Vande Veegaete v. Vande Veegaete
| Decision Date | 09 December 1925 |
| Docket Number | 5795. |
| Citation | 243 P. 1082,75 Mont. 52 |
| Parties | VANDE VEEGAETE v. VANDE VEEGAETE. |
| Court | Montana Supreme Court |
Appeal from District Court, Yellowstone County; O. F. Goddard Judge.
Action by Mary Vande Veegaete against H. Vande Veegaete. From a judgment for the plaintiff, the defendant appeals. Reversed and remanded.
M. J Lamb, of Billings, for appellant.
George W. Pierson and James R. Goss, both of Billings, for respondent.
The defendant has appealed from a judgment rendered against him and in favor of the plaintiff. Plaintiff's complaint alleged: (1) That on November 13, 1922, defendant made and delivered to plaintiff his certain promissory note, a copy of which is set out, and which copy shows that the note was payable on or before March 1, 1923, for the sum of $800, with interest at the rate of 4 per cent. per annum, and with the usual provision for attorney's fees, and it does not appear therefrom that payment thereof was secured; (2) that the defendant has not paid the note nor any part thereof; and (3) that the plaintiff is the owner and holder of the note. Paragraph 5 of the complaint then alleged that, at the time of the delivery of the note, defendant executed and delivered to plaintiff a certain chattel mortgage as security for the payment of the note, and by paragraph 6 it was alleged that without the knowledge or consent of plaintiff, defendant sold and disposed of all the property mentioned in the chattel mortgage.
On September 26, 1924, defendant filed and served upon plaintiff notice that on the 1st day of October, 1924, he would move the court to strike paragraphs 5 and 6 from the complaint, on the ground that the allegations thereof were "irrelevant, redundant, and surplusage." Thereafter defendant answered, admitting the execution and delivery of the note, "which by its terms was made payable to" plaintiff, and denying all other allegations of the complaint. Defendant then set up two special defenses: (1) That the note was given without consideration; and (2) that plaintiff's husband, Alphonse Vande Veegaete, was in fact the owner of the note, which was made payable to Mary Vande Veegaete at the request of her said husband and to protect him from other creditors; that three Vande Veegaete brothers had for years been engaged in a joint venture, and that, as a result of their operations, the said Alphonse Vande Veegaete had become indebted to defendant in a sum in excess of the amount due on the note, but that this fact was not ascertained by defendant until after the making and delivery of the note, and that, had he known the condition of their account in March, 1922, he would not have given the note. These affirmative allegations of the answer were denied by reply thereto.
Over defendant's objection, the plaintiff was permitted, in her case in chief, to introduce evidence in support of the allegations of her complaint respecting the mortgage. The plaintiff was not present at the time of the execution and delivery of the note and mortgage, but, according to her contention, was there represented by her husband, Alphonse Vande Veegaete, who testified that such was the fact and that such fact was then known to defendant; whereas the defendant testified that the transaction was with the husband personally and that, at the request of Alphonse, the note and mortgage were drawn in the name of plaintiff to protect him from his creditors. The defendant further testified in substantiation of the allegations of his special defenses, which testimony was contradicted by Alphonse Vande Veegaete, and, in part, by other witnesses for plaintiff.
The testimony of the two principal opposing witnesses-the defendant and Alphonse Vande Veegaete-was sharply conflicting in every material particular; so much so, in fact, that the jury could but find that one or the other had deliberately testified falsely. While the testimony of Alphonse Vande Veegaete was corroborated in many particulars, principally by the plaintiff, his wife, that of the defendant was practically uncorroborated. The jury returned a verdict in favor of plaintiff, and judgment was entered thereon.
Defendant specifies error on the rulings of the court in (1) refusing to strike paragraphs 5 and 6 of the complaint; (2) admitting evidence in support of those allegations as a part of plaintiff's case in chief; and (3) in refusing to give defendant's offered instruction No. 3, and in giving in lieu thereof the court's instruction No. 8.
1. The record contains the notice of intention to move to strike heretofore referred to and nothing more. It does not appear from the record that any motion was ever presented to or ruled upon by the court; from all that appears in the record, defendant's intention to move to strike was abandoned. "This matter, therefore, is not before us for review." Hefferlin v. Karlman, 76 P. 757, 30 Mont. 348.
2. Counsel for defendant has argued his assignments numbered 1 and 2 jointly; he contends that the allegations of paragraphs 5 and 6 should have been stricken as surplusage, and that the evidence introduced in their support was "incompetent, irrelevant, and immaterial," and in support of his contentions cites 8 Corpus Juris, 865; Brophy v. Downey, 67 P. 312, 26 Mont. 252; State Savings Bank v. Albertson, 102 P. 692, 39 Mont. 414; Bank v. Blackburn, 83 P. 262, 2 Cal.App. 146; Clark v. Eltinge, 75 P. 866, 34 Wash. 323-all to the effect that, under the circumstances of the particular case, it was not necessary to so plead or to introduce evidence, except in rebuttal. The text of the Corpus Juris citation is but the statement of a general rule which prevails in the absense of statutory provisions to the contrary.
In the case of Brophy v. Downey, the plaintiff sued on a promissory note which did not disclose upon its face that it was secured by mortgage; the defendants answered setting up the fact that it was so secured; the plaintiff did not reply. On the trial plaintiff proved the allegations of his complaint, but on cross-examination admitted that the note was originally secured by mortgage, and was then not permitted to show that the security had, without fault of the plaintiff, become valueless, whereupon judgment of nonsuit was entered against him. The question before the court on appeal was as to whether this latter proof was admissible in the absense of a reply. The court held that no obligation rested upon the plaintiff to state whether or not there was a mortgage; that the allegation thereof in the answer was an affirmative defense and not a counterclaim; and that consequently no reply was required; that the defendants should have proved this new matter in making out their case and not by cross-examination; and that the plaintiff should have been permitted to prove, if he could, that the security had so become valueless, declaring that such evidence was "both relevant and material."
For reasons hereinafter stated, neither the case of State Savings Bank v. Albertson nor Clark v. Eltinge has any application to the question before us. In the California case the court merely held that, in a suit on a promissory note, it was not necessary for the plaintiff to allege the execution of a mortgage and its extinction by agreement of the parties, stating:
In this state "there is but one action for the recovery of debt or the enforcement of any right secured by mortgage upon real estate or personal property, which action must be in accordance with the provisions of this chapter" (section 9467, Rev. Codes 1921); and "several contracts relating to the same matters, between the same parties, and made as parts of substantially one transaction, are to be taken together" (section 7533, Rev. Codes 1921). Under these provisions, the stipulations embodied in the mortgage become...
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