The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1899-07-18
STATE SUPREME COURT
District Court of Silver Row
Sustained.
IN The FRANKLIN CASE
a Demurrer in the Whiteside Libel su,t
Against the Independent-Insufa-
cheney OF the Petition Is
Alleged-Cases Set.
Special Dispatch to the Standard.


Helena July 1.-THE supreme court
to-day affirmed the district court Of
Silver Bow in the case of ]. Franklin
VS.. Mary and Carl Schultz, an action 10
recover $497.75 claimed to be the bal
ance due the plaintiff upon the contract
for building for defendants two-story
and basement brick house in Butte. The
contract provided that the work should
De done in accordance with the plans
and specifications. This the defend
ants claimed the plaintiff had not done,
as the plastering had not been finished
in one of the rooms, the fiues were left
diminished and no proof presented that
all outstanding claims had been paid.
DEFENDANTS refusing to pay the bal
ance due, the plaintiff declined to turn
over the keys to the house. Defendants
erected an entrance and this act the
plaintiff claimed vitiated the contract.
Inc case was tried in the lower court
without jury and judgment for the
defendants was rendered. Franklin
appealed. The supreme court in affirm
ing the lower court, in an opinion by
justice Pigott, said in part:
NO error was committed in ordering
Judgment for the defendants The con-
tract specifies the event upon the hap
pening of which and of others the last
payment should be made, namely, the
production of satisfactory proof that
there are no claims or liens against the
building. This provision is reasonable
and one where, in view of the statutes
Of Montana permitting liens to be filed
by sub-contractors, ordinary prudence
would suggest for the protection of the
owner of the property about to be i'm
proved. The performance of this con-
dition, or it's waiver, is precedent to the
right of payment; the final installment
will not mature until the conditions
shall have been performed. This is not
an action to recover what the services
and materials We're reasonably worth.
1t is to recover the agreed price fixed
by an express contract in writing. The
evidence does not tend to prove sub
stantial performance by the plaintiff CT
the contract nor, under the circum-
stances, can it be successfully main
tanned that the failure to plaster or the
omission to build the flue was uninten-
tional or a mere oversight. The plain
tiff may lawfully insist upon payment
only when the conditions on which
payment is due have been performed.
but it is argued that the defend
ants, by taking possession of the build
ing, waived any further compliance on
the part of the plaintiffs with the terms
of the contract. We think, however,
there was not sufficient proof of IL
waiver or of an acceptance of the
building as in compliance with the con-
tract to have justified the court in
citing the cause for the plaintiff
A demurrer was filed with the court
to-day to the petition for mandamus
recently instituted by the Independent
Publishing company to compel Judge
D. F. Smith of Kallspell to show cause
why he has not granted the motion for
a change of venue from Kalispell to
Helena in the Whfteside damage suit.
The demurrer alleges the insufficiency
of the petition.
The court to-day set the following
cases for hearing at the resumption OF
the court after vacation, which will
commence about the first of next
month: Oct. 2, Wastle VS.. Montana
Union Railway company; Oct. 3, Smith
VS.. Denniff Oct. 4, Whitcomb VS.. N. h.
Mining company; Oct 5, Deloughrey VS..
Kinds; Oct. 5, Cobban VS.. Kinds; Oct.
g. state VS.. Pei; Oct. 10, state VS.. Shep-
herd; Oct. II, Penwell VS.. Lewis AMI
Clarke county; Oct. II, state ex rel, In
dependent Publishing company VS..
Smith, Oct. 16, Bandman VS.. Davis;
Oct II, Horsk VS.. Shea: Oct. IS, Noyes
VS.. Ross; Oct 49, O'Rourke VS.. Sher-
man: Oct %, Montana Mining company
VS.. st. Louis Mining company; Oct. "a,
Murray vs. Polglass ct al; Oct. "a,
Murray VS.. Polglass ct al: Oct. 20,
Harding VS.. Mclaughlin; Oct. 26, Hol-
ter Hardware company VS.. Ontario Min
ing company; Oct rs, Hotter Hard
ware company VS.. Ontario Mining COM
pany.