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17 Mont. 563

Clarkson v. Kennett

Montana Supreme Court

Decided March 2, 1896

Montana Supreme Court · decided 1896-03-02

Assumpsit. Judgment was rendered for the defendant below by Milburn, J., on motion for nonsuit. Statement of the case by the justice delivering the opinion. The plaintiff brought this action for $310.68 for money alleged to be loaned and advanced by plaintiff to defendant • at the special instance and request of the defendant.

Cited by 1 later decisions — most recently May 1905

1 state decisions

Good law ✅— No negative treatment on recordhow we know

Reversed · Decided 1896-03-02

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De Witt, J.

¶1An 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.)

¶2Another 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 *565receipt of the wool money was not a condition for payment of the advances. The court clearly erred in granting this motion for non-suit.

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

¶4Reversed.

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