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eBook details

• Title: Beale v. Lingquist Et Al.
• Author : Supreme Court of Montana
• Release Date : January 03, 1932
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 62 KB

Description

Mortgages ? Foreclosure ? Appointment of Receiver ? Vacation of Order of Appointment ? Burden of Proof ? Contracts ? Offer and Unconditional Acceptance Necessary ? Defense That Time of Payment Extended by Agreement Through Correspondence ? Insufficient Evidence to Show Making of Agreement. Mortgage Foreclosure ? Appointment of Receiver ? Lack of Notice ? Jurisdiction ? Defendants General Appearance Cures Want of Notice. 1. Where defendant in a mortgage foreclosure suit moved to vacate an order appointing a receiver to collect the rents and profits on jurisdictional and non-jurisdictional grounds, instead of appearing specially and objecting to the jurisdiction of the court over his person because of lack of notice, he will be held to have made a general appearance, thus curing the want of notice in the first instance. - Page 481 Same ? Motion to Vacate Order Appointing Receiver ? Prematurity of Foreclosure Suit ? Burden of Proof. 2. On motion to vacate an order appointing a receiver in a mortgage foreclosure suit on the ground that it had been prematurely brought, the burden of showing that there was no breach of the mortgage contract on part of defendant rests upon him. Same ? Appeal from Order Appointing Receiver ? Presumption. 3. The presumption on appeal from an order appointing a receiver is that the district court, in making the order, concluded that plaintiff was likely to succeed ultimately in his action. Contracts ? To Constitute Transaction a Contract, Offer and Unconditional Acceptance Necessary. 4. In order to bring about a contract there must be an offer by one party and an unconditional acceptance of it, according to its terms, by the other. Same ? Offer by Mail With Request for Acceptance by Return Mail ? Failure to so Accept Releases Offerer. 5. Where a person makes an offer by mail and requires an answer of acceptance by return mail, the making of it is accompanied by an implied stipulation that the answer shall be so sent; if not so sent, the person making the offer is released from it. Mortgages ? Foreclosure ? Defense Extension of Time of Payment by Correspondence ? Release of Mortgagee from Offer to Extend Time by Failure of Mortgagor to Accept Offer by Return Mail. 6. In a suit for the foreclosure of a mortgage, which contained an acceleration clause, defendant by way of affirmative defense pleaded modification of the contract as to time of payment through an interchange of letters. It appeared that plaintiff mortgagee, a nonresident, wrote a letter to defendant on July 17 containing the offer that, if defendant would pay the sum of $30 that month, and make certain other payments thereafter, it would be satisfactory to him, and requesting that if the offer met defendants approval to let him know by return mail. Defendant mailed a check for $30 on August 6 following, and on August 18 sent a letter. Held, under the above rule, that there was no acceptance of the offer and hence no agreement extending time of payment resulted, the letter not having been sent by return mail nor the $30 paid in the month of July.

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