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Mr. J. O. Davies, for Appellants, submitted a brief and made oral argument.

Mr. Alexander Mackel submitted a brief in behalf of Respondents.

MR. CHIEF JUSTICE BRANTLY delivered the opinion of the court.

Plaintiffs brought this action as copartners doing business in Butte, Montana, under the firm name of Crystal Ice Company. They sought to charge the defendants, husband and wife, as copartners under the firm name of Oro Fino Ice Company, for a balance of $274.71, which is alleged to be due on account for goods, wares, and merchandise sold and delivered to defendants, no part of which had been paid. The defendants interposed a general denial. At the close of plaintiff's evidence, the court directed a nonsuit as to the wife. The jury returned a verdict against the defendant Peter Linden for the full amount claimed, and judgment was entered accordingly. The case comes to this court on appeals by this defendant from the judgment and an order denying his motion for a new trial. Several assignments of error are made by counsel, but only one of them demands special notice.

The evidence introduced on the part of plaintiffs tended to show the following: That the defendant is the owner of an ice pond from which he harvests and stores ice for sale; that prior to 1907 he had been leasing the pond to plaintiffs for $800 per year; that during the year 1907 the plaintiffs had purchased ice from him at the rate of $2.50 per ton; that payment was made to him by the delivery of ice by plaintiffs to certain customers of his, with the agreement that he should collect the current bills from these customers, and retain the amounts of them; that at the beginning of the year 1908 the defendant was informed by plaintiffs that the agreement was ended; that it was then agreed that plaintiffs should for a short time longer continue deliveries to defendant's customers as theretofore because he was not then

in a situation to care for them, and that he was to collect the current bills and pay the amounts over to plaintiffs, retaining ten per cent to compensate him for his trouble; that this arrangement was continued up to the end of June, when defendant assumed charge of his own customers; that defendant accounted for all amounts collected by him up to the end of March, but after that time he ceased to account; that on June 29 he paid plaintiffs $50, and at different times sold and delivered to plaintiffs 150 tons of ice at $2.50 per ton; that these sales were made outright for a stipulated price in money; and that defendant after being given credit for the amount due for ice delivered and the cash payment made, was indebted to the plaintiffs for the full amount demanded. The defendant introduced evidence tending to show that the arrangement entered into in 1907 was at the beginning of 1908 renewed to cover the months of January, February and March; that on April 1 it was agreed that the arrangement should be continued in force until the defendant could take charge of his customers, which he did at the beginning of July; that, when the last agreement was made, it was stipu lated that defendant, though collecting as before, should not pay over the amount of his collections, but should discharge the indebtedness to become due to the plaintiffs in that behalf by delivering to them ice as they needed it at any time prior to January 1, 1909, at the price of $2.50 per ton; that defendant was able and willing at any time to deliver an amount sufficient to discharge the balance due from him and repeatedly offered to do so; that he did deliver 150 tons, but that plaintiffs refused to allow him to make further delivery. He stated that in one instance plaintiffs refused to accept delivery of ice actually hauled to their place of business.

From this brief summary it is apparent that there was a conflict in the evidence as to what the terms of the contract were. If the plaintiffs' theory was the correct one, they were entitled to recover; on the other hand, if the agreement was that defendant should reimburse plaintiffs for the amount collected for the months of April, May, and June by delivery of ice at the stipu

lated price, they could not recover except for damages, upon allegation of the agreement as made and a breach of it by the defendant by a failure to perform it according to its terms (Clark v. Pinney, 7 Cow. (N. Y.) 681; Cummings v. Dudley, 60 Cal. 383, 44 Am. Rep. 58; Page on Contracts, sec. 1392.) Parties may stipulate for the discharge of their obligations in money [1] or any other lawful medium. The office of the court is to ascertain their intent and understanding, and not to disregard the agreement which they themselves have made. If it was the agreement that defendant was to deliver ice in payment, plaintiffs had a right to demand ice. So the defendant had the right to acquit himself of his obligation by delivering ice. Before the breach of such an agreement by the debtor, the creditor cannot elect to have payment made in money, but must permit an acquittance by the debtor under the terms of the agreement. (Page on Contracts, supra; 2 Parsons on Contracts, 808, 809; Ragland v. Wood, 71 Ala. 145, 46 Am. Rep. 305; Drake v. Harrison, 69 Wis. 99, 2 Am. St. Rep. 717, 33 N. W. 81; Pierce v. Marple, 148 Pa. 69, 33 Am. St. Rep. 808, 23 Atl. 1008; Roberts v. Beatty, 2 Pen. & W. (Pa.) 63, 21 Am. Dec. 410.)

Counsel for defendants requested the court to submit an instruction to the jury, which embodies the rule of law applicable to his theory of the case, as follows: "Peter Linden claims that the ice so delivered to his customers by the plaintiffs was under a contract whereby he agreed to pay for the same, and the plaintiffs agreed to accept payment for the same in ice delivered to the plaintiffs by him at the rate of $2.50 per ton at any time prior to the first day of January, 1909; that he, Peter Linden, was ready, willing, and able at all times to perform his part of the contract, but that the plaintiffs refused to accept the ice in payment thereof from him. If you find that Peter Linden's contentions are true, you are instructed that your verdict should be for the defendant Peter Linden and against the plaintiffs." It was prejudicial error to refuse to give this or a similar instruction; for the defendant was entitled to have the case submitted to the jury so as to permit them to reach a conclusion upon the evidence from his point of view.

Counsel for plaintiffs suggest that the court was justified in refusing the instruction, because the expressions "Peter Linden [2] claims," etc., and "if you find Peter Linden's contentions are true," etc., particularize his testimony, and are thus implied comments upon the weight of it. We do not think it subject to criticism for this reason. But, even so, since he was the only witness who gave testimony tending to show the terms of the contract to be as he claimed, the jury could not have been misled by it. Manifestly, the jury could not have found in his favor unless they believed him; and, if they did, they could not have found otherwise.

The judgment and order are reversed, and the cause is remanded for a new trial.

Reversed and remanded.

MR. JUSTICE SMITH and MR. JUSTICE HOLLOWAY concur.

SANDEEN, RESPONDENT, v. RUSSELL LUMBER CO.,

APPELLANT.

(No. 3,118.)

(Submitted March 22, 1912. Decided March 29, 1912.)

[122 Pac. 913.]

Contracts of Sale-Mutuality - Evidence-Letters and TeleAdmissibility-Pleadings-Amendments-Discretion

grams

-New Trial-Newly Discovered Evidence-When Refusal Proper.

Contracts of Sale-Mutuality.

1. A contract for the sale of farm produce which, while giving the right to the buyer to fix the date of delivery, also provided that all of it must be called for by him before a certain date, was not void for want of mutuality upon the alleged ground that its terms left it optional with him whether he would or would not call for delivery. Same-Evidence-Letters and Telegrams-Admissibility.

2. Letters and telegrams sent by plaintiff in an action for breach of a contract of sale of farm produce to defendant were admissible in evi45 Mont.-18

dence in support of his allegation that he had made repeated demands upon the latter for delivery.

Pleadings-Amendments During Trial-Discretion.

3. An application to amend a pleading so as to correspond to the proof is addressed to the sound discretion of the trial court; in the absence of any abuse thereof its action will not be disturbed on appeal.

Same.

4. Where defendant did not request a continuance or suggest to the court that he was taken by surprise and not prepared to meet the proof under an amendment to the complaint asked for during the course of trial, nor amend his answer to meet the new allegation, but proceeded with the trial without further objection, the action of the court in permitting the amendment may not be said to have been in abuse of discretion.

New Trial-Newly Discovered Evidence-When Refusal Proper.

Same

5. A new trial on the ground of newly discovered evidence was properly denied, where the application was not accompanied by the affidavits of the two alleged newly discovered witnesses, one of whom was beyond the reach of process issued from a court of this state, and there was no showing that he would testify if a new trial were granted, nor that they were not present at trial or that their testimony was not procurable at that time.

Discretion.

6. The granting or refusing of a new trial on the ground of surprise or newly discovered evidence rests largely in the discretion of the trial court, and where an abuse of discretion is not disclosed by the record, its ruling will not be disturbed on appeal.

Appeal from District Court, Yellowstone County; Frank Henry, Judge of the Sixth Judicial District, presiding.

ACTION by C. E. Sandeen against the Russell Lumber Company. From a judgment for plaintiff and an order denying its motion for new trial, defendant appeals. Affirmed.

Messrs. Noyes & Noyes, and Mr. Lou. W. Chapple, for Appellant, submitted a brief; Mr. Ray E. Noyes argued the cause orally.

Hayne, in his work on New Trials, lays down the following requirements, which should appear on an application for a new trial on the ground of newly discovered evidence: (a) that the evidence, and not merely its materiality, be newly discovered; (b) that the evidence be not cumulative merely; (c) that it be such as to render a different result probable on a retrial; (d)

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