(DOWNLOAD) "Porak v. Sweitzers" by Supreme Court of Montana ~ Book PDF Kindle ePub Free
eBook details
- Title: Porak v. Sweitzers
- Author : Supreme Court of Montana
- Release Date : January 29, 1930
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 59 KB
Description
1. Estoppel — Statements made by mistake. Statements made under mistake or without a full knowledge of the facts are not the basis of equitable estoppel. 2. Estoppel — Testimony in prior action did not show estoppel. In an action to recover the balance allegedly due for work performed under contract for clearing land, plaintiffs testimony given in a prior action by another to recover for the same work did not show clearly that plaintiff deliberately testified to the existence of a partnership agreement between himself and the other so as to estop him from claiming that he alone and not he and such other person made the clearing contract with defendant. 3. Estoppel — What must be shown to invoke estoppel. Equitable estoppel cannot be invoked except on a showing that the person asserting it was misled to his prejudice by the conduct of which he complains. Page 51 4. Estoppel — Plaintiff not estopped in case at bar. In an action to recover the balance allegedly due for work performed in clearing land, plaintiff was not estopped to repudiate his testimony given as a witness in a prior action against defendant by another for the same work, where defendant was not misled to his prejudice. 5. Appeal and error — Substantial evidence — Verdict not disturbed. Where the successful partys testimony, if believed, supported a verdict in his favor, the court on appeal would not disturb the jurys findings. 6. Trial — Instructions law of case. Instruction, whether right or wrong, constituted the law of the case. 7. Customs and usages — Custom and usages must be known to party affected. The rule as to the applicability of business customs and usage to determine the rights and obligations of parties to a contract in the absence of express or implied agreement does not apply unless the custom and usage are shown to have been known by the party to be affected by them, and they have been peaceably acquiesced in without dispute, and have been reasonable and not calculated to throw disproportionate burdens on either part. 8. Appeal and error — Immaterial variations in pleading and proof. An immaterial variation between pleading and proof will not work a reversal, and in this action to recover a balance allegedly due for work performed in clearing land, variance between the complaint alleging that the value of clearing 9 1/2 acres was $150 an acre and proof that the value of such work was $225 an acre, was not a material variance.