Newell v. Meyendorff
Montana Supreme Court
Appeal from First Judicial District, Lems and Clarice County. The case was tried before McConnell, C. J., without a jury. Plaintiffs were estopped from taking the position that the contract was valid after having procured the decision of the court that it was void. The rule is well settled that a party is not permitted to take inconsistent positions in court in the same suit. (Smith v. Babcock, 3 Sum. 584; Ohio etc. By. Co. v. McCarthy, 96 U. S. 258; Philadelphia, etc. By.
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Appeal from First Judicial District, Lems and Clarice County. The case was tried before McConnell, C. J., without a jury. Plaintiffs were estopped from taking the position that the contract was valid after having procured the decision of the court that it was void. The rule is well settled that a party is not permitted to take inconsistent positions in court in the same suit. (Smith v. Babcock, 3 Sum. 584; Ohio etc. By. Co. v. McCarthy, 96 U. S. 258; Philadelphia, etc. By. Co. v. Howard, 13 How. 307; Avedando v. Gay, 8 Wall. 376; Bushnell y. Kennedy, 9 Wall. 387; Irwin v. Miller, 23 Ill. 401;…
1Opinion of the CourtDe Witt, J.
The record in this case presents the following history: The complaint is for the price of cigars sold and delivered by plaintiffs to defendant. Defendant answered, and admitted the sale and delivery, and set up in recoupment a contract, the terms of which were, generally, that in 1886 he was dealing *259in cigars; that plaintiffs approached him to sell their “Flor de B. Garcia Cigars,” agreeing that defendant should have the sole and exclusive right of selling, handling, and dealing in said cigars in Montana; that plaintiffs would not sell said cigars to any one else in the Territory; that…
2Cases cited15 opinions
- Railway Co. v. McCarthySupreme Court of the United States · 1878
- Oregon Steam Navigation Co. v. WinsorSupreme Court of the United States · 1874
- Barber v. ReynoldsCalifornia Supreme Court · 1867
- Chappel v. BrockwayNew York Supreme Court · 1839
- Upton v. LarkinMontana Supreme Court · 1888
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3Cited by18 opinions
- State v. LuceyMontana Supreme Court · 1900
- Reynolds v. FitzpatrickMontana Supreme Court · 1903
- Independent Gas & Oil Co. v. T. B. Smith Co.Idaho Supreme Court · 1932
- State ex rel. Leech v. Board of CanvassersMontana Supreme Court · 1892
- Ben Kress Nursery Co. v. Oregon Nursery Co.Montana Supreme Court · 1912
13 more not listed; retrieve them via the Exa API.