The opinion states the case.
Galbraith, J.This was an action to recover the amount claimed to be due upon a certain order drawn by White Calfee, on the appellants Lynde and Holden, and conditionally accepted by them, and payable to the respondents. The appellants had a contract with the Northern Pacific Railroad Company for the delivery of a great number of ties, and White Calfee was their subcontractor. White Calfee, being indebted to the respondents for goods, wares, and merchandise, and the amount due him from appellants being greater than his indebtedness to the respondents, gave them an order on the appellants, which was accepted by them, subject, however, to the payment of three other claims, which *111were to have precedence. This order was accepted on the 10th of September, 1883, and was for the sum of $2,814.70, and the amount of the claims subject to which it was to be paid was $6,421.39. The action was commenced on the second day of September, 1884. There was a demurrer to the complaint, which was overruled; and after the case was at issue on complaint, answer, and replication, the respondents filed a supplemental complaint, to which there was also a demurrer, which being overruled, the appellants filed an answer. The case was tried to a jury, which rendered a verdict for the respondents.
The errors relied upon are the action of the court in overruling the demurrers to the original and supplemental complaints of the respondents, and the insufficiency of the evidence to support the verdict of the jury. As to the first error’complained of, viz., the overruling of the demurrer to the complaint, it is the settled rule of practice in this territory that when a defendant does not stand upon his demurrer, but, as in this case, answers over, and goes to trial upon the merits, he waives his right to be heard upon his objection to the action of the court in overruling his demurrer, unless the complaint should be so defective as not to support the judgment. Francisco v. Benepe, 6 Mont. 243; Collier v. Ervin, 3 Mont. 142; Perkins v. Davis, 2 Mont. 474. The same rule is applicable to the action of the court in overruling the demurrer to the supplemental complaint. To this there was an answer. The original and supplemental complaints support the judgment.
But it is also claimed that the court erred in overruling the appellants’ motion for a nonsuit; and that the evidence is not sufficient to sustain the verdict, in this: that it does not show that the claims to which the payment of the amount due on the order was subject, and the payment of which had precedence over that of *112the order, had been paid. The appellants did not introduce any evidence upon the trial, and therefore both these questions can be considered together. If the evidence will not sustain the verdict, the motion for nonsuit should have been granted. We understand the correct rule to be that the court should grant a nonsuit if, in view of all the evidence introduced by the plaintiff, it would grant a new trial if the jury should bring in a verdict in his favor. Therefore, so far as this case is concerned, as their determination depends upon the application of the same rule or principle, both of these questions may be considered together.
The order and acceptance were in evidence, and were as follows:—
“ Fried leys, September 7, 1883.
“ Lynde & Co.: Pay to the order of G. H. Carver & Co. twenty-eight hundred and fourteen and 70-100 dollars, on account of the contract at Miner Creek, and charge same to my account, as per agreement made with Mr. Yan Horne and myself at Bozeman.
[Signed] “ White Caleee.
“ $2,814.70.”
“We hereby accept the foregoing order, subject to the following claims, viz.: Strasburger and Sperling, $4,500; Sebree, Ferris, and White, .$921.39; Lynde & Co., $1,000. The foregoing to be paid when we receive the same from the Northern Pacific Railroad Company for the Tom Miner Creek ties,
“Accepted, subject to the specified condition hereon.
“Lynde & Co.
“ September 10, 1883.”
An account stated was also shown between the appellants and the Northern Pacific Railroad Company, for transactions upon their contract with it between February, 1882, and the latter part of December, 1884, amounting in all to the sum of $484,537.86. Upon an *113inspection of this account, it appears that the transactions under this contract, up to some time in December, 1883,— it being in September of that year that the above order was given and accepted,— amounted to $456,439.42; among which are included a large amount of ties. This account also shows that all claims of appellants for the year 1883 were paid by the railroad company, and that such payments were made promptly. The appellants did not offer any evidence to explain this statement of accounts. Looking at the order and acceptance, and all the circumstances of the transaction, it will be presumed that the sum for which it was given and accepted was for ties already delivered on the contract of Calfee with the appellants. Under the testimony in this case, we think it appears prima facie that the appellants had received the money for the ties mentioned in the acceptance of the order, although not specially mentioned in the account stated between the appellants and the railroad company, and that the respondents were entitled to recover the amount of their claim at the time the action was commenced.
It was also shown, under the allegations of the supplemental complaint, that on the eighth day of December, 1886, the appellants assigned to the First National Bank of Kansas City the whole of the balance then due them on their contract with the Northern Pacific Railroad Company, amounting to the sum of $6,218.55, subject to the lien of the respondents, by reason of an attachment issued in this case. They will be presumed to have received value for this assignment; and therefore it would appear that they received the whole amount due them on their contract with the railroad company. The amount of the claim, subject to which the order was accepted, was $6,421.39. It appears, therefore, that the balance assigned to the bank was not sufficient to pay these claims.
*114Under the above state of facts, the nonsuit was properly overruled, and the'verdict is sustained by the evidence. The judgment is affirmed, with costs.
Judgment affirmed.
McConnell, C. J., and Bach, J., concur.