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eBook details

• Title: Russell v. Sunburst Refining Co.
• Author : Supreme Court of Montana
• Release Date : January 22, 1928
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 74 KB

Description

Claim and Delivery — When Cross-complaint Proper — Pleading — Nature of Pleading Determinable by Substance Rather Than by Name Given it by Pleader. Pleading — Character Determinable by Substance Rather Than by Name Given It. 1. The character of a pleading is determinable by its substance rather than by the name given it by the pleader. Claim and Delivery — Counterclaims and Cross-complaints — When Cross-complaint Proper Pleading. 2. In a claim and delivery action plaintiff merely prayed for the possession of a gravel crushing machine sold to defendant under a conditional sale contract, on failure of the latter to pay installments due on the purchase price. Defendant pleaded a cross-complaint, erroneously designating it "counterclaim", to recover damages for breach of warranty. When defendant offered evidence to prove damages the court refused to hear it on the ground that since plaintiff asked for possession only, the claim for damages could not tend to diminish or defeat plaintiffs recovery as required by the counterclaim statute (sec. 9138, Rev. Codes). Held, that treating the misnamed counterclaim as a cross-complaint (under Rule 1, supra), the court erred in that the relief sought by a cross-complaint need not (under section 9151) operate to diminish or defeat plaintiffs recovery but may be distinct from that demanded by plaintiff, so long as it relates to the transaction or subject-matter upon which the action is based, (overruling certain cases). Counterclaims and Cross-Complaints — Suggestion as Future Legislative Action. 3. Semble: Code sections 9138 and 9151, Revised Codes, relating, respectively, to counterclaims and cross-complaints, to a large extent afford duplicate remedies; as pointed out by a text-writer, there appears to be a trend toward liberality in the use of both, and it would seem that the legislature might well consolidate the remdies, but until then the supreme court must give effect to both in the manner which appeals to it to be consistent with the legislative intent.

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