Wagner v. Donald

• Citation: 67 Mont. 114
• Case Date: April 25, 1923
• Court: United States State Supreme Court of Montana

67 Mont. 114

WAGNER
v.
DONALD ET AL.

Supreme Court of Montana.

April 25, 1923.

Commissioners' Opinion.

Appeal from District Court, Yellowstone County; Robert C. Strong, Judge.

Action by Peter Wagner against George Donald and another. Judgment for plaintiff, and named defendant appeals. Reversed and remanded, with directions to grant a new trial.

James L. Davis, of Santa Ana, Cal., and Johnston, Coleman & Johnston, of Billings, for appellant.

Freeman, Thelen & Frary, of Great Falls, for respondent.

BENNETT, C.

Plaintiff, Peter Wagner, brought this action against defendant Geo. Donald and another on three promissory notes given by defendant Donald to his co-defendant, S. D. Davis, and by Davis indorsed to plaintiff. Davis was not served with process and did not appear at the trial.

Defendant by way of defense relied upon a failure of consideration, contending that plaintiff was not a holder in due course. In support of this contention he introduced evidence that plaintiff and Davis brought to Columbus, Mont., a shipment of thoroughbred stallions, offering them for sale; that he (Donald) had had a grade stallion which had been in service in his community so long that his usefulness there was very slight; and that he went to plaintiff and Davis and talked with them concerning a trade for a certain stallion then in plaintiff's possession. Details were discussed, but no arrangements were then made. Defendant testified that plaintiff told him that he would not be there later, but that Davis was his agent and “anything that Davis will do will be all right.” Some time later a trade was made, Davis completing it by taking the grade stallion and the notes sued on as the purchase price. At the time of taking the notes, Davis executed a warranty of the stallion. According to defendant, at that time Davis stated he was acting as plaintiff's agent and would take the notes in his (Davis') name and indorse them to plaintiff. The notes were indorsed, plaintiff claiming that he was a purchaser thereof in good faith, for value, and before maturity, and was therefore a holder in due course; and that the notes were not subject to the defense of failure of consideration. It was developed that the stallion did not live up to the warranty. The case was tried by the court with a jury in attendance. After the close of the testimony a motion for a directed verdict in favor of the plaintiff was granted and judgment on the verdict so ordered was entered. The appeal is by the defendant from the judgment.

The only question raised by the appeal is whether or not the evidence was sufficient to submit the case to the jury on the question as to whether or not the codefendant, Davis, was plaintiff's agent.

A motion for a directed verdict is in effect a demurrer to the evidence. It raises the question of the legal sufficiency thereof to establish the facts upon which a...