Reports of Cases Argued and Determined in the Supreme Court of the State of Montana from December Term 1868, to Volume 12
This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1893 edition. Excerpt: ...for Respondent. The appellant seeks to avoid paying for certain extras which it is alleged and shown were expressly ordered by him, and for which he specifically promised to pay, and to do this makes the remarkable plea that he and plaintiff did not proceed according to the terms of the written contract in regard to extras. The allegations and proof are conclusive that he is estopped from any such defense. The extras were not furnished under the written contract, but on subsequent verbal agreements of the parties. That an oral agreement can be made subsequent to and modifying a written one would seem too plain to admit of argument. (Bishop on Contracts, 812; Kalkmann v. Baylis, 17 Cal. 291; McFadden v. O'Donnell, 18 Cal. 160; Lloyd on Building Contracts, p. 196.) Especially is this so if there be a special promise, as there was in this case, to pay for the same. (Badders v. Davis, 88 Ala. 367; Delaney v. Linder, 22 Neb. 274; 2 Jones on Liens, 1441.) In allowing a reasonable attorney's fee as costs the lower court acted in accordance with the legal duty imposed upon it by the statute. (Acts 1889, p. 172.) Counsel for appellants are mistaken in supposing this act to be an amendment of section 1394 of the Compiled Statutes. It is apparent from its terms that it was intended as an additional section to the chapter of the Compiled Statutes relating to liens. If the act in all its parts is read there will be _ no difficulty in ascertaining what the legislature intended by its passage, and this we understand is the paramount duty of the courts in the construction of statutes. A similar statute of California has been repeatedly upheld. (Cal. Code Civ. Proc. 1195; Rapp v. Spring Valley Gold Co. 74 Cal. 532;...
- Paperback | 242 pages
- 189 x 246 x 13mm | 440g
- 13 Sep 2013
- Illustrations, black and white