Clarkson v. Kennett

44 P. 88, 17 Mont. 563, 1896 Mont. LEXIS 39

• Court: Montana Supreme Court
• Decided: March 2, 1896
• Status: Published

Opinion

De Witt, J.

An examination of this record satisfies us that there is ample evidence tending to show that plaintiff loaned and advanced this money to the defendant. It seems, however, that the court granted the non-suit on the ground that the evidence showed that the money was. not paid to the defendant directly, but was paid to other persons. The fact is that the money was paid to other persons, but .upon the express orders and requests of the defendant to pay to such other persons, who, according to plaintiff’s testimony, were creditors of the defendant. This was evidence supporting the allegation of the complaint of money advanced to defendant. (Abbott’s Trial Ev., p; 240, § 4, and cases cited.)

Another ground upon which the district court seems to have acted is that defendant promised to repay the money out of the receipts from the sale of wool, and that it did not appear that there had been any settlement between plaintiff and defendant about the wool. But whatever appeared as to paying the debt out of the wool receipts was simply a method or means by which defendant expected to raise the money. The receipt of the wool money was not a condition for payment of the advances. The court clearly erred in granting this motion for non-suit.

■ The judgment will therefore be reversed; and a new trial ordered.

Reversed.

Pemberton, C. J., and Hunt, J., concur.