Jenderson v. Hansen , 50 Mont. 216 ( 1915 )

ME. JUSTICE SANNEB

delivered the opinion of the court.

Appeal by plaintiff from a judgment entered against him on a verdict of the jury, and from an order overruling his motion for new trial. His contentions are: That the verdict and judgment are not warranted by the evidence; that the court erred in certain rulings upon the exclusion and admission of testimony; that the court erred in refusing a certain offered instruction numbered 13.

The action is upon a contract entered into in February, 1912, incompletely evidenced by the following memorandum delivered to plaintiff by defendant: “This is to show that I have sold one car of oats to be loaded at Garrison at $1.15 per hundred. E. E. Hansen.” It was alleged by the plaintiff that he tendered defendant $100 as part payment and has been at all times “ready, willing, and able to do and perform all things” required of him by the contract, but that defendant refused to deliver the oats, notwithstanding demand, to the plaintiff’s damage. The effect of the amended answer is to deny the tender of $100 as part payment, the defendant’s refusal to deliver, and the damages, and to allege that the oats were to be delivered at Garrison upon payment therefor at the price stated; that the defendant was ready at all times to deliver and offered to deliver the oats; that he frequently requested plaintiff to receive and pay for the same as agreed, but plaintiff failed and refused so to do. The reply admits that defendant frequently requested plaintiff to come and receive the oats and pay for the same.

1. There was ample evidence to sustain the defendant’s [1] con-tention that delivery and payment were to be concurrent, at Garrison; and this contention the jury necessarily upheld by their verdict. The plaintiff was therefore required to show an offer and ability to receive the oats and pay for them at Garrison. (Rev. Codes, sec. 4903; Porter v. Plymouth Gold Min. Co., 29 Mont. 347, 101 Am. St. Rep. 569, 74 Pac. 938.) That he did not do this is clear from his own insistence that payment was to be made upon delivery to him at Butte, as well as from other circumstances disclosed in the record.

2. After the contract was entered into, and as part payment to insure the acceptance of the oats, plaintiff gave defendant [2, 3] a check for $100 on the State Savings Bank of Butte. The defendant took the check to the Larabie Bank at Deer Lodge to ascertain through inquiry of the State Savings Bank whether it was good. The inquiry was conducted by Mr. Gullette, and the answer was that there were not sufficient funds to meet it. Error is assigned upon the admission of this evidence, and also because the court required the plaintiff on cross-examination to answer if he had to exceed $50 in bank when the check was given. Whether the check was good or not was pertinent under the allegations of the complaint and upon the version of the contract sought to be maintained by the plaintiff. He had on his direct examination testified in support of bis version and to tbe giving of tbe cheek. This was sufficient to warrant tbe cross-examination complained of.

As to tbe inquiry, it could have been made of the State [4] Sav-ings Bank by the defendant in person. Of this there is not and cannot be any question. If he could make it in person he could make it by telephone. (Barrett v. Magner, 105 Minn. 118, 117 N. W. 245, 127 Am. St. Rep. 531, and note, p. 538 et seq.); and if he could make it directly he could make it through another.

3. Refusal of instruction No. 13 was entirely justified. It assumes a presentment of the check for payment at the Larabie [5] Bank and refusal by that bank, as a basis for defendant’s position. There was no such evidence and the defendant took no such position.

The judgment and order appealed from are affirmed.

Affirmed.

Mb. Chief Justice Bbantlv and Mb. Justice Holloway concur.