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eBook details

• Title: Courtney v. Gordon
• Author : Supreme Court of Montana
• Release Date : January 02, 1925
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 60 KB

Description

Personal Property ? Sales ? Action for Price ? Defenses ? Breach of Warranty ? Failure of Consideration ? When not Available ? Fraud ? Pleading ? Insufficiency ? Change of Venue ? Insufficiency of Motion. Sales ? Payment ? Venue. 1. Where a contract of sale of personal property provides that payment shall be made in a county other than the one in which action is commenced, the defendant is entitled to a change of venue to that county, but where it does not so provide, the presumption is that payment is to be made at the creditors residence or place of business and the action is triable in his county. Same ? Motion for Change of Venue ? Legal Conclusions ? Insufficiency. 2. In an action on a contract for the payment of money which did not provide for the place of payment and was commenced by - Page 409 the creditor in the county of his residence, an allegation in defendants affidavit in support of his motion for change of venue to the county of his residence, that the contract "was to have been performed" in the latter county, was the assertion of a legal conclusion and without evidentiary value. Same ? Change of Venue ? Burden upon Movant. 3. The burden is upon the party moving for a change of venue, to disclose the facts which entitle him to the change; hence where defendant instead of setting forth the facts entitling him to a change on the ground that the contract was to be performed in his county, simply alleged a conclusion to that effect, that his place of business was in that county and that he had been served with summons there, the motion was properly denied. Trial ? Cross-examination on Immaterial Matters ? Exclusion not Error. 4. The provision of section 10665, Revised Codes of 1921, that a party may cross-examine a witness of his opponent on any facts stated in his direct examination or connected therewith, has reference to material matters; hence where plaintiff, though relieved by admissions in the answer from offering any evidence, did testify to immaterial matters, refusal to permit defendant to cross-examine him was not an abuse of discretion. Sales ? Action for Purchase Price ? Defense ? Breach of Warranty ? When not Available. 5. Under the rule that so long as the buyer of personal property is in the undisturbed possession of it, he cannot recover damages for a breach of warranty of title or set up want of title in the seller as a defense to an action to recover the purchase price, held that in the absence of an allegation that defendant was disturbed in his possession, his answer did not state a counterclaim or a defense. Same ? Failure of Consideration ? Buyer cannot Rescind Until Disturbed in Possession. 6. A buyer cannot rescind a sale of personal property on the ground of failure of consideration until he has been disturbed in his possession or otherwise suffered damages. Same ? Defense ? Fraud ? Insufficient Pleading. 7. Where defendant in an action to recover the purchase price of personal property in his answer pleaded that the representation of plaintiff that he had title to the property was false, but did not allege that plaintiff knew it to be false, that it was made in a manner not warranted by the information possessed by the seller, that it was made with intent to deceive, that the buyer believed it to be true or relied upon it, that he was deceived by it and misled to his prejudice, the pleading was insufficient to warrant rescission of the contract on the ground of fraud.

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