McDonald v. Peters

272 P.2d 730, 128 Mont. 241, 1954 Mont. LEXIS 41

• Court: Montana Supreme Court
• Decided: May 19, 1954
• Docket: 9235
• Status: Published

Opinions

MR. JUSTICE FREEBOURN:

This is an action for money loaned in which the jury found its verdict for defendant and respondent Peters. From a judgment in favor of Peters the plaintiff and appellant McDonald appeals.

Plaintiff alleged in his amended complaint: “ That from the first day of June 1951 to the 30th day of October 1951 the plaintiff loaned to the defendants at their special instance and request at different times, sums of money amounting to a total sum of seventeen thousand three hundred and four and no/100 dollars ($17,304.00) which the defendants promised to repay to the plaintiff, on demand,” and “that the defendants have repaid all of the money loaned to them as aforesaid, except the sum of four thousand eight hundred and eight and no/100 dollars ($4,808.00) and that the defendants refuse to pay the said balance of $4,808.00, although plaintiff has demanded that defendants pay said balance.”

Such allegations were denied by the defendants Peters and his wife, Rose Peters, and the action as to Rose Peters was dismissed during the trial.

Appellant’s brief contains the following:

“The theory of the plaintiff’s case is that he loaned $12,150 to the defendants for the purchase of mature cows and that all of these loans were repaid except $4,807.76.

“The theory of the defendants’ case is that the plaintiff did not loan tbe defendants any money for the purchase of cows, but that all the checks given by the plaintiff to Jim Peters were for the purchase of contracts with Indian ranchers to deliver calves in the fall.”

The trial judge, by appropriate instructions, informed the jury that the parties had adopted such theories.

Under the allegations of the amended complaint and under his own theory, the burden rested upon plaintiff to prove by a preponderance of the evidence that he had loaned the money in question to defendant before he was entitled to a verdict against defendant.

“The party holding the affirmative of the issue must produce the evidence to prove it; therefore the burden of proof lies on the party Avho Avould be defeated if no evidence were given on either side.” R. C. M. 1947, sec. 93-1501-1. The burden throughout is on him who has the affirmative of an issue. DeSandro v. Missoula Light & Water Co., 48 Mont. 226, 136 Pac. 711. Under this section the party asserting a right in any case has the burden of proving1 each of the material allegations of his cause of action. Tucker v. Missoula Light & R. Co., 77 Mont. 91, 250 Pac. 11.

This being a laAV case, it Avas for the jury to determine, under the trial court’s instruction, whether or not plaintiff had sustained the burden of proof and was entitled to a verdict herein. It Avas also the province of the jury to determine Avhat the facts were and to Avhich witnesses credence should be giA7en in determining such facts.

‘1 All question of fact [ in laAV cases], where the trial is by a jury * * ® are to be decided by the jury * * R. C. M. 1947, sec. 93-2501-1. See Gilmore v. Mulvihill, 109 Mont. 601, 98 Pac (2d) 335. “The jury * * * are the judges of the effect or value of evidence addressed to them * * R. C. M. 1947, sec. 93-2001-1.

Under section 93-2001-1, supra, the trial court, as was done in the instant case, should on all proper occasions instruct the jury that:

“2. They are not bound to decide in conformity with the declarations of any nmnber of witnesses, which do not produce conviction in their minds, against a less number, or against a presumption or other evidence satisfying their minds;

“3. That a witness false in one part of his testimony is to be distrusted in others;

“4. That * * * the evidence of the oral admissions of a party [should be viewed] with caution;

“5. That in civil cases the affirmative of the issue must be proved, and when the evidence is contradictory the decision must be made according to the preponderance of the evidence * *

Plaintiff was entitled to a verdict only if he proved the loans, as alleged in his amended complaint, not only by a preponderance of the evidence, but by satisfactory evidence.

“The evidence is deemed satisfactory which ordinarily produces moral certainty or conviction in an unprejudiced mind. Such evidence alone will justify a verdict. * * * ” R. C. M. 1947, sec. 93-301-13.

Plaintiff’s own testimony, given on direct and cross-examina tion, would tend to create in the mind of an unprejudiced person a doubt as to the justice of his cause. Certainly, after one reads all the evidence and the instructions given by the trial judge, one must conclude that the jury could properly reach no other verdict but one in favor of defendant.

The amended complaint alleges that plaintiff loaned defendant “sums of money amounting to a total sum of seventeen thousand three hundred and four and no/100 dollars ($17,-304.00).” Yet his testimony shows:

“Q. Have you any other checks in your possession other than the exhibits 1 to 10 which represent monies loaned by you to J. D. Peters? A. Loaned to him?

“Q. Yes. A. No, I haven’t.

“Q. Just the total of the amount set out in plaintiff’s exhibits 1 to 10? A. $12,150.00, I believe.

“Q. You made no other loans to Mr. Peters? A. I don’t think so.

“Q. How does it happen in your complaint — apparently there is no complaint.

“The Court: Just a minute. It is not verified. The first amended complaint is signed by the attorneys but the verification is not signed.

“Q. Plow does it happen that you stated you loaned him $17,304.00? A. 'Well, they wrote this up without me being' around there. That’s for sure. * * *

“Q. Your complaint states you loaned him seventeen thousand dollars. That is not correct, is it ? A. It is not. I loaned $12,150.00 on cows and he has $19,200.00 on calf money which was given to him. * * *

“Q. This complaint you are now bringing this lawsuit on is not true, is it? A. I was under the impression we had a cow deal on the start and they brought in a calf deal. ’ ’

Questioned as to the original complaint which was introduced in evidence as defendant’s exhibit No. 12, which alleged that “Joe McDonald and Charles Hodson” were plaintiffs and ‘ ‘ are now and all times mentioned in this complaint, have been co-partners engaged in the business of buying and selling livestock” and that “defendants are indebted to the plaintiffs in the sum of four thousand eight hundred and eight and no/100 dollars for money had and received by the defendants to the use of the defendants, ’ ’ the testimony of plaintiff shows:

“Q. You signed the defendant’s exhibit No. 12 in which Joe McDonald and Charles Hodson are named jointly as the plaintiffs and yet your testimony is here now that Mr. Hodson never had any interest in the deal? A. That is right; he never did.

“Q. How does it happen that his name was on that first complaint and you signed a verfied complaint stating that? A. Mr. McDonald [one of plaintiff’s attorneys] had made a mistake when he wrote that up * * *.

‘' Q. Did you read the complaint before you signed it ? * * * A. I probably never.

“Q. You signed a statement [the verification] to the effect that you have read the within complaint and know the contents thereof and that the same is true except as to matters stated on information and belief. You signed that statement without reading the complaint? A. I probably did.”

In making out his case in chief plaintiff testified:

“A. The first dealing I ever had with Jim was, I think, [sometime in June 1951]. I either bought some calves, contracted some calves, or I bought five yearling steers from him.

“Q. You paid for these in full? A. Yes, sir.

“Q. And did you have some other transaction ivith him? A. Right after that I think I bought two cows and a yearling from him.

“Q. Did you pay for those in full? A. Yes, sir. * * * Well, he got some cattle that he had shipped either from Butte or Great Falls — I am not sure which town — and they held up the money for him on these brands.

Q. * * * Now, I ask you about the first transaction relating to this lawsuit * * *. A. He came down to the house and the cattle he had shipped — the brands was tied up and the money was held on account of the brands. * * * So I loaned —gave him two thousand dollars * * * and whenever the check came in he would endorse the check and give it to me.

“Q. Did he ask for a loan at this time ? A. No, I told him as far as what money I have he could make on buying them cows was his. I let him use this money.”

Exhibits 1 to 10 (checks totalling $12,150), being called to his attention, he testified: “Well, they all represent money that I gave Mr. Peters — * * * to buy cattle with.”

In rebuttal plaintiff placed in evidence checks, plaintiff’s exhibits 148 to 162, amounting to $17,500 which he claimed covered the calf deals with defendant.

The court, however, by instruction No. 7, to which no objection was made, limited the purpose of such checks, and instructed the jury as follows: “You are instructed that you cannot consider plaintiff’s exhibits 148 through 162 for the purpose of establishing any indebtedness set out in plaintiff’s amended complaint, or for the purpose of reaching any amount which plaintiff in his complaint alleges as having been loaned by him to the defendant, J. D. Peters.”

Instructions given, whether right or wrong, constitute the law of the case and the jury must follow them. Metcalf v. Barnard-Curtiss Co., 120 Mont. 50, 180 Pac. (2d) 263.

■Although the burden of proof was upon plaintiff, nevertheless the defendant offered proof and the jury could have found such to be the fact, that the money given defendant by plaintiff was not a loan for defendant’s personal use, but was money to be used and was used by defendant to buy calves, for future delivery, and that in buying such calves defendant was using such money and acting for plaintiff.

The testimony of Rose Peters shows that the calves referred to are “the Indian calves on the Browning Blackfeet Indian Reservation. * * * and Jim says, ‘I guess I am going to let Charlie [Hodson] have these Indian calves.’ He said ‘Thirty-three cents a pound for them and weighed straight up’ — that means weighed without any shrink taken off. * * * then for a couple of weeks after that he [Peters] kept on contracting the calves from different Indians and on his own then he went and called Charlie Hodson if he wanted the calves. * * * Charlie Hodson told him on the phone to get in touch with Joe McDonald. * * * [Peters did get in touch with] Joe McDonald. * * * he gave Jim a check to cover payment for twenty dollars a head down on these calves for Charlie Hodson. * * * Then we just went on and kept contracting calves and every time Jim would get a hundred head of calves then he would sign a contract between himself and Joe McDonald and Joe McDonald would give him a check for twenty dollars a head down on those calves.”

Defendant’s exhibits 13 to 133 were “* * * carbon copies of the contracts that were signed up between Jim Peters and Blackfeet Indians on calves and also the checks, the cancelled checks of Jim Peters that were paid on those contracts.”

As to defendant’s exhibits No. 134 to 139, “These are carbon copies of contracts that were signed between Jim Peters and Joe McDonald”and they refer "to the self-same calves that were contracted from the Indians by Jim Peters upon the Browning Reservation. ’ ’

Referring to plaintiff’s exhibits 1 to 10, covering the money plaintiff said he loaned defendant, Mrs. Peters testified: ‘ ‘ They are checks that were given to Jim from Joe McDonald as part of that twenty dollars a head that he paid out on his calves. ’ ’

According to Mrs. Peters the money advanced to the Indians on the calves amounted to $18,522.96; "$5,015.21 was money Jim Peters put in on his own and $13,507.75 was Charlie Hod-son and Joe McDonald’s money.” Speaking of how this money Avas to be returned to McDonald, Mrs. Peters testified: "Well, Jim Peters and Charlie Hodson and Joe McDonald had an agreement that when the calves came in that Mr. McDonald would take all the advance money that had been paid, regardless of whether it Avas Mr. Peters’ or Charlie’s money or his, and he would collect all the advance money until the calves were all delivered and the contracts had been all filled by the Indians; then they were to get together, of course, and have a settling up and find hoAV much extra money that Jim had paid on those calves, and he Avas to get this commission and the shrinkage — 2% shrink was to be paid to him at the end of the deal. * * * It [Jim’s commission] Avas a cent a pound. * * * 2% shrink is tAvo dollars a hundred * * *.”

The evidence would indicate that all of the calves contracted for and upon Avhich money had been advanced to Indian oAAmers were not delivered, which resulted in, as Mrs. Peters testified, McDonald saying: " ‘These cattle better all come in or somebody is going to get sued.’ * * * Joe McDonald said at that t'me, ‘Well they haven’t all come in yet. We will set another shipping date and keep trying until Ave get them all in. ’ Next thing Ave knew our checks both started to bounce up at BroAvning and our bank accounts were tied up — both of us. * * * Charlie Iiodson and Joe McDonald attached both of them as far as we knew. The last thing we knew of the deal they were going to set another shipping date and try to get the balance of these calves. * * * the bank accounts were tied up and an attachment put on our bank accounts and we were never — he was never able to finish the deal to get to the end — the final settling up.” The calves contracted for were, Eight hundred, I think, upon which $20.00 a head was paid down, and the calves actually delivered were 641; something like that.”

Appellant complains of the admission of his original complaint in evidence over his objection. Such original complaint showed plaintiff’s position therein to be inconsistent with the position taken in the amended complaint, and allegations in such original complaint tended to contradict parts of his oral testimony. Such original complaint was properly permitted in evidence. Johnson v. Butte & Superior Copper Co., 41 Mont. 158, 108 Pac. 1057, 48 L. R. A., N. S., 938; 31 C. J. S., Evidence, sec. 303(c), p. 1079.

We have examined the other assignments of error and find no merit in them.

For the foregoing reasons the judgment of the district court is affirmed.

MR. CHIEF JUSTICE ADAIR and MR. JUSTICE BOTTOMLY concur.