(Download) "Roper v. Caterpillar Tractor Co. Et Al." by Supreme Court of Montana ~ eBook PDF Kindle ePub Free
eBook details
- Title: Roper v. Caterpillar Tractor Co. Et Al.
- Author : Supreme Court of Montana
- Release Date : January 13, 1934
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 76 KB
Description
Submitted September 27, 1934. Claim and Delivery — Action on Undertaking — Conditional Sale Contracts — Time of Essence — Waiver — Dismissal of Original Action — Liability of Sureties — Compromise and Settlement — Damages Recoverable — Promissory Notes — Negotiable Instruments — Payment Properly Refused Where Note not Produced — Appeal and Error — Harmless Error. Suretyship — Sureties Favorites in the Law — Extent of Rule. 1. Though sureties are, in a sense, favorites in the law, such rule does not prevent a recovery when the facts are sufficient to show that the provisions of a bond given by them have been breached. Claim and Delivery — Action on Undertaking — Dismissal of Original Action — Sureties not Discharged from Liability — Compromise and Settlement. 2. Where a debtor agrees to pay a debt admittedly due, a compromise — a matter of contract requiring a meeting of minds — does not result; hence where a tractor had been sold on a conditional sale contract and the seller had instituted an action in claim and delivery for failure of payment of an installment and had caused it to be seized, and shortly thereafter payment was made and the action dismissed by plaintiff, the assertion of the surety on the undertaking in claim and delivery, in an action for damages by the buyer, that both principal and surety had been discharged by compromise and settlement may not be sustained. Same — Dismissal of Action by Plaintiff Constitutes Breach of Undertaking. 3. Dismissal, by plaintiff, of an action in claim and delivery in which he secured temporary possession of personal property by furnishing the undertaking required, constitutes a breach of the undertaking in so far as it binds principal and surety to a prosecution of the action. Same — Dismissal of Action by Plaintiff — Damages Recoverable on Undertaking. 4. Where an action in claim and delivery is not prosecuted with effect, or a non-suit or dismissal occurs, the condition of the undertaking in that behalf is breached, and an action lies to recover, not merely nominal damages, but damages to an amount not exceeding the penalty of the undertaking.
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