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eBook details

• Title: Mather v. Musselman Et Al.
• Author : Supreme Court of Montana
• Release Date : January 05, 1927
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 70 KB

Description

Trusts ? Constructive Trust ? Complaint ? Sufficiency ? General Denial ? Proof Admissible ? Account Stated ? Open Account ? Evidence ? Erection of Building ? Cost ? Estimates by Experts ? Admissibility in Evidence. Trusts ? Constructive Trust ? Complaint ? Sufficiency. 1. Complaint in an action to establish a constructive trust in a building, alleging a fiduciary relation existing between the parties, its breach by defendant in inducing plaintiff to furnish all the money necessary for its construction, whereas each had agreed to furnish one-half thereof, the wrongful taking of title by defendant to one-half of the property, held sufficient, and not to have been rendered insufficient by an affirmative allegation to the effect that defendant joined in the execution of a note secured by mortgage on the property to the extent of approximately half its value executed near completion of the structure. Constructive Trust ? Evidence ? Sufficiency. 2. Evidence held sufficient to sustain the finding in favor of plaintiff in an action to establish a constructive trust in real property, under the rule that in such a case the evidence must be clear, convincing, satisfactory and practically free from doubt. Same ? General Denial ? Proof Admissible. 3. The rule that under a general denial defendant may prove any fact which goes to controvert the facts which plaintiff is bound to prove to sustain his cause of action or which is inconsistent with and thus negatives plaintiffs cause of action is applicable - Page 567 in an action to establish a constructive trust, even though fraud and the violation of fiduciary relations be shown, the contention that under the doctrine that he who comes into a court of equity must come with clean hands, defendant should not be heard in defense, not being maintainable. Same ? Under General Denial of Plaintiffs Allegation That He Furnished All Funds for Acquisition of Property Defendant may Show, What. 4. Where plaintiff, one of two joint adventurers, in an action against his coadventurer to establish a constructive trust, asserted that he had furnished all the funds for the joint enterprise, defendants under their general denial should have been allowed to introduce evidence that they contributed toward the cost, that the total cost was in excess of the amount claimed by plaintiff, etc. Accounts Stated ? Pleading ? Open Accounts ? What Defendant may Show Under General Denial. 5. An account stated partakes of the nature of a contract between the parties, and in order to prove omission from or mistakes in the statement it must be pleaded, whereas in the case of an open and unsettled account challenged by plaintiff, defendant, under a general denial, may show any fact tending to defeat plaintiffs prima facie case. Constructive Trust ? Erection of Building ? Cost ? Estimates by Experts ? Admissibility in Evidence. 6. Where in an action to establish a constructive trust in a building plaintiff claimed that his coadventurer in its erection, who was dead at the time of trial, had contributed nothing to its cost and who, in active charge of the work, had kept no books, his successors in interest were properly permitted to introduce estimates of the cost of replacement by experts of unquestioned ability in support of their claim that decedent had contributed substantial amounts in excess of the cost claimed by plaintiff.

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