Viers v. Webb
Decision Date | 23 March 1926 |
Docket Number | 5851. |
Citation | 245 P. 257,76 Mont. 38 |
Parties | VIERS v. WEBB. |
Court | Montana Supreme Court |
Appeal from District Court, Carbon County; Robert C. Stong, Judge.
Action by Arthur Viers against Elsa V. Webb. Judgment for plaintiff and defendant appeals. Affirmed.
John G Skinner, of Red Lodge, for appellant.
C. C Rowan, of Red Lodge, for respondent.
On June 8, 1922, plaintiff and defendant were husband and wife living together with their two children in the family home in Red Lodge. On that day they entered into an agreement for a division of their property and for an immediate separation. The agreement provides:
Upon the completion of the agreement and the execution and delivery of the deed, plaintiff removed to another place of residence. On July 27, 1922, defendant secured a divorce, and about January 1, 1923, married a man by the name of Webb.
At the time the agreement was entered into, there was a considerable amount of personal property (household furniture) in and about the family home, and it was left there in the possession of the defendant and was used by her for the benefit of herself and the children. On January 28, 1925, plaintiff made a demand for the possession of the furniture, and, the demand being refused, he instituted this action. In her answer defendant denied that plaintiff is the owner or entitled to the possession of the property, and denied that the value of the property exceeds $200. She also pleaded the statute of limitations (section 9033, Rev. Codes of 1921). The trial of the cause resulted in a verdict and judgment in favor of plaintiff, and defendant appealed.
Only two questions are presented: Does the evidence sustain the verdict, and was plaintiff's right of action barred?
The agreement in question is one which the parties might rightfully make (section 5787, Rev. Codes, 1921), and, having made it, it is the duty of the courts to enforce it even though defendant may have made a bad bargain. McConnell v. Blackley, 214 P. 64, 66 Mont. 510.
The terms of the agreement do not leave room for doubt as to the intention of the parties. Defendant accepted the real estate described, and surrendered any claim she might have to other property then owned by the plaintiff or which he might acquire thereafter. If the plaintiff owned the furniture on June 8, 1922, then by the terms of the agreement he continued to be the owner of it.
Plaintiff testified that he purchased and paid for the furniture during the period of his married life prior to June 8, 1922; that defendant did not contribute towards the purchase of any of it; and that he had not sold or otherwise disposed of it. This testimony is uncontradicted. The trial court treated the transaction with respect to the furniture as a loan. Plaintiff testified:
With reference to a conversation between himself and defendant which occurred after the letter above was written, plaintiff testified:
There cannot be any question that the transaction constituted a bailment for the sole benefit of the defendant, the bailee, and for an indefinite time-the commodatum precarium of the ancient law. Dillaree v. Doyle, 43 Upper Canada, Q. B. 442, 445.
In 6 C.J. 1101, it is said:
"The gratuitous loan or use of the thing bailed, the commodatum of the older classification, forms the division of bailments for the sole benefit of the bailee."
Section 7702, Revised Codes of 1921, defines a loan for use as "a contract by which one gives to another the temporary use and possession of personal property, and the latter agrees to return the same thing to him at a future time without...
To continue reading
Request your trial