Appeal
from District Court, Lewis and Clark County; Thos. C. Bach
Judge.
Action
by T. C. Power & Bro. against W. P. Turner, Jr. From a
judgment for defendant, plaintiffs appeal. Reversed and
remanded.
BRANTLY
C.J.
The
complaint in this action contains four counts. In the first
recovery is sought for the sum of $4,920.60, with interest
made up of moneys loaned to defendant and paid out and
expended by plaintiff in his behalf, and at his request,
during the years 1903 and 1904. In the second recovery is
sought for the sum of $1,386.92, alleged to be the reasonable
value of goods, wares, and merchandise furnished to defendant
at his instance and request during the same years, with
interest from and after May 14, 1904. In the third count it
is alleged that the plaintiff and defendant on October 1,
1900, entered into a written contract, a copy of which is
attached to and made a part of the complaint as "Exhibit
A," and reads, omitting formal parts as follows:
"That
the said party of the first part [T. C. Power & Bro.] does
by these presents lease, grant, and farm let unto the said
party of the second part [W. P. Turner, Jr.] the following
described sheep: 740 head of yearling wethers; 7,480 head
of 2s, 3s, and 4 year old wethers; 655 head of lambs; 1,000
head of 2 year old ewes, for the purpose of running the
same from the first day of October, 1903, until the first
day of May, A. D. 1904, and, as a consideration therefor,
the said party of the first part agrees to pay said second
party the sum of eight cents ($.08) per head per month for
the actual number of sheep returned to them on the first
day of May, 1904. It is further understood and agreed by
and between the parties of this contract that the said
party of the second part covenants and agrees to and with
the said party of the first part that he will in a good and
husband-like manner, and according to the best custom of
sheep husbandry in the neighborhood, herd, feed, and
generally care for said sheep as of his own property, and
for that purpose will provide suitable and ample sheep
sheds and shelter, and sufficient hay to feed them during
winter, and will pay any and all expenses of herding and
feeding the same, and also the expense of delivering them
up to said party of the first part at the expiration of
this lease, at Chester, Montana. And it is further
understood and agreed between the parties hereto that at
the expiration of said term, or on sooner termination of
this lease, the said party of the second part will
surrender and deliver to the said party of the first part
the said sheep in as good condition and order as the same
may be in when delivered into his possession on the first
day of October, A. D. 1903, provided, however, that, should
any losses occur from any cause whatsoever, they will be
allowed to the maximum extent of 2 per cent. on all wethers
older than one year, 3 per cent. on all yearling wethers,
and 3 per cent. on all dry ewes, without charge to said
second party, provided, however, that said per cent. for
loss shall not be construed as allowing said second party
to retain any sheep should death loss not equal per cent.
stated; and it is understood that said second party will
exhibit the pelt of each-and every sheep lost during said
term of this lease.
"It
is further agreed that, should said losses exceed the
percentage as stated, the said second party will pay to the
said first party the sum of $3.50 per head for all wethers,
and $3 per head for dry ewes lost in excess of said
percentage. And it is further agreed that if, at any time
during the said term, the party of the second part falls to
properly care for said sheep, and fails in season to
provide sufficient hay and suitable sheds and shelter for
them, then the said party of the first part may resume
possession of said sheep, and for that purpose may enter
upon any lands or premises wherever the same may be found,
and shall have the right to use the sheds, feeding grounds,
and lands of the said party of the second part, and shall
have the right to erect sheds or shelter, and purchase hay,
if necessary, such expense to be paid by said party of the
second part, and, in the event said second party or his
agent shall not carefully and properly care for said sheep,
then, and in that event, said party of the first part shall
have the right to resume possession of said sheep, and put
such a person in charge as can properly handle same, the
expenses thereof shall be paid by said second party."
It is
alleged that the plaintiff had on its part kept and performed
all the conditions of the contract to be by it kept and
performed, but that the defendant had failed to return to
plaintiff 1,490 wethers, all older than one year, after
allowance had been made of 2 per cent. under the terms of the
contract, which were of the value of $6,653.52; that the
defendant thereby became indebted to the plaintiff over and
above the amount he was entitled to receive from the
plaintiff for keeping the sheep in the sum of $2,371.54, with
interest from May 1, 1904. In the fourth count plaintiff sues
upon an account for, goods, wares, and merchandise sold and
delivered to defendant by the Benton Hardware Company of the
value of $79.40; the plaintiff being the owner of the account
under an assignment to it by the company.
The
answer of the defendant to the first, second, and fourth
counts admits all the allegations contained in them. In
answer to the third count, while it is admitted that
sheep to the number alleged were delivered to the defendant
and that upon redelivery to plaintiff he failed to account
for 1,940 head, for which he had agreed to pay under the
terms of the contract, he denies that these were all wethers
older than one year, and alleges that the losses by death
were about equally distributed among the different classes,
and that he should be charged for them accordingly. It is
further alleged that he delivered to the plaintiff during the
period covered by the contract pelts and wool taken from
sheep lost of the value of $1,377.65, for which sum he was
entitled to a credit upon the amount claimed by plaintiff.
Then, in a paragraph designated as an affirmative defense and
counterclaim, it is alleged:
"(1)
That the plaintiff was guilty of perpetrating a fraud upon
this defendant in the execution of said contract,
'Exhibit A,' to the plaintiff's complaint, in
this: that the defendant had had in his custody under a
former contract between 4,000 and 5,000 sheep described in
the plaintiff's complaint, and they were still upon his
premises at the time the aforesaid contract was entered
into on or about the 1st of October, 1903; that said sheep
were fat and healthy and in good condition to go through
the winter; that, in addition to said sheep that were
already upon his premises when said contract was made, the
plaintiff added thereto about 5,000 sheep which were at the
time of said contract, and had been for some time previous
thereto, upon the range near Malta, in Valley county,
Mont.; that said sheep last described had been prior to the
making of this contract exposed to a certain disease which
was infectious and often fatal, known as 'ulcerated
foot and lip disease'; that one J. H. Huse, who was the
agent and representative and general manager of the
plaintiff company, and who had charge of all of said sheep
at the time said contract was made, and with whom the
defendant made said contract, knew at the time that said
contract was made that these sheep had been exposed to this
infectious disease, and wrongfully and fraudulently
concealed said fact from this defendant.
"(2)
Defendant further alleges that the plaintiff through said
agent caused to be inserted in said contract the following:
'That, at the expiration of said term or sooner
termination of this lease, the said party of the second
part (this defendant) will surrender and deliver to the
said party of the first part the said sheep in as good
condition and order as the same may be in when delivered in
his possession on the first day of October, 1903.'
Following this is the clause which allows this defendant a
maximum loss of 2 per cent. on all wethers older than one
year, and 3 per cent. on all yearling wethers and dry ewes.
Defendant alleges that, when the above paragraph was
inserted in this contract, said Huse, agent and
representative of the plaintiff, knew that said 5,000 sheep
which had been brought from Malta had been exposed to this
disease, and that there was evidence of lameness in some of
the sheep at that time, and that they were taking the
disease. Said clause was inserted in said contract by said
agent for the fraudulent purpose of making this defendant
liable for whatever losses there might be from death among
said sheep from said disease. The foregoing the defendant
charges upon information and belief. Defendant further
alleges that at the time said sheep from Valley county were
delivered he noticed that some of them were lame, but there
were no ulcers or soreness upon the feet or the lips of any
of them, and defendant called the attention of said Huse to
the fact that some of the sheep were lame, and said Huse
replied that the lameness was caused by their having been
trailed across a certain burned district on their way from
Valley county to his premises.
"(3)
Defendant further alleges that he made said contract with
reference to said sheep being in a healthy condition, and
that said sheep at the time he received them had the
appearance of being in a healthy and good condition; that,
if he had known the sheep had been exposed
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