Bell v. Grimstad

11 Citing cases

  1. Olson v. McLean

    132 Mont. 111 (Mont. 1957)   Cited 5 times

    "* * * where the defense is payment, the burden rests upon the defendant to establish it by competent evidence." Bell v. Grimstad, 82 Mont. 185, 195, 266 P. 394, 397. See, also, Power v. Gum, 6 Mont. 5, 9 P. 575; Vesel v. Polich Trading Co., 96 Mont. 118, 28 P.2d 858; Rock Island Plow Co. v. Cut Bank Implement Co., 101 Mont. 117, 53 P.2d 116; McCaslin v. Willis, 197 Miss. 366, 19 So.2d 751, 156 A.L.R. 770, annotation at page 787. Thus it follows that plaintiff did make out a prima facie case, that the trial court committed no error in denying defendant's motion for nonsuit and that the verdict is not against the weight of the evidence. As was said by this court in Hill v. Frank, 118 Mont. 11, 25, 164 P.2d 1003, 1009: "By a long line of decisions this court is committed to the rule that we `will not overturn the findings of the trial court unless there is a decided preponderance of the evidence against them * * * and, when the evidence, fully considered, furnishes reasonable grounds for different conclusions, the findings will not be disturbed'. Allen v. Petrick, 69 Mont. 373, 222 P. 451, 452 * * *"

  2. Phelps v. Union Central Life Ins. Co.

    105 Mont. 195 (Mont. 1937)   Cited 18 times

    ( McGonigle v. Prudential Ins. Co., 100 Mont. 203, 46 P.2d 687; Wallace v. Wallace, 85 Mont. 492, 279 P. 374, 66 A.L.R. 587; Boyd v. Great Northern Ry. Co., 84 Mont. 84, 274 P. 293.) In Bell v. Grimstad, 82 Mont. 185, 266 P. 394, this court said: "From all the evidence, the question of whether payment for the sheep and Liberty Bonds had been made by Grimstad to the bank or to Craig, and whether Craig or the bank acted as the plaintiff's agent in receiving payment, was in our opinion a question for the jury. The rule is firmly established by a long list of decisions by this court that the jury is the trier of facts, and that no case will be taken from its consideration where the evidence is in conflict as to the material facts.

  3. Pankovich v. Little Horn State Bank

    66 P.2d 765 (Mont. 1937)   Cited 3 times
    In Pankovich v. Little Horn State Bank, 1937, 104 Mont. 394, 402, 403, 66 P.2d 765, 768, this court said: "We do not mean to hold that the correctness of the items of an account stated cannot be inquired into and corrected in case of mistake or error. That this may be done is well settled."

    44 which was paid to the bank by Burks on August 6th. The rule is well established that a case should not be taken [1] from the jury on motion for directed verdict when the evidence is such that reasonable men may draw different conclusions from it. ( Bell v. Grimstad, 82 Mont. 185, 266 P. 394; Claypool v. Malta Standard Garage, 96 Mont. 285, 30 P.2d 89.) On the other hand, if the evidence is so unsubstantial that it would be the duty of the court to set aside a verdict for plaintiff, if one should be rendered, then it is proper to take the case from the jury.

  4. Harris v. Schoonmaker

    50 Wyo. 119 (Wyo. 1936)   Cited 28 times

    39 P.2d 657; Coats v. General Motors, 39 P.2d 846. The motion admits all facts which the evidence tends to establish. Phillips v. Dale, 39 P.2d 546; Ward v. Coleman, 39 P.2d 546; Strahan v. Gas Company, 41 P.2d 41; Bell v. Grimstead, 266 P. 394; Mellon v. Kelley, 41 P.2d 52; Estate of Flood, 21 P.2d 579. The burden was on contestees. Re Will of Carr, 256 P. 390; In re Knutson's Will, 41 P.2d 799. By leaving out of the will and omitting those dependent on her bounty, is proof of mental incapacity, undue influence and lack of understanding. Meier v. Buchter, 94 S.W. 883. An unnatural disposition by will tends to discredit testamentary capacity.

  5. Rock Island Plow Co. v. Cut Bank Imp. Co.

    53 P.2d 116 (Mont. 1935)   Cited 5 times

    If the foregoing requirements as to pleading are not met, the court is justified in ignoring the issue attempted to be raised ( Menser v. Lea, supra; Crume v. Brightwell, supra), and, of course, that which must be pleaded must be proved, and, therefore, if the pleader fails in his proof of his necessary allegations, the court is likewise justified in ignoring the [9] issue. Likewise the plea of payment is an affirmative defense which must be proved by the one asserting it. ( Bell v. Grimstad, 82 Mont. 185, 266 P. 394.) To meet the foregoing requirements, the defendants proved the [10] delivery of notes aggregating something over $16,000, face value, for collection and application on the debt.

  6. McGonigle et al. v. Prudential Ins. Co.

    100 Mont. 203 (Mont. 1935)   Cited 15 times

    However, under the facts and the evidence disclosed in this case, we do not think that the rule is applicable or controlling here. Along with the rule just announced, it is equally well [2] established that no case should ever be withdrawn from the jury unless it follows as a matter of law that recovery cannot be had upon any view of the evidence, including the legitimate inferences to be drawn from it. (See Sprinkle v. Anderson, 57 Mont. 223, 187 P. 908; Wagner v. Donald, 67 Mont. 114, 214 P. 1099; Koerner v. Northern Pacific R. Co., 56 Mont. 511, 186 P. 337; Conway v. Monidah Trust, 52 Mont. 244, 157 P. 178; Bell v. Grimstad, 82 Mont. 185, 266 P. 394.) There is another well-established rule to the effect that the [3] credibility of witnesses and the weight to be given their testimony are questions for determination of the jury.

  7. Simons v. Jennings

    46 P.2d 704 (Mont. 1935)   Cited 7 times

    In other words, the testimony of the nurse is positive to the effect that the only bottle which contained bichloride was not located at the end of the line of bottles on the shelf, and the testimony of plaintiff is equally positive that it was the end bottle that was used. From such a conflict in the evidence different conclusions may be drawn, and it became a matter of weight as to what the fact really was. It was a situation wherein it was possible for a reasonable person to draw more than one conclusion, and therefore it was a proper question for the jury. ( Bell v. Grimstad, 82 Mont. 185, 266 P. 394; First National Bank v. Montana Cattle Loan Co., 72 Mont. 419, 234 P. 256; Vonault v. O'Rourke, supra.) It is argued that the evidence of the subsequent symptoms of plaintiff and the manner in which she was treated for those symptoms shows conclusively that a mistake was made, and that the defendant doctors considered that such had been the case.

  8. Stranahan v. Independent Nat. Gas Co.

    98 Mont. 597 (Mont. 1935)   Cited 12 times
    In Stranahan v. Independent Natural Gas Co., 98 Mont. 597, 41 P.2d 39, this court ruled that actions of this nature are legal rather than equitable in nature.

    ) On motion for nonsuit, no case should be taken from the jury when reasonable men may draw different conclusions from the evidence, or where there is substantial evidence to support the complaint, but only where from the undisputed facts the conclusion necessarily follows, as a matter of law, that a recovery cannot be had on any view which may reasonably be taken from the facts established. ( Claypool v. Malta Standard Garage, supra; Bell v. Grimstad, 82 Mont. 185, 266 P. 394.) In the consideration of a motion for nonsuit, the court must view the evidence in the light most favorable to plaintiff ( Johnson v. Herring, 89 Mont. 420, 300 P. 535; Boyd v. Great Northern Ry. Co., 84 Mont. 84, 274 P. 293), and this is true even though there is a discrepancy in the testimony of the several witnesses for plaintiff ( Hardie v. Peterson, 86 Mont. 150, 282 P. 494; Gohn v. Butte Hotel Co., 88 Mont. 599, 295 P. 262).

  9. Claypool v. Malta Standard Garage

    30 P.2d 89 (Mont. 1934)   Cited 5 times

    evidence by motion for nonsuit or for a directed verdict [citing Barrett v. Shipley, and Lee v. Stockmen's National Bank, supra]; but while the legal insufficiency or unsubstantial nature of the evidence may appear from the inherent weakness of the evidence itself ( McIntyre v. Northern Pacific Ry. Co., above [ 56 Mont. 43, 180 P. 971]), or because it is unreasonable or incredible in itself ( Vukmanovich v. State Assurance Co., 82 Mont. 52, 264 P. 933), or because it is from its very nature and the surrounding circumstances unworthy of belief ( Roman v. Albert, 81 Mont. 393, 264 P. 115), no case should be taken from the jury on motion for a directed verdict, when reasonable men may draw different conclusions from the evidence, or where there is substantial evidence to support the complaint, but only where from the undisputed facts the conclusion necessarily follows, as a matter of law, that a recovery cannot be had on any view which may reasonably be taken from the facts established ( Bell v. Grimstad, 82 Mont. 185, 266 P. 394)." The motion for nonsuit was in effect a demurrer to the [2] evidence introduced by the plaintiff.

  10. Millious v. Thompson

    20 P.2d 1060 (Mont. 1933)   Cited 1 times

    If recognized principles of ratification are applied, appellant should prevail. ( New Home Sewing Mach. Co. v. Songer, 91 Mont. 127, 7 P.2d 238; Renland v. First Nat. Bank, 90 Mont. 424, 4 P.2d 488; Bell v. Grimstad, 82 Mont. 185, 266 P. 394; United States Nat. Bank v. Chappell, 71 Mont. 553, 230 P. 1084.) It is a well-established rule of law that one paying a debt secured by a mortgage to a supposed agent of the owner of the mortgage is bound to ascertain the scope of the agent's authority; otherwise he assumes the risk incident to such failure to make inquiry. ( Cornish v. Woolverton, 32 Mont. 456, 81 P. 4. 108 Am. St. Rep. 598.)