
The defendant, upon whom rested the burden of proof, introduced evidence. Plaintiff then moved the court to direct the jury to find for plaintiff on several grounds, one being that defendant had failed to show that it had relied upon or believed the false representations made by plaintiff to it; and another being that there was no evidence that the amount due from Rohrbaugh had been paid. The motion was granted upon the first ground mentioned, a verdict returned, and a judgment signed and entered accordingly. From the judgment, and from an order refusing a new trial, defendant appeals.
With two exceptions, every material allegation of the equitable defense was prima facie, clearly established. The evidence disclosed that $12 or thereabouts were still unpaid on the contract between plaintiff and Rohrbaugh, this deficiency being occasioned by an erroneous calculation of the interest. This is one of the exceptions. The other is the allegation that the defendant believed the false representations of plaintiff, and relied upon them at the time he entered into the contract with him. The following quotations are extracts from the testimony of Gates, president and managing officer of defendant: Witness produced itemized bill, showing $649.06 as due from Rohrbaugh to plaintiff. ...
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