Lehman & Co. v. Skaden , 84 Mont. 283 ( 1929 )

This action was brought to recover rental for a portion of a certain building situated in Lewistown. The complaint alleged that plaintiff, as owner of the building, leased a portion of it to the defendants on January 1, 1924, for use as a restaurant, at the agreed rental of $125 per month; that the defendants were also to pay to plaintiff their proportionate cost of heating the building; that the defendants occupied the premises from January 1 until October 1, 1924, and became indebted to plaintiff because of the use of the premises, pursuant to this agreement, in the sum of $1,153.18; that no part has been paid except $75, leaving a balance due in the sum of $1,078.18, for which judgment was sought.

The answer of the defendant Munger admits plaintiff's ownership of the property in question, and puts in issue the other allegations of the complaint. The record does not disclose whether service of summons and complaint was had upon defendant Skaden, but no appearance in the case was made by him.

The evidence introduced by plaintiff showed that the lease of the premises was made to the defendant Munger individually, and failed to establish that Skaden was a party to the lease.

At the conclusion of plaintiff's case, and on motion of the[1] defendant Munger, the court granted a nonsuit upon the ground of a variance between the pleadings and proof. Judgment of dismissal was thereupon entered, and this appeal taken by plaintiff.

The only question presented for determination is the correctness of the court's ruling in granting the nonsuit. The law is settled in this jurisdiction that there is no variance between pleading and proof amounting to a failure of proof, where the complaint alleges a joint contract with two or more defendants and the evidence discloses a separate contract with only one of them. (Lee v. Hayden, 63 Mont. 589, 208 P. 596, and cases and statutes cited therein.)

The court erred in sustaining the motion for nonsuit and in entering judgment for defendant Munger. The judgment is reversed, and the cause remanded for a new trial. Remittitur forthwith.

MR. CHIEF JUSTICE CALLAWAY, and ASSOCIATE JUSTICES MATTHEWS, GALEN and FORD concur.