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MR.' COMMISSIONER CALLAWAY
prepared the following opinion for the court:
This action was brought by the appellant to contest the election of respondent to the office of county assessor of Deer Lodge county, and is a result of the election held in November, 1902. It is brought under the .provisions of Sections 2010 to 2025, inclusive, of the Code of Civil Procedure. To the complaint, or statement of contest, the respondent interposed a motion asking that the complaint be stricken from the files, and the contest dismissed, “for the reason that the grounds upon which the contest is based are alleged upon information and belief, and for the reason that the verification to said petition is made upon information and belief, and is not in accordance with the statute in such cases made and provided.” The court sustained the motion and entered judgment thereupon in favor of the respondent. Erom the judgment this appeal is prosecuted.
xkn inspection of the verification to the complaint discloses that it is in practically the same form as that appended to the complaint in Lane v. Bailey, 29 Mont. 548, 75 Pac. 191.
The case of Kirk v. Rhoads, 46 Cal. 398, referred to in Lane v. Bailey, is applicable to this case upon both of the grounds urged in tbe motion, and we therefore quote tbe following language from it: “Tbe affidavit in tbis case was in tbe ordinary form of a verification of a pleading, and averred that tbe statement was true, except as to matters therein set forth on information and belief, and as to those matters affiant believed it to be true. Tbis was a substantial compliance with the statute. To bold that tbe contestant must make oath to tbe absolute verity of every averment of tbe statement would prevent tbe contest of an election in almost any conceivable case, and would Work a practical abrogation of a beneficial law. From tbe very nature of tbe ease, many, and frequently most, of tbe essential facts must come to tbe knowledge of tbe contestant through tbe statements of others; for be cannot be present at tbe various polling places to observe tbe conduct of tbe officers of election. We think tlie object of tbe provision was merely to require a verification of tbe statement, but not to prescribe its form or terms. Tbe object of tbe law is gained when the affidavit is in tbe ordinary form of a verification of a pleading.”
Tbe Supreme Court of Indiana in Curry v. Baker, 31 Ind. 151, said that to construe the language of tbe statute as-is contended by respondent, “and require tlie affidavit to be founded alone upon tbe personal observation of tbe contestor, would involve a practical change in tbe title of the act, so that, it should read, ‘An Act to prohibit tbe contesting of any election.? ” (And see McCrary on Elections, Section 433.)
In McCrary on Elections (4th Ed.), Section 431, it is said: “It may be stated as a general rule, recognized by all tbe courts of tbis country, that statutes providing for contesting elections are to be liberally construed, to tbe end that tbe will of tbe people in tbe choice of public officers may not be defeated by any merely formal or technical objections.”
It is thus apparent that tbe objections lodged by tbe contestee against tbe complaint are untenable.
We have examined tbe complaint to ascertain whether tbe court was correct in sustaining tbe eontestee’s motion upon the ground that the complaint is bad for want of substance.
Section 2021, Code of Civil Procedure, provides that the court may dismiss the proceedings if the statement of the cause or causes of the contest is insufficient. Section 2016, following, providesi “No statement of the grounds of contest will be rejected, nor the proceedings dismissed by any court fox want of form, if the grounds of contest are alleged with such certainty as will advise the defendant of the particular proceeding or cause for which such election is contested.”
While it is true that the complaint in some particulars is subject to criticism as being indefinite, yet we cannot say that it does not state a cause of action. All that the statute requires is that the contestant shall definitely apprise the contestee of the charges relied upon, so that he may be prepared to meet them with appropriate proof. Except in one or two instances, which are not fatal to the - maintenance of the action, we think the contestee is advised with certainty to a common intent of the charges which he is to meet.
We are therefore of the opinion that the judgment should be reversed, and the cause remanded for further proceedings.
Pee Curiam. — For the reasons stated in the foregoing opinion, the judgment is reversed, and the cause remanded.
He. Justioe Milburn, not having heard the argument, takes no-part in this decision.
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MR JUSTICE HOLLOWAY,
after stating the case, -delivered the opinion of the court.
' A question of practice is presented by respondent’s motion to strike from the files and disregard the statement on motion for new trial. It is contended that, as the appeal from the order overruling the motion for new trial has been dismissed, there is now properly before this court for consideration only the judgment roll. The question presented calls for a construction of Section 1736 of the Code of Civil Procedure, which reads as follows: “Sec. 1736. On an appeal from a final judgment, the appellant must furnish the court with a copy of the notice of appeal, of the judgment roll, and of any bill of exceptions or statement in the case, upon which the appellant relies. Any statement used on motion for a new trial may be used on appeal from a final judgment equally as upon appeal from the order granting or refusing .a new trial.”
Notwithstanding the statute provides that any statement used on motion for a new trial may be used on appeal from the final judgment, it has wholly failed to provide any means by which it may be ascertained that a particular statement was so used, for the order disposing of the motion for a new trial is not a part of the statement itself, and there is no statute which requires the district court, in any event, in such order, to specify the papers which were used. A statute similar to Section 1736, above, has long been in force in California, and has been considered by the supreme court of that state a number of times. Spelling, in his work on New Trials and Appellate Practice, after carefully reviewing all these decisions, reaches this conclusion : That if the record before the supreme court discloses a' statement prepared, settled and filed according to law, and it is made to appear that a decision on the motion was made, it will be presumed, in the absence of any showing to the contrary, that such statement was actually used upon such motion. (2 Spelling on New Trials and App. Practice, Sec. 423.) We are disposed to accept the conclusion reached above, and adojit the practice therein indicated. The extent of the use which may be had of such statement on an appeal from the final judgment was determined, in Whalen v. Harrison, 26 Mont. 316, 67 Pac. 934, to be for all purposes for which a bill of exceptions may be properly used. In other words, any question of law which may be raised in the statement, if otherwise properly presented, will be considered and passed upon by the supreme court. While we cannot consider the question of the insufficiency of the evidence to support the verdict or other decision, we can determine the question of law suggested by the inquiry, is there any evidence to support it?
Instruction No. 6, above, given by the court, is indefinite. The jury should have been made to understand that it is only for damages proximately caused by the wrongful act of defendant Dixon that the plaintiff may recover. If, in fact, the plaintiff did not rely upon the statements contained in the notary’s certificate, then the mere fact of the notary’s violation of his official duty could not have been the proximate cause of plaintiff’s injury. It was necessary for the plaintiff to allege, as he did, that he did rely upon such certificate, but this allegation is put in issue by the answer. It was therefore, necessary to be supported by the proof, and considered and passed upon by the jury. Upon a retrial of this cause, this instruction may be modified in the particular indicated.
Rehearing denied September 28, 1904.
Instruction No. 8, above, is wrong. It submitted to the jury an entirely erroneous standard by which the jury might determine the measure of plaintiff’s damages. By it the jury was told that the measure of such damages is the value of the property described in the spurious mortgage, not exceeding the amount of the notary’s official bond. A simple illustration will show the absurdity of this position. Assuming that the property was of the value of $4,500, and that there were prior mortgages or liens upon the property to the amount of $4,000, in that event the utmost extent of plaintiff’s loss would be $500, for that would be the full value of the security which he would have had for his loan, had the mortgage been genuine. Therefore the value of the property is not necessarily the criterion for determining the measure of damages. On the contrary, the measure of damages in this instance is the value of the security which the plaintiff would have received, had the mortgage been valid, not exceeding the amount loaned by plaintiff, and the burden of proof was upon the plaintiff to show such value.
We have examined the other assignments of error which are properly before us, but find no merit in them.
The motion to strike the statement on motion for new trial from the files is overruled, and the judgment is reversed, and the cause remanded for new trial.
Reversed and remanded.
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
On October 21, 1901, an order was duly made in the district court of Silver Row county, Montana, adjudging Frederick Y. Scheuer mentally incompetent to manage his own affairs, and appointing Charles E. Kinman guardian of the person and estate of such incompetent. Thereafter, on March 19, 1903, upon the petition of the next friend of Scheuer, a hearing was had before the court, and Scheuer was thereupon adjudged restored to mental capacity. On April 7, 1903, Kinman, as guardian, returned into court his report, designated “Third Annual Deport” of such guardianship, to which report certain objections were made by Scheuer. A reference of the report and objections was made, a report from the referee had, and on August 3, 1903, an order was made by the court confirming the report of the guardian as amended by the recommendations of the referee. This report, as amended, showed a balance due to the guardian from the ward’s estate of $2,043.97. On August 18, 1903, Kinman, still pretending to act as guardian, presented to the court a petition for the sale of certain of the real estate belonging to Scheuer, for the purpose of raising money to discharge the amount so found due. An order to show cause was issued and served. Thereupon Scheuer filed a motion to dismiss such petition on the ground of a want, of jurisdiction in the court to entertain it. This motion was overruled, and Scheuer then filed his objections to the petition, specifying particularly the fact that the court was without jurisdiction to entertain the petition, and urging as a reason for such objection the fact that Scheuer had several months prior thereto been adjudged restored to mental capacity. In the petition for the order to sell, the guardian sets forth the fact of the restoration of Scheuer to capacity, and that from that date subsequently Scheuer had been in possession and control of the property sought to be sold. The objection of Scheuer to the granting of the petition was overruled, and on September 15, 1903, the court made an order for the sale of so much of the real estate belonging to Scheuer, and which had been in the possession of the guardian from the date of his appointment until the date of the order of restoration, as might be necessary to raise the amount due the guardian. Erom this order of sale, Scheuer appealed.
Certain questions respecting the settlement of the guardian’s account are sought to be presented here, but as the order confirming such report was an appealable order (Sess. Laws 1899, p. 146), and there was not any appeal taken therefrom, we cannot on this appeal consider the same.
But one question is presented for settlement, namely, has the district court, sitting as a court of probate, any jurisdiction to entertain a petition for the sale of real property belonging to one who has been under guardianship because of his mental incapacity, presented after an order has been made judicially determining and adjirdging such person restored to capacity, and to be of sound mind and capable of taking care of himself and of his property, or to grant an order of sale based upon such petition? A solution of this question rests upon the construction of certain sections of the Code of Civil Procedure, which, at first blush, appear to be in hopeless conflict.
Section 2972 provides that every guardian of an incompetent person shall have the care and custody of the person of his ward, and the management of all his estate, until such guardian is legally discharged.
Section 2973 provides for an inquiry to have the fact of the Avard’s restoration to capacity judicially determined, and provides that if, upon such inquiry, it be found that the person is of sound mind and capable of taking care of himself and his property, his restoration to capacity shall be adjudged, “and the guardian” of such person shall cease. It is evident that the term “guardianship” Avas intended to be used instead of the term “guardian.”
The language of Section 2973, above, is susceptible of but one construction, namely, that the judicial determination that the Avard is of sound mind, and capable of taking care of himself and his property, and the adjiidication of his restoration, do, ipso facto, terminate the guardianship. (Woerner’s American Law of Guardianship, Sec. 150; Probate Judge v. Steven son, 55 Mich. 320, 21 N. W. 348; In re Latham, 6 Ired. Eq. (N. C.) 406.) Section 2972 also provides that the bond of a guardian of an incompetent person shall contain like conditions as prescribed for the bond of a guardian of a minor.
Section 2957, among other things, provides that the bond of a guardian of a minor shall be conditioned “that the guardian will faithfully execute the duties of his trust according to law, and the following conditions shall form a part of such bond without being expressed therein: * * * (3) To render an account on oath of the property, estate and moneys of the ward in his hands and all the proceeds or interests derived therefrom, and of the management and disposition of the same, within three months after his appointment, and at such other times as the court or judge directs, and at the expiration of his trust to settle his accounts with the court or judge, or with the ward, if he be at full* age, or his legal representatives, and to pay over and deliver all the estate, moneys and effects remaining in his hands, or due from him on such settlement, to the person who is lawfully entitled thereto. * * *” If the order of restoration terminates the guardianship, then the expression “the expiration of his trust,” as used in this section, and the order for the restoration of the ward to capacity, as provided for in Section 2973, must of necessity refer to the same event in point of time; and, if this be so, then the duty of the guardian of an incompetent person upon the termination of his guardianship is plain. He shall settle his accounts with the court or judge, or with the ward, and pay over and deliver all the estate, moneys and effects remaining in his hands, or due from him on such settlement, to the person lawfully entitled thereto. (Section 2957, supra; Shepherd v. Newkirk, 21 N. J. Law, 302.)
The powers, duties and liabilities of a guardian of a person of 'unsound mind are the same, and subject to the same restrictions, as those of a guardian of a minor. (Section 2957, above; Woerner’s American Law of Guardianship, Sec. 137.)
In In re Allgier, 65. Cal. 228, 3 Pac. 849, it is said: “When a ward attains tlie age of majority, the office of guardian comes to an end, and it is then tlie duty of the guardian, and one of the obligations of his bond, to exhibit a final account of bis guardianship to tbe probate court, make a settlement with tbe probate judge or with the ward, and deliver all tbe property in bis hands belonging to tbe ward. (Section 1754, Code of Civil Procedure.) Failure to do this constitutes a breach of bis bond, for which be and his sureties are liable after settlement of tbe guar di airship. ”
But it is contended that under tbe provisions of Section 2972, above, tbe management of the ward’s estate is imposed upon tbe guardian until he is legally discharged, and that the phrase “legally discharged” means discharged by an order of the court. If this contention be sustained, then the last-sentence of Section 2973 is meaningless, for the court might not make an order discharging the guardian for a year or more after making the order restoring the ward to capacity. Indeed, this very case presents an instance where the ward was adjudged restored to mental capacity in March, and yet as late as September folloiving no order for the discharge of the guardian had been made. If the contention of the respondent could be maintained, then the guardianship continues, and a person sui juris, against his own will, is subject to the control and government of a guardian, which in itself involves a contradiction of terms and a legal impossibility.
Respecting the term of office of a guardian of a minor, Section 2956 provides: “Every guardian appointed shall have the custody and care of the education of the minor, and the care and management of his estate, until such minor arrives at the age of majority or marries, or until the guardian is legally discharged.”
Section 1753 of the California Code of Civil Procedure is identical with our Section 2956, above, and, construing that section, the supreme court of that state, in Curtis v. Devoe, 121 Cal. 468, 53 Pac. 936, said: “We do not think that the clause, ‘or until the guardian is legally discharged,’ was intended to prolong his control of the person and estate of the minor, for, if it did, he would have control for one year after the majority of the ward (Civil Code, Sec. 251), and this would be in conflict with the provisions of the Code of Civil Procedure, supra. Dpon the minor’s attaining majority, the guardian must then make a settlement either with the court or ward, and pay over and deliver to the ward all the estate in his hands, 'or due from him on such settlement.’ ”
A canon of statutory construction which requires that meaning shall be given to every section of a particular statute, if possible, requires us to hold that the term of the guardian’s office is limited by Section 2913, Code of Civil Procedure, and that immediately thereafter the guardian shall make his final report and be discharged, and that, after the termination of his office by the restoration of the ward, the only power or authority possessed by the guardian is to make such report, and turn over to the proper person all property with which he is chargeable on such report. (Curtis v. Devoe, above.) This is what he and his bondsmen agree he will do, and it is clear that the law never contemplated that he might continue to exercise acts of authority and control over the property of one who had been judicially determined to be sui juris. Likewise, the authority of the probate court, after the order of restoration is made, is limited to requiring the guardian to make such final report, and to discharge such guardian from his trust. The legal effect of the order of sale made in this instance is that of an exéeution to enforce the payment of an indebtedness found to be due by the ward to his guardian upon the -termination of the guardianship, and this power or authority is not possessed by a district court sitting as a court of probate. The principle would be the same if, upon the final report of the guardian, it was found that the guardian had in his possession property belonging to the ward which he was directed to turn over to the ward, but which he failed to do. We know of no process which a probate court can issue to enforce such order. The remedy is an action against the guardian, or on his official bond. (Stumph v. Guardianship of Pfeiffer, 58 Ind. 472.)
This court has repeatedly held that the district courts, sitting as courts of probate, are courts of special and limited jurisdiction, possessing no powers other than those- expressly or by necessary implication conferred by statute. (In re Higgins’ Estate, 15 Mont. 474, 39 Pac. 506, 28 L. R. A. 116; State v. District Court, 18 Mont. 481, 46 Pac. 259; State v. District Court, 24 Mont. 1, 60 Pac. 489; Davidson v. Wampler, 29 Mont. 61, 74 Pac. 82.) And such courts, in the absence of statutory authorization, have not the power to carry into effect their judgments, decrees or-orders made on the final accounting of guardians, though they may possess exclusive power to compel such accounting. (Woerner’s American Law of Guardianship, Hoc. 110.) Likewise there is no difference, in principle, no matter what event may operate to terminate the guardianship, for, if the guardianship is actually terminated, it. is quite immaterial whether it was by the restoration of the ward to capacity, or the death of the ward. The termination of the guardianship imposes the legal duty upon the guardian to make final settlement immediately after such termination, and to limit the authority of the court to requiring such settlement to he made.
A case directly analogous to the one at bar is found in In re Livermore’s Estate, 132 Cal. 99, 64 Pac. 113, 84 Am. St. Rep. 37, where, after the ward died, the guardian secured an order for the sale of a portion of the ward’s property to pay an indebtedness found due to the guardian upon final account. Pespecting this order the Supreme Court of California said: “The foregoing proceeding is unique in this state, and the order made by the trial court cannot find support in the law. The title furnished to a purchaser at the sale by the deed of the guardian would not he worth a dollar. The proceedings here taken for the. sale were taken under the Code provisions pertaining to guardianship matters, and, as to a sale of real estate, those proceedings only contemplate a case where there is a living ward— a living ward not only when the proceedings are inaugurated, but up to and including the moment the deed is made. When tlie guardian executes the deed, he executes it for and in the place and stead of his ward, and, the moment that ward is dead, his power to execute the deed is gone. He has no more poAver to execute a deed under these circumstances than Avould an attorney in fact after the death of his principal. It is unnecessary to consider here Avhat a court of equity might do, under the eiraunstances presented by the facts of this case, in aid of Hie probate jurisdiction of the superior court, for here the statutory procedure laid down in the Code in guardianship proceedings alone has been folkwed, and the sale is asked under that procedure. The guardian, as such, is attempting to make the sale, and the court is Avell assured it cannot be done.”
In the early history of Ohio that state had a statute AAdiich authorized the court of common pleas to appoint guardians for minors, and further proAdded that Aiken such minors, males, shall arrive at the age of 14 years, or females shall arrive at the age of 12 years, such minors may seArerally choose a guardian, such as the court shall approve. This statute Avas considered in Lessees of Perry v. Brainard, 11 Ohio, 442. The question in controAm'sy arose as to the authority of the guardian of a female minor to sell real estate belonging to such minor. The petition for the order of sale Avas presented after the minor liad reached the age of 12 years. In disposing of the question, the court said: “It seems to us the obAÚoiis construction of this section is, that the appointment of a guardian to a female under 12 years, though unlimited on the face of the appointment, ceases by its legal expiration Avhen the Avard arriA^es at the age of 12 years. .At that age the laAV deems her of sufficient discretion and capacity to have a choice of the person Avho is to control not only her property but herself, subject, nevertheless,, to the approval of the court; and it is then, only, after being notified to appear and make such choice, and refusal on her part, that the court are authorized and required to appoint a guardian if she is OAmr 12 years of age. That the appointment expires by its OAvn limitation when the Avard armies at the age of 12 years, Avas decided in the case of Campbell v. English and Wife, Wright, 119. The court then held this language: CA guardian for a female under 12 years of age continues only until the ward attains to that age. A guardian, or a man that has been a guardian, after his guardianship has expired, has no more power than if he had never been appointed.’ We see no reason to question the soundness of this principle. It aceords with our own views. How, then, stands the case at bar ? It is admitted the guardian filed his petition for the sale of the land after the ward had arrived at the age of 12 years, and at a time when the law had determined his guardianship. All the proceedings subsequent to, and including tile petition for the sale of the lot, are therefore void, and convey no title to the defendant.”
In view, then, of the express declaration of Section 2973 that the restoration of the ward to mental capacity terminates the guardianship, and the further provisions of the law which are read into and made a part of the guardian’s bond — that upon the expiration of his trust the guardian will settle his accounts with the court, judge or ward, and deliver over all property with which he is chargeable on such settlement — we are of the opinion that the language of Section 2972 cannot be construed to extend the guardian’s authority over the person or estate of the ward beyond the time when such guardianship is terminated as provided in Section 2973. It would be an intolerable imposition upon a person sui juris to compel him to submit to the control of a guardian either of his person or property, and such an imposition was not intended by the law-mating authority in enacting Section 2972 above.
Finally, the Codes themselves furnish us a canon of construction. Section 5165 of the Political Code provides: “If conflicting provisions are found in different sections of the same chapter or article, the provisions of the section last in numerical order must prevail, unless such construction is inconsistent with the meaning of such chapter or article.” If, then, the seeming conflict between the provisions of Sections 2972 and 2973, above, is not entirely reconcilable, the provisions of Section 2973 must prevail, for there is not anything in the construction which we have given this last-mentioned section which is inconsistent with the meaning of the article in which both sections are found.
The order of sale was void, and is reversed.
Reversed.
J\Ir. Ciiiee Justice Brantly and Mr. Justice Milburn concur.
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] |
MR CHIEF JUSTICE BRANTLY
delivered the opinion of'the court.
It is not. necessary to restate the facts of this case. The statement preceding the opinion delivered on the former hearing (30 Mont. 239, 76 Pac. 191) is entirely sufficient to meet present requirements, except certain inaccuracies therein to which attention is called before taking up a discussion of the merits. In that statement it is said that “the mines of the company were operated until June or August, 1893, when they were closed down and remained closed until June, 1895, when operations were resumed,” etc. In fact, they were closed down until January, 1895. It would not be important to notice this inaccuracy but for the fact that it might mislead the trial court in taking the account which will be hereafter directed. The error was induced by a like error in the statement of facts in respondents’ brief. Further along in the statement it is also said that the records of the company from July 6. 1892, the date at which the company’s office was removed to St. Louis, until October, 1898, when it was reopened in Butte, are in a somewhat chaotic condition. This is not justified by the facts appearing in the record, except so far as it applies to the records of the stockholders’ meetings. The books of the company, except in this particular, seem to have been properly kept. All of the records were kept by the secretary or acting secretary, as is the rule with such companies. It was not. necessary for the treasurer to keep separate accounts of his receipts and disbursements. The items of these properly appear in the books of accounts kept by the secretary, and this seems to have been the mode pursued throughout the history of this company.
After a re-examination of the record and the questions arising thereon in the light of the argument presented by counsel at the rehearing, we are content, except as appears hereafter, to let the case rest upon the conclusions stated in the former opinion. At the. hearing much stress was laid upon the fact that the complaining stockholders had expressly authorized the removal of the office of the company from the city of Butte to St. Louis, Missouri, by resolution passed at the meeting in Butte on June 27, 1892, and the contention was made that by this action they es-topped themselves from making complaint that the office was thereafter kept by the directors in St. Louis, even though this was not authorized by law. It might be conceded that this contention could be successfully maintained as to the other plaintiffs; yet, so far as this record shows, it does not affirmatively appear that the plaintiffs Thompson and Merrill took' part in that meeting, or that they voted their stock, either in person or by proxy. But, further than this, if all of the plaintiffs had agreed to a removal of the office to St. Louis, and had thus estopped themselves to complain that it was kept there to their injury, they did not thereby agree that the funds of the company should be diverted from their appropriate uses; and, in so far as wrong was committed by the defendant directors in this regard, all the plaintiffs are in position to complain, and to have the offending directors brought to book. That they may maintain this suit for this purpose is too well settled to permit of further argument, as appears from the authorities cited in the first paragraph of the former opinion.
Again, the levy by the directors of the assessment complained of, without observance of the formalities required by law as to notice, etc., and the threatened sale of the plaintiffs’ stock as delinquent, is of itself sufficient to sustain the action. The complaint is not drawn after the most approved model, and might, perhaps, have been open to the objection that different causes of action are jumbled therein. Yet no such objection was made in the district court, and, if made here, would not be considered.
The only questions deserving further consideration arise touching the items with which the defendant directors should be charged. It is clear, under the authorities cited and discussed in the opinion, that the directors of a corporation have no power to vote salaries to themselves, as was done by the defendants. 1'our of them adopted by-laws providing for these salaries, and then voted three of their number salaries, who thereafter and until the bringing of this action drew them regularly, whether the company was engaged in active operations or not. Their good faith in doing this is altogether immaterial. The law characterizes such action as fraudulent. As to the stockholders, the directors are trustees, besides being agents of the company and stockholders, and may not be permitted to so deal with the trust property as to secure therefrom a profit to themselves, (MacGinniss v. Boston & Mont. Con. C. & S. M. Co., 29 Mont. 428, 75 Pac. 89; Gerry v. Bismarck Bank, 19 Mont. 191, 47 Pac. 810; Coombs v. Barker, 31 Mont. 526, 79 Pac. 1.)
In Gerry v. Bismarck Bank, after commenting upon the argument of counsel made in an attempt to draw a distinction in legal effect between actual fraud of the trustees of a banking corporation and a violation of their fiduciary obligations as showing constructive fraud only, this court said, through Mr. Justice Buck: “That a trustee should not be allowed to profit by his trust is a well-known fundamental doctrine of equity. No evasions, no technical subtlety of reasoning, no empty distinctions should be tolerated when the assertion of this principle becomes necessary. It is true that when the motives of a trustee in the neglect of his duty are not essentially bad, or are readily reconcilable with ordinary honesty of purpose, certain courts have applied this rule leniently. It is true that, when no patently willful violation of duty appears, many judges have shown a disposition to check its force. It is true that weak toleration from the bench of frail, but penitent, humanity, has often apparently robbed the principle of its very life. But such precedents serve only to increase plausible devices for evading its consequences. They encourage the natural tendency of designing selfishness to substitute the vague .expression 'business enterprise7 for 'business honesty.7 77
The directors had power to adopt a code of by-laws (Comp. Statutes 1887, Div. 5, Sec. 454) ; but they could not, even under a by-law, vote a salary to one of their number, when the vote of such director was necessary to make up a quorum. Under the application of this principle it makes no difference whether the trustees intended to defraud the company and the stockholders of the amount of money appropriated for the purpose of paying their salaries, or whether they acted in the utmost good faith. The result is exactly the same; and, whether the recovery of the plaintiffs be put upon the ground of actual or constructive fraud, they are nevertheless entitled to recover upon the facts shown in this record.
These remarks apply to the items of $14,374.78, paid to Chas. D. McClure as president; to the item of $1,038.15, paid to Yice President Fusz for his salary; to the item of $2,010.28, paid to Treasurer Moses Rumsey for his salary as treasurer' and acting president; and to the item of $50, paid Ewing for auditing the books. These items are chargeable to the defendant directors. A portion of these sums was paid out for services never rendered, because the salaries were fixed by resolution of the board on February 25, 1893, which made the salaries payable from the 1st. day of January of that year.
It is true that at the meeting of the board of directors held in Butte, Montana, on October 27, 1898, the directors themselves undertook to ratify their own action in fixing and paying these salaries; but the record shows that there were present at that meeting directors Ewing, Ensz, L. M. Bnmsey, Williams and one Merrill. Williams did not vote. Eusz was one of the officers to whom a salary had been voted at the St. Louis meeting in 1892. The resolution qiassed at that time could not be held to be a ratification of the action of the board in paying the salaries, unless it be conceded that Ewing, Bnmsey and Merrill were a majority of the seven directors, or were entitled to count Williams’ vote in favor of the resolution.
Nor can it be maintained that the resolution passed at the various stockholders’ meetings amounts to a ratification of the action of the board of trustees, when the meetings were called, not for that purpose, but for the purpose of electing directors only, and no statements were presented to the stockholders as to the condition of the company, or as to what business had been transacted by them during the year. So far as the record shows, the stockholders were not informed as to the payment of these salaries by the board of directors, and the resolution itself, wdiich is set out in the sixth paragraph of the former opinion, was not a direct and substantive act on the part of the stockholders, done with the intention to ratify the action of the board.
A principal cannot ratify an unauthorized act of his agent about which he knows nothing, and as to all those acts done by an agent beyond the scope of his anthoritiy the principal is not bound to know anything, and he cannot ratify them until they are brought specifically to his attention. The same principle applies to the relations of the directors of a corporation to their stockholders in matters which must be authorized or ratified by action on the part of the stockholders.
We held in the former opinion that, because of the condition of the records of the stockholders’ meetings subsequent to the removal of the office to the city of St. Louis, they were not admissible as evidence tending to show a ratification; but, whether admissible or not, the result is the samé, for the reasons just stated.
It must not be overlooked, however, that the whole amount for which Ewing is charged, and a portion of the amounts for which M. Kumsey and Eusz are ■ charged, were represented by checks drawn for them, respectively, but never cashed. If it should appear on the accounting that these checks have never been delivered or paid, the defendants will be eiltitled to a credit for these respective amounts.
Touching the items paid out as attorney’s fees, viz., $500 paid to President McClure and $400 paid to Vice President Eusz, the evidence of these two directors is vague and indefinite. If these sums of money were actually spent for the benefit of the company in the making of salt contracts and in the investigation of methods for the reduction of ores, they are proper charges against the company. President McClure testified that he was of the impression that the $500 had been spent by hini in connection with salt contracts; and touching the $400 Vice President Fusz testified that his recollection was that the $400 was spent in the investigation of methods for reducing ores. It should appear definitely and clearly for what purposes these expenditures were made. The president and vice president of a corporation, not being attorneys at law, and not showing any employment by the company to perform legal services, cannot charge the company for any sums of money under the guise of attorney’s fees. The fact that these items are charged as attorney’s fees, however, is not conclusive, and they should be charged or not upon proof of the real purpose for which they were expended.
Touching the $75 paid to President McClure for expenses of attending stockholders’ meeting, and $73.20 paid to Vice President Eusz for visiting directors in Montana, it may be said in brief that prima facie these are not proper charges against the company. Neither the president nor the vice president is entitled to collect for expenses in attending stockholders’ meetings or in visiting the directors. Stockholders -may attend stock holders’ meetings or not, as they please. They may vote by proxy, and thus avoid expense. Expenses attendant upon stockholders’ meetings, so far as stockholders are concerned, are necessarily chargeable to the stockholders themselves. As a matter of fact there was no meeting of the directors in Montana, so far as the record shows, during the year 1896. If Vicb PresidentEusz cared to visit the individual directors in Montana, it was certainly his duty to pay his own expenses.
The item of $700 paid to Lewis S. McClure as an attorney’s fee was a diversion of this amount of money from the purposes of the corporation to a purpose wholly outside of the range of its legitimate purposes. The testimony shows that it was a contribution to a political movement; nothing more, nothing less. The remarks upon this item in the former opinion are in point, and it is not necessary to enlarge upon them. This item should be charged to the directors, unless it be shown that it was authorized by the stockholders. The same may be said of the item of $562.55. In plain language, this was paid out as the company’s portion of the expense of lobbying a bill through the legislature —a purpose wholly foreign to those of a mining corporation-— and the stockholders who did not assent thereto are certainly entitled to have the directors account to the company for the same.
The items of $7,760.01, salary of secretary, $1,089.85 for office boys, etc., $595.20 for telephone, and $2,147.94 for office supplies, etc., are such expenses as might have been incurred by the board of directors in the performance of their ordinary duties. It was within their power to employ a secretary, and to pay him a salary. It was also within their power to incur the necessary expenses for an office and for help in connection with it. It is a proper inquiry, however, as to whether or not it was necessary to have a secretary during those periods when the company was not engaged in active operations, and when there was no work for a secretary to do. When the accounting is taken, the district court should hear testimony, if the plaintiffs desire, to determine whether or not the item of $7,760.01, paid. to Jesse B. Mellor, was reasonable, under all tbe circumstances, and tbe directors should be charged with so much of it only as appears to be an unnecessary and unreasonable charge against the company. This remark disposes of the items: “Office boys at St. Louis,” $1,089.85; for telephone, $595.20; and for office supplies, etc., $2,147.94. It seems, prima facie, unnecessary and unreasonable that any portion of these large bills of expense should have been incurred during many months while the company was not engaged in mining operations. The fact that during the time Secretary Mellor was receiving his salary he was employed as private secretary of McClure, does not of itself reflect light upon the reasonableness of the salary paid him by the company. It would become important only upon a showing that the services rendered to McClure personally were in fact paid for out of the company’s funds, and that his ostensible employment by the company was for the personal benefit of McClure. Our attention has not been called to any evidence on this point.
The item of $1,056.65, charged upon the books in favor of Paul A. Fusz, C. T. Bhoades, Boyd Bros, and AY. J. Schofield for expenses of this suit, should not be allowed in favor of the defendant directors. In this case we have the plaintiffs complaining of these directors for the diversion of funds of the company to unlawful purposes. The company was made a defendant because it could not be plaintiff. This suit is on behalf of the company. It would certainly seem to be a travesty upon justice that the company should be compelled to pay the expenses of a suit brought by minority' stockholders for the purpose of restoring delinquent trustees to a proper sense of their duties. The expenses of this suit became necessary through their wrongful action. They have resisted it, and this expense wras incurred for the purpose of enabling them to make good their defense against the complaining stockholders. Under such circumstances this item should be charged to the defendant directors.
No complaint is made in the pleadings as to the item of $5,- 076, “inexplainable shortages.” Nor does the evidence throw any light upon it. There is a suggestion in the testimony of one of the witnesses that it might be the result of mismanagement on the part of the company storekeeper, or owing to a natural shrinkage in value of supplies. If it resulted from either of these causes, it would not, prima facie, be chargeable to the directors. The mismanagement of an employe of the company does not necessarily charge the directors for any loss occasioned thereby, unless it is apparent that they knowingly and willfully allowed such employe to pursue a course of action with reference tc the business from which resulting loss would be equivalent to misappropriation of the assets of the company. The directors, when acting within the scope of their authority, are bound only to the exercise of good faith and the use of their best judgment in the conduct of the business. They cannot be held liable for mere mismanagement on the part of the employes of the company. Their duties do not make them insurers of the property of the company, nor guarantors that the enterprise undertaken by the corporation shall be successful and profitable. Upon the record it cannot be determined whether the directors were at fault with reference to this item.
Prima facie the directors were empowered to maintain an office at Butte after they were ordered to return the records to the state of Montana. That was the place designated in the charter for the principal office. The charge of $180 per month for this purpose, except so far as it may appear to have been unreasonable and unnecessary, is a proper charge, and they may not be held to account for it. It appears that this expense was soon stopped by a removel of the office to Granite county, whereupon it became wholly unnecessary.
No contention whatever was made in the district court concerning the supplies on hand and the diamond drill. These items are not mentioned in the pleadings among the specific charges of misappropriation, and they are mentioned only incidentally in the evidence. It seems to have been assumed that they were not at all within the purview of the controversy. Under these circumstances we shall not venture an opinion with reference to them. Nor was any complaint made touching the silver bullion withdrawn from the bank. Indeed, it appears incidentally that it was sold, and the proceeds accounted for.
The most- serious question arises upon the contention of the parties with reference to the conduct of the directors in permitting the judgments to be taken against the company in the United States Circuit Court for the District of Montana in favor of the National Bank of St. Louis and Charles D. McClure, the president. These were for $29,903.06 and $9,583.30, respectively. They were rendered in actions brought by the plaintiffs during the pendency of this action, and were for moneys borrowed by the directors for the use of the company, and actually expended in its behalf. The claim of the bank was based upon two promissory notes — one payable to itself, from the defendant company for $3,500, with accrued interest; and the other for the sum of $18,000, with accrued interest, due and payable from the defendant company to the State Bank of St. Louis, and by it transferred to the plaintiff bank. The former of these was executed after the commencement of this action for moneys- obtained by the directors to pay taxes, insurance and other current expenses of the company. The latter was a renewal of two notes for $10,000 each, after certain payments had been made thereon, executed in December, 1896, and March, 1897, for moneys obtained for a like purpose. Doubtless some of these funds were used to pay salaries also, though this appears only by inference. The claim of McClure was for money advanced to the company to repay to stockholders the assessment made upon the stock of the company, to enjoin the collection of which was one of the purposes of this action. Certain of the stockholders had paid their share of it without complaint. But when this action was brought the assessment was declared void for want of legal notice. Thereupon McClure advanced the money to repay the stockholders, the funds derived from their payments having been expended for other purposes, conceived by the directors to be legitimate.
During the period, as a whole, between June 27,1892, and the date of the institution of this action, the company’s business did not result in profit. Sometimes there was a surplus; generally there was none. After the operations was finally closed in February, 1897, there was no income. Indeed, on March 4th of that year there had been contracted an interest-bearing debt of $20,000, consisting of the two $10,000 notes referred to above. The whole of these funds thus obtained, so far as we can judge, except the -portion expended to pay the last item of expense, namely, the salaries, and perhaps the expense of keeping an office in St. Louis, were devoted to legitimate purposes of the company. It was the manifest duty of the directors to obtain money to pay these current charges, either by borrowing or by levying an assessment upon ’the stockholders. Their devotion of a part of the funds borrowed to unlawful purposes did not affect the obligations of the company to the banks, even though it be conceded that the requirements of the by-laws as to the execution of the notes were not strictly observed. The company obtained the money and used it. The bank was entitled to have its demands satisfied; and, even after this action was begun, the current expenses continued, except that the payment of salaries ceased, and moneys borrowed to pay them were charged against the company. Under the circumstances the directors could not resist the collection of the demand by the bank, even though it was done by the sale of property belonging to the company. The bank’s judgment is now satisfied. But, if it were not, it would be impossible to investigate it in this proceeding, and set it aside for fraud or any other reason, because, if for no other reason, the bank is not a party to this suit. If the property of the company, however, was thus sacrificed, and the plaintiffs suffered loss, this would probably furnish an additional ground for relief against the defendant directors.' But such ground of relief was not contemplated by the pleadings in this case, nor agitated in the proof on the trial.
So far as the judgment of McClure is concerned, it also stands as a charge against the company, to be satisfied out of any assets belonging to the company after he and his codefendants have accounted for the funds misappropriated by them; for it would be manifestly wrong’ to compel him to account to the company with his codefendants for the misappropriated moneys, and then leave him without any means for reimbursement. This would be tantamount to compelling him to make a double return to the company for his wrong. The money collected by the company upon the unlawful assessment was devoted to the purposes of the company. Having been unlawfully collected, it became a debt from the company to the stockholders who had paid it. After he had discharged his duty to the company, it should in turn discharge its duty to him, thus reimbursing the outlay made by him.
The judgment and order denying a new trial are reversed, and the cause is remanded to the district court, with directions 'to take an account of all moneys wrongfully paid out by the defendant directors, and to charge them therewith, together with interest thereon at the legal rate upon each item, from the date of its misappropriation until the date of the account, and to render a judgment against them for the amount so found due. For this purpose the court should hear such other testimony as may be necessary to take the account in accordance with the suggestions herein contained.
Reversed and remanded.
Mr. Justice Milburn and Mr. Justice Holloway concur.
|
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] |
Per Ouriam.
Relator’s application for a writ of supervisory control or some other appropriate writ herein, is hereby denied.
|
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] |
Per Curiam.
Upon motion of the respondent herein this appeal is hereby dismissed.
|
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] |
HON. ERANK ITEERY,
Judge of the Sixth Judicial District, sitting’ in the place of the Oiiiee Justice, delivered the opinion of the court.
This is an original proceeding in this court, instituted by relator, to restrain the secretary of state from certifying to the various county clerks of this state, as candidates of the Anti Trust Democratic party and of the Anti-Trust Republican party, tbe names of candidates for presidential electors, representative in congress, and the several state offices.
Tbe complaint alleges, among other things, that relator is a citizen of tbe United States and of tbe state of Montana, an elector thereof, and tbe nominee of tbe Republican party for clerk of tbe supreme court; that there has been filed in tbe office of tbe secretary of state a paper purporting to be a certificate of nomination by a committee of tbe Anti-Trust Democratic party for presidential electors, representative in congress, and tbe several state offices, and also what purports to be a certificate of nomination by a committee of tbe Anti-Trust Republican party for presidential electors, representative in congress, and tbe several state offices; that such political parties bad no existence prior to tbe 7th day of December, 1903, and had no power or authority to make such nominations; and relator therefore prays that the secretary of state be restrained and enjoined from certifying to tbe several county clerks tbe names of tbe candidates purported to have been nominated and selected by said committees.
The answer sets forth tbe fact that, pursuant to a call heretofore issued, a mass convention, composed of electors of tbe state, to the number of about 650, representing all the counties of tbe state, with one or two exceptions, assembled in tbe city of Helena on tbe 7th day of December, 1903. So far as tbe purposes of this mass meeting are disclosed by tbe call under which it assembled, they are: “To take steps to organize one or more state central committees opposed to corporate rule, and that will give to tbe voters of this state an opportunity to vote for men free from corporate control and dictation at our next state election.” After the organization of the convention and the promulgation of a platform of principles, an executive committee of five was selected, whose power and authority is stated in tbe following resolution passed by said convention: “Be it resolved, that tbe executive committee be given full plenary powers to act for and on behalf of this convention to .nominate candidates for state offices at the next general election, in the names Anti-Trust Democratic party and Anti-Trust Republican party, to fill vacancies which might occur on the ticket of said parties, and to do everything that may become necessary to a proper furtherance of the cause.” After the adjournment sine die of the meeting, the executive committee published two calls, one for each of the two said political parties, calling a convention for each to nominate candidates. Subsequently the committee revoked these calls. Thereafter, pursuant to the above resolution, said committee did cause to be filed in the office of the secretary of state certificates of nomination as heretofore stated, each of which said certificates recites the fact that, all of the members of said committee being present, the same were made by and through its chairman and secretary. The certificates differ only in the names of the candidates for presidential electors and representative in congress, the chairman and secretary, and the dates upon which said certificates purport to have been made.
The case was submitted upon relator’s motion for judgment on the pleadings.
The first question that confronts, us in the determination of this case is whether a new political party was organized on the 7th day of December, 1903, and, if so, did it then have the power or authority to nominate candidates for the various offices to be voted for on the 8th day of November next ?
The call under which the mass convention assmbled does not specifically state that it is for the purpose of organizing a new political party or parties, but this might be inferred from the statement therein as to the purpose of the meeting. The call, however, does not state that the convention is to assemble for the purpose of nominating candidates for any offices whatever. Unquestionably, electors from the several counties of the state could assemble at a given place and organize a new political party; but, in order to have the ticket thus nominated printed at public expense upon the official ballot, certain formalities and requirements are necessary to entitle the ticket to legal recognition. In the first place, to make party nominations, there must be a substantial representation of the people of the party. They must, first, have been informed of the purposes for which the meeting was called; and, second, must have been given an opportunity to participate in such a meeting, or it is not such a representative body as the law requires. (State ex rel. Woody v. Rotwitt, 18 Mont. 502, 46 Pac. 370; State ex rel. Russel v. Tooker, 18 Mont. 540, 46 Pac. 530, 34 L. R. A. 315; State ex rel. Metcalf v. Johnson, 18 Mont. 548, 46 S. W. 533, 34 L. R. A. 313; State ex rel. Scharnikow v. Hogan, 24 Mont. 383, 62 Pac. 583; State ex rel. Hatch v. Smart, 24 Mont. 413, 62 Pac. 591.)
Section 1310 of the Political Code is as follows: “Any convention or primary meeting held for the purpose of making nominations to public office, or the number of electors required in this chapter, may nominate candidates for public office to be filled by election in the state, and a convention or primary meeting within the meaning of this chapter is an organized assemblage of electors or delegates representing a political party or principle.” This convention was not composed of electors or delegates of a political party, but electors advocating a principle, and assembled, we presume, for the purpose of organizing a party. Until there was an organization and an authoritative declaration of the principles of the assemblage, it could have no existence as a political party, and consequently could not make party nominations. If it was a mass convention of electors of the state, assembled for the purpose of nominating candidates for office, it could have done so, provided it was called together for that purpose, and was a representative body of the electors of the state advocating or representing a principle.
Waiving the question as to whether the mass convention held in Helena on the 7th day of December, 1903, was a representative body of the electors of the state, and therefore entitled to legal recognition, we are unable to construe the language of the call for tbe mass convention into an invitation to tbe electors of the state to assemble and nominate candidates for public office. The action of the executive committee in calling nominating conventions clearly indicates that the committee at that time placed no such construction on the purposes of the convention, or the authority of the committee to make nominations. If the convention could not make nominations, it certainly could not delegate to a committee authority it did not possess.
Aside from this, there is an insuperable objection to the validity of the certificates. This convention, through its executive committee, assumes an anomalous position. It performed the marvelous feat of nominating two tickets, composed of different persons, as candidates for the same offices. By what piece of legerdemain the members of the convention expected to elect both tickets, we are unable to surmise. Such a proceeding is not only wrong, but illegal, and is within the inhibition of the Xirovisions of Section 1314 of the Political Code, which is as follows: “No certificate of nomination must contain the name of more than one candidate for each office to be filled. No person must join in nominating more than one person for each office to be filled, and no person must accept a nomination to more than' one office.” This committee has assumed the authority to nominate different persons for presidential electors and representative in congress. This could not have been done by the convention, nor can it be done by the executive committee, and the names of such nominees are therefore not entitled to places on the official ballot.
Por the foregoing reasons, we are of opinion that the facts stated in defendant’s answer constitute no defense, and relator’s motion for judgment on the pleadings is sustained.
Heretofore the decision of this court was announced, and an injunction as prayed for by relator issued.
Mr. Justice Milburn and Mr. Justice Holloway concur.
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] |
MR. COMMISSIONER POORMAN
prepared the following opinion for the court:
This is an action to have a deed to certain real estate declared a mortgage, and for an accounting of the rents and profits. At the trial of the case the court sustained defendants' motion for a nonsuit, and entered judgment in favor of defendants. The plaintiff appeals from the judgment and from an order overruling her motion for a new trial.
1. It appears from the record that on the 11th day of May, 1898, John Noyes and wife, being then the owners of lot 2 in block 58 of the Butte townsite, leased the same to the plaintiff herein for the period of three years, and also in the lease gave the plaintiff an option to purchase the property for the sum of $4,500, on condition that she comply with all the terms of the lease with reference to the payment of rent, and should make the payments specified in the option within the time therein stated, the last payment thereof being the sum of $2,500, which was to be paid on or before the 11th day of May, 1901. Time was made of the essence of this agreement, and the lease as well as the option was to become null and void in case the lessee (appellant here) should fail to comply with the terms thereof. On May 4, 1899, Mrs. Morrison, the appellant here, became indebted to the respondent Jones in the sum of $3,300, and as security for the payment thereof assigned to Jones this lease and option, with the agreement that Jones should have possession of the property, should rent the same, and account for the net proceeds arising therefrom. This indebtedness from Mrs. Morrison to Jones appears to have been increased, and on May 2, 1900, Mrs. Morrison executed and delivered to Jones, for a consideration of $5,089.80, a bargain and sale deed, by the terms of which she sold, assigned, transferred and conveyed to Jones and his heirs all-of her right, title, interest, claim, demand, possession and right of possession of, in and to this property. This deed also makes specific reference to this lease and option which then existed between Noyes, the owner of the1 properly, and Mrs. Morrison, and includes the lease in the conveyance. The deed then contains this further statement: “It: is agreed and understood, that if said second party shall make the payments required under said lease and agreement from, said John Noyes and his wife to the said first party and obtain' a deed of conveyance for said premises, that, the title thereby' conveyed shall be and remain the property of said second party or his assigns, free from all claims and demands of the said first party, and all and every person claiming, or to claim' through and under her.” It is further specified in this deed that the grantor surrenders, to the grantee, Jones, the right to, the possession of the property, “and he shall henceforth be entitled * * * to the same, and to receive the rents, issues and profits thereof without let or hindrance on the part of the first party or any person claiming under her.” Concurrent with this deed a written agreement was entered into between the parties, by the terms of which Jones is declared to be the owner of this lease and agreement to convey, executed by Noyes to Mrs. Morrison, and Jones further agrees therein that he will assign this lease and option to Mrs. Morrison on condition that she pay to him the sum of $5,089.80, together Avith interest, on or before’ the 14th day of May, 1901, provided this payment is made before Jones shall acquire a deed of conveyance from Noyes, but that, if Jones shall acquire the deed of conveyance from Noyes, then the amount required to be paid is the sum of $5,089.80, plus $2,500, besides the interest thereon, Avhich payment shall be made before the 14th day of May. In the event this payment is made by Mrs. Morrison at any time prior to the 14th day of May, 1901, Jones agrees to account to her for the rents received from the premises from May 2, 1900.
The appellant contends that this deed is a mortgage. The rule adopted by this court for determining whether a deed absolute on its fact is a mortgage is that no conveyance can be a mortgage unless it is made Tor the purpose of securing the payment of a debt or the performance of a duty existing at the time the conveyance is made, or to be created or to arise in the future. (Gassert v. Bogk, 7 Mont. 585, 19 Pac. 281, 1 L. R. A. 240.)
The original indebtedness, as will be noticed, was $3,300. The consideration expressed in this deed was $5,’089.80. A considerable portion of this consideration was therefore not included within the former agreement between the parties, and was not secured thereby. The test is whether the grantor in the deed sustains the relation of a debtor to the grantee. In the present case, could the grantee Jones, at any time after the execution of the deed, have successfully prosecuted an action against Mrs. Morrison to recover the consideration expressed in the deed? The written terms of the deed and the concurrent agreement appear to cover about every phase of' the case, and negative any claim of indebtedness. Mrs. Morrison does not in either of these instruments agree in any manner to pay to Jones any sum whatsoever. There is nothing in either of these instruments that would give Jones any right of action against Mrs. Morrison, nor could he, under the terms of these instruments, maintain any action against her or compel her to pay him any sum whatsoever. There was, therefore, no indebtedness existing between these parties; hence there could be no mortgage ; for if this instrument was a mortgage as to Mrs. Morrison, it was also a mortgage as to Jones, and, if a mortgage, there must have been an indebtedness. Being no indebtedness, there could be no mortgage. (Gassert v. Bogk, supra; Martin v. Allen, 67 Kan. 758, 74 Pac. 249; Reed v. Parker, 33 Wash. 107, 74 Pac. 61.)
It further appears from this record that Mrs. Morrisson did not pay Noyes the $2,500 due under her option May 11, 1901, but that defendant Jones made this payment. If this instru ment was in fact a mortgage, and Jones had not made this payment to Noyes, the rights of both Mrs. Morrison and Jones would finally have terminated with respect to this property, and Mrs. Morrison would still be liable to Jones for this indebtedness, if it was an indebtedness, of $5,089.80, with the interest thereon; but that indebtedness was canceled by the taking of this deed, as appears from the written agreement between the parties in this case. !
The claim made by appellant that this deed is a mortgage cannot be sustained.
2. There is no evidence in this cause showing that any payment or tender was made to Jones within the time required by the terms of this written contract, or in fact that any tender whatsoever was made. The plaintiff’s rights, if she had any, to enforce a conveyance, were therefore lost by her failure to comply with this written agreement.
3. It is further complained that the court improperly entered judgment decreeing this instrument to be a deed; that the same could not properly be done on a motion for nonsuit. This -is strictly an equitable action, and the defendant may, if he chooses, at the close of plaintiff’s case, submit the cause to the court for decision; and where the plaintiff’s evidence fails to sustain the allegations of her complaint there is no inconsistency in the court’s rendering judgment on the merits of the cause, so far as it is necessary for plaintiff to maintain the same to entitle her to recover. There is no such thing as technical non-suit in a strictly equitable action.
4. The appellant claims, in his specification of errors, that the introduction in evidence of this concurrent agreement dated May 2, 1900, was error. This agreement was a part of the transaction between plaintiff and defendants respecting this property, and it was a proper matter to be inquired into by the court.
We recommend that the judgment and-order appealed from be affirmed.
Per Curiam. — For the reasons stated in the foregoing opinion, the judgment and order are affirmed.
Mr. Justice Milburn, not having heard the argument, takes no part in this decision.
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] |
PER CURIAM.
Respondent’s motion to dismiss the appeal from the order denying plaintiff’s motion for a new trial is this day, after due consideration, sustained, and the appeal from said order is accordingly dismissed. It is further ordered (May 28, 1917) that the appeal from the judgment herein be, and the same is hereby, dismissed.
Mr. G. W. Keeley and Mr. S. P. Wilson, for Appellant.
Messrs. Scharnikow & Jordan, for Respondent.
|
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
On September 27, 1909, Frank Robitaille, by a deed absolute in form, conveyed to J. W. Boulet a ranch, consisting of approximately 1,100 acres, situated at Feely Station, in Silver Bow county. In June, 1912, Robitaille died, and the administrator of his estate instituted this suit to have the deed de dared to be a mortgage, to secure an accounting of rents and profits, and to redeem the property. The only material issue raised by the pleadings is whether the conveyance was intended to evidence an absolute sale or security for a debt. The trial resulted in favor of defendant, and plaintiff appealed from an order denying him a new trial.
1. On the Motion to Dismiss. In the preparation of his brief, counsel for appellant apparently made no effort to comply with rule 10, subdivision 3b, of the rules of this court (123 Pac. xii). There are not any specifications of errors, but since there is but a single contention made, viz., that the evidence is insufficient to sustain the findings, we overlook the shortcomings of counsel in this instance in order to reach the merits of the controversy. The motion to dismiss is overruled.
2. On the Merits. The solution of the question presented depends altogether upon the intention of the parties to the transaction of September 27, 1909. (27 Cyc. 1007.)
The evidence offered by the plaintiff tended to prove that the trans-action had its inception in an application by Robitaille to Boulet for a loan; that Robitaille was in financial straits and pressed by a creditor who had a mortgage upon his ranch; that Boulet gave to Robitaille an agreement of some sort, by the terms of which the ranch could be repurchased at the end of one year for a fixed sum; that Robitaille retained possession of the ranch; that for the subsequent years the ranch was assessed to Robitaille; that Robitaille made payments of considerable sums to Boulet after the transaction; that a contemporaneous agreement with reference to Robitaille’s personal property lends aid to plaintiff’s theory; and that the ranch was reasonably worth a very much greater sum than passed as the consideration for the deed. These facts and circumstances, if standing alone and unexplained, would warrant a finding that the deed was intended as a mortgage to secure an existing indebtedness. (Murray v. Butte-Monitor Tunnel Min. Co., 41 Mont. 449, 110 Pac. 497, 112 Pac. 1132.)
Unfortunately for plaintiff, the facts and circumstances enumerated above do not stand alone, and are not unexplained. Moreover, in this court, plaintiff must sustain the burden of showing that the evidence preponderates against the trial court’s findings, (Gibson v. Morris State Bank, 49 Mont. 60, 140 Pac. 76.) The evidence as a whole is in sharp conflict as to the character of the possession by Robitaille after September 27, 1909, as to who defrayed the expense of operating the ranch and improving it, as to who paid the taxes, and as to the value of the ranch at the time the deed was given. Defendant offered evidence to the effect that Robitaille’s application for a loan was rejected altogether; that the transaction was a sale outright; that for a valuable consideration, subsequently passed to him; Robitaille surrendered his contract to repurchase; that the transaction relating to the personal property was independent of the one relating to the real estate; that after September 27, 1909, Robitaille frequently disclaimed any interest in this ranch, and finally made, homestead entry on 160 acres of government land located near by. An explanation of the payments made by Robitaille to Boulet, after September 27, 1909, was also tendered.
The trial court, with the witnesses before it, and therefore in a better position than are the members of this court to pass upon their credibility and the weight to be given to the testimony, accepted defendant’s theory of the transaction, and found that the deed was intended to evidence an absolute sale, and was not intended as a mortgage to secure an indebtedness. Having accepted defendant’s evidence as true, that finding is amply supported by the record. (Morrison v. Jones, 31 Mont. 154, 77 Pac. 507.)
Appellant has failed to sustain the burden of showing that the evidence preponderates against the findings, and for this reason the order is affirmed.
Affirmed.
Mr. Chief Justice Beantly and Mr. Justice Sanneb concur.
|
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
The defendant company’s railroad runs west from Huson, Montana, and immediately north of the residence of Dolphis Tetreault. The railroad right of way was fenced on both sides, thereby cutting off access from Tetreault’s residence to the public road. To accommodate Tetreault the railway company constructed a private grade crossing and a gate in its right of way fence on either side. One of these gates was left open by some unknown person and plaintiff’s cattle wandered through on to the railroad track, and some were killed and others injured. Plaintiff recovered a judgment in the lower court and the railway company appeals therefrom and from an order denying its motion for a new trial.
1. The principal question presented is: May plaintiff maintain his judgment upon the facts stated ? Or, stated differently, is it necessary for plaintiff to allege and prove that the railway company knew the gate was open or that it was open for such a length of time that notice may be imputed to it?
In 1891 the legislature enacted a statute which required every railway company operating in this state to fence its tracks against domestic animals (Laws 1891, p. 267), or respond in damages for any such animals killed or injured by reason of the want of such fence. In Beckstead v. Montana Union R. Co., 19 Mont. 147, 47 Pac. 795, it was said that this statute was substantially the same as one in. Iowa, and under the Iowa statute it had been held that after complying with its terms in the first instance, the railroad company could be held only to the exercise of reasonable eare to keep the fencing in repair and gates and bars closed. (Henderson v. Chicago, R. I. & P. R. Co., 43 Iowa, 620.)
In 1895 the Codes were adopted. Section 950, Civil Code, required every railroad corporation operating in this state to make and maintain a good and sufficient fence on both sides of its tracks, and in ease any such corporation did not do so, it should be liable to the owner for any domestic animal killed or injured by its trains unless the accident occurred through the fault or neglect of the owner of the animal. At the same time section 951 was enacted, as follows: “Every railroad corporation or company operating any railroad, or branch thereof, within the limits of this state, which shall negligently injure or kill any horse, mare, gelding, filly, jack, jenny or mule, or any cow, heifer, bull, ox, steer, or calf, or any other domestic animal, by running any engine or engines, car or cars, over or against any such animal, shall be liable to the owner of such animal for the damages sustained by such owner by reason thereof. The killing or injury shall be prima facie evidence of negligence on the part of such corporation or company.” This section declares the rule of reasonable care -and renders a railroad corporation liable for negligence in killing or injuring domestic animals without reference to. the place where the accident occurs. If it was intended to require proof -of negligence in an action brought under section 950, that section is meaningless, for the next section covers the subject more fully. If it was intended to make a failure to build and maintain a good and sufficient fence prima facie evidence of negligence only, the lawmakers chose very inapt language to express their meaning. They, experienced no difficulty in expressing the idea in section 951.
In construing a statute we are required to give to the words employed their ordinary meaning, unless it is made apparent from their character or the context or subject that a different meaning was intended. (State ex rel. Anaconda C. M. Co. v. District Court, 26 Mont. 396, 68 Pac. 570, State ex rel. Gillett v. Cronin, 41 Mont. 293, 109 Pac. 144.)
If the language is plain, simple, direct and unambiguous, it does not call for construction by the courts. It construes itself. (Osterholm v. Boston & Mont. C. C. & S. Min. Co., 40 Mont. 508, 107 Pac. 499.)
Applying these rules in the light of the provisions of section 951, and it is apparent that it was the intention of the legislature in enacting section 950 to change the rule of liability theretofore recognized and applied, and to require a railroad company at its peril to make and maintain a good and sufficient fence on both sides of its tracks or respond in damages for domestic animals killed or injured by reason of its failure to do so, unless the owner of the animals is at fault. The statute is not satisfied by the construction of a fence sufficient to meet its requirements. The continuing obligation is imposed to maintain such fence in a condition to effectuate the purpose intended. With certain amendments not involved here, sections 950 and 951 were brought forward into the Codes of 1907 as sections 4308 and 4309, respectively, and state the law upon the subject to-day.
The gate in question was a part of the right of way fence. The statute imposed upon the railway company the duty to see that it was kept closed (Wabash Ry. Co. v. Williamson, 104 Ind. 154, 3 N. E. 814), and the failure to keep it closed was negligence per se.
It was not necessary to allege or prove that the company. knew or in the exercise of reasonable care should have known that the gate was left open. If the rule is a harsh one, relief from its operation must be sought in the legislature. We have given to the language of section 4308 (950, Civil Code) the only meaning of which it is apparently susceptible.
It is not necessary to determine whether plaintiff must negative fault on his part or whether the negligence of the plaintiff is an affirmative defense, for in this instance the plaintiff assumed and maintained the burden in his pleading and proof.
2. Some contention is made that the plaintiff is estopped by his conduct to claim damages in this instance; but there is not anything in this record to indicate that the railway company was misled to its prejudice by anything said or done by the plaintiff. (Yellowstone County v. First Trust & Savings Bank, 46 Mont. 439, 128 Pac. 596.)
3. We have examined the specifications of error predicated upon the admission and rejection of evidence and upon the' giving of certain instructions, but fail to discover prejudicial error.
The judgment and order are affirmed.
(Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Sanner concur.
|
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
The city of Butte undertook to create a special improvement district for paving and other purposes. Within the time allowed by statute a protest was filed with the city clerk by persons owning more than 50 per cent of the real estate included within the proposed district. On the day following and within the same period certain of the persons who signed the protest notified the council in writing that they withdrew their objections to the creation of the district. When the council came to consider the subject, it eliminated the withdrawals from the protest and found that the protest, as thus changed, contained the signatures of the owners of only 46 per cent of the area embraced within the proposed district, and was therefore insufficient. It passed a resolution creating the district and directed the clerk to advertise for bids, and this suit was then instituted by one of the protestants to enjoin the city from proceeding further. The cause was submitted for decision upon an agreed statement of facts. The trial court found for defendant and plaintiff appealed.
In the agreed statement counsel for the respective parties submitted to the court but a single question: May a property owner who has signed a protest against the creation of a special improvement district within the period allowed for presenting such protest withdraw therefrom and thereby defeat the protest ? It was conceded by both parties that, if the withdrawals were not properly allowed, the protest was sufficient to defeat the project, whereas, if the withdrawals were properly allowed, the council correctly held the protest insufficient.
The statutes governing the creation of special improvement districts in cities and towns (Chap. 89, Laws 1913, as amended by Chap. 142, Laws 1915), provide for a resolution by the city council expressing its intention to‘create the district in contemplation and for notice to everyone having property within the proposed district. Within fifteen days after the first publication of the notice, any owner of property liable to assessment for the work may make protest in writing and file such protest with the city clerk. At the next regular meeting of the council after the expiration of the time for filing protests the council shall hear and pass upon all protests. If no protests are filed, or if protests are filed which are found to be insufficient or. are overruled or denied, “immediately thereupon the city council shall be deemed to have acquired jurisdiction to order the proposed improvement. ’ ’ There is not any provision in the statute which in terms, authorizes one who has signed a protest to withdraw therefrom, but the legislature has seen fit to refer the question of the propriety of creating a special improvement district to the owners of the majority of the property responsible for the cost of the improvement. This right to protest is simply the right to petition — the right to express the will of the property owner affected by the improvement. In the exercise of its authority over the subject, the legislature has limited the time within which such property owner may express his dissent, but within that limited time he is allowed the utmost liberality for the expression of his views, and it is not until the full period thus allowed him has expired that he is foreclosed from making known his final decision. So long as the subject is referred to him and he is invited by the notice to express his disapproval, if any such he has, he should be held to be free to make known his views or to change them, if he acts within the time allowed by law.
Our statute is somewhat peculiar, in that jurisdiction to proceed with the improvement is not conferred upon the city until it has first determined that a sufficient protest is not before it. The right to petition implies the right to withdraw from a petition (State ex rel. Lang v. Furnish, 48 Mont. 28, 134 Pac. 297; State ex rel. Fadness v. Eie, ante, p. 138, 162 Pac. 164); and since it is the obvious purpose of this legislation to permit the owners of a majority of the property affected to determine the propriety of the improvement, that purpose is best subserved by a liberal interpretation of the statute in favor of those directly interested, 'if they act within the time fixed by the statute or acquiesce for that period. These views are supported by the better reasoning and by the decided weight of authority. The subject is treated thoroughly and the decided cases reviewed in Sedalia v. Montgomery, 227 Mo. 1, 127 S. W. 50.
Neither do these views conflict in the least with the authorities which hold that, if the statute itself confers jurisdiction upon the council which is subject to be defeated by filing a protest signed by the owners of a majority of the property affected, then the withdrawal of names from such a protest sufficient in the first instance to oust jurisdiction cannot have the effect of reinvesting in tbe council tbe jurisdiction lost when tbe protest was filed. By the express terms of our statute jurisdiction does not attach until the council finds that a sufficient protest is not before it, and therefore the withdrawal of names from the protest before the time for filing such protest has expired does not affect the question of jurisdiction. Though its exercise may occasion disappointment to the remaining protestants, the right to withdraw cannot be denied. When the time for the presentation of protests expired, the owners of less than one-half of the property affected were objecting to the improvement, and the council properly determined that such protest was insufficient.
The judgment is affirmed.
'Affirmed.
Mr. Justice Sa'nner concurs.
Mr. Chief Justice Brantly, being absent, did not hear the argument, and takes no part in the foregoing decision.
|
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] |
MR. JUSTICE SANNER
delivered the opinion of the eourt. On October 11, 1913, Herman A. Freyler, R. A. De Witt and Claud Robinson became directors of the corporation, Helena Motor Car Company. Freyler continued to act as such director until December 1, 1913, at which time he entered into a contract [1] for the sale of all his stock in the company and delivered to its president the following writing: '
“Helena, Montana, Dec. 1, 1913.
“Board of Directors of Helena Motor Car Co., City—
“Gentlemen: I hereby tender my resignation as secretary and a director of the Helena Motor Car Company, the same to take effect at once. Yours truly,
‘1 Herman A. Freyler. ’ ’
Thereafter, and on January 31, 1914, the company became indebted to the respondent in the sum of $173.57, which upon demand it failed to pay, whereupon the respondent brought this action against the company, Freyler, De Witt and Robinson— joining the latter three because as directors they had failed to file the annual statement required by law and due on January 20, 1914. Freyler resisted the suit, but judgment was entered against him according to the complaint, and from that judgment he prosecutes this appeal.
The contention of the appellant was and is that by virtue of his resignation he had ceased to be a director of the company before the duty to file the annual statement accrued, and therefore eannot be held to answer for the failure in that respect ; while the respondent insists that the writing above quoted was ineffective, under section 3852 of the Revised Codes, and therefore Freyler is responsible. The section referred to provides: “Any director, trustee or other officer-of a corporation may resign Ms office by delivering to the secretary or president of the corporation, or depositing in the postoffice, * * * addressed to the corporation, at its principal place of business, his written resignation, and filing in the office of the clerk and recorder of the county where the principal office or place of business of the said corporation is situated, a duplicate of the said resignation, together with an affidavit of the delivery or mailing of said resignation, as above specified, or an acknowledgment of service thereof and by publishing in two consecutive issues of the official paper of the county where said company may be doing business, a notice of said resignation, and the director, trustee, or other officer shall upon such filing and publication no longer be responsible for any act or default of the corporation, or of the other officers thereof, occurring after the date of said filing: Provided, however, that any director, trustee, or other officer, shall also comply with the by-laws of the corporation relating to resignations of directors or officers. This act shall apply to resident directors of foreign corporations having a place or places of business in this state, as well as to directors and other officers of domestic corporations.”
The corporation had no by-laws on the subject, and it is conceded that Freyler did nothing more than to deliver the writing above mentioned to its president and thereafter to refrain from acting as an officer or director of the company. At the common law, however, this would have sufficed (3 Thompson on Corporations, secs. 3886, 4358; Briggs v. Spaulding, 141 U. S. 132, 35 L. Ed. 662, 11 Sup. Ct. Rep. 924), and therefore was sufficient here, unless the section just quoted prescribes an exclusive method for resigning a directorship. We do not believe that such is its effect. Its language does not clearly indicate an intention to prescribe an exclusive method, but rather indicates a mode which is permissive, designed primarily for cases where the ordinary method may not be available or where positive proof of the resignation may be desired. The section forms no part of the law imposing the duty of filing annual statements (Chapter 63, Tenth Session Laws), and there is no special reason to believe that its provisions were enacted for the benefit of creditors. Counsel for respondent suggests that: “It prevents a man of great financial prominence, who has become a director in a corporation, from secretly resigning, and permitting creditors to make contracts with the corporation upon the strength of his supposed connection therewith, and using his previous secret resignation as a shield from liability.” But we do not understand that directors are personally liable at all events for the debts of the corporation, or that the creditors deal with a corporation upon the contingent liability of its directors, effective only in case the latter fail to see that annual statements are filed. Least of all can creditors be especially concerned in the mode by which someone, on whose responsibility they could not have relied, has severed his relations with the corporation before their debt accrued or the annual statement was due.
In our opinion, the resignation of the appellant Freyler from the board of directors of the Helena Motor Car Company was sufficient. He had ceased to be a director of the company before the debt evidenced by this judgment was incurred and before the annual statement was due. Failure to file that statement, or cause it to be filed, is therefore not a wrong which can be imputed to him; and as this is the only ground on which the claim of his liability is based, it follows that the right result was not reached in this case.
The judgment appealed from is reversed and the cause is remanded,- with directions to enter judgment for the appellant.
Reversed and remanded.
Mr. Cheep Justice Brantly and Mr. Justice Holloway concur.
|
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] |
MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
The defendant, convicted of the crime of larceny of certain steers and heifers (grand larceny), has appealed from the judg ment of conviction and from an order denying his motion for a new trial. It is contended that the trial court committed prejudicial error in admitting one item of evidence, in submitting a paragraph of its charge to the jury, and in denying the motion for a new trial on the ground that the verdict is contrary to the evidence. The record presents no substantial basis for any of the contentions made.
1. The defendant was charged jointly with one Ducolon, but was awarded a separate trial. The vital issue in the evidence was whether the animals charged to have been stolen belonged to Maggie J. Jenkins, the prosecuting witness, or to the defend-, ant. At the time of his arrest the defendant not being present, Ducolon made statements to the witness Nagues, the sheriff, in answer to questions by him, to the effect' that the defendant claimed the ownership of the animals. Nagues was permitted, over defendant’s objection, to rehearse these statements to- the jury. It is contended that this evidence was incompetent on the ground that it was hearsay, and that defendant was prejudiced by its admission. The ruling was erroneous, because the evidence was clearly hearsay. But its admission was not prejudicial, for the reason that, as already stated, the defense was that defendant was the -owner of the animals, and that he undertook to establish this claim by his own testimony and that of his other witnesses. The ruling was thus rendered harmless.
2. Though it be conceded that the instruction criticised by counsel was bad, it cannot, upon'the record presented, be made the subject of complaint. Subdivision 4 of section 9271 of the Bevised Codes requires the court to settle the instructions about to be submitted, without the presence of the jury, after permitting counsel a reasonable opportunity to examine them— not only those requested, but also those proposed by the court — and to make their objections and reserve their exceptions to the admission or rejection of any requested by counsel or proposed by the court. Counsel must then state the particular ground upon which an instruction is deemed erroneous, and the judge must pass upon their objections then made, objecting counsel reserving his exception if the ruling is adverse to him. Notes of the proceeding must be taken by the stenographer, embodying all the objections and exceptions to the rulings of the judge in giving or refusing any instruction. At the close of the trial these notes must be extended and filed with the clerk. Thereafter the exceptions reserved may be embodied in a bill of exceptions. If this course is not pursued, the propriety of the giving or refusing of' a particular instruction cannot be made a subject of inquiry either upon motion for a new trial or upon appeal. The express provision on the subject, at the close of subdivision 4, is: “No motion for new trial on the ground of errors in the instructions given shall be granted by the district court unless the error so assigned was specifically pointed out and excepted to at the settlement of the instructions, as herein provided; and no cause shall be reversed by the supreme court for any error in instructions which was not specifically pointed out and excepted to at the settlement of the instructions herein specified, and such error and exception incorporated in and settled in the bill of exceptions as herein provided.” The record does not disclose the proceedings had at the time of settlement. It therefore does not appear but that counsel for defendant was satisfied with the instruction as given, and that the contention now made is an afterthought.
3. The evidence is in hopeless conflict, both as to the identity and ownership of the animals and upon the question how they came to be in the possession of the defendant. The finding of the jury thereon, approved by the trial court in denying the motion for a new trial, is conclusive upon us. The contention that the verdict is contrary to the evidence must therefore be overruled.
The judgment and order are affirmed.
Affirmed.
Mr. Justice Sannee and Mr. Justice Holloway concur.
|
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] |
MR. CHIEF JUSTICE CALLAWAY
delivered the opinion of the court.
The plaintiff, while a homesteader upon government land, and before he made the final proof which is required as preliminary to the issuance of patent, executed an oil and gas lease to a predecessor in interest of the defendant. Patent was issued February 27, 1922, In May, 1923, plaintiff began suit against the defendant to quiet title to the land, his purpose being to rid the land of the lease; this upon the theory that the lease is void under both federal and state statutes.
The defendant corporation by answer admits reliance upon the lease. It alleges affirmatively in substance that during the year 1920 Gordon Campbell was engaged in getting what are commonly known as oil and gas leases upon lands within the supposed limits of the Rocky Ridge Dome in Toole county, which was then what oil operators call a wildcat field. Whether the dome contained oil or gas or other hydrocarbons was problematical, but there were geological indications which seemed to warrant the expenditure of time and money in exploiting the land within its confines with a reasonable expectation of finding these minerals, or some of them, in com mercial quantities. Campbell made known to the plaintiff and to other persons who were the owners of land within the field that if he could procure leases upon a sufficient acreage to justify the expenditure of the money necessary to drill one or more wells upon some part of the dome he would so do. On May 29, 1920, plaintiff executed to Campbell the lease in question. A portion of its terms and conditions are:
As party of the first part, plaintiff, in consideration of the sum of $1 and of the covenants and agreements to be kept and performed on the part of the party of the second part, granted, demised and leased the lands contained in his homestead entry to Campbell as “party of the second part, his heirs, successors or assigns, for the sole and only purpose of mining and operating for oil, gas, hydrocarbons and other minerals, and the laying of pipe-lines and building tanks, power stations and structures thereon, to produce and take care of said products, for the term of twenty years, and as much longer thereafter as oil, gas, hydrocarbons, or other minerals are found in paying quantities.”
It was provided that the lessee should either deliver to plaintiff the equal of twelve and one-half per cent of all oil produced and saved from the premises or pay in cash the equal of that per cent of the market value of the oil. Royalties respecting any gas or other hydrocarbons or minerals were likewise provided for. Other provisions need not be stated.
It is alleged that Campbell, having obtained leases upon 50,000 acres or more within the Rocky Ridge Dome, determined that a sufficient area had been obtained to justify the expenditure of the money necessary to drill and test the dome for oil and gas, and thereafter a well was drilled resulting in the discovery of oil within that area. Thereafter the lease in controversy was assigned to L. C. Stevenson, who later assigned it to the defendant. It is then alleged that Stevenson having caused the region in the vicinity of plaintiff’s lands to be examined by geologists so as to determine whether oil and gas in commercial quantities existed therein and whether the probability of discovering, producing and saving the same would justify the expenditure of large sums of money in testing the lands “all of which were then wildcat lands and had not theretofore been tested by any person for oil and gas,” eventually determined to proceed with the drilling operations; that relying upon the validity of the leases, including that obtained from plaintiff, Stevenson raised and expended approximately $250,000 in the development of the territory and on or about the fifth day of June, 1922, completed an oil well in the same township in which plaintiff’s lands lie, which ever since that date has produced oil in commercial quantities, and thereby demonstrated that all the • lands in the field including plaintiff’s were valuable for oil purposes; whereas before the exploratory activities such lands, including the lands of the plaintiff, had not even a speculative value for such purposes. These allegations the plaintiff did not deny.
Proceeding upon the theory that the lease is void and it being admitted by the defendant that its only claim to the land is by virtue thereof, plaintiff at the beginning of the trial moved for a judgment upon the pleadings, which the court denied. Plaintiff then announced that he elected to stand upon his motion for judgment and declined to introduce any testimony in support of his complaint,' Judgment of dismissal followed. The plaintiff himself caused the entry of the judgment. "Whereupon he appealed.
Counsel for defendant insist that plaintiff himself having caused the dismissal of the ease is not now in a position to say the court erred in rendering the judgment. "Whether this position is correct depends upon the force of the answer: Does it state a defense to plaintiff’s cause of action?
One may not appeal from an order denying a motion for judgment on the pleadings. (See. 9165, Rev. Codes 1921.) This being true, say counsel for defendant, the plaintiff may not do indirectly that which the statute prohibits him from doing directly. But in a given ease if the complaint states a cause of action and the answer does not state a defense thereto the plaintiff is entitled to judgment.
Had plaintiff demurred to defendant’s answer, had the court overruled the demurrer, had plaintiff refused to plead further and had judgment then been entered in favor of defendant, plaintiff’s right to appeal would not be challenged. His motion for judgment was in effect a demurrer to the answer. (Power v. Gum, 6 Mont. 5, 9 Pac. 575; Floyd v. Johnson, 17 Mont. 469, 43 Pac. 631.) Plaintiff’s action in asking the court to enter “such judgment as would allow of an appeal, was not such a consent to the judgment as to debar him of the right to appeal.” (Stevenson v. Matteson, 13 Mont. 108, 32 Pac. 291; Conner v. McPhee, 1 Mont. 73.) The method pursued by the plaintiff was a short cut to an ultimate decision, but in pursuing it he took the risk of losing his case, for if it should be determined that the answer states a defense, then having caused the court to do what it could not otherwise have done rightfully, he could not be heard to complain. (Moore v. Murray, 30 Mont. 13, 75 Pac. 515.)
To support his contention that the answer does not state a defense counsel for plaintiff insists that the lease is void upon two grounds: 'First, because it is in contravention of the policy of Congress in disposing of the public lands for that it constitutes an alienation of part of the land (U. S. Rev. Stats., secs. 2290, 2291; U. S. Comp. Stats., secs. 4531, 4532); second, because it violates a statute of Montana (sec. 6707, Rev. Codes 1921) which limits oil and gas leases to a term of ten years and the producing period thereafter.
Shortly after the cause was submitted we took up its consideration. First off, in order to settle’ one question, it may as well be said that the document in question is a lease within the meaning of our statutes. (Secs. 6902, 6903, Rev. Codes 1921.) It is very like that considered in Solberg v. Sunburst Oil & Gas Co., 70 Mont. 177, 225 Pac. 612.
While we were considering the interesting problems pre sented we were interrupted by a petition to dismiss the appeal, filed by defendant, on the ground that the questions involved have become moot. The petition sets forth that after the argument of the cause in this court the plaintiff served upon the defendant a paper called a “division order,” which relates to the lease in question and by its terms recognizes its validity and demands from the defendant as the owner and holder of the lease a percentage of the oil produced from the land which the lease covers. A copy of the division order is attached to the petition. By it the plaintiff “certifies and guarantees that he is the legal owner of two and two-thirds per cent of the production” of the wells on the land covered by the lease, “including the royalty interest”; declares that the defendant “is hereby authorized, until further notice, to receive oil from said wells, including the production from said tract, prior to date hereof for which settlement has not been made,” also, “the oil run in pursuance of this division order shall become the property of the Sunburst Oil & Gas Company at once,” and then gives directions respecting payment for the same; further plaintiff notifies the defendant that he looks to the defendant as “assignee of the original lease for the entire tract for pi’otection, compensation and indemnity as to his share of the production of the entire tract.”
In opposition to the petition to dismiss the plaintiff filed objections upon the following grounds: That the lease being void cannot be validated by ratification; that even if it were capable of being so validated, the alleged division order “was not a ratification thereof; nor is it a contract under which any new right in the defendant arises”; that the plaintiff has agreed to transfer an interest in the land involved to another person, consequently is without right or authority to make a ratification to the prejudice of that person.
As a part of his objections the plaintiff filed an affidavit in which he admits the execution of the division order and its transmission to the defendant. He sets forth at length the circumstances under which he came to make it, but he does not allege that the defendant or its agents had anything whatever to do with the action he took. He says that the tract of land involved has been producing oil for a number of months and he believes that regardless of the outcome of this lawsuit the defendant will be required to account to him for his share of production, even though the lease may be declared null and void; that in signing the division order he “did not give a single or passing thought to the lease or this lawsuit; * * * that the sole. purpose of giving the order was to hold the defendant for plaintiff’s share of oil and gas already produced and sold, as well as such oil and gas as might thereafter be produced during such time as the defendant might be in possession of the premises.” He then says that he mailed the division order to defendant on January 23, but defendant never accepted it, and then says that on the 27th of January he revoked the order.
In passing we observe that whether the defendant accepted the order or whether plaintiff attempted to revoke it does not change the fact that he voluntarily executed it in the first place. It has an important bearing on his conduct.
Counsel for plaintiff asserts that a contract illegal as against public policy cannot be rendered valid by a subsequent ratification; that the doctrine of relation may not be invoked to validate a conveyance which is illegal as against public policy; that estoppel may not be predicated upon a void instrument.
The correctness of these assertions as abstract propositions of law may be admitted; but whether a court of equity will afford relief to one so sunk in the mire of his own making as is this plaintiff is still another proposition. Ordinarily a court of equity will not aid either party to an illegal agreement. It leaves the parties where it finds them. (Glass v. Basin & Bay State Min. Co., 31 Mont. 21, 77 Pac. 302.) "What application that principle might have had had the plaintiff begun suit immediately after receiving patent for the land we need not consider; it has application to present conditions. A venerated maxim of wide application is that he who comes into a court of equity must come with clean hands. (Gazette Printing Co. v. McConnell, 45 Mont. 89, Ann. Cas. 1913C, 1327, 122 Pac. 561.)
In view of what follows let it be noted that the lease is not inherently vicious or immoral from any viewpoint. (Hartman v. Butterfield Lumber Co., 199 U. S. 335, 50 L. Ed. 217, 26 Sup. Ct. Rep. 63 [see, also, Rose’s U. S. Notes].)
From the pleadings and the facts shown in the petition to dismiss the appeal it is seen that several important developments in the situation have transpired since the lease was executed: Patent has been issued to the plaintiff; an assignee of the original lessee, recognized as such by the plaintiff, has sunk wells upon the tract of land which are producing oil in commercial quantities; the plaintiff now recognizes the lease and demands a portion of its fruits. Of course this last position is utterly inconsistent witb his first that the lease is void. To obviate this situation it is argued by his counsel that he has not estopped himself for the reason that the defendant being a trespasser must account for all of the oil it has taken from the land, so if plaintiff asks but a per centum of it he is only asking for a portion of that to which he is entitled.
It may be granted that a trespasser must account for all the oil he takes; but here again the plaintiff is inconsistent: By his division order he recognizes the defendant as the owner of the oil.
The facts as now developed in. this record are that the plaintiff, while a homesteader, and long before he made proof entitling him to patent, executed an oil and gas lease covering the land. Let it be conceded that the validity of the lease was doubtful. Whether the land was valuable for oil or gas purposes was purely speculative. The plaintiff obtains patent, and then sits by observing the defendant’s predecessor in in terest spend huge sums of money in exploiting the field; oil is found in paying quantities in the vicinity of his land; his land becomes of great value by reason of the foregoing facts; almost a year after the oil is found he begins this suit; then wells are driven upon plaintiff’s land which produce, and for several months have been producing, oil in paying quantities; then plaintiff, desiring to obtain a portion of the royalties reserved to him by the terms of the lease which by this suit he seeks to repudiate and without giving “a single or passing thought to the question of the lease or this lawsuit, ’ ’ serves upon the defendant the division order in question, which notifies defendant that plaintiff is the legal owner of a certain portion of the production of the wells on the land in question, “including the royalty interest” demands credit for such interest in all oil produced, declares that the oil run in pursuance of this division order shall become the property of the defendant at once, demands payment for plaintiff’s share in a certain manner and at a certain time, and gives notice to all persons concerned that plaintiff does not recognize the right of any sublessee of any part of the land involved to hold or distribute the plaintiff’s share of production, but the plaintiff looks to the defendant as assignee of the original lease “for protection, compensation and indemnity as to his share of the production of the entire tract.”
In view of the result whether the twenty-year provision made the lease void need not be decided. However, it is interesting to note that the land is now producing oil in paying quantities. It may continue to do so for more than twenty years. Query: Does that condition affect the question?
But plaintiff says that he has agreed to transfer an interest in the land to a third person, so under the provisions of section 7943, Revised Codes of 1921, which reads, “No unauthorized act can be made valid, retroactively, to the prejudice of third persons, without their consent,” he was without authority to ratify the lease even if he desired to do so. On June 7, 192J, plaintiff and his wife entered into an agreement with one C. M. Brinton in which it was set forth that, whereas there appears of record against the lands involved here what purports to be an oil and gas lease which is being contested in the courts of Montana, plaintiff claiming it to be null and void, and whereas plaintiff and his wife “desire to lease said lands for oil and gas, notice is hereby given that they have this day executed an oil and gas lease in favor of and to said C. M. Brinton, party of the second part, upon specified conditions that such lease is to be held in escrow in the Conrad National Bank of Kalispell, Montana, until final completion of said court action is had, whereupon said lease is to be delivered, upon the specified conditions, to said C. M. Brinton, who will then be the sole lessee of said lands for the purpose of prospecting and recovering oil and gas therefrom.”
It is fairly inferable from this document that in ease the plaintiff does not win this lawsuit it is not contemplated that the lease in escrow shall be delivered to Brinton. Upon this hypothesis it will not be. Under the agreement Brinton has not had and has not now any present interest in the land. His expectancy seems doomed to failure.
If the facts which are admitted in this record had been presented to the court in plaintiff’s complaint the court would have been justified in sustaining a general demurrer thereto upon the ground of a want of equity appearing upon the face thereof. For the same reason this court declines to aid the plaintiff; he does not come before it with clean hands. Having been, according to his own theory, a party to an illegal contract he now seeks to avail himself of that illegality to his own advantage and to the disadvantage of the other party. Having sat by while another expended toil and money in bringing forth riches he would take the riches and leave the other nothing. And lastly while he seeks to have the court declare the lease invalid he himself does that which declares it valid. He who seeks relief in equity must come with clean hands; he who does not must go hence without it.
The appeal is dismissed.)
Dismissed.
'Associate Justices Holloway, Stark and Matthews concur.
Mr. Justice Galen, being absent on account of illness,’ did not hear the argument and tabes no part in the foregoing decision.
Record certified to supreme court of the United States on application for writ of certiorari on March 19, 1925. Petition for writ denied May 11, 1925'.
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] |
MR. JUSTICE STARK
delivered the opinion of the court.
Plaintiff recovered judgment against the defendant for injuries sustained by him when a bicycle upon which he was riding was run into by an automobile driven by defendant. The defendant has appealed, and his only complaint is that the court erred in denying his motion for a directed verdict, made at the close of all the evidence.
The complaint charged the defendant with negligence in several respects, among them that he did not give warning of his approach, and that he failed to keep a lookout ahead. The defendant admitted the collision, but denied liability on the ground that plaintiff was guilty of contributory negligence.
It appears from the testimony that Park Street in the city of Butte, extends east and west, and at the point involved in this suit is fifty-nine feet wide between the north and south curbs. A street-car track extends along the center of the street. The distance from the north rail of the car track to the curb on the north side of the street is 27.35 feet. Alabama Street runs north and south and crosses Park Street at right angles. This street is forty feet wide between the sidewalk curbs.
The defendant’s account of the incident is that he was driving west on Park Street in an open type Pierce-Arrow car, without curtains, along a course midway between the street-ear track and the curb on the north side of the street at about 10 o’clock P. M., with his headlights on. The car had a right-hand drive. Lloyd Gage was at defendant’s left on the front seat; in the rear seat defendant’s wife sat at the left; next to her was Mrs. Gage; and on the right side was the defendant’s son Donald Kistler, with Richard Evans on his lap. When he reached a point ninety feet east of the intersection of Alabama Street he looked into that street and continued to do so until he reached its east line, but did not see the plaintiff approaching; and, continuing in the same course, just as he was about to cross the west line of Alabama Street, the plaintiff, riding his bicycle, headed directly south, dashed in front of the car and received the injuries complained of. As soon as defendant saw the plaintiff he applied the brakes to his car and stopped as quickly as possible. All of the witnesses who were asked about it at the trial testified that as the defendant’s car approached the scene of the accident it was traveling at from twelve to fifteen miles per hour, and likewise that, at least until it reached the east line of Alabama Street, it was midway between the car tracks and the curb.
There is some testimony in the record tending to corroborate defendant’s account. Lloyd Gage said that the collision occurred immediately after plaintiff appeared in front of the ear. A duly qualified witness said that under the circumstances shown to exist at the time, a car like defendant’s, going at fifteen miles per hour, would be brought to a stop in a distance of seventy to seventy-three feet from the time the driver started to apply the brakes.
Clem Vogel, who saw the bicycle and the car just at the time of the collision, from a point not more than sixty feet away, and immediately walked over to the car, said that when he reached it “it was just a little bit past the entrance to the Mueller home and it was midway between the sidewalk and the street-ear track.” The entrance to the Mueller home is between fifty and sixty feet west of where defendant placed the point of collision.
Plaintiff’s account is that lie rode his bicycle down the west side of Alabama Street, traveling about five miles per hour, and, at a point about three feet from the north line of Park Street, looked east on that street to see if any car was approaching and saw none. He then made the turn west on Park Street, riding along about three feet from the curb, and had proceeded about five.to ten feet when the defendant’s car ran into him from behind and inflicted the injuries. Other witnesses testified that before the accident plaintiff had made the turn on to Park Street and was riding west as close as possible to the curb, “hugging the curb,” one of the witnesses said. The witness Barker, who observed the collision from a point some 200 or 300 feet east on Park Street, testified that just before the car came in contact with the bicycle, it (the car) swerved to the left and then stopped quickly. The witnesses Evans and Donald Kistler, who were riding in the car and got out immediately after the collision, testified that the car was then parallel with the curb on the north side of Park Street at a point twenty to thirty feet west of the Alabama Street crossing, and these two witnesses, as well as the witness Barker, said it was then about» three feet away from the curb.
If defendant’s statement that when he approached the east line of Alabama Street he was midway between the street-car track and the curb on the north side of Park Street, headed due west, be taken as true — and there was no evidence to the contrary — and the testimony of the plaintiff and the witnesses Barker, Evans and Donald Kistler as to the location of the ear immediately after the accident, be also accepted, it follows that defendant was in error as to the point and cause of the collision, and that at some point beyond the east line of Alabama Street he turned the course of his car to the northwest toward the Park Street curb, and immediately before the accident again changed its course by “swerving to the left” so as to bring it parallel with the curb and about three feet therefrom, and that the collision in fact occurred just at the time the defendant turned his ear so that it was headed due west. This would accord with plaintiff’s statement, and the jury might reasonably have concluded that the accident happened in the manner testified to by him. They might likewise have reasonably concluded that the plaintiff was in plain view while the defendant was approaching him from across the street; for Mrs. Kistler, who was on the back seat of the ear, testified that before they reached the east line of Alabama Street, she saw the plaintiff on his bicycle riding down the side of that street toward Park Street, but that it gave her no concern because she supposed, of course, he would make the turn.
Clem Vogel from across the street saw the plaintiff come down Alabama Street and turn west. Edlo Champion and ' Lester Hartsell saw him make the turn and proceed west along the curb while they were at a point on Park Street 200 feet east.
There were no other vehicles of any kind on the street at the time; it was entirely open, free from traffic and lighted; its whole width for the time being was for the use of plaintiff and defendant, subject only to the rights of the other; both plaintiff and defendant had good eyesight.
Automobiles and bicycles have equal rights in the use of streets, the drivers of each owing a duty to the other to exercise reasonable care. (Berry on Automobiles, p. 876, sec. 963.)
On approaching the street intersection it was the duty of plaintiff and defendant each to keep a lookout ahead. He was not only required to look, but look in such an intelligent and careful manner as to enable him to see the things which a person in the exercise of ordinary care and caution for his own safety and the safety of others would have seen under like circumstances. (Bramley v. Dilworth (C. C. A.), 274 Fed. 267; Keith v. Great Northern Ry. Co., 60 Mont. 505, 199 Pac. 718; McDonald v. Yoder, 80 Kan. 25, 101 Pac. 468.)
Under the defendant’s theory of the case, if the pláintiff had looked before attempting to cross the street, he could not have failed to see the approaching car. If he saw the car coming in time to stop his bicycle so as to avoid the accident and then either thoughtlessly or willfully undertook to pass in front of it and was injured in consequence of the attempt, he was guilty of culpable negligence himself which so far contributed to his injuries as to deprive him of the right to recover from the defendant, even though the defendant himself may have been guilty of negligence. (Hunter v. Montana, Central Ry. Co., 22 Mont. 525, 57 Pac. 140.) Looking at the incident, however, from the light of the plaintiff’s recital, he had made the turn into Park Street at a proper place, and was riding west on that street in a place where he had a right to be, within three feet of the curb; he was in plain view of the defendant while the latter was driving his car for a distance of fifty or sixty feet immediately before the collision; there was an open and unobstructed portion of the street at his left, as much as twenty-four feet wide, between his bicycle and the> car track, which defendant could have used in passing him. With this condition of the street and the traffic, it cannot be said, as a matter of law, that plaintiff was guilty of negligence when he turned into Park Street.
If plaintiff was riding five miles per hour and was ten feet along on Park Street when overtaken, and, if defendant was driving his car at fifteen miles per hour as he crossed the street, a mere mathematical calculation demonstrates that defendant was between twenty and thirty feet away from the corner when plaintiff turned. A jury might reasonably find that if defendant was looking ahead, and watching the course of his car in a careful and intelligent manner, he could and would have seen the plaintiff, turned to his left and so have avoided the accident.
It has been laid down in many decisions by this court that when a motion for a directed verdict is being considered, every inference which may fairly be drawn from the testimony is to be indulged in favor of tbe plaintiff; that a plaintiff is entitled to the benefit of any evidence given during the course of defendant’s case, and that no case should ever be withdrawn from a jury when reasonable men might draw different conclusions from the evidence. (Mitchell v. Northern Pac. Ry. Co., 63 Mont. 500, 208 Pac. 903; In re Carroll’s Estate, 59 Mont. 403, 196 Pac. 996; Moran v. Ebey, 39 Mont. 517, 104 Pac. 522; Ball v. Gussenhoven, 29 Mont. 321, 74 Pac. 871.)
There was a conflict in the evidence, and the questions of defendant’s negligence and the plaintiff’s contributory negligence were properly submitted to the jury.
The judgment is affirmed.
'Affirmed.
Mb. Chief Justice Callaway and Associate Justices Holloway and Matthews concur.
Mb. Justice Galen, being absent on account of illness, did not hear the argument and tabes no part in the foregoing decision.
|
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HONORABLE C. W. POMEROT, District Judge,
sitting in place of MR. JUSTICE GALEN, absent on account of illness, delivered the opinion of the court.
This is an appeal from an order admitting to probate the will of Mary W. Mahaffay, deceased. No reference is made in the will of the appellant who is the surviving husband of the decedent. He opposed the probate of the will on the ground that it was invalid under the provisions of section 6975, Revised Codes of 1921. This section reads: “A married woman make make a will in the same manner and with the same effect as if she were sole, except that such will shall not, without the written consent of her husband, operate to deprive him of more than two-thirds of her real estate, or of more than two-thirds of her personal estate. ’ ’
Outside of disposing of the property of the testatrix, the will names an executor, provides he shall pay her debts, funeral expenses and expenses of last illness from the funds of the estate, and revokes all former wills. These provisions are sufficient to entitle the will to probate under the authority of In re Hobbins’ Estate, 41 Mont. 39, 108 Pac. 7, it having been executed according to the requirements of the law.
“If the will be properly executed and proved it must be admitted to probate, although it contain not a single provision capable of execution, or valid under the law.” (Woerner on Administration, 3d ed., p. 775.) -After quoting the foregoing statement, the supreme court of Missouri, in Cox v. Cox, 101 Mo. 172, 13 S. W. 1056, says: “This is the uniform doctrine both in this country and in England.”
Whatever the rights of the surviving husband may be in the decedent’s property, he is not without remedy.
The order is affirmed.
Affirmed.
Mr. Chief Justice Callaway and Associate Justice Holloway, Stark and Matthews concur.
|
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] |
HONORABLE FRANK P. LEIPER, District Judge,
sitting in place of MR,. JUSTICE GALEN, disqualified, delivered the opinion of the court.
Charles Finley was charged with a violation of the law relating to the sale of drugs. Trial was had resulting in his conviction, and this appeal is from the judgment and from an order denying his motion for a new trial. The appeal is based upon ten specifications of error. These may be grouped under three heads, as follows: (1) That the evidence is insufficient to sustain the judgment; (2) that the court erred in refusing to give defendant’s offered instruction No. 3a; (3) that the exclusion of certain testimony was error.
1. Defendant is charged with the violation of the provisions of section 3189, Revised Codes of 1921, which provides: “It shall be unlawful for any person to sell, barter, exchange, distribute, give away, or in any manner dispose of, at retail, or to a consumer, opium or coca leaves, or any compound, manufacture, salt, derivative, or preparation thereof, within this state, except upon the original written prescription of a duly licensed physician, duly licensed to practice medicine in Montana, and pursuant to all the requirements of this Act; provided, that nothing in this Act shall be construed as preventing a dentist or veterinary surgeon, duly licensed to practice in Montana, from obtaining, on federal government permits, for use in his practice, the drugs or narcotics mentioned in this section. ’ ’
The information charges: “That at the county of Silver Bow, state of Montana, on or about the 3d day of April, A. D. 1924, and before the filing of this information,' the said defendant did willfully, unlawfully, 'knowingly, wrongfully and intentionally sell, barter, distribute and dispose of at retail and to a consumer, to wit, to one J. Gr. Muller, a human being, a certain derivative, compound, manufacture and salt of opium, known as morphine, the exact amount of which said morphine is unknown to the county attorney at this time, and that said morphine was not then and there sold, bartered, distributed or disposed of upon the original written prescription of a duly licensed physician, duly licensed to practice medicine in the state of Montana, nor upon any prescription whatever. ’ ’
The only point urged by counsel in this connection is that the negative averments contained in the information are necessary and material; further, that it was necessary for the state to prove these negative averments, and that since the state offered no proof thereof, the evidence introduced is not sufficient to sustain the judgment. This contention cannot be sustained. Section 3189, supra, is taken from section 1 of Chapter 202, Session Laws of 1921. This is “An Act to regulate the production, manufacture, sale, barter, exchange, distribution, dealing in, giving away, dispensing, or the disposing in any manner of opinm or eoea leaves, their salts, derivatives or preparations.” Section 3200, Revised Codes of 1921 (which is section 12 of Chapter 202, Session Laws, supra), declares that it shall be “unlawful for any person to have in his possession or under his control any of the drugs mentioned in this Act, if such possession or control is obtained in a manner contrary to the provisions of this Act; and such possession or control shall be presumptive evidence of a violation of this jAct; provided, that this section shall not apply,” etc. Then follow several exceptions to the provisions of the Act, and section 3200, supra, concludes with the following provision: “Provided, further, that it shall not be necessary to negative any of the aforesaid exemptions in any complaint, information, or indictment, or other writ or proceeding laid or brought under this Act, and the burden of proof of any such exemption shall be upon the defendant.” The negative averment contained in the information is unnecessary and therefore sur. plusage. It follows that proof thereof was not required. (United States v. Loewenthal (D. C.), 257 Fed. 444; Manning v. United States (C. C. A.), 275 Fed. 29; Melanson v. United States, 256 Fed. 783, 168 C. C. A. 129; Fyke v. United States, 254 Fed. 225, 165 C. C. A. 513.) While a different statute is involved, yet the same principle is enunciated in the following decisions of this court: State v. Griebel, 65 Mont. 390, 211 Pac. 331; State v. Fredericks, 65 Mont. 25, 212 Pac. 495.
After sale of morphine had been proven by the state, then, if such sale was made upon a prescription as provided by the statute, it became a matter of defense. (People v. Montgomery, 271 Ill. 580, 111 N. E. 578; State v. Wood, 53, Mont. 566, 165 Pac. 592; State v. Hopkins, 54 Mont. 52, Ann. Cas. 1918D, 956, 166 Pac. 304; Territory v. Burns, 6 Mont. 72, 9 Pac. 432; State v. Tully, 31 Mont. 365, 3 Ann. Cas. 824, 78 Pac. 760.)
2. The court refused to give defendant’s requested instruc tion No. 3a, and we think properly so. The essential elements covered by the refused instruction are contained in defendant’s offered instruction No. 2a, which was given by the court, and which is as follows: “You are instructed that in judging the credibility of a witness and the weight, if any, to be given to his testimony, you are entitled to take into consideration the fact, if you find from the evidence that it is a fact, that such person is a habitual user of drugs; and what, if any, effect such drugs have on his powers of recollection and perception and on his mental and moral sensibilities.”
3. Error is predicated upon the ruling of the court in sustaining objections to certain questions propounded to plaintiff’s witness Guerra on cross-examination, and also to the court’s action in sustaining objections to certain questions asked defendant’s Witness Dr. Donohue on direct examination. The information sought to be elicited by the questions asked the witness Guerra ivas either foreign to the issue involved or altogether immaterial thereto.
The witness Donohue was asked the question, “State, Doctor, if you know, what effect the use of the drug has upon the veracity of a user who uses five or six grains a day?” to which question objection was made and sustained. There was no offer of proof subsequent to the sustaining of the objection to the question. The question itself does not clearly indicate the answer expected to be given thereto. It follows that the evidence anticipated is not before the court, and therefore we cannot say whether or not its exclusion was error. (State v. Toy, 65 Mont. 230, 211 Pac. 303; Herzig v. Sandberg, 54 Mont. 538, 172 Pac. 132.)
The judgment and order appealed from are affirmed.
Affirmed.
Mr. Chief Justice Callaway and Associate Justices Holloway and Stark concur.
Mr. Justice Rankin, deeming himself disqualified, takes no part in the foregoing decision.
|
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] |
PER CURIAM.
Relator’s application for writ of prohibition herein, is denied.
|
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MR. JUSTICE MATTHEWS
delivered the opinion of the court.
This is an appeal from the judgment in an action instituted by respondent to recover on quantum meruit for services alleged to have been performed at the special instance and request of appellant company during the period commencing on the first day of April and ending on the ninth day of August, 1919.
The first paragraph of the complaint alleges “that on the first day of April, 1919, and for a long time prior thereto, Carr Thomas, Nicholas Berehem and Frank Reardon were and now are copartners, doing business under the common name of Eclipse Grocery Company,” etc. The alleged copartners were not made parties defendant in the action, and service was had on Reardon only.
Appellant answered, admitting the allegations of paragraph 1 of the complaint, and denying all other allegations thereof. This answer was verified by Reardon. Before the trial appellant, on leave of court granted, filed its amended answer, denying generally all of the allegations of the complaint.
The cause was tried before Honorable Frank W. Haskins as judge pro tempore. Appellant objected to the introduction of any evidence on the grounds that the complaint did not state facts sufficient to constitute a cause of action, and “fatal nonjoinder of parties defendant.” The objection was overruled.
After the introduction of other evidence tending to prove that the three associates named were transacting business under the common name during all of the peliod mentioned, respondent offered in evidence the first paragraph of his complaint and the admission of its allegations contained in the original answer, to which offer an objection was duly interposed and overruled and such portions of the pleadings admitted. Later, counsel for appellant moved, on behalf of Thomas and Berchem alone, to strike the exhibits as to them, which motion was denied.
On cross-examination of a witness for appellant, counsel for respondent asked the witness the question, “You are the official bouncer, are you not?” On objection the question was withdrawn, and, on request of counsel for each party to the action, the court admonished the jury to disregard the remark.
The jury returned a verdict for the full amount prayed for, and judgment was duly entered thereon. Respondent filed his memorandum of costs in which appeared, for the first time, the item “Attorney’s fees, A. G. Shone, $200.” Appellant moved to tax the costs by striking this item, upon the ground that it is not predicated upon either pleading or proof, and, without waiving this point, moved for a reduction of the amount as unreasonable. On hearing the motion the court reduced the award to $100, and denied the motion to strike the item from the memorandum.
Appellant thereafter moved for a new trial on the ground of the “insufficiency of the evidence” to justify the verdict and judgment. In denying the motion the court commented upon the province of the court and jury.
Counsel for appellant assign error on each of the rulings indicated above: On the question propounded to the witness quoted, on the court’s refusal to give its offered instructions A and H, on the allowance of an attorney’s fee, and on “giving and making” a judgment for $504.85 and interest. Appellant also contends that the court erred, not in denying its motion for a new trial, but in “refusing to pass upon the sufficiency of the evidence to warrant the verdict and judgment.”
1. Appellant does not contend that the complaint herein does not contain allegations of fact sufficient to constitute a cause of action aside from the title of the action, but asserts that the complaint is fatally defective in that it fails to join the persons alleged to be copartners as parties defendant, and contends that, as it is alleged that they were copartners, they could only be sued as such and not by their business name. Counsel cite neither statute nor authority for this contention.
Section 9089, Revised Codes of 1921, provides: “When two or more persons, associated in any business, transact such business under a common name, whether it comprise the names of such persons or not, the associates may be sued by such common name, the summons in such cases being served on one or more of the associates; and the judgment in the action shall bind the joint property of all the associates, in the same manner as if all had been named defendants, and had been sued upon their joint liability.”
The applicability of the section to a suit against a copartnership has never been decided, or in fact questioned, in this court. It has been declared, however, that the section does not apply to an action by copartners as parties plaintiff. (Doll v. Hennessy Mercantile Co., 33 Mont. 80, 81 Pac. 625.) That this is so is clear from the wording of the statute, but the fact that the court considered the section at all in connection with a copartnership indicates that the court there considered the section as dealing with such associations, when the facts bring the case within the provisions of the statute.
Section 7981, Revised Codes of 1921, defines partnership as follows: “Partnership is the association of two or more persons, for the purpose of carrying- on business together, and dividing its profits between them.” This definition follows closely the wording of’section 9089, but narrows its scope to those associations in which the members share in the profits of the enterprise.
Two or more persons may be associated in business without an agreement to share in the profits; such an association is not a partnership. (Croft v. Bain, 49 Mont. 484, 143 Pac. 960.) And such an association, if it transacts business under a common name, may be sued by that name. (Vance v. McGinley, 39 Mont. 46, 101 Pac. 247.) But the fact that an association of two or more persons, which does not fall within the definition of a partnership, may be sued, does not preclude an action against a partnership which transacts business under a common name, and thus falls within the provisions of the statute, unless by some statutory provision a different rule is laid down. We have no other provision on the subject.
California has an identical statute under which it has been held that a copartnership comes clearly within the provisions of the statute. (Sec. 388, Kerr’s Cal. Code Civ. Proc.; Harrison v. McCormick, 69 Cal. 616, 11 Pac. 456; John Bollman Co. v. Bachman & Co., 16 Cal. App. 589, 117 Pac. 690, 122 Pac. 835; Asbestos Mfg. Co. v. Lenning-Rapple Engineering Co., 26 Cal. App. 177, 146 Pac. 188; Artana v. San Jose Scavenger Co., 181 Cal. 625, 185 Pac. 850.) In John Bollmam Co. v. Bachman & Co., the court s'aid: “For the purposes of bringing suit under section 388, Code of Civil Procedure * ® =:í a copartnership, we think, must be considered to be a legal entity distinct from its individual members. * # * While it is true that the section says the associates may be sued by such common name, the whole section indicates that the action in substance is an action against the'associates as such and not against the individuals. The section recognizes the association, or, as in this case, the copartnership, as a distinct entity, against which the partnership obligation may be enforced. In an action brought as this was, the partnership is the only defendant.”
An action, under such circumstances as are shown in the complaint under consideration might be brought either against the individuals comprising the partnership, or against the partnership under its common name. Respondent elected to pursue the latter course, and no error was committed in overruling the objection to the introduction of testimony.
2. Appellant insists that its objection to the introduction of a part of the superseded answer should have been sustained. While an amended or superseded pleading is functus officio as a pleading, and the party is not bound by admissions contained in the pleading which has thus been superseded (Berne v. Stevens, 67 Mont. 254, 215 Pac. 803), such admissions may nevertheless be admitted in evidence, as declarations against the interest of the party making them, in the same manner as any other declaration made out of court, and subject to the same contradiction and explanation. (31 Cyc. 91, and oases there cited.) See, also, Hester v. Western Life Ins. Co., 67 Mont. 286, 215 Pac. 508, where this court said: “The logic of this situation, therefore, leads us to the conclusion that a superseded pleading is only admissible in evidence as a declaration of a party. When such evidence is admitted, it is subject to any explanations which may be made thereof. ’ ’
3. Whatever the effect of the admission thus made in evi denee, Thomas and Berchem were in no position to move the striking thereof as to them; “the partnership is the only defendant” (Bollman Co. v. Bachman & Co., supra); they were but witnesses for the defendant, and strangers to the action.
4. Appellant assigns as error the propounding of a question on cross-examination, set forth above, which, counsel contend, tended to prejudice the jury. The record discloses that the question was never answered. ‘ ‘ Such an assignment, based on a question which elicits no prejudicial answer, will not be considered.” (Matusevitz v. Hughes, 26 Mont. 212, 68 Pac. 467.) And, if otherwise prejudicial, no error was committed, as the court admonished the jury to disregard the matter.
5. Appellant’s offered instruction A was for an instructed ver diet. The offer was, in effect, a motion for a directed verdict. In this connection it is sufficient to say that there was sufficient evidence, if believed by the jury, to warrant a verdict in some amount; on such a motion “every fact will be deemed proven which the evidence tends to prove, and such direction can only be given when the conclusion necessarily follows as a matter of law that a recovery could not be sustained on any competent theory for at least nominal damages.” (Long v. Davis, 68 Mont. 85, 217 Pac. 667.)
6. Appellant’s offered instruction H reads as follows: “You are instructed that you must not consider anything that occurred prior to the sixth day of May, 1919, so far as the defendant Eclipse Grocery Company is concerned.”
The company was, as heretofore shown, the only defendant in the case. Respondent had testified that he worked for the “Eclipse Grocery Company” from April 1st to the 9th of August 1919; that he was employed by Reardon on April 1, and that the other associates were at the place of business the following day and at divers times thereafter, and sometimes gave him orders which he obeyed, whether before or after May 8 does not appear. Neal Reardon, a brother of Frank Reardon, testified that in 1918 his brother wrote him, while he was in England, to the effect that he had formed a partnership with Thomas and Berehem. Further, the admission of the defendant, the partnership, contained in the original answer, with such explanation thereof as was made, was before the jury, as well as some testimony corroborative of respondent’s statement as to his employment on the first day of April, 1919. On the other hand, the testimony on the part of appellant was emphatic that no partnership existed prior to the filing of articles of partnership on the sixth day of May, 1919. This conflict in the testimony raised a question for the jury to determine, and the giving of the offered instruction would have been an invasion of the province of the jury.
7. For the first time appellant raises the question of the excessiveness of the verdict here; no objection was interposed on this ground in the court below, no instruction offered covering the amount shown to be due under the proof, other than the last mentioned, and the notice of motion for new trial did not include subdivision 5 of section 9397, Revised Codes of 1921.
The evidence, as heretofore pointed out, was conflicting as to when the associates commenced to transact business under the “common name,” Counsel contend that the filing of articles of copartnership and certificate of “fictitious name” under sections 8019 and 8020, Revised Codes, controls, but the associates may have been conducting the business long prior to such filing; the record contains testimony that such was the fact and the, jury evidently believed that it was true. We are, therefore, again confronted with a 'conflict in the evidence, resolved by the jury in favor of respondent, and therefore conclusive upon this court. (Lappin v. Martin, 71 Mont. 233, 228 Pac. 763.)
Counsel point out other particulars in which it is said the evidence did not warrant the award of the full amount of the verdict; had these matters been presented to the trial court on the motion for a new trial, if counsel’s deductions are correct, a different result might have been reached, but the trial court cannot be put in error, on its order denying the motion for a new trial, on matters not brought to its attention by the notice of motion. (Bliss v. Wolcott, 40 Mont. 491, 135 Am. St. Rep. 136, 107 Pac. 423.)
8. Counsel assert that “under a mistaken notion that it had no authority to consider the merits of the question [of the sufficiency of the evidence to warrant the verdict] because the evidence ‘ was flatly contradictory, ’ the court refused to rule on the merits of the motion” for a new trial. This assertion is made upon the following statement contained in the court’s order overruling the motion: “The evidence in the case was flatly contradictory. We do not understand that under such circumstances the court might substitute its conclusions for those of the jury if it disagreed with the jury. The jury certainly must have some function to perform in the trial of a case; * * * the jury believed, apparently, the testimony of the witnesses for the plaintiff. The motion for a new trial will therefore be denied.”
It is. conceded that there was a substantial conflict in the testimony; the court did not intimate that it disagreed with the conclusions reached by the jury. Its statement is little more than a paraphrasing of the declaration of this court that:
“So long as the jury is a part of our judicial system, the verdict in an action at law ought not to be set aside, except for the most cogent reasons; otherwise the constitutional guaranty of a right to trial by jury becomes a mere idle phrase — high-sounding, but, without any potency whatever.” (Sutton v. Lowry, 39 Mont. 462, 104 Pac. 548; Klus v. Lamire, 71 Mont. 445, 230 Pac. 364.)
“In the district court is lodged the sound legal discretion to grant or refuse a new trial in a case where the evidence is conflicting.” (McVey v. Jemison, 63 Mont. 435, 207 Pac. 633; Fournier v. Coudert, 34 Mont. 484, 87 Pac. 455.)
But, as declared in the eases above cited, “its action in the premises will not be disturbed on appeal except for manifest abuse of discretion.” (See, also, Kelly v. City of Butte, 43 Mont. 451, 117 Pac. 101; Welsh v. Nichols, 41 Mont. 435, 110 Pac. 89.) In the latter cases it is held that, on a general order either granting or refusing a new trial, the order will be sustained if there is a substantial conflict in the evidence, “ ‘for in such case, unless the order expressly excludes the ground of insufficiency of the evidence, it will be presumed that the court, in the exercise of its discretionary power, granted the motion because it was of the opinion that the evidence was insufficient to justify the finding of the jury.’ * * i:= The same rule applies to an order denying as to one granting a motion,” etc. Here the court did not “expressly exclude” this ground, but recited in its order that it was the only ground urged.
In Love v. McDonnell, 65 Mont. 482, 211 Pac. 211, this court said: “The motion for a new trial was made on the ground, among others, that the evidence was not sufficient. The order allowing it was general in form. The evidence was materially conflicting in character, and we may presume that the lower court believed it preponderated in favor of the plaintiff.” It is true, as the court there declared, “on a motion for a new trial, the court must consider where the preponderance of the evidence lay, and if, after such consideration, it concludes that it was on the side of the losing party, then it is manifestly its duty to vacate the verdict rendered”; but it is only for manifest abuse of discretion that this court can disturb the order of the trial court. It is presumed that official duty has been regularly performed (sec. 10606, Rev. Codes 1921), and unless it conclusively appears to the contrary, that an order made “was the result of the exercise of a wise discretion.” (State ex rel. Robinson v. Clements, 37 Mont. 96, 127 Am. St. Rep. 701, 94 Pac. 837.) Having made a general order denying the motion, the court determined the question involved.
There is nothing before us to show that the order of the court would have been other than that made, had it not declared its views regarding the province of the jury, and, as the evidence presents a substantial conflict, the order will not be disturbed.
9. The only objections urged to the inclusion of attorney’s fees are that the complaint does not ask for attorney’s fees and that there was no proof of what would be a reasonable fee in this case.
Section 3089, Revised Codes of 1921, provides: That “whenever it shall become necessary for the employee to enter or maintain a suit at law for the recovery or collection of wages due, as provided for by this Act, then such judgment shall include a reasonable attorney’s fee in favor of the successful party, to be taxed as part of the costs in the case.” Section 9802 defines what costs may be taxed in an action. The above section is, in effect, an amendment to or addition to this section.
The “costs” provided for in section 9802 are not in any manner dependent upon the pleadings; on a general prayer for costs any item included in this section may be incorporated in the memorandum of costs; an award of costs. The legislature'1 has seen fit to include a reasonable attorney’s fee as a part of the costs in such an action as this. Each party to the action was chargeable with notice, at the outset, that the successful party would be entitled to include in the judgment a reasonable attorney’s fee “to be taxed as a part of the costs of the ease.” This being so, if it appeared on the trial that the case came within the provisions of the statute, respondent was entitled to include attorney’s fees in his memorandum of'costs. The determination of what was a reasonable sum would come up on motion to tax; this was done in this ease, and the court reduced the amount claimed to $100.
Under a similar statute (see. 9798, Rev. Codes 1921) this court has said: “With the determination of the amount of the fee * * # the parties have nothing to do. Consequently, their allegations in the pleadings with reference thereto do not present an issuable fact, and are but surplusage.” (Bohan v. Harris, 71 Mont. 495, 230 Pac. 586.) “In fixing the fee the judge, of course, may call to his aid the practice of the court and his own knowledge of the usual compensation for such services, without availing himself of evidence based upon the views and experience of other attorneys.” (Id.; see, also, Bovee v. Helland, 52 Mont. 151, 156 Pac. 416.) Under section 3089, •therefore, it was not necessary to either plead or prove the item of costs attacked.
No substantial error appearing in the record, the judgment is affirmed.
'Affirmed.
Mr. Chief Justice Callaway, Associate Justices Holloway and Stark and Honorable C. W. Pomeroy, District Judge sitting in place of Mr. Justice Galen, absent on account of illness, concur.
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MR. JUSTICE STARK
delivered the opinion of the court.
The affidavit filed in connection with this application for a writ of prohibition will be referred to as the complaint, and the partes designated as plaintiffs and defendants.
On July 2, 1924, at Victor, Ravalli county, E. T. Lockridge, sheriff of said county, and William Grimes, his deputy, without a search-warrant, searched a Dodge automobile discovered in possession of the plaintiffs, which they had driven from Hamilton, in said county, and found therein, amongst other articles, twenty gallons of whisky in three five-gallon crock demijohns and on.e five-gallon barrel. Having discovered this whisky in the automobile, the officers thereupon took possession of it and its contents and arrested the plaintiffs.
On July 3, 1924, the defendant J. D. Taylor, as county attorney of Ravalli county, filed an information in the district court charging the plaintiffs jointly with the unlawful possession and the unlawful transportation of intoxicating liquor, which, offenses were alleged to have been committed in said county on July 2, 1924. To this information the plaintiffs subsequently entered pleas of not guilty, and the trial of said action has been set down for the January term of said court.
On July 7, the sheriff filed a return in the district court of said county, reciting, amongst other things, that on July 2, 1924, at Ravalli county, he discovered the plaintiffs in the act of illegally transporting intoxicating liquor in a five-passenger Dodge automobile; that he seized the automobile and its contents, consisting of twenty gallons of intoxicating liquor, together with some personal property, and arrested the plaintiffs. This return also contained a description of the liquor and property seized, recited that the seizure was made on the main street of Victor, and asked the court to issue a warrant commanding him to hold in his possession all of the seized property until a hearing and adjudication be had on the return. Upon this return such proceedings were had that an order of court was made commanding the sheriff to hold the seized property in his possession until discharged by process of law.
About September 8, 1924, plaintiffs filed a petition in the district court of Ravalli county, praying that the above-described seized property be ordered returned to them, and for an order suppressing said property and all evidence obtained in connection with its seizure as evidence .on the ground that the search of the automobile and the seizure of the property were unlawful. Upon this petition an order was issued by the district court requiring the sheriff, his deputy, and the county attorney to show cause why the order prayed for should not be granted. A hearing on this order was had during which the petitioners therein introduced testimony for the purpose of sustaining their allegations, a transcript of which is attached to and made a part of the complaint filed in this court.
Thereafter the plaintiffs filed their complaint in this court, setting forth the foregoing facts, alleging that the search of the automobile and the seizure of its contents violated the rights guaranteed to them by section 7, Article III of our state Constitution, and were therefore illegal and unreasonable, but that the defendants would, unless restrained from so doing by an order of this court, use said property and the evidence acquired by reason of the search and seizure of said automobile as evidence at the trial of the plaintiffs under the information filed against them in the district court of Ravalli county, and asked that an order of this court be issued to prevent them from, doing so.
Upon the filing of this complaint an alternative writ of prohibition was issued directed to the defendants, requiring them to show cause why they should not be restrained from using said property and the evidence obtained in connection with the search and seizure of the automobile upon the trial of the charges contained in the above-mentioned information.
At the return day of the alternative writ the defendants appeared by answer in which the allegations of the complaint were admitted, except that the search and seizure of the automobile were without lawful authority, or that they were made in violation of the constitutional rights of the plaintiffs, or that they were entitled to the possession of the property seized. The matter was submitted to this court upon the complaint and answer.
The contention of the plaintiffs is that the search of their automobile was illegal, therefore unreasonable and violative of the rights guaranteed to them by section 7, Article III, of the state Constitution, because (1) the officers had no warrant for their arrest and no search-warrant directing a search of the automobile; (2) that they were not, as a matter of fact, engaged in transporting liquors in violation of the law in the presence of the officers at the time of the arrest, search and seizure; or (3) if they were so engaged, the officers had no personal knowledge of that fact and therefore no probable cause existed warranting the search of the automobile, seizure of the liquor, and their arrest without a warrant.
1. That the officers were not acting under a warrant of arrest or search-warrant is admitted in the answer.
2. As to the second contention: The complaint contains formal recitals to the effect that the plaintiffs were not in fact engaged in the commission of any offense against the liquor laws at the time of the arrest, search and seizure. However, these allegations are wholly negatived by other recitals of fact contained in it, which disclose that the car in question, loaded with intoxicating liquors, and three men in it, had been driven from Hamilton to Victor, at which place it was found in possession of the plaintiffs and the liquors discovered therein. With child-like confidence the plaintiffs advise the court in paragraph 8 of the complaint: “That the said 20 gallons of whisky contained in the three 5-gallon demijohns, and the one 5-gallon barrel, as aforesaid, were concealed in said automobile, the same being contained in burlap sacks and placed at the bottom of said automobile, and covered and wrapped with a blanket and an automobile robe, in addition to all the other property aforementioned, so that the same was not open to view nor could the same be seen nor could the contents of said demijohns or 5-gallon barrel be ascertained except by removing said quilt, robe and other property from on top thereof, and untying and removing said burlap sacks, nor was said crock demijohns or the said 5-gallon barrel open to view nor could the same be seen except by the removal of said wrappings and coverings, as aforesaid, and by making a thorough search of said automobile.” This showing clearly demonstrates that plaintiffs were in fact transporting intoxicating liquor illegally at the time in question. In reality it seems the plaintiffs contend that because they had exercised such great care in concealing their flagrant violation of the law, the constitutional provision relied upon should actually come to their assistance and defend them.
3. Section 11073, Revised Codes of 1921, provides: “When any officer of the law shall discover any person in the act of transporting in violation of the law, intoxicating liquors in any * * * automobile, * # * or other vehicle, it shall be his duty to seize any and all intoxicating liquors found therein being transported contrary to law. Whenever intoxicating liquors transported or q assessed illegally shall be seized by an officer he shall take possession of the vehicle and team or automobile, * * * or any other conveyance, and shall arrest any person in charge thereof. * * * ”
When the conditions named in this section exist it is not only the legal right but the sworn duty of the officer to seize the liquor being transported, arrest the person in charge thereof and take possession of the vehicle used as the means of transportation. If he should fail, neglect or refuse to do so he subjects himself to removal from office'. (Sec. 11117.) When the officers made the search, seizure, and arrest in question, they were, in the words of the complaint, “acting as such deputy sheriff and sheriff, respectively, and under color of their official duties as such deputy sheriff and sheriff. ’ ’
One of the presumptions declared by section 10606, Revised Codes of 1921, is “that official duty has been regularly performed. ’ ’ While this is a disputable presumption, it has the effect of evidence (sec. 10600, Rev. Codes 1921; Cooper v. Romney, 49 Mont. 119, Ann. Cas. 1916A, 596, 141 Pac. 289) and is satisfactory if not contradicted. (See. 10606, supra.) The rule in reference to this presumption is stated in Throop on Public Officers, section 558, as follows: “And the presumption is always in favor of the correct performance of his duty by an officer; and every reasonable intendment will be made in support of such presumption. So it will always be presumed that in any official act, or act purporting to be official, the officer has not exceeded his authority; and if he had power to act only in a certain contingency, that the contingency has happened, where there is no evidence on either side in respect thereto. ‘The presumption is that no official person, acting under oath of office, will do aught which it is against his official duty to do, or will omit to do aught which his official duty requires should be done.’ ”
In United States v. Vatune (D. C.), 292 Fed. 497, upon an application for the return of certain liquor alleged to have been unlawfully seized by officers who had taken possession of it without a search-warrant, the court said: “Officers of the government act under legal authority, in pursuance of oath and official station, and it will be presumed, in the absence of countervailing proof, that they have performed their duty — • that is, that they have not been guilty, in a given instance, of making an unreasonable search or effecting an unreasonable seizure. The burden of showing the contrary, then, is upon him who contends to the contrary.” (See, also, Stephens v. Conley, 48 Mont. 352, Ann. Cas. 1915D, 958, 138 Pac. 189; Anderson v. Wirkman, 67 Mont. 176, 215 Pac. 224; Swords v. Simineo, 68 Mont. 164, 216 Pac. 806.)
It is not open to question, but that if, when they made this search, seizure and arrest the officers had probable cause for believing that intoxicating liquor was being transported in the automobile mentioned, their acts were fully justified under section 11073, supra. (State ex rel. Neville v. Mullen, 63 Mont. 50, 207 Pac. 634; Houck v. State, 106 Ohio St. 195, 140 N. E. 112; United States v. Vatune, supra; United States v. Brady (C. C. A.), 300 Fed. 540.)
Under the rules above announced the burden of showing that the officers did not have such probable cause is cast upon the plaintiffs; and it therefore becomes necessary to examine the record which they have brought here, to ascertain whether they have sustained that burden.
At the hearing in the district court upon the motion to suppress, the plaintiffs called to the witness-stand only the sheriff and his deputy, Grimes, and relied upon their testimony alone to overcome the presumption that the officers were warranted in making the search, seizure and arrest. From the testimony of the witness Grimes it was developed that at the time in question the sheriff’s office had three special officers on the streets of Hamilton for the particular business of watching for infractions of the law; that these officers advised the sheriff and Ms deputy that three men'in a Dodge automobile bearing the number 54199, loaded with intoxicating liquor, had gone through the main street of Hamilton, headed west; that the sheriff and his deputy, upon receiving this information, in their own automobile followed the course taken by the three men in the Dodge ear, and that following this course they came upon a Dodge car bearing No. 54199. Continuing the recital of facts from the time the officers discovered this Dodge car, Sheriff Loekridge testified that they came up to it at the town of Victor, found the three plaintiffs in possession of it, searched the car, found the liquor therein, took possession of it as well as the car, and arrested the plaintiffs.
That the plaintiffs were in fact transporting intoxicating liquor unlawfully is established by this testimony and the recitals of the complaint above pointed out; and that their acts were done in the presence of the officers cannot be controverted under the showing made.
The sheriff and his deputy had no personal information that the plaintiffs were engaged in this illegal transportation. When, however, an officer of this state is in the possession of such knowledge from the employment of his own senses or from information actually imparted to him by other credible persons as to cause him honestly and in good faith, acting within reasonable discretion, to entertain the belief that the provisions of section 11073, supra, are being violated in his presence, it is both Ms right and duty to seize the liquor together with the instrument of transportation and arrest the persons in possession thereof. His acts in that respect are legal and no constitutional rights of the possessor are violated thereby. (Ballard v. State, 43 Ohio St. 340, 1 N. E. 76; Umted States v. Snyder (D. C.), 278 Fed. 650, and cases last above cited.)
There is notMng in the record to indicate but that the special officers in Hamilton who gave the information to the sheriff and his deputy upon which they acted, were not credible persons; neither is there anything to indicate but that the sheriff and his deputy acted in good faith and with reasonable discretion, or that they did not entertain a bona fide belief that the law was in fact being violated in their presence. The showing made by plaintiffs wholly fails to overcome the presumption that the officers had probable cause for searching the automobile, seizing the liquor found therein, and arresting the plaintiffs who were in possession of it.
The writ is denied and the proceeding dismissed.
Dismissed.
Mr. Chief Justice Callaway, Associate Justices Rankin and Holloway, and Honorable "W. H. Poorman, District Judge, sitting in place of Mr. Justice Galen, absent on account of illness, concur.
|
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] |
PER CURIAM.
Pursuant to praecipe of appellant, it is ordered that the appeal in the above-entitled cause be dismissed.
|
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
This action was instituted by Edna G. Angell to recover damages for the alleged conversion of-an automobile, which was seized by the sheriff of Meagher county under a writ of attachment issued in an action wherein the Lewistown State Bank was plaintiff and Earle F. Angell and Earl Ashbaugh were defendants. The only issues raised by the pleadings relate to the ownership of the car and its value. Plaintiff testified that she purchased the car from S. J. Salte, through his agent, Wood, for $1,925; and that she paid $850 of the purchase price; that she agreed to pay the remainder in installments to be secured by a conditional sale contract; that the car was delivered to her on September 25, and that she retained exclusive possession thereof until it was seized by the sheriff on October 5. The witnesses placed the value of the car at from $1,600 to $1,925. The plaintiff prevailed in the trial court, and the defendants appealed from the judgment.
1. It was the theory of the defendants that Earl F. Angell owned the car in question at the time it was seized, that it had been purchased by him from S. J. Salte under a conditional sale contract, and that Salte had exercised an option reserved to him by the contract and had secured possession of the car after it was seized by the sheriff. To sustain this theory the defendants called to the witness-stand the county clerk of Meagher county, had him identify an instrument as one of the files of his office, and then, without any further foundation being laid, offered the instrument in evidence. Upon objection it was excluded, and error is predicated upon the ruling.
It appears that an original conditional sale contract, purporting to be signed by Earl F. Angell, had been filed in the office of the county clerk of Fergus county, a certified copy thereof procured, and the certified copy filed with the county clerk of Meagher county. It was this last-mentioned instrument which was offered in evidence. For the purpose of this appeal we assume that the certified copy was properly filed with the county clerk of Meagher county, under the provisions of section 7594, Revised Codes. Nevertheless it was only a copy, and secondary evidence of the contract and its contents (sec. 10495) ; hence inadmissible in the first instance, unless made admissible by statute.
In support of their contention that the offered evidence was admissible for the purpose indicated, without preliminary proof, counsel for defendants cite sections 10569, 10597 and 10598, Revised Codes. Each of the first two sections by its express terms refers to a recorded instrument, and neither the instrument offered in evidence nor the original conditional sale contract was ever recorded or entitled to be recorded.
Section 10598 provides: “Every instrument conveying or affecting real property, acknowledged or proved and certified, as provided in the Civil Code, and every instrument authorized by law to be filed or recorded in the county clerk’s office, may, together with the certificate of acknowledgment or proof, be read in evidence in an action or proceeding, without further proof; also, the original record of such conveyance, or instrument thus acknowledged or proved, or a certified copy of the record of such conveyance or instrument thus acknowledged or proved, may be read in evidence, with the like effect as the original instrument, without further proof. ’ ’ This section refers to two classes of instruments: (a) Instruments which are recorded; and (b) instruments which are merely filed in the office of the county clerk.
It is an elementary rule of evidence that, 'before a private writing can be admitted in evidence for the purpose here indicated, its execution must be proved (4 Wigmore on Evidence, 2d ed., secs. 2129 and 2130; 3 Jones’ Commentaries on Evidence, see. 526; 22 C. J. 929), and this preliminary proof must be made at the time the writing is offered, unless it is one which of itself furnishes the necessary evidence of its own due execution.
Section 10598 provides that an instrument conveying or affecting real property, acknowledged or proved and certified as required by the Civil Code, or the original record thereof, or a certified copy of the record, may be read in evidence without further proof. Each of the words “acknowledged” and “proved”' has a well-defined meaning, which is made plain by the Civil Code (secs. 6905-6926, Rev. Codes).
Section 10596 reads as follows: “Every private writing, except last wills and testaments, may be acknowledged or proved and certified in the manner provided for the acknowledgment or proof of conveyances of real property, and the certificate of such acknowledgment or proof is prima fade evidence of the execution of the writing in the same manner as if it were a conveyance of real property.”
By the provisions of these two sections any private writing, except a will, which is acknowledged or proved and certified in the manner indicated by the Civil Code, is thus freighted with the evidence of its own due execution, sufficient to admit it in evidence without further proof.
As observed heretofore, the original conditional sale contract was not acknowledged or proved and certified, and hence it would not have been admissible under these statutes, or at all, without proof of its execution, and certainly the copy offex’ed was not better evidence than the original document itself. The ruling of the trial court was so manifestly correct that further discussion of the subject is unnecessary.
Defendants moved this court to have the record corrected to show the date of the clerk’s certificate to the copy offered in evidence and the fact that the certificate bore the clerk’s seal; but, in view of our conclusion, it is apparent that the correction, if made, would not aid the defendants, and the motion is therefore denied, without expressing any opinion as to whether this court has the authority to require a correction of this character to be made.
2. Defendants having failed in the attempt to introduce the copy in the first instance, then sought to lay a foundation for the introduction of secondary evidence by proving the execution of the original conditional sale contract, and to this end called a witness, Anderson, who testified that he was familiar with the signature of Earl F. Angell, and that he had examined the signature of the maker to the original conditional sale contract. Defendants then offered to prove by the witness that the signature of the maker to the original contract is the genuine signature of'Earl F. Angell, but the offer was rejected. It was made to appear that the signature of the maker to the original contract had been attested by two witnesses, one of whom was available at the time of this trial, and the absence of the other one not explained.
While counsel for defendants insist that the trial court-erred in rejecting the offered evidence, they do not cite any authority to support their contention.
It was the rule at common law that: “Where the execution of any document purports to have been attested, a party desiring to prove its execution against an opponent entitled in the state of the issues to dispute execution must, before using other evidence, either produce the attester as a witness or show his testimony to be unavailable,” etc. (2 Wigmore on Evidence, 2d ed., sec. 1289.)
In most of the jurisdictions the rule has been limited, by statute, to documents which are required by law to be attested (2 Wigmore, sec. 1288), but in this state the rule in its original form was adopted as a part of the common law (sec. 10703, Rev. Codes), and in that form is now in full force and effect, unless it has been modified by statute. Sections 10588 and 10589, Revised Codes, read as follows:
“10588. Any writing may be proved either: (1) By anyone who saw the writing executed; or (2) by evidence of the genuineness of the handwriting of the maker; or (3) by a subscribing witness.
“10589. If the subscribing witness denies or does not recollect the execution of the writing, its execution may stiff be proved by other evidence.”
These sections were enacted in 1895 and have been carried forward to the present time without change. Standing alone, section 10588 would indicate that the rule of preference for an attesting witness had been abrogated, but we are not at liberty to read it alone.
The two sections above were not enacted- severally, but as component parts of an entire Code (see. 3484, Code Civ. Proe. 1895), and it is an elementary rule of statutory construction that the whole of any enactment on a given subject must be considered. (Hardesty v. Largey Lumber Co., 34 Mont. 151, 86 Pac. 29.) In other words, every part of a statute must be made operative, if it is possible to do so, and no word in it must be deemed meaningless, if a construction can be adopted which will make it effective. (In re McLure’s Estate, 68 Mont. 556, 220 Pac. 527.) Since the two sections were enacted by the same legislative assembly and as parts of one Act, and there is not any incongruity between them, both must be given effect. (Congdon v. Butte Consolidated Ry. Co., 17 Mont. 481, 43 Pac. 629.)
There is not any difficulty encountered in harmonizing the provisions of these sections. Section 10588 provides three several methods by which the execution of any writing may be proved, but it deals with the subject generally, and its provisions are as applicable to a writing tbe signature to which is not attested as to any other; whereas, section 10589 deals exclusively with a writing the signature to which is attested, and permits the introduction of other evidence only in the event the subscribing witness either denies the execution or does not recollect it.
If the execution of an instrument the signature to which has been attested may be proved in the first instance by one who saw it signed and delivered, or if the genuineness of the signature of the maker of such an instrument may be proved without reference to the subscribing wdtness, then section 10589 is absolutely meaningless.
It may be conceded at once that the rule in the broad terms stated in section 10589 had outlived its usefulness long before the section was ever enacted in this state, but the wisdom and policy of legislation are matters for the determination of the lawmakers, and not the courts, and we can neither repeal the section nor effect the same end by a studied disregard of its plain provisions. When the two sections above are read together, the conclusion is unavoidable that our legislature intended to preserve the ancient rule of the common law, and under this construction of the statute the court did not err in the ruling now under review.
3. Defendants sought to prove that S. J. Salte was the owner of the car at the time it was seized, and to this end made the following offer of proof: “The defendants offer in so many words to prove by the witness Salte that on the fifth day of October, 1923, he, the said S. J. Salte, was the owner of that certain special Jewett sedan, car No. 64247, and motor No. 64592; and the defendants offer to prove by the witness, further, that on or about the seventeenth day of December, 1923, he secured the possession of the said automobile mentioned in the preceding offer, under his third party claim, and has retained possession of the same until such time as it was sold to parties in no way connected with this lawsuit, either as parties or otherwise.” The offer was rejected, and error is assigned to the ruling.
In their brief, counsel for defendants urge that the offer fairly presents the question: Was it proper to ask the witness Salte to state, if he knew, who was the owner of the car on October 5, 1923 ? If this were the question presented, we might agree with counsel that it calls for an affirmative answer (4 Wigmore on Evidence, 2d ed., sec. 1960), but we are unable to agree with them upon the premise assumed. The question before us is: Did the trial court err in rejecting the offer of proof as made ?
It is the rule in this state that, when an offer of proof is made which contains objectionable matter, it is not the duty of the trial court to segregate the admissible portion and admit it, but the offer in its entirety may be rejected. (Blair v. Struck, 29 Mont. 45, 63 L. R. A. 481, 74 Pac. 69; Frederick v. Hale, 42 Mont. 153, 112 Pac. 70; Bowlin Liquor Co. v. Fauver, 43 Mont. 472, 117 Pac. 103; Judy v. Craddock, 56 Mont. 556, 185 Pac. 771.) .
The matters recited in the second sentence of the offer were wholly immaterial. This action was commenced on December 11, 1923, and all questions concerning the ownership of the car were referable to the date upon which it was seized, October 5, 1923. Under the rule just stated, it cannot be said that the court erred in rejecting the offer of proof as made.
4. The court instructed the jury to return a verdict in favor of plaintiff for the reasonable value of the car on October 5, 1923, and refused to give certain instructions upon the measure of damages requested by the defendants. These instructions present the question: May the plaintiff, a conditional vendee, recover from third-party tort-feasors the reasonable value of the property converted, or is she limited to the value of the interest represented by the proportion of the purchase price actually paid by her? The question was answered by this coxirt in Lacey v. Great Northern Ry. Co., 70 Mont. 346, 225 Pac. 808, as follows: “The conditional buyer, having the risk and being obligated to pay the full price to the seller, may bring action against the tort-feasor and recover as damages the full value of the chattel.”
Rehearing denied March 6, 1925.
In the absence of any showing of a breach of the terms of the contract by the plaintiff, the trial court properly applied the rule just stated.
We do not find any reversible error in the record, and accordingly the judgment is affirmed.
!Affirmed.
Mr. Chief Justice Callaway and Associate Justices Stark and Matthews concur.
Mr. Justice Galen, being absent on account of illness, did not hear the argument and takes no part in this decision.
|
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] |
MR. COMMISSIONER HORSKY
prepared the opinion for the court.
Appeal from an order dissolving an attachment. Plaintiffs commenced an action in the district court of Chouteau county against the above-named defendant to recover the sum of $658.56, together with interest and costs of suit. A writ of attachment was issued and certain real property belonging to the defendant was levied upon by the sheriff. Subsequently, and on or about October 18, 1917, an alias writ of attachment in said cause was issued by the clerk of said court and levy duly made upon money to the amount of $1,060 in the Benton State Bank, belonging to the defendant.
On November 10, 1919, the defendant moved to dissolve the attachment last above made for the reason: “That the said moneys are the proceeds from the sale of a 320-aere homestead patented to the defendant, Laura E. Bryant, and that said debt made the cause of action if she is liable at all therefor was contracted prior to the issuance of the patent to said lands and by reason thereof, the said homestead lands, together with the proceeds from the sale thereof, are exempt from execution or attachment for debts or expenses contracted prior to the time patent was issued.” The motion specified that it was to be “made upon the records and files in the cause, and upon such other evidence as it - may be necessary to produce, including the record of patent.”
On November 18, 1919, this motion was submitted to the court for decision upon the following papers, to-wit, writ of attachment, alias writ of attachment together with returns thereon, copy of patent from the government of the United States, and a deed from the defendant to one Charles Nelson. These were the only papers and the only evidence considered by the lower court in passing upon the motion. Thereafter, and on April 20, 1920, the court made an order dissolving the attachment.
Counsel for plaintiffs invite attention to several matters, any one of which they urge is sufficient to demonstrate the court was in error in dissolving the attachment.
It is first insisted that we are not permitted to pass upon the main question in the case because the motion to discharge the attachment was not made upon the ground that the writ of attachment was improperly or irregularly issued, as provided for in sections 6681, 6682 and 6683 of the Revised Codes, but that the property levied upon was exempt from seizure under a writ of attachment or execution. With this we agree. The question is not one that properly arises upon a motion to dissolve an attachment. (State ex rel. Malin-Yates Co. v. Justice of the Peace, 51 Mont. 133, 149 Pac. 709; Holman v. Cooper, 48 Wash. 24, 92 Pac. 781; Culhane etc. Co. v. Farrand, 34 S. D. 87, 147 N. W. 271.)
But even assuming that the question stated in the motion could be raised in the manner pursued by the defendant here, we are still confronted with the fact that cases of this character, presented to the lower court on record evidence alone, must be decided “precisely upon what was before the district court; that is, upon record evidence, and nothing else.” (Newell v. Whitwell, 16 Mont. 243, 40 Pac. 866.) The motion advised the lower court that the defendant claimed the money levied upon represented proceeds from the sale of a federal homestead belonging to the defendant, and was therefore exempt from attachment and execution. The inquiry by the district court was limited to the very matter specified in the motion. (Omaha etc. Co. v. Chauvin-Fant etc. Co., 18 Mont. 468, 45 Pac. 1087.)
Nowhere in the record evidence, considered by the lower court, is there disclosed any connection between the moneys attached and any homestead entry. The answer of the garnishee, Benton State Bank, and the sheriff’s return to the writ of attachment, even if considered of any probative value, are both barren of any suggestion that the moneys attached represented proceeds from the sale of a federal homestead owned by the defendant.
No affidavit was filed by the defendant in support of her motion, and the district court therefore, did not have before it anything to move it to order the writ discharged.
For the foregoing reasons, we recommend that the order appealed from be reversed.
Per Curiam : For the' reasons given in the foregoing opinion, the order appealed from is reversed.
Reversed.
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] |
MR. JUSTICE GALEN
delivered the opinion of the court.
This action was instituted by the plaintiff in the district court of Lewis and Clark county, to condemn certain described real estate for use as a public cemetery. Issue being joined, the cause was regularly heard, and the court adjudged the right of condemnation, and appointed commissioners to appraise the property. The defendants, the Helena Cemetery Association, Henry Winter, as one of its trustees, and Henry Winter personally, have appealed.
'It appears that the plaintiff is incorporated under Chapter 18 of the Session Laws of 1905 (secs. 4237 to 4270, inclusive, of the Revised Codes, 1907), and Acts amendatory thereof, for the purpose of procuring, holding and disposing of land to be used exclusively as a public cemetery. The defendant company was incorporated for profit in 1890, under Chapter 25, Laws of the Fifth Division of the Compiled Statutes of Montana of 1887 (secs. 446-495, inclusive), for a term of twenty years, and engaged in operating a cemetery upon the property in question. On the 4th of August, 1910, the corporate life of the defendant Helena Cemetery Association expired by operation of law, and has never been extended. The defendants other than the Helena Cemetery Association were directors of the corporation at the time of the expiration of its corporate life, or were subsequently elected as directors, or were the holders of all of the outstanding capital stock of the Helena Cemetery Association.' The affairs of the defendant corpora tion have never been concluded. Henry Winter has acquired more than ninety-nine per cent of all of the stock of the corporation, and has been running the cemetery as his own private property for profit. Over 1,700 burial lots in the cemetery have been sold, most of which were sold upon the endowment plan, and it is averred that proper and necessary care of such lots has not been provided. It appears further that the defendants, without reason or justification, have increased the prices of unsold lots, and that the prices now exacted therefor are unreasonable and exorbitant. The unsold lots embraced within the tract of land described are the subject of this action.
The only question involved, and that which is determinative of the case, is the plaintiff’s right of condemnation.
The general incorporation laws under which the defendant association was organized authorizes the formation of corporations for the purpose of carrying on general business enterprises named, cemeteries not being included therein. However, the matter of the incorporation of the defendant corporation becomes unimportant, since it is alleged and admitted that its corporate life expired by operation of law, and has never been renewed nor extended; and it appears that certain of the defendants have assumed to exercise ownership, conduct its business and affairs, and act as its officers or trustees.
Both before and since the cessation of the defendant association’s corporate existence, its business and property used in connection therewith must be considered wholly private in nature, so that the land sought to be condemned is private property. As such it may be taken by eminent domain. (See. 7333, Rev. Codes.)
The law under which the plaintiff corporation was organized has been amended in certain particulars by Chapter 128, Laws of 1909, Chapter 99, Laws of 1911, and Chapter 65, Laws of 1919. By it cemetery associations are specially provided for, and given perpetual existence. They are eleemosynary institutions, authorized by the law to function without profit, and. in which all the people are interested. The land acquired by them must be held and used exclusively for a cemetery. They are open to all classes of people; their records are public, and the lands acquired by them can be used for no purpose other than the burial of the dead. Their property is exempt from all public taxes and assessments, and section 4240, Revised Codes, as amended by Chapter 99, Laws of 1911, expressly confers upon them the right of eminent domain to acquire private property to be used exclusively as a cemetery. From a consideration of these statutory provisions, we think it is plain that the plaintiff is vested with the right of acquiring private property by condemnation proceedings for use as a cemetery, and that this right extends to the lands in controversy.
But it is argued by defendants’ counsel that the lands sought to be acquired are already devoted to a public use, and therefore may not be taken by the plaintiff in the exercise of eminent domain. In support of his contention, counsel cites Wolford v. Crystal Lake Cemetery Assn., 54 Minn. 440, 56 N. W. 56; Memphis State Line R. Co. v. Forest Hill Cemetery Co., 116 Tenn. 400, 94 S. W. 69; Farneman v. Mt. Pleasant Cemetery Assn., 135 Ind. 344, 35 N. E. 271; Evergreen Cemetery Assn. v. Beecher, 53 Conn. 551, 5 Atl. 353; Evergreen Cemetery Assn. v. City of New Haven, 43 Conn. 234, 21 Am. Rep. 643; Starr Burying Ground Assn. v. North Lane Cemetery Assn., 77 Conn. 83, 58 Atl. 467; and Brown v. Maplewood Cemetery Assn., 85 Minn. 498, 89 N. W. 872.
These eases are all clearly distinguishable, and the application thereof to the case before us might be considered meritorious were the property of the defendants owned and used by a public corporation such as the plaintiff; but they are without force as applied to the defendant’s property, which, save as to the burial lots already sold, is private property, and may be used for any purpose. There is nothing whatsoever to prevent the defendants from using the property in question (unsold lots) for agriculture, pasture, town lots or any other purpose they may se.e fit. They are at liberty to discontinue the sale of burial lots at any time, and to utilize the portion of their property unsold as they may wish. The friends and relatives of numerous persons are interred within the tract now devoted to cemetery purposes, and it would appear most desirable to continue its use as a burying ground, so as to keep the sepulchres in a collective group and permit the betterment and improvement of the grounds. It is not proposed by the plaintiff to disturb the remains of those now buried, but rather to include the lots now sold and occupied with the tracts herein involved, as a public cemetery; so that, as to the particular tract, the public has a particular and vital interest. The use to which the property involved is now being devoted does not change its private character.
The rule applicable does not prevent the taking by the state or a public corporation, of property owned by an individual or private corporation used for the same public purpose. (Lewis on Eminent Domain, 3d ed., sec. 440; 20 C. J. 600.)
The judgment is affirmed.
Affirmed.
Mr. Chief Justice Brantly and Associate Justices Reynolds, Cooper and Holloway concur.
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MR. CE[IEF JUSTICE BRANTLT
delivered tbe opinion of tbe court.
Tbis action was brought on April 11, 1914, to recover of tbe defendant tbe amount of a judgment. Tbe allegations of tbe complaint, in brief, are tbe following: On April 10, 1907, a judgment was duly 'given and made by the district court of Silver Bow county in favor of plaintiff in an action entitled “State Savings Bank v. J. C. Adams and H. L. Frank,” for the sum of $2,739.92. On January 9, 1908, tbe State Savings Bank, tbe plaintiff in that action, assigned the judgment to tbe plaintiff in this action, who is now tbe owner and bolder of it; no part of it having been paid. On October 17,- 1913, Adams died in Silver Bow county, leaving a will in -which the defendant was named ás executrix. On November 22, 1913, the will was admitted to probate by the district court of that county. On the same date letters testamentary weie issued to the defendant, whereupon she duly qualified and entered upon the discharge of her duties and ever since that time has been engaged in the performance thereof. On November 29 the executrix caused a notice to the creditors of the deceased to be published in the “Butte Daily Post,” this being the newspaper designated by the order of the court, requiring all persons having claims against the estate to exhibit them to her with the necessary vouchers, at Boom 616, Hennessy Building, at Butte, Montana, the place designated by her for the transaction of business of the estate, within ten months. On December 26, within the time specified in the notice, plaintiff presented his claim for $4,207.30, the amount of the judgment including interest. The claim was in writing, verified by the oath of the plaintiff as required by law. It was rejected by the defendant on January 13, 1914.
The defendant in her answer admitted all of- the allegations of the complaint, except that she denied that the State Savings Bank did on January 9, 1908, or at all, assign the judgment to the plaintiff, or that plaintiff is now or ever was the owner or holder of it. Trial of these issues was had to a jury. At the close of plaintiff’s evidence the defendant moved for a nonsuit, which was denied. At the. close of all the evidence she moved for a directed verdict. The motion was denied. Thereupon the plaintiff moved for a directed verdict for the amount claimed, together with the costs of the action. This motion was granted. The defendant has appealed from an order denying her motion for a new trial. She contends that she is entitled to a reversal of the order on the ground that the court erred to her prejudice in its rulings on questions of evidence and in directing a verdict for the plaintiff.
To establish his title to the judgment, plaintiff offered in evidence a written assignment of it to him by the bank, executed on its bebalf, on January 9, 1908, by E. P. Chapin, its vice-president, attested by its corporate seal, and acknowledged before Allen P. Bowie, a notary public of Silver Bow county. It was indorsed, “Approved,” by T. E. Collins, as state examiner, who was then in charge of the bank under the provisions of section 4004, Revised Codes of 1907. Plaintiff objected to the introduction of it on the ground that it was incompetent in' that the bank had no authority to make it. The court overruled the objection, stating that it would be admitted subject to a motion later to strike it out. The plaintiff then, called in his own behalf, testified that no part of the judgment had been paid. He stated further that he had bought it from the bank. On cross-examination he stated that Collins, the state examiner, was in charge of the bank, but that its doors were open for business. Continuing, he said that the consideration paid by him to the bank for the judgment was $3,014.20 in money. He thereupon rested. Defendant then moved to strike out the .assignment on the ground embodied in the objection to its admission, and also on the grounds that it had not been shown that it had been made by an officer of the bank, nor that either Chapin or Collins ever made it. This motion was denied. It is insisted that both rulings were erroneous for the reason that there was no evidence showing that Chapin was in fact the vice-president of the bank nor that he had authority to act for it.
The argument proceeds upon the theory' that, the authority of an officer of a bank to act in its behalf being governed by the general rules of agency, it was error to admit the asr signment until it had been shown that Chapin was in fact the vice-president of the bank and that he was acting within the scope of his authority as such._ There is no merit in this contention. The objection made to the admission of the evidence presented only the question of the authority of the bank to make the assignment. In the form in which it was made, it assumed—at least it did not challenge—the genuineness of Chapin’s signature, and that he was acting within the scope of Ms authority. There can. be no question that a judgment is assignable. (Haupt v. Burton, 21 Mont. 572, 69 Am. St. Rep. 698, 55 Pac. 110; Merchants’ Nat. Bank v. Great Falls Opera House Co,, 23 Mont. 33, 75 Am. St. Rep. 499, 45 L. R. A. 285, 57 Pac. 445; Rev. Codes 1921, sec. 6837.)
It requires no citation of authority to sustain the proposition that it is one of the incidental powers of a banking corporation to sell and transfer a judgment owned by it, just as it may sell bonds or other securities of which it has become the owner in the ordinary course of business. "While the bank had been taken in charge by Collins, as state examiner, it was nevertheless still doing business under his authority. His approval of the assignment obviated the objection to its admission on the ground that the bank was without authority • to make it, and, it having been properly admitted in the first place, it was within the discretion of the court to refuse to strike it out on other grounds thereafter urged as to its incom petency. When a party sits by at a trial and allows evidence to be introduced without objection, he cannot thereafter assert that the court was in error in refusing to strike it out. (Yoder v. Reynolds, 28 Mont. 183, 72 Pac. 417; Poindexter & Orr Livestock Co. v. Oregon Short Line Ry. Co., 33 Mont. 338, 83 Pac. 886; Bean v. Missoula Lumber Co., 40 Mont. 31, 104 Pac. 869; State v. Rhys, 40 Mont. 131, 105 Pac. 494; State v. Van, 44 Mont. 374, 120 Pac. 479.) The rule announced in these cases applies here. The permission of the court, given at the time the ruling was made that the evidence was admissible, to later move to strike it out, did not warrant the assumption by counsel that they were at liberty to include other grounds of objection when they came to make the motion. Furthermore, the -objection having impliedly assumed the genuineness of the signature of Chapin, the vice-president, the seal of the bank was prima facie evidence that he was duly authorized to make the assignment and that the execution of it was the act of the corporation. (10 Cyc. 944; Bullen v. Milwaukee Trading Co., 109 Wis. 41, 85 N. W. 115; McCracken v. City of San Francisco, 16 Cal. 639; Levering v. Mayor etc. of Memphis, 7 Humph. 553; President etc. of B. & D. T. Road v. Myers, 6 Serg. & E. 12, 9 Am. Dec. 402; Burrill v. Nahant Bank, 2 Met. (Mass.) 163, 35 Am. Dec. 395; Angeli & Ames on Corporations, 224.)
Again, the plaintiff testified that he had bought the judg ment from the bank for the sum of $3,014.20'. Conceding, for the sake of argument, that the written assignment was not competent on any one or all of the grounds alleged by the defendant, this testimony was sufficient to show prima facie ownership of the judgment in the plaintiff. Section 6837, Revised Codes of 1921, supra, declares: “Property of any kind may be transferred except as otherwise provided by this chapter.”
We find no exception in the Chapter (secs. 6835-6858, Rev. Codes 1921) relating to the transfer of judgments. Section 6841 provides further: “A transfer may be made without writing in every case in which a writing is not expressly required by statute.” There is no provision in the Code requir ing such a transfer to be in writing. Therefore, though it was error to admit the written assignment, the defendant was not prejudiced; she having made no effort to controvert by her evidence that the transfer had been in fact made.
Counsel have presented an extended argument in their brief in an effort to maintain the proposition that the certificate of acknowledgment of the assignment was invalid for the reason that it was made by Chapin, the vice-president, instead of the president, of the bank, as required by sections 4659 and 4664 of the Revised Codes of 1907 in force at the time it was made. The conclusion announced above renders it unnecessary to consider this contention.- We therefore pass it without further notice.
Contention is made that the court erred in sustaining plain- tiff’s objection to evidence offered by the defendant, the purpose of which was to show that the plaintiff had bought the judgment for the benefit of the Frank estate (Frank being now dead) and not for himself. There was no error in the ruling because it pertained to an issue not presented by defendant’s answer. The argument is made in this court, however, that it was prejudicial because it tended to show that the plaintiff is not the real party in interest, and therefore that he could not maintain this action. It having been made apparent that plaintiff was vested with the legal title, he was the real party in interest within the meaning of the statute and could maintain the action. (Rev. Codes, 1921, sec. 9067; Merchants’ National Bank v. Great Falls Opera House Co., supra; 20 R. C. L., p. 666.)
There was no substantial conflict in the evidence. It will accomplish no useful purpose to enter into an analysis and discussion of it. Defendant’s motions for nonsuit and for a directed verdict were therefore properly overruled, and the action of the court in directing a verdict for the plaintiff was proper. Other assignments urged upon our attention are not of sufficient merit to require special notice.
The order is affirmed.
'Affirmed.
Associate Justices Cooper, Holloway and Galen concur.
Mr. Justice Reynolds, being absent, takes no part in the foregoing decision.
|
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] |
MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
In this action defendant prevailed in the district court. The plaintiff has appealed from the judgment and an order denying his motion for a new trial.
The action was brought to recover damages alleged to have been sustained by the plaintiff as the lessee of the defendant of a building situated in the town of Broadview, in Yellowstone county, known as the Golden West Hotel. The term of the lease was to begin on January 1, 1917, and to continue to January 1, 1922. The plaintiff obligated himself therein to pay rent at the rate of $200 per month on the first day of each month, and to discharge from time to time water rents that would be assessed upon the premises during the term of the lease; to make all temporary repairs at his own expense; to keep the premises in a clean and healthy condition; not to sublet them or assign the lease except by the consent of the defendant; and to keep the premises free from lewdness, gambling, tippling, etc. Upon the breach of any of the conditions, the lessor was entitled to forfeit the lease and reassume possession. On his part, the lessor did not assume any obligation other than those imposed upon him by law, except that he agreed to install a heating system sufficient to warm the building, within twelve months after the date upon which the term commenced.
It is alleged, in substance, that the plaintiff entered into the possession of the premises, and kept and performed all the conditions of the lease to be kept and performed on his part, until January 1, 1918, when he quit the premises and delivered them to the defendant, who is now in possession of them; that he abandoned the lease because the defendant failed to perform his obligations thereunder in these particulars: That the defendant failed to install .the heating system; that the water- pipes leading into the building from the town mains frequently froze and burst during cold weather, so that the supply of water was cut off and the plaintiff was compelled to carry or haul water to enable him to conduct his hotel business; that the roof of the building became out of repair, so that water from rains and melting snow leaked through into the rooms and upon the beds therein; that the defendant installed lavatories in the building after the term of the lease began, and constructed cesspools nearby on the outside to receive the waste water and other material therefrom, which thereafter began to leak so that the polluted water and offensive matter flowed into the basement of the building and into provisions stored therein, spoiling them, and backed up into the pipes connected with the lavatories, with the result that offensive and noxious odors permeated the building; and that, though given notice of these conditions and requested to remedy them, defendant failed and refused to make the necessary repairs. It is further alleged that the acts of the defendant in failing to install the heating plant and to make repairs were wanton and oppressive, and that by reason thereof plaintiff suffered damage in the loss of profits in the sum of $10,000. Judgment is demanded for this sum.
The answer admits that defendant leased the premises to plaintiff; that plaintiff entered into possession of them and occupied them until January 1, 1918, when he abandoned them and delivered possession to the defendant; and that defendant did not install the heating plant as he agreed under the terms of the lease. It denies all the other material allegations of the complaint. It further alleges two special defenses, upon which the plaintiff joined issue by reply.
At the commencement of the trial the defendant objected to the introduction of any evidence on the ground that the complaint did not state a cause of action. The objection was overruled. At the close of plaintiff’s evidence the defendant moved for a directed verdict on the grounds that the complaint did not state a cause of action, and that the evidence was insuffi cient to make out a case upon which recovery could be had. The court sustained the motion, and directed the jury to .render a verdict for the defendant.
So far as recovery is sought for damages for a failure of the defendant to make repairs after notice by the plaintiff, the complaint wholly fails to state a cause of action. In section 7741, Revised Codes of 1921, it is declared: “The lessor of a building intended for the occupation of human beings must, in .the absence of an agreement to the contrary, put it into a condition fit for such occupation, and repair all subsequent dilapidations thereof which render it untenantable, except such as are mentioned in section 7734.”
Section 7742 provides: “If, within a reasonable time after notice to the lessor of dilapidations which he ought to repair, he neglects to do so, the lessee may repair the same himself, where the costs of such repairs do not require an expenditure greater than one month’s rent of the premises, and deduct the expenses of such repairs from the rent, or the lessee may vacate the premises, in which case he shall be discharged from further payment of rent, or performance of other conditions.” The exception found in section 7734 includes injuries to the rented property occasioned by the ordinary negligence of the tenant. Sections 7741 and 7742 were considered and applied by this court in the cases of Bush v. Baker, 51 Mont. 326, 152 Pac. 750, and Dier v. Mueller, 53 Mont. 288, 163 Pac. 466, they being sections 5226 and 5227 of the Revised Codes of 1907. In both of them the construction given by the supreme court of California to identical provisions found in the Civil Code of that state was adopted and approved. In the ease of Bush v. Baker, supra, this court, speaking through Mr. Justice Sanner, said: £ ‘ The statutes under which the right to recover upon these counterclaims [for rent] is asserted are sections 5226 and 5227 of the Revised Codes. These sections, as we are told in the report of the Code Commission, were taken from California, and investigation discloses that they came to us with a construction upon them which leaves no room for doubt. [Cases cited]. This construction is to the effect that, if the landlord fails to repair after notice, the tenant may himself repair, within a certain limit, or move out; but he has no redress in damages for injury to person or property consequent upon the landlord’s failure to repair. Whether this construction be right or not, it was presumably adopted with the sections themselves, it constitutes a rule of property, and the courts of this state are without authority to alter it.”
Upon defendant’s objection to the evidence offered by plaintiff in support of the allegations of the complaint in this behalf, the court properly excluded it. In so far as this feature of the complaint is concerned, plaintiff could not recover. He had the option to make repairs himself within the limit prescribed, or, in case he did not choose to do this, to vacate the property.
Aside from this consideration, however, it is alleged in the complaint: “That the plaintiff entered into the possession of the premises and kept and performed all the conditions of the lease to be kept and performed on his part until January 1, 1918, when he0quit the premises and delivered them to the defendant who is now in possession of them.” It thus affirmatively appears that the plaintiff surrendered the possession of the premises to the defendant, who accepted the surrender and entered into the possession. This presents the question whether, after a lessee has surrendered the leased premises to his lessor, who accepts and occupies them, he can thereafter maintain an action for damages for breaches of covenants in the lease by which he justifies his abandonment of it. We think this question must be answered in the negative. Whatever remedy he may have against the lessor, he cannot maintain an action for breach of any covenant of the lease which by his own conduct he shows he has abandoned. Under these circumstances he cannot insist upon a right of recovery against the' lessor for any breach of it. In other words, by his own conduct* he has repudiated the lease, and stands in no position to insist that the lessor is bound by its terms. From this point of view the complaint wholly fails to state a cause of action, and the court was right in directing a verdict for defendant.
The judgment and order are affirmed.
Affirmed.
Associate Justices Cooper, Holloway and Galen, concur.
Associate Justice Reynolds, being absent, takes no part in the foregoing decision.
|
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] |
ME. COMMISSIONEE AYEES
prepared the opinion for the court.
In May, 1917, the H. S. Buell Land Company, a corporation, leased to the plaintiff until March 1, 1918, a section of land in Gallatin county and 400 shares of water for the irrigation thereof, the same to be furnished by the defendant corporation from its canal, subject, however, to the rules and regulations under which water is furnished therefrom. The right to the use of water owned by the defendant and furnished through its canals were represented by shares of the capital stock of the defendant corporation, and the Buell Company owned 400 shares of said stock. The right of a stockholder to lease his shares of stock to third persons is provided by the by-laws of the defendant company.
The plaintiff prosecuted this action to recover damages from the defendant for its negligent failure to furnish him the water leased from the Buell Company, which failure he alleges caused damage to his crops in the sum of $4,704. The issues were made and submitted to a jury, which returned a $3,000 verdict for the plaintiff; the court entered judgment on it, and overruled defendant’s motion for a new trial. This appeal is from that order and judgment.
The error specified has to do with two general propositions, which we shall dispose of in the order assigned: First, that there was no privity of contract between plaintiff as lessee of the Buell Company and the defendant, and consequently defendant did not owe plaintiff any duty which would charge it with liability.
This action is ex contractu. The relation between the de fendant company and the Buell Company was a contractual relation. It contracted to deliver to the Buell Company water, as represented by shares of stock, limited only by the provisions of its by-laws. The Buell Company transferred and assigned to the plaintiff for the period of the lease the water therein provided, and the defendant, by reason of privity, became bound to deliver plaintiff’s said water, subject only to his complying with its rules and by-laws. “Privity,” as used with respect to contracts, leases, etc., implies a connection, mutuality of will, an interaction of parties. To constitute either an express contract or one by implication upon which an action at law may be based, the parties must occupy toward each other a contract status, and there must be that connec tion, mutuality of intention, and interaction of parties generally expressed by the term “privity.” (Woods v. Ayres, 39 Mich. 345, 33 Am. Rep. 396; Van Buren Div. of Toledo & S. H. R. Co. v. Lamphear, 54 Mich. 575, 20 N. W. 590; Hartley v. Phillips, 198 Pa. 9, 47 Atl. 929.) For one not a party to a contract to successfully bring suit upon it, or for a party to a contract to successfully sue one not a party to it, the privity above defined must exist. Applying this rule to the case at bar, we find that a privity of contract did exist between plaintiff and defendant. The by-laws of the defendant company provided that any stockholder of the company might rent his shares of stock, or portion of water, to any other person, whether he be a stockholder or not, in which ease such renter succeeds to the rights of the stockholder for every purpose except voting. If the by-laws should stop here, undoubtedly there would be no contention of lack of privity, but they further provide: “However, said water shall not be delivered to any person other than the stockholder except upon an order in writing to the superintendent, directing such delivery.” This provision is manifestly for the guidance, safeguard and protection of the company, and is subject to waiver by it. Plaintiff pleaded a waiver of this provision. Evidence was introduced showing that for two years previous to 1917 he had -been furnished water by the defendant for irrigation of the same lands that he had in 1917, all of which was done without written notice; the lessee (the plaintiff), verbally making known his desire to defendant’s. ditch rider, received water for the two years previous, and by virtue of similar notice an attempt was made, and some water "furnished him in 1917; at no time did the defendant refuse to furnish water because written notice had not been given, nor was there any dispute as to how much water he should receive. This action on the part of the defendant we must construe to be a waiver of the written notice. The privity now being determined, the plaintiff is placed in the same position with the defendant as the Buell Company, a stockholder of it, would have been, had no lease been made.
In dealing with' the second specified error, for the reasons foregoing, we shall treat plaintiff as a stockholder. This proposition appellant designates as the important question in the case. It is important in that this court has never heretofore determined the relation existing between an incorporated mutual irrigation company and its stockholders. We are confronted for the first time with the question: “Can a stock- holder in an incorporated mutual irrigation. company maintain an action against the corporation for damages, because of its failure to deliver water to him?” In this case all the facts as to the negligent failure to deliver water and damages resulting therefrom was submitted to a jury, which found these issues in favor of the plaintiff, and they are therefore set at rest and are no concern of this court; our only duty being to determine whether the plaintiff, as a matter of law, can recover. It is admitted that the defendant was the owner, and engaged in the operation, of a certain canal, or irrigation system, organized for the purpose of diverting waters from their natural channel and supplying the same .to the stockholders of the defendant for their mutual benefit, in proportion to their respective shares therein. This being a fact, the relation between the defendant and its stockholders is one of contract. The members purchased their stock-—-their interest in the corporate body-—for certain express purposes, namely, the supplying of water to them in proportion to their respective shares, and the defendant corporation undertook to faithfully carry out these purposes. This is a contract which the law implies. From it arises the trust which the defendant is charged to conduct—the company business in the interest of the stockholders—and in this connection each share of stock in respect to the benefit to which it entitles its holder is equal to every other share. (Sawyer v. Hoag, 17 Wall. 611, 623, 21 L. Ed. 731; Miners’ Ditch Co. v. Zellerbach, 37 Cal. 543, 590, 99 Am. Dec. 300; Rochy Ford Canal etc. Co. v. Simpson, 5 Colo. App. 30, 36 Pac. 638.) The defendant being a corporation organized to supply water for irrigation purposes to its stockholders, and defining the interest of each stockholder in the water carried to be the exact proportion to the amount of his stock, it was the defendant’s duty to use reasonable' care and diligence in maintaining its canal and keeping it supplied wth water, and to regulate and divide the use thereof among the several stockholders, in accordance with their respective interests, and it necessarily follows that for neglect or failure to properly discharge this duty. it must respond in damages to the stockholder injured thereby. (Berg v. Yakima V. Canal Co., 83 Wash. 451, L. R. A. 1915D, 292, 145 Pac. 619; O’Connor v. North T. Ditch Co., 17 Nev. 245, 30 Pac. 882; Rocky Ford Canal etc. Co. v. Simpson, 5 Colo. App. 30, 36 Pac. 638; Mountain S. Ditch Co. v. Lindekugel, 24 Colo. App. 100, 131 Pac. 789.)
Defendant’s argument that a stockholder in a mutual eom pany cannot recover in any event against the company acquires its basis in the theory that the stockholders are tenants in common. Of course, if this be true, then defendant’s position is well founded, for a tenant in common cannot be charged with a liability to a cotenant for damages suffered by the latter through no fault of his. (38 Cyc. 84.) To adopt the theory of tenants in common, we would have to disregard the purpose and effect of a charter or articles of incorporation; we would obliterate the difference between incorporated and unincorporated mutual companies; the corporation law as to such company would become a nullity. This defendant having formally incorporated under the law and entered the business for which it was incorporated, is charged by law with the duty of exercising reasonable care and diligence in pursuing that business. (Mountain Supply Ditch Co. v. Lindekugel, 24 Colo. App. 100, 131 Pac. 789; Miller v. Imperial Water Co., 156 Cal. 27, 24 L. R. A. (n. s.) 372, 103 Pac. 227.) It is a creature of the law, dealing only with its stockholders, which dealing, to be done, must be by con tract. If under the charter, articles of incorporation,' or bylaws it can assess its stockholders for maintenance and distribution of water, which it must do in order to maintain its canal and distribute its water, it must answer in damages to a stockholder for failure to live up to its part of the contract; if it accepts the benefits of the law conferred by its creation, it must discharge the burdens incident thereto.
The stockholders of defendant are not tenants in common. The relation of the stockholders to the company is one of contract. Hence we must answer the question in the affirmative— a stockholder of an incorporated mutual irrigation company can maintain an action against the corporation for damages because of its failure to deliver water to him.
We recommend that the judgment' and order appealed from be affirmed.
Per Curiam : For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.
Affirmed.
|
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] |
MR. JUSTICE COOPER
delivered the opinion of the court
Lafayette S. Briggs died in Gallatin county November 10, 1918. He left a will in which he made specific bequests to be paid upon his death, and devised and bequeathed the income from the rest of his property to his wife, Lydia G. Briggs, during .her lifetime. The estate consisted of 'a farm and other property. Under the terms of his will, upon his death, possession, management and control of all the remaining property passed to her as life tenant. The rents, issues and profits in their entirety were enjoyed by her until September 16, 1918, the day of her death, when the plaintiff, the sister of Mr. Briggs, under the will of her brother became the sole owner thereof, and she has since enjoyed its possession, management, and the profits derived therefrom. By section 4628 of the Revised Codes of 1907 the taxes became a lien upon all the property of the estate and an encumbrance thereon from the first Monday in March, which, if not paid at 6 o’clock P. M. November 30, would become delinquent, and ten per cent added thereto as a penalty for nonpayment. (Sec. 2622.)
The complaint alleges that the profits derived by the widow from the property were greatly in excess of the taxes levied and imposed thereon annually; that the defendant, as executrix of the last will and testament of Lydia G. Briggs, re fused and neglected to pay the taxes for the year 1918, and, in order to avoid the penalty provided by law for nonpayment, she (the plaintiff) paid the sum of $740.52 to the treasurer of Gallatin county as taxes for the current year. On May 7, 1919, she presented to the defendant in her representative capacity a claim in the amount named, which was disallowed. On the following day this action was commenced. A demurrer was filed attacking the complaint upon the ground that it did not state a cause of action. This demurrer the court sustained, and entered the judgment from which the nlaintiff appeals.
Upon the ground that the defendant’s refusal to pay the ' taxes upon her demand making it legally necessary for her (the plaintiff)-to pay them to save them becoming delinquent, she brought this action.
As between the life tenant and the plaintiff, the general taxes and other annual charges against the estate are to be paid by the former. (Rev. Codes 1907, sec. 4534.) The annual levy of taxes is not made until the board of county commissioners meets on the first Monday in August. The exact amount the taxpayer is to pay is not known until the county clerk has received from the state board of equalization a statement of the changes made by it in the assessment-book of the county or in any assessment contained therein (sec. 2607), and has entered in a separate money column in the assessment-book the total amount of the taxes and the columns of total value of property in the county as corrected by direction of the state board of equalization (section 2608); and, on or before the first Monday of October, the county clerk has delivered a copy of the “corrected assessment-book” to the county treasurer, supplemented by his affidavit reciting that he has corrected it, made it conform to the requirements of the county and state boards of equalization, reckoned the respective sums due as taxes, and “added up the columns of valuation, taxes and averages.” Section 2611 requires him also, on delivering the “Duplicate Assess ment-Book” to the treasurer, to charge the latter with the amount of taxes levied; and section 2612, that he shall verify by affidavit all the statements made by him under the provisions of -Chapter 7. On the third-Monday in December the county treasurer must compare the duplicate with the original assessment-book, and mark “paid” in the latter every item so marked in the former (section 2623), and deliver to the county clerk a complete list of all persons and property then owing taxes (section 2624). On or before the last Monday of each year the county clerk must publish the delinquent list (section 2629) once a week for three successive weeks (section 2631), designating the time and place of sale (section 2632). The date of sale must not be less than twenty-one nor more than twenty-eight days from the first publication (section 2633), so that approximately seven weeks must elapse before the property upon which taxes are in default can be sold. Was the payment voluntarily or involuntarily made?
The complaint does not aver in whose name the property was assessed at the time the defendant refused the plaintiff’s demand that she pay the taxes. Nor does it, directly or by inference, allege the precise time when her demand was refused. For aught the pleading shows, there may have been various reasons why defendant was not then ready or able to pay them. Yet, had the plaintiff given her the time and opportunity allowed by law, she might have paid the taxes before delinquency, and this litigation would then have been avoided. Here it may be suggested that the same legislative authority which created the lien on the first Monday in March also gave the taxpayer the choice of time and occasion, between receipt by the county treasurer of the “Duplicate Assessment-Book” (section 2609) and 6 o’clock P. M. November 3-0 (section 2622) to discharge it—a right no less authority can abridge or destroy. So that, the plaintiff having paid the taxes imposed by law upon another, and that, too, before default, there is no showing of duress, as defined by section 4975, nor of such pressing necessity as to make the payment involuntary or under compulsion.
In Clarke v. Dutscher, 9 Cow. (N. Y.) 674, it was held that money paid with full knowledge of the facts and circumstances, or with means of such knowledge, could not be recovered back upon the ground that the party supposed he was bound in law to pay it, when in truth he was not. “He shall not be permitted to allege his ignorance of law; and it shall be considered a voluntary payment.”
In Forbes v. Appleton, 5 Cush. (Mass.) 115, it was held that a payment of money, in order to prevent the obligee in a bottomry bond from enforcing the same by taking possession of the vessel, was not a compulsory, but a voluntary, payment, which, if the money demanded was not due, did not give the debtor a right of action to recover it back, although he declares at the time of payment that he makes it under coercion, and intends to reclaim the money by action. In its opinion the court rPmarked that it seemed to be nothing beyond the ordinary ease of a voluntary . payment of money made to avoid a lawsuit. “The party demanding the money had not the actual possession of the vessel, which was the subject of the bottomry bond, and could not proceed forthwith to levy upon the same, by means of any process in the nature of an execution or warrant of distress.”
In Mayor v. Lefferman, 4 Gill (Md.), 425, 45 Am. Dec. 145, after a careful review of the numerous authorities upon the subject of payments, the court say: “A payment is not to be regarded as compulsory, unless made to emancipate the person or property, from an actual or existing duress, imposed upon it by the party, to whom the payment is made.”
In the note to the ease last cited (45 Am. Dec. 153) will be found the following: “The rule allowing a party to recover money which he has once paid, on the ground that it was paid under compulsion, is intended only for the relief of those who are entrapped by sudden pressure into making such payménts, and who have no other means of escaping an existing or imminent infringement of their rights of person or property. Where a party has time and opportunity to relieve himself from his predicament without making such a payment, by a resort to ordinary legal methods, but nevertheless pays the money, the payment will be deemed voluntary and he cannot recover” (citing numerous cases.) On page 164: “The tax must also be delinquent, and the collector must have the delinquent list, or other warrant in his hands, so as to have it in his power to make an immediate seizure of goods.”
The authorities clearly mark the distinction, always to be noted, between the cases where the officer, armed with legal process, is about to seize the person or property, and those involving transactions between private persons standing upon their legal rights as between each other, neither person nor property being in imminent danger of seizure or detention. For a full discussion of the subject, see the extensive note following the case of New Orleans etc. Co. v. Louisiana etc. Co., 94 Am. St. Rep. 395. Under the title “Payment,” in 22 Am. & Eng. Ency. of Law, page 611, this will be found: “The payment of a tax before it has become delinquent and enforceable, in order merely to secure rebates or discounts, or to escape penalties for delinquency, is voluntary.”
The payment by plaintiff on November 27 of taxes which could not become delinquent until 6 o’clock P. M. November 30 was made to anticipate a penalty,'and to make the defendant her debtor upon a claim which could not mature for three days to come, and was therefore voluntarily made.
There being nothing harsh or unjust in the application of the rule established, the judgment appealed from is affirmed.
Affirmed.
Me. Chief Justice Brantly and Associate Justices Holloway and Galen concur!
Mr. Justice Reynolds, being absent, takes no part in the foregoing decision.
|
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PER CURIAM.
Pursuant to stipulation of tbe parties in the above-entitled cause, the appeal is dismissed, each party paying his own costs.
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] |
PER CURIAM.
Pursuant to stipulation of the parties, the appeal in the above-entitled cause is dismissed.
|
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] |
Opinion:
PER CURIAM.
On October 7, 1918, petitioner R. E. O’Keefe was disbarred from the practice of law in this state. (55 Mont. 200, 175 Pac. 593.) He has petitioned for reinstatement, and a careful investigation and review of his case has been made by us so as to avoid any possible injustice. The attorney general was directed to make full investigation and report as to protests against petitioner’s reinstatement, and his moral fitness to practice law, which has been done, and a complete report made and filed herein by the attorney general. We have given the petitioner every consideration, realizing Ms sad plight, and that to this court alone may he appeal for relief. Our disposition is forgiving, but we have a solemn duty to the profession and the public, which must be performed without regard to feelings of sympathy. The petitioner has been given every opportunity.
Once before he was up for disbarment (49 Mont. 369, L. R. A. 1915A, 514, 142 Pac. 638), and in that instance this court dealt most leniently with him, suspending him from practice for thirty days for an offense justifying his disbarment. We do not believe he “is possessed of the moral conceptions requisite for the practice of law, and his petition is therefore denied.
|
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] |
MR. COMMISSIONER AYERS
prepared the opinion for the court.
Plaintiffs in the trial court, respondents here, brought this action, alleging a road to exist over the lands of defendant, setting forth their cause of action in two counts: First, as a private road or way of necessity, thirty feet wide, appurtenant to their several farm lands; and, second, as a public road sixty feet wide, by reason of user and prescription. The complaint is attacked by objection to the introduction of testimony for the reason that in each instance it fails to state a cause of action. The same road, except for width, is the basis of each count.
In the first count, the one dealing with the private road, plaintiffs allege ownership of farm lands, with homes thereon, belonging severally to them, in sections 4, 5 and 6, township 6 north, range 10 west, Montana meridian, in Powell county, lying north and northerly of the lands of the defendant in section 8, same township and range, over which all of the road in question passes; that there is no road or means of ingress or egress from the lands of plaintiffs to any public or county highway,' except the road in question, and that.it is necessary for the plaintiffs to have and use said described road in going to and from their respective homes, to their market towns, or to their neighbors, or other places; and that it is necessary for the occupation, use and enjoyment of their said respective lands and homes to have and use the said road; that they own and of a right ought to have it; that the same is appurtenant to their respective lands. Then follow allegations of defendant’s obstruction by way of gates and cultivation of the land during the year 1917; that he asserts and claims some right or interest in the- road and the lands thereof adverse to plaintiffs, and that such claim is without authority of law, and is invalid; that his claim constitutes a cloud upon plaintiffs’ title to said road; that defendant threatens to and will continue such obstruction unless restricted by an order of court and plaintiffs’ title to the same quieted.
In the second count, the one dealing with a public road, the complaint in effect charges that the said road came into existence by reason of prescription and user, in that it has been continuously used by the public, with the exception of defendant’s obstruction by way of gates and cultivation in the year 1917, for more than twenty-five years prior to the commencement’ of the action, namely, May 24, 1918. The defendant denies all of the allegations of both causes of action, except that he admits plaintiffs’ ownership of the lands in sections 4, 5 and 6, as alleged by them, and he asserts his title and ownership in the lands of section 8, over which the alleged road passes (admittedly this is a fact), and alleges the nonexistence of any road, either private or public, over his said lands.
The trial proceeded upon the issues above stated, by the court sitting without a jury, and, after hearing the testimony and viewing the road and premises, the court made its findings, conclusions of law, and decree on points in dispute substantially as follows: That the road is necessary for the operation, use, and enjoyment of plaintiffs’ respective lands and homes, and that the same was and is appurtenant thereto,- that the defendant in 1917, by gates and plowing, obstructed the said road, and threatens to continue the same; that defendant claims to be the owner in fee of the lands over which the road passes; that such claim is without authority of law, and is invalid, and is a cloud upon plaintiffs’ title thereto, and the use thereof; that the said road is a way of necessity. This concludes the findings as to a private road. As a public road, the court found that immediately and continuously before the commencement of the action, for more than twenty-five years, the road described in the complaint had been a public highway, used and traveled by the public; that by such user the road was dedicated and abandoned to the public, and by reason thereof the said road for more than twenty-five years has been a public road. It found generally that the allegations of both causes of action, were true, resolving the issues in favor of the plaintiffs, and concluded as a matter of law that the plaintiffs have a decree establishing the road as a public highway, and as a way of necessity, unobstructed; and that their title be quieted thereto. Decree was entered accordingly, adjudging said road to be: “A strip of ground thirty (30) feet on each side of the center line of said road, which center line is described as follows: Beginning' at a point thirty (30) feet west of the quarter-section corner between sections eight (8) and seventeen (17) of said township and range; thenee north 3,580 feet, thenee north 28 degrees 50 minutes east, 215 feet, thence, north, one (1) degree west 530 feet; thence north thirtysseven (37) degrees west, 160 feet; thenee north 850 feet to a point thirty (30) feet west of the quarter-section corner between sections five (5) and eight (8) in township 6 north, range 10 west, M. M.”
Defendant appealed from an order overruling his motion for a new trial.
On The Merits.
Upon the theory that the first count sounds in one to quiet title, and upon that theory alone, it can be upheld. Section 9479 of the Revised Codes of 1921, provides: “An action may be brought and prosecuted to final decree, judgment, or order, by any person or persons, whether in actual possession or not, claiming title to real estate, against any person or persons, * * * who claim or may claim any right, title, estate, or interest therein, * # * adverse to plaintiff’s ownership, or any .cloud upon plaintiff’s title thereto, * * * for the purpose of determining such claim or possible claim, and quieting the title to said real estate. *= * # ”
The allegations of ownership of the road in plaintiffs; obstruction of same by defendant; assertion and claim of right or interest therein by him, adverse to plaintiffs; that his claim is without authority of law and is invalid, and that the same constituted a cloud upon their title thereto—is sufficient to state a cause of action to quiet title. (Merk v. Bowery Min. Co., 31 Mont. 298, 78 Pac. 519; Pollock Min. & Mill Co. v. Davenport, 31 Mont. 452, 78 Pac. 768.)
Appellant contends that the second count is bad because in effect it charges two separate sets of acts, as bringing into existence the public road therein claimed: First, dedication, either by the public while the land was open, unappropriated, public domain of the United States, or by appellant and his predecessors in interest; and, second, by prescription— user. Yftth this view we cannot agree. A reading of this count in its entirety discloses that the pleader relies upon the theory that the road became a public one by reason of user. His reference to dedication and abandonment by the government and by defendant and his predecessors in interest has to do with its and their permission of the use for a period in excess of the statute, which would give the public title by limitation, by prescription, and he chooses to call it dedication and abandonment, but his giving it that name does not make it so in fact. No facts.are pleaded to warrant a theory of dedication, but sufficient facts are shown to hold the pleadings sufficient on the theory of prescription.
The complaint withstanding these attacks, we shall now direct our attention to the proof offered to support it. Unquestionably the road described in the complaint, and by decree declared to be both a private and public road and the title quieted thereto was not traveled or used until the year 1902. The evidence shows by a strong preponderance, practically in its entirety, that until Bowen, a predecessor of the defendant, extended his fence out to the half mile line running north and south through section 8, so as to inclose the SW. 14 SE. of said section, the road followed a diagonal course southeasterly and northwesterly across said last-described land, entering it near the northwest corner and leaving it to join the main east and west road which parallels the south line of section 8 at a point near an old corral, which all the evidence locates at the southeast corner thereof. Hence the erection of the fence of 1902 necessitated a change of the road for practically a quarter of a mile, one-fourth of its entire length, in which location it has ever since been. Now that we have the road in its decreed location only since 1902, it eliminates all the great volume of evidence as to other roads, their existence, or nonexistence. However, it is proper to remark obiter that there is no testimony in the record to warrant the conclusion that any of the other roads are or ever were either private or public roads as the same are known in law, but are and were only tracks and trails wandering across the open land as described by plaintiffs’ own witness, Road Supervisor Hendrickson: “I know there was not any road, but there was a track part of the way. * * * That road there was like all of the other roads in these early days; they are wherever you could find a wheel track that would take you; there was the road.” The road as decreed, to be a private road, must be so, if at all, by way of necessity. A way of necessity arises where one person grants to another land to which there is no access except by passing over other lands of the grantor. (Brigham v. Smith, 4 Gray (Mass.), 297, 64 Am. Dec. 76; Palmer v. Palmer, 150 N. Y. 139, 55 Am. St. Rep. 653, 44 N. E. 966; Herrin v. Sieben, 46 Mont. 226, 127 Pac. 323.) In such cases a way of necessity is impliedly reserved in the grant. A way of necessity cannot exist where there never was any unity of ownership of the alleged dominant and servient estates, for no one can have a way of necessity over the land of a stranger. (Schulenbarger v. Johnstone, 64 Wash. 202, 35 L. R. A. (n. s.) 941, 116 Pac. 843; Dudley v. Meggs, 54 Okl. 65, 153 Pac. 1121; 19 C. J. 921.) In order to escape the effect of this rule, plaintiffs urge that the unity of ownership of their lands and that of the defendant runs back to the government, and by reason of the inception of their title before the defendant’s that the government impliedly granted them a way of necessity over the lands later appropriated by the defendant. We recognize that such a state of facts could exist from which that conclusion could be drawn. The case at bar, however, does not warrant it. Owrners of land must not be subjected to the burden of a servitude for a private road, or any other kind of road over it, unless the evidence presented be clear and convincing. (Barnard Realty Co. v. Butte, 55 Mont. 384, 177 Pac. 402.) The evidence submitted is far from meeting this requirement. The evidence shows that plaintiffs have other ways out— true, not so good or convenient as the one sought, yet they admit traveling over them, but assert greater distance and muddy conditions at certain seasons of the year. This will not excuse their use to the _extent of establishing and decreeing a way of necessity over the lands of another. A way of necessity cannot be established by reason of convenience. The term expresses itself. Its foundation must rest in necessity (19 O. J.); here it does not.
To arrive at a conclusion that a way over the lands of another is a public road, the evidence must be convincing that the public have pursued a definite, fixed course, continuously and uninterruptedly, and coupled it with an assumption of control and right of use adversely under claim or color of right, and not merely by the owner’s permission, over it for the statutory period (five years before the adoption of the 1893 Code and ten years since), without which prescriptive rights cannot attach. (State v. Auchard, 22 Mont. 14, 55 Pac. 361; Montana O. & P. Co. v. Butte & B. C. M. Co., 25 Mont. 427, 65 Pac. 420; Barnard Realty Co. v. Butte, supra; Fairchild v. Stewart, 117 Iowa, 734, 89 N. W. 1075; Petterson v. Waske, 45 Wash. 307, 88 Pac. 206; 37 Cyc. 21.)
Plaintiffs insist that the change of the road occasioned by Bowen’s fence in 1902 is one of a minor nature and immaterial, and that the road as changed and decreed is the same as traveled for years before. If it can be changed for one-fourth of its length and that be immaterial, why not one-half or even three-fourths? And where would the line of materiality finally be determined? It cannot be done. A “definite, fixed course” must mean a course with clear and precise' limits and of a permanent character.
To create a public road by prescription, it must be so situated and so conditioned as to be available to the public, and the user—the travel—must be by the public generally, and it must be a way common to all. In the ease at bar, the public never assumed any jurisdiction or exercised any rights over the road in question; nor did it regard the travel there as adverse; there has always been a gate at one end, and since 1913 there has been a gate at the other end, both of which have been recognized by the plaintiffs and such other persons as occasionally passed over it. The evidence preponderates against the use of the road as followed since 1902 by the public. The public have had no occasion to use it. It has been used more by the plaintiffs than all others combined, and their use has been no other than a way of convenience, a permissive use which may be revoked at the will of the owner. We can see no more tban -the usual accommodation between neighbors that marked the settlement of the public domain, and until roads are lawfully established, as said by the witness Hendrickson, “they [meaning roads] are where you can find a wheel track,” and by common consent the settler locating in front of another has been willing that his neighbor continue his way over the land occupied by him. To charge the owner with abandonment and dedication or to credit the user with an adverse intent would penalize generosity and destroy neighborhood accommodation. If it were understood that by allowing a neighbor to pass over one’s farm for a period of time in excess of the statute conferred a right on him to acquire a passageway to be kept open for his benefit, all such travel would be immediately prohibited, and rightfully so.
This being an equity case, we have reviewed and' determined all of the material questions of fact as well as of law. (Sec. 8805, Rev.' Codes 1921.) Other questions raised, not herein discussed, are not of sufficient merit to require special notice. We find nothing to warrant plaintiffs’ contentions, and are constrained to the conclusion that the weight of the testimony is decidedly against the findings and conclusions reached by the trial court, and preponderates decidedly in favor of the defendant, that the way in dispute is not and never has been a private nor a public road. No good cause exists for the granting of a new trial or the taking of further testimony in the court below.
Therefore we recommend that the cause be remanded to the district court, with directions to set aside its findings, conclusions, and decree heretofore entered, and to enter a decree for the defendant not inconsistent herewith.
Per Curiam: For.the reasons given in the foregoing opinion, the cause is remanded to the district court, with directions to set aside its findings, conclusions and decrees heretofore entered, and to enter a decree for the defendant not inconsistent with the views expressed in the foregoing opinion.
Remanded.
|
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] |
PER CURIAM.
Pursuant to stipulation of tbe parties, tbe appeal in tbe above-entitled cause is dismissed as settled.
|
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MR. COMMISSIONER HORSEY
prepared the opinion for the court.
On August 17, 1916, plaintiff and defendant entered into a contract in writing, which, omitting the formal parts, reads as follows: “Witnesseth, that the party of the first part agrees to deliver to the party of the second part on or about May 10, 1917, thirty head of mares and ten colts, yearlings, upon the payment by the party of the second part to the party of the first part, the sum of fifteen hundred dollars ($1,500.00).” At the time of the execution of this contract, plaintiff paid to the defendant the sum of $450 to apply on the purchase price of the animals mentioned therein.
On January 25, 1919, plaintiff instituted the present action to recover from the defendant the sum of $450 paid on the purchase price of said horses, and for the sum of $750 damages claimed to have been sustained by the plaintiff by reason of the nondelivery of said animals. He alleged in his- complaint the making and execution of the contract referred to above; that delivery of the horses was to be made at defendant’s ranch in Richland county, Montana; and that defendant failed and still refuses to deliver said horses to the plaintiff, as he had agreed to do. Defendant interposed a general demurrer to the com plaint, which was by the court overruled. Defendant in his answer admitted the making and execution of the contract quoted above, the payment of the $450 on the purchase price, and that delivery of the horses was to be made at his ranch in Richland county, and then denied generally each and every other allegation in plaintiff’s complaint. The plaintiff had verdict and judgment. Defendant appeals from the judgment entered against him and from an order overruling his motion for a new trial.
There are several specifications of error; but, in view of the conclusions we have reached, we need only consider one question, namely: Did the plaintiff, under the facts disclosed in this ease, show that he was able and offered to perform all conditions concurrent imposed upon him by the contract?
Plaintiff alleged in his complaint that the horses were to be delivered to him by the defendant at the latter’s ranch in Richland county, Montana. This allegation was admitted by the answer of the defendant, so that the place of delivery was no longer a controverted question in the ease. True, plaintiff testified on cross-examination that defendant agreed to deliver the horses at the former’s ranch on what is known as the East Redwater in Richland county, but the effect of this was to declare the falsity of his own complaint, which he cannot be permitted to do. “The general rule is that parties are bound by, and estopped to controvert, allegations or admissions in their own pleadings.” (31 Cyc. 87.)
In the case of Wertz v. Lamb, 43 Mont. 477, 117 Pac. 89, it was contended that there was a fatal variance between the allegations of the complaint and the proof, in that the plaintiff in that ease “alleged a contract with W. W. Lamb and Roama M. Lamb, and submitted his proof showing only an agreement with W. W. Lamb.” This court said: “In their counterclaim the defendants W. W. Lamb and Roama M. Lamb allege affirmatively that they employed plaintiff to do the work described in the complaint, and, having thus admitted that the .contract was made by both, they cannot now be heard to say that it was not, or that there is a material variance between the plaintiff-’s pleading and the proof in this respect. The defendants W. W. Lamb and Roama M. Lamb are bound by the position which they assumed in their pleading.”
On another occasion, this court voiced its disapproval of and concerning a practice that would permit one to controvert the allegations and admissions of his own pleadings under circumstances such as disclosed in the instant case, in the following language: “The party making the motion, the defendant, has stated in his verified answer that said Fred Manuel was a citizen of the United States ever since March 15, 1885. This was admitted by the replication. Defendant could not after-wards be heard to deny and stultify his pleading by moving for a nonsuit, by which motion he was obliged to declare the falsity of his own answer. He was bound by the allegations of his answer, especially when the opposite party had accepted the truth thereof. The court as well had the right to accept such truth.” (Wulf v. Manuel, 9 Mont. 279, 23 Pac. 723.)
No effort was made by the plaintiff to amend his complaint, either before or after he had thus testified on cross-examination. Neither did he attempt to show that the allegation in the complaint was made inconsiderately by mistake or inadvertence. In fact, on page 2 of his brief he states that the question of the place of delivery of these horses is foreclosed by the pleadings in the case.
That delivery and payment were to be concurrent at defend- ant’s ranch in Richland county is amply supported by the evidence and admission made in the pleadings in this case. (Sec. 7403, Rev. Codes 1921.) This being so, plaintiff was required to show, before he could put the defendant in default, an offer and ability to receive the horses and pay for them at defendant’s ranch in Richland county. (Sec. 7405, Rev. Codes; Porter v. Plymouth Gold Min. Co., 29 Mont. 347, 101 Am. St. Rep. 569, 74 Pac. 938; Jenderson v. Hansen, 50 Mont. 216, 146 Pac. 473.) That he did not do so is clear from his own testimony. No useful purpose would be subserved in reviewing all the testimony in the record; suffice it to say that plaintiff’s own testimony reveals a studied effort on his part-to place himself in as favorable a position as possible, without actually offering to perform his part of the contract, in order that he might induce defendant to return him the amount paid on the purchase price of these horses. Not only does his testimony show that he did not appear at defendant’s ranch to receive the horses and pay for them, but actually discloses a refusal on his part to go there for that purpose. Plaintiff did testify that he was ready, able, and willing to pay defendant if he delivered the horses; but as said by this court in Porter v. Plymouth Gold Min. Co., supra: “Being ready and willing to perform an act cannot be tortured by construction into an allegation of an offer to perform such act. One might be ready and willing to do an act without knowledge thereof on the part of the other party.” In none of the conversations detailed by plaintiff as having taken place between himself and defendant, subsequent to the execution of the contract, is there disclosed a refusal on the part of the defendant to deliver the horses at his ranch in Richland county.
Where the evidence so clearly shows, as it does in this case, -that plaintiff is not entitled to recover, we feel constrained to recommend that the judgment and order appealed from be reversed and the cause remanded to the lower court, with directions to dismiss the complaint.
Per Curiam : For the reasons given in the foregoing opinion, the judgment and order appealed from are reversed and the cause is remanded to the district court, with directions to dismiss the complaint.
Reversed.
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] |
ME. JUSTICE COOPEE
delivered the opinion of the court.
This is an action to recover damages alleged to have been caused by the defendant’s negligence in failing to furnish suitable accommodations for care, feeding and watering of three cars of sheep, and in failing to exercise due care in the operation of the trains carrying them from the station of Big Sandy, Montana, to Chicago. The cause was submitted to the jury, upon conflicting evidence as to negligence. They returned a verdict in defendant’s favor. Plaintiff appeals from an order denying a new trial.
In the court below plaintiff based his damages on the value of the sheep at destination. He now complains that the court erred in limiting his recovery to nominal damages only. Upon the trial he proved what the dead sheep would have been worth at Chicago alive and in a normal condition, and what the live sheep would have been worth there had the defendant performed its duty as a common carrier. He offered no proof of the value of the sheep at the time and place of shipment.
Upon the question of negligence, the court, without exception, gave the following instruction: “ (9) The burden of proof is upon the plaintiff to establish the allegations of his complaint with reference to delay and improper handling on the part of the defendant, by a preponderance or greater weight of the evidence, and if you find that plaintiff has failed to sustain such burden of proof and has failed to prove the allegations of his complaint and establish his causes of action against the defendant, your verdict must be for the defendant.”
The court then told the jury that the loss or damage sustained by the plaintiff must be computed on the basis of the value of the sheep at the time and place of shipment; that he could not recover a greater sum than would represent their value at the .time and place of shipment, and for the sheep which did not die no greater sum than the difference between their value at destination without having been subjected to delay or rough handling; and that, if they found that plaintiff had suffered loss due to defendant’s negligence, they could allow him only nominal damages—“a small amount to determine a right.”
The only objections interposed to the instructions were that, upon the question of damages, they were ambiguous, unintel ligible and uncertain, and seemed to tell the jury that the provision in the shipping contract was void, yet that it was legal notwithstanding its limitation of value, whereas it was unjust, unconscionable, and void under the Cummins Amendment to the Interstate Commerce Act (IT. S. Comp. Stats., secs. 8592, 8604a). He did not, as he does now, challenge the instruction fixing the standard for the measurement of the damages upon the ground now urged. He does not now complain of the instruction defining negligence, but does claim that the provisions in the shipping contract confining the estimate of damages to the value of the sheep at the point of shipment were void, and that the court’s instruction that it was valid, and was so argued by counsel to the jury, constituted error hurtful to his cause. He relies upon McCaull-Dinsmore Co. v. Chicago etc. Ry. Co. (D. C.), 252 Fed. 664 (affirmed in 253 U. S. 97, 64 L. Ed. 801, 40 Sup. Ct. Rep. 594). There this identical provision was held to be void as preventing a recovery for the full actual ioss. Counsel for defend- ant admit the fault in the charge upon 'damages, but insist that it did not harm the plaintiff because the jury found that the defendant was free from negligence before they ever reached the question of amount at all. The general rule undoubtedly is that an erroneous instruction upon the question of damages is not prejudicial where the verdict upon the main issue—that of negligence in this instance—is unfavorable to the plaintiff. (Martin & Woolwine v. Chicago etc. Ry. Co., 7 Okl. 452, 54 Pac. 696, and the numerous cases cited by Mr. Justice Frick in his dissenting opinion in Burbridge v. Utah L. & T. Co. (Utah), 196 Pac. 556.)
Under the charge as given,. the jury could have returned a verdict for the plaintiff had he sustained his charges of negligence by a preponderance of the evidence. Instead, they found for the defendant upon the conflicting evidence. Had their findings been in plaintiff’s . favor, the erroneous instruction would have placed a limitation upon the amount of his recovery and the error would then have been too - palpable to question. Having failed to prove that the defendant did not fulfill his duty as a common carrier, and having • failed to satisfy them that he had established his right to recover “a small amount to determine a right,” they returned a verdict accordingly. In reaching this conclusion, we must presume that the jury fairly considered and applied to the evidence all of-the court’s instructions, and, believing that the plaintiff was not entitled to a verdict, selected one of the two alternatives left to them and found in favor of the defendant. This court must not presume that the jury did not follow the instructions, apply them to the evideiice, and find according to its preponderance.
The order appealed from is affirmed.
Affirmed.
Mr. Chief Justice Brantly and Associate Justices Holloway and Galen concur.
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] |
MR. COMMISSIONER HORSKY
prepared the opinion for the court.
This action was brought to recover of the defendants, Carl Oehler and Marie Oehler, damages for the conversion of a certain fence in which the plaintiff, Margaret Kane, claimed a one-half interest.
The plaintiff and the defendant Marie Oehler owned adjoining tracts of land in Yellowstone county, Montana. The fence in question, one-half mile in length, marked what was thought to be the boundary line dividing a part of these two tracts of land. Marie Oehler’s predecessor in interest, one John Ingus, built the fence, and according to the testimony of the plaintiff, the posts used in its construction were furnished by Fred Dart, predecessor in interest of the plaintiff. Mr. Dart testified that he and Mr. Ingus understood the fence in question to be a partnership fence and that he (Dart) supposed that it had been erected on the line between the two places.
After plaintiff had acquired the tract of land formerly owned by Mr. Dart, she caused it to be surveyed, and found that the fence was over on her land a distance of about 100 feet. Through her brother, Walter Kane, she caused this information to be communicated to the defendants. Mr. Kane said he informed defendants that the fence was off the line and on his sister’s ground, and gave them five days in which to verify the survey, by having the land resurveyed themselves, and, if they found plaintiff’s survey correct, he would , himself move the fence over on the line. This is disputed by defendants, who claim that Mr. Kane notified them to move the fence in five days or he would claim it, and that after being so notified they consulted the. county attorney of Yellowstone county, who advised them to move it, which they did on or about November 27, 1918.
Plaintiff then brought this action for the conversion of the fence, which she valued at $66, and in which she claimed a one-half interest, and for damages sustained by her because of the removal of the fence by the defendants, and also for $125 as exemplary damages. Defendants, in their answer, deny all the allegations of plaintiff’s complaint, and by way of counterclaim allege that they have been damaged in the sum of $40 occasioned by stock belonging to plaintiff trespassing upon tbeir lands, and for a further defense a'fex that they removed the fence in question at the request of the plaintiff.
Plaintiff by her reply put in issue all of the new matter set up in the answer. A trial was had, resulting in a verdict and judgment against the defendants for the sum of $258. Defendants appeal from the judgment and order denying their motion for a new trial.
It is first contended that there is no evidence to sustain the allegations of the complaint, wherein it is alleged that the conversion of the fence on the part of the defendants was done in a spirit of malice towards the plaintiff.
With this we do not agree. There was evidence introduced on the part of the plaintiff showing that the defendants, in effecting a removal of the fence, deliberately chopped down the posts, and that in some instances posts were left sticking up from the ground in sharp slivers, and others were splintered. The evidence further showed that the defendants moved this fence to their home; that the fence was removed on or about the twenty-seventh day of November; and that plaintiff, at the time, had within her inclosure stock of her own, as well as several head of stock that she was pasturing for a neighbor; and that, after the fence was removed, the defendants dogged plaintiff’s stock off her place.
As to one such incident plaintiff testified as follows: “As she dogged them past [referring to horses alleged to have been driven off the place of plaintiff by the defendant Marie Oehler], I ran down to open the gate, and she picked up some rocks and threatened me. She said she would dog everything off my place, that she wouldn’t allow me to have one thing on my place, and she kept her word. They dogged the stock clear off my place three different times, and the last time was a cold day last winter, and the cows went off, and one of the cows lost her calf; was frozen to death when we found them.” Further from her testimony: “Miss Oehler said that she would dog this stock so insistently that I wouldn’t be able to keep one thing on the place, and she kept her word.” As to the conduct of one of the defendants, on another occasion, she testified: “One morning I saw Mr. Oehler walking up and down my fence right by the gate; rather, right before my kitchen door. ’He was walking up and down by the gate with his sleeves rolled up, a big club in his hand, and he was looking very threatening. He walked up and down there for three hours. There was no one home but myself. There was nothing around there. There was seemingly no occasion whatever for Mr. Oehler’s presence there. There was nothing at all in sight.” The above testimony was sufficient to carry to the jury the question as to •whether or not the conversion of this fence on the part of the defendants was done in a spirit of malice towards the plaintiff.
But defendants complain that the court erred in admitting testimony of this character as to the conduct of these defendants toward plaintiff subsequent to the removal of the fence. The court very properly admitted this evidence. “Evidence of other acts of defendant than those alleged and for which damages are sought, both preceding as well as following the particular acts, is admissible if so connected with the particular acts as tending to show defendant’s disposition, intention, or motive in the commission of the particular acts for which damages are claimed.” (17 C. J. 1041, 1042.) The rule is thus stated in 8 R. C. L. 651: “Where exemplary damages are claimed, evidence of any fact which legitimately tends to show the motive and intent of the defendant in doing the act complained of is admissible, as, for example, the existence or absence of malice, or other aggravations essential to the allowance of such damages. Hostility at a time sxibsequent to the injury may be shown as having a tendency to prove that it existed when the injury was inflicted.” (1 Wigmore on Evidence, sec. 396.)
The above also disposes of the contention made that the court erred in giving an instruction on exemplary damages.
It is next contended that the verdict is against the law, in that the verdict of the jury discloses that they did not follow the instructions given by the court.
The court instructed the jury both on the question of compensatory and exemplary damages, and under the instructions as given the limit of recovery was fixed at the sum of $158; just $100 less than the amount fixed by the jury in their verdict. It is evident that the jury made an error in computation or inadvertently inserted the figure “2” instead of the figure “1” in their verdict. But for this clerical error the verdict would have been in accord with the instructions. It is further apparent that the jury intended to fix the damages at the limit fixed by the court in its charge to the jury.
Bearing in mind the observation of this court in Consolidated etc. Min. Co. v. Struthers, 41 Mont. 565, 111 Pac. 152, that “a verdict is not to be technically construed, but is to be given such a reasonable construction as will carry out the obvious intention of the jury,” which intention may be arrived at by a reference to the issues as made by the pleadings, the instructions submitted by the court, and the evidence introduced at the trial, and giving heed to the command of section 6593 of the Kevised Codes (1907), which provides that no judgment shall be reversed by reason of any error in the proceedings which does not affect the substantial rights of the parties, which statute was designed to prevent reversal of cases wherein, as in the case at bar, substantial justice has already been done, we are unwilling m a case such as this one, when the intention of the jury is apparent from the record and where the evidence so clearly and unmistakably shows that plaintiff is entitled to recover, to reverse the case by reason of a perfectly apparent clerical misprision on the part of the jury.
We have examined the other alleged errors assigned by appellants and find them without merit.
"We recommend that the cause be remanded to the district court, with instructions to modify the judgment made and entered in this cause to read that the plaintiff is entitled to recover of and from the defendants, in addition to her costs and disbursements in this action, the sum of $158, instead of the sum of $258, as said judgment now reads, and that, when so modified, the judgment and order appealed from be affirmed.
Per Curiam: For the reasons stated in the foregoing opinion, it is ordered that the cause be remanded to the district court, with directions to modify the judgment by reducing the amount thereof $100 as of the date of the original judgment, and, as thus modified, it will stand affirmed. Each party will pay his own costs in this court.
Affirmed.
|
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] |
PER CURIAM.
This cause coming on for hearing and the court being informed that the appeal has been abandoned, it is now here ordered and adjudged that the judgment of the court below made on the fifteenth day of June, 1920, be and it is hereby affirmed at the cost of the appellant.
|
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] |
MR. CHIEF COMMISSIONER STARK
prepared the opinion for the court.
The record in this case discloses that on the twenty-eighth day of December, 1916, S. S. Henderson, of Monmouth, Illinois, and David “W. Henderson and Lizzie L. Hickman, respectively the executor and executrix of the last will and testament of Eliza J. Henderson, deceased, of Monmouth, Illinois, in their own right, and for and on behalf of the estate of Eliza J. Henderson, deceased, under a power contained in the will of said Eliza J. Henderson, deceased, as the parties of the first part, entered into a contract with E. H. Daniels, of Lewistown, Montana (the defendant herein), as party of the second part, by the terms of which the parties of the first part agreed to sell and convey to the party of the second part, and the party of the second part agreed to purchase from them, a tract of land located in Fergus county, Montana, for the sum of $29,900, of which amount $6,000 was to be paid in cash, upon the execution of the agreement and the deposit of the same in escrow with the First National Bank of Lewistown, together with a warranty deed conveying the land to the party of the second part. The balance of the purchase price was to be paid as follows, to-wit: $4,000 on or before March 1, 1918; $2,000 on or before March 1, 1919; $2,000 on or before March 1, 1920; and $2,900 on or before March 1, 1921.
Upon making the above payments, the party of the second part had the privilege of executing a note to the first parties for the balance of $13,000, bearing interest at the rate of six per cent per annum, payable March 1, 1924, secured by a first mortgage covering the premises, and on delivery of the same to the bank, to receive the deed. The party of the second part was given the right to make any or all of said installment payments at any time he Saw fit, whether due or not, and upon doing so and executing the note and mortgage above mentioned, to receive the deed from the bank. There was a further provision in the contract, “that within a reasonable time after the execution of these presents the parties of the first part shall secure such authority as may be required to execute and deliver said deed and shall procure at their own expense an abstract of title to all said lands, showing a good and marketable title, or title that will be unencumbered at the date of the delivery of said deed.” The contract also contained a clause forfeiting the $6,000 paid, in the event of the failure of the party of the second part to complete the purchase of said land.
The defendant did not pay the installment due March 1, 1918, and thereafter the plaintiffs commenced this suit to cancel the contract and declare a forfeiture of the $6,000 paid thereon.
An amended complaint was filed May 9, 1919, the first two paragraphs of which are as follows:
“I. That Ivan Henderson is now duly appointed, qualified, and acting administrator of the estate of Eliza J. Henderson, deceased, with the Will Annexed.
“II. That prior to the twenty-eighth day of December, 1916, David W. Henderson and Lizzie L. Hickman were appointed respectively executor and executrix by the county court of Warren county, Illinois, and ever since said time have been, and now are, respectively, executor and executrix of the last will and testament of Eliza J. Henderson, deceased, in the said state of Illinois.”
The complaint sets out the terms of the agreement above referred to; the default of the defendant in making the payment of March 1, 1918; that demand had been made on the defendant for the same; that immediately after the execution of the agreement the defendant entered into possession of the premises and has remained in possession at all times down to the commencement of the suit; that the rental value of the premises during the time the same were so occupied by the defendant exceeded the amount paid by the defendant to the plaintiff; and that the existence of the contract casts a cloud upon the plaintiffs’ title to the real estate mentioned. A copy of the contract is attached to and made a part of the amended complaint.
To this amended complaint the defendant filed a general demurrer, which was overruled, and thereafter he filed his answer denying the allegations of paragraphs I and II above quoted, and admitting all of the other matters alleged, except the rental value of the premises, and that the contract constituted a cloud upon the title to the land.
As a separate defense, the answer alleged that, by reason of the provisions of the contract, it was the duty of the plaintiffs, within a reasonable time, to secure and deliver a deed and abstract showing a good and marketable title or title that would be unencumbered at the date of delivery thereof, and to procure authority from the proper court to execute and deliver the deed therein mentioned, that the plaintiffs had willfully failed and neglected to do this, and thereby the defendant had been greatly hampered and embarrassed in complying with the contract for the reason that he was to have the right of taking up the contract and paying the balance due at any time he chose, and that he had been prevented from exercising this option on account of this neglect of the plaintiffs, of which fact they had been advised prior to the bringing of the suit; that the provisions of the contract concerning payment and the delivery of the deed and furnishing of the abstract of title were and are concurrent conditions, and that payment was not due until the plaintiffs had complied with the terms of said contract.
The case was tried before the court without a jury, and resulted in findings and a decree in favor of the plaintiffs.
Defendant moved for a new trial, which was denied, and the case is now before this court on appeal from the judgment and from the order overruling the motion for a new trial.
At the beginning of the trial defendant objected to the introduction of any evidence by plaintiffs on the ground that the amended complaint fails to state facts sufficient to constitute a cause of action, which objection was overruled.
Thereupon plaintiffs offered in evidence all of the papers in the matter of the Estate of Eliza J. Henderson, in the district court of Fergus county, Montana, consisting of a peti tion filed by tbe plaintiff Ivan Henderson on October 14, 1918, for the probate of the last will and testament of Eliza J. Henderson, deceased, setting forth the fact of the death of decedent in "Warren county, Illinois, that she left real estate in Fergus county, Montana, and that she left a will bearing date March 25, 1914, which has been proved, allowed and admitted to probate in the county court of Warren county, state of Illinois, a court of competent jurisdiction, and that an authenticated copy of such proceedings is exhibited and presented with said petition. The petition contains other recitals describing the property of the estate in Fergus county, the names of the heirs, that David W. Henderson and Lizzie L. Hickman are named as executor and executrix of said will, but" that they do not reside in Montana, and refuse to act as such.
The documents filed with this petition purporting to be the authenticated copy of probate proceedings in Warren county, Illinois, consist of: (1) Petition for probate of the last will and testament of Eliza J. Henderson, deceased; (2) orders for hearing; (3) certificate of mailing notice by clerk; (4) order admitting will to probate; (5) oath of executor and executrix; and (6) letters testamentary and certified copy of the last will and testament of the deceased. To these papers is attached a certificate of the clerk of the county court of Warren county to the effect that said papers are true and correct copies thereof, as the same appear of record in his office.
The balance of the papers included in said exhibit “A” consists of an order by the district court of Fergus county, fixing the date for hearing the petition and directing notices to be given, a certificate of proof of will and facts found, and an order of said court admitting the will to probate, and appointing the plaintiff Ivan Henderson as the administrator with the will annexed.
Both the certificate of proof of will and facts found and the order admitting the will to probate and appointing the plaintiff Ivan Henderson as administrator with the will annexed disclose that the only testimony introduced in support of the petition at the hearing consisted of the copies of the proceedings had in the county court of Warren county, Illinois, as above set out.
The defendant objected to the introduction of this exhibit “A” in evidence upon grounds which will be discussed later on in this opinion, and the objection was overruled.
In the view of the case which we entertain, there are but two propositions which require discussion and these are: (1) Does the complaint state a cause of action? (2) Did the court err by admitting in evidence plaintiffs’ exhibit “A”?
I. In order to answer the first proposition it is necessary to examine and construe certain provisions of the' contract upon which the action is based. According to the amended complaint Eliza J. Henderson died in Illinois, and two of the parties of the first part in the contract,' vis., David W. Henderson and Lizzie L. Hickman, were prior to its date appointed executor and executrix respectively of her will in the county court of Warren county, Illinois.
At the time the contract was entered into this will had not been admitted to probate in the state of Montana, so the executor and executrix were not in a position to fulfill the covenants of the contract on their part to convey a marketable title of the interests of the estate in the lands, for the reason “that the authority of * * * an executor or administrator does not extend beyond the jurisdiction of the government under which he was invested with his authority.” (See. 10563, Rev. Codes 1921.)
In order to protect the rights of the defendant, and to guarantee him a good title to the lands which he agreed to purchase, the contract provided that the parties of the first part should within a reasonable time after its execution “secure such authority as may be required to execute and deliver said deed.” This provision can have only one meaning, i. e., that they should have the will of Eliza J. Henderson admitted to probate in Montana, to tbe end that court proceedings might be taken to obtain authority to make the sale and have it confirmed, if such were found to be necessary, or, in the event the provisions of the will were sufficient to authorize the sale and conveyance without authority from the court, that the will should be legally shown of record in the county where the lands are situated, so that the parties of the first part would be able to perform the other covenants of the contract and convey a marketable title, and have the same shown in the abstract of title which they likewise agreed to furnish within a reasonable time.
The contract contains a provision to the effect that, if the party to the second part shall fail to comply with its terms and provisions, he shall forfeit as liquidated damages all sums theretofore paid by him.
A condition involving a forfeiture must be strictly in- terpreted against the party for whose benefit it is created. (Sec. 7408, Rev. Codes 1921; Finley v. School Dist. No. 1, 51 Mont. 411, 153 Pac. 1010; Smith v. Hoffman, 56 Mont. 299, 184 Pac. 842.)
This covenant to secure authority to execute and deliver the deed imposed a duty upon the parties of the first part alone, and the inquiry presents itself whether it was necessary that it should be fulfilled at or before the time when the first deferred payment of $4,000 became due; that is, whether this provision of the contract created a condition precedent to the rights to enforce payment of this amount.
“A condition precedent in a contract is an act to be performed by one party before the accruing of a liability of the other party, and it must be pleaded and proven. (Chit. Cont. (11th Am. ed.) 1083.) What is a condition precedent depends, not upon technical words, but upon the plain intention of the parties, to be deduced from the whole instrument.” (Ketchum v. Belding, 58 App. Div. 295, 68 N. Y. Supp. 1100.)
“Reasonable time” is defined to be so much time as is necessary,- under the circumstances, to do conveniently what the contract or duty requires should be done in a particular ease. (Bowen v. Detroit City Ry. Co., 54 Mich. 496, 52 Am. Rep. 822, 20 N. W. 559. See, also, various definitions given in 7 "Words and Phrases, 5977, First Series.) When the facts are clearly established or are admitted or undisputed, the question of what is a reasonable time is one of law. (Hill v. Hobart, 16 Me. 164; McFadden v. Henderson, 128 Ala. 221, 29 South. 640.)
Bearing in mind the fact that, when this contract was exe cuted, the parties of the first part therein did not have authority to make a conveyance in Montana of the interest of Eliza J. Henderson in the lands agreed to be conveyed; that they agreed to obtain such authority within a reasonable time; that until this authority had been obtained the attempted conveyance of the interest of the estate in the lands under the deed deposited in escrow would not vest in the defendant a marketable title, or any legal title at all; that the first installment of the deferred payments did not become due until fourteen months after the date of the contract; that the defendant had the right to make any or all of said deferred payments at any time he saw fit, whether the same were due or not, and then receive the deed; that all the proceedings necessary to obtain this authority "might easily have been taken in much less time than the fourteen months intervening between the date of the contract and the time when the first deferred payment became due; and also that the conditions of the contract must be strictly interpreted against the parties of the first part—we cannot escape the conclusion that it was the plain intention of the parties at the time they entered into this contract that the authority to execute and deliver the deed should be secured before the time when the deferred payment of $4,OCIO became due on March 1, 1918. •
If further argument were necessary, we might advert to the fact that at the trial the first thing which plaintiffs attempted to prove was that authority to make and deliver the con veyance hacl in fact been secured in Montana by proceedings instituted in the district court of Fergus county prior to the commencement of this suit, and to the further fact that at the trial there was evidence introduced tending to show that in the year 1918 the defendant had arranged to borrow money, secured by mortgage upon the land in question, to pay up the entire purchase price, and was prevented from completing the loan solely by reason of the fact that he could not show good title to the land.
From the foregoing conclusion it follows that, before the plaintiffs could put the defendant in default for failure to make the payment of March 1, 1918, it was necessary that they should plead and prove that they had complied with their agreement to secure authority to execute and deliver the deed. The amended complaint does not contain any allegation that they had done so, and therefore does not state a cause of action. (Sec. 7405, Rev. Codes 1921; Porter v. Plymouth Gold Min. Co., 29 Mont. 347, 101 Am. St. Rep. 569, 74 Pac. 938; Ketchum v. Belding, supra.)
II. The foregoing might well dispose of this appeal, but we deem it advisable to consider the second proposition, vis.: Did the court err by admitting in evidence plaintiffs’ exhibit “A,” being the record in the matter of the estate of Eliza J. Henderson, deceased, in Fergus county, Montana?
The defendant objected to this testimony upon two grounds, the first of which was: “That there is no pleading that the administrator with the will annexed was appointed by an order duly given or made, and there is no pleading in lieu of the short cut allowed by the statute, setting up the jurisdictional facts showing or tending to show that the administrator with the will annexed was duly appointed by this court.”
Paragraph I of the amended complaint, quoted above, is the only reference made to the appointment of the plaintiff Ivan Henderson as the administrator with the will annexed of the Henderson estate. Reading this paragraph in connection with the provisions of the statute (sec. 9169, Rev. Codes 1921) and the numerous decisions of this court concerning the same (Harmon v. Comstock Horse & C. Co., 9 Mont. 243, 23 Pac. 470; Weaver v. English, 11 Mont. 84, 27 Pac. 396; Walter v. Mitchell, 25 Mont. 385, 65 Pac. 5; State v. Lagoni, 30 Mont. 472, 76 Pac. 1044; Mears v. Shaw, 32 Mont. 575, 81 Pac. 338) shows that the objection was well taken and should have been sustained.
A further objection to the introduction of plaintiffs’ exhibit “A” in evidence was that the records embraced therein affirmatively disclose that the court of Fergus county had no jurisdiction to appoint the plaintiff Ivan Henderson as administrator with the will annexed of the estate of Eliza J. Henderson, deceased.
Section 10040 of’the Revised Codes of 1921, with reference to the probate of foreign wills, provides: “When a copy of the will and probate thereof, duly authenticated, shall be produced by the executor, or by any other person interested in the will, with a petition for letters, the same must be filed, and the court or judge must appoint a time for the hearing, notice whereof must be given,” etc.
Under the provisions of section 10555, Revised Codes of 1921, the judicial record “of a sister state may be proved by the attestation of the clerk, and the seal of the court annexed, if there be a clerk and a seal, together with a certificate of the chief judge or presiding magistrate, that the attestation is in due form.”
There is attached to the purported record of the probate proceedings from Warren county, Illinois, which were filed with the petition for the probate of the will in the district court of Fergus county, only a certificate or attestation by the clerk of said court to the effect that the same are. true and correct copies thereof as the same appear of record in his office, but there is no certificate whatever of any judge or magistrate “that the attestation is in due form.” In the case of Adams v. Stenehjem, 50 Mont. 232, 146 Pac. 469, the certi fied copy of a judgment-roll from a district court of North Dakota was offered.in evidence, attested by the clerk of the court, to which was attached a certificate of the judge of the court, which failed to state that the attestation by the clerk was “in due form.” Construing section 10555, supra, in connection with section 1, Article IV, of the Constitution of the United States, and section 905, United States Revised Statutes (U. S. Comp. Stats., sec. 1519), this court said: “In the absence of such certificate [of the judge] as the federal statute and our Code prescribe, the copy is not entitled to be admitted. This rule is recognized universally.”
Therefore “the copy of the will and the probate thereof” produced by the plaintiff Ivan Henderson with his petition was not “duly authenticated” as required by section 10040, supra.
Did the filing of this petition, unaccompanied “by a copy of the will duly authenticated,” confer jurisdiction upon the court to ultimately make an order admitting the will to probate? We think it did not. In the ease of Crawford v. Pierse, 56 Mont. 371, 185 Pac. 315, this court, discussing the method by which a district court acquires jurisdiction, said:' ,“It can acquire jurisdiction of a. particular civil case only by the filing of a written complaint, * ® * which, besides the formal parts, must contain a statement of the facts constituting the cause of action, in ordinary and concise language. * * * The court cannot redress a particular wrong unless the facts constituting the wrong are made manifest to it in a written complaint, as provided by the statute. It is only by this means that its general power can be brought into activity in a given case. If the pleading is not sufficient to put the defendant in the wrong, the court cannot grant redress. A judgment based upon such a pleading is invalid.” The same reasoning applies with equal force to a petition for the probate of a foreign will. The statute supra requires that a petition for its probate must be accompanied by “a copy of the will and the probate thereof duly authenticated.” Until this is done, the court does not acquire jurisdiction of the subject matter and is without authority to make the ultimate order admitting the will to probate.
Counsel for plaintiffs urge that this matter may not be inquired into in this proceeding, because it is a collateral attack on a judgment or order entered in another case, and in support of this contention cite the case of Goldtree v. McAlister, 86 Cal. 93, 23 Pac. 207, 24 Pac. 801.
We do not agree with the decision in the Goldtree Case. Indeed, in a later California case, Estate of Clark, 148 Cal. 108, 113 Am. St. Rep. 197, 7 Ann. Cas. 306, 1 L. R. A. (n. s.) 996, 82 Pac. 760, that court, referring .to the Goldtree Case, said: “Question may be raised over the strict logic of that opinion, but no doubt can exist as to the strong necessity which called it forth.”
In 15 R. C. L. 895, it is said: “While it is-generally held that the presumption in favor of judgments of courts of general jurisdiction is conclusive on collateral attack where no want of jurisdiction is apparent on the record, yet it is equally well settled that such judgments may be collaterally attacked when a want of jurisdiction affirmatively appears from an inspection of the record.” To the same effect are the cases of Dietrich v. Martin, 24 Mont. 145, 81 Am. St. Rep. 419, 60 Pac. 1087; Burke v. Interstate Sav. & L. Assn., 25 Mont. 315, 87 Am. St. Rep. 416, 64 Pac. 879; Crawford v. Pierse, supra, and Wall v. Wall, 123 Pa. 545, 10 Am. St. Rep. 549, 16 Atl. 598.
Our conclusion is that the petition filed by the plaintiff Ivan Henderson, with the accompanying papers, did not confer jurisdiction of the estate of Eliza J. Henderson, deceased, upon the district court of Fergus county, and that the objection to plaintiffs’ exhibit “A” should also have been sustained upon the second ground stated.
For the reasons above indicated, this cause must be reversed, and, since the record discloses that the plaintiffs cannot amend the complaint so as to state facts constituting a cause of action, we recommend that the judgment and order appealed' from be reversed, and the cause remanded to the district court, with instructions to enter judgment dismissing the complaint.
Per Curiam: For the reasons given in the foregoing opinion, the judgment and order appealed from are reversed and the cause is remanded to the district court, with instructions to enter judgment dismissing the complaint.
Reversed.
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MR. JUSTICE COOPER
delivered the opinion of the court.
This action was commenced and tried in the justice’s court of Great Falls township. The plaintiff recovered judgment for the amount asked. On appeal to the district court a jury was impaneled and sworn and the case was tried anew. At the close of the introduction of the evidence for both sides, the court, upon motion, directed a verdict in defendant’s favor and entered judgment thereon. A motion for -a new trial was denied, and this appeal was taken from the order.
In two counts the plaintiff alleges that he sold and delivered to the defendant lumber of the value of $182. The first count charges that J. W. Swope was agent for the defendant, acted as his architect and manager in overseeing and managing the construction of a garage the defendant was building, and as such had power and authority to make contracts for the purchase of lumber, merchandise and material intended to be used in its construction; that the sale and delivery of the lumber was agreed upon between the plaintiff and Swope as defendant’s agent and manager. In the second count it is alleged that the lumber sold to the defendant was reasonably worth $182. The answer was a general denial.
Counsel for plaintiff simplifies the issues by admitting that the plaintiff was unable to prove that the defendant gave Swope authority to act for him, insisting, however, that the evidence shows ratification by a subsequent promise to pay for the lumber, if he found that it had actually been delivered. He insists that the appeal is to be considered “from the standpoint of whether the court should have nonsuited the plaintiff,” and that in the determination of the case “every fact testified to by the plaintiff must be taken as true and conclusively establishing his contentions.” This limits the inquiry to the legal sufficiency of the evidence to show defendant’s acceptance of the lumber.
The proof necessary to establish ratification of unauthorized acts of a supposed agent is stated in section 7940, Revised Codes of 1921, thus: “A ratification can be made only in the manner that would have been necessary to confer an original authority for the act ratified, or where an oral authorization would suffice, by accepting or restraining [retaining ?] the benefit of the act, with notice thereof.”
This court, in Koerner v. Northern Pac. Ry. co., 56 Mont., on page 520, 186 Pac., on page 340, gave its latest interpretation of the above section as follows: “ ‘Ratification’ is defined to be the confirmation of a previous act done either by the party himself or by another. (23 Am. & Eng. Ency. of Law, 889; 33 Cyc. 1529.) And a confirmation necessarily supposes knowledge of the thing ratified. (Rev. Codes [1907], sec. 5425 [now section 7940] Weidenaar v. New York Life Ins. Co., 36 Mont. 592, 94 Pac. 1.) It follows that to constitute a ratification there must be an acceptance of the results of the act with an intent to ratify and with full knowledge of all the material circumstances. (Frazier v. Missouri Pac. Ry. Co., 97 Kan. 285, 154 Pac. 1022.)” The “material circumstances” of which the defendant must have had full knowledge in order to effect a ratification are: That Swope was assuming to act for him in the particular matter; and that the lumber was delivered.
To sustain his contention that the case should have been submitted to the jury, counsel quotes from the opinion of this court in Carlson v. Stone-Ordean-Wells Co., 40 Mont. 434, 107 Pac. 419, the following: “In 1 Clark & Skyles on the Law of Agency, section 137, it is said: ‘As a general rule, a principal’s acts will be liberally construed in favor of a ratification.’ It is an essential element of ratification that the principal shall have full knowledge of all the material facts, unless he intentionally and deliberately ratifies when he knows that he has not such knowledge.” In that case the defendant, by its own admission, had for more than three years accepted and retained the benefits of a contract made by an unauthorized agent with full knowledge of all the material facts. Upon that ground the judgment was sustained.
Chief Justice Bigelow of the supreme court of Massachusetts, in Combs v. Scott, 12 Allen, on page 497, lays down the rule to be applied in the present ease, in this language: “Ratification of a past * * * transaction, into which an agent has entered without authority, is a purely voluntary act on the part of a principal. No legal obligation rests upon him to sanction or adopt it. No duty requires him to make inquiries concerning it. Where there is no legal obligation or duty to do an act, there can be no negligence in an omission to perform it. The true doctrine is well stated by a learned test-writer: ‘If I make a contract in the name of a person who has not given me an authority, he will be under no obligation to ratify it, nor will he be “bound to the performance of it.’ (1 Livermore on Agency, 44; see, also, Paley on Agency, 171, note o.) Whoever; therefore, seeks to procure and rely on a ratification, is bound to show that it was made under such circumstances as in law to be binding on the principal, especially to see to it that all material facts were made known to him. The burden of making inquiries .and of ascertaining the truth is not cast on him who is under no legal obligation to assume a responsibility, but rests on the party who is endeavoring to obtain a benefit or advantage for himself. This is not only just, but it is practicable. The needful information or knowledge is always within the reach of him who is either party or privy to a transaction which he seeks to have ratified, rather than of him who did not authorize it, and to the details of which he may be a stranger.”
The statement attributed to the defendant in the plaintiff’s testimony was this: “If I find that you have actually delivered that lumber, then I will pay for it.” By no sort of perversion can this language be construed as an acceptance of the lumber, knowing the circumstances attending its delivery. In an effort to convince MeLeish that the lumber had been delivered, the defendant accompanied the plaintiff to a pool-hall in the city of Great Falls where Pew called upon a man sitting there, and said to him in the presence of the defendant, “You hauled some lumber down to McLeish’s garage, did you not?” To this the man made no reply. The defendant then propounded this question to the man, “Have you’any of the receipts of the lumber you hauled down there?” to which he replied, “No.” Mr. Pew then said to Mm, “You hauled all that lumber that was in that ear, except the laths, didn’t you?” To this the man replied, “No.” This testimony was not denied and tends more strongly to negative ratification than to prove it. Over defendant’s objection, Plaintiff’s Exhibit “A” was admitted. It is a list of pieces of lumber, there being at the bottom of the sheet this legend.: “0. K. Robertson.” The Robertson whose name appears thereon was employed by defendant as a foreman of carpenters on the garage, but without authority to bargain for or accept materials, as was shown by the evidence. His duty was merely to see that the articles recited in the bill were actually delivered. The list signed by Robertson consisted of no more than a statement of a number of pieces of lumber of different dimensions with the. number of board feet, without anything to indicate who furnished it or to whom it was furnished. Having abandoned the claim that Swope had authority to contract for the defendant, this evidence in no degree adds to the proof of ratification already adducéd.
From the entire record it is apparent that the plaintiff was unable to show by competent evidence that the lumber was accepted by the defendant with the full knowledge contemplated by the statute, and that it falls within the class of evidence stamped by this court in Escallier v. Great Northern Ry. Co., 46 Mont. 238, Ann. Cas. 1914B, 468, 127 Pac. 458, as too unsubstantial to afford sufficient legal ground for its submission to the jury. Neither Swope nor Robertson had authority. to bind the defendant to pay for the lumber, for that would be to say that one man can bind another without his consent. Even if it could be said that both were at fault, the plaintiff, having failed to exercise the prudence demanded of a man in a like situation, was more blamable, and the law affords him no relief.
The order is affirmed.
'Affirmed.
Mr. Chief Justice Brantly and Associate Justices Holloway and Galen concur.
Mr. Justice Reynolds, being absent, takes no part in the foregoing decision.
|
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] |
MR. JUSTICE COOPER
delivered the opinion of the court.
The plaintiff brought this action against defendant to recover damages for the wrongful dissolution of their partnership, before the expiration of the period for which it was formed. By the contract defendant agreed to “leave $25,000 in real estate and cash as the property worth of the banking business formerly known as the J. E. Marcum Bank at Cascade, Montana.” It was agreed that the business should be conducted under the firm name of “J. E. Marcum & Co., Bankers”; that the defendant should act as president without compensation, the plaintiff as “cashier of the said firm”; and that he should in addition thereto “attend to other business for the said J. E. Marcum, at Cascade, Montana,” for which he was to receive a salary of $80 per month. The profits were to be divided equally between them after the running expenses of the firm, and eight per cent of the $25,000 furnished by the defendant, were paid. The complaint sets forth the terms of the copartnership agreement, alleges its full and faithful performance by the plaintiff, the wrongful acts of defendant entitling 'him to a dissolution, and prays an award of damages commensurate to the wrong he claims to have suffered thereby.
Beside denials putting in issue all the averments of the complaint, the answer contains affirmative matter as follows: For some years prior to January 24, 1913, the defendant had himself conducted a successful banking business in the town of Cascade; that the plaintiff understood that their agreement contemplated a termination of its obligations at the end of each year, and a balancing and settlement of all accounts between them, on the last day of the year 1913, and at the end of each succeeding year; that at the end of each year, including 1916, adjustment and division were had accordingly,- that by mutual understanding the terms of the agreement were modified to meet the demands of the growing business, leaving unaffected the right of either party, at will, to renew or terminate the copartnership. It further avers that during the month of September, 1917, the plaintiff informed defendant that he had been drafted into the United States army, and that he would be obliged to withdraw from the firm, and directed the defendant to procure some suitable person to take his place; that defendants, with plaintiff’s knowledge, consent and approval, employed another man in his stead, the defendant then and there agreeing to continue to pay him the salary of $80 per month to the end of the year and to give him half the profits of the firm business up to that time. It is also alleged that on December 11, 1917, the plaintiff, having secured exemption from army service, refused to carry out his agreement to dissolve the partnership. In another and distinct defense, it is alleged that during the year 1914 the plaintiff took $4,000 of defendant’s individual money from deposit in the bank, and on his own account invested it in the capital stock of the Mattson Lumber Company, then doing business' at Cascade; that after attaching to the note as collateral security a certificate of stock of that company, he afterward withdrew it, leaving the unpaid balance of $1,500 wholly unsecured; that instead of devoting his entire time and attention to the affairs of the copartnership, the business of the lumber company, and other matters unconnected with the bank business, consumed so much of plaintiff’s time as to seriously interfere with his management of the bank, and provoked a demand by the state bank examiner that the partnership be dissolved. It further charges that “at some date unknown to the defendant, but prior to December 3, 1917,” the plaintiff changed the combination of the vault in the bank and refused to permit the defendant to have access to his own private papers and property, or to those of the bank; that on the date last named, it being a business day, at the hour of 9 o’clock in the morning, upon the appearance at the door of one C. N. Reed, accompanied by the defendant, the plaintiff locked the vault, pulled down the shade on the door, and announced that the bank was closed; that defendant called up by telephone the state bank examiner, advised him of the plaintiff’s actions, and requested him to come to Cascade and assist him in reopening the bank; that upon his arrival he ordered and compelled the plaintiff to open the vault and to give the defendant access to his own papers and those of the bank as well; that at some time prior to December 11, 1917, the date the defendant does not know, the plaintiff secretly, wrongfully, in bad faith, and against the defendant’s will, removed from the vault all the paper assets, notes, bills receivable and securities, the property of the defendant and constituting a valuable resource of the bank of the value of approximately $140,000, took them to Great Falls, and kept them in a bank in that city until the twenty-fourth day of December, the bank meanwhile being without assets or 'securities with which to transact its business. In addition to these charges it is alleged that the plaintiff conspired with others to secure a charter for the purpose of establishing another bank in the town of Cascade, and to use that as a threst to coerce, intimidate and compel defendant either to buy the plaintiff out at an unreasonably high price or to force a sale of his interest therein to him at a grossly unfair and inadequate consideration.
To the answer plaintiff filed a reply, putting in issue all the chai’ges of misconduct made against him. A trial was had before the court and a jury, which resulted in a verdict for plaintiff. From the judgment entered thereon, and an order denying a new trial, defendant appeals.
Bach partner charges the other with a breach of the partner- ship agreement. Unless by a preponderance of the evidence misconduct on the part of the defendant in forcing a dissolution is established, the judgment should be reversed. Having regard to the nature of the relationship created by the agreement between them, tbe verdict must respond to tbe allegations and the proof. Does the proof show misconduct and bad faith as the complaint charges! If the dissolution was brought about by the wrongful acts of one or the other of the parties, the one at fault must answer for the consequences. (Rev. Codes, sec. 5495.)
The law touching the relative rights, duties and obligations of partners in their relations to each other is stated by an eminent author thus: “As the contract itself has its solid foundation in the mutual respect, confidence and belief in the entire integrity of each partner, and his sincere devotion to the business and true interests of the partnership, good faith, reasonable skill and diligence, and the exercise of sound judgment and discretion are naturally, if not necessarily, implied from the very nature of the relation of partnership. * * * Of course, all losses, injuries and damages sustained by the partnership from the positive breach of the stipulations contained in the articles of copartnership, on the part of any partner, are to be borne exclusively by that partner, and he must respond over to them therefor.” (Story on Partnership, sec. 169.)
The above declaration is but another way of stating the rule found in the chapter of our Code entitled “Mutual Obligations of Partners.” (Rev. Codes, secs. 5474-5477.) Partners are there declared to be trustees for each other, their relations confidential and their obligations as defined in Chapter 1 of the title on Trusts. By the terms of section 5475, in all matters connected with the relation, each is bound to act in the highest good faith to the other, and the slightest misrepresentation, concealment, threat or adverse pressure of any kind is prohibited. Each member is obliged to account to the other for everything he receives on account thereof. (Sec. 5476.) The plaintiff in the present case, undertaking as he did to give his personal attention to the business of the firm, could not rightfully, without the consent of his copartner, engage in any business which would prevent him from giving to the business all the attention which would be advantageous to it. (Sec. 5486.) Under the mandate of subdivision 2 of section 5496, if either partner fails to perform his duties under the agreement of -partnership, or is guilty of misconduct, the. unoffending partner is entitled to a judgment of dissolution.
By the plaintiff’s evidence the following facts are established: In the early-'days of October, 1917, the plaintiff changed the combination of the safe in the bank, that being the usual depository for the paper assets of the firm, and those of the defendant intrusted to his care under the partnership arrangement, refusing to permit the defendant to see them until he was forced by the state bank examiner to open the safe and to give him access thereto. On December 11 he took all the assets of the firm, including those of the defendant, to the city of Great Falls, secreted and held them there until December 24, when, upon the advice of his counsel, he delivered them to the defendant. Among the papers thus taken by him was a note in the sum of $1,500, the property of the bank, known as the Eller note. This, according to his testimony, was in his possession at the time of the trial, and, so far as we are able to determine from the record, it was never returned to the bank or to the defendant.
At the time of the trial the plaintiff was a young man twenty-five years of age; the defendant was sixty-seven. In the month of November, 1910, the plaintiff was employed in the general store of the defendant in the town of Cascade as an office man or clerk. From that work he was advanced by the defendant to the position of cashier of the bank, which was the predecessor of the one in question. 'Concerning the incidents leading up to the misunderstandings between the parties, the plaintiff testified as follows: “Q. What time was it that Mr. Marcum was not in possession of the combination of that safe? A. I think it was at a time after I was advised to take measures to protect myself. Q. Well, when? I don’t care who advised you. A. I don’t remember when it was. It was some time after October 7. Q. After October 7? A. Yes, sir. Q. And before when? A. I don’t remember; before that difficulty came 'up with the state examiner. Q. Before December 3? A. Yes; before December 3. Q. How many days before that? A. I don’t remember’. Q. Can’t you recall an important matter of that hind? A. I didn’t consider it important. Q. You didn’t consider it an important matter, in partnership with Mr. Marcum, to change the combination on the safe? A. That was simply one of the details I did, in an effort to protect myself against him. Q. You didn’t regard it as an important matter, when you say your counsel had advised you to do it? A. It was one of the details. Q. Oh, just a mere detail? A. Yes. * * * Q. This change was without his consent, was it ? A. It was; yes. Q. What did he want in the vault that Sunday morning? A. He wanted his private papers. * * * Q. You had them placed where he couldn’t .find them, didn’t you? A. I had them placed in a place where they were not ordinarily kept. * * Q. You didn’t show him the package that day at all, did you? A. I don’t think I did; no. Q. What is your recollection of the aggregate face value of those papers? A. Those papers probably would have amounted to between $125,000 and $150,000 at that time.” He testified further on cross-examination as follows: “I don’t remember, but I think the paper assets of the bank, its notes and securities, were in my pocket when I went out of the bank. Those securities amounted to something in the neighborhood of $140,000. They must have been in my pocket. They were somewhere about my person at the time. * * * I had the notes with me. In coming into the front part of the room, I put the notes into my pocket. * * * I didn’t return it [them] to the bank immediately upon discovering it was upon my person, because—I did not return it to the bank, from which I took it, because the bank had been taken charge of by people who had no interest in it. I regarded that fact a sufficient reason for carrying off $140,000 worth of securities. * * * I brought those securities to Great Falls on the afternoon train. That represented my conception of my duties as cashier of the bank; I don’t re member that among those securities there were some. $10,000 of certificates of deposit. '* * * I retained those securities in my possession from. December 11 to December 24. During that period I did not notify the creditors to make payment on obligations coming due during that period. I made no effort to collect any of those assets. 'There were two certificates of deposit issued on the Conrad Bank for $10,000. They were carried as resources. * * * The $1,500 note known as the Eller note was not restored; it was not taken away with the other papers. I believe I have it in my possession. I do not know that I have it just as well as I am sitting here in this chair. I think it is in my possession. * * # The note is part of the assets of the bank. I still owe Mr. Marcum some $1,500. * * * I did not notify Mr. Marcum where the bank assets were. I kept quiet about that.”
The effect of this evidence cannot be misunderstood, and should not have been overlooked so completely in the court below. The acts of the plaintiff clearly involved all the elements of concealment, adverse pressure, bad faith and a willful violation of the' letter as well as the spirit of the trust imposed by section 5475, supra, upon any conception of the relationship between the parties. ■ The flimsy and unfounded claim made in the complaint that the defendant “wished to dispense with his services, and to dismiss him from the banking business,” in order that he might substitute his son-in-law, Mr. Reed, as a partner in his stead, is not only unsupported by the testimony, but entirely disproved by the admissions above set forth.
From the foregoing it is obvious that the conclusion we have reached is not based upon inferences we have drawn from isolated statements, or from testimony of doubtful meaning or of double import. From all the testimony it is apparent that responsibility for the loss of mutual confidence and respect was due to plaintiff’s own willful misconduct, and was enough to justify the defendant in declaring their relations at an end. As reflecting the attitude of the defendant toward plaintiff prior to the overt acts which finally culminated in the occurrences of December 11, the following testimony given by the plaintiff is illuminating: “Mr. Marcum often said he wanted me to do well, and, if I didn’t do well, he would try to help me out. He loaned me money occasionally, and I usually made money out of the money he loaned me. Mr. Marcum in 1916 made an investment in grain, saying that, if he made anything out of it, he would give me something. I believe he sent me down a check for $80, which he said was my part of the profits. He gave me that gratuitously. Up until the time our trouble started, he was a mighty fine partner. I don’t know as I can say he treated me very much as a son, but he treated me in every way that I could wish to be treated in business. He signed an affidavit to enable me to obtain exemption from military service. I don’t know that he did that much for his son-in-law, Reed. * * * During the years I was there, Mr. Marcum made me some loans. I presume you might call them substantial. He loaned me at one time over $3,000. He never at any time asked for any security on any of the loans that he made to me. He had been very good to me all those years.”
This testimony shows a benevolent attitude, rarely exhibited by one person to.another having no ties of blood or kinship. Upon the record at the close of the evidence, the court should have given the peremptory instruction requested by defendant to find a verdict in his favor, and that, too, upon the evidence of the plaintiff alone. To us it is apparent that, not only the jury, but the trial court also laid too much stress upon the incidents occurring in the bank of December 11, and overlooked entirely the- willful and persistent breaches of faith, beginning in the early days of October and continuing down to the occurrences of December 3 and December 11, which culminated in the asportation of all the assets of the bank and those of the defendant as well.
Pothier, in his ancient treatise on Partnership, says: “Every partnership is dissolved by the extinction of the business for which it was formed.” (Griswold v. Waddington, 16 Johns. (N. Y.) 438.)
The loss of its entire capital left the bank without means with which to function, and destroyed the business the copartnership created. If, therefore, the plaintiff’s actions in seizing and detaining the assets were not destructive of the business, as contemplated by Pothier, they afford an analogy and a reason equally strong for considering the relations entirely severed. (See Story on Partnership, sec. 288; 1 Rowley on Partnership, secs. 586-588; 30 Cyc. 656, 658, and cases in footnotes; Kennedy v. Kennedy, 3 Dana (Ky.), 239; Sieghortner v. Weissenborn, 20 N. J. Eq. 172.)
The complaint was drawn as in an action at law, and while the Code provides but one form of action, which embraces all that was formerly comprehended in actions at law and suits in equity, the plaintiff, in order to prevail, was bound to establish the defendant’s misconduct by a preponderance of the evidence. This he has' not only signally failed to do, but, on the contrary, his own evidence shows that he has no cause of action, and that the defendant was amply justified in dissolving the partnership.
For these reasons, the judgment and order appealed from are reversed, with directions to dismiss the action.
Reversed.
Mr. Chtee Justice Brantly and Associate Justices Reynolds, Holloway and Calen concur.
(Decided January 31, 1922.)
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] |
MR. COMMISSIONER SPENCER
prepared the opinion for the court.
For a first cause of action the plaintiff herein claims damages in the sum of $3,000, pursuant to the terms of a contract entered into between plaintiff and decedent on March 14, 1912, whereby the decedent agreed, among other things, to pay to the plaintiff one-half of the difference between the agreed selling price of decedent’s land, or $12,000, and the amount of a mortgage against the land for $6,000 if the plaintiff should effectuate sale of decedent’s land according to the terms of their contract. Plaintiff alleges that in accordance with the terms of said contract he procured a purchaser who was ready, able and willing to buy at the stipulated price per acre, but that the decedent, for the purpose of preventing the sale, knowingly and intentionally absented and secreted himself from his ranch, and by reason thereof the prospective purchaser was unable to consummate the deal.
A second cause of action is based upon a quantum meruit alleging $3,000 as a reasonable value of the services of plain tiff in behalf of decedent between March 10 and March 14, 1915, in procuring a purchaser for the lands of the decedent.
The answer puts in issue all of the material allegations of the complaint except the contract between plaintiff and decedent. Trial was had to a jury; verdict was in favor of defendant; motion for a new trial was denied; and this appeal is from the order denying the motion.
Appellant assigns nineteen specifications of error. In his brief, however, those numbered 11 to 18, inclusive, are not argued, and are therefore deemed abandoned and only the first ten require consideration. Of these, the first four predicate error in permitting counsel for decedent to interrogate plaintiff and decedent with regard tó certain transactions leading up to the' execution of the contract of sale, but it is sufficient to say that in each instance the answer of the witness was evasive, immaterial and of no importance, or was given without objection, save and except the response of the decedent to the following interrogatory: “How did you happen to put' your name to this contracts” which was stricken from the record by the court, and presumptively disregarded by the jury. We think these assignments are without merit.
Specifications numbered 5 to 9, inclusive, predicate error on the refusal of the court to instruct the jury to find for the plaintiff, those numbered 6, 7, 8 and 9 each requiring finding in favor of plaintiff for a different amount. Each of these proposed instructions, if given, would have had the effect of a directed verdict for the plaintiff. Both the pleadings and the proof put in issue the right of the plaintiff to recover in any event, which question, being for the jury; precluded the court from directing a verdict, and hence the ruling of the court was correct in refusing to give the' offered instructions.
Specification No. 10 assigns error in the refusal of the court to give the following instruction: “Under the terms of the eon- tract between the parties, it was incumbent upon Lingquist to find a purchaser for the ranch who was able, ready, and willing to buy it in accordance with the terms of the contract between Lingquist and O’Neill, and Lingquist had up to and including March 14, 1915, to find such purchaser. In addition to this it was incumbent upon Lingquist to notify O’Neill that he had found such purchaser, and give him an opportunity to carry out his part of the contract; but this notice need not necessarily be a personal notice. If you find that Lingquist procured such a purchaser as I have described, within the time as I have given it to you, that he went in good faith to O’Neill’s residence and could not find him, and afterwards, and at any time on or before March 14, 1915, deposited in the postoffice at Helena, directed to O’Neill at East Helena, with postage duly paid, a written notice that he had found a purchaser and a written notice from Hanson that he was ready and willing to buy the ranch on the terms mentioned in the contract between Lingquist and O’Neill, then Lingquist did all he was called upon to do, and is entitled to a verdict at your hands:”
This proposed instruction meets with our approval and we think is a fair statement of what was required of plaintiff to justify a verdict at the hands of the jury, but we think the court covered substantially all of the matters therein by other instructions given and that no error can be predicated upon its refusal.
No particular language is required of the court in instruet ing the jury upon the law of the case, and no greater duty is imposed upon the comí in that regard than that the jury be instructed as fully and fairly as the pleadings and evidence demand. (Largey v. Mantle, 26 Mont. 264, 67 Pac. 114.) "We think that requirement was fulfilled in this case, and that no prejudice could be done to the decedent by the refusal of the court to instruct more in detail upon that which he had instructed fully and fairly but in more general terms.
■For tbe reasons herein given, we recommend that tbe order of tbe court below in refusing to grant a new trial be affirmed.
Mr. Commissioner Poorman, being disqualified, takes no part in tbe foregoing opinion.
Per Curiam: For the reasons given in tbe foregoing opinion, it is ordered that tbe order of tbe court appealed from be affirmed.
'Affirmed.
|
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] |
PER CURIAM.
Pursuant to motion of respondent, and for good cause shown, the appeal in the above-entitled cause is dismissed.
|
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
This action was instituted to recover damages for personal injuries and the destruction of property occasioned by a collision between plaintiff’s motorcycle and defendant’s automobile. Plaintiff prevailed in the lower court, and defendant appealed from the judgment and from an order denying a new trial.
Main Street, running north and south in the city of Butte, crosses Granite Street at right angles in the business district of the city. Plaintiff was riding upon his motorcycle going north on the east side of Main Street, and crossing Granite Street, when Arthur Leland, driving one of defendant’s taxicabs south on the west side of Main Street, turned east on to Granite Street, where the two vehicles collided, causing the damage of which complaint is made. At the time there was in force an ordinance regulating vehicle -traffic on the streets, and plaintiff charges that Leland violated the ordinance (1) in exceeding the speed limit, (2) in failing to keep to the right when he turned from Main Street on to Granite Street, and (3) in failing to have the taxicab under control while on the intersection of the two streets. There is substantial evidence tending to support each of these charges, and, in the light of the jury’s verdict, it must be accepted as established for all purposes of these appeals that defendant’s agent ¡vas guilty of negligence.
The ordinance fixed eight miles per hour as the maximum speed at which either plaintiff or Leland was permitted to travel upon the intersection of the streets, and a violation of the ordinance constituted legal negligence. (Neary v. Northern Pac. Ry. Co., 41 Mont. 480, 110 Pac. 226.)
Plaintiff testified that he was upon the intersection 'of the two streets when he first saw the taxicab, and, concerning the rate at which he himself was traveling at the time, said: “I was going north; I had just entered into Granite Street, probably fifteen feet. I was within six feet of the east side of Main Street. My intended destination was Mathews, in "Walkerville. I was going up Main Street at my usual rate of speed at that time, as far as the city was concerned. My usual rate of speed traveling up Main Street at that time was anywhere between ten and twelve miles an hour; maybe was going ten miles. * * * I will say-I was going about eight or nine miles, not more than that. I will say I was going eight miles an hour. I couldn’t say exactly what I was going, but no faster than nine if I was going nine, but I will say I was traveling at no more than eight. * * * I was not exceeding nine miles an hour.” He testified further that he was about eighty feet from the taxicab when he first realized that he was in a position of danger, and that he did not do anything except to continue at the same speed at which he was traveling, though he tried to increase his speed, but was unable to do so.
In each of several instructions the court submitted a par- ticular provision of the ordinance—the provision limiting the speed at street intersections by instruction 4—and in each instance directed a verdict for plaintiff if the jury found that Leland had violated the particular provision, and as a proximate result plaintiff was injured. Objection was made that each of these instructions ignored the question of plaintiff’s contributory negligence, but the objection was overruled, and these rulings furnish the basis for the contention that the cause' was submitted to the jury upon an erroneous theory.
The effect of the ruling was a refusal to submit the question of contributory negligence. Apparently the court proceeded upon the theory that, since contributory negligence was not pleaded as a defense, it could not be made available to the defendant, and that is the general rule in this jurisdiction; but a corollary to the rule, rather than an exception to it, is equally well established, viz.: “Whenever the plaintiff’s own ease presents evidence which, if unexplained, would make out prima facie contributory negligence on his part, there must be further evidence exculpating him, or he cannot recover. ’ ’ (Harrington v. Butte, A. & Pac. Ry. Co., 37 Mont. 169, 16 L. R. A. (n. s.) 395, 95 Pac. 8.) In other words, whenever from plaintiff’s own case contributory negligence is fairly inferable, defendant may avail himself of the defense even though it is not pleaded.
The violation of the speed ordinance by Leland. constituted negligence for which the defendant, his employer, might be charged, but equally so the violation of the same ordinance by plaintiff constituted negligence, and, if it may be said that Leland’s violation was a proximate cause of the collision, so likewise might it be said that plaintiff’s violation was a contributing proximate cause. (Melville v. Butte-Balaklava Copper Co., 47 Mont. 1, 130 Pac. 441.)
Negligence cases in which, liability may be determined as a matter of law are exceptional. As a general rule, the issue of negligence or contributory negligence must be decided by the jury under appropriate instructions.
By applying these rules to the facts narrated, it becomes apparent at once that the trial court erred in adopting the theory upon which the cause was submitted. If the jury might have concluded from the testimony of the plaintiff that he was exceeding the speed limit, they would have been authorized to deny him any relief, for our statute declares: “Between those who are * * * equally in the wrong, the law does not interpose.” (Sec. 8753, Rev. Codes 1921.)
Plaintiff’s testimony quoted above is equivocal in the extreme, but the.jury were not required to adopt the interpretation which would absolve him from the imputation of negligence. They might have accepted as true his statement that he was going anywhere between ten and twelve miles an hour. The least that can be said upon the subject is, it was not the province of the court to decide which of the conflicting statements is true.
It is beside the question' that an appropriate instruction on contributory negligence was not tendered. If such an instruction had been requested and given, it would have been in direct conflict with each of the instructions referred to above. Those instructions are not merely incomplete. .Each of them is essentially erroneous in view of the plaintiff’s own testimony. The issue of contributory negligence should have been submitted to the jury.
We deem it unnecessary to consider the other assignments.
The judgment and order are reversed and the cause is remanded for a new trial.
Reversed cmd remanded.
Mr. Chief Justice Brantly and Associate Justices Cooper and Galen concur.
Mr. Justice Reynolds, being absent, takes no part in the foregoing decision.
|
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
Some time prior to 1908, the Bitter Root District Irrigation Company was organized to irrigate lands in the Bitter Root Valley. It made some appropriations of water and partially constructed a distributing system. In 1908 it failed in business and its properties were taken over by the Bitter Root Valley Irrigation Company, which thereafter purchased 30,000 acres of land in the vicinity, perfected the appropriation of large quantities of water, constructed a reservoir at Lake Como, extended a main canal for some sixty-seven miles and built over- 250 miles of lateral ditches. It sold more than .17,000 acres of its lands with perpetual water rights and contracted to furnish each purchaser water for irrigation at a fixed annual maintenance charge of $1.25 per acre. Later this company became bankrupt and its properties were acquired by the Ravalli Water Company, which, undertook to carry out the contracts but, finding the revenues derived therefrom insufficient to cover operating expenses, applied to the Public Service Commission of this state to take jurisdiction and fix annual charges for the services to be performed, irrespective of the contract rate. The Public Service Commission having indicated its purpose to assume jurisdiction and determine the question of reasonable rates, this proceeding was instituted to secure a writ of prohibition arresting the proceedings before the commission. Issues were joined and after a hearing, a peremptory writ was issued and defendants appealed from the judgment and from an order denying a new trial.
One question is determinative of these appeals: Is the Ravalli Water Company a public utility within the meaning of Chapter 52, Laws of 19131 If it is, its business is subject to supervision and regulation by the Public Service Commission. If it is not, the commission has no jurisdiction over it or its operations. The commission is a mere administrative agency created to carry into effect the legislative will. It has only limited powers, to be ascertained by reference, to the statute creating it, and any reasonable doubt as to the grant of a particular power will be resolved against the existence of the power. (Collier on Public Service Companies, 404, 405.)
By section 1, Chapter 52 above, a Public Service Commission was created “to supervise and regulate the operations of the public utilities hereinafter named,” etc. By section 2 the board of railroad commissioners was constituted, ex officio, the Public Service Commission. Section 3 provides: “The term ‘public utility,’ within the meaning of this Act shall embrace every corporation, both public and private, company, individual, association of individuals, their lessees, trustees, or receivers appointed by any court whatsoever, that now or hereafter may own, operate or control any plant or equipment, or any part of a plant or equipment within the state for the production, delivery or furnishing for or to other persons, firms, associations, or corporations, private or municipal, heat, street railway service, light, power in. any form .or by any agency, water for business, manufacturing, household use, or sewerage service, whether within the limit of municipalities, towns and villages, or elsewhere; telegraph or telephone service, and the Public Service Commission is hereby invested with full power of supervision, regulation and control, of such utilities, subject to the provisions of this Act and to the exclusion of the jurisdiction, regulation and control of such utilities by any municipality, town or village.”
It is idle to cite authorities defining the terms “public utilities,” as those terms are generally understood in common parlance. For the purpose of indicating the extent to which the state should then go in exercising its regulatory powers over public utilities it was competent for the Montana legislature to adopt such a restricted definition of those terms as it saw fit, and it saw fit to adopt the definition contained in section 3 above and to limit the jurisdiction of the Public Service Commission to the specific subjects therein enumerated. There is not any mention in section 3 of a corporation, company, association or individual engaged in furnishing water for irrigation purposes, and the only contention made, or that could be made, is that the expression “water for business” comprehends water for irrigation. In view of the fact that irrigation has been one of the most prominent subjects of legislation and general consideration by the people in Montana from its organization as a territory in 1864 to the present time, it would impeach the intelligence of every member of the legislative assembly of 1913 to say that in enacting Chapter 52 above, the members could not command language to express the idea of irrigation but were driven to the sorry expedient of using the phrase “water for business” as the best expression available to represent the idea. But resort cannot be had to such a subterfuge. It may be granted that the term “business” is sufficiently comprehensive to include almost any human endeavor, but that it was not employed in that general sense is apparent. It is an elementary rule of statutory construction that every word, phrase, clause and sentence in an Act must be given meaning if it is possible to do so. (State ex rel. Bitter Root Valley Irr. Co. v. District Court, 51 Mont. 305, 152 Pac. 745.) If the word “business” was intended to have attached to it its broad significance, then the very next word in section 3, “manufacturing,” is without any meaning whatever, for no one would contend that business does not include manufacturing. It is perfectly manifest from the use of these words and from the last sentence in the section that the legislature had reference to corporations, associations and individuals engaged in furnishing water to municipalities for sewerage purposes and to business houses, manufacturing establishments, and to the citizens for household use, and that irrigation projects were never in contemplation. But if any doubt could arise as to whether irrigation projects were intended to be brought under the jurisdiction of the Public Service. Commission by the provisions of Chapter 52, that doubt is dispelled by the legislature itself. By an Act of the extraordinary session of the sixteenth legislative assembly (Laws Extra. Sess. 1919, Chap. 13), the Montana Irrigation Commission was created with authority to supervise the sale of water and water rights and contracts to furnish water for irrigation purposes. The authority conferred is limited and the powers to be exercised are particularly enumerated. It is inconceivable that the legislature intended to confer general jurisdiction over irrigation projects upon the Public Service Commission by Chapter 52 above, and then created a separate commission with limited jurisdiction over the same subject by the Act of 1919. Again, the Act of 1919 contains a clause repealing all Acts and parts of Acts in conflict with it. If jurisdiction over irrigation projects was intended to be conferred by Chapter 52, that Act was repealed by the later statute to the extent of any repugnancy between them, and that they are essentially repugnant in their provisions is beyond controversy, if Chapter 52 was. intended to confer authority upon the Public Service Commission to regulate the sale and distribution of water for irrigation purposes. It cannot be possible that the legislature intended that two boards should have conflicting jurisdictions over the same subject at the same time. But the Act of 1919 does not repeal any part of Chapter 52 above, for the reason that the two Acts deal with unrelated subjects, Chapter 52 with the named public utilities and the Act of 1919 with irrigation projects exclusively. Since the Ravalli Water Company is not a public utility within the meaning of Chapter 52, the Public Service Commission has no jurisdiction over it or its operations.
The judgment and order are affirmed.
1Affirmed.
Associate Justices Cooper and Reynolds concur.
Mr. Chiep Justice Brantly and Mr. Justice Galen:
We do not agree with the construction placed on the words “water for business use” as used in section 3 of Chapter 52, Laws of 1913, nor with the conclusions reached by the majority. In our opinion the language employed is broad enough to include water provided for irrigation purposes, and such was the clear legislative intent. The plain words of the statute include as a public utility, subject to the supervision and control of the Public Service Commission, every corporation, both public and private, owning or controlling any plant or equipment within the state for the production, delivery or furnishing of “water for business, manufacturing, household use, or sewage service, whether within the limits of municipalities, towns and villages, or elsewhere.” Giving the language employed its natural significance, it is plain that the legislature intended to cover all uses of water by the selection of generic words; and as indicated in the majority opinion, if possible, we are required to give force and meaning to every word, phrase, sentence and section used in the Act, the presumption being that the legislature did not employ language without meaning. (State ex rel. Smith v. Duncan, 55 Mont. 376, 177 Pac. 248.) Generally, the word “business” means any occupation of man, and man’s principal pursuit is agriculture. Agriculture has moved ahead of mining in Montana, and as recent experience has clearly proven, irrigation is indispensable in connection therewith. Webster defines ‘ ‘ business ’ ’ as follows:! ‘ That which busies or engages time, attention or labor, as a principal serious concern or interest. Constant employment; regular occupation; any particular occupation or employment habitually engaged in, especially for livelihood or gain.” (New Int. Dict., p. 296; Territory v. Harris, 8 Mont. 140, 143, 19 Pac. 286; 1 Words and Phrases, 2d Series, 531.) If it were not intended to include irrigation under the term “business,” the legislature should so have stated. In interpreting the language of the Act, we must imply the usual meaning to the words employed, and in so doing, irrigation is necessarily included under the general term “business.”
It is unbelievable that the legislature would enact a public utility law, when such a law appeared a necessity for the protection of “business,” and exclude irrigation companies from the control of the commission chosen to administer the sovereign’s rate-making power; and in the absence of language, expressly indicating its exception, we think the Act should be held to include it. To us it appears wholly unwarranted to hold that “water for business use” gives the Public Service Commission the right to regulate rates for the use of water for sprinkling lawns and the irrigation of shrubbery, but does not confer like authority as to water used for the irrigation of farms. j
From the record it is clear that the Ravalli Water Com-, pany is a carrier of water for delivery to persons owning lands,' susceptible of irrigation, for the following uses: .Irrigation,j stock and domestic purposes, and that it is now engaged in such business. Its business is public in nature, not private, and there is more reason why its rates should be made the subject of regulation by the state than those of companies engaged exclusively in the sale and delivery of water “to municipalities for sewerage purposes, and to their business houses, manufacturing establishments and * * * citizens for household use.”
Moreover, section 7 of the Act clothes the commission with plenary authority to bring within its jurisdiction “any other business,” other than those mentioned in section 3, which may be considered a public utility. It is thereby provided: ‘ ‘ Every public utility engaged directly or indirectly in any other business than those mentioned in section 3 of this Act, shall if required by the commission, keep and render separately to the commission, in like manner and form, the accounts of all such other business, in which case all the provisions of this Act shall apply with like force to the books, accounts, papers and records of such other business.”
To hold that the term “business” does not include farming or agriculture, whereof in this state irrigation is a principal means, is to say that the legislature rejected the primary meaning of the word, for agriculture is the most general occupation or business; so that in our view the statute includes the regulation of the sale of water by the Ravalli Water Company, and other like irrigation companies, as a public utility. In construing this statute, in the case of State ex rel. City of Billings v. Billings Gas Co., 55 Mont. 102, 173 Pac. 799, this court speakirfg through Mr. Justice Holloway, well said: “A consideration of the statute leads to the conclusion that in this enactment the legislature intended to provide a comprehensive and uniform system of regulation and control of public utilities, by a specially created tribunal, through which the state itself exercises its sovereign power.” (See, also, Doney v. Northern Pac. Ry. Co., 60 Mont. 209, 199 Pac. 432.)
The words employed, the policy of the law, the evils to be remedied, are indicia properly to be availed of in determining the scope of the legislative enactment. (State ex rel. McGowan v. Sedgwick, 46 Mont. 187, 127 Pac. 94; Johnson v. Butte & Superior Copper Co., 41 Mont. 158, 48 L. R. A. (n. s.) 938, 108 Pac. 1067; State ex rel. Carter v. Kall, 53 Mont. 162, 5 A. L. R. 1309, 162 Pac. 385.) “General words should receive a general construction unless there is something in the statute to restrain them. If restraint must be put on general words, it is the duty of the court to put no further restriction on them than the nature of the provision and the subject matter to which it relates necessarily impose.” (2 Lewis’ Sutherland on Statutory Construction, 2d ed., par. 392, pp. 750, 751.) The Act should be liberally construed, and if any doubt exists with reference to the meaning of words used it should be resolved in' favor of the sovereignty of the state, and it is to be remembered that the use of all water for sale, rental, distribution or other beneficial purpose, is declared to be a public use under our Constitution. (Sec. 15 of Art. III.)
Rehearing denied February 14, 1922.
And we are not able to agree with the majority that the Act of the extraordinary session of the sixteenth legislative assembly (Session Laws Extraordinary Session of 1919, Chap, 13) indicates the exclusion of irrigation companies from the operation of Chapter 52, supra, for that statute is silent upon the subject of rates to be charged for water service, and relates exclusively to irrigation districts and projects; it does not cover companies actually engaged in selling water; it simply prescribes the condition under which they may become established, and is wholly silent with reference* to the rates to be charged. In our opinion, these statutes are in complete harmony.
As the plaintiff owns a plant and equipment and is engaged in the furnishing and delivering of water to persons "for business,” i. e., for the prosecution of agriculture by the irrigation of land, we think it is properly classed as a public utility, within the meaning of Chapter 52, supra.
|
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MR. COMMISSIONER AYERS
prepared the opinion for the court.
On December 5, .1916, the Chicago, Milwaukee & St. Paul Railway Company, in operating its main line of railroad from Chicago to Seattle, maintained a turntable at Harlowton, then Meagher, now Wheatland, county. Harlowton being the sta tion to which its trains coming from the Bast were changed from steam to electric power, it was necessary to turn the steam engines on said turntable for their return trips. The turntable was operated and propelled by compressed air, conveyed to it by am overhead iron pipe, and in cold weather the air would become frequently congested by frost. The plaintiff, administrator of the estate of Panteli Simeon Katsios, deceased, by his amended complaint of September 28, 1918, seeks to recover from the defendant company $25,000 for the death of Katsios, negligently caused by it. He alleges the foregoing facts, and that Katsios at the time of his death, December 5, 1916, and for a long time prior thereto, was an employee of the defendant, and was employed by it in interstate commerce, to make repairs and improvements on its railway lines and to assist in operating the said turntable, and in operating and running engines in and out of the roundhouse at Harlowton; that the employees were directed, and it became customary for them to thaw said pipe by applying fire thereto, which was done by means of an iron rod with a lighted torch of waste fastened to one end, and in order to reach the air-pipe they would run an engine under it, climb on top of the cab thereof, and hold the torch aloft to the air-pipe. Near the pipe and paralleling it ran an electric wire of high voltage, carrying current sufficient at all times to kill human beings. Then follows the allegation of negligence to the effect that the defendant directed and allowed its servants (no mention of deceased as one of them) to stand on an engine and use an iron rod for a torch handle in proximity to the high-voltage wire, both of which were effectual conductors of electricity, and that it negligently failed to insulate the iron engine, or to furnish a nonconduetive bar for the torch; that deceased, “while.using the said bar in the performance of his work under the defendant, and exercising ordinary^ care on his part and ignorantly standing on an iron conductor, suffered grievous bodily injury, by the escape of said electric current into his body, through said bar,” which caused his death. That this complaint would not withstand an attack by demurrer is apparent. In a case of this character the complaint must dis- close not only the negligence, but facts showing that the negligence was the proximate cause of the injury causing death. (Allen v. Bear Creek Coal Co., 43 Mont. 269, 115 Pac. 678; Glover v. Chicago M. & St. P. Ry. Co., 54 Mont. 446, 171 Pac. 278; Stones v. Chicago, M. & St. P. Ry. Co., 59 Mont. 342, 197 Pac. 252.) The complaint alleges the negligent furnishing of appliances, but it does not set out facts showing how the accident occurred, nor does it allege any facts concerning deceased’s whereabouts, what he was doing with said rod, what work he was engaged in, or on what iron conductor he was ignorantly standing when he received the injury. If we were to infer from plaintiff’s complaint,in addition to his allegation above quoted, that deceased was following the alleged custom of the employees and standing on an engine, holding aloft an iron rod with a torch on one end which he was applying to the air-pipe for the purpose of thawing it, we would be reading into the complaint just that much.
The complaint was not attacked by demurrer or otherwise or at all before the trial. The defendant answered and sought to raise the sufficiency of the complaint at the trial by objection to the introduction of testimony. This attack would have been good had it not been for the affirmative allegations of its answer to the effect that deceased climbed upon an engine and with a torch on the end of an iron rod was applying the same to the compressed-air pipe, which had become frozen, when he brought the rod in contact with the electric wire, and that by reason thereof the current was communicated to his body and caused his death. The electric wire, the air-pipe, the engine, and the iron rod are described by the affirmative allegations of the answer so that there is no room for doubt but that they are the same as mentioned in the complaint. The answer supplies exactly what the com plaint lacks, the facts showing causation, and that one pleading may provide necessary allegations omitted from the pleading of an adversary is the rule at common law (1 Chitty on Pleading, p. 703), and has been adopted and recognized by all states proceeding under the Code system (1 Sutherland on Code Pleading, Practice, and Forms, see. 361; Bliss on Code Pleading, 3d ed., sec. 437; Pomeroy on Code Remedies, sec. 579; 31 Cye. 714.) This has long and consistently been the rule in Montana. (Hershfield & Bro. v. Aiken, 3 Mont. 442; Murphy v. Phelps, 12 Mont. 531, 31 Pac. 64; Hamilton v. Great Falls St. Ry. Co., 17 Mont. 334, 42 Pac. 860, 43 Pac. 713; Lynch v. Bechtel, 19 Mont. 548, 48 Pac. 1112; Crowder v. McDonnell, 21 Mont. 367, 54 Pac. 43; Hefferlin v. Karlman, 29 Mont. 139, 74 Pac. 201; Harmon v. Fox, 31 Mont. 324, 78 Pac. 517; Mantle v. White, 47 Mont. 234, 132 Pac. 22; Stephens v. Conley, 48 Mont. 352, Ann. Cas. 1915D, 958, 138 Pac. 189.)
The plaintiff desiring to bring before this court the evidence introduced below, gave notice of settlement of the stenographer’s transcript before Honorable John A. Matthews,! judge who tried the ease, but who at the time was a justice of this court. Notwithstanding his retirement from the trial bench, Justice Matthews heard and settled the stenographer’s transcript. The defendant did not appear at the time, but saved its exception to his action in the settlement of the same, and urges here as error that he, not being a district judge where the action was pending, had no authority under the statutes to settle the transcript. No contention. is made that the transcript is not correct or that the consideration thereof by this court will prevent a fair hearing, consideration, and decision of the appeal on its merits. It is physically here and it is manifestly correct. True, it did not come here in the identical way provided by statute (Laws 1915, Chap. 149), but, being here, it must be considered unless removed by motion to dismiss the appeal for lack of a transcript, or to strike the alleged transcript from the record, or some kindred motion. Section 97é7, Eevised Codes of 1921, which was section 7116, Eevised Codes of 1907, provides: “All objections to the record and brief of appellant shall be deemed waived unless a motion to dismiss is made because thereof, except such as will prevent a fair hearing, consideration, and decision of the appeal on its merits.” No such motion or kindred motion was made, and no showing is attempted that the consideration of the transcript as settled will prevent a fair hearing, consideration, and decision of the appeal on its merits. On the contrary, the hearing proceeded in this court on the theory that the transcript was entirely correct. To take any other view than that of considering the transcript would be chasing a shadow at the expense of letting the substance escape.
On the'Merits.
At the conclusion of plaintiff’s case, defendant moved for a nonsuit, which motion was sustained, and judgment entered thereon. This appeal is from the judgment, and the only error specified is that “the court erred in sustaining the defendant’s motion for a nonsuit.” Thus a consideration of the entire testimony has been necessary.
Deceased was a hostler’s helper at the roundhouse, and had been so engaged at least a month and a half immediately before his death. Plaintiff never worked on the same shift with deceased, but did the same work on the opposite shift, lie and his partner used the same rod for thawing the air line by climbing on the cab of an engine. The air line was four or five feet from the electric wire. Eli Evanoff, the only eye-witness to the accident, testified that deceased, when killed, was standing on top of the cab; that he had an iron rod in his hand; that there was lighted waste on one end of it; that he handed the rod down and twice witness placed waste on it and handed it back, and then when in the act of handing it down again “he [meaning deceased] swung into the electric wire and it came into contact, and that is the end of it.” There was a strong wind, and the witness expressed an opinion that the wind blew the rod against the wire. However, the testimony of the witness Baxter, an engine dispatcher, is to the undisputed effect that the electric wire is higher than the air-pipe. The very nature of things— the electric wire higher than the air-pipe and four or five feet away, the iron rod about ten feet long, necessarily heavy —would destroy the witness’ theory that the wind blew the rod against the wire. To do so the wind must not only blow the rod sidewise, but must actually lift it into the air. Evan-off further testified that deceased brought the engine up to where it was standing when he was killed; that the rod was close to the turntable; that deceased secured it without direction from anyone; that the foreman did not instruct him about his work that morning; that deceased was talking to Baxter, the engine dispatcher; and that “they were both talking at 'the turntable and pointing to the frozen pipe; that is all I know.” Hence we must conclude from the record that deceased brought the engine to the place where it stood when he was killed, without instructions from anyone. He secured the iron rod and mounted the cab of the engine without instruction; and the record is silent as to whether these acts were in fact a part of his duties, and is also silent as» to what were his duties as a hostler’s helper, and, in the absence of any showing, we must also conclude that the plaintiff has not discharged his burden in this respect. The most that can be urged is that the appliances, the engine and the rod, were selected by deceased and used with defendant’s acquiescence, but, if any negligence could be predicated upon such acquiescence, it must be based upon failure to warn, which is not relied upon as a ground of negligence. ■
On the other hand, if we assume that the appliances, the engine and the rod, were furnished by the defendant, or that their use was acquiesced in by it, there is no evidence that they were unsuitable if used with ordinary care. True, the rod was a conductor of electricity, but the electric wire was four or five feet from the air line where the rod was being used, and above it, and certainly no more than ordinary care was necessary to keep the rod from coming in contact with the wire under those circumstances.
The master must exercise reasonable care to furnish rea sonably safe and suitable appliances under all the circumstances of the case. (Fritz v. Salt Lake etc. Light Co., 18 Utah, 493, 56 Pac. 90; Forquer v. Slater Brick Co., 37 Mont. 427, 97 Pac. 843; Wallace v. Chicago, M. & S. P. Ry. Co., 48 Mont. 427, 138 Pac. 499; Surman v. Cruse, 57 Mont. 253, 187 Pac. 890; Markarites v. Chicago, M. & St. P. Ry. Co., 59 Mont. 493, 197 Pac. 743.) There is a reciprocal duty upon the part of an employee, when the appliance is furnished him, to exercise reasonable and ordinary care in its use. (Stewart v. Pittsburg Copper Co., 42 Mont. 200, 111 Pac. 723.) This duty on the part of the servant must necessarily increase with the dangerous character of the work. Danger' is attendant upon any work near wires of the character involved in this case. But we -cannot impose upon the master the duty of furnishing an appliance which would make it impossible for the servant to become injured. Such a doctrine would extend the rule unreasonably and to the point of making the master an insurer of the safety of the servant. As a matter of fact, in this case it does not appear that any such appliance could have been furnished, while it does appear that there was no danger if the appliance furnished was kept away from the wire which was known by deceased to be heavily charged with electricity, for no complaint is made that the defendant was negligent in failing to warn him of its dangerous character.
The record fails to show that the deceased, when injured, was acting within the scope of his employment, that the appliances complained of were furnished him by defendant, or, even if presumed to have been furnished by the defendant or their use acquiesced in by it, it fails to show that they were unsuitable if properly used by him. This plaintiff was obliged to establish before recovery could be had, for he must prove that the defendant failed to perform its duty toward the deceased, as charged in the complaint, and, in consequence of such failure, that deceased received the injury which caused his death. (Pennsylvania Co. v. Whitcomb, 111 Ind. 212, 12 N. E. 380; 4 Thompson on Negligence, sec. 3866; "Wood on Master and Servant, secs. 345, 346; Boyd v. Blumenthal, 3 Penne. (Del.) 564, 52 Atl. 330; Markarites v. Chicago, M. & St. P. Ry. Co., 59 Mont. 493, 197 Pac. 743.) But from the record before us we are justified in saying further that the appliances, regardless of how they came to the hands of the deceased, were reasonably safe and suitable under all the facts and circumstances of the case, and that the injury causing death was due to the inattention and indifference of deceased to his own safety. When injury results from the negligent use by a servant of a reasonably safe and suitable appliance, there is no liability. (Cahill v. Hilton, 106 N. Y. 512, 13 N. E. 339; Masich v. American Smelting & Refining Co., 44 Mont. 36, 118 Pac. 764; Labatt on Master and Servant, sec. 1520.) To say otherwise would be requiring the master to take better care of the servant than he, the servant, takes of himself.
We recommend that the judgment be affirmed.
Per Curiam : For the reasons given in the foregoing opinion, the judgment is affirmed.
Affirmed.
|
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ME. JUSTICE GALEN
delivered the opinion of the court.
This is an appeal from a judgment of the district court of Lewis and Clark county entered in a mandamus proceeding instituted by the plaintiff to compel the city council of Helena to reinstate him as chief of the fire department of the city of Helena.
Upon the filing and presentation of plaintiff’s affidavit to the court, an alternative writ was issued, which the defendants moved to quash. This* motion was denied, the defendants refused to plead further, and, their default having been duly entered, evidence was introduced by the plaintiff in support of his application. Judgment was entered September 1, 1921, against the city of Helena in favor of the plaintiff for the sum of $2,450 and costs, with interest thereon, together with $500 allowed for attorney’s fees, and awarding to the plaintiff a peremptory writ of 'mandate commanding and requiring the defendants forthwith to reinstate the plaintiff in his office, position, place, and fight as chief of the fire department of the city of Helena, and all duties, privileges and emoluments of such office, position or place. From the plaintiff’s application for the writ it appears that the city of Helena, at all of the times mentioned, was, and now is, a municipal corporation organized and existing under the laws of the state, having a population of over 10,000 and less than 25,000, being a city of the first class.
Prior to July, 1915, the city was conducted by an alder-manic form of government; the mayor being elected by the electors of the entire city and the aldermen by those of the several wards. In July, 1915, the commission form of government, authorized by state law, was adopted, and ever since then the affairs of the city have been governed and controlled by a city council composed of three councilmen, consisting of the mayor and two others.
The plaintiff is a citizen of the United States and a resident qualified elector of the city of Helena. In August, 1897, he was appointed to serve as an active paid “call” fireman (sometimes designated “volunteer fireman”) in the fire department of the city, and thereafter served in that capacity until the sixteenth day of May, 1904, when he was appointed a regularly paid fireman and served as such until May 7, 1906, on which latter date the mayor, with the advice and consent of the city council, duly and regularly appointed bim for a probationary -term of six months as a fireman, and thereafter, on March 23, 1908, after the expiration of such probationary period, the mayor nominated, and with the consent of the city council, under the then existing aldermanic form of government, duly appointed, the plaintiff a member of the fire department and the chief thereof, to hold during good behavior and while possessed of the physical ability to perform his duties, all in accordance with the statutes of the state and the ordinances of the city in force and effect. On the first Monday in May, 1918, under the commission form of government, the city council reappointed the plaintiff as chief of the fire department, so that continuously from the seventh day of May, 1906, until the nineteenth day of July, 1920, he was the duly appointed, qualified, and acting chief of such department; the latter date being that on which the city council removed, or attempted to remove, him from his position as such chief, and it appears that no successor has been appointed to succeed him in such position. On the nineteenth day of July, 1920, a motion was, by the city council, adopted removing the plaintiff as chief of the fire department, and a copy thereof duly served on him by the city clerk, which motion reads as follows: “I move that, whereas the city council deems it to the best interests of the fire department of the city that there be a reorganization of the department, and that a change be made in the office of chief of the fire department, therefore, be it resolved, that Thomas J. Daly be, and he is hereby removed from the office of chief of the fire department, effective as of this date, and that he be restored to the roll of members of the fire department.”
Prior to February 21, 1921, no charges of any kind had ever been brought or preferred against the plaintiff as a member or chief of the fire department, and on that date a motion was made and adopted by the city council, which is set forth at length in the notice thereof directed to and served upon the plaintiff, reading as follows:
“Helena, Montana, February 21, 1921.
“Mr. Thos. J. Daly,
“Helena, Montana.
“Dear Sir: At a meeting of the city council*held on the above date the following motion was adopted:
“I move that Thos. J. Daly be notified that he has been suspended as a member of the Helena fire department of the city of Helena, for neglect of duty in failing to report for service at any time since his removal as chief of said fire department, occurring on July 19, 1920; such action being taken by authority of paragraph £C’ of section 25 of the Commission Form of Government Act, and that the city clerk be directed to notify Mr. Daly of the above action.
££ Tours very truly,
££V. N. Kessler, City Clerk.”
After receipt of such notice, on February 25, 1921, the plaintiff duly filed with the city council his notice of appeal from the order suspending him. The charges against the plaintiff were not presented at the next meeting of the city council after the meeting at which such suspension order was made, nor at any other time, nor at all, and no hearing has ever been had on the plaintiff’s appeal. The plaintiff labors under no physical disability, has protested against his attempted removal as fire chief, and has at all times been willing and in readiness to perform his duties as a member and chief of the fire department. Appended to plaintiff’s affidavit and as a part thereof is a copy of Ordinance No. 708 of the city of Helena, passed and adopted February 17, 1908, which has ever since its enactment been in full force and effect, except only as modified by Ordinance No. 1013, increasing the salaries of the chief and other members of the fire department.
This appeal presents but a single question decisive of the controversy, viz.: "What is the proper'mode of procedure for the removal of the chief of the fire department of the city of Helena under the statutes of the state and the ordinances of the city?
As to the propriety of the dual form of judgment entered in this case, we express no opinion, as no question is raised by the parties with respect thereto.
Section 3326 of the Revised Codes of 1907 provides that the city council of cities and towns shall have power to establish a fire department and to prescribe and regulate its duties. Section 3328 reads as follows: “The mayor may suspend the chief and assistant or any fireman of the fire department for neglect of duty or a violation of any of the rules and regulations of the fire department; the chief of the fire department may suspend tbe assistant chief of the fire department or any fireman and the assistant chief of the fire department may suspend any fireman for a like cause. In all eases of suspension the person suspended must be furnished with a copy of the charges against him in writing, setting forth reasons for the suspension and such charges must be presented to the next meeting of the council and a hearing had thereon, when the suspended member of the fire department may appear in person or by counsel and make his defense to said charges; if such charges are found proven by the council, the council by a vote of a majority of the whole council, may impose such penalty as it shall determine the offense warrants, either in the continuation of the suspension for a time limited, or in the removal of the suspended person from the fire department; should the charges be not presented to the next meeting of the council after the suspension, or should the charges be found not proven by the council, the suspended person shall be reinstated and be entitled to his usual compensation for the time so suspended.” These sections of our statute were adopted by the sixth legislative assembly in 1899 (page 73), and will herein for convenience be referred to as the “Firemen’s Act.” On comparison it has been found that Ordinance No. 708 of the city of Helena, passed and approved February 17, 1908, was drawn wholly with reference to these statutes; sections 1, 2 and 3 thereof being expressly authorized by section 3326 and 3327 of the Revised Codes, and section 4, providing for the suspension and removal of the chief of the fire department and firemen, being almost an. exact reproduction of section 3328, Revised Codes. Both under the statute (sec. 3328), and the ordinance (sec. 4), if unaffected by the adoption by the city of the commission form of government, the mayor may suspend the chief of the fire department for neglect of duty or violation of any of the rules or regulations of the fire department. In such case the person suspended must be furnished with a written copy of the charges against him, setting forth the reasons for his suspension, and such charges must be presented at the next meeting of the city council, and a hearing had thereon.
However, it is urged by counsel for the defendants that by the adoption of the commission form of government by the city of Helena, the Firemen’s Act and Ordinance No. 708 became inoperative as respects the removal or suspension of the chief of the fire department. The law authorizing the commission form of government for cities was adopted by the twelfth legislative assembly, and appears as Chapter 57, Laws of 1911. The provisions thereof applicable to the question under discussion are the following:
Section 8 provides in part: “All laws governing cities of the first, second and third classes and not inconsistent with the provisions of this Act, shall apply to and govern cities organized under this Act. All by-laws, ordinances and resolutions lawfully passed and in force in any such city under its former organization shall remain in force until altered or repealed by the council elected under the provisions of this Act. ’ ’ Section 9 provides that in every city of the first class, having a population less than 25,000, there shall be a mayor and two councilmen. Section 15 reads: “Every city shall be governed by a mayor and councilmen, as provided in section 9 of this Act, each of whom shall have the right to vote on all questions coming before the council.” Section 19 provides in part: “ # * * The council shall at its first regular meeting after the election of its members, or as soon thereafter as practicable, elect by majority vote the following officers: A city clerk, * * * , ” etc., ‘ ‘ and such other officers and assistants as shall * * * be necessary to the proper and efficient conduct of the affairs of the city. * * * Any officer or assistant, elected or appointed by the council, may be removed from office at any time by a majority vote of the members of the council, except as otherwise provided in this Act.” And subdivision (C) of section 25 is as follows: “All persons subject to such civil service examination shall be subject to removal from office or employment by the council for misconduct or failure to per form their duties under such rules and regulations as it may adopt, and the chief of police, chief of the fire department or any superintendent, or foremen in charge, of municipal work may peremptorily suspend or discharge any subordinate then under his direction for neglect of duty or disobedience of his orders, but shall, within twenty-four hours thereafter, report such suspension or discharge, and the reason therefor, to the superintendent of his department, who shall thereupon affirm or revoke such discharge or suspension, according to the facts. Such employee (or the officer discharging or suspending him) may, within five days of such ruling, appeal therefrom to the council, which shall fully hear and determine the matter.”,
'The Metropolitan Police Law (secs. 3304 to 3317, inclusive, Rev. Codes) is quite similar, in its provisions relating to the1 appointment, suspension and discharge of the chief of police' and of members of the police force, to the provisions of the Firemen’s Act, as respects the chief and members of the city fire department. As to policemen, this court has held that the mode of their suspension or removal prescribed by the Metro-' politan Police Law obtains under the commission form of government as forcibly as under the aldermanie form. (State ex rel. McDonald v. Getchell, 51 Mont. 323, 152 Pac. 480; State ex rel. Lease v. Wilkinson, 55 Mont. 340, 177 Pac. 401; State ex rel. Lease v. Wilkinson, 59 Mont. 327, 196 Pac. 878.) These decisions are proper in their interpretation of the application of the Metropolitan Police Law, and are equally applicable to members of the fire department under the Firemen’s Act; but in no case has this court been called upon to differentiate be-1 tween members of the police or fire department and the chiefs thereof in cities operating under the commission form of gov-, ernment. We think there is a clear distinction to be drawn between members and chief of such departments. Both the Firemen’s Act and City Ordinance No. 708 provide for the appnint.mp.ut. by the mayor, with the advice and consent of the city council, of the fire chief, assistant chief, and firemen, during good behavior and while possessed of the physical ability to perform their duties, while the Commission Form of Government Act makes different provision as regards the chief of the fire department. Members are unaffected, and as to them the provisions of the general law are applicable, as indicated by the decisions of this court above cited.
“It is a familiar rule of construction that, when a power is conferred upon a municipal corporation, and the mode in which it is to exercise it is prescribed, such mode must be pursued. 20 Am. & Eng. Encv. of Law, 2d ed., 1142.” (McGillic v. Corby, 37 Mont. 249, 17 L. R. A. (n. s.) 1263, 95 Pac. 1063.)
When a power is conferred upon a municipal corporation and the mode in which it is to be exercised is prescribed by the statute or an independent Act, such procedural method must be followed. (Carlson v. City of Helena, 39 Mont. 82, 17 Ann. Cas. 1233, 102 Pac. 39; Shapard v. City of Missoula, 49 Mont. 269, 270, 141 Pac. 544; Stadler v. City of Helena; 46 Mont. 128, 139, 127 Pac. 454, 458.)
In the last case cited, the court quoted with approval from 36 Cyc. .1151, as follows: “ ‘Where there is one statute dealing with a subject in general and comprehensive terms and another dealing with a part of the same subject in a more minute and definite way, the two should be read together and harmonized, if possible, with a view to giving effect to a consistent legislative policy; but to the extent of any necessary repugnancy between them, the special will prevail over the general statute.’ (36 Cyc. 1151.)”
Section 19 of the Commission Form of Government Act provides, as shown, that the city council shall, by a majority vote, elect certain enumerated officers, including the chief of the fire department. No tenure of office is prescribed, and the appointee may at any time be removed by a majority vote of the members of the council. No qualifications for the position are mentioned, nor are there any civil service requirements. The city council may elect any person to the position of chief, without restriction other than as to his citizenship. Section 8 of the Commission Form of Government Act provides that the general laws not inconsistent shall be applicable in cities having adopted such Act, and that ordinances -lawfully passed shall remain in force until altered or repealed, but since the subject of the appointment and removal of the chief of the fire department is specially provided for by the Commission Form of Government Act in a manner different than that required by the general law and the ordinances, the latter must both be held repugnant to the extent of the conflict. A new and different method is provided under the Commission Form of Government Act, respecting the appointment and removal of fire chiefs, and its provisions upon this subject are exclusive.
From a careful consideration of the language employed it appears that the legislature intended to make the office purely, a political one. So that the city council of Helena was legally possessed of the power to remove the plaintiff from his office as chief of the fire department at the time it made its first order of July 19, 1920, and by virtue thereof he was removed. It had no obligation to restore him to the roll of members of the fire department, but, having done so, from that date he was entitled to all of the safeguards afforded to him as such member, under the provisions of the Firemen’s Act and City Ordinance No. 708. Were he suspended as such member by the mayor under the provisions of the Firemen’s Act, he would be entitled to a hearing in person or by counsel at the next meeting of the city council, and, if not accorded such hearing, would automatically be reinstated and entitled to his usual compensation during the period of his suspension. He could also be suspended as a member of the fire department under the authority of the Commission Form of Government Act—subdivision (C) of section 25—as it merely -provides another procedural remedy not inconsistent with the general law. Having been suspended with express reference to this statute, he was entitled to have his appeal heard and acted upon. His appeal was timely made from the order of February 21, 1921, suspending him as a member of the fire department, and, since lie was denied á hearing thereon, the order suspending him was of no effect. He is still a member of the fire department of the city of Helena, and will continue on the rolls as such member until regularly suspended or discharged. To accomplish his suspension or discharge the law must be substantially complied with. Since the order suspending plaintiff became automatically vacated by reason of failure to hear his appeal, there was no reason for the issuance of a peremptory writ of mandate.
Rehearing denied January 16, 1922.
The judgment is reversed and the cause remanded.
Reversed and remanded'.
Mr. Chief Justice Brantly and Associate Justices Reynolds, Cooper and Holloway concur.
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] |
Mr. JUSTICE REYNOLDS
delivered the opinion of the court.
Plaintiff brought this action to recover from defendant, as his tenant, rent alleged to be due on a garage building in Great .Falls. The action was tried before the court sitting with a jury, and both special and general verdicts were rendered in favor of defendant. Judgment was entered in accordance with the verdicts. Motion for new trial was made and overruled. Plaintiff has .appealed from the judgment and from the order overruling the motion.
A written term lease covering the premises had been pre pared, but was never signed. The action was commenced upon the theory that the written lease was in effect, but ’by a stipulation of the parties the complaint was amended, and it was agreed that defendant occupied the premises as tenant from month to month, and that the only question involved in the case was whether or not the premises were occupied by defendant for the period of one month from August 15, 1918, to September 15, 1918, the period for which the rent is claimed. The defendant previously occupied the building by himself and three subtenants, severally named E. E. Smith, Edward McGivern and Equity Co-operative Company. There is no question but that defendant himself vacated the premises on or before August 15, but it is the contention of plaintiff that the premises were occupied by defendant’s subtenants above named, and that therefore the occupancy was, in law, the occupancy of defendant, and that by reason thereof defendant is liable to plaintiff for the rent for that month. The jury rendered a general verdict in favor of defendant, and also four special verdicts in favor of defendant, finding, in effect, that plaintiff notified defendant to vacate the premises on or before September 1, 1918; that defendant notified plaintiff at least thirty days prior to the fifteenth day of August, 1918, that he would terminate his lease and vacate the premises on August 15, 1918; that plaintiff authorized defendant to request the subtenants to remain after the 15th of August, 1918; and that defendant did request the said subtenants so to remain in the building after the 15th of August, 1918, as the tenants of plaintiff.
The only question involved in this appeal is whether "or not the evidence is sufficient to support the findings of the jury. There is a conflict in the evidence as between the plaintiff and the defendant, bnt in order to determine this question it is necessary for us to examine only the evidence received in behalf of defendant. From this evidence it appears that in June, 1918, plaintiff told defendant that he had sold the building, and that he must have possession before September 1. Defendant then proceeded to make arrangements for a new location, and upon or about the 15th of July, 1918, notified plaintiff that he would vacate the premises by August 15. Defendant thereupon arranged with his subtenants to remove from the premises by that date. Assuming that the written lease above mentioned would be executed, defendant had given to his subtenant, Smith, a written lease until December, 1918; so, in order to secure vacation of the premises by Smith by August 15 in accordance with his plans, defendant paid to Smith $100, for a cancellation of his lease. About the 1st of August plaintiff called upon defendant and told him that the sale had failed of consummation, and wanted to know whether or not the defendant could not remain in the building, but defendant advised him that he had made other arrangements whereby it would be impossible for him to do so. Plaintiff then requested defendant to see the subtenants, and request them to stay, and defendant replied that he would and send them to him. Defendant thereupon spoke to each of the subtenants about the matter, and asked them to remain and to make their arrangements with Mr. Hamilton, and each said he would- see plaintiff. Defendant did not know at the time that he vacated the premises whether or not any such arrangements had been made.
From the foregoing evidence it appears that defendant had made complete arrangements for the vacation of the entire building by August 15, but that at the request of plaintiff he asked the subtenants mentioned to remain after that date. While it does appear that these subtenants did not enter into any arrangements directly with plaintiff for their several occupancies of the premises, nevertheless it is clear that under this evidence they remained with the consent of the plaintiff and upon his express request, and not by virtue of the several leases with the defendant. In order to establish the relationship of landlord and tenant, it is not necessary that all the details of the lease be settled, but “a presumption of a tenancy arises where an entry and occupancy is with the permission of the owner.” (24 Cyc. 882.) We think that the evidence was sufficient to sustain the findings of the jury.
The judgment and order overruling' the motion for new trial are affirmed.
Affirmed.
Mr. Chief Justice Bra-ntly and Associate Justices Cooper, Holloway and Galen concur.
|
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PER CURIAM.
Pursuant to stipulation of tbe parties, tbe appeal in tbe above-entitled cause is dismissed as settled.
|
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] |
MR. JUSTICE REYNOLDS
delivered the opinion of the court.
Petition was filed by relator praying for a writ of mandate to compel the board of county commissioners of Chouteau county to forthwith meet and prescribe the limits of a fire district for Square Butte, an unincorporated town within that county, and to levy a tax on all the property within the district with which to pay a certain outstanding warrant and other indebtedness. Respondent filed a motion to quash for the reason, among others, that it is a matter of discretion with the board of county commissioners as to whether or not it will determine the limits of such fire district and levy such a tax.
On the twenty-sixth day of May, 1915, the Square Butte Volunteer Fire Department was organized under the provisions of section 2076 of the Revised Codes. Immediately after its organization, it purchased fire equipment and gave a warrant to the American Hose & Apparatus Company in the sum of $639.07 to cover the purchase price of certain fire apparatus and supplies, which warrant is now owned by relator. Upon the fifth day of June, 1915, the fire company filed with the county clerk of Chouteau county a petition to the board of county commissioners, praying that it establish fire limits and levy a special tax and assessment in accordance with the provisions of 'section 2081 of the Revised Codes, as amended. On the seventh day of July, 1921, the board of county commissioners, by resolution, established the boundaries of the fire district and directed the levy of a special tax upon all property within the fire limits so established for the purpose of buying apparatus and paying outstanding warrants, and for the maintenance of the fire department. On the following day, however, the board of county commissioners rescinded its action and turned over the matter to the county attorney for investigation, the same to be submitted to the board at the August meeting for final action. Since that time nothing further has been done by the board.
The section, as amended, authorizing the board to take action in the matter, in so far as it is pertinent to the question involved in this case, reads as follows: “The board of county commissioners are authorized to establish the fire limits in any unincorporated town or village, and at the time of the annual levy of taxes may levy a special tax upon all the property within such limits for the purpose of buying apparatus and maintaining the fire department of any such town or village, and such tax must be collected as are other taxes. * # * ” (Laws 1915, Chap. 16, p. 27.) It is to be noted that .this Act does not command the board to establish the fire limits and levy the special tax but merely authorizes it to do so. It is undoubtedly true that in many cases the authority to do a certain act may be construed as a mandatory obligation so to do, but in this particular case, construing the section in connection with section 2076, authorizing the organizatipn of the volunteer fire company, we are constrained to hold that the board has a discretion in the matter. In view of the laxity of the provisions of the section providing for the organization of the volunteer hose company, in which there is no limitation whatever as to the number of persons that may so organize the company, whether representative of the whole community or not, and even without the requirement that they be residents of the community, whereby they would be enabled to take action to force a levy of a tax upon all the property of the community without limitation as to amount if the provisions of section 2081, as amended, are mandatory, there would be no possble check upon the expenditures of such .a company so organized and no protection whatever to the citizens of the community against an excessive and extravagant taxation. It is inconceivable that the legislature intended that a comparatively small number of persons should have the power and authority to compel the levy of a tax upon a majority of the people within the same community without their consent and without such a tax .being authorized by some responsible authority having discretion to review the circumstances and determine whether or not a company so organized may be truly representative of the community in which it is organized and thereby speak the sentiments of the community as a whole; and yet such would be the result if the board of county commissioners had no discretion in the matter. By holding that the board of county commissioners has such a discretion, the only method by which a reasonable check can be had upon taxation for fire department purposes in unincorporated towns is preserved.
If the board of county commissioners had discretion in the matter in the passing of the resolution which was passed for the establishment of the fire district of Square Butte and authorizing the levy of the tax upon the property within that district, it also had the discretion to rescind that action, providing that no rights had become vested by reason of the passing of the resolution. In this case the warrant in question was issued prior to the passage of the resolution, so that any right in the warrant could-not have been founded upon the resolution, and therefore' the relator was not injured by the action of the board in rescinding the resolution. So far as appears from the record, no other person had parted with any consideration or taken any action whatever relying upon such resolution, so apparently no one else was harmed by its rescission.
For the reasons herein given, the motion to quash is sustained, and it is ordered that the proceeding be dismised.
Dismissed.
Mr. Chief Justice Brantly and Associate Justices Cooper, Holloway and Galen concur.
|
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PER CURIAM.
The application of relators for writ of* injunction is denied.
|
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] |
PER CURIAM.
This cause this day came on for judgment and decision; whereupon, on consideration, the motion to substitute the administratrix of relator as respondent is denied, and it is ordered and adjudged that the purported appeal taken from the judgment of. the lower court be and it is hereby-dismissed, for the reason that no judgment appears in the transcript.
Mr. R. L. Clinton, Mr. E. D. Elderlcin and Mr. J. 0. Davies, for Appellant.
Messrs. Canning & Oeagan, for Respondent.
|
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
This action was brought to recover the amount oí an indebtedness due to the plaintiff from the White Sulphur Springs Mineral Water Company, a corporation, and liability is sought to be fastened upon the defendant because he was a director of the corporation at the time the indebtedness was incurred and because the annual report required by law had not been filed. A writ of attachment was issued and defendant’s property seized. This appeal is prosecuted from an order of the district court refusing to discharge the attachment.
If the attachment was improperly issued, it should have been discharged (sec. 9284, Rev. Codes 1921), and it was issued improperly if this action does not belong to the class of actions in which an attachment is authorized. (State ex rel. Malin-Yates C Go. v. Justice of the Peace, 51 Mont. 133, 149 Pac. 709.)
Under our statutes an attachment may issue only in an action up,on a contract, express or implied, for the direct payment of money. (Secs. 9256, 9257, Rev. Codes 1921.) At the time this cause of action arose, section 3850, Revised Codes of 1907, as amended by section 1 of Chapter 140, Laws of 1909, was in force. It provided that every corporation having a capital stock, except banks, trust companies and building and loan associations, should annually, within twenty days after December 31, file with the county clerk of the county in which the corporation’s principal place of business was situated, a report exhibiting the financial condition of the corporation, etc. The statute provided further: “If any such corporation shall fail to file such report, directors of the corporation shall be, jointly and severally, liable for all debts or judgments of the corporation then existing, or which may thereafter be in any wise incurred until such report shall be made and filed.” The proviso to the section is not material here.
This appeal presents the single question: Does the liability of a director under the statute above arise oiit of a contract, express or implied? It is self-evident that an express contract is not involved, and counsel for plaintiff concedes that the attachment can be sustained, if at all, only upon the theory that by accepting the office of director the defendant impliedly agreed to pay the corporation’s debts if the annual report should not be filed as required by law.
The statute • above was enacted first in 1867 (Laws 1867, p. 25), and, with amendments made from time to time, has been continued in force to the present day and is now found in section 6003, Revised Codes of 1921. In Gans v. Switzer, 9 Mont. 408, 24 Pac. 18, it was held that the statute is penal in character and must be construed strictly; that it establishes a new rule of private right unknown to the common law; and that the liability imposed “is neither created by contract, nor given as compensation for a direct and immediate wrong done by the directors to the'creditors.” The doctrine of that case has never been _ repudiated; on the contrary, it has been approved in every instance, where the same question has reappeared. (Elkhorn Trading Co. v. Tacoma Mining Co., 16 Mont. 322, 40 Pac. 606; Wethey v. Kemper, 17 Mont. 491, 43 Pac. 716; State Savings Bank v. Johnson, 18 Mont. 440, 56 Am. St. Rep. 591, 33 L. R. A. 552, 45 Pac. 662; Giddings v. Holter, 19 Mont. 263, 48 Pac. 8; Manhattan Trust Co. v. Davis, 23 Mont. 273, 58 Pac. 718; Daily v. Marshall, 47 Mont. 377, 133 Pac. 681.) Accepting those decisions as determinative of the character of our statute, the supreme court of Pennsylvania refused to enforce the liability, under the maxim of international law which prevails among the states: “The courts of no country execute the- penal laws of another.” (Commercial Nat. Bank v. Kirk, 222 Pa. 567, 128 Am. St. Rep. 823, 71 Atl. 1085.) However, we think the Pennsylvania court carried the doctrine beyond the limit set by this court. The statute is not penal in the sense that the liability is imposed as punishment for an offense com mitted against the public; but, since a new and onerous burden is imposed by reason of the failure to file the report, the statute is penal in the sense that it is to be construed strictly for the purpose of determining whether in any given case the director is subject to the penalty. (Daily v. Marshall, above; Huntington v. Attrill, 146 U. S. 657, 36 L. Ed. 1123, 13 Sup. Ct. Rep. 224 [see, also, Rose’s U. S. Notes].) But whenever the facts disclose the liability clearly, the statute should be construed liberally in favor of the creditor who brings himself within its terms. (Credit Men’s Adjustment Co. v. Vickery, 62 Colo. 214, 161 Pac. 297.)
It has been necessary, in many cases arising under statutes in principle the same as our own, for the courts to determine the nature of the directors’ liability in order to make proper application of the statute of limitations, and, so far as we are advised, no court has held that the statute which limits the time within which an action upon a contract must be commenced is applicable to an action of this character; on the contrary, it has been held generally that the creditor’s action is one upon a statute for a penalty or forfeiture, when the action is given to an individual or to an individual and the state (sec. 9032, Rev. Codes 1921) as distinguished from an action upon a liability created by statute other than a penalty or forfeiture (sec. 9033, Rev. Codes 1921; State Savings Bank v. Johnson, above; Merchants’ Bank v. Bliss, 35 N. Y. 412; Brown v. Clow, 158 Ind. 403, 62 N. E. 1006). In Arkansas it is held that the liability is contractual in its nature (Hughes v. Kelley, 95 Ark. 327, 129 S. W. 784), but the decided weight of authority and the better reasoned cases, we think, hold that the liability is not created by contract.
Speaking generally, an implied contract has its foundation in the doctrine of unjust enrichment; but there is not present any element of that doctrine in the liability imposed by our statute. The director gains nothing by failing to file the report; on the contrary, the effect of his default is the imposition upon him of the burden of the corporation’s debts. He is required to respond,- not because he agreed to do so, but solely because the statute imposes upon him the duty to pay, and when the law imposes such a duty it is idle to say that a contract to pay is implied. (Bigby v. United States (C. C.), 103 Fed. 597.) Our statute will not admit of a construction which leads to the conclusion that the director’s liability partakes of the nature of compensation to the creditor for any direct or immediate wrong done to him by the director. The creditor need not allege or prove that he was misled, imposed upon, or injured by the director’s default, and his right to recover is not dependent upon the corporation’s insolvency. (First Nat. Bank v. Cottonwood Land Co., 51 Mont. 544, 154 Pac. 582.) Indeed, the corporation may be a prosperous, going concern with abundant resources from which to meet all of its obligations, and still the derelict director is personally liable for its debts solely because the required statement was not filed. Aside from capable parties and a lawful object, every essential element of a contract is wanting, —consent of the parties, mutuality, and a sufficient consideration. (Sec. 7468, Rev. Codes 1921; McCoun v. Railroad Co., 50 N. Y. 176; Morley v. Railway Co., 146 U. S. 162, 36 L. Ed. 925, 13 Sup. Ct. Rep. 54 [see, also, Rose’s U. S. Notes].) In 1 Page on Contracts, section 12, it is said: “A liability imposed by statute and not assumed by the voluntary agreement of the parties is not a contract, even if it is a liability on which the action of debt could have been maintained at common law.”
Our conclusion is that the director ’s liability is purely statutory and is in the nature of a penalty imposed for failure to obey the mandate of the law. The subject is discussed- at great length, and the numerous decided cases supporting our views are cited, in 4 Fletcher’s Cyel. Corporations, Chapter 46.
It is the general rule that, whenever defendant’s liability to plaintiff prises purely from statute, it is not regarded as a demand on which an attachment will issue under statutes such as our sections 9256, 9257, above (6 C. J. 88).
Since the complaint herein does not state a cause of action upon a contract, express or implied, for the direct payment of money, the attachment was improperly issued. (Kyle v. Chester, 42 Mont. 522, 37 L. R. A. (n. s.) 230, 113 Pac. 749.)
The order is reversed and the cause is remanded to the district court, with directions to discharge the attachment.
Reversed.
Mr. Chief Justice Brantly and Associate Justices Cooper and Galen concur.
Mr. Justice Reynolds, being absent, takes no part in the foregoing decision.
|
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] |
MR. JUSTICE GALEN
delivered the opinion of the court.
This is an action in claim and delivery for the recovery of a certain Ford Touring car of the admitted value of $500. The car was taken from plaintiff’s possession on April 9, 1918, by a deputy sheriff of Big Horn county, on instruction from the defendant sheriff, pursuant to the terms of a certain chattel mortgage covering, with others, the Ford in controversy, executed by one Thomas C. Smith as mortgagor, to the Stockmen’s National Bank of Hardin, which mortgage, after the maturity of the principal obligation, was transferred and assigned to the defendant Walter O. Lee, and was his property at the time the car was seized.
On commencement of this action, April 20, 1918, the plaintiff furnished the coroner with a satisfactory bond on redelivery of the car, and it was by the coroner returned to the plaintiff on April 25, 1918. The complaint alleges that the defendant “did willfully, wantonly, oppressively, and wrongfully take said automobile from the possession of the plain tiff; that ever since said taking the said defendants .have willfully, wantonly, oppressively, and wrongfully detained, and do now willfully, wantonly, oppressively, and wrongfully detain said automobile from the possession of this plaintiff, to the damage of the plaintiff in the sum of $500.” The prayer is for the recovery of the possession of the car, or for $500, its value, “together with the sum of $500, his damages sustained by reason of the unlawful taking and holding of the said ear,” and for costs.
The defendants pleaded by way of justification that the car was covered by chattel mortgage from the plaintiff’s vendor, Thomas C. Smith, the assignment of the mortgage to the defendant Lee, its nonsatisfaction, breach of its terms, and instructions given to the sheriff in accord with its provisions to take possession of the car and sell the same, and that the car was taken in peaceable manner according to such directions. The answer contains prayer for the return of the car or its value, $500.
The reply admits the existence of the chattel mortgage, the inclusion of the car in question therein, and that it was taken from the plaintiff’s possession by the defendant sheriff in pursuance of instructions of the defendant Lee. Upon issue joined, the case was tried to the court with a jury, and resulted in a verdict finding “the issues generally for the plaintiff,” and assessing his damages in the sum of $500, upon which judgment was made and entered. The appeal is from the judgment and order overruling defendants’ motion for a new trial.
Several errors are assigned, all of which save the last two relate exclusively to instructions to the jury given or refused. The last two go to the entry of the judgment and the order of the court denying defendants’ motion for a new trial.
It is our opinion that the question raised by the order denying defendants’ motion for a new trial, involving the sufficiency of the evidence to justify the verdict, and instruction No. 12, given by the court to the jury on the subject of ex emplary damages, are determinative of the case. That instruction reads: “You are instructed that if you find for the plaintiff, you may assess as his actual damages, if any he sustained, the reasonable value of the use of the property in controversy, from the date it was taken by the defendants, to the time that the plaintiff regained possession thereof, and in determining such reasonable value you may take into consideration the amount for which such property could be hired, for the time it was detained from the possession of the plaintiff, and in addition to such actual damages, if any you should find, you may also add exemplary damages thereto if you should find from the evidence that defendants have been .guilty of oppression.”
There is no conflict in the evidence as to the manner of taking the Ford from plaintiff’s possession. Plaintiff bought the car in the usual course of trade from Thomas C. Smith, paying therefor $430, without actual knowledge of the fact that it was covered by chattel mortgage. It was taken from plaintiff’s possession peaceably, by the deputy sheriff, on exhibition of a certified copy of the mortgage and explanation made of his mission and purpose. It was retained by the defendant sheriff for a period of sixteen days before redelivery to the plaintiff in consequence of this action, the sheriff being about to make sale of it under the terms of the mortgage.
Where the mortgagee expressly or impliedly consents to a sale of mortgaged property of the mortgagor, he thereby waives his lien, and the purchaser takes the title free from the mortgage, whether the latter knew of the existence of the mortgage or not, and notwithstanding the lack of knowledge on the part of the purchaser "that such a consent had been given. (C. J. 624.) Want of knowledge on the part of the mortgagee that sale has been made is immaterial if he gave the mortgagor general authority to sell the mortgaged property. (Pratt v. Maynard, 116 Mass. 388.)
The mortgage is good as between the parties. Such a chattel mortgage may be considered presumptively fraudulent as to creditors, in view of the mortgagor’s retention of the property and sale of goods covered thereby in the course of business, without specific consent thereto or accounting to the mortgagee. (Schwab v. Owens, 10 Mont. 381, 25 Pac. 1049; Rocheleau v. Boyle, 11 Mont. 451, 28 Pac. 872; Heilbronner v. Lloyd, 17 Mont. 299, 42 Pac. 853.) Yet the mortgagee, as between the mortgagor and himself, or his assignee, with actual knowledge of the facts, is in no position to complain.
The defendant Lee, as assignee of the mortgage, stood in no position legally different than the original mortgagee, the Stockmen’s National Bank, for he was a director of that bank,knew of the mortgage and the methods pursued by Smith in the receipt, payment for, and sale of automobiles in the course ■of business. Lee owned the building wherein Smith conducted his garage and automobile business, Smith leasing the same as a tenant from Lee; Lee induced Smith to transact his business with the Stockmen’s National Bank in preference to the First National Bank, knowing his business methods; Lee independently had advanced money to Smith to unload automobiles for use in his business; had frequently been in and around Smith’s place of business, and helped the latter in the consummation of automobile sales; had discussed Smith’s financial condition with the cashier of the Stockmen’s National bank, and had himself made purchase of a Buick car covered by chattel mortgage to the bank, for which he gave Smith a credit of $600 on account of rent of the garage and $700 by check, which check was deposited by Smith with the bank in the regular course of business.
It is not claimed, nor is there any evidence to show, that the ear was in any way damaged or injured while it was in possession of the defendants, and plaintiff’s actual damage could not have exceeded the reasonable value of its use from the date of seizure to the time of trial. (Hammond v. Thompson, 54 Mont. 609, 173 Pac. 229.) The highest value placed upon its use by the plaintiff’s witnesses was $10 per day, or a total maximum of $160, had the plaintiff had use for the car every day he was deprived of it.
The complaint alleges the taking of the Ford “oppres sively,” and this allegation, if proven, should warrant punitive damages without the necessity of claiming the same eo nomine in the complaint. (Martin v. Corscadden, 34 Mont. 308, 322, 86 Pac. 33.)
No specific allegation is required, and we think that the general allegation that the acts complained of were done “oppressively” sufficient to warrant the recovery of such damages if sustained by the evidence. (17 C. J. 1006.)
The statute (sec.' 6047 of the Revised Codes of 1907) provides: “In any action for a breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud, or malice, actual or presumed, the jury, in addition to the actual damages, may give damages for the sake of example, and by way of punishing the defendant.”
A guilty intent on the part of the defendants is an essential to charge them with exemplary damages, and in this case, in absence of proof of oppression, the award thereof is not warranted. (17 C. J. 983.) “While every legal wrong entitles the party injured to recover damages sufficient to compensate for the injury inflicted, not every legal wrong entitles the injured party to recover exemplary damages. To warrant the recovery of such damages the act complained of must not only be unlawful, but must also partake somewhat of a criminal or wanton nature. And so it is an almost universally recognized rule that such damages may be recovered in cases, and only in such cases, where the wrongful act complained of is characterized by some such circumstances of aggravation as willfulness, wantonness, malice, oppression, brutality, insult, recklessness, gross negligence, or gross fraud on the part of the defendant.” (8 R. C. L. 585, 586.)
From the evidence in the case the jury were not warranted in assessing punitive damages (De Celles v. Casey, 48 Mont. 568, 139 Pac. 586), nor was there reason for the court instructing tbe jury with respect thereto. Upon no theory were exemplary damages authorized, and, as it is impossible to determine from the verdict the amount which the jury intended to allow as compensatory damages, the judgment and order are reversed, and the cause remanded for a new trial.
Reversed and remanded.
Mr. Chief Justice Brantly and Associate Justices Reynolds, Cooper and Hollowai concur.
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] |
MR. CHIEF COMMISSIONER STARK
delivered the following opinion:
This is an action by the plaintiff to recover from the defendant for services rendered by him as attorney for defendant in her capacity as special administratrix and executrix of the estate of John B. Sattes, deceased.
In the first count set forth in the second amended complaint, it is alleged that plaintiff is an attorney at law, duly admitted and licensed to practice Ms profession in the courts of this state; that on March 25, 1916, defendant was duly appointed special administratrix of the estate of John B. Sattes, deceased, duly qualified as such and entered upon the duties of her office, and continued to act as such until the twelfth day of April, 1916, on which date an order was duly given and made appointing her as executrix of the last will and testament of said deceased; and that she thereupon qualified as such, letters testamentary were issued to her and she entered upon the discharge of her duties.
It is next alleged that at the special instance and request of defendant and for her use and benefit the plaintiff performed professional and legal services for her in both her capacity as special administratrix and executrix, commencing in February, 1916, and. ending in March, 1917; that on the fourteenth day of April, 1916, in consideration of the services rendered and to be rendered by the plaintiff in said matters, defendant promised and agreed to pay him therefor such reasonable amount as the judge of the probate court of Silver Bow county, Montana, would fix and allow therefor; that plaintiff agreed to perform such services and accept in payment for the same the amount to be determined as above set forth; that the plaintiff did render such services for defendant, and that on July 28, 1917, the judge of the probate court above designated fixed the sum of $2,500 as the reasonable value of such services, and that the sum so fixed is the reasonable value thereof, but that defendant has refused to pay the same or any part thereof.
In a second and separate count, after alleging that the plaintiff is a duly admitted and licensed attorney, it is set forth that between the first day of February, 1916, and the first day of April, 1917, the plaintiff rendered to and for defendant, at her special instance and request and for her use and benefit, professional, legal and other services in connection with the estate of John B. Sattes, deceased, of the reasonable value of $2,500, for which she agreed to pay plaintiff; that plaintiff has demanded payment therefor, but the same has not been paid.
To this complaint, and to each separate count thereof, the defendant interposed a general and special demurrer, which was overruled. Without going into a detailed discussion of the matters raised by the demurrer, we shall content ourselves by saying that we have examined the same, and are of the opinion that each count of the complaint states a cause of action, and that the same are neither ambiguous, unintelligible or uncertain, and that the demurrer was properly overruled by the court.
The defendant filed her answer in which she admitted that the plaintiff was an attorney at law, admitted to practice in Montana; that the defendant was duly appointed as special administratrix of the estate of John B. Sattes, deceased, and subsequently as executrix of the last will and testament of said deceased, and duly qualified and acted as such, as alleged in the complaint; and that in February, 1916, she employed the plaintiff as an attorney at law to represent and assist her, as such attorney, in the matter of said estate, but denies each and every other allegation therein contained.
As further separate and affirmative defenses to the cause of action alleged, the defendant pleaded two counterclaims which, on motion, were by the court stricken out.
In our opinion, no useful purpose would be subserved by a discussion of these alleged separate defenses and counterclaims. They have had consideration, but we do not believe that either of them contains a sufficient statement of facts to entitle the defendant to any affirmative relief against the plaintiff, and, therefore, the court did not commit error in sustaining- the motion to strike them from the answer.
Upon the issues made by the pleadings as above set forth, the cause came on for trial before the court and a jury on May 27, 1919. Before the jury was sworn, the defendant moved that the plaintiff be required to elect as to which count set out in the complaint he intended to rely upon in the trial of the case, which motion was by the court overruled. Thereafter, to sustain the issues on his part, the plaintiff testified that about April 14, 1916, just before filing the defendant’s final account as special administratrix he called her attention to the fact that he was entitled to an attorney fee for the services which he had rendered to her in that capacity, and that she asserted it was her wish not to divide the fees or pay out anything until the estate was finally settled, and then for the amount of plaintiff’s fee to be submitted for determination to the judge of the court administering upon the estate; that it was mutually agreed between plaintiff and defendant that such course should be pursued in determining the -amount of such fee; and that thereafter the judge of the. court above mentioned did determine said amount as the sum of $2,500, but that the defendant has not paid the same, nor any part thereof.
The testimony on the part of the plaiñtiff further disclosed that the value of the estate of John B. Sattes, deceased, was appraised in the probate proceedings at the sum of $31,906.10. This estate consisted of $4,142 in cash, houses and lots appraised at $2,000, outstanding claims in favor of the estate amounting to $750, and the balance was composed of interests in numerous patented mining claims located in Silver Bow county. Two witnesses who duly qualified so as to entitle themselves to express an opinion as to the value of the various mining interests placed the value of the whole estate as high as $49,433.35.
Three members of the bar of Silver Bow county,'in response to hypothetical questions put to them, detailing the services which the plaintiff had rendered to the defendant in connection with the Sattes estate, and also the value of the estate as returned in the inventory and appraisement, as well as the values placed thereon by the expert witnesses, testified that the reasonable value of the plaintiff’s services was in excess of $3,000.
The defendant, as a witness in her own behalf, testified that she engaged the plaintiff to act as her attorney in connection with her duties as special administratrix and. also as executrix of the will in the Sattes estate; that he acted as such from the inception of the probate proceedings in February, 1916, down to the twenty-eighth day of March, 1917, when the estate was ready to be closed, at which time she discharged him; that on numerous occasions during the progress of the administration she tried to get the plaintiff to state what amount he was going to charge her for his services as such attorney, and that on each occasion he replied that he could not fix the fee, that he would leave it to- the court. In the course of her direct examination, the defendant in one place testified as follows: “Q. Did you ever agree with Mr. Fitzgerald, in his office along in April, 1916, to leave the fixing of his attorney fees to the probate judge or the probate court? A. Well, I didn’t tell—I didn’t know what to-do. Q. Well, did you make such an agreement in April, 1916, with Mr. Fitzgerald in his office, about the time the will was admitted to probate? A. Well, I don’t know; I just let it go as it was, you know; he said he was going to leave it to the court, and I of course, let it go.” In the course of her cross-examination the de fendant identified her report as special administratrix of the Sattes estate, filed April 15, 1916, and the same was read in evidence, in which report she requested that the fees and compensation of the plaintiff as her attorney be reserved until the final administration of the estate, without any waiver of said attorney’s fees for said services. As a part of the cross-examination of the defendant there was also introduced in evidence a petition, signed and verified by her and Fred Sattes, a brother of the deceased and one of the two residuary legatees named in the will, addressed to the district court of Silver Bow county, filed March 20, 1917, which after reciting the progress of the administration of the estate, the value thereof, the employment of the plaintiff as her attorney and the services rendered by him, prays the court to ascertain and fix the reasonable value of the plaintiff’s services, and authorize her to pay the same. In reference to this petition, defendant testified that when she signed it, she did not know that it was a petition calling for judicial action to determine the amount of the attorney fee, but signed it because plaintiff told her that she had to. do it to get the estate closed up. The defendant was also asked on cross-examination with reference to a conversation alleged to have been held between her and plaintiff at the plaintiff’s office in the presence of three witnesses, on March 26, 1917, in which it was claimed she admitted that she had agreed to let the probate judge, or court, fix the amount of the plaintiff’s fee, and the defendant denied the same. In rebuttal, the plaintiff produced the three witnesses alleged to have been present at the time of the alleged conversation, who testified that defendant did make such statement.
A member of the bar of Silver Bow county testified on behalf of defendant that in his opinion the sum of $200 would be a reasonable fee to be allowed to plaintiff for his services rendered to the defendant.
Upon this state of the evidence the case was submitted to the jury, which returned a verdict in favor of plaintiff for the sum of $2,500, upon which a judgment was entered against the defendant. Defendant moved for a new trial, which was overruled by the court, and from this judgment and the order overruling the motion for new trial, the case is before this court on appeal.
It is contended by counsel for defendant that the court erred in not requiring plaintiff at the beginning of the trial to elect upon which count he would proceed to trial. Both counts are for the same purpose, against the same defendant, concern the same subject matter, and are for the same amount. It is settled by the decisions of this court “that the court may, in its discretion, permit the same cause of action to fee stated in different counts in order to meet the exigencies of the case as presented by the evidence.” (Blankenship v. Decker, 34 Mont. 292, 85 Pac. 1035; Neuman v. Grant, 36 Mont. 77, 92 Pac. 43.) And denial of a motion to elect is not error. (Estrella Vineyard Co. v. Butler, 125 Cal. 232, 57 Pac. 981; Darknell v. Transp. Co., 18 Ida. 61, 108 Pac. 536.)
It is urged that the contract set up in the first count of the complaint to the effect that the amount of the plaintiff’s fee for services rendered to the defendant is against public policy, in that it contemplates the doing of a void, extrajudicial and unlawful act by the court and its officers. It is true that at the time the proceedings in the Sattes estate were pending in Silver Bow county, the probate court had no authority to fix the amount of the fee to be paid to an attorney for services rendered to an administrator or executor, and that jurisdiction to do so could not be conferred by consent. (State ex rel. Eisenhauser v. District Court, 54 Mont. 172, 168 Pac. 522.) In this ease, however, there is no showing that the plaintiff relies upon any judicial determination of the amount of his fee by either court or judge. His testimony, which is the only testimony in the record as to the determination of the amount of the fee to be paid by defendant, is embraced- in the following questions and answers: “Q. Now, in connection with the agreement that you had with Mrs. Eisenhauser that your compensation should be fixed by the judge, by the court, was there a determination of the amount of compensation that you should receive, by the judge, pursuant to that agreement? A. Yes, sir. Q. What was the amount that was fixed as compensation that you should receive by reason of that agreement? A. $2,500. I have not received one cent from the defendant for any services- that I rendered in connection with the administration of this estate.”
Section 7508, Revised Codes of 1921, having reference to the consideration of contracts, provides: “When a consideration is executory, it is not indispensable that the contract should specify its amount or the means of ascertaining it. It may be left to the decision of a third person, or regulated by any specified standard.” Under this statute it was competent for the plaintiff and defendant to agree upon and specify any person whom they might desire to determine the amount of plaintiff’s fee. They might have designated the sheriff of the county, a bank cashier, or any other person. If the testimony of the plaintiff is to be believed, they did agree upon the judge of the probate court of Silver Bow county. We fail to see where there is anything in this contract which was contrary to the express provisions of the law; or contrary to its policy; or otherwise contrary to good morals. (Sec. 7553, Rev. Codes 1921.)
We shall next consider the alleged errors of the court in admitting proof of the value of the Sattes estate. This testimony was introduced for the sole purpose of establishing one of the elements to be considered by the jury in determining the value of plaintiff’s services under the second count of the complaint, and as such it was properly allowed to be presented to the jury. (Forrester & MacGinniss v. Boston & Mont. Co., 29 Mont. 397, 74 Pac. 1088, 76 Pac. 211, 409; 6 C. J. 750.)
Numerous other errors are assigned upon the rulings of the court in admitting or refusing to admit testimony. To con sider these various assignments in detail would unnecessarily prolong this discussion. After giving them all consideration, we do not find any prejudicial error 'in the rulings of the court. The same statement may be made in reference to the instructions. Considering them all together, we think the law, as applicable to the facts in the case, was correctly and fully declared to the jury.
Finally, it is contended by appellant that the evidence in the case is insufficient to justify the verdict; that the same is excessive and could not have been given except through passion and prejudice; and that for these reasons the court erred in denying the motion for a new trial.
As to the insufficiency of the evidence, the substance of all of the testimony introduced, has already been set out, and it is fairly to be deduced therefrom that it preponderates in favor of the plaintiff. At best, it is sharply in conflict, and under the rule frequently announced by this court, the verdict of the jury is conclusive upon appeal. (Western Mining Supply Co. v. Melzner, 48 Mont. 174, 136 Pac. 44; Lizott v. Big Blackfoot Milling Co., 48 Mont. 171, 136 Pac. 46.)
Notwithstanding the foregoing determination of the matters presented in this record, we feel disposed to say that in our opinion the amount of the fee claimed by plaintiff is much larger than the conditions reasonably warranted; and that in spite of the agreement and the determination of this suit, the probate court would have been amply justified in refusing to allow the defendant any such an amount as a proper charge against the Sattes estate upon the final settlement of her account. However, upon the case now here, the court is without authority to modify the judgment. It was within the power of the plaintiff and defendant to make any contract which they saw fit, so long as 'it was not illegal or against public policy. The duty of the court is to interpret and enforce contracts for the parties, not to make new ones for them or to alter or amend those which they themselves have made.
Rehearing denied May 12, 1922.
There being no error in the record, we recommend that the judgment and order appealed from be affirmed.
Per Curiam : For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.
Affirmed.
|
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PER CURIAM.
Pursuant tomotion of appellant, the appeal in the above-entitled cause is dismissed.
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
This action in claim and delivery was brought to recover the possession of ten head of yearling calves. The defendant prevailed in the lower court, and plaintiff appealed from an order denying her a new trial. The application for a new trial was based upon the ground of newly discovered evidence, and the new evidence is set forth in five affidavits, made, respectively, by the affiants Grant, Blake, Michael, Ellis and Hughes.
It is elementary that the party moving for- a new trial on the ground of newly discovered evidence must disclose due diligence; that is to say, he must show by his own affidavit that the new evidence was not known to him at the time of the trial and could not have been discovered by the. exercise of reasonable diligence. (Sec. 9397, Rev. Codes 1921; Roberts v. Oechsli, 54 Mont. 589, 172 Pac. 1037.)
There was submitted an affidavit made by the plaintiff, and evidently intended as an affidavit of due diligence; but nowhere in it does she refer to the affiant Grant, and, so far as this record is concerned, plaintiff may have known, at the time of the trial, every fact disclosed by Grant’s affidavit. In other words, as to that affiant there is not any showing of diligence whatever, and for this reason. Grant’s affidavit did not furnish any ground for a new trial. (In re Colbert’s Estate, 31 Mont. 477, 107 Am. St. Rep. 439, 3 Ann. Cas. 952, 78 Pac. 971, 80 Pac. 248.)
The only relevant matter contained in Blake’s affidavit con- sists of a statement which is a mere repetition of testimony given by the witness MeConaha at the trial. It is cumulative merely, and for this reason furnishes no basis for the motion. (State v. Matkins, 45 Mont. 58, 121 Pac. 881.)
The affidavit of Michael confines his testimony to a conver sation had by him with one W. D. Brodock, in which conversation Brodoek made reference to cattle belonging to plaintiff, but the cattle which furnish the subject of the conversation are not identified in any manner as the cattle in dispute, while the record discloses that plaintiff had more than sixty head of cattle other than those involved in this litigation. The evidence to be produced by Michael is irrelevant and immaterial, and for this reason that affidavit cannot be considered as furnishing any basis for a new trial. (Surman v. Cruse, 57 Mont. 253, 187 Pac. 890.)
Ellis in his affidavit states that in the fall of 1915 he fed some cattle belonging to the plaintiff; that among the number was a yellow cow with a red heifer calf. He states further, that plaintiff has described to him the calves involved in this litigation, and that he believes that one of them is the identical calf which he fed. A nonexpert witness may express an opinion upon the question of identity, provided he possesses the necessary knowledge to enable him to form an intelligent opinion (22 C. J. 597; Porter v. Hawkins, 27 Mont. 486, 71 Pac. 664), but the opinion must be based upon personal knowledge, and must be the result of the witness’ recollection of the person or thing to be identified. The opinion expressed by Ellis in his affidavit is based solely upon a description of the cattle given to him by the plaintiff, and whether that description was minute or vague is not disclosed. The evidence, if offered upon a new trial, would be excluded as incompetent. (Woodward v. State, 4 Baxt. (Tenn.) 322; People v. Gray, 148 Cal. 507, 83 Pac. 707; Lawson on Expert and Opinion Evidence, 2d ed., 324.) In 2 Jones’ Commentaries on Evidence, section 361, the rule is stated as follows: “An opinion as to identity of a person based solely upon the statement of another is not admissible to prove identity. The rule applies as well to the identification of things as of persons.”
Upon the trial of this ease, plaintiff and her husband each testified that the calves in controversy belong to plaintiff; that plaintiff owned the mother of each of the calves and raised the calves; that each of the mothers was branded with plaintiff’s brand, “5 T”; that each of the witnesses had seen the calves with their mothers very frequently from the time the calves were born up to the time they were missed from plaintiff’s ranch in the spring of 1916; that soon thereafter each of the witnesses saw the 'same calves then branded with defendant’s brand in the Oliver Brodoek field; and that each saw the same calves, or nine of them, when taken by the sheriff at the time this action was commenced.
The affiant Hughes states in his affidavit that in the fall of 1915 he was in charge of the Dana ranch; that one of his duties was to keep livestock not belonging to the Dana outfit off of that ranch; that on several occasions he drove away from the ranch cattle belonging to the plaintiff; that his attention was called particularly to two cows, each branded “5 T,” and to their calves, one a black cow with a red bull calf, and a red cow with a red bull calf with white markings between its front legs and with a white spot in its forehead; that neither of the calves was then branded; that in the spring of 1916 he saw the same two calves, then branded with defendant’s brand, in a field belonging to Oliver Brodoek, defendant’s father-in-law and partner in the livestock business, and that one of the calves taken by the sheriff at the commencement of this action was the red calf referred to above which he had driven from the Dana ranch the fall before.’
No difficulty is encountered in defining the term “cumulative evidence.” Section 10503, Bevised Codes of 1921, declares, “Cumulative evidence is additional evidence of the same character to the same point,” and this definition is accepted by the authorities generally. (3 Ency. of Evidence, 915, and cases cited.) It is in the application of the definition to a given state of facts, that difficulties are encountered. In Berry v. State, 10 Ga. 511, the general rules which govern a court in determining whether a sufficient showing has been made to warrant a new trial on the ground of newly discovered evidence are set forth. Those rules have been adopted by this court and reference is made to them in State v. Matkins above; in State v. Van Laningham, 55 Mont. 17, 173 Pac. 795, and in other cases. The fourth rule provides that the court must be satisfied: “That it [the new evidence] is not cumulative merely—that is, does not speak as to facts in relation to which there was evidence at the trial.” If the explanatory clause was ever intended as a definition of cumulative evidence, it is altogether too narrow. It is not the quantity or probable effect of the evidence, but its character which determines whether it is cumulative. (Sec. 10503, above; Guyot v. Butts, 4 Wend. (N. Y.) 580; 3 Ency. of Evidence, 916.)
In Waller v. Graves, 20 Conn. 305, the court said: “There are often various distinct and independent facts going to establish the same ground, on the same issue. Evidence is cumulative which merely multiplies witnesses to any one or more of these facts before investigated, or only adds other circumstances of the same general character. But that evidence which brings to light some new and independent truth of a different character, although it tend to prove the same proposition or ground of claim before insisted on, is not cumulative within the true meaning of the rule on this subject.”
With these observations in mind, the rules above adverted to may be accepted without further qualification.
It is our conclusion that the evidence contained in the affidavit of Hughes is cumulative within the meaning of our statute, not because it is corroborative of other evidence given at the trial or because it tends to establish plaintiff’s ownership to the cattle in question, but because it tends to prove that ultimate fact by the same character of evidence as that given upon the trial by plaintiff and her husband.
We have analyzed the affidavits for the purpose of determining whether there is any substantial ground for the motion, and conclude that the trial court did not abuse its discretion. In passing, we may say that plaintiff’s affidavit of diligence falls far short of meeting the requirements of the rule announced in Colbert’s Estate, above, (opinion on rehearing).
The order is affirmed.
'Affirmed.
Mr. Chief Justice Brantly and Associate Justices Cooper and Galen concur.
Mr. Justice Reynolds, being absent, takes no part in the foregoing decision.
|
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PER CURIAM.
Pursuant to motion of respondent, and for good cause shown, the appeal in the above-entitled cause is dismissed.
|
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
This action was brought to recover upon a promissory note executed and delivered by the defendant to the Great Northern Surety Company of Great Falls, and indorsed and delivered to plaintiff before maturity for a valuable consideration. The indorsement is in the following form: “J. H. Irwin, Presdt. Great Northern Surety Co., Great Falls, Mont.” It is conceded that the indorsement was made by Irwin, that he was president of the surety company, that he had authority to indorse the note for the company, and that plaintiff is a holder in due course, if the note bears the indorsement of the company, the holder at the time the transfer was made.
It is the contention of the defendant that, if Irwin intended to act in his representative capacity in making the indorsement, he failed of his purpose; that he bound himself personally, and did not bind his principal; that the added words, “Presdt. Great Northern Surety Co., Great Falls, Mont.,” are merely descriptio personae; that the special defenses pleaded are therefore available; and that the district court erred in permitting Irwin to testify that he intended to bind the com pany, and not himself, and that the consideration for the transfer passed to the company, and not to himself.
The single question presented is: Does the note bear the indorsement of the Great Northern Surety Company % • The trial court answered in the affirmative, and found the issues for the plaintiff. Defendant has appealed from the judgment and from an order denying his motion for a new trial.
By making this note, the defendant admitted the existence of the Great Northern Surety Company and its capacity to indorse. (Sec. 60, N. I. L.; sec. 5908, Rev. Codes 1907; sec. 8467, Rev. Codes 1921.) The signature of any party to a negotiable instrument may be made by a duly authorized agent (sec. 19, N. I. L.; sec. 5867, Rev. Codes 1907; sec. 8426, Rev. Codes 1921), and it is axiomatic that a corporation can act only through an agent.
Prior to the enactment of the Negotiable Instruments Law the authorities upon this subject were in hopeless confusion. Probably the majority of the courts would have answered the question here propounded in the negative, solely upon the theory that the added words are merely descriptive of Dr. Irwin, and do not indicate the character or capacity in which he acted. The rale that an appendix to the signature of a person is descriptio personae had its origin at a time when a man had but a single name, and it was necessary to individualize by employing some term to designate his occupation or rank, as, for instance, John, the miller, to distinguish him from John, the smith; but with a zeal worthy of a better cause the courts continued to invoke the rule when the reason for it had ceased, and when it was idle for John Miller to describe himself, in order that his signature might be distinguished from the signature of John Smith.
Typical of the decided cases invoking the rule just adverted to is Burbank v. Posey, 7 Bush (Ky.), 373. The instrument there involved was signed, “D. R. Burbank, Pres’t of the Henderson Coal Co.,” and it was held to impose individual liability, and not to bind the company. In Reeve v. Bank, 54 N. J. L. 208, 133 Am. St. Rep. 675, 16 L. R. A. 143, 23 Atl. 853, the note in question was signed, “Warrick Glass Works, J. Price Warrick, Prest.,” and it was held to be the obligation of the Warrick Glass Works; but the court said that if the note had been signed “J. Price Warrick, President of the Warrick Glass Works,” it would have been prima, facie the individual obligation of J. Price Warrick.
Other courts, with a higher regard for general commercial usage, would have held the indorsement now under consideration to bind the company, and not Dr. Irwin. In Slawson v. Loring, 5 Allen (Mass.), 340, 81 Am. Dec. 750, there was involved a draft at the top of which were printed these words, “Office of Portage Lake Manufacturing Company,” and the draft itself was signed, “I. R. Jackson, Agt.” It was held to be the obligation of the company, and in disposing of the question the court, through Chief Justice Bigelow, said: “No one can doubt that on bills thus drawn the agent fully discloses his principal, and that the drawer could not be personally chargeable thereon.”
In Hitchcock v. Buchanan, 105 U. S. 416, 26 L. Ed. 1078, the draft in question had printed upon the top of it the following: “Office of Belleville Nail Mill. Co.”—and was signed: “Wm. C. Buchanan, Pres’t. James C. Waugh, Sec’y-” This was held to be the obligation of the company and not of the individual signers.
Still another group of courts held that in a signature of this character there is an ambiguity, and accordingly admitted evidence to show the intention of the agent, and this rule was adopted by the early territorial court of Montana (Gerber v. Stuart, 1 Mont. 172), and applied in Knippenberg v. Greenwood M. & M. Co., 39 Mont. 11, 101 Pac. 159.
After reviewing the decisions to a much greater extent than is here attempted, Mechem in his work on Agency (section 443), says: “To extract general principles from these cases whose conflict is so great as to amount, in the language of a recent ease, almost to anarchy, is manifestly difficult.”
With this state of the law in mind, it is fair to presume that it was the purpose of the promoters of the Negotiable Instruments Law in drafting it, and likewise the purpose of the respective legislative assemblies in enacting it, to secure uniformity in the text, and, through that medium, uniformity in the construction by the courts, to the end that bills and notes— the currency of commerce—might pass through the channels of trade unembarrassed 'by any conflict of laws.
Upon the immediate subject under review, the Act speaks in no uncertain terms. Section 20- N. I. L. (sec. 5868, Rev. Codes 1907; sec. 8427, Rev. Codes, 1921) provides: “Where the instrument contains or a person adds to his signature words indicating that he signs for or on behalf of a principal, or in a representative capacity, he is not liable on the instrument if he was duly authorized; but the mere addition of words describing him as an agent, or as filling a representative character, without disclosing his principal, does not exempt him from personal liability.”
Applying that rule to the instrument before us, there does not appear to be room for a difference of opinion upon the question presented. The noté is payable to the Great Northern Surety Company, and Dr. Irwin added to his own signature words indicating that he signed for and on behalf of the company. The indorsement is prima facie the indorsement of the surety company and, in the absence of any evidence to the contrary, conclusive of plaintiff’s right to recover. To adhere to the ancient dogma that the added words are merely descriptio personae defeats the manifest purpose of the law and renders the last clause of section 20 above superfluous, if not meaningless. The addition of this clause was rendered necessary, for the rule of undisclosed principal has never applied to negotiable instruments, and cannot be applied to them without impairing their value for the purpose of circulation.
In most of the cases decided since the Negotiable Instruments Law became effective, the courts have given to this section the construction indicated. In Jump v. Sparling, 218 Mass. 324, 105 N. E. 878, the note involved was signed: “J. H. Sparling, Treas. Stratton Engine Co. David F. Bums, Pres. Stratton Engine Co.”—and it was held that these signatures bound the engine company and not the individual signers. To the same effect is Adams v. Swig, 234 Mass. 584, 125 N. E. 857. In Bank v. Ariss, 68 Wash. 448, 123 Pac. 593, the draft in question was signed, “C. J. Hicks, Agent, Ariss, Campbell & Gault,” and it was held to be the obligation of the firm and not the obligation of the agent who attached the signature. In Bank v. Jacobs, 85 W. Va. 653, 102 S. E. 491, the note in question was signed, “Winnie M. Jacobs, Exec, of Geo. M. Jacobs, deceased,” and it was held to bind the estate and not the individual. Other cases might be cited, but these suffice to indicate the general trend of judicial decisions since the Act became effective. (Brannan on the Negotiable Instruments Law, p. 70.) It is true that in a few states where the Act has been adopted the courts refuse to recognize that any change has been effected. They seek only for an ancient precedent, and, having found it, follow it blindly, content to rely upon a legal fiction though false in fact.-
Evidence was admitted upon the trial of this cause to show that Dr. Irwin indorsed the note for and on behalf of the surety company and did not intend to bind himself; that the consideration for the transfer passed to the company, and that plaintiff dealt with the company, and not with Irwin in his individual capacity. We think the evidence was immaterial, but it could not work to the prejudice of the defendant, as its only effect was to establish as a fact that which the indorsement itself established as a matter of law. If plaintiff sought to hold Dr. Irwin as an accommodation or irregular indorser, a different question would be presented, but upon this record, the right of plaintiff to recover against the maker cannot be questioned.
The judgment and order are affirmed.
'Affirmed.
Mr. Chief Justice Brantly and Associate Justices Cooper and Galen concur.
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MR. JUSTICE SANNER
delivered the opinion of the court.
The admitted facts in this case are: That from March, 1908, to April 1, 1910, the respondents, Max and Rosa Blaustein, were tenants under lease from the appellant, Pincus, of what is known as the Casino Theater in Butte. On March 1, 1909, these parties entered into another lease for the same premises to run for five years after April 1, 1910. This lease was in the usual form, except that it contained provisions to the effect that the premises should be used as a lodging-house and not otherwise, and that the lessees might make alterations as they saw fit, at their own expense, and should keep the plumbing in repair. Among the avenues through which light and air were admitted into this building were five windows in the east wall which was exposed. It was understood by all the parties that the lessees eontem plated changes and improvements in the interior and the installation of furniture in order that the premises should be suitable for lodging-house purposes. These improvements were made and the furniture was installed by the lessees. In May, 1910, Pincus bought the lots adjoining the Casino and thereafter erected thereon a two-story garage, using the east wall of the Casino as the west wall of the garage; and in July, 1910, leased the garage to Angelí & Zobell, by whom it has since been occupied.
It is alleged in the complaint, and denied in the answer, that at the time Pincus commenced the erection of the garage, the plaintiffs were enjoying a profitable lodging-house business at the Casino; that he intended to, and did, so erect the garage as to cut off the light and air theretofore furnished to the Casino on that side, and so as to admit into the Casino the noises, smells and fumes necessarily incident to the running of a garage; that the tenant of Pincus kept said garage open day and night, and the noises, smells and fumes emanating therefrom were of a character to, and did, injure the plaintiffs in the quiet and peaceable possession of the Casino, rendered it unfit for lodging-house purposes, and so disturbed the plaintiffs’ customers and lodgers that they quit, so that plaintiffs ceased to be able to conduct a profitable lodging-house business therein; that in consequence of all this, plaintiffs were evicted from the leased premises, to their damage as follows: Lost profits, $5,000; improvements rendered worthless, $4,042; furniture rendered worthless, $2,025.
The case was tried to a jury which returned a verdict for the plaintiffs awarding them damages in the sum of $9,500, and judgment was entered accordingly. Defendant presented his motion for new trial, and the trial court ordered that the same be granted unless the plaintiffs would submit to a reduction of the judgment to $3,395, in which case to stand denied. Plaintiffs accepted the condition imposed, and from the judgment as reduced, as well as from the order denying his motion for new trial, defendant Pincus has appealed.
That the jury were entirely warranted in finding for the respondents, there can be no question. The evidence in their behalf alone — and it finds material support in appellant’s case — abundantly shows that after the lease of March 1, 1909, was executed, and in contemplation of a peaceable and quiet tenure for the term thereof, they made material improvements in the Casino at a very considerable cost; that they installed furniture necessary to the running of a lodging-house and had worked up a profitable patronage. For several days prior to the -20th day of May, 1910, Pincus had made persistent efforts to get them .to surrender the lease and give up the premises, in order that he might apply them to other and more profitable uses. The following extract from the testimony of Max Blaustein will illustrate the attitude of Pincus in this regard: “Mr. Pincus came across to me and said, ‘Blaustein, I have something to talk with you. * * * I would like you to surrender the lease; turn me over the building back. * * * I will tell you the reason why. I want to build up here a garage which will bring me about $250 a month.’ I said, ‘Where will I hunt for my investments in the place?’ and he says, ‘Now, here, Blaustein, there is no use to chew the rag about; if you don’t surrender me the lease on the building, I will drive you from the place.’ I said, ‘How is that, Mr. Pincus?’ and Mr. Pincus said, ‘Now, here. You remember I told you I owned some ground east of the building.’ I said, ‘Yes, I do.’ He said, ‘I am going to buy the rest of the ground, what I need for a garage, from the Centennial Brewery, and I build up a garage and you shall know for the smoke and the noise of all automobiles and the bad odor, the only thing that was made for to allow light and ventilation, and that is the way I will drive you out of the place.’ ” Within a week after this conversation the construction of a garage on the adjoining lots was commenced. In the construction the windows in the east wall of the Casino — which formed the west wall of the garage — were not walled or boarded up but were nailed down so that they could not be moved. As to the character and effect of the noises, smells and fumes which found their way into the lodging-house from the garage, the testimony is quaint but elearly founded upon personal experience. Max Blaustein testified: “I do not know.how to explain the noise but I have seen the men getting out and cranking the machinery and then jumping in the machine and going out, and that would take only a half a minute sometimes. And then I have seen them going ahead and cranking the machine, turning it around three or four times, having a hold, of a crank or a handle in the front, then he would go and open the hinges and start to look on the inside and that thing would be working away, and there is no question about it but what sometimes the automobile it is shaking and it stands in one place and shakes, and then he goes off for a hammer or a screw-driver or some other kind of a tool to fix something and the machine stands there and raises the dickens. Of course, I could hear it when I was looking at it. I could also hear it when I was in the lodging-house on the second floor, but I won’t say I could hear it just as plain as when I was standing there looking at it. ’ ’
Rosa Blaustein testified: “I would see smoke in the lodging-house. I knew it came from the garage. This smell that was there was from the gasoline, and .there were all kinds of smells and I could hardly catch my breath when I used to go in. Sometimes I used to count the clothes for the laundryman, * * * the linen was full of gasoline and full of smoke; full of the smell of gasoline and the smoke. I heard noises while I would be in the lodging-house. Any time the automobiles would come in at night, there was all kinds of noises; the automobile horns would be blowing, and when they go out — there is [a] floor upstairs — it was clear upstairs — driving the automobiles was something terrible. And I used to stay sometimes at night in the lodging-house and used to go in the office and sometimes Bulgarians, I couldn’t make out what they want; they make all kinds of noise and I should give back their money, and sometimes they used to be upstairs, the most room, you know, upstairs, and they want I should give them back their money, they couldn’t stay.”
Joseph Blaustein testified: “After the garage was built I noticed that there was considerable noise, a smell and a peculiar odor. The noise which I noticed there was the tooting of the horns, combined with the cranking of the automobiles and the continuous loud and boisterous noise. It was the after-effect of the cranking of the automobiles. This noise was going on when I went on shift, and it would continue as long as I was there. There would be intervals between the noise. It was a very loud noise. It was plainly heard in the lodging-house and that is where I heard it. * * * The odor was a sort of nauseating, occasioning a sort of peculiar sickness of the stomach as though you were about to vomit. * * * I have noticed smoke in the lodging-house. It would be coming through the windows downstairs. As to being thick or otherwise, I will say that smoke would vary; sometimes it was thick, other times it was not. It was so that you could notice it. This continued from the time the garage was built until we finally left the place.”
Jim Mike testified: “I used to room there when the garage was built. I remained there as a lodger about four weeks after it was built and opened for business. * * * After the garage moved in there and opened for business there was a lot of noise and smell. * * * There was an awful smell of gasoline there; it was hard to stay in there on account of the smell.' * * * The effect it had upon me and the other lodgers was to make us sick and we couldn’t stand it. * * * I couldn’t get any rest there after the garage was built. * * * The reason I left there was on account of the noise and smell. I remained in the city after I left there.”
Similar testimony was furnished by other witnesses who had lodged with the plaintiffs but who were compelled to leave on account of the noises, smoke and smell from the garage; and this condition became so serious that the plaintiffs, having lost most of their patronage and being no longer able to profitably conduct a lodging-house in the Casino, were obliged to and did quit the premises in December, 1910. In the interim, however, they made complaints of the condition to Pinens and requests of him for relief, and his invariable answer, it seems, was: “Blaustein, I told you what would be the result of it”; or “Mrs. Blaustein, I told you the consequence, what it will be.”
Appellant concedes that in the lease in question there is implied a covenant for quiet enjoyment. That the circumstances disclosed by the evidence were such as to destroy the quiet enjoyment of the Casino by the respondents, were sufficient to justify them in quitting the premises and were tantamount to an eviction is too clear for discussion. (York v. Steward, 21 Mont. 515, 43 L. R. A. 125, 55 Pac. 29; Osmers v. Furey, 32 Mont. 581, 81 Pac. 345; Wade v. Herndl, 127 Wis. 544, 7 Ann. Cas. 591, 5 L. R. A., n. s., 855, 107 N. W. 4; McCall v. New York L. Ins. Co., 201 Mass. 223, 21 L. R. A., n. s., 38, 87 N. E. 582; Adams v. Werner, 120 Mich. 432, 79 N. W. 636; Lay v. Bennett, 4 Colo. App. 252, 35 Pac. 748; Tollman v. Murphy, 120 N. Y. 345, 24 N. E. 716; Northern Trust Co. v. Palmer, 171 Ill. 383, 49 N. E. 553; Fish v. Dodge, 4 Denio (N. Y.), 311, 47 Am. Dec. 254; De Palma v. Weinman, 15 N. M. 68, 24 L. R. A., n. s., 427, 103 Pac. 782.)
We are unable to appreciate the argument of appellant that because the tenants of the garage owned no machines, and the noises, fumes and smells were occasioned by the acts of private owners who merely rented stalls in the garage, there was no such privity with Pincus as to render him responsible. Doubtless it is the rule that the acts of third persons impairing the usefulness or enjoyment of demised premises do not amount to an eviction by the lessor (24 Cyc. 1132); but nothing is shown to have occurred that might not be expected to occur in a garage; the getting of the machines in and out of the garage, whether by private owners or others, was a necessary incident in the business of the garage, as was also whatever noises, smells or fumes might arise out of that process. It was to accommodate the business of a garage that Pincus designed, built and rented the building, with full knowledge of the annoyance it might cause to the respondents. It is not at all clear that all the noises, fumes and smells were generated by the acts of private owners or that the lessees of the garage were in every instance innocent of actual participation therein; bnt whether this be so or not, it would be the refinement of artificiality to hold Pincus blameless for a result so clearly contemplated and foreseen.
2. It is insisted, however, that the damages allowed were not proven. There was evidence to show that after the execution of the lease and before the disturbances complained of the respondents made important changes in the interior of the Casino, besides installing a heating plant, all of considerable cost and value; also that as the result of the operation of the garage the business of respondents was, as an instrument of profit, practically destroyed. From these two elements alone, omitting furniture, it is not difficult to compute a sum equal to, or in excess of, the amount finally allowed by the trial court. If anyone has cause to complain in this regard, it is not the appellant.
But it is urged the only evidence of damage .on account of the loss of business and profits was incompetent, speculative and remote. This has reference to the fact that as a basis of computation the court admitted evidence of profits which actually had been realized in the period of respondents’ occupancy of the premises prior to the erection of the garage. This evidence, instead of lacking the fundamentals of admissibility, was singularly complete; it disclosed a permanent business of a stable and certain character, in which the daily income and expense maintained a consistent average throughout the period from March, 1909, to July 1, 1910; commencing with July, 1910, and for no apparent cause except the garage, the income dropped to less than one-half, although no corresponding reduction in the expense of operation was possible. We think this evidence was properly admitted (First Nat. Bank of Portland v. Carroll, 35 Mont. 302, 309, 88 Pac. 1012; Snow v. Pulitzer, 142 N. Y. 263, 36 N. E. 1059; Schile v. Brokahus, 80 N. Y. 614; Kitchen Bros. Hotel Co. v. Philbin, 2 Neb. (Unof.) 340, 96 N. W. 487; Di Palma v. Weinman, 16 N. M. 302, 121 Pac. 40; Alden v. Mayfield, 164 Cal. 6, 127 Pac. 45; Mensing v. Wright, 8 Kan. 98, 119 Pac. 374), and that it fairly sustained the burden assigned to it.
In view of the above conclusions, non'e of the rulings com plained of in the admission and exclusion of evidence presents any error prejudicial to appellant. Nor do we think the given instructions which are assigned as error are open to the objections urged against them on the trial. It is also clear that under the circumstances of this case the court was correct in modifying appellant’s instructions numbered 1, 4, 7 and 17, and in refusing appellant’s proposed instructions Nos. 2, 3, 6, 9, 11, 13,15,16,19 and 20, since they were either framed on an erroneous theory or were inaccurate in phraseology, or were covered.
Rehearing denied May 3, 1913.
What is intended for an assignment of errors in appellant’s brief covers twenty-eight pages and is a potpourri of random narrative, rulings (unnumbered) of the trial court, explanatory statements and argumentative matter. This condition, counsel for respondents urge, entitles them to have the appeal dismissed, since it is unfair to them and has rendered their task of replying very difficult. An indisposition on our part to go to this length without warning has occasioned us much needless work in the effort to fairly review the trial proceedings. The rules relating to briefs, as promulgated November 20, 1911, are neither hard to understand nor laborious to follow; and we shall not again, in a similar situation, take the trouble that we have taken here to ascertain the character and value of appellant’s contentions.
Finding no prejudicial error, the judgment and order appealed from are affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
|
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MR. JUSTICE SANNER
delivered the opinion of the court.
So far as germane to the questions involved in this appeal, the substantial allegations of the complaint are: That the defendant, a corporation, is the owner of the Tzarena lode mining claim, situate partly within and partly without the corporate limits of the city of Butte; that on July 19, 1911, there was, and for more than a year prior thereto had been, a certain shaft, about forty-five feet deep, on this property, which the defendant had negligently permitted to remain ‘ ‘ open, exposed and unprotected, without a substantial cover, or any cover whatever being placed over the same, or without a tight fence, or any fence whatever, being placed around the same”; that said shaft “was approximately eight feet long and four feet wide from the bottom thereof to within about five feet of the natural surface of the ground adjacent thereto, at which point the sides of the said shaft spread outwardly until the same reached the natural surface, forming a saucer or bowl-like depression,” and around the edges of this depression, and for some distance on all sides thereof, there were wild flowers blooming; that near the Tzarena lode there were also odd and curious formations of rock which, with the flowers, formed an attraction for children; “that on the said 19th day of July, 1911, the plaintiff herein, a child of the age of seven years, who did not know of the existence of said shaft, at dusk of said day was plucking wild flowers near the mouth of said shaft, and while so doing observed a cluster of wild flowers some distance from him, which he started on a run to obtain, and while so doing and using due care and prudence, and without contributing fault and carelessness on his part, ran into the mouth of said shaft aforesaid, and was precipitated to the bottom thereof, ’ ’ sustaining the injuries for which recovery in this action is sought.
1. This complaint is attacked as insufficient because it alleges an affirmative act of the plaintiff, to-wit, that he ran into the mouth of the shaft, as a proximate cause of his injury, and does not contain sufficient allegations to negative contributory negligence. The general rule as settled in this state by the uniform course of decision is that where the complaint shows that a proximate cause of plaintiff’s injury was the act of the plaintiff himself, it will be held insufficient unless it goes further and by appropriate allegations shows that the plaintiff was, at the time, exercising ordinary care and circumspection. (Kennon v. Gilmer, 4 Mont. 433, 2 Pac. 21; Nelson v. City of Helena, 16 Mont. 21, 39 Pac. 905; Hunter v. Montana C. Ry. Co., 22 Mont. 525, 534, 57 Pac. 140; Cummings v. Helena & L. S. & R. Co., 26 Mont. 434, 68 Pac. 852; Ball v. Gussenhoven, 29 Mont. 321, 328, 74 Pac. 871; Nord v. Boston & Mont. etc. Co., 30 Mont. 48, 75 Pac. 681; Birsch v. Citizens’ El. Co., 36 Mont. 574, 93 Pac. 940; Poor v. Madison R. P. Co., 38 Mont. 341, 361, 99 Pac. 947; Montague v. Hanson, 38 Mont. 376, 99 Pac. 1063; Badovinac v. Northern Pac. Ry. Co., 39 Mont. 454, 104 Pac. 543.) Of course this rule has reference only to acts of which negligence must be predicated in the absence of a countervailing explanation.
At what age a child becomes' sui juris, so that negligence may be predicated of his acts, is a matter upon which authorities dif fer. By some it is held that a child of seven years of age is conclusively presumed incapable of contributory negligence. (Watson v. Southern Ry., 66 S. C. 47, 44 S. E. 375; Taylor v. Delaware & Hudson Ry., 113 Pa. 162, 176, 57 Am. Rep. 446, 8 Atl. 43; Chicago etc. Ry. Co. v. Welsh, 118 Ill. 572, 9 N. E. 197; Indianapolis etc. Ry. v. Pitzer, 109 Ind. 179, 194, 58 Am. Rep. 387, 6 N. E. 310, 10 N. E. 70.) However that may be, the rule in this state is that contributory negligence is not to be inferred as a matter of law, even in the ease of a much older child. (Mason v. Northern Pac. Ry. Co., 45 Mont. 474, 124 Pac. 271.) This being true, it follows that the rule invoked by appellant can have no application to the complaint at bar. But apart from this consideration, we think the averments of the age of the plaintiff; the fact that it was dusk; his ignorance of the existence of the shaft; the natural engrossment in his childish pursuit; and the general allegation that he was “using due care, and prudence and without contributing fault and carelessness on his part” — are, as a matter of pleading, sufficient to negative contributory negligence and to avoid the rule. (Birsch v. Citizens’ El. Co., supra; Poor v. Madison R. P. Co., supra; Evansville & T. H. Ry. v. Crist, 116 Ind. 446, 9 Am. St. Rep. 865, 2 L. R. A. 450, 19 N. E. 310; 1 Thompson on Negligence, secs. 375, 377, 378.)
2. Under the allegations of the complaint, the respondent was technically a mere trespasser upon the property of the appellant. (Egan v. Montana C. Ry. Co., 24 Mont. 569, 63 Pac. 831; Driscoll v. Clark, 32 Mont. 172, 80 Pac. 1, 373.) It is the undoubted rule at common law that the owner of real property owes no duty to trespassers, other than to refrain from intentional injury. Hence no right of action would arise, in the absence of statute, in favor of a trespasser who might suffer injury under the circumstances here pleaded (Driscoll v. Clark, supra) ; but every owner holds his property subject to reasonable control and regulation of the mode of keeping and use as the legislature, under the police power vested in the state, may think necessary for the prevention of injury to the rights of others and the security of the public health and welfare. (Parker v. Barnard, 135 Mass. 116, 46 Am. Rep. 450.)
The question, then, is whether or not a trespasser upon private property may recover damages for injury suffered by him while so trespassing, because of the property owner’s failure to comply with section 8535, Revised Codes. This section is found in Title X of Part I of the Penal Code, under the heading, “Crimes Against the Public Health and Safety,” and, so far as pertinent to this ease, reads as follows: “Every person who sinks any shaft * * * or causes the same to be done, within the limits of any city or town or village in this state, or within one mile of the corporate limits of any city or town * * * and who shall fail to place a substantial cover over or tight fence around the same, is punishable by a fine not exceeding one thousand dollars. The owner of any property * * * shall be deemed to be within the provisions of this Act if he permit any such shaft * * * to remain open, exposed or unprotected upon his property * * * for a period of more than ten days. * * * ” The contention is that this is a mere penal statute, providing its own express sanction, and, in the absence of appropriate language, gives rise to no civil responsibility whatever. ín answer to this we remark that there is by this statute imposed a duty positive and absolute, where none existed before; and it is the well-settled rule that failure to observe such a duty is negligence per se. (Osterholm v. Boston & Mont. etc. Co., 40 Mont. 508, 107 Pac. 499; Neary v. Northern Pac. Ry. Co., 41 Mont. 480, 110 Pac. 226; Melville v. Butte-Balaklava C. Co., 47 Mont. 1, 130 Pac. 441, 9 L. R. A. (n. s.) 339, note.) In the Melville Case, decided at the last term of this court, we said: “It is the general rule that, where a statute makes a requirement, or prohibits a thing, for the benefit of a person or class of persons, one injured by reason of a violation of it is entitled to maintain an action against him by whose disobedience he has suffered injury; and this is true whether the statute is penal or mot.” To this declaration we still adhere as in accord with the express provisions of our Code. A failure to perform an act imposed by law as an absolute duty is an unlawful omission (section 5051, Rev. Codes); and any person suffering detriment by reason of it may recover damages (section 6040, Rev. Codes).
But it is urged that this principle cannot apply in favor of one not within the purview of the statute by which the duty is imposed, and to this we assent; so that the remaining inquiry is: Does the duty imposed by section 8535 apply for the benefit of persons who may by chance be technical trespassers upon mining property ? This question, both directly and in its analogies, has been before many courts with apparent diversity of result; but no real difficulty is encountered in extracting a consistent rule out of the apparent conflict of decision, when it is observed that the various statutes involved are interpreted according to substantially this classification: (a) Those imposing duties to or for the benefit of the municipality or to the public considered as an entity. From such, statutes no private right of action arises. (Heeney v. Sprague, 11 R. I. 456, 23 Am. Rep. 502; Taylor v. L. S. & M. S. Ry., 45 Mich. 74, 40 Am. Rep. 457, 7 N. W. 728; Frontier Laundry Co. v. Connolly, 72 Neb. 767, 68 L. R. A. 425, 101 N. W. 995.) (b) Those imposing duties to persons of a particular class. To have a right of action from such a statute one must clearly belong to the contemplated class. (Osterholm v. Boston & Mont. etc. Co., supra; Toomey v. Southern Pac. R. R. Co., 86 Cal. 374, 10 L. R. A. 139, 24 Pac. 1074; Flanagan v. Sanders, 138 Mich. 253, 101 N. W. 581.) (c) Those imposing duties to the public, considered as a composite of individuals, in which ease a right of action does arise in one of the public when, and only when, he has sustained some special injury by reason of noncompliance. (Hayes v. Michigan C. R. Co., 111 U. S. 228, 239, 240, 4 Sup. Ct. Rep. 369, 28 L. Ed. 410 ; Philadelphia W. & B. Ry. v. Stebbing, 62 Md. 504, 516, 517; Sluder v. St. Louis Transit Co., 189 Mo. 107, 5 L. R. A. (n. s.) 186, 187, 88 S. W. 648; Union Pac. Ry. v. McDonald, 152 U. S. 262, 282, 14 Sup. Ct. Rep. 619, 38 L. Ed. 434.) It may be said, and perhaps correctly, that these are essentially restatements of the same thing, looked at from different angles (note, 9 L. R. A. (n. s.) 343) ; but that is unimportant. The important thing is that there are statutes such as we have mentioned under (e), and these statutes usually bear the aspect of police regulations for the protection of the public relative to matters with which the public contact is commonly through individuals, and as to which the individuals are entitled to assume that the law has been observed. (South & North Ala. R. Co. v. Donovan, 84 Ala. 141, 4 South. 142; Jackson v. Kansas C. etc. Ry., 157 Mo. 621, 80 Am. St. Rep. 650, 58 S. W. 32.) In a case relied on by the appellants (Frontier Laundry Co. v. Connolly, supra) the existence and meaning of such statutes is clearly recognized, as follows: “Wherever a statute or ordinance creates a duty or obligation, though it does not in express- terms give a remedy, the remedy which is properly applicable to that obligation follows as an incident ; but whether a liability arising from the breach of a duty prescribed by a statute or ordinance accrues for the benefit of an individual specially injured thereby, or whether such liability is exclusively of a public character, must depend upon the nature of the duty enjoined, and the benefits to be derived from its performance.” The duty enjoined by section 8535 is such that noncompliance affects the public commonly through the person or property of the individual. The benefits to be- derived from its performance inure to the public through the added safety assured to individual person and property, and. can affect the public in no- other way. That the failure to observe the requirements of such a statute will, if the proximate cause of injury, support an action even by a trespasser is sustained by an abundance of authority. (Richardson v. El Paso, C. G. etc. Co., 51 Colo. 440, 118 Pac. 982; Erb v. Morasch, 8 Kan. App. 61, 54 Pac. 323; Alabama & Va. R. Co. v. Carter, 77 Miss. 511, 27 South. 993; Chicago, B. & Q. R. Co. v. Grablin, 38 Neb. 90, 56 N. W. 796, 57 N. W. 522; Keyser v. Chicago & Grand Trunk Ry., 66 Mich. 390, 33 N. W. 867; Meeks v. Southern Pac. R. R. Co., 56 Cal. 513, 38 Am. Rep. 67; South & North Ala. Ry. v. Donovan, supra; Hayes v. M. C. R. Co., supra; Jackson v. Kansas C. etc. Ry. Co., supra.)
In further elucidation of our views of this phase of the present case we quote the language of the supreme court of Colorado from the Richardson Case, supra: “An open, unprotected shaft is a menace to life and limb. In the night-time or in a storm persons may fall into it, or children may thoughtlessly approach too near the edge and be precipitated to the bottom. Reasonable provisions, requiring an abandoned shaft to be so protected as to prevent such casualties, come clearly within the police powers of the commonwealth. * * * It is contended that plaintiffs, as well as the deceased, were mere licensees, which did not entitle either of them to the use of the dump in the immediate vicinity of the shaft, which was about 110 feet from the house; that deceased was therefore a trespasser when upon the dump and at the shaft, or, if the license extended to the immediate vicinity of the shaft, * * * the defendant violated none of its obligations growing out of the relationship of owner to licensee or trespasser. The proposition is wholly inapplicable. Plaintiffs’ action is not based upon the ground of a failure on the part of defendant to fulfill any obligation which it owed them or the deceased because they occupied a house on the Australia claim, but upon the failure of the defendant to comply with a statutory requirement, the purpose of which was to protect the public from injury, which neglect, they claim, caused the death of their son. * * * To prevent injury to the public, including children, the General Assembly has required abandoned shafts to be covered. This, as we have said, is a valid police regulation, and the failure of the defendant to perform the duty imposed by statute renders it liable in this case if the death of the boy, in a substantial sense, was caused by its failure to comply with the statute.”
3. It is contended by appellants that this case is not within the provisions of section 8535 of the Penal Code, because it was not shown that the Monidah Trust sank the shaft. The answer is found in the second portion of the section, viz.: ‘ ‘ The owner * * * shall be deemed to be within the provisions of this Act if he permit any such shaft * * * to remain open, exposed or unprotected upon his property * * * for a period of more than ten days. ’ ’ But it is urged that the words “any such shaft” restrict the application of the Act to shafts sunk after its passage. We cannot assent to this. As stated above, the section is a police regulation, and its plain meaning is that no person shall be allowed to have an unprotected shaft, either inside a city, town, or village, or outside of, and within a mile of, the corporate limits of a city or town, and this without regard to when or by whom it may have been sunk. Those who, when the section was enacted found themselves in possession of unprotected shafts so situated were given ten days’ time to cover or inclose them; those who since the section was enacted; as the result of city or town extension, find themselves similarly possessed are given a like time for the same purpose. The phrase “any such shaft” is descriptive of the nature and kind of shaft (State v. Gemmell, 45 Mont. 210, 122 Pac. 268), and means an unprotected shaft that is situated as mentioned in the first part of the section. No other construction is possible in view of the history of the statute and its obvious purpose (Richardson v. El Paso Min. Co., supra).
4. An issue was made in the pleadings as to whether the shaft in question was, at the time of the accident, within a mile of the corporate limits of Butte. One of the grounds of appellants’ motion for nonsuit was as follows: “Sixth. For the reason that the plaintiff has wholly failed to show that the defendants’ mining claim, the Tzarena mining claim, or the shaft thereon rather, was within * * * a mile of the corporate limits of the city of Butte, and for the reason that the plaintiff has wholly failed to establish the corporate- limits of the city of Butte.” We think the motion should have been granted on this ground. The only testimony bearing upon the proximity of the shaft to the city limits is that of McMahon, and nowhere does he say what the fact was at the time of the accident. He testifies entirely as of the date of trial, except that in one unresponsive answer he speaks as of the date -of his survey, which was after the accident. Moreover, while in his direct examination he says, “I know where the boundaries of the city is near what is known as the Tzarena lode claim, No. 1092, and know the city limits in that vicinity,” on his- cross-examination he nullifies this statement and the value of the map he had made by the following declaration: “I got my information as to the corporate limits of the city of Butte from ordinance No. 642 on file in the office of the city clerk.” Respondent asserts that it was not wrong, but praiseworthy, in the surveyor to secure the data for the running of his line from the city ordinance. That is not the point, and that is not what the witness said. Had there been proof by common reputation, as provided in subdivision 11 of section 7887, Revised Codes, or by other means not dependent upon ordinance 642, of the general location of the boundaries, there would then have been no harm in the fact that the surveyor, purposing to make a plat for use in evidence, consulted an ordinance to secure his detail data; but we are given to understand by the statement of McMahon that what he knew about the matter was derived from the ordinance, and he gives no other source. The ordinance itself was introduced in evidence, and it is to be noted that instead of aiding the testimony of McMahon as a source of absolute information, it shows upon its face that it did not, and could not without further proceedings, fix the boundaries as described. To -meet this respondent bears strongly upon the statement of the witness that ordinance No. 642 “went into effect” and “became operative” during the Corby administration, some four or five years before the trial; but this was a mere incidental expression of opinion by a person not shown to be qualified, upon a subject not susceptible of opinion evidence. An attempt is made to show that appellants supplied this deficiency through their witness Hobart, also a civil engineer, who said: “I examined the mining claim known as the Tzarena mining claim situated in the southwest of the city, and also examined the shaft over there which now has a fence around it.” This statement, besides being ambiguous and apropos to a mere general location, does not pretend to advise us concerning the proximity of the shaft to the corporate limits of Butte, and it will not support the inference sought to be drawn from it.
5. Since this case must be reversed, it is unnecessary to enlarge upon the other assignments of alleged error. Suffice it to say that we see no fault in the other rulings complained of, as they are presented by this record.
Rehearing denied May 17, 1913.
The discussion contained in the first part of this opinion settles adversely to appellants the contention that the evidence establishes contributory negligence as a matter of law. We are not prepared to say that, even if plaintiff had been an adult, the evidence would have shown contributory negligence so as to take the case from the jury; and certainly it did not do so as to this infant plaintiff. So, too, we think the evidence was sufficient to establish the damages with as much certainty as is requisite in this class of cases. As to whether it justified the amount awarded by the jury, we express no opinion.
Because of respondent’s failure to submit sufficient proof that the shaft into which he fell was, at the time of the accident, within one mile of the corporate limits of the city of Butte as alleged, the judgment and order appealed from are reversed, and the cause is remanded for a new trial.
Reversed and remanded.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
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MR. JUSTICE SANNER
delivered the opinion of the court.
Mandamus to the county clerk of Valley county to compel that officer to place the name of Medicine Lake upon the ballot as a candidate for county seat at a special election looking to the creation of the county of Sheridan. The peremptory writ issued after the hearing, our reasons being the same as given in the case of State ex rel. Powers v. Dale, County Clerk, ante, p. 227, 131 Pac. 670.
Upon application of the relator, it is ordered that he have of the respondent his costs herein incurred, which are taxed at $196.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
Rehearing denied May 5, 1913.
|
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] |
MR. JUSTICE GALEN
delivered the opinion of the court.
This is an action for damages for malicious prosecution. The cause was tried in Fergus county to the court with a ¡jury, and resulted in a general verdict in favor of the plaintiff for $9,000, upon which judgment was entered. The court submitted to the jury two special interrogatories, which were returned with the general verdict, and which, with the answers made thereto by the jury, are as follows:
“Should you return a verdict for damages in any sum for the plaintiff, you will answer the following interrogatories, and return with your verdict:
“ ‘Interrogatory No. 1. Did plaintiff suffer actual damages by the acts of the defendant complained of in plaintiff’s complaint? Ans. Yes.’
“If you answer the foregoing interrogatory in the affirmative, you will then answer the following:
“‘Interrogatory No. 2.' "What was the amount of actual damages sustained by the plaintiff because of the acts of the defendant? Ans. $7,000.00.’ ”
Upon motion for a new trial the court granted the same, “unless plaintiff within twenty days agree that the judgment heretofore rendered for actual damages be reduced from $7,000 to $2,000, as excessive and not justified by the evidence, making a total judgment of $4,000 and costs, with interest from the date-of judgment.”
Within the time allowed the plaintiff filed a written acceptance of the order made on motion for a new trial as follows: “Comes now the plaintiff by his attorneys and accepts the order of the court reducing judgment in the above-entitled action to $4,000, in order to avoid the granting of a new trial in said cause, and hereby excepts to the said order.”
The appeal is from the judgment as modified and from the order denying defendant’s motion for a new trial.
Ten specifications of error are assigned, the first eight of which relate to the admission of evidence over defendant’s objection. These assignments do not conform to the rules of this court (subdivision C, par. 3, Rule X, 167 Pac. x),' and with propriety they might be wholly disregarded. The rules of this court were promulgated for reasons apparent, and should be carefully followed by attorneys. They should be honored by observance rather than dishonored by breach. (Brockway v. Blair, 53 Mont. 531, 165 Pac. 455.) However, from an examination of the record, these alleged errors are found to be without merit. Although appeal is made from the judgment, the judgment-roll is not incorporated in the record, as required by statute. (Sec. 7112, Rev. Codes 1907.)
In this ease, neither the record on appeal nor appellant’s brief reflect credit on counsel for the appellant. In the alleged brief there is not an authority cited, not even a statute. Such laxity is vexatious to this court, jeopardizes the rights of clients, and needlessly increases the work devolving upon us.
The ninth and tenth assignments of error present but a single question determinative of the case on its merits, namely: Are the damages excessive 1 Prom a careful review of the testimony, we are of opinion the damages allowed by the court in reduction of. the verdict on motion for a new trial are wholly warranted. It will serve no useful purpose to review the evidence. Suffice it to say, the proof clearly establishes the commencement of a criminal prosecution by the defendant against the plaintiff by the filing of criminal complaint in the justice court of Big Spring township, Fergus county, verified by the oath of the defendant, charging the plaintiff with the crime of burglary, malice, want of probable cause, the favorable termination of the prosecution, and the resulting damage. Thus a prima facie case was established. (Stephens v. Conley, 48 Mont. 352, Ann. Cas. 1915D, 958, 138 Pac. 189.)
The plaintiff, in order to establish his case, had the burden of proving that defendant acted maliciously and without probable cause (Beadle v. Harrison, 58 Mont. 606, 194 Pac. 134), and this he did by proof quite sufficient to satisfy the jury. Malice may usually be inferred from want of probable cause (Grorud v. Lossl, 48 Mont. 274, 136 Pac. 1069; Beadle v. Harrison, supra; Martin v. Corscadden, 34 Mont. 308, 86 Pac. 33), but want of probable cause cannot be inferred from malice alone. (26 Cyc. 22-25.) However, in this case, there was independent proof of malice, in addition to that of want of probable cause. As the name implies, malice is the root of an action of malicious prosecution, yet malice alone is not enough; want of probable cause for the institution of the proceedings must be shown, so that it may be said that want of probable cause is the very gist of the action. (18 R. C. L. 33, 34; 26 Cyc. 20.) Probable cause is defined to mean reasonable ground for suspicion, supported by circumstances sufficiently strong in themselves to warrant a reasonably prudent and cautious man in the belief that the accused is guilty of the offense with which he is charged. (26 Cyc. 24; 18 R. C. L. 335.)
The defendant pleaded in defense reliance upon, the advice of the county attorney, as to which he submitted evidence, and the court correctly instructed the jury with respect thereto as follows: “You are instructed that if before signing the complaint in the court of Justice Brassey the defendant consulted Frank A. Wright, attorney at law, and at that time county attorney of Fergus county, and fully and fairly stated to him all the facts that he, the defendant, had in his possession in regard to the alleged offense of burglary by the plaintiff in this action, the said Frank A. 'Wright thereupon advised the defendant as an attorney, or as said county attorney, and that the defendant, after receiving said advice, acted thereon, and. on December 13, 1916, in good faith, relying on such advice, signed the said complaint that resulted in the arrest of the plaintiff! in this action, such advice so given and acted upon is a perfect defense to this action, and your verdict must be for the defendant.”
The rule is settled that it is a complete defense of probable cause to show that the defendant submitted to proper counsel a statement of all the facts concerning the guilt of the accused; that in good faith he received advice justifying the' prosecution, and acted on such advice in instituting the proceedings complained of. (Beadle v. Harrison, supra.)
But it must affirmatively appear that the defendant made a full and complete statement of the facts of the case to counsel, and the fact that the defendant consulted counsel before bringing the prosecution is no defense where it appears that he did not rely on counsel’s advice. (Martin v. Corscadden, supra.) In order for the defendant to avail himself of the defense of advice of counsel, it must appear that he fully and fairly presented to counsel all of the facts within his knowledge. (26 Cyc. 35.) And it is a question of fact for the jury whether the defendant fairly communicated to his counsel all of the facts which he knew or ought to have known, and whether he acted in good faith upon the advice received, where different conclusions may be drawn from the evidence. When the facts in the case, and those laid before the attorney, are all in evidence, the jury may determine whether the statement was full and fair, and whether under the particular circumstances of each case the advice of counsel is a defense. (26 Cyc. 111.) In this case, it appears plain that the defendant did not fully and fairly state all of the facts to the county attorney concerning the alleged burglary, and therefore the attorney’s advice is no defense. For instance, he did not tell the attorney that plaintiff was a tenant of his ranch property under lease, and the tenure of the lease had not expired; that the plaintiff and his family had been occupying the house for two years in connection with the lease of the ranch property; that the plaintiff had personal effects in the house; and that the defendant had locked the house with chain and padlock while plaintiff was temporarily absent therefrom. Had these facts been fully and fairly disclosed, it is reasonable to suppose that the county attorney would not have advised the plaintiff’s arrest.
“The plaintiff in an action for malicious prosecution is not confined in his recovery to the actual loss in dollars and cents he has suffered, whether in the nature of money paid out or gains prevented. He may also recover for nonpecuniary losses he sustains, and these are often the chief items in his recovery. Important in this class of damages is the injury to the plaintiff’s reputation. An accusation of crime, made under the forms of law, or on the pretense of bringing a guilty man to justice, is made in the most imposing and impressive manner, and may inflict a deeper injury upon the reputation of the party accused than the same words littered under any other circumstance. Such an injury is beyond question included in the damages given in the action for malicious prosecution, and indeed may not afterwards be recovered for in another action.” (18 R. C. L., p. 73.)
It was proper for the court to instruct the jury in this case on the subject of the allowance of exemplary damages, and proper for the jury, under the evidence, to allow the same (sec. 6047, Rev. Codes 1907; 18 R. C. L., p. 75; 26 Cyc. 1031; Luther v. Lee, ante, p. 174, 204 Pac. 365), and in this class of cases it is wholly within the province of the jury to fix the amount of damages to be awarded, compensatory as well as exemplary; and, unless its determination appears to have been influenced by passion, prejudice, or some improper motive, or unless the amount is outrageously disproportionate, either to the wrong done or the situation or circumstances of the parties, the court will not generally interfere with the verdict. In cases of an award of excessive damages, the court may, as it did in the case before us, direct the release of part of such damages, or award a new trial, in case the release is not given. (26 Cyc. 65.) In this case, the damages allowed by tbe court on motion for a new trial were fully warranted by the evidence.
The judgment and order are affirmed.
Affirmed.
Mr. Cheep 'Justice Brantly and Associate Justices Reynolds, Cooper and Holloway concur.
|
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] |
PER CURIAM.
Now onthis day comes John Jacob Jewell, and through L. A. Foot, Esq., Assistant Attorney General, presents his petition for reinstatement to the bar of this court. Whereupon, on consideration, it is found that the said John Jacob Jewell has complied with the requirements laid down at the time of his suspension relative to his reinstatement (see In re Jewell, 60 Mont. 602, 201 Pac. 266), and the necessary time having elapsed, it is .ordered that he be, and he is hereby, reinstated in his office as an attorney and counselor at law in all the courts of this state.
|
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PER CURIAM.
Pursuant to stipulation of the parties, the appeal in the above-entitled cause is dismissed.
|
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] |
ME. JUSTICE GALEN
delivered the opinion of the court.
This appeal is from an order of- the district court of Flathead county, refusing a writ of injunction. Appellants sought to enjoin the county treasurer of Flathead county from collecting, or attempting to collect, poll taxes from either of them under the provisions of Chapter 261 of the Laws of 1921, commonly referred to asothe “Bachelor’s Tax Law.” If the Act is valid, the appellant Howard K. Pierce, who is the head of a family, is subject to the payment of an annual poll tax of two dollars, and appellant Leonard E. Eiebe, being unmarried and without dependents, must pay five dollars poll tax. It is required that such exactions shall be paid to the county treasurer, and credited to the poor fund of the county.
By section 1 of the Act attempt is made to amend section 2692 of the Eevised Codes, 1907, to read as follows:
“Sec. 2692. Every male inhabitant of this state over 21 and under 60 years of age except paupers, insane persons and Indians not taxed, must annually pay a poll tax of two dollars ($2.00). In addition to the foregoing 'poll tax of two dollars ($2.00), every such male inhabitant of this state who is not the head of a family, as hereinafter defined, must annually pay an additional poll tax of three dollars, ($3.00).
“The words ‘head of a family’ shall, for the purpose of this Act, be construed to mean any person having wholly dependent upon him for support, a wife, minor child, father, mother, brother, or sister and any such male person actually living with his wife.”
The amendment is shown by the portions italicized; the other part of the section being verbatim the same language of the section before the passage of the Act. Section 2 of the Act is nothing more than a re-enactment of the provisions of section 2714 of the Eevised Codes, providing that the proceeds of the tax shall be paid to the poor fund of the county. And section 3 is the repealing clause.
Section 2692 of the Revised Codes was first enacted by the second legislative assembly, and appears as section 163, Laws of 1891, page 122. In consequence of an amendment of section 167, relating to compelling payment of poll taxes, made by Act of March 8, 1893, page 65, no reference being made to section 163, the Code commissioner evidently considered the latter section continued in force (see. 3561, Pol. Code) by implication, and it was brought forward as section 3960 of the Political Code in 1895, and thence to the Revised Codes of 1907. It is unnecessary to determine whether it was properly carried forward as a part of the Code provisions, but it is noteworthy that the same subject matter was fully covered by subdivision 5 of section 4230 of the Political Code, adopted in 1895, as respects which the constitutional objections hereinafter stated have no application. As carried forward in the Revised Codes, it is section 2894, dealing with the powers of boards of county commissioners, subdivision 5 of which empowers them “to provide for the care and maintenance of the indigent sick, or the otherwise dependent poor of the. county; erect and maintain hospitals therefor, or otherwise provide for the same; and to levy the necessary tax therefor, per capita, not exceeding two dollars, and a tax on property not exceeding one-fifth of one per cent, or either of such levies when both are not required.”
The constitutionality of the Act is questioned on several grounds, but one of which will be considered as determinative of the case, namely: Did the court err in not holding that the Act contravenes the provisions of section 5 of Article 10 of the state Constitution? That section reads as follows: “The several counties of the state shall provide as may be prescribed by law for those inhabitants, who, by reason of age, infirmity or misfortune, may-have claims upon the sympathy and aid of society. ’ ’
Were we able to limit our consideration of the Act to this specific objection, independent of other constitutional provision^ we would have no difficulty in sustaining the Act; for it is clearly an attempt to carry out by provisions of law the obligation of the several counties to care for the poor. However, the provisions of the Constitution are mandatory and prohibitory (see. 29 of Article III), and this rule applies to every part of the Constitution. (State ex rel. City of Butte v. Weston, 29 Mont. 129, 74 Pac. 415.) And its declaration with reference to the subjects upon which it assumes to speak are conclusive upon the legislature. (In re Weston, 28 Mont. 212, 72 Pac. 514.) So that of necessity we must read and consider the legislative limitation in the levy of taxes for county purposes.
Section 4 of Article XII reads as follows: “The legislative assembly shall not levy taxes upon the inhabitants or property in any county, city, town, or municipal corporation for county, town, or- municipal purposes, but it may by law vest in the corporate authorities thereof powers to assess and collect taxes for such purposes.”
The question at once arises as to whether the per capita assessment attempted to be levied by the Act is a tax. We think it is for constitutional authority is clearly conferred to levy assessment against persons as well as their property.
Mr. Cooley says: ‘ ‘ Taxes are defined to be burdens or charges imposed by the legislative power upon persons or property, to raise money for public purposes. The power to tax rests upon necessity, and is inherent in every sovereignty. The legislature of every free state will possess it under the general grant of legislative power, whether particularly specified in the Constitution among the powers to be exercised by it or not.” (Constitutional Limitations, 7th ed., p. 678.)
As to what constitutes a tax we quote the following language, with approval, from 26 Euling Case Law, pages 13, 14: “A tax is an enforced contribution of money or other property, assessed in accordance with some reasonable rule of apportionment by authority of a sovereign state on persons or property within its jurisdiction for the purpose of defraying the public expense. The exercise of the power of taxation consists of two distinct processes—the one relating to the levying or imposition of the taxes on persons or property; the other to the collection of the taxes levied. The first is constituted of the provisions of law which determine or work out the determination of the persons or property to be taxed, the sum or sums to be thus raised, the rate thereof and the time and manner of levying and receiving and collecting the taxes. It definitely and conclusively establishes the sum to be paid by each person taxed or to be borne by each property specifically assessed, and creates a fixed and certain demand in favor of the state or subordinate governmental agency, and a definite and positive obligation on the part of those taxed. The second is constituted of the provisions of law which prescribe the manner of enforcing the obligation on the part of those taxed to pay the demand thus created. It is often very important to determine whether a particular pecuniary imposition is a tax or not because the power of taxation is restricted by constitutional limitations, different from those applicable to other governmental powers, and the constitutionality of a statute imposing a pecuniary charge may depend on whether such charge is a tax or not.”
“The police power must be distinguished from the taxing power, and the distinction is this: The taxing power is exercised for the purpose of raising revenue, and is subject to certain limitations elsewhere considered, while the police power is exercised only for the purpose of promoting the public welfare, and, although this end may be attained by taxing or licensing occupations, yet the object must always be regulation and not the raising of revenue, and hence the restrictions on the taxing power do not apply.” (12 C. J. 906.)
Capitation or poll taxes are generally regarded as a proper means for raising revenue for public purposes. (37 Cyc. 766.) And the supreme court of the United States has repeatedly held that direct taxes are limited to land and appurtenances and taxes on polls or capitation taxes. (Springer v. United States, 102 U. S. 586, 26 L. Ed. 253; Hylton v. United States, 3 Dall. 171, 1 L. Ed. 556; Veazie Bank v. Fenno, 8 Wall. 533, 19 L. Ed. 482 [see, also, Rose’s U. S. Notes].)
And in applying the provisions of our Constitution to the Act in question we are not unmindful of the doctrine repeatedly announced by this court that a legislative enactment is presumed constitutional, unless the contrary appears beyond a reasonable doubt. (State v. Camp Sing, 18 Mont. 128, 56 Am. St. Rep. 551, 32 L. R. A. 635, 44 Pac. 516; and see State ex rel. Bonner v. Dixon, 59 Mont. 58-75, 195 Pac. 841, wherein many decisions of this court are collected.)
Nor do we overlook the decision of this court in the ease of Pohl v. Chicago etc. Ry. Co., 52 Mont. 572, 160 Pac. 515, directly holding that the imposition of such a per capita tax under the provisions of this very section of the Act (2692) before its attempted amendment amounts to a police regulation rather than a tax. That decision announces dicta merely, and the constitutional provisions herein applied were not considered as affecting the statute. There the Act was assailed as being violative of sections 2 and 9, Article I, of the Constitution of the United States, which declare that direct taxes, if laid, shall be apportioned among the states according to population; and with section 1 of the Fourteenth Amendment, which forbids any state to deprive a person of life, liberty or property without due process of law. Neither section 4 of Article XII of our Constitution nor its effect were considered, and the decision is not viewed by us as correct in so far as it holds such tax warranted as a police regulation.
There is nothing whatsoever in the title of the Act or in the body thereof to indicate an intention on the part of the legislature to exercise the police power of the state in the fixing of this exaction from county inhabitants for the protection'of the public health, the public morals or the public safety, and upon no basis of reasoning are we able to perceive how the Act may be properly classified as an exercise o£ the police power. The police power derives its very existence from the rule that the safety of the people is the supreme law, justifying legislation upon matters pertaining to the public welfare, the public health, or the public morals. (Ruhstrat v. People, 185 Ill. 133, 76 Am. St. Rep. 30, 49 L. R. A. 181, 57 N. E. 41; 6 R. C. L. 242; Cooley’s Constitutional Limitations, 7th ed., 837.)
The're is nothing whatsoever embraced in either the title of the Act or the body thereof to indicate an intention to exercise the police power of the state and the Act itself expressly denominates the assessment as “a tax,” and it must be conceded to have all the characteristics of a tax. It is a charge imposed by the legislature for purposes of revenue, and it is an enforced proportional contribution levied by the state for county purposes.
As further indicative that such imposition was intended as a tax, it should be noted that the parent statute (sec. 163, p. 122, Laws 1891), is embraced within a general enactment respecting revenue and taxation for state and county purposes under title “An Act Concerning Revenue.”
We are of opinion that the object of section 4 of Article XII of our Constitution was to relegate to the several counties the whole subject of taxes for county purposes, and that thereby the legislature is denied authority to impose any tax on the inhabitants of a county for county purposes. (San Francisco v. Liverpool & L. & G. Ins. Co., 74 Cal. 113, 5 Am. St. Rep. 425, 15 Pac. 380.) In view of what has been said it is not necessary to give consideration to the uniformity requirement of the Constitution. (See. 11, Art. XII.) Attempt being made by the Act to levy a per capita tax in fixed amount, to be collected by the several counties for county purposes, we must hold it to be in excess of the legislative power, and therefore void.
The cause is reversed and remanded, with directions to issue the writ.
Reversed and remanded.
Mr. Chief 'Justice Brantly and Associate Justice Reynolds concur.
Mr. Justice Holloway dissents.
|
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MR. JUSTICE' GALEN
delivered the opinion of the court.
This is an action on a promissory note, dated August 23, 1913, for $900, executed by the defendants, payable to the plaintiff on or before March 15, 1914, with interest at six per cent per annum and reasonable attorney’s fees. Across the face of the note in red ink the following appears: “Not transferable. Commission note on sale to Taylor Rutter.” By answer filed the defendants admitted the execution of the note, but alleged that it was given as evidence of the balance of commissions agreed to be paid the Wright Land & Investment Company, a corporation, on the sale of certain real estate, upon conditions which were never performed, evinced by the indorsement across the face of the note, made before its delivery, and therefore that the note is not binding or enforceable.
Upon issue joined, the case was tried by the court, a jury being expressly waived by stipulation, and resulted in findings and judgment in favor of the defendants. The plaintiff has appealed from the judgment and the order overruling his motion for a new trial.
Although several errors are assigned, but one question is presented by them, namely: Is the note in suit enforceable as against the defendants?
Execution of the note having been admitted by defendants’ answer, the court at once properly put the defendants upon their defense. From the evidence it appears that the defendant Hattie A. Bowlus was the owner of about 1,000 acres of ranch property in Fergus county, a portion of which was improved. In August, 1913, C. George Bowlus, as the agent of his wife, Hattie A. Bowlus, listed this land for sale with the Wright Land & Investment Company (hereinafter referred to as the company) to net Mrs. Bowlus $38 per acre, the company to receive as its commission any additional amount for which the land was sold. Subsequently, on August 25, 1913, the company addressed a letter to the defendant 0. George Bowlus at Scribner, Nebraska, wherein it is stated: “We have just made a deal * * ® for the sale of the south 280 acres of your land. * :S * The price we are getting for this land is $40 an acre. We are taking $1,000 in cash on the signing up of the papers and the balance of the purchase price is to be paid in cash on the first day of March, 1914, with interest at six per cent from date. Of the $1,000 cash payment we mentioned, we must have $500 and a conditional note for the balance of our commission, when the next payment is made on the 1st of March next. * * * We have a conditional deposit on this proposition pending a ratification by you and if this plan is satisfactory, we will make up the papers as soon as you wire, and we have your O.K. and send them on to you for signature, together with the $500 payment.” To this letter the defendant C. George Bowlus made reply by telegram dated August 28, 1913, reading in part as follows: “Your letter confirming sal.e two hundred eighty acres received and same accepted. Owner changes price on' balance of farm to forty dollars per acre net to her.” And on the same date as the telegram the defendant C. George Bowlus wrote a letter from Scribner, Nebraska, to the company reading in part as follows: “As I wrote you some time ago, Mrs. Bowlus said she would not sign deed less than $38 per acre—and she rather upbraided me for cutting the price in my last letter—but she will sign tbe papers closing on this tract of 280 acres. As for tbe balance of tbe farm, 720 acres, she wants $40 net to her. This will be well worth $40, too, as it carries with it all the buildings and a telephone line that cost $250, and more of the land in proportion to the whole is broke out and farmed. You should have no trouble in getting this price net to her for the balance and I trust you may be able to move it soon at these figures. Send on the papers for signatures and draft for $500. We will sign conditional note to you for the balance of Com. due you on this sale. I am expecting to leave for Alberta before long via Montana, and hope to see you and also Mr. Boyer, tenant, and arrange matters in regard to possession of the bal. of the farm if prospective purchaser desires possession.”
Following this exchange of communications, the defendant C. George Bowlus went to Lewistown, Montana, and on the afternoon of September 11, 1913, met the plaintiff, Edmund Wright, at his office in Lewistown. A form of contract for the sale of the 280 acres of land had been prepared by the company, dated August 23, 1913, which was already executed by the prospective purchaser, Taylor Eutter. The defendant G. George Bowlus then signed it (September 11, 1913), and it was then forwarded to Scribner, Nebraska, for the signature of Mrs. Bowlus, who later executed and returned it to the company. At the time Mr. Bowlus signed the contract, Mr. Eutter was not present, and Mr. Bowlus never saw him. The note in suit had been prepared and dated August 23, 1913, and, after making the red ink indorsement across the face thereof, was, on September 11, 1913, executed by C. George Bowlus for himself and his wife jointly, and delivered to the plaintiff.
At that time the company delivered to C. George Bowlus a draft for $500, payable to Hattie A. Bowlus, and took a receipt from C. George Bowlus for $500 on account of commission to be paid the company on the sale, the aggregate of these two amounts, $1,000, representing the entire amount of the initial payment made by the purchaser of the land, Taylor Rutter, although from the record it appears that, in order to consummate the transaction, the company had received from the purchaser but $50 down in cash and his promissory note for $950.
In explaining the reason why the note was executed to the plaintiff rather than to the company, the plaintiff testified: “This note upon which this action is brought, while reading to me personally, is in behalf of the Wright Land & Investment Company, which is owned by myself. It represented the balance of the commission due to the Wright Land & Investment Company, but was taken in my name.” It appears that the defendants performed their part of the contract of sale of the land in all particulars, but that the purchaser, Taylor Rutter, defaulted, abandoned the land and the contract, and that the only portion of the purchase price agreed to be paid ever made by Rutter was the initial payment for which he was credited with $1,000 at the time of the execution of the contract to purchase. It appears that the promissory note taken and accepted by the company at the time of entering into the contract with Rutter for the sum of $950, and which, as between the company and the defendants, was treated as cash, was, after considerable delay, effort and difficulties, collected by the company. The contract between the company and the defendants as shown by the correspondence, is plain, and oral evidence admitted without objection merely amplified defendants’ contention.
Irrespective of the effect of the indorsement on the note, it is plain from the listing of the property for sale and subsequent correspondence amounting to a brokerage contract, that Hattie A. Bowlus was to have through the company $35 per acre net for this land, and, as the sale was never consummated by payment made to the company, there is no obligation on Mrs. Bowlus’ part to pay the balance of the commission represented by the note in suit.
As a general rule a broker is not entitled to compensation until he has performed the undertaking assumed by him; and, in the absence of any contrary provision in his contract, it matters not how great have been his efforts nor how meritorious his services; if he is unsuccessful in accomplishing the object of his employment, he is not entitled to compensation. (9 C. J. 588.) And obviously, where a broker’s commissions are expressly conditioned upon the consummation of contract to be negotiated, it must 'be performed by the parties thereto to warrant the broker in recovering his remuneration. (4 R. C. L. 311.) The word “net” to the owner in such contract means that the broker’s commission is to be paid out of the amount received through him only upon payment of the full amount of the purchase price. The vendee must carry out his contract to purchase as to payment, and the overplus above the “net” to the owner is the broker’s commission. “Where one states to a broker that he will sell land for a certain sum ‘net’ to him, the broker on procuring a purchaser is entitled to no commission unless the sum received exceeds the specified net price; the word ‘net’ meaning that which remains after deducting all charges and outlay.” (Wolverton v. Tuttle, 51 Or. 501, 94 Pac. 961; see, also, Floral Creamery Co. v. Dillon, 83 Conn. 65, 75 Atl. 82; Munroe v. Taylor, 191 Mass. 483, 78 N. E. 106; Burnett v. Potts, 236 Ill. 499, 86 N. E. 258; Ford v. Brown, 120 Cal. 551, 52 Pac. 817; Beatty v. Russell, 41 Neb. 321, 59 N. W. 919.)
As applied to the ease before us, the use of the word “net” in the brokerage agreement meant that the broker would be entitled to anything received on sale of the lands in excess of the sum named as “net” to the.owner, and, nothing having been received by the broker in excess of such “net” amount due the owner, the broker is not entitled to commissions, even though, at the time of the execution of the brokerage contract, or shortly thereafter, the commissions to be paid were represented by a promissory note of character such as that given in the case before us. It seems plain that, if nothing is received under sucb a contract in excess of the “net” sale price, the broker can make no valid claim for commission. The note sued upon represents the amount that was to be paid by Butter in excess of the net amount of thirty-five dollars per acre due the owner; and it is clear that it was not to be due or collectible until final payment for the land made by the purchaser. The giving of the promissory note does not change the rule as between the parties. On its face, it appears to be a commission note, and not transferable. It gave to neither the company nor the plaintiff any greater rights than were possessed under the brokerage contract. Both were part of the same transaction, the obligation of the note depending upon performance of the contract for the sale of the land, and they must be considered and construed together. The company, in advising the defendants of the fact that the sale had been made, and asking to have the listing terms of sale varied so that, as to the tract of land in question, Mrs. Bowlus would receive thirty-five dollars per acre net, instead of thirty-eight dollars per acre net, and the company allowed and paid on account one-half of the $1,000 paid down, and be given a “conditional note” for the payment of the balance of its commissions “when the next payment is made on the 1st of March next” (afterwards on September 11, 1913, the date of the execution of the note changed to March 15th), and acceptance thereof by defendants, made plain the terms of the brokerage contract on the sale of this tract of land to Taylor Butter. The conditions of the contract have not been performed, and the plaintiff is without right of recovery. He stands in no different position than the company.
It is noteworthy that, on quite a similar state of facts, this court, in the ease of Wright Land & Investment Co. v. Even, 57 Mont. 1, 186 Pac. 681, came to a like conclusion; it being there held that a real estate broker under contract with the land owner to sell the latter’s property for a commission is-not entitled to commission until the broker has produced a buyer, ready, willing, and able to complete the purchase in accordance with the terms agreed upon.
'The findings of the court are amply supported by the evidence, and the judgment should not be disturbed. Accordingly the judgment and order are affirmed.
Affirmed.
Mr. Chief Justice Brantly and Associate Justices Cooper and Holloway concur.
|
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] |
Opinion:
PER CURIAM.
On October 29, 1919, on application of the relatrix, the district court of Lewis and Clark county issued an alternative writ of prohibition in a case pending before defendant as justice of the peace, entitled “State of Montana v. Octavia Lalonde,” and requiring him to show cause on the following day why he should not be restrained absolutely from retaining jurisdiction in the action and from proceeding fur-other therein. Upon defendant’s return and after a hearing thereon, the court entered an order in its minutes directing the peremptory writ to issue, but did not render and cause to be entered a final judgment.
By reference to the provisions of the Revised Codes relating to the issuance of writs of mandamus and prohibition (sections 7213-7230), it will be found that the application in each case must terminate in a final judgment awarding the writ or denying it. Section 7098 enumerates the judgments and .orders from which appeals may be taken. No provision is made by it for an appeal from an order granting or denying the peremptory writ. An appeal is allowed only from the final judgment—that is, the formal judgment by which the application is finally determined. The effort of the defendant to bring the proceeding into this court for review by appeal from the order was entirely abortive. The attempted appeal is therefore dismissed.
Dismissed.
|
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] |
MR. COMMISSIONER OLAYBERG
prepared the following opinion for the court:
This is an appeal from a judgment entered in the court below upon the default of defendants for not appearing and answering-summons.
' Error is charged in the ruling of the court denying a motion to quash service of summons, in allowing default to be entered pending this motion, in striking defendants’ answer from the files, in refusing to set aside the default, and in entering the judgment. The judgment roll, with the proper bill of exceptions, constitutes the record upon appeal.
■' The chronological order of the various steps in the court below is as follows: On December 9, 1902, Mantle filed a cbmplaint against George J. Casey, F. T. McBride, T. M. ILodgens, Lulu Largey, James M. Forbis and Charles Mattison, for the purpose of quieting his title to the south fifty feet of lots 1, 2, 3 and 4 of block 17, in the original townsite of Butte. Summons was issued and served upon defendants McBride, Casey, Forbis and Mattison on December 9th. A copy of the complaint was served upon McBride alone. Summons was served on defendant ILodgens on December 10, 1902, and returned as to the defendant Largey as not found. On December 27, 1902, defendants Hodgens and McBride severally filed their disclaimers, and alleged that they had no interest in the property described in the complaint. On December 29th defendants Casey, Forbis and Mattison filed a motion to qnash the service of summons “for the reason that same was not served in accordance with the provisions of Section 635 of the Code of Civil Procedure of the state of Montana, and said service was not made as required by the laws of Montana.” This motion was based upon the return of the sheriff indorsed upon said summons, and the papers and records of the case. It was noticed for hearing on January 5, 1903. On this date the court continued the hearing until January 10, 1903. On January 9, 1903, plaintiff’s attorneys filed a praecipe with the clerk for the entry of default of defendants Casey, Forbis and Mattison for “having failed to either appear or answer the complaint within twenty days after service of summons,” and default was duly entered on the same day. The hearing of the motion to quash the service of summons was continued until the 2dth day of January, 1903, when it was argued and submitted. The court took the same under advisement until February 10, 1903, when the motion was denied. After the motion to quash was denied, and after the entry of their default, defendants Casey, Forbis and Mattison served and filed their separate answer. On the 11th day of February, 1903, plaintiff applied to the court to set the time for hearing proofs on the said default, and the defendants Casey, Forbis and Mattison gave notice of intention to move the court to set aside the default, and that matter was taken under advisement by the court. On the 12th day of February, T903, counsel for plaintiff moved to strike said defendants’ separate answer from the files, and the said defendants Casey, Forbis and Mattison moved the court to set aside the default entered against them. All these matters were then set by the court for hearing on the 18th day of February, 1903. This hearing was postponed to February 25, 1903, ánd on that day defendants Casey, Forbis and Mattison filed their amended motion to set. aside the default, which was supported by affidavits of James "W. Forbis, John Lindsay, George Casey and F. T. McBride. The amended motion was set for hearing on the 3d day of March, 1903. On this last-named day the affidavit of E. 33. Howell was filed by the plaintiff in opposition to the affidavits filed by defendants upon the motion to set aside the default. The motion to set aside the default was argued on the 3d day of March, and taken under advisement by the court. Afterward, and on the 4th day of March, at a time when defendants and their attorneys were absent from the court, the court made an order by which it overruled the motion to set aside the default, and sustained the motion to strike defendants’ answer from the files. On the 14th day of March, 1903, the court, after hearing plaintiff’s proof, entered judgment in favor of plaintiff according to the prayer of the complaint.
1. Motion to Quash the Service of Summons. Section 635, Code of Civil Procedure, provides that “a. copy of the complaint must be served with the summons, unless two or 'more defendants are residents of the same county, in which case a copy of the complaint need only be served upon one of such defendants.”
The return of the sheriff shows that he served the summons upon defendants Casey, Eorbis, Mattison and Hodgens, and that he served the summons and a copy of the complaint on defendant McBride. The service upon all these defendants having been made in the same county, the return of the sheriff was not required to show that they were all residents of that county. In the absence of a showing to the contrary, it is presumed that they were. (Calderwood v. Brooks, 28 Cal. 151; King v. Blood, 41 Cal. 314; Pellier v. Gillespie, 67 Cal. 582, 8 Pac. 185.)
The service was therefore sufficient as to defendants Casey, Eorhis and Mattison, if McBride rvas a proper party defendant. Appellants insist that he was not. Section 581, Code of Civil Procedure, provides that “any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff.” The action was one to quiet title, and the allegations of the complaint as to all of the defendants are, “on information and belief, that defendants wrongfully claim some interest or estate in said real estate and premises belonging to plaintiff adverse to plaintiff.” Appellants insist that defendant McBride was not a proper party defendant, because on the 27th day of December, 1902, he filed a disclaimer of any interest in the premises, and that therefore the service of a copy of the complaint on him was insufficient for service of summons on the other defendants. A portion of this disclaimer seems very pertinent to the matter under consideration. It is as follows: “Denies that he claimed any estate or interest in said property at the time of the commencement of this suit or at any time since.” lie may have held or claimed such interest prior to the commencement of the suit and prior to the preparation of the complaint; hence he could have properly been made a party defendant under the statute.
We recognize the doctrine that a party will not be allowed to make persons parties to a suit, who are not necessarily or properly defendants, for the fraudulent purpose of gaining jurisdiction over the matter involved, in a particular court, and thus obtaining the right to serve summons upon defendants in other counties who are proper parties, as is disclosed by the cases cited in appellants’ brief. The record contains no intimation of bad-faith on the part of respondent, or of any fraudulent intent on his part to compass the purposes indicated in appellants’ authorities or otherwise. He may have believed, and doubtless did believe, that defendant McBride was a proper party deJ fendant. It was quite important, in this character of suit, to bring in as defendants all persons who claimed an adverse interest in the premises, so that plaintiff’s title might be fully quieted in the one suit. He would obtain as substantial relief against any defendant disclaiming any interest in the property as he would by final decree against those who contested the suit'. McBride was a party defendant, and the summons issued upon the filing of the complaint was delivered to the sheriff for service. Section 635 was the sheriff’s guide as to the manner in which service was to be made. He followed the statute. The-statute was not intended to impose the burden upon a sheriff of selecting a defendant Avho is a proper party, upon whom to serve, the copy of the complaint. In cases within the exception provided in Section 635, Code of Civil Procedure, he may serve a copy of the complaint upon any defendant named therein. We are satisfied that the service of summons was regular in every regard, and that the court committed no error in overruling the motion to quash.
2. The Entry of the Default. Counsel for appellants strenuously contend that the motion to quash the service of summons, and the special appearance of certain defendants for that purpose, prevented the entry of the default of such defendants for want of appearance or answer in obedience to the summons. In other words, they contend that the special appearance on the motion to quash the service of summons extended the time for general appearance and answer until such motion was disposed of. We cannot agree with this contention.
/Under the statute (Section 632), summons must be directed to the defendants, which must command them to appear “within twenty days after the service of this summons, exclusive of the day of service; and in case you fail to appear or answer judgment will be taken against you by default for the relief demanded in the complaint.” Section 1020, Code of. Civil Procedure, provides: “Judgment may be had if the defendant fails to answer the complaint, as follows: (1) * * * (2) In other actions, if no answer has been filed with the clerk of the court within the time specified in the summons, or such further time as may have been granted, the clerk must enter the default of the defendant; and thereafter the plaintiff may apply to the court for the relief demanded in the complaint.”
Here is a positive statutory provision requiring parties to answer the summons within twenty days after the date of service, and, if they do not do so, it is the duty of the clerk to enter their default. We find no statute which provides that the filing of a motion to quash service of summons shall operate as a stay of proceedings in the case; or as an extension of the time allowed by law to appear or answer after service of the summons. We find no case in any of the reported authorities under statutes like ours which holds such doctrine, and counsel for appellants, in their brief, seem to have been unsuccessful in that regard, because no authority whatever is cited upon that particular point. On the other haud, however, we find authorities distinctly and unequivocally holding that a motion to quash service of summons does not extend the time to appear or answer. The most pointed case which has come under our observation upon this point is that of Higley v. Pollock, 21 Nev. 198, 27 Pac. 895. In that case the defendant made a motion to quash'the service of summons, and failed to enter his appearance or answer in the case within the statutory time. The attorneys for plaintiffs caused his default to be entered. ITe afterward made a motion to open the default on the ground and for the reason that the default had been entered while the motion to quash the service of summons was pending and undisposed of. This was refused. The court, referring to the statute of Nevada as to the entry of default, and citing the cases of Shinn v. Cummins, 65 Cal. 98, 3 Pac. 133, and McDonald v. Swett, 76 Cal. 258, 18 Pac. 324, says: “The action of the judge of which the appellant complains was right. There having been no such appearance as the statute requires, on the part of the defendant in the action, his default was properly taken.” The cases of Shinn v. Cummins and McDonald v. Swell, cited by the court of Nevada, are also directly in point. See, also, the following cases: Garvie v. Greene, 9 S. D. 608, 70 N. W. 847; Loring v. Wittich, 16 Fla. 617; Greenfield v. Wallace, 1 Utah, 188. We therefore conclude that the default was properly entered, and that the motion to quash the service of summons did not extend the time for appearing or answering in the suit.
3. Striking the Answer from the Piles. This answer was served and filed over a month after the default was entered. It was therefore irregularly on the files, and placed there without authority of law. With their default standing, they had no right to file any answer. The proper practice would have been to have made a motion to set aside the default and obtain leave to answer, tendering their answer with the motion. This is too clear to require a citation-of authorities. In.fact, counsel for appellants do not seriously press this alleged error.
4. Refusal to Set Aside tbe Default. Tbe motion to effect this purpose was made on February 14th, and amended on February 25th. It recites that it was made “for the reason that at the time of the entry of said default by the clerk said defendants had appeared in said action, and there was then pending in said court a motion on the part of said defendants to vacate, set aside and quash the service of summons herein upon them, and said motion had not been disposed of at th.e time of entry of said default, and upon the grounds of surprise, inadvertence, and excusable neglect on the part of said defendants in not making further or other appearance in said action before said default was entered,” and “upon the records of a meritorious defense at law in said action, if permitted to answer therein,” and “upon the records of this court, and the affidavits of George H. Casey, John Lindsay, James W. Forbis and F. T. McBride, hereto attached.” The bill of exceptions recites that the answer tendered with the motion was a duplicate of the one filed on February 11, 1903.
No such inadvertence, surprise or excusable neglect as is contemplated by Section 114, Code of Civil Procedure, concerning the want of appearance or failure to file answer within the time limited by statute, is shown in any of the affidavits; but it is disclosed that appellants’ attorneys believed that, by the rules and practice of the trial court, the filing of the motion to quash the service of summons would prevent an entry of any default against them until such motion was decided by the court, and, if this decision was against the motion, the court would then permit them to answer. The attorneys make affidavit to this effect, and the affidavit of John Lindsay, an' ex-judge of said court, was also presented, wherein it is stated that this had always been the practice of the court. No rules of court in that regard were shown, and no particular instance in'which this procedure was followed. Defendant Casey sets forth that he was advised by his attorneys that no answer need be filed or appearance made until after the determination of this motion.
It is immaterial whether such practice had been recognized or followed, or whether rules iu that regard had been adopted. Courts cannot establish rules or recognize a practice which is contrary to that prescribed by the statute. Defendants’ attorneys were charged with knowledge of the practice provided by this, statute; Their failure to appear or answer was not caused by surprise, inadvertence or excusable neglect, but by a misunderstanding of the law. "Ignorantia legis neminem excúsate A, mistake in the law is not such excusable neglect, inadvertence or surprise as will be sufficient to set aside a default. (Chase v. Swain, 9 Cal. 130.)
5. The Entry of the Judgment. No errors can be alleged as to the entry of the judgment, other than those heretofore considered. The complaint stated a cause of action, and defendants did not appear in season. Their default was regularly entered, and an application made to the court for the hearing' of plaintiff’s proof, which was granted, and the proof heard. The judgment entered is in accordance with the prayer of the complaint, and no error can be predicated upon this entry.
Summons was served on the 9th day of December, 1902, on all the defendants who appeal. They did not move to quash the service of summons until on the 29th day of December — the last day allowed by the law for their appearance in the case. ITad they acted speedily, and immediately made their motion, it might have been determined by the court prior to the expiration of the time for answer.
We do not find any error in the record, and therefore' advise that the judgment be affirmed.
Per -Curiam. — Eor' the reasons given in^the foregoing opinion, the judgment is affirmed.
|
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MB. CHIEF JUSTICE BBANTLY
delivered the opinion of the court.
This action was brought to determine plaintiff’s right to the use of 100 inches of water in Cotton Wood creek, in Gallatin county, Montana, together with a certain ditch conveying the same to and upon plaintiff’s land, to-wit, the northwest quarter of section 20, township 3 south, of range 5 east of the Montana meridian. The defendant Tenor a Herron is the owner of the southwest quarter of section 17 of the same township, and the defendant Walter Buzard is the owner of the northwest quarter of the same section. William Herron, the deceased husband of Tenora Herron, in 1878 made a timber culture entry of plaintiff’s land. This claim he relinquished in 1881. In 18S2 he made a desert entry of it, which was, upon relinquishment by him, canceled by the department in 1885. On the same day Joseph Herron, a brother, made a declaratory statement for it as a pre-emption claim, and finally secured a patent by cash entry in 1887. In 1889 Joseph Herron conveyed it to his brother William Herron by warranty deed, “together with all tenements, hereditaments, appurtenances, water rights and water ditches to the same belonging, and all the estate, title interest, claim or demand of said party of the first part therein.” By a similar deed William Herron and his wife, a few days before the death of the former, in 1891, reconveyed to Joseph Herron. In 1892 Joseph Herron and wife conveyed to one John Hays. In 1895 John Hays and wife, Joseph Herron and wife joining in the deed, conveyed to plaintiff. These latter three déeds contained a clause substantially the same as that in the deed from Joseph to William Herron. Prom 1878 to the time of his death, William Herron was also in possession of the west half of section 17, and cultivating it. The southwest quarter being within the terms of the grant by the United States to the Northern Pacific Pailroad Company, the title to it was secured by him by conveyance from that company. He held the northwest quarter under a contract from the railroad company, but, by reason of a settlement made upon this quarter by one Towne prior to the talcing effect of the grant, it was held by the land department that it was excluded from the grant and remained open to settlement under the laws of the United States. This holding was the result of a contest with the railroad company by Lenora Herron after the death of her husband. She was granted a preference right to enter it as a homestead. This she relinquished in favor of the defendant Walter Buzard, a son-in-law, who obtained patent for it as his homestead. His settlement was made in 1896, and final entry in 1901. By an order .of the district court of Gallatin county, Lenora Herron had set apart to her the southwest quarter of section 17 as her probate homestead. Subsequently, in 1897, the heirs of William Herron by-deed relinquished all their interest to Lenora Herron, with 200 inches of water in Cotton AYood creek, described as appurtenant to the land, with the ditches-conveying the same. A few days afterwards Lenora Herron by deed conveyed to defendant Buzard the right to use 100 inches of the same water.
In the spring of 1882 AAhlliam Herron constructed a ditch from Cotton Wood creek to and over all these lands. The creek runs in a northwesterly direction through the southwest quarter of section 17. Host of this quarter section and also of the land of the plaintiff is upon the bench, and, in order to convey -water to this portion of it, the ditch was constructed from a point on the creek some distance above, and passes almost entirely around the plaintiff’s land in such a way as to make it convenient to irri gate the plaintiff’s land from it. In 1883, owing, probably, to the fact that all the water in the creek during the irrigating season had already been appropriated, and also to the fact that the ditch could not be used on the lands on the north side of the creek, including a part of the southwest quarter and all of the northwest quarter of section 17, William Herron purchased an undivided one-third interest in a ditch on the north side of the creek known as the “Brown Ditch,” and the water conveyed thereby, amounting to 600 inches. In the record this water right is referred to as the “Boy Hunter water right,” and is the one in which the plaintiff claims an interest to the extent of 100 inches. The 200 inches thus acquired'had been appropriated by Hunter by two different diversions, one in 1870 and the other in 1878, thus making Herron’s right, according to the record, date one-half from 1870 and the other from 1878. It was the latter right which the defendant Leonora Herron conveyed to Buzard in 1897. From and after its purchase William Herron used the water from his own ditch on the south side, or from the Brown ditch and other ditches from the north side, as best suited his purposes.
The complaint alleges, in substance, that the water right in question, to the amount of 100 inches, together with the ditch constructed by William Herron in 1882, belongs to plaintiff as an appurtenance to his land; that the water is necessary to make the land productive; and that it has been continuously used for agricultural purposes by the plaintiff and his grantors since its acquisition by the said Herron. It is further alleged that the defendants assert some interest therein adverse to the plaintiff; that in July, 1901, without right, they diverted it away from the ditches of the plaintiff and deprived him of the use of it, and that they threaten to continue this diversion^ to the irreparable injury of the plaintiff.
The defendants filed separate answers denying that the ditch and water right claimed by the plaintiff are or ever were appurtenant to the lands of the plaintiff, or that the plaintiff or his grantors or predecessors in interest ever used the ditch in con troversy and the waters conveyed therein to the amount of 100 inches, or any amount, to irrigate plaintiff’s lands, except by permission of the grantors and predecessors of the defendants, or that the plaintiff or his predecessors ever had any right to the use of said water in any amount. As affirmative ground of relief, they then allege title to their lands respectively, and allege that it is necessary to use all the water thereon in order to make them- productive; that "William Herron made continuous and uninterrupted use of it upon the lands of the defendants from the date at which he acquired it down to the date of his death; and that from that time down to the bringing of this action they themselves had been making continuous and uninterrupted use of it.
The court found the issues for the defendants, and entered judgment accordingly. From the judgment and an order denying' him a new trial, plaintiff has appealed.
Plaintiff seeks a reversal of the judgment upon the grounds (1) that the evidence does not support the findings; (2) that the findings do not support the judgment, and (3) that the court erred to his prejudice in the admission of certain evidence.
The controversy between the parties is indicated by the synopsis of the pleadings, and presents the sole question: Did the interest claimed by plaintiff in the Herron ditch and Hunter water right pass to the plaintiff under the conveyances from Joseph Herron and his grantees to the plaintiff as an appurtenance to his land ?
William Herron was never vested with the legal title to this land until he took under the conveyance from his brother Joseph. He then took it with such rights appurtenant thereto, and only-such, as Joseph had. Joseph had no right in the water whatever, for there is nothing in the evidence tending to show that he had obtained any interest theretofore by virtue of any contract or agreement made with William at the time of his settlement upon the land or at any time thereafter. William abandoned his inchoate rights in the land in the year 1885. Put the presumption, if any, which might otherwise be indulged in, that he intended also to abandon his right to the water, is overturned by the fact, conceded by all parties, that he used it continuously down to the date of his death. Indeed, plaintiff’s assertion of his right is founded upon the fact of such use by William Herron, and, if it be conceded that William Herron abandoned his right to the water at the time his desert entry was canceled, he thereafter had no title which he could convey, and the plaintiff’s right, in so far as it is based upon his appropriation, must fail. When he permitted his desert entry to be canceled, he was still in possession of the west half of section 11, and this, under the evidence, required the use of the water to render its cultivation possible. So that, assuming the fact to be, as plaintiff claims, that the ditch of 1882 was constructed for the purpose of reclaiming plaintiff’s land, and that the interest in the Hunter right was purchased in order to effect this purpose, yet this fact does not establish the plaintiff’s claim, when considered in the light of his subsequent conduct and the assertion of the right by William Herron to the exclusive use of the water up to the time he acquired Joseph Herron’s title.
Section 1882 of the Oivil Code recognizes the right of an appropriator or owner of a water right to change the place of diversion, as well as the use and the place of use. It therefore does not follow that, because water has been appropriated for a particular use, it forever thereafter must be applied to that use. “The legal title to the land upon which a water right acquired by appropriation made on the public domain is used or intended to be used in no wise affects the appropriator’s title to the water right, for the bona fide intention which is required of an appropriator to apply the water to some useful purpose may comprehend a use upon lands and possessions other than those of the appropriator, or a use for purposes other than those for which the right was originally appropriated. Section 1882, Civil Code; Nevada Ditch Co. v. Bennett, 30 Ore. 59, 45 Pac. 412, 60 Am. St. Rep. 777.” (Smith v. Denniff, 24 Mont. at page 29, and page 401, 50 Pac., 81 Am. St. Rep. 408.)
The evidence shows- that, during most of the years subsequent to the settlement by Joseph Herron in 1885 until the death of William, the latter rented the land from his brother, and used a portion of the water upon it. What portion was thus used is not made to appear. But this evidence does not furnish any ground for the inference that William Herron intended to make it, or any part of it, appurtenant to the land. If this could be so, then by using a water right upon leased lands the owner would incur the risk of losing it. The right was originally acquired upon the public domain. If the title to the land in no wise affects the title to the water right, the fact that it has been used at this or that place, or upon particular land, will, not of itself determine its character as an appurtenance. “One who asserts that a water right and ditch are appurtenant to certain lands has the burden of proving that they are appurtenances, and must connect himself with the title of the prior appropriator.” (Smith v. Denniff, supra.)
The right of the plaintiff must therefore depend upon the interpretation to be -given to the deeds furnishing the chain of title from William Herron to the plaintiff, for, as we have seen, the use of the water had not become appurtenant to plaintiff’s land prior to the date of Joseph Herron’s deed to William Herron. This deed purported to convey, and did convey, all rights which were appurtenant. (Sweetland v. Olsen, 11 Mont. 27, 27 Pac. 339; Tucker v. Jones, 8 Mont. 225, 19 Pac. 571; Kimpton v. Jubilee Placer Mining Co., 16 Mont. 379, 41 Pac. 137, 42 Pac. 102.) But the right in question, being the exclusive property of William Herron, -was not affected by it.
What rights, therefore, does the plaintiff appear to have acquired in the water under that deed, in the light of the facts as they then existed, and the behavior of the parties with reference to it down to the commencement of this action ? This deed does not, nor does any of the others following it, describe any particular right. They only purport to convey such rights as were appurtenant. The evidence tends to show that William Herron used the water upon the Joseph Herron (the plaintiff’s) land during the time he held title to it, just as he did during the years when he was renting it. After the execution of the deed, and down to the commencement of this action, his widow used it upon the west half of section 17 until she relinquished the northwest quarter to the defendant Buzard in 1897, and that thereafter she and Buzard used it exclusively upon the same land. Buzard claimed his right under his deed from the widow. The evidence, it is true, is somewhat conflicting, and some of the witnesses testify that the plaintiff and his predecessors and tenants have used it continuously from the date at which William Herron executed the deed. The findings of the court, however, we think are fully justified by all the facts appearing in evidence, and should not be disturbed.
Without attempting to analyze the evidence and to state in detail our reasons for this conclusion, rve shall briefly refer to one fact which seems to us significant. In 1890, just after the deed executed by Joseph Herron to his brother William, the latter, with others, brought an action to have the relative priorities to the rights in the water of Cotton Wood creek settled and determined. This action resulted in a decree under which William Herron was adjudged to have the' title to the use of 100 inches by an appropriation made in 1870, and 100 inches by an appropriation made in 1878. Thereupon the parties employed a ditch tender to distribute the water during the irrigating season in accordance with the terms of the decree. This ditch tender, was a witness, and testified that, from the date of the decree until the bringing of this action, he had distributed the water from year to year until the bringing of this action, awarding the 200 inches in controversy here to William Herron and to the defendants as his successors, and that the use made of any part of it by the plaintiff or his tenants, or any of his predecessors under the deeds subsequent to William Herron’s deed to Joseph, was by permission of William Herron or the defendants. This exclusive use of the water by the defendants during all the years from 1891 to 1901, when this action was commenced, together with the fact that in the meantime neither plaintiff nor John Hays, his immediate predecessor, asserted any right to it, justifies the conclusion that plaintiff’s claim is not well founded.
The findings of the court upon the evidence are very full. Some of them are immaterial. This fact, however, does not impair the effect of such as are material and upon the issue actually involved in the controversy. The findings upon the material issue fully sustain the judgment.
The particular items of evidence of the admission of. which complaint is made are alleged-declarations made by William Herron, at the time he executed the deed to Joseph, that there was no water right appurtenant to the land conveyed, and that he did not intend to convey any water right, and also certain testimony by Joseph Herron that he never had or claimed any interest in the Hunter water right. It is urged that this testimony was incompetent and prejudicial to the plaintiff. Without pausing to determine the question whether the evidence was in fact incompetent, but assuming it to be so, we do not think its admission sufficient to warrant, a reversal of the judgment. This is an equity case, and was tried by the court sitting without a jury. In such case the result will not be overturned merely on the ground that some irrelevant or incompetent evidence was admitted at the hearing. In such case, if the incompetent evidence is so .unimportant and trifling, as compared with the competent evidence, introduced and considered, that it^ is apparent that the result reached was probably not based upon the incompetent evidence, it will be presumed that such evidence was disregarded by the court when it came to make its findings. (Cobban v. Hecklen, 27 Mont. 245, 70 Pac. 805.) But, conceding that the trial court was probably influenced in its conclusions by the evidence alleged to be incompetent, yet this court is authorized by the Act of the Second Extraordinary Session of 1903 (Laws Second Extra. Sess. 1903, Chapter I) to review and determine all the questions of fact as well as of law in equity cases, and to render such judgment therein as the cir cumstances may justify,, if upon the record it appears that it is not necessary to remand the cause for another hearing. It appears from this record that the parties had ample opportunity to introduce, and probably did introduce, all the evidence applicable, and that a hearing of other evidence is not necessary in order finally to settle and determine the rights of the parties. Excluding the evidence complained of, and weighing the remainder of it in the record in order to determine the rights of the parties thereon as an original proposition, we think that the findings of the trial court should not be disturbed, as the evidence preponderates in favor of the conclusions reached by it.
The judgment and order are affirmed.
Affirmed.
Mr. Justice Holloway, being disqualified, takes no part in this decision.
Rehearing denied.
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ME. JUSTICE HOLLO WAY
delivered the opinion of the court.
This is an action in claim and delivery, brought by Emanuel Gallick against Thomas J. Bordeaux, a constable of Silver Bow county, and John E. Bordeaux and A. H. Barrett, the sureties on the official bond of such constable.
The complaint alleges that on May 15, 1395, the plaintiff was the owner- and entitled to the possession of a certain stock of goods consisting of wines, liquors, cigars, tobaccos, etc., contained in a certain saloon in Butte; that on that day the defendant Thomas J. Bordeaux, a constable, unlawfully seized and took possession of the goods above mentioned under a writ of execution issued from a justice of the peace court in an action ■wherein one Cooney had obtained a judgment against one Bordoni; that the constable seized the goods above mentioned as the goods of Bordoni, and not otherwise. The value of the goods seized is alleged to have been $SG8.02, and the prayer of the complaint is for the.return of the goods, or for $868.02, their value, and for $1,000 damages for their wrongful seizure and detention. The complaint also contains this averment: “Plaintiff further alleges that the talcing and detention of the said goods and chattels hereinabove mentioned by the said defendant Thomas J. Bordeaux -was a breach of his official duty, and also a breach of his official bond.”
The answer denies the ownership or right of possession of the plaintiff, Gallick; denies the value of the goods to have been $868.02, or any greater amount than $176; admits the taking of the goods by the defendant Thomas «T. Bordeaux, but alleges that the goods were the property of P. A. Bordoni, the judgment debtor mentioned; alleges the recovery of the judgment upon which execution was issued, the issuance of execution and seizure of the property thereunder; and alleges that at the time of said seizure Bordoni was in actual possession of the goods.
The reply denies that Bordoni was in possession of the goods, except as the agent and employe of plaintiff, and denies the rendition of the judgment in Cooney against Bordoni.
The cause was tried to a jury, which returned a verdict in favor of the plaintiff for the return of the goods, or for the sum of $400, their value. A judgment in accordance rvith this verdict was rendered, from which judgment and an order denying a motion for a new trial the defendant appealed.
Upon the trial evidence was offered on behalf of the plaintiff which tended to show that on or about the 2d day of May, 1895, the plaintiff had purchased the goods in controversy from Bordoni ; that plaintiff had taken immediate possession, had placed a sign over the front door, “E. Gallick, Proprietor,” and also a like sign in a show case inside the building; that he caused an inventory to be taken of the property, and had then employed Bordoni as Ms agent to conduct the business for Mm. The inventory of the property showed that it was of the vaMe of $868.02. On behalf of the defendants evidence was introduced which tended to show that no transfer from Bordoni to Gallick had been made, or, if made at all, that it was not bona -fide, but made for the purpose of protecting Bordoni. The evidence further tended to show that Bordoni had been in the active management of the business, had employed a bartender’, and had purchased goods for the place subsequent to the 2d day of May, the date of the alleged sale. It was also sought to be shown that the stock of goods was of the value of about $176. This cause was heretofore before this court in Gallick v. Bordeaux, 22 Mont. 470, 56 Pac. 961.
On the trial the court, at the instance of the plaintiff, gave to the jury a number of instructions, to which objections are here made.
1.' Instructions 4 and 6. The opening sentence of instruction No. 4 is as follows: “The jury are further instructed that-,the fact that the said Bordoni was in the employ of the plaintiff, and in the saloon at the time this property in controversy was seized by the defendant,” etc. Instruction No. 6 contains this expression: “The fact that the said plaintiff employed the said Bordoni as an employe about said place and placed him in charge thereof of itself raises no presumption of bad faith on the part of said plaintiff.”
In each of these instructions the existence of a particular fact is assumed, viz., that the plaintiff had employed Bordoni in and about the place where the property in controversy was found by the constable when he seized it. This assumption made by the court, under the record here presented, was equivalent to telling the jury that Bordoni had sold this property to the plaintiff, and that plaintiff had employed him to care for it. These were facts in dispute. Evidence was offered by defendants to show that Bordoni had never sold the property at all, but was the owner himself at the time of the seizure, and therefore his work in the saloon was work done for himself, and not as the employe of plaintiff or any one else.
It is the duty of the court to instruct the jury with reference to all matters of law which the court may deem necessary for the formation and rendition of a verdict. (Section 1080, Code of Civil Procedure, as amended by act of the Fifth Legislative Assembly, approved March 1, 1891, (Laws 1891, p. 241.)
The jury are the judges of the effect or value of the evidence. (Section 3390, Code of Civil Procedure.) In other words, the facts are to be found by the jury from the evidence, and it is error for the court in its charge to assume as proven a fact which is in issue. (Palmer v. McMaster, 10 Mont. 390, 25 Pac. 1056; Harrington v. Butte & Boston Mining Co., 19 Mont. 411, 48 Pac. 158; Collier v. Fitzpatrick, 19 Mont. 562, 48 Pac. 1103; Butte & Boston Mining Co. v. Societe, etc. Lexington, 23 Mont. 177, 58 Pac. 111, 75 Am. St. Rep. 505; Lawrence v. Westlake, 28 Mont. 503, 13 Pac. 119.)
2. Instructions 3 and 13. By instruction No. 3 the court told the jury “that, before an officer can justify under an execution issued out of a justice court, it must appear that the, justice court issuing said execution had jurisdiction of the parties and the subject-matter; that the judgment was legally and regularly made and entered; and that the execution was in due and legal form.” Instruction No. 13 is as follows: “The jury are further instructed that the defendant Thomas J. Bordeaux occupies in this case the position of one who claims the property not as owner, but by virtue of a special interest therein as an officer under his writ, and for the purpose indicated therein; that it is only by reason of his special interest as such officer acting under a writ that he can be permitted to contest the right of the plaintiff. So. far as the defendant officer is concerned, except for his writ and the rights acquired by his seizure thereunder, he has no right or authority to question the arrangement between the plaintiff and Bordoni, and the same is valid and binding as to all persons whatsoever except as to an officer acting under and by virtue of a valid writ. If, therefore, the jury believe from the evidence that the said defendant Bordeaux was not acting under a valid writ of execution, or that the court issuing the same had no jurisdiction to issue the writ, or that the said officer abused the process of the court, after seizing the said goods, by permitting the same to be wasted or destroyed, then in either of these events the said writ furnished the officer is no justification for the seizure, and your verdict should be for the plaintiff.”
In instruction No. 3, above, the court told the jury that it must appear that the justice issuing the execution had jurisdiction of the parties to the action and of the subject-matter, that the judgment was legally and regularly made and entered, and that the execution was in due and legal form. The reading of this at once suggests the inquiry, to whom must it be made to appear ? To the jury ? It is hardly conceivable that such questions would be submitted to a jury. But when instruction No. 13, above, is read in connection with this, it is quite apparent that the inquiries contained in instruction No. 3 were directed to the jury, for in No. 13 the question of the validity of the execution under which the defendant Bordeaux assumed to seize and hold this property, as well as the question of the jurisdiction of the courf issuing the writ, are directly submitted for determination to the jury.
The three questions above submitted in instruction No. 3 and the two suggested above in No. 13 are questions of law, with which the jury did not and could not have had anything whatever to do. They are questions which the court should have determined, and, if determined adversely to defendant, an instruction plainly telling the jury that the defense sought, to be made had failed should have been given. The jury ought not to have submitted to it questions respecting which it knew nothing, and which were entirely without its province to determine. It is the province of the court to tell the jury what the law of the particular case is, not to ask the opinion or advice of the jury respecting it.
3. Instruction No. 8. “The jury are further instructed that the defendant Thomas J. Bordeaux attacks the sale to the plaintiff upon the ground that it was made with intent to delay or defraud the creditors of said Bordoni in the collection of their debts, and particularly one J. H. Cooney. The jury are instructed that this is an affirmative defense, and, in order to sustain the allegations of their answer, defendants must establish to the satisfaction of the jury by a preponderance of the evidence that the Said sale from Bordoni to the plaintiff was made with intent to delay or defraud the creditors of said Bordoni; and unless you find as a fact from the evidence that the said transfer and sale • from Bordoni to plaintiff was made with the intent to delay or defraud said creditors in the collection of their debts, then your verdict should be for the plaintiff.”
The plaintiff, in his complaint, claims that he was the owner of the goods at the time of their seizure and subsequently. The answer puts this in issue by a denial of such allegations, and alleges that Bordoni was such owner. The burden throughout was upon plaintiff to prove his ownership or right of possession. The defendants might rely upon his failure to make such proof, or, if he attempted to prove his ownership by showing a purchase from Bordoni, they might under a general denial of such ownership, show that such sale was void. (Reynolds v. Fitzpatrick, 28 Mont. 170, 72 Pac. 510.)
If plaintiff relies for his title upon a sale from Bordoni, he must show a valid sale. The burden is not upon defendants to show that it is invalid. If the answer had admitted the sale, and had sought to avoid its effect by alleging fraud in its inception, the instruction in this respect would have stated the law, but no such allegations were made by defendants, and the instruction is therefore not only inapplicable, but erroneous. The expressions of this court made in this case on the former appeal (Gallick v. Bordeaux, above) ought to have been sufficient to have avoided this error.
In Kipp v. Silverman, 25 Mont. 290, 64 Pac. 884, this court had before it a very similar case — of conversion, however, in stead of claim and delivery. The sheriff had seized certain goods as the property of Hamilton under an attachment issued in an action brought by Silverman & Oohen against Hamilton, and afterwards sold them under execution. Thereupon Kipp brought an action for damages for the conversion of the goods. The defendants answered, denying ownership in Kipp, alleging ownership in Hamilton, and justifying under the attachment and execution. On the trial the court gave instructions on the subject of the burden of proof, the first of which told the jury that the burden was upon the plaintiff to show that at the time alleged he was the owner and entitled to the possession of the goods, that the defendant sheriff wrongfully seized and sold the property, and that such property was of a value greater than the value admitted by the defendants. The second was to the effect that the burden of proof was upon defendants to show that at the time of the levy upon and sale of the property such property was owned by Hamilton, the judgment debtor. Respecting these instructions this court said: “The first of these instructions is a correct statement of the law upon the issues involved in the case, which are the ownership of the property and its value. In cases of this character the plaintiff must recover, if at all, upon the strength of his own title, and not upon the weakness of that of his adversary. Therefore the obligation rests upon him to sustain this burden by a preponderance of the evidence; that is, he must show, by a preponderance of the evidence, that he has a right superior to that of the defendant, and that the value of the property or the interest therein in question is greater than that admitted by the defendant. Hamilton being apparently in the exclusive possession, and therefore prima facie the owner at the time the levy was made, the endeavor on the part of the defendants to show title in him was but one mode of meeting and rebutting plaintiff’s claim, and after presenting their evidence they would be entitled to a verdict if the whole of the evidence upon this issue did not show a preponderance in plaintiff’s favor. (Finch v. Kent, 24 Mont. 268, 61 Pac. 653.) The defendants were not under obligation to produce any evidence until plaintiff had made out a prima facie case, and then to go no further than to produce sufficient evidence to show an equipoise. The burden, therefore, rested upon the plaintiff throughout. There are elementary principles, applicable to all cases where there is an issue as to title, whether the defendant asserts title in himself or in a third person. The second paragraph quoted is not only in direct conflict with the first, but is wrong in principle. By it the jury were told, in substance, that, unless the defendants could show title in Hamilton by a preponderance of the evidence, the plaintiff must prevail.”
Except as to the character of the action the facts in this case are so nearly alike those in the case at bar that the language of the court above appears peculiarly applicable here, disposes of this feature of the case, and serves to emphasize the error of the court in giving instruction No. 8. Furthermore, instruction No. 8 is directly in conflict with instructions Nos. 6 and 7, given at the instance of the defendants.
4. Instruction No. 10. By instruction No. 10 the court told the jury that if they believed from the evidence that the constable, at the time he seized the property in controversy, was notified of the claim of ownership on the part of the plaintiff, but, notwithstanding such notice, took the property into his possession, then the constable would not be justified in making such seizure, unless the jury should find that the transfer from Bordoni to the plaintiff was made with intent to delay or defraud the creditors of Bordoni; and concludes with this expression, “And unless you so find, your verdict should be for the plaintiff.”
It is quite impossible to determine whether the notice herein mentioned has reference to a third party claim of ownership or not. If this plaintiff, Gallick, desired to have the property released from seizure, Section 1220 of the Code of Oivil Procedure provides the method of procedure; but, even in case he asserted such right, the constable would not be compelled to deliver possession to him if the execution plaintiff furnished an. indemnity bond. In addition to this uncertainty, the instruction is erroneous in directing a verdict for the plaintiff upon a mere claim of ownership asserted at the time of the seizure of the property by the constable (if this is what the instruction implies), unless the jury should find that the transfer from Bordoni to plaintiff was made with intent to delay or defraud creditors. It was incumbent upon plaintiff to prove to the satisfaction of the jury by a preponderance of the evidence that at the time of the commencement of this action he was the owner or entitled to the possession of the property in controversy, and unless he made such proof he could not recover, even though defendants might 'wholly fail to show any defect in the alleged transfer from Bordoni to plaintiff. It will not do to say that mere notice to the constable of Gallick’s claim of ownership shall be sufficient to shift the burden of proof as to the bona fides of the transfer from Bordoni to Gallick upon the defendants. As said heretofore, if Gallick based his claim of ownership to the property upon a purchase from Bordoni, he must show a valid purchase. The burden is not upon defendants to show that it was invalid. (
5. Instructions 11 and 17. Instruction No. 11, in substance, told the jury that, if they found from the evidence that the defendant Thomas J. Bordeaux seized the property under an execution, and while he held the goods in his possession he and his employes destroyed and used the goods, by reason whereof they were deteriorated in value, then the jury should find that such constable was a trespasser from the beginning, and that his process furnished him no justification for his acts; and concludes as follows: “And if you find from the evidence that there was such abuse of process by said defendant, then your verdict should be for the plaintiff.”
Instruction No. 17 in effect told the jury that if they believed from the evidence that the execution under which the defendant Thomas J. Bordeaux sought to justify his seizure of the property was issued for an amount materially greater than the amount actually due upon the judgment, then such execu tion was void, and furnished no justification to the defendant for the seizure of the property, and the verdict of the jury should be for the plaintiff.
In each of these instructions the jury were told plainly that, if they found some defect (particularly pointed out in each) in the attempted justification of the defendants, then their verdict should be for the plaintiff.
A portion of the language of this court in Kipp v. Silverman, quoted above, is likewise pertinent here. Under these instructions the jury should have found for plaintiff if they found any of the enumerated defects in defendants’ attempted justification, whether plaintiff had shown any title or right of possession in himself or not. In this action, as well as in conversion, the plaintiff must recover upon the strength of his own title, and not upon the weakness of his adversaries’; and because these instructions ignore this doctrine they are erroneous.
6. Instruction No. 18: “The court further instructs the jury that if you believe from the evidence that F. A. Bordoni transferred and assigned to the plaintiff the property in controversy in this suit as security for the money advanced by plaintiff or by E. Gallick for said Bordoni, and that the said plaintiff took immediate possession of the said property, and retained the same either personally or through Bordoni as his employe, then you are instructed that the defendant Thomas J. Bordeaux could not seize and take into his possession the said property in controversy without paying to the said plaintiff or tendering to him the amount for which the said property was held by said plaintiff as security, and the failure of said defendant to tender the amount due to said plaintiff or to said E. Gallick for which the said property was security rendered the said defendant liable to the plaintiff for the whole value of the said property, or the amount of the indebtedness for which the same was given as security, and your verdict should be for the plaintiff for the full value of the property and the amount of said indebtedness, with interest thereon from the 15th day of May, 1895, to date.”
Waiving the question as to whether this instruction does not entirely change the theory upon which plaintiff had tried the case — that is, presenting plaintiff as a mortgagee instead of an absolute owner of the goods — it is to be observed that it announces a wholly fallacious standard as a measure of plaintiff’s recovery.
If plaintiff was seeking to recover as mortgagee, the measure of his damages in case return of the goods themselves could not be had would be the value of the goods up to the amount of the indebtedness, with accrued interest (Harrington v. Stromberg-Mullins Co., 29 Mont. 157, 74 Pac. 413); but under no theory of the case could plaintiff recover the full value of the property and the amount of the indebtedness, with interest, as announced in the closing sentence of this instruction.
7. Defendants’ instruction No. 13. The defendants asked the court to give an instruction designated defendants’ instruction numbered 13, as follows: “The court instructs the jury that, unless the jury find the fact to be that there was an actual and continued change of possession of the property alleged to have been sold by Bordoni to the plaintiff herein, then the jury must find for the defendants in this action.”
This feature of the case had been properly covered by instructions 8 and 9 given at the instance of defendants, and no error could have been predicated on the court’s refusal of the instruction altogether; but, instead of refusing it, the court struck out the words “and continued,” as used to characterize the possession following the sale, and as thus modified the instruction was given. A correct statement of the law was thus rendered erroneous, and the instruction made to conflict directly with instructions 8 and 9 given at the instance of the defendants.
8. As to the parties defendant. This action is brought against the constable and the sureties on his official bond. The action is in claim and delivery, and no pretense is made in the pleadings that the defendants Barrett and John B. Bordeaux, or either of them, were ever concerned in any manner whatever with the seizure or detention of the property in controversy. Apparently liabilitiy is sought to be fastened upon them merely by virtue of the fact that they are such sureties. The gist of the action is the ownership or right of possession in the plaintiff and the wrongful seizure and detention by defendants, and the primary relief sought is the return of the property in specie. In order that the complaint state a cause of action, it must not only allege ownership or right of possession in the plaintiff, but it must allege the wrongful seizure and detention of it by the defendants. The action lies only against the party in possession. (18 Ency. Pleading and Practice, 509.) Tested by these rules, as to the defendants Barrett and John R. Bordeaux the complaint states no cause of action.
Certain of the instructions are also open to criticism other than that made upon them, but these features are all fully covered in disposing of the numerous questions involved, and the views of this court as expressed upon the former appeal, taken in connection with the observations herein contained, will be sufficient to direct the trial of this cause in the court below.
The judgment and order are reversed, and the cause is remanded, with directions to grant defendants a new trial, and to take such further action as may not be inconsistent ivith the views herein expressed.
Mr. Chief Justice Brantly and Mr. Justice Milburn concur.
Reversed and remanded.
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] |
MR. COMMISSIONER POORMAN
prepared the opinion for the court.
This is an appeal from an interlocutory decree rendered in a suit for partition, and from an order overruling a motion for a new trial.
The facts appear to be that the defendant and one' Dennis D. Sullivan in 1889 purchased a certain tract of land, 100 feet in length and 30 feet in width, in Butte, Montana; that their titles were obtained from a common source, and, so far as the record title is concerned, they were tenants in common. It also appears that at the time of the purchase the territory adjoining the lot was unnoccupied, and that they had free access to all parts of the land purchased, by passing over other lands; that it was agreed at the time between defendant and Sullivan that Sullivan should erect a dwelling house on the east end of the lot, and the defendant herein should erect a house on the west end of the lot. Neither party appears to have borne any of the expense occasioned by the construction of these houses, except the one erected by himself. The parties moved into the houses with their families, and occupied the same continuously until 1895, when Sullivan sold his interest in the lot to the plaintiff herein, who, with her husband, took immediate possession of the house erected and occupied by Sullivan. The part of the lot upon which the defendant, O’Neill, had erected his house, proved to be the front end of the lot; and the adjoining property having become occupied or used, there was no practical means of reaching the rear énd of the lot, occupied by the grantee of Sullivan, except by passing over that portion of the lot occupied by defendant. A difficulty arose between the parties, and the plaintiff brought this action for partition.
The defense is to the effect that Sullivan and the defendant had, prior to the time of the sale by Sullivan to the plaintiff, orally agreed upon a division of the lot, to-wit, that the defendant should occupy the front fifty feet of the lot, on which the house erected by him was located, and that Sullivan should occupy the rear fifty feet of the lot, and that the plaintiff well knew of this agreement at the time she purchased the interest of Sullivan.
The findings of the court are to the effect that the plaintiff had no knowledge of the existence of any oral agreement relative to the division of the lot; that she was entitled to the relief asked for in her complaint; that the premises, and the whole thereof, are so'situated that actual partition into distinct parcels cannot be made without great prejudice to both plaintiff and defendant. The court therefore entered an interlocutory decree to the effect that the premises be sold under the direction of a referee appointed for that purpose, and that the referee ascertain if the wife of the defendant had released her dower right in the premises to her husband, and, if she had not, or would not consent to do so, to ascertain what would be a just compensation to pay her for her dower interest. The defendant, on this appeal, urges that the evidence is not sufficient to sustain the findings, that the findings are contrary to the evidence and.against law, and that the court could not enter a decree at all, for the reason that the wife of the defendant was an indispensable party to the action.
The burden of showing the existence of an oral agreement respecting the partition of the lot rests upon the defendant, or the party who alleges or relies upon the same. There is no evidence in this record showing that the plaintiff, at the time she purchased the interest of Sullivan, had notice of the existence of any agreement respecting the partition or division of this lot. There was nothing in the occupation of the lot by both the tenants in common, though they resided in separate houses, that was inconsistent with the record title, for, -being tenants in common, each had the right of possession. The grantor of plaintiff testifies that there never was any agreement between himself and the defendant respecting a division of the lands, further than it was agreed as to the part of the lot on which each should erect his own house; that, at the time he made the sale to the plaintiff, he told her that she had an interest in the whole lot — the front as well as the back. There is some evidence on the part of the defendant as to statements made by the plaintiff and her husband, who acted as her agent, which would tend to show that shortly after the purchase she had notice that some agreement existed between Sullivan and defendant with reference to a division of the lot. This, however, is disputed.
Each party, it appears, had paid taxes on one-half the, lot since its purchase. The facts are not materially different from those presented on the former appeal, where the questions respecting the payment of taxes and survey of the lot, putting up stakes, the construction of outbuildings, and erection of fences, etc., wore all passed upon, and the court said: “It is apparent that these two items, whether considered separately or together, fall short, in themselves, of being sufficient to justify the inference that the plaintiff, when she purchased the undivided one-half interest from Sullivan in March, 1895, had notice of the equitable rights of the defendant.” (Hurley v. O’Neill, 20 Mont. 269, 67 Pac. 626; Mullins v. Butte Hardware Co., 25 Mont. 525, 05 Pac. 1004, 87 Am. St. Rep. 430; Sheldon v. Powell, 31 Mont. 249, 78 Pac. 491.) Section 1355, Code of Civil Procedure, provides, in substance, that if it appears that the property, or any part, is so situated that partition cannot be made without great prejudice to the owners, the court may order a sale thereof. It appears from the evidence in this case that this lot is so situated that it cannot be divided without great prejudice to the owners.
IVe find no error in the findings of the court respecting the facts presented in this record.
2. A further objection urged by appellant is to the effect that the wife of a defendant tenant-in-common is an indispensable party to a suit for partition of real estate. It appears on the face of the complaint that the wife of defendant was not made a party to this action. It also appears from the evidence of plaintiff that she knew at the time this action was commenced that the wife of defendant was residing with defendant on this land. No demurrer was filed to the complaint, nor was any objection made on the ground of defect or misjoinder of parties, and the question was first raised in the motion for a new trial. Whether the wife of a co-tenant is a necessary party to an ac tion for partition, unless she has some interest other than the inchoate right of dower not admeasured, is unnecessary to be considered here.
An action for partition, under our Code, is a special statutory proceeding. (Ryer v. Fletcher-Ryer Co., 126 Cal. 482, 58 Pac. 908, and cases cited; Waterman v. Lawrence, 19 Cal. 210, 79 Am. Dec. 212.) We must therefore look to the statute for the authority to bring the action, and for the, procedure to be followed both in bringing the action and after it is instituted. Sections 1340 et seq. of the Code of Civil Procedure treat fully the subject of partition. Section 1342, treating of the parties to the action, reads, in part: “Every person having an inchoate right of dower in an undivided share in the property ; and every person having a right of dower in the property, or any part thereof, which has not been admeasured, must be a party to an action for partition.” Section 1343 provides that the plaintiff may, at his election, make others enumerated therein parties to the action.
The first section .quoted names those who must be parties to the suit. The second names those who may bo parties to the suit. A person having the inchoate right of dower is named among those who must be parties to the action. Section 1344 provides that the interests of all the persons in the property, whether such persons be known or unknown, must be set forth in the complaint specifically and particularly, as far as known to the plaintiff. (Sections 1342, 1353, Code of Civil Procedure; Dameron v. Jameson, 71 Mo. 97; Davis v. Lang, 153 Ill. 175, 38 N. E. 635.)
Sections 1391 and 1392 provide how the rights of a party having an existing right of dower may be protected, but, if the wife is not a party to the action, the plain method of procedure positively stated in Section 1342 has not been followed, and any decree which the court may render is not binding upon her; and the rights of all the parties in the premises cannot be determined, and the subject-matter of the action will therefore be held open for further litigation unless the parties voluntarily agree.
“A court of equity will not permit litigation by piecemeal. The whole subject-matter and all the parties should be before it, and their respective claims determined once and forever. ~ * If the necessary parties to a full determination are not before the court, it is the duty of the court, on its own motion, to order them brought in; and this, although the defendants in the action have omitted to raise an objection of defect of parties by demurrer or answer. The failure of the court so to do is fatal to the judgment.” (O'Connor v. Irvine, 74 Cal. 435, 16 Pac. 236.)
In Holloway v. McIlhenny, 77 Tex. 657, 14 S. W. 240, the court said: “Appellee insists that, because there was no attempt in the court below to arrest the proceedings for want of necessary parties until the final judgment, * * * the objection comes too late. Put we are of opinion that the error cannot be cured by failure to take action in the trial court. A decree of partition in0 a suit to which one or more of the owners of the land are not parties does not affect their rights. They cannot be bound by the decree, and can have it set aside in any proper proceeding in which all parties are before the court. Courts of justice do not sit to enter empty decrees, and hence will arrest a proceeding of this character for want of necessary parties at any stage of the proceedings.”
Under Section 1342 above the wife of the defendant was an indispensable party, and, not having been made a party, the court could not proceed to judgment.
IVe recommend that the judgment and order be reversed, and the cause remanded.
Per Curiam. — For the reasons stated in the foregoing opinion, the judgment and order are reversed, and the cause is remanded.
Reversed and remanded.
|
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] |
MR. COMMISSIONER CALLAWAY
prepared the following opinion for the court:
. On May 30, 1903, John Watson, otherwise known as E. L. Whitmore, died in Silver Bow county, Montana, intestate. Immediately thereupon John Melville, as public administrator of Silver Bow county, filed a petition'asking for letters of administration upon his estate. Shortly thereafter one AVilliam Fal coner filed a like petition, as well as a protest against the issuance of letters to Melville. Supporting the petition of Falconer was a request signed by three brothers and two sisters of the decedent, residents of Scotland. These Scottish heirs requested the appointment of Falconer. AVithout recounting the different papers filed and steps taken, it is sufficient to say that upon a hearing of the matter the court denied the petition of Melville, and made an order granting letters of administration to Falconer. From the orders refusing to grant letters of administration to Melville and granting such letters to Falconer, Melville has appealed.
The only question presented is whether the public administrator is entitled to letters of administration in preference to the nominee of the nonresident brothers and sisters of the decedent. The question is readily answered by the statutes. Section 2430 of the Code of Civil Procedure provides that: “Administration of estate of all persons dying intestate, must be granted to some one or more of the persons hereinafter mentioned, the relatives of the deceased being entitled to administer only when they are entitled to siicceed to his personal estate or some portion thereof, and they are, respectively, entitled therein in the following order: (1) The surviving husband or wife, or some competent person whom he or she may request to have appointed. (2) The children. (3) The father or mother. (4) The brothers. (5) The sisters. (6) The grandchildren. (7) The next of kin entitled to share in the distribution of the estate. (8) The public administrator. (9) A creditor. (10) Any person legally competent. If the decedent was a member of a. partnership at the time of his decease, the surviving partner must in no case be appointed administrator of the estate.”
Section 2434, Code of Civil Procedure, as amended (Session Laws 1899, p. 137), provides: “No person is competent or entitled to serve as administrator or administratrix who is: (1) Under the age of majority. (2) Not a tona fide resident of the state, but if a person otherwise entitled to serve is not a resident of the state, and either the husband, wife or child, or parent, or brother or sister of the deceased, he may request the court or judge to appoint a resident of the state to serve as administrator, and such person may be appointed, but no other nonresident than a surviving husband, wife or child, or parent or brother or sister shall have such right to request an appointment, and the court or judge must order letters issued to the applicant entitled thereto under the provisions of this article. (3) Convicted of an infamous crime. (4) Adjudged by the court incompetent to execute the duties of the trust by reason of drunkenness, improvidence or want of understanding or integrity.”
Rehearing denied January 10, 1905.
Section 1867 of the Civil Code provides: “Resident aliens may take in all cases by succession as citizens; and no person capable of succeeding under the provisions of this title is precluded from such succession by reason of the alienage of any relative; but no nonresident foreigner can take by succession, unless he appears and claims such succession within five years after the death of the decedent to whom he claims succession.”
The nonresident brothers and sisters are entitled to succession to this estate. If they were residents of the state, they could themselves administer upon it. They are the persons most interested in it, and the law contemplates that therefore they shall have the right to nominate some person in whom they repose trust and confidence to administer it for them. Such person must be one over whom the courts of this state may have jurisdiction and surveillance. (See In re Craigie’s Estate, 24 Mont. 37, 60 Pac. 495.)
We do not deem the authorities cited by appellant in point. Nor do we see any constitutional objection to the statutes in question. At any rate, the appellant has not pointed out any valid reasons wherein the foregoing statutes are in any wise contrary to or inhibited by the Constitution.
It follows that the orders should be affirmed.
Per Curiam. — Eor the reasons given in the foregoing opinion, the orders, are affirmed.
|
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] |
MR. JUSTICE GALEN
delivered the opinion of the court.
This is an action for an accounting. Although brought against the several defendants named, the trial proceeded only as to the defendant Daniel Grant, the record not being clear as to what disposition was made thereof as respects the other parties defendant. A jury was impaneled, to which were submitted two special interrogatories, both of which were answered favorably to the defendant Grant. The plaintiff filed motion to set aside the findings of the jury, and requested the court to make certain findings of fact and conclusions of law submitted, both of which were denied; and thereafter the court made its own findings of fact and conclusions of law, and entered judgment in favor of the defendant Grant. This appeal is from the judgment, and from an order denying plaintiff’s motion for a new trial.
Summarized, the complaint alleges that Thomas Haw died in Beaverhead county on or about the twenty-fifth day of July, 1913, leaving real and personal property theréin, which by his last will and testament were devised and bequeathed to Mary E. Gray, Mrs. John Robertson, and Milton Hayes. Of Haw’s estate the plaintiff was duly appointed executor. Prior to the thirtieth day of September, 1907, Haw was possessed of certain mining claims situated in the Elkhorn mining district, Beaverhead county, known as the Dubois, Grotto and Leap Tear quartz lode mining claims, upon which he had done all the representation work required by the laws of the United States and the state of Montana, and by conveyance in writing on the thirtieth day of September, 1907, he purported to convey said mining claims to the defendant Daniel Grant, but that the conveyance was without consideration, and after such conveyance said Haw continued to improve such property and remained in the full possession, control and dominion thereof, with the knowledge, consent and acquiescence of the defendant Grant; that on or about the fifteenth day of November, 1910, Haw, Grant and the defendants Ripley and Robison entered into an agreement with one Frank B. Felt by the terms of which Felt was authorized to sell the Dubois, Grotto and Leap Year quartz lode mining claims belonging to Haw, together with certain other mining claims belonging to Grant, Ripley, and Robison. On the sixteenth day of January, 1911, Felt, Haw, Grant, Ripley and Robison entered into a second agreement, wherein it was provided that, as they were about to receive $150,000 for the entire group of mining claims, the proceeds of• the sale should be divided as follows: Of $9,000 to be paid in cash, Felt was to receive $4,000'; Grant, Ripley, Haw, and Robison $1,000 each; and to any person making the sale, not a party to the contract, the sum of $1,000; and upon final payment a commission of five per cent of the purchase price; the balance of the sale price to be divided so that Robison would receive $13,000 additional, Felt $29,750, less commission if not sold by party named in the agreement, and Grant, Ripley, and Haw each $32,750, less commission.
It is further alleged that the Dubois, Grotto, and Leap Year quartz lode mining claims were optioned to W. R. Allen for the sum of $150,000, and that certain payments had, prior to the institution of the action, been made by Allen upon the property, and that Grant, after the death of Haw, had received on November 15, 1916, $2,183.35, and on May 15, 1917, a like amount which Grant retains and refuses to deliver to the plaintiff the executor of the Haw estate. It is further alleged that the Boston & Montana Development Company as assignee of Allen’s interest, is obligated to pay, and will pay a further sum of $33,750, among other amounts, which sum belongs and will belong to the plaintiff as executor of the Haw estate. The prayer is for an accounting by the defendant and for judgment in plaintiff’s favor for the amount due Haw.
By separate amended answer of the defendant Grant, upon, which the case went to trial, it is admitted that Haw, prior to the thirtieth day of September, 1907, was in possession of the Dubois, Grotto and Leap Year quartz lode mining claims, and had done the representation work thereon required by law, and denial is made that on the thirtieth day of September, 1907, Haiv conveyed said mining claims to defendant Grant, but he “admits that the said Thomas Haw by deed, bearing date of September 30, 1907, but not delivered to this defendant until the-day of -, 1912, conveyed the said mining property to the defendant”, and denies that after the date of the deed, during the remainder of Haw’s lifetime, or any time later than the delivery of this deed, to the defendant Grant, Haw made improvements on or prosecuted development work upon or retained or exercised control over the mining claims. It is admitted that Haw was to receive $32,750 under the terms of the agreement referred to in the plaintiff’s complaint; and that the amounts alleged in the complaint are the amounts received by the defendant Grant. Affirmatively it is alleged that an agreement was made prior to the - day of -, 1905, between Haw and Grant, under the terms of which Grant was to advance Haw, who was in need, such funds as he might require from time to time for his support and for development work upon the mining property involved; that in the event the mining claims were sold prior to Haw’s death, Haw was to repay Grant; but in the event they were not sold, then Grant was to become the owner of them, and that Grant had advanced money in excess of $3,000' to Haw for the purposes mentioned prior to Haw’s death. It is further alleged that on or about the - day of -, 1912, the deed was delivered to Grant in pursuance of such agreement, and that Grant fulfilled all the terms and provisions of the agreement, and paid claims against Haw after the latter’s death, amounting to $743. Further, that at the time the agreement was entered into, the mining claims were of small value, and that title to the same at the time of the delivery of the deed vested absolutely in the defendant Grant. These affirmative allegations are denied by plaintiff’s reply.
After commencement of the action, othér payments were made by the Boston & Montana Development Company, to Grant, which fact developed during the course of the trial, and on that account a supplemental complaint, to conform to the proof, was filed, which differs from the original complaint only as to the amount of payments made to Grant on account of the Haw interest; and prayer is made specifically for the sum of $6,281.74, and that the defendant Grant be required to execute and deliver an assignment of one-half of his interest in the security put up by W. R. Allen, or the Boston & Montana Development Company, for the payment of the balance of the •purchase price for the mining property.
The special interrogatories submitted to the jury, with their findings, are as follows: “Interrogatory No. 1. Did the defendant Daniel Grant and Thomas Haw, about the year 1906, enter into an agreement by which said Thomas Haw agreed with defendant Grant that if said defendant would advance to him, the said Thomas Haw, such funds from time to time as he might need for his maintenance and the maintenance of his mining property, he, the said Thomas Haw, would repay the defendant Grant if the property w7ere sold during the lifetime of Haw;, otherwise the said property at the death of said Thomas Haw should become the absolute property of the defendant Grant? Answer: Yes.” “Interrogatory No. 2. If in the answer to the last interrogatory, you have said that Thomas Haw and the defendant Grant entered into such an agreement, did the defendant Daniel Grant thereafter perform his part of said agreement? Answer: Yes.”
The court did not adopt the jury’s findings, but made its own, comprising eleven in number, all of which are in favor of the defendant Grant. Those numbered 4, 5 and 6 are here set forth, as they clearly illustrate the principal issue involved in the case, and the court’s theory in its conclusions of law. They are as follows:
“No. 4. That on or about the thirtieth day of September, 1907, the said Thomas Haw and the said Daniel Grant, a de fendant herein, entered into an agreement by the terms of which the said Thomas Haw agreed with the defendant Grant that if the said defendant Grant, would advance to him, the said Thomas Haw, such funds as he might need from time to time for his maintenance and the maintenance and development of his mining property, the said Thomas Haw would repay the said defendant Daniel Grant, if the said mining claims, mentioned in finding of fact No. 2, were sold during the lifetime of said Haw, otherwise, if not sold during the lifetime of said Haw, the said mining claims, mentioned in finding No. 2, at the death of said Thomas Haw, should become the absolute property of the defendant Daniel Grant.
“No. 5. That on or about the thirtieth day of September, 1907, the said Thomas Haw, pursuant to the agreement mentioned in finding No. 4 above, executed to the said defendant Daniel Grant a certain instrument, in writing, and conveyance, which provided that in consideration of the sum of $1 to him in hand paid by the said Grant, the receipt whereof is acknowledged, he, the said Haw, granted, bargained, sold, demised, and released, and forever quitclaimed to the said Grant by said instrument, and to his heirs and assigns, the said Dubois, Grotto, and Leap Year quartz lode mining claims, which said claims are recorded respectively in Book 20, at pages 200, 199, and 493, of the Records of Quartz Lode Claims of Beaverhead county, Mont., which said instrument was retained in the possession of the said Thomas Haw until on or about the twelfth day of November, 1912, on or about which said date the said deed was delivered by the said Haw to the said Daniel Grant, and by the said Grant recorded on or about the eighteenth day of November, 1912.
“No. 6. That pursuant to the agreement and understanding, mentioned in the foregoing finding No. 5, the said Daniel Grant, during the lifetime of said Haw, advanced certain sums of money and paid certain debts and furnished certain funds for the prosecution of the work upon the mining claims herein-before mentioned in these findings, which sums were in excess of $3,000, and met all of the demands personally made upon him by the said Haw under the terms of the agreement mentioned in finding No. 5 above, with reference to furnishing money and supplies to the said Haw, and performed each and all of the terms and conditions of his said contract with said Haw.”
The conclusions of law are two, reading as follows:
“No. 1. That on the death of the said Thomas Haw the said Daniel Grant became the absolute owner of, and entitled to the possession of, all of the mining property mentioned and described in plaintiff’s complaint, to wit, the Dubois-Grotto, and Leap Year quartz lode mining claims; and he was, and is now, entitled to receive for his own use and benefit all of the proceeds of the sales of said claims which had been paid to him by virtue of the contracts and agreements mentioned and described in the findings of fact in this cause.
“No. 2. That the said plaintiff, as the executor of the last will and testament of said Thomas Haw, or otherwise, has no interest, right, title, or claim in and to the said property described in his said complaint, to wit, the Dubois, Grotto, and Leap Year quartz lode mining claims, or any right, title, interest or claim upon, or claim to, any of the proceeds of the sales of said claims arising out of any of the contracts mentioned and described in the findings of fact herein filed, or otherwise. ’ ’
Many specifications of error are assigned, but as this is an equity ease, it is necessary to consider but one question determinative thereof, namely; Did the court err in its findings of fact and conclusions of law, and in entering judgment in favor of the defendant Daniel Grant?
The plaintiff relies upon the contract signed by Haw and the defendant Grant, Ripley, Robison and Felt, the latter’s interest having been assigned to the defendant Olmstead; dated January 16, 1911, under the provisions of which Haw was to receive, in the event the property sold for $150,000, as it subsequently did, the sum of $1,000 cash payment, and $32,750, less commission, out of the payments deferred. The defendant Grant bases his case entirely upon an alleged oral agreement made with Haw in the year 1905 or 1906, by which Grant was to furnish Haw with money to take care of his claims and himself, with the understanding that when the property was sold, Haw would repay Grant, and that if anything happened to Haw, so that he died before the property was sold, Grant was to have it. All question and confusion as to the defendant’s theory concerning his rights are eliminated by the position taken and declarations made by his counsel in this court and during the trial. At the trial defendant’s position was stated by his counsel as follows:
“There is no contention on the part of the defendant Grant but what Thomas Haw owned this property during his lifetime. We do not expect to contend that this deed when given was an absolute conveyance, and that Thomas Haw retained no interest whatever; this deed was simply one step in the fulfillment of this agreement, which was made in 1905 or 1906, and there was no occasion whatever for the defendant Grant and Thomas Haw to make any mention whatever of this Felt agreement; that was between different parties. * * * We do not claim on behalf of this defendant that the recording of that deed or the giving of that deed terminated Tommie Haw’s interest in these claims. Under the agreement he still had interest up to the time of his death. * * *
“By the Court: Your admission is that you do not claim any title through this conveyance until Tommie Haw was dead?
“By Mr. Howell (one of defendant’s counsel) : The conveyance did convey the legal title, but Tommie Haw still had a beneficial interest as long as he lived. When he died, then under this agreement the property became the property of Daniel Grant; that is our view of this matter.
“By Mr. Hurd (of counsel for plaintiff): I understand that the record may show that at the time this deed was recorded, the property in it was Tommie Haw’s property absolutely.
“By Mr. Howell: It is not the contention of the defendant Grant that the giving or recording of this deed vested absolute title to the property in the defendant Grant. It did vest the legal title in the defendant Grant. * * * ”
The defendant Grant himself, in putting forth his position, testified that Haw remained the owner of these three claims after the recording of the deed, except the legal title stood in his (Grant’s) name, and as to defendant’s rights asserted under the oral agreement had with Haw in the year 1905 or 1906 he testified:
“Q. Mr. Grant, was there anything said by Mr. Haw and yourself about security at any time for any of the moneys that you had advanced? A. No, sir.
“Q. Did you demand of Thomas Haw at any time a deed for this property? A. I did not.
“Q. Did you at any time rely upon this deed as security for advances made by you? A. No, sir; I did not.
“Q. You relied solely upon your agreement with Tommie Haw? A. I did.”
The defendant Daniel Grant was the only witness called in chief in support of the plaintiff’s case, which was then rested, and the defendant then sought to establish his defense. It will serve no useful purpose to review the evidence offered by the plaintiff, so that. we shall proceed to a consideration of the testimony offered by the defendant Grant in support of his contention.
All of the evidence in support of the defendant Grant’s position, admitted over plaintiff’s objection, falls short of sustaining him. The defendant Daniel Grant, in his own behalf, testified in part as follows:
“Q. How long have you lived in .Beaverhead county? A. About twenty years.
“Q. Were you acquainted with Thomas Haw during his lifetime? A. I have known him practically ever since I have been in the country.
“Q. Practically ever since you have been in the state? A. Yes, sir.
“Q. Who was Thomas Haw? A. He was a Chinaman.
“Q. Did you have any business relations with Thomas Haw during his lifetime? A. I had; yes, sir.
“Q. And those business relations were concerning what, Mr. Grant? A. They were in relation to mining.
“Q. Such negotiations, or business transactions, were oral, were they? By word of mouth? A. Oral agreements.
“Q. All of them except this written agreement of January 16, 1911, is that correct? A. Yes, sir.
“Q. When did your business relations ’ first begin with Mr. Haw? A. Well, it was the year 1905 or 1906. I would not say just positively.
“Q. How long did they continue? A. Up to the time of Thomas Haw’s death in 1915.
“Q. Did you between the year 1905 and the time of his death advance certain sums of money on various occasions to Thomas Haw? A. I did.
“Q. Just state now to the court what arrangement, what agreement you and Mr. Haw had at the time you commenced advancing money. A. Mr. Haw and I went-up to the Elkhorn district, and there was three claims there known as the Central, Silver Star, and the Aspen, I believe, at that time. I would not say whether it was the Aspen or not. Mr. Haw wanted me to take an interest in those claims with a party by the name of Mr. Avery, and I did. Later on, a month or so, Mr. Ripley and I went up, and Mr. Ripley, Avery, and myself took an equal interest in these three claims at that time, and started doing work there. In the meantime Mr. Haw stated to me that he was financially—his finances—he didn’t have any finances.
“Q. Go ahead and tell what the balance of that agreement was, or what you and Mr. Haw done. A. Well, then Mr. Haw and I talked the matter over, and he stated to me that if I would help him out, loan him such money as he needed in the way of representing these claims, his living expenses, and such as that, that in case anything should happen to him before tbe property was sold—or the property was sold before his death, he would repay me, and, if not, that I was to have the property. That was the agreement between Mr. Haw and I.
££Q. In pursuance of that agreement, what did you do? A. I went ahead and gave him money at different times whenever he asked for it.
“Q. It was customary for him to come to you for financial aid from that time on until the time of his death? A. Yes; it was.
£<Q. Did he ever request any money of you that you refused to give him? A. He never did.
££Q. During the time of his last sickness, did you advance different sums of money? A. I did; yes, sir.
“Q. Was you here at the time of his death? A. I was.
££Q. Had you been in Dillon and in this immediate vicinity during the last few weeks of his sickness all the time? A. Not all the time, no.
“Q. What arrangement did you make for his care or attention during the time that you would be away from here in his last sickness? A. Well, 'I told Dr. MacMillan, the doctor he had taking care of him—I told him to give him all the care he needed, giving him anything he wanted, and see that he was taken care of.
££Q. Did you make any other arrangements than with Dr. MacMillan as to that? A. Any other arrangements?
££Q. Yes; I will ask you if you had any other person to go to look after him, or anything of that kind, or to see to his wants? A. I don’t know, without I told Dr. MacMillan to. I told you (Attorney Robison) to myself; I told you to go up and see he had everything that was needed.
££Q. Was you in any way indebted to Haw in any respect during any of the time that you was advancing him money? A. No, sir; I was not.
“Q. Was yon under any obligations to Haw at any time this agreement was made'in any way? A. No, sir.
“ Q. How often did you talk to Thomas Haw about his business affairs? A. A number of times.
“Q. Do you have any idea how many times you have heard him make that statement or say that? A.. Dozens of times, as far as that goes. I don’t know how many, several different times.
“Q. Mr, Grant, about how much work did you do on this property, this group of claims? A. Well, we run a'1,000 foot tunnel, a little better than 1,000 feet, besides work done on the outside.
“Q. About what did it cost you a foot to run that tunnel? A. We figured about $10 a foot.
“Q. Did you do other representing there on these various claims? A. Yes; we did; I did.
“Q. And also other representing work on the claims of Thomas Haw? A. We did; yes, sir.
“Q. That is the three claims in question. -A. Yes, sir.
“Q. How many years did that take you, Mr. Grant; how long were you doing the work? A. I think we started the tunnel in 1907, and worked on it until 1912.
“Q. Who paid for Thomas Haw’s part of that work down there ? A. I did.
“Q. Did Thomas Haw also perform some work and labor up there during this time? A. Yes; he did.
“Q. What did he do? A. Well, Tommie done the cooking for us, and once in a while he would go out and prospect around and do what little he could. He was not able to do much.
“Q. What were you doing during that time? A. I worked in the tunnel different times.
“Q. Mr. Eipley also worked in the tunnel? A. Yes; he did.
“Q. At that time? A. Yes.
“Q. Mr. Grant, did you keep any account of the money that was advanced by you to Thomas Haw during the time that this agreement was in force between yon? A. I didn’t keep no close record of it at all.
“Q. That extended over a period of something like six years, did it? A. It did; yes, sir.
“Q. Now, at the time of this agreement or during the various talks between you and Thomas Haw, at any time was there ever anything said about any interest being paid upon this money? A. No, sir; there was not.”
Hpon cross-examination Mr. Grant testified in part as follows :
“Q. Mr. Grant, when was it that you said this agreement was first made between you and Mr. Haw? A. Well, it was along in 1905 and 1906; I would not say for sure which.
“Q. In 1905 or 1906? A. Yes, sir.
“Q. And what time in the year was it? A. Well, I don’t know. !
“Q. The agreement was at that time that you were to put up for him certain money, and that when he sold the mining claims, he would ’pay you—is that it ? A. How is that ?
“Q. You were to put up for him certain moneys, and when he sold his mining claims, he would pay you; is that it? A. Yes, sir.
“Q. This applied to all mining claims which he then was possessed of, did it? A. Yes, sir; in the Elkhom district.
“Q. That is the three involved in this case and some other mining claims he had scattered around in the Argenta district? A. No; sir.
“Q. Were there other mining claims besides those included in that understanding? A. Not in this agreement between Mr. Haw and I.
“Q. Immediately after the agreement was made, did you advance him any money? A. I did.
“Q. How much did you advance him? A. I could not tell you just what it was.
“Q. When did you advance it to him? you that. A. I could not tell
“ Q. You don’t know whether that was in 1905 or 1906? A. I would not say that.
“Q. After the first, when was the second payment or advancement of money made to him? A. I never kept no dates of it.-
“Q. What was the amount? A. I never kept no track of the amounts even.
‘ ‘ Q. How many different times were there when you advanced him money? A. I could not say as to how many times.
“Q. And yet he was to pay you back if he sold the mining claims? How were you going to know how much you had advanced him? A. I left that to his honesty.
“Q. That is, you gave him money under an agreement that he was to repay you whenever he had sold the claims, and you made no charge against him for the amount? A. No, sir; I did not.
“Q. You haven’t any entry in any book or any memorandum of any kind to show the amounts and dates? A. I have not at the present time; no, sir.
‘ ‘ Q. When did you cease to advance him money ? A. I never did.
“Q. He died on July 15, 1913, or thereabouts. Did you advance him any money up to that time—on that date—or at a date closely preceding that? A. I did; yes, sir.
“Q. How much did you advance him then? What was the last payment you made, in other words? A. Well, I could not tell you that.
“Q. You, of course, didn’t know he was'going to die at that time? A. I did not; no, sir.
“Q. You made no entry in your books so as to have the amount that you then advanced ? A. No; I did not.
“Q. At that time you were engaged in business at Dillon? A. I was.
“Q. And kept books in connection with your business? A. Yes, sir.
“Q. And yet there was na entry of any kind made by you concerning this transaction ? A. No; there was not.
“Q. You, of course, then, in testifying as to the amounts of those advancements, have no definite information to convey to the jury concerning that matter? A. Nothing definitely.
“Q. The best that you can do concerning the matter is to venture a guess? A. Yes, sir.
“Q. You don’t know whether it is, though, accurately $1,000, $1,500, or $2,000, or what it is? A. I know it is more money than that.
“Q. How did you pay Mr. Haw when you did advance it? A. He would come and ask me for some money, anywheres from $10 up.
“Q. You gave him the money? A. Yes.
“Q. You never gave him any checks? A. Not that I remember of.
“Q. Have you examined, your checks to determine whether you have any checks payable to the order of Thomas Haw, which was subsequently indorsed and paid through the bank or clearing house? A. No; not that I know of.
“Q. After the first conversation that you had with him in relation to this agreement here in 1905, what was the occasion of his referring to it again, or repeating it? How did that matter arise? A. Because I was accommodating him, I suppose; giving him money to live on.
“Q. You had your agreement on a certain day as to what you were to do and what he was to do. How did it happen that subsequent 'discussion of what the terms of that agreement were came up? A. He wanted to keep it fresh in my memory, I guess.
“Q. You knew you had such an agreement? A. I certainly did.
“Q. He knew it, if he made it, I suppose? A. Yes, sir.
“Q. Why was it that there was subsequent discussion concerning that agreement? A. I don’t know why it was.
“Q. You said he frequently referred to it? A. Yes, sir.
“Q. How frequently? A. Oh, I could not tell you.
“Q. Once' a month or once a year, or how? A. It may have been two or three times a month, or it may have been every two or three months.
“Q. By the way, Mr. Grant, do you recall the fact that he had some mining claims up at Argenta? A. Yes, sir.
“Q. You knew of that fact? A. I did.
“Q. He received money from time to time through you upon those mines there as royalty or otherwise? A. A little, yes.
“Q. He had received money on that as late as 1912 through you, did he not? A. No, sir; I don’t think so.
“Q. Just before—well, in 1911—just before this agreement was signed between you, Mr. Felt, Mr. Ripley, Mr. Robison, and Haw, he received a payment through you from the Argenta mines, did he not? A. I could not say as to that.
“Q. Is it not a fact that at all times after you people began to drive the tunnel that you have referred to that Thomas Haw received from you pretty frequently remittances from the Argenta mines he owned? A. Yery little.
“Q. Did you keep an account of the amount you paid him from those mines? A. No; I did not.
“Q. You simply received it and paid it over? A. Yes, sir.
‘1Q. From whom did you receive it ? A. It came through the Washoe Smelter Works.
“Q. Where was that smelter? A. Anaconda, I believe. Anaconda Smelting Company.
“Q. How much altogether in the year 1907, did you pay him as receipts from the Argenta mine? A. I could not tell you. I don’t remember.
“Q. Well, was it as much as $250? A. I could not say as to that.
“Q. You did receive money that year, and that extended over a long period, of years—the°receipts from that Argenta property? A. I don’t know how many years.
“Q. It was quite a long time in there, was it not, before his death? A. Not very many years; no.
“Q. It was at least five or six years; it was during all the time after 1907 down to the time this Felt, Ripley, Grant, Robison, and Ilaw agreement was signed; in other words, the agreement of January 16, 1911, was it not? A. I don’t know; I couldn’t say as to that. I don’t think it was, though.
“Q. "What were the usual payments that you received and turned over to Haw during that time? How much would you receive at a time? A. The royalty would run along a hundred, hundred twenty, hundred fifteen, eighteen, something like that, as near as I can remember.
“Q. How frequently would those checks be received by you and the proceeds paid over to Thomas Haw? A. Not very frequently, possibly—well, I don’t know.
“Q. What is your best recollection, Mr. Grant, as to the amount you paid him, for instance, in the year 1911? A. I have no idea. I don’t know a thing about that.
“Q. Did you have an idea as to the amount in 1910? A. No, sir.
“Q. The check was made payable to you, was it not? A. I think it was.
“Q. And you indorsed the check and sent it through the banks to be paid, of course, and then you paid the money, or some of it, over to Thomas Haw; is that the arrangement? A. Yes, sir.
“Q. You kept no record at all of the amounts of those checks? A. I did not; no, sir.
“Q. You do not claim that these Argenta mines are included in this agreement that you had with Thomas Haw—that you have testified to this afternoon? A. They had nothing to do with that.
“Q. They had nothing to do with that? A. No, sir.”
B. J. Ripley, one of those named as a party defendant in this action, testified as a witness on behalf of the defendant Grant in part as follows:
“Q. You are one of the owners in the so-called group— central group, in the Elkhorn mine? A. Yes, sir.
“Q. One of the parties to this Allen contract? A. Yes, sir.
“Q. Did you know Thomas Haw during his lifetime? A. Yes, sir.
“Q. How long had you known him? A. I have probably known him in the neighborhood of twenty years, twenty-five, maybe.
“Q. Did you at any time stay or work up in the Elkhorn district yourself at a time when Thomas Haw was there, and were you working at the time he was there? A. Yes, sir.
“Q. Did you have any talk with him, Mr. Ripley, as to the disposition which he expected to make of his property at the time of his death? A. Yes; I had a talk with him. I think it was the winter of 1911. I had a talk with Thomas Haw, and I asked him—I says—it just came up in a casual way. We were sitting in the cabin and I said to him: ‘What disposition have you ever made of your property in case you should die ? ’ ‘Well,’ he says, ‘it is all fixed.’ He says: ‘Nobody quarrel over what I got.’
“Q. What year was that? A. That was in 1911.
“Q. Do you remember the month and day of the month? A. It was either in November or December, 1911.”
Forest Herr, a witness on the part of the defendant Grant, testified in part as follows:
“Q. Was you acquainted with Thomas "Haw during his lifetime? A. Yes, sir.
“Q. Did you know him in the Elkhorn mining district? A. Yes, sir.
‘‘Q. Did you have any conversation with him in the Elkhorn district relative to Mr. Grant and his property? A. Yes; he told me one day—
“Q. Just state what your conversation was. A. Well, he told me if it had not been for Mr. Grant he could not have kept up the assessment work; that he had been advancing him money. He told me another thing: ‘When I die, I am’—he would leave everything to Mr. Grant. He told me that in Elkhorn.
“Q. When was this conversation, Mr. Herr? A. Well, I think it was in 1906, I would not be sure; it was either 1906 or 1907; I would not be sure.”
M. E. Henneberry, a witness on behalf of the defendant Grant, testified in part as follows:
. “Q. Was you acquainted with Thomas Haw during his lifetime? A. I was.
‘‘Q. What was that acquaintance with Mr. Thomas Haw, intimate or otherwise? A. Very intimate.
“ Q. How long had you known Mr. Haw? A. Oh, I suppose thirty-five years.
‘‘Q. I will ask you if you knew anything of the business relations between Dan Grant and Thomas Haw? A. Well, I had heard they had been in mines together.
‘‘Q. I will ask you if just a short time before his death, when he was going to Butte for treatment, if you had any conversation with Mr. Haw at that time as to his financial condition with relation to being supplied with funds by Mr. Grant? A. Yes; I had a conversation with him.
“Q. About when did this occur, as near as you know? A. I think it was along about the 1st of June in the year 1913.
‘‘Q. And whereabouts? A. At the depot over here at the platform.
‘‘Q. In Dillon? A. Yes, sir.
“Q. What conversation did you have with him? Just go ahead and state the conversation you had with him relative to Mr. Grant furnishing him with funds. A. I asked him if he had any money. He said yes he had money. Tommie and I were pretty intimate. I said: ‘How much money?’ He said he had $100 or over that Grant had given him, $100 or over to take care of him while he was there.”
Phil Thorp, a witness on behalf of the defendant, testified in part as follows:
“Q. Were you acquainted with Thomas Haw during his lifetime? A. Tes, sir.
“Q. How long had you known him? A. Oh, along in the early 80’s.
“Q. I will ask you if Mr. Haw said anything to you about his financial condition at any time since 1906. A. Just made the remark—yes.
“Q. I will ask you now if he has told you where he was getting financial aid, or he has told you he was getting financial aid? A. Yes.
“Q. State what that conversation was, now, relative to Mr. Grant. A. He said that Mr. Grant had given him money at different times. I had loaned him money, and he told me to go to Mr. Grant to get it.
“Q. Did you get your money from Mr. Grant to cover this? A. I did.”
The witness C. W. Eobison, one of the defendants named in this action, and who appears to have acted as attorney for Thomas Haw in his lifetime, and also for the defendant Daniel Grant, testified for the defendant Grant in part as follows:
“Q. Were you acquainted with Thomas Haw during his lifetime? A. I was.
“Q. For how long did you know him? A. I have known Tommie Haw since the year 1900; during the year 1900, that was the time when I first became acquainted with him.
“Q. At that time what was he doing? A. Well, he was interested in a ranch to a certain extent, at that time, sheep.
“Q. Did you know what his financial condition was at that time? A. He was becoming somewhat involved in debt along about that time.
“Q. He had some property left, did he? A. Yes; he had some property.
“Q. Some considerable property, was it at that time? A. It was, as I understood from him and the community.
“Q. You were practicing law in Dillon at that time, were yon ? A. I located here at the time.
“Q. You have been here as an attorney ever since? A. I have.
“Q. Did you do any business for Thomas Haw during those years? A. I think the first business that I done for Thomas Haw was when—was in 1903.
“Q. Were you at that time attorney for Mr. Grant also? A. I don’t remember. I started in to do Mr. Grant’s business along in those years some place, as quick as—just prior to the time he became interested in the Elkhorn district.
“Q. You were interested in the Elkhorn district yourself? A. Yes; I became interested a short time after that. * * *
“Q. Well, now, will you please confine your testimony to conversations had when Mr. Grant was present, and state what those conversations were? A. Well, it was talked over different times. Sometimes it was in my presence, in my office, and sometimes it would be in Mr. Grant’s place of business. I talked with him once in the Elkhorn on that. I do not think Mr. Grant was present on that occasion. I know that the sum and substance of those conversations were, when Mr. Grant and Mr. Haw were both present, that Grant was carrying him, advancing him money, and whenever he died, Grant was to have his property, unless the property was sold before his death, and in that case he was to pay Grant whatever he would get from him.
“Q. Do you have any knowledge of Grant actually having paid money to Haw? A. I do.
“Q. Will you tell how you know and to what extent such payments were made? A. After we became interested up there together, Haw would be here, and there would be times when Grant would be away, and I have gone to the saloon myself and got money for Haw and wrote out a tab for it there, and tell Grant about that when he came back; that was his instructions that whenever he was away and Tommie was in need for me to go in and get- the money for him.
“Q. On such an occasion, how large an amount would be the sums that you would get? A. It would depend on what Tommie Haw would ask for. I think $50 was the largest amount that I ever went in and got.”
The foregoing comprises all of the evidence introduced on the part of the defendant, in support of the alleged oral agreement between Haw and the defendant Grant in the year 1905 or 1906, whereby the defendant Grant was to advance to Haw such money as he needed for his support and improvement of his mining claims during his lifetime, upon which Grant bases his rights.
Under section 8805 of the Eevised Codes of 1921, the duty is imposed upon this court to determine questions of fact in equity cases, unless for good reason a new trial or the taking of additional evidence in the district court be ordered. In approaching final decision of this case we are not unmindful that, notwithstanding the provisions of the section above alluded to, it is the settled rule that this court will hesitate to overturn findings based upon substantially conflicting evidence, justifying an inference in favor of either party. (Bordeaux v. Bordeaux, 32 Mont. 159, 80 Pac. 6; Finlen v. Heinze, 32 Mont. 354, 80 Pac. 918; Delmoe v. Long, 35 Mont. 139, 88 Pac. 778; Watkins v. Watkins, 39 Mont. 367, 102 Pac. 860; Copper Mt. Min. & S. Co. v. Butte & Corbin etc. Min. Co., 39 Mont. 487, 133 Am. St. Rep. 595, 104 Pac. 540; Murray v. Butte-Monitor T. M. Co., 41 Mont. 449, 110 Pac. 497, 112 Pac. 1132; Gibson v. Morris State Bank, 49 Mont. 60, 140 Pac. 76; In re Colbert’s Estate, 51 Mont. 455, 153 Pac. 1022.) However, in a case such as this, where there is little or no conflict in the evidence, which is unsatisfactory in character and furnishes no substantial basis for the findings of the trial court, this court will not hesitate to finally determine the rights of the parties. If a clear and satisfactory showing is not made in support of the findings, this court will in furtherance of justice, in proper cases, set them aside.
Admitting that the defendant Grant has offered some proof in support of the alleged contract, yet it cannot be said to be of such clear and convincing character as to warrant a court of equity in divesting the estate of the decedent Haw of title to his property. It seems absurd that the defendant Grant, claiming by virtue of such a contractual arrangement, should have' kept no books respecting the advancements of cash by him in fact made to Haw during the latter’s lifetime, for, had the property been sold in advance of Haw’s death, what would be the basis of settlement? How could Haw repay Grant unless some account of advancements made were kept? And since Grant was making advancements, as he says, in large amounts, to Haw, a Chinaman over sixty years of age, it is more than strange that Grant should be entirely without some method of accounting. There is no showing whatever that Haw, the Chinaman, was educated, or a bookkeeper, or that he kept any books of account. Again, in the event that the property were not sold until after Haw’s death, the defendant Grant must have realized, or should have done so, that in order to establish his rights, he must be in a position to show that he lived up to the alleged contract, made advancements, and the amount thereof. The record wholly fails to show the amount of the advancements by Grant made, nor is it clear that such as were made did not come from funds in Grant’s custody—in fact, the property of Haw, representing money received from smelter returns from the shipment of ore made from the Argenta quartz lode, mining claims to the Washoe smelter at Anaconda. It is also beyond understanding that, as to such moneys so received by Grant on Haw’s account on ore shipments, and paid to Haw from time to time, Grant should have kept no books of account whatsoever. He gave no more definite idea in his testimony as to such amounts received by him on Haw’s account and paid to the latter than as respects advancements alleged to have been made in cash to Haw from his own funds in furtherance of the alleged oral agreement, yet he professes to be a business man, and in the conduct of his saloon says that he kept books of account. Lack of explanation in these important particulars reflects discredit upon Grant’s position.
The record is wholly barren of testimony as to the purpose of -the execution of the deed to the mining claims in question, and as regards the delivery thereof. It appears to have been executed by Haw September 30, 1907, and left with Attorney Robison, but for what purpose does not appear. It was placed of record November 18, 1912, presumably, by Attorney Robison, but for what purpose, or at whose direction, is not shown. However, it is noteworthy that the agreement with Allen for the sale of the property was made three days before (November 15, 1912), and that Haw does not appear to have been a party thereto, although he was a party to the contract of January 16, 1911.
Furthermore, Grant says that, even though the deed was recorded, he claimed no greater right thereunder than before during Haw’s lifetime. He testified: “Q. Then, when you recorded this instrument, you recorded it under the theory that he owed you money? A. I did not. I recorded it so we could give a clear title to Mr. Allen for these claims. Q. That was the only reason? A. Yes, sir. Q. At that time you were representing, in the signing of the agreement, Thomas Haw, were you not? A. I was; yes, sir. Q. He had in the option then the same interest that you and the other four parties to the contract of January 16, 1911, had fixed among yourselves as your interest in the group. Is that not a fact? A. Yes; it is. Q. That is when you signed Exhibit 1 for the defendant—the option to Governor Allen—you did so in your own interest in central group of claims, and Tommie Haw’s interest in the Grotto, Dubois, and Leap Year claims—that is a fact? A. In the group of claims; yes, sir. Q. In this option then, to Governor Allen, when the Haw interest—you signed this for Haw and yourself? A. Yes, sir. Q. And Haw remained, as to you, the owner of these three claims thereafter, did he not, except the legal title stood in you? That is a fact? A. Yes, sir.”
The principal beneficiary of the testator, Haw, under the terms of his will, bearing date July 9, 1913, is Mrs. Mary J. Gray, a rooming-house keeper, who is the wife of the plaintiff, George Gray, named therein as executor. Haw stayed at Mrs. Gray’s house during his last illness, and died there.
It must be noted that the defendant Grant bases his ease solely upon the oral statements made by Haw, a Chinaman, who is. now dead¡ The declarations made by the deceased were properly admissible to prove the contract (section 10514, Rev. Codes 1921) though testimony of this character is not satisfactory, and should be received and weighed with caution (Roy v. King’s Estate, 55 Mont. 567, 572, 179 Pac. 821).
Mr. Chief Justice Brantly, speaking for this court regarding such character of evidence, in the case of Escallier v. Great Northern Ry. Co., 46 Mont. 238, 248, 127 Pac. 458, 461 (Ann. Cas. 1914B, 468) well said: “Speaking generally, this character of evidence is the weakest and least satisfactory of any in persuasive value. ‘With respect to all verbal admissions, it may be observed that they ought to be received with great caution. The evidence, consisting as it does in the mere repetition of oral statements, is subject to much imperfection and mistake; the party himself either being misinformed, or not having clearly expressed his own meaning, or the witness having misunderstood him. It frequently happens, also, that the witness by unintentionally altering a few of the expressions really used gives an effect to the statement completely at variance with what the party actually did say.’ (1 Greenleaf on Evidence, 16th ed., sec. 200.) The weakness of this character of evidence is recognized by the statute, and it is thereby made the duty of a trial court on all proper occasions to instruct the jury that it is to be viewed with caution. (Rev. Codes 1907, sec. 8028; McCrimmon v. Murray, 43 Mont. 457, 117 Pac. 73.) It is a quality which attaches to all oral testimony as to declarations or admissions which are relevant to the issues on trial, and are competent because they are against the interest of the party making them or fall within some other rule of admissibility. Though the witness who testifies to the oral statement may be honest, his memory may be at fault, or he may have failed to comprehend and interpret the statement as it was intended to be understood by the speaker. * * * Moreover, so easy is it to fabricate such evidence that there is strong temptation to a dishonest, interested witness to do so.” (See, also, 17 Cye. 606, quoted from at length, with approval, in the case last cited.)
Rehearing denied April 3, 1922.
The judgment is reversed and the cause remanded to the district court, with-directions to enter judgment for the plaintiff in accordance with the prayer of- the supplemental complaint.
Reversed and remanded.
Mr. Chief Justice Brantly and Associate Justices Cooper and Holloway concur.
Mr. Justice Reynolds, being absent, takes no part in this decision.
|
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] |
MR. CHIEF COMMISSIONER STARK
prepared the opin ion for the court.
The complaint, in substance, alleges: That the defendant Montana Life Insurance Company was at the times mentioned, and still is, a corporation under the laws of Montana, and that George M. Guteh was the general agent of said company. That Gutch was engaged in soliciting business for his company, and while doing so it was his general practice and custom as such general agent to represent to prospective and actual patrons of his company that the insurance contemplated was binding from the date the first year’s premium was paid, provided the medical examination by the company’s examiner was favorable and showed the applicant to be a good risk, and that in the course of such business he had procured many profitable contracts of insurance for said life insurance com- party in this state. That on the tenth day of September, 1918, Guteh, as such general agent of the defendant insurance company, insured the life of Horace B. Mayfield in the sum of $1,000, payable to his wife, the plaintiff, by a contract which was partly written and partly verbal. That Mayfield paid the first year’s premium on said contract, and thereupon the insurance company executed and delivered to him its binding receipt, as follows:
“No. 4677. Sept. 10, 1918.
“Received this day from Horace B. Mayfield the sum of forty-five and 5/100 ($45.05) dollars in cash, in full payment of the first annual premium of $45.05 on a life insurance policy of one thousand dollars applied from the Montana Life Insurance Company, of Helena, Mont. This receipt is issued by the company subject to the terms and conditions printed on the other side hereof.
“[Signed] Montana Life Insurance Company,
“By J. M. Miller, Secretary.
“Not valid unless signed by George M. Gutch, agent.
“Signed this - day of -, 191—.
“[Signed] George M. Gutch, Agent.”
That on the back of the said receipt is printed in small type the following words, to-wit: “Terms and Conditions. (1) The applicant agrees to be promptly examined by a regular appointed medical examiner of the company. If the applicant fails to present himself for such examination within a period of 60 days from the date of this receipt, the amount paid by the applicant shall, at the option of the company, be forfeited to the company. (2) The insurance applied for by the terms of this receipt shall take effect upon the date of approval of same at the home office of the company, after the full premium thereof has been paid in cash, otherwise said insurance shall not take effect until the unpaid balance of the premium has been paid to the company or its agent. (3) If the insurance as hereby applied for is not approved by the company within 60 days of the receipt of the com pleted application therefor at the Home Office, the amount paid hereunder will be returned to the applicant.” That in making this contract said Guteh followed his general custom and represented to Mayfield that said contract was in force from that date.
It is further alleged that the above-mentioned “terms and conditions” numbered 1, 2, and 3 were not considered as a part of said insurance contract by either of the parties thereto, and that they were no part of said contract of insurance, that Guteh as such general agent agreed with Mayfield to have said insurance contract embodied into a written policy of insurance to be executed and delivered to him within a reasonable time, but that the insurance company has negligently and illegally refused to issue said policy.
It is further alleged that on or about September 10, 1918, at the special request of Guteh, as general agent of the insurance company, Mayfield went to Dr. E. P. Colvin, an examining physician duly appointed by and acting for said insurance company, and was duly examined in the manner required by the insurance company, which examination was favorable and of such disclosures and nature as to warrant and justify the insurance as agreed upon and disclosed that Mayfield was a good insurance risk at that time, as contemplated in said life insurance contract, and thereupon and at that time the said Guteh again informed him that he was insured in the Montana Life Insurance Company in the sum of $1,000, and that, in case of his death, his wife would receive from the Montana Life Insurance Company the sum of $1,000, and that said Montana Life Insurance Company would be obligated to pay said $1,000 from that date.
The complaint further alleges that Mayfield was especially desirous of having his life insured at that particular time for the reason that he then contemplated a trip from his ranch in Carter county, Montana, to St. Louis, Missouri, with several carloads of horses, and for the further reason that at that time there was an epidemic of influenza prevalent among the people in his locality, and that he believed in and relied upon the statements made to him by Gutch and otherwise would not have paid his money or have taken the physical examination, or have had anything to do with the defendants, but would have arranged for insurance with some other company.
It is further alleged that on or about said tenth day of September, 1918, Mayfield started on his trip with said horses; that he contracted the influenza, and as a result thereof died at St. Louis, Missouri, on October 20, 1918; that on the thirty-first day of October, 1918, the plaintiff, wife of the deceased Mayfield, and beneficiary under the alleged contract of insurance, furnished the insurance company with notice and proof of the death of Mayfield, and in all respects has performed the conditions of the insurance contract on her part; but that the insurance company has refused to'pay her said $1,000, and denies any liability on said contract. The complaint further shows that the insurance company retained the $45.05 premium paid by Mayfield until some time in the month of December, 1918, when a check for the amount thereof was delivered to the plaintiff by the company, which she declined to accept and afterward returned to the company.
To this complaint the defendants interposed a general demurrer, which was sustained by the court. The plaintiff elected to stand upon her complaint, and judgment was entered against her, dismissing the complaint, from which judgment she has appealed to this court.
The authorities are agreed that, in the absence of a statute to the contrary, an oral contract of insurance which contains all of the essentials to a contract is valid. (14 E. C. L. 880; 1 Cooley’s Briefs on the Law of Insurance,' 364; Kerr on Insurance, sec. 29.)
It is to be observed that the entire transaction between the applicant, Mayfield and the defendant insurance company was carried on through George M. Gutch, alleged to be a general agent of the company, and all of his acts, statements and declarations with reference to the contract under consideration are to be viewed in the light of this relation.
In the case of Fraser v. Home Life Ins. Co., 71 Vt. 482, 45 Atl. 1046, the question was presented whether an extension of time for payment of a premium on a life insurance policy had been made so as to bind the company. The policy contained a provision to the effect that “No agent has power on behalf of the company * * * to extend the time for paying a premium.” The extension had been granted by a general agent, and the court, in holding that the company was bound, said: “ £A general agent, in absence of proof to the contrary, is presumed to possess authority to transact the business of the company generally,’ certainly such business as related to the procurement and continuance of risks. He was the company’s alter ego.”
In 3 Cooley’s Briefs on the Law of Insurance, page 2478, speaking of the authority of agents to waive conditions and forfeitures, it is said: “The extent of an agent’s power to waive conditions and forfeitures is, of course, dependent on the extent of his authority to act for the insurer. If he is a general agent, his power to waive conditions and forfeitures is, according to the weight of authority, coextensive with that of the insurance company itself.” And in support of the text the author cites a long line of authorities.
While some of the authorities cited are cases involving fire insurance contracts, so far as the question involved in this case is concerned, that is immaterial, for in the authority last referred to, at page'2479, it is "said: “With reference to waiver, no distinction seems to be made between the power of a general agent of a life insurance company and that of a fire insurance company.”
In the case of Halle v. New York Life Ins. Co., 22 Ky. Law Rep. 740, 58 S. W. 822, it appeared that “Joseph Halle was a citizen of the city of Manaos, Brazil, South America, and on September 21, 1892, at the solicitation of one Garcia, general agent for the appellee company, applied to that company for an insurance on his life in the sum of 20,000 milreis, Brazilian • currency, or about $10,920. The required medical examination was made, the application duly forwarded, and the first semi-annual premium paid, to the financial agents of the company. The following ‘conditional receipt’ was then delivered to the assured: ‘Conditional Receipt. No. Z17,285. Age 40 years. Amount, reis 20,000,000, 3,000. Table A. Insurance, ordinary tontine. Premium, 459,000rs. 462,000. Payable half yearly. Manaos, Sept. 21, 1892. Received from Mr. Joseph Halle the sum of four hundred and sixty milreis, Brazilian money of the United States, to be applied to the first half-yearly premium on an insurance of twenty-thousand milreis, Brazilian dollars, on the life of the same, for which a formal application is made to the New York Life Insurance Company, provided that said application be accepted by said company, and that a policy be issued by virtue thereof. If said insurance is issued, it should begin on September 21,1892, subject to the conditions and clauses of the policies of the said company. It is further understood and agreed that, if the company does not issue the policy consistently with said formal application, the above-mentioned sum will be refunded to the bearer of this receipt, and in exchange for it. No one except the president, vice president, second vice president, or actuary is authorized to make, alter, or cancel contracts or waive forfeitures. This receipt will become null and void if any amendment or erasure is made in the printed form. [Stamp.] The company returns, in ease of declining the risk, the amount in reis received, without interest, but without reduction. [Signed] New York Life Insurance Company, Sub-department of Brazil. C. C. Simmons, Manager. M: Storch, Accountant. Countersigned by Bernardo Bockris & Co., Bankers.’ ” This application reached New York on November 22, 1892, but the company neither accepted nor rejected it. Instead, it made out two policies on a different plan, which were forwarded to the company’s bankers to be submitted to the applicant. In March, 1893, Halle called on these bankers to make the second payment on his policy, and then first learned of the proposed change in his insurance. He immediately wrote the company, declining to accept the policies, but before any answer to his communication was received he died. The company declined to pay the death claim upon the theory that no insurance had been effected as the minds of the contracting parties had never met, whereupon suit was brought by the widow and children of Halle. At the trial, to quote the language of the court: “It is shown, by satisfactory and uncontradicted proof, that it was agreed between the agent and appellant (applicant) that his insurance should begin on the date of the receipt when the first premium was paid.” The defendant company prevailed in the lower court, but on appeal the decision was reversed, and it was held that the plaintiffs were entitled to recover the insurance money in dispute. In commenting upon the fact that the receipt issued at the time the application was made provided in effect that the insurance should only become effective on September 21, 1892, if the application was accepted by the company, the court said: “To the contention that the applicant agreed otherwise in the application, and that no officer or agent other than the president, vice president, etc., could make special contracts, it is sufficient to say that the agent Garcia was the general agent of the company, and so signed his name in the application of Halle which was considered by the company. This agent does not testify, and the disinterested witnesses present when the transaction with Halle occurred leave no room to doubt the terms of the contract. It was pressed on the applicant that he stood insured from the very time he paid his money, a consideration of no small moment, in view of the great distance the parties were from the home office, and the length of time which must elapse before permanent insurance could be obtained.”
This language is particularly applicable to this case, where it appears from the allegations of the complaint that the ap plicant, Mayfield, was “especially desirous of having his life insured at this particular time” by reason of a contemplated journey from his home to St. Louis, Missouri, and also because of the prevalence of an epidemic of influenza in his neighborhood and the positive statement of the general agent of the company made to applicant at the close of the medical examination of the applicant, that he was then “insured in the Montana Life Insurance Company in the sum of $1,000, and that in case of his death his wife, Mabel A. Mayfield, would recover from the Montana Life Insurance Company the sum of $1,000, and that the said Montana Life ■ Insurance Company would be obligated to pay said $1,000 from that date.”
The Halle Case is referred to and explained in Mohrstadt v. Mutual Life Ins. Co. of New York, 115 Fed. 81, 52 C. C. A. 675, when the court, referring to this case, said: “The court found that there was a complete oral agreement for temporary insurance, and that this contract continued in force pending a proposition by the company to make a different contract than the one applied for, or, in other words, until there had been a final termination of pending negotiations.”
In a later Kentucky case, Northwestern Mutual Life Ins. Co. v. Neafus, 145 Ky. 563, 36 L. R. A. (n. s.) 1211, 140 S. W. 1026, the court made reference to the Halle Case, and, while disapproving it in part, did not criticise that portion to which we have made reference. The court then said: “It will be observed that in this case it was agreed by and between Halle and the agent of the company having authority to speak for it, and to vary the terms of the application, that Halle stood insured from the date of the receipt, and from the language of the opinion it cannot be doubted that this parol contract between Halle and the agent was in itself sufficient to authorize the court in holding that Halle was insured from the date of his application.” The same case is cited in 1 Cooley’s Briefs on the Law of Insurance, page 845, as sustaining the statement in the text that “An agreement between the applicant and the agent that the insurance shall begin on payment of the first premium, and that, if the policy is not issued, the sum should be refunded, may be maintained as an agreement for temporary insurance, to continue until the application should be accepted or rejected.”
According to the allegations of the complaint in this case Guteh was a general agent of the insurance company, and in that capacity, while transacting business for it, made it a general practice to represent to prospective patrons that the insurance taken out through him would be binding on the company from the date of the payment of the first year’s premium and the passing of a satisfactory medical examination, and that the company had enjoyed a considerable amount of profitable business through the activities of this agent. The complaint further shows that these representations were made to Mayfield at the time he paid his first annual premium and took his medical examination and were believed in and relied upon by him.
We hold that under these allegations the general agent, Guteh, was clothed, prima facie, with the ostensible authority to, and did, waive the conditions of the receipt issued to May-field, .and that his agreement that the insurance should be in force from the date of its issuance was binding upon the company (sec. 7947, Eev. Codes 1921), and therefore that the complaint states a cause of action.
For the reasons above indicated, we recommend that the judgment be reversed and the cause remanded to the district court, with directions to overrule the demurrer.
Per Curiam: For the reasons given in the foregoing opinion, the judgment is reversed and the cause remanded to the district court, with directions to overrule the demurrer.
Reversed.
|
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] |
MR. CHIEF JUSTICE' BRANTLY
delivered the opinion of the court.
Action for damages for breach of a contract. It is alleged that in January, 1917, one Julius Bain was the owner of a tract of land situated in the counties of Fergus and Chouteau consisting of 3,600 acres; that he (Bain) had executed and delivered to one James Awberry an option contract for the sale to him of the land at the price of $20 per acre; that on or about February 15, 1917, the defendant agreed with the plaintiff that if plaintiff would procure the assignment of the option contract to defendant by Awberry so that, he could have the right to purchase the land at the price named therein, he would pay the plaintiff a commission of one dollar per acre, or five per cent of the entire purchase price named in the option contract; that plaintiff, pursuant to the agreement, induced Awberry to assign the option contract to defendant; that subsequently the defendant purchased all the land from Bain at the price of $20 per acre; and that the plaintiff became entitled to demand of the defendant, and did demand of him, the payment of $3,600, which he refused.
The defendant' admitted that the land was owned by Bain ,and that defendant purchased it during the year 1917 at the price of $20 per acre, amounting to the total sum of $72,000, but denied all the other allegations of the complaint. As a special defense he alleged that the agreement under which the defendant was sought to be charged, was one of employment of an agent or broker to purchase real estate upon a commission; that it was not embodied in writing, and that it was therefore void under subdivision 6 of section 5017 of the Revised Codes of 1907 (sec. 7519, Rev. Codes 1921). As a second special defense he alleged that during the year 1916-17 the plaintiff and defendant had various business transactions; that on or about June 8, 1917, there was a settlement between them of all these transactions, by wüich it was found that the plaintiff was indebted to the defendant in a balance of $25; and that he thereupon executed to the defendant his promissory note for that sum due thirty days after date.
Plaintiff by reply tendered issue upon all the allegations of the first and second special defenses, except that he admitted that a settlement did take place between the plaintiff and defendant as alleged in the answer, and alleged that it was not connected in any way with the transaction out of which this action arose. Upon the issues thus framed the cause was submitted to the court without a jury. It found the facts as alleged in the complaint and rendered judgment in favor of the plaintiff. Defendant has appealed from the judgment and an order denying his motion for a new trial. Counsel has made several assignments of error in his brief, but all of them present the one question, namely: Was the evidence sufficient to justify the findings?
Counsel insists that.since it appears from the evidence that the agreement by which plaintiff was employed by defendant was not embodied in a writing signed by the latter, it came within the provisions of the statute of frauds and was invalid. This contention proceeds upon the assumption that the- plaintiff was employed as a broker or agent to purchase real estate upon a commission. The evidence does not justify this assumption. It discloses that the contract gave to Aw-berry a mere option to purchase the land within a specified time. Counsel falls into error in failing to distinguish between a contract of purchase and sale, and one granting a mere option to buy. In the early case of Ide v. Leiser, 10 Mont. 5, 24 Am. St. Rep. 17, 24 Pac. 695, Mr. Justice De Witt defined an option as follows: “An option * # * is neither a sale, nor an agreement to sell. It is simply a contract, by which the owner of property (real estate being the species we are now discussing) agrees with another person that he shall have the right to buy his property, at a fixed price, withiu a time certain. He does not sell his land; he does not then agree to sell it; but he does then sell something, viz., the right or privilege to buy at the election, or option, of the other party. The second party gets in praesenti, not lands, or an agreement that he shall have- lands, but he does get something of value, that is, the right to call for and receive lands if he elects. The owner parts with his right to sell his lands (except to the second party) for a limited period. The second party receives this right, or, rather, from his point of view, he receives the right to elect to buy.” Under this definition the holder of the option is not vested with any interest in the land, but, as said by Mr. Justice De Witt, he gets “in praesenti not lands or an agreement that he shall have lands, but he does get something of value, that is, the right to call for and receive lands if he so elects.” The doctrine announced in this ease has been approved by this court in later cases. (Snider v. Yarbrough, 43 Mont. 203, 115 Pac. 411; Winslow v. Dundom, 46 Mont. 71, 125 Pac. 136; Tyler v. Tyler, 50 Mont. 65, 144 Pac. 1090.) The holder of the option, then, acquires nothing but a personal privilege to purchase, which does not ripen into an interest in the land until he chooses to exercise the privilege conferred by the option and complies with the terms upon which he obtained it. So it is held by the authorities generally, from a number of which found in the brief of counsel for plaintiff we cite the following: James on Option Contract, sec. 502; Richardson v. Hardwich, 106 U. S. 252, 27 L. Ed. 145, 1 Sup. Ct. Rep. 213; Benedict v. Pincus, 191 N. Y. 377, 84 N. E. 284; Thacher v. Weston, 197 Mass. 143, 83 N. E. 360; Patterson v. Farmington St. Ry. Co., 76 Conn. 628, 57 Atl. 853; Verstine v. Yeaney, 210 Pa. 199, 59 Atl. 689.
Awberry having acquired no interest in the land, but a mere personal privilege which he could lawfully assign to the defendant (Winslow v. Dundom, supra), the agreement- between the plaintiff and the defendant did not amount to an employment of the former as a broker or agent to buy land or an interest in land which by the statute is required to be in writing, but to an engagement by him to perform a service which could be lawfully made by oral contract.
Counsel contends further, that the evidence taken as a whole was insufficient to justify the finding that the agreement was made as alleged, particularly so in view of the settlement made between plaintiff and defendant on June 8, 1917, after plaintiff’s services had been rendered. There was a direct conflict in the testimony of plaintiff and defendant as to the making of the agreement as well as to the procurement of the assignment by plaintiff. There was no controversy but that the option was obtained from Bain by Awberry about January 20, 1917, and that the latter assigned it to the defendant on or about March 15, 1917. The plaintiff testified that after he was employed by defendant to procure the assignment from Awberry, he found Awberry and took him to the defendant and thus brought about negotiations between them which resulted in the making of the assignment. The defendant testified in substance that though the plaintiff brought Awberry to his office and introduced him, the mission of Awberry was to secure a loan through the defendant who was engaged in a farm loan business in order to enable him to take up the option; that during the negotiations which resulted in the assignment, the plaintiff was present but had nothing further to do with the matter and that nothing was said between plaintiff and defendant about the option. Leaving out of consideration the settlement of June 8, the evidence would sustain a finding that the agreement was made as alleged by the plaintiff.
With respect to the settlement the defendant testified that during April and May, he had loaned plaintiff different sums of money which he agreed to repay in a few days; that these sums aggregated about $250; that plaintiff made payments from time to time; that at the time of the settlement, plaintiff not having money enough to discharge his indebtedness in full, defendant asked him for his promissory note due in thirty days to cover a balance of $25 and that plaintiff thereupon executed and delivered it to him. He testified further that when the settlement was effected, the following took place: “Why, Mr. Kramer told me, he says, ‘We are now square.’ He says, ‘You don’t owe me nothing and I don’t owe you anything.’ ‘Well,’ I says, ‘of course yon owe me this $25 note; of course that is not due now.’ I says, ‘That is due in the future,’ ‘But,’ he says, ‘we are all square, ain’t we?’ ‘Yes,’ I says, ‘we are.’ He had no claims against me and asked me whether I had any more against him and I told him I didn’t. * * * Why, I had been bothering ■ him a little about that money that I had loaned him during the month of April and May and he didn’t like to settle it up so very well but I told him, I says, ‘You agreed to get this money back to me in a few days,’ and I told him I needed it. Yes, he did some work for me in my real estate business at times. ’ ’
The plaintiff was not present at the trial. His evidence was given by deposition. Being asked by his counsel what he had to say as to whether there was a full settlement of business between him and the defendant at that time, replied: “No, not on that deal. Yes, I executed a promissory note to him at that time. No, sir; that was not in settlement of this option contract business. The option contract business has never been settled between me and Schmidt.” The foregoing is all the evidence on this point.
In considering a case in which one of the defendants had executed promissory notes to plaintiff when, as he afterward claimed in an action by the plaintiff to collect the balance due on the notes, that the plaintiff was indebted to him at the timé the notes were executed, this court said: “The notes upon which the plaintiff seeks recovery were executed nearly a year afterward. The presumption obtains that defendants would not have executed these notes while the plaintiff was indebted to K. E. Hamilton in such a substantial sum as is represented by tbe items included in this counterclaim. This presumption is a rebuttable one, but it cast tbe burden upon the defendants, and we do not find any evidence in the record which tends in any measure to rebut it.” (J. I. Case etc. Machine Co. v. Hamilton, 55 Mont. 276, 176 Pac. 152.)
Rehearing denied June 5, 1922.
In a later case in which the circumstances were somewhat similar, it was said: “It is contrary to the experience and observation of mankind that one to whom another is indebted will borrow money from his debtor upon a promise to repay him and at the same time make no mention of a debt claimed to be due from the debtor. The presumption arising from such a transaction is that the lender is not indebted to the borrower.” (Crawford v. Pierse, 56 Mont. 371, 185 Pac. 315.)
Considering the facts as detailed by the defendant which the plaintiff did not controvert except by the bare statement quoted above, we do not think that plaintiff’s explanation was sufficient to overcome the presumption raised against him by his conduct. We are of the opinion that the evidence taken as a whole, viewing it in the light most favorable to the plaintiff, was not sufficient to sustain the court’s findings.
Upon the assumption that the contract had been made as alleged in the complaint, the plaintiff had earned his commission as soon as the assignment had been completed. Therefore, when the settlement was made, defendant was indebted to plaintiff for $3,600, the amount stipulated for in the contract.
The judgment and order are reversed and the cause is remanded for a new trial.
Reversed and remanded.
Mr. Justice Galen and Honorable H. H. Ewing, sitting in place of Mr. Justice Reynolds, disqualified, concur.
Mr. Justice Cooper and Mr. Justice Holloway dissent.
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] |
MR. JUSTICE GALEN
delivered the opinion of the court.
In this case the plaintiff seeks to recover $3,000 as damages from the defendant for the alleged conversion of a gas tractor,' John Deere plow, and separator. It appears that the plaintiff as the owner of such property, on or about July 12, 1917, mortgaged the same to the defendant as security for indebtedness, and on April 9, 1919, the plaintiff being in default in payments due on his debt, the defendant caused the property to be sold by the. sheriff under the terms of the mortgage. The plaintiff contends that the sale was irregular, in that part of the property, at the time of sale, was in one place and part in another; that it was not in sight at the time of the sale, and was not sold at the place designated in the published notice of sale; and that because thereof the sale was void and amounted to a conversion of the property.
After issue joined, the case was tried to a jury and resulted in a verdict and judgment in favor of plaintiff for the sum of $468.54 and costs. The appeal is from the judgment and order denying defendant’s motion for a new trial.
Though several errors are assigned, in our opinion the questions presented determinative of this ease are: Was the sale legal, and, if not, did the sale thereof constitute a conversion ?
The mortgage was given as security for an indebtedness to the defendant of $460 represented by two promissory notes. The power of sale contained in the mortgage provides: “But in case default be made in payment of the principal or interest as provided in said promissory notes, then the said mortgagee, his [its] agent, attorney or assigns are, or the sheriff of any county in which the above-described property or any part thereof may be, is hereby empowered and authorized to sell the said goods and chattels, with all and every of the appurtenances, or any part thereof, and out of the money arising from such sale to retain the said principal and interest together with the costs and charges of making such sale, and reasonable attorney’s fee, and the overplus, if any there be, shall be paid by the party making such sale to the said mortgagor, heirs or assigns. The sale under the said power of sale shall be advertised by notice posted in five public places in said county, one of which shall be posted at the designated place of sale at least five days prior to such sale, giving the time and place of sale and a description of the property to be sold. Such sale must be at public sale and the mortgagee may become a purchaser thereat.” These provisions of the mortgage are in conformity with section 8286, Bevised Codes of 1921, reading in part as follows: “It is lawful for the mortgagor of personal property to insert in his mortgage a clause authorizing the sheriff of the county in which said property, or any part thereof, may be, to execute the power of sale therein granted to the mortgagee, his legal representative and assigns, in which case the sheriff of such county, at the time of default, at the request of the mortgagee, must, and it is hereby made his duty to advertise and sell the whole or any part of the mortgaged property, wherever it may be, in the manner provided in such mortgage. # * * Notice of sale shall be given by posting five notices in five public places in the county wherein the property is to be sold, one of which shall be posted at the designated place of sale.”
Notices of the sale were posted as shown by the sheriff’s affidavit of posting, as follows: “One at Telephone Pole in Twp. 32—12. One at Post in Twp. 33 Ege. 11. One at Sec. 6 Twp. 32, Eg. 12. One at Post in Twp. 33 Ege. 11. One at Sec. 13, Twp. 33 Ege. 11, being the designated place of sale.” The notice so posted reads, in part, as follows: “And whereas, there is now due and unpaid on said in- debtedness to the said mortgagee, the sum of five hundred sixty dollars ($560.00) :
“Now therefore, the property described in said mortgage, to-wit, one 25 horse Mpls. gas tractor, one 6 bottom John Deere plow, one Mpls. 32—56 separator, or so much thereof as may be necessary, will be sold pursuant to the power of sale in said mortgage contained, which has become operative, and to the statute in such case made and provided at public sale to the highest bidder for cash on the 9th day of April, 1919, the said tractor and plow at 1 o’clock P. M. of said day at the farm house situated on the S% of section 13, township 33 N. of range 11 E., Hill county, Montana, and the said separator at 2 o’clock P. M. said day at the farm situated on the NW.14 of section 6, township 32 N. of range 12 E., Hill county, Montana, * * to satisfy the debt secured by said mortgage and the cost and expenses of whatever nature, of these foreclosure proceedings.’.’
It is noted that this notice differs from the one included in the sheriff’s return of sale, in that the property described in the latter notice bears date April 9, 1919, and fixes as the time and place of sale “the ninth day of April, 1919 at 2 o’clock P. M. of said day at Sec. 6, Twp. 32, Ege. 12, See. 13, Twp. 33, range 11, Hill county.” But as no question is raised on this discrepancy, it will be passed, and our decision will be based on the notice appearing to have been posted as above set forth, wherein it was stated that the sale of the property would be held “on the 9th day of April, 1919, the said tractor and plow at 1 o’clock P. M. of said day * * * and the said separator at 2 o’clock P. M. of said day.” There is no dispute as to the facts that the tractor, plow and separator were all sold together, at the place where the. separator was located on section 6, at 2 o’clock, April 9, 1919; that no sale nor offer of sale was made where the tractor and plow were located; and that at the time of the sale the tractor and plow were far removed from the place of sale, and not in view.
The affidavit of posting of the notices of sale, as shown by the sheriff’s return, designates section 13 as the place of sale; whereas, the sale was held, as shown by the sheriff’s return, and in fact, on section 6, three and a half miles from the place of sale as designated by the sheriff.
Under the most liberal interpretation, neither the law nor the terms of the mortgage were even substantially complied with. Both the statute and the mortgage require that, on foreclosure under power granted in the mortgage, notice shall be given by posting in five public places, one of which shall he posted at the designated place of sale. It clearly appears that but one place of sale was intended. However, should circumstances require a sale of mortgaged property in more places than one, the sales must be held at the times and the places specified and in conformity with the law and the provisions of the mortgage. Manifestly, a sale of all of the mortgaged property on section 6, when the designated place of sale was section 13, part of the property being on both of these sections, and a sale noticed at both places, and the sale made in bulk in but one of the places noticed, is so irregular that it cannot be upheld on any theory.
Statutory requirements intended to protect and enforce the mortgage lien must be strictly followed. (First Nat. Bank of Butte v. Beley, 32 Mont. 291, 80 Pac. 256), especially where a right of sale is based thereon (11 Cyc. 705). Such a summary statutory remedy must be strictly construed and followed by the mortgagee, otherwise he cannot divest the mort[3] gagor of title to his property. It is jurisdictional, and, where the mortgagee disposes of the property mortgaged without .complying with the requirements of the law or the provisions of the mortgage, he is guilty of a conversion. (Advance Thresher Co. v. Doak, 36 Okl. 532, 129 Pac. 736; National Bank of Commerce v. Jackson (Okl.), 170 Pac. 474; Marchand v. Ronaghan, 9 Idaho, 95, 72 Pac. 731; Richter v. Buchanan, 48 Wash. 32, 92 Pac. 782; Burton v. Randall, 4 Kan. App. 593, 46 Pac. 326; Kellogg v. Malick, 125 Wis. 239, 4 Ann. Cas. 893, 103 N. W. 1116, 1120; Jankowitz v. Kaplan, 138 Minn. 452, 165 N. W. 275; Swank v. Elwert, 55 Or. 487, 165 Pac. 901; Burton v. Randall, 4 Kan. App. 593, 46 Pac. 326; Anderson v. Joseph, 95 Ark. 573, 130 S. W. 165; Hoover v. Brookshier, 32 Okl. 298, 122 Pac. 171.)
The mortgagor is properly entitled to damages for a sale of mortgaged property otherwise than that prescribed by law and the terms of the mortgage agreement. (Clark v. Baker, 6 Mont. 153, 9 Pac. 911.)
In this case the irregular sale amounted to a conversion, and the plaintiff was justly entitled to recover. The case of Potter v. Lohse, 31 Mont. 91, 77 Pac. 419, cited and relied upon by the defendant, is not applicable.
The judgment and order are affirmed.
Affirmed.
Mr. Chief Justice Brantly and Associate Justices Cooper and Holloway, and Honorable H. H. Ewing, District Judge, sitting in place of Mr. Justice Reynolds, disqualified, concur.
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] |
MR. COMMISSIONER SPENCER
prepared the opinion for the court.
This cause was submitted upon an agreed statement of facts which shows the creation of Liberty county, on November 8,1919, pursuant to the provisions of Chapter 226, Laws of the Sixteenth Legislative Assembly, 1919, and comprising in part territory theretofore within the county of Hill. Under the statute taxes became delinquent at 6 o’clock P. M., November 30, 1919. The agreed statement submitted for determination the single question, “To whom did such delinquent taxes belongU’ Judgment was for plaintiff and from it defendant appealed.
We think it unnecessary to go further than the statute itself for a construction of its provisions. Section 7 provides among other things: “Delinquent taxes due to the old county against property situated in the new county shall be transcribed in and. collected by the new county.” The language of a statute must be construed in accordance with its usual and ordinary acceptation, having in view the giving of vitality to and making operative all provisions of the law, if possible, and accomplishing the intention of the legislature when ascertainable. (Secs. 7875, 7876, 8070, Rev. Codes; State ex rel. Gillett v. Cronin, 41 Mont. 293, 296, 109 Pac. 144; State ex rel. McGowan v. Sedgwick, 46 Mont. 187, 190, 127 Pac. 94; Lerch v. Missoula etc. Co., 45 Mont. 314, Ann. Cas. 1914A, 346, 123 Pac. 25; State v. Cudahy Packing Co., 33 Mont. 179, 190, 114 Am. St. Rep. 804, 8 Ann. Cas. 717, 82 Pac. 833.)
Chapter 226 is an enactment governing the creation of new counties, comprehensive in its terms, and providing for the apportionment of the property and debts of the new and old counties which are affected. In substance, it declares that after creation a valuation shall be placed upon property (certain kinds of which are enumerated) included within the old and new counties; indebtedness of the old shall be computed, and after apportionment thereof upon the basis stated in the law and settlement by the new county of its proportion, the property situated within the confines of the new county shall belong to it. (Chap. 226, see. 7, supra.)
No sufficient reason appears tp indicate any different ownership of delinquent taxes. Delinquent taxes become a lien upon the property against which they were originally levied immediately upon delinquency, and the statute provides a procedure for the collection of the same by sale. (Rev. Codes, secs. 2616 et seq.) After property was transferred from Hill to Liberty county, by reason of creation of the latter, such transfer carried with it the lien for taxes, which became enforceable only by Liberty county. No county is authorized to levy an assessment against or collect taxes upon property situated in another, because location and ownership determine the right to collect taxes in any event. Liberty county was the real party in interest for the collection of delinquent taxes upon property within its boundaries by reason of its situs. If it owned the right to collect, it owned the fruits of that right. Section 9 of Chapter 226 seems by implication at least to fortify the contention of defendant; for it provides that all proceedings by the parent county, prior to the creation of the new county, for the collection of taxes, shall inure to the benefit of the new county in so far as applicable to property situated therein.
(Submitted January 6, 1922. Decided January 16, 1922.)
We think the law, viewed as a whole, justifies the conclusion that, when the legislature said that delinquent taxes upon property situated within the new county should be transcribed in and collected by that county, its undoubted intent was they should also be owned by it.
We therefore recommend that the judgment be reversed and the cause remanded to the district court of Hill county, with directions to dismiss the complaint.
Per Curiam : For the reasons given in the foregoing opinion, the judgment is reversed and the cause remanded to the district court of Hill county, with directions to dismiss the complaint.
Reversed.
|
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At Chambers.
MR. CHIEF JUSTICE BRANTLT
delivered the opinion.
On December 30, 1921, Elmer James Mo, the petitioner, was arrested by G. B. Long, the sheriff of Sweet Grass county, Montana, under the authority of an executive warrant issued by Governor Dixon under date of November 22, 1921. The warrant was issued by the governor pursuant to a requisition made upon him by the governor of the state of Minnesota for the surrender of Mo to the authorities of the state of Minnesota for trial in that state Upon a charge of child abandonment. Upon application to me the petitioner was granted a writ of habeas corpus on the ground, as he alleged, that he is wrongfully and unlawfully detained by the sheriff, for the reason that the indictment which constitutes the charge of crime upon which the requisition is based does not charge a crime under the laws of the state of Minnesota at the time alleged, nor at any other time prior to petitioner’s departure therefrom, and that, consequently, not being "a fugitive from justice, he is entitled to his discharge.
No question is made as to the regularity of the papers or the proceedings upon which the warrant was issued, nor as to the warrant itself, as shown by the sheriff’s return to the writ. The only question submitted to me for decision is whether complainant is in fact a fugitive from justice, within the meaning of section 2 of Article IV of the Constitution, and of section 5278 of the Revised Statutes of the United States (U. S. Comp. Stats., sec. 10126; 3 Fed. Stats. Ann., 2d ed., p. 285.)
While I recognize the rule that the authorities of the asylum state are under obligation to observe the requirements of the federal Constitution and the statute enacted in pursuance thereof, and also that the issuance of the warrant by the governor upon application of the governor of the demanding state, regular upon its face, makes out a prima facie case against the petitioner, yet the question whether the petitioner is a fugitive from justice is one of fact which is open to examination by the courts of the asylum state. The obligation imposed upon the authorities of the asylum state by the Constitution and laws of the United States does not release its authorities from their obligation to protect the rights of the citizen by preventing his removal to the demanding state, when it appears from the evidence submitted on the hearing that he was not, in fact, present in the state at the time the crime charged is alleged to have been committed. That this is so is made clear by the discussion of the subject by the- supreme court of the United States in the case of Illinois ex rel. McNichols v. Pease, 207 U. S. 100, 52 L. Ed. 121, 28 Sup. Ct. Rep. 58, and the cases therein cited [see, also, Rose’s U. S. Notes]. As was said by the court in Appleyard v. Massachusetts, 203 U. S. 222, 7 Ann. Cas. 1073, 51 L. Ed. 161, 27 Sup. Ct. Rep. 122: “While a state should take care, within the limits of the law, that the rights of its people are protected against illegal action, the judicial, authorities of the United States should equally take care that the provisions of the Constitution be not so narrowly interpreted as to enable offenders against the laws * * * to find a permanent asylum in the territory of another state. ’ ’ Keeping this limitation upon my power in the premises in view, I shall consider briefly the record before me and the facts submitted by the petitioner at the hearing.
It appears that the complainant was indicted by the grand jury of Ottertail county, Minnesota, for the crime of child abandonment, alleged to have been committed on November 20, 1911. The uncontradicted evidence submitted at the hearing discloses, however, that on this date the child which the petitioner is alleged to have abandoned was not in being, that it was not bom until November 17, 1912, and that the petitioner was not then in the state of Minnesota, and has not been since October 17, 1912, substantially one month prior to the birth. It thus appears that the petitioner stands charged with the crime which could not have been committed either at the time alleged in the indictment or prior to the time he left the state of Minnesota. The indictment was found under section 8666 of the General Statutes of Minnesota of 1913 as amended by Chapter 213, page 308, of the Session Laws enacted at a special session of the legislature which convened on January 2, 1917 (Gen. Stats. Supp. 1917, sec. 8666). It declares that “Every parent or other person having legal responsibility for the care or support of a child who is under the age of sixteen years and unable to support himself by lawful employment, who deserts and fails to care for and support such child with intent wholly to-abandon him; and every husband who, without lawful excuse, deserts and fails to support his wife, while pregnant, with intent wholly'to abandon her is guilty of a felony and upon conviction shall be punished therefor by imprisonment in the state prison for not more than five years.
In the ease of State v. Clark (Minn.), 182 N. W. 452, construing this provision, the supreme court of Minnesota seems to intimate that it denounces the same act as a crime as that denounced by the provision in force in 1911. It held further that the offense of child abandonment is a continuing one, and hence that no statute of limitation runs in favor of the offender so long as the abandonment continues. Upon examination of the statute in force in 1911 and a comparison of it with the enactment of 1917, I conclude that the two are radically differ ent in substantial particulars; but, however that may be, both require the abandonment of a child in order to constitute the offense denounced. It is clearly apparent, therefore, that, if the petitioner’s child was not in being at the time he left the state of Minnesota and came to Montana—in other words, that the child was not born until a month after this occurred—the petitioner cannot be fugitive from justice within the meaning of the Constitution and laws of the United States, supra, because no matter what other offense he may have committed in that connection, he did- not and could not have committed the offense charged in the indictment. The facts are conclusive, therefore, that he was not at any time a fugitive from justice from the state of Minnesota.
For this reason I think the petitioner is entitled to his discharge, and so order.
|
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] |
At Chambers.
MR. CHIEF JUSTICE BRANTLY
delivered the opinion.
The complainant herein is held by the sheriff of Missoula county under an order of the health officer of the city and county of Missoula made under the quarantine regulations established by the state board of health, under Chapter 106 of the laws of the sixteenth legislative assembly, on the ground that, according to the information of the health officer, she is affected with gonorrhea, a disease declared by the statute to be contagious, communicable, and, therefore, dangerous to the public health. She has applied to me for a writ of habeas corpus to obtain her release on the grounds: (1) That she was not granted a judicial hearing prior to the time she was taken and detained by the sheriff; and (2) that the facts do not exist showing that she is affected with the disease and so conducts herself as to be dangerous to the public health.
1. Counsel have presented briefs in support of their several contentions, but I shall not undertake to enter here upon an examination of the numerous decisions cited by them. There is, perhaps, no authority to be found at this late day which denies that the legislature, under its police power, may enact laws authorizing the establishment of quarantine regulations and requiring the detention of persons affected with contagious diseases dangerous to the public health without resort to a preliminary judicial proceeding to determine the character of the disease and the facts constituting the danger to public health. Under the statute before us the proper health officer may issue his warrant directing the arrest, without notice, of any person reasonably suspected of having a communicable disease, and his detention for the time being and until the existence and character of the disease can be determined; and, in case his course of conduct or condition is such, in the judgment of the health officer, as to render it necessary to protect the public health, to isolate such person until he recovers from the disease or until he may be released without further danger to the public. If, however, after his arrest, such person challenges the right of the authorities to continue his detention, he is entitled to have its legality inquired into upon habeas corpm. The existence of the power of the health officer to detain anyone rests upon the existence of the facts making such detention necessary. The law does not deprive any citizen of the right to be heard on this question, but he is not entitled to a hearing in the first instance. “The detention of persons affected with or suspected of contagious disease in quarantine presents one of the cases where the police power is literally the law of self-defense—a paramount necessity.” (Freund’s Police Power, sec. 446.) If the contention of counsel for the complainant should be upheld, this law of self-defense—necessity—would be rendered entirely inoperative while the judicial proceeding would be in progress. In my opinion, the Fourteenth .Amendment to the Constitution of the United States and sections 6 and 7 of Article III of the Constitution of the state of Montana, relied on by complainant’s counsel, have no application to this class of cases. I cannot conclude that the makers of the two Constitutions ever contemplated a situation where a state would be rendered powerless to protect itself by prompt and speedy action from the spread of a contagion which by neglect might reach to and affect any considerable number of people in a community.
2. Counsel for the state insists that the finding of the county health officer in such a case declaring that the detained citizen is afflicted with a contagious disease, and is therefore dangerous to the public health, is conclusive and not subject to review by the courts. There is some conflict of authority on this subject, but the great weight of it supports the rule stated at the outset of the opinion, namely, that the law does not tolerate the arrest and detention of any citizen'without the right to challenge the existence of the facts upon which he is held.
The facts introduced at the hearing established clearly that the complainant is affected with gonorrhea. This was ascertained by scientific means by the -bacteriologist employed by the state board of health upon the application of the health officer of Missoula county. The only uncertainty I encounter upon the whole case is whether the complainant, in her present condition, would, in fact, be dangerous to the health of the community in which she lives if she were allowed to go at large. The testimony is not satisfactory, but it does disclose circumstances which justify the inference that the complainant, within a comparatively short time prior to her arrest, had been plying her trade of prostitute; that at one time during the past year she was found by the police occupying the same bed with a man other than her husband at a place which bears ill repute; that she has been found in the same place at other times since; that she has been a constant associate of other prostitutes; and that she has recently been found upon the streets of the city of Missoula at all times of the night at places where women not engaged in prostitution would not under any circumstances be found. Upon this evidence I am constrained to the conclusion that the health officer was justified in directing her detention until she shall become cured or until she may be safely allowed to go at large.
I therefore discharge the writ and remand the complainant to the custody of the sheriff, to be held by him until she may be released according to law.
|
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] |
PER CURIAM.
Relator’s application for writ* of supervisory control is denied.
|
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] |
PER CURIAM.
The motion of respondent to dismiss the appeal herein for failure of appellant to file transcript in time allowed by law is granted and the appeal is accordingly dismissed.
|
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] |
MB. COMMISSIONED CLAYBEBG
prepared tbe following opinion for tbe court:
Tbis is an appeal from a judgment rendered against tbe railroad company for tbe alleged killing of certain stock. Tbe only allegation in the complaint upon which the liability of the railroad company is claimed to rest is as follows: “That on or about the 3d day of March, A. D. 1901, at a point on its railway known as ‘Beaudin’s Spur,’ Silver Bow county, Montana, the said defendant, through and by reason of the carelessness of its servants, agents and employes, and by reason of failing to maintain good and sufficient fences on either or both sides of their track and property, as provided by Section 950 of the Civil Code of the state of Montana, with its engine and cars ran into, over ánd upon two certain male colts belonging to the plaintiff, whereby said colts received injuries from which they died, to the damage of the plaintiff in the sum of one hundred dollars, the value of the said colts so killed.” • To this complaint defendant answered, denying this allegation, and then averred that the place where the alleged killing took place was a public station and depot, and used as such. No replication was filed to this answer. At the trial of the case defendant objected to the introduction of any -evidence on the ground that the complaint “does not state facts sufficient to constitute a cause of action.” This objection was overruled. At the close of plaintiff’s testimony defendant moved for a nonsuit on the same and other grounds. This motion was also overruled. After the introduction of defendant’s testimony the cause was submitted to the jury, which rendered a verdict for the plaintiff. Judgment was entered upon this verdict, and the defendant appeals from the judgment.
1. The code commission in their final report of 1892 say of the Civil Code reported therein: “This Code is almost entirely taken from the Civil Code prepared by the Honorable David Dudley Field for the legislature of the state of New York and the Civil Code adopted by the state of California.” (Sec. xxvii, Final Report of Comm.) No such section appears in the New York Code, so we conclude that Section 950 referred to in the complaint was adopted from California. It was reported by the code commission, and first appears in our Civil Code of 1895. The section of the present California Civil Code (Sec tion’485) first appears in the statutes of that state in the year 1861 (Section 40), and has been carried forward ever since.
It was undoubtedly the intention of the legislature to adopt this section of the California statute verbatim. It did so with the exception of three words, which were undoubtedly omitted by mistake, and the use of the word “and” for “are” in another part of the section. Section 950, at the point where this omission occurs, reads as follows: “In case they do not make and maintain such fence, if their engine or cars shall kill or maim any cattle or other domestic animals upon their line of road which passes through or along the property thereof.” This £>art of the section is incomplete, and almost unintelligible. To what antecedent does the word “thereof” refer ? Tt is apparent that something was omitted. An examination of the statute of California above referred to fully explains this omission. The same portion of the statute of that state reads as follows: “In case they do not make and maintain such fence, if their engine or cars shall kill or maim any cattle or other domestic animals upon their line of road which passes through or along the property of the owners thereof.” AVIth this insertion the statute becomes plain and intelligible. But upon reading the remainder of Section 950 it is apparent that the legislature had under consideration and intended to enact a law requiring a railroad company, whenever it located its line of road along or through the property of an owner of land, to require it to fence the side of its line next to such property if it was laid along the same, or both sides of the track if it was laid through such property, or to pay to the owner of such land the market value for all his stock killed by the railroad company on the line of road passing through or along such property, “unless it occurred through the neglect or fault of the owner of the animal so killed or maimed,” and unless the latter part of the section had been complied with. AATe shall therefore construe the first part of Section 950 according to its evident intended meaning, and hold that it applies only to stock belonging to the owner or one in possession of land along or through which the railroad passes, which has been killed or maimed by the engines or cars of the company upon ’that part of its road, said road being unfenced, or insufficiently fenced. The complaint does not bring this case within the purview of the section so construed. Tt does not allege the ownership or possession of any land along or through which the railroad runs to be in the plaintiff, ox that the stock was killed at such place. These allegations are essential to a sufficient complaint under this section. (Baker v. So. Cal. Ry. Co., 114 Cal. 501, 46 Pac. 604; Baker v. So. Cal. Ry. Co., 126 Cal. 516, 58 Pac. 1055; Boyd v. So. Cal. Ry. Co., 126 Cal. 571, 58 Pac. 1046.)
2. The complaint shows that the stock was killed at .Beau-din’s Spur. The answer avers that Beaudin’s Spur is a public station or depot, and used as such. No replication was filed to this answer, and therefore these allegations must be taken as true. This being the case, no duty devolved upon the railroad company to fence tin* railroad at that point. (Baker v. So. Cal. Ry. Co., supra; Moses v. S. P. R. R., 18 Oregon, 385, 23 Pac. 498; Lloyd v. Pac. R. R. 49 Mo. 199; Morris v. St. L., K. C. & N. R. R., 58 Mo. 78; Swearingen v. M., K. & T. R. R., 64 Mo. 73; Kyser v. K. C., St. J. & C. B. R. R. Co., 56 Iowa, 207, 9 N. W. 133, and cases cited.) No allegation of defendant’s negligence in the operation of its trains is necessary to retider it liable, under Section 950. AYo need not consider whether the complaint contains general allegations of negligence sufficient to constitute a cause of action, because the proof was barren of all negligence on the part of defendant. •
3. The evidence introduced at the trial and incorporated in the record by way of bill of exceptions does not support the verdict and judgment. There is a complete want of proof of any negligence on the part of defendant. There is no evidence as to whether the animals were killed or maimed by the engines or cars of the railroad company. The only evidence contained in the record in that regard is that the animals were found near the track, one dead and the other maimed so that it had to be killed. No showing is made as to the character of injuries to either of the animals, except that one had its legs broken. All of this may have occurred from some other causes as well as from being struck by an engine or train. Whether the one killed or the injury to the other was caused by defendant’s engine or cars was directly in issue under the pleadings, and the burden of establishing the allegations of the complaint W'as upon plaintiff. The mere finding of the bodies near the railway track is not of itself sufficient proof that they were killed by the engine or cars of the railway company. (Union Pac. R. R. v. Bullis, 6 Colo. App. 64, 39 Pac. 897.) The evidence is entirely wanting in several other important particulars which are not necessary to discuss. Want of evidence to support the judgment may be relied upon and considered upon an appeal from the judgment. (Ball v. Gussenhoven, 29 Mont. 321, 74 Pac. 871, and cases cited.) Counsel for respondent insists that the record does not contain all the evidence given on the trial. We are clearly of the opinion that the recitals contained in the bill of exceptions and the certificate of the judge settling the same are sufficient to disclose that it contains all, or the substance of all, the evidence given at the trial bearing upon the errors alleged.
There are other defects in the complaint and proof which require no notice.
We are therefore of the opinion that the complaint does not state facts sufficient to constitute a cause of action under Section 950 of the Civil Code, and that the verdict is not supported by the evidence. The judgment must therefore be reversed, and we so advise.
Per. Cúriam. — For the reasons stated in the foregoing opinion, the judgment is reversed, and the cause remanded.
|
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] |
MR. JUSTICE MILBÜRN
delivered the opinion of the court.
This matter is before us on appeal from an order of the district court revoking the letters testamentary one time issued to the appellant in the matter of the last will and testament of Thomas E. Courtney, deceased, and from the order made on the 1st day of December, 1903, settling the semi-annual account of the said executor. Objections having been made by the respondent, the Daly Bank & Trust Company, to the report and account of the executor, the matter was referred to a referee, who made his report and recommendations. These were disapproved and set aside by the court. It revoked the letters testamentary, appointed Thomas S. Hogan special administrator, and ordered all property remaining in the hands of the executor to be turned over to the special administrator. The court, in its order removing the executor, found that the said Dennis 0. Courtney was incompetent to act as executor.
The ten errors of law assigned can be reduced to three: Eirst, that the court erred in revoking the letters testamentary; second, that the court erred in settling the account of Dennis C. Courtney, in that it refused to allow a certain item therein, to-wit, “Money received since last report, to-wit, lease money not previously reported, $1,199.28”; and, third, that the court erred in setting aside the report of the referee, Eorestell, “and in proceeding to take testimony upon the same, after it had been submitted to the court for approval.”
The court, in its decree, states that it found the said Dennis C. Courtney to be incompetent to act as executor, and, further, that he had mismanaged the affairs of the estate. To cite, even from the testimony given by the appellant himself before the court, all the evidence going to show conclusively that he is a man incompetent to attend to his own business or the business of other people, would be to consume more time and space than we need to use. His own statements prove that he did not know anything whatever definite about his own personal business re lations with his brother — he claiming to have advanced him large sums of money from time to time, which had not been ■accounted for — or the business of his brother with other persons, or the amount of money due the estate. It also appeared that he had not made any sufficient effort to collect debts said to be due the -estate, or to find out whether in fact they were valid claims of the deceased- against the alleged debtors.
Appellant contends that the court erred in holding that appellant was incompetent to act as executor, and that the evidence was insufficient to sustain a finding of incompetency, in this: that, in order to sustain such a finding, it was necessary that evidence should have been adduced showing or tending to show that the executor was under the age of majority, or convicted of an infamous crime, or adjudged by the court of judge incompetent to execute the duties of the trust by reason of his drunkenness, improvidence or want of understanding or integrity (Section 2434, Code of Civil Procedure) ; and, further, that there was not any evidence whatever showing or tending to show any such facts adduced at the hearing or before the court.
While it does not appear that the executor was guilty of willful wrong, a very casual perusal of the evidence produced at the hearing will show that there was, and has been all along, a very grave and palpable want of understanding on his part, and that he is for that reason incompetent, because he is incapable. Reference to any standard dictionary as to the meaning of the word “improvidence,” as used in the section cited, with a slight consideration of the evidence adduced, will show that improvidence is characteristic of the executor. On the witness stand he testified that he never read the affidavits attached to his reports, and from his testimony it is evident that he did not know what they contained. ■ The court would have been very derelict in its duty, especially considering the large number of -claims, against the estate as shown by the record, if it liad allowed the appellant to remain in his responsible position.
So far as the disallowance of the $1,199.28 is concerned, the court was correct in its ruling disapproving the item. It is shown by the evidence that the decedent in his lifetime received a “political lease” of a part of the Colusa-Parrot mine, and that decedent desired the fact to remain secret. There was not any record of this lease. It never was evidenced by writing. It seems that while the decedent was a state senator in the Seventh Legislative Assembly he was told he could have this lease. The executor claims to have been told by the decedent that he (Dennis) should have one-half of the interest of the decedent in the lease; Thomas E. Courtney apparently having permitted one or two others to have a third interest therein. In the inventory there is not any mention made of this asset, or of any of the money received therefrom. It seems that $7,342.90 'was paid by the smelter people to the lessees for ores. The executor did not make any effort whatever to find out whether this amount was correct or not, and very apparently he does not know anything about it. There was paid to him -as money actually received by the executor on account of the lease, which is variously stated by him one time to have been $2,034, and at another $2,074. This money he kept in his house for about a year, and then gave' it to his wife, and allowed her to deposit it in bank in her own name, and then undertook to account for $1,199.28 of it as being one-half of the two-thirds of the lease money which he had received, having theretofore stated to the court that his reports and inventory were correct, they omitting any reference to the lease or any proceeds therefrom. There was a settlement with one Kilgallon, so it appears from the evidence, wherein he was paid one-third of the sum of $7,342.90, the proceeds of the mine less certain expense money. The settlement is unique in that it only charges one-third of the expense for labor, etc., against the gross receipts of $7,342.90, and then divides the remainder by three, in order to arrive at the interest of Kilgallon, he claiming a one-third interest in the lease; thus making Mr. Kilgallon a present of a large sum of money, in that all the expenses were not charged up against the latter before division was had. The court was correct in disallowing the item, as we have said above, and the matter of this lease should be thoroughly investigated by the court and its officer, the administrator, to the end that a correct statement of the facts may be made.
The court did not err in setting aside the report of the referee, which recommended that the report and account of the_ executor be approved except as to the item of $1,199.28, and that the executor be not removed; suggesting to the court further that the executor be charged in the account with the sum of $1,-303.60, instead of $1,199.28, as received on account of said lease. The report and findings of a referee may be adopted, modified or disapproved altogether, as the court may see fit, where the reference was only for the purpose, as in this case, of examining the account of the executor and the objections thereto and making “report thereon.” The court, not being satisfied from the evidence adduced before the referee that the findings and recommendations of the referee were correct and proper, took further testimony, and made its own findings and conclusions, and the two orders from which the appeals have been taken. As we have said heretofore, the action of the court in making the orders was correct, and, considering what we have already said as to the incompetency and improvidence of the executor, the court, not being satisfied with the findings and recommendations of the referee, did not err in setting aside the findings of the referee in the premises. The report of the referee was merely advisory to the court. (Murphy v. Patterson, 24 Mont. 575, 63 Pac. 375, and cases cited.)
The point is made in the brief of counsel for the appellant that the executor seems to have been deprived of any compensation for services that may have been rendered by him as executor. There is not anything said upon this subject in either one of the two orders of the court appealed from. It is, of course, to be presumed that upon a final settlement of the estate the proper compensation will be allowed to all the executors and administrators who have taken or may take part in the administration of the estate, and, if anything is due to Mr. Courtney at that time, the court will make the proper award to him. The orders appealed from are affirmed. .
Affirmed.
Mr. Chief Justice "Brantly and Mr. Justice Holloway concur.
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] |
MR. COMMISSIONER ROORMAN
prepared the following opinion for the court:
This case stands for review on appeals on the part of defendant from a judgment rendered against him, from an order of the court overruling his motion for a new trial, and from the action of the court in overruling his application for the appointment of a receiver.
The action is one to quiet title. The complaint contains the allegations of possessory right, of possession and ownership, and other allegations usually found in such complaints, and that the defendant claims to own some interest in the property adverse to the plaintiff. The defendant denies the allegations of the complaint, and alleges as a separate defense and counterclaim that one Mrs. Mosherosh, the grantor of the plaintiff, on July 16, 1895, for a valuable consideration delivered to this defendant her promissory note dated July 16, 1895, for the sum of $2,450, due one year after date, with interest; that the maker of the note, who was then the owner of the property described in the complaint, on that day executed a mortgage to the defendant on said property to secure the payment of this note; that the note has never been paid; that on the 8th day of June, 1898, “this defendant, not knowing the effect of this act, canceled such mortgage upon the records of said county,” the note not then having been paid; that this mortgage was recorded on the day of its execution; that on the 6th day of May, 1896, the said Mrs. Mosherosh made a pretended conveyance of this property to the plaintiff; that subsequently, and on the 20th day of December, 1898, this defendant “commenced a suit in” the district court, “entitled ‘George Renkes, plaintiff, against Emma Mosherosh, defendant/ ” to recover the amount due Renkes upon this promissory note; that judgment therein was entered for the plaintiff, Renkes, by default; that Renkes, at the time of the commencement of that action, filed an affidavit and undertaking on attachment, and caused this property to be attached; that an execution was issued and the property sold under the judgment so obtained by the said Renkes, and was bid in by him; that the pretended conveyance from Mrs. Mosherosh to the plaintiff in this action was made for the purpose of hindering and delaying the creditors of the said Mrs. Mosherosh, and that the plaintiff in this action, Mrs. Mueller, now holds the property in trust for the said Mrs. Mosherosh. The plaintiff filed a replication denying these allegations so far as they relate to the matters in issue between the plaintiff and defendant in this action.
The defendant claims that some of these denials relating to this new matter and counterclaim of this defendant are not sufficient to raise an issue. Under the view taken, however, the question of indebtedness between Mrs. Mosherosh and this defendant becomes immaterial, except the mere fact that an indebtedness did exist between them with reference to this note, and this fact is undisputed. It is further undisputed that at the time Mrs. Mueller, the plaintiff, purchased this property, there was a valid, subsisting and recorded lien thereon. It is further undisputed that the defendant in this action did recover a default judgment against Mrs. Mosherosh on this note, and that this judgment has not been paid.
There are two questions presented by these appeals: (1) Was this mortgage a valid, subsisting lien on the property described in the complaint at the time of the commencement of this action? (2) Was the conveyance from Mrs. Mosherosh to the plaintiff herein a bona fide transaction, so as to pass the title of the property to this plaintiff ?
1. A mortgage itself does not create or alienate an estate in real property, but is a mere security for the payment of a debt or the discharge of an obligation. (Section 3810 et seq., Civil Code; Hull v. Diehl, 21 Mont. 71, 52 Pac. 782; Gallatin County v. Beattie, 3 Mont. 173; Holland v. Board of County Commis sioners, 15 Mont. 460, 39 Pac. 575, 27 L. R. A. 797; Wilson v. Pickering, 28 Mont. 435, 72 Pac. 821; Swain v. McMillan, 30 Mont. 433, 76 Pac. 943; Adler v. Sargent, 109 Cal. 42, 41 Pac. 799; Mott v. Clark, 9 Pa. St. 399, 49 Am. Dec. 566; State ex rel. Cruse Savings Bank v. Gilliam, 18 Mont. 100, 44 Pac. 394, 45 Pac. 661, 33 L. R. A. 556.)
It is true, a mortgage is a conveyance (Section 1642, Civil Code), but it is a conveyance of only a chattel interest (Hull v. Diehl, supra.)
A mortgage being a mere lien executed for the benefit of the mortgagee, it may be canceled or released by him at any time with or without consideration, and with or without the consent of the mortgagor. (See Swain v. McMillan, above.) Nor does the purchaser of mortgaged real estate become thereby personally liable for the payment of the indebtedness described in the mortgage. (Sections 3752, 3790, 3817, Civil Code.) The lien is strictly in rem by reason of the mortgage, and, when the mortgage is released, a hona -fide purchaser holds the res free of such claim or lien, whether the purchase was made prior or subsequent to such release.
In this state a mortgage may be discharged by entry in the margin of the record thereof. (Section 3845, Civil Code.) The release in this, case was made in that manner, and is in the following form: “I hereby certify and declare that the mortgage, together with the debt thereby secured, is fully paid, satisfied and discharged. Witness my hand this 8th day of June, 1898. George Rentes. Attest, John Weston, Coimtv Recorder, by A. E. Whipps, Deputy.” The defendant, in attacking this release, assumed the burden of showing the existence of facts sufficient to warrant a court of equity in setting it aside. (Section 2170, Civil Code.) The evidence clearly shows that neither Mrs. Mosherosh, the mortgagor, nor Mrs. Mueller, the plaintiff herein, knew of the intention of appellant to release this mortgage, and did not know for some time afterwards that he had done so. The defendant says: “I came to the courthouse alone, voluntarily, without conferring with any one about it, with the intention of canceling this mortgage and going over to Mrs. Mosherosh, which I did, and getting new papers made out. I did not think I was making a mistake. * * * No consideration in the way of money passed between myself and Mrs. Mosherosh for the cancellation of the mortgage.” No claim can therefore be made that the release is the result of any deception on the part of Mrs. Mosherosh or of Mrs. Mueller. The appellant, ' Renkes, claims that he “did not know what he was doing” when he made the release, and “did not know the effect of his act,” and that the same was without consideration. The defendant testified that in a conversation both the plaintiff and Mrs. Mosherosh tentatively stated to defendant that they would give him a new mortgage, but they did not say when they would do it, and that Mrs. Mosherosh told him that this mortgage was good for ten years, but that he disbelieved it. Mrs. Mosherosh denies that she ever promised to execute a new mortgage, and testified that she informed defendant that she was no longer the owner of the property. ^
The deed from Mrs. Mosherosh to Mrs. Mueller was executed May 6, 1896, and was recorded on that day. Several months after the defendant had executed the release, and after he had been fully informed as to its effect and import, he instituted an action at law on this note against Mrs. Mosherosh, to which action the plaintiff herein was not a party, “filed in said action an affidavit and undertaking on attachment, and thereupon caused a summons and writ of attachment to be issued in said cause,” and attached this same property as the property of Mrs. Mosherosh. Why the defendant thought necessary to attach the property if he believed that he had a mortgage on it is not explained. Under the Code, before a party is entitled to a writ of attachment he must make an affidavit stating, among other things, the amount of his claim, “and that the payment of the same has not been secured by any mortgage or lien upon real or personal property, or any pledge of personal property, or, if originally so secured, that such security has, without any act of the plaintiff, or the person to whom the security was given, become valueless.” (Sections 890, 891, Code of Civil Procedure.) Whether the defendant was legally entitled to any attachment at all in his action against Mrs. Mosherosh is a question which does not arise in this case. It is apparent, however, that if this mortgage was a valid, subsisting lien for the security of this note on December 20, 1898, when .defendant instituted his action against Mrs. Mosherosh, then the statement in the affidavit for attachment, “the payment of the same is not secured,” was untrue, and, if this statement was true, the mortgage did not exist at that time. If it did not exist at that time, it does not exist now, for it has never been reinstated nor the release set aside.
No. case has been cited, nor have we been able to find any, approximately similar to this in its statement of facts. The following cases, however, discuss the main question: United States v. King, 9 Mont. 75, 22 Pac. 498; Stephenson v. Hawkins, 67 Cal. 106, 7 Pac. 198; Garwood v. Eldridge, 2 N. J. Eq. 145, 34 Am. Dec. 195; Dix v. Smith, (Okl.) 50 L. R. A. 714, and note; Attkisson v. Plumb, (W. Va.) 58 L. R. A. 788, and note.
When the defendant ascertained his mistake in making the release, he had his option to institute an action in equity against all interested parties to set aside the release and to foreclose the mortgage, or to sue in an action at law on the note. He chose the latter course, and, to secure the benefit of an attachment, made and filed an affidavit to the effect that he had no mortgage.
The trial court did not err in holding that this mortgage was not a lien on the property described in the complaint at the time this action was commenced.
2. The bona fides of a conveyance presents questions of fact which must be determined from the particular acts of the parties, and the circumstances and conditions surrounding the transaction and under which they act. Mere inadequacy of consideration is not of itself sufficient cause to invalidate a conveyance, except, perhaps, in extreme cases. (Maloy v. Berlin, 11 Mont. 138, 27 Pac. 442.) Nor is the mere fact that the transaction is between mother and daughter sufficient evidence to stainp.it with fraud. It is true this court has 'decided that where a husband, then being in debt, transfers property to his wife, courts of equity will scrutinize the transaction very closely (Lambrecht v. Patten, 15 Mont. 260, 38 Pac. 1063; Shepherd v. First National Bank, 16 Mont. 24, 40 Pac. 67); and it is an equitable rule that, where fraud is charged, the entire transaction should be closely examined.
The evidence in this cause shows conclusively that on the 6th day of May, 1896, Mrs. Mosherosh, the grantor of the plaintiff herein, was indebted to the plaintiff in certain sums which had theretofore been advanced to her; that she was also at that time indebted to the defendant herein, Mr. Renkes; that Mr. Renkes’ claim was secured by a mortgage on real estate, which mortgage was then duly recorded. The consideration named in the deed from Mrs. Mosherosh to this plaintiff was $1. The deed was a bargain'and sale deed. The testimony, however, shows conclusively that the consideration was $2,100; that somewhere between $800 and $1,200 were paid to Mrs. Mosherosh on the day the deed was executed. The balance of the consideration had been theretofore advanced. The mortgage of defendant, then being of record, was prior to this deed, and no conveyance which Mrs. Mosherosh could make could in any manner defraud this defendant or invalidate his lien. This lien continued for more than two years after this conveyance to plaintiff had been recorded, and was then released only by the voluntary act of the defendant himself; nor was any suit ever instituted by the defendant to foreclose that mortgage or to set aside this release. We are unable to understand from this state of facts how Mrs. Mosherosh, at the time she made this conveyance to her mother, could have intended to defraud this defendant, for it was beyond her power to invalidate the lien of the defendant, or to make any conveyance of the property that would be prior to this mortgage.
We think the judgment and orders appealed from should be affirmed.
Per Curiam. — Por tbe reasons stated in tbe foregoing opinion, tbe judgment and orders are affirmed.
Mr. Chief Justice Brantly, not having beard tbe argument, takes no part in tbis decision.
Rehearing denied.
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] |
MR. COMMISSIONER CLAYBERG
prepared the following opinion for the court:
This is an appeal by Metcalf from an order granting a new trial. The only ground of the motion for a new trial was newly discovered evidence. The only affidavit filed showing that evidence was newly discovered is that of plaintiffs. This affidavit, in so far as the discovery of the evidence and the showing of diligence in that regard is concerned, is as follows: “That subsequent to the trial of said cause, to-wit, on the 12th day of December, A. D. 1902, I have discovered evidence which will establish the fact that myself and my co-plaintiff in said action,” etc. Then follows a statement of the evidence which has been discovered. The affidavit then continues: “I did not know of the existence of said evidence at the time of the trial, and could not, by the use of reasonable diligence, have discovered or produced the same upon the former trial. The name of the witness by which I can establish the facts herein set forth is E. A. Briggs, now residing at Centerville, in Silver Bow county, Montana; that I did not for eighteen years prior to the 12th day of. December, A. D. 1902, know the whereabouts of said Briggs.” The affidavit of Briggs also appears in the record, supporting the affidavit of plaintiffs as to the facts to which he would testify, and stating that he was present and heard the conversation upon which plaintiffs’ cause of action was based.
The statute concerning new trials provides as follows: “The former verdict or other decision may he vacated and a new trial granted on the application of the party aggrieved for any of the following canses materially affecting the substantial rights of such party: * * * (4) Newly discovered evidence material for the party making the application which he could not with reasonable diligence have discovered and produced at the trial.” (Section 1171, Code of Civil Procedure.)
We are of the opinion that the affidavit does not contain a sufficient showing of diligence, as contemplated by the statute, to warrant the order appealed from. (Rand v. Kipp, 27 Mont. 138, 69 Pac. 714; Gregg v. Kommers, 22 Mont. 511, 57 Pac. 92; Caruthers v. Pemberton, 1 Mont. 111; Butler v. Vassault, 40 Cal. 74; Hendy v. Desmond, 62 Cal. 260; Bagnall v. Roach, 76 Cal. 106, 18 Pac. 137; Barton v. Laws, 4 Colo. App. 212, 35 Pac. 284; State v. Power, 24 Wash. 34, 63 Pac. 1112, 63 L. R. A. 902; Bradley v. Norris, 67 Minn. 48, 69 N. W. 624; 1 Spelling on New Trial and Appeal, Secs. 209-218.)
Under these authorities it was incumbent upon plaintiffs to show that they had been guilty of no laches, and that failure to produce the evidence on the trial could not be imputable to lack of diligence on their part. They must make strict proof of diligence, and a general averment of its existence is insufficient. Whether reasonable diligence has been used is a question to be determined by the court upon the affidavits presented, and therefore these affidavits should state with particularity what acts were performed. They should show what diligence was used, how the new evidence was discovered, why it was not discovered before the trial, and such other facts as make it clear that the failure to produce the evidence was not their own fault, or because of want of diligence on their part. So far as the evidence presented in this case is concerned, the first search for evidence may have been made after the cause has been tried. If Briggs was present at the conversation, plaintiffs must have known it. Perhaps this fact escaped their memory at the time of the trial, bnt mere forgetfulness is no excuse. (Hendy v. Desmond, 62 Cal. 260.)
The mere allegation that for eighteen years plaintiffs did not know the whereabouts of Briggs is insufficient. If plaintiffs knew that Briggs could testify in their behalf, they should have shown that they had exhausted the methods provided by law for obtaining the attendance of witnesses. If they did not know that Briggs could so testify, it is immaterial that they did not know his whereabouts.
While it .is true that the gran ting or refusing of a motion for a new trial is largely in the discretion of the trial court, and its action will not be interfered with on appeal unless there is abuse of such discretion, the affidavits being defective in the showing of diligence, we are satisfied that the court below had no authority to grant the order, and therefore abused its discretion.
We therefore advise that the order appealed from be reversed, and the cause remanded.
Per Curiam. — Bor the reasons stated in the foregoing opinion, the order is reversed and the cause remanded.
|
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] |
MR. JUSTICE MILRÜRN
delivered the opinion of the court.
This is an appeal from a judgment entered in favor of the defendant. The plaintiff, at the time of the bringing of the action, was the duly appointed, qualified and acting trustee of the estate of one Frank Rennie, a bankrupt. Rennie, prior to August 11, 1899, and continuously from that date until the 14-tli day of March, 1901, was engaged in the business of a liquor dealer in the county of Gallatin. On that day lit' made, executed and delivered to the Bozeman Rational Rank his promissory note, for $1,800, on which he made certain payments, leaving a balance of about- $800. On February 6, 1901, he, being unable to pay his debts to numerous creditors, made a chattel mortgage of his saloon property, including a large number of articles, running to the defendant, O. AY. Hoffman, to secure him,' he having guarantied in writing the payment of said note to the bank. This mortgage was duly executed, and filed in the office of the county clerk. Rut on the 11th day of August, 1899, a certain agreement 'in writing was made between Rennie and Hoffman, whereby it was attempted’ to secure the latter for such sum or sums of money as he might advance to pay the debts of Rennie. Rennie gave therein to Hoffman the right at any time prior to the full payment of the sums of money mentioned, or any Other money advanced by Hoffman for him (Rennie), to take immediate possession without notice and without legal proceedings of all of said personal property, and sell and dispose of the same at such time or times and in such manner as to him might seem advisable, the proceeds of the sale first to be applied to payment of Hoffman for all moneys advanced to Rennie and for costs and expenses of taking, keeping and selling the property, the residue to be paid to Rennie.
It is noticeable that the defendant in his answer sets up that this agreement, which was made without formality, and was not filed in the office of the county clerk, was a chattel mortgage to secure him against loss or liability by reason of the written guaranty, whereas the writing itself discloses the fact, as above stated, that it was to secure him (Hoffman) for such sums of money as he might advance to pay the debts of Rennie. The defendant avers that this mortgage of the 6 th of February was made “for the purpose and with the intent of extending said chattel mortgage of August 11, 1899, and the lien thereof, and putting the same in such form as to entitle it to record, so that notice of its existence might be given to all of the aforesaid creditors of said Frank Rennie.”
On the 14th day of May, 1901, Rennie was, by order of the United States Court for the District of Montana, adjudged a bankrupt. It is alleged in the complaint that on the 14th day of March, 1901, Hoffman seized and took possession of all of said property of Rennie under and by virtue of the chattel mortgage — meaning the instrument of February 6, 1901. Defendant denied that the property was taken by him under or by virtue of the chattel mortgage last above mentioned, but avers that he took and seized the same on the 14th day of March, 1901, under and by virtue of the authority'conferred upon him in the instrument of August 11, 1899, for the purpose of securing himself against any loss by reason of his said personal guaranty, and not otherwise. It is admitted that there is still due by Rennie to the bank on the original agreement made with the bank a sum exceeding $800. Possession of the property remained in Rennie until the 14th day of March, 1901, when it was taken by Hoffman, as above stated, except one or two articles of small value.
Plaintiff prayed for a decree that the chattel mortgage of February 6, 1901, be declared null and void as against the creditors of Rennie and against the plaintiff, and that Hoffman be required to surrender and deliver up to plaintiff all the property by him seized, and that, if any of said property could not be delivered, plaintiff have judgment for the value thereof, and that plaintiff have attorney’s fees.
The case was tried to the court without a jury, and the court found, among other things, that on February 0, 1901, Rennie having reduced his indebtedness on the note to the bank which Hoffman had guarantied to $800, with a small amount of interest, and being again pressed by creditors, gave to the defendant “another chattel mortgage,” regular in form, for which no new consideration was passed, and that said instrument was intended as a continuation of the security given on August 11, 1899, and that Hoffman, on March 14, 1901, deeming himself insecure, took possession of the property under and by virtue of the instrument of August 11, 1899. The court found further that in April, 1901, proceedings were commenced against Rennie in the Hnited States court, and that he was regularly adjudged a bankrupt, and plaintiff was appointed by the Hnited States court as alleged; and that defendant turned over to plaintiff a portion of the goods in his possession, retaining sufficient to indemnify himself. As conclusions of law the court foiuid, among other things, that the instrument of August 11, 1899, was a valid chattel mortgage as between the parties to it and as against all persons except such as had. brought themselves into privity with the property by acquiring a lien upon the specific property therein described; that defendant’s taking possession of the property under his chattel mortgage of August 11, 1899, before any of Rennie’s creditors had established a lien on the property, cured any defect which may have existed in the chattel mortgage; that the chattel mortgage of February 6, 1901, was a continuation of the security given defendant in the chattel mortgage of August 11, 1899; that the service of certain garnishment proceedings in suits by Rennie’s creditors did not give them a lien on the property in controversy, and did not entitle them, or any of them, or the plaintiff, to contest the validity of the chattel mortgage of August 11, 1899 ; and that the plaintiff was not entitled to recover. Judgment was entered accordingly for the defendant. Plaintiff appeals.
Ten specifications of error are relied upon, but it is not necessary to consider more than one of them. Was the court correct in holding that the plaintiff was not entitled to recover a judgment? The property was seized by the defendant, according to his own statement, under and by virtue of the power contained in the instrument of August 11, 1899, it having remained in the possession of Rennie from the time of the making of the instrument until the time of its seizure. There was not any new consideration for the mortgage of February 6, 1901. Possession of i the property was taken less than four months prior to the time that Rennie was declared a bankrupt under the bankruptcy act. At the time of the taking of said property it conclusively appears that Rennie was insolvent. The instrument of August llth was not such as entitled it to filing under the laws of the state of Montana as a chattel mortgage. The insolvent, Rennie, owed considerable sums of money to other parties before the 14th day of March, 1901. There was not any fixed time mentioned in the “mortgage” of August 11, 1899. More than fourteen months had expired after August 11, 1899, before possession was taken under the instrument of that date, and the agreement was not executed and had not been executed up to the time of the commencement of this action. The property of Bennie was turned over to the defendant less than four months before the bankruptcy. It was not a transfer to secure a present loan or advance, but one to pledge the payment of an old obligation, the effect of the transfer being to enable one creditor to obtain a greater percentage of his debt (to-wit, all of it) than any other. This is illegal, under Section 60 of the national Bankruptcy Act of 1898 (Bankr. Act July 1, 1898, c. 541, 30 Stat. 562 [U. S. Com]). St. 1901, p. 3445]), and the property may be recovered.
Section 60 of said Act is as follows: “(a) A person shall be deemed to have given a preference if, being insolvent, he has procured or suffered a judgment to be entered against himself in favor of any person, or made a transfer of any of his property, and the effect of the enforcement of such judgment or transfer will be to enable any one of his creditors to obtain a greater percentage of his debt than any other of such creditors of the same class. •(!>) If a bankrupt shall have given a preference within four months before the filing of a petition, or after the filing of the petition and before the adjudication, and the person receiving it, or to be benefited thereby, or his agent acting therein, shall have had reasonable cause to believe that it was intended thereby to give a preference, it shall be voidable by the trustee, and he may recover the property or its value from such per- ' son. * * *”
Section 4491 of the Civil Code of this state is as follows: “Sec. 4491. Every transfer of personal property, other than a thing in action, or a ship or cargo at sea, or in a foreign port, and every lien thereon, other than a mortgage, when allowed by law, and a contract of bottomry or respondentia, is conclusively presumed, if made by a person having at the time the possession or control of the property, and not accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things transferred, to be fraudulent, and therefore void, against those who are his creditors while he remains in possession, and the successors in interest of such creditors, and against any persons on whom liis estate devolves in trust for the benefit of others than himself, and against purchasers and incumbrancers in good faith subsequent to the transfer.”
Rehearing granted November 30, 1904.
(Submitted March 13, 1905.
Decided May 29, 1905.)
1. In an action by a trustee in bankruptcy to recover property of the bankrupt alleged to have been fraudulently transferred to the defendant, under a chattel mortgage executed more than fourteen months prior to such transfer and good between the parties to the instrument, where it appeared that the transfer was made within four months of the time when the debtor was adjudged a bankrupt, the trustee was not entitled to judgment under the provisions of the Bankruptcy Act of July 1, 1898 (Chapter 541, Sec. 60, cl. a, 30 Stat. 562), the delivery to, and taking by, defendant of the goods not having been unlawful under the laws of this state nor an unlawful preference under the Bankruptcy Act.
2. A mortgage not executed in manner and form as prescribed by law, is good between the parties.
Z. There not being in this state any restriction placed by. law upon the mortgaging of any species of personal property, all such mortgages are exempted from the operation of Section 4491 of the Civil Code, which provides that a transfer of certain personal property áhd every lien thereon, other than a mortgage “when allowed by law,” is conclusively presumed to be fraudulent under certain circumstances, and the words “when allowed by law” are therefore superfluous.
4. In all matters pertaining to a construction of the United States Bankruptcy Act, the holdings of the Supreme Court of the United States are conclusive.
It thus appears that the instrument of August 11, 1899, and the transfer made on the 14th day of March, 1901, were not such as are allowed by the law of the state of Montana, and were such as attempted to give an unlawful preference to the defendant. Our conclusion, therefore, is that the judgment of the court below is wrong, and must be reversed.
Reversed and remanded.
Mr. Justice Holloway, being disqualified, takes no part in the foregoing decision.
|
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] |
Per Ouriam.
Hpon motion of tbe appellants tbe appeal herein is hereby dismissed.
|
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] |
Per Curiam.
Upon, motion of the appellant herein this appeal is dismissed.
|
[
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] |
MD. COMMISSIONED BLAKE
prepared the opinion for the court.
This action was commenced to récover damages for personal injuries sustained through the alleged negligence of defendant —a municipal corporation under 'the laws of the state — to keep-in good repair a certain street and sidewalk. The defendant appeals from a judgment entered upon a verdict for plaintiff. The transcript does not contain any testimony, bill of exceptions, or statement on motion for a new trial. It must be presumed that the evidence supports the judgment, and that the instructions are based upon the testimony. (Beatty v. Murray Placer M. Co., 15 Mont. 314, 39 Pac. 82.)
The appellant contends that the complaint does not state facts sufficient to constitute a cause of action, and the demurrer specifying this ground was overruled by the court below. The pleader followed substantially the forms prescribed in actions of this class, and we think counsel for appellant has placed a forced construction upon the paragraphs he attacks. If the argument upon the allegations respecting the cause and locality of the accident resulting in the injuries to plaintiff were sound, it might be decided that the complaint is ambiguous and uncertain. No objection was taken upon this ground, and defendant “must be deemed to have waived the same.” (Code of Civil Procedure, Sec. 685.)
It is claimed that there should have been an averment in the complaint that plaintiff was “free from any contributory negligence,” but this question has been settled by this court after a thorough review of the authorities. It is alleged, however, that plaintiff was injured “without any fault or negligence on her part,” and it is held, under similar pleadings, that contributory negligence is a matter of defense. (Prosser v. Montana Central R. Co., 17 Mont. 372, 43 Pac. 81, 30 L. R. A. 814; Snook v. Anaconda, 26 Mont. 128, 66 Pac. 756; Ball v. Gussenhoven, 29 Mont. 328, 74 Pac. 871.) The appellant seems'to have-entertained this view, and says in the answer that “plaintiff was guilty of contributory negligence in going upon said public-thoroughfare and leaving said sidewalk, and, if plaintiff received any injury on said thoroughfare, it was wholly clue to her own fault and negligence.” We are unable to see any error-in overruling the demurrer.
The appellant maintains that the instructions are erroneous, but, in the absence of the evidence, Ave must apply the rule announced in State v. Mason, 24 Mont. 340, 61 Pac. 861, Avherein the court approAres the doctrine of the Supreme Court of the State of California in holding that a judgment attacked upon this ground Avill not be disturbed unless it appears that the instructions “would have been erroneous under every conceivable state of facts.” With this observation, the objections of appellant to most of the instructions may be dismissed.
There is one matter for our consideration — a mistake in the name of a street in said city of Walkerville, appearing in instructions numbered 3 and 10, given at the request of respond■ent.
Instruction No. 3: “If you find from the eAÚdence in this case that the sideAvalk mentioned and described in plaintiff’s complaint herein, upon the Avest side of Daly street, Avithin the limits of the city of Walkerville, Ayas constructed,” etc.
Instruction No. 10: “The defendant, by its ansAver in this case, admits and pleads that there Avas no sideAvalk along the Avest side of Daly street at the time mentioned in plaintiff’s complaint herein, and that the same Avas a public highAvay,” etc.
The third paragraph of the complaint alleges: “That among ■other streets in the said city upon Avhich it became the duty of the said defendant to maintain a safe and suitable sideAvalk is Main street running southerly from Daly street, in the said city, and that the defendant, disregarding its duties in that behalf, did negligently and knoAvingly alloAV a portion of the said sidewalk on the Avesterly side of the said street to be out of repair and unsafe and dangerous,” etc. This is the sole reference in the complaint to the names of these streets, and the AA'-ord “Daly,” in the aboA^e instructions, Avas used instead of ■“Main.”
The ansAver denies “that it became the duty of said defendant to maintain a safe and suitable sideAvalk on Main street, running south from Daly street, in the said city. * * * Denies that defendant negligently or knowingly allowed a portion of said sidewalk on the westerly side of said street to be out of repair or unsafe or dangerous.”
The first instruction is a' statement of the facts pleaded in the complaint, and describes “Main street, running south from Daly street.” The second instruction says that “Main street, described in plaintiff’s complaint herein, is a public street and thoroughfare within the limits of the defendant city of Walker-ville.” The eleventh instruction refers to the “thoroughfare mentioned in the complaint herein, and called 'Main street.’ ” The fifth instruction requested by defendant tells the jury that if plaintiff “fell down [on] the side of the said highway near the Chinese washhouse, and on the south side of Blither’s house, and if you further find that the said plaintiff did not fall off the sidewalk, as alleged in her complaint, then you shall find for the defendant.” The ninth instruction requested by defendant is as follows: “The court instructs you that if you find from the evidence that the said plaintiff fell from the highway in front of the Chinese washhouse, and not from the sidewalk, as alleged in the plaintiff’s complaint, then you shall find for the defendant.” The instructions, through this inadvertence, are somewhat contradictory and inconsistent, and their effect upon the issues before the jury must be decided.
In Shortel v. St. Joseph, 104 Mo. 114, 16 S. W. 391, 24 Am. St. Rep. 317—a suit to recover damages for personal injuries — the court said: “The defendant’s first instruction uses in one place the word 'plaintiff’ when it should be 'defendant,’ and in another place the word 'defendant’ when it should be "plaintiff’; still these are mere clerical errors readily discovered upon reading the instructions, and constitute no ground whatever for a reversal.”
In Harris v. Daugherty, 14 Tex. 1, 11 S. W. 921, 15 Am. St. Rep. 812, the court said: “We see nothing in the matter complained of in the twelfth assignment of error which could have operated to the prejudice of appellant. In his charge to the jury, in stating the issues, the judge, by evident inadvert ence, used this language: ‘The defendant also denies that Slaughter was a creditor of said Daugherty at the time Slaughter transferred the property to him.’ The court meant to use the word ‘debtor’ instead of ‘creditor.’ It is evident no harm could have resulted from the mistake.”
In Schatzlein Paint Co. v. Passmore, 26 Mont. 500, 68 Pac. 1113, this court said: “The instructions of which complaint is made are doubtless open to objection on the score of inaccuracy, but it is clear that error prejudicial to the defendant did not result therefrom.”
It is a general rule that all the instructions must be construed as a whole in their relations to the pleadings and testimony. AATe have concluded that the instructions are reconcilable, and therefore, we must presume, were rightly understood by the jury, and that the obvious mistake regarding the names of Daly and Main streets in said instructions numbered 3 and 10 did not prejudice the rights of appellant.
The verification of the complaint is signed by “Sarah Á. Pryor (her X mark),” and appellant claims that the signature of plaintiff should have been witnessed by a person writing his own name. (Code of Civil Procedure, Sec. 3463.) This objection was not made in the court below, and cannot be heard in this court for the first time. (Power v. Gum, 6 Mont. 5, 9 Pac. 575; San Francisco v. Itsell, 80 Cal. 57, 22 Pac. 74.)
AVe recommend that the judgment be affirmed.
Per Curiam. — Por the reasons stated in the foregoing opinion, the judgment is affirmed.
Affirmed.
|
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Per Curiam.
The relator’s application for a writ of review and mandate is hereby denied and proceeding dismissed.
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ME. COMMISSIONER POORMAN
prepared the following opinion for the court:
On February 26, 1900, the plaintiffs, Landt, Ritter and 13ux-nian, leased to defendant, Schneider, and one Fleiner certain property for the term of one year. Schneider acquired the interest of Fleiner in the lease, and on the 10th of September, 1900, it was agreed between plaintiffs and defendant, Schneider, that the time of the lease should be extended for an additional year from the 26th day of February, 1901. Schneider occupied the premises until the 25th day of February, 1901. This action was to obtain a judgment against Schneider for the rent claimed to be due for the time named in the extension of the lease. Trial by jury. Verdict and judgment for defendant. Appeal from the judgment and from an order overruling plaintiffs’ motion for a new trial.
The defense is to the effect: (a) That defendant surrendered the possession of the premises at the close of one year, and that plaintiff Landt accepted the same, (b) That the buildings leased were occupied, and intended to be occupied, by human beings; that the same had become unfit for such occupancy; that the lessors had been notified, and had failed and refused to make repairs.
1. Where material facts relative to the surrender to and acceptance by the lessor of leased premises are in dispute, the question thus presented is to be determined by the jury; but in this case, for reasons hereinafter stated, we can only say generally that leaving the key of the leased building at the lessor’s place of business over the protest of the lessor, and in spite of his refusal to accept the promises demised, is not such an acceptance by the lessor as will relieve the lessee from the payment of rent. (Blake v. Dick, 15 Mont. 236, 38 Pac. 1072, 48 Am. St. Rep. 671.)
2. It is an elementary principle of law that, in the absence of a statute or agreement, there is no implied warranty that leased premises are suitable for the purposes for which they are demised, or that the lessor "will keep the property in repair. (York v. Steward, 21 Mont. 515, 55 Pac. 29, 43 L. R. A. 125; Petz v. Voigt Brewery Co., 116 Mich. 418, 74 N. W. 651, 72 Am. St. Rep. 531; Davidson v. Fischer, 11 Colo. 583, 7 Am. St. Rep. 267, and note; Minneapolis C. Co. v. Williamson, 51 Minn. 53, 38 Am. St. Rep. 473, and note; Hines v. Willcox, 34 L. R. A. 824, note, 96 Tenn. 148.)
Sections 2620, 2621, Civil Code, provide, however, that, where the building leased is intended for the use and occupation of human beings, the lessor must, in the absence of an agreement to the contrary, put it in a condition fit for such occupation, and must repair all subsequent dilapidations, etc.; that, if he does not make such repairs within a reasonable time after notice, the lessee may repair the same, where the cost does not exceed one month’s rent, or may vacate the premises, in which case the lessee shall be discharged from the further payment of rent.
The decision in York v. Steward, above cited, was based on a state of facts arising prior to the enactment of this statute, and merely holds to the common-law doctrine, without making reference to the statute, though the decision was not rendered until subsequent to the enactment of the sections above referred to. This statute, however, is confined to property used for dwelling-house purposes, and is not applicable to business property. (Edmison v. Aslesen, 4 Dak. 145, 27 N. W. 82; Minneapolis C. Co. v. Williamson, supra.)
3. The lease between the parties describes the property as “the Maiden brewery plant * * * comprising about four and one-half acres of ground, together with the brewery building and machinery and appliances and appurtenances thereto belonging or in any wise appertaining.” The written agreement extending the lease does not give any further description of the property leased. It was denied' in the answer that the lessor had any land, and alleged that the building was situate upon government land. No proof, so far as this record shows, appears to have been introduced upon this subject by either party. There is nothing in the description of the property contained in the lease by which it can be determined from the lease itself whether it was intended for occupation by human beings or not, and this was one of the'issues made by the pleadings. Parol evidence was admissible under these issues to explain the purposes for which the property was leased, and, as incidental thereto, its condition and description, and the court did not err in admitting such evidence.
4. The court refused to admit in evidence a letter which was offered by plaintiffs for the purpose of showing that Landt had authority to act for and on behalf of plaintiff Buxman with reference to leasing.this property. This letter was written by Buxman to Landt subsequent to the beginning of this action, and does not by its terms ratify any previous act of the plaintiff Landt; and the same is also true of plaintiffs’ Exhibit A, which is the power of attorney executed subsequent to the commencement of the suit, but does not by its terms relate to or ratify past transactions.
5. Plaintiffs’ Exhibit 0 was a letter written by Buxman to Landt, dated prior to the written extension of the lease, containing this statement: “We (Bitter and Buxman) have concluded that Mr. Bitter goes to your place and all what he agrees about the brewery in Maiden is all right with me.” This letter is signed by George Buxman. Plaintiffs sought to show by this letter that Bitter had authority to enter into the agreement of September 10th extending the lease^ as the agent of Buxman. The court refused to admit the letter. This letter is a statement by plaintiff Buxman to plaintiff Landt, and does not purport to grant written authority to Bitter to contract for and on behalf of Buxman.
Subdivision 5, Section 2185, Oivil Gode, provides that an agreement for leasing for a longer period than one year, or for the sale of real property, or for an interest therein, must be in writing, and such agreement, if made by an agent, is invalid, unless the authority of the agent be in writing, subscribed by the principal sought to be charged.
Section 1504, Civil Code, provides that, when an attorney in fact executes an instrument transferring an interest in real property, he must subscribe the name of his principal to it, and his own name as attorney in fact.
Bitter had no written authority, as appears from this record, to contract for Buxman; nor is Buxman’s name signed to the agreement extending the time of this lease. This lease and agreement of extension also embody an agreement for the sale and conveyance of this land to defendant. Under the facts here presented, this alleged agreement of Buxman amounts to nothing more than a parol agreement to extend the terms of the written lease and agreement to convey for more than one year beyond the date when the contract of extension was entered into.
In Delano v. Montague, 4 Cush. 42, the court says, in substance, that a parol agreement between the parties to a lease in writing, entered into before the expiration of the lease, that the lessee would take the premises for another year on the same terms, is within the statute of frauds, as an agreement not to be performed within a year, and no action can be maintained thereon.
The agreement extending the terms of this written lease as to plaintiff Buxman is within the statute of frauds (Subd. 5, Sec. 2185, Civil Code), and is wholly void. It is not such an agreement as the defendant could have enforced against the plaintiff Buxman.
Query: Whether this did not invalidate plaintiffs’ entire cause of action?
6. Appellants also claim that the evidence is insufficient to sustain the verdict, and this assignment appears to have been intended as presenting the real issues on this ajipeaL The record, however, does not positively or even inferentially disclose that it contains all the evidence introduced at the trial thereof, or the substance thereof bearing upon the errors as signed. This court has so many times decided that, in order to present a question of this character, the record must disclose all the evidence introduced at the trial below, or its substance, applicable to the errors assigned, that the rule is now stare dbcisis, and we cannot recommend that it be changed. A collection of the cases on this point may be found in King v. Pony Gold M. Co., 28 Mont. 74, 72 Pac. 309.
We therefore recommend that this judgment and order be affirmed.
Per Curiam. — Por the reasons stated in the foregoing opinion, the judgment and order are affirmed.
|
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
The city of Butte caused a sidewalk and curbing to be constructed along the south side of Front Street, and levied a special assessment upon abutting property belonging to plaintiffs to defray the cost of the improvements in front of that property. There was imposed, also, a nominal charge for street sprinkling. This action was instituted to restrain the city and its treasurer from collecting the assessment, and after trial upon an agreed statement of facts a judgment was rendered and entered in favor of plaintiffs, and defendants appealed.
It is conceded that the proceedings taken by the city were regular in all respects and that the assessment is valid, if plaintiffs’ property is liable for the cost of the improvements. It is conceded, further, that the property is a part of the Frankie quartz lode mining claim, “which is and has always been held exclusively for mining purposes,” and that the improvements “do not enhance the value of the property for mining purposes.”
The only basis upon which special assessments for local im provements are sustained is that the particular property charged derives a special benefit substantially commensurate with the burden imposed upon it, and it follows that, if a particular piece of property cannot be benefited by an improvement, it cannot be made to bear any part of the cost. (Hamilton on the Law of Special Assessments, secs. 233-241.)
Whether the construction of the sidewalk and curbing in question results in special benefit to plaintiffs’ property was a question for determination by the legislative branch of the city government in the first instance, and its order for the construction of the improvements at the expense of the abutting property owners was a determination that plaintiffs’ property is specially benefited—a determination with which the courts will not interfere, except upon the ground of fraud or such manifest abuse of discretion as amounts to arbitrary action. The foregoing general rules are elementary, and are recognized by practically all of the authorities. If the property charged is restricted to a particular use, and cannot be applied to any other, the measure of benefits which the improvements will confer is its increased value for the special use to which it is so restricted. This is the effect of the decision in City of Butte v. School Dist. No. 1, 29 Mont. 336, 74 Pac. 869; but the rule cannot have any application to the present case, for plaintiffs do not contend that their property cannot be used for other than mining purposes. ‘
Except as indicated above, it is the rule now recognized generally that, if the property receives special benefits for any use to which it is reasonably adapted, it may be made to bear the cost of the improvements. (Louisville & N. R. R. Co. v. Barber Asphalt Pav. Co., 197 U. S. 430, 49 L. Ed. 819, 25 Sup. Ct. Rep. 466 [see, also, Rose’s U. S. Notes]; City of Vancouver v. Corporation etc. of Nisqually, 90 Wash. 319, 156 Pac. 383; Chicago, R. I. & P. Ry. Co. v. Centerville, 172 Iowa, 444, 153 N. W. 106, 154 N. W. 596; 2 Page & Jones on Taxation by Assessment, sec. 655; 28 Cyc. 1129; 25 R. C. L. 144.) The reason for this rule is manifest, and the present ease furnishes an apt illustration of the absurdity to which a contrary doctrine might lead. The record discloses that the properties adjacent to plaintiffs’ property are occupied by buildings devoted to business and residential purposes, and no one wo7ild have the temerity to insist that those properties may not be specially benefited by sidewalks and curbing constructed in front of them. If this court should hold that, because of its present use for mining purposes, plaintiffs’ property may not be charged with auy part of the cost of the improvements, and if, upon the day the remittitur is issued, plaintiffs should abandon the present use and devote their property to business or residential purposes, or sell it to others who should so change the use, then the property would benefit by the improvements, but at the city’s expense.
Further discussion is unnecessary. "We deem the question before us not open to serious controversy. Prima, facie plaintiffs’ property will be specially benefited to the extent of the charge imposed upon it, and the burden was upon the owners to show, as they have not shown, that because of some special circumstances their property will not be specially benefited, and that the city acted arbitrarily in making the assessment.
The judgment is reversed and the cause remanded, with directions to enter judgment dismissing the complaint.
Reversed with directions.
Mr. Chief Justice Brantlt and Associate Justices Cooper and Galen concur.
|
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] |
PER CURIAM.
The application of relator for writ of supervisory control is denied.
|
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] |
MR. JUSTICE COOPER
delivered the opinion of the court.
Since the former decision, Lester H. Loble, as executor of the last will and testament of John W. Seibold, has been substituted as respondent. We adopt the statement of the issues found in the opinion of Mr. Commissioner Spencer.
Appellant’s contention is.that the proof conclusively shows that, pursuant to the terms of, and within the time specified in, the contract involved, he procured a purchaser ready, able and willing to buy the land of defendant, and that the trial court should have directed a verdict in his favor. If this be true, a reversal of the judgment of the lower court must follow, and the former opinion of this Court be overruled.
The contract is admitted. By its terms its force was spent on the fourteenth day of March, 1915. Did the plaintiff perform his part, and did the defendant observe his obligations thereunder? The following is undisputed: On March 10, 1915, Lingquist deposited in the postoffiee in the city of Helena, addressed to the defendant at East Helena, his postoffice, an envelope containing a notice, which (omitting the signature and the formal parts) reads as follows: “I have found a pur chaser for the ranch mentioned in my contract with you, dated March 14,, 1912, who is willing to pay for the ranch on the terms therein mentioned, and I therefore demand that you transfer the ranch to him and accept the purchase price.” The contents of the letter were a notice to 0 ’Neill and binding upon him the moment it was deposited in the mail at Helena. (Long v. Needham, 37 Mont. 408, 96 Pac. 731; 1 Page on Contracts, see. 201; Henthorn v. Fraser, 2 Ch. Div. 27; Kaurstick v. Fox, 9 Utah, 122, 33 Pac. 251; Otis v. Payne, 86 Tenn. 663, 8 S. W. 848; Brauer v. Shaw, 168 Mass. 198, 60 Am. St. Rep. 387, 46 N. E. 617; 1 Page on Contracts, 2d ed., secs. 199-201; Tayloe v. Insurance Co., 9 How. (U. S.) 390, 13 L. Ed. 187 [see, also, Rose’s U. S. Notes]; Abbott v. Shepard, 48 N. H. 14.)
In the case first cited this court sustained an action for the specific performance of a contract for the sale of land, upon the theory that on negotiations between the parties their minds met and a contract was consummated. On April 4 the plaintiff mailed a letter addressed to the defendant, in which he offered to purchase defendant’s ranch in Fergus county at a price theretofore agreed upon, closing with these words: “If this meets with your approval write me at once and say so, or better wire me, and follow with letter. ’ ’ ■ Upon receipt of the letter, the defendant wired: “Offer accepted, will send papers Fergus County Bank for signature.”
In the Tennessee case Otis inquired of Payne by letter what he would take for a described tract of land on specified terms. Payne replied by letter that he would take $2,500 for the land on the terms mentioned. Otis promptly accepted the proposition by letter. The court held that the_ contract of sale was complete and irrevocable from the date of the mailing of the acceptance. In passing upon the question, the court very aptly remarks: “Payne’s letter was a continuing offer until received, and for a reasonable time thereafter. It was not binding on him until accepted, and before that he might have withdrawn it at any moment. But, when Otis accepted it and mailed his letter, announcing the fact, he at once became entitled to all the benefits of his bargain.”
In the English case the facts were these: On July 7, 1891, the defendant gave to plaintiff an offer in writing to sell him certain real estate. On the 8th plaintiff’s solicitor, by his direction, wrote defendant accepting the offer. The letter was mailed at 3:50 P. M. but did not reach the office until after business hours and was not opened until 10 o’clock the next morning. In the meantime the defendant had written the plaintiff withdrawing the offer on the same 8th of July and posted the letter between 12 and 1 P. M. On the same day the defendant entered into a contract to sell the same property to another person. As to the acceptance, it was held that by the notice the acceptor had done all that he was bound to do; Lord Hersehell announcing the rule to be: “That where the circumstances under which an offer is made are such that it must have been within the contemplation of the parties that, according to the ordinary usages of mankind, the post might be used as a means of communicating the acceptance of it, the acceptance is complete as soon as it is posted.” And so it is of the transaction before us. It was a contract in writing the subject of which was the sale of "real estate. It was, however, silent as to the place and manner of its fulfillment. The plaintiff resided in the city of Helena, the defendant at his ranch ten miles away from Helena; his postoffice being at East Helena, some three miles distant from the land in question. The letter of Lingquist, after deposit in the postoffice, constituted a complete acceptance of the offer embodied in the contract within the doctrine announced in the above cases.
That the offer contained in the letter of Hanson was clear and in full response to the requirements of the writing between the plaintiff and the defendant is apparent from a comparison of its language with that of the contract. The letter reads: ‘ ‘ This is to notify you that I have examined your ranch at the request of Mr. F. W. Lingquist. I am ready and willing to close the deal with you on your ranch mentioned in said option at $25.00 per acre, and I will pay the entire purchase price to you, and you may pay off the mortgage and keep the balance, or I will either pay off or assume the mortgage at your option and the mortgagee’s option. I have made three trips for the purpose of closing the deal, but have been unable to find you at home, so I left a note at your home with instructions to your man in charge there to deliver it to you at once, which note was to the effect that I was ready to buy as above mentioned. Kindly advise me upon receipt of this when you will make me deed and accept the purchase price.”
The plaintiff and Hanson, in their efforts to notify O’Neill that the latter was ready, willing and able to purchase the ranch, went still further, for, on March 10, accompanied by the witnesses Bayerd, Taylor and Carlson, they went to the ranch in question, reaching there between 4 and 5 o’clock in the afternoon. The defendant was not there, so they left two written notices with a man named Beach who was employed there and apparently in charge of the place. On the following day the same five men went again to the O’Neill ranch and found Beach there; Lingquist leaving with him a notice similar in terms to that left' on the previous day, and Hanson fastening the other upon the building, with his street address, 51 Pine Street, Helena, written at the foot, reading as follows: “I am ready to buy your ranch at $25 per acre, price quoted me by F. W. Lingquist. I will pay the entire purchase priee to you, and you may pay off or assume the mortgage at your option.” On March 12 the same five persons again went to the ranch of the defendant, but failed to find him; the plaintiff testifying that they “went through the same performance” as on the day before. These facts stand uncontradicted in the record, and are fortified by admissions made by the defendant upon the witness-stand, as hereafter appears: On March 4 the plaintiff and Mr. and Mrs. Hanson went to the ranch to see it, with the idea of purchasing it. The defendant met them at the gate and “told them (referring to the witnesses Taylor and Hanson) that the plaintiff had an option on the ranch for $25 an acre,” adding: “It ought to have brought more .at that time, and I thought so; 'land has increased in the last two years. It was worth more than $25 an acre.” He also testified that he slept in his house on the nights of March 10, 11, and 12, so that he had ample opportunity to see the notices referred to and learn of their contents; that he was “east of the haystack in the field” on the 11th when the witnesses were there. Mr. Taylor testified that he saw a man near the haystack mentioned answering Mtr. O’Neill’s description; the defendant admitting that he saw them when they were “coming through the field,” but “didn’t speak to them.” The statements of the plaintiff’s witnesses ‘that they were in East Helena on the 10th of March looking for O’Neill and making inquiry as to where he could be found were corroborated by Mr. O’Shea, who was a witness for the defendant. The evidence of the plaintiff and his witnesses is of a positive character, uneontroverted in its material and important features, and is ample to establish the fact that the plaintiff, under the agreement, produced a purchaser who was ready, willing and able to purchase the property and made earnest and persistent efforts to bring him into the defendant’s presence for the purposes contemplated in the contract. On the other hand, the evidence of the defendant was evasive and disclosed a studied effort to shield himself from the imputation that he was hiding from the plaintiff in an effort to prevent a sale. The defendant also admitted that after the expiration of the contract he sold the ranch for $10 an acre above the price named therein. Under these circumstances it is difficult to conceive how the plaintiff could have done more to bring his proposed purchaser and the defendant together, or to better evince his good faith in carrying out the terms of his undertaking. (McLean v. Sellers, 44 Mont. 389, 120 Pac. 242; Van Orden v. Simpson, 90 Misc. Rep. 322, 153 N. Y. Supp. 134.)
The contract imposed mutual obligations upon its makers. O’Neill could remain passive until Lingquist had pro duced a person able, ready and willing to purchase the land in accordance with the provisions of the agreement. Until he had done so, his commission was not earned; and while O’Neill was not required to take affirmative action until the plaintiff had fulfilled his obligation by finding a purchaser, upon the mailing of the letter he had done all in his power to bring the buyer and seller face to face and bound the defendant to execute and deliver the deed upon the payment of the purchase price. Under the agreement as it is written, it could have been enforced by either party against the other. The suggestion in the Hanson letter as to how the mortgage should be taken care of had to do with the mode of carrying out the details of the agreement, and not with the making of it. (Long v. Needham, supra.) It was not a condition attached to the acceptance, but was more in the nature of an option for the accommodation of the defendant. That this is the correct interpretation of the contract is evident from the following recitals therein: “It is further agreed that second party [Lingquist] shall offer the said ranch for sale at an agreed price of $25 per acre, or such other price as the parties shall agree upon, and in ease, of sale second party shall render the first party [O’Neill] a complete accounting of such sale, paying a $6,000 mortgage on said ranch now existing, and all interest and costs thereto pertaining, and retaining sufficient part of the purchase price to reimburse himself for the amount of the chattel mortgage hereinbefore mentioned and interest and costs thereon, and any other costs and expenses that may become necessary to the protection and preservation of said ranch and chattels. It is further agreed that in case of sale all amounts over and above the amounts necessary to liquidate the above-described mortgages and advances in accordance with this contract shall be equally divided between the parties hereto as profits upon the sale of the land.”
Both parties testified that the indebtedness owing to plaintiff had been fully settled long before the happening of the events out of which the present action aróse. The unques tioned evidence of Mr. Pigott that Mr. Hanson was fully able to pay the purchase price and that the amount due upon, the mortgage on March 15, 1915, amounted to the sum of $6,308, left no issue of fact to be determined by the jury and entitled the plaintiff to a peremptory instruction in his favor. Upon this record, the plaintiff requested the district court to give the jury the following instruction: “The uncontradieted evidence shows that on March 15, 1915, there was due on the $6,000 mortgage of O’Neill to Pigott the sum of $6,308, the difference between that sum and $12,000, the' purchase price of the ranch, is $5,892; the court instructs you to find in favor of the plaintiff for one-half of that sum, or $2,846, with interest at eight per cent from March 16, 1915, the date of the commencement of this action.”
There being an entire absence of conflict in the evidence upon the material points in the case, the court should have given the instruction requested.
For these .reasons, the order denying a new trial is reversed and the cause is remanded, with directions to set aside the judgment in favor of defendants and to enter judgment for the plaintiff for the sum of $2,846, with interest from March 16, 1915, at eight per cent and costs.
Reversed.
Mr. Chief Justice Brantly and Associaite Justices Reynolds, Holloway and Galen concur.
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] |
MR. CHIEF COMMISSIONER STARK
prepared the opinion for the court.
This is an action on a promissory note. The complaint which was filed August 3, 1919, is in the usual form, and alleges that on April 10, 1908, at Butte, Montana, the defendant made, executed and delivered to the plaintiff his promissory note for the sum of $130, payable ninety days after date, bearing interest at the rate of one per cent per month from date until paid, and providing, for reasonable attorney’s fees in ease of suit thereon; that demand had been made upon the defendant for payment, but “that no part of the same has been paid. Pai’agraph 3 alleges that $100 is a reasonable attorney’s fee for the institution of this action.” The prayer is for the amount of the note and interest and $100 attorney’s fee.
The answer admits the execution and delivery of the note, that the same has not been paid, and in paragraph 3 “denies each' and every allegation contained in paragraph 3 of said complaint.” As a separate defense the answer avers that plaintiff’s right of action on the note is barred by the provisions of section 6445 (sec. 9029, Rev. Codes 1921) of the Revised Codes of 1907. To this answer' the plaintiff filed a reply denying that the action was barred under the statute, for the reason that between the tenth day of April, 1908, and the third day of August, 1919, the defendant departed from the state of Montana and was absent therefrom on various occasions aggregating more than five and one-half years, and that the time of said absences is no part of the time limited for the commencement of an action on said note.
The case was tried before a jury. A competent witness testified that $75 was a reasonable attorney’s fee for the in-, stitution and prosecution of the action.
The defendant himself, called as a witness on behalf of the plaintiff, testified that he left Butte in April, 1908, and was gone until September of that year, when he returned and remained until April, 1909; that between April 10, 1908, and August 3, 1919, he was absent from Montana on many occasions and for periods of time aggregating more than four and one-half years.
The plaintiff testified that he had made frequent demands upon defendant for payment of the amount of the note, but that the same had not been paid. Thereupon the plaintiff offered the note sued upon in evidence and rested his case.
The defendant in his behalf then showed that the complaint in the action was filed with the clerk of the court on .August 3, 1919, and rested. Whereupon counsel for plaintiff moved the court to direct the jury to return a verdict for the plaintiff for the amount of the note and interest, with the sum of $75 attorney’s fees, for the reason that it was admitted by the pleadings that the defendant made,' executed and delivered the note to the plaintiff, that the same had not been paid, although demand had been made therefor, that the uncontradicted evidence showed that $75 was a reasonable attorney’s fee for the commencement and prosecution of the case, and that there was no evidence in the case proving or tending to prove that the cause of action was barred by the statute of limitations. This motion was sustained, and the jury, having been instructed in accordance therewith, returned a verdict upon which judgment was entered in favor of plaintiff and against defendant for the sum of $130, with interest at one per cent per month from April 10, 1908, and the further sum of $75 attorney’s fees, with costs of suit. Motion for new trial was duly máde, and, having been overruled, the defendant has brought the ease to this court on appeal from the judg-' ment and the order denying his motion for a new trial.
The only question for our consideration is: Did the court err in sustaining plaintiff’s motion for a directed verdict? Defendant contends that, since he was out of the state of Montana on July 10, 1908, when the cause of action accrued on the note, and returned to Montana in September, 1908, the statute of limitations began to run on the last-mentioned date, and that his subsequent absences from the state did not toll the statute. If this is true, then the right of action would have been barred in September, 1916—eight years after his first return. (Section 9029, Rev. Codes 1921.) To support his contention defendant relies upon section 6458, Revised Codes of 1907 (sec. 9048, Rev. Codes 1921), which reads as follows: “If when the cause of action accrues against a person, he is out of the state, the action may be commenced within the term herein limited, after his return to the state, and if, after the cause of action accrues, he departs from the state, the time of his absence is not part of the time limited for the commencement of the action.”
There are a few early eases which sustain the defendant’s contention that the second clause of the section has no application to a person who is absent from the state when the cause of action accrues, but the better reasoning, as well as the great weight of authority, is to the contrary.
The first clause of this section originated in an old English statute (4 Ann., Chap. XYI, sec. XIX), and was adopted in Massachusetts as early as 1786, and in New York in 1788. The second clause was added to the New York statute at a later date, and was subsequently adopted in Massachusetts. In the case of Milton v. Babson, 6 Allen (Mass.), 322, the reason for, as well as the occasion of, adopting the second clause in Massachusetts is fully set forth: “As the law stood prior to the enactment of the Revised Statutes (Stats. 1786, c. 52, § 4) the statute of limitations did n»t begin to run in favor of a person, who at the time the cause of action accrued against him was without the limits of the commonw'ealth, until his return within tbe state. * * * Doubts and difficulties had arisen under the old statute in ascertaining what should be deemed a return or coming within the state, in the sense of the statute, sufficient to cause the period of time necessary to bar an action to begin to run. To do away with the embarrassment which had thus arisen in interpreting the old statute, the second clause * * * was inserted. That this was the object of the alteration is apparent from the report of the commissioners on the Revised Statutes, who recommended the amendment in the precise form in which it was adopted. * * * They sáy, ‘The latter part of this section is taken from the New York Code. The courts have felt bound to allow some latitude of construction as to what shall be considered a return into the commonwealth, within the intent of Stats. 1786, c. 52; 3 Mass. 271; 1 Pick. 263; and the precise limits of the rule in that respect are left undefined and uncertain. By the proposed alteration all doubt on the point will be removed, as the debtor must remain within the state during the whole period prescribed for the limitation, in order to avail himself of its provisions.’ This serves to make the intent of the legislature * * perfectly clear. A return into the commonwealth was no longer to be sufficient of itself to cause the period of limitation to commence and to continue to run till the bar should become complete, but * * * such return was to be followed by six years’ residence in the state in order to bar an action. “ =:i * ” Summing up the entire ease, the court says: “By the first clause, the period of limitation does not begin to run till the debtor, whether foreigner or resident, if out of the state when the cause of action accrues, comes within the state; by the second clause, if after he comes into the state, so that the time of the statute bar begins to run, he is absent, the time of his absence is to be deducted, in order to ascertain whether the full time limited has expired.”
The construction of this statute thus announced has been followed and adopted in a great number of cases, among which we cite: Whitcomb v. Keator, 59 Wis. 609, 18 N. W. 469; Stanley v. Stanley, 47 Ohio St. 225, 21 Am. St. Rep. 806, 8 L. R. A. 333, 24 N. E. 493; Todman v. Purdy, 5 Nev. 238; Davis v. Marshall, 37 Vt. 69; Conlon v. Lanphear, 37 Kan. 431, 15 Pac. 600; Gibson v. Simmons, 77 Kan. 461, 94 Pac. 1013; McKee v. Dodd, 152 Cal. 637, 125 Am. St. Rep. 82, 14 L. R. A. (n. s.) 780, 93 Pac. 854.
Any other rule would not be supported by reason. If the construction contended for by'appellant were adopted, a person absent from the state when the cause of action accrued by coming into the state and remaining for a brief period could start the statute running against him, which in the statutory period would become a complete bar, 'although he might in fact be out of the state during nearly the whole period, while one present in the state when the cause accrued, would be obliged to remain in the state during the full term prescribed in order to avail himself of the bar of the statute. “A construction involving a conclusion so unreasonable, and leading to a result which makes the practical operation of the statute so manifestly unequal and un.just, cannot be supported unless required by language too clear to admit of any other interpretation.” (Whitcomb v. Keator, supra.)
In 17 Ruling Case Law, page 844, section 205, referring to the provisions of statutes like the one under consideration, the writer uses this language: “It is generally held that the time of the debtor’s temporary presence in the state must aggregate the statutory period to constitute a bar, since the running of the statute ceases as soon as the defendant departs from the state.”
And in Knox v. Gerhauser, 3 Mont. 267, which case involved a construction of the second clause of the section in question, it was decided: “That the successive absences of a person from the state must be aggregated together and deducted from the whole time which has elapsed since the cause of action accrued, and the remainder is the time the statute of limitations has run.”
Under the above authorities we hold that the plaintiff’s right of action on the note in suit was not barred by the statute, because the defendant had not been in the state of Montana for periods of time aggregating eight years after the right of action accrued and before the commencement of the suit.
It is next urged that the court erred in not submitting to the jury the determination of the amount of attorney’s fees which plaintiff was entitled to recover for bringing suit on.the note. There is no merit in this contention, for the reason that the answer did not raise an issue as to whether or not $75 was a reasonable fee, the only denial therein being that $100 is a reasonable fee for the institution of this action. In the case of James v. McPhee, 9 Colo. 486, 13 Pac. 535, referring to a denial similar in effect to this one, the court said: “It is pregnant with the substantial admission of the allegation, the letter of which it alone denies.” In Marsters v. Lash, 61 Cal. 622, it is held: “Such denials are evasive and in fact no denials at all.”
In Lynd v. Picket, 7 Minn. 184 (Gil. 128), 82 Am. Dec. 79, the court, in passing upon the sufficiency of a denial like the one under consideration, said: “Where a party would controvert an allegation of value, he must allege that the article is of no value, or of the value as he claims it to be. Under such an allegation as this, the value might be one cent less than alleged in the complaint, and yet the answer would be literally true.”
The same rule as to such denials is laid down by the following authorities: Power v. Gum, 6 Mont. 5, 9 Pac. 575; Scovill v. Barney, 4 Or. 289; Welch v. Bigger, 24 Idaho, 169, 133 Pac. 381; Ronning v. Way, 18 Cal. App. 527, 123 Pac. 615; Conway v. Clinton, 1 Utah, 215; Dillon v. Spokane County, 3 Wash. Ter. 498, 17 Pac. 889; Bliss on Code Pleading, sec. 332; Pomeroy’s Code Remedies, sec. 509; Sutherland on Code Pleading, sec. 417.
The undisputed facts in the case disclosed that plaintiff’s right of action on the note in suit was not barred by the statute, and, there was no issue on the question whether $75 was a reasonable attorney’s fee. Therefore there was nothing in the case to submit to the jury, and the court did not err in directing a verdict in favor of the plaintiff.
We recommend that the judgment and order be affirmed.
Per Curiam : For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.
- Affirmed.
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] |
MR. COMMISSIONER HORSKY
prepared the opinion for the court.
This proceeding was commenced in the district court of Glacier county by the plaintiff to procure a writ of mandate to compel the defendant to pay over to the plaintiff forthwith the sum of $9,599.85, city taxes collected by him for the city of Cut Bank in said county, in his capacity as county treasurer.
The city of Cut Bank has never provided by ordinance for the collection of taxes levied by such city by its city treasurer, and it therefore became the duty of the county treasurer of Glacier county to collect them. During the year 1920 the defendant, Bruce R. McNamer, as ‘treasurer of Glacier county, collected for and on behalf of the city of Cut Bank, a city of the third class, the sum of $24,405.20, being the taxes levied and assessed by the city for the years 1919 and 1920. Of this amount the defendant accounted to the city for the sum of $14,805.35, leaving a balance of $9,599.85 still in the county treasury belonging to the city. These taxes were collected by the defendant, or at least a major portion thereof, at the time that the state and county taxes were collected, and were deposited, together with other moneys received as taxes, in the name of Bruce R. McNamer as county treasurer, in certain depositories designated by the board of county commissioners. There had been qualified under the County Depository Act four banks, and the county treasurer deposited all moneys collected by him in these banks.
On December 23, 1920, and before defendant had accounted to said city for the balance belonging to it, to-wit, $9,599.85, the First National Bank of Cut Bank, one of the depositories that had qualified under the law to receive deposits from the county treasurer, suspended operations and became insolvent, and on or about the first day of February, 1921, said bank passed into the hands of a receiver appointed by the comptroller of the currency. The defendant, on December 31, 1920, had on deposit in said bank as county treasurer the sum of $78,332.78 representing forty-seven per cent of all moneys in his possession on that date and belonging to the various county, state and agency funds which he, as county treasurer, is required to handle. Defendant testified that he did nothing toward keeping these funds separate in the bank or banks, and the moneys belonging to the city of Cut Bank were deposited in said banks as he received them, and intermingled with moneys belonging to the county. The moneys in the defunct bank being unavailable, defendant charged off as a loss forty-seven per cent of the total amount of ■ each fund, as shown by his books to have been in his possession as county treasurer on December 31, 1920. By this method he determined that there was approximately $9,599.85 in the First National Bank on said last-mentioned date belonging to the city of Cut Bank. These various amounts so charged off as a loss have been carried upon his books as an “escrow fund.” There was a deposit in the other banks in amount sufficient to pay the city of Cut Bank the balance due it, without interfering with money realized from a certain road bond issue testified to by the defendant.
On the seventeenth day of March, demand having previously been made upon the defendant that he pay to the city of Cut Bank the balance due it, the city instituted the present proceeding to compel him to deliver and pay over to the proper officials of the city the balance still due on account of taxes so collected. On April 21, 1921, being the return day of the writ, the defendant filed a return and answer thereto, in which he set forth the depositing of said moneys with the First National Bank of Cut Bank, the insolvency of said bank, and alleged that by reason thereof there were no funds in his hands available for the payment of the amount as directed by the writ of mandate. To this return the plaintiff interposed a demurrer which was by the court overruled. The plaintiff served and filed its reply to said return and answer, and alleged, among other things, that the moneys due the city of Cut Bank had been intermingled with the moneys of Glacier county, and that the same can be drawn out by said county treasurer and paid to the city of Cut Bank.
Upon the issues thus framed, a hearing was had before the lower court; and thereafter the court rendered and caused to be entered its judgment and order therein, in which it found that the cause shown by the defendant was and is good and sufficient, and that the plaintiff is not entitled to a peremptory writ of mandate, and decreed that such writ be refused, and the action dismissed. This appeal is taken from the judgment of the lower court.
It is earnestly insisted that the court erred in denying plaintiff’s petition for a peremptory writ of mandate, and rendering and entering judgment for the defendant.
The city of Cut Bank not having made provision by ordi nance for the collection of its city taxes by its own treasurer, it became under the law (sec. 3356, Rev. Codes 1907) the duty of the county treasurer to collect the taxes levied by said city, and, having collected such taxes, it was also his duty to turn them over to the city treasurer of the city of Cut Bank. In the ease of Town of White Sulpher Springs v. Pierce, 21 Mont. 130, 53 Pac. 103, this court, in speaking of a statute then in force requiring the county treasurer to collect city taxes, said: “The county treasurer collects the taxes in all towns and cities except cities of the first class, unless such towns or cities not of the first class otherwise provide by ordinance. (Section 4870, Political Code.) The plaintiff town had not otherwise provided by ordinance for the collection of its taxes. The defendant, as county treasurer, collected the taxes levied as shown above. Having collected them, section 4864 of the Political Code requires that he pay them over to the town or its treasurer. This he refused to do. We are shown no sufficient reason why he should refuse to comply with a plain requirement of the law.- The taxes were levied by the town, and collected by the appellant as town taxes.”
Defendant does not take issue with the statement that it was his duty as county treasurer to collect the city taxes, but asserts that the claim that it was his duty to turn them over to the city treasurer must be accepted with some qualifications. He urges that under section 3003 of the Revised Codes of 1907, as amended by Chapter 88 of the Session Laws of 1913, it became his duty as county treasurer to deposit “all public moneys in his possession and under his control” in certain depositories designated by the board of county commissioners, which he did, and that, having done so, he is not liable for the loss of such moneys not due to his neglect, fraud or dishonorable conduct, and further that the taxes were received by him as a mixed fund in which state, county, city and school districts have an interest, but to no part of which either the state, county, city or school district can claim title until he as treasurer, in the discharge of his duty, has had time within which to segregate and appropriate from this general fund the particular portion to which each political subdivision is entitled.
Section 3003 as amended by Chapter 88 of the Session Laws of 1913, reads in part as follows: “It shall be the duty of the county treasurer to deposit all public moneys in his possession and under his control, excepting such as may be required for current business, in any solvent bank or banks located in his county subject to national supervision or state examination, as the board of county commissioners • shall designate and no other, and the sums so deposited shall bear interest at the rate of two and one-half (2y2) per centum per annum payable quarterly-annually. The treasurer shall take from such banks such security in public bonds or other securities, or indemnity bonds, as the board of county commissioners of such county may prescribe, approve and deem fully sufficient and necessary to insure the safety and prompt payment of all such deposits on demand. * # * ”
Now, conceding that it is the duty of the county treasurer under the statute just quoted to deposit all moneys collected by him for the city, it goes without saying that he has not then discharged his full duty toward the city. There remains the further duty to account to the city for the moneys so collected. It is further perfectly apparent from a reading of statutes that the city treasurer, and not the county treasurer, is the proper custodian of the city’s moneys. (Chap. 88, Laws 1913.) Section 3257, as amended by Chapter 88 of the Session Laws of 1913, imposes upon the city treasurer substantially the same duties with reference to the handling of public moneys coming into- his hands as is imposed upon the county treasurer. He is obliged “to receive all moneys that come to the city or town, either from taxation or otherwise” and “to deposit all public moneys in his possession and under his control” in substantially the same manner as is required of county treasurers, and the sums so deposited shall bear interest at the rate of two and one-half per cent p.er annum, payable “quarterly-annually.” (Chap. 88, Laws 1913.)
Not being the custodian of the city’s funds, but simply acting as a collector of city taxes, it is plain that, as soon as
lie collects such taxes it at once becomes incumbent upon the county treasurer to turn them over to the proper custodian, namely, the city treasurer. True, the county treasurer must, as he collects taxes, credit the various funds of which he is the custodian with the amount to which each is entitled, but as to moneys belonging to the city, this duty does not devolve upon him, but upon the city treasurer. (Chap. 88, Laws 1913.) As to moneys collected by the county treasurer for the city, it is a mere matter of computation to determine the amount collected, and, when this has been ascertained, it becomes his duty immediately to pay the same over to the city treasurer. No reason has been assigned, nor do we believe there is any, why the county treasurer should retain possession uf such moneys longer than is necessary in the ordinary course of business to determine the amount collected. If he deposits the city’s money in the designated depository or depositories, and before he has had time to ascertain the amount that he has collected for the city a loss occurs, such as in this case, he would no doubt be protected, but, after the necessary time for making such computation elapses, to say that he would be relieved of the duty of paying over to the city such moneys so collected would in a sense be allowing him to take advantage of his own wrongful conduct. He makes the deposit of the city’s money for one purpose and one purpose alone, namely, for safekeeping until he can ascertain the amount he has collected, and, when this is done, he must immediately account therefor to the city.
While the statute (sec. 3356, Eev. Codes 1907) makes provision for the collection of city taxes by the county treasurer, where the city has not provided by ordinance for the collection of the same by its city treasurer, there is no specific provision as to when the money so collected shall be turned over to the city or its city treasurer. It is unfortunate that this matter should have been overlooked by the legislature, but a careful reading of all of the provisions of the statutes dealing with tbe subject under consideration, leads us irresistibly to the conclusion that it was the intention of the legislature to require the county treasurer to account for city taxes collected by him as heretofore indicated.
In the case at bar it is undisputed that on December 31, 1920, when the First National Bank of Cut Bank closed its doors, being one month after the great mass of the city taxes had been collected, the defendant had neglected to pay over to the city treasurer the moneys which he had collected for the city. Under such circumstances we unhesitatingly declare that an unreasonable time had elapsed for the performance of a plain duty, namely, the computation of the amount of city taxes collected and accounting therefor to the city, and that, in contemplation of law, this money was at the time of the demand by the plaintiff therefor, and the issuance of the alternative writ, in the county treasury, and should have been turned over to the city treasurer of the city of Cut Bank.
It will be noted in this connection that Chapter 8-8, stúfira, not only provides that the city treasurer must receive all moneys that come to the city from taxation, and deposit the same in certain designated depositories, but also provides that the city shall receive interest on all sums so deposited by such treasurer in banks which have qualified under .the Act to receive such deposits. From this it is apparent that the legislature intended that the city, and not the county, should receive all interest on the city’s moneys. To say that the county treasurer, after having collected the city taxes and deposited the same in designated depositories, could be considered to have performed his full duty, and not obliged to account therefor until demand made upon him by the proper city officials, would in our opinion be running counter to, and would in a measure defeat the purpose of, the above provisions of our statutes. In other words, under this Act it is evident that the legislature intended that both the county and city should profit by the deposits made in the designated depositories, and to say that the county should be permitted to retain and reap a profit from the money in the county treasury belonging to the city would manifestly be inconsistent with this legislative purpose and intent. Tbe provision of Chapter 88, supra, with reference to cities is likewise persuasive of the legislative intent to require the county treasurer to account immediately, upon the amount being ascertained, for all moneys collected by him for the city. To accept any other construction of the law would in our opinion establish a dangerous precedent. Cities might be seriously embarrassed in getting possession of funds to which they are justly entitled and might in certain instances be the victims of designing public officials. That the law never contemplated nor expected any such results is perfectly apparent to us.
But, says the defendant, the county treasurer has no available funds out of which to pay the amount due the city of Cut Bank. This argument is likewise based on a false premise. He argues thus: That of all moneys collected by him on December 31, 1920, forty-seven per cent thereof was on deposit in the defunct First National Bank of Cut Bank. He testified that two courses were open to him: One was to pay out the money he had on deposit in other banks, as fast as it was called for, and keep on paying until there was no money left, disregarding the fact that about forty-seven per cent of the money was unavailable, that is, tied up in the First National Bank; and, second, to consider that forty-seven per cent of the city’s money, as well as forty-seven per cent of the money belonging to the various other funds, was on deposit in the defunct First National Bank. He chose the latter course. He deducted from each fund of which he was custodian, as well as from the amount collected for the city, this forty-seven per cent representing the amount on deposit in said defunct bank. He does not call to our attention any law or rule which would authorize him so to do. It is perfectly apparent that he arbitrarily selected this method and distributed all moneys available pro rata to the various funds, and assumed that forty-seven per cent of all moneys he had collected were on deposit in the First National Bank. To our minds he had a perfect right to make such distribution as to funds of which he was the custodian, but he had no right whatever to arbitrarily deduct forty-seven per cent from the amount collected for the city on the wholly unfounded assumption that it was on deposit in this defunct bank. His arbitrary action in throwing a pro rata share of the loss of the moneys deposited in the First National Bank of Cut Bank upon the city is predicated solely upon the mistaken premise that he was the proper custodian of the city’s money. If the loss occasioned by the failure of this bank be prorated properly, and not improperly, as has been done in the instant case, then there will be no lack of available funds to pay the city. There was further no provision in the law nor was the county treasurer authorized to prorate the money which he had collected for the city among the four banks in that county. This duty as to the city’s money devolved upon the city treasurer. (Chap. 88, Laws 1913.)
The above also disposes of the point made by defendant that mandamus will not lie in the case at bar for the reason that the county treasurer, if required to pay the sum due the city, would have to take the money that was already appropriated to other funds.
"While we are fully aware of the rule that mandamus will not lie to compel the doing of something unauthorized by law or impossible of performance, yet in the instant ease such a rule is inapplicable. In contemplation of law the city’s money is still in the county treasury, and the fact that -the money has been diverted by the arbitrary act of the county treasurer into some other fund or funds does not excuse the treasurer from the duty of paying the same over to the city.
In People ex rel. Martin v. Brown, 55 N. Y. 180, mandamus was held to be the proper remedy to compel a tax collector to pay taxes collected to make payments on bonds issued in aid of a railroad to the railroad commissioners of the town, although the collector had already paid the funds to the wrong officer. In that case the court said: “The payment to the supervisor of the town was unauthorized; and it is not a ground for refusing to issue the writ that the defendant has, by his voluntary and wrongful act, subjected himself to loss, or that the performance of the duty' enjoined upon him may, in consequence thereof, be difficult or inconvenient. ’ ’
Again, in People v. Comptroller, 77 N. Y. 45, it was said: “It is a general rule that the writ of mandamus will not be awarded, when it appears that there are no funds out of which the warrant can be paid if drawn. (High on Remedies, sec. 352.) But when money has been appropriated for a specific purpose it is not in all cases a sufficient answer to an application for a mandamus to compel its payment for that purpose to set up that the money has been wrongfully applied to other purposes. It may be regarded in contemplation of law, as still in the treasury. (People v. Stout, 23 Barb. 338; Hohl v. Town of Westford, 33 Wis. 324; Campbell v. Polk, 3 Iowa, 467; Lansing v. Van Gorder, 24 Mich. 456; Risley v. Smith, 64 N. Y. 570.)”
The same principle was announced by the court in the case of People ex rel. Rohr v. Owens, 110 App. Div. 30, 96 N. Y. Supp. 1034: “ ‘The money which was raised for the purpose of paying said draft was diverted from its proper purpose to the payment of other drafts.’ And no part of the money came into the official hands of the present treasurer. His contention is that under such circumstances this proceeding [mandamus] will not lie. As the money was raised and appropriated for a specific purpose, I think that the eye of the law still regards it as- in the treasury, and applicable to the discharge of the draft, and that this case must be decided upon the authority of People ex rel. Dannat v. Comptroller, 77 N. Y. 45.”
That mandamus is the appropriate remedy in a ease of this kind seems well settled. “Mandamus is the appropriate remedy to compel a county treasurer to pay over to a town treasurer funds belonging to the town, to the custody of which its treasurer is entitled.” (High’s Rem., 3d ed., sec. 367; 2 Spelling on Inj. & Extr. Rem., 2d ed., sec. 1512; Merrill on Mandamus, see. 134; 26 Cyc. 311, 334, 335; State v. Hoefinger, 31 Wis. 257; State v. Roderick, 23 Neb. 505, 37 N. W. 77.) Nor is the fact that a defendant is liable to an action upon Ms official bond any bar to relief by mandamus. (High’s Rem., 3d ed., see. 367.)
For the foregoing reasons we recommend that the judgment be reversed and the cause remanded to the district court, with directions to grant the peremptory writ of mandamus as prayed.
Per Curiam : For the reasons given in the foregoing opinion, the judgment appealed from is reversed and the cause is remanded to the district court, with directions to grant the peremptory writ of mandamus.
Reversed.
|
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MR. JUSTICE REYNOLDS
delivered the opinion of the court.
Plaintiff was injured in a collision between a motorcycle and an automobile upon the public highway, and brought this action to recover damages for his injuries. The ease was tried before a jury, which- rendered a verdict in favor of plaintiff for the sum of $5,075, and judgment followed. Motion for new trial was made and denied. Defendant has appealed from the judgment and the order.
The specifications of error raise questions as to the sufficiency of the complaint to state a cause of action, the sufficiency of the evidence to support the verdict, and the alleged excessiveness of the damages given by the jury under the influence of passion and prejudice.
The facts as disclosed by the complaint and plaintiff’s evidence were substantially as follows: Plaintiff was proceeding north on the west side of the public highway in the county of Fergus, riding on a motorcycle with side-car attached, occupied by one Turk. At the same time defendant was traveling toward the south upon the east side of the same highway in a Ford automobile. It is apparent, therefore, that each was traveling on the wrong, or his left, side of the road. Plaintiff was proceeding at a rate of speed - approximately twenty miles per hour and defendant at approximately fifteen miles per hour. The highway was a graded one, the graded portion being from twenty-five to thirty-five feet in width, with a well-beaten track on each side of the center thereof. The road was level and free from obstruction, so that each could see the 'approach of the other. When approximately 250 feet from defendant, plaintiff crossed to the east or his right side of the road, but defendant failed to cross to the west or his right side of the road. When a collision seemed imminent, plaintiff turned still farther to the right, and went as far in that direction as it was possible for him to go, striking the right bank of the graded portion of the highway, which bank was approximately three feet in height. Defendant, instead of turning to his right, turned to his left. In the collision the left wheel of the automobile struck the front wheel of the motorcycle, and the right front wheel of the automobile struck the rear wheel of the motorcycle. The axle of the automobile struck plaintiff’s left foot and leg, crushing the bones of his foot and breaking 'both bones of his leg about two or three inches above the ankle.
The law governing traffic upon the highway is fixed by statute, and reads as follows: “Traffic must everywhere and at all times keep to the right. Vehicles moving in opposite directions must pass each other by turning to the right. Vehicles moving in the same direction must pass by turning to the left on the part of the one passing and turning to the right on the part of the one being passed. At all times, curves, corners and crossings, and particularly where the view is in any manner obstructed both in cities and towns and in the country, vehicles must slow down and be under complete control and must keep to the right, so that if the width of the road permits, there is room on their left for the passing vehicle that may at any time suddenly or unexpectedly appear.” (Subdivision (a), sec. 8, Chap. 75, Laws 1917.)
Defendant urges that the complaint is defective for three reasons: (1) That it fails to show that defendant knew, or in the exercise of reasonable care should have known, of plaintiff’s approach in time to have turned to the right in passing him; (2) that the complaint fails to show that plaintiff was free from contributory negligence; and (3) that the complaint fails to show that plaintiff turned from his left to his right side of the road seasonably and as soon as an ordinarily prudent person would have done.
The complaint alleges: “That plaintiff drove to his extreme right side of the road while fully 250 feet away from the defendant, but that the defendant did not drive to his right side of the road, but continued on toward the plaintiff without making any attempt whatever'to drive to his [the defendant’s] right side of the road as he should have done; that as the result of defendant’s negligence, wrong, default, carelessness, and want of due care, he drove his said automobile directly into the plaintiff and his motorcycle.”
In view of the fact that the statute expressly provides that “vehicles moving in opposite directions must pass each other by turning to the right, ’ ’ and that ‘ ‘ at all times * * * vehicles # * * must keep to the right so that if the width of the road permits there is room on their left for the passing vehicle that may at any time suddenly or unexpectedly appear,” the allegation that defendant was pn the left side of the road when they met makes a prima facie charge of negligence. While it may be true that one may be driving upon the left side of the road under certain circumstances without being guilty of negligence, yet in any particular ease such circumstances are matters of justification and of defense, and do not need to be negatived by the plaintiff in charging the violation of the statute. While the complaint does not specifically allege that plaintiff turned from his left to his right side of the road seasonably and at such time as an ordinarily prudent person should have done, yet it does allege that he made that turn when fully 250 feet distant from the defendant. An allegation that plaintiff turned out seasonably and as an ordinarily prudent person would have done would be merely the statement of a conclusion, and would not aid the court in determining whether or not the facts showed such turnout was seasonable. Whether or not it was seasonable is a question upon which reasonable men may easily differ, and therefore the court cannot say as a matter of law that the allégations' of the complaint were insufficient in this respect, but the mat-j ter resolves itself into a question of fact to be determined by the jury under the cireumstafices of the ease.
Any claim by defendant of contributory negligence on the. part of plaintiff was a matter of defense, and plaintiff did not1 need to allege freedom from contributory negligence in his1 complaint. (Vasby v. United States Gypsum Co., 46 Mont. 411, 128 Pac. 606; Ball v. Gussenhoven, 29 Mont. 321, 74 Pac. 871; Meehan v. Great Northern Ry. Co., 43 Mont. 72, 114 Pac. 781; Stewart v. Pittsburg etc. Copper Co., 42 Mont. 200, 111 Pac. 723.)
Contention is made that the evidence is insufficient to sus-! tain the verdict for the reason that it does not appear that plaintiff himself turned out seasonably, that he was driving in a careful and prudent manner, and that plaintiff’s own act' was the proximate cause of the injury. From the evidence in' the case we are satisfied that all these questions were questions of fact to be resolved by the jury whose verdict upon those features of the case is controlling. j
Defendant urges that the amount awarded is excessive, and indicates that the verdict was given under the influence of passion and prejudice, and that the judgment should not be sustained. The evidence shows that plaintiff suffered a com-minuted fracture of both bones of the leg just above the ankle. One piece of the large bone was broken loose, and there were several small fragments. Both legs were scratched and cut considerably. The arch of the left foot was crushed down, and the bones dislocated with laceration of the soft parts. The foot was restored to a good condition, and the bones of the leg united so that plaintiff has a serviceable leg, but it will not be as good as before the accident. There is slight deformity due to a callous formation where the bones united, and plaintiff retains a slight limp. Under these circumstances we do not think that the amount of the judgment can be said to be excessive.
Rehearing denied March 6, 1922.
For the reasons herein given, the judgment and the order denying motion for new trial are affirmed.
Affirmed.
Mr. Chief Justice Brantly and Associate Justices Cooper, Holloway and Galen concur.
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PER CURIAM.
Upon motion of respondent, and for good cause shown, the appeal in the above-entitled cause is dismissed.
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MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
Action in ejectment. After the issues were made up, the cause was submitted to the court without a jury upon an agreed statement of facts, the substance of which is the following:
Section 15, township 14 north of range 46 east of the Montana principal meridian in Prairie county, Montana, the land described in the complaint, is an odd-numbered section within the limits of the primary grant of land made to the Northern Pacific Railroad Company,' the predecessor in interest of the plaintiff, b3r the Act of Congress of June 2, 1864. Patent for the section was issued by the United States to the plaintiff on June 10, 1913. The government survey in the field of the township and section was made in May, 1909, and the official plat of the survey was approved by the United States surveyor-general of Montana on January 12, 1912. The plat was approved by the commissioner of the general land office of the United States on August 14, 1912, and was filed in the United States land office at Miles City, Montana, the office of the district within which the section is situated, on November 15, 1912. At the time of the commencement of this action, in July, 1917, the defendant had been in the possession of the section for more than ten. years, a sufficient time to acquire title by prescription if his possession could operate as adverse possession against the plaintiff prior to the survey and identification of the section by the approval of the official plat of the survey in 1912. The court decided in favor of the defendant, holding that he had “acquired title to the land in question by adverse possession and had absolute title thereto as against the plaintiff.” Plaintiff moved for a new trial. The motion was denied. The cause is before this court upon appeals from the judgment and the order denying the motion.
By section 3 of the Act of July 2, 1864 (13 Stats, at Large, p. 365), the Congress granted to the Northern Pacific Railroad Company, its successors and assigns, in aid of the construction of its railroad, “every alternate section of public land, not mineral, designated by odd numbers to tbe extent of twenty (20) alternate sections per mile on each side of said railroad line as said company may adopt,” and by section 6 made it the duty of the President of the United States to cause “the lands to be surveyed for forty miles in width on both sides of the entire line of said road, after the general route shall be fixed, and as fast as may be required by the construction of said railroad.”
As disclosed by his written opinion, which we find incorpo rated in the record, the district judge adopted the view announced by the courts generally, which have considered grants by the federal government in aid of railroads similar to the one made to the Northern Pacific Eailroad Company, that they were grants in praesenti, but that they were floats, and did not attach to any part of the public domain until the routes selected by the several grantees were definitely located. He held further that, after the route of the plaintiff road was definitely located, and while any of the lands within its boundaries remained unsurveyed, an intruder entering upon any unsurveyed portion thereof which was thereafter shown by an authorized survey to be the property of the plaintiff could not, by his occupancy, acquire title to it by adverse possession. He also held, however, that, though this is so, when the land so occupied is surveyed, the plaintiff’s, title reverts to the date of the grant, and the title of the adverse holder or occupant runs from the daté at which his tenure began. Accordingly, he concluded that the defendant had acquired title to the land in question by adverse possession. The determinative question presented in this ease, then, is whether the statute of the state of Montana providing for the acquisition of the title to land by adverse possession became operative before the segregation of the particular tracts or sections granted from the public domain and their identification by the approval of the government survey. It is apparent that the land in question was not segregated from the public domain and identified as an odd-numbered section, subject to the terms of the grant, until the approval of the official plat in 1912. In fact, there was no section 15, the one involved herein, until the survey had been completed and approved.
The operation of the grant was considered by the territorial supreme court of Montana in several cases, namely: Northern Pacific R. R. Co. v. Majors, 5 Mont. 111, 2 Pac. 322, Northern Pacific R. R. Co. v. Lilly, 6 Mont. 65, 9 Pac. 116, and United States v. Godwin, 7 Mont. 402, 16 Pac. 850. While in all of these cases it was held that the grant of Congress was in praesenti, in none of them was it held that the definite location of the route was in itself sufficient to give title to the railroad company to any particular portion of the lands included therein, until the survey required by section 6 of the Act had been completed and approved. In the first of these eases, after examining a great number of decisions by the supreme court of the United States, the court said: “These decisions also determine for us (where the Act itself does not indicate the particular lands granted, but leaves their location to be specified in the future) when such a grant shall attach to the particular tracts, and become fixed and certain, until which it is a float, which in this case would be when the line of the road is definitely fixed, and the lands granted thereto ascertained. This is necessary to be done'to give precision to the grant and attach it to the particular tracts of 'land. When such line is definitely fixed, and the sections of land designated by the survey, the grant then becomes certain, and, by relation, has the same effect upon the lands thus designated as if they were specifically described therein. Therefore. we must conclude, now having in view simply sections 3 and 6 of the Act in question, that the grant takes effect as of date of the Act, and becomes attached to the specific tracts when definitely ascertained by the location of the route of the road and the survey of the lands.”
It was said by tbe supreme court of tbe United States in Maguire v. Tyler, 8 Wall. 650, 19 L. Ed. 320: “Where the documentary evidences of title produced by the claimant contain no sufficient lines or boundaries to show that any definite and distinct parcel of land was severed from the public domain, the universal rule as settled by repeated decisions of this court is that the concession in such a case creates no right of private property in any particular tract of land which can be maintained in a court of justice without an antecedent survey and location. * * * Several eases determine that, where there is a specific tract of land confirmed according to ascertained boundaries, the legal effect of the confirmation is to establish the right and locate the claim, but where the claim has no certain limits, and the decree of confirmation carries along with it the condition that the land must be surveyed, and severed from the public domain and the concessions of other parties, then it is beyond controversy that the title of the claimant, although confirmed, attaches to no land, nor has a court of justice any authority in law to ascertain and establish the boundaries, as that power is reserved either to the executive department or to Congress. ’ ’
So in the case of Middleton v. Low, 30 Cal. 596, the supreme court of California in considering the question of a selection of lands in lieu of the sixteenth and thirty-sixth sections granted to the state for school purposes prior to the survey by the United States of the lands selected, held that the right of selection by the state could not be exercised until after survey had been made by the United1 States, and that a selection previous to such survey could not vest the title in the state or a purchaser from the state. The court said: “The reasons operating to prevent the state or her vendee from acquiring a title by the aid of a selection made, as in that case [referring to Grogan v. Knight, 27 Cal. 515], before the congressional survey, are equally cogent to show that title to any particular parcel of the lands granted for the purposes of public schools does not vest in the state until such survey has been made. There is, in fact, no such tract of land as that described in the petition until it has been located within the congressional township, by an actual survey and establishment of the lines, under the authority of the United States, and the survey has been approved by the proper United States Surveyor-General. A person may approximate to the lines that may be run—may surmise the precise lines—but the tract has no separate legal identity until the survey is made and approved under the authority of Congress.” (See, also, Deseret Salt Co. v. Tarpey, 142 U. S. 241, 35 L. Ed. 999, 12 Sup. Ct. Rep. 158, and Leavenworth R. R. Co. v. United States, 92 U. S. 733, 23 L. Ed. 634.)
This court recognized the same rule in the case of Clemmons v. Gillette, 33 Mont. 321, 114 Am. St. Rep. 814, 83 Pac. 879. It held that, though the grant of school lands to the state of Montana operated for some purposes as a grant in praesenti conveying the fee, yet, until the official survey had been made, and the plat approved by the federal authorities, the grant was not effective to vest in the state title to any specific portion of the land described by the designation of section numbers only.
In the ease of United States v. Birdseye, 137 Fed. 516, 70 C. C. A. 100, the circuit court of appeals, in considering the question whether a particular odd-numbered section, two lines of which had been surveyed, was sufficiently identified to vest title in the railway company and its grantee so that the latter could lawfully cut timber thereon, held: “The partial survey by the United States of a section of public land by running lines on two sides of it is insufficient to identify it as an odd-numbered section, within the grant to the Northern Pacific Railroad Company, so as to relieve one cutting timber thereon from liability to the United States.” Again, in Carroll v. United, States, 154 Fed. 425, 83 C. C. A. 245, the defendant attempted to justify the inclosure of unsurveyed lands within the Northern Pacific Railroad grant by producing a deed of conveyance of a part of the land involved from the railway company, but the court rejected the evidence, holding: “On a trial of a defendant charged with maintaining an unlawful inclosure of public lands, a deed from a railroad company to defendant for unsurveyed public lands, described by section and subdivision as though surveyed, is inadmissible to show color of title, since it creates no right to any particular land.”
These authorities conclusively determine the proposition that the title to particular tracts or sections of the lands granted does not pass from the general government to the grantee until they have been surveyed and identified. Until this has been done the federal government retains a proprietary interest in them, to the extent that it will exercise the same dominion over them as over its ungranted lands. (United States v. Montana Lumber Mfg. Co., 196 U. S. 573, 49 L. Ed. 604, 25 Sup. Ct. Rep. 367.)
It is true that the cases of Middleton v. Low and Clemmons v. Gillette, supra, involved the title to lands granted to the state by Congress in aid of the common schools, yet the grants were grants in praesenti, the same in general character as the grants in aid of railroads.
Upon this branch of the. case we agree with the learned district judge, but disagree with him entirely in his conclusion that, when the survey has been made, the title of the adverse occupant relates to the date when his occupancy began and cuts off the title granted under the statute. This doctrine was announced by the supreme court of Missouri in the case of Gibson v. Chouteau, 39 Mo. 588, but upon error to. the supreme court of the United States (13 Wall. 92, 20 L. Ed. 534) it was distinctly repudiated. Of it the court said: “The error of the learned court consisted in overlooking the fact that the doctrine of relation is a fiction of law adopted by the courts solely for the purposes of justice, and is only applied for the security and protection of persons who stand in some privity with the party that initiated proceedings for the land, and acquired the equitable claim or right to the title. [Citing eases.] The defendants in this case were strangers to that party and to his equitable claim, or equitable title, as it is termed, not connecting themselves with it by any valid transfer from the original or any subsequent holder. The statute of limitations of Missouri did not operate to convey that claim or equitable title to them. It only extinguished the right to maintain the action of ejectment founded thereon, under the practice of the state. It left the right of entry upon the legal title subsequently acquired by. the patent wholly unaffected. ’ ’ To the same effect is the case of Redfield v. Parks, 132 U. S. 239, 33 L. Ed. 327, 10 Sup. Ct. Rep. 83.
In considering this subject the supreme court of Iowa, in Grant v. Iowa Land Co., 54 Iowa, 673, 7 N. W. 113, stated its conclusion as follows: “Plaintiff insists that the title acquired by the grantee relates back to the grant, and therefore he will be regarded as the owner of the land from the date of the grant itself. Upon this position an argument is based supporting the claim that the lands were taxable before they were identified under the grant. It is undoubtedly true that for certain purposes defendants’ title may be said to begin with the grant, and when the grant is applied to its subject it may be said that the title existed from the day the grant was made. But the grantee in fact had no title to the specific lands until the grant was applied thereto. Until the lands were identified the grant was a float, as it is called by the' United States supreme court. « * * This doctrine of relation is a fiction intended to subserve the ends of justice in protecting the rights of the claimant of property; it cannot be invoked to defeat rights, or create a liability.” The same conclusion was announced by this court in the ease of Tyler v. Tyler, 50 Mont. 65, 144 Pac. 1090. The following eases are also in point: Lynch v. De Bernal, 9 Wall. 315, 19 L. Ed. 714; Schlosser v. Hemphill, 118 Iowa, 452, 90 N. W. 842; State v. Lake St. Clair Fishing & Shooting Club, 127 Mich. 580, 87 N. W. 117. All of them furnish support also for the conclusion stated above as to the necessity for the survey of lands granted before the statute of limitations begins to run in favor of an alleged adverse occupant. It is well settled that the statute will not run against the owner of land until he is in such a position that he can protect his title by an appropriate action. In other words, he must have such a right that it can be invaded, and the necessity is thus east upon him to protect it. When this necessity arises, and then only, the statute begins to run. Title by adverse use can be initiated only by the invasion of a right which the owner may assert by an appropriate action, and becomes perfected only by his failure to assert it for the full statutory period. (Bullerdick v. Hermsmeyer, 32 Mont. 541, 81 Pac. 334.) The plaintiff in this ease never had such a right in the property involved until the survey was made. In other words, it was laboring .under such a disability that it could not, as owner, maintain an appropriate action to protect its title because it could not identify any of the lands until they were surveyed. It is a familiar principle that the statute does not begin to run until the disability of the owner is removed.
The judgment and order are reversed, and the district court is directed to render judgment in favor of plaintiff.
Reversed and remanded.
Associate Justices Reynolds, Cooper, Holloway and Galen concur.
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