Slack v. Brown
| Decision Date | 10 October 1921 |
| Docket Number | 4444. |
| Citation | 201 P. 565,61 Mont. 99 |
| Parties | SLACK v. BROWN. |
| Court | Montana Supreme Court |
Commissioners' Opinion. Appeal from District Court, Fergus County; Roy E Ayers, Judge.
Action by H. I. Slack against D. E. Brown. Judgment for plaintiff and from an order denying a new trial, defendant appeals. Affirmed.
Belden & De Kalb, of Lewistown, for appellant.
Blackford & Huntoon, of Lewistown, for respondent.
Complaint by Slack on written contract, later amended to include quantum meruit for sale to Brown of 10,000 bushels No. 2 hard Montana wheat, at contract price and reasonable value of 90 cents per bushel.
Performance by plaintiff under the contract and that no payment had been made by defendant, although demanded, save the sum of $2,500 paid prior to any delivery, alleged.
Defendant denied performance by plaintiff and alleged affirmative defenses to the effect that $2,500 had been paid by defendant on the contract contemporaneously with its execution and delivery; that the demand for its return had been refused that, although he had ordered plaintiff to perform his contract, it was not done; that defendant suffered damages in the sum of $1,000 because of nonperformance by the plaintiff.
The reply denies the affirmative matters of the amended answer and sets up as further reply the entire transaction in detail, pleading estoppel as to 8,223-30 bushels.
A jury trial was had, the jury returning special findings of fact to the effect that plaintiff delivered the grain mentioned in his complaint under the contract, and that the defendant or his agent received the grain so delivered, and by acts, words, or silence led the plaintiff to believe it was being accepted under the contract. There was also returned a general verdict for practically the entire amount demanded. From the order denying a new trial defendant appeals.
Many preliminary motions and technical objections which should have been raised and settled in advance of the trial were made by defendant before the taking of the testimony, on the day of the trial, that will receive no consideration here. They were in violation of the rules of court, and the complained-of defects were waived by the acquiescence of the defendant.
The testimony as a whole sustaining plaintiff's contention showed:
That on August 12, 1915, the parties entered into the written agreement. That $2,500 was paid to plaintiff by defendant on the contract before any delivery. That prior to signing the contract the parties made an ininvestigation of the fields from which the wheat was to be cut to see if the grain was in condition to harvest and market. That defendant shelled and tried the grain, and both thought it fit to cut on August 15th. That on that day, after two loads had been gathered in, Brown and plaintiff concluded it was too soft and green to harvest and postponed harvesting for three days. That on August 15th, 18th, and 19th 2,020 bushels gross were delivered at the elevator of the defendant, in twelve loads, tickets for three of which were marked "green," "soft and green," "establishing no grade, smut," all of the other tickets for all of the grain delivered being without grade mark. That plaintiff, on receiving the ticket marked "soft and green," went to the elevator and interrogated Watts, defendant's agent, as to its meaning. He replied: That thereupon plaintiff decided to wait until the grain was in the shock before further delivery. That on August 23d defendant authorized the following communication to plaintiff:
That on September...
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