State v. American Surety Co. of New York
| Decision Date | 17 March 1927 |
| Docket Number | 6079. |
| Parties | STATE v. AMERICAN SURETY CO. OF NEW YORK. |
| Court | Montana Supreme Court |
Appeal from District Court, Lewis and Clark County; A. J. Horsky Judge.
Action by the State of Montana against the American Surety Company of New York, a corporation. From a judgment for plaintiff defendant appeals. Affirmed.
Charles N. Madeen and Harry H. Parsons, both of Missoula, for appellant.
L. A Foot, Atty Gen., and C. N. Davidson, Asst. Atty. Gen., for the State.
This action was instituted to recover from the defendant, as surety on a bond, an amount alleged to be due the plaintiff under the terms of a contract made with the state by one Pat Normandeau for the purchase of timber. The defendant filed an answer to the plaintiff's complaint, to which the court sustained a general demurrer with leave to the defendant to plead further. A second amended answer was filed by the defendant, as to which the plaintiff moved the court to strike out the affirmative defenses pleaded, as frivolous and sham because their insufficiency had already been determined by the court's ruling on the demurrer to the answer previously filed. This motion was by the court sustained. Subsequent thereto the cause was brought on for trial before the court sitting with a jury. At the conclusion of all of the evidence offered in support of the plaintiff's case, the defendant moved the court for a nonsuit, which motion was denied. Thereupon the defendant rested without the introduction of any evidence, and moved the court for a directed verdict, which motion was denied. Plaintiff's counsel thereupon moved the court to direct a verdict in plaintiff's favor, which motion was granted, and a verdict accordingly returned in plaintiff's favor for the sum of $7,002.56, together with interest thereon from September 4, 1920, at the rate of 8 per cent. per annum. Judgment was entered upon the verdict that the plaintiff do have and recover from the defendant "the sum of $7,002.56, together with interest thereon in the amount of $3,197.80, with interest on the whole amount at 8 per cent. per annum from the date hereof until paid," together with plaintiff's costs. The defendant moved the court for a new trial, which motion was denied by reason of the court's failure to act thereon. The appeal is from the judgment.
Of the several assignments of error made by the defendant, but one question is presented necessary to be considered, which in our opinion is determinative of this appeal, viz.: Did the court err in striking out the affirmative defenses pleaded in the defendant's answer?
Briefly stated, the affirmative defenses relied upon by the defendant were that the plaintiff did not hold Normandeau to a strict compliance of his contract in accordance with its terms, thereby waiving its lien on the timber and depriving the defendant of its right of subrogation. It is by the defendant alleged that the defendant in the execution of its bond relied and depended upon the state of Montana to exercise its rights under the contract, and to require the purchaser of the timber to make the payments and observe all the provisions and conditions of the contract. In this connection it is averred that the contract, among other of its terms, provides:
"That all timber cut by the purchaser, suitable for lumber, shall be marked by him as soon as cut with the log mark agreed upon, and that all such timber shall remain the absolute property of the state of Montana until paid for, and shall not be sold, transferred, or manufactured into lumber until the amount due the state is fully paid; that the state forester shall cause all logs cut to be scaled and make a total report of the same to the state board of land commissioners on or before the first day of every month, during the life of the permit and contract, showing the name of the party cutting, description of the land cut upon, number of logs cut and marked and mark placed thereon, the total number of feet, and the value thereof per thousand feet, etc.
Upon receipt of such report from the state forester, the party of the first part (the state board of land commissioners) shall draw duplicate draft for the amount found due, one of which shall be delivered to the register of state lands, and the other forwarded to the party of the second part herein (Normandeau).
The party of the second part shall then immediately make payment of the required amount to the register of state lands, and take duplicate receipt therefor, one of which shall be returned to the state board of land commissioners, who shall thereupon execute a release of the logs so paid for, and a transfer of the mark thereon; but in no case shall such release or transfer be made until the lien of the state for the purchase price for said logs has been fully paid."
This contract bears date March 18, 1919, and was executed by the state board of land commissioners and Pat Normandeau.
The bond in suit was executed on the 7th day of April, 1919, by Pat Normandeau, as principal, and the defendant company as surety, in favor of the state of Montana, and it is recited therein that whereas Pat Normandeau made application to cut live timber on lands described, in Missoula county; and whereas subsequently the register of state lands offered the live timber on the lands described for sale at public auction to the highest bidder; and whereas at such sale the principal, Pat Normandeau, was the highest and best bidder for such timber, and the same was sold to him for the sum of $3.50 per thousand feet, board measurement:
"Now therefore, if the said Pat Normandeau shall pay to the register of state lands, of the state of Montana, the amount that may be found due, under the terms of the permit and contract, and according to the provisions of law, and shall cut and remove said live timber in accordance with the rules and regulations as prescribed in said permit and contract, then this obligation shall be null and void, otherwise to remain in full force and effect."
It is provided by statute that-
"Sham and irrelevant answers and replies, and irrelevant and redundant matter inserted in a pleading, may be stricken out, upon such terms as the court may, in its discretion, impose." Section 9166, R. C. 1921.
Under authority of this enactment, we are of opinion that the court properly sustained the plaintiff's motion to strike the affirmative defenses pleaded in the answer. As these allegations constituted no defense at all, it was proper for the court to strike them from the answer as sham. Their...
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