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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
On June 9, 1914, the defendants executed and delivered to Alexander Murray their promissory note for $28,500, due on or before three years after date, with interest at eight per cent per annum, payable semi-annually. The principal was made payable at the banking house of James A. Murray, in Butte, and the interest at the First State Bank, in Livingston. The note provided: “If the interest be not paid as stipulated, the legal holder of this note may declare the principal due and proceed by law to recover both principal and interest.” The following payments were made and indorsed upon the note: January 16, 1915, $1,120; December 13, 1915, $5,000; December 18, 1915, $1,000; March 15, 1916, $2,000; April 21, 1916, $2,500; June 1, 1916, $5,000; August 8, 1916, $6,000; October 10, 1916, $2,250; April 5, 1917, $3,000; April 18, 1917, $1,000; December 9, 1918, $3,000; September 6, 1919, $1,452.76. .
The complaint in this action is in the usual form. It sets forth a copy of the note with the indorsements, and alleges that there is a balance due of $1,014.81, and that the note was sold, assigned and transferred to plaintiff. In their answer the defendants pleaded payment, and apparently undertook to plead accord and satisfaction. They allege that a settlement was made with L. R. Nye, vice-president of the First State Bank, but do not allege that Nye or the bank was the agent of Mr. Murray for the purpose of the settlement. The cause was tried to the court without a jury, resulting in a judgment for plaintiff. From the judgment, and from an order denying a new trial, defendants appealed.
There is not any conflict whatever in the evidence. The record discloses that all of the payments were made to the First State Bank at Livingston; that Mr. Murray received the several payments as made and personally indorsed the credits upon the note; that when the first payment of $1,120 was made the defendants directed that it be applied upon the interest then due; that as each of the other payments yfas made, down to and including the payment of April 18, 1917, defendants gave specific directions that it be applied to the payment of the principal; that when the payment of December 9, 1918, was made, they directed that it be applied to the discharge of the principal, and then toward the payment of the accumulated interest; that in August, 1919, the note was sent to the First State Bank for the collection of the balance due; that Mr. QNye made the computation for the bank, and then demanded the sum of $1,452.76 in final settlement and discharge of the indebtedness; that defendants paid the amount demanded, and that the note was surrendered to them. Although the principal was payable in Butte and the interest was due semi-annually, each of these provisions was ignored by both parties to the contract. The note did not provide for partial payments upon the principal, but such payments were made by defendants and accepted and credited upon the note by Mr. Murray.
The following rules of the common law, borrowed largely from the civil law, have been enforced in this country from the earliest colonial days:
(1) A debtor owing more than one debt to a particular creditor, or a debt composed of more than one item, has the right primarily to direct to which of the debts or to which item of the single indebtedness any payment made voluntarily by him shall be applied.
(2) In the absence of any directions by the debtor, the creditor may apply the payment to any indebtedness then due.
(3) If neither the debtor nor the creditor directs the application, the law will apply the payment according to the justice of the case. (21 R. C. L. 88, 90, 97; 30 Cyc. 1228, 1233, 1239; 2 Am. & Eng. Ency. of Law, 2d ed., 435, 436, 447; Barbour’s Law of Payment, 345; Hunger on the Application of Payments, 11, 32, 82; 96 Am. St. Rep. 46, 49, 54.)
The second rule was referred to by this court in the early case of Christnot v. Montana, G. & S. Min. Co., 1 Mont. 44, and the third rule was applied in Anderson v. Ferkins, 10 Mont. 154, 35 Pac. 92. In 1895 the substance of the three rules was incorporated in our Codes (section 2006, Civ. Code) and that statute is still in force (section 7430, Rev. Codes 1921).
Counsel for plaintiff contend, in effect, that our statute is to be construed in the light of the decision made in Anderson v. FerTtins, above, and with this we agree; but we are unable to accept their analysis of that decision. It is true that the court said that, in the absence of any condition of the contract to the contrary, the rule there applied should prevail, but, after stating the rule as announced by Chancellor Kent in Connecticut v. Jackson, 1 Johns. Ch. (N. Y.) 13, 7 Am. Dec. 471, the court observed: “There may be exceptions to this rule involved by special terms of the- contract, or by the parties adopting a different method in their transactions.” Neither in Anderson v. • Perkins nor .in Connecticut v. Jackson was there involved the question of the right of the debtor or creditor to direct the application of payment; hence this court very properly invoked the rulé announced.
The reason for the rule which confers upon the debtor the right primarily to direct the application of a payment voluntarily made by him is apparent. Until the money is actually paid over, it belongs to him, and he may do with it as he sees fit. If he makes a specific direction, the creditor must observe it or refuse to accept the payment. If he accepts and retains the money, the law will treat the payment as having been applied as directed. (21 R. C. L. 89.)
Apparently there are very few decided cases involving the application of the rules above to such a state of facts as we have presented. Some doubt has been expressed as to the propriety of applying the rules to a single debt consisting of principal and interest. In such a case the supreme court of Texas held that the debtor cannot, as a matter of right, make partial payments and appropriate them in extinguishment of the principal in advance of the discharge of the interest. However, the court said: “But there is no reason why this may not be done by the mutual assent of the parties. And although the creditor is not bound to accept such partial payment, yet if the debtor makes it upon the stipulation and agreement that it shall be applied in satisfaction of the principal, and not of the interest, and it is so accepted and appropriated by the creditor, the principal is thereby extinguished and discharged, and the creditor cannot be permitted, without the consent of the debtor, to shift the application of such payment from the principal to the interest; nor will the law do so for him.” (Tooke v. Bonds, 29 Tex. 419.)
In Johnson v. Robbins, 20 La. Ann. 569, the court said: “Where there is interest due, the debtor cannot, without the consent of the creditor, impute to the reduction of the principal any payment he may make.” But that conclusion was compelled by special statute of Louisiana then in force. (La. Civ. Code, secs. 2160, 2162.)
In Pindall’s Exrs. v. Marietta Bank, 37 Va. (10 Leigh) 481, the court said: “A debtor owing a debt consisting of principal and interest, and making a partial payment, has a right to direct its application to so much of the principal, in exclusion of the interest; and the creditor, if he receives it, is bound to apply it accordingly.” That doctrine was approved in Miller v. Trevilian, 2 Rob. (Va.) 1, and was applied by the New York court in Davis v. Fargo, Clarke’s Ch. (N. Y.) *470.
In Kann v. Kann, 259 Pa. 583, 103 Atl. 369, the court had presented for consideration the question: “Can a debtor in making payment on account of indebtedness specifically apply the payment to principal, when the interest at the date of payment exceeds the payment 1” After an exhaustive review of the authorities, the court concluded that the debtor may stipulate at the time of making payment that the credit shall be given upon the principal, even though there is interest due, and, if the creditor accepts without protest, such acceptance will be tantamount to an agreement to apply the money as directed. (See, also, Barbour’s Law of Payment, 353.)
No reason is apparent to us why the rules above as now incorporated in our statute (section 7430, Rev. Codes 1921) should not be invoked in this instance. Their application could not work any hardship upon the creditor. Primarily, Mr. Murray was not obliged to accept any payment upon the principal less than the entire amount of it. As each semi-annual installment of interest became due, it constituted a debt (Stanford v. Coram, 26 Mont. 285, 67 Pac. 1005), and it was his right to insist upon the payment of the interest and, upon default, to declare the entire indebtedness due and proceed to collect it; but he chose to accept partial payments with full knowledge that in every instance specific directions for its application had been made by the debtors, and he ought not now to be heard to say that he did not consent and give credit according to such directions.
It would seem clear from this record that the district court ignored the directions given by the defendants, and ap- • plied the rule of computation approved in Anderson v. Perkins, but the authorities are all agreed, and our statute so declares, that it is only in the event that neither debtor nor creditor makes application of the payment that the court is authorized to interfere.
Applying the payments made as directed by the defendants, it requires but a simple mathematical calculation to demonstrate that the indebtedness represented by this note was fully paid and discharged.
The judgment and order are reversed and the cause is remanded to the district court, with directions to enter judgment dismissing the complaint.
Reversed and remanded, with directions.
Mr. Chief Justice Brantly and Associate Justices Cooper and Galen concur.
Mr. Justice Reynolds, being absent, takes no part m the foregoing decision.
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
In 1918 the assessor of Lewis and Clark county, acting pursuant to the provisions of Chapter 31, Laws of 1915, assessed to the Union Bank & Trust Company the shares of stock of the bank owned by its several stockholders. The bank paid the tax thereon under protest, and brought this action to recover the amount. The trial court rendered judgment in favor of the plaintiff, and defendant appealed.
The first section of Chapter 31 above was declared to be unconstitutional in Dennis v. First Nat. Bank, 55 Mont. 448, 178 Pac. 580, and the entire Act was repealed by the seventeenth legislative assembly (Chap. 81, Laws of 1921), so that consideration of the Act is necessary only so far as it reflects upon the right of the county to retain the tax collected.
The intention of the legislature in enacting the statute is made apparent by the language employed. The purpose was to .simplify the assessment of bank property and devise a convenient means for collecting the tax, but the lawmakers overlooked the fact that the entire scheme ran counter to express provisions of the state Constitution. The defect in the Act so far as it related to the assessment of real property was pointed out in Dennis v. First Nat. Bank, above. The Act undertook to substitute the capital stock of the bank for the personal property belonging to the bank as the basis for assessment. Article XII of our Constitution deals with the subject “Revenue and Taxation.” Section 1 requires the legislature to provide regulations which shall secure a just valuation for taxation of all property except that otherwise specifically mentioned. Section 2 enumerates the property absolutely exempt from taxation and the other property which may be made exempt; and section 3 provides for the taxation of mining properties and the net proceeds of mines. Section 7 provides: “The power to tax corporations or corporate property shall never- be relinquished or suspended, and all corporations in this state, or doing business therein shall be subject to taxation for state, county, school, municipal and other purposes, on real and personal property owned or used by them and not by this Constitution exempted from taxation.” Section 17 defines the term “property” to include moneys, credits, bonds, stocks, franchises, and all matters and things (real, personal and mixed) capable of private ownership, and then continues: “But this shall not be construed so as to authorize the taxation of the stocks of any company or corporation when the property of such company or corporation represented by such stocks is within the state and has been taxed. ’ ’ Section 7 prohibited the legislature from exempting the personal property of a bank from taxation, and section 17 forbade the taxation of the capital stock when the property represented by such stock is within the state and liable to taxation. This subject was considered fully in the case of Daly B. & T. Co. v. Board of Commrs., 33 Mont. 101, 81 Pac. 950, and further discussion is unnecessary.
It appears from the record that the capital stock of the Union Bank & Trust Company was represented by property within this state subject to taxation, and the fact, if it be a fact, that such property was not assessed for the year 1918 could not justify the assessment of other property not liable to taxation. (Clark v. Maher, 34 Mont. 391, 87 Pac. 272.) But counsel for appellant insist that, since the officers of the bank furnished to the assessor the information upon which the assessment was made as it was made, the bank is estopped to contest the validity of the tax. The information was furnished under the provisions of section 3, Chap. 31, above, and no one could contend seriously that it was not well within the power of the legislature to compel the officers of a bank organized under the laws of this state to furnish such information and to provide the penalty which it did provide for a failure to do so. But one who furnishes such information under compulsion is not estopped by his act. There is not any element of estoppel present. Again, it is insisted that an officer of the Union Bank & Trust Company advised the assessor to assess the stock against the bank, and therefore the bank cannot complain; but the fact that the officer may have been mistaken as to the validity of the statute does not estop the bank to question the validity'of the tax. (Commercial Nat. Bank v. Board, etc., 168 Iowa, 501, Ann. Cas. 1916C, 227, 150 N. W. 704; City of Wilmington v. Ricaud, 90 Fed. 214, 32 C. C. A. 580.)
The judgment is affirmed.
Affirmed.
Mr. Chief Justice Brantly and Associate Justices Cooper and Galen concur.
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
During 1914 and 1915 plaintiff was in possession of certain farming lands in Fergus county. In the fall of 1914 he seeded about 100 acres to fall wheat, and in the spring of 1915 he seeded 20 acres to spring wheat and 66 acres to oats. He gave a chattel mortgage upon these crops to secure an indebtedness of something over $1,600 due to the Moore Mercantile Company. .When the crops matured in 1915 plaintiff harvested them and in November commenced threshing. On November 18, when he had threshed only about 700 bushels of the grain, the mortgagee secured a certified copy of the mortgage, placed it in the hands of the sheriff and directed him to execute the power of sale. Acting pursuant to his instructions and the terms of the mortgage, the sheriff took possession of the crops, including the threshed grain. On November 26, and before the date of the sheriff’s sale, the Power Mercantile Company, claiming to be the owner of the crops and entitled to their possession, commenced an action in the district court and secured a restraining order enjoining the Moore Mercantile Company and the sheriff from proceeding further or in any manner interfering with its free use and control of the property. Upon the service of the order the work' of threshing was suspended and was never resumed, so that the unthreslied portion of the grain was suffered to lie in the field and to be destroyed by the elements. Plaintiff brought this action to recover damages and in his complaint set forth the facts much more in detail. Among other things he alleged that the value of the unthreshed crops exceeded greatly the amount due to the mortgagee. Issues were joined and the cause brought to trial. At the close o£ plaintiff’s testimony the court granted a nonsuit as to the defendants Moore Mercantile Company and the sheriff, and at the conclusion of all of the evidence rendered judgment in favor of the Power Mercantile Company. From that judgment and from an order denying a new trial, plaintiff appealed.
Counsel for appellant have disregarded the rules of this court in the most flagrant manner. Neither of the two so-called assignments of error presents any question for review. (Rogness v. Northern Pac. Ry. Co., 59 Mont. 373, 196 Pac. 989), and their brief is practically devoid of argument and does not contain the citation of a single authority in support of their position. This court ought not to be called upon to do the work which counsel are employed to do, and with perfect propriety we might affirm the judgment and order without reference to the merits, and justify our decision upon reason and numerous decisions of this court and other courts of last resort; but it is apparent to us that plaintiff has suffered grievous injury in the destruction of his crops, and he should not be penalized further for failure of his counsel to discharge their duty. We therefore assume the burden of original investigation to determine the character and extent of his rights and the propriety of the remedy which he has- invoked.
In a memorandum opinion filed at the time the judgment was rendered the trial court indicated that its decision was based solely upon the theory that the complaint does not state facts sufficient to constitute a cause of action, and it is apparent from a consideration of the evidence that it could not have been justified upon any other ground, for, though the evidence tending to establish the extent of the loss is meager in the extreme, it does appear to be sufficient to warrant a recovery for more than nominal damages,, if plaintiff is entitled to recover at all; so that the one principal question presented may be stated as follows Is the mortgagor of personal property out of possession after condition broken entitled to maintain an action for damages against a third party by whose wrong ful acts the property is destroyed, where the value of the property exceeds the amount due the mortgagee?
The identical question was answered in the affirmative in Frankenthal v. Mayer, 54 Ill. App. 160, and we think upon correct principles. Under our statutes the mortgage creates only a lien. (Sec. 5736, Rev. Codes 1907.) The mortgagee is not entitled to possession before default, unless expressly authorized by the mortgage itself. (Sec. 5737.) The title to the mortgaged property remains in the mortgagor until, by foreclosure or sale, as authorized by section 5769, Revised Codes, as amended (Laws 1913, Chap. 86), it is divested. (Demers v. Graham, 36 Mont. 402, 122 Am. St. Rep. 384, 13 Ann. Cas. 97, 14 L. R. A. (n. s.) 431, 93 Pac. 268.) Until title passes, the mortgagor has an interest to the extent, at least, that the value of the property exceeds the mortgage debt, interest, costs, etc. It follows that any unwarranted interference with the property by a third person which results in its destruction constitutes a wrong to the mortgagor to the extent of his interest, and it is one of the maxims of our jurisprudence that “for every wrong there is a remedy.” (See. 6191, Rev. Codes 1907.)
As indicated by its opinion, the trial court proceeded upon the assumption that this is an action in conversion, and, since the plaintiff was neither in actual possession nor entitled to immediate possession at the time of the wrongful acts of which complaint is made, he cannot maintain the action. If the premise is correct, the conclusion follows under practically all of the authorities; but it does not follow that because plaintiff cannot maintain an action in conversion he is remediless. Under our Codes, the common-law forms of action have been abolished. Section 6425, Revised Codes of 1907, provides: “There is in this state -but one form of civil action for the enforcement of [or] protection of private rights and redress or prevention of private wrongs.”
Section 6532 provides that the complaint shall contain “a statement of the facts constituting the cause of action in ordinary and concise language.” For the purpose of testing the sufficiency of this complaint, the motion for judgment interposed by the Power Mercantile Company at the conclusion of the trial had the effect of a general demurrer (Daily v. Marshall, 47 Mont. 377, 133 Pac. 681), and it is the rule in this state that, in determining whether a complaint states a cause of action, matters of form, as well as allegations not appropriate to the purpose sought to be accomplished, will be disregarded. (Wheeler & Motter Merc. Co. v. Moon, 49 Mont. 307, 141 Pac. 665.) In other words, the form in which the action is brought is altogether immaterial, for, if upon any view of the case made plaintiff is entitled to relief, the pleading will be sustained (Raymond v. Blancgrass, 36 Mont. 449, 15 L. R. A. (n. s.) 976, 93 Pac. 648), and the character of the action will be judged from the nature of the grievance rather than from the form of the declaration. (Railroad Co. v. Hurst, 36 Miss. 660, 74 Am. Dec. 785.) Section 6425, above, however, refers to matters of form and not to substance, and, though the form and name of the action is abolished, the distinctions between the character of different actions necessarily arise from the nature of the wrong which is suffered and the relief which is sought, so that a reference to the forms and principles of common-law pleading is frequently of aid in determining the rights and remedies of litigants. (Maronen v. Anaconda C. Min. Co., 48 Mont. 249, 136 Pac. 968.) At common law the action on the case was the great, residuary remedy in the field of torts. It was designed to afford relief in all eases where one person was injured by the wrongful act of another and no specific remedy was provided. (Van Pelt v. McQraw, 4 N. Y. 110.) It was not infrequently termed a “formless action,” in that it was not indicative of any particular form of action, but rather of a substantive class of actions of many different species that took the name from the fact that they were not included within any of the recognized forms of writs, but were begun by writs which set forth the facts and circumstances of the particular eases. (Cockrill v. Butler (C. C.), 78 Fed. 679.) In Comyn’s Digest, under .the title “Action on the Case,” it is said: “In all cases where a man has a temporal loss or damage by the wrong of another, he may have an action upon the case to be repaired in damages.” For a further discussion of the subject, reference may be had to 1 Bacon’s Abridgment, 125; 5 Petersdorff’s Abridgment, 194; Andrews’ Stevens’ Pleading, sec. 52; 3 Street’s Foundation of Legal Liability, Chap. 18; 11 C. J. 1.
In the action commenced by the Power Mercantile Company against the Moore Mercantile Company and the sheriff an appeal was prosecuted to this court, and it was determined finally that the Power Mercantile Company did not have any title to or interest in the crops in question and was not entitled to an injunction. (Power Merc. Co. v. Moore Merc. Co., 55 Mont. 401, 177 Pac. 406.) When the Moore Mercantile Company took possession of the crops under its chattel mortgage, it owed to the plaintiff, as mortgagor, the duty to exercise reasonable care for the protection and preservation of the property (Jones on Chattel Mortgages, sec. 697), but when the restraining order was served it was prevented effectually from discharging that duty, with the resulting loss to the mortgagor. Neither the right nor the duty to preserve the property devolved upon the plaintiff. He was not in possession nor entitled to possession. His property had been taken from him rightfully, but was suffered to be destroyed without fault on his part or the part of the mortgagee in possession. Upon the plainest principles of common sense and justice, the Power Mercantile Company is liable for the damages occasioned by the mischievous agent which it set in motion without justification. The trial court erred in assuming that plaintiff’s only recourse was to an action in conversion which he could not maintain because of the exigencies of the particular case. The complaint states a cause of action, in the nature of an action on the case for damages against the Power Mercantile Company, and the cause should have been decided upon the merits.
The judgment and order are reversed and the cause is remanded for a new trial.
Reversed and remanded.
Mr. Chief Justice Brantly and Associate Justices Reynolds, Cooper and Galen concur.
|
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] |
Opinion:
PER CURIAM.'
Original proceeding on the complaint of the Attorney Gen eral against Clyde Slagle, an attorney and counselor at law of the courts of Montana, to procure his disbarment. In his answer the accused admitted the facts constituting the charge substantially as alleged in the complaint. Final hearing was then had before the court; service by a referee to take testimony being deemed unnecessary. The facts thus disclosed, supplemented by an explanatory statement by the accused himself, present a case in its substantial particulars the same as that presented in.the ease of In re Jewell, 60 Mont. 602, 201 Pac. 266. The court has concluded that the course pursued in that case may properly be pursued in the instant one. It is accordingly ordered that Clyde Slagle be suspended from his office as attorney and counselor at law for a period of ninety days from this date, and that, at the expiration of that time, he may be restored to his office upon paying to the clerk of this court the costs incurred herein and presenting to the court satisfactory proof of his good moral character in the meantime.
|
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] |
MR. COMMISSIONER HORSEY
prepared the opinion for the court.
Since the trial of this action in the district court the defendant J. L. Fisco, sheriff, has died, and Zelma Viola Fisco, as executrix of the last will and testament of J. L. Fisco, deceased, has been substituted as a party defendant in his stead.
This action is for damages for false imprisonment and grew out of the following facts: On October 22, 1914, the plaintiff, J. B. Folsom, after a hearing had before one O. R. McVay, a justice of the peace of Roundup township, Musselshell county, Montana, was ordered by the justice to give bond to the state of Montana in the sum of $500 to keep the peace. Plaintiff failed to furnish the bond and was committed to the custody of the defendant J. L. Fisco, sheriff of said county, under and by virtue of a commitment issued out of said justice court.
Plaintiff was held by the sheriff .and imprisoned in the county jail of said county for a period of one year from the date of the commitment. On October 21, 1915, one Herman S. Bruce, who succeeded McVay as justice of the peace, made the following order, which was placed in the hands of the defendant J. L. Fisco:
“In the Justice Court of Roundup Township.
“Before Herman S. Bruce, Justice of the Peace.
“State of Montana,
County of Musselshell—ss.t
“State of Montana,
“Plaintiff,
v*
“J. B. Folsom,
“Defendant.
“Order.
“Complaint having been made before me this 21st day of October, A. D. 1915, by Washburn B. Folsom and affidavit filed that lie believes that one J. B. Folsom intends to do him harm, and that said J. B. Folsom has the power so to do and has threatened so to do, and it appearing to this court that an order was heretofore made by Hon. 0. McVay holding the defendant, J. B. Folsom, under bonds to keep the peace in the sum of five hundred dollars ($500), and that the order for such bonds was made upon due and sufficient showing that the defendant should be held under such bonds:
“Wherefore, complaint having been filed in this court, and application having been made by the complainant, Washburn B: Folsom, praying that the defendant named herein, be required to give a bond to keep the peace toward the state of Montana and towards the complainant, Washburn B. Folsom, in particular, and sufficient cause having been shown:
“Therefore, it is hereby ordered and adjudged that the defendant, J. B. Folsom, be required to give bonds in the sum of five hundred ($500) dollars to keep the peace towards the state of Montana and the complainant, Washburn B. Folsom, in particular, and, failing to give such bonds, he be confined in the county jail of Musselshell county until such bonds are given, not to exceed one year.
“Done this 21st day of October, A. D. 1915.
“Herman S. Bruce,
“Justice of the Peace.”
Under this order the defendant J. L. Fisco held the plaintiff in his custody and in the county jail of Musselshell county until September 16, 1916, on which day he was brought before the district judge of said county under a writ of habeas corpus and by an order duly made on that day was released from custody.
Thereafter the present action was instituted by the plaintiff against the defendants J. L. Fisco and the Fidelity & Deposit Company of Maryland, a corporation, surety on his official bond as sheriff of Musselshell county, to recover damages for the unlawful detention of the plaintiff by the defendant J. L. Fisco in the county jail of said county from Oc tober 22, 1915, to September 16, 1916. The defendants filed separate answers. The defendant J. L. Fisco by his separate answer seeks to justify the imprisonment of the plaintiff in the county jail under and by virtue of the order quoted above. Issues were joined and a trial had, which resulted in a verdict and judgment for the defendants. The plaintiff moved for a new trial, which motion was by the trial court granted. The defendants have appealed from the order granting plaintiff’s motion for a new trial.
In this action there were two defenses available to'the defendants: “(1) A denial of the imprisonment; (2) a justification of the imprisonment.” (Kroeger v. Passmore, 36 Mont. 504, 14 L. R. A. (n. s.) 988, 93 Pac. 805.) The defendants here admitted the imprisonment, but sought to justify the detention of the plaintiff in the county jail of Musselshell county by the defendant J. L. Fisco under the order heretofore quoted at length.
The defendants contend that it is a well-settled rule that, if the court has jurisdiction over the subject matter, and the process is regular on its face, the officer incurs no liability in executing it, regardless of defects in the proceedings under which it was issued, and that the order in question met all of these essential requirements. The plaintiff, on the other hand, claims that the said order was invalid as a commitment and afforded the officer no justification in holding him a prisoner in the county jail for the period complained of.
The rule contended for by defendants is recognized in this state as to sheriffs and other ministerial officers by the following statute: “A sheriff, or other ministerial officer, is justified in the execution of and must execute all process and orders regular on their face and issued by competent authority, whatever may be the defect in the proceedings upon which they were issued.” (Sec. 3024, Rev. Codes 1907.)
The issue then narrows itself down to the question: Does this order meet the requirement that process must be regular on its face (the jurisdiction of the justice court not being questioned), in view of tbe requirements of tbe provisions of section 8947, Revised Codes 1907, which authorizes a justice of the peace to commit a defendant if he fails to furnish the required bond to keep the peace, and specifies what facts the commitment should contain? If it does, the defendants are not liable, and the court should have so instructed the jury. If it does not, the imprisonment of the plaintiff was illegal, and the court should have so instructed the jury, advising them that the only question left for their determination was' what damages the plaintiff had suffered by reason of his imprisonment.
It would serve no useful purpose to review all the sections of our statutes dealing with the question of security to keep the peace, as only two sections of the chapter dealing with that subject in our Codes are necessary to be noticed. These two sections read as follows: “If, however, there is just reason to fear the commission of the offense, the person complained of may be required to enter into an undertaking in such sum, not exceeding $5,000, as the magistrate may direct, with one or more sufficient sureties, to keep the peace toward the state, and particularly toward the complainant. The undertaking is valid and binding for one year, and may, upon the renewal of the complaint, be extended for a longer period, or a new undertaking may be required.” (See. 8946, Rev. Codes 1907.)
“If'the undertaking required by the last section is given, the party complained of must be discharged. If he does, not give it, the magistrate must commit him to prison, specifying in the warrant the cause of commitment, the requirement to give security, the amount thereof, and the omission to give the same.” (Sec. 8947.)
This court, in the case of State ex rel. Jackson v. Kennie, 24 Mont. 45, 60 Pac. 589, had this to say relative to the requirements of the latter section: “The commitment is not properly before us upon this appeal, but we will remark of it, in passing, that it contains all the recitals required by the statute. Upon the failure to give the undertaking, the magistrate must commit the person charged to prison, specifying in the warrant (a) the cause of commitment; (b) the requirement to give security; (c) the amount thereof; and (d) the omission to give the same.” (See Bradstreet v. Furgeson, 23 Wend. (N. Y.) 638; 9 C. J. 396.)
The order in question was no doubt the one contemplated by section 8946, Revised Codes, and is for the information of the defendant commanding him to give security and fixing the amount thereof. At this point the defendant must do one of two things—furnish the required bond or be committed to jail. But it goes without saying that the defendant must first be given an opportunity to furnish the security. If he fails to do so, then for the first time may the magistrate avail himself of the power given him under section 8947 to commit the defendant to prison.
But it is contended that this order sufficiently complies with section 8947, and is therefore a valid commitment. Bearing in mind the provisions of the statute in this regard, let us see how nearly the order meets the requirements of that section. It specifies the requirement to give bond and the amount thereof and that, in the event it is not forthcoming, the defendant be committed to the county jail, but nowhere is it stated that he failed to give the required security, the very thing that must happen before the justice can exercise the power lodged in him to commit the defendant to jail, and the very information which the statute requires shall appear in the commitment. The sheriff is presumed to know that the omission to give security must be specified in the commitment, and that he is not at liberty to seek this information from sources independent of the process under which he seeks to justify the imprisonment, as he would be obliged to do under such an order as the one in question. It would also readily suggest itself, even to a layman, that the very order which exacts the requirement to give security could not anticipate the breach thereof. Further, the order does not contain any command or direction to the sheriff as to what he should do under it; it is not even directed to the sheriff. (See. 9094, Rev. Codes 1907; People v. Hagan, 170 N. Y. 46, 62 N. E. 1086.)
Process which discloses on its face such a substantial departure from the plain provisions of the statute as does this, does not meet the requirements of the rule that process must be regular on its face, and affords no protection to the officer acting under it. (25 C. J. 475; Savacool v. Boughton, 5 Wend. (N. Y.) 170, 21 Am. Dec. 181, and note; 11 R. C. L. 795.)
Defendants assert that this court in the case of State ex rel. Jackson v. Kennie, supra, had under consideration an order in all material respects similar to the one in the ease at bar, which was held to be good. The commitment in the Kennie Case recited that Ottway Jackson had been tried and found guilty of threatening to commit murder, that an order had been made requiring the said Jackson to give bond in the sum of $1,000 to keep the peace, and that such bond had not been given, and then contained a direct command from the state of Montana to the sheriff to imprison the defendant in the county jail—a very different document from the one in question.
Giving the defendants the benefit of the observation in the Kennie Case “that we should not exact too much technical nicety from justices of the peace,” we are still impelled to the conclusion that the order in question does not meet the essential requirements of section 8947, that it afforded no protection to the defendant, J. L. Fisco, who acted under it, and that the court should have instructed the jury accordingly.
Plaintiff' complains of other errors having been committed by the trial court, which we need not consider, as they will not likely occur on another trial of this cause, but we might remark in passing that the admission in evidence of the entries in the justice’s docket of the proceedings had in 1914, under which plaintiff was imprisoned the first year for failure to furnish a bond to keep the peace, constitute error prejudicial to his substantial rights.
We recommend that the order appealed from be affirmed.
Per Curiam : For the reasons given in the foregoing opinion, the order appealed from is affirmed.
Affirmed.
|
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
This action- was instituted by the plaintiffs against the sheriff of Broadwater county and the surety on his official bond to recover damages for the conversion of mortgaged personal property.
It is alleged that on August 22, 1916, F. E'. Russell and Mrs. Clover M. Russell were indebted to plaintiffs in -the sum of $2,800, evidenced by four promissory notes due, respectively, December 1, 1916, June 1, 1917, December 1, 1917, and January 1, 1918, with interest; that, to secure the payment of this indebtedness, the makers of the notes executed and de livered to plaintiffs a chattel mortgage upon one 22-horsepower Avery engine, one 36-60 Avery separator, with feeder, blower, sacker, and belts, and one Avery steel water-tank; that the mortgage was filed for record in the office of the clerk and recorder of Broadwater county; that plaintiffs are the owners and holders of the notes; and that no part of the indebtedness has been paid, except the sum of $150, paid on February 7, 1917. Reference, is made in the complaint to the terms of the mortgage which conferred upon the mortgagees the right to take possession of the mortgaged property upon default in the payment of the notes or whenever they should consider the possession of the property essential to the security of their debt. It is alleged further that on October 4, 1917, and while plaintiffs were the owners and holders of the chattel mortgage and the notes secured thereby, the sheriff wrongfully seized and sold the engine without paying, tendering, or depositing the amount due upon the indebtedness. The value of the engine and the amount of plaintiffs’ damages are set forth, followed by a prayer for relief.
The answer admits the execution, delivery and filing of the chattel mortgage and denies all the other allegations of the complaint. By way of justification, the defendants allege that at the time the engine was seized by the sheriff it was the property of W. E. Russell, and that it was sold under execution issued in an action wherein J. P. McCarthy was plaintiff and W. E. Russell was defendant. Issues were joined by reply and the cause brought to trial before the court sitting with a jury. At the conclusion of the testimony each party moved for a directed verdict. Plaintiffs’ motion was granted, defendants’ motion overruled, a verdict returned, and judgment entered. From that judgment defendants appealed.
1. When defendants’ motion for a directed verdict was de nied, they did not request the court to submit any issues to the jury and cannot now be heard to say that the right to a trial by jury was denied them. (Fifty Associates Co. v. Quigley, 56 Mont. 348, 185 Pac. 155; Bank of Commerce v. United States F. & G. Co., 58 Mont. 236, 194 Pac. 158.) Section 9364, Revised Codes of 1921 (sec. 6761, Rev. Codes 1907), provides: “Where, upon the trial of an issue by a jury, the case presents only questions of law, the judge may direct the jury to render a verdict in favor of the party entitled thereto. ’ ’ This section does not state any new or strange doctrine. The rule announced is recognized by the authorities everywhere, even in the absence of statute. (26 R. C. L. 1067; 38 Cyc. 1563; Abbott’s Civil Jury Trials, 499 ; 2 Thompson on Trials, 2d ed., secs. 2245, 2247.) The decision in each of the cases cited above is in entire harmony with the rule of the statute and is so recognized by the overwhelming weight of authority.
In St. Paul Machinery Mfg. Co. v. Bruce, 54 Mont. 549, 172 Pac. 330, a motion for a directed verdict was made by plaintiff and granted by the court. After that ruling had been made, defendant Edwards moved for a directed verdict in his favor. The latter motion was without any effect whatever and was disregarded by this court in framing its opinion; but, independently of this consideration, the question now before us was not presented or determined, and the decision in that case cannot be held to be authority conflicting with the decisions in the later cases above.
2. It is contended that the complaint is insufficient in that it does not state that the mortgagors were the owners of the property at the time the mortgage was executed. Counsel for defendants raise this question, but do not argue it or present any authorities in support of their contention, and we have been unable to find any. It is the rule that in an action for conversion the plaintiff is not required to notify the defendant of the precise nature of his (plaintiff’s) title, and that general averments of ownership and right to possession authorize the introduction of evidence to show the source or character of plaintiff’s title. (21 Eney. of PI. & Pr. 1063,1115; Reynolds v. Fitzpatrick, 40 Mont. 593, 107 Pac. 902.) It is true that plaintiffs must have had a general or special prop erty in the chattel at the time of conversion and actual possession or right to the immediate possession (Glass v. Basin & Bay State M. Co., 31 Mont. 21, 77 Pac. 302); but, under a mortgage which gives to the mortgagee the right to immediate possession upon condition broken, such mortgagee may maintain an action against a third party who takes the property from the mortgagor after default in the conditions of the mortgage. (Reynolds v. Fitzpatrick, 23 Mont. 52, 57 Pac. 452.) The complaint herein meets the requirements of the rule announced in Harrington v. Stromberg-Mullins Co., 29 Mont. 157, 74 Pac. 413, and is sufficient. (First Nat. Bank v. Montana Emporium Co., 59 Mont. 584, 197 Pac. 994.) The evidence is uncontradicted that the mortgagors were the owners of the property at the time the mortgage was given.
3. Finally, it is urged that the description of the engine in the chattel mortgage is so far erroneous as to defeat the plaintiffs’ right to recover. The engine is described as one 22-horsepower Avery engine, No. 2266, situated in Broadwater county and being all of the property of the kind described owned by the mortgagors. Upon the trial it developed that the serial number of the engine is 4459, and that the number 2266 is the part number of the door frame of the engine, erroneously assumed by the parties to the mortgage to be the number of the engine itself. The evidence is uncontradicted that at the time of conversion F. E1. Russell and Mrs. Clover M. Russell were the owners of the engine, subject to the lien of the plaintiffs’ mortgage, and that W. E. Russell never oymed or had any interest in it. It follows that, when the sheriff seized and sold it as the property of W. E. Russell, he was a naked trespasser.
As between the parties to the mortgage, a description of the property is sufficient if it so identifies the chattels that the mortgagee may say, with a reasonable degree of certainty, what property is subject to his lien. (11 C. J. 456; O’Brien v. Miller (C. C.), 117 Fed. 1000; Longerbeam v. Huston, 20 S. D. 254, 105 N. W. 743.) The fact that the engine in question is described in tbe chattel mortgage as sit uated in Broadwater county and as being the only piece of property of the kind owned by the mortgagors is material in determining the sufficiency of the description. (11 C. J. 461.) Furthermore, there were marks upon the engine other than those mentioned in the mortgage,.so that the mortgagee, Moore, experienced no difficulty in identifying the chattel sold by the sheriff as the engine described in the mortgage, and any description sufficient as between the parties to the mortgage is sufficient as against a trespasser. (Jones on Chattel Mortgages, 5th ed., sec. 53; Wilson v. Rustad, 7 N. D. 330, 66 Am. St. Rep. 649, 75 N. W. 260.) It is only where the rights of innocent third parties have intervened that a defective description can be availed of to defeat the rights of the mortgagee. (Bank v. Stewart, 75 Neb. 717, 106 N. W. 969.) Our statute which provides for filing chattel mortgages is intended to impart notice only to creditors of the mortgagor and subsequent purchasers and encumbrancers in good faith for value. (Rairden v. Hedrick, 46 Mont. 510, 129 Pac. 498; Isbell v. Slette, 52 Mont. 156, 155 Pac. 503.) It is an elementary rule in the construction of instruments that a false description does not necessarily vitiate, “Falsa demonstrate non nocet” (Metcalf v. Prescott, 10 Mont. 283, 25 Pac. 1037), and this rule applies to the construction of chattel mortgages (Jones on Chattel Mortgages, sec. 61; Hammon on Chattel Mortgages, sec. 21). The number 2266 may be eliminated from the description, and the mortgage is still valid as against these defendants. The evidence establishes beyond question that plaintiffs are entitled to prevail, and that the defendants have not any defense upon the merits.
The judgment is affirmed.
'Affirmed.
Mr. Chief Justice Brantly and Associate Justices Cooper and Galen concur.
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] |
MR. •CHIEF COMMISSIONER STARK
prepared the opinion for the court.
The complaint in this action in substance alleges that, at all the times mentioned therein, the plaintiff was a corporation under the laws of Colorado, and the defendant was a duly created, organized and existing school district under the' laws of Montana; that on the first day of June, 1917, defendant entered into a written contract with plaintiff to sell and deliver to plaintiff $6,000 of six per cent bonds of the defendant school district, in which contract it agreed to take such proceedings as the attorneys for plaintiff might direct and prepare, so that said bonds might be duly authorized to be issued, and issued and delivered to plaintiff, which contract, and the acceptance thereof by defendant, are as follows:
“Subject: Sheridan Co. (Mont.) S.'D.—"Westby.
“Hon. Board of School Trustees, Westby School District No. 3, Westby, Montana.
“Gentlemen: For $6,000.00 six per cent. (6%) bonds of your school district, to be dated June 1st, 1917, absolutely due and payable in twenty (20) years, but redeemable according to law, with' principal and semiannual interest payable at the county treasurer’s office, Sheridan county, Montana, or at the National Bank of Commerce, in' New York City, at our option, we will, upon delivery of the bonds to us in Denver, Colorado when accompanied by complete evidence of their legality in form satisfactory to our attorneys, pay you the sum of $6,050.00, including accrued interest.
“Prior to the delivery of the bonds, it is understood and agreed that your board will take such steps and adopt any and all proceedings that our attorneys may direct and prepare, to the end that said bonds are duly authorized to be issued, and issued, and delivered to us without undue or unnecessary delay.
“We are attaching hereto our certified check No. K—4506 for five hundred ($500.00) dollars, payable to your order, which is to be held as an evidence of good faith, pending the completion of this transaction.
“This bid is for immediate acceptance only.
“ Resp ectfully submitted,
“Keeler Brothers,
“By [Signed] Geo. E. Keeler.
“State of Montana, County of Sheridan, School District No. 3—ss.:
“The above bid of Keeler Brothers, of Denver, Colorado, accepted for and on behalf of Sheridan county school district No. 3 by order of its board of school trustees and entered of record this first day of June, A. D. 1917. Receipt of the above-mentioned certified check is also hereby acknowledged.
“[Signed] E. N. Hinshaw, Chairman.
“Attest:
“[Signed] E. E. Severeid.
“[Seal.] [Signed] E. O. Mann, Clerk.”
It is further alleged that plaintiff has fully complied with all its covenants under said contract, and has offered to pay to defendant the full contract price for the bonds, upon performance by defendant of its covenant relative to the adoption of proceedings necessary to the legal issuance and delivery thereof, which proceedings had been directed and prepared by plaintiff’s attorneys long prior to the commencement of this action and demand made upon defendant to adopt the same and take the necessary proceedings to legally issue the bonds and deliver them to plaintiff, but that defendant had refused, failed, and neglected to do so.
In paragraph YII it is alleged that prior to the commencement of this suit, defendant had sold and delivered said bonds to a purchaser other than plaintiff and thereby voluntarily made the performance of the contract on its part impossible.
The complaint further contains allegations of damages to plaintiff in the sum of $200 for fees paid to attorneys for the preparation of' the proceedings mentioned in the agreement; and an additional sum of $485 for profits which plaintiff would have made by sale of the bonds to a purchaser whom plaintiff had procured therefor at a considerable expense and inconvenience, which fact was known to defendant when it failed, refused and neglected to adopt the necessary proceedings to legally issue and deliver the bonds to the plaintiff; and that demand for payment of the claimed damages had been made upon and refused by defendant. The prayer is for judgment against defendant in the sum of $685, with interest at eight per cent per annum from October 1, 1917.
To this complaint defendant filed a general demurrer which was overruled, and, having failed to answer within the time allowed by order of the court, on January 24, 1919, judgment was entered against defendant for the sum of $758.07 and costs of suit.
The ease is now before this court upon defendant’s appeal from this judgment. The sole question presented is whether the complaint states facts sufficient to constitute a cause of action.
Bearing in mind that the complaint stands confronted only by a general demurrer, it is the duty of the court to search it from end to end and determine whether its sufficiency can be reasonably asserted upon any theory. (Nixon v. Montana Ry. Co., 50 Mont. 95, Ann. Cas. 1916B, 299, 145 Pac. 8.)
If upon any facts stated, from any point of view, the plaintiff is entitled to relief, the complaint will be sustained. (Hicks v. Rupp, 49 Mont. 40, 140 Pac. 97.)
Paragraph VII of the complaint, standing by itself, might justify a conclusion that at the time the contract pleaded was entered into, the defendant had taken the steps necessary to issue the bonds; but in the face of the other allegations of the complaint, such a conclusion is not warranted.
The plaintiff’s own construction of the contract pleaded is that the defendant “covenanted and agreed to take such steps and adopt any and all proceedings that the attorneys of plaintiff might direct and prepare to the end that such bonds might be duly authorized to be issued, and issued, and delivered to said plaintiff without undue or unnecessary delay.”
In at least four separate statements in the complaint it is alleged that defendant has failed, neglected, and refused to adopt and take the necessary proceedings to legally issue said bonds.
Construing the allegations of the complaint most favorably to the plaintiff, the only logical inference to be drawn is that at the time the contract was entered into the statutory proceedings necessary to be taken by the defendant to authorize its board of trustees to issue the bonds of the district and deliver them to the plaintiff had not been taken.
The statutes in force at the date of this contract, relative to the issuance and delivery of bonds by a school district are contained in Session Laws of 1913, Chapter 76, at page 285 et seq., and they require, before such bonds can be issued and delivered: (1) A submission of the question of their issuance to the qualified electors of the district, and a majority vote in their favor; (2) the actual execution of the bonds by the chairman and clerk of the board, and their registration by the county treasurer in a book provided for that purpose; (3) a sale of the bonds after a call for bids therefor has been published in some newspaper for a period of not less than four weeks, or if the bids received are not satisfactory, a rejection of the bids by the trustees, after which they may be sold at private sale; and (4) after bids are accepted, a payment of the price into the county treasury, and then the actual delivery of the bonds to the purchaser.
In State ex rel. Bean v. Lyons, 37 Mont. 354, 96 Pac. 922, this court, in construing the power of the board of school trustees, held that statutes granting and defining powers of municipal and qwsi-munieipal bodies, such as school districts, will be construed not only as a grant of powers to such board, but also as a limitation.thereon, both as to its extent and as to “the mode of its exercise.
A person dealing with the agents of a municipal corpora- tion must at his peril see that such agents are acting within the scope of their authority and line of their duty, and if he make an unauthorized contract he does so at his own risk. (Jay v. School Dist., 24 Mont. 219, 61 Pac. 250.)
The contract of a municipal corporation made otherwise than as prescribed by statute is not binding and a recovery cannot be had thereon. (Reams v. Cooley, 171 Cal. 150, Ann. Cas. 1917A, 1260, and cases above cited, 152 Pac. 293.)
It appears by the affirmative allegations of the complaint that at the time the trustees of the defendant district signed the contract in question, no proceedings had been taken authorizing the issuance of any bonds; therefore, they had no authority to bind the district thereby, and no recovery can be had thereon.
As a condition precedent to its right to have the defendant’s bonds delivered to it, in any event, the plaintiff would have been required, under the statute referred to above, to actually pay the purchase price into the county treasury. There is no allegation in the complaint that the plaintiff had performed or tendered performance of this condition. The absence of such allegation renders the complaint fatally defective. j
For the reasons above indicated, the complaint does not state facts sufficient to constitute a cause of action, and the court erred in overruling the demurrer thereto.
Counsel for plaintiff contend that the objections to the contract urged by defendant can be raised only by answer, for the reason that, if well taken, they simply show that the contract was an ultra vires act of the defendant, and that this must be pleaded as an affirmative defense. In the contention that this contract was ultra vires, counsel are in error, as it was within the power of the board after bonds had been duly authorized, advertised for sale, and bids therefor rejected, to sell them at private sale; hence, this contract was not ultra vires, but only unauthorized and irregular, and the irregularities appear upon the face of the complaint.
“Ultra vires contracts” of a municipal corporation are such as the corporation has no power to make under any circumstances or for any purpose; but when a municipal corporation enters into a contract which, under existing law, it has authority to make, but fails to follow the procedure laid down by statute, it is not “ultra vires,” but irregular. (Rogers v. City of Omaha, 80 Neb. 591, 114 N. W. 833.)
We recommend that the judgment be reverséd and the cause remanded to the district court, with instructions to sustain the defendant’s demurrer to plaintiff’s complaint.
Per Curiam: For the reasons given in the foregoing opinion, the judgment is reversed and the cause is remanded to the district court, with instructions to sustain the defendant’s demurrer to plaintiff’s complaint.
Reversed.
|
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] |
MR. CHIEF COMMISSIONER STARK
prepared the opinion for the court.
So far as it is necessary to state the facts involved in this case, in order to decide the only question which can properly be considered on this appeal, they are as follows: The plaintiff filed his complaint against the defendants, seeking to recover compensation for services alleged to have been rendered to and for them in connection with the sale of certain ranch property located in Cascade county, and in substance alleges: (1) That the defendants were partners under the firm name of Beaudry Bros.; (2) that in October, 1918, defendants were the owners of a ranch known as “Beaudry Bros. Ranch,” consisting of 3,200 acres and a considerable amount of personal property upon and about the same; that in said month they employed the plaintiff to canvass, advertise and solicit for and bring them in touch with persons who would be likely to purchase such property, and for such services agreed to pay plaintiff five per cent of whatever the property would sell for; that immediately thereafter the plaintiff did advertise, canvass and solicit for a purchaser who might be able and willing to purchase the property; that, after doing this, plaintiff secured two persons whom he introduced and turned over to the defendants; and that as a result thereof negotiations were entered into between these two persons and the defendants, which resulted in a sale of said property to them by the defendants for the sum of $90,000.
The complaint further alleges that the plaintiff has fully performed all the terms and provisions of the contract on his part and that defendants have not paid him the compensation agreed upon. , The answer of the defendants admits the partnership and the ownership of the property as set out in the amended complaint, but denies all the other allegations' thereof, except it admits that the described property was sold for the sum of $90,000. The case came on for trial before the court and a jury on May 6, 1920. Testimony was introduced upon the part of the plaintiff and defendants, after which both plaintiff and defendants rested. Thereupon, the court submitted to the jury the following single question: “Did the defendants employ the plaintiff to secure a purchaser for the property described in the complaint and promise, in the event of his securing such purchaser, to pay him, the plaintiff, five per cent of the purchase price of the property, when sold?” which they answered in the affirmative. On the following day plaintiff moved for “judgment in favor of the plaintiff upon the verdict as returned by the jury herein.” Subsequently, defendants moved the court for a judgment in their favor, “notwithstanding the verdict.” On May 18, the court made an order: “That the plaintiff’s motion be denied and that he take nothing, and that the defendants have judgment for their costs herein expended.”
On June 9, pursuant to the above-mentioned order, a judgment was entered, which recites: “Pursuant to the order heretofore made and entered on the eighteenth day of May, 1920, granting the defendants’ motion for judgment notwithstanding the verdict and for their costs, it is therefore ordered and adjudged that the plaintiff’s cause of action in the above-entitled case be and the same is hereby dismissed and that the plaintiff take nothing”—and awarded costs to defendants. The plaintiff made a motion for a' new trial, which was denied. From this, judgment and the order denying his motion for new trial, plaintiff has appealed.
It is only necessary to consider plaintiff’s second assignment of error, which is that the court erred in entering judgment dismissing the plaintiff’s cause of action. From a .reading of paragraph 2 of the amended complaint, and the defendants’ answer thereto, it will be observed that at least five distinct material issues of fact were tendered thereby, which the parties were entitled to have submitted to and determined by the jury. (Sec. 9327, Rev. Codes 1921.)
A trial by jury contemplates the determination of all the issues of fact in a case in the form of a verdict. (28 Am. & Eng. Ency. of Law, 640.)
Only one of the material questions of fact raised by the pleadings in the ease, namely, whether the defendants employed the plaintiff to secure a purchaser for the property described in the complaint, and agreed to pay him five per cent of the. selling price thereof, was submitted to the jury. Whether the plaintiff performed his part of the alleged contract by advertising, canvassing, and soliciting for a purchaser who would be willing to buy the property; whether he did in fact secure prospective purchasers and introduce them to the defendants; and whether or not, as a result of any services rendered by 'the plaintiff to or for the defendants, their property was in fact sold, as alleged in the amended eompláint—are issues which were not submitted to or determined by the jury upon the trial.
As the case now stands, no verdict has been rendered; no determination of the issues of fact raised by the pleadings has been made; and no trial of the action, as contemplated by the statute, was had. There was only a mistrial.
When a jury is discharged without a verdict, the proceeding is properly known as a mistrial. (Fisk v. Henarie (C. C.), 32 Fed. 427.) Moreover, under the statutes of this state there is no warrant for a judgment “notwithstanding the verdict” in a law ease.
It is apparent from the foregoing statements that the court erred in entering judgment dismissing the plaintiff’s complaint.
Under the circumstances disclosed by this record, “it is neither necessary nor proper to consider the other assignments of error.” (Murray v. Hauser, 21 Mont. 120, 53 Pac. 99.)
For the reasons above indicated, we recommend that the judgment and order appealed from be reversed and the cause remanded, with directions to the district court to grant a new trial.
Per Ctjriam: For the reasons given in the foregoing opinion, the judgment and order appealed from are reversed and the cause is remanded, with directions to the district court to grant a new trial.
Reversed and remanded.
|
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MR. JUSTICE REYNOLDS
delivered the opinion of the court.
Plaintiffs have appealed from a judgment in favor of defendant, entered after the sustaining of a demurrer to the complaint and the failure of plaintiffs to plead further. The action was brought to recover damages for the abandonment of a certain branch railroad and spur-tract, and the facts in connection with the matter can best be understood by a full statement of the allegations of the complaint and by liberal quotation therefrom. As set forth therein, the facts material to the consideration of the question involved in this case are:
“dffiat all the parties are corporations; that the plaintiffs are the owners of the Alta mines described in an exhibit in the complaint; that the defendant and its predecessor in interest have been at all times mentioned in the complaint and the defendant now is the owner and operator of a certain railroad line running through the town of East Helena, Lewis and Clark county, Montana; that about the year 1882 there was a branch line extending from East Helena to Boulder, Montana, which branch was operated for the accommodation of passengers and other traffic; that during the year 1882 at the request of the then owners of the Alta mines, defendant’s predecessor extended said branch of the East Helena-Boulder line from the town of Jefferson upon the Boulder branch to the town of Corbin, which was situated at the Alta mines, and on to the town of Wickes, at which a smelter belonging to the owners of the Alta mines was then situated, said line being used incidentally for the accommodation of the public, about a mile and a half of the track being laid upon the property of the plaintiffs and their predecessors in interest, without any agreement permitting the removal thereof; that the Alta mines and the mills, concentrators and other improvements thereon were located at the town of Corbin; that during or at about the year 1882 a spur line, called the Alta spur, was extended from the Corbin branch to the concentrator upon the Alta mines, which spur was constructed entirely upon the Alta property, and was constructed-and maintained at the expense of plaintiffs and their predecessors in interest, except that the rails were furnished by the predecessor of defendant; that said spur was constructed without any agreement permitting its removal by defendant or its predecessors; that the Alta spur and the portion of the Corbin branch con structed upon the Alta property belong to the plaintiffs and their predecessors in interest as fixtures and appurtenances to said property.
“That said Corbin branch was constructed and maintained principally, and said Alta spur was constructed and maintained solely, by reason of the extension and operation of„said Alta property, and particularly by reason of the then proposed construction of a concentrator upon said property by the predecessors in interest of the plaintiffs; that at the time of the construction of said road said Northern Pacific Railroad Company knew that the said concentrator would be so constructed by reason of the said construction of said Corbin branch and said Alta spur, and of the continued maintenance of a connection thereof with the outside world; * * * that in reliance upon the construction and continued maintenance of said Corbin branch and Alta spur, and of the continuance of the connection of said branch and spur with the main line of said Northern Pacific Railroad, or with some other railroad, establishing railroad communications between said Corbin branch and other railroads running through the state of Montana, the predecessors in interest of these plaintiffs constructed upon said Alta property at said town of Corbin a concentrator of great value and at great expense to the owners of said Alta property, and for workings and equipment at said mine, and spent large sums of money in development and operating said mines and said concentrators and the other workings at and upon said Alta property.
“That said Alta spur divided into two spurs or switches, one called the high line and running above the said concentrator, which is situated upon the slope of a hill, said high line being used for the purpose of conveying ore to said concentrator for treatment, and the other spur called the low line and extending below the said concentrator, and being used for the purpose of conveying concentrates therefrom to outside points; that the site upon which said concentrator is constructed is particularly valuable for a concentration site by reason of conditions there existing, and was particularly valuable for such purposes by reason of the existence of said railroad equipment and communication; .that the plaintiffs and their predecessors in interest are and at all the times herein mentioned were the owners of certain water rights used for the operation of said concentrator; that the location of said concentrator at said point was particularly convenient and adapted to the proper use of said water rights in the operation thereof; that the location of said concentrator at the particular point where the same is located is also particularly convenient for the working of the ores produced by the said Alta mines, as well as for the handling of customs ores; that large quantities of customs ores have been treated in said concentrator by said plaintiffs and their predecessors in interest, and that with such railroad equipment the treatment of customs ores would be extremely profitable to plaintiffs in the future.”
That the Corbin branch was also used by members of the public, especially the inhabitants of the town of Corbin; that some years since the defendant railroad company abandoned the Boulder branch and removed the track, and constructed a line connecting the Corbin branch at a point between Corbin and Wickes, with the line of the Great Northern Railroad Company, which passes to the west of the town of Corbin, thereby preserving contact with the outside world for the plaintiffs and their predecessors in the management of the Alta mines and other property; that during the month of December, 1913, and the month of January, 1914, without notice to or knowledge or consent of plaintiffs, or any of them, and without any authority of law, the defendant unlawfully and wrongfully, and in violation of its duty to plaintiffs and to the members of the public using said line, tore up the line connecting the Corbin branch with the Great Northern Railroad, and tore up the Alta spur, thereby leaving the Alta mines without any railroad connection with the outside world; that in order for the plaintiffs to reach the Great Northern Rail road, which is the nearest railroad to their property, it is necessary to go np an extremely steep incline for a distance of about half a mile, making the transportation of goods and materials to, and the hauling of goods and materials from, the nearest point of communication extremely difficult and expensive, and much more so than while said Great Northern connection was still in,- that the nearest point on the Northern Pacific Railroad which can be reached from the town of Corbin and the Alta property is East Helena, a distance of more than fifteen miles.
“That the absence of such railroad communications with said Alta property will greatly reduce the profit of operation of the same by the increased expense of transportation of goods and materials, and greatly impairs the value of the tailings situated upon said property; that said tailings contain large amounts of valuable minerals and metals, which can be extracted at a profit, and at much more profit and much more economically with said railroad communications, and especially with the existence and operation of a track corresponding with said low line spur, and with the railroad freight and switch service furnished over said line by said defendant railway company prior to the removal of said track; that these plaintiffs and their predecessors in interest have at all times been ready and willing to pay to the said defendant all reasonable and proper charges for hauling such freight and furnishing such switching service, whenever the same should be required or demanded of said defendánt by these plaintiffs or their predecessors in interest.”
That the defendant and its predecessors had received large revenues from the operation of said lines; that the plaintiffs had a vested right in the continued maintenance of said railroad connections; thát the defendant had no right or authority to remove the tracks; and that by doing so the plaintiffs have been greatly injured and damaged.
“That it will be necessary, for the proper, economical, and profitable operation of said Alta property, for these plaintiffs to construct a railroad connection - with the said Great Northern Railway or with the main line of the Northern Pacific Railway Company, or at or near said town of Bast Helena, Montana, which is the nearest point at which connection can be made with any road of said defendant; that plaintiffs allege on information and belief that the expense of constructing a line connecting said Alta property with said Great Northém Railway over the line by means of which said Alta property was connected with said Great Northern Railway, as hereinabove alleged, and which is the shortest, cheapest, and most economical connection which can be made, would be upward of the sum of twenty-five thousand dollars ($25,000); that the said removal of said railroad connections by said defendant, -without the substitution of other sufficient railroad connections by the 'said defendant, was unauthorized by law, and was without the consent of these plaintiffs, or any of them, or of their or any of their predecessors in interest, was unlawful and wrongful, and violative of the vested rights of these plaintiffs and their predecessors in interest in the continuance of said railroad lines and of the operation' thereof; that the value of said Alta property and of said concentrator site and of said concentrator have thereby been greatly reduced; that the present owners of the said Alta property are now opening up and preparing to operate the same, including the mills, concentrator, and other portions of said plant, and including the working over of the said tailings; and that the absence of said railroad connections is extremely detrimental and injurious to the plaintiffs and said Alta property.”
It is alleged that, by reason of the abandonment of the line and the severance of railroad connections between the Alta property and the outside world, plaintiffs have been damaged in the sum of $25,000.
The complaint does not ask for any damages by reason of the conversion of any of the property of plaintiffs, but is exclusively an action for damages for abandonment of the railroad branch track and spur, whereby plaintiffs were left without any railroad connection with the outside world. The sole question presented, then, is whether or not such an action for damages will lie under the circumstances set forth in the complaint in this ease.
Plaintiffs have not cited any ease in which damages have ever been allowed under such circumstances. They have cited the case of Brown v. Atlantic etc. R. Co., 126 Ga. 248, 7 Ann. Cas. 1026, 55 S. E. 24, to the effect that in an' action by private persons a railroad company can be enjoined from abandoning an established track. In that case the railroad company acquired a new line between two certain towns about nineteen miles apart, and thereupon proposed to abandon the old line. Injunction was brought by certain individuals having property and business interests which would be seriously prejudiced by the abandonment of the old track, and the injunction was issued. In that ease it was contended that the state alone was entitled to bring such an action, but it was held that, inasmuch as it appeared that the plaintiffs would suffer special damages by reason of their residences and the location of their businesses and investments, and shipments made by them, and the circumstances disclosed by the evidence, there was no reason why they could not bring the action to prevent the removal of the road if wrongful. It is argued that, inasmuch as plaintiffs in that' case could maintain such an action, therefore they would also have the right to maintain an action for damages. The conclusion reached by plaintiffs, however, is not sound, for it has been well established in many states, including this one, that a private person may move for mandamus to enforce a public duty not due to the government as such, or for an injunction to prevent the violation of such duty, without the intervention of the state as a party. This is permitted upon the theory that the individual, as a member of the public and suffering some of the damage that affects the public generally, is entitled to bring the action, not only for himself, but as the agent and in behalf of the public and others likewise situated.
When we come to consider the question of the right to maintain an action for damages, then complications arise which do not appear in an action for mandamus or injunction, for in the former is involved the attempt of the individual to secure for himself alone damages which he has suffered, but which are of the same nature as those suffered by other members of the public, although there may be a difference in the degree of the damage. If plaintiffs in this case had an express contract with defendant, whereby for a valuable consideration it had constructed the tracks in question, and had agreed to accept and transport merchandise to and from plaintiffs’ mines, a different question might have been presented, although even then it is a question whether or not such a contract could be enforced, if it should prove prejudicial to the public interest. This principle is illustrated in the case of McKell v. Chesapeake & Ohio Ry. Co., 175 Fed. 321, 20 Ann. Cas. 1097, 99 C. C. A. 109. In that ease the railway company built a branch line to the mines of plaintiff upon an express contract that the plaintiff would guarantee to furnish to the railway company not less than 100,000 tons of coal per year. In that case there were involved mutual promises whereby the plaintiff agreed to make shipment of a minimum amount of coal over the railroad of the defendant company and the company agreed to accept and transport it. Under such circumstaneees, it can readily be understood why the court should enforce the contract and compel its performance by the railway company, so long as the guaranteed shipment was furnished. In disposing of the question, the court used this language: “Turning again to the stipulations of the contract, we see how impossible it is to believe that the parties intended that it should be terminable at any time, when either party should be so minded. On the contrary, it seems perfectly clear that they intended it should have a permanent duration. Its objects could not otherwise be fulfilled. What would the railway company have said if, after it had built the railroad and made ready to receive the coal, McKell had given it notice that he would neither sell the coal nor ship it by that road? Its disappointment would have been complete, and justly so. Or suppose the railway company, on MeKell’s having deeded the right of way, turned over the survey and incurred the expense of making preparations for mining coal and making coke, should have refused to go on and take the coal as agreed, either for transportation at the specified rate, or purchase it at the specified price? It would undoubtedly have been a surprise to McKell and a reversal of his plans and expectations. He had relied upon the contract as the means of promoting his enterprise.”
But in the ease under consideration by this court, there was not any contract whatever between plaintiffs and defendant or their predecessors in interest. There being no contract, it must be presumed that the branch line and spur were constructed by the railway company in the hope and expectancy of receiving sufficient business from the Alta mines and from the public in general to make the investment a profitable one; but there was nothing in the relationship between the plaintiffs and the defendant, or their predecessors in interest, any different than existed between the defendant and any other member of the public to be served by the branch line, except that probably the business from the Alta mines was of more importance and the privilege of transportation meant more to it. However, there was nothing to prevent any other member of the public opening up mines, and making connection with the railroad company’s line, and deriving the same benefit from the transportation which it afforded. The difference between plaintiffs’ damages, due to the removal of the track, and that of any'other member of the public, was not in the character of the damage but merely in its degree. The plaintiffs and their predecessors in interest were merely in the same position that any other person is who has made an investment and embarked in a business in reliance on the continuance of a certain public improvement, but in so doing takes his chance as to the. continuance of such improvement. There are not many cases to be found upon this subject, but reference to a few of them will illustrate the point here made.
In the case of Beatty v. Louisville & M. R. Co., 176 Ky. 100, 195 S. W. 487, action was brought for damages by reason of the removal by defendant of a certain depot at St. Helens. The railway company had made a change in its line, shortening the distance, and in so doing deemed it to its advantage to abandon this depot. Plaintiff had erected a warehouse near this depot, and had conducted a mercantile business in it for a considerable length of time, all in reliance upon the advantages given by the location of this depot. In his action he claimed an implied contract between himself and the defendant to forever maintain this depot or to respond in damages for its removal. ’ In disposing of this question, the court used the following language: “Basing his right to recovery upon that case, it is insisted that plaintiff has shown a peculiar and special damage different from that of other members of the public, and he is therefore entitled to maintain this suit. This contention is made to avoid the universally recognized rule that no private individual may complain because of consequential damages from the refusal- to perform public or gwcm-publie duties, unless the damages which he sustains are peculiar and different from those of other members of the public. An examination of the petition, however, even if this principle would apply here, will show that no such" special or peculiar damages are shown in this case. It is simply the consequential damage which plaintiff claims to have sustained because of the removal of the depot from St. Helens. This same kind of damage might be said to have been suffered by all of the adjacent property owners. The fact that plaintiff’s damage may have exceeded that of his neighbors constitutes a difference in degree only and not in kind.”
In the case of Blackwell v. Old Colony R. R. Co., 122 Mass. 1, plaintiff was engaged in the business of buying and selling certain merchandise and transporting same by water. Plaintiff owned a wharf upon a river leading to the sea, and used the river and wharf in transporting his merchandise. Defendant constructed a bridge across the river which completely destroyed its navigability. Plaintiff brought action for damages by reason of the construction of this bridge, thereby destroying his business. It was held that plaintiff could not recover damages, and in so holding the court expressed itself as follows: “The direct injury alleged is to the navigation of the stream, to which the plaintiff is entitled only in common with the whole public; and the remedy for that injury is by indictment, and not by private action. The fact that the plaintiff alone now navigates the stream, or has a wharf thereon at which he carries on business, only shows that the present consequential damage to him may be greater in degree than to others, but does not show that the injury is different in kind, or that other riparian proprietors and the rest of the public may not, whenever they use the stream, suffer in the same way. The case has no analogy to those in which an obstruction in a navigable stream sets back the water upon the plaintiff’s land, or, being against the front of his land, entirely cuts off his access to the stream, and thereby causes a direct and peculiar injury to Ms estate, or in which the carrying on of an offensive trade creates a nuisance to the plaintiff.”
A similar case is found in Saylor v. Pennsylvania Canal Co., 183 Pa. St. 167, 63 Am. St. Rep. 749, 38 Atl. 598, in which the court said: “The business in which the plaintiff was engaged was open to all persons using or desiring to use the canal for the purpose for which it was constructed. The privilege he exercised and enjoyed was not special or peculiar, nor was the injury he alleges he sustained by the neglect or failure of the company to repair or reconstruct the highway it was required, as a purchaser, to maintain. The privilege was such as any person who chose to exercise it was entitled to, and the injury done by the abandonment of the highway was not to the plaintiff alone, but to him in common with the public. The difference, if any, was only in degree, and this will not sustain Ms suit.”
Plaintiffs, however, contend that in this case the spur in question was constructed solely for the purpose of handling the business of plaintiffs and their predecessors in interest; that there is involved in this case more than the damage that may result to them merely as members of the public; that their interest is special, and that therefore the reasoning of the cases hereinbefore cited does not apply. However, the courts have gone further than is shown in the cited eases, and have held that when a side-track is constructed specially to serve a particular business and the proprietor of such business is the one vitally interested, in its maintenance, yet such proprietor has no cause of action for damages by reason of the side track being abandoned or by reason of acts of the railroad company in changing its track so that he is damaged in the use of his side track.
In In re City of Detroit, 156 Mich. 121, 120 N. W. 592, the American Car and Foundry Company brought action to recover damages- due to the fact that the Michigan Central Railway Company changed the grade of its roadbed, resulting in the necessity of the Car and Foundry Company changing its plant and buildings to correspond with the elevation of the railroad so as to preserve its connection with the railroad, at an actual expense to it of $25,000. In holding that such' damages could not be recovered, the court disposed of the question in the following language: “If there is any liability on the part of the railroad company, it must have been created by contract between the two companies, or by some constitutional or statutory provision. The record contains no evidence of any contract, verbal or written, unless one is to be implied from the mere fact that some time, long ago, a switch-track was constructed into the plant of the Car & Foundry Company. In the construction of these switches or side-tracks to manufacturing plants, three parties are interested—the manufacturer, desiring the most inexpensive way to get his wares to market; the railroad company, in obtaining business and profit by transporting such wares, and the pub- lie, who consume or use the product of the manufacturer. If the railroad company considers that the transportation of the product of the manufacturer will compensate it and yield it a profit, it usually, upon request, puts in the necessary sidetrack and switches. By the construction of such a track at the request of one and the assent of the other, no contract is implied binding either to the continuance of such arrangement for any specified time. Clearly the manufacturer has made no contract by which he is liable to the railroad company in damages for discontinuing its shipment at any time or for any reason. He may move his plant within a month after the construction of the side-track. He may conclude to ship his goods to market by other railroads or by other routes. I am not aware that any claim was ever made that the manufacturer is bound by such an arrangement to ship his goods over the one railroad. Neither can a .contract be implied on the part of the railroad company to maintain the side-track and ship the goods of the manufacturer at a loss or without profit. ’ ’
Another case in point is the case of Jones v. Newport News & M. V. Co., 65 Fed. 736, 13 C. C. A. 95. In that case the railway company had built a side-track to accommodate the business of plaintiff, who had constructed a coal-tipple, storage bins and office building for the purpose of carrying on a coal business, and for a long time the railway company had delivered coal to plaintiff over the side-track. Thereafter the railway company tore up and removed the switch and all the iron forming the railroad from the main line of the road to the coal-tipple, and refused to restore it or to deliver-to plaintiff coal at his coal-tipple, greatly to his prejudice. Action was brought to recover the damages resulting from this act, and the court, in an opinion by Judge Taft, held that there was no duty on the part of the railway company to maintain the switch and side-track for any definite time, using the following language: “The proposition put forward on plaintiff’s behalf is that when a railroad company permits a switch con neetion to be made between its line and tbe private warehouse of any person, and delivers merchandise over it for years, it becomes part of the main line of the railroad, and cannot be discontinued or removed, and this on common-law principles and without the aid of a statute. It may be safely assumed that the common law imposes no greater obligation upon a common carrier with respect to a private individual than with respect to the public. If a railroad company may exercise its discretion to discontinue a public station for passengers or a public warehouse for freight, without incurring any liability or rendering itself subject to judicial control, it would seem necessarily to follow that it may exercise its discretion to establish or discontinue a private warehouse for one customer. * * * If the directors have a discretion to establish and discontinue public stations, a fortiori have they the right to discontinue switch connections to private warehouses. The switch connection and transportation over it may seriously interfere with the convenience and safety of the public in its use of the road. It may much embarrass the general business of the company. It is peculiarly within the discretion of the directors to determine whether it does so or not. At one time in the life of the company, it may be useful and consistent with all the legitimate purposes of the company. A change of conditions, an increase in business, a necessity for travel at higher speed, may make such a connection either inconvenient, or dangerous, or both. We must therefore dissent altogether from the proposition that the establishment and maintenance of a switch connection of the main line to a private warehouse for any length of time can create a duty of the railroad company, at common law forever to maintain it. There is little or no authority to sustain it.”
While the point at issue in this ease has never been decided by this court, yet the principle enunciated in the foregoing, cases is recognized in the opinion of this court in the cases of Root v. Butte, A. & Pac. Co., 20 Mont. 354, 51 Pac. 155, and State ex rel. Knight v. Helena P. & L. Co., 22 Mont. 391, 44 L. R. A. 692, 56 Pac. 685.
It seems to us clear that the question of removal or abandonment by a railway company of its track is a matter of public concern, and, in so far as the rights of the public may enter into it, just so far may the rights of an individual as a member of the public be considered. When there is no substantial damage to the individual aside from that which may occur to all other members of the public, although differing in the degree of the damage, there cannot be any right of action to' recover damages by reason of the removal or abandonment of the road, unless it may be in a case. in which there is an express contract governing the relations of the parties as hereinbefore expressed. The track in question was laid undoubtedly as a matter of profit for the railroad company and benefit to the plaintiffs, but neither one entered into any obligation to serve the other. Plaintiffs could at any time cease operations, or refuse to deliver its product to the railway company for transportation. On the contrary, the railroad company, at any time it deemed it to its own interests so to do, could abandon the track and cease to operate the same. Plaintiffs, having no contract relations with the defendant, cannot have any right of action for damages.
We are unable to find any authority to the contrary, and therefore must hold that the order sustaining defendant’s demurrer to the complaint and entering judgment for defendant upon plaintiffs’ failure to plead further was correctly entered. Of course, it must be understood that in this case the question as to the right of the state, through its Public Service Commission, to prevent an abandonment of any railroad or branch line is not involved nor considered.
The judgment of the trial court is affirmed.
!Affirmed.
Mr. Chief Justice Brantly and Associate Justices Cooper, Holloway and Galen concur.
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] |
MR. JUSTICE GALEN
delivered the opinion of the court.
In this case it appears that the plaintiff was engaged in the shoe repair business at Judith Gap, during the years 1917 and 1918, and in connection therewith became indebted to the defendant in the sum of $367.90. In April, 1918, the cashier of the defendant bank, J. G. Alexander, pressed the plaintiff for a settlement of his indebtedness, and the plaintiff agreed to let Mr. Alexander sell plaintiff’s stock of goods so as to pay plaintiff’s debt to the defendant bank, the overplus to be accounted for and paid to plaintiff. In furtherance of this arrangement, Alexander sold off plaintiff’s wares and merchandise to three local merchants, their names and the amount purchased by each being as follows:
To N. S. Kalayjian.........................$259.12
To C. B. Stone............................ 170.00
To C. L. Holland........................... 135.00
$564.12
All these sales were made on time, the defendant agreeing to collect and account to plaintiff therefor. The defendant made collection of these several accounts, applied same in payment of plaintiff’s indebtedness to it, and the plaintiff being unable to obtain from the defendant the balance, brought this action in Silver Bow county, although all the transactions occurred at Judith Gap, in Wheatland county. Service of summons was made on the defendant in Wheatland county, and in due time the defendant filed a general and special demurrer to plaintiff’s complaint, and at the same time a demand and motion for change of venue, supported by affidavit of merits. Change of venue was by the court denied, the demurrer overruled, and the defendant filed its answer to which plaintiff replied. The cause was tried by the court with a jury and resulted in a verdict and judgment in plaintiff’s favor for the sum of $173.32. The appeal is from the judgment and from the order denying» defendant’s motion for a new trial.
Several errors are assigned, consideration of the first of which appears to us determinative of these appeals, vis.: Did the court err in denying defendant’s motion for a change of venue ?
The motion and demand for a change of the place of trial was made upon the following grounds:
“1. That the defendant corporation maintained its principal place of business in the county of Wheatland, state of Montana.
“2. That all material witnesses with the exception of plaintiff himself, resided in the county of Wheatland, state of Montana.
“3. That the contract upon which the action was based was made in Wheatland county, state of Montana.
“4. That the contract according to its terms was to be performed at Judith Gap, in the county of Wheatland, Montana.”
The affidavit of merits filed with and in support of the motion for change of place of trial, reads in part as follows:
“Jas. G. Alexander, being by me first duly sworn, on oath says: that he is the duly qualified and acting cashier of the defendant corporation and its duly qualified and acting business agent and manager:
“1. That at the time of the commencement of this action and for more than one year prior to the commencement of this action and ever since the commencement of this action the said defendant corporation maintained its principal place of business at Judith Gap, in the county of Wheatland, and state of Montana, and has never been engaged in business or transacted any business in the county of Silver Bow, and state of Montana; that the summons executed [issued] in said action was served upon the defendant corporation in the county of Wheatland and state of Montana, as will more fully and at large appear from the return made in said summons by the sheriff of Wheatland county, Montana.
“2. * * *
“3. That this is an action for the amount alleged to be due upon a contract made in the county of Wheatland, and state of Montana, and to be performed in the county of Wheatland and state of Montana.
“4. Affiant further says, that he, as the business agent, cashier and manager of the defendant corporation, has fairly stated the case in this cause to Norman R. Barncord, an attor ney at law, residing at Judith Gap, Montana, counsel for the defendant corporation in said action, and after such statement is by him advised that he has a good and substantial defense on the merits to said action.”
Section 9096 of the Revised Codés of 1921 reads as follows: “In all other cases the action shall be tried in the county in which the defendants, or any of them, may reside at the commencement of the action, or where the plaintiff resides, and the defendants, or any of them, may be found; or, if none of the defendants reside in the state, or, if residing in the state, the county in which they so reside be unknown to the plaintiff, the same may be tried in any county which the plaintiff may designate in his complaint; and if any defendant or defendants may be about to depart from the state, such ■ action may be tried in any county where either of the parties may reside, or service be had. Actions upon contracts may be tried in the county in which the contract was to be performed, and actions for torts in the county where the tort was committed; subject, however, to the power of the court to change the place of trial as provided in this Code.”
The rights of parties defendant under this statute, in actions on contract, to .have a case removed to the county in which the contract is to be performed, has been frequently the subject of consideration by this court; and it is settled that such actions, upon proper application, must be tried in the county in which the contract is to be performed. (Bond v. Hurd, 31 Mont. 314, 3 Ann. Cas. 566, 78 Pac. 579; State ex rel. Coburn v. District Court, 41 Mont. 84, 108 Pac. 144; State ex rel. Interstate Lumber Co. v. District Court, 54 Mont. 602, 172 Pac. 1030; State ex rel. Western Accident & Ind. Co. v. District Court, 55 Mont. 330, 176 Pac. 613.)
Although such is the settled law in this state, we would have no hesitancy in this instance in affirming the judgment; the case having been once fully and fairly tried, but for the fact, that the evidence is in conflict, and it is difficult to ascertain how the jury arrived at the amount of the verdict. The defendant having protected his rights to a change of place of trial, is entitled thereto, and the judgment and order appealed from are reversed and the district court is ordered to transfer the cause to Wheatland county for trial.
Reversed.
Mr. Chief Justice Brantly and Associate Justices Cooper and Holloway concur.
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] |
PER CURIAM.
Pursuant to motion of appellant, the appeal in the above-entitled cause is dismissed.
|
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MR. JUSTICE COOPER
delivered the opinion of the court.
On the seventh day of September, 1918, the plaintiff, the board of school trustees of school district No. 1 of Silver Bow county, passed a resolution reciting that it was necessary to condemn lot 3 in block 70 of the Butte town site for school purposes. Upon the resolution this proceeding was instituted in the district court of Silver Bow county. The defendant Powers owns the fee, and on the date of the commencement of this proceeding Downing held a lease on the real estate running to May 1, 1920. The issues were made up by the complaint, the separate answers of each of the defendants, and replies thereto. On January 25 following appraisers appointed by the court returned reports estimating the interest of Powers to be of -the value of $14,500, and that of Downing in the sum of $2,750. From these awards plaintiff appealed to the district court, where, upon a trial by court and jury, the awards were increased from $14,500 to $18,500, and from $2,750 to $4,000, respectively. Judgments were entered upon these verdicts on April 12, 1912. Motions- for new trials were thereafter made and by the court denied.
By resolution passed by the v plaintiff board on September 30, 1919, it elected to abandon the proceedings altogether and to relinquish “any and all claims it might have against either or both of the defendants for or on account of the condemnation proceedings.” Pursuant to the resolution, the plaintiff, on October 25, 1919, moved to dismiss the proceeding in its entirety. This motion the court also denied, and plaintiff appeals to this court for a vindication of its right to abandon the project and dismiss the proceeding. If the plaintiff is correct in its contention, we are absolved from a consideration of the appeal upon its merits.
Plaintiff is a public institution, and, in seeking to subject tbe property of the defendants to school purposes, is serving the people at large within the confines of the school district. Preliminarily we may inquire what, if any, changes the proceedings have wrought in the situation of the parties or the condition of the property. The record fails to disclose any transfer of title or disturbance of possession. The plaintiff has made no deposit of money and has refused to satisfy the judgments. Defendants, have suffered neither inconvenience nor damage by reason of the institution or prosecution of the proceedings, at least beyond the costs legally incurred in their defense. No contract was ever made between the parties. The proceeding is in the nature of an inquest upon the part of the board for the purpose of ascertaining the benefits or losses which will accrue to the owners by reason of the proposed taking. "What are the judgments returned1? The following language will be found in each of them: “That the plaintiff pay as compensation to [naming him] the person entitled thereto the amount ascertained by said verdict [specifying the amount] together with his costs:”
The board, in virtue of its right of eminent domain granted by the Constitution, is authorized, upon making just compensation therefor, to take the property for public purposes. The amount to be paid must be just, not merely to the individual whose property is taken, but to the public'which is to pay for it. Section 14 of Article III of our Constitution provides that: “Private property shall not be taken or damaged for public use without just compensation having been first made to or paid into court for the owner.” Indeed,- it seems generally to have been held, where the constitutional provision is simply that private property shall not be taken without compensation, as ours does, that title to the land dues not pass until actual payment or tender of compensation. (Note, 16 L. R. A. (n. s.) 538.) The inspection of the property and the appraisal of the damages are merely preliminary' steps to ascertain the terms upon which the property can be taken for the purpose desired, if the board shall eventually see fit to use it for school purposes. If it is accepted and the board concludes to take it, that acceptance and that taking is consummated only by a payment or deposit of the money for the use of the owner as finally awarded. (Baltimore etc. Ry. Co. v. Nesbit, 10 How. (U. S.) 395, 13 L. Ed. 469 [see, also, Rose’s U. S. Notes].) The effect of the ruling of the trial court, if carried out, would be to give the defendants the money of the school district for property it had not actually taken, and upon which it had not in fact entered for that purpose, merely because the legal formalities looking to its taking had been carried to judgment. As is said by the supreme court of Washington in State ex rel. Struntz v. Spokane County, 85 Wash. 187, 147 Pac. 879: “We know of no rule of law that compels a party seeking to condemn land for public use to proceed with the appropriation when in its judgment the price to be paid is exorbitant. The cost of construction and other necessary expenses are questions which necessarily must be taken into consideration by the board of county commissioners before it can determine whether the financial condition of the county treasury or the funds available for such purposes warrant the construction of a proposed county highway, and it is because of this that such a board is vested with a discretion to determine whether or not it will proceed—a discretion which cannot be properly exercised until it has been definitely, or at least approximately, ascertained what the total cost will be. Since the courts exercise judicial powers only, it follows that this discretion, which is of a legislative character, cannot be controlled by the courts.” Numerous authorities in support of the doctrine announced, including Lewis on Eminent Domain, sections 656, 955, 1 Elliott on Roads and Streets, section 307, and Dillon on Municipal Corporations (fifth edition), section 1044, are cited in the opinion; and while the issue involved the condemnation of a county road, the principle announced is just as applicable to the present situation.
Rehearing denied March 6, 1922.
In the second edition of Nichols on Eminent Domain, section 417, page 1099, the following is to be found: “In the states in which condemnation is effected by judicial proceedings it is almost universally held that the mere fact that compensation has been assessed does not prevent a discontinuance of the proceedings. In fact, one of the strongest arguments in favor of this method of exercising the power of eminent domain is that public policy requires the cost of a public improvement to be ascertained before it can be finally determined that it is advisable to undertake the work, and that this cannot be ’ done until the compensation for the land has been finally assessed by the jury or other tribunal required by the constitution or statutes. The award in such states is merely an offer which the public agency contemplating the work may accept or decline as it sees fit.”
The district court, in denying the plaintiff’s motion to dismiss the proceeding, was wrong. The order appealed from is reversed, with directions to sustain the motion to dismiss.
Reversed.
Mr. Chief Justice Brantlt and Associate Justices Reynolds, Holloway . and Galen concur.
|
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] |
MR. COMMISSIONER AYERS
prepared the opinion for the court.
This is an action to foreclase a lien executed and filed pursuant to section 7291 of the Revised Codes of 1907, for materials furnished by plaintiff in connection with the erection of a hotel owned by the defendant the Culbertson Hotel Company, a corporation. Plaintiff alleges that on June 9 and 11, 1917, it furnished certain materials to E. L. Olsen, one of the defendants named, and the person who had the contract for the building and construction of the hotel for the defendant hotel company, of the value of $274.94; and on November 23, 1917, it furnished additional materials in the same way to the amount of $5.48, all of which were used in the construction of the hotel building. On January 5, 1918, plaintiff filed in the office of the clerk and recorder of Sheridan county its duly executed and verified lien for the sum of $280.42, total of all materials alleged to have been furnished by it, according to the law providing for the filing of such liens, charging therewith lot 6 and the south half of lot 5 in block 10 of Courchene’s original addition to the town of Culbertson, then Sheridan, now Roosevelt county, together with the building thereon, the same being the property of the defendant hotel company, and within the statutory period therefor instituted this action in the district court o'f Sheridan county to foreclose said lien. All defendants other than the hotel company are added in name only. No cause of action is. stated, and no relief is sought against any of them, and no service of summons, so far as the record discloses, was made upon any of them.
The hotel company answered, admitting the sale and the furnishing of the materials on June 9 and 11 to Olsen, and ádmitted that the same were .used in the construction of its hotel building. It denies that the materials alleged to have been furnished on November 23 were ever furnished it or Olsen, for it, oh said date or at any other time, or at all, and denies that the same, or any part thereof, were used or ever entered into the construction of the hotel building. As to the furnishing of said materials and their use in said building, the trial proceeded upon the issues above narrated. The court, after hearing all the testimony, entered judgment for the defendant hotel company to the effect that plaintiff had no lien, dismissing the complaint, and. awarding defendant its costs in the sum of $72.50. This appeal is from that judgment.
The testimony shows that Olsen, as alleged in plaintiff’s complaint, was the contractor for the building and construction of said hotel; that under his contract he was to furnish all materials; that the plaintiff had no dealings whatsoever with défe.ndant hotel company; that all materials it furnished and sold in connection with the building and erecting of said hotel were furnished and sold to Olsen and charged to him. This being a fact as disclosed by the testimony, the principal-question before the trial court was whether the materials alleged to have been furnished on November 23 and to have entered into the construction of the hotel building of defendant company were ever in fact furnished, and, if so, did they enter into the construction of the building?
It was incumbent upon plaintiff to establish its lien, and to do so it must prove by a preponderance of evidence, not only that it furnished the materials, but that the same were used in the construction of the building situated on the property to which it claims a. right to resort as security for the debt thus created. In the absence of this showing its equity does not arise and its lien is of no effect. (Silvester v. Coe Quartz Mine Co., 80 Cal. 510, 22 Pac. 217; Weir v. Barnes, 38 Neb. 875, 57 N. W. 750; Chapin v. Paper Works, 30 Conn. 461, 79 Am. Dec. 263; Hunter v. Blanchard, 18 Ill. 318; Taggart v. Buckmore, 42 Me. 77; Shullenberg v. Prairie Home Institute Co., 65 Mo. 295; Missoula Merc. Co. v. O’Donnell, 24 Mont. 65, 60 Pac. 594, 991.)
Plaintiff did not bring itself within this rule, for it wholly failed to show that any of the materials of November 23 were ever ordered by Olsen or the hotel company, or were ever delivered to either, or that the said materials or any part thereof ever entered into the construction of said building. Without a showing that the materials of November 23, or some part thereof, entered into the construction of the building, there could be no lien, for those items are the only ones alleged to have been furnished within the ninety days’ period for filing such liens. (Sec. 7291, Rev. Codes 1907.)
Other questions raised by this appeal are not worthy of notice, but there is another proposition so patent from the record that we deem it necessary to call attention to it. Upon both the pleadings and proof Olsen contracted the debt for the materials furnished by plaintiff. This debt is the only foundation for this action. Without a debt there can be no lien; hence the existence of the lien depends upon the existence of the debt for which it stands as security, and it cannot be enforced until the indebtedness be shown. This cannot be shown except in proper judicial proceedings for that purpose to which the debtor is made a party, and the mere naming of him in the title of the complaint did not make him such in fact. Service of summons, as well as appropriate allegations in the complaint,. were necessary for that purpose. The admission by the defendant hotel company that the materials of June 9 and 11 entered into the construction of the building did not help matters; did not adjudicate Olsen’s indebtedness to plaintiff. Olsen was entitled to his “day in court,” and defendant hotel company was entitled to have his debt adjudicated before its property should be subjected, by lien foreclosure, to the payment thereof. It is a well-established rule of law that no judgment can be rendered or enforced in any ease until the debtor is made a party to the proceeding, and the fact and amount of his liability judicially determined. (Gilliam v. Black, 16 Mont. 217, 40 Pac. 303; Kerns v. Flynn, 51 Mich. 573, 17 N. W. 62; Treeland v. Ellsworth, 71 Iowa, 347, 32 N. W. 374; Lookout Lumber Co. v. Mansion Hotel & B. Ry. Co., 109 N. C. 658, 14 S. E. 35; Sinnickson v. Lynch, 25 N. J. L. 317; Estey v. Hallack & Howard Lumber Co., 4 Colo. App. 165, 34 Pac. 1113; Missoula Merc. Co. v. O’Donnell, supra.)
In the ease last above cited, Mr. Chief Justice Brantly said: “The lien is not in any sense the, or any, cause of action. It is merely an incident, ancillary or subsidiary to the main fact—-which is the debt. The creditor may waive his lien— the incidental right—and pursue the debtor upon his personal liability, but he cannot enforce the lien without ascertaining both the fact of indebtedness and the amount of it in the only way recognized by law; that is, by making the debtor a party, and litigating the question of indebtedness with him. ’ ’ The case at bar was tried upon the theory that the materials were sold to Olsen, and by him made a part of defendant hotel company’s building. In order to foreclose a lien against the hotel company’s property for such materials, the plaintiff must first prove a valid lien as herein recited, and adjudicate its claim against Olsen, neither of which was done. ¥e recommend that the judgment be affirmed.
■Per Curiam: For the reasons given in the foregoing opinion, the judgment appealed from is affirmed.
Affirmed.
|
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] |
MR. CHIEF COMMISSIONER STARK
prepared the opinion for the court.
This is an action on a promissory, note. The plaintiff is a corporation organized under the laws of the state of Minnesota, transacting business as a grain commission merchant at Minneapolis and Duluth, under a license issued by the State Rail road and Warehouse Commission of that state, and duly bonded as such. It is a member of the Chamber- of Commerce of Minneapolis and also of the Chamber of Commerce Clearing Association of said city, both of which organizations are corporations under the laws of the state of Minnesota.
The defendant Reservation Farmers’ Grain Company (hereafter referred to as the “grain company”) is a corporation under the laws of the state of Montana, with its principal place of business at Ravalli in Missoula county, organized for the purpose of buying, selling, and dealing in grain and farm products of all kinds at wholesale or retail, with authority to own and manage grain elevators and generally to transact any business incident and necessary to carrying out the purposes of its organization. The defendants Deardorf, Elliott, Grant and Price were members of its board of directors. •
The complaint is in the usual form, and alleges that at Missoula county, on October 30, 1916, the defendant grain company made, executed and delivered to plaintiff its promissory note for the sum of $10,000, payable on demand at Minneapolis, Minnesota, bearing interest at six per cent per annum from date; that prior to its delivery the defendants Deardorf, Elliott, Grant and Price “indorsed the said note for the purpose of securing credit of the said maker with the plaintiff”; that demand for payment had been made upon and refused by all of the defendants, and prays for judgment against the defendants for the amount of the note and interest.
The defendants separately filed general demurrers to the complaint, which were overruled, and thereupon they filed separate answers, each of which raises the same issues. These answers admit the execution and delivery of the note in suit; that the same has not been paid; that the plaintiff is 'the owner and holder thereof, but deny that the same was executed for a valuable consideration, or that it is a valid obligation against the defendants, or either of them.
For a separate and affirmative defense to the action, it is alleged that at all the times mentioned the defendant grain company wás engaged in the business o£ buying and selling grain as a warehouseman and in contracting for the purchase of the same from farmers, and had, prior to the execution of the note in suit, shipped grain to the plaintiff, and desired to continue to do so, but was unable to do this unless the plaintiff would extend credit to it; that plaintiff refused to extend such credit, except upon the condition that the defendants would give to it the note in question as security therefor; that thereupon and in compliance with such demand the note was executed and delivered to the plaintiff.
It is then alleged that the indebtedness, if any, existing in favor of the plaintiff and against the grain company, to secure which said note was furnished as collateral, was created through persons acting wholly without authority of the grain company, or its board of directors, but who pretended to act in its behalf in the buying and selling of what are commonly called “options” or “futures” on the Minneapolis Board of Trade, which were purchased and sold by and through the plaintiff; that in such transactions no grain was actually handled, but that “It was contemplated and intended that such transactions between the plaintiff and the defendant grain company would be adjusted, settled, and closed according to and upon the basis of the public market quotations of prices on the Board of Trade or Exchanges upon which said grain was dealt in.”
Finally, the answers set out the provisions of sections 8991 and 8992 of the General Statutes of Minnesota of 1913, which make the maintenance of a bucket-shop unlawful and impose a penalty upon the keeper or proprietor thereof. The term “bucket-shop,” as used in these sections, is defined as follows: “A bucket-shop, within the meaning of this Act, is defined to be an office, store or other place wherein the proprietor * * * conducts the business of making, or offering to make, contracts, agreements, trades or transactions respecting the purchase or sale, or purchase and sale, of any stocks, grain, provisions, or other commodity, or personal property, wherein both parties thereto, or said proprietor or keeper, contemplates or intends that such contracts, agreements, trades or transactions, shall be, or may be, closed, adjusted or settled, according to, or upon the basis of the public market quotations of prices made on any board of trade or exchange, upon which the commodities or securities referred to in said contracts, agreements, trades or transactions are dealt in, and without a bona fide transaction on such board of trade or exchange. * * ® ”
The plaintiff filed motions to strike the affirmative defenses from said answers on the ground that they were immaterial, irrelevant and redundant, and also filed general demurrers to the same, all of which motions and demurrers were overruled. Thereafter replies were filed, denying the affirmative allegations of the answers, and upon the issues so framed the case was tried to a jury, and resulted in a verdict in favor of the defendants, upon which judgment was entered against the plaintiff. The plaintiff moved for a new trial, which was overruled, and the ease is now before this court upon an appeal from such judgment and order.
The testimony discloses that, during a period of time extending from the fall of 1913 to the spring of 1917, the grain company actually bought from the producers of grain in the country contiguous to its elevators approximately a quarter of a million bushels of wheat, which was shipped to the markets at Duluth and Minneapolis, for sale, and in the sale of 117,000 bushels of this wheat upon the market, the plaintiff acted as its agent in actually transacting the business. Upon the arrival of a ear of wheat at Minneapolis, or Duluth, the plaintiff would see that it was correctly weighed and graded by the state authorities, pay the freight and inspection charges, sell the wheat, and from the proceeds deduct the charges against the same, including a commission of one cent per bushel as its compensation, and then render a statement designated an “account sales,” and remit to the grain company the net proceeds or pass the same to its credit.
In each instance the grain company, when it consigned a car of wheat to the plaintiff for sale upon the market, would make a draft on the plaintiff for a major portion of the value of the wheat consigned, which draft would be honored by the plaintiff prior to the arrival of the shipment. Upon the money so advanced, the plaintiff charged the grain company interest for the time elapsing between the date of the payment of the draft and the date of the receipt of the proceeds of the car of wheat. These were known as “cash grain” transactions, and there were ninety-two of them between the plaintiff and the grain company during the period covered by the record.
In buying wheat the grain company was obliged in many instances to make advances to the producers prior to the actual delivery of the wheat at its elevators, and after delivery of the wheat at the elevators there were frequently considerable delays before it was actually shipped to the market. To guard against losses incident to the fluctuations of the market, the grain company followed the practice known as “hedging.” Under this practice, in theory, when it bought wheat at its elevators, it would also sell, on the Minneapolis market for future delivery, a sufficient quantity to cover such purchase, so that, whether the price went up or went down, its gain on one transaction would offset its loss on the other. Upon the arrival of a car of wheat at the Minneapolis market, against which a “hedge” had been bought, it would sell the wheat and close its previous sale for future delivery by buying back an equal quantity on the Minneapolis market. One “future” transaction thus canceled the other, and the gain or loss would approximately balance the loss or gain on the actual wheat bought, shipped and sold, leaving the grain company its regular profit. All the purchases and sales of these “hedging” “options” or “futures” were negotiated for the grain company on the Minneapolis Chamber of Commerce by the plaintiff as its agent or broker.
Another, class of transactions between the plaintiff and the grain company is illustrated by Defendants’ Exhibit No. 208, which, omitting the formal parts, is an “account sales” rendered by plaintiff to the grain company, and the telegrams connected with the transaction. This exhibit is as follows:
“20 M. Bushels May Wht.
Reservation Far. Gr. Co., Ravalli, Mont.
■522
Bot
9/2 20 May wht, 153%......... $30,750.00
Sold
8/17 8 May wht, 149%................. $11,970.00
8/18 2 May wht, 152%.................? 3,055.00
8/19 10 May wht, 158%................ 15,812.50
Internal revenue...................... 3.09
Commissions.......................... 30.00
To your Or.......................... 54.41
$30,837.50 $30,837.50
E. & O. E. Benson-Newhouse-Stabeck Co.
Minneapolis, Minn., 9—2—16.
Telegram.
A127 EXS 6 Ravalli, Mont. 1918A Sep. 2 1916.
Benson Stabeck Co. Minneapolis, Minn. Buy to close twenty May wheat Reservation Fars. Gr. Co. 1135A.
Telegram.
B177NARA Ravalli, Mont. ' Aug. 19, 1916 1010A
Benson S. Co. Minneapolis, Minn. Sell ten May at market. Reservation Fars. Gr. Co. 1131 AM.
Telegram.
B106NAT 6 Ravalli, Mont. 1020A Aug. 18, 1916.
Benson S. Co. Minneapolis, Minn. Sell two May wheat at market. Reservation Fars. Gr. Co. 12 KN.
Telegram.
B131NA RA 6 Ravalli, Mont. 1010 A Aug. 17, 1916
Benson S. Co. Minneapolis, Minn. Sell eight May wheat at market. Reservation Fars. Gr. Co., 1134 AM.”
In this exhibit, the telegram following the statement shows an order to buy 20,000 bushels of May wheat on September 2, and orders the sale of a like amount which had been purchased on the seventeenth, eighteenth and nineteenth days of August preceding, so that at the date of the telegram which reads, “Buy to close twenty May wheat,” there had been sold for the grain company’s account 20,000 bushels of wheat, and the order of September 2 was an order to purchase 20,000 bushels to close this deal. In the parlance of the Stock Exchange, the grain company was short 20,000 bushels of May wheat (that is, it had bought 20,000 bushels of May wheat before selling the same), which was covered by the purchase of September 2, the purchase being “set off” against the previous sales, and thereby the transaction closed. . This is designated as a straight “option” or “future” contract.
To illustrate another kind of transaction, we refer to Defendants’ Exhibit No. 166, which is as follows:
“1 M bu May Wheat.
Reservation Farmers’ Gr. Co., Ravalli, Mont. Acct Bates.
5092.
Bought
3-7 1 M May 114%...................... 1,147.50
Sold
3-13 1 M May 109%..................... 1,097.50
Internal revenue........................ .11
Commissions (Jo. entry page 51)........ 1.25
(Bates) To your debit................... 51.36
E. & O. E. Benson-Newhouse-Stabeck Co. 1,148.86 - 1,148.86
Minneapolis, Minn. 3—13—1916
Confirmation.
3—17—16.
Reservation Farmers’ Gr. Co.,
Ravalli, Mont. Acct. Bates.
Bought of Quantity.. Delivery. Article. Price.
Shears a. 1021 1 M Bus May Wheat 114%
Letter.
Minneapolis, Minn., March 7, 1916,
Reservation Farm. Grain Co., Ravalli, Montana—Gentlemen: We inclose confirmation on 1 Ml Wheat bought for the account of Bates and have entered a stop loss order to sell same when the margin of 5‡ is exhausted. This is in accordance with your wire instructions.
Very truly yours,
Benson-Newhouse-Stabeck Company.
L. M. Stabeck,
Assistant Secretary.
Telegram.
B 72 NA W 10 Received at Chamber of Commerce, Minneapolis, Minn.
Benson N S Co Minneapolis Minn Buy one May wheat stop loss five cents account Bates Reservation Farmers’ Grain Co. 1020A.”
This shows .an order for plaintiff to purchase 1,000 bushels of wheat on margins. The expression “stop loss five cents” in the last telegram indicates that in the event the price of wheat on the market should decline five cents per bushel, the plaintiff should close out this deal for the grain company, without further instructions.
There were ninety-nine separate transactions between the plaintiff and the grain company, similar to the ones disclosed in the exhibits last referred to, beginning in November, 1915, and ending in April, 1917. They are designated as “Purchase and Sale” contracts, and are shown in Defendants’ Exhibits Nos. 151 to 252, inclusive. While these transactions differ in some respects they are alike in that each consists of an order for the purchase and sale of grain for future delivery, and a purchase and sale memorandum showing the execution of the order.
In carrying on these various items of business, i. <?., the advancing of money to the farmers for grain to be delivered to its elevators at future dates, payment of interest accruing to the plaintiff for advances made upon grain prior to its arrival at the market, and the payment of commissions, margins, and other expenses connected with “hedges” .and the trades in “futures” and “options,” the grain company became indebted to the plaintiff in considerable sums for money which the plaintiff had advanced, so that on the thirtieth day of October, 1916, the date of the note in suit, it' was owing plaintiff $11,513.44, taking all the transactions into consideration.- The plaintiff was unwilling to extend a further credit to the grain company unless the note in question was given to it as security, and as a result of correspondence the note was executed, indorsed and delivered to-the plaintiff on October 30, 1916.
On the books of the plaintiff, its transactions with the grain company were carried under two separate accounts, one of which, designated the “cash grain account,” embraced all of the items covered by the cash grain transactions shown in Exhibits Nos. 53 to 149; and the other designated as the “option” or “future contract account,” included the P. & S. transactions shown in Exhibits Nos. 151 to 252, inclusive.
It appears from the testimony that on October 24, 1916, which was six days prior to the execution of the note, this “option” or “future” account showed a loss by the grain company on that account of about $8,500. On that day the plaintiff charged the “cash grain account” with the sum of $8,500, and credited the “option” or “future contract account” with the same amount, the reason for this transfer being explained in a letter to the grain company on that date as follows: “By charging your regular account with this amount, we thereby get the interest on the money which we are forced to put up with the clearing-house on the losses which your open trades show.” Between that date and the time of the commencement of suit, this account varied from time to time, so that when the action was instituted on October 30, 1917, it showed an indebtedness of $13,241.52 in favor of the plaintiff, which amount was reduced prior to the trial to $8,433.47 by tbe proceeds of sales of grain made by plaintiff for the grain company.
The defense relied upon by the defendants is that the indebtedness secured by the note arose out of the ninety-nine “future” or “option” contracts or deals on the Minneapolis Chamber of Commerce, shown by Exhibits Nos. 151 to 252, which they claim were made with the contemplation and intention on the part of both plaintiff and the grain company that there should be no delivery of the wheat called for therein, but that they should be settled according to and upon the basis of the public market quotations of the Board of Trade or Exchanges upon which said wheat was dealt in, that is, a settlement on the differences, for which reason it is contended they constitute mere gambling or wagering contracts, are illegal, and no recovery can be had thereon.
To sustain this defense, the defendants introduced in evidence statements of all the transactions between the-plaintiff and the grain company, also correspondence leading up to the execution of the note, as well as oral testimony in explanation of the same, and likewise produced competent oral proof tending to establish the _fact that in the various “future” and “option” transactions it was not the intention of the grain company to receive or deliver the wheat called for in the different contracts, but only to make settlement thereof upon the differences between the contract price and the market price of wheat quoted on the public exchange at the dates fixed for executing the contracts.
The defendants further contend that the correspondence, statements, and conduct of the parties show, or tend to show, that the plaintiff at all times had knowledge of this intention on the part of the defendant grain company. On the other hand, the plaintiff claims, and on the trial introduced evidence tending to show, that each of the transactions in question represented an actual deal on the Minneapolis Chamber of Commerce; that the same were carried on in accordance with the rules of the Chamber of Commerce and the Chamber of Commerce Clearing Association, all of which rules were introduced in evidence; that in each transaction it made a valid and binding contract for the sale or purchase and delivery or receipt of the wheat contracted for; that under these contracts it could have been compelled to deliver or receive the wheat; that it was its bona fide intention to do so; and that it did not at any time have any knowledge or notice of the fact that the grain company had any intention other than to receive and pay for the grain it contracted to buy or to deliver and accept payment for the grain it contracted to sell; or at least to make settlement of these “option” or “future” contracts in a manner sanctioned by law; that it had no intention to settle any of said transactions on the differences; and that if the grain company entertained such intention, it had no knowledge thereof.
On this appeal the plaintiff assigns several errors on the part of the trial court, the first six of which may properly be disposed of by a consideration of assignment of error No. 3, viz., that the court erred in overruling plaintiff’s motion for a directed verdict.
“The generally accepted doctrine in this country is, as stated by Mr. Benjamin, that a contract for the sale of goods to be delivered at a future day is valid, even though the seller has not the goods, nor any other means of getting them than to go into the market and buy them; but such a contract is only valid when the parties really intend and agree that the goods are to be delivered by the seller and the price to be paid by the buyer; and, if under guise of such a contract, the real intent be merely to speculate in the rise or fall of prices, and the goods are not to be delivered, but one party is to pay to the other the difference between the contract price and the market price of the goods at the date fixed for executing the contract, then the whole transaction constitutes nothing more than a wager, and is null and void.” The above quotation is taken from the case of Irwin v. Williar, 110 U. S. 499, 28 L. Ed. 225, 4 Sup. Ct. Rep. 160, and the same is quoted and approved by the United States supreme court in Clews v. Jamieson, 182 U. S. 461, 45 L. Ed. 1183, 1190, 21 Sup. Ct. Rep. 845. The same rule runs through all the cases, and there can be no doubt but that, in the absence of statutory regulation, it is the settled law. (Cleage v. Laidley, 149 Fed. 346, 79 C. C. A. 284; Chicago Board of Trade v. Christie, 198 U. S. 236, 49 L. Ed. 1031, 25 Sup. Ct. Rep. 637; Sampson v. Cotton Mills (C. C.), 82 Fed. 833.)
In order to invalidate a contract as a wagering one, hoth parties must intend that, instead of delivery of the article, there shall be a mere payment of the difference between the contract price and the market price; that is, a settlement of the differences. (Clews v. Jamieson, supra; Bailey v. Phillips (C. C.), 159 Fed. 537.)
The general rule of law is that contracts for the purchase and sale of grain and so forth, to be delivered in the future, are presumed to be lawful and valid, and that they will be carried out by actual delivery of the property involved, or that they will be settled in some of the ways sanctioned by law. (Gettys v. Newburger (C. C. A.), 272 Fed. 209, 216.)
The burden is upon a party assailing such a transaction on the grounds that it is a wagering contract to show an intention by both parties to settle by a payment of the market differences. (Clews v. Jamieson, supra; and all other cases.)
In its final analysis the problem of determining the validity or invalidity of such a contract resolves itself into the question of the intent of the parties at the time the contract was made. To establish this intent, it is not indispensable, that declarations or statements of the parties showing such intention or understanding should be proven. (Pratt v. Ashmore, 224 Ill. 587, 79 N. E. 952, 953.) Such statements may be overborne by facts and circumstances. (Carson v. Milwaukee Produce Co., 133 Wis. 85, 113 N. W. 393-395.) It is to be determined from all the facts and circumstances sur rounding the transaction—the acts, statements, and declarations of the parties. (Gettys v. Newburger, supra.)
If, therefore, there is any substantial and competent testi mony in the record upon which reasonable men might differ as to the intention of the plaintiff and the grain company at the time these contracts were entered into, the case was properly submitted to the jury and its verdict and the judgment entered thereon should stand.
In advance of a consideration of the evidence, it should be stated in a general way that in point of time the “cash grain,” “hedging,” “future,” and “option” transactions are mixed and intermingled and the questioned transactions appear from time to time almost from the opening of the account until its close. The case, however, as presented here in both the brief and oral argument, assumes that the same general intent runs through all the ninety-nine transactions, the legality of which is questioned.
Keeping in mind the foregoing rules of law, we proceed to an examination of portions of the testimony bearing upon the question of the intent of the plaintiff with reference to the “future” and “option” contracts.
It is urged by plaintiff that all these contracts were made under and in accordance with the rules of the Chamber of Commerce of Minneapolis, which fact would raise a presumpn tion of their legality. The three following transactions seem to contradict this contention. January 4, 1916, defendant grain company wired plaintiff: “Buy ten May at market on opening stop loss at two cents under advise by wire to Ravalli in code.” This order was executed by plaintiff by purchase of 10M May wheat on January 5 at $1.25, which war. sold by plaintiff on January 7, 1916, at $1.23, pursuant to the stop loss order, without any additional instructions from defendant. On March 1, 1916, defendant wired plaintiff: “Wired you this morning buy one May wheat dollar nine or lower additional one May wheat dollar seven open order buy five May wheat at opening stop loss five cents for account of I. L. Deardorf,” and on March. 8, 1916, defendant wired plaintiff in connection with the same transaction: “Sell stop to close five May dollar ten half Deardorf.” This order was executed by plaintiff by purchase on March 2 of 5M May wheat at $1.11, and the sale on March 8 of 5M May wheat at $1.10]/2. At another time defendant wired plaintiff: “Buy one May wheat stop loss five cents account Bates.” This order was executed by plaintiff on March 7, 1916, by purchase of 1M bushels May.wheat at $1.14%, and sale of same quantity on March 13, 1916, at $1.09%, without any further instructions from defendant. Section 7, rule 4, of the Minneapolis Chamber of Commerce prohibits a member from “making or entering into any trade, contract or transaction in any such commodity [wheat], which such person, firm, corporation or association [member] shall contemplate or intend shall be or may be closed or terminated when the market price of such commodity shall reach a certain figure.”
It is apparent that the three transactions above mentioned were in contravention of this rule. These three transactions resulted in a net loss of $410.63, which amount was charged to the grain company, and is a part of the sum claimed to be due upon the note in suit.
On December 6, 1916, plaintiff sent to the grain company a statement showing the condition of its option trades, disclosing that; the grain company was “long” 1,000 bushels of December wheat, to which was attached a memorandum reading as follows: “We would like very much to have this 1 Dec. wheat taken care of for there is a possibility of delivery in case those who now have short Dec. wheat with us should buy it in, which they may do at any time. ’ ’
On December 9, 1916, in reply to the foregoing, the grain company wrote to plaintiff, stating they were under the impression that, this December wheat had been liquidated long ago, which letter contains this statement: “We have decided not to sell out this Dec. wheat at the present time, and, if forced upon us, you may sell same out for our account, advis ing us by wire, that is, if this wheat is forced on us before liquidation of hedge.”
There had been some misunderstanding between plaintiff and the grain company over this transaction on account of the fact- that it had been handled partly in the Duluth office of plaintiff and partly in its Minneapolis office, and on December 12, 1916, in reply to the above letter, plaintiff wrote to the grain company in reference to the transaction, the closing paragraph of the letter reading as follows: “We will instruct our Duluth office to transfer this 1 Dec. wheat, which you are long there into May, if they find it necessary in order to avoid delivery. We make these transfers without definite instructions, as it is very expensive to accept delivery of grain, and it does not pay to take any chances on such trades.”
December 15, 1916, plaintiff wrote to the grain company: “You are still long one thousand Dee. wheat with us and we may have this delivered to us in cash wheat so we will have to change this over to May in the morning unless we hear from you overnight that you want the Dee. sold out. We have not hurried about changing this over as we have notified you that it should be traded over, and we have happened to have short Dec. wheat for another customer so that the clearing house could not deliver to us but today he bought in his short wheat and this now leaves us liable to delivery of the cash wheat. ’ ’
And again on December 19, 1916, in reference to the same transaction, the plaintiff wrote to the grain company: “We saw.an opportunity this morning to change over your 1 Long Dee. wheat to May at 2‡ difference, which is full market at present. We scalped a 1‡ on the May end of it, thus getting 1%‡ difference.”
The word “scalped,” as used in the letter last quoted, seems to have a special meaning in connection with transactions in “options” or “futures.” In McCormick v. Nichols, 19 111. App. 334, 336, a question similar to the one here was at issue. A witness had testified that his understanding, of the word “scalp” in such connection was “a trade for the day, and sold out that evening or the next day; it is a short trade. ’ ’ Whereupon the following question was asked: “Q. Does that mean or intend the delivery of grain, or a settlement on differences?” and the following answer given: “A. It is a settlement- on differences.” Another witness, on the same subject, testified: “I have been in the grain business ten or twelve years. As I understand it, a scalp is where we buy in the morning and close it out that night; it is a short deal, a quick sale and a settlement on differences. * * * A short deal is what I call a scalp.” The court comments on the fact that no attempt was made to show a different understanding of the term “scalp,” though several members of the Board of Trade were present and testified. This was held sufficient to send the case to the jury on the question of whether the contract in controversy was a gambling transaction or not.
All of the questioned dealings between the parties were “margin” transactions. This fact, standing alone, is not sufficient, under the authorities, to stamp them as wagering contracts. It is true, however, that such fact may be considered, in connection with other competent testimony tending to show an illegal contract, in. determining the intention of the parties. (Jamieson v. Wallace, 167 Ill. 388, 59 Am. St. Rep. 302, 47 N. E. 762; Sharp v. Stalker, 63 N. J. Eq. 596, 52 Atl. 1120; Phelps v. Holderness, 56 Ark. 300, 19 S. W. 921; Sprague v. Warren, 26 Neb. 326, 3 A. L. R. 679, 41 N. W. 1113.)
Taking into consideration the fact that at least .three of the transactions were in violation of the rules of the Minneapolis Chamber of Commerce; that in the correspondence above quoted the plaintiff was endeavoring to avoid acceptance of delivery of wheat, at a time when delivery was imminent, saying that it was ‘ ‘ expensive, and it does not pay to take any chances on such trades”; that all the deals were on “margins”; and, finally, that plaintiff wrote the grain company that it had “scalped” the market on one of its deals—we are impelled to the conclusion that there was competent and substantial evi dence to warrant the court in submitting the case to the jury, and that its determination should stand.
Rehearing denied April 5, 1922.
We have examined the other errors assigned by appellant . and find them without merit.
We therefore 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 HOLLOWAY
delivered the opinion of the' court.
This action was instituted in the district court of Phillips county. The original complaint was filed August 5, 1919, and set forth a cause of action for divorce upon the ground of willful neglect. On September 18, defendant filed his answer and a demand in writing that the venue be changed to Teton county. On September 26 plaintiff served an amended com plaint and on the day following filed it. On September 27 defendant gave notice that on October 10 he would move the court for a change of venue upon the grounds set forth in certain affidavits then filed. The court minutes for October 11 recite that the motion was denied, and on November 6 the default of the defendant was entered for failure to answer the amended complaint. On the same day evidence was heard, and on November 7 a decree of divorce was rendered and entered. On November 19 a motion was made to vacate the judgment and set aside the default, but this motion was overruled, and defendant appealed from the judgment and from the order refusing to vacate it.
1. Error is predicated upon the refusal of the court to change the venue. Section 6505, Revised Codes, reads as follows: “If the county in which the action is commenced is not the proper county for the trial thereof, the action may, notwithstanding, be tried therein, unless the defendant, at the time he appears and answers or demurs, files an affidavit of merits, and demands, in writing, that the trial be had in the proper county.” The only ground for change of venue suggested by defendant is that he is a resident of Teton county, and was at the time this action was commenced.
Section 6505 merely confers jurisdiction to try the cause if a change of venue is not demanded. Section 6506 enumerates the causes for which a change of venue may be had, the first of which is, “when the county designated in the complaint is not the proper county.” These sections are companion statutes, and must be construed together. If the complaint does not disclose the place of defendant’s residence, the burden is upon the defendant himself to make known the fact that he is a resident of a county other than the one in which the action was commenced, if he would secure a change of venue upon the first ground mentioned in section 6506. (Greenleaf v. Jacks, 133 Cal. 506, 65 Pac. 1039.) But disclosing his place of residence alone is not sufficient. He must also make a motion for the change. Under the express terms of section 6506 the eourp can act only “upon motion,” and cannot change the place of trial sim sponte. (State ex rel. Gnose v. District Court, 30 Mont. 188, 75 Pac. 1109.)
"When section 6505 is read in connection with section 6506 it becomes apparent that the evidence of defendant’s residence and the motion for change of venue must be presented at the time of first appearance when the answer or demurrer is filed (State ex rel. Interstate Lumber Co. v. District Court, 54 Mont. 602, 172 Pac. 1030; Cook v. Pendergast, 61 Cal. 72; Wadleigh v. Phelps, 147 Cal. 541, 82 Pac. 200; Union Lumber Co. v. Metropolis Constr. Co., 13 Cal. App. 584, 110 Pac. 329), and, if not presented at that time, the right to a change of venue is waived (State ex rel. Williams v. District Court, 56 Mont. 478, 185 Pac. 458).
It may be conceded, for the purposes of this case, that the fact that defendant is not a resident of the county in which the action is commenced may be shown by the complaint, the answer, the affidavit of merits, or a separate affidavit filed for that particular purpose. In this instance neither the complaint nor the answer refers to the defendant’s place of residence. There was not any affidavit filed at the time defendant first appeared, and there was therefore nothing before the court at that time to indicate that the action had not been commenced in the proper county. The demand for a change of venue is not any evidence of the place of defendant’s residence. It need not be verified and in the usual course of practice is signed by the attorney.
The notice of motion for a change of venue was not filed until nine days after defendant answered, and so far as disclosed by the record the motion itself was not made until October 10, nearly a month after defendant’s first appearance. The demand referred to in section. 6505 does not supply the place of the motion required by section 6506. (Bohn v. Bohn, 164 Cal. 532, 129 Pac. 981; Holt v. Warf, 33 Idaho, 350, 194 Pac. 475.) The right to a change of venue is purely statutory, ^and can be asserted successfully only by one who brings him self within the statute. (Powell v. Sutro, 80 Cal. 559, 22 Pac. 308.)
In the absence of a motion and a proper showing made seasonably that the action was not commenced in the proper county, the court did not err in refusing to change the venue.
2. The record does not show that the amended complaint was filed by leave of court, and, since the plaintiff was not entitled to amend as a matter of right under section 6588, Revised Codes, counsel for defendant insist that the amended complaint did not perform the function of a pleading, and therefore did not require an answer. It is the rule that an amended complaint, filed after answer and without leave of court first-obtained, is subject to be stricken from the files on motion of the defendant. (Meredith v. Roman, 49 Mont. 204, 141 Pac. 643.) But if it is not stricken and the court thereafter recognizes it, the irregularity will be deemed cured (31 Cyc. 368), and this' should be the rule in this jurisdiction where amendments are allowed with the utmost liberality. But counsel for defendant contend that by reason of the fact that the answer to the original complaint was on file, the court was without authority to enter the default, and Gettings v. Buchanan, 17 Mont. 581, 44 Pac. 77, is cited in support of the contention. In that case this court held, in effect, that if the answer to the original complaint puts in issue "the material allegations of the amended complaint to such extent that plaintiff is not entitled to relief upon the matters alleged and not denied, defendant may rely upon his answer, and his failure to plead further will not subject him to default. This appears to be the general rule in the absence of any statute to the contrary. (31 Cyc. 460.)
We need not stop to consider to what extent, if at all, the rule above was modified by the enactment of section 6537, Revised Codes, for defendant did not bring himself within the rule of the Gettings Case or the rule of the later statute. The amended complaint added another count—a charge of extreme cruelty—and none of the allegations o'f this count are denied by the answer, so that it was possible for plaintiff to abandon the charge of willful neglect and secure all the relief she demanded upon the allegations which were not put in issue. It is the general rule that when a material amendment is made to the complaint, the defendant must answer or demur anew. This is the meaning of our statute, section 6537 above. (Hansen v. Goodrich, 56 Mont. 140, 181 Pac. 739.)
Rehearing denied January 16, 1922.
Every consideration of expediency and justice is opposed to opening up a ease in which judgment by default has been entered, unless it is made to appear prima facie that the judgment as it stands is unjust. (Donnelly v. Clark, 6 Mont. 135, 9 Pac. 887.) Defendant failed to avail himself of the opportunity to present his defense, if any he had, and cannot now ■complain.
The judgment and order are affirmed.
'Affirmed.
Mr. Chief Justice Brantly and Associate Justices Reynolds, Cooper and Galen concur.
|
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] |
MR. JUSTICE GALEN
delivered the opinion of the court.
In this ease it appears that on June 2, 1910, one Hannah Mork made homestead entry under the laws of the United States for a tract of land now located in Hill county and that subsequently she married the defendant Cyrus Mellett. Later she died intestate, and left no heirs or next of kin other than her husband, the defendant Cyrus Mellett, her mother, the plaintiff, Anna Mork, and her sister, the intervener, Annette Mattie Hoyt. After her death the defendant Cyrus Mellett, on or about March 25, 1913, made final proof on the homestead, paid all the expenses necessary and incident thereto, amounting to the sum of $25.50, and register’s certificate for the land was duly issued by the United States Land Office at Havre, Montana, on April 21, 1915, to the “heirs of Anna Mellett, formerly Anna Mork.” At the time of the making of the final proof on the homestead entry and of the trial, it appears that the plaintiff, Anna Mork, was not a citizen of the United States, and that the defendant Cyrus Mellett, and the intervener, Annette Mattie Hoyt, were at the time mentioned and now are, such citizens. Thp action was commenced in Hill county by the plaintiff to have her rights decreed to the property in question as an heir. The defendant having denied the right of the plaintiff to succeed as an heir to the estate because of her alienage, the sister of the deceased, Annette Mattie Hoyt intervened, praying that, in the event of the plaintiff being denied her rights alleged as an heir to the deceased, intervener, as such sister of the deceased, bé decreed entitled to an undivided one-half interest in the property. Upon issue joined, the case was tried to the court without a jury. Findings of fact and conclusions of law were made, wherein and whereby the plaintiff was denied the right of succession as an heir to any interest in such homestead on account of her alienage, and that the defendant Cyrus Mellett and the intervener, Annette Mattie Hoyt, were each entitled to an undivided one-half interest in and to such homestead. Judgment was entered accordingly, from which the plaintiff appeals.
There is but one question involved in this appeal, namely: Was the plaintiff, an alien, entitled as an heir to succeed to an interest in the homestead, and. if not, what are the rights of the surviving sister?
In this case the final certificate issued by the United States Land Office is to the “heirs of Hannah Mellett, formerly Hannah Mork,” without other words to. more definitely designate those in whom the equitable title vests, and, ordinarily, to determine those thus made beneficiaries, resort must be had to the statutes of the state. Since the United States has no general law of succession, the heirs must be found by the law of the state or territory in which the land is situated, and comprise those whom the law appoints to succeed to a decedent’s estate, in ease he dies without disposing of it by will. It is the practice of the Land Department of the government to issue patents to the “heirs or devisees” in ease of the death of the entryman leaving no widow or minor children, and to leave it to the courts to determine who are the heirs or devisees of the deceased, and the extent of their respective interests. (22 R. C. L. 330; Hayes v. Wyatt, 19 Idaho, 544, 34 L. R. A, (n. s.) 397, 115 Pac. 13.)
In Caldwell v. Miller, 44 Kan. 12, 23 Pac. 946, the court said: “Congress has not defined the term ‘heirs.’ * * . * Therefore, to determine who are meant by the words in the patent, ‘heirs of Robert Titus, deceased,’ we think, we must look to the statutes of this state. ‘It seems scarcely necessary to say that this is purely a question of statutory law.’ (McKinney v. Stewart, 5 Kan. 291.)”
In Hutchinson Invest. Co. v. Caldwell, 152 U. S. 65, 38 L. Ed. 356, 14 Sup. Ct. Rep. 504, sustaining and affirming the decision in the last cited case,- the court said: “ ‘It is an established principle of law' everywhere recognized, arising from the necessity of the ease, that the disposition of immovable property, whether by deed, descent, or any other mode, is exclusively subject to the government within whose jurisdiction the property is situated’ [United States v. Fox, 94 U. S. 315, 320, 24 L. Ed. 192]; and although Congress might have designated particular grantees to whom the land should go in the first instance, it did not do so, nor make use of words indicative of any intent that the law of the state should not be followed. * * * The object sought to be obtained by Congress was that those who would have taken the land on the death of the pre-emptor, if the patent had issued to him, should still obtain it notwithstanding his death, an object which would be in part defeated by the exclusion of any who would have so taken by the local law if the title had vested in him.”
Under our statute of succession, the deceased having died intestate, her estate descends one-half to her surviving husband and the remaining one-half to her surviving mother, or, if the mother be considered as nonexistent, then to the surviving sister. (Sec. 7073, Rev. Codes 1921.)
The right to inherit is dependent upon the will of the legislature, except in so far as its power in this regard is restricted by constitutional provision; hence an alien or foreigner may inherit lands or take by law only by grace of the state within the boundaries of which they are situated. (In re Colbert’s Estate, 44 Mont. 259, 119 Pac. 791.)
Section 7088, Revised Codes of 1921, provides in part as follows: “Resident aliens may take in all eases by succession as citizens; and no person capable of succeeding under the provisions of this chapter is precluded from such succession by reason of the alienage of any relative. * * * ”
If, in this case, our general law of succession is applicable, then there is no question as to the mother’s rights as an heir. Section 2291 of the Revised Statutes of the United States (U. S. Comp. Stats., sec. 4532) provides in part as follows: “No certificate, however, shall be given or patent issued therefor until the expiration of three years from the date of such entry; and if- at the expiration of such time, or at any time within two years thereafter, the person making such entry, or if he be dead his widow, or in case of her death his heirs or devisee, or in case of a widow making such entry her heirs or devisee, in case of her death, proves by himself and by two credible witnesses, * * ■ * that he, she, or they will bear true allegiance to the government of the United States, then in such case he, she, or they, if at that time citizens of the United States, shall be entitled to a patent, as in other cases provided by law. * * # ”
Our statutes of succession must in this instance be applied with reference to the specific limitations contained in the Homestead Act. (Section 2291, Rev. Stats.) The government, being the donor, may place such limitations or restrictions on the grant as it sees fit; and the laws of succession of the state must be applied with respect thereto. So that, while ordinarily the mother, though an alien, would be entitled as an heir to succeed to the property belonging to her daughter upon the latter’s death, yet a different rule must be applied in the case of homesteads as to which final proof has not been made. The United States statute expressly bars aliens. The language of the statute requires that the heir, in order to be entitled to succeed to the rights of the homestead entryman, must he a citizen of the United States, and such has been generally the holdings of the courts and Land Department.
“The heirs succeed to the rights of the homesteader not as heirs who have inherited his title, but because the law gives them preference as new homesteaders, allowing to them the benefit of the residence of their ancestor upon the lands. ” (32 Cyc. 834.)
In the case of Towner v. Rodegeb, 33 Wash. 153, 99 Am. St. Rep. 936, 74 Pac. 50, the supreme court of Washington said: “The homestead law vests the rights in the land in the claimant himself, for his exclusive benefit, and if he die before patent issues, leaving no widow, then in his heirs or devisees, if they be at the time citizens of the United States.”
Alien heirs have no right to perfect the entry of a deceased homesteader j and this is the rule even though, under the local state statute, where the land is situated, they might inherit had the deceased entryman left an estate. (22 R. C. L. 331; Bergstrom v. Svenson, 20 N. D. 55, Ann. Cas. 1912C, 694, 126 N. W. 497.) The case last cited presents a state of facts almost identical with those here involved. There it appears that one Axel Bergstrom made a homestead entry on certain government land in the state of North Dakota, and before final proof died intestate, leaving surviving him the plaintiff, his brother, a citizen of the United States, and resident of North Dakota, and also the defendant, his mother, an alien, who was a citizen and resident of Sweden. In an action between the surviving brother as plaintiff against the mother, to have de termined the respective rights of the parties to succession under section 2291 of the Revised Statutes of the United States, Mr. Justice Fisk, speaking for the court, said in part as follows: “It is entirely clear from a reading of the above statute [section 2291, Rev. Stats.] that alien heirs are incapable of making final proof, even though under the local state statute where the land is situated they might inherit had the deceased entryman left an estate. * * * It is contrary to the whole policy of the homestead law that persons not citizens of the United States, may, under any- conditions, acquire title thereunder. This is manifest from the various provisions of the Act limiting the beneficiaries thereof to persons only who are citizens. While, as stated by counsel for appellant, defendant is, under our state statute, the sole heir of Axel Bergstrom, and as such would, although an alien inherit any property left by him, still such fact is in no manner controlling. Axel Bergstrom had no estate in such homestead, and hence could leave no inheritable interest therein. He merely possessed an inchoate right therein—a mere preference right to obtain title upon compliance with the homestead act. This is expressly conceded, and counsel for appellant make no claim to any rights through inheritance under the state statute; their contention being that their client takes by purchase from the government. In other words, they contend that the patent grants the land to defendant the same as if she had been specially designated as the sole grantee therein. Such contention is based upon the postulate that the patent names the grantee as the ‘heirs of Axel Bergstrom,’ and that the state statute must alone be consulted to determine who are such heirs. This line of reasoning is quite persuasive, but we think it fallacious. It runs counter to the express language of the federal statute above cited, as well as to the well-recognized policy of the government in enacting the homestead law. In the light of such statute, it is, we think, reasonably clear that the words ‘the heirs of Axel Bergstrom,’ as used in the patent, must be construed to mean the persons who are capable of making proof under the provisions of section 2291, aforesaid. No other persons are entitled to a patent. Defendant, being an alien, was incapable of making proof, and, such being true, she is to all intents and purposes the same as if dead. It has been thus held by the Land Department of the government in sustaining the right of a person to make final proof, who, under the local state statute, would not inherit. (Agnew v. Morton, 13 Land Dec. 228.)” We adopt and approve the language of Mr. Justice Fisk, as applicable in the case before us.
In applying to a like case the provisions of section 2291, Revised Statutes, the Land Department in -the ease above (Agnew v. Morton, 13 Land Dec. 228) said: “It is manifest that the father and mother, while citizens of Great Britain, cannot make proof and obtain patent for the land. Being thus incompetent, their right to make final proof and receive patent for the land while subjects of a foreign country is the same as if they had no existence.”
We think the district court was correct in holding that the plaintiff, Anna Mork, being an alien, is without right or interest in the lands in question, and that the defendant, Cyrus Mellett, and the intervener, Annette Mattie Hoyt, are each entitled to an undivided one-half interest ‘therein. The judgment is affirmed.
Affirmed.
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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PER CURIAM.
The application for writ of mandate heretofore presented is granted, and it is ordered that a peremptory writ issue herein forthwith, commanding the judge of the district court of the third judicial district to direct the stenographer of said court' to prepare and deliver to said relators, free of cost, a transcript of the record in cause 421 in said court.
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] |
ME. COMMISSIONER POOEMAN
prepared the opinion for the court.
This is an appeal from a judgment and decree revoking the-probate of a will, and from an order overruling a motion for a new trial.
James M. Spencer died in Deer Lodge county, Montana, October 12, 1891, leaving surviving him his widow, Nanny Spencer, his only daughter, Jane Porter, and his two sons, John O. and James E. Spencer. Afterwards a paper bearing date-September 22, 1891, and'purporting to be the last will and testament of said James M. Spencer, was offered for probate; and on December 5, 1891, an order of court was made admitting the same to probate, and appointing John O. Spencer executor thereof. At the time of the death of James M. Spencer all the children were over the age of twenty-one years, except James E. Spencer, who was born November 8, 1878. Under the terms of this, alleged will, $5 were bequeathed to James E. Spencer, $5 to Jane Porter, and all the rest, residue and remainder of' the estate was bequeathed to the widow, Nanny Spencer, and the- elder son, John C. Spencer, to be equally divided between them. The estate was administered in accordance with the terms of this alleged will, and the executor was finally discharged from his said trust in 1894.
The validity of the will was not questioned by any one until James R. Spencer, having attained his majority, and within ■one year thereafter, filed his petition contesting the will, and, as appears from the amended petition on which the case was tried, limiting the contest to two grounds: (1) Lack of mental capacity; and (2) fraud, menace and undue influence of John 0. Spencer. The answer put in issue the facts stated in the petition, and alleged the due execution of the will. The case was tried to a jury, which returned findings to the effect (a) that James M. Spencer on the 22d day of September, 1891, did not have sufficient mental capacity to make a testamentary disposition of his property; (b) that he did not have sufficient physical strength to execute a will; (c) that he did not subscribe his name at the end of the instrument offered for probate; (d) that he did not acknowledge to the subscribing witnesses that his signature to the will was made by himself or by his authority; (e) that he did not declare to such witnesses that the instrument was his will; (f) that said witnesses did not sign their names to the instrument at the request of James M. Spencer; (g) that James M. Spencer was not on that day acting under duress, menace, fraud or undue influence of John C. Spencer. 'The court adopted these findings of the jury, and entered a decree setting aside the probate of the will, revoking the letters testamentary theretofore issued to John 0. Spencer, and ordered letters of administration to be issued upon said estate to Nanny 'Spencer.
1. The appellant contends that the court erred in holding the former proceedings void in toio, and maintains that the probate of the will and the final order of distribution may not, in any event, in this proceeding, be set aside, except in so far as the rights of the contesting heir are concerned. The probate •of wills and the settlement of estates are not governed by the general law relating to actions, proceedings and judgments, but are, in the main, provided for by statute; and, in so far as the statute has spoken, its declarations are final. The doctrine of the indivisibility of judgments, discussed and considered in Wells v. Wells et al., 144 Mo. 198, 45 S. W. 1095, does not apply.
Section 2366 of the Code of Civil Procedure provides: “If no person, within one year after the probate of a will, contest, the same or the validity thereof, the probate of the will is conclusive; saving to infants and persons of unsound mind, a like-period of one year after their respective disabilities are removed.” The language of this statute is too plain to require-either interpretation or construction. If the heir voluntarily permitting the time allowed by law to contest a will to elapse without making any objection, can profit by a successful contest instituted by one -whose time has not elapsed, he accomplishes by indirection that which the law forbids him to do directly, and reopens a controversy which the statute says is concluded. As was said in Thompson v. Samson, 64 Cal. 330, 30 Pac. 980, in considering this identical question: “The result of sustaining this proposition is, of course, to hold that no purchaser at an executor’s sale, and no purchaser from any heir, legatee or devisee, made even after final distribrrtion, can ever be secure-in his purchase until the expiration of one year after every infant and person of unsound mind who may be interested in the-estate shall have been relieved of their respective disabilities.”
Our statute saves to persons not sni juris one year after the-removal of their disabilities within which to contest the probate-of a will. It also provides for the probate of a document purporting to be the will of a deceased person, for the hearing of the petition, the establishment of the will by proper proof, and the administration and final distribution to the persons entitled thereto. And such order and final distribution “is conclusive as to the rights of heirs, legatees or devisees, subject only to be-reversed, set aside or modified on appeal.” (Sections 2844, 3196, Code of Civil Procedure.) All these statutes must be construed together.
Where there is a proper subject-matter, neither the order admitting a will to probate nor the order of final distribution is void, and neither can be contested or set aside except in the manner and within the time fixed by statute; nor can one against whom by'lapse of time these proceedings have become “conclusive” avail himself of proceedings instituted and carried to a successful conclusion by one against whom the limitation has not run.
Furthermore, an heir who has acquiesced in the settlement and final distribution of an estate in a certain manner is es-topped afterwards to call this settlement and distribution in ■question, and to compel the return of, or an accounting for, the property thus parted with by the executor or administrator in good faith, and with the acquiescence and sanction of the heir; and this principle would apply if there were no will at all. On the subject of estoppel, see Lilly v. Townsend, 110 Mich. 253, 68 N. W. 136.
Samson v. Samson, 64 Cal. 327, 30 Pac. 979, is based on a ■similar state of facts as that here presented, and involves the ■construction of Sections 1333 and 1666 of the California Oode •of Civil Procedure, which are substantially the same as Sections 2366 and 2844, respectively, of the Montana Code of Civil Procedure. The court in that case held that a decree annulling a will upon an application made, by a minor heir operates upon the interests of the applicant only. It does not act in favor of those heirs who have lost their right to contest the will by the lapse •of time. The decree of the district court in the Samson Gase was to the effect that the entire proceedings under the will were void. The supreme court ordered the case returned to the district court with instructions to modify the judgment in accordance with the views expressed in its opinion.
2. One of the grounds stated in the motion for a new trial was newly discovered evidence, and affidavits were filed in support of this contention. All of the evidence contained in the affidavits relates to the mental and physical condition and so’.briety of the testator, and was all cumulative evidence, except, possibly, the affidavit of Dr. "Whitford, which related to the effect of a gunshot wound received by the testator several years prior to his death. The record, however, contains no affidavit by appellant that he did not know of this so-called newly-diseovered evidence at the time of the trial, and the district court did not err in refusing' to grant a new trial on this ground. (Nicholson v. Metcalf, 31 Mont. 276, 78 Pac. 483, and cases cited; Smith v. Shook, 30 Mont. 30, 75 Pac. 513.)
3. Objections are made to certain instructions 'given, and to the action of the court in refusing to give other instructions requested by appellant. None of the instructions given or requested appear in the judgment roll. It is the settled practice in this state that instructions given and those requested and refused are a part of the judgment roll, and, unless they come up as such, they will not be considered. (Session Laws 1901, p. 160; see cases cited in Shropshire v. Sidebottom, 30 Mont.406, 76 Pac. 941.)
4. It appears that some of the special findings were acquiesced in by only nine of the jurors. Two of the dissenting jurors filed affidavits to the effect that some of the other jurors assented to the findings on the ground that the residence address ©f one of the subscribing witnesses to the will was not in the same handwriting as the signature of such witness, and was in the same handwriting as the body of the will. The will had been put in evidence, and was taken by the jury to its room. In this state two-thirds of a jury in a civil action may agree upon a verdict. (Section 1084, Code of Civil Procedure.) This statute is based upon constitutional authority. (Section 23, Article III, Constitution of Montana.) But if a verdict so rendered by the specified majority may be set aside by reason ©f affidavits made by dissenting jurors to the effect that, in the ©pinion of such dissecting jurors, the conclusion of the majority was reached by giving a wrong construction to or attaching undue weight to the evidence, or some part of it, then this statute is of little avail, for, if a difference of opinion as to the weight or construction of evidence did not exist, there could never be a divided jury. It has long been the settled rule that, in the absence of a statute, and in order to secure freedom of-thought, thorough discussion and independence of action, as well as to prevent undue influence and fraud, the construction or weight given to evidence submitted is not a subject of inquiry upon a motion for a new trial. Subdivision 2 of Section 1171 of the Code of Civil Procedure does not change this rule. (Fredericks v. Judah, 73 Cal. 604, 15 Pac. 305; Saltzman v. Telephone Co., 125 Cal. 501, 58 Pac. 169; Griffiths v. Montandon, 4 Idaho, 377, 39 Pac. 549.)
5. There is a very substantial conflict in the evidence, and the contention of the appellant as to insufficiency of the evidence to sustain the findings is without merit. (Babcock v. Maxwell, 29 Mont. 31, 74 Pac. 64.)
The contention that the court submitted to the jury findings respecting issues not raised by the pleadings is made by objecting to instructions which are not before the court. The real question in controversy was the testamentary capacity of decedent at the date of the instrument purporting to be his last will, and, when the jury found that he was mentally incompetent to make a will, the other findings are immaterial, so far as the ultimate rights of the parties in this proceeding are concerned.
6. It is alleged that the court erred in admitting certain testimony. The witness testified, over objection, as to the condition of the decedent before and after the date of the document alleged to be his will, detailing circumstances relative to his mental and physical condition for six months prior to the date of the instrument. The witness further gave it as his conclusion that the decedent was not mentally competent to make a will. It is a well-settled rule that “one not an expert may give an opinion, founded upon observation, that a certain person is sane or insane.” The witness in this case detailed the circumstances upon which he based his conclusion, and all his statements went to the jury. There was nó error in admitting this testimony. (Lawson, Opinion Evidence, 2d Ed., p. 532.) The witness Fanny Spencer, mother and guardian of the plaintiff, testified on cross-examination that, some years prior to the institution of these proceedings, similar proceedings had been instituted by her as guardian, and that the same had been dropped. The witness was then asked by appellant to state by whom the proceedings had been dropped. Objection was sustained to the question on the ground that the court records were the best evidence. No attempt appears to. have been made in this case to introduce any evidence or raise any question as to another action pending or as to any former adjudication, and, if such attempt had been made, it is quite apparent that the court records in such other proceeding or former adjudication would be the best evidence. It is apparent the appellant was not injured by this ruling of the court.
We recommend that the cause be remanded, with directions that the judgment be modified in accordance with the views herein expressed, and that, upon the entry of the judgment as modified, the judgment and order appealed from be affirmed.
Per Curiam. — Por the reasons stated in the foregoing opinion, the cause is remanded to the district court, with directions to modify the judgment entered, by holding the probate of the will set aside only in so far as the interests of the contestant James R. Spencer are concerned; that the interest of said contestant under the law of succession be adjudged; and, as so modified, the judgment and order are affirmed. It is further ordered that each of the parties to this appeal pay his own costs.
Modified and affirmed.
Mr. Chief Justice Brantey, being disqualified, takes no part in this decision.
|
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] |
MR. COMMISSIONER CLAYBERG
prepared the following opinion for the court:
Appeal by the Northern Pacific Railway Company from a judgment and order overruling its motion for a new trial.
It appears from the complaint that on June 30, 1900, the warehouse owned by the Custer County Wool Warehouse Company, and situated upon the right of way of the railway company, was ignited by sparks from one of defendant’s engines and burned; that there was stored therein certain wool belonging to the firm of Hunter & Anderson, which was consumed with the building; and that this firm had their wool insured by the plaintiff company, which paid them the sum of $3,355.57, the value thereof. The complaint further alleges “that the fire by which said above referred to wool was destroyed as aforesaid was caused by sparks thrown out by a locomotive at said time and place owned, us.ed and operated by the defendant herein, ■which said sparks escaped from said locomotive, and fell in and upon said warehouse and its contents, and ignited the same, by reason of the defective construction and impaired condition of said locomotive, and the careless and negligent manner in which the same wras then and there used and operated by defendant, and wholly by reason thereof, and without any fault on the part of said firm of Hunter & Anderson, or any member thereof, or plaintiff.” Hunter & Anderson, prior to the commencement of the suit, assigned, transferred and set over to plaintiff all claim, demand and right of action growing out of the destruction of the wool, due to the alleged negligence of defendant.
The railway company, after certain admissions and denials of the complaint, alleged as a separate and affirmative defense that the wool warehouse company was a joint-stock association and a joint partnership, and that Hunter & Anderson were joint owners and partners therein; that said “joint-stock association”leased the ground upon which the warehouse was built from the railway company, and, by the terms of such lease, assumed all risk of loss to the building and contents occasioned by fire and sparks from locomotives, engines, etc.
For a second separate and affirmative defense, defendant alleges that the warehouse was carelessly and improperly built of highly inflammable material, which was well known to Hunter & Anderson when they placed their w'ool therein; that the plaintiff also w'ell know'- these facts vlien it insured said wrool, and, in consideration of a higher premium, insured against this additional risk.
Plaintiff denied all the allegations of new matter by replication. The case was tried before a jury, and resulted in a verdict for plaintiff in the sum of $8,355.57, and judgment vns entered sthereon. Defendant made a motion for a new trial, which was overruled.
The only errors assigned in the brief of appellant are as follow's: (1) The denial of defendant’s motion for a new trial. (2) The overruling of defendant’s objections to a certain question asked by plaintiff’s counsel of witness Buckner. (3) Giv ing of instruction No. 26. (4 and 5) The refusal of defendant’s offered instructions 35 and 36. (6) The refusal to allow defendant to show that Hunter & Anderson oivned ten shares of stock in the warehouse company.
1. It is first urged by appellant in the argument that the destruction of the wool was proximately caused by an unprecedented wind blowing on the day of the fire, and would not have occurred, had there not been such wind. Appellant therefore claims that the injury was caused by the act of Grod, and not by its alleged negligence. We cannot consider this proposition, because the act of God is a defense to the action, and must be pleaded as such. We look in vain to appellant’s answer for any allegations on which this defense may be based.
'2. The next proposition argued is that of imputed contributory negligence on the part of Hunter & Anderson, plaintiff’s assignees.
It is claimed that the warehouse company ivas bailee of Hunter & Anderson, and was guilty of contributory negligence, and that such contributory negligence is imputable to Hunter & Anderson, which would prevent a recovery by them, and therefore by plaintiff.. This point is based upon the giving by the court of paragraph 26 of the charge, and the refusal of the court to give charges 35 and 36 requested by defendant. By refusing to give the charges requested, and by giving paragraph 26, it is claimed that the court practically withdrew from the .jury the consideration of contributory negligence. This was right, on the ground that contributory negligence was not put in issue by the pleadings; and it may have been equally right on other grounds, appearing to the satisfaction of the court. Although the court below may not have based its action on the ground of want of an issue raised by the pleadings, yet, if its action was correct, even though based upon other grounds, it must be affirmed.
Bnder the decisions of this court, contributory negligence on the part of plaintiff is a defense which, in order to be relied on, must be pleaded by defendant, in cases of this character. (Ball v. Gussenhoven, 29 Mont. 321, 74 Pac. 871; Cummings v. Helena & Livingston S. & R. Co., 26 Mont. 434, 68 Pac. 852, and cases cited.) The existence of contributory negligence need not be negatived in the complaint unless it appears from other allegations therein that the proximate cause of the injury was the act of the plaintiff. Dpon the other allegations of this complaint, it is very apparent that the proximate cause of the injury in this case, for which suit was brought, was not the act of plaintiff, or of any of its predecessors or its assignees, but that of defendant. AVe find no allegations of such defense in the answer. True, the allegation is found in the complaint that the wool was destroyed by negligence of defendant, “and wholly by reason thereof, and without any fault on the part of said firm of Hunter & Anderson, or of any member thereof, or plaintiff.” This allegation was denied generally in the answer. This is not sufficient to raise the issue of the contributory negligence of the plaintiff or its assignors. Plaintiff was not required, as above stated, to allege want of contributory negligence, and therefore its allegations above quoted are mere surplusage, and need not be proved. Defendant cannot be heard to assert that it is excused from pleading the defense of contributory negligence because of this allegation in the complaint.
3. The next alleged error argued was the overruling of defendant’s objection to the following question asked of witness Buckner: “Q. With regard to the throwing of sparks by engines of the Northern Pacific Railway when pulling trains of that company over this road, how did the quantity and size of sparks thrown out of the engine on the night of the fire, and as to which you have testified with regard to quantity and size— How did that throwing of sparks compare with other engines throwing sparks along the line of this road ?” Counsel for defendant interposed the following objection: “Objected to on the ground that the witness was not entitled to give an opinion by way of comparison between different engines; and, second, because inadmissible without a showing that the conditions as to the engines compared were practically the same.” To this question tbe witness answered: “As far as tbe size of them was concerned, I never noticed any particular size of them; but, in quantity, this engine threw more than I ever saw along at that time, or had seen.”
The evident purpose of this testimony was to show negligence on the part of defendant, either in the equipment of the locomotive, or in its careless handling. The question did not call for expert testimony, and we think the evidence was properly received. As is well said by the Supreme Court of Wisconsin in the case of Brusberg v. Milwaukee, etc. Railway Co., 55 Wis. 106, 12 N. W. 416: “A witness for plaintiff 'was allowed, against the defendant’s objection, to testify how the fire thrown from the locomotive that morning, at the time it passed the plaintiff’s barn, compared with the fire coming from the engines on that road before that time. We think this evidence was competent'to show that it was at the time emitting an-unusual quantity of fire. A similar objection was made to the same kind of testimony given by other witnesses of plaintiff. We see no reason for excluding this kind of evidence, and think the objections were all properly overruled.” As further sustaining this proposition, the following cases might be consulted: Johnson v. Chicago, etc. R. Co., 31 Minn. 57, 16 N. W. 488; Chicago, etc. R. Co. v. McCahill, 56 Ill. 28; Wabash R. Co. v. Smith, 42 Ill. App. 527; Ruppel v. Manhattan R. Co., 13 Daly, 11; Grand Trunk R. R. Co. v. Richardson, 91 U. S. 454, 23 L. Ed. 356.
4. The next question presented for consideration is that the Custer County Wool Warehouse Company is not a corporation, but an association of individuals or a partnership. Appellants claim that, this being true, each stockholder or partner was bound by the provisions of the lease from the Northern Pacific Eailway Company to the association or partnership, by which they waived all damages which might arise from a destruction of the warehouse by any act of the railway company.
The ground upon which the contention that the warehouse company was not a corporation is based is that there is no stat ute in Montana providing for the formation of corporations for the purpose of doing the business in which the wool warehouse company was engaged, and that the purposes mentioned in the statute for which corporations may be formed are exclusive.
We find that Subdivision 25 of Section 393 of the Civil Code provides that a corporation may be formed for “the transaction of any mercantile, commercial, industrial, manufacturing, mining, mechanical or chemical business.” We think it is clear from the certificate of incorporation of the Ouster County Wool 'Warehouse Company that its organization may be maintained under the purposes mentioned in the above-quoted subdivision. The business of carrying on a warehouse is closely connected with, and is a part of, the general commercial business of the country. The act of a warehouse company in storing goods for shipment is a necessary part of the transportation of the wool from the place of its production to the markets. Warehouses are therefore provided for this purpose, and the business of a warehouseman is just as much a link in wool comiherce as its transportation to market by the railroad company. The business of warehousing grain has been recognized by the Supreme Court of the United States to be a part of the commerce of the country. (Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77.)
5. Further error is alleged upon the refusal of the court to allow defendant to show that Hunter & xYnderson were the owners of ten shares of stock in the Ouster County Wool Warehouse Company. We are of the opinion that the court did not err in excluding this evidence. If the Ouster County Wool Warehouse Company was a corporation, it made no difference whether Hunter & Anderson were stockholders in it or not.
We are therefore of the opinion that there is no error disclosed by the record, and the case should be affirmed.
Per Curiam. — Eor the reasons stated in the foregoing opinion, the judgment and order are affirmed.
|
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HuNT, J.
— An attentive examination of the testimony in this record fails to satisfy us that the findings of fact are against the weight of evidence. By the authority of this court they must therefore stand as approved by the trial judge.
The issue of the statute of limitations is at once disposed by the fact that on December 20, 1890, defendant was given a credit of twenty-five dollars, with his consent, on the note of May, 1885.
The assignment for the benefit of creditors, made by Jurgens & Price on June 7, 1889, included “promissory notes, debts, choses in action, etc., belonging to said parties of the first part (Jurgens & Price), or either of them, .... now due or payable, or to become payable.”
Under its provisions it was the duty of Price, as a member of the insolvent firm, to deliver to the assignee, for the benefit of creditors, the notes involved in this action, and, failing to do so, doubtless the assignee could have brought suit in trover to recover them from him. The appellant’s authorities sustain this proposition. (Cooper v. Perdue (Ind.), 16 N. E. Rep. 140; Burrows v. Keays, 37 Mich. 430.)
But as the case is presented, the assignee never received the notes, and never made demand upon either member of the firm of Jurgens & Price for them. Ben Price retained them in his possession until 1891, when they passed into the hands of these plaintiffs as innocent purchasers for a valuable consideration. Whether Price’s conduct in failing to deliver the notes to Atkinson, assignee of the firm of Jurgens & Price, was intentionally wrong, is a close question, but, as its determination, depended upon the credibility of the witnesses, we cannot say that bad faith characterized his conduct. The apparent acquiescence of the assignee in Price’s claim to the notes for so long a time, and the fact that he has not intervened in this suit, tend to prove that the assignee neither asserted title to the notes, nor claimed any legal ownership of them. These facts also tend to sustain the bonafides of Price.
But, appellant argues, Ben Price could not transfer the notes, because, by virtue of the assignment of Jurgens & Price in 1889, the firm of Jurgens & Price was dissolved. To support this contention appellant cites several cases which hold that a general assignment by a firm for the benefit of creditors by itself works a dissolution of the copartnership. Williston v. Camp, 9 Mont. 89, did not positively decide the point, but, as we construe the opinion of Justice De Wolfe in that case, the court lean to the doctrine that an assignment by a firm does not necessarily dissolve the copartnership, but is only prima facie evidence of a dissolution. A discussion of the question is unnecessary, however, in this case, for we are of the opinion that whether the firm was entirely dissolved or not is quite unimportant in view of the positive evidence of Jurgens, who, on the witness-stand, ratified every act of Price, not only in indorsing the firm’s name, but also in transferring the noteSj and applying their proceeds in payment of Price’s individual debts. Under such a state of facts the defendant herein cannot complain of the transfer of the notes by Price, for he is amply protected against any possible subsequent claim the firm or Jurgens may have against him. (Coney v. Wheelock, 33 Me. 366; First Nat. Bank of Mankato v. Parsons, 19 Minn. 289; Major v. Hawkes, 12 Ill. 297; Bates on Partnership, § 698; Graves v. Merry, 6 Cow. 701.)
Defendant finally contends that the notes became the property of the assignee by virtue of the assignment. This is substantially a plea that plaintiffs are not the real parties in interest, but that the notes belong to and are the property of the assignee. But as against the defendant, the maker, the argument is not tenable. The holders of the notes are presumptively the owners, and their possession is presumptive evidence of their title, until rebutted by the defendant. (Whiteford v. Burching, 1 Gill. 127; Pomeroy’s Code Remedies, § 128, et seq; Palmer v. Nassau Bank, 78 Ill. 380; New Orleans Banking Co. v. Bailey, 18 La. Ann. 676; 2 Randolph on Commercial Paper, § 707; Daniell on Negotiable Instruments, §§ 1191, 1192 b; Story on Promissory Notes, § 381.) And until this presumption is overcome plaintiffs are bona Ude purchasers for value, have a right to sue, and are the real parties in interest. (Klein v. Buckner, 30 La. Ann. 680; Robertson v. Dunn, 87 N. C. 191; Hesser v. Dran, 41 Iowa, 468; Herrick v. Bromside, 56 Md. 439; McCann v. Lewis, 9 Cal. 246.)
We adopt the construction placed upon section 4 of our Code of Civil Procedure by the court of appeals of New York, in Hays v. Hathorn, 74 N. Y. 486, where the question of who is the real “party in interest,” as applied to promissory notes, is ably discussed by Judge Hand. The action was on a promissory note made by Hathorn et al., payable to the order of defendant, and by him indorsed and transferred to plaintiff. The answer denied the transfer to plaintiff, or that he was the legal owner or holder thereof, or that he was the real party in interest. The court review the earlier New York cases, and conclude as follows:
“From this glance at the cases it appears that it is ordinarily no defense to the party sued upon commercial paper to show that the transfer under which the plaintiff holds it is without consideration, or subject to equities between him and his assignor, or colorable and merely for the purpose of collection, or to secure a debt contracted by an agent without sufficient authority. It is sufficient to make the plaintiff the real party in interest if he have the legal title, either by written transfer or delivery, whatever may be the equities between him and his assignor. But, to be entitled to sue, he must now have the right of possession and ordinarily be the legal owner. Such ownership may be as equitable trustee; it may have been acquired without adequate consideration, but must be sufficient to protect the defendant upon a recovery against him from a subsequent action by the assignor. As we understand the scope of the offer in the present case, it went to entirely disprove any ownership or interest whatever, or even right to possession as owner, in the plaintiff. It should therefore have been admitted. It may be true that the plaintiff, if this note had been delivered to him with the intent to transfer title, might have lawfully overwritten the blank indorsement with a transfer to himself; it is also true that the production of the paper by him was prima fade evidence that it had been delivered to him by the payee and that he had title to it, but the defendants’ offer was precisely to rebut this very presumption, and, for aught that we can know, the evidence under it would have done so.”
In Lockwood v. Underwood, 23 N. Y. Sup. Ct., the rule laid down in Hays v. Hathor, supra, is approved. And the decided weight of authority is that a note indorsed merely for collection passes such title as enables the indorsee, to sue in his own name, as the real party in interest. (Roberts v. Parrish, 17 Or. 583; Cummings v. Cohn, 12 Mo. App. 585; Roberts v. Snow (Neb.), 43 N. W. Rep. 241; Winterwrite v. Torrent (Mich.), 47 N. W. Rep. 359; Wilson v. Tolson, 79 Ga. 137; Daniell on Negotiable Instruments, § 698 d, and cases cited; Moore v. Hall, 48 Mich. 143; Cottle v. Cole, 20 Iowa, 481; Freeman v. Falconer, 45 N. Y. Sup. Ct. 383; Maxwell on Code Pleading, § 48.)
Plaintiffs having bought the notes after maturity, they were, of course, transferred without prejudice to any setoffs or other defenses existing at the time of or before notice of the assignment. But no such setoffs or defenses are claimed, other than that the plaintiffs are not the lawful holders of the notes, with a right to sue. Accordingly, it is of no importance to defendant who owns' the notes, provided he is not liable to a second suit founded on the same claim. As was said in Gage v. Kendall, 15 Wend. 640: “ Why should the defendant give himself the trouble to investigate the plaintiff’s title? He owes the money to some one.” (Woodbury v. Hinckley, 3 Col. App. 210; Rohrer v. Turrill, 4 Minn. 407; Caldwell v. Lawrence, 84 Ill. 161; 1 Parsons on Notes and Bills, § 262; Bliss on Code Pleading, § 51.)
It was decided in Fultz v. Walters, 2 Mont. 165, that promissory notes are to be regarded themselves as only personal chattels, collectible by and in the name of the holders and owners thereof. The possession, therefore, of the notes involved in this suit being in plaintiffs, who became purchasers in good faith, subsequent to the assignment of Jurgens & Price, by section 226, division 5, of the Compiled Statutes, any assignment of them as chattels, to be valid as against these plaintiffs, must have been accompanied by the immediate delivery, and by an actual and continued change of possession. The facts being that the notes never were delivered to the assignee, but did pass to the plaintiffs in good faith, and without knowledge of the assignment, plaintiffs are the real parties in interest.
Our conclusions are that defendant owes the notes; that he is thoroughly protected against any further liability upon them; that there is no merit in his defense, and that he must be held to his obligations. The judgment is affirmed;
Affirmed.
De Witt, J., concurs.
|
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De Witt, J.
— This is an appeal by the defendant from a judgment convicting him of murder in the first degree, on which appeal we review an order denying the defendant a new trial.
The first alleged error argued by appellant is the giving of a certain instruction upon the question of an alibi which was sought to be proved by defendant. Our Criminal Practice Act provides, in section 354, that a new trial shall be granted, among other reasons: “5. When the court has misdirected the jury in a material matter of law.” The method of making an application for new trial is set out in sections 355 and 356 oí the Criminal Practice Act. (Comp. Stats. 468) The application shall be made upon motion, and written notice of motion shall be filed within a time given. If the application is made upon the ground that the court has misdirected the jury upon a material matter of law the application must be made upon a bill of exceptions, or upon the minutes of the court, “and the notice of motion must state particularly the error upon which the party making the application relies.” The notice of motion in the case at bar did not state that the party making the application relied upon the alleged error in giving the instruction which is now complained of in the argument of counsel. The notice was wholly silent as to any error in the instruction to the jury by the court. An objection to the instruction upon the question of alibi was never made a ground of motion for new trial. It was never before the district court upon the motion, nor is the objection now before this court otherwise than by the brief and argument of counsel. But counsel rely upon the provisions-of the act of September 13, 1887 (15th Ex. Sess. Laws, 67), which is as follows: “ That the charge and instructions given by the court to the jury in all civil and criminal cases, and the giving of the same, and the refusal of the court to give any instructions requested by the parties, and the modification of any instruction requested and given, are deemed excepted to, and no exception need be taken to the same, in writing or otherwise, nor any bill of exception filed.” But this court has held that this statute does not, ipso facto, make the instructions a bill of exceptions (Kleinschmidt v. McDermott, 12 Mont. 309); but that, to bring the instructions before the court for review, they must be embodied iu a bill of exceptions or statement. But in the case at bar, even if the alleged objectionable instruction is before us in the record'in a bill of exceptions, still it is not made a ground for a new trial, either in the court below or here. It was never specified as an error to be relied upon. (Criminal Practice Act, Comp. Stats. § 356, p. 468.) A party may have exceptions duly taken and preserved, but, if he wishes to avail himself of them, the statute requires that, iu his notice of motion for new trial, he must state the particular error upon which he relies. It appears conclusively from this record that he did not, in his motion, rely upon this alleged error.
When a specification of error is required in a civil case it has been repeatedly held in this court that such specification is absolutely essential in order that the court may review the error complained of. (Raymond v. Thexton, 7 Mont. 304, and cases cited.) It was held in Territory v. Rehberg, 6 Mont. 467, that it was the notice of motion which was the specification of error in a criminal case. On analogy to the decisions in civil cases as to specifications, if the notice of motion does not specify the error, it will not be considered. (People v. Crowley, 100 Cal. 483.)
It was said long ago by this court, in Territory v. Hanna, 5 Mont. 247, that “appeals are matters of statutory regulation. There must be a substantial compliance with the statute iu order to confer jurisdiction upon the appellate court. The appellant is charged with the duty of perfecting his appeal in the manner provided by law, and error in this regard affects the jurisdiction of the appellate court. (Courtright v. Berkins, 2 Mont. 404.)” This ruling was approved in State v. Gibbs, 10 Mont. 210, and State v. Northrup, 13 Mont. 534.
On appeal from a judgment in a criminal case this court may review an order denying a new trial. If, on the appeal from the judgment, defendant had desired to have a review of this instruction which he objected to he could have availed himself of the statutory provision of laying the foundation for such review by making the alleged error, in giving the objectionable instruction, a ground for his motion for new trial. This, as observed above, he wholly omitted to do. The objection to the instruction was not only not specified as error, but was not at all made a ground of the motion.
We can see only two courses for this court to pursue in this case — either to follow the statute, and disregard defendant’s objection, now made in his argument for the first time, that the instruction as to alibi was error, or to disregard the statute, and establish a rule of practice in contravention thereto. But, as quoted from a decision in the learned brief of defendant’s counsel, “judex est cusios non condilor juris, judicia exercere potuit, facere leges non potest.” And in the ease at bar the law is as we have quoted it from the statute, aud if we are the custodians, and not the framers, of the law, there is no course before us but to follow the mandate of the statute, and, to hold that the alleged objectionable instruction is not now a subject for review.
In this connection it may not be inappropriate to observe that one specification on the motion for new trial was that the verdict was contrary to the evidence. While this specification was inserted in the motion it is not presented in the brief or argument of counsel. It is not now contended before this court that the verdict is contrary to the evidence. Counsel say in their brief that the evidence was conflicting. The jury passed upon this question of evidence, and no one is here to say that the evidence does not support the verdict.
A specification of errror which is made in the motion for new trial is as follows: Counsel for the state, on the cross-examination of the defendant, who was a witness in his own behalf, asked him the following question: “ I will ask you if you were not convicted in the state of Minnesota for a felony.” This question was objected to as improper cross-examination, and irrelevant and immaterial. The objection was, by the court, overruled. The court instructed the witness that he had a right to refuse to answer this question if he so desired. The witness did not refuse to answer, but replied, “I was.” In one of the briefs submitted by defendant’s counsel it is argued that this question should not have been allowed, because it was attempting to prove the conviction of defendant by Ins own testimony, and not by the record of such conviction, which was the best evidence. But no such objection was made to the question, nor was exception taken to the same oil that ground. Such objection is therefore not before us for consideration. (City of Helena v. Albertose, 8 Mont. 499; Territory v. McAndrews, 3 Mont. 161; Territory v. Bryson, 9 Mont. 32, citing Tucker v. Jones, 8 Mont. 225, and Herman v. Jeffries, 4 Mont. 522.)
It was held in Commonwealth v. Bonner, 97 Mass. 587, that “a defendant in a criminal proceeding, who testified as a witness at the trial, may be asked, on cross-examination, for the purpose of affecting his credibility as a witness, ‘if he has been in the house of correction for any crime,’ provided objection is waived that the record is the best evidence thereof.” Nor was it objected in the case at bar (nor could it be, under the facts) that the question could not be asked of defendant because it tended to criminate him. Neither, as a matter of course, is it contended that defendant was compelled to be a witness in this respect against himself. Nor was it objected on any ground that defendant was not a person who could, as a witness, be asked such a question. It is to be noted that the defendant was not required to answer the question. The court told him he had the right to refuse. He was given his election to answer or refuse. He elected to answer. Without jiassing upon the effect of this situation we will consider whether the defendant’s objection to the question put to him is tenable. Should the question have been excluded because objected to as not proper cross-examination and incompetent and immaterial?
It was said in the City of Helena v. Albertose, supra, as follows: “There are two sucii errors [assigned]. The first is as follows: The defendant offered in evidence a certain deed, to which counsel for plaintiff objected, as follows: ‘Iobject to its introduction.’ The second error is based upon an objection which was as follows: ‘I object to the testimony as incompetent.’ In order that objections to testimony may avail a party on appeal they must state specifically the grounds of objection, and to say that ‘testimony is incompetent’ is not a good objection. The reasons which make such testimony incompetent must be given.” The objection in the case at bar is just such an one as was held to be bad in the case above cited. It was simply, “We object to that as improper cross-examination, irrelevant, and immaterial.”
It was said in the case of Shober v. Jack, 3 Mont. 354, in reference to asimilar objection: “The respondent urges that the specification of the objection to the evidence was too general. The ground of the objection was that the evidence was incompetent. If there was no phase of the case which would permit the introduction of such evidence, then the objection was specific enough. But we think, in the case at bar, there is a phase of the case which permits the introduction of testimony sought to be deduced by the question. Let it be remembered that the means of proving the fact are not now under consideration. No objection is made to the means. The question is whether the testimony was competent and material for any purpose. We think it certainly is competent and material to show, on cross-examination, that a defendant had been convicted of a felony, in order to discredit him, and to attack his credibility. (Wharton on Criminal Evidence, § 474, and cases. And see, generally, following cases: Mitchell v. Commonwealth (Ky., Oct. 14, 1890), 14 S. W. Rep. 490; State v. Allen, 107 N. C. 805; 1 Greenleaf on Evidence, § 472 n; Wharton on Criminal Evidence, §§ 472 n, 596 a; Allen v. State, 73 Am. Dec., note at page 775, and cases cited; Jackson v. State (Tex. Cr. App., May 2, 1894), 26 S. W. Rep. 194; Hargrove v. State (Tex. Cr. App., June 9, 1894), 26 S. W. Rep. 993; State v. Minor, 117 Mo. 302, State v. Alexis, 45 La. Ann. 973; State v. Farmer, 84 Me. 436; People v. Foote, 93 Mich. 38; Wilbur v. Flood, 16 Mich. 40; 93 Am. Dec. 203; Clayton v. State (Tex. Cr. App., May 3, 1893), 22 S. W. Rep. 404; State v. O’Brien, 81 Iowa, 93; State v. Pfefferle, 36 Kan. 90; State v. Probasco, 46 Kan. 310; Fisher v. Insurance Co., 33 Fed. Rep. 544; Long v. State, 23 Neb. 33; Bennett v. State, 24 Tex. App. 73; 5 Am. St. Rep. 875; State v. Loehr, 93 Mo. 103; Commonwealth v. Knapp, 9 Pick. 496; 20 Am. Dec. 491; People v. Meyer, 75 Cal. 383.) The question here is simply as to the competency and materiality of this testimony as testimony, without regard to its source. As to this there seems to be some doubt. No authorities have been submitted to us to the contrary.
In addition to the general principles found in the decisions upon this subject we have the following provisions of our statute:
“Sec. 616. The direct evidence of one witness, who is entitled to full credit, is sufficient for proof of any fact, except perjury and treason.”
“ Sec. 619. A witness is presumed to speak the truth. This presumption, however, may be repelled by the manner in which he testifies, by the character of his testimony, or by evidence affecting his character for truth, honesty, or integrity, or his motives, or by contradictory evidence, and the jury are the exclusive judges of his credibility.”
“ Sec. 660. A witness shall answer questions legal and pertinent to the matter in issue, though his answer may establish a claim against himself; but he need not give an answer which will have a tendency to subject him to punishment for felony; nor need he give an answer that will have a direct tendency to degrade his character, unless it be the very fact in issue, or to a fact from which the fact in issue would be presumed. But a witness shall answer as to the fact of his previous conviction for felony.”
These provisions are found in the Code of Civil Procedure, but they are in the chapter entitled “General Principles of Evidence,” and it may not be unreasonable to construe them, if necessary, as applying to criminal evidence as well as civil; for the first section quoted, in its terms, refers to a criminal case, when it speaks of the evidence of one witness being sufficient for proof of any fact, except perjury and treason. There can be no doubt that a conviction for felony is, in the language of section 619 quoted, evidence affecting the witness’ character for integrity. We are satisfied that there is no error presented in this specification for which the case should be reversed.
Another specification of error is that the court allowed witnesses to be examined on the part of the state whose names were not indorsed upon the. information at the time it was filed. Our statute as to information provides as follows: 11 There shall be indorsed upon each information, at the time of the filing of the same, the names of all witnesses known to the prosecuting attorney; and, at such time before the trial of any case as the court may, by rule or otherwise, prescribe, he shall also indorse thereon the names of such other witnesses as shall then be known to him.” (2d Sess. Laws 1891, § 3, p. 250.) There were a number of witnesses called and examined by the state whose names were not upon the information at the time when it was filed; but the name of each of such witnesses was indorsed upon the information by the order of the court, and as to each of said indorsements (with one exception, to be noted below), where objection was made by the defense to the examination of such witness, the counsel for the prosecution stated that the name of such witness, or the testimony which he was about to give, had become known to the county attorney since the filing of the information, or (which amounted to the same thing) that his testimony, was as to events occurring after the information was filed. Counsel, when introducing such a witness, offered to withdraw him for the time, and introduce him later. Therefore, if there be any merit in the contention of counsel, that the names of such witnesses could not be indorsed upon the information unless they or their testimony had become known to the state’s attorney since the information was filed, that contention is disposed of under the facts disclosed by the record. (Johnson v. State, 34 Neb. 257; State v. Cook, 30 Kan. 82; State v. Sorter, 52 Kan. 534; Hill v. People, 26 Mich. 496; People v. Hall, 48 Mich. 487; 42 Am. Rep. 477.)
There was one witness, however, whose name was not indorsed upon the information, as to whom the county attorney did not state that he was unknown to him at the time of filing the information. This was Dr. Bullard, a chemical expert, who testified as to the analysis of blood and blood stains. Objection was made to his testimony because his name was not indorsed upon the information at the time it was filed. But the application to indorse his name was made on the opening of the trial, and the county attorney stated, in opening the case, what he intended to prove by this witness. Counsel for the defendant were questioned by the court as to whether they knew Dr. Bullard was to be a witness; The counsel stated that they did not know this fact officially. But we think, in effect, that they admitted that they were aware, at the time of their appointment as counsel, that Dr. Bullard was to be so called. They objected that there was no opportunity to procure testimony to rebut that of Dr. Bullard. The court told them that the power of the court was at their disposal to obtain any witness whom they might desire for this purpose. It appears that they did obtain an expert witness upon this subject, and that he was examined for this purpose by the defense. No prejudice seems to be shown in this regard or to be claimed by counsel.
We have reviewed all the errors which have been argued by counsel, and, from our examination of tli.em, are of opinion that the judgment must be affirmed. While we have not been asked on this appeal to review the evidence, it has been brought here in the record, and has come to our attention. In addition to the fact that counsel have not here claimed that the evidence is insufficient to sustain the verdict, we are of opinion, from what independent examination we have been able to make of the testimony, that the verdict is sustained by the testimony before the jury.
It appearing that the defendant has been granted a respite by the governor until the twenty-first day of December, 1894, pending the presentation and decision of this appeal, it is therefore ordered that the judgment of the court below be executed on that day, in accordance with the provisions of section 377 of the Criminal Practice Act. Remittitur forthwith.
Affirmed.
PembertoN, C. J., and Harwood, J., concur.
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PembertoN, C. J.
— Upon the filing of the record of the case in this court the respondent moved this court to dismiss the appeal, upon the grounds that it appears that the judgment of the court was not entered in the proper book. It appears that the clerk of the lower court kept a book labeled “Judgment by the Court,” kept for the sole purpose of entering judgments by the court, and that the judgment in this case was not entered in this book, but it was entered in the “ Minute Book” of the court. It also appears from the record of the case that the court, on the seventeenth day of October, 1891, made and filed its findings, and decision, and judgment; that, on the twenty-seventh day of October, defendant filed its notice of intention to move for a new trial; that thereafter, on the fourth day of November, defendant excepted to the findings of the court, aud moved the court to correct certain defects therein; that on the eleventh day of November the court made and filed an amended finding, decision, and judgment, giving the defendant judgment for seventy-five dollars and thirty cents more than by the original findings and judgment. And, as the appeal is from the original judgment, the respondent contends it should be dismissed. If this appeal were from the judgment alone this last might be a serious question. But the appeal is also taken from the order of the court denying appellant’s motion for a new trial, and, as this appeal biings the whole case here, we do not think it should be dismissed for the reasons assigned by respondent. It appears also that the judgment of the court was rendered and entered, but entered in the “Minute Book,” instead of the book labeled “Judgment by the Court.” We do not think the judgment was invalid, especially between these parties, on that account, or that no appeal would lie therefrom.
There are a great many assignments of error in this record. The appellant contends and urges that the evidence shows that time was of the essence of the contract, and that the evidence shows that the plaintiff failed to comply with its terms in many material particulars, and has shown no excuse for not complying, and is therefore not entitled to specific performance. The court Fund that time was not of the essence of the contract. Whether the court erred in this finding or not— whether time was of the essence of the contract, as shown by the evidence and circumstances surrounding the case — we do not deem it necessary to decide in determining this case, while we confess that many of the facts and circumstances go far to support the theory that time was considered as of the essence of the contract by the parties at the time of its execution. At least, we think it cannot be insisted, under all the facts and circumstances, that time was not material. As we view it, the vital question in the case is this: Was the plaintiff guilty of such laches, under all the facts and circumstances, after being notified by the defendant company that it would not fuF fill its part of the contract, in bringing his suit, as to debar him of equitable relief? “Specific performance is not an absolute right. It rests in judicial discretion, exercised according to the principles of equity, and with reference to the facts of the case.” (4 Gen. Dig., U. S., 1710, and authorities cited. See, also, 2 Beach on Modern Equity Jurisprudence, § 566, and authorities cited.) In Knox v. Spratt, 23 Fla. 64, the court said: “ The bill shows no reason for this long delay. Although time is not of the essence of this contract, yet, if the complainant is not active and diligent in the assertion of his claim, and permits an unreasonable time to elapse, it will be presumed that he has acquiesced, and has abandoned any equitable right he might have had to enforce the contract. In the case under consideration the complainant waited two years and seven months, and he shows no reason why he delayed so long to file his bill. In Watson v. Reid, 1 Russ. & M. 236, the plaintiff, who was the vendor, did not file his bill for specific performance until about one year afterward. The bill was dismissed on one ground that the plaintiff had unreasonably delayed filing it. Iu the case of Gentry v. Rogers, 40 Ala. 442, the plaintiff', though notified two years before the time for performance that the defendant would not perform the contract, waited nine mouths after the time when the contract should have been performed before filing his bill. ‘In such cases, though time be not of the essence of the contract, a court of equity will not allow of a delay which would enable a party to take advantage of the turn of the market, and have the contract performed only in case it suits his interest.’ ” In Delavan v. Duncan, 49 N. Y. 485, the court say: “The contract was made November 6, 1862, for the sale of a house and lot in the city of New York for the price of five thousand five hundred dollars, to be paid on the 15th of the same month, or as soon thereafter as the title could be searched, not to exceed thirty days. The judge finds as facts that, early in December, 1862, about twenty days after making the agreement, the title to the property having been searched, the plaintiff said to the defendant that there were judgments recorded against him (describing such judgments), and requested him to have said liens removed, and stated" that he was then ready to fulfill his agreement; that defendaut said he could not or would not re move the liens. The action was not commenced until August, 1866. The inquiry is whether, upon these facts, the plaintiff was entitled to judgment for specific performance, and, if not, whether the evidence authorized the finding of such additional facts as would entitle him to such judgment. Fry on Specific Performance, section 730, a work of acknowledged authority, says: ‘ The court of chancery was at one time inclined to neglect all consideration of time in the specific performance of contracts for sale, not only as an original ingredient in them, but as affecting them by way of laches. But it is now clearly established that the delay of either party in not performing its terms- on his part, or in not prosecuting his right to the interference of the court by filing a bill, or, lastly, in not diligently prosecuting his suit, when instituted, may constitute such laches as will disentitle him to the aid of the court, and so amount, for the purpose of specific performance, to an abandonment on his part of the contract.’ Section 731 refers to the cases in which this .doctrine was established. Section 732 says: ‘The doctrine of the court thus established, therefore, is that laches on the part of the plaintiff, either in executing his part of the contract, or in applying to the court, will debar him from relief.’ ‘A party cannot call upon a court of equity for specific performance,’ said Lord Alvanley, ‘unless he has shown himself ready, desirous, prompt, and eager’; or, to use the language of Lord Cranworth, ‘specific performance is relief which this court will not give, unless in cases where the parties seeking it come as promptly as the nature of the case will permit.’ The cases cited by the author fully sustain his conclusions. (See, also, Marquis of Hertford v. Boore, 5 Ves. 719, and cases cited note b, p. 720; 1 Story’s Equity Jurisprudence, §§ 771, 781.) In Taylor v. Longworth, 14 Pet. 172, Judge Story, in giving the opinion of the court, at page 175, says: ‘Relief will be given to a party who seeks it, if he has not been grossly negligent, and comes within a reasonable time, although he has not complied with the strict terms of the contract. But in all such cases the court expects the party to make out a case free from all doubt, and to show that the relief which he asks is, under all the circumstances, equitable, and to account in a reasonable manner for his delay and apparent omission of his duty.’” In Gentry v. Rogers, 40 Ala. 442, in a case very similar1 to the one at bar, the court say: u But there is another consideration which militates against the case of complainant. If one of two parties concerned in a contract respecting lands gives the other notice that he does not hold himself bound to perform, and will not perform, the contract between them, and the other contracting party, to whom the notice is so given, makes no prompt assertion of his right to enforce the contract, equity will consider him as acquiescing in the notice, and abandoning any equitable right he might have had to enforce the performance of the contract, and will leave the parties to their remedies and liabilities at law. (2 White and Tudor’s Leading Cases in Equity, note to Seton v. Slade, pt. 2, p. 516; Guest v. Homfray, 5 Ves. 818; Heaphy v. Hill, 2 Sim. & St. 29; Watson v. Reid, 1 Russ. & M. 236; Walker v. Jeffreys, 1 Hare, 341.) Not deciding the question whether the rule thus laid down had application to the case of complainant before the time fixed for the complete performance of the contract, yet, with distinct and emphatic notice that the defendant would not hold himself bound to perform the contract between them, given two years before the period fixed for performance, he permitted about nine months to elapse from the latter period before he filed his bill to enforce performance; and this delay on his part is not accounted for, but left wholly unexplained. In Watson v. Reid, 1 Russ. & M. 236, the plaintiff, the vendor, having notice from the purchaser that the latter abandoned his contract, did not file his bill for specific performance until about one year afterward, and the bill was dismissed on the sole ground of unreasonable delay in filing it. In such cases, though time be not of the essence of the contract, a court of equity will not allow of a delay -which would enable a party to take advantage of the turn of the market, and have the contract performed only in case it suits his interest. The complainant in the case before us, by the delay in filing his bill, and by his failure to perform the acts required of him by the contract, did not evince that promptness and eagerness for a performance required at his hands to entitle him to invoke the urgent powers of a court of chancery to compel performance.” In Boston etc. R. R. Co. v. Bartlett, 10 Gray, 384, in a case involving lhe law of laches, the court say: “Thecontract for the sale of the laud was made in 1844. The plaintiffs per* formed their part of the contract on the 29th of May of the same year, and the defendants then distinctly and absolutely refused to perform it on their part. No bill was filed for more than three years after the final refusal of the defendants to perform the contract, and this long delay in applying for the enforcement of the contract is left by the plaintiffs entirely unexplained. These facts, of themselves, would make us hestitate to give the plaintiffs the equitable relief which they seek. (Walker v. Jeffreys, 1 Hare, 348, and cases cited; Rogers v. Saunders, 16 Me. 92; 33 Am. Dec. 635.) But there are other circumstances which tend to show that it would be inequitable to grant the relief asked for. The fact that the land which was the subject of the contract had greatly increased in value after the refusal to perform the contract, and before the filing of this bill, is entitled to some weight. (Holt v. Rogers, 8 Pet. 434.) .... Having thus, by their acts and laches for three years, induced the other party to suppose that they have abandoned this contract, it is too late to apply to this court to enforce it.” In this case it will be observed that, although the plaintiff had promptly performed his part of the contract of sale, the court refused specific performance on account of the failure to bring suit therefor for the period of three years. In Waterman on the Specific Performance of Contracts, section 473, the rule is thus stated: “ The doctrine is well settled that great delay of either party, unexplained, in performing the contract, or when he claims specific performance in filing his bill, or in prosecuting his suit after the bill is filed, constitutes such laches as to forbid the interference of a court of equity, and to amount to an abandonment of the contract on his part.” (See, also, cases cited in note.) Mr. Pomeroy, in his work on Equity Jurisprudence, volume 3, section 1408, states the doctrine thus: “Although time is not ordinarily essential, yet it is, as a general rule, material. In order that a default may not defeat a party’s remedy the delay which occasioned it must be explained and accounted for. The doctrine is fundamental that a party seeking the remedy of specific performance, and also the party who desires to maintain an objection founded upon the other’s laches, must show himself to have been ‘ready, desirous, prompt, and eager.’”
In the case at bar the plaintiff not only failed, as the evidence shows, to strictly comply with his part of the contract of sale, although he had ample reason to presume, from the feeling existing between the parties in relation to the matter, that a strict compliance would be required, but, after being notified by the defendant company that it would not perform its part of the contract, after his tender of the purchase price of the lot was refused, and after the defendant company had re-entered and taken possession of the premises in controversy, he waited for more than three years before commencing his suit for specific performance. This delay is not explained, or in any way attempted to be explained, or excused. In fact, it seems that no excuse for this delay existed. The plaintiff in his testimony uses this language: “I had several thousand dollars last fall, and had at all times the ability to get money.” The court finds that the object of the vendors in said contract, in requiring plaintiff to erect such a building on the lot, was to enhance the value of the property contiguous thereto, owned by defendant; thát the erection of such a building thereon would have such effect; and that plaintiff was aware of these facts. The lot in controversy is situate in the city of Great Falls. At the time the contract was sought to be enforced, Great Falls was a small, struggling village. At the time of the commencement of this suit — more than three years after the expiration of the contract — it had grown to be a flourishing young city. Neal estate had vastly increased in value, and its population had grown from hundreds into thousands. The circumstances and surroundings of the parties were different at the commencement of this suit from what they were at the date fixed for the comnletion of the contract sued on. Could the plaintiff lie by and wait for three years to see whether his contract was a good one, and, if so, ask a court of equity to enforce it, and, if a bad one, ignore and renounce it? We think not. The doctrine involved in this branch of the case is very elaborately discussed in Green v. Covillaud, 10 Cal. 317; 70 Am. Dec. 725. (And see authorities cited in this case.) In the case just cited the court say: “In California, where such rapid and sudden fluctuations in the affairs and fortunes of men occurred as in all history is unexampled, and where the work of years was accomplished in months, it is impossible to hold that time, as an element of past contracts, should be measured by the standards which obtain in old and settled states, where every thing is comparatively stable and permanent; where capital is abundant, titles ascertained, and interest is low. The peculiar circumstances, showing the value of punctuality here, call for a corresponding rule, whereby the courts should exact it; and we conceive that it would be as unjust as impolitic and demoralizing to make new contracts for parties, by extending time they never intended to give, for it would be to encourage violation of engagements, and foster a spirit of reckless speculation.”
We think it the well-settled doctrine that a party suing for a specific performance of contract, in a court of equity, must show that he has been “ready, desirous, prompt, and eager” in complying with his part of the contract, or in filing his bill and prosecuting his suit for relief, in case of failure or refusal to fulfill on the part of his adversary, or show good and sufficient reason for his delay in so doing. In this case the plaintiff has not done so. In failing to do so we think the plaintiff has been guilty of such laches as to debar him of the right to the relief sought. But it is contended that the statute of limitations controls in such cases, and that, as a consequence, the plaintiff would not be guilty of fatal laches, if he has brought this suit within the time prescribed by the statute oí limitations. In 1 Beach on Modern Equity Jurisprudence, section 20, the rule is thus stated: “Ordinarily courts of equity adopt the time fixed by the statute of limitations in analogous cases as the period at the end of which they will conclude recovery in equity. And it is said that courts of equity act not so much in analogy as in obedience to statutes of limitation of legal actions, because, where the legal remedy is barred, the spirit of the statute bars the equitable remedy also. Though, on the equity side of the United States courts, the statute of limitations cannot be pleaded, the court may look to such stat ute for analogies in applying the doctrine of laches. But the rule that the statute furnishes an analogy is not inflexible, and its application will always depend upon the particular circumstances of the case. In some of the states there are statutes of limitation applicable to equitable actions, but it is held that the period of limitation of equitable actions fixed by the statute is not, where a purely equitable remedy is invoked, equivalent to a legislative direction that no period short of that time shall be a bar to relief in any case, or preclude the court from denying relief] in accordance with equitable principles, for unreasonable delay, although the full period fixed by the statute has not elapsed since the cause of action accrued.” (See, also, cases cited.) In Delavan v. Duncan, 49 N. Y. 488, the court say: “Under such circumstances the plaintiff had no equitable right to watch and wait during the period of the statute of limitations to avail himself of the benefit of the contract if advantageous to him, but absolved therefrom if otherwise.” In Calhoun v. Millard, 121 N. Y. 69, this question is fully discussed. This case was decided in 1890, and the court, in a unanimous opinion, say: “Courts of equity, it has been said, act not so much in analogy to as in obedience to statutes of limitation of legal actions, because where the legal remedy is barred the spirit of the statute bars the equitable remedy also. In the present case the cause of action for the cancellation of the bonds was not barred by the ten years statute applicable to equitable actions. But a period of nine years had elapsed, after the bonds were issued, before the commencement of the action. But we apprehend that the period of limitation of equitable actions fixed by the statute is not, where a purely equitable remedy is invoked, equivalent to a legislative direction that no period short of that time shall be a bar to relief in any case, or precludes the court from denying relief, in accordance with equitable principles, for unreasonable delay, although the full period of ten years has not elapsed since the cause of action accrued. The ten years’ limitation was primarily designed to shield defendants. (Buffalo etc. R. R. Co. v. Dudley, 14 N. Y. 352.) And it must be true that a court, in the exercise of its equitable jurisdiction, could not entertain or enforce a cause of action barred by the statute, and not within any exception, acting upon any general equitable considerations. But in enforcing purely equitable remedies, depending upon general equitable principles, unreasonable and inexcusable delay is an element in the plaintiff’s case- which a court of equity always takes into consideration in exercising its discretion to grant or refuse relief, and is not a mere collateral incident. Where there is a remedy at law whereby the plaintiff can prosecute or defend his legal right, the refusal of relief leaves the parties where they were. If there are special circumstances which may change the situation of the plaintiff to his injury, unless the equitable remedy is interposed, this fact may be considered. But the right of the court to deny relief, upon equitable grounds, for long delay, although short of the statute period of limitation, is in the nature of a defense, and is not, we think, taken away by the statute. There may be a well-founded distinction between the case of an application for an equitable remedy in aid of or to enforce a legal right not barred by the statute, and the case where an exclusively equitable remedy is sought, such as to restrain proceedings at law, or, upon the principle quia timet, to deprive an adversary of the muniment of his alleged legal right, which he inequitably retains. In cases of the latter class, long delay or acquiescence, although short of the statute period for the limitation of equitable actions, may be a ground for refusing relief. (Pomeroy’s Equity Jurisprudence, § 817.) The cancellation of securities is a purely equitable remedy, and cannot be claimed as an absolute right, nor is it applied for or awarded in aid of a legal right or title. . We conclude, therefore, that it was within the power of the court to dismiss the complaint, so far as relief was sought for a cancellation of the bonds, on the ground of delay in bringing the action. The circumstances justified the conclusion on this branch of the case.” (See, also, Reynolds v. Sumner, 126 Ill. 58; 9 Am. St. Rep. 523, and note, with authorities cited therein.)
It may be said that we have the code practice, in which actions of law and equity are merged; that we have but one form of action, either in law or equity. But does it follow, as a consequence, that the principles of equity jurisprudence, so long and everywhere in vogue, are abrogated? Is the rule that a party seeking the interference of a court of equity in the enforcement of a contract must show himself “ready, desirous, prompt, and eager,” which has become a maxim of equity jurisprudence, abrogated by the adoption of the code practice, the merging of law and equity into one tribunal, and providing for but one form of actions in law and equity? Shall it be said in this state that a party shows himself to be sufficiently “ready, desirous, prompt, and eager,” provided that, in strictly equitable cases, like the one at bar, he brings his suit within the period prescribed by the statute of limitations? And, if he brings his suit within the statutory period, will it be said that he is not, and cannot be, guilty of such laches as will debar his right to relief in strictly equity cases? New York is a code state. Her courts do not so hold, as will be seen by the cases quoted above. Nor do any of the authorities that we have been able to examine so hold. We do not think the position tenable. (Waterman on Specific Performance, 628; Hall v. Russell, 3 Saw. 506; Fed. Cas. No. 5943.)
In the consideration of this case we have deemed it unnecessary to treat as important the acts of defendant or the plaintiff occurring prior to the alleged accruing of his right of action, although the record and findings show that he failed to comply therewith in many important respects. We have confined the consideration to the question as to whether the plaintiff was guilty of inexcusable laches in commencing his suit for specific performance after he was ousted from the possession of the real estate in question, and knew that the defendant would not comply with the contract of sale thereof unless compelled so to do. The plaintiff, as the record shows, and as he admits in his testimony, waited for three and a half years after his cause of action accrued, without any excuse, before he instituted this suit. He offers no excuse for this delay. He testifies that he was able at all times to obtain money so to do if he had so desired. During all this unexplained and unexcused delay, the circumstances and conditions of the property were rapidly changing, and increasing in value. Under these facts and circumstances, we think it would be inequitable to decree specific performance of the contract in this case. The judg ment of the lower court is therefore reversed, and the cause remanded for new trial.
Reversed.
De Witt, J., concurs.
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De Witt, J.
— Plaintiff’s complaint is for damages for personal injuries sustained while riding on defendant’s horse streetcar. The district court, upon the trial, directed the jury to find for the defendant. Plaintiff appeals from the judgment assigning error in that order. Such order must be treated as in the nature of a nonsuit, in this respect, that, if the evidence tended to prove plaintiff’s cause of action, it will be taken on appeal as proved. (McKay v. Montana Union Ry. Co., 13 Mont. 15; Creek v. McManus, 13 Mont. 152; Mayer v. Carrothers, 14 Mont. 274.)
There was evidence that the plaintiff, a boy five years of age, was riding on the front platform of the horsecar, with the knowledge of the driver, and that the ear struck a stone and jolted the plaintiff off) and ran over him, inflicting the injuries complained of.
One ground of the motion to direct the jury to find for the defendant was, that it was not shown that the defendant was guilty of any negligence. We are of opinion, however, that to allow a boy of such tender years to ride on the front platform of a horsecar was evidence of negligence sufficient to go to the jury.
Upon this point we quote as follows from Pittsburgh etc. Ry. Co. v. Caldwell, 74 Pa. St. 421: “It is clear, from all the evidence in this case, and under the instructions of the court, the jury must have found that the accident which resulted in the loss of the plaintiff’s leg would not have happened if shehad not been permitted to ride on the front platform of the defendant’s car. If the rules of the company had not forbidden it there can be no doubt that it was gross negligence for the driver to allow children as young as the plaintiff and her companion to get on the front platform and to ride there. If they got on without his permission, instead of consenting that they might remain on the platform, it was his duty to compel them to go on the inside of the car, or to stop and put them off; and, if the plaintiff was injured by his negligence in allowing them to ride on the platform, the company is clearly liable for the injury, unless the plaintiff’s negligence contributed to produce it. But negligence cannot be imputed to one who has not sufficient capacity or discretion to understand the danger and to use the proper means to guard against it. In this case it is conceded that negligence is not imputable to the plaintiff, who was an infant of tender age, and not of sufficient capacity to foresee the danger to which she was exposed.” (See, also, the following cases cited by appellant, which are in pbint: Muelhausen v. St. Louis Ry. Co., 91 Mo. 344; West Philadelphia Ry. Co. v. Gallagher, 108 Pa. St. 524; Philadelphia City Ry. Co. v. Hassard, 75 Pa. St. 367; Metropolitan St. Ry. Co. v. Moore, 83 Ga. 452. See, also, O’Mara v. Hudson Ry. Co., 38 N. Y. 445; Robinson v. Code, 22 Vt. 213; Lynch v. Murdin, 1 Q. B. 29; 2 Thompson on Negligence, 1180, et seq; Pay on Negligence c. 36, and cases cited; Shearman and Redfield on Negligence, § 49.) We are satisfied that, under the authorities, the evidence of negligence in this respect was sufficient to go to the jury.
Our view upon this point of the motion to direct a verdict in favor of respondent disposes of the whole of that motion, except the sixth ground thereof, which is as follows: “ That the evidence shows that the negligence complained of, if any, was the negligence of the independent contractor, Vaughn, or his servant, and not that of the defendant or his servant or agent.”
The question presented is whether the person immediately causing the injury to plaintiff stood in £he relation of a servant of defendant, or whether he were the servant of an inde-pendant contractor, for whose acts of negligence the defendant was not liable. The' defendant was the owner of a streetcar franchise in the city of Great Falls. He had built a car track extending over six or seven blocks, and had one or two cars on the track. Defendant lived in Helena. J. O. Gregg of Great Falls was his agent, acting for him in relation to this streetcar franchise, track, and cars. Greggs was also one of the owners of the railway. Defendant Barbour was trustee of the railway. He was sued apparently as trustee, and also personally. It seems that the railway people were not operating their line very extensively, for Mr. Gregg testified that he, as agent for the trustee, hired one Vaughn to run the car one trip a day. Gregg says that the contract with Vaughn was that he was to be paid so much money per month to haul the car over the line once a day each way, and to furnish a driver. In pursuance to this arrangement Vaughn furnished the driver and was moving the car along the track at the time the plaintiff was injured. Defendant contended that by virtue of this employment Vaughn was an independent contractor, and that defendant was not liable for the negligence of Vaughn’s driver. Mr Gregg, however, testified that there was nothing as to collecting fares in this contract with Vaughn. In fact fares were not collected.
Without expressing any opinion as to whether these railway people could lease their road and rolling stock to another, for the purpose of operating it, it is sufficient to note here that no such lease was made. The track and rolling stock were not delivered into the possession of Vaughn at all. He did nothing more than to haul the car one trip a day.
Mr. Gregg further testified that he spoke to the plaintiff’s father in regard to keeping his boys away from the cars; that he also told other parties to keep their boys away, that they did not want the boys there. He said that he notified those living alongtheear line to keep their small boys away; that they interfered with the running of the cars by stealing almost the cars, carrying off pieces, breaking out windows, pushing the cars and jumping on them, and interfering with the business of the railway people in every way, and also breaking the padlocks they had put on the cars. Gregg also said: “I have always objected to the boys riding on the cars when they were being driven; I had no direct control over the drivers, but I ordered Mr. Vaughn to see that the drivers kept the bpys away; I was trying to protect the property; I had driven the plaintiff off the cars several times. The contract with Vaughn was that I was to pay him so much money a month to haul the car over the line each way once a day, and furnish a driver; I had nothing to do with the drawing of the car backward and forward, or directing the manner in which it should be done. I sometimes spoke to Vaughn about matters concerning the protecting of the property and driving the boys off; whenever I saw the boys running about the cars, either when being driven or standing idle, I chased them away; I don’t remember that I told the drivers to keep them away, but I remember telling him one day to skin them with his whip; there might have been other times that I gave these orders, but I don’t remember any particular date; whenever I saw the boys, if the driver was around, I would speak to the driver, but I always made it a point to see Mr. Vaughn about it, and Vaughn and myself very frequently went over; we chained the cars once or twice to keep the boys away.
Under these facts the district court held that Vaughn was an independent contractor, and that the defendant was not liable for his negligence.
To draw the distinction between independent contractors and servants is often difficult; and the rules which courts have undertaken to lay down on this subject are not always simple of application. A rule as often quoted as any is stated in the syllabus of the case of Bibbs v. N. & W. R. R. Co., 87 Va. 711, after an able review of the authorities, as follows: “Independent contractor is one who renders service in the course of an occupation, and represents the will of his employer only as to the result of his work, and not as to the means whereby it is accomplished, and is usually paid by the job.”
Brackett v. Lubke, 4 Allen, 138, is also a leading case. The opinion states as follows: “The distinction on which all the cases turn is this: If the person employed to do the work carries on an independent employment, and acts in pursuance of a contract with his employer by which he has agreed to do the work on certain specified terms, in a particular manner, and for a stipulated price, then the employer is not liable. The relation of master and servant does not subsist between the parties, but only that of contractor and contractee. The power of directing and controlling the work is parted with by the employer, and given to the contractor. But, on the other hand, if the work is done under a general employment, and is to be performed for a reasonable compensation or for a stipulated price, the employer remains liable, because he retains the right and power of directing and controlling the time and manner of executing the work, or of refraining from doing it, if he deems it necessary or expedient. This distinction is recognized in the cases adjudged by this court. (Sproule v. Hemmingway, 14 Pick. 1; Stone v. Codman, 15 Pick. 299; Hilliard v. Richardson, 3 Gray, 349; Linton v. Smith, 8 Gray, 147.)”
In 2 Thompson on Negligence, page 909, et seep, we find the following:
“ Sec. 35. In every case the decisive question is, Had the defendant the right to control, in the given particular, the conduct of the person doing the wrong? On this question the contract under which the work has been done must speak conclusively in every case, reference being had, of course, to surrounding circumstances. This being so, the mere fact that the agent who did the injury carried on a separate and independent employment will not absolve his principal from liability. (Brackett v. Lubke, 4 Allen, 138; Sadler v. Henlock, 4 El. & Bl. 570.) ‘If such were the rule a party would be exempt from responsibility even for the negligent acts of his domestic servants, such as his cook, coachman, or gardener.’ ”
“ Sec. 39. Perhaps the most usual test by which to deter mine whether the person doing the injury was a servant or an independent contractor is to consider whether he was working by the job or at stated wages — so much per day, week, or month. (Schular v. Hudson River R. Co., 38 Barb. 653.) A person who works for wages, whose labor is directed and controlled by the employer, either in person or by an intermediate agent, is a servant, and the master must answer for the wrongs done by him in the course of his employment. A person who, for a stated sum, engages to perform a stated piece of labor in which he is skilled, the proprietor of the work leaving him to his own methods, is an indepen ent contractor; the proprietor does not stand in the relation of superior to him, and is not answerable for the wrongs done by him or his servants in the prosecution of the work, unless special circumstances exist making him so. (Morgan v. Bowman, 22 Mo. 538.) The rule has been applied so as to exempt a railway company from liability for the negligence of a contractor who had engaged to do a piece of filling at twenty cents per yard, although the company furnished track, trestle, cars, mules, and drivers. (Central R. Co. v. Grant, 46 Ga. 417.) The fact that the employee was hired, not for a definite time, but to perform a particular job, does not, however, of itself negative the relation of master and servant, for under such a contract the employer may well retain full control over him; and it must constantly be borne in mind that the power to control, on the part of the employer, is the essential fact establishing the relation.”
We also find it staled in Shearman and Bedfield on Negligence, sections 76 and 77, as follows:
“Sec. 76. Although, in a general sense, every person who enters into a contract may be called a ‘contractor/ yet that word, for want of a better one, has come to be used with special reference to a person who, in the pursuit of an independent business, undertakes to do specific jobs of work for other persons, without submitting himself to their control in respect to all the petty details of the work. It is not altogether easy to give an accurate definition of the word ‘ contractor/ as it is used in the reports, and as we shall use it hereafter; but we think we have approximated to accuracy. The true test, as it seems to us, by which to determine whether one who renders service to another does so as a contractor or not, is to ascertain whether lie renders the service in the course of an independent occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished.”
“Sec. 77. One who has an independent business, and generally serves only in the capacity of a contractor, may abandon that character for a time, and become a mere servant or agent, and this, too, without doing work of a different nature from that to which he is accustomed. If he submits himself to the direction of his employer as to the details of the work, fulfilling his wishes not merely as to the result, but also as to all the means by which that result is to be attained, the contractor becomes a servant in respect to that work. And he may even be a contractor as to part of his service, and a servant as to a part. Whether he works as a contractor or as a servant is a question of mingled law and fact, which it is scarcely possible to decide by any fixed rule which will accurately govern those cases where the one occupation borders closely upon the other. In most instances the distinction is easily observed.”
Applying the principles of the decisions to the facts of the case at bar we cannot hold that Vaughn was an independent contractor.
The question raised by the appellant as to whether the railroad people could, under their charter, delegate the running of their cars to another, is not necessary to discuss, for the reason that we are of opinion that Vaughn was not in the relation of an independent contractor. Neither the franchise, the roadbed, or the rolling-stock was leased to Vaughn or given into his control. He was simply employed by the month to run a car one trip a day. We cannot understand that his position differed materially from that of a driver employed to drive a car ten trips or twenty trips a day. All drivers are employed to perform certain services, and to some extent they perform them in their own way, as does one’s cook, his gardener, or his coachman, as remarked in the case of Brackett v. Lubke, supra.
Referring again to the rule as laid down in Bibbs v. N. & W. R. R. Co., supra, the respondent argues that Vaughn represented the will of his employer only as to the result of his work, and not as to the manner of its performance; that is to say, that Vaughn contracted to deliver to his employer the result of putting the car over the track once a day by his own methods. But so it might be argued that one’s coachman contracts to produce the result of conveying his master from his house to his office, or wherever he may wish to go, or one’s cook contracts to produce the result of placing before his master his daily food. But such is not the sense in which the word “ result ” is used in the rule. We think that the word “result,” as so used, means a production or product of some sort, and not a service. One may contract to produce a house, a ship, or a locomotive; and such house, or ship, or locomotive produced is the “result.” Such “results” produced are often, and probably generally, by independent contractors. But we do not think that plowing a field, mowing a lawn, driving a carriage, or a horsecar, for one trip or for many trips a day, is a “ result” in the sense that the word is used in the rule. Such acts do not result in a product. They are simply a service.
In addition to these views mentioned we have the fact in this case, that the railway people did not part with the possession or the right of possession or control of the railway plant. It would perhaps be difficult to draw a clear distinction between the relations which Mr. Gregg held to the railway property and the drivers and that of any person admittedly having supervision over them. No superintendent assumes control over every minute detail of an employee’s work. In all work which demands sufficient intelligence to require a man instead of a machine the man must be left to direct his own movements to some extent. But it is clear, from our review of Mr. Gregg’s testimony, that he did not consider the driver of the car as the servant of a contractor independent of the railway people. (See his testimony cited above.) Mr. Gregg qualified his statements somewhat by an attempt to disclaim any supervision of the actual moving of the car, but we think that his testimony, as a whole, did not place Vaughn in the position of an independent contractor.
After stating any rule which is to determine whether one is an independent contractor or a servant it is very easy, by a little casuistry, to construe any person who performs a service to be an independent contractor. We have endeavored to point out such dangers. We think that the district court fell into just such a mistake. If Vaughn, in this case, is an independent contractor, a very few steps farther in the same direction of construction would make all servants independent contractors. We are wholly satisfied that Vaughn was not an independent contractor, but, on the contrary, stood in the relation of an employee, for wages, of defendant in this case.
The judgment is therefore reversed, and the case is remanded for a new trial.
Reversed.
Hunt, J., concurs.
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] |
Pemberton, C. J.
— The appellant contends that this action was properly brought under section 1260, page 997, of the Compiled Statutes. This section is as follows:
“Sec. 1260. In any suit hereafter commenced for the protection of rights acquired to water under the laws of this territory the plaintiff may make any or all persons who have diverted water from the same stream or source parties to such action, and the court may in one decree settle the relative priorities and rights of all the parties to such suit. When damages are claimed for the wrongful diversion of water in any such suit the same may be assessed and apportioned by the jury in their verdicts, and judgment thereon may be entered for or against one or more of several plaintiffs, or for or against one or more of several defendants, and may determine the ultimate rights of the parties between themselves.”
But we think this contention cannot be maintained. This is not a suit “for the protection of rights acquired to water.” It is not a suit to “settle the relative priorities and rights of all the parties” to the water or the use thereof of the stream mentioned. It is a suit at law for damages to crops resulting from the alleged joint torts of the defendants. There is no allegation in the complaint that would authorize the court to grant equitable relief; nor does the evidence show that plaintiff! is entitled to such relief. To entitle the plaintiff’ to equitable relief the allegations of the complaint should show him to be entitled thereto, and the proof should support such allegations. (Pomeroy’s Remedies and Remedial Rights, 2d ed., §84.)
In Blaisdell v. Stephens, 14 Nev. 17, the court say: “ The general principle is well settled that when two or more parties act, each for himself, in producing a result injurious to plain tiff, they cannot be held jointly liable for the acts of each other.”
In the case just cited the court say: “ It does not appear from the evidence that the defendants acted in concert, or that the act of either in any manner produced the act of the other.”
This case is almost exactly similar in pleadings and proof to the one at bar, and the court held that a nonsuit, should have been granted. Section 1260, above quoted, we think contemplates an equitable action, in which the court may settle in one decree the priorities and rights of all the parties to the water or the use thereof; and when damages are claimed in such action, for the wrongful diversion of water, the same may be assessed and apportioned by the jury, and judgment therefor may be entered for or against one or more several plaintiffs or defendants, and the ultimate rights of the parties may be determined in such action. But in order to enable the jury to assess and apportion the damages against one or more several defendants, and authorize a separate judgment therefor, there must be evidence showing what particular damage any particular party has committed. Such verdicts and judgments could not be rendered without evidence showing what damage had resulted from the separate acts of the parties. There is no such evidence in this case, even if it were brought under said statute, as to authorize such separate verdicts and judgments against the separate defendants.
We are of the opinion that this is purely an action at law against joint tort-feasors for damages alleged to have resulted from their joint acts; that there is nothing in the complaint or evidence to authorize the granting of equitable relief, or any relief under section 1260, as contended by the appellant.
The judgment appealed from is affirmed.
Affirmed;
De Witt, J., and HUNT, J., concur.
|
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Pemberton, C. J.
— The appellant contends that the verdict is not supported by the evidence, in that it appears from the evidence of the plaintiff, clearly, that, if the handcar was defective and dangerous, the plaintiff had full knowledge thereof; that he used it voluntarily; that he did not use it with proper care; that he never refused to use the car, and that no threats or inducements were used by the defendant or the foreman to induce him to use it. This contention requires an examination of the testimony offered by the plaintiff.
It appears from the plaintiff’s own testimony that he was a man of considerable experience in the kind of work he was employed in doing at the time he was injured, he having been engaged in this character of work for about three years before this. He states in his complaint that the car was defective and dangerous, and that, about fifteen days before the accident, he so informed the foreman. He swears that on the day of the accident, and just before it occurred, he told the foreman “ that the car was unsafe, and that he was afraid it would kill somebody,” and that the foreman replied: “ Get on that car. It is all right. We will soon get a new one.” In another place he says: “The foreman said he was going to get a new car in a few days. He told me to get on the car and use it as carefully as we could, and get along the best we could.” In describing the condition of the car at the time he was using it the plaintiff says: “As to what was the trouble with the car, as near as I can judge, she used to wabble. Her boxes were too loose, and she would wabble from one side to the other, and she was too loose, and out of running order. Furthermore, there was no brake on the car — that is, that could be used. It was an old car, and, in fact, I could n’t even find the date on it, or the number of it. It was an old car, being, I guess, used for many years. I could n’t say how many. Her wheels were what I would call ‘ wood and iron,’ and here, where the iron runs out from where it is on the axle, the wood was loose; the wheels were wood, along with the iron inside the iron, and where the wood fastened into the boxing around the axle some of the wood was loose, and would work in and out. That was the ear that I was on the morning that I was injured.” The plaintiff also swears that he had heard of this car jumping the track before this, and on one occasion it jumped the track when he was present, when the evidence shows it was being run at about four miles an hour. At the time of the accident plaintiff says they were not going any “faster than between five and seven miles an hour, as near as he could judge.” The plaintiff says that when he was told to get on the car by the foreman he could not say whether the car was all right or not, but supposed the foreman knew more about it than he himself did, because he was the foreman, and was supposed to know more about it than he did. This is substantially all that plaintiff’s testimony shows that the foreman did or said to induce him to use the car.
Martin McManimee, the section foreman, was introduced ag a witness on the part of the plaintiff. He and plaintiff are cousins. His testimony corroborates that of plaintiff in the main, as to the condition of the car. He says plaintiff, just before the accident, spoke to him about the car, saying it was not safe. He says: “ I told him we had to do the best we could. I told him to get on the car, and go to Garrison. I expected that any time.” In another place he says: “The condition of the car on which McAndrews was riding that morning was that for months before it was not fit for any white man to put it on a track.” In another place this witness says: “McAndrews had complained about this car,'and all the men on that section had made the same complaint. It had frequently left the track with me before this accident. It is easy for any man to know how she would leave the track.” He says the axle was bent. He says, at the time of the accident, “ she was running, perhaps, between six and seven and eight miles an hour; not faster.” It appears that there were two cars on the track going to Garrison at the time of the accident; that plaintiff was on and in charge of the front car, and the foreman in charge of the other; that the cars were running very closely together — so closely that they frequently struck each other — before the accident. He says that this car left the track with him once, about two weeks before the accident, going at the rate of not more than four miles an hour, and that plaintiff was present. He says the car had a “ bent axle,” and “ was out of repair in every shape from the first day she came to Garrison.” McManimee further testifies: “ When McAndrews complained, I told him that Sawyer always told me that he would send a new car as soon as he could get one, and to get along the best way he could until such time. Sawyer told me he would send a new car as soon as he could. I did not know when he would send it. I ordered McAndrews to go ahead anyhow, and use the car. I did not threaten to discharge him if he did not use the car.” He further swears that he never in his life “told a man that he would have to take his time if he did not use a car.” Again, this witness says: “ Several times before this, McAndrews had said that the car was unsafe, which I knew, but he never refused to use it — that is, straight out refused; he always grumbled a little.” In answer to a question, the witness says he did not order plaintiff to take this car against his will, for he says: “ I could n’t order any man against his will.”
From the foregoing statement of the evidence offered by the plaintiff it is evident that he had full knowledge of the condition of the car at the time of, and for a long time prior to, the accident, and that he continued to use it, knowing that it was dangerous to do so. This would certainly be a bar to his right of recovery, unless he has shown that the defendant promised to get a new car, and held out to him some sufficient inducement or assurance to continue to use the car in its defective condition, and that he did continue to use it on account of such inducement or assurance. It is claimed by plaintiff that the foreman, having promised to secure a new car in place of the defective one, and having told him to go ahead and use the old one and do the best he could, exercising proper care in the use thereof, constitutes such promise to get a new car, and such an inducement, as justified him in continuing to use the dangerous one.
The law governing this contention is thus stated by Mr. Justice Harlan in Hough v. Texas etc. Ry. Co., 100 U. S. 213: “There can be no doubt that, where a master has expressly promised to repair a defect, the servant can recover for an injury caused thereby within such a period of time after the promise as it would be reasonable to allow for its performance, and, as we think, for an injury suffered within any period which would not preclude all reasonable expectation that the promise might be kept.” But this rule isa qualified one. If the machinery is not only defective, but so obviously dangerous that no ordinarily prudent man would assume the risk of using it, and the employee does use it, knowing its absolutely and obviously dangerous condition, and the dangers of using it, the master is not liable, notwithstanding the promise to remedy the defect. This qualification to the rule is well stated in Railway Co. v. Watson, 114 Ind. 20, in the following language: “Where an employee knows that the danger is great and immediate, such as a reasonably prudent man would not assume, he cannot recover for an injury, even though he remained in the employer’s service in reliance upon the latter’s promise to remedy the defects winch produced the danger.” (2 Thompson on Negligence, 1011; Patterson v. Railroad Co., 76 Pa. St. 389; Kane v. Railroad Co., 128 U. S. 91; 9 Sup. Ct. 16; Furnace Co. v. Abend, 107 Ill. 45.)
The plaintiff in this case testifies that he knew the condition of the car; said somebody would get killed using it; he had known its condition for a long time; remained in the defendant’s service long after the alleged promise to get a new car; had seen the car jump the track going at a rate not faster than four miles an hour; says the foreman told him to use the car with great care, and do the best he could until he could get a new one; he never refused to use the car; he was never threatened to be discharged if he did not use it. McManimee, plaintiff’s cousin, says the car was so defective that anybody could see it; “that no white man would put it on a track”; that he told plaintiff to use it and to do the best he could, using great care, until he could get a new one. Notwithstanding plaintiff’s familiarity with the condition of the car, his knowledge of the fact that it had jumped the track going at a rate not to exceed four miles an hour, on the morning of the accident, immediately after saying that the car was so dangerous that it would kill somebody, he got on the car, in charge thereof, and propelled it at a rate of speed somewhere between five and eight miles an hour, over the bridge where the car left the track, and he incurred his injuries. Prom this view we fail to see, and are unable to find from the evidence, any support for the contention that he was induced to remain in the service of defendant and use,the dangerous car, by the promise or assurance of the foreman to furnish a new one as soon as he could get it. And, further, it appears, if he did so, that he disregarded the admonition of the foreman to exercise extraordinary care in the use of the car, and that he was guilty of contributory negligence in propelling this dangerous car at such a rate of speed in going over a bridge forty feet high, where the accident occurred.
There are many authorities that hold that where an employee, having knowledge of the defective condition of machinery with which he is required to work, gives notice of such defective condition to the employer, and is induced to remain by the promise of the employer to repair the same, he may recover for injuries sustained, notwithstanding his knowledge of the condition of such machinery, especially where the danger is not absolute and immediate. But in many of such cases the right to recover is based upon the express promise to repair. But we think the evidence in the case at bar does not bring it within this rule. In the case at bar there was no express promise to repair, or get a new car, and no such assurance or promise to do so was relied upon by plaintiff. . The. most that can be said is that the foreman informed plaintiff that he had asked for a new car, that he expected it at any time, and directed the plaintiff to use the car in question with, great care, until he could get a new one. Besides, we think the evidence very clearly shows that plaintiff was guilty of such recklessness in the use of the car, especially in the manner in which he was using it at the time of the accident, as no reasonably prudent man would be guilty of, knowing, as he did, its dangerous condition; and that, by such action, he so far contributed to his own injury as to defeat his right of recovery in this case. The plaintiff knew perfectly the defective and dangerous condition of the car, and the risk he assumed in using it. He could not shut his eyes to these well-known things, and recover for injuries sustained by reason of his want of ordinary prudence. Knowing the condition of the car, as plaintiff did, no reasonably prudent person would have asr sumed the risk of using the same in the manner plaintiff did, even upon any promise made to furnish a new car by the foreman; The plaintiff cannot recklessly use dangerous machine ery, and assume recklessly the risk of so doing, and then recover on the promise of defendant to repair or furnish new machinery, if such promise had been made.
It is unnecessary to consider other assignments of error in this case, especially those as to the instrnctions. As the instructions for the plaintiff were given upon the theory that the evidence was sufficient to authorize a recovery, they were erroneous.
We think the court erred in overruling a motion for a new trial.
The judgment is reversed and cause remanded for new trial.
Reversed.
Hunt, J., concurs.
De Witt, J., having been of counsel, did not sit in the case.
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Harwood, J.
— The trial court sustained the demurrer, evidently because it reached the conclusion that the complaint failed to state facts showing plaintiffs’ acquisition of an interest in said irrigating canal, or water therein conveyed, to the extent of twenty inches, as an appurtenance to plaintiffs’ eighty acres of land. In other words, the court, no doubt, concluded that the complaint failed to show that any such water right, as claimed by plaintiffs, was appurtenant to their said land when they acquired the same from defendant. Are the facts alleged, if admitted or established by proof, sufficient to warrant judgment declaring plaintiffs owners of an interest in said irrigating ditch or canal, and the waters therein carried, to the extent of twenty inches, accompanying such judgment with an injunction forbidding defendant from interfering with plain til's’ perpetual use of so much of the waters of said ditch ?
According to the allegations of the complaint, defendant, being the owner of a large quantity of arid land situate in Yellowstone county, about the 1st of May, 1882, commenced the construction of a large irrigating ditch or canal, about forty miles in length, thereby to appropriate water from the Yellowstone river, to make its said land available for agricultural purposes. It is further alleged that, at the time plaintiff A. M. Crawford bought eighty acres of said land from defendant, it was selling its land “by representing that right to needed water through said canal, for purposes hereinbefore stated [that is, for irrigation], inured therewith to purchasers of said land, and that such needed water, therefore was, assured by means of said canal”; that about the 18th of October of the same year, 1882, plaintiff A. M. Crawford, relying on said representation, entered into a contract to purchase said eighty acres of land from defendant. It is not alleged that the contract for sale and purchase contained any stipulation whereby defendant agreed to assign or grant to plaintiff any interest in said ditch, or the waters thereof. Nor is said contract exhibited as part of the complaint, or pleaded in effect. Nor does the deed executed pursuant to said contract contain a grant of any interest in said ditch, or water therein conveyed. The contract, according to the allegations of the complaint, was made, and plaintiff A. M. Crawford entered into the possession of said eighty acres of land, long prior to the time said irrigating ditch or canal was completed; hence, no water was used upon said land, through said irrigating ditch, by defendant of any other party, prior to the sale of said land to plaintiff. The allegations of the complaint are insufficient to show that said irrigating canal, or any interest therein, ever became or was an appurtenance to said eighty acres of land. So far as the allegations of the complaint show, when plaintiff purchased said land from defendant said irrigating canal “was in noway connected with the enjoyment or use of the lot; and a right not thus connected cannot be annexed as an incident to land, so as to become appurtenant to it.” (Linthicum v. Ray, 9 Wall. 241.)
To adjudge plaintiffs the owners of an interest in defendant’s irrigating ditch, to the extent demanded, would, in effect, extend their acquisition to things beyond, and unconnected with, the property described in the conveyance, or the contract to convey; and that extension would be founded on parol evidence that certain representations were made by defendant as to its purpose of constructing such an irrigating canal to make water available to irrigate its lands — representations not even alleged to have been made to plaintiff when he purchased said tract of eighty acres, nor incorporated in any of the papers executed in reference to plaintiffs’ purchase, but merely alleged to have been made by defendant during a period which covers the date of plaintiffs’ purchase. A judgment to that effect, founded on such a showing, would be entirely subversive of the principles of law governing contracts and conveyances relating to realty.
The allegation that plaintiffs enjoyed the use of twenty inches of water from said ditch since the season of 1884 does not constitute a plea of adverse possession, when read in connection with other facts shown by the complaint, to wit, that defendant is and has been proprietor and has exercised control and dominion over said irrigating canal since its construction.
If plaintiffs have enjoyed the use of twenty inches of water taken out of said ditch, as alleged, that enjoyment must have been by sufferance of defendant, who exercised dominion over the irrigating canal. If one fetches water to a place, and then, under such conditions, having control over the vessel wherein the water was conveyed, suffers another to partake thereof, can the latter claim that he is using adversely? Such is the situation shown by plaintiffs as to their use of said water, and a use under those circumstances is not adverse possession. If this were a case where plaintiffs, having shown their acquisition of said land, relying on representations of defendant that it would, by construction of an irrigating ditch, bring water into the vicinity of said laud, so as to be available for irrigation thereof, and that plaintiffs had complied with the lawful conditions and requirements imposed by said company on the use of said water, and, having so complied, or offered compliance, defendant refused or neglected to allow plaintiffs the use of water from said ditch, or diverted the same to other and later settlers, it would constitute an entirely different complaint, to which the foregoing opinion would not be applicable, for plaintiffs have presented no such case.
In our judgment the trial court was correct in holding that the allegations of the complaint were insufficient to enable plaintiffs to bring within the boundaries of their acquisition the valuable interests which they demand. The judgment will therefore be affirmed.
Affirmed.
PembertoN, C. J., and De Witt, J., concur.
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] |
Per Cueiam.
— The judgment of the district court in this case in favor of defendant was affirmed by this court on appeal on January 29, 1894 (14 Mont. 81).
Upon return of remittitur to the district court defendant, Daniel Maxey, filed his verified memorandum of costs, on appeal to the supreme court. Plaintiff then moved to retax these costs as to one item. This motion was sustained. From that order defendant has appealed to this court. The respondents on this appeal now move to dismiss the same, on the ground that such order is not appealable. They rely upon Rader v. Nottingham, 2 Mont. 157, and Orr v. Haskell, 2 Mont. 350. (See, also, First Nat. Bank v. Neill, 13 Mont. 377.) In these cases it was held that an order taxing or retax-ing costs was not itself appealable, but that the same could be reviewed on an appeal from the judgment. But the costs there considered were the original costs of the case, which went into the judgment of the district court in the case. The costs now in question are not costs which entered into the judgment pronounced by the district court; nor could they in any manner be a part of the original judgment, for the reason that they were incurred after such judgment was rendered, and upon appeal from the same. The original judgment was complete before the appeal was taken, and must have been a judgment before appeal could have been taken therefrom. Therefore, the costs of appeal from the judgment could not have been reviewed on such appeal, for they were not part of the judgment of the district court, and could not have been. There is not now an appeal from the original district court judgment to bring up the costs under consideration, because that appeal has already been heard and determined. Thus the cases above cited are wholly inapplicable. The order retaxing costs of appeal on remittitur filed in the district court is a special order made after final judgment, and iu the nature of things could be nothing else. It is therefore appealable, and the motion to dismiss the appeal is denied.
Another point made upon the motion to dismiss raises the consideration of the merits of the appeal, and will not be considered now.
Motion denied.
All concur.
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De Witt, J.
— We are of opinion that the instrument in writing, signed by the lower appropriators in 1871, was a grant to the association of the upper appropriators, then called the Upper Middle Creek Ditch Company, of the usufruct of the water of Middle creek, as appropriated and owned by the lower appropriators at the time of the grant. Such usufruct was of the nature of real estate. (Quigley v. Birdseye, 11 Mont. 439; Barkley v. Tieleke, 2 Mont. 64; Sweetland v. Olson, 11 Mont. 27; Black’s Pomeroy on Water Rights, §§ 60, 61.)
The granting words of that instrument are, “do hereby give and grant.” The consideration of the grant was the furnishing by the upper appropriators to the lower ones of the use of a quantity of water from the West Gallatin river equal to that which the lower appropriators then owned. The consideration was delivered, in that the supply ditch was finished in June, 1872.
Respondents’ counsel argue that one cannot own the corpus of water, and therefore cannot sell the same. But the lower appropriators did not purport to own or sell the corpus of the water. They had appropriated the water for a beneficial use, and, when they sold to the upper appropriators, they described the subject of the grant as “our rights, respectively, to the use of the water naturally flowing in Middle creek, to the extent and capacity of said supply ditch of said company, and the waters actually supplied by it into Middle creek.”
The grantors, therefore, in that instrument clearly conveyed the usufruct of the water. (Gould on Waters, § 304.) They did not convey the lands upon which the water had been formerly used, nor did they convey the ditches in which it had flowed; for the land they retained themslves, and the ditches would have been of no value to the purchasers, who were about to use the water at a place higher up the creek. One has a right to change the place of diversion of water, and also the beneficial use thereof. (Woolman v. Garringer, 1 Mont. 535.) That was done in this case by the conveyance of 1871. The use was not enlarged or extended by that conveyance. The grantors conveyed, and, of course, could convey» only the use which they owned (Columbia Min. Co. v. Holter, 1 Mont. 296; Creek v. Bozeman Water Works Co., ante, p. 121), and this they did in apt terms. The instrument of 1871 was good as a conveyance between the parties thereto.
Sections 235 and 237, division 5, of the General Laws provides as follows:
“Sec. 235. Conveyances of land, or of any estate or interest therein, may be made by deed, signed by the person from whom the estate or interest is intended to pass, being of lawful age, or by his lawful agent or attorney, and acknowledged or proved and recorded as hereinafter directed.”
“Sec. 237. Every conveyance in writing whereby any real estate is conveyed, or may be affected, shall be acknowledged or proved and certified in the manner hereinafter provided.”
The instrument in question was not acknowledged, so as to entitle it to record, nor was it recorded, but section 258, division 5, of the General Laws, provides as follows: “Every conveyance of real estate, and every instrument of writing setting forth an agreement to convey any real estate, may be effected, proved, acknowledged, and certified in the manner prescribed in this act to operate as notice to third persons, shall be recorded in the office of the recorder of the county in which such real estate is situated, but shall be valid and binding between the parties thereto without such record.”
This court said in Taylor v. Holter, 1 Mont. 688: “The acknowledgment to a deed is no part of the deed, and, as between the parties to the instrument, a deed is good without acknowledgment, the acknowledgment and record being required for the protection and benefit of third persons.”
We are therefore satisfied that the contract of 1871, as between the parties thereto, conveyed to the upper appropriators the usufruct of the water as then owned by the lower appropriators.
But respondents argue that the instrument was not a conveyance as to respondents, because they were appropriators of the use of said water without notice of the conveyance mentioned, by reason of the fact of its not being recorded; and that the instrument, not being a conveyance, must be construed as an abandonment by the lower appropriators of the use of the water. The district court took this view, and excluded all evidence of appropriations made by the signers of that contract prior to the date of that instrument. These questions we will now consider.
Was the instrument void as to the respondents? A conveyance which may be good between the parties is void as to certain other persons for certain reasons.
Section 260, division 5, of the General Laws provides as follows: “Every conveyance of real estate within this state hereafter made which shall not be recorded as provided for in this chapter shall be deemed void as against any subsequent purchaser in good faith and for a valuable consideration of the same real estate, or any portion thereof, where his own conveyance shall be first duly recorded.”
Conceding that the respondents attempted to appropriate the use of the water without knowledge of the conveyance of 1871 from the lower appropriators to appellant’s predecessors, would the respondents then, either in the letter or the spirit of section 260, come within the description of persons named in that section as those against whom the conveyance is void; that is to say, are the respondents subsequent purchasers in good faith, for a valuable consideration, of the same real estate; and, if so, had they their own conveyance recorded prior to any record by appellant? Asking this question seems to answer it One purpose of the recording law is notice. If one does not record his conveyance he runs the risk of suffering a penalty. If his grantor conveys to a second and other grantee, and the second grantee first records his conveyance, the first grantee, if the conditions named in section 260 exist, suffers the loss of his estate. This is a penalty provided by law for not recording. We cannot presume that there is any other penalty. (Bird v. Dennison, 7 Cal. 299, 308, 309; Hunter v. Watson, 12 Cal. 363; Perkins v. Thornburgh, 10 Cal. 192, and cases cited; Belloc v. Rogers, 9 Cal. 128; Smith v. Williams, 44 Mich. 240; 20 Am. & Eng. Ency. of Law, 572, note 1.) The penalty for not recording being as we have indicated, we are then reduced to this inquiry in this case: It being the general rule that the conveyance is good, and there being an exception to this rule, the question is, Do the respondents fall within the exception? We are of opinion that the word “ purchaser,” as used in section 260, is not employed in the broad sense as indicating all acquisitions of title other than by descent. We think that the word as here used means simply a buyer in the popular sense of that term. The whole spirit of the recording laws indicates this. We think the section means a buyer of the same property from the same grantor, in good faith, and for a valuable consideration, and such- a buyer as records his conveyance prior to any record of conveyance to the first buyer.
An appropriator of the use of water subsequent to a convey- anee of the use of the same water by an owner thereof to his grantee is not such a buyer of the same real estate as is contemplated by the language of section 260. Such a subsequent appropriator does not buy from the same grantor. Indeed, he does not buy at all. He appropriates under certain rules of statute and decision, and thus obtains title. The last portion of section 260 seems to us to be particularly fatal to respondents’ contention. In order that a second purchaser may come in ahead of a prior one, the second purchaser’s conveyance must be first duly recorded. The respondents had no conveyance which they first' duly recorded, or recorded at all. If it be argued that their appropriation was in the nature of a conveyance of the usufruct of the water then publici juris, it may he replied that there was no law at the time of those transactions providing for requiring a recording of such appropriation, nor does it appear that any such record was made. (Moxon v. Wilkinson, 2 Mont. 421.)
"We cannot at all understand how it can be contended that the respondents are, under the provisions of section 260, division 5, of the General Laws, in the position of subsequent purchasers for value of the same real estate as was conveyed to the grantees in the contract of 1871, or that they are in any position to invoke the benefit of the provisions of section 260. And, if they are not able to stand upon the provisions of section 260, they cannot claim title to the use of the water conveyed by the lower appropriators to the upper appropriators, except subject to the rights and priorities of said lower appropriators.
Our consideration of the case thus far seems to determine that the lower appropriators did not abandon the use of the water by reason of their contract of 1871. Abandonment is a matter of intention. (Atchison v. Peterson, 1 Mont. 561; McCauley v. McKeig, 8 Mont. 389; Tucker v. Jones, 8 Mont. 225.)
It was said by Terry, C. J., Field, J., concurring, in Stevens v. Mansfield, 11 Cal. 366: " We think the ruling of the court below clearly erroneous. Admitting the interest of plaintiff in the premises such as could be divested by abandonment, there can be no such thing as abandonment in favor of a particular individual, or for a consideration; such act would be a gift or sale. An abandonment is ‘the relinquishment of a right, the giving up of some thing to which we are entitled.’ (Bouvier’s Law Dictionary.) ‘Abandonment must be made by the owner, without being pressed by any duty, necessity, or utility to himself, but simply because he desires no longer to possess the thing; and, further, it must be made without any desire that any other person shall acquire the same; for, if it were made for a consideration, it would be a sale or barter, and, if without consideration, but with an intention that some other person should become the possessor, it would be a gift.’ (Bouvier’s Law Dictionary.)”
That court also said in McLeran v. Benton, 43 Cal. 467: “The elements of an abandonment are quite different from those of a sale; and where for any reason a transaction fails as á sale it cannot be converted into an abandonment. There is no such thing as an abandonment to particular persons, or for a consideration.” (Stevens v. Mansfield, supra; Richardson v. McNulty, 24 Cal. 343. See, also, an extensive collection of cases in appellant’s brief.)
In the case at bar the evidence is that the parties did not intend to abandon the use of the water which they had appropriated. Their acts indicated precisely the contrary intention. They conveyed, by an instrument in writing sufficient for the purpose, the use of the water for a valuable consideration. This is not an abandonment. (Cases supra.)
We have investigated this case, and arrived at the conclusion which we think should obtain without yet discussing the case of Barkley v. Tieleke, 2 Mont. 59. That case demands some attention at this point. It seems to have been relied upon by the district court in making the ruling which we have determined was error. There- is language in Barkley v. Tieleke, supra, which seems to have been construed to be an expression of opinion that, because a deed for the right to the use of water was not acknowledged, that the same was void. Perhaps that language by itself was sufficient to justify the ruling of the district court.
The court, in that opinion, quoted from finding 7, page 63, language to the effect that the persons constructing certain ditches, by certain unsealed and unacknowledged paper writ- jugs, purported to convey tbeir respective interests therein to certain persons other than plaintiff’s grantors, who, by like paper writings, transferred the same to plaintiff’s grantors, who took possession thereunder (and not by appropriation) prior to the appropriation by the defendant. The court then, in the opinion in that case, said, on page 64:
“The conveyance or transfers of the property to plaintiff’s grantors alone was not sufficient under our statutes to convey the property to them, but the attempt so to do by imperfect conveyances, if it did not operate as an absolute or equitable conveyance, clearly operated as a surrender or an abandonment of their right, title, and interest, acquired by appropriation, which was the digging of the ditches in question.”
Respondents’ counsel contend that the court then e held in that case that an unacknowledged deed was void. But it is seen in the opinion that the court invoked the doctrine of abandonment for the benefit of a grantee in a deed alleged to he imperfect. But we cannot believe that the court in that case intended to hold that an unacknowledged deed was void under our statute. The same statutes which we have quoted above as sections 235, 237, 258, and 260 of the present laws have been upon the statute book since 1864. These sections are sections 1,3, 23, and 25, on page 479 of the Bannack Laws, and are sections 1,3, 23, and 25 of the Laws of 1872, page 396, et seq.
Barkley v. Tieleke, supra, was decided about two years after Taylor v. Holter, 1 Mont. 688. The opinion in Taylor v. Holter referred to the sections of the law which we have above quoted, and held, as heretofore quoted in this opinion, and which we repeat, as follows: “The acknowledgment to a deed is no part of the deed, and, as between the parties to the instrument, a deed is good without acknowledgment, the acknowledgment and record being required for the protection and benefit of third persons.”
Barkley v. Tieleke, was decided by two of the same learned justices who sat in the case of Taylor v. Holter. But the court, in Barkley v. Tieleke, did not mention the decision in Taylor v. Holter, and it is hardly to be presumed that the justices, sitting in both cases, intended to overrule the doctrine announced so short a time before in Taylor v. Holter.
It is evident from later decisions of this court that it was not thought that Barkley v. Tieleke, supra, had held that a deed is void if it were unacknowledged. For it was held in Belk v. Meagher, 3 Mont. 75: “It is evident that the object and purpose of the certificate of acknowledgment and also of proof of the execution of a deed, as the statute contemplates, is to authorize the deed to be recorded. In the absence of a certificate, and there being no proof of the execution of the deed, the same cannot be recorded; but either a certificate of acknowledgment, or proof of execution under the statute, so authenticates the deed as to qualify it for record. And so, when there is proof of acknowledgment and a certificate thereof annexed or attached to the conveyance, no witnesses are required and the conveyance is entitled to be recorded. And when there is no certificate of acknowledgment, but proof of the execution of the deed can be made by the subscribing witnesses thereto in the manner provided by the statute, then the conveyance is also entitled to record. The object of the record of a deed, and hence of the certificate of acknowledgment and proof of the execution thereof, is to impart notice to third persons. And hence it follows that neither the certificate of acknowledgment nor the attestation of subscribing witnesses are necessary to the validity of a deed, as between the parties thereto, and in no case where there is proof of acknowledgment and certificate thereof annexed or attached to a deed, and the same has been admitted to record by virtue of such certificate, are subscribing witnesses necessary to the validity of such a deed as to third persons.”
Again this court said, in McAdow v. Black, 4 Mont. 485: “ Neither was it necessary that the power of attorney should have been certified, acknowledged, and recorded to have made it good as between the mortgagor and mortgagee, in the mortgage executed in pursuance thereof. The mortgage in question might have been enforced against Black, the mortgagor named therein. He could not have attacked the power of attorney because not acknowledged or recorded. In the case of Taylor v. Holter, supra, this court held that ‘the acknowledgment to a deed is no part of the deed, and, as between the parties to the instrument, a deed is good without acknowledgment, the acknowledgment and record being for the protection of third parties/ ”
Therefore, we cannot concede that Barkley v. Tieleke, intended to hold that a deed was void because it lacked acknowledgment and recording. But, if that case did so intend to hold, it is in conflict with all the other prior and subsequent decisions of this court upon that subject, and cannot be approved in this respect.
Assuming that the deeds mentioned in Barkley v. Tieleke were void for some reason, it is found that the court held, as to the main proposition in the case, as follows: “If the conveyances to plaintiff’s grantors did not in fact transfer such an interest as entitled them to all the rights of their grantors, then the right was abandoned, and the possession thereof taken by plaintiff’s grantors was as much an original appropriation of the waters of Indian creek as if they had originally constructed the first ditches to divert the same. Such possession^ even if it did not determine the ownership, under the act of Congress of March, 1866, does, nevertheless, vest in the plaintiff such an equitable interest as to entitle him to maintain this action.”
In the report of the case in 4 Morrison’s Mining Reports, page 666, it is interpreted by the annotator as follows: “Where the owner of a ditch attempts to convey the same by a deed which is void, but places the grantee in possession, who continues to use the ditch, it operates as an abandonment of his appropriation by the grantor and as a new appropriation by the grantee, dating from the change of possession.”
The author of Black’s Pomeroy on Water Rights interprets the case as holding as follows: “ In both these instances, as has already been shown, no interest passes to the transferees; they do not succeed to any priority held by their assignor; their rights of priority date only from the time of their own possession and user.” (Black’s Pomeroy on Water Rights, § 97, footnote.)
The case is also interpreted in Buck’s Digest of Montana Reports as holding as follows: “ Held, in the above case, that an attempt by the original appropriators of a water right to convey the same to plaintiff’s grantors by imperfect convey- anees at least operated, as against them, as a surrender or abandonment, and would also estop them from claiming the same after possession had been transferred to their intended grantees; and that the latter could be regarded, under the circumstances, as owners by recapture and appropriation.” (Buck’s Digest, 227.)
.Returning again to the case at bar, if the attempted conveyance of 1871 from the lower appropriators to the upper appropriators had been void the decision in Barkley v. Tieleke, supra, might have been invoked to hold that the grantees in such void conveyance took an abandoned right to the usufruct of the water, and must date their priorities from the time of the performance of acts subsequent to such abandonment. But, as we have shown, the instrument of 1871 was not void as to its grantees, or as to the respondents as third persons, and the doctrine of Barkley v. Tieleke, supra, is not applicable.
The motion which the court granted was to strike out all evidence introduced by plaintiff tending to prove any of the water rights of the lower appropriators who signed the contract of 1871. From what we have heretofore said it appears that this action was clearly error. Appellant had the right to trace its title to the use of the waters back to the appropriations of its grantors, who conveyed their rights to appellant’s predecessors by the conveyance of 1871. As a result of this ruling of the court the appellant was compelled to rely for its priorities of right only upon acts of appropriation performed by it subsequent to 1871. This let some of the respondents into priorities superior to appellant’s rights, which it would have obtained if the court had considered the evidence which it struck out. For this error of the court we are of opinion that the judgment must be reversed.
Appellant also objects that the court struck out evidence of appropriations by some other of appellant’s predecessors in interest who did not sign the instrument of 1871. But from an inspection of the motion as made, and the ruling of the court thereupon, both of which are set forth in the statement preceding this opinion, it appears that the court did not strike out this evidence.
This case consumed three weeks in trial. Perhaps it is a matter of regret that judgment cannot be ordered entered at this time. But that seems to be impossible. The error complained of occurred in the midst of the trial, upon the question of admissibility of the evidence, and to go back to the place where the error occurred necessitates a new trial. (Woolman v. Garringer, 2 Mont. 405; Collier v. Erwin, 2 Mont. 557; Barkley v. Tieleke, supra.)
The judgment of the lower court is therefore reversed, and the case is remanded for a new trial.
Reversed.
HtjNT, J., concurs.
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] |
Pemberton, C. J.
— Prior to the seventeenth day of July, 1893, Joseph L. Giroux and Rebecca Giroux were husband and wife, and residents of the territory of Arizona. On that day, in a suit prosecuted by Joseph L. Giroux for that purpose, he obtained a decree of divorce in the district court of Yavapai county, in said territory, from said Rebecca Giroux. The decree, a copy of which is made part of this record, shows that the said Rebecca Giroux was personally served with process. Said decree gave to Joseph L. Giroux the custody and care of George L. Giroux, an infant child of Joseph L. and Rebecca Giroux, and she was ordered to surrender the custody of said infant to Joseph L. Giroux, the said infant, at the time of said decree, being temporarily in the state of Montana. It also appears from the record that on the eighth day of July, 1893, the said Joseph L. and Rebecca Giroux entered into a written contract in relation to the distribution of their property, and the care, custody, and support of their two infant children, by the terms of which contract the custody of the infant George L. was given and awarded to Joseph L. Giroux. Thereafter Rebecca Giroux returned to Montana, where the said George L. Giroux -was temporarily residing. On the thirtieth day of September, 1893, Joseph L. Giroux executed to the relator herein a power of attorney, authorizing him to take possession of said infant, and deliver him into the custody of Joseph L. Giroux, and to do all things necessary to be done in order to deliver said infant into the custody and possession of its father. The relator demanded the possession of said infant of said Rebecca Giroux, who refused to comply therewith, and upon such refusal the relator commenced this proceeding to obtain the custody of said infant. Upon the trial of case in the court below the respondent moved the court to quash the writ of habeas corpus, because the facts stated in the petition were not sufficient to warrant said writ, and because the petitioner has no right or authority to'bring this action. The court sustained this motion, and entered judgment dismissing the proceeding. From this action of the court this appeal is prosecuted.
It is true that the title of the case is technically wrong. The case should have been entitled The State of Montana ex. rel. Joseph L. Giroux v. Rebecca Giroux. When the court’s attention was called to this defect he should have directed the proper amendment or reformation of the title to be made. (See State ex rel. Greenland v. Second Judicial District Court, 13 Mont. 416, and authorities cited; State ex rel. Johnson v. Case, 14 Mont. 520.) In Territory ex rel. Tanner v. Potts, 3 Mont. 364, Mr. Justice Knowles commented upon the frequency of these irregularities in the practice, and expressed the hope that the profession would be more careful in such matters. Those irregularities, however, are still observable in the practice, but our courts have uniformly treated them as unimportant. The petition shows on its face that the suit was being prosecuted by relator for the benefit of Joseph L. Giroux, and all the facts stated in the petition show him to be the real party in interest. We think it was error to dismiss the proceeding on a technical objection to the petition, which the court had a right to amend on its own motion, and which should have been done in the furtherance of justice.
It is further insisted by the respondent that Joseph L. Giroux, the party in interest, could not institute and maintain this suit by his attorney in fact, Nathorst; that Nathorst is a. stranger to the proceeding, and could not institute the case. While we hold that the case should have been entitled as above indicated, we see no reason for holding that an attorney-in fact could not institute the suit and make the necessary affidavit, and take such other necessary steps in the matter as an attorney in fact could do in other cases. Nathorst was the duly appointed attorney in fact of Joseph L. Giroux, to do any and all things that Giroux himself could do to acquire the possession of said infant. Giroux was, therefore, to all intents and purposes, in court, and any judgment rendered in the case would be binding as to him.
The judgment of the court below is reversed, and the cause remanded, with instructions to overrule the motion to quash the writ.
Reversed.
Harwood, J., and De Witt, J., concur.
|
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De Witt, J.
— One of the specifications of error is that the court erred in the finding of the rental value of the farm during the time that the mortgagee Raymond was in possession. Upon this question, however, there was a substantial conflict in the testimony, and the finding will not be disturbed. (Brownfield v. Bier, ante, p. 406.)
The same is true in regard to the specification of error in regard to the wheat, bran, and shorts. There was a substantial conflict in the testimony as to whether this property was or was not included in a certain sale of personal property, described in the evidence.
The other errors assigned all depend upon the error of the court in finding No. 14. It is to be observed that the finding of the jury upon the question of mortgage vel non was that the instrument, which was a deed on its face, was given as, and was intended at the time to be, a mortgage to secure indebtedness from plaintiffs to defendants. This finding is not attacked. It is a fact in the case. Indeed plaintiffs cannot attack it, if they wish to sustain their case. It established their contention. Defendants do not attack it. Therefore, it is now true and undisputed, not only that the instrument was a mortgage, but that it was given as a mortgage, and intended by the parties as a mortgage. Defendant Raymond was one of the parties. It was therefore intended by him to be a mortgage. In the face of this unattaclced finding and fact, the court, when the matter of the accounting comes before it, makes the following finding:
“That the defendant Raymond had reason for believing himself possessed of an absolute estate in the land, and did believe that he was the owner of the property, and, acting under the belief, and in good faith, made certain beneficial repairs and improvements upon the property, to the extent and value of the sum of four thousand four hundred and twenty-two dollars and twenty-one cents; that the improvements consisted of repairs and improvements on dwelling and tenement houses, store-building, barn and outhouses, seeding portions of the land to tame grasses, planting fruit trees, building new fences, constructing fences and cleaning and grubbing land, and cutting willows, and other necessary repairs and improvements incident to the economical and beneficial use of the property, and increased the value thereof, and that the expenses of the same were reasonable.” (Finding No. 14.)
Upon this finding of the court that Raymond had reason for believing himself possessed of the absolute estate in the land, and not that he was simply a mortgagee, the court, upon the accounting, allowed him several items which he had expended upon the premises. But this finding No. 14 cannot be sustained. It is simply impossible that Raymond accepted this deed as a mortgage, and intended it to be so, and also that he believed that he had an absolute estate in the land.
We are not called upon to review the finding of the jury that the instrument was a mortgage. Starting with, and keeping to, that fact in the case the contradictory finding that Raymond believed that it was a deed cannot be sustained, and must be set aside.
This case is not like the one of Johnson v. Bielenberg, 14 Mont. 506, for in that case there were two contradictory findings, both of which were attacked, and we said that it was not for us to determine which finding was true. But in the ease at bar the one finding, the first one, that the instrument was a mortgage, is not attacked, and is accepted by all parties as true. But the contradictory finding is attacked. Therefore, the situation of the case is this: That it is the fact, as everybody agrees, that the instrument was a mortgage, and intended by the parties to be such. And with this fact undisturbed and unattacked, the court finds that one party believed it was not a mortgage. We see no other course in this case but to set aside the finding No. 14. From this finding other errors flowed.
In pursuance to the finding No. 14 the court also found that the defendant Raymond, who was a mortgagee in possession, was entitled to a credit of one hundred and eighty-eight dollars for surveying and platting a townsite, which was part of the premises included in the mortgage. This was finding No. 10.
In finding No. 13 the court also allowed said Raymond a credit of one hundred dollars per annum for superintending the property during the time in which he was in possession.
In the accounting which the court made upon the report of the referee it also gave said Raymond credit for a large number of other expenditures “incident to the convenient and profitable use of the property.” (Finding No. 14.)
But a mortgagee in possession is entitled to credit for expenditure made by him for the necessary preservation and protection of the property. (2 Jones on Mortgages, § 1127 f and cases there cited; 10 Am. & Eng. Ency. of Law, 261, and cases there cited.)
But, in this case, the lower court, upon the accounting, was not proceeding upon the theory that Raymond was simply a mortgagee in possession, but, upon the other hand, upon the theory that he was in possession in the bona fide belief that he was the owner in fee. Therefore, the items allowed to Raymond as credits were allowed upon a false and wrong theory as to Raymond’s possession.
Respondents cite authorities to the effect that a person in possession of real estate, in the honest belief that he is the owner in fee, in making improvements and expenditures upon the premises, stands in a different position than a mortgagee in possession. It was on the theory that Raymond was a person honestly believing that he owned the fee that the court below proceeded. This was by reason of the court’s error in finding No. 14. But we cannot see how we can strike out any items, or modify the judgment so as to affirm it as modified.
We are of opinion that the case must go back to the district court, and that court must place itself upon the right ground for a determination of what items should be allowed. The court must ascertain what items of expense were necessary for the protection and preservation of the estate by a mortgagee in possession. The court below has never made findings upon this correct theory.
The judgment of the district court is therefore reversed, and the case is remanded with the following directions: The court will set aside finding No. 10 allowing the credit of one hundred and eighty-eight dollars for surveying, and finding No. 13 allowing one hundred dollars per annum for superintending the property, and also finding No. 14. The court will then find from the testimony already before it, and from any other testimony which it finds it necessary to take, whether said sum of one hundred and eighty-eight dollars for surveying, and said sum of one hundred dollars per annum for superintending, the property, and all other items of expenditure upon the estate, set forth in the account, were necessary for the protection.aud preservation of the estate by a mortgagee in possession, and will allow all of such items as a credit to the defendants, and will disallow all such items of expenditure upon the estate which were not so necessary for such protection and preservation. (Johnson v. Bielenberg, supra.)
Having found these facts the court will then enter judgment for the balance, as it may appear from the finding and the account.
The findings in all respects, except as herein set forth, are undisturbed.
The costs of this appeal will be taxed against the respondents.
Reversed.
Hunt, J., concurs.
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Hunt, J.
— The plaintiff, Lee, pleads both ownership and possession. To support the former he sets forth his application to enter the land in question, under the timber culture laws of the United States, his occupancy thereof, and a receipt of the receiver of the United States land-office at Bozeman, Montana. Lee’s application was the only authorized filing upon the tract when this suit was instituted, and, although defendant applied to contest, leave was invariably denied him. All these facts made a prima faeie showing of ownership and right of possession in Lee. In Carner v. Chicago etc. Ry. Co., 45 N. W. Rep. 713, it was decided by the supreme court of Minnesota that rights under the Timber Culture Act are as high as under the Homestead Act, that a claimant under a timber culture entry “has the right to occupy and cultivate the land, and owns the annual crops which he harvests, whether of grass not sown by him or of grains,” and that, until a forfeiture to the United States occurred, he is the owner and has a right of redress for any injury to his property on the land. Plaintiff Lee, therefore, being (as against the defendant) the legal owner, his possession, whether actual 0.7 constructive, is presumed until the contrary appears, and “is sufficient as against mere trespassers, that is, as against those who do not show some right of possession.” (Gonzales v. Ross, 120 U. S. 605.)
The defendant appears to have been guilty of repeated trespasses, plowing, seeding, and cultivating the ground, always against the warnings and instructions of both plaintiffs. To harass them he not only attempted to contest plaintiff Lee’s entry, but he protracted a vain and hopeless litigation, well knowing he had no right whatever to possession of the ground. Plaintiffs repeatedly tried to plow and cultivate the claim, hut were always interfered with by defendant. These several acts show wanton trespass, and any occupation acquired on account of them was wrongful, and without foundation of right.
It also appears that the defendant was insolvent when the injunction was granted, that he was threatening to cut and remove the crop, and that, unless restrained, plaintiffs would suffer irreparable damage. Upon the authority of Sankey v. St. Mary’s Female Academy, 8 Mont. 265, we think a clear case was presented for the issuance of an injunction pendente lite.
The second ground in defendant’s motion to dissolve was that “no such undertaking as is required by law was given or filed by the plaintiffs before the issuing of said injunction.”
No specification of any defect in the undertaking itself is pointed out in the motion (as a better practice would seem to demand), but by brief of appellant’s counsel it is argued that because no affidavit of the sureties accompanied the undertaking it was invalid, and that therefore the injunction was illegally issued and should be dissolved.
Section 540 of the Code of Civil Procedure, which we assume applies to all bonds, injunction as well as others, provides that: “In all cases where an undertaking by the prb-visionsofthis act is required it shall be the duty of the person taking the same to require the sureties to accompany the same with an affidavit that they are each worth the sum specified in the undertaking, over and above their just debts, liabilities, and property exempt by law from execution.”
The conditions and nature of an injunction undertaking are prescribed by section 176 of the Code of Civil Procedure, and, when an undertaking has been given pursuant to said action, the liability of the sureties begins. The general statute (§ 540, above quoted) imposes a duty upon the person who takes such an un "ertaking to require the sureties to accompany the same with an affidavit of solvency. If, however, the duty is not performed, that is, if the affidavit is not secured, it is our opinion that the undertaking is not invalidated; it still holds, and the sureties are yet liable — at least until the lack of verification is brought to the attention of the court or judge and action taken. The affidavit is but the written declaration of the fact that the sureties who made the undertaking are responsible, confirmed by their own oaths. It is not a part, strictly speaking, of the undertaking; it does not affect its substance; it adds nothing to its terms or conditions. It should properly accompany it, but, not being a part thereof, it is not indispensable to the validity of the sureties’ promise. (Miller v. Pine M. Co. (Idaho), 32 Pac. Rep. 207; Hayne on New Trial and Appeal, § 213.)
The objects of requiring the sureties to verify are, not to impose financial liability, but to create safeguards in preventing straw bonds in judicial proceedings; to require sureties to swear to their abilities to meet promises they may make in behalf of others, to the end that, if they willfully swear falsely, they may be punished for perjury; to protect the person who may take the undertaking from unwarranted imposition, and, ultimately, by strict exactions upon the consciences of sureties, to better insure the person about to be enjoined against damage or injury in any unlawful interference with his property or rights.
Appellant did not ask the court to require the sureties in this case to make the affidavit referred to in the statute, and thus cure the omission to have required it when the undertaking was given; he elected to stand upon the exclusive ground of his motion that the undertaking was a nullity. But, for the reasons already given, we hold that the lack of the affidavit was at most a curable defect which did not destroy the undertaking or invalidate the order of injunction.
The order denying the motion to dissolve is affirmed.
Affirmed.
PEMBERTON, C. J., Concurs.
|
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] |
Pembebton, C. J.
— This is an action by plaintiff to recover damages claimed to have been sustained by him on account of an assault and battery alleged to have been committed by defendant upon plaintiff.
The case was tried with a jury, and a verdict rendered in favor of plaintiff for five hundred dollars. Judgment was entered thereon for said amount. Erom this judgment, and an order of the court denying a new trial, the defendant appeals.
It appears that, after the commission of the alleged assault and battery, the defendant was arrested therefor, and tried and convicted before a justice of the peace. In the trial of this ease for damages resulting from said assault and battery, the court, over the objection of defendant, permitted the plaintiff to introduce in evidence the transcript of the justice’s docket, who tried the criminal case against the defendant. This is assigned as error.
In 1 Greenleaf on Evidence, fifteenth edition, section 537, it is said: “Upon the foregoing principles, it is obvious that, as a general rule, a verdict and judgment in a criminal case, though admissible to establish the fact of the mere rendition of the judgment, cannot be given in evidence in a civil action, to establish the fads on which, it was rendered.”
In section 538 the same author, speaking of a case exactly like the one at bar, says: “But if he were convicted of the offense, and then is sued in trespass for the assault, the record in the former case would not be in evidence to establish the fact of the assault; for, as to matters involved in the issue, it is res inter alios acta” (And see authorities cited.)
The defendant may have been convicted upon perjured or incompetent testimony, or by collusion, or his conviction may have been the result of prejudice on the part of the justice or the jury. In this case the introduction of this evidence may have been very prejudicial to the defendant. Whether or not the defendant committed the assault and battery alleged was an issue in the case. By the justice’s transcript the plaintiff claims that the assault and battery was shown, leaving the jury to determine only the amount of damage plaintiff had sustained by reason thereof. The court gave no instruction as to the purpose of this evidence. Nor does the record disclose any particular purpose for which it was admitted. But accepting plaintiff’s statement in his brief as to the purpose of its introduction, we are of opinion that it was error to admit it in this case. It certainly did prove, or tend to prove, the facts upon which judgment of the justice was rendered. Such being the intended purpose and effect of the evidence, its admission was error.
The judgment is reversed and cause remanded fór a new trial.
Reversed.
De Witt, J., and Hunt, J., concur.
|
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De Witt, J.
— It is claimed by the plaintiffs in this action that one-half of the installment which they paid to the railroad company on November 20, 1893, was paid for and on behalf of defendant, who was their co-owner in the land and the contract; and that they, having paid said money in behalf of defendant, are entitled to recover the same from him. A kindred subject was very recently before this court in the case of Lloyd v. Board of Commissioners, decided March 4, 1895. In that case this court said: “‘In order to entitle a person to recover money paid for another, a request, express or implied, must be established, or an express promise to pay it, and it may be said that, in all cases where there is a legal obligation on the part of the person paying to pay the money, the primary obligation resting upon the person for whose benefit it was paid, the law implies a request and a consequent promise that will uphold an action to recover it back.’ ”
Applying these principles to the case at bar, we observe that the plaintiffs claim that they paid this money for the defendant. This payment was not made at the express request of defendant, nor was it on his implied request, unless there is an implication arising from the facts of the case, and an obligation resting upon the defendant, to pay the Northern Pacific Railroad Company. It is to be noted that we said in the case of Lloyd v. Commissioners, supra: “In a case where there is a legal obligation on the part of the person paying to pay the money, the primary obligation resting upon the person for whose benefit it was paid, then the law implies a request,” etc. Thus, in order to ascertain whether there was a constructive request in law on the part of the defendant to pay the money (having seen that there was no express request, and none implied from his conduct), the first inquiry is whether there was an obligation resting on defendant, Gordon, to pay this installment of money, or any part of it, to the Northern Pacific Railroad Company; for if there were a primary obligation resting upon Gordon to pay the railroad company, and then if there were also a legal obligation on the part of his associates to pay it, then, if they did so pay it, they could recover from Gordon, under the doctrine in the case quoted.
We will therefore endeavor to ascertain whether Gordon was under obligations to pay the railroad company.
Defendant, Gordon, never contracted with the Northern Pacific Railroad Company. He never promised to pay to the railroad company the installment due November 20, 1892, on the Lavelle contract, or any other sum. He never dealt with the railroad company at all. If there were any obligation upon Gordon to pay the 1892 installment, or a part thereof, it arose, and was implied, from his acts. He took to himself, for a valuable consideration, an assignment of a one-lialf interest in the contract, and in the land which was the subject thereof. Does this imply a promise on his part to pay to the railroad company the deferred installments? We think not. The analogy is very close, if not complete, to a person buying real estate encumbered with a mortgage. If the buyer does not assume the mortgage, he is not personally liable therefor; and the mere fact of his buying the land subject to the mortgage is not such a personal assumption of the mortgage, or an agreement to pay the same.
We said, through the learned chief justice, in Pendleton v. Cowling, 11 Mont. 49: “The authorities hold that the above words of the declaration of trust, if inserted in a deed, do not make the grantee liable for the payment of such an encumbrance upon the land. Mr. Jones, the learned author of the work on Mortgages, says: ‘A deed which iis merely made subject to a mortgage specified does not alone render the grantee personally liable for the mortgage debt. To create such liability there must be such words as will clearly import that the grantee assumed the obligation of paying the debt. It is not necessary that any particular formal words should be used, but that the intention to impose upon the grantee this obligation should clearly appear. A purchaser of land accepting a deed expressly conveying it subject to a mortgage, and excepting it from the covenants, is not himself personally liable to pay it, unless he covenants to do so.’ (1 Jones on Mortgages, 1st ed., § 748, and cases cited; Elliott v. Sackett, 108 U. S. 132; Shepherd v. May, 115 U. S. 505.) The litigation in these cases had its origin in the sales of property under a trust deed. The court held in Fiske v. Tolman, 124 Mass. 254, 26 Am. Rep. 659, that a promise to pay the mortgage debt cannot be inferred from the acceptance of a deed containing this clause: ‘Subject, however, to a mortgage .... of seven thousand dollars, which is part of the above consideration.’ (Wiltsie on Mortgage Foreclosure, §§ 608, 610, 613, and eases cited.) Mr. Wiltsie says: ‘Whether a personal liability is assumed in any case is always dependent on the intention of the parties; unless the parties have declared this intention in express words no liability will be incurred. If the deed merely recites that the land is taken subject to a certain mortgage there will be no personal liability. Neither will the words “ under and subject” to a mortgage, which is specified, import a promise to pay, nor create a personal liability.’ (Wiltsie on Mortgage Foreclosure, § 615.) We have consulted numerous cases, and do not hesitate to assert this to be the general rule.”
In the case at bar the defendant took, by assignment, the contract and the laud which was the subject thereof. It may be conceded, for the purposes of this case, that Gordon accepted this assignment, although some question is raised as to this point in the argument of counsel. Gordon did not assume the payment of the deferred installments. He did nothing more than receive the assignment. The contract between the Northern Pacific Railroad Company and its proposed purchasers of the land had, in many respects, the practical results and effect of a deed with a mortgage back. Lavelle and his associates wished to purchase the land. They paid a certain sum in cash. They were given the immediate possession of the land. They were to pay all taxes and assessments, and the further installments to the railroad company, and interest on the purchase price as they became due. In all these respects they were, for practical purposes, in the same position as if they had taken a deed from the Northern Pacific Railroad Company, paying part of the consideration and giving a mortgage for the balance. If the situation had been one of a deed and mortgage back, and one of the grantees in the deed had assigned his interest in the land to Gordon, the defendant herein, the assignment and transfer would have been subject to the mortgage, whether the assignment and transfer so stated or not. (Pendleton v. Cowling, supra.) But this would have cast no personal liability upon Gordon to pay any balance due on the mortgage. (Pendleton v. Cowling, supra.)
These principles are equally applicable to the facts in the case at bar. Gordon took the half interest in the land subject to the payment of the future installments on the purchase price. The deed by the railroad company would not issue to its proposed purchasers until all the installments were paid. The land was firmly held for these payments, for the railroa 1 company retained the fee in itself as security for the payments. But the fact of Gordon taking the land subject to the deferred payments should not, in principle, make him personally liable for such payments, any more than if the transaction had been a deed, with a mortgage back, as above illustrated. We are of opinion that the same principles apply to either nature of transaction.
It is to be observed that Gordon obtained some thing by taking this assignment of the contract and the land, even if he never got so far as to obtain the fee in the lands by paying the deferred installments and obtaining the railroad company to accept them and issue him a deed. He took the assignment June 8, 1892. This gave him possession of the land, together with the plaintiffs herein, at least until November 20, 1892, when the second installment became due. For all that appears, this is all that Gordon wanted. The consideration which he paid for the assignment may have been sufficient for this possession for five months, and for no more. Nothing appears to the contrary.
There can be no implication from these facts that Gordon promised to pay the Northern Pacific Company the deferred installments, and there was no express promise on his part to do so, and no assumption of these payments.
Therefore, returning to the doctrine of the case of Lloyd v. Commissioners, as quoted above, we find the plaintiffs herein paid out money which they claimed was for the benefit of the defendant, Gordon. They wished to recover this money from Gordon. But the payment was not at the request of Gordon, express or implied. Nor did the plaintiff pay the money to the railroad company under an obligation so to do, when the primary obligation was upon Gordon; for, as we have seen, there was no obligation on Gordon, primary or otherwise, to pay the deferred installments, or any part of them, to the railroad company.
Therefore, plaintiffs paid the one-half of this November installment, in effect, as far as Gordon was concerned, voluntarily.
Counsel for respondent argue that when an estate is charged with a judgment, mortgage, lien, or other encumbrance, and one of the owners discharges such encumbrance, he is entitled to contribution from his co-owners. Counsel cites authorities, which we have examined. None of them, however, are cases where the person for whose benefit the payment is alleged to have been made was himself under no primary obligation to make the payment. Illustrations of the alleged beneficiary being under the primary obligation are found in cases cited in Lloyd v. Commissioners, supra.
We are therefore of opinion that the complaint does not state facts sufficient to constitute a cause of action.
The judgment is therefore reversed, and the case is remanded to the district court with instructions to sustain the demurrer.
Reversed.
HUNT, J., concurs.
|
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De Witt, J.
— This information is drawn under a statute similar to that which was in existence in California when the case of Ah Woo, 28 Cal. 206, was decided. (See, also, State v. Malish, ante, p. 506.)
An information charging forgery by the uttering, etc., as does this one, is proper; for the uttering is, uuder our statute (Criminal Practice Act, § 96), one method by which forgery may be committed. (See cases last cited.) This question of criminal pleading was not considered in State v. Hudson, 13 Mont. 112, the case being decided on the question of jurisdiction only. (See State v. Malish, ante, p. 506.)
The ground upon which the motion in arrest of judgment was granted seems to be that the alleged forged instrument concluded with the words, “and charge to him at my office. Johnson & McCarthy.” Counsel for the respondent argue that this writing is invalid on its face, in that if it were used as genuine, it could not do any damage to the alleged signers of the same, namely, Johnson & McCarthy, for the reason that it requested Schumacher to charge the twenty dollars to Evans, instead of requesting him to charge it to Johnson & McCarthy. "We are of opinion that the motion in arrest of judgment was properly granted.
Mr. Bishop says in his work on Criminal Law, volume 2, section 506, as follows: “ When the writing is invalid on its face it cannot be the subject of forgery, because it has no legal tendency to effect a fraud.” Section 511 of the same work states as follows: “Therefore, the general doctrine is, that the invalidity of an instrument must appear on its face, if the defendant would avail himself of this defect on a charge of forgery. In still other words, the forged instrument, to be the foundation for an indictment, must appear on its face to be good and valid for the purpose for which it was created. It must be, in another aspect, such that, if it were genuine, it would be evidence of the fact it sets out.”
We find it stated in People v. Tomlinson, 35 Cal. 506, as follows: “ Without much conflict, if any, it has been held from the outset that the indictment must show that the instrument in question can be made available in law to work the intended fraud or injury. If such appears to be the case on the face of the instrument it will be sufficient to set it out in the indictment; but, if not, the extrinsic facts, in view of which it is claimed that the instrument is available for the fraudulent purpose alleged in the indictment, must be averred. If the indictment merely sets out an instrument which is a nullity upon its face, without any averment showing how it can be made to act injuriously, or fraudulently, by reason of matter aliunde, no case is made. This rule is so well settled by the precedents that we do not feel called upon to discuss it upon principle. (Rex v. Knight, 1 Salk. 375; 1 Ld. Raym. 527; Regina v. Marcus, 2 Car. & K. 356; People v. Shall, 9 Cow. 778; People v. Harrison, 8 Barb. 560; State v. Briggs, 34 Vt. 501; Commonwealth v. Ray, 3 Gray, 441; Barnum v. State, 15 Ohio, 717; Clark v. State, 8 Ohio St. 630.) These cases establish the doctrine that, to constitute forgery, the forged instrument must be one which, if genuine, may injure another, and that it must appear from the indictment that such is its legal character, either from the recital or description of the instrument itself, or, if that does not show it to be so, then by the averment of matter aliunde, which will show it to be of that character.”
We take the following from the remarks of Judge Cowen, in People v. Shall, 9 Cow. 778: “In the principal case I have shown that the paper forged, if genuine, would be a mere nullity for any purpose; nor, to my mind, could it be made good by any possible averment. It could not be made the foundation of liability, like the letter of credit. It does not come within any of the cases sustaining indictments; but to me it appears to be directly within the cases cited holding that an instrument, purporting to be void on its face, and not shown to be operative by averment, if genuine, is not the subject of forgery. How is it possible, in the nature of things, that it should be otherwise? ‘Void things are as no things.' Was it ever heard of, that the forgery of a nudum pactum, a thing which could not be declared on or enforced in any way, is yet indictable? It is the forgery of a shadow."
The following remarks were made by the Indiana supreme court in Reed v. State, 28 Ind. 396: “The certificate, so far as it purports to be an instrument entitling Allen to the bounty claimed therein, was, at the time charged, utterly void. There was no law authorizing the giving of bounties by the county commissioners. (Oliver v. Keightly, 24 Ind. 514; King v. Course, 25 Ind. 202.) The legalizing act was not passed until March 3, 1865. Every one is presumed to know the law. Officers acting under an official oath are presumed to do their duty. The order of the county commissioners referred to in the certificate was void. ‘Void things are no things. The-indictment must show the forgery of an instrument which appears on its face naturally calculated to have some effect, or,, if it be not sufficient for that purpose, extrinsic matter must be averred, so that the court may judicially see its fraudulent tendency."
The supreme court of Illinois take the same view when that court says, in the case of Waterman v. People, 67 Ill. 92: “The indictment framed upon this writing contains not a single averment of any extrinsic matter which could give the instrument forged any force or effect beyond what appears on its face. No connection is averred between the party to whom the writing is addressed and the Chicago, Nock Island & Pacific Railroad Company, nor is it averred that the prisoner attempted to pass the writing on that company. The writing, if genuine, has no legal validity, as it affects no legal rights. It is a mere attempt to receive courtesies on a promise, of no legal obligation, to reciprocate them. We are satisfied the writing in question is not a subject of forgery, and no indictment can be sustained on it, and no averments can aid it.”
To the same effect see Commonwealth v. Hinds, 101 Mass. 211, where the court say: "If the fraudulent character of the-forged instrument is not manifest on its face, this deficiency should be supplied by such averments as to extrinsic matter as would enable the court judicially to see that it has such a tendency. We find nothing of the kind in the present indictment, and therefore cannot say that the plea of guilty is a confession of any crime whatever.” (See, also, the learned note in 22 Am. Dec. 314. See, also, Barnum v. State, 15 Ohio, 717; Raymond v. People (Col.), 30 Pac. Rep. 509; State v. Wheeler, 19 Minn. 98; Abbott v. Rose, 62 Me. 194; 2 Bishop’s New Criminal Law, § 533.)
We are of opinion that the alleged forged instrument set out in the information in this case is such a one as comes within the doctrine of the decisions quoted, and, as far as we know,, generally held. The instrument in question, if genuine, and if acted upon as its terms suggest it might be, could do no-possible damage. If the amount of twenty dollars was advanced to Evans by Schumacher upon this order, and if that amount were charged to Evans himself, it would be nothing whatever but a transaction between Schumacher and Evans, which could be accomplished between those two persons with as much ease without the order as with it. The order, as it appeared on its face, would not accomplish the advancing of the money by Schumacher to Evans on the credit of Johnson & McCarthy. Schumacher would as readily have advanced it without the order as with it. There were no extrinsic facts alleged in the information to show that the instrument was available for the fraudulent purpose alleged in the information.
The order of the district court in arrest of judgment is
Affirmed.
Hunt, J., concurs.
|
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De Witt, J.
— This case presents a proposition which is wholly new in this state, and one which, for a century past, has commanded the interest and learning of the ablest of the ■United States and state courts. The question is simply stated: If one’s land be bounded by a navigable river, does his title extend ad filum medium aquae, or to the low-water mark, or to the high-water mark? The legal literature upon this subject in this country is rich in research, reasoning, and learning. In fact the matter has been so extensively treated that at this late day, when a new state is called upon to fix the rule, there is nothing left to say upon the subject, either new or original; and the labors of a court are perhaps nothing more than to select from the three rules which have heretofore been adopted in different jurisdictions that which may be deemed to be the one which, under all the circumstances, should obtain in this state.
Under thecommon law navigable water was that which ebbed and flowed with the tides of the ocean. Upon navigable water the abutting land-owner had title to high-water mark. Upon non-navigable streams the abutting land-owner had title ad filum medium aquas. In some of the original thirteen states which lay along the seashore, and where streams navigable in fact were generally those in which the tide ebbed and flowed, the common-law rule was adopted. But when, early in this century, the great tide of emigration began to flow westward and follow the mighty watercourses of the continent, it soon became apparent that the common-law rule could not be applied to the great rivers navigable in fact, and one of which alone is in fact navigable above tide water for a distance which would several times girdle the ancient home of the common law. The common law was therefore modified, and the rule is now established by the overwhelming weight of American authority that a stream navigable in fact is navigable in law. For the history of the development, up to the year 1856, of this American rule, we refer to that profoundly learned treatise found in McManus v. Carmichael, 3 Iowa, 1, in which case the supreme court of Iowa, with the aid of able counsel, exhausted the whole subject.
With the adoption of this rule the doctrine that the riparian owner’s title to the land bounded by a river nontidal, although navigable in fact, runs ad filum, was also generally repudiated.
But at this point the courts of different states have followed different paths. One group of states holds that the abutting title goes to high-water mark, and the other group holds that it extends to low-water mark. On this line the battle of decisions has waged since a period long prior to the time when the waters of our state were made the servants of commerce. Argument, history, reasoning, and politics have been called to the aid of the advocates of the two doctrines. (See the interesting collection of cases in the briefs of counsel in this case.)
As we, among the last commonwealths of the union, approach a solution of this question, it would be interesting, but in view of what has been done by scores of able courts before us, it would probably not be instructive or important, to make an excursion through this field, where the footprints of our remote predecessors have long ago been beaten into plain paths by those who are even now to us ancient explorers.
But in selecting into which one of these paths we shall turn the course of jurisprudence of this state it would, were it not for a matter which we will mention below, be appropriate that we briefly state our reasons why we deem one rule rather than the other to be justified or demanded by our history, circumstances, geography, and topography, and by the fact that the common law, so far as the same is applicable and of a general nature, is adopted and in force in this state, until repealed by legislative authority.
We have concluded, after a review of the decisions of other states upon this subject, that, upon reason and authority, and in view of all the circumstances of this state, we are fully justified in holding that the boundary of land bordering upon a navigable river should, whenever another intent is not expressed, be held to extend to the ordinary low-water mark. We refrain from an elaborate presentation of our grounds for this holding, for the reasons suggested above, and also for the reason that the rule thus announced by decision will become, in a few months, the rule by statute.
This state is just about to enter upon a fully developed code era. The legislative assembly has just adopted a code of civil procedure, a civil code, a penal code, and a political code, prepared by commissioners during the labors of several years past. The law adopting the civil code was approved by the governor February 19, 1895. This code is to take effect and become the law on July 1, 1895. This subject of land being bounded by a navigable river is settled for the future by the Civil Code. The code commission and the legislature had before them the legal literature and learning to which we have above referred, and as a result they have adopted the rule of the low-water mark. Section 772 of the Civil Code is [as follows: “Except where the grant under which the land is held indicates a different intent, the owner of the land, when it borders upon a navigable lake or stream, takes to the edge of the lake or stream at low-water mark; when it borders upon any other water, the owner takes to the middle of the lake or stream.”
This rule will be the law on the first day of July, 1895. We are also of opinion, as above stated, that it is the wisest and most expedient rule. We are thus, by the view which we take of the reason and authority for the rule of the low-water mark, enabled to leave the law in this important matter so that it will suffer no change by the adoption of the Civil Code. We, therefore, for the reasons given, shall follow the decisions of those courts which hold that the title of one owning land bounded simply by a navigable river extends to the ordinary low-water mark.
Another matter, perhaps, should be noticed: Defendant claims in his argument that ejectment is not the proper remedy. He asserts that he has rights as a navigator or a fisherman upon the strip of land between the high-water and low-water mark, and that, having such rights, he cannot be ejected from that strip of land. It is true that while the abutting owner owns to the low-water mark on navigable rivers, still the public have certain rights of navigation and fishery upon the river and upon the strip in question. But no such case as that is made in the pleadings. Defendant does not claim any right whatever to be upon this strip of land for the purposes of navigation or fishery. His defense is clearly made upon the issue that plaintiff has no title whatever to the strip, and therefore he cannot recover possession of the same. Upon this issue we have to hold against the defendant. By the pleadings it appears that defendant had excluded plaintiff from the possession of the ground, and is in possession himself, generally, if it may be so expressed, and that he is not there claiming rights as a navigator or fisherman. The rights of navigation or of fishing are not at all involved in these pleadings. Therefore, the plaintiff owning this strip of land, subject only to the public use of navigation and fishing, which are not here concerned, and defendant having no claim or color or pretence of title or right of possession, it is difficult to see why ejectment would not lie.
It was said in Rice v. Rodman, 10 Mich. 130, by Martin, C. J., in a concurring opinion as follows: “I think the rights of riparian proprietors upon our interior lakes .... are the same as those of proprietors upon navigable streams. They have the right to construct buildings, wharves, and other improvements in front of their lands, so long as the public servitude is not thereby impaired; they are a part of the realty to which they attach and pass with it. Certainly no one can occupy for his individual purposes the water-front of such riparian proprietor, and the attempt of any person to do so would be trespass.” (See, also, Berry v. Snyder, 3 Bush, 266; Hannaford v. St. Paul etc. Co., 43 Minn. 104; Ball v. Slack, 2 Whart. 508.)
We are therefore of the opinion that the demurrer to the answer was properly sustained, and the judgment for the plaintiff is accordingly affirmed.
Affirmed.
Hunt, J., concurs.
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] |
De Witt, J.
— The claim by defendants of a forfeiture to them of plaintiff’s one-third interest is based upon their contention that in the years 1877, 1878, 1879, 1880, and 1881, they did the full amount of the annual labor and expenditure for each of said years, and that plaintiff failed to contribute bis proportion of the expenditures required by section 2324 of the Revised Statutes of the United States, for said years, and that defendants “advertised him out,” as it is commonly called; that is, gave to him the notice provided for in said section of the Revised Statutes of the United States.
Our first inquiry will be to ascertain whether plaintiff’s interest did indeed become forfeited to defendants. Section 2324 of the Revised Statutes of the United States, after providing for labor and improvements of a certain value to be placed upon every mining claim in each year, then provides as follows: “Upon the failure of any one of several co-owners to contribute his proportion of the expenditures required hereby, the co-owners who have performed the labor or made the improvements may, at the expiration of the year, give such delinquent co-owner personal notice in writing, or notice by publication in the newspaper published nearest the claim, for at least once a week for ninety days, and if, at the expiration of ninety days after such notice in writing or by publication, such delinquent should fail or refuse to contribute his proportion of the expenditure required by this section, his interest in the claim shall become the property of his co-owners who have made the required expenditures.”
This is a statute of forfeitures. That the forfeiture may be worked, the facts constituting it, or laying the foundation for it, must exist. The statute must be strictly construed. (Turner v. Sawyer, 150 U. S. 585.)
If the interest of an owner in a mining claim is to be forfeited to his co-owners under the provisions of this statute certain events must occur, and certain acts must be performed by those seeking the forfeiture. Upon the reading of the statute the first words which we encounter are “ upon the failure of any one of several co-owners to contribute his proportion of the expenditures required hereby.” Then the co-owners may take the course laid down in the remaining part of the section. But first, and as a foundation upon which to seek forfeiture, it must be true that the alleged forfeiting owner has failed to contribute his proportion of the expenditures required by section 2324. But in the case at bar that was not true. The very contrary was the fact. The court found as follows: “That ever since the plaintiff became and was invested as aforesaid with the title to said undivided one-third of said premises he has done and performed all things needful and requisite to perfect, keep alive, and maintain his possessory right and title thereto, and that he fully and properly ‘represented’ or did the annual ‘assessment work’ in and to his said title and interest therein, by doing and performing the labor and making the improvements on said claim for the purpose and with the intent of prospecting and developing the same, to the amount and of the value of at least thirty-three and 33J dollars ($33.33¿) in and during each and every of the years 1877,1878, 1879, 1880, and 1881 (the years wherein the defendants claim the plaintiff made default therein, by reason whereof they claim a forfeiture of his said right, title, and interest in and to said lode claim, accrued and passed to them), and during each and every of the years subsequent to the said date of the location thereof, at the time, at the place, and in the manner required by law for the purpose aforesaid. That said improvements consisted of a shaft, dug, excavated, and sunk thereon, and timbering the same.”
There was some conflict in the evidence upon this point. We have carefully read the whole record, and shall not rehearse the evidence, but will say that it was amply sufficient to sustain the finding. Therefore, it is the fact in this case that the plaintiff did not, during the years named, fail to contribute his proportion of the annual expenditures required by section 2324. The very first requirement of that section, as a basis of forfeiture, did not exist.
We have therefore left for consideration this situation, as follows: Three men, Mayfield, Upton, and Brundy, together own a mining claim; Brundy has, during all the years in question, contributed his proportion of the annual expenditures required by law upon each mining claim, or, in the common language of prospectors, he has done his share of the “ representation work.” Under these facts, if M. and U. publish a forfeiture notice against B., does this faci divest B. of the title, and does it transfer said title to M. and U ? Without hesitation we say, No. The very foundation of forfeiture is wanting; that is, the failure of B. to represent. The forfeiture notice is not true. The ground claimed for a forfeiture does not exist. To hold otherwise would lead to curious results. For example, it is the fact that M., U., and B. each do their full share of representation for a given year; and at the end of the year several notices are published, which set out the matters stated in section 2324. There may be a half dozen such notices; for instance, M. against U. and B; U. against M. and B; B. against M. and U; U. and B. against M; M. and B. against U; M. and U. against B. But the fact is that none of these notices are true, and not being true, to declare that they worked forfeitures, of course, is an absurdity. But if one works a forfeiture, why not all ? The absurdity is apparent in the illustration given, and it is just as apparent in the actual single instance in the ease at bar, that is, the attempted notice of M. and U. against B. It would certainly be a very economical method of acquiring titles to mining claims, if any owner could publish or serve a notice, as contemplated by section 2324, on his co-owners, and barely, by such notice, acquire their titles, when the facts upon which such notices may be given do not exist. But the discussion runs into the ridiculous. It is time to close it.
Our conclusion is, that the served and published notices did not, for the reasons above stated, forfeit Brandy’s interest to Mayfield and Upton. (Turner v. Sawyer, supra.)
It is to be observed that we decide this point simply upon the ground that it was found by the court, and the finding remains undisturbed, that the notices had not the required foundation of fact to support them. If the facts in this case had been that the notices were wholly true, that the necessary facts were all present, that the notices were regular and formal in their matter and service, then an important and interesting question would have been presented to us, to which counsel have invited our attention, that is to say, whether, if the full requirements of the forfeiture notice of section 2324 are strictly complied with, then is a forfeiture worked, and a transfer of title accomplished, ipsisfactis, or must the forfeiture be declared and adjudged by some appropriate action? But the facts of this case do not require a consideration of that subject. Brundy not being “advertised out,” and his interest not being forfeited, but he still owning the same, when application for patent is made by his co-owners, the case therefore comes to this point: There are three undisputed co-owners of a mining claim, namely, Mayfield, Upton, and Brundy. Mayfield and Upton apply for and obtain a United States patent to themselves, excluding Brundy. Two questions are therefore left. 1. Must Brundy file an adverse claim in the land-office (which he did not do), in order to prevent his title being finally acquired to themselves by Mayfield and Upton, through the process of applying for and obtaining United States patent? If Brundy need not file such adverse claim, then: 2. Are May-field and Upton trustees for Brundy? Both of these inquiries are fully answered in the last case in the United States supreme court which we have seen upon this subject (Turner v. Sawyer, supra), a case very similar, in its facts, to the case at bar. As to the necessity for Brundy to file an adverse claim in the United States land-office, we quote the following from the opinion of Mr. Justice Brown in that case:
“It is contended, however, that Sawyer is precluded from maintaining this bill by the fact that he filed no adverse claim to the lode in question under the Revised Statutes, section 2325. This section declares that ‘if no adverse claim shall have been filed with the register and receiver of the proper land-office at the expiration of the sixty days of publication’ of notice of application for patent, ‘it shall be assumed that the applicant is entitled to a patent, upon the payment to the proper officer of five dollars per acre, and that no adverse claim exists; and thereafter no objection from third parties to the issuance of a patent shall be heard, except it be shown that the applicant has failed to comply with the terms of this chapter.’ By section 2326, ‘ where an adverse claim is filed during the period of publication, it shall be upon oath of the person or persons making the same, and shall show the nature, boundaries and extent of such adverse claim,’ etc. In this case there was no conflict between different locators of the same land, and no contest with regard to boundaries or extent of claim, such as seems to be contemplated in these provisions. Turner did not claim a prior location of the same lode, and made no objection to the boundaries or extent of Sawyer’s claim, but asserted that lie had acquired Sawyer’s title by legal proceedings. The propriety of such claim was not a question which seems to have been contemplated in requiring the ‘adversing’ of hostile claims. In tins particular the case of Garland v. Wynn, 20 How. 6, is in point. In that case it was held that where the register and receiver of public lands had been imposed upon by ex parte affidavits, and a patent has been obtained by one having no interest secured to him in virtue of the pre-emption laws, to the destruction of another’s right who bad a preference of entry, which he preferred and exerted in due form, but which right was defeated by false swearing and fraudulent contrivance brought about by him to whom the patent was awarded, that the jurisdiction of the courts of justice was not ousted by the regulations of the commissioner of the general land-office. ‘The general rule is,’ says Mr. Justice Catron, ‘that where several parties set up conflicting claims to property, with. which a special tribunal may deal, as between one party and the government, regardless of the rights of others, the latter may come into the ordinary courts of justice and litigate the conflicting claim.’ Such was the case of Comegys v. Vasse, 1 Pet. 193, 212, and the case before us belongs to the same class of ex parte proceedings; nor do the regulations of the commissioner of the general land-office, whereby a party may be held to prove his better claim to enter, oust the jurisdiction of the courts of justice. We announce this to be the settled doctrine of this court. (See also Monroe Cattle Co. v. Becker, supra, and cases cited.)”.
As to * Mayfield and Upton being trustees for Brundy, and required to convey to Brundy, the same authority says: “Whether he procured such receiver’s receipt by fraudulent and false representations, as.charged in the bill, it is unnecessary to determine. It is clear, to put upon it the construction most favorable to him, that he acted under a misapprehension of his legal rights. There is nothing in the record showing that he ever became possessed of Sawyer’s interest in the lode. Assuming that, under the proceedings in the Teal suit, he had acquired the legal title to Sanderson’s interest, he became merely a tenant in common with Sawyer, and his subsequent’ acquisition of the legal title from the land-office inured to the benefit of his cotenants as well as himself. It is well settled that cotenants stand in a certain relation to each other of mutual trust and confidence; that neither will be permitted to act in hostility to the other in reference to the joint estate; and that a distinct title acquired by one will inure to the benefit of all. A relaxation of this rule has been sometimes admitted in certain cases of tenants in common who claim under different conveyance and through different grantors. However that may be, such cases have no application to the one under consideration, wherein a tenant in common proceeds surreptitiously, in disregard of the rights of his cotenants, to acquire a title to which he must have known, if he had made a careful .examination of the facts, he had no shadow of right. We think the general rule, as stated in Bissell v. Foss, 114 U. S. 252, 259, should apply; that ‘such a purchase’ (of an outstanding title or encumbrance upon the joint estate for the benefit of one tenant in common) ‘inures to the benefit of all, because there is an obligation between them, arising from their joint claim and community of interest, that one of them shall not affect the claim to the prejudice of the others. (Rothwell v. Dewees, supra; Van Horne v. Fonda, supra; Lloyd v. Lynch, supra; Downer v. Smith, supra.)’ A title thus acquired the patentee holds in trust for the true owner, and this court has repeatedly held that a bill in equity will lie to enforce such trust. (Johnson v. Towsley, supra; Moore v. Robbins, supra; Marquez v. Frisbie, supra; Rector v. Gibbon, supra; Monroe Cattle Co. v. Becker, supra.” See also Butte Hardware Co. v. Cobban, supra.) These matters discussed seem to dispose of this appeal.
The judgment of the district court directed that an accounting be had, and that it be ascertained what expense had been incurred by Mayfield and Upton in obtaining the patent, and that, upon payment of one-third of the same, or a legal tender thereof, by Brundy, that said Mayfield and Upton should execute and deliver to him a deed conveying said one-third interest.
The judgment of the district court is affirmed.
Affirmed.
PembertoN, C. J., and Hunt, J., concur.
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De Witt, J.
— Under the statute quoted in the statement above (section 1950, as amended), a majority of the school trustees must first decide to submit the question named in the statute to the electors, and the electors must then vote upon the proposition submitted. That which the trustees may decide to submit to the electors, and upon which the electors shall vote, is plainly stated in the statute. It is whether authority shall be given to the trustees to issue coupon bonds in a certain amount (within the limit defined by the statute) and bearing a certain rate of interest (within the limit fixed by the statute), and payable and redeemable at certain times and for certain purposes. So it seems that, in an election upon the question of issuing bonds of a school district, the matter submitted to the electors contains several propositions, as follows: 1. The amount of bonds; 2. The rate of interest which they shall bear; 3. The time when payable; 4. The time when redeemable; and 5. The purposes for which the money is to be used.
Consulting the notice published by the school trustees, set forth in the statement above, we find that they submitted to the electors only two of the above propositions, namely, the first and fifth; that is,' the amount of the bonds, and the purposes of the use of the money. They wholly omitted to submit the second, third, and fourth propositions, namely, the rate of interest of the bonds, the time when payable, and the time when redeemable. Were these propositions so omitted material, or were they simply formalities? The question now arises before the bonds are delivered to any purchaser, and no question of innocent purchaser is involved. (15 Am. & Eng. Ency. of Law, 1272, cases cited in note 4.)
We are of opinion that the trustees did not submit to the electors questions which the law required to be submitted, and that those questions so omitted should, on consideration of an application to enjoin the issuance of the bonds, be considered vital and material, and not simply needless formalities. An election for the issuance of school bonds is a special election, held pursuant to notice. The electors had no notice by any general law, as they have of a general election. The notice of election was therefore indispensable. (Mechem on Public Offices, §§ 172-76; Cooley on Taxation, c. 11.) But the alleged notice in the matter before us did not notify. The electors should have been permitted to decide what rate of interest they were willing that the district should pay. This item was important, and the statute considered it so. Whether the district should pay one rate of interest or another was a question whether the district should or should not pay out a certain sum of money as interest. The difference between one rate of interest and another is a sum of money to be paid, just as much as is the face of the bonds itself. And the statute provides that the electors shall decide upon the payment of this amount just as positively as that they shall decide upon the amount of the principal sum that they shall borrow. The time of payment and redemption is also a matter of importance to the electors. It is of interest to the borrower (and the electors are in fact the borrowers) to decide whether he wishes to make a short loan or a long loan, and whether he shall have the privilege to redeem in a short time, or whether he must allow the principal to stand, and he be compelled to go on and pay interest, after a date when he thinks that he can lift from himself the burden of this debt. These three important matters the electors never had an opportunity to vote upon. No one ever passed upon these questions, except the trustees when they came to prepare their bonds. We have no doubt that this was for the electors to determine, and not the trustees. As above noticed, this question arises under proceedings to enjoin the issuance and delivery of the bonds, and is not between any innocent purchasers of the bonds and the school district.
It is therefore ordered that the judgment be reversed, and the case be remanded to the district court, with directions to overrule the demurrer, and to proceed thereafter in accordance with the views expressed in this opinion.
Reversed.
PembertoN, C. J., concurs.
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] |
Hunt, J.
— The principal question for decision is: Under the revenue law of 1891, was a tax imposed on mortgages, deeds of trust, and other instruments for the security of debts, when such securities were owned and held by nonresidents of the state?
It is well settled in this state that under section 371 of the Code of Civil Procedure, which declares that a mortgage of real property shall not be deemed a conveyance, whatever its terms, so as to enable the owner of the mortgage to recover possession of the real property without foreclosure and sale, the character of the instrument is restricted to purposes of security, and is subject to the doctrines of equity. (Fee v. Swingly, 6 Mont. 596; First Nat. Bank v. Bell etc. Co., 8 Mont. 32; 1 Jones on Mortgages, §§ 20, 39.)
In Gallatin County v. Beatty, 3 Mont. 173, the assessor of Gallatin county assessed certain mortgages in that county to a resident of another county. Justice Knowles says: “A mortgage is a security for a debt. It creates no estate in real property. The equity doctrine is, that the mortgage is a mere security for the debt, and only a chattel interest. In regard to mortgages, we have followed the decisions of the courts of California, from which state we borrowed our statutes upon that subject. The rule established by the courts of that state upon this subject is an equity rule. .... The record of a mortgage is not the mortgage itself, or any more than any other copy.” (McMillan v. Richards, 70 Am. Dec. 655.)
Regarding a mortgage, therefore, for the purposes of taxa tion, as nothing more than a collateral security, depending upon some outside obligation to secure which it is given, it is established by the great weight of authority that the mortgage belongs to the owner of the debt, and passes with the debt to any lawful holder thereof. (Attorney General v. Supervisors, 71 Mich. 31.) The debt, therefore, if owned and controlled by one not a resident of the state, is not “property in the state subject to taxation,” as provided by the revenue act of 1891, but can be assessed only at the domicile or place of residence of the creditor, without regard to the domicile of the debtor. (Cooley on Taxation, 63; Eells v. Holder, 2 McCreary, 622; Grant v. Jones, 39 Ohio St. 514; State v. Van Syckle, 8 Atl. Rep. 120; Mayor etc. of Baltimore v. Hussey, 9 Atl. Rep. 19; City of San Francisco v. Mackey, 22 Fed. Rep. 602; State v. Darsey, 16 Atl. Rep. 161; St. Paul v. Merritt, 7 Minn. 258; Board of Commissioners v. Cutter, 3 Col. 349; Worthington v. Sebastian, 25 Ohio St. 1; Insurance Co. v. Assessors, 44 La. Ann. 760; Goldgart v. People, 106 Ill. 25; Foresman v. Byrns, 68 Ind. 247; 1 Desty on Taxation, 62, 330; People v. Eastman, 25 Cal. 603; State Tax on Foreign Held Bonds, 15 Wall. 300; People v. Smith, 88 N. Y. 577; Territory v. Delinquent Tax List, 24 Pac. Rep. 182; De Vignier v. City, 4 Wood, 206; Commonwealth v. Chesapeake etc. R. R. Co., 27 Gratt. 344.)
The appellant seeks to distinguish the foreign bond tax case, supra, from the doctrine fully supported by the authorities listed above, but nearly every case which we have read in our original examination of this question, or which has been called to our attention by the briefs of counsel, regards the opinion of Justice Field in that case as upholding the general principle that personal property, consisting of mortgages and debts generally, owned by a nonresident of the state endeavoring to tax such property, “ has no situs independent of the domicile of the owner.” And until the same court which rendered that opinion declines to regard it as maintaining such a principle, we accept the general interpretation given to the language of Judge Field as the correct one, restricting its application, however, to mortgages in the possession of the owner.
The case of Common Council v. Assessors, 91 Mich. 78, cited by appellant, decided that the law of Michigan taxing mort gages owned by nonresidents was not unconstitutional. The statute of that state, however, expressly provided that any “mortgage by which a debt is secured, when land within this state is pledged, .... shall, for the purposes of assessment and taxation, be deemed and treated as an interest in the land so pledged.” The court held that the legislature could give a situs to mortgages where the land was situated, treating them as interests in realty, though held by nonresidents. In distinguishing the case from the state tax decision, supra, the court say that the statute of Michigan “ imposes a tax upon an interest in real estate as such,” while the decision of the supreme court of the United States was, that a tax could not be imposed upon the bond itself which had a situs at the domicile of its owner. A careful examination, therefore, of the Michigan case demonstrates that the legislature, in the opinion of the court, had the power “to fix the situs for the purpose of taxation at the place of the location of the property mortgaged,” and that real estate mortgages, for the purpose of taxation, could be treated as interests in lands.
The Oregon cases cited recognize a statute of that state similar to that of Michigan, and uphold its constitutionality.
But until the legislature passes such a law in Montana, it is unnecessary to inquire into its validity, for we are of opinion that in the revenue law of 1891 there is no provision giving a situs to mortgages owned by nonresidents as property within the state. The general rule must therefore control, and the case be determined adversely to plaintiff. (See above authorities.)
It may be that if, as a fact, notes and mortgages owned by nonresidents are actually within the state, and are controlled by the agents therein, who retain them and make the investments for the owners, such securities, under the present revenue laws, are subject to taxation in the hands of such agents as property in the state. That question is not before us.
But, as said before, the case at bar is not excepted from the general rule that “securities, such as mortgages and the like, are deemed to have no situs except that of the domicile of the owner,” hence, are not subject to taxation in this slate if the domicile of the owner is without the state.
From the foregoing views, it logically follows that the as sessor, having assessed property not within the state, and therefore not taxable, cannot recover his fees for such assessment, (Herreman v. Showers, 43 Me. 499; Berry v. Commissioners, 6 Mont. 121.)
The order overruling a motion for new trial and the judgment are affirmed.
Affirmed.
De Witt, J., concurs.
|
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] |
De Witt, J.
— The court below based its ruling in the matter complained of upon its view of the decision in the case of Montana Ry. Co. v. Warren, 6 Mont. 275. That was an action by the railway company to condemn the land of a mining claim for railroad purposes. In that case the value of the land, botl) as a mine and as town lots, was proven. But the court instructed the jury that the landowner could not recover the value of the land for both purposes. This is all that is said of the instruction in the report of the case in 6 Montana, page 284. Upon examination of the record in the case, as filed in this court, we find that the instruction in this respect was, in full, as follows:
“12. If the jury believe from the evidence that the use of the surface of the Nipper claim for town-lot purposes would prevent its use for mining purposes to as great an extent as the construction of the railway prevents such use. and if they base their estimate of damages on the value of such surface for town lots, then they will not consider or allow any damages for any injury or inconvenience, or any diminution in value to or in the .claim for mining purposes — that is to say, the jury cannot, if they find as above, allow the owners damages both for the value of the surface of town lots, and also for the value of such surface for mining, purposes.”
The principle announced in the Warren case in this court and upon which the district court considered that it was properly proceeding in the case at bar was not disturbed on the appeal of that case to the United States supreme court. (137 U. S. 348.)
We are of opinion that the instruction in the Warren case, which we have quoted above, is a correct statement of the law; and, furthermore, that if this instruction had been placed in the opinion in that case in full, that the reasoning of the case would have more symmetrically appeared, and that the district court, in the case at bar, in ruling upon the question of evidence above described, would have been guided toa conclusion different from that which the learned judge below adopted. We are of opinion that the decisions hold that the landowner may recover the market value of the land for its most valuaable purpose.
The United States supreme court said, in the case of Boom Co. v. Patterson, 95 U. S. 105, as follows:
“The inquiry in such cases must be,what is the property worth in the market, viewed not merely with reference to the uses to which it is at the time applied, but with reference to the uses to which it is plainly adapted; that is to say, what is it worth from its availability for valuable uses. Property is not to be deemed worthless because the owner allows it to go to waste, or to be regarded as valuable because he is unable to put it to any use. Others may be able to use it, and make it subserve the necessities or convenience of life. Its capability of being made thus available gives it a market value which can be readily estimated. So many and varied are the circum stances to be taken into account in determining the value of property condemned for public purposes, that it is perhaps impossible to formulate a rule to govern its appraisement in all cases. Exceptional circumstances will modify the most carefully guarded rule; but, as a general thing, we should say that the compensation to the owner is to be estimated by reference to the uses for which the property is suitable, having regard to the existing business or wants of the community, or such as may be reasonably expected in the immediate future. .... The views we have expressed as to the justness of considering the peculiar fitness of the lands for particular purposes as an element in estimating their value find support in the several cases cited by counsel. Thus, In the Matter of Furman Street, 17 Wend. 669, where a lot upon which the owner had his residence was injured by cutting down an embankment in opening a street in the city of Brooklyn, the supreme court of New York said that neither the purpose to which the property was applied, nor the intention of the owner in relation to its future enjoyment, was a matter of much importance in determining the compensation to be made to him; but that the proper inquiry was, ‘ What is the value of the property for the most advantageous uses to which it may be applied’? In Goodwin v. Cincinnati etc. Canal Co., 18 Ohio St. 169, where a railroad company sought to appropriate the bed of a canal for its track, the supreme court of Ohio held that the rule of valuation was what the interest of the canal company was worth, not for canal purposes, or for any other particular use, but generally for any and all uses for which it might be suitable. And in Young v. Harrison, 17 Ga. 30, where land necessary for an abutment of a bridge was appropriated, the supreme court of Georgia held that its value was not to be restricted to its agricultural or productive capacities, but that inquiry might be made as to all purposes to which it could be applied, having reference to existing and prospective wants of the community. Its value as a bridge site was, therefore, allowed in the estimate of compensation to be awarded to the owner.”
It was said in the case of Colorado M. Ry. Co. v. Brown, 15 Col. 196, as follows; “Tn arriving at the value of the property taken, and the damages, if any, to the residue, a wide range of evidence is admissible. It must be conceded that the matters admitted in evidence on the trial of this case, as above stated, have some bearing upon the compensation and damages to be awarded by the jury, though, without proper instructions from the court, the jury might be misled by such evidence. But as counsel do not urge in argument any thing against the charge, and as, upon examination the instructions appear to be full and fair, we must presume that the jury did not draw improper inferences from the evidence.”
In Lewis on Eminent Domain, section 479, the author, after reviewing the topic of value for particular uses, closes the section with this language: “ The conclusion from the authorities and reason of the matter seems to be that witnesses should not be allowed to give their opinions as to the value of property for a particular purpose, but should state its market value in view of any purpose to which it is adapted. The condition of the property and all its surroundings may be shown, and its availability for any particular use. If it has a peculiar adaptation for certain uses, this may be shown, and, if such peculiar adaptation adds to its value, the owner is entitled to the benefit of it. But when all the facts and circumstances have been shown, the question at last is, What is it worth in the market”? (See, also, Maynard v. City, 157 Mass. 218; Russell v. St. Paul etc. Ry. Co., 33 Minn. 210; Harrison v. Young, 9 Ga. 359; Johnson v. Freeport etc.. R. R. Co., 111 Ill. 413; Amoskeag Co. v. Worcester, 60 N. H. 522; Goodwin v. Cincinnati etc. Co., 18 Ohio St. 169; 6 Am. & Eng. Ency. of Law, 569, note 7, and cases; Little River etc. R. Co. v. McGehee, 41 Ark. 202.)
Upon the trial of the Warren case testimony as to value for town-lot purposes, and for mining purposes, was offered, and allowed by the court. With this condition of the testimony, we think that the court properly stated the law applicable to such testimony, when it instructed the jury that the landowner could not recover the value of the ground for two uses or purposes, but we think that the court by this holding intended to say, and that it was so understood in the case, that this meant two incompatible uses. For if the uses are incompatible, if the landowner uses the land for one purpose he cannot use it for the other, nor could his grantee use the land for both such incompatible purposes, whether such grantee is a railroad company receiving by operation of law, or a town-lot occupant receiving by the grantor’s voluntary deed.
But, on the other hand, if the proposed or described uses of the land do not interfere with each other, it is apparent that the owner or grantee can use the land for both purposes, and, if such owner or his grantee can so use the land for two purposes, there is a value for each purpose, of which value the landowner is deprived, whether his land is taken from him by condemnation, or granted by him by voluntary deed. Such two compatible uses of the land would, therefore, go to constitute its market value, and it is conceded that the owner may recover the market value. We think that these views were those which obtained upon the trial of the Warren case.
In the instruction of the court to the jury in that case it was held, in effect, that a landowner could not recover a value for two uses of the laud if the one use excluded the other. Thus the court instructed the jury. The court did not instruct the jury simply and baldly that the landowner could recover only for the most valuable use, nor did the court instruct the jury baldly that the landowner could not recover for two uses, but the jury was instructed, in effect, that if one use excluded the other the landowner could recover for one only, and that he might recover for the most valuable use. By referring to the instruction in the Warren case it is seen that it holds that if the tojyn-lot use prevented a mining use to as great an extent as the railway use would prevent the mining use, then the landowner could recover the value of one use only. This seems to us logical, and perfectly in accord with the decisions that the landowner may recover the market value of the lanr.
But in the case at bar the court, by excluding f fidence as to value of the land for a mining use, and by forbidding the landowner from proving more than one use, c ;cided the question a 'priori of whether the town-lot use wou 3, in fact, interfere with the mining use to as great an extent. s the railway use would prevent a mining use. We cannc but conclude that this was a- question of fact which should have been determined by evidence. The evidence being into duced, the court should, by appropriate instructions, as in the Warren case, have properly limited the consideration of this evidence by the jury. The jury could then, under these proper instructions, have determined whether the town-lot use would destroy the owner’s use of the surface of the ground for mining purposes to the same extent as would the railway use.
It must be remembered throughout this whole consideration, however, that the railway company condemns and takes only the easement of the use of the surface of the ground (Code Civ. Proc., § 599), and does not take the owner’s estate in the minerals, or the right to work the ground for the minerals, if he can do so by not interfering with the railway’s estate in the easement. (Perley v. Chandler, 6 Mass. 453; West Covington v. Freking, 8 Ky. 121; Dubuque v. Benson, 23 Iowa, 248; Blake v. Rich, 34 N. H. 282; Tucker v. Eldred, 6 R. I. 404; Woodruff v. Neal, 28 Conn. 164; Jackson v. Hathaway, 13 Johns. 447.)
Therefore, in considering the compatibility or noncompati-bility, the consistency or inconsistency, of the uses of this surface easement for town-lot purposes and mining purposes, or for railway purposes and mining purposes, there must be constantly kept in mind the estate which the condemnation by the railway company takes, namely, the easement of the fight of way, which would be the same estate, as far as the mines are concerned, as would be granted by the owner if he voluntarily deeded to a town-lot occupant, reserving to himself the mines.
It is perhaps difficult to understand how the surface of the ground could be used for mining purposes if the easement of the right of way to the railway company had been granted, any better than such surface could be used for mining purposes if an easement for town-lot uses had been granted, but we cannot hold otherwise than that this matter is a question of fact upon which evidence should have been allowed, and upon which the jury should have decided, under proper instructions, as we nave above pointed out.
The judgment is therefore reversed, and the case is remanded for new trial
Reversed,
Hunt, J., cohcuipSo
|
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HüNT, J.
— The errors relied on will be noticed as presented by the briefs. Defendant moved the court to require the county attorney to give her a bill of particulars — that is, “a more specific statement of facts or evidence upon which the plaintiff will rely in the trial of said cause.” We think the court correctly overruled this motion. The information was sufficiently specific in its facts; and the charge was so plainly stated that the particular evidence which the state intended to produce was properly withheld from defendant until trial.
As will be observed by the information, the house is alleged to be situate on Sixth street, in the city of Miles City. On the trial the state’s witnesses swore that the street was Sixth, and was known as Sixth, but the defendant introduced a plat of Miles City, showing that the house was on North Sixth street. Granting that this was a variance it was an immaterial one, and could not prejudice the rights of defendant.
Upon the trial witnesses were asked as to the general reputation of the women who lived in the house — whether they were virtuous or not. The same question was asked in relation to defendant herself. These questions were all objected to as incompetent. We are oi opinion that the better reasoning sustains the ruling of the court in permitting proof of the general reputation for prostitution and lewdness of the persons, inmates of the house. It tends to prove the character of persons who resort to the place, and the intent of the keeper, and the general character of the house itself. The illicit acts which establish a woman’s character as a prostitute are very difficult to prove; and, of necessity, in order to place sufficient facts before a jury from which they may draw common-sense and legitimate inferences, there are a few classes of cases, of which this is one, where, to develop truth, character may be affirmatively proved by the prosecution, and by hearsay evidence of general reputation. (Commonwealth v. Gannett, 1 Allen, 7; 79 Am. Dec. 693; Commonwealth v. Kimball, 7 Gray, 329; 2 Bishop’s Criminal Law, § 112; State v. Hull (R. I.), 26 Atl. Rep. 191; 20 L. R. A. 609; Wharton’s Criminal Evidence, § 261; State v. Brunell, 29 Wis. 435; State v. McDowell, 1 Dud. (S. C.) 346; Territory v. Stone, 2 Dak. 155; Drake v. State, 14 Neb. 535.)
This view being supported by the weight of authority, it is difficult to see why the reputation of any particular inmate of the bawdy house should not be inquired into because such inquiry may involve the defendant herself. The principle of law that the character of a defendant may not be attacked by the state unless she puts her character in issue by her defense cannot be said to be violated because the evidence of her reputation is not admitted to prove that, inasmuch as the defendant is a prostitute, she is, therefore, a bad woman, and thus would be more likely to commit the crime charged against her, but as bearing upon a material issue in the information — that is, the character of the inmates of the house, of which she may happen to be one, and the character of the house, and the intent of the keeper. For these purposes we hold that, in cases like the one at bar, such evidence is competent and proper, particularly when limited by an instruction to the jury as to its applicability. A woman may live as the sole inmate and keeper of a bawdy house; yet, if several of the cases cited by appellant correctly state the law, although the reputation of the inmates of a bawdy house is a proper subject of investigation, still there could be no testimony offered to prove the fact that she was by reputation a prostitute, simply because she was the person charged with the offense. We think such a distinction is not well founded, and prefer to lay down the rules fixed in those cases which put the defendant keeper, if an inmate, on a plane with the others, whose characters become matters of common repute. (See Sparks v. State, 59 Ala. 82, and State v. Brunell, supra.)
The court charged the jury, by instruction No. 11, as follows: “It is competent for the state to prove by reputation the character of the house, and of the inmates, and of those who frequented the house, for the purpose of proving the character of the house kept; but whether or not the defendant was the actual keeper of said house cannot be proven by repu tation. You must be satisfied by other proofs, beyond a reasonable doubt, that she was the keeper, before you can find her guilty.” The use of the house being material, the appellant argues that this statement of the law by the court was error. She contends that even if the court holds that the reputation of the inmates of a bawdy house may be legally proved to be bad, for purposes herein discussed, nevertheless the character of the house itself may not be so proved, but that positive evidence must be adduced for that purpose. There are a few cases which decide that, where the house has the reputation of being bawdy, the jury may find as a fact, from such evidence alone, that it is a bawdy house, and is used as such; but we are of opinion that, the use of the house for evil purposes being a material fact, there should be proof of such actual use; and that reputation alone, without such proof, is insufficient. Such was evidently the theory of the county attorney in the conduct of this case, because he carefully avoided the introduction of any testimony pertaining to the reputation of the house, and relied entirely upon proof of facts of a most positive nature. We do not hold that the state must prove the reputation of the house, as do some cases (Cadwell v. State, 17 Conn. 467), but that, while evidence of its general reputation is competent as bearing upon its character, yet there must be some testimony of its actual use as a house of ill fame. (State v. Smith, 29 Minn. 193; State v. Boardman, 64 Me. 523; Toney v. State, 60 Ala. 97; State v. Lee, 80 Iowa, 75; 20 Am. St. Rep. 401). This proof maybe made by showing, as was done in this case, the gathering at the place of men and women for illicit commerce of the sexes, by the lewd conduct of such persons, by their obscene language and profanity, or by other facts and circumstances from which may be deduced the conclusion that the house was in fact used for purposes of prostitution and lewdness.
By the instruction above quoted the jury were told that the character of the house could be proved by reputation. This is the law, provided there are other facts or circumstances in connection with such evidence of the reputation which satisfy the jury, beyond a reasonable doubt, that the house is not only one of ill fame, but is used for purposes of prostitution and lewdness. But that portion of instruction No. 11 just examined was inapplicable to the case at bar, for the reason, as stated before, that there was no testimony at all introduced by the state to prove the reputation of the house in question. The charge was not pertinent, and, although by itself incomplete, yet defendant cannot complain, provided the jury could not have been misled, and provided, further, the law was fully and correctly stated elsewhere in the charge.
We have made a most careful examination of the entire instructions given to the jury in this case, and our conclusion is that the law was correctly stated. By instruction No. 4, the court, after telling the jury that a person might be convicted of the crime charged if she knowingly permitted any of the inmates of her house to use any portion thereof for the purposes of prostitution and lewdness, expressly charged them, among other things, that such a use was necessary to justify conviction. The language given was as follows: “And you further find from the evidence, beyond a reasonable doubt, that said house was so used and occupied, .... then the defendant would be guilty of the crime charged in the information.” The sentence quoted was a correct statement of the law predicated upon the evidence. It told the jury what must be proved, and, upon the point under consideration, was a fair statement of the whole law applicable to the testimony adduced on the trial. But, again, the jury was told, in instruction No. 18, that, to constitute a nuisance, the house must be kept as a place of public prostitution. This was also proper, and, when considered with instruction No. 4, required the jury to be satisfied by the evidence, beyond a reasonable doubt, that the house was both used and kept for bawdy purposes. In the light of these instructions, and the overwhelming weight of testimony to support the verdict, the jury could not have been misled in their deliberations. Moreover, the court did not assume in instruction No. 11 to state all the facts necessary to sustain a conviction; and, inasmuch as the essential elements of the offense were properly charged in other instructions based on the testimony, the defendant could not have been finjured by an incomplete, but wholly inapplicable, statement of law. (Bird v. State, 107 Ind. 154; Thompson on Trials, 2407.) The judgment heretofore modified by this court is sustained.
Affirmed.
Pemberton, C. J., and De Witt, J., concur.
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Harwood, J.
— This writ of habeas corpus is accompanied by a writ of certiorari, whereby all the proceedings leading up to the order for the commitment of relator are brought before this court. Thereby it appears that John H. Ming died in the year 1887, leaving, as heirs, Katherine L., widow, and John H. and James L. Ming, sons of decedent, to whom decedent had, by last will and testament, bequeathed all his estate, and appointed Katherine L. Ming executrix of said will; that said will was duly admitted to probate, notice to creditors given, and other preliminary matters and proceedings as to said estate, required by law, were attended to; that in 1889 the executrix made a report showing the condition of said estate, which report, after notice, as provided by law, was considered, settled, and approved; that no report was thereafter made until about February, 1894, when, in obedience to an order of court calling for a report of the condition of said estate, said executrix presented one, covering the period intervening since the first report, made in 1889; that said other two heirs, John H. and James . L. Ming, both being of the age of majority, joined in approving tire last-mentioned report. In their approval thereof these heirs say: “We have been at all times familiar with the executrix’s management of this estate; have been consulted freely by her in the matter of sale of personal and real estate, and all rental of real estate, from which the income has been derived; and have also approved, and hereby approve, her management in this estate in that respect. We have also been familiar with the several items of expenditure, as they have been made; have been consulted freely by her at the time and under the circumstances when the same were made; and we have approved, and do hereby approve, all her acts in regard thereto, and we hereby give our unqualified assent and approval of all her acting as executrix, as shown herein, and of the expenditures contained in this report, and mutually join in the request that this, her report, be allowed, and that she be permitted by this court to retain from the future income of said estate the present indebtedness of two hundred and fifty-three dollars and twenty-two cents, now shown to be due her, and such other items of expenses as she may have incurred, or may hereafter incur, in the interest and for the benefit of this estate.” This report was not only accompanied by the approval of all heirs interested in said estate (all of them being of the age of majority), but no creditor, or any one whosoever claiming to be interested, has made any objection thereto since the filing thereof. Nor does there appear to have been any inves tigation, consideration, or other action taken by the court in respect to said last report (Probate Code, §§ 265-68),- until after the peremptory order removing the executrix was made. But, on or about July 23, 1894, an order was made by the judge of the probate court peremptorily removing said executrix, basing said order, as appears therefrom, upon the ground that said executrix had not .made annual reports of the condition of said estate, from time to time, for the years intervening between 1889 and the said last report; and, upon the further ground, that it had come to the knowledge of the judge, exercising probate jurisdiction, through the files and records of the district court, within and for Lewis and Clarke county, that an action had been commenced in that court by John H. and James L. Ming against the First National Bank of Helena, and the relator, Katherine L. Ming, for the purpose of obtaining a decree canceling a certain mortgage executed by Katherine L., John H., and James L. Ming, of their interests in certain property of said estate, to said bank, to secure certain indebtedness, the ground alleged for cancellation of said mortgage being that Katherine L. Ming had used undue influence with John H. and James L. Ming to induce them to join as parties thereto. Thereafter the relator, Katherine L. Ming, was cited- to appear before the probate court; and the court appointed three referees to investigate and report upon the account of the executrix, last filed, and generally to inquire into the management of said estate by the executrix, and also to inquire into the question of the fitness and competency of said executrix to remain in that office, and report upon those questions. Thereupon the referees, in proceeding with that inquiry, called said executrix as witness, and, having questioned her generally in regard to her last account and report upon said estate, required her to produce all books in her possession wherein were entries or memoranda of transactions or accounts of expenditure in reference to said estate. The executrix replied that, if proper objection or contest were made as to any item or items of the account shown in said last report, she would establish the same by proof, but, without such objection, she declined, through her counsel, to produce books and enter upon a showing on the inquisition- of the referees, where no question, objection, or contest had been made. Report of this conduct of the executrix having been made to the court, an order was made by the court committing the executrix for contempt for refusing the demand of the referees as aforesaid.
Counsel for relator contend that, by the terms of the will, said estate was transferred to the executrix as a trustee, and in that capacity alone she was holding and managing the same until the time for final distribution thereof; and that after the probate of the will, the filing and recording of the inventory and appraisement, the notice to creditors, and the report showing settlement of their claims, etc., as was shown by the executrix’s report of 1889, her further possession and management of said estate was in the cajjacity of trustee solely; and it is set forth in the application for writ of certiorari that she neglected to make reports of the condition of said estate to the probate court after the report of 1889, because her counsel advised her that no reports were required by law as she was merely trustee in charge of the property of said estate, awaiting time for distribution. But we shall not enter upon the consideration of that point, because we deem it unnecessary in this proceeding. This was not a ease for reference. The executrix made report concerning the affairs of said estate, covering the period intervening since her last report of 1889; and the same was not only uucontested, but was accompanied by the approval of all the heirs interested in said estate, all of whom were of the age of majority. Such was the showing, and therein no ground appears, in reference to said report, for the suspension or removal of the executrix; nor was there any objection raised in reference to the report on which an issue was formed for reference. (Probate Practice Act, §§ 113-15, 267-70; In re Russy’s Will, 14 N. Y. Supp. 177.) Nor were the allegations contained in the pleadings, on file in the district court as aforesaid, ground for the removal of the executrix. The matters there set forth pertained to transactions wherein, as alleged, the heirs interested in this estate have joined in executing a mortgage of their respective interests in certain property thereof, to secure certain indebtedness. If competent to act a person interested has power to assign or convey away his or her interests in an es tate as a private transaction. Whether that was done in legal form, and free from conditions which might invalidate the mortgage, are questions to be tried in that litigation, where the same are raised for adjudication. That controversy pertains to private transactions, apparently, by individuals who were of the age of majority, and, so far as shown by any adjudication, competent to act in that behalf. But if any fraud was perpetrated therein, which is not to be presumed at this stage of the action, that question should be adjudicated in that action. If the parties to said mortgage should be found to have made a valid encumbrance upon their interests, that finding would be based upon the fact that they were competent to act in that behalf. And if it were found that they had power to act, and had made a valid and binding transaction, in respect wherein their action was subject to their own control, it certainly would not be ground for depriving the executrix of her office in respect to said estate. Whatever may be the result of that adjudication the questions involved therein should be left to the adjudication of the court having jurisdiction of that action.
By the same order whereby the executrix was temporarily removed the court appointed Joseph N. Kenck, public administrator “as. special administrator to take charge of said estate, and execute the provisions of said will in reference to said estate,” and ordered “that special letters of administration, with the will annexed, issue to him.” Immediately thereafter, and as soon as said order came to the knowledge of the Ming brothers, John H. Ming petitioned the court to revoke the appointment of Kenck as such special administrator, and at the same time made formal application for appointment of John H. as special administrator of said estate. In that petition for such appointment John H. Ming was supported by James L. and Katherine L. Ming. But it appears that petition was not entertained, or, as it is alleged in these proceedings, no action was taken thereon, although the same was presented to the court, and the court was asked to hear and act upon said petition. Thereupon writ of certiorari was sued out on behalf of John H. and James L. Ming, to review the order of the court making such appointment of special administrator; relators insisting therein that the court had exceeded its jurisdiction in refusing to appoint John H. Ming as special administrator in case any exigency had arisen requiring the appointment of a special administrator of said estate. This proceeding was argued and submitted for determination along with the habeas corpus proceeding.
There being no appeal from an order appointing a special administrator, it has been held that certiorari would lie to review the jurisdictional question involved in such appointment. (Probate Practice Act, § 97, Comp. Stats., p. 296; In re Murphy, Pub. Admr., 11 Mont. 401.) On the subject of appointment of a special administrator the statute provides, in section 55 of the Probate Practice Act, that letters of administration “must be granted to some one or more of the persons hereinafter mentioned, who are respectively entitled thereto, 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 and mother; 4. The brothers,” etc. This section prescribes, in ten subdivisions, the order in which certain persons have a right to succeed to the administration of an estate. Section 95 of the same act provides that “when there is delay in granting letters testamentary or of administration from any cause, or when such letters are granted irregularly, or no sufficient bond is filed as required, or when no application is made for such letters, or when an administrator or executor dies or is suspended or removed, the probate judge must appoint a special administrator to collect and take charge of the estate of the decedent, in whatever county or counties the same may be found, and to exercise such other powers as may be necessary, for the preservation of the estate, or he may direct the public administrator of his county to take charge of the estate.” And section 97 of the same act further provides: “ In making the appointment of a special administrator the probate judge must give preference to the person entitled to letters testamentary or of administration, but no appeal must be allowed from the appointment.” Under these statutory provisions we think it clear that, when occasion arises for appointment of a special administrator, the court must appoint from those in right of succession thereto, as provided by statute, if they do not waive their right by failing to apply, or by failing to insist upon or prosecute their application, or in some manner consenting to the appointment of another by the court; and the court is not at liberty to pass over those to whom the statute gives the prior right of both general and special administration, and appoint the public administrator as special administrator, or order the estate into the charge of the public administrator, when an exigency arises calling for appointment of a special administrator. The only ground for contention that the court has power or discretion to ignore those stauding in prior right to administer, either generally or specially, and put the estate into possession of the public administrator, is the clause of section 95, which, after enumerating the occasions for the appointment of a special administrator, provides: “ Or he may direct the public administrator of his county to take charge of the estate.” No doubt that is a wise provision, for there are cases wherein no one is entitled to general or special appointment, precedent to the public administrator. In such cases the court would not be absolutely bound to appoint a special administrator, but might direct the estate into the charge of the public administrator. But sections 55 and 97 declare, without condition or proviso, that when occasion arises for appointment of an administrator, either general or special, the court must appoint from the heirs and relatives of decedent, in the order prescribed; and to hold that said clause of section 95 empowered the court, whenever occasion arose for appointment of a special administrator, to put the estate in charge of the public administrator, notwithstanding the heirs and distributees of decedent applied, would, in effect, insert into section 97, following the statutory declaration that the court, “in making appointment of special administrator, must give preference to the persons entitled to letters testamentary or of administration,” a proviso to this effect: “Unless the court deems it preferable to put the estate into the charge of the public administrator.” No such proviso is found there. Moreover, the provisions of all the sections of the statute on this subject, read together, clearly manifest an intention on the part of the legislature that the “ next of kin entitled to share in the distribution of the es ate” in the order prescribed shall have a right, precedent and paramount to strangers, to administer the estate in all cases, either as general or special administrator.
In' relation to the Davis estate occasion arose for the appointment of a special administrator. There were next of kin entitled to apply for such appointment, such as brothers and nephews of decedent; but the court went outside of those relatives and distributees of the estate, and appointed a person whom the court deemed suitable for that office. Thereupon all the heirs and distributees who could have demanded such appointment precedent to the one appointe¶, as well as to the public administrator, tacitly acquiesced in the appointment made by the court. One of the heirs who had applied for appointment as special administrator ceased to prosecute his petition, and no other relative of decedent who might have claimed such appointment applied for the same. Nothwithstanding this tacit or implied concurrence of all the heirs in the appointment made by the court, the public administrator sought to overcome that arrangement, and compel appointment of himself. The conclusion and holding of this court in that case (State ex rel. Murphy, 11 Mont. 401) was that, as between the public administrator and the appointee, under such conditions, the public administrator was not entitled to the appointment. That case involved no such question as is here presented; nor was there involved therein the consideration of the question whether the appointment of the public administrator (if it had been made in that case) could have been sustained against the demand of heirs and distributees for appointment, in the order provided by statute. But to sustain the appointment of the public administrator in this case would be to hold that, in case the court had put the vast estate of Andrew J. Davis into the charge of the public administrator, when occasion arose for the appointment of a special administrator, that appointment must have been sustained against the demand of the heirs and distributees for the appointment, even though all of them joined in petitioning the court for the appointment of one or more of them, as provided by statute. Such holding, we think, would be entirely contrary to the spirit and intendment of the statute upon this subject; and therefore we hold that-, in appointing the public administrator or special administrator, or in ordering the estate into the public administrator’s charge in this case, while one next of kin, to whom the statute had given prior right to the office of both general and special administrator, sought such appointment, the court exceeded its jurisdiction.
As a result of our consideration of the proceedings here presented it will be ordered: 1. That petitioner in the writ of habeas corpus, Katherine L. Ming, be discharged from custody; 2. That the order of the probate court appointing Joseph N. Kenck as special administrator of said estate, with the will annexed, be vacated and set aside.
Pemberton, C. J., concurs.
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] |
Hunt, J.
— Whether or not the district court exceeded its jurisdiction in making an order requiring the executors of the will of decedent to file an inventory and accounting is the ultimate question to be decided by the court. But, in reaching a conclusion upon this very important case, it becomes proper to discuss several incidental questions involved: 1. The attitude of appellants towards the court, under the will of decedent; 2. If they are executors, what may the court say must be done by them under the law? 3. To what extent shall their execu-torial duties go before they may be discharged, if a discharge be necessary at all? 4, If trust duties are imposed by the terms of the will, at what period of time may there be a discharge of appellants as executors,jand a distribution to them as trustees? We do not find it necessary to enter into any discussion of the question of what the rights of the appellants may have been bad they never qualified as executors; or to discuss at any length exactly what powers were conferred upon them independently of their executorial duties, and the trusts imposed in the performance of such duties. The appellants stand before the court having been named by the decedent as the executors of his will and testament, and as having voluntarily rendered themselves subject to, the jurisdiction of the district court by duly petitioning for the probate of the will, and by duly receiving appointments as executors, according to law.
The will conferred authority upon the appellants to perform duties within the general powers of executors as such. It is not claimed, and could not be, we take it, that these execu-torial powers were illegally assumed, but merely that, although they were assumed by the appellants, still, under the provisions of the will, the title in fee to all of the estate of the decedent passes to and vests in the persons named executors, as trustees, immediately upon the death of the decedent. It is therefore contended that no inventory need be filed; that no notice to creditors need be given, and that, without proceeding any farther than to probate the will, administration is unnecessary, and not demanded by the laws of the state; that no accounting is required by the executors, as such, and that without any formal order of court, and by operation of the effect of the will itself, the property passed to the trustees.
There are undoubtedly conferred upon the persons named as executors of the will duties and powers properly within the office of trustee, for instance, the direction to invest moneys, and keep the same invested for the joint benefit of the heirs named in the will, and perhaps the direction to provide for the support of the family. The intention of the testator seems to have been to repose a personal trust in the persons named as executors, but however that may be, it cannot relieve the executors now qualified from proceeding as such, and executing the provisions of the will, subject to the law and the approval of the court. Charges upon the estate, collecting the assets and keeping them, administration charges, debts, and other expenses may arise. Under such conditions even a trust estate may not always pass under a general devise. (Buffum v. Town Council, 16 R. I. 643.)
When the executors of the will qualified, they therefore took upon themselves certain executorial duties. By section 118 of the Probate Practice Act they are required to make and return to the court a true inventory and appraisement of all of the estate of the decedent, including the homestead, if any, which has come into their possession or knowledge. This inventory must contain all of the estate of decedent, real and personal, a statement of all debts, partnerships, and other interests, bonds, mortgages, notes, and other securities for the payment of money belonging to decedent, and an account of all moneys belonging to decedent which have come into the hands of the executors, and, if none, the fact must be so stated in the inventory. It is to be observed, too, that so sweeping is the provision requiring an inventory under our statutes, that although an appraisement of money is not required, yet “an inventory must be made” and returned, as in other cases. The executor must swear to the inventory, and, if property not included in the first inventory comes into the possession or knowledge of the executors, they must make another inventory after the discovery.
The object of the inventory is to show creditors, and other persons interested, of what the estate may consist. The executor being chargeable by section 248 in his own account with the whole of the estate which may come into his possession, at the value of the appraisement contained in the inventory (except as especially provided), his responsibility may be governed and limited by the valuation with which, under this statute, he is obliggd to charge himself. The heirs properly look to the inventory as essential, in case they institute action against the executor because of any maladministration on his part, or any misappropriation of the estate. The authorities regard the inventory of a decedent’s estate as of the highest importance. It has been held in New York by the surrogate’s court that a will containing a clause dispensing with an inventory was invalid so far as such a clause might operate to relieve the executor of complying with the law requiring him to file an inventory. The question arose in an estate involving a very large fortune. But the surrogate decided that it was against public policy “to permit such interference with the forms of procedure established by law, or to remove the barriers designed to protect estates from misappropriation. The safety, preservation, and honest distribution of the decedent’s estate require that provisions like the one in question should be declared invalid and of no effect.” ( Will of Potter, 3 Demarest, 108.)
“It is the basis upon which the representative makes his accounts; it shows the amount for which he is chargeable, and limits presumptively his responsibility, except for increments) income, and such assets not therein appraised, through ignorance, inadvertence, or other cause as may come afterwards to his hands. On the other hand, the heirs and other parties interested have, in the recorded inventory, the best evidence possible, under the circumstances, of the assets, their condition and value as they came to the representative’s possession and knowledge at the outset of his administration, and supplies them with essential evidence, in case it becomes necessary to institute proceedings against him, or oppose the allowance of his accounts because of negligence or misconduct while invested with his responsible office.” (Schouler’s Executors and Administrators, § 237.)
By our laws, too, the possession of realty passes to the executor, who is authorized to collect rents, “until the estate is settled, or until delivered over to the heirs or devisees.” The right to maintain an action for the possession of real estate is conferred upon the executor, who may act in such suit with or without the heirs or devisees.
The supreme court, in Black v. Story, 7 Mont. 238, decided that under the statutes quoted above, and others of the Probate Practice Act, ejectment would lie against mere trespassers for the possession of realty of a decedent when brought by his administrator.
By section 83 of the Probate Practice Act, where it is expressly provided in the will that no bond shall be required> sales of real estate may be made and confirmed, without any bond, unless the court, for good cause, require one to be executed. The right of the court, however, to demand this bond is unquestionable, and conforms with the policy of the probate laws of the state, which enable the court to exercise a supervision over the affairs of the estate, lest because “of some change in the situation or circumstances of the executor, or for other sufficient cause,” the rights of those interested may be endangered.
Section 88 gives the court, upon a showing made on oath that the executor is wasting the property of the estate, the authority to suspend an executor’s powers until the application to require him to give bond is determined. This power of the court may be exercised where, by the terms of the will, no bond was originally required, and is to be invoked by the probate judge himself, without any application, when it comes to his knowledge that the bond, if one is given, is insufficient. His letters may be revoked if he fails to give new sureties, and all his powers taken away from him.
In passing upon the right of possession of realty conferred upon an executor, Field, C. J., in Weeks v. Hahn, 20 Cal. 621 (1862), held that under the code of California, which contained at that time a provision similar to section 127 of the Montana Probate Practice Act, that although the estate of an intestate descended to the heirs, subject to the payment of his debts, “yet this provision must be read in connection with the clauses of the other statutes to which we have referred, which place the right of present possession in the administrator;” and that such right of possession remained in the executor until the estate was settled, or delivered over to the heirs by order of the probate court. And the court conclude that, under the statutes of California, which are substantially like ours, “ the right to the possession of the real property of an intestate remains exclusively with the administrator until the estate is settled, or distribution is directed by order of the probate court.”
The supreme court of Nevada in Gossage v. Crown Point M. Co., 14 Nev. 153 (1879), discussing the possession of realty by an administrator, as given by a statute similar to that of this state, held that such possession “ is for the benefit of the creditors and the heirs,” and for the purposes of administration. The court, quoting from the case of Bufford v. Holliman, 10 Tex. 575, say: “By law the whole of an estate vests in the heirs testate or ab intesto, at the death of a person deceased. It passes from them sub modo for the purposes of administration, and the administration is required to be speedy, so that the remainder, if any, may be returned to its real owners, the heirs.”
The plaintiffs in that case brought ejectment, alleging that the first administrator had rendered his final account, that all the debts had been paid, that the second administrator had left the state of Nevada, and that the administrator appointed in his place had declined to commence any suit to protect the rights of the plaintiffs, and waived all rights which he might have as such administrator. Under such peculiar facts the court held that the heirs might maintain the suit in their own name, and although the right of possession of the realty is conceded, in the opinion, to have been exclusively in the administrator until settlement of the estate, yet, as the heirs alone would be benefited or injured by the result of the suit, the facts warranted their being held to be the real parties in interest.
We are cited by appellants to Flood v. Pilgrim, 32 Wis. 376, but in that case the real estate devised had passed into the possession of the devisees thereof and those claiming under .them. The executor of the will did not qualify. There was no estate whatever at the time that the plaintiff was appointed administrator of the estate of the decedent, nine years after his death. There were no debts. The court held that the administrator had no right to sue to establish the title of the devisees as against the defendant, and that the statutes which conferred the right of possession of the realty upon the administrator only applied where there was an estate. The case does not apply to the case at bar, where there is an estate, and where executors have qualified, aud where the devisees do not appear to have parted with their title. It is fair to say, too, that the opinion cites no authorities, and, apart from its applicability to the particular facts, is entitled to but little weight.
Again, the executors are required to publish a notice to creditors. This requirement, the books say, is engrafted upon our Probate Practice Act in pursuance of the practice of English chancery courts, where notices were issued requiring creditors to file their claims with the executor within a certain time. Under section 147 of the statutes the notice in this case, assuming the estate exceeds in value ten thousand dollars, would be ten months from the date of the first publication. By section 153, when a claim is presented to an executor he must indorse thereon his allowance or rejection, and thereafter he must present the claim to the probate judge, who must allow or reject the same. And the only way by which creditors may secure recognition of their just claims, except where they are without the state, is by proceeding in the manner just outlined. The creditor cannot maintain his suit, under section 157, against an estate, unless he has presented the claim to the executor. And, by section 150, if the claim be one arising upon a contract, unless presented within the time limited in notice, it is barred forever, except under particular conditions.
We are at a loss to see how the ex parte affidavits of Mrs-Higgins, and others interested in this particular estate, to the effect that there are no debts, can be sufficient proof to enable a court in a judicial decree to find the fact to be as stated by the affiants. Creditors have never had the requisite notice. They have not been obliged to present their claims, and, as the law gives them ten months after the first publication to file them, we think that until that time has elapsed there cannot be enough proof upon which to base a final decree that there are no debts.
This notice to the creditors is regarded as a reasonably certain way of reaching creditors, and enables the court to exercise jurisdiction over the estate in protecting the interests of those concerned. How is it known that there are no debts? And upon what is the court to now base an order to that effect? Creditors have a right to rely upon a compliance with the statutes by executors, and may rest secure in that reliance under the belief that, the property being in the possession of the executor, the estate is held for the payment of debts of the testator, as well as legacies and devises.
Passing on to investigate the method by which the duties of appellants as executors may cease, and their duties as trustees may begin, we will examine the decisions bearing upon this subject.
Hall v. Cushing, 9 Pick. 395 (1830), in discussing the liability upon a probate bond, the supreme court of Massachusetts uses this language: “The defendants’ counsel contend ‘that the office of executor (so far as the law furnishes other security than the personal responsibility of the executor for the faithful performance of its duties) consists in the care of the funeral, in the probate of the will, in the payment of debts, and the paj'ment of or assent to legacies; and ceases when the residue is paid over to the legatees, or a transmutation of property is effected by the act of the executor, or by the operation of law.’ We think, however, very clearly, that the duties of an executor are not confined within such narrow limits. There are other important duties which devolve upon him, the performance of which is intended to be secured by his official bond. He is required to keep the property of the testator, while remaining in his hands as assets, without suffering -it to be wasted, and to account for it under oath, when cited by the probate court for that purpose; and, if he fails in either of these particulars, it will amount to unfaithful administration and a forfeiture of his bond. Or if he neglects to object to claims against the estate which cannot be recovered by law (as in the case of Parsons v. Mills, 1 Mass. 431; 2 Mass. 80), or if judgment be recovered against him on a suggestion of waste, the judgment creditor will be entitled to a remedy against him on his probate bond. (Fay v. Bradley, 1 Pick. 194.) .... And, again, before there could be any transmutation of property, as contended by defendants’ counsel, the executor must have settled his final account of administration in the court of probate, in which the balance due from him as executor should be allowed to his credit, as being retained by him in his capacity as trustee for the minor children.”
In Newcomb v. Williams, 50 Mass. 525, decided in 1845 by Shaw, C. J., in an action of debt on a probate bond, where a will appointed R., one of the executors, “ a trustee of all his property, except so much as the executor will require to pay debts and expenses, to take full possession, and keep it at interest, to apply the income of a part to the support of his mother, and, subject to that appropriation, to pay over the residue to his nephews,” that truly learned judge goes on to say:
“Now it is argued that as the testator has the jus dis-ponendi, and did direct the property, immediately after his decease, to go into the exclusive possession of the trustee, it was rightly disposed of according to the will, and the executors, as such, had no further control over it, and were no longer responsible for it. This argument is plausible, but we think it is fallacious, and founded on a misconception of the powers of the testator, and the relative rights and duties of an executor and a trustee. It is not legally correct to say that a testator has the jus disponendi of his property; it is true only sub modo. The executor, as such, is bound to administer the whole estate, as well that not given by the will as that embraced in it. (Hays v. Jackson, 6 Mass. 149.) The first claim on the estate is that of creditors; and it cannot be known until an inventory is returned and an account settled, whether the whole estate will not be necessary for the payment of debts. So children, or their issue, who have no share given them, and posthumous children, are entitled to the same distributive shares which they would be entitled to if the estate were intestate. These claims are paramount to those of legatees, and no disposing power of the testator can defeat them. To meet these claims, and to enable the executors to perform the trust which the law devolves upon them, the whole property must, in the first instance, come to them, and be disposed of in an orderly course of administration, which the testator cannot control. For this purpose, it is an established rule of law that all the personal property of the testator vests in the executors, for some purposes before probate of the will; but to all intents and purposes, upon its probate. This they take, not merely as donees, by force of the gift, as inter vivos, but by operation of the rules of law controlling, regulating, and giving effect to wills. A trustee, therefore, who is but a legatee, can take only through the executors. If a testator were to appoint no executor, or direct that the estate should go immediately into the hands of legatees, or of one or more trustees, for particular purposes, such direction would be nugatory and void; and, it being a will in which no executor is appointed, it would be the duty of the judge of probate to appoint an administrator with the will annexed, who would have all the powers of an executor, and in whom all the personal property would vest. (Rev. Stats., c. 63, § 1.) Being of opinion that, by this will and the acts done under it, the executors became jointly possessed of the personal property, and responsible for it, we are then to consider whether the taking of it by one of them, who was also sole trustee, under the circumstances stated, discharges the executors. When the executors and the trustees are different persons there is no difficulty; nothing but an actual payment to the trustees, by the executors, will discharge them. So, if the trust is cast upon them as executors, the execution of such trust is a duty superadded to their official duties as executors, and, until they qualify themselves and assume to act in their separate capacity as trustees, the bond to perform their duties as executors binds themselves and their sureties to the execution of such trust. (Hall v. Cushing, 9 Pick. 395; Door v. Wainwright, 13 Pick. 328; Towne v. Ammidown, 20 Pick. 535.) What would amount to such change of capacity, when the same persons are executors and trustees, so as to exonerate the sureties on the executorship bond, would depend on circumstances. If, by the constitution of the trust, they were exempted from giving bonds, as they may be (Rev. Stats., c. 69, § 2), it would probably be held sufficient — as no actual payment can be made to one’s self — to show, by any authoritative and notorious act, that they had elected to act in the capacity of trustees; as, for instance, if they claim a credit in their executorship account filed in the probate office for a sum held by themselves as trustees, and also file an inventory or account, charging themselves with the like sum as trustees. (Hall v. Cushing, supra.) But, when a bond to the judge of probate is required, such transmutation of the property cannot be complete, so as to discharge the executors, until such bond has been given. (Rev. Stats., c. 69, § 1.) And we think the same rule applies when one of the executors is himself trustee. Such charge in the one capacity, and claim to be discharged in the other, would avail if no bond were required.”
In Prior v. Talbot, 10 Cush. 1 (1852), Prior was appointed executor and trustee of his father’s will, and was directed to set apart a certain part of the estate and invest the money, and to appropriate the income to the widow for life, and upon her death to distribute the principal. Prior qualified as executor and invested certain moneys for the widow, which were repaid him. He used these funds and became insolvent afterwards.' In filing his accounts in the probate court as executor he did not charge himself with certain of the funds set apart for the widow. The court decided that the appointment of Prior as executor imposed a duty upon him to retain the principal fund and invest it, and that he was responsible until he discharged himself of the implied trust. “Here,” continued the court, “he was appointed executor and trustee. If, for greater convenience, he wishes to close his account as executor, and open a new account as trustee, he must give bond in the capacity of trustee, and charge himself in one capacity, eo instanti, and by the same act by which he claims his discharge in the other.”
Miller v. Congdon, reported in 14 Gray, 114 (1859), bears closely upon the contention of the appellants in the ease at bar. Miller and wife sued to recover the unpaid balance of a legacy bequeathed to Mrs. Miller by the will of Pelag Clark, her father. Congdon was executor. Judge Hoar, speaking for the court, said: “It has also been held that, where the executor is thus entitled to act in a double capacity, he will be required to account in his capacity of executor, and the sureties in his bond as executor will be liable for the faithful discharge of his duties as trustee, unless, for greater convenience, and with the assent of the judge of probate, he chooses to open a new account as trustee, in which event he must give a new bond as trustee, and transfer to his account as trustee the property to be held and administered by him in that character, before his liability as executor will terminate.”
It was argued in the case just cited, that the executor who, in good faith, in his own mind, set apart and appropriated a promissory note for a thousand dollars as a part of the fund for the payment of legacies to the plaintiff, performed sufficient acts to effect such an appropriation as to satisfy the law. No settlement of his account as executor had ever been made in the probate office, and no proceedings were ever had in relation to his appointment as trustee other than by his qualification as executor. He had been appointed guardian of the plaintiff, but never had made or kept an account of the funds in his hands as such guardian. It appeared that “he did, in his own mind, set apart and appropriate the said promissory note for one thousand dollars of the Vermont Railroad Company, mentioned and specified in his said answer, to be and constitute a part of the fund for the payment of the said legacies to the plaintiff, and that, from and after that time when he so determined to set apart and apply the said promissory note for that purpose, he always kept and retained the said note, together with the said bond taken as collateral security for the paymeut thereof, as a part of the fund belonging to her, as for the payment of the legacies due to her; and that he kept and retained the same for no other purpose, and with no other intent whatever. But he never made any entry of said note on any book or on any account, and bad kept no account of tbe assets of which the said fund was composed, or was to consist; and the said promissory note constituted a part of said fund, and was appropriated solely to the payment of said legacies to the plaintiff, only by the said determination to this effect in his own mind as aforesaid. He further testified, ‘that he had never made any settlement of his account, or rendered any account of his proceedings as executor as aforesaid, in the probate office; that no legal proceedings had ever been had in relation to his appointment as trustee of plaintiff otherwise than by his appointment to, and acceptance of, his said office of executor; that he had been duly appointed as guardian of the plaintiff, but that he had never kept or made any account of funds or property in his hands as such guardian.’ .... But the court are of opinion that it still remains their duty to determine whether the appropriation to which he testifies is such an appropriation as the law requires, in order to produce that result. The executor did no act whatever to effect such an appropriation, or transmute the property. Giving the fullest effect to his testimony, all that he did was ‘in his own mind.’ In our judgment this is not an appropriation which the law will recognize. To produce such an important change in the rights of parties there should certainly be some decisive, intelligible, and irrevocable act; and a mere purpose, or mental determination, is not sufficient. However respectable and trustworthy this defendant may be, the rules of law in reference to the administration of trusts must be so applied as to afford some reasonable protection against men who are not honest. If the executor had died, or if the investment he had made of the money had been in property which had increased in value, what security would there have been for the rights of the beneficiary? ”
The court further on uses the following language: “No authority has been found or suggested which sustains this defense, and we cannot recognize or adopt the doctrine upon which it rests.”
This case, based upon the principle that some act of appropriation is necessary other than a mere holding of the property and intention that it shall constitute a trust fund, is approvingly cited in the recent case of Sheffield v. Parker, 158 Mass. 330.
In Daggett v. White, 128 Mass. 398 (1880), where John Daggett was appointed executor, aud there were no duties imposed upon him as executor beyond the duty of paying debts and settling the estate, but where, after his duties as executor were performed, the remainder of the estate was bequeathed and devised to him in trust, for the use and benefit of certain parties named in the will, it was decided that the testator intended to give “a distinct aud independent character to the trustee thus named, and to impose upon him duties and powers in no manner connected with his duties as executor,” and the act of the probate court was affirmed in requiring him, if he wished to close out his account as executor and take upon himself the duties of a trustee, to give bond in the latter capacity, aud that there was no merger of the two offices in him.
In White v. Ditson, 140 Mass. 351 (1885), discussing the liability of the sureties on an executor’s bond, the court says: “ While Healy fully completed the administration of the estate by the payment of all debts, legacies, aud expenses, he settled no final account as executor, aud did not, by any open aud notorious act, discharge himself as such in the probate court by assuming to transfer the residue of the property to himself as trustee, or by any other act indicating an intention thereafter to hold the same for the purposes of trust. The will gave to him two characters, those of executor and trustee; aud the duties of the latter character were entirely distinct from and independent of thore of the former. As actual payment cannot be made by one to himself, it has been held that, where the same person is executor and trustee, he must give bond in his character of trustee before he can exonerate himself from his liability as executor.”
It was further said that, “ Even if this were a case where the trustee might be, and was by the will, exempted from giving bond, we should not be prepared to say that the facts that Healy ceased at a certain time to do any acts as executor — all that was necessary in that capacity being then completed — and thereafter did certain acts showing an intention to execute the trust, were alone sufficient, without any settlement of his account as executor in the probate court, to exonerate him and the sureties on his bond as executor. There should, in that case, be some public act, which could only take place in that court, indicating a discharge of himself in one capacity, and the acceptance of the trust imposed upon him in the other, before this transfer could take place. (Newcomb v. Williams, ubi supra.) This might perhaps be by any definite act assented to by that court, as where an executor, who had been appointed trustee, and had also qualified as such, charged himself in his account as executor with money paid to himself as trustee, which account had been allowed.”
In Crocker v. Dillon, 133 Mass. 91 (1882), it was held that “ where the same person is named both as executor and trustee under a will, and the same hand is to pay and receive the money, there can be no evidence of the actual transfer of the property from himself in one capacity to himself in another, except from some declaration or authoritative and notorious act on his part showing a chang? in the manner in which the property is held. And an executor who is also trustee under a will cannot be considered as holding any part of the assets in the latter capacity until he has settled an account in the probate court as executor, in which he is credited as executor with the amount which he holds as trustee; and such account should not be allowed by the judge of probate, without requiring him to give bond for the faithful performance of his duties as trustee.”
We find the same principle laid down in Williams, v. Cushing, 34 Me. 370 (1852), where the court decided that the duties of the executor and trustee are similar and distinct. “They may be conferred upon and performed by one and the same or different individuals, as the testator shall deem expedient.Whether the executor and trustee is or is not the same is immaterial. Legally they are to be viewed as equally distinct, whether these trusts are held by one or more.” Cushing, defendant in that case, was appointed executor and trustee under the will, but never gave bonds as trustee. More than a year after he became executor, and all debts were paid, he balanced his accounts in the probate court, and a trustee was appointed. It was decided that the amount due by him as executor prop erly remaiued in his bands until he rendered an account showing that the payments had been made to the trustee, whether the trustee be the executor or some one else.
In Deering v. Adams, 37 Me. 264, construing a will, Appletou, J., for the court, said: “The duties of executors and trustees are separate and distinct, and separate and distinct bonds must be given. The bonds given by executors will not protect the estate against the nonfeasance or misfeasance of the trustee, though they be the same individuals.”
The supreme court of South Carolina, in Anderson v. Earle, 9 S. C. 460 (1877), held that where the same person was executor and trustee, and by a statement of the accounts as executor a credit was given for a legacy which could only have been paid by him as executor to the trustee, it was a necessary inference that by such entry the executor intended to transfer the amount from his liability as executor to his liability as trustee, and that of itself would be a sufficient circumstance to show that he had accepted the trust. The court say, quoting with approval, “where the same person is appointed both executor and trustee it is difficult, though sometimes of importance, to determine when the office of executor has ceased and that of trustee has commenced. The rule appears to be that, if a part of the assets have been clearly set apart and appropriated by the executor to answer a particular trust, he will be considered to hold the fund as trustee for those trusts, and no longer as mere executor.”
It is to be observed, however, that the inference drawn by the court was held only to be a necessary one after the executor had filed his accounts, and had set apart assets for the particular trust involved.
The circuit court of the United States for Connecticut, in Parsons v. Lyman, 5 Blatchf. 170 (1863), took a similar view of the necessity of separating the two relations, that of a trustee separate from that of executor, by some formal act. Samuel Parsons died, leaving a will, with defendants named as executors. They qualified and proceeded to settle the estate in the probate court. One year after testator’s death the executors substantially completed their duties by adjusting their accounts, "after due notice of the time and place of hearing to all parties interested, according to law.”
The will, however, after certain bequests, provided that "the residue of my estate .... I give, devise, and bequeath to my executors hereinafter named .... in trust.”
Judge Shipman says: “It will be seen, from this statement, that the defendants sustained two relations to the will and the estate of the deceased, namely, that of executors, and that of trustees. As executors it was their duty to prove the will, to give the requisite bond, with the aid of appraisers to prepare and file an inventory, to pay the funeral expenses and debts of the deceased, and the disbursements necessary in the progress of administration, and to perform all that the law requires of those who administer on testate estates, including the final settlement of their accounts in the court where all their proceedings were had. All these duties the defendants, as executors, performed, the last one being completed on the 20th of November, 1849, when their accounts as executors were adjusted, and substantially closed.” And further on again; “For, as already intimated, I hold that the relation of the defendants to this trust estate, as trustees, is the same as if they had not been named as executors in the will, and the property had been devised and bequeathed to them in trust by their individual names. It would, of course, have been competent for the testator to confer this trust upon them by his will, and still name any other person as sole executor of the latter. In that case there would have been no clashing of duties and powers between such executor and the trustees. The duties and powers of the latter would have begun where those of the former ended. And, although the defendants are appointed by the will to act in both capacities, this fact does not obliterate the distinction which the law makes between the duties and powers that pertain to these respective offices. The defendants seem to have properly recognized this distinction, by filing in the court of probate, since the settlement of their executors’ account, an annual account, at first voluntarily, and, since 1853, in accordance with a statute of Connecticut relating solely to guardians of minors, conservators, and trustees of estates.”
In Probate Court v. Hazzard, 13 R. I. 1, in an action against an administrator’s bond for neglect to act, it was held that the executor was obliged to retain his representative functions, and was liable to an accounting until released by some appropriate act, and that his mere mental determination, without any “overt act” was not sufficient. (See also Probate Court v. Angell, 16 R. I. 495.)
In Wilson v. Wilson, 17 Ohio St. 150, an administrator showed by his final accounts that he had certain moneys belonging to the devisees under the will. The administrator was the guardian of the devisees, who were infants. In a suit upon his bond as administrator he set up that he held the fund as guardian. The court held that he might demonstrate in which capacity he held the money by charging himself with the money in his account as guardian and crediting himself with having made payment of it to the guardian in his account as administrator. He refrained from doing this, however, and he was held liable as administrator.
In Cranson v. Wiltsie, 71 Mich. 356, suit was brought on an executor’s bond. The executors were directed to invest and reinvest certain moneys, and to educate children, for many years after the death of the testator. Suit was commenced to require the executors to account, and to file a new bond. They failed to respond, and were removed. The circuit court found that the executors had failed to invest the funds, as required by the will, but held that after an order of distribution, which had been made some fifteen years before the suit was instituted, the executors held the estate, not officially as executors, but as donees of a power in trust. Campbell, J., speaking for the court, says: “We do not think the conclusions of law are correct. An order of distribution alone cannot discharge executors until the estate is distributed. The Rheubottom children could not take the property, and, inasmuch as their interest was contingent, no one else could take it for them. The will required it to be invested by the executors. If the property had been invested in real-estate securities, as required, the question might have arisen whether this was not equivalent to such a compliance with the order of distribution as would have changed the nature of their holding. Upon this question we express no opinion. It is at least a doubtful proposition. But we think it is a dangerous and incorrect doctrine that executors can discharge themselves of their official responsibility without doing some act to change the character of their holding, and place the fund safely where it ought to be.”
In a very recent case, Wooden v. Kerr, 91 Mich. 188, the converse of the doctrine laid down in the foregoing authorities is apparent. Plaintiff commenced an equitable action for an accounting by defendant as trustee. The will gave, devised, and bequeathed to defendant and his son the residue and remainder of decedent’s property, in trust, to collect rents, make investments, educate children, and, eventually, to transfer the whole property. The executors filed a bond and an inventory, and one of them remained in possession for some years. Accounts were filed, but the last one, in 1886, was disallowed. The court held that the defendant was a trustee, and that he was estopped to assert that he was an executor merely and not a trustee, and that, if they had considered themselves executors merely, it might be presumed that they would long ago have settled up the estate and turned the property over to themselves as trustees, and that equity would not permit the defendant to refuse an accounting as trustee because the will which made him a trustee also made him an executor, in which latter capacity he neglected for several years to render an account, and the court take care to say that a settlement between two administrators could neither bind the estate nor the complainant, and the probate court alone possesses the power to allow Kerr’s account as executor and discharge his bond.
Text-writers have deduced from the decisions of the courts the rule that if the same person is named as executor and also as trustee under a will, as executor he is chargeable until he gives bond as trustee (unless exempted from giving bond), and settles his account of his administration, and charges himself as trustee. (Gary’s Probate Law, § 741; Cross well on Executors and Administrators, § 725.)
“ If a testator in his will appoint his executor to be a trustee, it is as if different persons had been appointed to each office; a court of equity cannot remove him from the executorship, for courts of probate have exclusive jurisdiction over the appointment and removal of administrators and executors; but, if the office of trustee is separate from and independent of the office of executor, a court of equity may remove him from the office of trustee, and leave him to act as executor; or if he has completed his duties as executor, and is holding and administering the estate simply as trustee, a court of equity may remove him.” (Perry on Trusts, 4th ed., § 281.)
The quotations in the several cases quoted throughout this opinion proceed in part upon the premise that bonds are to be given by an executor, and that a liability must still exist upon such bonds until a trust bond is given. But the principle of preserving the distinction between the true relation is always noted, and, under the system of the probate laws of this state, and the general legal doctrine to be applied, there can be no release from the executorial trust, except by the authority of the probate court.
Many of the cases relied upon by the appellants are suits for constructions of wills where estates are bequeathed or devised to testamentary trustees, recognized by the laws of such states, and in many instances, notably New York, from states where an executor has nothing to do with real estate. Realty in New York passes directly to the heirs, and is not subject generally to any right of possession by executors or administrators, as such. (2 N. Y. Rev. Stats., § 6.) The case, therefore, of Conkling v. Egerton, 31 Wend. 429, cannot control upon the necessity for an accounting, to the exclusion of our statutes, where executors have qualified.
Larned v. Bridge, 17 Pick. 239, was a bequest by the testator to his wife of the use and benefit of the estate, and, should the income be insufficient for her support, she could dispose of so much thereof as was necessary for that purpose, and at her death the remainder was to be equally divided among testator’s children. An administrator with the will annexed was appointed. The widow died. Authority was given the administrator to sell and dispose of sufficient real estate to reimburse certain sums paid as debts for the comfortable support of the widow in her lifetime. Sliaw, C. J., regards the provision in the will as a gift to the widow of the use of the property, and that although the widow had once been executrix, yet, as she never acted, the power granted under the terms of the will was one given to her personally and was not to be considered as bestowed upon her as an executrix exclusively. The whole case is really favorable to the view we take of the authority of the executors under the Higgins will, as it is said “there is no doubt that where a power is conferred upon an executor as such, and where the execution of such power is necessary to the purposes of the will which are to be accomplished by the officer, it is to be considered as a power to the officer as such, and not to the person named as executor exclusively, as where legacies are given and the executor is bound and directed to raise money to pay them by sale of the real estate.”
Simpkins v. Cook, 24 Minn. 180, was an action to set aside a conveyance and construe a will. The court declined to consider whether the executor was properly discharged, because the point was raised by a collateral attack, and decided that, under the words of the will, the trusts to be executed by O. as executor were personal to him and not part of his office.
In Estate of De Laney, 49 Cal. 78, a final distribution was ordered by the probate court. In an appeal from such order the court held that conveyances which had been made by the executors were not required to be confirmed. The necessity for an accounting by the executors, as such, was not passed upon, because they did account.
Begien v. Freeman, 75 Ind. 398, and several other cases cited, simply hold that an heir may sue a creditor where no administrator has been appointed, and where there are no debts. They are inapplicable to a case where jurisdiction has attached by the qualification of executors.
Taylor v. Phillips, 30 Vt. 238, was an action in assumpsit on a note given by defendant to the sons of the intestate in settlement of the mutual debts between the intestate and defendant. At the time the note was given there was no administrator. The court held the suit could be maintained, but expressly decided that if the defendant had been called upon by an administrator “ the ease would have merited a different consideration.”
In Patterson v. Allen, 50 Tex. 223, there was no administrator, and under the statutes of that state settlements between heirs are expressly recognized.
We proceed finally to inquire into a method by which the executors, after they have performed their duties as such, may be relieved of their trust, and qualify as trustees under the will. The court agree with the position of appellant’s counsel that there is no jurisdiction in the district court sitting in probate matters to require trustees, not executors, to account. A court of equity alone can do that. Under the rule recognized in the case of Chadwick v. Chadwick, 6 Mont. 566, the jurisdiction of the probate court is limited to the powers conferred upon it by statute, that is, to the control of the “ administration of decedents’ estates, the supervision of the guardianship of the infants, the control of their property, the allotment of dower, and 'other powers pertaining to the same general subject.” What construction may be placed upon the powers conferred upon'testamentary trustees where a trust has been created by a will to continue after distribution, as provided by article V, section 2900, of the Code of Civil Procedure, just adopted, is not material to the present inquiry. But even under the strictest limitations of the jurisdiction over the estates of decedents, and the control of the executors, we find that by our statutes the probate court may ordinarily exercise functions necessary to settle an estate, and to order a distribution thereof to those entitled to share therein under a will.
The accounting by the executor which must precede the Settlement of his accounts is guarded by strict statutes (Probate Practice Act, §§ 254, 256,260, 263, et seq.) The executor cannot profit by his trust except as provided by law (§ 253); but if he does wrong or commits serious mistakes he may lose. The whole scope of the Probate Practice Act of the state contemplates that an executor in the performance of his trust shall be subjected to legal checks and guards placed upon him “at each step he takes, and this from the beginning.” There are provisions in some states, Michigan being one, which release a residuary legatee from filing an inventory, provided he give bond to pay tbe debts of the legacies, but, in tbe absence of such a statute, even a residuary legatee, if he be an executor, would be held to the same degree of care and the same accountability which are imposed upon other executors. (Hathaway v. Weeks, 34 Mich. 237.)
By section 515 the title in a specified devise or legacy passes by the will, but in such cases possession can only be obtained from the personal representative. When considered with relation to our entire system of probate laws concerning the settlement of estates of deceased persons, this recognition that possession can only come from an executor of a will is but one of the demonstrations of the restrictions or qualifications which Chief Justice Shaw had in mind in the use of the words sub modo, in Newcomb v. Williams, supra.
In Clark v. Clay, 31 N. H. 393, where the court required an administrator to produce his accounts and vouchers, it was held that although all parties interested could settle an estate without resorting to the forms of law, yet, where legal course was taken, it is for the judge to say whether he will be governed by what the parties do or do not; and, where an administrator offered a certificate of the heir as conclusive of the correctness of a settlement, and the court declined to enter into a decree, such action of the court was sustained upon the ground that the judge "might very properly decline to pass the decree without an examination of the accounts and vouchers.”
The court may sua sponie require a periodical accounting at any time. (Woerner’s Law of Administration, § 501; Reynolds v. People, 55 Ill. 328.)
Justice Harwood, in speaking for the court in In re McFarland’s Estate, 10 Mont. 586, said: "The heirs of decedent, and all legatees, devisees, creditors, guardians, and others who may be in any way interested in an estate, and their counsel, have a right to presume that the requirements of the statutes will be fulfilled in the administration thereof; and they have a right to presume that no final distribution thereof will be made until such intermediate proceedings have been had, and the period fixed by statute for the distribution has arrived, and such interested parties have a right to the time provided by law for the orderly procedure in the administration of an estate, or the execution of a will, to appear and make a showing of their claims or interests.”
In this particular estate the executors, having qualified, must take charge of the estate; proceed with the inventory, and give the notice to creditors. They must also act upon any claim presented, as required by the statutes hereinbefore cited. If the court requires an exhibit for its information, by section 254, such a document must be filed, Showing the amount of all claims presented, “ and all other matters necessary to show the condition of the estate’s affairs.” Full account of the executors, with vouchers, must be rendered. If it is not, ample means of requiring it, even to issuing an attachment, and, it would seem, committing the delinquent executors, are provided for by sections 260, 261, 262, et seq., of the Probate Practice Act. Distribution is contemplated and fully provided for upon the final settlement of the accounts of the executors, but, until such final aceouuts have been settled and allowed, no authority is given to distribute the residue of the estate in the hands of the executors. The way seems clear and simple by which, under the law, the devisees, legatees, and trustees may become possessed of the estate of the decedent, devised and bequeathed to them uuder the terms of the will. There is one way only by which there maybe even a partial distribution prior to such final accounts, that is, under sections 284, 285, et seq., where, after the lapse of four months, those entitled to share in the estate may, if it appears to the court that the estate is but little indebted, and the creditors are safe, receive their shares, provided the requisite bond is given.
The duties of the executors precedent to discharge are plainly to account, to obtain an order settling their accounts, to obtain an order of distribution, and to deliver up, under order of the court, to parties entitled to share under the will. (Probate Practice Act, § 312.)
After full consideration of the general and statutory law relating to this case, and the policy and the reason of our entire probate system, our conclusions, as applicable to large estates, may be summarized as follows:
1. Executors, when qualified as such, are subject to the jurisdiction of the district court sitting in the exercise of its probate powers. ■
2. The duties of such executors are to proceed with the performance of their executorial duties, as imposed upon them by the laws of the state, having due regard to the provisions of the will of the decedent.
3. Executors must account, and executorial responsibilities can only terminate after compliance with the statutes, and after a settlement approved by the court has been made, and after a distribution and a delivery up have been ordered by the court.
4. Where trust duties are imposed upon trustees as devisees and legatees under a will, such duties cannot properly be assumed by the same persons who were named as executors under the will, and who have qualified as such executors, until the court' has approved their accounts and ordered a distribution of the estate, in which order the executors may be directed to credit their accounts as executors with so much of the estate as may be ordered transmitted to their accounts as trustees, or are otherwise authorized by the court to transfer the residue of the estate in their hands as executors to themselves as trustees.
The district court must have determined that the right of possession of the property of the intestate was in the appellants as executors, after they qualified as such. The decision of that question involved the further point of whether administration was necessary. It was decided it was. We therefore think that the order became final as against these appellants, Upon the questions necessarily involved in that proceeding, and could be appealed from. (In re McFarland’s Estate, 10 Mont. 446.)
The order of the district court overruling the motion of the executors to quash and set aside the order made requiring said executors to prepare and file a full and complete inventory and appraisement of the estate of decedent, which has come into their hands as executors, is affirmed.
Affirmed.
De Witt, J., concurs.
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PembertON, C. J.
— This is an application for a writ of certiorari. The applicant is a resident taxpayer in the city of Bozeman in the county of Gallatin. The respondents comprise the board of county commissioners and the clerk of said county. The applicant is the owner of considerable real estate situate in said city of Bozeman. He alleges that about the nineteenth day of February, 1894, the board of appraisers of said county met and fixed the valuation of said real estate for said year, which he says was the true and fair value thereof; that thereafter the assessor of said county listed said real estate, and assessed the same in accordance with the valuation thereof fixed by said board of appraisers, and duly returned the same as so listed and assessed. That on or about the thirty-first day of July, 1894, the respondents, acting as the board of equalization oí said county, raised the valuation of said real estate, as fixed by said board of appraisers, and listed, assessed, and returned by said assessor. Notice of the intention of said board of equalization to raise or increase the valuation of the real estate of the applicant was duly served upon him, and he appeared before said board in pursuance thereof, and protested in writing against this contemplated action of said board. The applicant offered no evidence in support of his protest showing that any injury or injustice would result to him from the action of the said board, nor does he complain in this court that any injury or injustice has resulted from said action of said board. In his protest filed before said board of equalization the applicant contended, and in his application for the writ of certiorari in this court contends, that said board had no jurisdiction to raise or increase the valuation of his real estate, for the reason that the board of appraisers had fixed the true and fair value of said property.
Counsel for applicant, in their brief, say: “This cause depends upon a construction of sections 60 and 61, page 96, of the laws of 1891 of Montana, and the act amendatory thereof in laws of 1893, page 64.” Section 60, above referred to, provides that the board of county commissioners shall be the board of equalization, “to examine the assessment-book and adjust and equalize the valuation of the taxable property oí the county”; and also fixes the time when said board shall meet, and says how long it shall remain in session. Section 61, supra, is as follows: “The board has power, after giving notice in such manner as it may by rule prescribe, to increase or lower any assessment contained in the assessment-book, so as to equalize the valuation of the property contained therein and make the assessment conform to the valuation of such property. Said board of couuty commissioners is vested with full power to make any changes in the valuation of property, whether such change relates to an entire class or to particular items of property, real or personal, and they shall make such changes as will result in a fair valuation of property within the meaning of this act.” The act of 1893, referred to in applicant’s brief, is an “ act entitled an act to amend sections 58 and 59 of an act entitled an act concerning revenue, approved March 6, 1891.” Said sections 60 and 61 being parts of the act amended. Said amended sections 58 and 59 of the act of 1891 provided that the chairman of the board of county commissioners, the county assessor, and a reputable citizen to be elected by the first two named officers, should constitute a board of appraisers, whose duty it should be to fix the valuation of all real estate within the county for the purpose of assessment by the county assessor, which valuation, so fixed by said board of appraisers, should constitute the “value” or “true value” of such real estate. Section 59, supra, merely fixed the compensation of the third member of said board elected by the chairman of the board of county commissioners and the assessor. The act of 1893, amendatory of sections 58 and 59, provided that the board of appraisers should be appointed by the judge of the district court, instead of the way provided for its appointment in section 58 of the act of 1891. The act of 1893 did not enlarge the powers of the board of appraisers, but gave to it the same powers as provided iu section 58 of the act of 1891, namely, “to fix the valuation of real estate in the county for the purposes of assessment by the county assessor, which valuation so fixed by said board of appraisers shall constitute the value or ‘ true value’ of such real estate.” The act of 1893 provided a different manner and authority to appoint and constitute the board of appraisers. The act of 1893 did not alter or amend in any respects sections 60 and 61 of the act of 1891, or abridge the powers of the board of equalization. Section 61 of the act of 1891 gave the board of equalization the “power, after giving notice in such manner as it may by rule prescribe, to increase or lower any assessment contained in the assessment-book.” This power this board still has under the amended law. We are therefore of the opinion that the board of county commissioners, acting as a board of equalization, had the power or jurisdiction to raise or increase the valuation of the real estate of the applicant in this case.
The applicant also contends that the respondents took no evidence as to the value of real estate in said county before raising or increasing the valuation of his property; that to authorize said increase the board should have taken evidence of such value.
The respondents, in their return, say they had before them the assessment-books of the years 1893 and 1894, and that, by a comparison thereof, it was shown that the real estate situated in the city of Bozeman was assessed for the year 1894 at a rate of about forty per cent lower than for the year 1893, while the real estate outside of said city was assessed at the same rate for both of said years; that they also acted upon their personal knowledge of the value of real estate in said county, and that their action was had solely for the purpose of equalizing the assessment of real estate in said county. The board, from this showing, had some evidence before it upon which it acted in the premises. Our statute does not require, in terms, that the board in such cases shall take evidence.
It may be contended that the board acted without sufficient evidence, and therefore without proper discretion. But, if this be true, we cannot, in this proceeding, inquire into an abuse of discretion by the board.
The writ of certiorari heretofore issued in this case is dismissed.
Writ dismissed.
De Witt, J., and Hunt, J., concur.
|
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Hunt, J.
— We are of opinion that the affidavit to set aside the default and judgment is wholly insufficient. The rest of the appeal being from the judgment only, we are confined in our examination to the question of whether the complaint states a cause of action, and supports the judgment. (Foster v. Wilson, 5 Mont. 53; Haggin v. Lorenz, ante, p. 309.) We think it does. It sets forth the corporate existence of the city of Helena, pleads the nature of the action brought by Lockey against Walker as treasurer,°the injunction issued therein, the giving of the legal undertaking, and the decision in that case. It further sets up that the city is the real party in interest, Walker, as treasurer, being a mere nominal party, and that the damages sustained were sustained by the city of Helena; that the damages amounted to three hundred dollars, paid for counsel to assist the city attorney in procuring the dissolution of the said injunction. In Creek v. McManus, 13 Mont. 152, it was held that attorneys’ fees paid to procure the dissolution of an injunction are recoverable as an item of damages in an action on the bond given in the injunction suit. The record to which we are confined discloses no radical error which will vitiate the judgment, and none will be presumed. (Dimick v. Campbell, 31 Cal. 240.)
Where a case has been submitted to the court, as was this, without argument or brief on appellants’ part, we do not feel that it is our duty to make very diligent search to reverse a judgment by default, where no obvious fatal error appears. (State v. Roberts, 9 Mont. 12; Territory v. Mooney, 8 Mont. 151; Territory v. Stanton, 8 Mont. 157.)
The order refusing to set aside the default and judgment, and the judgment, are affirmed.
Affirmed,
De Witt, J., concurs.
|
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] |
De Witt, J.
— There was no reason why Brensinger, the residuary legatee under the will, should object to the probate thereof. The will was in his favor, and he took the whole estate after the payment of the few small legacies. No objection to the will as a whole appears, or has ever been suggested. It is true that it did contain one item which was void under the statute (Probate Practice Act, § 473). The bequest to the Home Mission Society was made less than thirty days before the death of the testator, and was absolutely void. The amount of this bequest went, under the statute, to the residuary legatee, Brensinger. Nothing that Brensinger could do or leave undone could give life to the bequest, which was void ah initio. Because the will contained one such void item, easily separable from the rest of the will, was not ground to attack a will which was otherwise valid. The only void item simply disappeared from the will as a bequest, and fell into the residue of the estate, as the statute requires.
Appellant’s claim that Brensinger is attacking the will and claiming under it at the same time is wholly untenable. It is true that he does claim under the will, and it is also true that he does not attack it. He simply asks that the court obey the statute, and hold that the one bequest is void, as the law declares it shall be.
The judgment of the district court is affirmed.
Affirmed.
Pemberton, C. J., and Harwood, J., concur.
|
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] |
De Witt, J.
— The question in this case is simply whether under the facts, as recited in the statement above, the district court had jurisdiction to appoint a receiver. (State ex rel. Murphy v. District Court, 10 Mont. 401. See, also, French Bank case, 53 Cal. 550.) There is here no question of the court’s discretion under consideration.
The relators in this application rely very largely upon the decision in the French Bank case, but we think that the case at bar is distinguishable from that case in many respects, and, in order to make the distinction apparent, we quote as follows from the California case:
“Irrespective of the effect of the fifth subdivision of section 564 of the Code of Civil Procedure, which will be presently considered, there is no jurisdiction vested in courts of equity to appoint a receiver of the property of a corporation in a suit prosecuted by a private party. This is only to say that there is no jurisdiction vested in these courts in such a case to dissolve a corporation; for the power of a receiver, when put in motion, of necessity supersedes the corporate power. It necessarily displaces the corporate management and substitutes its own, and assumes, in the language of the order under review, ‘to do all and every thing necessary (in the judgment of the receiver, under the advice of the court) to protect the rights of the creditors and depositors of said corporation.’ This precise question was brought directly under consideration here in the case of Neall v. Hill, supra, where, in a suit brought by a stockholder, a receiver had been appointed by the district court to take possession of the property of the ‘ Gold Hill and Bear River Water Company,’ a corporation existing under the laws of this state. The opinion in that case, rendered by Mr. Justice Cope, and concurred in by the whole court, after referring to the adjudicated cases in England and in this country, uses this language: ‘ This decree, if permitted to stand, must necessarily result in the dissolution of the corporation; and in that event the court will have accomplished, in an indirect mode, that which, in this proceeding, it had no authority to do directly. It is well settled that a court of equity, as such, has no jurisdiction over corporate bodies for the purpose of restraining their operations, or winding up their concerns. We do not find that any such power has ever been exercised in the absence of a statute conferring the jurisdiction.’ Of course it is not to be doubted that the trustees of a corporation, the persons who constitute its direction, and from time to time exercise the corporate authority in the management of its affairs, are subject to the control of courts of equity, or, as observed by Chancellor Kent, ‘ that the persons who from time to time exercise the corporate powers may, in their character of trustees, be accountable to this court [the court of chancery] for a fraudulent breach of trust; and,’ he adds, ‘to this plain and ordinary head of equity the jurisdiction of this court over corporations ought to be confined.’ (Attorney General v. Utica Ins. Co., 2 Johns. Ch. 388.) And in exercise of these admitted equity powers of the court, referable to the well-known grounds upon which its jurisdiction ordinarily proceeds, embracing the cognizance of fraud, accident, trust, and the like, the rights of natural persons injured or put at hazard through corporate proceedings unauthorized by law will find ample protection and redress. But even in such a proceeding as that the trustees must, of course, be made parties defendant; and it will be observed, upon looking at the complaint of Gallagher in this view, that it is not substantially sufficient in its scope to put the equity powers of the court in motion for any purpose. The corporation itself being the sole party defendant the trustees — those persons upon whom the management of its affairs is devolved — are not parties, nor is any relief sought against them personally. That there is no inherent power in the district courts, as being courts of equity, to appoint a receiver in such a case as that presented by the complaint of Gallagher, is, therefore, apparent both upon principle and authority.”
In the California case an important element in the decision, as it appears, was that the appointment of the receiver acted as a dissolution of the corporation. In the case at bar no such result is intended by the order appointing the receiver or is accomplished by that order. It is true that in the complaint the case in the district court asks for a dissolution of the corporation, but whether such relief may be granted in that action is not now before us for review. The complaint also asks another relief, as set forth in the statement, namely, that the negotiation of the notes described be restrained; that the foreclosure of the mortgage be prohibited, and that the notes and mortgage be declared null and void. While the determination of these matters is pending in the action the receiver is to act. His appointment is pendente lite only, and he is authorized to do only those acts which are peculiarly pendente lite. Again, in the French Bank case, supra, one ground of the decision was that the action was against the corporation only (see page 546 of the decision) and not against the mal-feasing trustees, that is, the “persons upon whom the management of its affairs is devolved.” (Page 551.) But in the case at bar the managing officers of the corporation are joined as defendants, and their unlawful acts are sought to be set aside, and their future wrongful conduct enjoined. The receiver is not to wind up the corporation under his appointment; he is simply to manage the affairs of the same, while charges of the most outrageous frauds by the managers and controllers of the corporation are being investigated in the trial of the action. We are fully aware of the reluctance of courts of equity to interfere by receivership in the management of corporations, or to take that management from trustees elected by the shareholders,
It is said in Morawetz on Private Corporations, section 281, as follows: “A court of equity will grant all relief to a shareholder which the nature of his case may require. But it has always been a settled principle that no interference with the management of a corporation can be justified, unless such interference is absolutely necessary to the attainment of justice. The reason of this rule is obvious. The officers of a corporation are generally elected by a vote of the shareholders. Every shareholder has a voice in their appointment, and may insist that they shall represent the corporation when duly appointed. If an officer is guilty of a breach of duty he may, in many cases, be removed by act of the corporation; but no minority of the shareholders has any authority to restrain his action, or remove him and appoint another officer in his place. Nor can a court of chancery interfere at the suit of a portion of the shareholders and remove an offending officer, or even enjoin him generally from acting for the corporation, unless this be essential to the protection of the corporate rights; as, for example, where the directors have conspired to defraud the corporation, or have otherwise shown themselves to be totally unfit to be intrusted any longer with the management of the company’s affairs. The court must ordinarily confine its remedy to the redress of the specific wrongs which have been charged.”
But the case before us is not an ordinary one, and perhaps it may be doubted that many such histories of fraud will be found in the conduct of human affairs. It is difficult to imagine a case more thoroughly saturated with fraud than this which was presented to the district court on the application for the appointment of a receiver. Four shareholders of two small corporations, which were paying handsome dividends, obtained control of the majority of the stock, and elected their own officers. These four conspirators, instead of paying $500 a month dividends which the corporations were earning, proceeded to put that money into their own pockets. They kept false books to deceive the shareholders. They pretended to buy for the corporations an absolutely worthless franchise, when they already owned two good and valid franchises, which were more than ample for the same purpose. They gave the corporations’ notes for this worthless franchise, and mortgaged all of the property of the corporations for the purpose of having the mortgage foreclosed and the property of the corporations wiped out. It is needless to enlarge upon these facts; they are all set forth in the statement preceding this opinion. This is a story of wrecking and robbing that would make a pirate of the Spanish main exclaim, in the language of Lord Clive, “I am surprised at my own moderation.” Is not interference here absolutely necessary, as Morawetz says, to the attainment of justice? Again Morawetz remarks, as quoted above, the court of chancery will not interfere at the suit of the shareholders unless this be essential to the protection of the corporate rights. We can scarcely conceive of a case where it would be more essential than it is here, for the protection of the corporate rights; for, if the interference is not had, the corporate property will be swept away from the corporations into the grasp of the conspirators. And, while the investigation into the acts of the Sommers-O’Kourke party is being made by the court, should the court allow this same band of marauders to remain in possession of the corporations and their property, and continue to convert the assets to their own use, and exercise their own pleasure as to the trusts imposed upon them? To allow such a proceeding, it seems to us, would shock the conscience of the most indifferent court. Our statute provides that “ a receiver may be appointed by the court in which an action is pending, or by the judge thereof .... 6. In all other cases where receivers have heretofore been appointed by the usages of courts of equity.” (Code Civ. Proc., § 229.) We are of opinion that the decisions of the courts sustain the doctrine of the powers and the usages of courts of equity in such a case as that which was made in the showing before the district court.
We note the following language from a very recent decision (January, 1894) of the Kansas supreme court. While the Kansas statute is broader than ours, and the case of In re Lewis, 52 Kan. 660, is decided largely upon the statute of that state, still the following remarks of the Kansas court are valuable, as is also the collection of authorities appended to the decision. We extract from the opinion as follows:
“By the averments of the petition it would appear that all the officers of the corporation have conspired together to divert its business to another company, and to absorb its earnings and assets, and appropriate the same to their own uses. Under those circumstances it would be useless to apply to the officers to bring an action against themselves, and in such cases the law permits the appointment of a receiver at the instance of a stockholder. In most cases of this character no other adequate remedy exists. The appointment of a receiver is not necessarily a proceeding to dissolve a corporation, nor will it necessarily result in its extinction. The property and assets of the corporation, which are being dissipated and fraudulently absorbed, will be preserved and rightfully applied under the supervision of the court, and may be restored to the officers of the corporation, when there has been a change of officers, or when it is deemed prudent and safe to restore the property and afiairs of the corporation to its duly constituted officers. (See Bank v. United States etc. Tile Co., 105 Ind. 227; Pike Co. v. Hammons, 129 Ind. 368; Order of Iron Hall v. Baker (Ind. Sup. Ct.), 33 N. E. Rep. 1128; Haywood v. Lumber Co., supra; Consolidated Tank Line Co. v. Kansas City Varnish Co., 43 Fed. Rep. 204; Morawetz on Private Corporations, § 281; Pomeroy’s Equity Jurisprudence, § 1334; High on Receivers, § 313; Spelman on Private Corporations, § 1001; 20 Am. & Eng. Ency. of Law, 272.)”
We also find it stated in High on Receivers, section 313, as follows: “It has already been shown that in most of the states of this country the general jurisdiction of courts of equity over corporations has been enlarged to the extent of authorizing the appointment of receivers in behalf of creditors and shareholders.”
The supreme court of Michigan (October, 1892) in Miner v. Belle Isle Ice Co., 93 Mich. 97, after reviewing the history of a fraud, which perhaps is worthy to be ranked with that of the case at bar, says: “ The present case furnishes an instance of gross abuse of trust. Must the eestui que trust be committed to the domination of a trustee who has for seven years continued to violate the trust? The law requires of the majority the utmost good faith in the control and management of the corporation as to the minority. It is of the essence of this trust that it shall be so managed as to produce for each stockholder the . best possible return for his investment. The trustee has so far absorbed all returns. What is the outlook for the future? This court, in view of the past, can give no assur- anees. It can make no order that can prevent some other method of bleeding this corporation, if it is allowed to continue. If Lorman be removed, who shall take his place? He has the absolute power to determine. Once deposed he may elect a dummy to fill his place? There are practically but three persons concerned, Miner, Lorman, and Lorrissa Carpenter, and she has for seven years, in fraud of complainant’s rights, been paid a dividend to secure her acquiescence. Who has any right to complain if ample and complete justice is awarded to Miner? Who shall be permitted to stand between him and an adequate remedy? This corporation has utterly failed of its purpose, not because of matters beyond its control, but because of fraudulent mismanagement and misappropriation of its funds. Complainant has a right to insist that it shall not continue as a cloak for a fraud upon him, and shall not longer retain his capital to be used for the sole advantage of the owner of the majority of the stock, and a court of equity will not so far tolerate such a manifest violation of the rules of natural justice as to deny him the relief to which his situation entitles him. I think a court of equity, under the circumstances of this case, in the exercise of its general equity jurisdiction, has the power to grant to this complainant ample relief, even to the dissolution of the trust relations. Complainant is therefore entitled to the relief prayed. A receiver will be appointed, and the affairs of this corporation wound up.”
In the Michigan case the decision went to the winding up of the corporation; but in the case before us the receiver is only to hold until the charges of fraud are investigated. The Michigan decision is an able discussion of the powers of the court of equity in this respect, and a valuable review of decisions. It may be said here, as was said in the Michigan case, that the corporations have utterly failed of their purpose, not because of matters beyond their control, but because of the fraudulent mismanagement and misappropriation of their funds. An equal, if not greater, mismanagement and misappropriation has been done by the officers of the corporations who are here made defendants, and whose acts are sought to be restrained and set aside and declared null and void. We also find tbe same general subject mentioned in the following language in Waterman on the Law of Corporations, volume 2, section 356: "The power to appoint a receiver is necessarily inherent in a court which possesses equitable jurisdiction. It is exercised when an estate or fund is in existence and there is no competent person entitled to hold it; or the person so entitled is in the nature of a trustee and is misusing or misapplying the trust; or the property is about to be removed beyond the reach of the court; and generally when it is necessary to secure rights and prevent a failure of justice. The property is thus placed in the hands of an officer of the law in order that it may be under the protecting care and control of the court and be delivered unimpaired to the persons to whom it is legally ascertained to belong.” (See, also, Ranger v. Champion C. P. Co., 52 Fed. Rep. 611; Morawetz on Private Corporations, § 642.)
Upon questions of equity and jurisdiction aid is always found in the records of the courts of chancery of New Jersey, and from a decision rendered in May, 1894, by that learned court we quote as follows. “ The power of this court to appoint a receiver of a corporation either because it lias no properly constituted governing body or because there are such dissensions in its governing body as to make it impossible for the corporation to carry on its business with advantage to its stockholders, I think must be regarded as settled, but I think it is equally well settled that this power is subject to certain limitations, namely, it must always be exercised with great caution, and only for such time and to such an extent as may be necessary to preserve the property of the corporation and protect the lights and interests of its stockholders. As soon as a lawfully constituted and competent governing body comes into existence, whether it is brought into existence by an adjustment of the dissensions or by the election of a new body, and such body is ready to take possession of the property of the corporation, and proceed in the proper discharge of its duties, the court must lift its hand and retire. This is the doctrine as I understand it, which was laid down by Vice-Chancellor Malins in Featherstone v. Cooke, L. R. 16 Eq. 298, and Auxiliary Co. v. Vickers, L. R. 16 Eq. 303, and which was approved by Chancellor Runyon in Einstein v. Rosenfeld, 38 N. J. Eq. 309, and by Chancellor McGill in Archer v. Water Works Co., 50 N. J. Eq. 33; 24 Atl. Rep. 508.” (Edison v. Edison United Phonograph Co., 29 Atl. Rep. 197.)
It is true, of course, that the power must be exercised with great caution, but we are of the opinion that the most scrupulous caution would not cause a court to hesitate in the matter which was before the district court. Furthermore, the district court did not go any further in the appointment than was necessary to preserve the property of the corporations and protect the rights and interests of its stockholders, as was stated in the New Jersey case.
It does not seem necessary to go further in this discussion. The facts of this case will not afford a precedent in the future, for any imprudent or unauthorized appointment of a receiver for corporations, or the unwise withdrawal of the business of a corporation from the management of its duly elected and lawfully acting trustees. The case is a precedent only as to its own facts. Here the object of its existence, and, indeed, the practical existence itself, of the corporations are being totally destroyed by the unlawful (not to use a stronger term) acts of its managers; and one object at least of the action in the district court is to set aside aDd prevent such unlawful acts of such managers; and the action itself is against such unlawfully acting persons. If they are allowed to go on in their course which they are pursuing the corporations are to be totally wrecked, their funds are to be embezzled, and their property is to be taken from them by a fraudulent conspiracy of the managers whose position is one of trust towards the plaintiffs in the action in the district court.
Under such a vigorous showing of facts we believe that the decisions of the courts of equity uphold the powers and usages of those courts to interfere by a receivership. See the cases cited in this opinion and the cases referred to in those citations.
We are therefore of the opinion that the writ of certiorari must be dismissed, and it is so ordered.
Writ dismissed.
PembertoN, C. J., and Hunt, J. concur.
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Pemberton, C. J.
— This is a suit for divorce, instituted iu the second judicial district court, in which this appellant is defendant. On the twelfth day of August, 1893, the court, made an order requiring and directing the defendant to pay plaintiff the sum of forty dollars per month as alimony pen-dente lite. It seems that defendant complied with this order until March, 1894. On February 19th the court made an order directing the defendant to pay plaintiff sixty dollars as counsel fee. Defendant having failed to pay plaintiff the alimony allowed and ordered to be paid for the month of March, 1894, and subsequent thereto, as well as said counsel fee, lie was ordered to appear and show cause why he should not be adjudged guilty of contempt of court; and, having so appeared,, he was, on the twenty-eighth day of April, 1894, adjudged. guilty of contempt of court for not complying with the said orders of court, and committed to the county jail of Silver-Bow county until said alimony and counsel fee should be paid.. On May 18th the defendant filed in the court his petition and affidavit praying that the order adjudging him guilty, and committing him to the county jail for contempt of court, be modified, vacated, and set aside. This petition alleges that defendant had complied with said order to pay alimony until and for the month of February, 1894; that thereafter he was and has been wholly unable to comply therewith, or with the order to pay counsel fee; that he has no money or property whatever; that the only reason why he has not complied with said order is his inability to do so; that he is now confined in the county jail, and will be so confined in jail indefinitely, unless permitted to purge himself of contempt by showing his inability to obey the order of court in the premises. On motion of the plaintiff the court dismissed and refused to hear this petition, “for the reason that the defendant was in contempt of court, and could not be heard until he had purged himself of said contempt.” From this order dismissing and refusing to hear defendant’s petition this appeal is prosecuted.
In State ex rel. Nixon v. Second Judicial District Court, 14 Mont. 396, which was a proceeding in certiorari in aid of habeas corpus in this court, instituted by this appellant to be discharged from custody under the order now involved in this appeal, this court said: “ If the relator herein had made a regular application for a reduction of the alimony to the district court in which the suit was pending he would have presented all of this showing as to his want of faculty to pay the alimony; that plaintiff could have rebutted such showing, and the court would then have determined whether the alimony should be reduced. On such determination an order would be' made, from which the defendant could have an appeal, and on such appeal this court would have made a review. But, as the matter is now before us, the question of reduction of the alimony has never been tried or determined in a proper proceeding by the district court, nor was there opportunity offered to so try and determine.”
In the case just cited this court held that a modification of the judgment for alimony should have been sought by a proceeding for that purpose. It. appears from the record that the appellant, by filing his petition for a modification or the vacation of the judgment for alimony, was proceeding in accordance with the views of this court, as announced in State ex rel. Nixon v. Second Judicial District Court, supra. By filing his petition for such relief he tendered an issue of fact involving his faculty or ability to comply with the order of the court. The allegations of the petition could have been denied by the plaintiff in the case, and then the court could have proceeded to try the issue as to appellant’s ability to pay the alimony and fee he had been ordered to pay. It seems hardly in consonance with reason or law to punish a man for not doing that which he has not the ability to do, or to punish him without a hearing, for not doing that which he declares he is powerless to do. The order of the lower court appealed from is reversed, and the cause remanded, with directions to proceed in accordance with the views herein expressed.
Reversed.
Harwood and De Witt, JJ., concur.
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] |
Hunt, J.
— The ultimate question for review is whether the district court erred in refusing to set aside the appellants’ motion to vacate a judgment by default rendered against them dismissing their objections to the probate of the will of A. J. Davis, deceased. To decide this point it is proper to pass upon the following other and incidental questions raised:
1. Did the court err in refusing to grant appellants’ motion for a continuance?
2. Were the appellants guilty of neglect in not being ready for trial upon the date set?
The employment of Mr. E. W. Toole and Mr. Clayberg by contestants as their counsel in Montana is ample evidence of the appellants’ belief in the invalidity of the will offered for probate by the proponent, and of their disposition to partake of any share of the estate which would be theirs as heirs at law of the decedent, if such contest should result in a decree refusing to admit the will to probate.
The reports of the courts of the state and territory of Montana bear witness to the learning and high standing of the gentleman named; and the appellants had a right to feel assured of every protection under such eminent professional care.
We therefore dismiss any suggestion by respondents of negligent conduct on the part of the appellants themselves, or their New York counsel, on account of their full reliance in Mr. Toole and Mr. Clayberg, at all times prior to the withdrawal of those gentlemen in April and June preceding the date of the trial at Butte; and, for like reasons, we ignore any intimations now made by the appellants of lack of proper regard for their interests by their said counsel at any stage of the proceedings when the gentlemen named acted for them. The several contestants had the same attorneys in Montana; their objections to the will raised substantially the same issues in the separate contests; they stood in the same degree of relationship to the decedent, and, with a cause necessarily common to each and all, it was the most convenient and natural course for their counsel in Montana to pursue, to force one suit to issue and concentrate all energies on one contest, permitting all others to abide the result of the one selected for trial. *
Guided apparently by these considerations, the particular contest of appellants was kept in statu quo, or practically so, while that of Boot and Cummings was pressed to trial. Appellants were poor, and perhaps the financial abilities of Boot enabled him to better prepare the evidence. But however that may have been, the conspicuous fact remains that the Boot contest was the first one ever brought to trial. It lasted many weeks, was bitterly contested, and, by its unusual importance, has contributed not a little to the history of will contests in the jurisprudence of the land. But the jury disagreed and a mistrial was had. The several contests still pended, Boot’s standing ready for hearing.
The stipulation of April 29, 1893, to try it again in July, and not to continue it beyond that time, unless for causes arising after date of the stipulation, warranted the general belief by all interested that Boot would again try to establish that the will was a forgery, or had been revoked by other wills. And, in the absence of any express notification by their Montana counsel, that any other course would be pursued, appellants are not now to be blamed for having expected their suit to lie dormant until forever finally killed or reanimated by the determination of the Boot-Cummings contest.
But in June, 1893, affairs changed somewhat.
Mr. Toole and Mr. Clayberg then withdrew as counsel for these two contestants, giving as a reason therefor, that appellants had sold out their interests in the estate of decedent to one Erwin Davis, another relative, who was unfriendly to Mr. Boot. The professional allegiance of counsel named was expressly due to Boot if his interests conflicted with these or other contestants. Mr. Toole’s letters to Mr. Keogh were direct and plain withdrawals as counsel, based upon the positive assumption of the fact as true that these appellants had sold their interests to Erwin Davis. And it must be said that these same letters of Mr. Toole advised Mr. Keogh of the necessity of having some one on hand at the trial, which was set for July 24th (or 26th as Mr. Toole, by mistake, put it). But the most important fact must not be lost sight of, that there was not the slightest intimation given in the Toole letters, or in any other way, at any time, to appellants, that the Boot-Cummings contests would not be tried upon the 24th of July, but that appellants’ contest would then be called and pushed to judgment, regardless of what course might be taken in the Hoot matter. Mr. Toole certainly did not then know of any such probable postponement and plan, but, unless he did, it is unreasonable to say that Keogh who relied on Mr. Toole, ought to have been on his guard against such a highly improbable move. True, prudence and cautious regard of his clients’ interests ought to have prompted Mr. Keogh to come to Montana at once upon the receipt of notice of Mr. Toole’s withdrawal as counsel; but his failure to do so, although a dangerous omission of strict vigilance, cannot be attributed to any gross neglect. What did he do? He sought to hold on to the valued services of Mr. Toole by assuring him that there was no change in the status of his clients toward the will or Root and Cummings by any sale to Erwin Davis. But Mr. Toole refused to act. He next telegraphed to Messrs. Corbett & Wellcome of Butte and asked them to act in appellants’ behalf. But they declined. Meanwhile the time was slipping by, and the appellants were without any local counsel. At last Mr. Keogh adopted the unusual course of telegraphing directly to Judge McHatton, the presiding judge of the court in which all the will contests were pending, asking him to recommend an attorney to him. This circumstance of communicating with the judge, after his several futile attempts to secure counsel, is an evidence of the anxiety of Keogh to have his clients represented, and demonstrated that in the “skir-minishing” (as respondents characterize the telegraphic efforts to obtain counsel), appellants were determined to secure a reputable attorney to protect their matters. Judge McHatton recommended Mr. Cotter to them. Mr. Cotter was then trying an important mining case before Judge McHatton, but was retained by Keogh on July 17th, just one week before the day set for the Root-Cummings and appellants’ contests. It was utterly impossible for Mr. Cotter to familiarize himself with the appellants’ claims and the testimony necessary to support them. He was kept in court attending the mining suit until the evening of July 23d, but, under favorable conditions, the time was certainly too brief for any strange counsel to prepare for a contest of such importance, even had he devoted all his time to doing so from the moment of his employment. His affidavit frankly states that he relied upon the Hoot contest coming on for trial first. It had been tried first before, it was stipulated for trial again, it preceded the appellants in regular order, and there was absolutely nothing to justify him in the belief that it would be continued.
Upon July 24th, when the hour of trial arrived, however, the stipulation for a continuance of the Root-Cummings case was filed, and the agreement made to separate it "from any other contests of any other parties against the probate of said will.” This stipulation summarily disposed of the trial of the main case ou that day. Its former dependent, the Sheffield-Davis contest was next called. Mr. Cotter could do nothing except beg a continuance. This he did by affidavit, more fully set forth in the statement of facts. His clieuts were in Massachusetts and New York, their only Montana counsel familiar with their rights had withdrawn some five weeks before, their New York attorneys were not present, he had no testimony on hand and knew not where to get it or who were his witnesses — indeed, surprised and routed by the unexpected move of the proponent and Root, he suddenly found himself the sole, unaided, unprepared and unadvised counsel for two clients, a nephew and niece of the decedent, nearly three thousand miles away, yet contending for years past that they were justly entitled to an eleventh interest in the princely fortune of their dead uncle.
The court, on July 26th, denied the motion for a postponement. The proponents pressed for a dismissal. Mr. Cotter asked leave to dismiss “without prejudice,” believing, probably, that such a dismissal might not operate to bar a reinstatement of the contest of his clients (a point upon which we express no opinion at this time). But the proponents objected to such an order and asked a general dismissal. Thereupon Mr. Cotter, acting presumably in his belief in the best interests of the appellants, withdrew altogether from the case, whereupon it was at once dismissed on proponent’s motion.
Thus the contestants were denied a hearing on the merits, and, so far as this contest was concerned, were wholly out of court.
We are not prepared to say that there was error in the court’s refusing the continuance. It may be that, for lack of sufficient knowledge of the facts in the case, the affidavit of Cotter was defective under the statute, and legally insufficient. We may grant, too, without intimating our views upon the effect of the order applied for, that the court properly declined to permit a dismissal “ without prejudice,” and that the final order of general dismissal was legally granted.
We may go a point further and concede that appellants were to a degree negligent in permitting Mr. Cotter to be placed in the position he was. With such grave interests at stake, and only seven days to consider the rights of his clients, their duty was to have given him assistance by the presence of some one who knew the facts and history of the litigation, lest an unforeseen turn might be taken in their case, which would imperil their rights.
Let the case stand, therefore, as if properly reduced to judgment of dismissal brought about by the insufficiency of the showing in the affidavit for a continuance and by the negligence of the appellants and their New York counsel.
Still we must determine the additional very important point, whether, under all the facts and circumstances presented by the motion and affidavit to open the default, such negligence was excusable, and whether, under section 116 of the Code of Civil Procedure, the contestants are entitled to be relieved of the judgment and default entered against them by the district court.
Several stubborn facts are prominent throughout the record. The appellants are the undisputed heirs at law of the decedent, and, unless cut off by will, are justly entitled to share in his estate. They were prompt in filing a contest as to the validity of the decedent’s will. They were diligent in securing the services of counsel in New York. They were diligent in the first instance in retaining counsel in Montana. Their Montana counsel acted for them for years and until less than six weeks before the day set for the trial of their contest. They relied upon their retained counsel until forced to employ another attorney. They knew that Hoot and Cummings had conducted the principal contest in the former trial, and that it again stood for trial before theirs. They knew that if the Hoot ease was tried, in the light of past experience, weeks would roll by before theirs could be reached, if it ever was. They knew that Root could only share as an heir at law in the estate of their uncle by overthrowing the will. They knew that Root’s contest was set for July 24th. They knew that if the will was good as against Root it should be as against them, while, if the intestacy of their uncle was established by Root, they stood iu the same line of succession with him and their other cousins. All these matters were naturally relied upon, and are now important elements in impelling the court to the conclusion to be reached.
But, above all, these appellants did not know, and are not blameworthy for not knowing, that Root would stipulate with proponents to continue his contest and expressly keep it distinct from theirs. The entire former conduct of the Root-Cummings contest precluded any reasonable supposition on these contestants’ part of any such continuance and stipulation. It was scarcely credible after such a prolonged litigation and an express agreement not to continue a second trial beyond a certain time, and after such a necessarily hostile attitude had been assumed by Root to the proponents of the will, that Root and Cummings would, as late as the very morning of the day of the trial, and without an intimation to these contestants, suddenly adopt so unforeseen a position, and, by doing so, force appellants into the desperate choice of proceeding without testimony or suffering a default.
It may be that such conduct on Root’s part, in so far as it affected him only, was a matter purely between him and proponents, but it certainly was none the less a great surprise to these contestants, who were injured by it, and, when considered in the light of the fact that by no possible effort could the appellants have prepared for trial after Mr. Cotter was retained, the situation appeals with much force to the discretion of a court to restore these contestants to a position where they can be heard upon their objections to the probate of the will.
The letter of Mr. Corbett of April, 1892, not only advised Mr. Keogh that under our practice ample time would be given to frame the pleadings in the several contests, but also communicated to Keogh the statements of Mr. Eorbis, of counsel for proponent, made to Mr. Corbett, that “ they have no intention of forcing trial on the Sheffield-Davis objections at any earlier date than upon Hoot and Cummings objections, and Mr. James W. Forbis stated to me that the demurrer being disposed of should stand continued for hearing subject to the same con litions as the Knot and Cummings objections.” This letter strongly corroborates the evident and the well-justified reliance of these appellants upon the disposition of the Koot contest ahead of theirs.
Of course, as events turned out, these contestants were foolish to rely upon all the matters they did, but, unless nearly every reasonable hypothesis in explanation of their conduct, other than a most unnatural indifference, is to be excluded, under the showing made to open the default, it is well nigh impossible to believe that the ends of justice will be furthered by barring them of their day in court. We say “ barring them,” without meaning to hold that a judgment of dismissal would necessarily preclude a contestant from coming in under section 30 of the Probate Practice Act, and instituting a contest within a year after a will may have been probated. But the possible rights of the appellants under such conditions not being involved herein, and not having been argued to this court, we find it unnecessary to decide the point suggested.
The proponent cannot complain of any injustice to him, because he was a party to the stipulation with Koot of July 24th, which operated to the surprise of the contestants. Moreover, the court may prescribe that by reason of the negligence shown, as a condition for relief, contestants — appellants—shall pay the necessary court costs to which proponent was put in preparing for trial on July 24, 1893.
Some stress is laid by respondents upon the alleged sale of contestants’ interests to Erwin Davis, and it is argued that because there was such a sale the appellants cannot justly claim surprise or excusable neglect. But as they stand toward the court, rather than as toward one another, we find sufficient excuse for their neglect throughout the whole record to entitle them to the relief asked, without assuming to decide, upon the affidavits before us, whether such sale was or was not a subsisting agreement when Mr. Toole withdrew as their counsel.
Nor do we attach particular significance to the appellants’ failure to pay any share of the contestants’ costs in the Root-Cummings matter. The proponents cannot object to that, for it in no way hurt them, unless it otherwise tends to establish inexcusable neglect in not meeting them in the July, 1893> case. This it does not do in a satisfactory manner.
Besides, if appellants have made a sufficient showing of rights, their past penuriousness toward other contestants is not for consideration, and the courts should not deter them from now asserting those rights against those whom they have in no wise injured.
We find it unnecessary to discuss the probability of any alleged collusive agreement between Root and Cummiugs and proponent to continue their contest, in order to secure the dismissal of others and permit the will to be probated and the Root-Cummings contest to be withdrawn, to the end that the estate might be divided between the legatees named in said will and the said Root and Cummings, to the exclusion of the said Sheffield and Davis. We have eliminated this accusation of appellants from our consideration of the present appeal.
So, too, do we refrain from more than a passing mention of the unwarranted implications of the counsel for appellants in the language of his briefs upon the ruling of the district court, refusing to open the default. The perhaps vital importance of this decision to his clients has doubtless led counsel into a somewhat intemperate use of words, which scarcely comports with his honorable position at the bar of this court.
We base our opinion upon the ground that when these appellants, by their counsel, Mr. Cotter, went into court on July 24, 1893, the Root-Cummings contest stood for trial ahead of theirs, and that when it was continued, and the appellants’ contest was peremptorily called, they were surprised and their negligence in not being ready to proceed, and in suffering a default, considering all the facts and circumstances, was excusable.
It follows that the discretion of the court in refusing the relief finally and justly asked was so unwisely exercised that, in furtherance of justice, a reversal of the case must be ordered.
It is therefore ordered that the cause be remanded to the district court of Silver Bow county, with directions that upon payment within thirty days into that court by the appellants of all reasonable and legally taxable court costs of the respondents in preparing for trial on July 24, 1893, the judgment of the district court, and the order denying the motion to set aside the same, be reversed, and the contest of the appellants be restored for trial or other proper disposition by that court.
Reversed.
De Witt, J., concurs. Pemberton, C. J., dissents.
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DeWitt, J.
— The respondent moves to strike from the record the bill of exceptions therein contained, for the reason that the judge wlio signed and settled the same had no jurisdiction so to do. The case was tried June 21,1893. On June 23d the court made an order granting thirty days’ time to prepare and file a bill of exceptions. The defendant, the appellant, served a bill of exceptions on respondent’s counsel on July 17, 1893. They filed the bill of exceptions with the clerk for the judge on July 23, 1893. On the same day the respondent’s counsel filed with the clerk their objections and exceptions to the bill of exceptions. The case was tried by Judge Woody of the fourth district, sitting for Judge Brantley in the third district. The bill of exceptions was finally settled by Judge Woody Octobér 23,1893. The terms of the third district court were held commencing on the first Mondays of June, September, and November. This case was tried during the June term. That term lasted until September 2d, when it was adjourned for the term.
Counsel for respondent, in moving to strike out the bill of exceptions, rely upon section 294 of the Code of Civil Procedure, which is as follows: “All bills of exceptions shall be reduced to form, unless noted by the clerk, and signed during the term in which the same is tried, except in cases where the counsel consent, or the judge, by an entry on the record, directs that it may be prepared in vacation, and signed nunc pro tunc. The bill of exceptions must be signed by the judge who tried the cause, and, if he has inadvertently omitted to sign a bill of exceptions, he may, on motion, be permitted to do so, although his term of office has expired, or said office has otherwise become vacant.”
It was the proper practice for the respondent to note his objections to the settling of the bill of exceptions, and have the same made a part of the record. (Sweeney v. Great Falls Ry. Co., 11 Mont. 34; Arnold v. Sinclair, 12 Mont. 261.)
One objection was, that the term at which the case was tried expired and adjourned long prior to the service of said proposed bill of exceptions upon respondent’s counsel. The record does not sustain this objection, for, as observed above, the bill of exceptions was served on the 17th of July, and filed on the 23d, and the term did not finally adjourn until September 2d.
Another objection was, that no order was made by the court extending the time for preparing and settling the bill of exceptions, and that the court had not, on July 23d, the authority to settle or sign it. The court extended the time for preparing the bill of exceptions for thirty days, but, as it happened, the term lasted for longer than thirty days, and the bill of exceptions was prepared, not only during the thirty days’ extension, but during the term of the court.
The respondent’s objection, which he filed to the bill of exceptions, was, that the court had not then (that is, on July 23d) power to settle the bill. This objection, as so made and filed, we have above seen could not be sustained. The judge did not settle the bill upon that day, and not until the 23d of October. When the court did settle the bill the attorneys for the respective parties, the plaintiff and defendant, appeared and argued the question of the settlement of the bill. The respondent did not object that the judge had not then (that is, October 23d) power to settle the bill, but was present by his counsel and participated in the settlement. Therefore, if there were valid reasons for objecting to the settlement of the bill of exceptions on October 23d, we think they were waived. (Mackay v. Montana Union Ry. Co., 13 Mont. 15; Walsh v. Mueller, 14 Mont. 76.)
It is therefore ordered that the motion to strike out the bill of exceptions be denied.
Motion denied.
Hunt, J., concurs.
|
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HUNT, J.
— The lease between Blake and Dick was the ordinary contract between landlord and tenant; there was therefore no implied warranty on the part of Blake that the dwelling-house leased was in tenantable condition, or would be kept in such condition; nor at the time of the original contract between the parties was there any obligation on Blake’s part to make any repairs of the cellar or ground. These rules of law are too well settled to require a citation of authorities to support them. (Bowe v. Hunking, 135 Mass. 383, and cases cited.)
Defendant, in his answer, having admitted the execution of the lease and nonpayment of rent, assumed the burden of proof to escape liability under its terms. He was asked “ if there was any change in the condition of the basement about that time [meaning July, 1891] from what he found it.” This question was objected to and the objection sustained, whereupon defendant made the following offer of proof:
“I now offer to show that these premises were so situated that any rain or storm was liable to flood this basement and render it unfit for use; that at the time this defendant leased this building it was warm, dry weather, and that defect was not apparent to him at the time; that tenants who had occupied the building before this defendant had occupied it complained and were obliged to leave on account of a similar defect; that, by the rain of about July 4th, this cellar was filled with filth, manure, mud, and water, which ran into it from a stable-yard belonging to the plaintiff on the premises immediately adjoining; that the basement was filled with water to the depth of some six or eight feet, and also with the filth from the barnyard; that it remained so for some week or ten days; that the plaintiff or his agent came there and offered to remove it, admitted that they were liable to remove it, and undertook to remove it; that they took it from the basement and spread it around in the yard of the premises, and left it in manure piles and piles of rubbish and garbage, and that these piles of rubbish and garbage so distributed upon the premises rendered the whole premises unfit for occupation; and that by reason of this change in the premises, making it dangerous to the health and lives of the family of the defendant, he was obliged to and did surrender the premises to the plaintiff.”
Plaintiff objected to the offer, upon the ground that such proof was irrelevant and immaterial, and, if established, would constitute no defense to the complaint. The court sustained this objection.
The defendant contends that because the facts in relation to the situation of the premises, and the construction of the dwelling-house, and the liability of the water to run down into the cellar, were not apparent to him at the time he leased the property, it became the duty of the landlord to disclose all such “defects” to him, and that not having done so he was guilty of fraud in procuring the lease. But the tenant cannot complain. The landlord did not warrant the condition of the premises; the tenant, by the evidence, inspected them; he took the risk of their condition. (Taylor’s Landlord and Tenant, § 328.) We find no plea of concealment by the landlord of any fact of which the tenant did not have full opportunity of informing himself, and, accepting, as we do, all the facts to be true as pleaded and offered, in relation to the occasional rains causing draining of water into the cellar from the stable-yard of the landlord, there can be no deduction that, by reason of such overflow or drainage, there was any suppression of the truth, or any concealment of facts, or other conduct positively or inferentially fraudulent on the part of the plaintiff before or at the time of the execution of the lease. Milliken v. Thorndyke, 103 Mass. 385, relied on by appellant, was decided upon a wholly different state of facts from that in this case. There the lessees set up that before the execution of the lease they had a conversation with the lessor, and that by the false representations of the lessor of material facts which he knew to be false when he made them, or positively affirmed as of'his own knowledge, they were induced to sign the lease, and that such conduct was fraudulent, and rendered the lease nidi and void. And the decision in that case was based entirely upon the ground that by the deceit of the landlord and the abandonment of the premises immediately upon the discovery of the fraud the defendant could obtain relief. The case has no application. Here Blake, the landlord, was not obliged by any rela tion of the parties to the lease under consideration, to remove the mud and filth from the cellar. His act in so doing was therefore gratuitous, and any agreement on his part to remove it was without consideration and void. (Purcell v. English, 86 Ind. 34; Wood’s Landlord and Tenant, § 382.)
The further argument, that the landlord incurred a liability when he undertook to remedy the defect but failed, might be applicable, under proper averments, in tort, upon the principle, however, that where a person has assumed to make repairs, and lias failed to exercise a proper degree of care in making them, and injury results, redress is afforded the injured party, independent of any contract existing between the parties. But there is no such plea or contention before us.
The defendant next says that by the spreading of the filth upon the yard the premises became unfit for habitation and more dangerous to the health and lives of the family of defendant, and thus a nuisance was created which constituted an eviction, and justified him in quitting the possession. The facts show, however, that the primary nuisance was the filth in the cellar, which made the premises unfit for use and dangerous to health. For this condition and its causes the landlord was not liable, and where he cannot be held liable for the creation of the nuisance we hold he cannot be held responsible for any act not negligently or wrongfully done involuntarily, by request of the tenant trying to abate it. Moreover the conduct of the defendant Dick is inconsistent with the claim on his part that he was evicted. He swears that he left the premises in July, but after about ten days’ absence returned, and remained in them until September. We are of opinion that by his return and stay he waived any rights he may have had to set up fraud, deceit, or eviction. (Wood’s Landlord and Tenant, § 481; Gear on Landlord and Tenant, § 160, and note.)
Defendant finally pleads a surrender. He testified, that, when the October bill for rent was rendered to him, he returned the key, writing at the foot of the bill rendered that he considered the house untenantable, and refused to pay any more rent, and that he afterward saw a notice “For Pent’’ posted upon the premises. The key and note were delivered to a Mr. Hopkins, who worked for Wallace & Thornburgh, from whom defendant hired the premises, and who appear to have offered the house for rent in September after defendant vacated. But no surrender is proved. The defendant did not establish any authority whatever in Hopkins to terminate the lease, or to consent to the abandonment of the premises. (Thomas v. Nelson, 69 N. Y. 118.) Even granting that Hopkins, as a clerk of the agents of the landlord, had authority to collect the rent from the defendant, such authority was a recognition of the existence of the contract, and that it would continue in force; but an agency to collect the rent of premises does not, by implication, and without further proof of authority, carry with it the right to accept a surrender, where a tenant, without legal justification, has quitted the premises before the term is completed. (Woodward v. Lindley, 43 Ind. 333; Bayliss v. Prentiss, 75 N. Y. 604.)
The appellant argues that the conduct of the landlord, however, in not returning the key, and in offering the house for rent, amounted to an acceptance and release. But it was not incumbent upon the landlord, if he got the key, to seek out the tenant and return it to him. And we hold that in the absence of any testimony of a surrender to the landlord himself, or of any acceptance of the premises by him, or by his authorized agents, proving an intent to consent to an abandonment by the tenant, the delivery of the key to Hopkins, and its retention, and a subsequent offer to rent, are not, without further evidence, sufficient to relieve the tenant of rent due under the lease for such time as the house was empty. (Nelson v. Thompson, 23 Minn. 508; Withers v. Larrabee, 48 Me. 570; Ladd v. Smith, 6 Or. 316; Bowen v. Clark, 22 Or. 566.)
In conclusion, upon a review of the authorities and facts, we are of opinion that there was no eviction and no surrender by agreement, or by operation of law, and that the direction to the jury to find for the plaintiff, was correct.
The order denying a motion for new trial, and the judgment are affirmed.
Affirmed.
Pembertou, C. J., and De Witt, J., concur.
|
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] |
Pemberton, C. J.
— The plaintiff in this action is a corporation. It instituted this suit in the court below to enjoin defendant Savage, as treasurer aforesaid, from the collection of sj>ecial school taxes claimed to be due to said school districts for the year 1890, said taxes amounting, in the aggregate, to nine hundred and ten dollars and seventy-three cents. Seven hundred and thirty-five dollars and fifty-eight cents of said amount alleged to be due as such tax to school district No. 4, and one hundred and seventy-five dollars and fifteen cents alleged to be due to said school district No. 13. The complaint alleges that said districts levied such tax upon the property of plaintiff for the same year, for the same purpose, and upon identically the same property. The plaintiff alleges in its complaint that its particular place of business was not located within the limits'of said school district No. 4 at the time of the levy of said tax claimed to be due said district, and therefore claims that it could not be compelled to pay taxes in said school district. As to the tax levied by school district No. 13, the plaintiff seeks to avoid the payment thereof by attacking the organization of said district, claiming that the same was never, at any time, legally organized as a school district, with anthority to levy taxes, but admits its place of business to be within its boundaries if properly organized. The case was tried to a jury. The court submitted special findings of fact, involving the question as to the particular place of business of said corporation, as well as the legality of the organization of school district No. 13. The jury returned findings in all these matters in favor of defendants, and rendered a general verdict against the plaintiff. The court set aside the findings of fact and the general verdict, and thereupon dismissed the complaint of plaintiff, for the reason, as contended, that it did not state a cause of action, and rendered judgment against the plaintiff for costs. From this judgment, and an order refusing a new trial, this appeal is prosecuted.
The only material error assigned in this case is the action of the court in dismissing the complaint of plaintiff upon the ground that it did not state a cause of action.
The plaintiff alleges in its complaint that the pretended school district No. 13 never had any legal existence, for the reason that nothing whatever was ever done by the county superintendent of schools, or the board of county commissioners, or any other person, which section 1875 of the Compiled Statutes of 1877 required to be done in order to organize a school district. If the facts stated in the complaint in relation to the organization of this district are true, then it never had any legal existence. It is a nullity. The organization of this district is not attacked on account of irregularities. But the facts alleged show that there never was in fact any such corporate entity as school district No. 13 in Custer county. In order to give a school district existence, at least some thing ought to be done which the law requires to be done in order that it may claim organization and assume to exercise the privileges and franchises of a corporation. If this district were plaintiff in this case and alleged its corporate existence, it certainly could not prove it if the facts are as alleged in the complaint herein. The arguments of counsel for this district, and the authorities cited, are applicable to cases where the organization is sought to be attacked for irregularities merely. We think they do not apply when the actual existence of such a corporation is the issue presented.
Tlie' plaintiff alleges that its principal place of business is not within school district No. 4, and that for this reason it was not subject or legally liable to taxation in and by this district. If this be true, and it must be so considered for the purpose of this ease, then the tax levied and sought to be collected for this district is void.
It is contended that plaintiff should have gone before the board of equalization for these districts in the first instance and sought relief) and that its complaint should state this fact to give it standing in court in this case. If the place of business and property of plaintiff are without the limits of school district No. 4, then said school district never had any jurisdiction to levy a tax against the plaintiff. If the pretended school district No. 13 never had any existence, then, of course, it never hád any jurisdiction to levy the tax it claimed or to do any thing else.
From this consideration we are of opinion that the complaint stated a cause of action as to district, No. 4, as well as to the pretended district No. 13. The case is therefore reversed and remanded for such further proceedings as may be appropriate to the conditions of the case. (Woolman v. Garringer, 2 Mont. 405; Collier v. Ervin, 2 Mont. 556.)
Reversed.
De Witt, J., and Haewooc, J., concur.
|
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] |
De Witt, J.
— The first error asserted by appellants is that the court overruled two of appellants’ challenges to jurors for cause, when it appeared, as claimed, by the examination of said jurors on their voir dire, that they were disqualified by virtue of opinions which they were shown to entertain. But it does not appear by the record that the defendants at any time before the swearing of the jury had used any of their peremptory challenges; and, for all that appears by the record, the defendants went to trial with the alleged objectionable jurors, and, at the same time, had unused all of their peremptory challenges, with which they might have excluded said jurors. In the case of Territory v. Hart, 7 Mont. 42, it was held that a party objecting for cause to an incompetent juror waived the objection made in that case if he failed to challenge said juror peremptorily, and went to trial with his peremptory challenges unexhausted. In that case it is true that it appeared by the record on appeal that his challenges were not exhausted. But we are of opinion that the rule does, and should, go a step farther than was necessary to hold in the Hart case; and that a party undertaking to save such objection for review on appeal must also be held to show in his record that when he finally accepted the jury he had not remaining a peremptory challenge by which he could have excluded such objectionable juror. This is simply holding that a party claiming that he was injured by a ruling of the court below must present the appellate court with a record which shows the facts upon which he relies. (Thompson on Trials, § 115, and authorities; Burrill v. State, 18 Tex. 730; Robinson v. Randall, 82 Ill. 521; Stout v. Hyatt, 13 Kan. 232; State v. Hoyt, 47 Conn. 518, and cases there cited; Brown v. State, 57 Miss. 424; State v. Raymond, 11 Nev. 98.) This assignment of error is therefore overruled.
There are some questions argued in appellants’ brief as to a forfeiture for nonrepresentation of the St. Lawrence lode mining claim in certain years, but this issue was not made by the pleadings (Wulf v. Manuel, supra, and cases collected), except as to the year 1887. But appellants now abandon any claim of error as to the finding in respondents’ favor in regard to the representation in the year 1887, except as noted in the assignment treated in the next paragraph. There are several other assignments of error mentioned in the brief of appellants, which counsel, on the argument, abandoned.
Another error assigned by appellants is that the court al lowed to be introduced in evidence by respondents the affidavit of one John W. Merrill, as to the representation of the St. Lawrence claim in the year 1887. This was an affidavit made under the provisions of section 1483, et seq.} division 5, of the General Laws of Montana. That statute provides (stating it generally and not by detail) that when owners of mining claims have performed the required labor or made the required improvements upon a claim, they may, within sixty days after the termination of the year, make an affidavit of those facts, setting out the nature of the labor and improvements, and file the same with the county recorder, and that such recorded affidavit shall be received or admitted in evidence in any court of justice in this state, and be 'prima fade evidence of the facts recited therein. It is not required that such affidavit be made, but, if it be so made and recorded, it may be used, as above noted, as prima fade evidence. The making and recording of the affidavit is simply a convenient method provided for preserving prima fade evidence of the representation, if one chooses to avail himself of this provision of the law. (Coleman v. Curtis, 12 Mont. 301.)
When the case came on for trial the said affiant Merrill was present and testified as to the representation of said claim in that year. His affidavit, above described, was also used in evidence. The objection is that it was secondary evidence when the primary evidence was at hand. But, in this case, what the appellants call the primary evidence, namely, Merrill’s own testimony, was introduced. We are of opinion that the introduction of the affidavit was wholly immaterial. In the absence of a statute it would of course not be evidence. But the statute expressly made it evidence. It was not necessary or material in the presence of the fact that the affiant was at the trial and testified orally. But the introduction of the affidavit could have done no possible injury to the appellants. The finding of the court as to the representation in the year 1887 was established by Merrill’s testimony, without the use of the affidavit. That finding is not attacked, and it is conceded by appellants in their argument that the Merrill testimony was sufficient to sustain the finding without the use of the affidavit. It is a clear case of damnum absque injuria.
Appellants allege another error in the introduction of evidence of the location notice of the St. Lawrence claim. Appellants objected to the affidavit verifying the location notice. The affidavit was not alleged to be objectionable in any respect, except that the name of the affiant did not appear in the body of the affidavit. The affidavit commenced:
“ Territory or Montana, \ “County of Silver Bow. jss'
“-, being first duly sworn according to law, deposes and says, that she is a citizen,” etc.
The affidavit was then signed, Mrs. Susan A. Smith. A formal Jurat was attached, signed by the notary public. It is held by this court that the declaratory statement of the location of a mining claim must be under oath. (O’Donnell v. Glenn, 8 Mont. 248; 9 Mont. 452; Metcalf v. Prescott, 10 Mont. 283.) If this affidavit, therefore, is insufficient, the location notice is void. But we are of opinion that the affidavit is sufficient. It is not such an affidavit as was held to be bad in Metcalf v. Prescott, supra. In that case the affidavit was not signed, there was no jurat to it, and there was nothing about it to show that the alleged affiant ever signed it, ever swore to it, or was ever before the notary. But in the affidavit now under consideration the affiant does appear to have been before the notary; it is certified that she swore to it, subscribed it, and her name appears as a subscriber. We said in Metcalf v. Prescott, supra, that “an affidavit is one method of taking an oath; an affidavit is ‘a statement or declaration reduced to writing and sworn or affirmed to before some officer who had authority to administer an oath.’ (Bouvier’s Law Dictionary.)” The affidavit before us was a declaration reduced to writing, and it clearly appears that it was sworn to and subscribed before an officer having authority to administer an oath. (See cases cited in Metcalf v. Prescott, supra; People v. Sutherland, 81 N. Y. 1.)
The last assignment of error is that the evidence is insufficient, in that it does not show that prior to the location of the St. Lawrence claim there was any discovery of a mineral-bearing vein. The location of this claim appears, by the evidence, to have been made with much care. The claim was surveyed by a surveyor the day before the location notice was made and filed. The husband of Susan A. Smith, one of the locators, and the person who verified the location notice, was present at the location, and assisted therein, acting in behalf of his wife. He testified quite fully as to the location of the claim, and as to the discovery of a vein. He said that it sli owed very plainly on the surface, and that it was a good-looking vein, and, from appearances, it was a good vein. He described its strike, and gave its width, and stated that it laid in solid granite; that he did not make any assays at the time, but assays were made later, which proved its valuable character as to its being a mineral vein. The witness testified to about all that it was possible for an intelligent prospector to say, without having made an actual assay. The appellants do not claim that there was any testimony offered to rebut the testimony of witness Smith, and, in the absence of any such contraverting testimony, we think the evidence was sufficient to make a prima facie case of the discovery of a mineral vein. We are not prepared to lay down the rule that the locator must show that he has made assays of the vein, when no one disputes the prima fade showing by the evidence of the prospector that the vein was a good one, and appeared to be sufficiently good to justify locating and subsequent working of the same. (Shreve v. Copper Bell M. Co., 11 Mont. 309.)
We have reviewed all the errors which have been relied upon by counsel in their argument, and we think that none of them can be sustained. The judgment of the district court is therefore affirmed.
Affirmed.
Pemberton, C. J., and Hunt, J., concur.
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Hunt, J.
— The power of the district courts to make reasonable rules and regulations for governing and facilitating their practice and procedure in reference to all matters not provided for by law is expressly conferred by section 523 of the Code of Civil Procedure.
But, when the power lias been exercised and a rule adopted, courts, as well as the members of the bar, should respect the same, and regulate their conduct in conformity therewith. (Coyote etc. Co. v. Ruble, 9 Or. 121; Hawley v. Bank, 20 Nev. 410; Malony v. Hunt, 29 Mo. App. 379; Lancaster v. Waukegan etc. Ry., 24 N. E. Rep. 629; Treishel v. McGill, 28 Ill. App. 68; Thompson v. Hatch, 3 Pick. 512.)
This case at bar presents a total disregard of the rule quoted above, without any reason therefor except a conflict of statement between the respective attorneys for the parties as to whether there was or was not any verbal stipulation out of court for extra time to answer. We think that to affirm the decision of the court would be to hold that an established rule of procedure may be arbitrarily applied or abrogated without regard to the use of sound judicial discretion.
Doubtless, rules of court may be rescinded or modified at the just convenience of the court which makes them, but there should be some better reason for wholly ignoring them than the respondent relies upon in this case.
The order setting aside the default is reversed.
Reversed.
Pemberton, C. J. and DeWitt, J. concur.
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De Witt, J.
— Counsel for relators has presented to us the general rules as to when statutes should be construed to be mandatory and when directory, and has argued, upon their analogies, that the provision of our constitution which requires a proposed amendment to that instrument to be published for three months is directory only, and that a disregard of the provision is not fatal to the adoption of the amendment. The reports are full of decisions which have applied these principles as to the construction of certain provisions of statutes, but we need not enter upon an elaborate examination of these principles, for we believe that in considering the provisions of the constitution for amending that instrument we are entering upon a somewhat different field.
We cannot better introduce this consideration than by quoting from Judge Cooley, whose language we find cited, and his doctrine largely followed, by the courts which have treated the subject of the construction of constitutional provisions. Judge Cooley says: “But the courts tread upon very dangerous ground when they venture to apply the rules which distinguish directory and mandatory statutes to the provisions of a constitution. Constitutions do not usually undertake to prescribe. mere rules of proceeding, except when such rules are looked upon as essential to the thing to be done; and they must then be regarded in the light of limitations upon the power to be exercised. It is the province of an instrument of this solemn and permanent character to establish those fundamental maxims and fix those unvarying rules by which all departments of the government must at all times shape their conduct; and, if it descends to prescribing mere rules of order in unessential matters, it is lowering the proper dignity of such an iustrüment, and usurping the proper province of ordinary legislation. We are not, therefore, to expect to find in a constitution provisions which the people, in adopting it, have not regarded as of high importance and worthy to be embraced in an instrument which, for a time at least, is to control alike the government and the governed, and to form a standard by which is to be measured the power which can be exercised, as well by the delegate, as by the sovereign people themselves. If directions are given respecting the times or modes of proceeding in which a power should be exercised, there is at least a strong presumption that the people designed it should be exercised in that time and mode only; and we impute to the people a want of due appreciation of the purpose and proper province of such an instrument when we infer that such directions are given to any other end. Especially when, as has been already said, it is but fair to presume that the people in their constitution have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated, and with a view to leave as little as possible to implication. There are some cases, however, where the doctrine of directory statutes has been applied to constitutional provisions; but they are so plainly at variance with the weight of authority upon the precise points.considered, that we feel warranted in saying that the judicial decisions, as they now stand, do not sanction the application.” (Cooley’s Constitutional Limitations, 4th ed., 94, 95.) “And we concur fully in what was said by Mr. Justice Emmot, in speaking of this very provision, that ‘it will be found, upon full consideration, to be difficult to treat any constitutional provision as merely directory, and not imperative.’” (Page 99.)
At another place in the same work this distinguished authority on constitutional law says: “But the will of the people to this end [that is, amending a constitution] can only be expressed in the legitimate modes by which such a body politic can act, and which must either be prescribed by the constitution whose revision or amendment is sought; or by an act of the legislative department of the state, which alone would be authorized to speak for the people upon this subject, and to point out a mode for the expression of their will in the absence of any provision for amendment or revision contained in the constitution itself.” (§ 30, page 39.)
In another place in the same work we find the following language: “ The fact is this: that whatever constitutional provision can be looked upon as directory merely is very likely to be treated by the legislature as if it was devoid even of moral obligation, and to be, therefore, habitually disregarded. To say that a provision is directory seems, with many persons, to be equivalent to saying tha» it is not law at all. That this ought not to be so must be conceded; that it is so we have abundant reason and good authority for saying. If, therefore, a constitutional provision is to be enforced at all it must be treated as mandatory. And, if the legislature habitually disregard it, it seems to us that there is all the more urgent necessity that the courts should enforce it. And it also seems to us that there are few evils which can be inflicted by a strict adherence to the law so great as that which is done by an habitual disregard, by any department of the government, of a plain requirement of that instrument from which it derives its authority, and which ought, therefore, to be scrupulously observed and obeyed.” (§ 150, page 183.)
The court of appeals of Texas, in construing a constitutional provision, uses the following language: “ In considering the subject we think it necessary to first determine whether, in the construction of the organic law, we may, as we might in the construction of a statute, apply the distinction between directory and mandatory provisions, or whether we must construe all provisions of the organic law to be mandatory.” (Hunt v. State, 22 Tex. App. 397.) The opinion of that court then refers to cases which have held constitutional provisions to be directory, and continues in the following language: “But, notwithstanding these decisions are by able courts, the great weight of authority seems to be the other way, holding that the courts nor any other department of the government are at liberty to regard any provision of the constitution as merely directory, but that each and every of its provisions must be treated as imperative and mandatory, without reference to the rules distinguishing between directory and mandatory statutes.” (Hunt v. State, 22 Tex. App. 398.) The opinion then cites Judge Cooley as we have quoted him above, and continues: “In our own state we know of no instance in which a constitutional provision has been held to be directory merely. This court has more than once held that constitutional provisions are always mandatory, and has adopted the doctrine laid down by Judge Cooley, which we have quoted above. (Cox v. State, 8 Tex. App. 254; 34 Am. Rep. 746; Holley v. State, 14 Tex. App. 505.) We believe this to be the sound and only safe doctrine. It seems to us that the rule which gives to the courts and other departments of the government a discretionary power to treat a constitutional provision as directory, and to obey it or not, at their pleasure, is fraught with great danger to the government. We can conceive of no greater danger to constitutional government, and to the rights and liberties of the people, than the doctrine which permits a loose, latitudi-nous, discretionary construction of the organic law. ‘We are taught by the constitution itself that those who administer this government are divided into three co-ordinate departments; each of these can only act within its own limited sphere, and they, respectively, are the servants of the sovereign power, the people. There is no power above the people. There is no discretionary power granted in the constitution for either of these departments, nor for all of them united, to exercise a discretionary expansion and flexible power against its rigid limitations, even though such limitations were imposed by improvident jealousy. If abuse exists by reason of defects in the constitution, present or prospective, the true source of authority, the people, have the power, and doubtless the wisdom and patriotism, to correct them; and this, in the American idea, is the safe and only depository.’ (Potter’s Dwarris on Statutes, 665.) .... Upon the weight of authority, and, to our minds, upon the soundest of reasons, we conclude that the provision of the constitution under consideration, and all other provisions of our constitution, are mandatory, and can in no case be regarded as directory merely, to be obeyed or not, within the discretion of either or all of the departments united of the government.” (Hunt v. State, 22 Tex. App. 399, 400. See, also, Opinion of the Justices, 6 Cush. 573.)
It would seem that the framers of our constitution had in mind the views of Judge Cooley, for they did not leave the language of the constitution open to the construction of courts, but set the matter at rest by the following provision: “The provisions of this constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise.” (Const., art. III, § 29.) The court is therefore relieved from much responsibility in the construction of the organic law. The question is not before us whether the requirement of the constitution that notice of a proposed amendment shall be published for three months is mandatory or directory. The constitution construes itself in this regard, and, as remarked in the opening of this opinion, we seem to be in a somewhat different field than that suggested by relators’ counsel as to the construction of statutes.
It being settled that the provision under consideration is mandatory the inquiry remaining seems to be, What is the consequence of disobedience to the mandate of the constitution? Is the proposed adoption of the amendment nullified, or is the disobedience of the constitution to be treated as simply an omission by the secretary of state? A constitution differs from a statute, in that a statute must provide the details of the subject of which it treats; whereas a constitution states general principles, and builds the substantial foundation and general framework of the law and government. It is true that it is a subject of general remark that the modern tendency of constitution makers is to somewhat depart from this practice; but the distinction between a statute and a constitution, as above suggested, certainly remains, and it is still true that constitutions do not generally descend into details. But when we find this practice departed from, and we observe a constitution going into details, such action is significant.
Again, referring to the eminent constitutional authority above quoted, we repeat: “It is the province of an instrument of this solemn and permanent character to establish those fundamental maxims, and fix those unvarying rules by which all departments of the government must at all times shape their conduct; and if it descends to prescribing mere rules of order in unessential matters it is lowering the proper dignity of such an instrument, and usurping the proper province of ordinary legislation. We are not, therefore, to expect to find in a constitution provisions which the people, in adopting it, have not regarded as of high importance, and worthy to be embraced in an instrument which, for a time at least, is to control alike the government and the governed, and to form a standard by which is to be measured the power which can be exercised, as well by the delegate, as by the sovereign people themselves. If directions are given respecting the times or modes of proceeding in which a power should be exercised there is at least a strong presumption that the people designed it should be exercised in that time and mode only; and we impute to the people a want of due appreciation of the purpose and proper province of such an instrument when we infer that such directions are given to any other end.” (Cooley’s Constitutional Limitations, 4th ed., 94, 95.) Thus Judge Cooley holds that if we fiud in a constitution that which some may undertake to argue should be held to be unessential, it was not intended to be unessential by the people in enacting the provision. (See, also, Oakland Paving Co. v. Hilton, 69 Cal. 510; citing Koehler v. Hill, 60 Iowa, 554; citing Cooley as above.)
The Kansas supreme court, in a case before it, said: “The two important vital elements in any constitutional amendment are the assent of two-thirds of the legislature and a majority of the popular vote. Beyond these, other provisions are mere machinery and forms. They may not be disregarded, because by them certainty as to the essentials is secured; but they are not themselves the essentials.” (Prohibitory Amendment cases, 24 Kan. 700.)
In reviewing this Kansas case the supreme court of California uses the following language: “That the elements mentioned by the learned justice are important and vital cannot be doubted, but that they are the only important and vital elements cannot be conceded. The learned court here assumes, without any reason, that entering on the journals is not vital and important. The convention which framed the constitution of Kansas, and the people who adopted it and made it their paramount law, thought otherwise. This is plainly apparent from their inserting other elements in their constitution. It would be a rash assertion, and one which no sound principle of constitutional law sustains that the words, ‘such proposed amendments ... .■ . shall be entered on the journal’ were inserted in the constitution of Kansas to be observed or not, as the legislature or any other department of the government of that state should think proper. If this is form and machinery it is form and machinery established by the constitution. It is not unsubstantial and nonessential, but a part of the instrument, which all officers are sworn to support, as much as any other portion of the constitution; for when an oath is taken to support the constitution it embraces the whole instrument. These provisions may not be disregarded, for the reason, says the court, that by them certainty as to essentials is secured. We can conceive of no stronger reason why they should be regarded by legislators and courts. The constitution makers inserted them for that reason. They, in effect, ordain and declare that no other mode or form of machinery is permissible to secure certainty in doing the act permitted. Declaring that those requirements are nonessential is, in effect, saying that the convention which framed the constitution, and the electors which ratified their action, spent their time in framing and inserting in their organic and paramount law nonessential and unimportant provisions.” (Oakland Paving Co. v. Hilton, 69 Cal. 499, 500.)
We also find the following language used by the supreme court of Alabama: “We entertain no doubt that to change the constitution in any other mode than by a convention, every requisition which is demanded by the instrument itself must be observed, and the omission of any one is fatal to the amendment. We scarcely deem any argument necessary to enforce this proposition. The constitution is the supreme and paramount law. The mode by which amendments are to be made under it is clearly defined. It has been said that certain acts are to be done, certain requisitions are to be observed, before a change can be effected. But to what purpose are these acts required, or these requisitions enjoined, if the legislature or any other department of the government can dispense with them? To do so would be to violate the instrument which they are sworn to support, and every principle of public law and sound constitutional policy requires the courts to pronounce against every amendment which is shown not to have been made in accordance with the rules prescribed by the fundamental law.” (Collier v. Frierson, 24 Ala. 109.)
In considering the provisions of our own constitution, and in the light of the decisions, we are clearly of the opinion that the requirement to publish notices of a proposed amendment for three months is not only mandatory, but that it is an essential provision, and that it must be obeyed. We may add further that it seems to us to be a prudent and expedient provision. This requirement of the constitution provides a method for amending that instrument. It is also provided that the constitution may be amended, or a new one compiled, by a convention. (Const., art. XIX, § 8.) This method, of course, is not now under consideration. But it may be said with us as it was said in Pennsylvania: There are only three methods by which a constitution may be changed: 1. The method by amendment, as provided in article XIX, section 9; 2. By convention, as provided by article XIX, section 8; and 3. By revolution. (Wells v. Bain, 75 Pa. St. 39; 15 Am. Rep. 563.) The first method was attempted. But that method was not followed as prescribed. Instead, another method was followed; that is, a method identical with that provided in article XIX, section 9, except that the advertisement was for two weeks only, and not for three months. As remarked in California, the constitution framers ordain and declare that no other form or mode or machinery is permissible to secure certainty in doing the act permitted. It is also held in the Alabama case above cited that an amendment cannot be made by a method other than that provided. We therefore have this situation: The method for amendment is provided by the solemnity of the constitutional enactment, and another method of amendment has been attempted to be invoked. We can see no other result but that such attempt is nugatory, and of absolutely no avail.
The California supreme court, in construing the provision that all of the constitution of that state should be mandatory and prohibitory, said: “We will add here that under our constitution no question can be made whether the provision in it for its amendment is mandatory or directory. That question is settled by the constitution itself, which ordains in the most solemn form and manner that each and all of its provisions are mandatory and prohibitory, unless by express words declared to be otherwise. (Art. I, § 22.) This section, in our judgment, not only commands that its provisions shall be obeyed, but that the disobedience of them is prohibited.” (Oakland Paving Co. v. Hilton, 69 Cal. 512.) The Alabama case is also to the same effect — that, if a method other than that provided is adopted, the attempt is nugatory. We also find it said in Endlich on Interpretation of Statutes, section 433, as follows: “It may, perhaps, be found generally correct to say that nullification is the natural and usual consequence of disobedience, and that, where an act requires a thing to be done in a particular manner, that manner alone must be adopted.”
If it is held that the command to the secretary of state to publish a proposed amendment for a certain period is nonessential, and may be disregarded, why may not the legislative department of the government follow the same practice, and disregard the requirement that the proposed amendment shall be voted for by two-thirds of the members elected to each house, or the requirement that the proposed amendment, with the ayes and noes of each house, shall be entered in full on their respective journals? If one requirement is uonessential, why is not another? And who is to say what is essential and what is not? And by what rules are such distinctions to be made? The constitution does not itself make them. The framers of that instrument made no distinction in the requirements. They made them all mandatory; and, if a court commences to nullify their commands by construction, we do not know where the court would eommeuce, or where it would end, or where it would draw the line which the constitution says shall not be drawn.
We have felt wholly satisfied that the omission to publish the proposed amendment, as required by the constitution, is fatal to its adoption; but we have considered the question at perhaps some length, and have quoted from the authorities with much liberality, because this is the first time that such a question of construction has been before us. We cannot but be of opinion, with Judge Cooley, that we would be treading upon extremely dangerous ground were we to hold that a solemn constitutional provision was simply directory and nonessential when we face the express mandatory language of the provision, and also the additional and separate command of the constitution that the provision is mandatory. The command of the constitution is in no uncertain voice. We cannot misunderstand it. We cannot do other than render to it the obedience which our duty demands. It provides that an amendment may.beadopted by certain methods. These methods were not employed. Another method was resorted to. That method accomplished nothing. The amendment was not adopted.
There being no amendment to the constitution there are no offices of county commissioners in Lewis and Clarke county to be filled at the election to be held in November, 1894, and there is therefore no duty enjoined by law upon the county clerk and recorder of that county to file any alleged certificates of nomination for such offices. The writ of mandamus is therefore dismissed.
Pemberton, C. J., and Harwood, J., concur.
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] |
De Witt, J.
— This is a hearing upon the return of an alternative writ of mandamus. The alternative writ of this court was issued September 24th, commanding the secretary of state to perform certain acts, or show cause, on September 27th, why he should not be required so to do. The question involved is the refusal of the secretary of state to do certain acts alleged by relator to be his duty, enjoined by the Ballot Law of 1889 (Laws 16th Sess., p. 135). To arrive at an understanding of the question presented the following facts may be stated: The constitution of the state provides: “At the general election in the year one thousand eight hundred and ninety-two the question of permanent location of the seat of government is hereby provided to be submitted to the qualified electors of the state, and the majority of all the votes upon said question shall determine the location thereof. In case there shall be no choice of location at said election the question of choice between the two places for which the highest number of votes shall have been cast shall be, and is hereby, submitted in like manner to the qualified electors at the next general election thereafter; provided, that until the seat of government shall have been permanently located, the temporary seat of„ government shall be and remain at the city of Helena.” (Const., art. X, § 2, p. 38.) The second legislative assembly, on March 6, 1891, and before the first vote upon the question of the permanent location of the seat of government was to be had, passed “An act providing for the submission of the question of the permanent location of the seat of government.” (See Laws 1891, 2d sess., p. 291.) This act differs in some details from the General Ballot Law of 1889. (Laws 1889, 16th sess., p. 135.) These details will be noted below. The affidavit filed, upon which the application was made, and upon which the alternative writ of mandamus was issued, is as follows, in full:
“ IN the Supreme Court
of the
State op MONTANA.
State op MONTANA. Comity of Lewis and Cli NA, 1 Clarke. /ss-
“Charles F. Lloyd, being first duly sworn, deposes and says: That he is a resident of the county of Silver Bow, state of Montana, and is a citizen of the United States and of the state of Montana, and is a duly qualified elector and taxpayer of said state. That under and by virtue of the provisions of section 2, article X, of the constitution of the state of Montana, the question of the permanent location of the seat of government of the said state was duly submitted, at the general election held in the said state in the year 1892, to the qualified electors thereof. That more than two cities or towns of the said state of Montana were voted for at the said election, but neither of the places voted for received a majority of all the votes cast upon the said question, and there was no choice of location at tb<j said election. That Helena and Anaconda, two of the cities of the said state of Montana, voted for at the said election, received the highest number of votes cast at the said election, and the question of choice between the said two cities — that is to say, the question as to which one of the said two cities shall become the permanent seat of government of the said state — is directed by the constitution thereof to be submitted to the qualified electors of the said state at the general election to be held therein on the sixth day of November, 1894. That Louis Rotwitt is the secretary of state of the state of Montana, duly elected, qualified, and acting. That by section 14 of the act of the legislature of the former territory of Montana, entitled ‘An act to provide for printing and distributing ballots at the public expense, and to regulate voting at territorial and other elections,’ approved March 13, 1889, which is a law of said state, it is, as affiant is informed and believes, made the duty of the said Louis Rot-witt, as such secretary of state, not less than thirty days before the said election last above named, to certify to the clerk of each county in the said state of Montana the said question of choice between the said cities of Helena and Anaconda for the permanent seat of government aforesaid, and it is thereby made the duty of the clerk of each county to include the same in the publication which he is directed to make by the tenth section of said act; and it is further, by said act, made the duty of the clerk of each county to provide and have printed for the use of the electors of his county, the regular general ballots for said election, and to have printed on the said ballots the said question, in such form as will enable the electors to vote thereon in the manner provided by the said act; and it is further provided by said act that ballots other than those printed by the said county clerks, respectively, according to the provisions of said act, shall not be cast or counted in any election. This affiant is informed and believes that the said Louis Rotwitt, as secretary of state aforesaid, does not intend to comply with, and will not comply with and observe, the provisions of the above-recited act of March 13, 1889. That he does not intend to and will not certify said question of choice between Helena and Anaconda aforesaid to the county clerks, as required by said act; and that he intends and is about to prepare and have printed a ballot other than the general official ballot which said clerks are required by said act to prepare and have printed — that is to say, a separate ballot upon said question of choice between said cities; and that he intends to distribute the same in sufficient quantities to said clerks as official ballots, to be by said clerks distributed for the use of the electors of their respective counties in voting upon said question. That said Rotwitt intends, and will, unless otherwise directed by this court, proceed in the matter of said election under the provisions of the act of the legislature of the state of Montana, entitled [An act providing for the submission of the question of the permanent location of the seat of government,’ approved March 6, 1891; whereas, affiant is advised and alleges that the said act last named is unconstitutional and invalid, and that the said act of March 13, 1889, heretofore referred to, is the law which should govern the action of the said secretary in the submission of the said question to the electors of Montana, and under, which the said secretary should proceed to perform the duties required of him by law. Affiant is advised that said contemplated and intended action of the said Louis Rotwitt, secretary of state, aforesaid, is illegal, and not in conformity with the requirements of the law of Montana in such case made and provided. This affiant states that he has demanded, to wit, on the twenty-fourth day of September, 1894, of the said Rotwitt, secretary of state aforesaid, that as such secretary he conform to and observe the requirements of the said act of March 13, 1889; but that he, the said Rotwitt, refused, and still refuses, to do so, and refuses to certify said questions of choice to said clerks, and declares his intention to prepare, have printed, and distribute said separate ballot as the official ballot upon said question, for the use of the electors throughout said state at said election. That by the provisions of said act of March 13, 1889, the said secretary of state is required to certify to said county clerks the said question of choice, not less than thirty days before the said election, to wit, on or before the sixth day of October, 1894; and it is therefore necessary that the validity of the action intended to be taken by the said secretary, as hereinbefore set out, should be determined by the court as speedily as possible. That there is no plain, speedy, and adequate remedy in the ordinary course of law. Wherefore, he prays that this honorable court may order the issuance of an alternative writ of mandate, commanding said Rotwitt, as such secretary of state, immediately after the receipt of said writ, to certify said question of choice to the clerk of each of the counties of the state of Montana, as required by the said act of March 13, 1889, and to conform in all respects in the submission of said question to the requirements of said last-mentioned law, or to show cause, at such special time and place as the court may appoint, why he has not done so.
“Charles F. Lloyd.
“ Subscribed and sworn to before me this 24th day of September, A. D. 1894. BENJAMIN WEBSTER, [l. S.]
“ Clerk of the Supreme Court, State of Montana.”
The alternative writ issued upon this application commanded the respondent that, upon the receipt of the writ, he proceed to certify to the clerk of each county the question of the choice between the cities of Helena and Anaconda for the permanent seat of government, and to do all other things upon his part required to be done by the act of March 13, 1889, or that he show cause before this court, on September 27th, why he should not do so. The respondent made return to the writ September 27th. He admitted that he did and does refuse to certify the names of said cities, as above described, and that lie does not intend to follow certain provisions described of the General Ballot Law of 1889, but that he will perform the duties as to the capital election as laid down in the act of 1891, described in the relator’s affidavit. The question presented is whether it is a duty enjoined by law upon the secretary of state to perform the said certain acts defined by the law of 1889.
The General Ballot Law of 1889, popularly known as the “Australian Ballot Law,” was a part of the body of the territorial laws existing at the time of the adoption of the constitution, and became, with the adoption of the constitution, a law of the state. It was such when the second legislative assembly met in 1891. The legislature found that in the following year — 1892—the question of the location of the state capital was, by the constitution, , to be submitted to the electors of the state. It would appear that the legislature considered that the General Ballot Law of 1889 was not, in all of its provisions, a wholly suitable method for submitting the question of the capital location. They therefore enacted the law of March 6, 1891; (See 2d Sess. Laws, p. 291.) This law provided a method for submitting this question to the electors, which followed the general spirit and system of the General Ballot Law — the system, as we have observed, which is called the “Australian Ballot Law.” But this law of 1891 differs from the law of 1889 in some of its details. Por example, it requires the secretary of state to publish the notices of election, and to prepare, print, and distribute to the county clerks the ballots upon the capital question; whereas the law of 1889 required that the secretary of state should certify all questions to be submitted to the people to the clerk of each county, and it was the duty of the county clerk to include such question in the publication which he made. (See Ballot Law of 1889, § 14.) The relator here demands that the secretary perform the duty enjoined upon him by the law of 1889, and that he certify the names of the cities to be voted for to the county clerk of each county, and perform all other acts required by the law of 1889. The secretary contends that he is not enjoined by law to perform the said duties defined by the act of 1889, where there are other acts required by the law of 1891 which are inconsisteut with the law of 1889.
The writ of mandamus may be issued by this court to the secretary of state to compel the performance of au act which the law especially enjoins as a duty resulting from his office. (Code Civ. Proc., § 566.) The General Ballot Law of 1889 enjoins upon the secretary of state, as a duty resulting from his office, that he certify to the county clerks a question to be submitted to the people of the state, and that he do certain other things. He refuses to perform these alleged duties. Why? Because he contends that these certain provisions of the law of 1889 are in this case superseded by the law of 1891, and that, therefore, the said certain duties prescribed by the law of 1889 are not at this time duties enjoined upon him, but that he must, under the law of 1891, perform other and different duties inconsistent with the provisions of the law of 1889. This is an alternative writ of mandamus, whereby the respondent is commanded to do the act or acts named, or show cause why he should not be so required. He has shown his cause. We should naturally suppose that an inquiry upon a hearing of this sort would be, Is the duty alleged to be enjoined by law upon the secretary of state a duty so enjoined? The relator holds up the law of 1889, and says that it is. The secretary appeals to the law of 1891, and says that it is not. How can we determine whether the law of 1889 does indeed enjoin the duties under consideration, and alleged to rest upon the secretary of state, unless we determine whether the law of 1889 is of force as to the secretary of state in this matter, and controls and commands his action ? If it does so control and command him he is refusing to perform a duty enjoined by law as a result of his office. If it does not so control and command him he is not refusing to perform a duty enjoined upon him as a result of his office. This seems to be a matter to determine. We know of no way to determine it except to inquire whether the said provisions of the law of 1889 are superseded, as to this capital election, by the law of 1891; for, if not so superseded, they would seem to be in force as against the secretary. This involves, of course, deciding whether the law of 1889 or the law of 1891 is the rule of action for the secretary in this matter. To be sure, it is not the function of a court to advise a state officer as to his duty, or to decide fictitious cases for the information or enlightenment of any one. But if deciding a contention does inform and enlighten a state officer, or any one else, that fact is not, in itself, an objection to the making of a decision. It would seem to be necessary to decide, in a mandamus case, whether the duties alleged to rest upon respondent by provision of statute do so rest upon him in the particular matter under consideration; and we do not understand why such decision should not be gone into because it requires the determination as to which of the two laws should be followed by the secretary of state, or because, by reason thereof, such an officer obtains light upon such subject. In the case at bar we are clearly of opinion, as shown below, that the secretary of state is correct in obeying the provisions of the law of 1891, and ignoring the provisions of the law of 1889, where the two are in conflict. He is performing his duty, and is not refusing to perform any duty enjoined by the law of 1889. That is the question raised upon considering whether the alternative writ shall be made peremptory. And, because the secretary of state is not so refusing to perform a duty enjoined by law, it will be ordered that this alternative writ of mandamus be dismissed.
There has come into this case a suggestion that this is not a proper case of mandamus to be entertained by this court. We do not quite understand the ground of this suggestion. If it be that the secretary of state is performing his duty, and not refusing to perform any duty, and that, therefore, we have naught to do with him, that brings the consideration right down to our position; that is, that we dismiss the writ because the alleged enjoined duty is not indeed so enjoined. But if conditions were reversed, and the secretary were indeed refusing to perform a duty clearly enjoined upon him as a result of his office, we understand that a mandamus would lie. (Code Civ. Proc., § 566.) And we see no reason why it should not lie upon the refusal of the secretary at a time when the writ would have the effect of accomplishing the performance of the enjoined duty by the secretary, instead of waiting for the time when it was too late for performance, and the evil results of the nonperformance, if any there were, had become accomplished facts, and irremediable. These duties of the secretary of state, under the election laws, are ministerial, and not judicial, and we do not understand that decisions of courts are in point which refused mandamus or injunction sought to be directed to judicial officers to command them how to perform judicial actsj that is, deciding for such judicial officers which of two or more courses they should pursue, the pursuance of which rested within their judicial discretion. Such cases, not here in point, are found in Gaines v. Thompson, 7 Wall. 347, and the cases there cited. The books are full of decisions to the same effect. The distinction between these cases and that before us is perfectly apparent, and does not need comment. The following is quoted in Gaines v. Thompson, 7 Wall. 347, from State of Mississippi v. Johnson, 4 Wall. 475: “A ministerial duty, the performance of which may, in proper cases, be required of the head of a department by judicial process, is one in respect to which nothing is left to discretion. It is a simple, definite duty, arising under circumstances admitted or proved to exist and imposed by law.” So, in the case at bar, the duty of the secretary of state, under the law of 1889, is “a simple, definite duty, arising under circumstances admitted or proved to exist, and imposed by law,” if the law of 1889 is in force; and whether that law is in force as to this matter is the question before us.
We have said thus much upon this branch of the case. It was not mentioned by counsel, and we should not have treated it had it not been an occasion for disagreement among the members of this court. It is quite true that the contention of relator’s counsel was not strenuous, and they made no vigorous effort to support the position of their client. Indeed, it may as well be as frankly stated in this opinion, as it was in the argument of counsel, that the counsel considered that it was not so important how this case was decided as that it be decided. But we do not think that this is a reason for our not deciding it at all. The contention is here made by the record, and we have quoted the affidavit on the application in full; and, examining the case upon the record, we think that there is sufficient therein to entitle both parties to a decision. In consideration of the view that we take of the merits of this application no harm would be done in this case if we expressed no opinion as to whether the duty is enjoined upon the secretary to follow the said certain provisions of the law of 1889 which are under consideration. But cases could readily arise where great harm “would occur if the court were to stand idly by, and refuse a decision to an applicant for mandamus, who sought to compel an officer to do a ministerial act, and sought to compel him at the only time when the doing thereof would be effective. Take, for example, the case of State v. Tooker (decided by this court September 24, 1894), ante, p. 8. There the secretary of state did not publish a proposed amendment to the constitution in the time required by the constitution. If, in time to make that required publication, application had been made In this court stating that the secretary refused to make such publication, and would not make it, as required by law, we are of opinion that the court would issue a mandamus requiring him to do so, and would not wait to determine whether or not he should do so until some future time when litigation arose, and when it was too late to require the performance of that defined duty.
Coming to the merits of this application, the position of the relator is simply this: The law of 1889. must now obtain, because the law of 1891 is unconstitutional and void, and is not a law. It is unconstitutional because it is special legislation, and prohibited by the provisions of the constitution, which states that the legislative assembly shall not pass any local or special laws in any of the following enumerated cases, among others: The opening or conducting of any election, or designating the place of voting. The suggestion is made that this law of 1891 is invalid, as falling under the ban of this prohibition, in that it is a special law as to conducting an election. As above noticed, the contention to this effect was not at all strenuous, and we are of opinion that it clearly cannot be sustained. In the case of In re Dewar’s Estate, 10 Mont. 426, this court had under consideration an act of the legisla ture changing the fees of a public administrator. It was sought to apply to that act of the legislature the provisions of the restriction act of Congress, which controlled our legislature then, as does the constitution above cited now. In that case we said: “ The restriction act forbade only the passing of any local or special law upon the subject indicated. The only inquiry, therefore, before us is whether the act of September 14, 1887, was local or special. The operation of the act is not upon any particular person or officer, nor in any certain locality or localities in the territory. It applies to all executors and administrators, public and private, throughout the territory. What shadow or pretense of reason there is to pronounce this act local or special is not apparent to us. On the other hand, that it is not local or special seems to us perfectly clear, and so undisputably sustained by the decisions that to discuss the proposition or review the cases would be an unin-structive compiling of elementary and well-understood law. Suffice to refer to a few authorities: State v. Parsons, 40 N. J. L. 1; Wheeler v. Philadelphia, 77 Pa. St. 338; McAunich v. Mississippi etc. R. R. Co., 20 Iowa, 338; Haskel v. Burlington, 30 Iowa, 232; Iowa R. R. Land Co. v. Soper, 39 Iowa, 112; Little Rock etc. Ry. Co. v. Hanniford, 49 Ark. 291; Dow v. Beidelman, 49 Ark. 325; Montague v. State, 54 Md. 481; Abeel v. Clark, 84 Cal. 226; State v. Miller, 100 Mo. 439; Longan v. County of Solano, 65 Cal. 122; Brooks v. Hyde, 37 Cal. 366; Humes v. Missouri Pac. Ry. Co., 82 Mo. 221; 52 Am. Rep. 369; Skinner v. Bogert, 42 N. J. L. 407; Ewing v. Hoblitzelle, 85 Mo. 64; State v. Tolle, 71 Mo. 650; Darrow v. People, 8 Col. 417; In re Church, 92 N. Y. 1; State v. Hawkins, 44 Ohio St. 98; and many cases in Sedgwick on Statutory and Constitutional Law, 534, 535, 539, notes.” (In re Dewar’s Estate, 10 Mont. 442, 443.)
Looking at the act of the legislature as to the capital location ballot from the point of view of the prohibition of the constitution, it is seen, in the language of the Dewar case, that the operation of the act is not upon any particular person or officer, nor in any certain locality or localities in the state. It applies to all persons alike. It is not a local law. It extends over the whole state. It applies to every county, every precinct, and every voter. Every voter in the state casts his votes for the capital under its provisions. There is no suggestion made as to why it should be considered a special law, and no reason to this effect occurs to us. Although the law of 1889 was adopted by the constitution, it was a law only until changed by future legislation. It was not wholly suitable and applicable to this capital election. In these details the law of 1891 made some changes. It operates uniformly upon all persons who are brought within the relations and circumstances provided for by it. It is said in McAunich v. Mississippi etc. R. R. Co., 20 Iowa, 343, in speaking of a law contended to be special: “It applies to all railroad corporations now in existence, or which may hereafter exist, and is just as general and uniform as it would be if applied to all common carriers; and, in the latter case, it is conceded by appellant’s counsel in their printed argument, the law would be valid. Very many laws, the constitutionality of which is not doubted, do not operate alike upon all citizens of the state. Take the case of the general laws for the incorporation of cities and towns, which is one of the special cases enumerated in article 3, section 30, supra, in which the laws must be general and of uniform operation. By these laws certain rights, powers, and privileges are conferred upon cities of the first class, of which there are but three or four in the state. Certain other different and less powers and privileges are conferred upon cities of the second class, and still different and less upon towns. The same is true of corporations organized for different purposes. Each class has its powers and privileges, different from the other. These laws are general and uniform, not because they operate upon every person in the state, for they do not, but because every person who is brought within the relations and circumstances provided for is affected by the law. They are general and uniform in their operations upon all persons in the like situation, and the fact of their being general and uniform is not affected by the number of persons within the scope of their operation.” (Pages 343, 344.) So with our act of the legislature of 1891; it operates alike and uniformly upon all persons and places brought within its purview. The law is not special, and is not unconstitutional. That there is a proper case before us for the expression of this view we have attempted to show above. It is ordered that the writ be dismissed.
PembertoN, C. J., concurred.
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De Witt, J.
— This is an appeal from a judgment rendered on the pleadings. The action was in replevin. Upon complaint and answer filed the plaintiff moved for judgment on the pleadings upon the following grounds:
“ 1. That there is no denial in defendant’s answer of the allegations in plaintiff’s complaint that the defendant took and received the lumber in said complaint described.
“2. That defendants’ answer admits that the value of the lumber taken by defendant as alleged in plaintiff’s complaint was $618, and plaintiff should have judgment for such amount with legal interest thereon from the date of conversion.
“ Elbekt D. Weed,
“ Atty. for Plaintiff.”
This motion was granted. It is true that there was no denial in the answer that defendants took and received the lumber which was the subject of the action. The denial of the defendants is, that they did not take and carry away the lumber, etc. The denial is in the conjunctive. A denial that defendants took and carried away the goods is not a denial that they took the goods, or a denial that they carried them away.(Boone on Code Pleading, § 61, and eases cited; Harris v. Shontz, 1 Mont. 212; Toombs v. Hornbuckle, 1 Mont. 286; Power v. Gum, 6 Mont. 5.)
But there is a denial in the answer of another material allegation of the complaint, which denial raises an issue. The complaint alleges that on a certain day the plaintiff was the owner and lawfully possessed of the lumber. “The right to the possession of personal property is essential in the plaintiff in an action for claim and delivery.” (Laubenheimer v. McDermott, 5 Mont. 517; see also Cobbey on Replevin, § 784.)
This essential allegation was made, as we have seen, in the complaint. This essential allegation of the complaint was denied in the answer in the following language: “The defendants deny that the plaintiff was, at the time mentioned, or at any other time, the owner or lawfully possessed of any lumber of the description given in the complaint, or of the value named therein, or of any other value, at the mill-yard of Coffey and Brennan, in the county and state aforesaid.” Here the denial is in the disjunctive, which is proper. (See cases last cited.)
It is denied that the plaintiff was the owner or lawfully possessed of the lumber. This denial raised the material issue as to plaintiff’s right of possession. There being an issue raised, judgment on the pleadings was error, and the same is therefore reversed.
Heversed.
PembertoN, C. J., and HuNT, J., concur.
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De Witt, J.
— The first alleged error is stated in the bill of exceptions as follows: “After having introduced testimony tending to prove that the prosecuting witness or plaintiff did, on the twenty-fourth day of May, 1893, at the county of Meagher, state of Montana, of which state she was a resident, give birth to a male child; that the child at the time of the trial was alive, and was a bastard; that at the time of the conception, and at the time of the birth of said child, and at the time of the trial, she was an unmarried woman; that the defendant was the father of said child; that defendant had had sexual intercourse with her on the seventh, fourteenth, and twentieth days of August, 1892; that such acts of sexual intercourse took place at defendant’s ranch, in said county and state, where she was then working as a domestic — had called and sworn one Mary Zehntner, and, after having shown by said witness that' she was present at the birth of complainant’s child, offered to prove by said witness that the complainant, Martha Zehntner had, before the birth of her said child, and during the pains of childbirth, and while in labor or travail, stated that the defendant, John C. Tipton, was the father of her child, thereupon asked the said witness the following question: ‘ Do you remember now whether, while she was under going labor pains, she stated who the father was’? whereupon counsel for the defendant objected to the question ‘for the reason that any declaration that might have been made by the prosecuting witness, not under oath, is incompetent testimony, and is a declaration in her own favor’; which said objection was by the court sustained, and to which ruling the prosecution duly excepted.”
Appellant now contends that the declarations of the re-latrix as to who was the father of the child, made while she was in labor, are competent testimony. To support this contention he cites us to certain cases, such as Robbins v. Smith, 47 Conn. 182; R. R. v. J. M., 3 N. H. 135; Beals v. Furbish, 39 Me. 469; Commonwealth v. Cole, 5 Mass. 518. But those cases were decided under peculiar statutes — statutes enacted when parties were not competent to testify in their own behalf. Such statutes gave to the plaintiff the right to introduce on the trial evidence that she had been put to discovery at the time of her travail, and had remained constant in the accusation of the defendant as the father of the child. Tlius the fact of her having made such discovery was competent testimony on the trial. But we neither have such statute nor the need therefor. All persons with us are competent witnesses (Code Civ. Proc., § 647) with certain exceptions not here necessary to state. Therefore there is no principle or statute under which it can be held that it is competent for a party to prove in court what he himself has said out of court, and not under oath, when such matter is simply evidence in his favor, and is nothing more than a prior iteration of the testimony which he may now give upon the trial. That would be to allow a party to prove, by witnesses on the trial, that he had theretofore, out of court, and not under oath, stated to some one facts which were material to liis case. Such declarations are not competent testimony. (1 Greenleaf on Evidence, § 123.)
The other alleged error complained of is the giving by the court to the jury the following instruction: “In this case the complaining witness has sworn that the defendant is the father of her child, while the defendant has sworn that he is not; and it is your duty to weigh and determine the testimony so given. If you believe the complaining witness and the accused are of equal credibility, and the one offsets the other, then, unless there is other testimony given,, or circumstances proved, which give the preponderance to the complaining witness, the defendant should be acquitted. And you are further instructed that, so far as the credibility of the defendant and the complaining witness is concerned, this action is to be deemed civil in its nature, and, other things being equal, that the defendant is to be considered of equal credibility with the complaining witness. Before the defendant in this case can be convicted of the charge against him the testimony of the complaining witness must be sustained by facts and circumstances corroborating it.” We cannot approve this instruction. The first sentence is correct. Therein the court leaves the credibility of the witnesses to be weighed and determined by the jury. (Code Civ. Proc., § 619.) The language of the second sentence of the instruction is not quite commendable. It tends to suggest to the jury that if one witness says one thing and another the contrary a balance is struck, and the jury is in a position of having heard nothing upon the subject; whereas the fact is, that if there is a direct conflict in the testimony of two witnesses, who are generally equally trustworthy and credible, the manner, style, and appearance of one witness might gain him credit with the jury, to the utter overthrow of the opposing witness. And all these matters are to be taken into consideration by the jury (Code Civ. Proc., § 619), and they are the judges of the witness’ credibility, not wholly from what he says, but, in the language of the statute, “ by the manner in which he testifies, and by the character of his testimony.” But the fatal part of this instruction is the last sentence, in which the court says: “ Before the defendant in this case can be convicted of the charge against him, the testimony of the complaining witness must be sustained by facts and circumstances corroborating it.” This instruction is contrary to the statute, which declares that “the direct evidence of one witness, who is entitled to full credit, is sufficient for proof of any fact, except perjury and treason.” (Code Civ. Proc., § 616.) If the jury believed the testimony of the plaintiff as a witness it was for them to find in accordance with such belief. But this instruction invaded this province of the jury. It told the jury that it could not find for the plaintiff unless her testimony was corroborated. It was not corroborated. The court, therefore, told the jury to find for the defendant. It thus deprived the jury of their right and duty to pass upon the credibility of these two witnesses, and find their verdict in accordance with whether they believed one or the other. For this reason the judgment is reversed and the cause is remanded for a new trial.
Reversed.
Pbmberton, C. J., and Harwood, J., concur.
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De Witt, J.
— The question upon this appeal is whether the mortgage given by the guardian upon his ward’s estate, under the authority of the judgment of the court, is void; that is to say, had the court no power or jurisdiction to render such a judgment? Mr. Pomeroy lays it down that “ It seems to be a doctrine sustained by a preponderance of authority that a court of equity has no power, as a part of its jurisdiction over infants, to order a sale of the infant’s real estate for purposes of maintenance, education, or investment.” (3 Pomeroy’s Equity Jurisprudence, § 1309, p. 332.) But in his note to this remark the author refers to cases which have held a contrary doctrine. (See, also, Allman v. Taylor, 101 Ill. 185; Dodge v. Cole, 97 Ill. 338; Smith v. Sackett, 5 Gilm. 534; Goodman v. Winter, 64 Ala. 410.) But the same author says, in the same section above quoted: “The powers and duties of guardians in their management of the property of infant wards, and the powers of courts to direct a sale of their lands, are so much regulated by statutes in the various states that these general rules of the purely equitable jurisdiction can have little practical application throughout the United States.” We have in this state a statute which provides for the sale of the ward’s estate, under certain circumstances. (Probate Practice Act, § 369.) But we have no statute which directly authorizes a guardian, under order of the court or otherwise, to mortgage the real estate of his ward.
The majority of the decisions seem to be to the effect, as Mr. Pomeroy remarks, that the court has not jurisdiction, in the absence of a statute, to authorize a guardian to sell or mortgage the real estate of his ward. . This doctrine seems to be a relic of the English doctrine of primogeniture, and was born of the desire to preserve for the infant the integrity of the corpus of the real estate. While there is no direct authority in our statute to mortgage the ward’s real estate, still we have the declaration of the statute that the guardian must safely keep the property of his ward; that he must maintain the same, with its buildings and appurtenances, and deliver it to the ward, at the close of his guardianship, in as good condition as he received it. (Probate Practice Act, § 422.) Whether we should ever be prepared to hold that a court could empower a guardian to mortgage the real estate of his ward for the purpose of raising money for the ward, or for his support or maintenance, we think we need not now determine, for such exact question we do not think is here presented. In this case no money whatever came to the guardian or to the ward by virtue of this mortgage to plaintiff, and no encumbrance was placed upon the ward’s property additional to that which was already there. In effect, the guardian, under the order of the court, simply exchanged creditors. He exchanged a pressing and importunate creditor for one who was willing to let the loan s.'and for three years more. It appears by the judgment of the court, in authorizing the loan and mortgage, that the ward’s estate was about to be sacrificed by foreclosure, and wholly lost, and that it could probably be saved to the ward by negotiating with a new proposed creditor. Of course, it appears, in the light of subsequent events, that the estate has not been finally saved to the ward, but the case maybe looked at from the point of view which the court occupied when it made the order allowing this present loan and mortgage. As far as appeared to the court this transaction was certainly not to the disadvantage of the ward, but was for her probable advantage. None of the reasons adduced against the policy of allowing the ward’s estate to be mortgaged apply to the transaction before us. There was no encumbrancing the ward’s estate, for it was already encumbered in the identical amount. It is said that it is not good policy to allow a mortgage upon the estate of a ward, lest it may finally eat up the estate, and the ward, at majority, receive nothing. But the encumbrance was already there, and the estate was to be eaten up at once by the foreclosure of the Missoula Loan & Building Association mortgage. The new mortgage simply postponed this devourment — which, under the old mortgage, would have been at once — to a period three years later, with the probability, as appeared, of finally saving the estate, or a portion of it, and the certainty of saving the rents and profits for three years. Therefore, not an argument or reason against the policy of allowing a mortgage upon the ward’s estate applies to the facts before us. The guardian must safely keep the property of his ward, and deliver it to the ward, at the close of his guardianship, in as good condition as he received it. (Probate Practice Act, § 422.) If the guardian and the court, as his superior, had allowed the mortgage of the Missoula Loan & Building Association to be foreclosed the guardian could not have kept the estate at all, and he never could have delivered it to the ward in any condition. He adopted a course, under the order of the court, which seemed to offer a prospect of his keeping the estate for his ward, without adding one dollar’s worth of burden to the estate, more than it was already carrying. As a matter of fact he lightened the burden, for he obtained the new loan at the rate of six per cent interest, whereas the old loan was accumulating against the estate of the ward at the rate of nine per cent interest.
It was said in Smith v. Sackett, 5 Gilm. 545, as follows: u The jurisdiction of the court of chancery to order the sale of the whole or a portion of the estate of an infant, or to order it to be encumbered by a mortgage, whenever the interest of the infant demands it, will not be denied, whether that interest be of a legal or an equitable nature. Snch is one of the objects of this suit, and it certainly seems that the case made by the bill shows a strong necessity for the exercise of that power. As I have already shown, the infant has an equitable interest in this land, of considerable value, for the property is averred to be worth some three thousand dollars. The interest of the infant manifestly requires that the lieu or encumbrance upon the estate should be discharged.” So the interest of this infant in this case manifestly required that the mortgage debt to the Missoula Loan & Building Association should be discharged, or, if this could not be done, carried to a later and perhaps more prosperous period; otherwise the infant would have, at that time, lost her estate. It was held in Allman v. Taylor, supra, that the court might order the sale of an infant’s unproductive real estate in order to raise money to pay an encumbrance upon productive property, and save the latter to the infant.
We are of opinion that under the facts of this case the doctrine announced in many decisions, against mortgaging a ward’s estate, is not here applicable. The court, as superior guardian of the infant, here had reason to believe that it saw an opportunity to save the infant’s estate, not by creating a debt, or by borrowing money, but by simply transferring an already existing debt from one creditor to another. The court had reason to believe that this would be of advantage to the infant, and indeed it was some advantage, although the final result is that the infant loses her estate now, instead of three years before.
The judgment in this case is reversed, and the cause is remanded, with directions to overrule the demurrer.
Reversed.
Pemberton, C. J., and Harwood, J., concurred.
|
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De Witt, J.
— The defendant, Steele, is an assignee for the benefit of the creditors of Hanley and Carter. The plaintiff, Kleinschmidt, is a creditor of Hanley and Carter.. Plaintiff brought this action in the district court against the assignee and the assignors. A demurrer to the complaint was sustained, on the ground that the same did not state facts sufficient to constitute a cause of action. The appeal is taken from the judgment.
Different counsel for plaintiff and appellant appear in this court than in the district court, and there is not entire harmony in their views as to the nature of the action or the relief which plaintiff shows himself entitled to under the allegations of his complaint. But we will first examine the prayer of the complaint and ascertain whether matter is set up in that pleading entitling the plaintiff to the relief asked in the prayer. The prayer is as follows:
“ Wherefore plaintiff prays, on behalf of himself and the other creditors of said firm, that the above-named assignee, A. J. Steele, be required to forthwith make and file in this court a schedule of the assets of said assignors which have come into his hands; 2. That he be required to give bonds in such sum as may be fixed by this court, and to such person as the court may designate, for the faithful discharge of his duties as assignee; 3. That he be required to deposit in the Montana National Bank of Helena, Montana, such moneys as he receives as assignee; 4. That the court interpret the meaning and significance of said assignment, and by an order authorize said Steele to pay tlie creditors of said firm pro rata in accordance with the amounts of their several claims, and that the court further declare that there are no valid preferences mentioned and specified in said assignments; 5. For such other and further relief as to the court may seem meet aud equitable in the premises; 6. That the court take immediate jurisdiction and cognizance of this assignment, and, by proper orders entered from time to time, as above set forth, equitably administer upon the rights of the parties interested in the assets of the said assignors.”
As to the first item of the prayer, that the assignee should be required to make a schedule of inventory of the assets: the only matter in the complaint upon this subject is the statement that the plaintiff is informed and believes that the assignee has not made an inventory. It is not alleged, even on information and belief, that no inventory has been made. It is not alleged (nor is it even alleged that plaintiff is informed and believes) that it had been requested. All that appears is that plaintiff had some information, which he believed, that the inventory was not made. He could easily have verified his information. He can scarcely expect the court to set its machinery in motion to do for him that which, for all that appears, may have been already done, and which, in any event, he could have had for the asking.
The same views may be expressed as to the plaintiff's prayer that the assignee deposit all moneys which he collects in the Montana National Bank. It appears by the complaint that the Montana National Bank was a large creditor of Hanley & Co., and that the bank offered, in effect, to remit certain interest on their account if the assignee would deposit his collections with the bank. The complaint does not state that the assignee is not so depositing them already.
The plaintiff asks that the assignee be required to give a bond. But the allegations in support of this prayer are in about the same condition as those above discussed. There is no allegation whatever of the assignee's financial condition, nor any statement that he is not amply able and willing to account for all of the assets of the assignment.
As to the fourth item of the prayer plaintiff wishes the assignment interpreted, and that the court order Steele to pay the creditors pro rata instead of by preferences. This prayer is based upon the fact that the assignment is made with preferences, and refers to the schedule “A” annexed to the assignment, which contains the preferences, whereas, the fact is that the schedule of preferences annexed is called “B” instead of “A” But there is only one schedule annexed to the assignment, or referred to therein, and there is no possibility of mistaking what the schedule is. This we believe is purely a clerical error and wholly immaterial, and by no possibility misleading to any one.
We do not think that the complaint shows ground for granting any of the relief set out in the prayer.
But the prayer of an equity pleading does not conclude the pleader, and he may have such relief as he shows himself entitled to. (Davis v. Davis, 9 Mont. 267.)
Counsel now call our attention to other matters in the complaint which they claim entitle plaintiff to relief. One is that the court fix the compensation of the assignee at some reasonable sum. This they ask because the complaint alleges that plaintiff is informed that the assignee stated that he had accepted the assignment for the purpose of making such profits as were possible. There is no showing that the assignee stated that he intended to make any unjust or wrongful profits, or that he threatened to. In fact there is no allegation about it at all. There is nothing but the allegation that plaintiff’ is informed that the assignee made this statement. And he does not even say that he believed this information.
There is much in the brief and argument of the later counsel in this case to the effect that the complaint shows that the assignment was fraudulent. We do not concede that the complaint makes such a showing, but, without discussing that matter, the fact is, that the plaintiff stands upon the assignment, he affirms it, and asks to have it administered and carried out. As noted above, he wishes an inventory filed, a bond given, compensation fixed, and he wishes to have a pro rata share, without preferences, as set out in the assignment. He certainly cannot ask the court to enforce the assignment in all respects but in one particular, and at the same time claim that it was fraudulent.
We are satisfied that the complaint does not, in any respect» state a cause of action against either the assignee or the assignors. The judgment is therefore affirmed.
Affirmed.
Pemberton, C. J., concurs.
Mr. Justice Hunt, having tried this case as district judge, does not participate in this decision.
|
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De Witt, J.
— The defendants appeal.from the judgment, which is rendered in favor of plaintiff, and also from the order denying defendants’ motion for new trial. A motion is made in this court to dismiss the appeal on the ground that there was no statement on motion for new trial, and that it is impossible to determine from the record what was before the district court upon the motion. This motion to dismiss, as far as the appeal from the order denying a new trial is concerned, must be sustained. We cannot ascertain that the court had any thing whatever before it in hearing the motion for new trial. There is in the record a document called “ Statement of Errors and Grounds of Appeal.” This paper contains some evidence, whether the whole or only a part does not appear. But the document could not have been used upon the hearing of the motion in the district court, because it did not come into existence, as appears by the certificate of the judge, until three months after the motion for new trial had been decided, and one month after the appeal had been taken to this court.
What appears in the record as a statement on motion for new trial was also not settled until three months after the motion was decided, and one month after the appeal was taken to this court, as appears by the stipulations in the record extending time for preparation of the statement, and, indeed, as is conceded by the appellants’ brief. The motion for new trial was solely upon the ground of errors of law occurring on the trial and excepted to by the defendants. (Code Civ. Proc.,
§ 296.) Such a motion is made upon the minutes of the court, or a bill of exceptions, or a statement of the case. (Code Civ. Proc., § 297.) But the record in this case affirmatively discloses that no such papers were before the district court on the hearing of the motion. In fact it does not at all appear by the record that the motion was heard upon any thing whatever. (Code Civ. Proc., § 438.) The appeal from the order denying the motion for new trial is therefore dismissed.
As to the appeal from the judgment there is no error apparent upon an inspection of the judgment-roll.
Not only is the record in this case fatally defective in matter and substance, but in its arrangement and preparation it offends several of the rules of this court upon that subject.
The judgment of the district court is affirmed.
Affirmed.
Pemberton, C. J., and Hunt, J., concur.
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] |
Per Cueiam.
— The issue in this case, as well as the questions presented by this appeal, is similar to those heretofore considered and determined in the case of Brooke v. Jordan, 14 Mont. 375, in which case last mentioned a motion for rehearing was filed, and reserved for consideration along with this appeal.
But, on submission of this appeal, appellant’s counsel presented, as applicable to both cases, considerations not treated in the former case, as follows: That inasmuch as the establishment of the section lines by the surveyor appointed by the government to survey and sectionize the public domain is held to be final, under the act of Congress and decisions relating to that subject, although there might subsequently be discovered some error in the establishment of such exterior or subdivision section lines as the government surveyor was required to establish by monuments, therefore, by analogy, the surveyor appointed to survey and plat a townsite granted to the probate judge, as trustee, under the provisions of the law relating to that subject, should be considered as acting officially in platting such townsite; and his establishment of a boundary line, such as the west boundary of the townsite, should be held as finally fixing that boundary line, although the plat fell short of the section line, which, in fact, bounded on the west the land granted for townsite purposes; hence, that the holder of adjoining land could-shift his boundary line from that fixed by the government survey, down to the so-called boundary of the townsite fixed by the townsite surveyor, and claim the intervening land. On the same theory we suppose that if the surveyor of the townsite should overreach the limits of the land granted for townsite purposes, and plat ground in some adjoining piece owned by a private individual, the act of the townsite surveyor would be final, and divest such individual of his land so platted, because the surveyor of the townsite acted in an official or quasi official relation in platting the same; and we suppose, on the same theory, if only a part of the land granted for townsite purposes were platted by the surveyor appointed for that purpose, that would fix and determine the area of the townsite, although it fell far short of extending to the limits granted for townsite purposes, and owners adjoining the townsite could move their lines up to the line where the surveyor ceased to plat the townsite. We think the deductions counsel for appellant seeks to have adopted on this point are somewhat specious, and the force of the same is destroyed by his own contention, supported by citations, that the section lines established by the government survey are held to be the proper criteria for settling disputes as to the locus in quo of various tracts of land. We still think the true exterior and subdivision section lines established by the government survey, and ascertained by competent proof, should govern in deciding a controversy of the character presented in this ease.
The court, in stating generally, in its charge to the jury, the issue presented for determination in this case, erroneously described the tract of land wherein defendant, by answer, claimed the lots in controversy were situate. This is assigned by appellant as error; but the error was palpably inadvertent, and, we think, entirely unprejudieial to defendant. It is plain, from reading the instructions, that the court was merely saying to the jury that the main issue in the case was whether the land in controversy was situated in the townsite of Helena, as granted to the probate judge, as trustee, or over in the subdivision of the section owned by defendant, as described in his answer; and, if the jury had found for defendant, its finding, of course, would have been referred to the issue presented by the pleadings, which, in effect, would have been that the land in controversy was situate in defendant’s tract of land, as described in his answer.
The judgment and the order overruling defendant’s motion for new trial will therefore be affirmed.
Affirmed.
|
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Hunt, J.
— The defendant was charged with the crime of burglary. The charging part of the information was as follows: “. . . . willfully, unlawfully, feloniously, and burglariously, a certain box-car of S. H. H. Clark, Oliver W. Mink, E. Ellery Anderson, J. W. Doane, and P. R. Coudert, receivers of the Union Pacific Railway Company there situate, did enter, with the intent then and there the goods, chattels, and valuable property of the said receivers of the said Union Pacific Railway Company, in the said box-car then and there being found, willfully, unlawfully, feloniously, and burglariously to take, steal, and carry away, contrary,” etc.
The defendant was found guilty, and sentenced to the penitentiary.
A motion in arrest of judgment was made, for the reason that the facts stated in the information do not constitute a public offense. The point that the appellant makes is, that the charge that the defendant entered a certain box-car, and not a “rail-car,” as described in the statute of burglary, is fatal to the information. In charging the statutory offense of burglary, the-pleader must aver that the place entered was one included within the strict terms of the statute. But we think that in the use of the word “box-car” instead of “rail-car” there was no substantial departure from the rule. A boxcar is defined by the Century Dictionary as “an inclosed and covered freight-car,” and a freight-car, by the same authority, is “a railroad-car for carrying freight, commonly a box-car.” A box-car is therefore a rail or railroad car; hence the statute is complied with, and the information is good.
The next point necessary to consider is the misdirection of the jury in a matter of law. The court gave to the jury the statutory definition of burglary, and, under general instructions, charged them, among other things, that in every criminal act a criminal intent was necessary. But the only particular instruction applicable to the testimony was as follows:
“ You are instructed that under our statute relating to burglary, as given to you elsewhere in these instructions, it is not necesSary, in order to constitute the crime, that there should be a breaking. A mere entering into a building or car is sufficient, and that if you believe, beyond a reasonable doubt, that the defendant stole the property mentioned and described in the information, and that said property was in the car mentioned in the information, then you may infer that the defendant did enter the car with the intent to commit the said larceny.”
The first sentence of this instruction was correct as far as it went, and unless the defendant made special requests for additional instructions, had the court gone no farther, error could hardly have been complained of. It simply laid down the modified rules which do not require any breaking or force in the entry to constitute an element of the crime of burglary. But the court, after negativing the common-law ingredient of a breaking, proceeded to positively define the crime by express limitations as to the sufficiency of the evidence necessary to prove it, and to apply the definition so given to the case under consideration by telling the jury that a “mere entering is sufficient.” This by itself was erroneous, because a mere entry is not enough to prove a burglary, unless such entry was made with the intent, at the time thereof, to steal the property described in the information. The two essential averments, the entry and the felonious intent at the time of the entry, are indispensable to support the information. (State v. Carroll, 13 Mont. 246.)
Nor would it seem that the omission was cured by saying to the jury that if they believed that the coal was stolen by defendant they might infer that the defendant did enter the car with the intent to commit larceny; because, except by this incidental charge upon the weight of evidence, the jury were not told that, before they could convict, they must find that such felonious intent existed in the mind of the defendant at the time of the entry charged; or, to put it generally, although an inference may be drawn of an antecedent felonious intent by proof of subsequent acts or circumstances, still the right to make such inference does not obviate a necessity of the jury being satisfied, beyond a reasonable doubt, by all the facts and circumstances in evidence, that such a concurrent intent actually existed, where, but for its existence, a verdict of guilty cannot be sustained.
The instruction was certainly calculated to mislead; it directed the jury to deliberate upon the one essential element of the crime, the entering, to the exclusion of an equally essential ingredient, the intent with which the entry was made. (Wharton’s Criminal Evidence § 431; State v. Meche (La.), 7 South. Rep. 574.)
Under the instruction given there might have been a perfectly lawful entry into the car at the time charged, without any intent to steal at all, but if there was a subsequent larceny of the property from another place, even after removal thereof from the car, if such property had been in the car, the defendant could, nevertheless, be convicted of burglary in his original lawful entry into the car. It needs no argument or authority to demonstrate that such a conviction could not stand. If the instruction had said that a mere entry into the car, if such entry was with an intent then and there to steal the coal, and if the jury believed from the evidence, beyond a reasonable doubt, that the defendant then and there committed the larceny, in manner and form as charged, and that the property was at the time of such 'entry in the car, the obvious errors complained of would have been cured.
Under our statutes, and the construction put upon them by the supreme court in the cases of Territory v. Fox, 3 Mont. 440, and Territory v. Willard, 8 Mont. 328, great care is necessary, in charging the jury in burglary cases, to preserve the distinction between burglary and larceny, lest, without sufficient proof of felonious entry with intent to steal, but upon sufficient evidence of a larceny merely, the jury improperly convict of burglary.
A review of the testimony in this case impresses upon us the importance of the distinctions noted. The evidence of any felonious entry by the defendant in the car was wholly circumstantial. There was ample room for a reasonable doubt by the jury of any actual entry of the car at all by the defendant, although the proof tending to establish .a larceny was direct and clear. But for lack of proper definition of the several essential parts of the crime of burglary the motion for a new trial should have been granted.
The other errors assigned are not well taken.
The judgment is reversed, and the cause remanded for new trial.
Reversed.
De Witt, J., concurs.
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Per Curiam.
— Condemnation proceedings were instituted by the Butte, Anaconda, and Pacific Railway Company, in the district court of Silver Bow county, pursuant to the provisions of title XV of the Code of Civil Procedure, to acquire title by Condemnation to right of way for its railroad upon and across a certain mining claim known as the Volunteer Lode claim, situate in said county, owned and in possession of relator, and therein the court duly appointed three commissioners, qualified as provided by statute, to ascertain and determine the amount of damage sustained by reason of such right of way. (Code Civ. Proc., § 607.) Thereupon the commissioners appointed performed their duties in that behalf, and awarded to relator the sum of six thousand four hundred dollars as damages for such right of way; whereupon said railroad company deposited in court said sum, aud applied to the court for an order allowing it to go into possession and use of said right of way, pending any further proceedings which might be involved in said condemnation case. About the same time relator, by the notice in such cases provided, appealed from said award (Code Civ. Proc., § 608), and resisted the granting of an order allowing the railway company possession and use of said right of way pending the final determination of the proceeding. The court, however, upon hearing and consideration of the law aud facts, granted the order allowing the railway company temporary possession pending the final determination of said proceeding. There being no appeal from said order, relator, by writ of cer-tiorari, brought up to this court said proceeding, and especially the order granting said railway company temporary possession, for review.
Relator insists' that the district court exceeded its jurisdiction in allowing said railway company possession of the ground proposed to be taken and appropriated for such right of way previous to the final determination, and deposit of the amount awarded as damages, because section 14 of article III of the constitution of this state provides that “private property shall not be taken or damaged for public use without just compensation having been first made to, or paid into court for, the owner.” This is the pivotal point of contention. The view insisted on by relator is, that no just compensation has been ascertained and deposited in this case, because its appeal has, in effect, abrogated and set aside the- commissioner’s award, and leaves the payment of said six thousand four hundred dollars into court as a fact without vital force, and it is not a compliance with the exaction of the constitution in such a case.
Upon mature consideration of this question, and the authorities relating thereto, we are unable to concur in relator’s view. The compensation has been fixed by the tribunal instituted by law for that purpose as the just compensation for the damage proposed. The authorities hold that award to be a substantial fact which fixes the just compensation to which relato.r is entitled, until revised on appeal. (Lewis on Eminent Domain, § 581, and authorities cited in respondent’s brief.) This is reasonable. The compensation has been determined by the tribunal thereunto authorized, and although there be a right of appeal to resubmit the question of damage, that appeal may never be prosecuted to effect, in which event the original award would remain as the just compensation ascertained and deposited in such case; but the most that can be done on appeal in favor of the party whose property is to be taken for public use is to add some thing to the award already made, but until that is formally done it cannot be reasonably held that no award has been made. The first award and deposit may exceed what the jury or court may award on determination of the appeal. In that event the deposit would not only equal the amount first awarded, but would more than answer for the just compensation finally determined. It should also be borne in mind in this consideration that the order for possession on review here is not final. It is temporary, and the whole subject matter, together with the thing sought to be condemned, is within the jurisdiction of the court, and therefore the taking of the property, or the ultimate divestiture of the owner thereof, has not been consummated, but only temporary possession given. In treating a similar case (Central Branch etc. Ry. Co. v. Atchison etc. Ry. Co., 28 Kan. 453), Mr. Justice Brewer, delivering the opinion of the court, said: “The occupation of the land by the railroad pending the appeal is provisional merely; its entry is not a permanent appropriation of the right of way, and it acquires by such entry no vested rights.” Surely an award, considered in the judgment of the commissioners to be just compensation in lieu of complete deprivation or of continued use of property condemned, must be sufficient deposit to answer for the temporary possession granted by the court on deposit of the first award. If the award should be increased through the trial on appeal, there willbe nofinal judgment confirming to the railway company the right of way proposed to be condemned, until deposit or payment of the additional amount, and, in default of such additional payment, the court having jurisdiction of the subject matter and the parties would oust the party seeking to condemn the property from the temporary possession which the court had given, and mete out to the owner adequate damage for temporary use and injury, apply ing the deposited sum thereto. In our opinion these conditions fulfill the exactions of the constitution. Moreover, the statute provides that, where temporary possession is sought before final determination of the proceeding, the court, before granting such temporary possession, shall exact a bond, conditioned for payment of all further compensation and damages which may be awarded to the owner of the premises. This would afford the owner another remedy which he might elect to pursue if desirable. The statute of our state on the subject of eminent domain, enacted prior to the constitution, as well as an amendment thereto adopted since, authorizes the court to let the party seeking condemnation into temporary possession and use, on certain conditions falling short of the payment or deposit in court required by the clause of the constitution above cited. These statutes, however, provide the procedure in such cases; but, in so far as they provide for giving possession without fulfilling the exactions of the constitution, we hold' them insufficient. The constitutional provisions'must be complied with before the court is authorized to let the party seeking condemnation into possession. The trial court required this before granting the order for temporary possession in the case at bar; and, having required the deposit provided for by the constitution, the court granted the order for temporary possession, proceeding therein as provided by statute.
We find no ground for reversal or modification of the order of the trial court, complained of, and therefore affirm the same.
Affirmed.
All concur.
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] |
Ha'rwood, J.
— The questions for determination on this appeal arise on the pleadings, by reason of the trial court sustaining a demurrer to the complaint, on the alleged ground that it fails to state facts sufficient to constitute a cause of action.
The allegations of the complaint, briefly stated, are: That the defendant, Montana Central Railway Company, is a corporation, duly organized, incorporated, and existing pursuant to the laws of this state, and own and operate a line of railway, together with cars, locomotives, etc., thereto belonging, situate in this state; that plaintiff, at the time of the injury complained of, was an emplovee of defendant, engaged in the work of fence-builder along the line of said railroad; that, while thus employed, “it became necessary for plaintiff, under said employment, and under the orders of the foreman of the gang in which he was working, to enter in and upon a handcar, the property of said defendant, and to ride thereon from one point to another upon said line of railway”; that while so proceeding, and riding upon, and helping to propel, said handcar over said line of railway, at a certain point described, where said railway passes around a sharp curve, and through a deep cut, “defendant, not regarding its duty toward plaintiff to operate said line of railway and its locomotives and trains thereon in a careful and skillful manner/’ did, by its servants, the engineer and fireman of its locomotive, so carelessly, unskillfully, and negligently run a special train, consisting of locomotive and car or cars thereto attached, through said deep cut and around said sharp curve, at a high rate of speed, toward plaintiff, on the same track upon which he was proceeding on said handcar, without sounding the whistle or ringing the bell of said locomotive, or in any manner warning plaintiff of the approach of said special trail], and by reason of said sharp curve in the line of said railroad, and its passage through said deep cut, plaintiff was unable to see any great distance along the line of said railroad and perceive the approach of said train, whereby plaintiff was brought into and exposed to such great danger and imminent peril of life and limb as to make it unsafe for him to longer remain on said handcar, wherefore plaintiff jumped therefrom in attempting to escape from such dangerous position, and thereby plaintiff received certain serious bodily injuries, particularly alleged, for which he seeks to recover damages. It is further alleged in the complaint that in so jumping from said handcar plain, tiff acted as a reasonable and prudent man would have acted under like circumstances, and that he in no manner, by negligence or carelessness, contributed to the injury for which he seeks to recover damages by this action.
In support of the demurrer respondent’s counsel insist that it is shown by the allegations of the complaint that plaintiff received the injuries for which he seeks to recover damages through the negligence and carelessness of the engineer and fireman of the locomotive drawing said special train; and that said engineer and fireman were fellow-servants of plaintiff, engaged in a common employment by defendant. And they cite the case of Northern Pac. R. R. Co. v. Hambly, 154 U. S. 349, and other authorities, which affirm that an engineer and fireman, in the operation of a railroad train, occupy the relation of fellow-servants with employees of the same company engaged in keeping the railroad line in proper condition. In treating the case above cited, however, it is observed that the courts are in hopeless conflict on that as well as other points of application of the doctrine of fellow service, and that “wherever the subject is regulated by statute, of course the statute is applied by the federal courts pursuant to the Revised Statutes, section 241, as a law of the state.”
The general doctrine, as announced through decisions of courts, on the subject of respondeat superior, has been modified somewhat by statute law enacted in this state, following, no doubt, the policy manifested by modern legislation of other states of the American union and of foreign dominions on the same subject. A general exposition of such enactments will be found in the valuable work of Mr. McKinney on Fellow-servants.
The constitution of this state adopted in 1889 provides that: “ It shall be unlawful for any person, company, or corporation to require of its servants or employees, as a condition of their employment or otherwise, any contract or agreement whereby such persons, company, or corporation shall be released or discharged from liability or responsibility on account of personal injuries received by such servants or employees while in the service of such person, company, or corporation, by reason of the negligence of such person, company, or corporation, or the agents or employees thereof; and such contracts shall be absolutely null and void.” (Const., art. XV, § 16.)
In an act of the legislature relating to railroad corporations it is provided: “ That in every case the liability of a corporation to a servant or employee acting under the orders of 1ns superior shall be the same in case of injury sustained by default or wrongful act of his superior, or to an employee not appointed or controlled by him, as if such servant or employee were a passenger.” (Comp. Stats., div. 5, § 697.)
Plaintiff, in alleging the facts which constitute his cause of action, avers that he was acting and proceeding, when injured, pursuant to the orders of his superior, namely, the foreman whom defendant had set over him to direct his movements in said employment. And, giving the complaint a just and reasonable interpretation, we think that it should be construed as alleging that plaintiff, while acting in obedience to the direct order of his superior, and by reason of the default of the defendant, in connection with said order “disregarding its duty toward plaintiff to operate said line of railway, and its locomotives and trains thereon, in a careful manner,” etc., brought plaintiff into the dangerous position alleged, while no signal warned him of the approaching danger, and the circumstances alleged prevented his observing the approach of said train, with the exercise of due care and prudence, whereby — by reason of all these facts conspiring, in connection with the default or wrongful act, or disregard of duty, on the part of defendant, in so ordering the plaintiff, under the circumstances alleged, without due precaution on the part of defendant for his safety — his injury was compassed. And that so viewing the complaint, giving all the averments their proper relation to one another, the demurrer should be overruled. It was proper to allege that there was no sound of whistle or ringing of bell or other signal to warn plaintiff of the approach of said train; for this allegation shows that plaintiff, in proceeding into the dangerous situation, acting in obedience to the command of his superior, did so without warning of the danger coming upon him by the movement of defendant’s train.
The complaint is far from being a model of concise statement of facts constituting the cause of action, without repetition or unnecessary verbiage; nevertheless, it becomes the duty of the court, even though the complaint be inartistic and involved, to give its allegations, when viewed altogether, a reasonable construction.
The judgment of the trial court should therefore be reversed and the case remanded with directions to overrule the demurrer.
Reversed.
De Witt, J., concurred.
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De Witt, J.
— We are of opinion that this complaint states a cause of action. The objections to this pleading, urged by respondent’s counsel, are based upon their claim that Sheriff Tuttle had no right, under the law, to turn over the attached hay to his successor, Sheriff Gleason, but should have retained the possession himself. But whether that were the sheriff’s duty or not under our statutes (Comp. Stats., div. 5, §§ 857, 858), we do not think is material to this case. As it appeared by final results, the seizure of the hay was wholly wrongful. In the action in which the attachment was issued judgment went for defendant; and, in the action by the third persons claiming the hay, judgment was for those claimants. They, viz., Mary Sears and Duncan Davidson, claimed the hay from Tuttle on September 28th. On October 8th, defendants Mead and Smith gave Tuttle the indemnity bond. Tuttle then held and kept the hay, at least until December 17th,. when his term of office expired. During all this time his holding was wrongful. He was holding Mary Sears and Duncan Davidson’s property by virtue of a writ of attachment against a person other than Sears and Davidson. Sears and Davidson were, therefore, then unlawfully deprived of their possession of the hay, and the same was converted by Tuttle.
Judge Cooley says, in his work on Torts: “Any distinct act of dominion wrongfully exerted over one’s property in denial of his right, or inconsistent with it, is a conversion. ‘The action of trover being founded on a conjoint right of property and possession,-any act of the defendant which negatives or is inconsistent with such right amounts, in law, to a conversion. It is not necessary to a conversion that there should be a manual taking of the thing in question by the defendant; it is not necessary to be shown that he has applied it to his own use. Does he exercise a dominion over it in exclusion or in defiance of the plaintiff’s right? If he does, that is, in law, a conversion, be it for his own or another person’s use.’ ” (Cooley on Torts, 448.)
Therefore, Tuttle having fully converted the property prior to the expiration of his term of office, Sears and Davidson then had their cause of action against him.
“ It is commonly said that, to sustain trover, the plaintiff must show a legal title; he must have property, general or special, or actual possession, or the right to immediate possession, at the time of the conversion.” (Cooley on Torts, 442, 443.)
They did not sue Tuttle until later, and, when they did, they joined, as a defendant, Gleason, and recovered judgment against both of them. This was surely a judgment against Tuttle, and one by which he was damaged. The foundation for this judgment was in the cause of action arising by reason of Tuttle having seized and held the hay. Whatever may be true as to Sears and Davidson having a cause of action against Gleason for disposing of the hay, this did not deprive them of their cause of action against Tuttle for seizing and holding it. This cause of action they asserted against Tuttle, and obtained a judgment against him. For such damages occurring to Tuttle by reason of his holding the hay, the defendants Mead and Smith agreed to indemnify him.
The Code of Civil Procedure provides, in section 533, as follows: “An action brought against a sheriff for an act done by virtue of his office, if he give written notice thereof to the sureties on any bond of indemnity received by him, the judgment recovered therein shall be sufficient evidence of his right to recover against such sureties.”
Now, when Tuttle was sued by Sears and Davidson, he notified Mead and Smith, sureties, and they came in and defended the suit. The liability of Gleason and of Tuttle was tried in that case. As we have seen, there was a cause of action existing against Tuttle. We further find that it was tried and established in the suit against him, a suit in which the indemnifiers appeared and defended. Under these circumstances, section 533 of the Code of Civil Procedure declares that the judgment recovered shall be sufficient evidence of the sheriff’s right to recover against the sureties. (Dutil v. Pacheco, supra.)
All these matters appear in the complaint in the action. The judgment of the district court is therefore reversed, and the cause is remanded, with instructions to overrule the demurrers of defendants Mead and Smith.
Reversed.
PembertoN, C. J., and Hunt, J., concur.
|
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Pemberton, C. J.
— This is an action in ejectment, commenced in the district court by plaintiffs to recover of defendant the possession of a town lot in the city of Butte, described in the complaint. It appears that the town lot in dispute is a portion of the surface ground of a certain quartz lode mining claim, known and described as “Gold Hill No. 2.” The defense to the action is the statute of limitations, the defendant, in her answer, alleging that before the bringing of this suit she had been in the adverse possession of the lot for more than five years after the plaintiffs had entered the mining claim above mentioned, and obtained the register’s receipt therefor. Five years did not elapse between the date of the patent and the bringing of this suit. The case was tried by the court below without a jury, upon an agreed statement of facts, the only issue and question being as to whether the statute began to run at the date of the register’s receipt, or at the date of the patent. The court below held that the statute began to run at the date of the patent, and entered judgment for the plaintiffs for the possession of the lot, and nominal damages. From this judgment, and an order denying a new trial, this appeal is prosecuted. „
In King v. Thomas, 6 Mont. 409, this court held that the statute of limitations did not commence to ruu until the issuance of the mining patent. In Mayer v. Carothers, 14 Mont. 274, this court refused to depart from the rule announced in King v. Thomas, supra, and again held that the statute does not run against a mining claim until issuance of patent. We are unable to discover any thing in the facts, circumstances, or law of the case at bar to distinguish it, in this respect, from King v. Thomas and Mayer v. Carothers, supra; and, upon the authority of these cases, the judgment of the court below in this case must be affirmed, and it is so ordered.
HUNT, J., concurs, basing concurrence upon the ground that the question has been twice decided by this court.
|
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] |
MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
This is an appeal from an order granting defendants’ motion for a new trial. The action is in ejectment to recover the possession of lot 1, block 4, in the townsite of Baker, Custer (now Fallon) county. The complaint is in the usual form, alleging title and right to possession in plaintiff and ouster by defendants. The separate answer of defendant Ruesink admits that he is in possession, but denies all the other allegations in the complaint. Denying plaintiff’s title and right to possession except as admitted in his counterclaim, the defendant Anderson seeks affirmative relief upon these allegations: That during the month of October, 1908, the plaintiff, by and through its duly authorized agent, T. 0. Ramsland, entered into an oral contract and agreement with A. S. Way and J. D. Ratehford, copartners doing business under the firm name of Way & Ratehford, by which it agreed to sell and convey to them the lot in controversy for the sum of $1,000; that the said Way & Ratehford then paid to Ramsland in cash the sum of $333.35, which the latter accepted as part payment of the purchase price and thereupon delivered to Way & Ratehford a receipt in writing, acknowledging pay-. ment of said sum; that under the contract so entered into, and in consideration of the part payment of the purchase price so made, Way & Ratehford were let into possession of the lot, and by themselves and their assignees have been in possession ever since; that when the contract was made, the plaintiff did not have title to the lot, but expected to obtain it from the United States government; that later, during the month of October, 1908, the plaintiff delivered to Way & Ratehford duplicates of the form of contract used by it in making sales of lots at Baker, in which was recited an acknowledgment of the receipt of part payment of the purchase price to Ramsland, and that it was then understood by Way & Ratehford that the balance of the purchase price should become due and payable when plaintiff received title from the United States, and should be able to convey it to Way & Ratehford; that in January, 1911, Way & Ratehford, for a valuable consideration, transferred to this defendant all their interest in the said lot, and that ever since that time he has been, and now is, in the possession thereof; that while so in possession of the lot, the said Way & Ratehford and this defendant have erected buildings thereon and made other improvements of the value of $5,000, which cannot be removed without great injury thereto, all of which belong to this defendant by bill of sale executed to him by Way & Ratehford on November 3, 1909; that during the fall of 1910 the plaintiff obtained title to the lot from the United States, and thereafter, on January 21, 1911, this defendant forwarded to the principal office of plaintiff at Seattle, Washington, the balance of the purchase price with interest, in all $779, together with the duplicates of the contract theretofore delivered to Way .& Ratehford, with assignments indorsed thereon by Way & Ratehford to this defendant, and demanded that a deed be delivered to him; that the plaintiff refused to deliver the deed, but retained the said duplicates and assignments, and that it has never offered to return the sum of $779 to the defendant, and has at all times since refused, and does now refuse, to execute and deliver the deed. It is further alleged that Way & Ratehford and this defendant have com plied with all the terms of the agreement to purchase said lot, but that the plaintiff has failed and refused to comply with them; that it has never returned, nor offered to return, the cash payment made by Way & Ratchford when the contract was made, and that defendant has always been ready to have the plaintiff retain the entire amount of the purchase price paid to it, and accept a deed. It is also alleged that Way & Ratchford and this defendant have since the date of the contract been in the occupation of the lot with the knowledge and consent of plaintiff. Demand is made that defendant be decreed to be the equitable owner of the lot and that plaintiff be required to execute and deliver to him a good and sufficient conveyance of the legal title. There is also a prayer for general relief. By reply the plaintiff admits that in the month of October, 1908, it did not have title to the lot, having obtained it, as defendant Anderson alleges, in the fall of 1910. It admits that there are buildings and improvements on the lot and that the defendants are in possession of it. It denies all the other allegations of the counterclaim.
At the opening of the trial a jury was waived, and counsel stipulated in effect that plaintiff would be entitled to recover if defendant Anderson was not, upon the evidence adduced by him in support of his counterclaim, entitled to the relief demanded. The court, Hon. Sydney Sanner presiding, made formal findings and conclusions of law in favor of plaintiff and ordered judgment accordingly. Judge C. C. Hurley, the successor to Judge Sanner, by general order sustained defendants’ motion for a new trial.
Counsel for plaintiff open their argument in their brief with this statement: “The question to be determined by the court on this appeal is whether or not there is a decided preponderance of the evidence against the findings and decision of the trial court, and if there is, the order will * * * be affirmed; otherwise not.” They proceed upon the assumption that the only question open to consideration by this court is whether, because Judge Hurley did not preside at the trial and could not exer cise the discretion ordinarily vested in a trial judge in determining a motion for a new trial (Gibson v. Morris State Bank, 49 Mont. 60, 140 Pac. 76), he did not err in his conclusion that the evidence preponderates decisively against the findings.
The motion for a new trial was made upon several of the statutory grounds, among them that the evidence was insufficient to justify the findings and that the decision was against law. Apparently these were the only grounds urged at the hearing. There was no substantial conflict in the evidence. This being the condition, the case was stripped of questions of fact, and it remained only for the court to determine the question of law arising upon all the evidence viewed as an agreed statement of facts. (Helena Nat. Bank v. Rocky Mt. Bell Tel. Co., 20 Mont. 379, 63 Am. St. Rep. 628, 51 Pac. 829; Murray v. Hauser, 21 Mont. 120, 53 Pac. 99; State ex rel. Quintin v. Edwards, 40 Mont. 287, 20 Ann. Cas. 239, 106 Pac. 695.) If a case is being tried to a jury and the evidence is such that reasonable men can come to but one conclusion thereon, the court may, as the case requires, direct a verdict for the party entitled to it, or withdraw the case from the jury and render judgment. (Rev. Codes, see. 6761; Consolidated Gold etc. Min. Co. v. Struthers, 41 Mont. 565, 111 Pac. 152.) So when, as here, the case is submitted to the court without a jury and the evidence justifies but one conclusion, formal findings are unnecessary, though request'be made for them in conformity with section 6766 of the Revised Codes. The judgment will not be reversed if the request is disregarded. (State ex rel. Quintin v. Edwards, supra.) For the same reason, if the court makes them, this court will not reverse the judgment because of defects in them, or any of them, though exception has been reserved because of the defects, under section 6767. In such a case this court will ignore the formal findings and upon examination of the whole of the evidence determine whether the conclusion reached thereon by the trial court was correct.' In determining the motion as made, therefore, Judge Hurley was in the same position with reference to the evidence as is this court. (Gibson v. Morris State Bank, supra.) He was required to decide, not whether the evidence was sufficient to sustain any particular finding, but whether, in view of the allegations in the answer, setting forth the terms of the contract upon which the defendants rely and the evidence disclosing the result of the negotiations had between Ramsland and Way & Ratch-ford, and the subsequent events down to the trial, Anderson is entitled to the relief demanded. Though the answer is not a model pleading, yet if the legitimate inferences to be drawn from the evidence justify the conclusion that the contract was made substantially as alleged therein and that Way & Ratch-ford complied with its requirements, there can be no question that the plaintiff ought to be compelled to convey title to Anderson. Upon this assumption, the decision of Judge Sanner was erroneous and the defendants were entitled to a new trial. True, the contract was left to rest entirely upon the oral agreement. Nevertheless the payment of the cash installment of the purchase price as stipulated, coupled with the assumption of possession by Way & Ratchford with the consent of the plaintiff, and the erection of buildings and other improvements thereon with its knowledge and acquiescence, with the expectation by Way & Ratchford that they would be vested with title as soon as plaintiff acquired it, followed by a tender of the balance of the purchase money, constituted such a part performance of the contract as, under the rule generally recognized, took it out of the operation of the statute of frauds and authorized the court to decree a specific performance of it. (Cobban v. Hecklen, 27 Mont. 245, 70 Pac. 805; Stevens v. Trafton, 36 Mont. 520, 93 Pac. 810; Wright v. Brooks, 47 Mont. 99, 130 Pac. 968, and cases cited.) Under the assignment by Way & Ratchford to Anderson, the latter was substituted in their stead, and became entitled to such relief as they could demand had the assignment not been made. Assignability of contracts is the rule, nonassignability is the exception. In the absence of any stipulation-in the agreement or contract itself to the contrary, the right conferred by it is assignable. (Flinner v. McVay, 37 Mont. 306, 15 Ann. Cas. 1175, 19 L. R. A. (n. s.) 879, 96 Pac. 340; Winslow v. Dundom, 46 Mont. 71, 125 Pac. 136.)
The evidence shows, and the court found, these faets: On October 29, 1908, T. O. Ramsland was the local special agent of the plaintiff to negotiate sales of lots in the townsite of Baker to which plaintiff had not then secured the legal title. He was not vested with authority in writing or otherwise to complete sales and make conveyances, but all of his negotiations were subject to approval by plaintiff. This was known to Way & Rateh-ford, as was also the fact that Ramsland’s contracts when made were to be embodied in writing, the form of which was to be furnished by the plaintiff. On that date he agreed to sell to Way & Ratchford the lot in controversy for $1,000, one-third in cash and .the balance payable in two equal installments, due, respectively, at the expiration of one and two years thereafter. As soon as the cash payment was made, Way & Ratchford entered into possession of the lot and erected valuable improvements thereon, and by themselves and their assignee, Anderson, have remained in possession with the knowledge and consent of the plaintiff. When the agreement was made, Way & Ratch-ford knew that the plaintiff had only the equitable title. In due course and within a few days after the completion of the negotiations between Ramsland and Way & Ratchford, and after receipt by the proper officers of the plaintiff of the installment of the purchase money by the latter, the plaintiff had prepared and forwarded to Way & Ratchford in duplicate, for execution, a contract in the form made use of by it in the sale of lots at Baker. The duplicates were intended to be executed by Way & Ratchford and returned to plaintiff. Upon execution by it, one of them was to be delivered to Way & Ratchford, the plaintiff retaining the other. The duplicates were received by Way & Ratchford and retained unexecuted until January 21, 1911, without explanation to the plaintiff. They were never executed by plaintiff. Way & Ratchford did not make the payments of the second and third installments of the purchase money when they fell due, and after the third fell due they expressly refused to make further payment and so advised the plaintiff, until the plaintiff could convey to them the legal title. They did not thereafter make payment, nor did the plaintiff at any time tender them a deed. On November 3,1909, the defendant Anderson was put in possession by Way & Ratchford under an incomplete assignment to him of their rights. On January 21, 1911, Ratchford, on behalf of the firm, signed duplicates of the contract and indorsed thereon assignments of all the firm’s rights to the lot to Anderson and delivered them to him. He thereupon caused them to be forwarded to the general agent of the plaintiff at Seattle, Washington, with a draft for $779.00, principal and interest of the two last installments of the purchase money, payable to the agent with a ‘demand for a deed. The demand was refused and the draft returned. On February 4 the draft was forwarded to the vice-president and general manager of the plaintiff, who returned it with a refusal to convey. Thereupon Anderson, through one Lemmon, forwarded the draft to E. D. Sewall, one of the directors of plaintiff, who resided at Chicago. After consulting with the other officers of the plaintiff, Sewall advised Lemmon that the plaintiff would not recognize any right in Anderson. By oversight he failed to return the draft, which remained in his possession unused and unindorsed until the trial. At- the time Ratchford made the assignment to Anderson, both knew that the plaintiff had determined to refuse recognition in either of them of any right under the contract of sale. On March 28, 1911, the plaintiff caused to be served upon the defendants formal written notice to vacate the lot, and to remove their improvements therefrom. This the defendants refused to do. The payment alleged to have been made at the time of the sale on October 29, 1908, was represented by $150 in cash and a note for the balance, accepted by Rams-land as cash, which was paid at maturity. The plaintiff received the full amount.
The record discloses these additional facts: Way & Ratchford went into possession immediately and began the erection of thé buildings, whieb at the date of trial were of tbe value of $4,500. The duplicates of the contract were not forwarded to Way & Ratchford until the note was paid. This was ninety days after the sale. At that time the buildings on the lot were in course of construction. While it was understood when the sale was made that the transaction was to be evidenced by a writing executed by the parties, the terms to be embodied in it, other than those fixing the amounts and due dates of the deferred payments, were not discussed nor settled. Why Way & Ratchford did not execute the duplicates, the evidence does not disclose. Apparently the plaintiff, by not requiring the execution of them, was content to let the transaction rest upon the oral contract. In any event, the plaintiff demanded payment of the deferred installments when they fell due. When the last one matured and demand was made for payment, Ratchford informed Ramsland that payment would not be made until the plaintiff could convey title. Though Ramsland knew at this time that the plaintiff had secured title from the government some time early in September, he did not inform Ratchford of this fact; nor did plaintiff then or thereafter tender a deed or demand payment. After the assignments were made to Anderson on January 21, 1911, and tender of the balance due was made by him with demand for a deed, an effort was made by Ramsland, acting for Anderson, to induce the plaintiff to accept payment and deliver the deed. The officers of the plaintiff consistently refused to do so, putting-their refusal exclusively upon the ground that they had elected to declare the contract of sale forfeited. The reason why the draft was forwarded to Mr. Sewall after its return from the Seattle office was that Mr. Lemmon, being a mutual friend of Anderson and Mr. Sewall, was of the opinion that Mr. Sewall would.act as mediator between Anderson and the company and induce the company to execute and deliver the deed. This result, as the findings show, he failed to accomplish.
Mr. Sewall testified that he had retained the draft by oversight, having inadvertently put it in his letter files with the letter from Mr. Lemmon in which he received it, and that when this-controversy arose and it became necessary to examine bis correspondence, be found it and delivered it to plaintiff’s counsel. At the trial it was introduced in evidence and filed with the clerk. "When Anderson went into possession on November 3, 1909, he did so under a bill of sale executed to him by Way in the firm name of Way & Ratchford. This covered the buildings and improvements only. The reas in why the execution of the formal assignment was deferred was that the consideration had not been fully paid until the date of its delivery. The purpose of the assignment was to vest Anderson with the equity of the firm of Way & Ratchford, and to put Anderson in position to demand a deed from plaintiff. The consideration paid went into the assets of the firm. The plaintiff was fully informed of Anderson’s claim as early as October 19, 1910. During the latter part of December its general manager informed Anderson that it had elected to terminate the contract for failure of Way & Ratchford to pay the balance of the purchase price. No offer was made by Anderson to pay the balance, until he forwarded the draft to the office of plaintiff at Seattle. Way was not present at the trial and it was not known to Ratch-ford or Anderson where he then was. At the close of the evidence counsel for the plaintiff offered to return to Way & Ratch-ford, or to pay to anyone whom the court thought entitled to it, the cash payment made to the plaintiff at the date of the purchase, but without interest. A tender of the money was not made.
Does the foregoing evidence establish a contract substantially as alleged in the answer? It may be conceded that Ramsland was not vested with authority to complete sales for the plaintiff. Nevertheless it cannot be controverted that by its acceptance of the cash payment made to Ramsland by Way & Ratchford in pursuance of the arrangement he made, its acquiescence in the possession and improvements of the lot by Way & Ratchford by consent of Ramsland, its demand for the payment of the deferred installments at their respective due dates, and its expressed election to “forfeit the contract” in December, 1910, it purposely and with full understanding of its terms ratified the oral agreement entered into by Ramsland and became bound by it just as would a natural person have been bound had he made the agreement for himself under the same circumstances. Under its terms, Way & Ratchford were to receive a deed upon the discharge of the deferred payments. That it was the intention to have a formal contract executed in duplicate expressing the terms agreed upon, and perhaps others, is not of importance. If there were nothing else to consider, the conclusion would seem necessarily to follow that the terms of the contract as proved present such a material variance from that alleged, as to amount to a failure of proof. But under the rule of law applicable, such is not the case. The variance is in the single particular as’to when and how the balance of the purchase money was to be paid; otherwise the contract as alleged, and the terms of it, are clearly shown. The subject matter, the parties and the consideration were the same as alleged, and the obligation to make payment was the same. The plaintiff did not have title. It therefore could not, under the agreement as alleged or' under that proved, have demanded performance by Way & Ratchford until it could tender a title. (Rev. Codes, sec. 6106.) In effect, the answer alleges the equities of defendants as they existed at the time the action was brought, instead of the specific terms of the contract. Though the evidence does not technically correspond to these allegations, it nevertheless supports them in their general scope and meaning. Therefore, the variance ought to have been disregarded as immaterial, within the rule declared by sections 6585 and 6586 of the Revised Codes, and the trial court ought to have awarded the defendants relief. It is apparent that the plaintiff was not mis-: led to its prejudice in its defense to the counterclaim on the merits. Therefore, under the provisions cited supra, the trial judge should have treated the variance as immaterial and found according to the evidence, either after ordering the answer to be amended to correspond with the proof or without' such an amendment. The divergence is one of detail rather than of substance, and related merely to the mode of payment — a particular which was not of vital consequence. (American etc. Loan Co. v. Great Northern Ry. Co., 48 Mont. 495, 138 Pac. 1102, and cases cited.) The conclusion of the trial court cannot be justified on the ground of variance.
The attempt by the plaintiff to declare a forfeiture was abor- tive. Conceding that it might have done so upon failure of Way & Ratchford on demand to pay the first deferred installment when it fell due, after extending to the firm indulgence until the last installment was due, it could not terminate the contract without tendering a conveyance or at least aceompany- ing the demand for payment with an offer to convey. The obligation to convey was concurrent with the obligation to pay (Rev. Codes, sec. 4901), and the right to terminate the contract did not arise until plaintiff had acquired title and tendered or offered a conveyance. (Boone v. Templeman, 158 Cal. 290, 139 Am. St. Rep. 126, 110 Pac. 947; Suburban Homes Co. v. North, ante, p. 108, 145 Pac. 2; 39 Cyc. 1375.)
Nor can the action of the court be justified on the ground that Anderson was not shown to be the assignee of Way & Ratchford. Under the terms of the contract, Way & Ratch-ford were not vested with title, but a mere right to have title conveyed to the firm when plaintiff had acquired it. The right was the property of the firm. If the partnership was still in existence, Ratchford had the authority, as the general agent of the firm, subject, of course, to the provision of section 5483 of the Revised Codes, to make the assignment for the firm as he did. (See. 5482.) If the firm was in process of liquidation— and how this was does not appear — the assignment by Ratchford was valid, for ostensibly he was acting for the firm and had authority to dispose of its property. (See. 5502.) If he was not authorized to act as the liquidating partner, still Anderson paid him value for the right assigned, apparently relying upon .the credit of the firm, and the consideration was devoted to its benefit. The assignment was for this reason valid. (Sec. 5501.)
The refusal by the plaintiff- to accept Anderson’s tender was not because he did not tender cash, but because the contract had been forfeited. It was therefore sufficient at the time it was made. At the time the answer was filed, the dráft was still in the hands of Mr. Sewall. Anderson, knowing nothing of the circumstances of its retention by Mr. Sewall, was justified in the belief that since he had sent it to Mr. Sewall to be used to pay the plaintiff, he being one of its officers, it was then in the possession of the plaintiff. Under the circumstances, the allegations in the answer that Anderson was willing that the plaintiff should retain the amount represented by the draft in payment of the balance due, coupled with the fact that the draft is now in the hands of the clerk, are equivalent to a tender of the amount due and -a payment of it into court for plaintiff’s benefit.
The order is affirmed.
Affirmed.
Mb. Justice Holloway concurs.
Mb. Justice Sanner, being disqualified, did not hear the argument and takes no part in the foregoing decision.
Rehearing denied May 7, 1915.
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MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
This action was brought to obtain a decree declaring null and void an assessment and tax levied in pursuance thereof by the authorities of the defendant city, upon property belonging to plaintiff and situated within the corporate limits of the city, and perpetually enjoining the defendant Daniel Shovlin, the city treasurer, from enforcing the collection of the tax by sale of the property. The trial court granted the relief demanded. The defendants have appealed from the decree and an order denying their motion for a new trial.
Patent to the Barnard placer mining claim was issued by the United States to Anthony W. Barnard and George McCausland on November 15, 1875. The claim covers an area of 34.75 acres, lying along Missoula gulch, which extends from north to south, immediately west of the city as originally surveyed and platted. For several years after the patent was issued the mine was profitably worked for placer gold. When the deposits were so far exhausted as to render this character of mining unprofitable, Anthony W. Barnard, who in the meantime had become the sole owner, caused a portion of the claim to be subdivided into blocks and lots and to be made an addition to the city as the Barnard Addition. The lots in this addition have heretofore been sold, Barnard reserving the mineral rights. The addition covers the central portion of the claim, leaving portions of it to the north and south as reserves for mining purposes, or to be devoted to other uses. The plaintiff: subsequently became the successor to all of Barnard’s rights. Lands to the west owned by other persons were also subdivided and made additions to the city, with the result that at the present time the southern portion of the claim, an irregular area of several acres, is bounded on the north, east and west by lots occupied by buildings. A fair understanding of the situation may be gained by reference to the diagram found in Barnard Realty Co. v. City of Butte, 48 Mont. 102, 136 Pac. 1064, with the accompanying explanatory statement. The area designated “Barnard placer,’’ extending from the alley on the north to and south of Silver street, is the property involved in this controversy. The entire area of the claim as originally patented was assessed by the county assessor for the year 1912 as placer mining property at $2.50 per acre. Subsequently the assessor, at the instance of the city authorities, again assessed the area in controversy at a valuation of $19,000, upon the theory that it had an independent value to this amount and for use as city lots. In the. first assessment the plaintiff was named as the owner; in the second Anthony W. Barnard was named as the' owner. Both assessments were extended by the county clerk upon the county assessment-roll and upon the duplicate delivered by him to the city treasurer as a basis for the levy of city taxes. The plaintiff paid the amount of the tax levied upon the first assessment, but refused to pay that levied upon the second, and, when the city treasurer proceeded to advertise and sell the property as delinquent, brought this action.' Two questions have been submitted for decision, viz., whether the second assessment and the tax levied in pursuance of it were authorized by law, and whether injunction is the proper remedy.
Section 2 of Article XII of the Constitution specifically de-dares all property, with certain exceptions, subject to taxation. The same provision permits the legislature in its discretion to exempt other property devoted to certain purposes. The following section (3) provides as follows: “All mines and mining claims, both placer and rock in place, containing or bearing gold, silver, copper, lead, coal or other valuable mineral deposits, after purchase thereof from the United States shall be taxed at the price paid the United States therefor, unless the surface ground, or some part thereof, of such mine or claim, is used for other than mining purposes, and has a separate and independent value for such other purposes, in which ease said surface ground, or any part thereof, so used for other than mining purposes, shall be taxed at its value for such'other purposes, as provided by law; and all machinery used in mining, and all property and surface improvements upon or appurtenant to mines and mining claims which have a value separate and independent of such mines or mining claims, and the annual net proceeds of all mines and mining claims shall be taxed as provided by law.” Section 2500 of the Revised Codes is substantially an enactment of this provision in the form of statute.
The purpose had in view by the convention in formulating the provision of the Constitution was to bring into the class of taxable property mines and mining claims, and to provide a method by which the owners of them might be compelled to bear their equitable proportion of the expense of government. Theretofore this species of property had generally been exempt. (Northern Pac. Ry. Co. v. Mjelde, 48 Mont. 287, 137 Pac. 386.) Recognizing the fact that such property is not generally susceptible of profitable use unless the deposits therein are extracted and put into commercial form, and in order to encourage the work of profitable development by protecting it against exactions which might prevent this result, it was deemed that the owner of a mining claim would fully acquit himself of his obligation to the public by paying a tax: (1) Upon the acreage at the price paid to the United States; (2) upon the machinery used in mining and surface improvements, etc., upon or appurtenant to the claim, which have a value independent thereof; and (3) upon the net proceeds of the product. So long as the claim is used and held exclusively for mining purposes, the owner of it is not required to bear any other burden; but when the property, having by its location acquired a value for some independent use, is devoted by the owner to such use, it becomes at once subject to taxation at that value as is other real estate, to be ascertained by the assessing officer just as he ascertains the value of other land for the purpose of taxation. By devoting it to the new use, the owner, so to speak, creates an estate which, in the eye of the law, is regarded as independent of the original estate and is subject to taxation as such. It will be noted, however, that two conditions must concur to justify the imposition of the additional burden; viz., the surface ground, or some part thereof, must be used for other than mining purposes, and it must have an independent value for that purpose. When these conditions concur, but not otherwise, the owner must assume the additional burden.
While it is the rule that he who alleges that his property is exempt from taxation must sustain the burden of establishing the exemption, the provision in question not being an exemption provision, but really a revenue measure apportioning to the owners of mining claims what the convention deemed to be their just proportion of the public burden (Northern Pac. Ry. Co. v. Mjelde, supra), before the additional burden can be imposed, the taxing authorities must ascertain that the conditions authorizing its imposition in fact exist. In Hale v. Jefferson County, 39 Mont. 137, 101 Pac. 973, was involved the question whether a ditch appurtenant to a placer mining claim and used to convey water upon it to work it had a value independent of the claim, and was therefore subject to taxation upon the basis of such value. It was held that the burden was upon the taxing authorities to establish such value. The rule was recognized and ap plied in tbe earlier case of Murray v. Hinds, 30 Mont. 466, 76 Pac. 1039. The question at issue in that ease was whether a tax levied upon a portion of the surface of a mining claim which had been subdivided into blocks and lots conforming to the streets and alleys of the city of Butte, and held for sale as opportunity offered, was valid. Upon the facts adduced showing this condition, this court held that it was. The court said: “Merely claiming a portion of the premises as reserved for mining purposes, and at the same time disclosing a state of facts absolutely inconsistent with the basis of their (plaintiffs’) contention, places them in the position of having adopted a subterfuge to escape paying taxes on the property.” The platting of the property for the purpose of putting the lots upon the market for sale and selling them as there was demand for them was sufficient to show an actual use and an independent value for that purpose. This conclusion was clearly correct; for such a use, at least so far as concerned the surface of the claim, was inconsistent with any possible intention on the part of the owner to use it thereafter for mining purposes. It was entirely competent for the owner of the claim to treat the surface right as a separate interest from that represented by the mineral reserved beneath, and sell it to others if he chose to do so. (Northern Pac. Ry. Co. v. Mjelde, supra.) The interest so held was property and subject to taxation upon the same footing exactly as if the title to the land had been acquired for agricultural purposes.
We shall not enter into a detailed examination of the evidence. It is not disputed that the area of the Barnard placer in controversy has an independent value for town-site purposes. This attribute it has in common with every foot of land within the limits of the city of Butte, including many mining claims. This alone, however, is not sufficient to make it subject to the burden sought to be imposed upon it. As heretofore stated, before the burden can be lawfully imposed in any case, the surface must have been devoted to an independent use. The evidence does not disclose such a use of the area in dispute. While it does furnish a basis for an inference that it may be the purpose of plaintiff at some future time to plat it into blocks and lots and put them upon the market, this has not been done, nor has it heretofore been occupied or used for any purpose. It is true that portions of the surface have been filled in by other parties with the consent of the plaintiff. Missoula Gulch has for many years been used as a dumping ground'for waste dirt taken from excavations within the city. Other portions of the surface rendered uneven by excavations during the process of placer mining have been leveled off. It is also true that Silver street has been extended over the southern portion of it. Again it is true that a storm sewer has been extended through it by the city from north to south, and that other similar improvements have been installed for the accommodation of lot owners to the north and east. With the exception of Silver street, which was opened by plaintiff’s consent, all these improvements have been installed without plaintiff’s consent, or that of any of its officers. With reference to them it may be said that all of them might have been installed even against the consent of plaintiff, the city acquiring the right of way through the property by virtue of condemnation proceedings. On the other hand, it is not disputed that in this portion of the claim there are silver-bearing lodes which have been worked with some profit in past years, and which, Anthony W. Barnard testified, it is the intention to work in the future if silver reaches such a price in the market as to justify it. He stated further that, though in recent years the plaintiff had been frequently solicited to sell the property to persons who desired to plat it and put it upon the Market, it had consistently refused to sell and held it as a reserve for mining purposes whenever circumstances would permit its use for this purpose. If such is the intention, as the trial court found, the tax sought to be imposed is wholly unauthorized and illegal. The most that can be said of the evidence touching the present or future intended use is that it does not decisively preponderate against the finding of the trial court, and hence must be accepted by this court as conclusive.
Contention is made that this action cannot be maintained, for the reasons that it is not alleged in the complaint nor shown by the evidence that plaintiff appeared before the board of county commissioners while sitting as a board of equalization, and made objection to the assessment, and that the remedy provided by section 2743 of the Revised Codes, as amended by the Act of 1909 (Laws of 1909, c. 135), is exclusive. It is true that the complaint does not allege that the plaintiff appeared before the board and made timely objection to the assessment, nor is it disclosed by the evidence that it did so. It is sufficient to say in this connection however, that if the taxing authorities undertake to levy a tax not authorized by law, or upon property not subject to be taxed, their action is without jurisdiction and void. (Clark v. Maher, 34 Mont. 391, 87 Pac. 272.) It is not necessary to cite authorities to sustain the assertion that the right of the owner of property to relief by injunction is not in any wise affected by his failure, either upon notice by the assessor (amended section 2743, supra) or by the board itself (Rev. Codes, sec. 2581), to make timely objection. The assessment being wholly illegal, because without authority, its validity may be questioned by any available method. The same may be said as to the exclusive character of the remedy provided by amended section 2743, supra. It is true section 2745 declares that the remedy provided by the amended section supra, “shall supersede the remedy of injunction and all other remedies which might be invoked to prevent the collection of taxes or licenses alleged to be irregularly levied or demanded, except in unusual cases where the remedy hereby provided is deemed by the court to be inadequate.” Notwithstanding this declaration, when the tax or the proceeding resulting in the levy of it is wholly illegal, as was pointed out in Montana Ore Pur. Co. v. Maher, 32 Mont. 480, 81 Pac. 13, the remedy by injunction is available. In this case it was said: “ A consideration of sections 4023 (Rev. Codes, sec. 2741) and 4026 (Rev. Codes, sec. 2745) leads us to believe that the phrase ‘irregularly levied or demanded’ was used by the legislature advisedly, and as prescribing the limits wherein tbe statutory remedy is exclusive, as distinguished from those cases of illegal taxes the collection of which may be restrained by injunction. In other words, if the action of the assessor or board of equalization was such that the tax complained of is manifestly void under any circumstances, injunction will lie to restrain its collection; but, if the error complained of is only an irregularity on the part of the assessor, the board of equalization, or the treasurer which may be subject to explanation so as to cure the apparent defect, or, in other words, where the tax complained of is not necessarily void under all circumstances, then the remedy provided by sections 4024 (Rev. Codes, sec. 2742) and 4025 (Rev. Codes, sec. 2744), namely, payment under protest and an action to recover back, is exclusive, except in those unusual cases mentioned in section 4026.” (See, also, Cobban v. Hinds, 23 Mont. 338, 59 Pac. 1, and Western Ranches, Ltd., v. Custer County, 28 Mont. 278, 72 Pac. 659.)
The judgment and order are affirmed.
Affirmed.
Mr. JustiCE Holloway and Mr. Justioe Sanner concur.
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] |
MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
Habeas corpus. In these cases the question , presented is identical with that presented in the ease of In re McDonald, ante, p. 348, 146 Pac. 942. Upon the authority of that case the several writs are discharged, and the complainants are remanded to the custody of the warden of the state prison.
Mr. Justice Sanner and Mr. Justice Holloway concur.
|
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
On July 10, 1910, the First Trust & Savings Bank of Billings, a domestic corporation, failed to open for business, and the state, one of its creditors, instituted a suit in the district court of Yellowstone county against the bank to have it declared insolvent and its business wound up. The complaint also prayed that a receiver be appointed to take over the property belonging to the bank and to administer the trust fund for the benefit of those entitled to share in its distribution. Such proceedings were had thereafter that on July 14 S. G. Reynolds was appointed receiver and acted as such until July, 1912, when he resigned. Arthur H. Brown was thereupon appointed in his stead and duly qualified, entered upon the discharge of his duties as such receiver, and continued actively until suspended. On November 24, 1914, while the original suit was still pending, and while a large amount of property belonging to the trust estate was still undisposed of, the defendant bank caused to be filed in the district court an affidavit seeking to disqualify Hon. George W. Pierson, one of the judges, for bias and prejudice; but, notwithstanding such affidavit, Judge Pierson on November 27 made an order suspending the receiver, and the bank thereupon secured a writ of certiorari from this court to review the order. In response to the writ, the clerk of the district court has certified all the records of the proceedings relating to the order in question. The respondents have moved to quash the writ, and the matter is before us for determination.
We have presented also a document entitled “Return of Re-spondent George W. Pierson.” This is in the nature of a pleading — an answer to the averments in the affidavit for the writ — but it is not a return and has no place in this proceeding.
• The writ of review is issued upon a proper affidavit by a party beneficially interested. (Sec. 7204, Rev. Codes.) The only purpose of such affidavit is to move the reviewing court to act. When the writ is issued, the affidavit becomes functus officio. It is not a pleading, and its averments cannot be traversed by any other pleading. The writ commands the party to whom directed to certify a transcript of the proceedings sought to have reviewed (sec. 7206); and, if directed to a court, the clerk is ordered to prepare and certify the record to the reviewing court (sec. 7205). The record thus duly certified constitutes the only return which can be made (6 Cyc. 804); and the only questions which can be presented for determination to the reviewing court must appear affirmatively from the face of this record. “The review upon this writ cannot be extended further than to determine whether the inferior tribunal, board or officer, has regularly pursued the authority of such tribunal, board or officer.” (Sec. 7209.) The document designated the return of the respondent judge must therefore be disregarded.
The question presented by the record is: Did Judge Pierson have authority to suspend the receiver after the disqualifying affidavit was filed? Section 6315, Revised Codes, as amended by an Act of the eleventh legislative assembly (Laws 1909, p. 161), authorizes any party to an action, motion, or proceeding to file with the clerk of the court, in which the same is pending, an affidavit that he has reason to believe and does believe that he cannot have a fair and impartial trial or hearing before a district judge presiding in the court, by reason of the bias or prejudice of such judge. Upon filing the affidavit, the statute in question declares that the judge, as to whom the disqualification is averred, shall be without authority to act further in the action, motion or proceeding, except to arrange the calendar, regulate the order of business, transfer the case to another court, or call in another judge to act. The attorney general, for the respondents, concedes that, prior to the appoint ment of the receiver, the defendant bank might have exercised the power conferred by the so-called Fair Trial Law (Rev. Codes, sec. 6315), but that the order appointing the receiver operated to suspend the functions of the bank as a corporation, including its function to sue or be sued with reference to any matter- connected with the receivership; and it is argued that, since the bank could not sue, it could not take any action in the pending suit, such as filing a disqualifying affidavit.
The powers and duties of a receiver are enumerated in section 6703 of the Revised Codes as follows: “The receiver has, under the control of the court, power to bring and defend actions in his own name, as receiver, to take and keep possession of the property, to receive rents, collect debts, to compound for and compromise the same, to make transfers, and generally to do such acts respecting the property as the court may authorize.” The appointment of a receiver for a corporation invests the receiver with the right to the possession and control of the corporation’s assets, and to the same extent suspends the functions of the corporation. Suits with reference to the trust estate must thereafter be prosecuted by the receiver, and, to the same extent that this power is lodged in the receiver, it is withdrawn from the corporation. This is the general rule and sufficient for the purposes of the proceeding now under consideration. (Boston & Mont. C. C. & S. Min. Co. v. Montana, Ore Pur. Co., 24 Mont. 142, 60 Pac. 991.) But the appointment of a receiver for a corporation does not operate to dissolve the corporation (Chemical Nat. Bank v. Hartford Deposit Co., 161 U. S. 1, 40 L. Ed. 595, 16 Sup. Ct. Rep. 439), or to transfer the ownership of the property involved in the receivership. The property still belongs to the corporation, though it is in the hands of the receiver to be administered under the law. (Rosenblatt v. Johnston, 104 U. S. 462, 26 L. Ed. 832.) Coextensive with the corporation’s interest in the property while in the hands of the receiver is its interest in the management of that property by the receiver. In the present instance, the bank is still a party to the original suit in which the receiver was appointed and a real party in interest. It may object to a report by the receiver or to a sale or other disposition of the property or any part of it by him. (Polk v. Johnson (Ind. App.), 76 N. E. 634.) Neither did the order appointing the receiver operate to terminate the action in which the receiver was appointed. That action is still pending undetermined. It is a well-settled rule of law that there cannot be such a thing as an action brought distinctively and solely for the appointment of a receiver. An action must be pending before a receiver can be appointed. (Rev. Codes, sec. 6698.) The appointment is an ancillary remedy in aid of the primary object of the litigation between the parties. (Murray v. Superior Court, 129 Cal. 628, 62 Pac. 191.) Under our Code, a receivership is classed as a provisional remedy, and is not frequently referred to as an “equitable execution before judgment.” (Kreling v. Kreling, 118 Cal. 421, 50 Pac. 549.) While, for certain purposes, the receiver represents the bank, he does not do so in the pending suit. He is not in any sense a party to that action, but is an officer of the court, subject to its orders and control. The receiver would not be permitted to file a disqualifying affidavit, and, unless the defendant bank may do so, we are confronted with the situation where one party— the plaintiff — -may exercise this right of disqualification which would be denied to the other. But that is not the language nor the meaning of the provision above. However much the statute may be abused, however much the courts may be imposed upon under its sweeping provisions, it is still the law of this state, binding upon courts and judges, and to be administered according to its true intent and purpose.
The very general terms employed by the courts and text-writers with reference to the authority and control of a court over a receiver appointed by it have reference always to a court which does not labor under any disability.
The affidavit in this instance was filed in the pending suit, and the inhibition of the statute necessarily limited the judge, against whom the disqualification was averred, to the arrangement of the calendar, the regulation of the order of business, tbe removal of the cause to another court, or the calling in another judge to act in his stead. No question is made as to the sufficiency of the affidavit or its timely presentation. The record discloses that, in making the order suspending the receiver after the disqualifying affidavit was filed, Judge Pierson exceeded the authority vested in him, The motion to quash is overruled, and the order is annulled.
Order annulled.
Mr. Chibe Justice Brantly and Mr. Justioe Sanner concur.
|
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
The defendant recovered judgment in the court below, and from that judgment and an order denying a new trial plaintiff appealed.
The action was instituted to recover $837.64, alleged to be due to the plaintiff upon an express contract. According to the theory of the complaint, the transaction between the plaintiff and the defendant constituted, in effect, a demand loan. The answer denies the material allegations of the complaint and sets forth the defendant’s version of the transaction, which is that the money advanced by plaintiff to defendant was a partial payment upon the purchase price of a piece of real estate which plaintiff agreed to purchase from defendant for $2,500. Upon the trial, after plaintiff had made out a prima facie case according to his theory and had rested, the defendant, over objection, introduced oral evidence of the agreement under which he contended the plaintiff advanced the money. Upon cross-examination it was developed that the agreement upon which defendant relied was in parol, and counsel for plaintiff then moved to strike out all the evidence relating to such contract. The court denied the motion, and this ruling presents the only question for our determination.
Counsel for appellant contend that, since the contract relied upon by the defendant is invalid under the statute of frauds (Rev. Codes, secs. 5017, 5091), it cannot be appealed to by him unless he shows himself entitled to equitable relief. Counsel err, however, in failing to distinguish between facts necessary to entitle one to affirmative relief, and facts sufficient to constitute a defense. The parol agreement for the sale of land was not illegal or absolutely void; it was voidable — that is, it was unenforceable. (Ducie v. Ford, 8 Mont. 233, 19 Pac. 414; Browne on Statute of Frauds, sec. 135; 20 Cyc. 279; 9 Ency. of Pl. & Pr. 706.) And for this reason defendant would not be heard to insist upon a demand for the balance due him on the contract, but this rule does not preclude him from disclosing what the facts actually were, as a defense to the plaintiff’s claim that the money was advanced as a loan. The general verdict of the jury is a finding that defendant’s version of the transaction is the correct one and that the money was not advanced as a loan.
The verdict is not attacked upon the ground of the insufficiency of the evidence to support it — indeed, such an attack could not well be made; and therefore, for the purposes of this appeal, it is established that the money which plaintiff advanced was a partial payment upon the purchase price of real estate under a parol agreement, and that plaintiff voluntarily terminated such contract. Under this state of facts, the rule that plaintiff cannot recover back such partial payment, in the absence of a showing that defendant is unable or unwilling to carry out the contract, is recognized quite uniformly. (Riley v. Williams, 123 Mass. 506; Day v. Wilson, 83 Ind. 463, 43 Am. Rep. 76; Plummer v. Bucknam, 55 Me. 105; Durham C. L. & I. Co. v. Guthrie, 116 N. C. 381, 21 S. E. 952; York v. Washburn (C. C.), 118 Fed. 316, affirmed by circuit court of appeals, 129 Fed. 564, 64 C. C. A. 132; Venable v. Brown, 31 Ark. 564; McKinney v. Harvie, 38 Minn. 18, 8 Am. St. Rep. 640, 35 N. W. 668; Cobb v. Hall, 29 Vt. 510, 70 Am. Dec. 432; Johnson v. Puget Mill Co., 28 Wash. 515, 68 Pac. 867; Browne on Statute of Frauds, sec. 122.)
To test the correctness of the trial court’s ruling, it is only necessary, with the facts before us, as established by the jury’s verdict, to inquire what the result would have been had the defendant’s evidence been excluded. The plaintiff would have recovered for money advanced as a loan, when in fact such a transaction never occurred between the parties.
Plaintiff pleaded and relied upon a particular contract, and the defendant was at liberty to prove anything tending to show that the allegations of the complaint were not true. This he could do by showing that there was not any contract whatever entered into, or by showing that the contract actually made was altogether different from the one asserted by the plaintiff, and this, too, even though in doing so he disclosed a contract unenforceable or even void. (Stewart v. Thayer, 170 Mass. 560, 49 N. E. 1020 ; 9 Cyc. 73; 4 Ency. of Pl. & Pr. 941.)
The trial court’s ruling was correct, and the judgment and order are affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Sanner concur.
|
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] |
MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
Action for damages for a personal injury alleged to have been suffered by plaintiff while a passenger upon one of the cars of the defendant street railway company, through the negligence of its agents and servants. The corporation owns and operates a railway, the lines of which traverse certain streets of the city of Butte. One of these lines extends to the village of Meaderville, lying to the northeast. Miners who reside in Butte and are employed in the mines in Meaderville and its vicinity commonly avail themselves of this line in going to and returning from their work. For the accommodation of such as work at night, three cars reach and leave 'the vicinity of the mines at about three o ’clock in the morning. These are known as ‘ ‘ owl ears. ’ ’ Those in use at the time of the accident were open for one-half of their length. Along the sides of the open portions extended footboards for the use of passengers in entering and leaving them. The defendant Wharton is the manager of the railway. On the morning of August 20, 1911, the plaintiff, having finished his shift in the Leonard mine, boarded one of the cars (the first one leaving) for Butte and became a passenger thereon. The complaint alleges, in substance, that the defendants negligently permitted such a number of persons to become passengers on this car that it became greatly crowded; that it became so overloaded that there was not sufficient room inside to accommodate all those seeking passage thereon; that for this reason the plaintiff was compelled to stand on the footboard, and did so with the knowledge and consent of defendants; that the track was so constructed that it was within a distance of less than four feet from a line of telegraph or telephone poles situated on the west side thereof; that, notwithstanding this fact and the fact that it was dangerous to move cars along the track while passengers were standing on the footboards the defendants negligently moved the car upon which the plaintiff was a passenger; that the plaintiff did not know that the track was so constructed that the car would pass near the line of poles; that, while plaintiff was riding on the car, defendants allowed it to become so crowded that plaintiff, being forced to maintain his place thereon by holding to the handhold thereon on the side next to the line of poles, was struck by one of said poles and hurled to the ground; and that when he was struck he was in such a position that he could not see that the ear was so near the poles, whereas the defendants knew, or in the exercise of ordinary care should have known, that the plaintiff was likely to be injured by collision with one of them. The injuries suffered by the plaintiff are described as injuries to his head, right eye, right shoulder, and other portions of his body, resulting in great mental and physical pain and suffering and permanent disability. The answer, after putting in issue the charges of negligence, alleges affirmatively that “the shortest distance between said street-car tracks and said poles was not less than four feet and one inch at any of the times mentioned in the complaint, and that the plaintiff, in the position which he occupied on the said car in question, saw, or could, in the exercise of ordinary care, have seen, each and every one of the poles in said complaint mentioned, and the distance of its position from the said street-car.track, said distance being, as aforesaid, in no case less than four feet and one inch.” There was no replication. When the introduction of evidence by plaintiff was completed, the court sustained a motion for non-suit in favor of defendant Wharton and directed judgment to be entered in his favor. A like motion on behalf of the corporation was denied. The jury returned a verdict in favor of plaintiff for $5,000. From the judgment entered thereon, and from an order denying its motion for a new trial, the corporation has appealed.
1. When the plaintiff offered evidence to sustain the allegations of the complaint, objection was made to its introduction on the ground that the pleadings did not present a triable issue because the new matter alleged in the answer, standing without traverse by reply, constituted a complete defense to the action. The overruling of this objection is assigned as error, and the contention is seriously made that it is fatal to the judgment because the plaintiff, by his admission thus made, established the existence of a state of facts which precluded a recovery. The contention is without merit. The allegation in question, quoted in the statement, following the denial of the charge in the complaint that the track was constructed within a distance of less than four feet from the line of poles, and that the plaintiff did not know that the ears, in moving along the track, would come in such close proximity to them, though affirmative in form, is nothing more than a second traverse of these allegations. It is what may be termed a counter averment, the equivalent of a direct denial. Proof of circumstances tending to show knowledge by the plaintiff of the dangerous conditions, and hence that he was open to the imputation of negligence in assuming a position on the footboard, would have been admissible under the denial; hence affirmative allegations on the subject were neither necessary nor proper, and a reply to them was not required. (Mauldin v. Ball, 5 Mont. 96, 1 Pac. 409; National Wall Paper Co. v. McPherson, 19 Mont. 355, 48 Pac. 550; Rand v. Butte El. Ry. Co., 40 Mont. 398, 107 Pac. 87.)
2. It is argued that the evidence is insufficient to sustain the verdict: (1) In that it fails to show that there was not room inside of the ear to accommodate the plaintiff, and hence that it was necessary for him to stand upon the footboard; (2) in that it does not tend to show that the line of poles was within less than four feet from the line of the track; and (3) in that it does not tend to show that the plaintiff did not know, or could not by the exercise of ordinary care have^ ascertained, this fact. We shall not undertake to set out in detail and analyze the statements of the different witnesses with a view to reconcile them. As is usual in such eases, these statements are not in harmony upon any point with reference to which the defendant makes its contention. The testimony shows that there were some 250 men coming off shift and making ready to take cars into Butte. Of the three cars about due to leave, only one had arrived. Each man was anxious to secure passage upon it; hence there was a rush both for seats and for standing room. Plaintiff was among the last to obtain a place, and, as he testified, all the seats, as well as standing room inside, had then been taken. He obtained a place upon the footboard. The rest of it was quickly filled by those that followed. These crowded him so that he was compelled to hold onto a handhold or one of the posts supporting the roof in order to retain his place. While the car was lighted, he could not see because of the darkness outside, and the crowding of the men who were standing on the footboard, and not knowing of the proximity of the line of poles, and not being warned of this fact, he did not anticipate danger from them. He had traveled over the line before, but had on such occasions occupied a seat inside the ear and had not observed conditions. There was evidence that all of the poles were beyond a distance of four feet from the track. There was also evidence that at least one of them (the one which struck plaintiff) was within a distance of less than four feet. One witness, who had occupied a seat near where plaintiff was standing, testified, in effect, that the plaintiff, having dropped his bucket, made an effort to catch it, and in doing so jumped or fell from the car. This witness stated further that he had warned the men on the footboard to look out for the poles. Another witness testified that, when the plaintiff was found by those who went back to ascertain if he was hurt, he was about midway between two of the poles, which were some seventy-five feet apart. The plaintiff is a foreigner, and, having little knowledge of the English language, cannot understand it when it is spoken.
It may be admitted that the case made by the evidence as a whole is not very satisfactory from any point of view. Yet it presented a case for the jury, and their finding thereon, having been approved by the trial court in denying the motion for a new trial, we must accept as binding upon us, even though we should have reached a different conclusion upon it.
The court proceeded upon the assumption that it was incumbent upon the plaintiff, in order to recover, to show that the particular pole which brushed him from the ear was within four feet of the track, and in the instructions so charged the jury As we have already pointed out, there was evidence tending to establish this fact. While this feature of the case is not discussed in the brief of counsel, we venture the remark that evidence showing that the pole was in such close proximity to the track as to be likely to come in collision with a passenger standing on the footboard and injure him would not have presented such a variance from the allegation in the complaint as to preclude a recovery. (Robinson v. Helena L. & Ry. Co., 38 Mont. 222, 99 Pac. 837.) The purport of the allegation is that the line of poles was within dangerous proximity to the track, and evidence showing this condition would have been sufficient to justify a recovery, even though it were not demonstrated that any one of the poles was actually within the distance alleged.
3. The third contention is that the verdict is contrary to the law as declared in instructions 8 and 9 submitted to the jury. In the former the court advised the jury that, “in order for the plaintiff to recover in the action, it is necessary that he should have established, by a preponderance of all the evidence in the case, that it was dangerous to run ears on the track if they were crowded and passengers were standing on the footboard.”. The latter instruction is in part as follows: “That in order for the plaintiff to recover in this action, he must have established, by a preponderance of all the evidence in the case, that he did not know, and could not, in the exercise of ordinary care, have known, that the said street-car tracks were so constructed that the car upon which the plaintiff was a passenger would come in such close proximity to Said telegraph or telephone poles as set forth in said complaint; and, unless you find that .this has been established by a preponderance of all the evidence in the case, the plaintiff cannot recover in this action.” It is insisted that, under each of these instructions, the jury were bound to find for the defendant because there is no evidence in the case furnishing a basis for the inference that the proximity of the line of poles to the track was a source of danger to one standing upon the footboard, nor tending to show that, if plaintiff did not actually know the conditions, he could not, by the exercise of ordinary care, have gained knowledge of them.
The railway track was the property of the defendant. It was using it for the carrying of passengers. If the proximity of it to the line of poles was a fault in the construction, it was the fault of the defendant. That it was a source of danger to one standing on the footboard is shown by the fact, if it was the fact, that the plaintiff was brushed from his position by one of the poles as the car passed it, and was thus injured. It was a question for the jury, upon the evidence, whether the plaintiff was injured in this way or whether he fell or jumped off in an effort to recover his bucket. It was also a question for the jury whether, under the circumstances disclosed by the evidence, in the exercise of ordinary care for his own safety, the plaintiff must have known that, in assuming a position on the footboard with Others, he was exposing himself to the danger arising from the proximity of the poles. The instructions were both formulated to meet plaintiff’s theory of the ease, and since, as has already been pointed out, the evidence was sufficient to justify a verdict in his favor, it cannot properly be said that the verdict is contrary to the law. (Mette & Kanne Distilling Co. v. Lowrey, 39 Mont. 124, 101 Pac. 966.) A verdict is contrary to the law when the condition of the evidence is such that the jury may not find otherwise than in accordance with the theory of the instructions, and yet have ventured to do so. (Allen v. Bear Creek Coal Co., 43 Mont. 269, 115 Pac. 673.)
4. Complaint is made that the court erred in submitting to the jury instructions 2, 3, and 5. It is said that, while correct as abstract propositions of law, they have no application to the issues involved in this case. Instructions 2 and 3 define generally the duties of carriers of passengers, as they are laid down in sections 5302, 5303, and 5347 of the Revised Codes, with reference to overcrowding of their vehicles, the furnishing of accommodations for passengers, etc. Instruction 5 defines the rights and duties of such carriers when its cars have been permitted to become overcrowded, and declares it negligence on the part of the carrier, if it elects to move its cars while in that condition, to omit any precaution in the management of them which the circumstances require, looking to the safety of the passengers. In our opinion, they were entirely pertinent to the issues in the case and were properly given. If the line of poles was in such dangerous proximity to the track as to constitute them a menace to the safety of passengers whom the agents of the defendant, owing to the want of space inside, permitted to stand on the foot-board, the moving of the cars without properly warning such passengers was culpable negligence.
5. Error is assigned upon the refusal of the court to give requested instructions 12, 13, 15, and 16. Instruction 16 is as follows: “If you believe from a consideration of all the evidence that it has been established by a preponderance thereof that the plaintiff was warned of the danger of standing upon the side board of the said car, and thereafter still continued to occupy the position, and by reason of so occupying said position was hit by the pole and knocked from the said car, and suffered the injury complained of in consequence thereof, then you are instructed that the plaintiff voluntarily assumed the position of danger and had notice of the said danger, or, by the exercise of reasonable care, could have known thereof, and assumed the risk incident to his said position, and cannot recover in this action. ’ ’
To justify a recovery, it was incumbent upon the plaintiff to show, by a preponderance of the evidence, that his injury was the result of the failure, on the part of the defendant, to observe such precautions as the exigencies of the case required. The substance of the charge in the complaint is that defendant moved its cars negligently along the line of poles in dangerous proximity to the track, knowing that the plaintiff and others were standing crowded together on the footboard. Among the precautions which the circumstances required it to observe was to warn them of the possible danger. Whether it or anyone else gave warning (and knowledge from any source in plaintiff would have been effective to relieve the defendant from the imputation of negligence in this behalf) was a question of fact to be resolved by the jury. The burden rested upon the plaintiff, not upon the defendant. So that an equipoise in the evidence would have required a resolution of it in favor of defendant. The evidence offered! by the defendant on this point was defensive merely and not in avoidance. The instruction cast upon it the burden of proof and was therefore not a correct statement of the rule of law applicable. Though it was offered by the defendant, and though defendant could not have complained if it had been given, the court cannot be put in error for having refused it. Instructions 12 and 15 are open to the same objection. The latter would have been an express direction to the jury that, if it appeared from the evidence, by a preponderance thereof, that the plaintiff dropped his bucket and, in order to recover it, jumped from the car and was injured, he could not recover, whereas an equipoise in the evidence on this point would have been sufficient to acquit the defendant.
Instruction No. 13 is as follows: “You are further instructed that if the plaintiff voluntarily got upon the side board of said car after he knew that the said ear was crowded, and that there was no opportunity for him to get inside of the ear and in a position of safety, he thereby assumed the risk of the danger of being hit by the pole, even though the same was not brought to his knowledge or attention, and he cannot recover in this action. ’ ’ This instruction would have required the jury to return a verdict for the defendant, for the plaintiff testified that he took his position on the footboard because the car was crowded and there was no room inside. It is not contributory negligence per se for a person to ride upon a crowded car or upon the platform of such a car; nor is it per se negligence for such person to stand on the footboard of a street-car which is crowded.
In Lobner v. Metropolitan St. Ry. Co., 79 Kan. 811, 21 L. R. A., n. s., 972, 101 Pac. 463, it was said: “The practice of inviting and permitting passengers to ride on the platform of street-cars is so common that it cannot be held, as a matter of law, that a passenger in doing so is guilty of contributory negligence. One who rides on a crowded ear assumes the inconvenience resulting from its crowded condition; but the company is not, for that reason, relieved from responsibility of using due care for the safety of the passengers invited upon the car.”
In San Antonio T. Co. v. Bryant, 30 Tex. Civ. App. 437, 70 S. W. 1015, the court said: “It is not negligence per se for a passenger to stand upon the platform, steps, or running-board of an electric street-car which is crowded; and the weight of authority also supports the rule that it is not contributory negligence, as a matter of law, for a passenger to stand upon the platform of a ear or the running-board, whether there be vacant seats or not in the inside of the car. And whether the passenger be standing upon the platform, running-board, or steps, the question of negligence and contributory negligence is held to be, in the majority of cases, a question for the jury to determine.” Again, in McCaw v. Union T. Co., 205 Pa. 271, 54 Atl. 895, it was said: “If a passenger is permitted to enter a car having no vacant place except on the platforms, and the conductor accepts his fare, he is justified in standing on the platform, if he exercises proper care in doing so; and, by receiving him, the carrier undertakes and gives him assurances that it will take care of him and guard him against accident, as far as the circumstances permit.” The rule thus stated is recognized and applied by the courts quite generally, as appears from the following citations: Geitz v. Railway Co., 72 Wis. 307, 39 N. W. 866; Powers v. City of Boston, 154 Mass. 60, 27 N. E. 995; Lehr v. Railroad Co., 118 N. Y. 556, 23 N. E. 889; Elliott v. Railway Co., 18 R. I. 707, 23 L. R. A. 208, 28 Atl. 338, 31 Atl. 694; Citizens’ St. Ry. Co. v. Hoffbauer, 23 Ind. App. 614, 56 N. E. 54; Seymour v. Citizens’ Ry. Co., 114 Mo. 266, 21 S. W. 739; North Chicago St. Ry. Co. v. Williams, 140 Ill. 275, 29 N. E. 672; Doolittle v. Southern Ry., 62 S. C. 130, 40 S. E. 133; Dunham v. Public Service Corp., 76 N. J. L. 452, 69 Atl. 1012; Anderson v. City Ry. Co., 42 Or. 505, 71 Pac. 659; Joyce on Electric Law, sec. 543. Of course, as was said in Lobner v. Street Ry. Co., supra, a passenger may assume such an obviously dangerous position that he will be held, as a matter of law, to have assumed the hazard of so doing; but the question is generally one for the jury, and not one of law for the court. Since the instruction would have told the jury that the plaintiff assumed the hazard of the position which he had taken upon the footboard, without reference to his knowledge of the conditions, it was erroneous and properly refused.
6. The last contention is that the verdict is excessive, and with this contention we agree. The plaintiff was, at the time of the injury, a strong, healthy man of the age of twenty-one years. The injury occurred on August 20, 1911. He did not call a physician until the following day. At that time he had a contusion on the right side of the head and was suffering somewhat from concussion, as was indicated by an incoherence in his speech. He complained of pains in the lumbar region, but no lesions were visible there. He also complained of pains in his right side, and there were evidences of contusions on that part of his body. No bones were broken. Judging from the testimony of the attending physician, the contusions themselves were not serious and readily yielded to treatment. All objective symptoms had disappeared by the end of six weeks. The most serious result was a traumatic pleurisy which developed in the right side immediately following the accident. This kept the plaintiff confined to his bed for some three or four weeks, during which the visits of the physician continued. Thereafter the plaintiff visited his physician at his office from time to time, until sometime in December,- when the visits ceased altogether. The pleurisy yielded slowly to treatment, and, while the physician expressed the opinion that the after effect of it had not entirely disappeared, he was unwilling 'to express a definite opinion that there was or would be a chronic diseased condition or any permanent disability whatever. A physician who was called by the defendant, but who had made no examination of the plaintiff except a superficial one in the courtroom, testified that, when a chronic condition obtains after such an injury as that sustained by the plaintiff, it is usually tubercular in character. He stated that he did not observe anything in plaintiff’s appearance to indicate any tubercular symptoms, but that, on the contrary, he appeared to be free from disease. The plaintiff testified, in effect, that he still suffered from the hurt and the resulting illness, and that he had not been able to do any work since he received it. When he sent for the attending physician to administer to him, he sent also for an attorney, and notwithstanding the statement of the physician that he was not then fully conscious, owing to the concussion from which he was then suffering, according to his own story he then related to the attorney the facts touching the accident so as to enable the latter to draw the complaint in this case. It was verified by plaintiff five days later, and, though he has only a slight knowledge of the English language, he testified, through the interpreter, that he had examined the complaint without substantial assistance from anyone, and thereupon verified it with a full understanding of the allegations contained in it. The fact that it contains allegations of permanent injury made at a time when neither he nor his physician, as the latter himself admitted, could possibly have foreseen what the probable result would be, arouses a suspicion that his statement of his condition at the time of the trial was, to say the least, very much exaggerated. On the whole, the evidence tends to support the conclusion that the plaintiff, if such is not already the case, will presently be restored to full health. Under the circumstances, we think one-half of the amount of the award of the jury sufficient to compensate him for the injury which he appears to have sustained.
The cause is accordingly remanded to the district court, with direction to grant the defendant a new trial, unless, within thirty days after the remittitur is filed, the plaintiff shall file with the clerk his written consent that the judgment may be reduced to $2,500. If such consent is given, the judgment shall be modified accordingly as of the date of its original entry, and, together with the order denying a new trial, will stand affirmed. That part of the judgment awarding costs in the district court is not to be disturbed. The plaintiff shall recover the costs on appeal.
Mr. Justice Holloway and Mr. Justice Sanner concur.
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
On the evening of November 4,1910, while plaintiff was riding a bicycle along First street, in the city of Kalispell, he ran into an unguarded excavation, was thrown to the ground and injured. He brought this action and recovered a judgment for $3,500. The city has appealed from the judgment and from an order denying it a new trial.
There is presented to us a record of more than eighty pages, which does not contain a single exception reserved by either party. The appellant contends: (a) That the complaint does not state a cause of action; (b) that the evidence-shows that plaintiff was guilty of contributory negligence as a matter of law; and (c) that the verdict is excessive.
1. The complaint is attacked because it fails to state facts exculpating plaintiff from the imputation of contributory negligence which it is claimed necessarily flows from the allegations detailing the facts of the injury. The complaint describes the excavation in the street; charges the city with knowledge and with negligence in failing to provide warning signals and then — to make a brief summary — alleges that while plaintiff was riding, along this street in the night-time, without knowledge of any obstruction, he ran into this excavation, was thrown to the ground and injured.
Counsel for appellant invoke the rule applied in Kennon v. Gilmer, 4 Mont. 433, 2 Pac. 21, Badovinac v. Northern Pac. Ry. Co., 39 Mont. 454, 104 Pac. 543, and Lynes v. Northern Pac. Ry. Co., 43 Mont. 317, Ann. Cas. 1912C, 183, 117 Pac. 81. In each of those cases the plaintiff alleged in his complaint that he jumped from a moving vehicle and sustained the injury of which he complained. This court held in each instance “that where plaintiff’s own act is a proximate cause of his injury, he must allege and prove that in doing the particular act he was moved by those considerations for his own safety which would actuate a reasonably prudent person, similarly situated, to do as he did.” But the rule of those cases has no application here. As pointed out in the recent decision in Hollenback v. Stone & Webster Engineering Corp., 46 Mont. 559, 129 Pac. 1058, the rule above referred to applies only to a complaint which shows affirmatively that the proximate cause of plaintiff’s injury was his own act. This complaint charges that the negligence of the city in leaving the excavation unguarded was the proximate cause of plaintiff’s injury, and for this reason it is not open to the attack made upon it.
2. Does the evidence show contributory negligence on plaintiff’s part as a matter of law? Waiving the question of the city’s right to have this determined under the specifications made, and in the light of the fact that certain exhibits used upon the trial are not before us, and it is therefore extremely difficult to understand much of the evidence, and we have presented about the following facts: Plaintiff and one Anderson, each riding a bicycle, were traveling on First street in Kalispell, going toward the business section of the city a few minutes after 6 o’clock on the evening of November 4, 1910; when they reached the intersection of First street and Second avenue east, Nilson, who was riding a few feet to one side of the center of the street and six or eight feet in advance of Anderson, ran into an excavation from three to six inches deep, made in the street by a contractor for the city in laying a concrete sidewalk; the excavation was unguarded; there was a street light of some character— probably an arc-light — on one corner of the intersection of these streets, but notwithstanding this fact neither plaintiff nor Anderson saw the excavation or knew of its existence until Nilson fell; it was dark; the sun set about 4:58 P. M. on that day and twilight disappeared about 5:30; it was so dark at the point where plaintiff fell that the character of the wounds on his head and face could not be determined until he was removed into the light; the street light was not burning brightly some two hours after the accident; the condition of the street had been the same for some considerable time; the work was being done under contract with the city. There is evidence given on behalf of the city which is in conflict with plaintiff’s version, but the trial court instructed the jury that “in this case, contributory negligence has not been pleaded, nor has there been any evidence offered by the defendant showing or tending to show contributory negligence on the part of the plaintiff and in the absence of any proof to the contrary, you are bound to assume that the plaintiff was using the street as a highway in a proper manner and without negligence, unless the proof offered by him shows that he was himself negligent in the use of the highway. ’ ’ There was no exception saved) to this portion of the charge, and the city is now bound by that theory of the case.
It is no argument at all to say that if plaintiff had traveled in the middle of the street he would not have been injured, for there was a safe driveway about twelve feet wide provided in that part of the street. The most favorable view for appellant which can be entertained under the circumstances is that it was a question for the jury whether the city had exercised reasonable care to keep the street in a condition for use, by providing a safe driveway twelve or fourteen feet wide. (Meisner v. City of Dillon, 29 Mont. 116, 74 Pac. 130.)
The very charge now made by the city that the plaintiff was guilty of contributory negligence presupposes actionable negligence on the city’s part. (Birsch v. Citizens’ Electric Co., 36 Mont. 574, 93 Pac. 940; Wastl v. Montana Union Ry. Co., 24 Mont. 159, 61 Pac. 9.) Of course, if plaintiff’s attention had been attracted to the excavation before he reached it, he probably would not have been'injured; but his attention was not attracted to it, even though he was looking directly ahead when he ran into the excavation and the city failed to display any signals of the danger. While plaintiff could not close his eyes to any obvious danger, he was not required to devote his time and attention to an effort to discover defects in the street. The rule applicable is well stated in McCabe v. City of Butte, 46 Mont. 65, 125 Pac. 133, as follows: “A traveler upon a public street has the right to presume that it is in an ordinarily safe condition, because the law enjoins upon the authorities of the municipality the duty to exercise ordinary diligence to make and keep the streets in a reasonably safe condition for public travel; and when they are rendered unsafe by reason of repairs being made therein, or have become defective or unsafe from any cause, and the authorities have notice of the condition or the circumstances are such as to warrant a presumption of notice, the duty to warn the public by lights or other means, while repairs are made, also arises. The traveler is not bound to make investigations, and he cannot be charged with negligence if he fails to do so.” (See, also, 5 Thompson on Negligence, sec. 6238.)
The instructions fairly presented to the jury the duty imposed upon plaintiff as well as the rights and liabilities of the city. Under the facts and circumstances as thus presented by this defective record, we are entirely unwilling to say that the plaintiff is shown to have been negligent as a matter of law. The best that can be said of the evidence is, that it presents a proper case for the jury. The jurors were the judges of the credibility of plaintiff and his other witnesses. The plaintiff’s story was accepted as true by the jury and by the trial court in passing upon the motion for a new trial. In the absence of anything indicating such inherent improbability in the story as to deny its credibility, we are not disposed to question the truth of his statements. (Lehane v. Butte El. Ry. Co., 37 Mont. 564, 97 Pac. 1038.)
The facts of this ease are not at all similar to those considered in Zvanovich v. Gagnon & Co., 45 Mont. 180, 122 Pac. 272.
3. Finally, appellant insists that the verdict is excessive. We shall not undertake to give even a summary of the evidence. There is not any fixed standard by which to measure the money compensation for a personal injury. In every instance where the elements of pain andi suffering enter into consideration, much must be left to the enlightened judgment and common sense of the jurors. In Bourke v. Butte El. Ry. Co., 33 Mont. 267, 83 Pac. 470, this court said: “However, the elements of physical and mental pain and suffering are entirely uncertain and no fixed standard can be established for ascertaining the damages occasioned by them. The amount must, of necessity, rest in the sound discretion of the jury, and courts are very reluctant to interfere with the verdict upon the ground that it is excessive or insufficient. The parties are entitled to a verdict from the jury, and courts ought not to substitute their judgments for those of juries, except in those exceptional eases where it manifestly appears that the jurors made a mistake in calculation, considered an item or items of damages which should not have been considered or abused that sound discretion which by law is vested in them.” Again, in Hollenback v. Stone & Webster Engineering Corp., above, it was said: “If it is possible from the evidence in this record to account for the amount of the verdict, then this court oug’ht not to interfere. * * * Under the statute, the amount of the verdict must, of necessity, rest in the sound discretion of the jury. The parties are entitled to a verdict from the jury; and it is only in rare instances that the court is justified in interfering, unless the record discloses that the elements of passion and prejudice have influenced the minds of the jurors in arriving at the result.”
At the time of his injury, plaintiff was an able-bodied man, forty-four years of age, with a life expectancy of about twenty-five years. He was apparently a skilled mechanic — a woodworker by occupation — capable of earning, and actually earning, from $160 to $175 per month. For the first nine months after the injury he was under the doctor's care and for six or seven months of that time he was not able to earn anything and for the next eleven months, np to the time of the trial, his earning capacity was reduced more than $100 per month. He incurred doctors’ bills for about $300 and a hospital bill of from $50 to $75. The jury had the opportunity to observe something of plaintiff’s condition at the time of the trial, more than eighteen months after he received his injuries. They heard his story and the testimony of the physicians, and returned a verdict for $3,500. Three-fourths of this amount can be accounted for without taking into consideration plaintiff’s pain, or suffering or his impaired earning capacity after the date of the trial. Under these circumstances it cannot be seriously urged that the verdict is excessive.
The judgment and order are affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Sanner concur.
|
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MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
This is an action for damages for personal injuries sustained by the plaintiff in a collision with one of the electric cars of the defendant railway company upon Higgins avenue bridge, in the city of Missoula, on January 7, 1911. The defendant Miner was the motorman in charge of and operating the car at the time of the accident. The bridge extends across the Missoula river at the foot of Higgins avenue, connecting the city proper with South Missoula. It is 1,023.6 feet in length, and consists of a roadway, 28.90 feet in width, with a footway on either side separated from it by railings. A single car track, four feet in width, lies in the middle of the roadway. Allowing for the overhang of a car when passing over the track, there is left between it and the footway railing on either side a clearance for vehicles, etc., of 10.6 feet. The south end of the bridge is 7.54 feet higher than the north end. From the south the roadway ascends on a grade of about one per cent for a distance of 174 feet, and then descends on substantially the same grade to the north. After a car passing in either direction reaches the highest point, the power is shut off, and it is allowed to drift down the incline, the motorman controlling the speed by means of air brakes. The plaintiff’s home is in South Missoula. On the day of the accident he started from Missoula to go to his home. He was riding a heavy draught horse, weighing about 1,500 pounds, which had on it a light single harness with a blind bridle. He did not have a saddle, but was using a piece of blanket instead. The different parts of the harness were so secured as not to interfere with the horse’s movements. When the plaintiff had reached a point on the bridge about 300 feet from the north end, he observed a car approaching from the opposite direction at a distance of about 300 feet. At the sight of the car, and presumably owing to the noise created by its movement, the horse became restive and attempted to turn and run. The plaintiff struggled to hold it under control, but was not able to subdue it. The result was that it got between the rails as the car was about to pass, and was killed by collision therewith, the plaintiff being thrown to the roadway and seriously injured.
The substantive issue made by the pleadings was whether defendant motorman was guilty of negligence in failing to stop the car in time to avoid the collision, and this negligence was the proximate cause of the injury, the defendants alleging that plaintiff’s own negligence was a contributing cause. The jury found for the plaintiff and assessed his damages at the sum of $4,390. The appeal is from the judgment.
The only question submitted for decision is whether there was any evidence justifying the submission of the case to the jury. The instructions submitted to the jury are not in the record. It is not, therefore, apparent what was the court’s view of the rule of law applicable. The theory of counsel for defendants, as presented in their brief, proceeds upon the assumption that the right of the railway company to the use of the bridge is so far superior to that of another person that when a car is passing over it such other person must give to it the exclusive right of way, or be subject to the imputation of negligence, which will preclude a recovery for any injury which he may sustain from a collision or other accident, unless he can show that the operator of the ear has discovered his presence and has failed, when a condition of peril has intervened, to use such means as are in his power to avoid the accident. They insist that the burden was upon the plaintiff to show (1) that his position of peril was discovered by the motorman, and (2) that the latter was able by the use of ordinary care to avoid the accident. In other words, the plaintiff, first by going upon the bridge when a car was approaching him, and, second, by failing to retire from it when his horse became restive and unmanageable, put himself in the position of a trespasser upon the rights of the company, which, for this reason, owed him no duty other than to use ordinary care to avoid injuring him, after his position of peril was discovered. They thus invoke the rule of the last clear chance, and argue that there is no evidence tending to show, either that the motorman discovered the position of plaintiff, or that, if he did, he failed to use ordinary care to' avoid the collision. Whether the rule is technically applicable to a ease of this kind, we shall not undertake to determine. We do not think plaintiff was guilty of negligence, as a matter of law, either in going upon the bridge, or in remaining on it, though he saw a car approaching. But, accepting the theory of counsel as correct, we nevertheless think the evidence made a case for the jury. It may be summarized, in part, as follows:
The plaintiff had advanced from the north end of the bridge a distance of 300 feet. The horse was a gentle work horse, accustomed to being on the streets when cars were passing. It began to exhibit fright when the car was at a distance of 300 feet away. Passengers upon the car noticed! this fact. At that time it did not appear to be under plaintiff’s control. It was then “prancing” back and forth across the track. From that point on there was no change in the speed of the car, the motor man making no effort to cheek or stop it. It proceeded at the same rate until it struck the horse. One witness, who was a passenger, stated: “I noticed at the time we were going fast across the bridge. * * * We went as fast as we go on Third street going out to the fort, * * * and on Third street they go as high as twenty and twenty-five miles an hour.” This last statement was made by a witness who had theretofore been employed as a motorman by the defendant company. Another witness stated that the plaintiff tried to keep the horse off the track, but that it backed upon it two or three times, and plaintiff could not hold it. This witness testified: “I saw the motor-, man at that time. He did not do anything at all until, I should say, ten seconds; then he threw the current off. He stood there practically paralyzed, it appeared to me, I should say for about ten seconds. I should not say how far the car had gone past the horse before he threw the current. As to my best judgment upon that, he may have gone thirty feet. Eight after he hit the horse he stood still, my recollection is. After he had gone about thirty feet, he threw the handle round like that. At that time he was going at full speed. * * * In my opinion, there was not any lessening of speed from the time I first saw the car at the south end of the bridge until the time that it hit the horse.” This witness observed the accident from the upper floor of a building at the north end of the bridge, 400 or 500 feet distant from the place of the accident, but had a clear view. He stated further that the car was 300 feet away when the horse began to be restive. “As the car drew nearer, the horse became more frightened. * * * The horse backed on the track two or three times, but Singer tried to keep him off. Singer could not hold him.” A rule of the company requires ears to be moved over the bridge, when teams are upon it, at a speed not to exceed six miles an hour, and at such times the ears must be under complete control. At the time of the accident there were four teams upon the bridge.
The motorman in charge of the car stated that he was drifting at the rate of five or six miles an hour, without power; that he had the car under control; that under such circumstances a car could be stopped in about forty feet or the length of the car; that he did not see the horse on the track at all; that he first saw it 300 or 400 feet away; that at a distance of thirty feet the horse began to dance toward the track; that he then used all the emergency appliances to bring the car to a stop; that the horse threw up its head and began to dance toward the track, and was struck by the corner of the car as it was about to pass; that he did not know of anything else he could have done to avoid the collision; that in observing the horse he supposed that when it got right to him it would do like lots of other horses and “shoot past” him. A car allowed to drift from the highest point of the bridge without restraint would go at the rate of twenty or twenty-five miles an hour when within 250 feet of the north end of the bridge. Sometimes, when the bridge was clear, the motorman would make up time in crossing. The ear was of an improved pattern and fitted, with the most approved appliances. The motorman in charge had had an experience of two months, having learned to operate a car within that time. The car struck the horse on the rump with force sufficient to turn it end for end, and threw it off the track into the roadway, killing it. The vestibule of the car was broken in. When the car was finally stopped, it was from 90 to 120 feet beyond the point of collision.
The evidence is voluminous. There is much conflict in the statements of the different witnesses as to the particulars of the incident; but the foregoing statement of it is sufficient to demonstrate that, upon the assumption that plaintiff negligently put himself in a position of peril and remained there, whereas by retreating from the bridge he could have avoided the accident and thus saved himself, there was presented a case for the jury upon the question whether the motorman took such precautions as he ought to avoid the collision, after he discovered plaintiff’s perilous position. The facts bring the case clearly within the rule as applied by this court in Neary v. Northern Pac. Ry. Co., 37 Mont. 461, 19 L. R. A., n. s., 446, 97 Pac. 944, and 41 Mont. 480, 110 Pac. 226. Of course, it was not incumbent upon the motorman to stop the car when he first observed the plaintiff approaching from the north, or even when he observed that the horse was becoming unmanageable. It was nevertheless his duty, when he observed that the horse was likely to carry the plaintiff in front of the car, and therefore into a perilous position, immediately to take such precautions as he could to avoid a collision. The evidence justified a finding that he failed to do so.
The judgment is therefore affirmed.
Affirmed.
Mr. Justice Holloway and Mr. Justice Sanner concur.
|
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MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
The defendant was charged by information by the county attorney of Gallatin county with the crime of gaming, as follows: “That the said Overton Tudor, in the city of Bozeman, in the county of Gallatin, state of Montana, on or about the 1st day of November, A. D. 1911, * * * did then and there willfully and unlawfully carry on, open and cause to be open, conduct and cause to be conducted, operate and run, as owner and proprietor thereof, a certain gambling game, or game of chance, commonly called studhorse poker, then and there played with cards for money, checks and representatives of value, ’ ’ etc. He was found guilty and sentenced to pay a fine of $500 and to undergo imprisonment in the county jail for a term of seven months and until the fine should be paid. This appeal is from the judgment. The cause was submitted upon briefs, without oral argument.
1. The contention is made that the court erred in overruling defendant’s demurrer to the information. The grounds of the demurrer are (1) that the facts alleged do not constitute a public offense, and (2) that they are not stated in ordinary and concise language in such manner as to enable a person of ordinary understanding to know what is intended. Section 8416, Revised Codes, declares: “Any person who carries on, opens or causes to be opened, or who conducts or causes to be conducted, or operates or runs, as principal, agent or employee, any game of * * * studhorse poker * * * or any game of chance played with cards * * * for money, cheeks, etc., is punishable by a fine,” etc. Its purpose is to declare it a crime for any person to open, carry on, or conduct any of the. games enumerated, including those who act for him as his agents or employees, as distinguished from mere players. The charge in the information does not pursue accurately the language employed in the statute; nevertheless the allegation that the defendant did carry on, conduct, and cause to be conducted the game mentioned, is sufficient to charge him with the offense. (State v. Wakely, 43 Mont. 427, 117 Pac. 95.) The expression “as owner and proprietor thereof” does not clearly convey the meaning of the pleader. By the use of it he evidently intended to state definitely the relation of the defendant to the game to be that of principal or chief actor, but its presence does not affect the sufficiency of the charge. It may be rejected as surplusage, because it does not restrict or enlarge the scope or meaning of the information.
Section 9200, Revised Codes, enumerates the objections which may be made by demurrer to the indictment or information. Among them is the one sought to be availed of by the second ground laid in the demurrer here. If it be conceded that the expression in question renders the pleading uncertain or indefinite, the defendant is not in position to take advantage of it because he does not specify the particular ground of his objection. Section 9201 provides that the demurrer “must distinctly specify the grounds of objection to the indictment or information, or it must be disregarded. ’ ’ Section 9208 provides: “When the objections mentioned in section 9200 appear on the face of the indictment or information, they can only be taken by demurrer, except that the objection to the jurisdiction of the court over the subject of the indictment or information, or that the facts stated do not constitute a public offense, may be taken at the trial, under the plea of not guilty, or after the trial, in arrest of judgment.” Section 9157 declares: “No indictment or information is insufficient, nor can the trial, judgment or other proceedings thereon be affected by reason of any defect or imperfection in matter of form which does not tend to the prejudice of a substantial right of the defendant upon its merits,” The purpose of these provisions is to require the defendant to raise all questions touching the form of the charge made against him, not going to the jurisdiction of the court or the sufficiency of the facts, by demurrer, and if he fails to do so, he must be conclusively presumed to have waived them. (People v. Matuszewski, 138 Cal. 533, 71 Pac. 701.)
2. Assignments of error from 2 to 16, inclusive, relate to rulings of the court upon the competency and materiality of evidence sought to be elicited from the state’s witnesses Zimmerman and Kelly, upon cross-examination. Since counsel for defendant, though alleging error in all of these rulings, does not undertake to point out wherein they were prejudicial, we do not think it is incumbent upon us to make a critical detailed examination of them, to determine whether they in fact wrought prejudice. Such examination as we have been able to make, however, without the assistance of either oral or printed argument, leads us to the conclusion that the substantial rights of’ the defendant were not prejudiced.
As in the case of State v. Wakely, supra, the two witnesses upon whose testimony the state relied for conviction were detectives. They were employed by some person or persons residing in Gallatin county to detect violations of the statute prohibiting gaming and other offenses, and to furnish evidence to convict the guilty parties. They testified that they were invited to take part in a game of stud poker which was being carried on by the defendant in the city of Bozeman; the players purchasing checks from him and settling their balances with him at the close of the game. On cross-examination they were questioned as to who employed them; what compensation they received; who paid it; the sources from which they obtained expense money, including the amounts they used in the game; what reports they made to any local officer or citizen; and other similar matters. Upon objection by the county attorney most of these inquiries were excluded; but in so far as it was material as reflecting upon the character of the witnesses or their credibility— it was not material for any other purpose — sufficient of the information sought found its way into the possession of the jury during the course of the cross-examination to enable them to form a clear judgment as to whether the witnesses were entitled to credit. We think the court committed technical error in some of the rulings, but we think substantially all the pertinent facts were brought out. Therefore it does not appear that the defendant suffered prejudice.
3. Contention is made that the court erred in refusing to direct the jury to acquit the defendant because the testimony of Zimmerman and Kelly was unworthy of credit. It is argued that while they were acting under the guise of detectives they were committing unlawful acts, and hence that their testimony -was so far impeached that the court should have disregarded it as of no evidentiary value. This point is disposed of by the discussion in State v. Wakely, supra. The evidence was competent even though the witnesses did act as decoys, taking part in the transaction which itself was criminal; and the cases are numerous in which convictions on this character of evidence have been sustained. (In re Wellcome, 23 Mont. 450, 59 Pac. 445, and eases cited.) Though the defendant and one witness who was present when the game is said to have been played denied that there was any game opened or played, it was for the jury to ascertain the truth from the evidence such as it was.
4. The motion in arrest of judgment was properly denied. The contentions of counsel in this connection are the same as those urged against the action of the court in overruling the demurrer. They have already been disposed of.
5. It is argued that the court committed gross error in delivering its instructions to the jury orally instead of in writing. In considering this subject in State v. Fisher, 23 Mont. 540, 59 Pac. 919, this court held that section 2070, Penal Code of 1895, made it obligatory upon the trial court in a criminal case to deliver its instructions in writing, and the defendant in that case was awarded a new trial because of the failure of the court to observe the requirement of the statute. This section, as amended by the Act approved March 4, 1907 (Laws 1907, Chap. 82), appears in the Revised Codes as section 9271. The provision of the old section touching the mode of instructing the jury was not changed, however, by the amendment. The old section also prohibited comment by the court upon the instructions unless by the consent of the parties. The amended section contains no provision on this subject. It was further held, in effect, in State v. Fisher, that mere silence of the parties was not sufficient to justify the court in disregarding the injunction of the statute, and that nothing short of a formal consent was sufficient. Whether this requirement is to be deemed affected by the omission from the later section of the provision last mentioned, we need not inquire. It is sufficient to say that the necessity to observe the mandate of the statute as construed in State v. Fisher to submit all instructions in writing is, we think, in -the absence of a waiver of the parties, still imperative.
The record in this case, however, is not sufficient to disclose what occurred in the district court. Whether the court delivered the instructions orally or in writing does not appear. True, the instructions found in the record appear under the title, “Oral Instructions of the Court to the Jury.” Otherwise the record is silent. There is no exception or other intimation that the court violated the statute. The only definite information conveyed is by the assignment of counsel in his brief. Under these circumstances, there being no complaint that there is error in any of the instructions as delivered, we are not disposed to reverse the judgment. If counsel in any ease desire this court to review the action of the trial court with reference to any matter occurring during a trial, it is incumbent upon them to cause to appear definitely in the record the facts and circumstances characterizing the action. We cannot act upon bare inferences or statements of counsel for which we can find no substantia] support in the disclosures made by the authenticated record.
The judgment is affirmed'.
Affirmed.
Mr. Justice Holloway and Mr. Justice Sanner concur.
|
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
On March 21, 1913, an action in unlawful detainer was commenced in the district court of Silver Bow county, by the Centennial Brewing Company against O. Rouleau and Louis Tetreault, and such proceedings were had that upon the trial a verdict was returned in favor of plaintiff and against the defendants. Thereupon counsel for plaintiff requested the district court to render judgment upon the verdict in favor of plaintiff and against the defendants, and as a part of the judgment to treble the damages. This request was refused and the court rendered and had entered a jud.gment in favor of the plaintiff for the restoration of the premises in controversy and for damages as found in the verdict and for costs.
In effect, we are asked by the writ of mandate to correct tbe judgment entered by the district court, but such is not the office of the writ. (State ex rel. Montana Central Ry. Co. v. District Court, 32 Mont. 37, 79 Pac. 546.)
Assuming that the circumstances are such that mandamus would issue if the plaintiff in the action in the district court had no other plain, speedy or adequate remedy, we would do a grave injustice to other litigants before this court if we permitted this relator here to invoke the remedy by mandamus to secure an early hearing of its controversy, while others who pursue the remedy by appeal are compelled to wait. Every question sought to be presented in this proceeding can be reviewed by appeal, and the remedy by appeal is plain, speedy and adequate. Under such circumstances mandamus will not lie. (Sec. 7215, Rev. Codes.)
The proceeding is dismissed.
Dismissed.
Mr. Chief Justice Brantly and Mr. Justice Sanner concur.
|
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
In April, 1912, J. T. Burch commenced an action in the justice of the peace court of Gallatin county against R. L. Roberson, to recover upon a money demand. Such proceedings were had that the default of defendant was entered and a judgment rendered for plaintiff. Thereafter the court made and entered an order sustaining a motion of defendant to set aside the judgment, open the default and permit an answer to be interposed. From that order the plaintiff appealed to the district court. The defendant then moved that the pretended appeal be dismissed, upon the ground that the district court did not acquire jurisdiction of the cause, but this motion was denied and over the objections of defendant, the district court proceeded to try the questions presented by the appeal, determined that the justice of' the peace had erred in opening the default, and rendered and caused to be entered a judgment in favor of the plaintiff according to the prayer of his complaint. From that judgment the defendant prosecuted this appeal, and presents the question: Is there any appeal to the district court from an order made by a justice of the peace court? The precise question was determined in State ex rel. Cobban v. District Court, 30 Mont. 93, 75 Pac. 862, where it was held that there is not any appeal from an order of a justice of the peace court granting or refusing a motion to set aside a default, and that the only appeal permitted from a justice of the peace court is an appeal from a judgment. Counsel for respondent in his brief says: “Sec. 7122 of the Codes of Montana provides for an appeal ‘when the justice’s or police court has abused its discretion in setting aside or refusing to set aside a default or judgment. ’ ’ ’ But the language quoted is only a part of the sentence. As it appears in the Codes, the sentence reads: ‘ ‘ There is no appeal from a judgment by default rendered in a justice’s or police court, except on questions of law which appear on the face of the papers or proceedings, and except in cases when the justice’s or police court has abused its discretion in setting aside or refusing to set aside a default or judgment.” When considered in connection with the remaining portion of the section and with section 7121 as amended, the meaning of this sentence is perfectly plain. The appeal in any ease lies only from the judgment, and the district court must try the cause anew as it was tried, or should have been tried, in the justice of the peace court. The scope of the district court’s investigation in any given case is determined, in the first instance, by the character of the judgment from which the appeal is taken. If the judgment was entered by default, ordinarily the district court is limited to questions of law which appear on the face of the papers or proceedings; but if a motion to open the default was made in the justice of the peace court, the question- whether that court abused its discretion in granting or refusing to grant the motion may be tried and determined by the district court. But whatever be the scope of the investigation, the appeal lies only from a judgment. What was said by this court in Maxey v. Cooper, 21 Mont. 456, 54 Pac. 562, State ex rel. Shanahan v. Lindsay, 22 Mont. 398, 56 Pac. 827, State ex rel. Reynolds v. Laurendeau, 27 Mont. 522, 71 Pac. 754, and State ex rel. Beadle v. Smith, 42 Mont. 492, 113 Pac. 294, is to be understood in the light of the fact that there was involved in every one of those eases a judgment by default and an appeal or right of appeal therefrom.
The district court of Gallatin county did not acquire jurisdiction over this cause and should have granted the motion to dismiss the pretended appeal. The further proceedings in that court were coram non judice and void.
The judgment of the district court is reversed and the cause is remanded, with directions to enter an order sustaining the motion to dismiss the pretended appeal from the justice of the peace court.
Reversed and remanded.
Mr. Chief Justice Brantly and Mr. Justice Sanner concur.
|
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MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
Action for damages for personal injuries suffered by plaintiff during the course of his employment by defendant at its sawmill at Hamilton, Ravalli county. The defendant transports its supply of logs to the mill by a railway extending to its forest lands distant therefrom about fifteen miles. The logs are loaded lengthwise on flat cars and are held in place by binding chains. Two chains are used on each ear. One end of the first is passed around the middle of the lower half of the load, and, being drawn tight, is made fast to the other end by means of a finger-link or “toggle” with which the latter is provided. When the chain is adjusted the finger of the finger-link points upward. The length of the chain is such that when it has been secured in place, a portion of it, -consisting of a few links, called the “slack,” hangs loose. The link at the end of the slack is hooked over the end of the finger in order to prevent the ring, which holds the finger in place, from slipping off and releasing the chain. The second chain is passed around the entire load and is secured in the same manner. The load is further secured by stakes along the sides of-the ear. A log train consists usually of fifteen cars. When a train reaches the mill it is placed on a track extending along skidways at the pond, and on an incline toward the pond. When the stakes are removed and the chains released, the logs will generally of their own weight roll from the ears upon the skidways and thence into the pond. The ends of the chains are fastened together on the side from which the unloading is done, because the logs would otherwise carry the chains into the pond. The work of unloading is done by persons who are employed exclusively for that purpose. In unloading a ear, the stakes are removed, the slack end of the chain to be released is unhooked from the finger of the finger-link, and the link is tripped, releasing the chain. The lower chain is released first. The operation of tripping is accomplished by means of a trip chain. This is provided at one end with a hook which the operator hooks into the finger-link in such a way as to enable him by a quick jerk, after removing the slack, to disengage the finger by forcing off the ring, thus allowing the ends of the binding chain to part. The trip chain is of sufficient length to permit the operator to stand beyond the end of the car and out of the course of the logs as they roll from the ear. It sometimes happens that a finger-link becomes jammed or is “grabbed” so that it cannot be tripped by means of the trip chain. The operator then releases the load by cutting one or both of the binding chains on the opposite side of the ear with an implement supplied him for that purpose. It is frequently the case that the operator finds the upper chain lying over the lower in such a way as to prevent the lower from being readily tripped. "When this is so, it is necessary for him to push the upper chain off. This is done by the hand or with a peavy, and ordinarily without trouble or danger. At the time of the accident the plaintiff was engaged in unloading logs from defendant’s cars. He had unhooked the slack from the finger-links of both chains preparatory to tripping them in the usual way and had hooked his trip chain into the finger-link in the lower chain. Finding that the upper chain was in the way, he undertook to push it aside with his •hand. While he was doing this, the finger-link was tripped with the result that the logs in the upper part of the load suddenly rolled upon the skidway, catching and seriously injuring him.
It is alleged in the complaint that the defendant was guilty of negligence, (1) in- so loading the car that the “toggle” of the upper chain was superimposed upon the “toggle” o'f the lower chain, thus causing it to interfere with'the free manipulation of the latter, and (2) in furnishing for use as such upper chain “a chain provided with an unsound, insecure and defective toggle,” thus rendering the unloading of the ear highly dangerous and unsafe. The answer joins issue upon these allegations, and alleges the usual affirmative defenses of contributory negligence, assumption of risk on the part of plaintiff, and negligence of his fellow-servants. The plaintiff had verdict and judgment. The defendant has appealed from the judgment and an order denying its motion for a new trial.
At the close of plaintiff’s evidence, counsel moved the court to take the case from the jury and render judgment for the defendant. One ground of the motion was that the evidence did not tend to show that any act or omission of defendant was a proximate or remote cause of plaintiff’s injury. The overruling of this motion presents the only question which we are required to determine. Though, after the motion was denied, several witnesses were called on behalf of defendant, no one of them deposed to any fact which materially aided plaintiff’s case. Whether, therefore, he made out a case for the jury depends upon his own testimony and that of the witnesses called by him. The evidence of these witnesses is so voluminous that it cannot be quoted at length. The plaintiff had been in the employ of the defendant about three months. He and his principal witness, Biddiscombe, were assigned the duty of unloading the trains as they came in, and this was their only duty. The following excerpts from the testimony are sufficient to show the circumstances of the accident:
The plaintiff testified: “I never loaded the logs and don’t know if I can demonstrate how they are loaded or not. The chains are supposed to be so that you can work one without interference by the other. We take our trip chain the first thing we do and walk in and hook it onto the chain we want to trip. The logs on the car which I was unloading were hanging out and if the car is on an incline, the track being also inclined, the springs come down making the incline considerable. The toggle of the upper chain was on the toggle of the lower chain so as to stop me from tripping the link off; so I went in there and pushed the top chain over. I was reaching up a little and as I pushed it, the jar of it tripped it off. There was nothing to stop the logs and they came loose and the first one hit me and knocked me down. * * * I hooked my trip chain in the bottom chain so I could not trip that one without.moving the top chain from over the top of the toggles, and when I did that it came loose and that is all I remember for a time until I came to. I could not tell from where I stood and reached up to push over the top chain, whether there was any defect in it. * * * They [the chains] were crossed. Being crossed, in the performance of my duty there it was necessary in order for me to trip the load, * * * to push the top chain away further from the toggle of the bottom chain so I could trip it. I was trying to do that when it came loose and the logs tumbled down on me. The toggle of the top chain came loose. When I went in there I went in to trip the bottom chain. I walked in and put my trip chain on the bottom chain and took the slack off the toggles of both chains. The toggle must have come loose because the logs came down and struck me. * * * When I came to, the top chain was tripped and the bottom chain was still holding. * * * When I was hurt I was in my regular employment. While working there I think I was a careful man, as careful as anybody could be. Q. At the time you unloaded these logs or attempted to unload them, could you discover from where you were standing any defects in the toggle? A. I could not discover that defect; no. Q. What defect did you have reference to? A. The finger being short. Q. Mr. Andree, from your knowledge of some three or four months there and what you did and what happened there, what would you say, if anything, was there any defect in the toggle or chain on that load? A. Yes, there was. Q. What would you say it was? A. The finger was short. * * * I found toggles crossed or the chains on each other before the time I was hurt. In such cases it was my duty to uncross them or to go around on the other side of the car and cut the chain. I have cut the chains because we couldn’t unfasten them any other way. * * * We were furnished with appliances for cutting chains when we considered it necessary. There were nippers there that would cut the chains with very little work. I understood that when the logs could not be safely unloaded otherwise, the chains were to be cut. I don’t know that Biddiscombe had any authority over me, any more than that he hired me. I knew when I went in to hook the trip chain I was taking chances. I knew if one of the logs should come down on me it would be liable to kill me or to do me great injury. I knew that all the time. I knew if any mistake or miseue was made in tripping the chain or unloading the logs and one of the logs caught me, I was liable to be all in. * * * There was nothing to prevent me if I saw fit to cut the chain or trip the top chain. I always consulted Biddiscombe before cutting a chain, as he was the foreman. * * * I consider myself a man of intelligence and prudent in the ordinary affairs of life. I went up and put my hand on that toggle and pushed it over without noticing its condition. It was impossible to notice. I never heard of another accident of this sort. I do not know whether, when I turned the o chain over, I brought pressure on it so that it was released. If the logs are hanging in the chain, there is pressure on the chain. That is what holds the finger of the toggle and link in position. Yes, I said the chains were one over the other. When I went to release them I could not trip the lower chain until the upper chain was moved. They were crossed right over the toggle. I didn’t try to trip the lower chain first. I could tell by looking at it. I have seen both men that worked it before me unloading logs in the same condition that was in. I do not know how long the chain was. There must have been some pressure against the chain that I pushed over, because as soon as I did the logs fell on me. I had had sufficient experiences of the toggle coming in that shape, that is, one over the other. It was not an unusual condition. I have observed the loading of these cars in the .woods. You could not tell whether they come into the yard in the same condition in- which they are loaded. You would have to follow them down to tell about that. I have seen them loaded in the woods practically* in the same way as they loaded these loads. * * * It was not an unusual thing for cars to come in with the logs on them in the same condition that these were. I want to modify my statement: it was not an extraordinary happening. We might get one car like that in two or three days; get another car in a train of fifteen or twenty cars; get another one on a train to-day and one tomorrow, and may be not another for a week. I had occasion to see them quite often, but that was not the way they generally loaded them in the woods. Q. Then you consider that the condition of the ear was due to a fault in the loading of the car; the condition of the chains which caused one chain to be imposed upon another? A. Yes, sir; I considered that to be the real cause of my injury. If the loading had not been defective, the chains would not have been crossed. I thought at the time, and think yet, that the chains were put that way at the time the logs were loaded, and I can see the condition in which they were. ® * * Yes, I moved that chain with my hand intentionally and deliberately, knowing if anything happened to it I would get my body crushed or maybe killed. I knew if it came loose I was liable to be killed. I could have gone to the other side of the car and cut the chains. Our method of work ing was to fasten the trip chain and get the other end of it and in that way get out of danger’s way. If I put a trip chain on it and walked out to the end of it and tripped the toggle, I wouldn’t be taking any chances.” In another place in his testimony he said: “I did not know at the time it was possible for a finger to come off that way, the way it did, before it did. That was the first time I ever saw it done, a link to come off the finger in that particular way. * * * I walk in and hook this trip chain in and then take the slack off those chains, off the fingers, both of them. There is the slack of each chain, on the bottom and top chain both; and when I took them off I could see that the finger on the link of the lower toggle could not be tripped on account of a toggle on the upper chain being in the way of it; so I just took it and pushed it over a little bit, and that’s the last I remember of for the time being. ”
The witness Biddiscombe testified: “I was supposed to be foreman there, I guess, and just one man with me. While Mr. Andree was employed there he could bave cut the chain without my telling him. I told him not to cut any unless it was absolutely necessary to cut them. I considered it absolutely necessary when the chains were grabbed or caught on the ear, when the finger catches so there is no way to get the finger off the link, either that or grabbed, just the two conditions. * * * There is no danger in going in and pushing a toggle over so you can trip the chain if everything is all right. The trip chain should be put on the bottom chain first. If the toggle or upper chain is in the proper condition there would be no danger in pushing it over. I have done it thousands of times with my peavy. * * # There would be no danger in shifting that over at all. It could not well be unless the finger is short, to shove that over with his hand, and if that was a short finger a man’s hand slipping it over, that would probably make it come loose. Nothing else could happen in shoving it over; the link would have to slip off the chain. * * * A man standing on the ground or skidway for the purpose of hooking the trip chain would' stand with his head — if he was a man of ordinary height — about even with the bunker of the car, and of course the toggles of the chains would be higher up than his head. The upper and lower toggle are generally about opposite each other. * * * It would be no trick at all for me to see it. The logging train comes down ten or fifteen miles, and the jostling of the train and the slipping of the logs would have a tendency to loosen the toggle before the train got to the pond if the finger was a short one. * * * When a man takes the chain off it will stay in the same position until he goes to push it over or move it, and then it flies up. If I were going to push one of the toggles off the other I would grab it and put my thumb over the link and keep the link from slipping off the finger of the toggles. I would do that as an act of caution. * * * A man standing on the skidway and pushing one toggle off the other would push upwards. If a man were to push upwards on the toggle he would be doing a careless and improper thing. I don’t know what he would want to do that for. * * * For cutting chains when it became necessary, we had a pair of chain cutters. They were there on that occasion. There was nothing unusual or extraordinary about the chains being crossed. It was not uncommon ; it was a common thing. Andree must have known that, as he worked his shift night about with me. His opportunities for knowing were just the same as mine. I don’t remember ever cutting a chain under any conditions other than they were grabbed and when they caught in the bottom of the car. I think I told Andree not to cut any more chains than he could possibly help; not any more than was necessary. * * * I do not know what was the condition of the toggle of the particular chain which came unloosed when Andree was hurt. I didn’t observe it before the accident.”
The witness Rooney, who had theretofore been employed by the defendant to unload cars, testified: “A person could not tell by looking at it when the logs came down in that way, whether the toggle was proper or not. When the chain is taken off, as a rule the link remains in the same condition until there is some jar of some kind which may move it around. The fact of the moving of the train might have some effect on the links moved up or down, that would depend upon the strain upon the logs and the chain. When the chain is taken off and the toggle receives a jar, that would cause the link to slip up. When you have a proper toggle it requires quite a force to unsnap or trip it. The links in the trip chain are about one-quarter inch in size. I have used force enough in tripping the toggles to break the trip chain. * * * It was possible for a toggle to become defective on the way down from the woods. It might be in good condition when 'the train started with the logs and by the time it reached the pond it might be in bad shape. * * * During the time I was working there, toggles became defective. They would go on the works [to the woods?] in good condition and become defective in loading, hauling and unloading logs. * * * If a man left the slack of the chain on there while he was removing the upper toggle from the lower one, he would be taking less chances than if he undertook to move it after the chain had been removed.”
The chain in question was not exhibited to the jury. It was not examined by any witness after the accident occurred. For demonstrative purposes there were exhibited to the jury two other chains. The witness Rooney was questioned with reference to one of these, as follows: “Q. Referring to the toggle presented in court by the plaintiff, but which has not been introduced in evidence, I will get you to tell the jury what is the matter, if anything, with that toggle as it now presents itself to you? A. The toggle might be all right enough, but the strain coming down there might bend that. Q. So a short toggle is due to the fact that a strain has been placed upon the finger at or near the bend, which has increased there and thereupon the finger has become shorter? A. Yes, sir. Q. Now, then, Mr. Rooney, I will get you to tell the jury whether or not that bent condition of the finger is not apparent to any log unloader when he approaches the load of logs? A. If he examined it close it might. Q. Would it not be apparent without close inspection? A. Not necessarily. Q. You know that it is bent out of shape now? A. Yes. Q. You knew that when you saw it? A. By examining it closely. Q. Does it require any closer inspection than now, say three feet distant? A. No.”
These excerpts include all the evidence tending to show the cause of the accident. Taking it at its utmost probative value, it does not tend to show that plaintiff’s injury was due to any omission of duty by the defendant, rather than to the negligence of plaintiff himself. Neither the plaintiff nor Biddiscombe observed the condition of the chain before or after the accident. 'While both ventured the opinion that the accident would not have occurred if the finger had not been too short, neither had any knowlege that such was the case. Let it be assumed that, in view of their experience in that kind of work, their opinions are entitled to some weight as tending to show that the link was defective, that the accident would not have occurred but for the existence of the defect, and that in the absence of evidence pointing to another efficient cause, a case would be made which would call for explanation by the defendant, under the rule as stated in Callahan v. Chicago etc. Ry. Co., ante, p. 401, 133 Pac. 687, nevertheless the circumstances furnish the basis for an inference equally as conclusive that plaintiff brought the injury upon himself by his own negligence. If it be conceded that the loading had been negligently done because the upper chain was superimposed upon the lower, this was observed by the plaintiff, and if this added to the danger, he was made fully aware of the fact and should have conducted himself accordingly. His experience because of which he was willing to express his opinion that the finger was defective should have guided his conduct with reference to this condition. Though because of his position on the ground he was compelled to reach upward, with the necessary result that the force applied to move the upper chain would also tend to move the ring off the finger and) thus release it, he first unhooked the slack when there was no occasion to do so, and without the least attention to the condition of the link proceeded to move the chain by pushing it. This, to quote the words of Biddiscombe, was “a very careless and improper thing.” According to the testimony of this witness and that of Rooney, the plaintiff should, as a precaution to prevent just what occurred, have left the slack-guard in place, or, at least, have held the ring with his thumb until he had accomplished the removal of the chain. So that, assuming that the finger was short because it had become bent, it cannot be inferred from the circumstances attending the accident that it was due wholly to the condition of the finger-link, rather than to plaintiff’s own negligence as the sole, or at least a contributing, cause. In other words, the answer to the question whether the injury was due either to the negligence of the defendant in loading the car or the defect in the link, or to both, or, on the other hand, to the careless conduct of the plaintiff in manipulating the chain, is left to rest entirely in conjecture. Upon this condition of the evidence a verdict for the plaintiff cannot stand, because it fails to show a direct causal connection between the negligence alleged and the injury, in the sense in which the rule of law applicable requires. “The nonexistence of a legal connection between the negligence and the injury is predicable whenever, for aught that appears, the accident might have happened even if the defects in question had not existed, or if the precautions which were omitted had been taken. The master cannot be held liable if his negligence was merely a condition as opposed to the efficient cause of the injury.” (2 Labatt on Master and Servant, sec. 803.)
In Patton v. Texas & Pac. Ry. Co., 179 U. S. 658, 45 L. Ed. 361, 21 Sup. Ct. Rep. 275, the rule applicable here is stated, as follows: “And where the testimony leaves the matter uncertain, and shows that any one of half a dozen things may have brought about the injury, for some of which the employer is responsible, and for some of which he is not, it is not for the jury to guess between these half a dozen causes and find that the negligence of the employer was the real cause, when there is no satisfactory foundation for that conclusion. If the employee is unable to adduce sufficient evidence to show negligence on the part of the employer, it is only one of the many cases in which the plaintiff fails in his testimony, and no mere sympathy for the unfortunate victim of an accident justifies any departure from settled rules of proof resting upon all plaintiffs.” This passage was quoted by this court with approval in Shaw v. New Year Gold Min. Co., 31 Mont. 138, 147, 77 Pac. 515; and the rule as stated was therein approved. (See, also, Monson v. La France Copper Co., 39 Mont. 50, 133 Am. St. Rep. 549, 101 Pac. 243; Olson v. Montana Ore Pur. Co., 35 Mont. 400, 89 Pac. 731; Winnecott v. Orman, 39 Mont. 339, 102 Pac. 570.)
It is sufficient to make out a prima facie case if the plaintiff can show that the injury is more naturally to be attributed to the negligence alleged than to any other cause (Griffin v. Boston & Albany Ry. Co., 148 Mass. 143, 12 Am. St. Rep. 526, 1 L. R. A. 698, 19 N. E. 166); yet this requirement is not met if the evidence leaves it doubtful whether the injury may not with equal propriety be attributed to one Or more causes other than that alleged. We have so far assumed that the position of the chains upon the car and the condition of the link point to negligence on the part of defendant. When we view the evidence as a whole, however, it is doubtful whether the condition of the chains was not the result of a shifting of the load producéd by the jar incident to the movement of the car during the haul to the mill. If this was the fact — and it was not an unusual occurrence for cars to be found in that condition upon their arrival at the mill — it is fair to conclude that the increased peril thus brought about was one of the ordinary risks of the employment which the plaintiff was hired to assume. From this point of view, the defendant was not chargeable with negligence because of the defect in the link, unless it owed the duty of having the cars inspected before the unloading began. It is a fair inference that this was a part of plaintiff’s duties. If it was not, the omission hy defendant to have the inspection made by others is not the negligence alleged as the ground of recovery in this case. The motion for nonsuit should have been granted.
The judgment and order are reversed and the cause is remanded for a new trial.
Reversed and remanded.
Mr. Justice Holloway and Mr. Justice Sanner concur.
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] |
MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
This is an appeal by defendant from a judgment awarding to the relator a peremptory writ of mandate commanding defendant to reinstate him in the office of policeman of the city of Butte, from which he alleged he was unlawfully removed by Charles P. Nevin, the predecessor of defendant. The statement of facts out of which the controversy grew may be found by reference to the opinion in State ex rel. Rowling v. District Court, 41 Mont. 532, 110 Pac. 86. The relator herein was not a party to that proceeding nor to another which resulted in a final determination that the relators therein were entitled to be restored to active duty. (State ex rel. Rowling v. City of Butte, 43 Mont. 331, 117 Pac. 604.) When by the final judgment entered in the latter proceeding a peremptory writ of mandate was awarded, the defendant, who had in the meantime succeeded Mayor Nevin, reinstated the relators in their offices and restored them to active duty. The relator herein had theretofore made repeated demand upon Mayor Nevin for reinstatement, but the demand had as often been refused. When the defendant made the order of reinstatement in obedience to the writ, the relator herein demanded that he also be reinstated. The demand was refused. Thereupon this proceeding was commenced. Referring to the statement in State ex rel. Rowling v. District Court, 41 Mont. 532, 110 Pac. 86, supra, it will be noted that the relator received his permanent appointment from Mayor Corby, the predecessor of Mayor Nevin, after undergoing examination and performing probationary service as required by the Metropolitan Police Law (Rev. Codes, secs. 3304-3312), and that he was one of the members of the police force peremptorily discharged by Mayor Nevin on December 18, 1909, and restored by him to active duty and retired to the eligible list without pay on April 28, 1910. Counsel for defendant base their contention that the district court erred in awarding the writ, on two grounds, viz.: (1) That it affirmatively appears that the relator was guilty of laches in failing to apply for relief until the lapse of more than one year after his removal; and (2) that it is not shown by the evidence that he took and subscribed the oath of office required by law within ten days after he received his permanent appointment from Mayor Corby.
In support of their first contention counsel rely upon the rule that those who would avail themselves of the assistance of the writ of mandamus must be prompt in demanding the enforcement of their rights, or they will be held to be barred by laches. The rule invoked by counsel has heretofore been recognized and enforced by this court. (Territory ex rel. Tanner v. Potts, 3 Mont. 364; State ex rel. Beach v. District Court, 29 Mont. 265, 74 Pac. 498.) The word “action,” as used in the provisions of the Revised Codes relating to the time of commencing actions, is to be construed, when necessary, as including special proceedings of a civil nature (Rev. Codes, sec. 6476). An application for mandamus is classed as a special proceeding of a civil nature (Part III, Title I, Chap. II). The only limitation applicable to such proceedings is found in section 6451, which is a general provision applicable to all actions for which special provision is not otherwise made. It was pointed out in State ex rel. Bailey v. Edwards, 40 Mont. 313, 106 Pac. 703, that notwithstanding this provision, the courts may, in their discretion, deny relief when there has been a long delay in applying for it, in the absence of excuse or explanation. It was held that the propriety of granting relief in any case will be determined, not merely by the lapse of time permitted by the relator before making his application, but that the writ will go unless the delay has resulted in prejudice to the rights of the adverse party or the relief sought depends upon doubtful and disputed questions of fact. Accordingly, though the application in that case had been delayed for about ten months, in the expectation that the final judgment in the case of State ex rel. Quintin v. Edwards, 40 Mont. 287, 20 Ann. Cas. 239, 106 Pac. 695, would settle and determine the question of law upon which the relator’s rights 'depended, the writ was allowed to go. In this case the following facts are shown as excusatory of relator’s delay: Mayor Nevin discharged him, with thirteen others, from the force at the same time. The others at once instituted proceedings to secure their reinstatement. The relator, acting upon the assumption that these proceedings would determine the controverted questions of law involved, notified Mr. Nevin that he would not acquiesce in his removal, and that he would hold himself in readiness to be restored to active service in case it was determined that Mr. Nevin’s action was illegal. When it was finally determined that Mayor Nevin was without authority to reduce the force by summary removals therefrom (State ex rel. Rowling v. Mayor of the City of Butte, 43 Mont. 331, 117 Pac. 604), the relator demanded of the defendant, who had in the meantime succeeded to the office of mayor, that he be reinstated. The defendant refused the demand. The order reinstating the other members of the force was made May 31, 1911. This proceeding was brought on June 15. These facts are not disputed. Under the circumstances we do not think the district court abused its discretion in holding that the relator was not open to the imputation of laches, though he delayed his application for relief from April 28, 1910, the date of his final removal, to June 15, 1911, a period of more than thirteen months. The institution of proceedings at any earlier date would not have hastened the settlement of the controversy as to the correctness of the action of Mayor Nevin in the first instance, or his power to reduce the force without authority from the city council. The contention of counsel is therefore overruled.
In the Bevised Codes we find these provisions:
"Sec. 3234. Each officer of a city or town must take the oath of office, and such as may be required to give bonds, file the same, duly approved, within ten days after receiving notice of his election or appointment; or, if no notice be received, then on or before the date fixed for the assumption by him of the duties of the office to which he may have been elected or appointed; but if anyone, either elected or appointed to' office, fails for ten days to qualify as required by law, or enter upon his duties at the time fixed by law, then such office becomes vacant. * * *
“Sec. 3248. Before entering upon office all officers elected or appointed must take and subscribe the constitutional oath of office.”
It is alleged in the affidavit for the writ that the relator duly qualified as required by these provisions, both upon his appointment for the probationary term andl upon his permanent appointment. These allegations are denied by the defendant. The evidence shows that the relator qualified regularly as a member of the police force upon entering upon the probationary term, but does not show that he again qualified when he received his permanent appointment. "When questioned on this point he stated that he did not remember whether or not he had qualified, and the fact that he did so was not made to appear from the files in the clerk’s office. The contention of counsel for defendant proceeds upon the assumption that the burden was upon the relator to show his title to the office, and that since he thus failed to show that he had qualified in conformity with the provisions of the statute, the presumption must obtain that the office became vacant at the expiration of ten days after his permanent appointment. Giving to section 3234, supra, the force and effect which the legislature evidently intended it should have, we think that it should be construed to mean that the failure of the person elected or appointed to office to qualify within the time prescribed creates a vacancy in the office which may be filled by the appointing power. The courts are somewhat-at variance in the construction of such statutes (Throop on Public Officers, sec. 173; 29 Cyc. 1388) ; but it seems to us inconceivable that when an office “becomes vacant,” it may still be regarded as being occupied by a legal incumbent. The office of relator, therefore, must be deemed to have become vacant by his failure to take and subscribe the official oath as required by the statute, unless the taking of the official oath at the time of his appointment for the probationary term was sufficient.
Section 3 of the Metropolitan Police Law (Rev. Codes, sec. 3306) provides that all members of the police force shall first be appointed for a probationary term of six months, and there upon the mayor may appoint them to hold during good behavior or until by age or disease they become permanently incapacitated. Section 4 (sec. 3307) provides for the establishment of an examining and trial board. Section 5 (sec. 3308) requires all applicants to take an .examination as to their legal, mental, moral and physical qualifications and ability to fill the position of member of the force. It then provides that no member shall be removed except upon charges preferred and after a trial by the examining and trial board. There is not anywhere in the statute any distinction made as to the official character of those serving as probationers and those serving under permanent appointment. Nor is there any special method provided for the removal of those members who are serving as probationers. Both alike seem to be regarded as members of the force. At the time the legislation was enacted, men who served as policemen were frequently appointed to service by the mayor and council without reference to their qualifications, except as to their party affiliations, very frequently those who were most ready to act as political agents of the city administration being given preference. They were expected to attend caucuses, primaries and conventions and to work at the polls at election time — not so much to preserve order as to influence voters in favor of the administration candidates and measures. For this reason with every change of administration there was a change of the personnel of the force in order to reward the partisans of the prevailing party or faction for their faithful and efficient service as political agents, rather than as guardians of the peace and safety of the citizen. Under these conditions inefficient service and corrupt practices were the rule rather than the exception. The purpose of the legislature in enacting the legislation was to remedy this condition by removing the police force as far as possible from the control of partisan political influences by putting it under civil service rules, and thus raise the standard of efficiency. (State ex rel. Quintin v. Edwards, supra.) While the language of section 3 seems to imply discretionary power in the mayor to appoint probationers to permanent service or otherwise to consider their places vacant when this term is completed, yet when we keep steadily in view the purpose sought to be accomplished by the legislation, this cannot be its meaning. If this section should be so construed, the result would be that the necessity for the creation of an effective, permanent force would depend entirely upon the personal views of him who happens at any time to occupy the office of mayor, and his partisan preferences could be exercised without restraint except that he would be compelled' to appoint the probationers from the eligible list provided for in section 7. In view of the purpose sought to be accomplished, we think it was the intention of the legislature to make it obligatory upon the mayor to appoint each probationer to permanent service at the expiration of six months, unless during this period he has demonstrated his lack of fitness for such service, and that, being a member of the force, he may not be removed except upon charges made and trial had before the examining and trial board as in other cases, under the provisions found in sections 5 and 6 (secs. 3308, 3309). This conclusion seems necessary in view of the fact that those appointed to probationary service are deemed to be members of the force and that no other method is provided by which they may be removed from it. The permanent appointment, therefore, is nothing more nor less than a confirmation of the original appointment, and does not mark the beginning of a new term of service by the appointee as though he had been appointed for another term or to another office. In other words, the appointee has fulfilled the conditions attached to his probationary appointment, viz.: the rendering of efficient service for the period of six months, and is, by operation of law speaking through the mayor, continued in the same office. It was therefore not necessary for the relator, upon receiving his permanent appointment, to qualify by again taking and subscribing the official oath.
We know of no authority directly in point; but it has, we believe, been the uniform practice in this state since its foundation for the lieutenant governor, when he has succeeded to the office of governor, temporarily or for an unexpired term, to enter upon the discharge of his duties without taking a new oath. Indeed, such an act would be an idle ceremony, since in contemplation of the Constitution the qualification for the office for which he is elected is a qualification for the office of governor to which, upon certain conditions, he may by operation of law succeed. (Opinion of Justices, 70 Me. 593.) The practice, we think, should control here.
The judgment is affirmed.
Affirmed.
Mr. Justice Holloway and Mr. Justice Sanner concur.
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
Prior to October 1, 1891, Lee Mantle, Charles S. Warren, W. McC. White, and L. C. White were copartners doing business in Silver Bow county as W. McC. White & Co. On October 19, 1891, the partners executed an instrument in writing, as follows:
“On the first day of October, A. D. 1891, the firm of W. McC. White & Co. was dissolved by mutual consent, Lee Mantle and Charles S. Warren retiring therefrom. In settlement made, Lee Mantle and Charles S. Warren have paid jointly V9 of the net liabilities of the firm less credits to their accounts; the balance paid amounting to $1,487.59. Said Mantle and Warren shall receive 4/7 of an undivided % interest in the Montana Avenue Addition; also 4/7 of an undivided 118% acres in the south % of the S. W. % of section 29 and the north % of see. 32, T. 3 N. E. 7 W., same being subject to a mortgage from McC. White et al. to Frederick Cook and James O’Brien which is offset by a mortgage E. A. Macrum to W. McC. White et al.; also 4/7 of $625.00 and 2 yrs. int. on same due July 15, 1892; also 4/9 undivided interest in the Bottle Placer comprising the N. E. of see. 25 %, same being subject to the proportion of pledged payment of $1,000 in the event of sale thereof; also 4/9 interest in $500 note of W. K. Quarles, 4/9 of 30 shares stock Security Abstract Co., 4/9 of 500 shares stock Butte Sewer Pipe & Tile Co., & 4/9 of $100 bond of the Silver Bow Club.”
Some time in 1908 this suit was commenced by Mantle, as the successor of the Mantle and Warren interests, to have McC. White declared to be a trustee of certain of the' properties originally held by the copartnership, and for an accounting. It is alleged that at the time of the dissolution it was agreed by Mantle and Warren, on the one hand, and McC. White, on the other, that the record title to the Mantle and Warren interests should be held by White in trust for the use and benefit of Mantle and Warren, and that White should upon demand convey the property to Mantle and Warren, or to such person or persons as they might nominate. The assignment of the Warren interest and a demand upon and refusal by the defendant are then pleaded, followed by the prayer. Defendant White in his answer sets forth a copy of the writing of October 19, 1891; he denies the creation of any trust and alleges, as affirmative defenses, (1) the substitution of a new agreement by which all the property rights of the members of the copartnership were determined and a complete adjustment and settlement made, and (2) lie pleads the bar of the statutes of limitation. Issues were joined upon the affirmative allegations of the answer, and a trial to the court without a jury had, which resulted in findings and judgment in favor of the plaintiff. From that judgment and-'an order denying him a new trial, the defendant appealed.
There are some twenty-eight findings of fact and nine separate conclusions of law by the trial court, but they are all made to hinge upon the determination of a single question raised by the lower court’s first conclusion of law, which reads as follows: “That by operation of the written agreement of October 19, 1891, admitted in the pleadings, the defendant became the trustee of an express trust of the property, real and personal, mentioned in said agreement and allotted to the plaintiff and Chas. S. Warren.” Did this memorandum constitute White a trustee of an express trust in favor of Mantle and Warren? If it had been executed since the adoption of our Codes in 1895, it is very clear that it would not have the effect attributed to it by the trial court, for it fails altogether to meet the requirements of the rules which the Codes prescribe. The Codes declare: “A trust is either (1) voluntary; or (2) involuntary.” (Rev. Codes, sec. 5364.) “A voluntary trust is an obligation arising out of a personal confidence reposed in and voluntarily accepted by one for the benefit of another.” (Sec. 5365.) “An involuntary trust is one which is created by operation of law.” (Sec. 5366.) “The person whose confidence creates the trust is called the trustor; the person in whom the confidence is reposed is called the trustee; and the person for whose benefit the trust is created is called the beneficiary.” (Sec. 5367.) “Subject to the provisions of section 4537, a voluntary trust is created, as to the trustor and beneficiary, by any words or acts of the trustor, indicating with reasonable certainty: (1) An intention on the part of the trustor to create a trust; and (2) the subject, purpose and beneficiary of the trust.” (Sec. 5370.) “Subject to the provisions of section 4537, a voluntary trust is created, as to the trustee, by any words or acts of. his indicating, with reasonable certainty: (1) His acceptance of the trust, or his ae knowledgment, made upon sufficient consideration, of its existence; and (2) the subject, purpose and beneficiary of the trust.” (Sec. 5371.) “No trust in relation to real property is valid unless created or declared: (1) By a written instrument, subscribed by the trustee or by his agent thereto authorized by writing; (2) by the instrument under which the trustee claims the estate affected; or (3) by operation of law.” (Sec. 4537.)
At the time the writing was executed, section 217, Fifth Division, Compiled Statutes of 1887, was in force. So far as applicable that section provides: “No * * * trust * * * concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered, or declared, unless by act or operation of law, or by deed or conveyance in writing subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or by his lawful agent thereunto authorized by writing.” A review of the authorities will disclose that, so far as applicable to the facts of this case, no appreciable change in the rules of law was wrought by the adoption of our Codes. Indeed, it was the general purpose of the Codes to crystallize in concrete form the rules of law as they already existed.
After referring to the rule under the statute of frauds requiring a trust concerning real estate to be created, manifested or proved by writing, the author of the article on Trusts, in 39 Cyc. 57, says: “While it is essential to the creation of a trust that there be an explicit declaration of trust, or circumstances which show beyond reasonable doubt that a trust was intended to be created, no formal, technical, or particular words are necessary, but it is sufficient if an intention to create a trust and the subject matter, purpose and beneficiary are stated with reasonable certainty. Indeed, the use or nonuse of the technical words ‘trust’ and ‘trustee’ is not controlling, although it will be given weight, it being held that their absence does not prevent a declaration of trust from being sufficient, and that their use is not of itself sufficient to create a trust. Where no intent to create a trust appears, none will be held to exist, regardless of the form of words used.” The same doctrine is stated in 28 American and English Encyclopedia of Law, second edition, 879, as follows: “The statute requires that the written evidence, although it need not be expressed in formal or technical language, must be sufficient to establish the whole trust; not only' that there is a trust, but what it is. It should identify the property or interests to which the trust relates, or should afford means by which that identity may be made certain, and it should disclose the terms of the trust.”
In 1 Beach on Trusts and Trustees, section 40, it is said: “But while no form of words is prescribed, or is essential, the instrument by. which the creation of a trust is manifested must be properly executed, and it must set forth with sufficient clearness and definiteness the intention to create a trust. The writing must show, not only that a trust of legal estate was created, but it must indicate also the nature and terms of the trust.”
In 1 Perry on Trusts and Trustees, section 82, the same rules are stated as follows: “Any agreement or contract in writing, made by a person having the power of disposal over property, whereby such person agrees or directs that a particular parcel of property or a certain fund shall be held or dealt with in a particular maimer for the benefit of another, in a court of equity raises a trust in favor of such other person against the person making such agreement, or any other person claiming under him voluntarily or with notice; and the statute of frauds will be satisfied if the trust can be manifested or proved by any subsequent acknowledgment by the trustee, as by an express declaration, or any memorandum to that effect, or by a letter under his hand, or by his answer in chancery, or by his affidavit, or by a recital in a bond or deed, or by a pamphlet written by the trustees, or by an entry in a bank deposit book; in short, by any writing by which the fiduciary relation between the parties and its terms can be clearly read.”
In Flint on Trusts and Trustees, section 34, it is said: “No particular expressions are necessary to create a trust; any language clearly showing the settler’s intention is sufficient if the objects, property, and the disposition of it are definitely stated; and the statute will be satisfied if the trust can be manifested or proved by any subsequent acknowledgment by the trustee, as by an express declaration by him, or any memorandum to that effect, or a letter by him, or his answer in equity, or his affidavit, or a recital in a bond, or deed, or pamphlet, by the trustee; finally by any writing showing the fiduciary relation of the parties and the conditions of it. ”
Tested by these general rules which were in force at the time the writing of October 19, 1891, was executed, or by the rules prescribed by the Code, and the result is the same. There is not the slightest indication in the writing that Mantle and Warren, or either of them, intended to create a trust. Neither is there any intimation by White that he was accepting a trust or acknowledging the existence of one. And it certainly cannot be insisted that this writing reveals the purpose for which this trust was created, if created at all. No one would have the temerity to say that this writing discloses upon its face that White was to make any disposition of the Mantle and Warren interests. The fair, reasonable construction to be given to the language employed in the writing would tend rather to establish that it was the purpose of all the parties to dissolve whatever relationship of trust or confidence existed by virtue of the partnership, and to reduce the parties to the condition of strangers dealing with each other at arm’s length.
It will not do for respondent to urge his suggestion that, if the evidence fails to establish an express trust, it may be sufficient to constitute the transaction a constructive or resulting trust. There is not anything in the pleadings to justify such a conclusion. The complaint counts upon an express trust; and while the particular character of the transaction by which the alleged trust was created is not revealed by the complaint, from the fact that the trust — if one was created — had to do with real property, the presumption arises that such trust, if created by the voluntary act of the parties, was evidenced by an instrument in writing in conformity with the provisions of our statute of frauds. (Hefferlin v. Earlman, 29 Mont. 139, 74 Pac. 201; Sweetland v. Barrett, 4 Mont. 217, 1 Pac. 745; Mayger v. Cruse, 5 Mont. 485, 6 Pac. 333.) The record discloses that plaintiff relied upon this written instrument of October 19, 1891, and the trial court made it the basis of its decree.
It is also suggested in the brief of respondent that there is a sufficient statement in the verified answer of this defendant in the court below to meet the requirements of the rules for establishing an express trust; but in this respondent overlooks three important facts: (1) If the answer be accepted as establishing a trust, it is a trust for a purpose altogether different from that which the court found was created; (2) the respondent in his reply specifically denied the allegations in the answer, upon which he now relies for assistance; and (3) the trial court found that those allegations in defendant’s answer were not true. In the light of these facts it ill becomes respondent to- make this suggestion.
While there is no magic in the word “trust” or “trustee,” and any agreement, however informal, which indicates with reasonable certainty the intention of the trustor to create a trust, the acceptance or acknowledgment thereof by the trustee, and the subject, purpose, and beneficiary, will be held to be sufficient, still this court cannot change the law in aid of a litigant. Every element essential to the creation of a trust is wanting in this writing, and to hold it sufficient involves the necessity of writing or reading into it provisions not found there, and to that extent making for the parties a contract materially different from the one they made for themselves. And the reason for the rules applied here is not wanting. In the light of the facts of this particular case, the righteousness of those rules is apparent. For more than sixteen years this plaintiff permitted the defendant to pay all the taxes upon the lands in dispute and stood by without protest, and saw him handle the property in controversy as his own; and now, after the lapse of all these years, without explanation for his delay, he seeks to avoid the defense of laches or the defense of the bar of the statutes of limitation by claiming that the defendant during all those years was the trustee of an express trust for his use and benefit. It was doubtless to prevent the assertion of just such stale demands as this, under the guise of the enforcement of a trust, that the rule was adopted that the evidence of such relationship shall be direct and certain (Sheehan v. Sullivan, 126 Cal. 189, 58 Pac. 543); and, if it concerns real estate, that it shall have the added stability furnished by a writing.
In so far as the plaintiff seeks to establish an express trust concerning real estate, he fails altogether. A trust concerning personal property might have been created in parol (Hellman v. McWilliams, 70 Cal. 449, 11 Pac. 659); but the trial court as well as the parties apparently proceeded upon the theory that the rights of the parties were to be determined altogether by the writing of October 19, 1891; The theory adopted was an erroneous one, and a retrial of the cause, so far as it affects the personal property, upon a correct theory would be required, but for the fact that the findings and conclusions of the trial court disclose that upon the disposition of the shares of stock in the Butte Sewer Pipe and Tile Company, and the note for $625 and interest, the only items of personal property in controversy, the rights of the parties plaintiff and defendant are substantially equal, and that the claims of one are offset by the claims of the other. The difference amounts to about $2.38, and is insufficient to justify any further court proceedings under the maxim “Be minimis non curat lex.”
The judgment and order are reversed, and the cause is remanded to the district court, with direction to dismiss the complaint.
Reversed and remanded.
Mr. Chief Justice Brantly and Mr. Justice Sanner concur.
|
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
This action was brought to obtain a decree of divorce on the ground of adultery, and for the custody of the minor child, the issue of the marriage. The defendant answered; denied the allegations of the complaint and set forth affirmatively charges against the plaintiff of extreme cruelty, willful neglect, desertion and adultery, and asked for a decree of separate mainte nance and for the custody of the child. The affirmative allegations were put in issue by reply. The trial was had to the court without a jury and resulted in a judgment in favor of the plaintiff. From that judgment and from an order denying her a new trial, the defendant appealed.
1. There is complaint that the trial court failed to make special findings as required by section 6763, Revised Codes, but this complaint is unavailing because appellant failed to request special findings as required by section 6766, Revised Codes. (Gans & Klein Invt. Co. v. Sanford, 35 Mont. 295, 88 Pac. 955.) In Bordeaux v. Bordeaux, 43 Mont. 102, 115 Pac. 25, this court said: “A party failing to make such request cannot allege error because of the omission to obey the command of the statute. Every finding necessary to support the judgment will then be implied. ’ ’
2. It is contended that the prayer of plaintiff’s complaint should have been denied because of his connivance; but aside from the fact that this defense is not pleaded, there is little, if any, evidence tending to support the charge. “Connivance” is defined by section 3659, Revised Codes, as “the corrupt consent of one party to the commission of the acts of the other, constituting the cause of divorce.” It is little less than a crime generally,' and may constitute a crime under certain circumstances. The idea that a husband willingly submits to his wife’s illicit intercourse is so repulsive and so odious, that the law wisely requires that the consent to adultery must be established by clear and convincing proof. (2 Bishop on Marriage, Divorce and Separation, sec. 223.) The fact that the plaintiff, suspecting his wife of adultery, laid a trap and caught her flagrante delicto, thereby securing evidence to be used by him in his divorce proceeding, is not sufficient to charge him with connivance so long as he was not in any respect responsible for her adulterous act. (14 Cyc. 646.)
In Robbins v. Robbins, 140 Mass. 528, 54 Am. Rep. 488, 5 N. E. 837, the court said: ‘ ‘ There is a manifest distinction between the desire and intent of a husband that his wife, whom he believes to be chaste, should commit adultery, and his desire and intent to obtain evidence- against his wife, whom he believes already to have committed adultery and to persist in her adulterous practices whenever she has opportunity.”
In Wilson v. Wilson, 154 Mass. 194, 26 Am. St. Rep. 237, 12 L. R. A. 524, 28 N. E. 167, the rale is stated as follows: “Merely suffering, in a single case, a wife, whom he already suspects of having been guilty of adultery, to avail herself to the full extent of an opportunity to indulge her adulterous disposition, which she has arranged without his knowledge, does not constitute a connivance on the part of the husband, even though he hopes he may obtain proof which will entitle him to a divorce, and purposely refrains from warning her for that reason. He may properly watch his wife, whom he suspects of adultery, in order to obtain proof of that fact. * * * The law does not compel a husband to remain always bound to a wife whom he suspects, and it allows him, as it does other parties who think they are being wronged, reasonable scope in their efforts to discover whether the suspected party is or is not guilty, without themselves being adjudged guilty of conniving at the crime which they are seeking to detect.” The same doctrine is announced by the Iowa court as follows: “It seems to be well settled that a husband may watch his wife whom he suspects, and may even leave open the opportunities which he finds, so long as he does not make new ones or invite the wrong.” (Puth v. Zimbleman, 99 Iowa, 641, 68 N. W. 895; see, also, Lee v. Hammond, 114 Wis. 550, 90 N. W. 1073.)
3. Upon the recriminatory charges of extreme cruelty and adultery, the evidence is sharply conflicting, consisting in the main of the testimony of the wife in support, and of the husband in denial, of each of these charges. The trial court, having the advantage of seeing the witnesses upon the stand, hearing them testify and observing their demeanor, resolved the questions raised upon these charges in favor of the plaintiff, and with that conclusion we are not justified in interfering. The appellant has the burden of showing that the evidence preponderates against the trial court’s findings. (Reid v. Hennessy Merc. Co., 45 Mont. 383, 123 Pac. 397.)
4. With respect to the charges of willful desertion and willful neglect, there is not any substantial conflict in, the evidence. For a short time before the commencement of this action plaintiff contributed toward the support of his wife and eight year old son, forty-five or fifty dollars per month; thirty-five dollars per month for a short time, and thirty dollars per month for the remainder of the period during which the parties lived apart. There is also evidence that he paid some doctor bills and probably gave to his wife small sums in addition to the amounts named above. There is not any question of the husband’s ability. At the time of the trial he was earning $200 per month. In the December previous he was earning $175 per month. What his 'earnings were during the remainder of the time does not appear. “Willful neglect” is defined in section 3654, Revised Codes, as “the neglect of the husband to provide for his wife the common necessaries of life, he having the ability to do so, or it is the failure to do so by reason of idleness, profligacy or dissipation.” At first blush it would seem that the amounts paid by this plaintiff to his wife for the support of herself and child were altogether inadequate for that purpose, and out of proportion to his earnings; but it is fairly inferable from the evidence that the amounts were either agreed upon by the parties or fixed by the court in a separate proceeding instituted for the purpose of compelling him to furnish support. In our consideration of this matter we are embarrassed somewhat by the meagerness of facts disclosed and by the attitude of counsel in proceeding upon assumptions not entirely warranted by the record. Apparently the cause was tried upon a well-defined theory, and it is our duty to review alleged errors in the light of that theory so far as it is disclosed. With respect to this particular charge of willful neglect we are simply unable to say from the record before us whether or not it was made out. It was relied upon as an affirmative defense and the burden of proof was upon the defendant. The trial court determined the issue in favor of the plaintiff, and there is not sufficient in the record before us to warrant a reversal of that conclusion.
With respect to the charge of willful desertion, the evidence discloses that while these parties were living in Lincoln, Nebraska, the plaintiff left his wife, notifying her that he did not intend to live with her longer, and came to Montana with the intention that he would not resume the marital relation with her; that the defendant soon afterward followed him to this state, and that they resided in Butte but continued to live separate and apart. Assuming that these facts make out a prima facie case of desertion in the absence of any explanation, the question then arises: Has plaintiff brought himself within any well-recognized exception to the general rule which requires the husband to live with his wife and perform the duties imposed by the marital relation. In explanation of his conduct and as excusatory thereof, the plaintiff testified that while they were living together in Lincoln, Nebraska, his wife drank to excess, came home intoxicated, and spent the nights away from home; that he detected her visiting houses of bad repute and that she admitted to him that she was committing adultery. The wife did not deny any of these matters, and the trial court’s general finding is a finding that these statements are true. These facts constitute the plaintiff’s excuse for his failure to live and cohabit with his wife, and that they are sufficient to warrant him in leaving her, there is not any substantial disagreement in the authorities.
“Willful desertion” is defined by section 3646, Revised Codes, as “the voluntary separation of one of the married parties from the other with intent to desert.” The definition implies that the separation is without justification. (14 Cyc. 611; Luper v. Luper (Or.), 96 Pac. 1099.) In 1 Bishop on Marriage, Divorce and Separation, section 1742, a general rule is stated as follows : ‘ ‘ Where there is no consent, acquiescence or estoppel as just explained, no ills arising out of the marriage, or ill-conduct of one party to the other, will so justify a breaking off of the cohabitation as to prevent its being desertion, except ill-conduct of the sort and degree which the law has made foundation for divorce.” In Stocking v. Stocking, 76 Minn. 292, 79 N. W. 172, 668, the supreme court of Minnesota criticises the rule an nouneed by Bishop and says: “On principle, and what seems to be the weight of authority, we hold that the misconduct of one of the parties to the contract of marriage, which will so- far justify the injured party in leaving that the separation will not constitute willful desertion, need not necessarily be such as to entitle -the injured party to a divorce. It is sufficient if the party withdrawing from the cohabitation has reasonable grounds for believing, and does honestly believe, that by reason of the actual misconduct of the other it cannot be longer continued with health, safety, or self-respect.” "We are inclined to agree with the Minnesota court; but even if the more rigid rule announced by Bishop should govern, the excuse offered by this plaintiff is sufficient. At the time he left his wife he could have maintained an action against her for divorce for her misconduct, and therefore the' separation did not constitute desertion on his part.
There is not any reversible error in the record. The judgment and order are affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Sanner concur.
|
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] |
MR. JUSTICE SANNER
delivered the opinion of the court.
The respondent prosecutes this action as administrator of the estate of J. W. Martin, who died on March 11, 1910, leaving a widow and two children. The complaint, which is against appellant Raven Copper Company and Malcolm McPherson as defendants, details the cause and manner of Martin’s death as follows: He was foreman in the Raven mine, which was being operated by appellant through a shaft, by means of certain hoisting apparatus, including an engine, cable and skip, in charge of Malcolm McPherson as hoisting engineer; while in the performance of his duties as foreman and “on the said 11th day of March, 1911, when the said skip was at rest in said shaft at about the 1,140' station of said shaft, * * * the said J. W. Martin, who had just prior to the time the said skip came to a rest at said station been riding upon the same, attempted to get off the said skip at said station, and while attempting to get off of said skip, and yet not being off the same, the said defendant hoisting engineer Malcolm McPherson, carelessly and negligently, without any signal so to do, raised said skip and negligently caught said J. W. Martin between the said skip and the said shaft timbers at said station, and so grievously injured him that he died a few minutes thereafter.” To this complaint the defendants interposed separate general demurrers, which were overruled; whereupon they separately answered. The answers, which are identical in substance, deny the facts pleaded in the complaint on which negligence is charged, and as affirmative defenses they plead: (a) That the injuries and death of Martin were due to his own sole negligence in that while the skip was ascending in accordance with his signals, he, without signaling the engineer to stop the skip and without any knowledge on the part of the engineer, and without any necessity for so doing, voluntarily attempted to get off said skip while it was in motion, at a point where said skip did not usually or at all stop, and in so doing was caught between the ascending skip and timbers; and (b) that the danger of attempting to leave said skip while the same was in motion was obvious and was, or should have been, known to and appreciated by Martin.
The affirmative pleas in the answer were denied by the reply, and the cause in due time came on for trial before the court sitting with a jury. It is quite clear from the pleadings that the determinative issues were whether the skip was in motion or- at rest when Martin started to get off; and, if it had stopped and moved again without a signal, whether these events were due to the negligent act or omission of the engineer. The testimony of John Koskinen, an eye-witness to the accident, is distinct and positive that the skip had stopped and was at rest three feet below the proper spot when Martin was getting off and that it moved upward without a signal, catching Martin between the skip and the timbers. Equally distinct and positive was the testimony of the engineer and two other persons that he did not stop the engine by which the movements of the skip were controlled until the proper mark was reached', nor start it again without a signal. There was evidence also to the effect that if the skip did stop before it reached the proper spot it may have been due to the elasticity of the cable in connection with the variations in the descent of the shaft. The value of all this was for the jury; and the verdict was against the appellant Raven Copper Company, without mention of McPherson. Judgment was entered accordingly. Thereafter both defendants joined' in a motion for new trial, which was denied. This appeal is by the company alone from the judgment and from the order overruling the motion for new trial.
1. The appellant insists that the complaint does not state facts sufficient to constitute a cause of action, in that “it fails to allege one other essential fact — that the injury was caused without contributing negligence on the part of John Martin.” This it is argued was necessary, not because the complaint alleges an affirmative act of the deceased as a proximate cause of his injury, but for these reasons: That this is a purely statutory action, based upon section 5248, Revised Codes, and the plaintiff, to state a cause of action under it, must plead himself clearly within its provisions; that in this section, which makes the mine owner liable for any damage sustained by an employee without contributing negligence on his part, when such damage is caused by the negligence of a hoisting engineer, the phrase “without contributing negligence on his part” constitutes an exception from which the pleader must exclude himself. "We think the position untenable. This action is not a “purely statutory action,” in the sense in which counsel apparently use that term. In two decisions of this court it was held that the purpose and effect of section 5248 are to classify the employees in mines, mills, and smelters by declaring who among them are vice-principals, to make the employer answerable in certain eases under the maxim of respondeat superior, and in such cases to take away a defense which had been available before the passage of the statute. (Thurman v. Pittsburg & Mont. Copper Co., 41 Mont. 141, 150, 108 Pac. 588; Beeler v. Butte & London C. Dev. Co., 41 Mont. 465, 475, 110 Pac. 528.) Doubtless, as regards this purpose, the pleader must bring himself within the statute, and he may not recover by virtue of it upon a complaint which discloses no basis for respondeat superior, but grounds itself wholly upon a breach of primary duty on the part of the master. (Thurman v. Pittsburg & Mont. Copper Co., supra; Kelly v. Northern Pac. Ry. Co., 35 Mont. 243, 88 Pac. 1009.) But this is to prevent variance and surprise, to enable the defendant to make such defenses as may be appropriate, and falls far short of saying that the statute creates a cause of action or that other situations recognized by the general law as affirmative defenses are in anywise affected. To our minds, the phrase “without contributing negligence on his part” is a mere proviso or qualifying clause, inserted to forestall any possible interpretation of the statute as also abolishing the defense of contributory negligence. And this finds support in the consideration of the title and purview of the original enactment. So far as this clause is concerned it is as if the statute read: “Every person operating a mine shall be liable for any damage sustained by any employee thereof within this state, when such damage is caused by the negligence of a hoisting engineer, etc., unless the employee was himself guilty of contributory negligence.” Such a proviso need not be negatived in the complaint. (Lorimer v. St. Paul City Ry. Co., 48 Minn. 391, 51 N. W. 125; Rowell v. Janvrin, 151 N. Y. 60, 45 N. E. 398; Columbus & W. Ry. Co. v. Bradford, 86 Ala. 574, 6 South. 90; Acker et al. v. Richards, 63 App. Div. 305, 71 N. Y. Supp. 929; Territory v. Burns, 6 Mont. 72, 9 Pac. 432; State v. Stapp, 29 Iowa, 551; 36 Cyc. 1238; Bliss on Code Pleading, sec. 202; Phillips on Code Pleading, sec. 239.) By the statute the rule that the mine owner shall not be liable for injury to any employee due to the negligence of a fellow-servant is changed, but the rule that the employer shall not be liable if the employee was guilty of contributory negligence is unchanged. Now, as before the passage of the Act, if the employee was guilty of contributory negligence, that is a defensive fact to be asserted and shown by the defending employer, unless it appear from plaintiff’s own pleading or proof.
2. The next serious contention is that the verdict of the jury, being silent as to McPherson, amounts to a finding that he was not guilty of negligence; that inasmuch as the action is predicated solely upon his alleged negligence, the company being held only under respondeat superior, no judgment can properly go against it if he was not guilty as charged. Granting the pre mise, there may be some force in the conclusion. The subject, however, is not an open one in this state. In Verlinda v. Stone & Webster Engineering Corp., 44 Mont. 223, 119 Pac. 573, this court, discussing a similar verdict, said: “The conclusions reached by jurors are sometimes inexplicable. Often they arbitrarily find against one party and in favor of another without any apparent reason; but, if the evidence justifies the verdict as to the party held, there is no reason why it should not be deemed good as to him, notwithstanding there is no finding as to the other. * * * The failure of the jury to find as to Wallace should be regarded as no finding upon the issues as to him at all.” So, here, McPherson has not been acquitted of negligence, but the case as to him stands as though it had not been tried. This feeing true, it also follows that the failure of the jury to find as to McPherson cannot be seriously considered in the light of an irregularity in the proceedings by which the Raven Company was prevented from having a fair trial. Even if it was an irregularity in the sense of the statute on new trials, we do not see how the company was prejudiced by it; the company still has whatever right of action it ever had against. McPherson. It never did have any absolute right to his presence as a defendant in this particular ease. That was optional with the plaintiff. Had McPherson not been joined in the first instance, the cause would have proceeded without him, its merits would have been exactly the same, it would have been supported by substantially the same evidence, and the fairness of the trial, wherever had, would have been entirely unaffected. How, then, is it affected by the circumstance that no adjudication was made as to McPherson, who, though made a party, was not a necessary one? But if the failure of the jury to find as to McPherson was an irregularity by which the company was prevented from having a fair trial, we cannot consider it here, for the reason that, although the notice of intention to move for a new trial specifies irregularity in the proceedings in general terms, the record does not disclose that any complaint, objection, exception, or mention was ever made to the trial court of the particular matter relied on. It would be a manifest impropriety to review a matter of this kind on such a record.
3. Among other instructions the court gave the jury the following: “19a. * * * It is incumbent upon the plaintiff to prove by a preponderance of the evidence, before the plaintiff can recover in this action, that the hoisting engineer, in the exercise of ordinary care, knew or should have known that the deceased intended to get off or would be likely to get off said skip at the place at which he was in jured. ” And: “21a. * * * If from all of the evidence in this case you find that the deceased ordered the hoisting engineer to hoist him on the skip from the 1,300-foot level of the Raven shaft to the place described in the evidence as ‘the 1,140,’ and the hoisting engineer, as a reasonably careful person did not know or should not have anticipated that the deceased would attempt to get off of said skip before it reached the place in said shaft designated as the ‘1,140,’ plaintiff cannot recover and your verdict will be in favor of the defendant. ” It is now urged that the verdict is contrary to these instructions and therefore against law, because the hoisting engineer testified that Martin just before going into the shaft said: “I am going to the 1,300 and I will send up the skip and possibly three skips of water and come up to the 1,140 and pick up John (Koskinen) and take him to the 400,” without expressing any intention to get off or indicating that he had any duties to perform at the 1,140, other than to pick up John. “A verdict is contrary to the law when the condition of the evidence is such that the jury may not find otherwise than in accordance with the theory of the instructions, and yet have ventured to do so.” (Previsich v. Butte El. Ry. Co., ante, p. 170, 131 Pac. 25, 28.) We do not think the verdict is without support in the evidence under the instructions quoted. They were given at the instance of the defendants, and, without discussing their correctness either in the abstract or with relation to the theory of the case as tried by the defendants, we content ourselves with observing that they are predicated on the idea that the accident was due to some act or omission of the engineer which would have been negligence if he knew, or should have known, that Martin might get off, bnt which was not negligence in the absence of such knowledge, actual or imputed. As shown by the evidence, it was the duty of the engineer not to move the skip after it had stopped with a man on board, without a signal; that he knew this is obvious from his own testimony; he knew, or should have known, that Martin, as foreman, had the same knowledge and might rely upon it; he knew that the 1,140 was not a level or station, pfoperly so called, but a mere water-loading point; he had been in the shaft and presumably knew that the 1,140 was not lighted; he knew that Martin was on the skip because the signal complied with the prearrangement; he knew, or should have known, that Martin, as foreman, might find it necessary or advisable to get off at the 1,140 or at any other place in the mine to which he might order himself taken; and he knew that a man was to be picked up at the 1,140. Martin had not said he would not get off, and since the skip, once it had stopped, could not again properly proceed without a signal, there was no reason why he should not get off if he supposed himself to be at the point to which he had ordered himself taken or if other occasion required. It was the duty of the engineer to realize this and to so handle the skip that Martin might get off, or that Koskinen might get on, with safety. If he did not do this, the effect of his negligence cannot be avoided upon the ground that he had no reason to anticipate that Martin might get off.
4. Complaint is made of the court’s refusal to give defendants’ offered instructions Nos. 28a, 10a, 24a and X. "We see no error here. One of the postulates of 28a is that it was the customary method of McPherson in raising the skip to the 1,140 to stop it at a point below the proper spot in order to steady it. This proposition has no support in the pleadings, is outside the evidence, and is directly contrary to the theory on which defendants tried the case, viz., that the skip did not stop below the proper spot, or, if it did, its stopping was not due to any act or omission of the engineer.
As to 10a, it was the defendants’ theory that if the skip did stop below the proper spot as claimed by plaintiff, it was due to the elasticity of the'cable and to the sinuosity of the shaft causing the cable to waive, flap or jerk, which in turn caused the loaded skip to halt and momentarily stop when slowly approaching the station. They say they were entitled to have this theory presented to the jury as a reasonable explanation of the premature stop, if there was one, and that instruction 10a was designed for that purpose. We cannot perceive the design, but we do perceive a confusion of unrelated ideas which might have misled the jury had the instruction been given. Moreover, the record, while it gives the settlement of certain instructions, does not anywhere set out the instructions as read to the jury; so that we do not know but what the jury may have been told everything that counsel now say was intended by offered instruction 10a.
The refusal of offered instruction 24a was proper, because neither the complaint nor the plaintiff’s evidence was such as to raise the presumption of negligence or of contributory negligence. Hence no burden of exculpation was cast upon him. Aided by the presumption that the deceased was exercising due care for his own safety and by the evidence that the skip had stopped when he attempted to get off, the most that can be said is that the whole ease presents an issue upon the question of negligence. We may add that contributory negligence was not really an issue in the case.
Offered instruction X was a flat direction to find for the defendants. The alleged error in refusing this is submitted by counsel “under our discussion upon the question as to the verdict being contrary to instructions 19a and 21a and the failure of plaintiff to present sufficient competent proof of the negligence to the. jury; furthermore, we discuss elsewhere in this brief the insufficiency of the complaint and refer thereto as a part of our argument under this error. ’ ’ The giving of instruction X would not have been justified by any of the considerations suggested.
5. The only remaining errors assigned are those numbered 1, 7, and 8. No. 1 relates to a question asked on cross-examination of the witness, Donald Martin. Whether the question was proper or not, the incident was too trivial to assign as ground for reversal. If it is any satisfaction to counsel, we express tbe opinion that tbe witness took excellent care of tbe question and that no barm apparently was done.
Concerning assignments 7 and 8 counsel for appellant say: “For tbe reasons hereinbefore presented it necessarily follows that in overruling tbe motion for a new trial and in entering judgment tbe court erred.” We have canvassed all tbe reasons presented and cannot see that any of them would justify a reversal.
Tbe judgment and order appealed from are therefore affirmed.
Affirmed.
Mr. Chief Justice Brantly concurs.
Mr. Justice Holloway did not bear the argument and takes no part in the foregoing decision.
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
From the first Monday in May, 1905, to the first Monday in May, 1907, Phil. C. Goodwin was city treasurer of the city of Butte, and during that period it is claimed that he had on deposit with a bank large sums of public funds of the city, upon which the bank paid him interest in amounts aggregating $4,243.39. It is to recover this money that this suit was brought by the city against Goodwin and the sureties on his official bond. It is alleged that notwithstanding he received this amount of interest upon the public funds belonging to the city, he failed and refused to account for or pay over such amount, or any part thereof, to the city or to his successor in office, but wrongfully converted the same to his own use. By separate answer Goodwin denied generally all the wrongful acts charged against him, and pleaded the bar of the statute of limitations. The sureties joined in a separate answer which, to all intents and purposes, is identical with the answer interposed by Goodwin. After plaintiff had concluded its evidence upon the trial of the cause, the court sustained a motion by defendants for a non-suit, upon the ground that at the time of its commencement the plaintiff’s action was barred. Judgment was rendered and entered in favor of defendants, and it is from that judgment that the city appealed.
1. That it was the duty of Goodwin to turn over to the city the interest earned by the public funds of the city while in his possession is not controverted by his counsel, and could not be. Whatever may be the rule in jurisdictions where the city treasurer is an insurer of the public funds, in this state, where that doctrine does not prevail (City of Livingston v. Woods, 20 Mont. 91, 49 Pac. 437), he is, in point of law, a trustee of the funds for the use of the city, and under the most elementary rules of law must account for and pay over any profits derived from the use of the trust fund. (United States v. Mosby, 133 U. S. 273, 33 L. Ed. 625, 10 Sup. Ct. Rep. 327; State v. McFetridge, 84 Wis. 473, 20 L. R. A. 223, 54 N. W. 1, 998; Rhea v. Brewster, 130 Iowa, 729, 8 Ann. Cas. 389, 107 N. W. 940.)
2. The statutes of limitation pleaded, and relied upon by defendants upon the motion for nonsuit, are subdivision 3 of section 6447, Revised Codes, which provides that an action upon an obligation or liability, not founded upon an instrument in writing, other than a contract, must be commenced within three years; and subdivision 1 of section 6449, which provides that an action upon a liability created by statute, other than a penalty or forfeiture, must be commenced within two years.
Goodwin’s term of office expired and he was relieved by his successor on the first Monday in May, 1907. This action was not commenced until May 27, 1911, and the important question for determination is: Was the action barred? The trial court held that the action is one upon a liability created by statute and barred within two years by the provisions of subdivision 1 of section 6449 above. However, if the action was barred by either statute relied upon, the conclusion of the trial court will be sustained; for it is settled in this state that if a party is entitled to an order, the action of the court in granting it will be affirmed even though the particular reason given for the ruling may be erroneous. (Harrington v. Butte etc. Ry. Co., 36 Mont. 478, 93 Pac. 640.) “If the court’s ruling was correct, it is immaterial that it was founded upon an erroneous reason.” (Brown v. Daly, 33 Mont. 523, 84 Pac. 883.) While cases may be found holding that an action of this character is one upon a liability created by statute, a review of the history of the origin and purpose of that statute (subd. 1, sec. 6449 above) will demonstrate at once that it was never intended to apply to an action of the character of the one now before us. Since, however, the discussion of the question is not of any particular consequence here, we content ourselves with a reference to Kelly on Code Statute of Limitations, Chapter XX, for the history of the provision.
We agree with counsel for appellant in their terse statement of the character of Goodwin’s liability, as follows: “Twist it as one may, the liability finds its root and substance in the implied promise, the equitable promise that the law makes for a trustee, whether he will or no, to answer and account for, and pay over to his beneficiary, the secret profits of the beneficiary’s money. The law says a man is not permitted to assert anywhere, in any court, that he has not conscience enough to make such a promise. ' Equity refuses to allow a man to so abase himself, and this proposition of equity has so long endured that even under the most rigid terms of the common-law procedure the action was for a century, at common law, on an implied assumpsit to make the defendant pay over to the plaintiff that which the defendant had of the plaintiff, and which in equity and good conscience should be restored.” And again: “Either the treasurer is liable at common law and on the equitable principle of an implied promise which has been so long grafted into the common law as to become a part thereof, or he is not liable at all. ’ ’
In Schaeffer v. Miller, 41 Mont. 417, 137 Am. St. Rep. 746, 109 Pac. 970, we considered the character of such a liability and held that it arises from a breach of an obligation or legal duty, and that an action upon such obligation is barred by the provisions of subdivision 3 of section 6447, unless commenced within three years after the cause of action accrues. Notwithstanding the clear and forceful expression of the rule of Goodwin’s liability by counsel for the city as set forth above, they insist nevertheless that this action is one upon a contract, obligation or liability founded upon an instrument in writing, or, in other words, that it is an action for the breach of a contract in writing and covered by the eight-year period prescribed in section 6445. If it is an action upon the bond and the bond is a contract, then it is upon an express promise, and if upon an express promise, it could not be upon an implied one. But counsel are right in their statement as to the character of Goodwin’s liability. The obligation sued on is not founded upon any instrument in writing, but rests altogether upon the rule of law which makes the promise for the trustee that he will account for and pay over all the earnings of the trust fund while in his possession, and the cause of action arises upon a breach of the duty thus imposed by law. If this action is based upon the bond, then for every violation of official duty which amounts to a breach of the obligation of the officer’s bond an action might be maintained if brought within eight years after the cause of action accrues; but that this is not so the statute itself demonstrates. If a sheriff willfully permits the escape of a prisoner arrested on civil process, his act would constitute a breach of official duty for which he and his bondsmen would be liable; but the action would have to be brought within one year, under section 6450, notwithstanding the existence of the bond. So, likewise, if such sheriff should collect money on execution and wrongfully fail to pay it over to the party entitled, this would constitute a breach of duty and give rise to an action against him and his bondsmen, but such action would have to be commenced within three years, under subdivision 1 of section 6447. If the city treasurer wrongfully seizes the property of A for taxes when none are due, such an act would give rise to a cause of action in favor of A and against the treasurer and his bondsmen for damages for the wrongful seizure; but such action would have to be brought within one year under section 6450, notwithstanding the existence of the treasurer’s official bond. So, likewise, if the city treasurer retains interest on public funds and fails to turn it over to the city, he is guilty of a breach of the obligation of his official bond, but this is so only because he is likewise guilty of a breach of his implied promise to pay over such interest. It is this breach of his obligation or legal duty which gives rise to a cause of action, and such action must be brought within three years after the cause of action accrues, under subdivision 3 of section 6447 above. (Schaeffer v. Miller, above.) The illustrations might be multiplied many times, but these suffice to indicate that the period of time during which an action may be brought against a public officer depends upon the character of his wrongful act, and not upon the fact that he has given a bond in writing for the faithful performance of official duties. The duty of the city treasurer to pay over the interest earned on the city’s funds depended, not upon his bond, but upon his implied promise to do that which in equity and good conscience he ought to do. The duty was imposed by law and was not affected in the least by the giving of the bond. Goodwin’s liability would have been precisely the same if he had performed the services without any official bond, or if he had failed to sign the bond which he did give. If the city has a cause of action against Goodwin, it arises from his wrongful act in retaining money which belonged to the city- — if he did so— and not upon the violation of any express contract. If the city treasurer had not given any bond at all but had performed the duties of city treasurer and had received the interest which it is alleged he did receive, his duty to pay it over to the city would have been the same; his liability for failure to do so the same; the city’s cause of action just the same, and the proof necessary to make out a case the same as in the present instance. (Paige v. Carroll, 61 Cal. 211; Ryus v. Gruble, 31 Kan. 767, 3 Pac. 518; Spokane County v. Prescott, 19 Wash. 418, 67 Am. St. Rep. 733, 53 Pac. 661; State v. Conway, 18 Ohio, 234.) Goodwin’s failure to sign the bond would not have vitiated it or lessened his liability, and if he had not signed the bond, there cannot be any question that the action against him would have been barred in three years, and if barred -as to the principal it would have been barred as to the sureties, notwithstanding they had signed the bond (State v. Kelly, 32 Ohio St. 421; Ryus v. Gruble, above; State v. Conway, above); for the bond is not a contract in the strict sense of the term. It is a sort of vicarious undertaking— a collateral security for the faithful performance of official duty. (County of Sonoma v. Hall, 132 Cal. 589, 62 Pac. 257, 312, 65 Pac. 12, 459; Oregon v. Davis, 42 Or. 34, 71 Pac. 68, 72 Pac. 317; Walton v. United States, 9 Wheat. (U. S.) 651, 6 L. Ed. 182.)
Since the action was not commenced for more than four years after the conclusion of Goodwin’s term of office, it was barred by the provisions of subdivision 3 of section 6447.
3. In view of what we have said, it is quite immaterial whether the bond in question is strictly a statutory bond. It was Goodwin’s official bond, is so designated in the complaint, and the liability of his sureties is not extended by any terms found therein, so far as the question now presented upon the application of the statute of limitations is involved.
4. When it appeared from the plaintiff’s evidence that its cause of action was barred, it became the duty of the trial court to sustain the motion of these defendants for a nonsuit. (Chowen v. Phelps, 26 Mont. 524, 69 Pac. 54.)
The judgment is affirmed.
Affirmed.
Mr. Chief Justice Brantly concurs.
Mr. Justice Sanner: The above opinion establishes that the suit at bar is not upon a liability created by statute; that whatever interest Goodwin may have collected belonged to the city; that it was his duty to pay over or account for all moneys belonging to the city, whether principal or interest; and with all of this I agree. But I. cannot assent to the conclusion that this action is barred because “upon an obligation or liability, not founded upon an instrument in writing, other than a contract, account or promise.” (Subd. 3, sec. 6447, Rev. Codes.) It is quite true that in Schaeffer v. Miller, 41 Mont. 417, 137 Am. St. Rep. 746, 109 Pac. 770, and other decisions of this court prior thereto, it is held that an action upon a constructive promise which has no foundation other than equity and good conscience, is barred by the above statute, on the theory that such a promise is no promise but a pure fiction of law; hence, if the language quoted from appellant’s brief is to be taken as grounding its right to recover on such a promise and is binding on this court, the conclusion reached in the opinion is inevitable. As I understand the position of appellant, however, it is that this action is founded upon an express contract; that lying behind, justifying and furnishing the basis for the express contract is the common-law liability upon a promise to be implied from Goodwin’s acceptance of the office, and which equity and good conscience will not permit him to deny. Whatever be the correct interpretation, I do not feel any more bound by the reasons of counsel than the opinion is by the reasons of the trial court.
It is required by the ordinances of the city of Butte that the treasurer “before entering upon the duties of his office, shall execute a bond to the city of Butte, with good and sufficient sureties,” etc. In my judgment, there is here furnished sufficient consideration, sufficient explanation and sufficient requirement for the signature of the treasurer as it appears upon the instrument before us; that instrument contains the express stipulation on the part of Goodwin and his sureties that he shall pay over and faithfully account for all moneys coming into his hands belonging to the city; if he has not done this, I cannot understand how it can be that this express stipulation has not been violated, or why that violation is not the basis of his and their liability.
In Schaeffer v. Miller a clear distinction is made between those implied promises which-are pure fictions of law, and those which arise from the conduct of the party sought to be charged. In the latter instance it is conceded that a true promise exists. Now, although a public office is not a contract, there is, I think, a true promise to be inferred from a public treasurer’s acceptance of office, that he will pay over and faithfully account for all public moneys that may come into his hands by virtue of the office. That promise I conceive Goodwin to have made apart from the bond; that promise was formally reiterated in set terms in the bond; and that promise applied to all moneys of the city coming into his hands, from whatever source derived. Implication may be necessary to the conclusion that the interest belonged tó the city, but that the promise of Goodwin to pay over and faithfully account for the city’s money is a pure fiction of law, I cannot believe.
Rehearing denied May 7, 1913.
Neither can I see any convincing reason for the rule announced in the opinion, in the fact that Goodwin’s duty would have been the same if he had not signed nor given any bond; the fact remains that he did execute and give it. The concept of duty is undoubtedly back of Goodwin’s liability, as it may fairly be said to be “the root” of all liability whatsoever. Breach of duty in some form is a necessary‘ingredient in every case; but that does not alter the fact that when the duty is formally expressed by written instrument, causes of action may be and often are founded, within the meaning of the statute of limitation, upon the instrument, even though no legal necessity existed for the execution of it.
So, I think the judgment is erroneous, even under the holding that “an official bond is not a contract in the strict sense of the term, but a sort of vicarious undertaking — a collateral security for the faithful performance of official duty.” The effect of this rule is to gauge the liability of the sureties in all cases by that of the principal. If Goodwin was required to and did execute the bond, this action, as I see it, is not barred as to him. If his liability endures, that of the sureties endures also.
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MR. JUSTICE SANNER
delivered the opinion of the court.
According to the complaint, the appellant, plaintiff below, and Moses Quintín, George Farnam and William F. Bossier were on June 1, 1908, members of the police force of the city of Helena; on that day the respondent “wrongfully, unlawfully, maliciously and oppressively, and under color of his pretended authority as mayor of said city, did without right or jurisdiction or authority, and contrary to the provisions of the statute in that behalf enacted,” cause their dismissal and exclusion from office; and although they at all times and by all proper means protested against this exclusion and repeatedly reported for duty and tendered their services as members of the police force, they were by the act of respondent deprived of “all the insignia, ■badges, privileges and emoluments” of office until their restoration by judicial mandate on February 11, 1910. The personal .claims of Quintín, Farnam and Bossier are alleged to have been assigned to the appellant, and he prays damages measured by the salary of each officer during the period of deprivation, with interest.
Several questions are presented by the assignment of errors, but they are all resolvable into one, viz.: whether the trial court correctly granted respondent’s motion for nonsuit. The order of nonsuit, to be sustained, must find support in one or the other of the following grounds: (1) That the appellant is barred and concluded from maintaining this action on principles of res judicata; (2) that the evidence does not show any damages suffered, by plaintiff which are recoverable in this action.
1. It seems advisable to first dispose of the question presented by the pleas in the answer, to the effect that the appellant is precluded from maintaining this action because he and his assignors prosecuted against the present respondent, as mayor of the city of Helena, their several mandamus proceedings in and through the district court of the first judicial district and to final decision by this court “for the same causes of action as are now pleaded and in which the matters now in controversy were, or might have been, determined.”
It is disclosed by the reply that the fact-basis for the relief now sought is essentially the same as that for relief in the mandamus proceedings. Among the issues then presented and determined were “whether or not defendant, acting under the pretense and cover of his office as said mayor, but without authority of law and contrary to the provisions of the statute in that behalf enacted and without any right or justification so to do, on June 1, 1908, did unlawfully dismiss and discharge plaintiff from said police force and preclude him from the use or enjoyment of said place, and prevent him from performing any service or duty as a member of said force, and thereafter always prevented plaintiff from acting as such member and from discharging his duties as such, and deprived him of his badges and other insignia of his office and of his privileges as such member. ’ ’
The loss of emoluments as a matter of special damage was not raised by the pleadings in the mandamus proceedings; but it is quite clear that if causes of action as against Frank J. Edwards, personally, now exist in virtue of the claims of appellant and his confreres, they existed in part, if not in toto, at all stages of the mandamus proceedings against Edwards as mayor; and if these claims should have been litigated in those proceedings, then under the familiar principle, applicable in mandamus as elsewhere, that a judgment concludes the parties thereto and their privies as to all matters which might have been litigated as part of the subject in controversy, they cannot be litigated now.
The question is not free from perplexity. In the Chapter of. our Codes relating to mandmius, we find provisions for a verified answer; for traversing the answer; for trial by jury of certain questions of fact; for judgment; and “if judgment be given for the applicant, he may recover the damages which he has sustained, as found by the jury, * * * together with costs,” etc. (Rev. Codes, sec. 7224.) This section is apparently an open door to any claim of damages whatsoever arising out of the transaction which the writ of mandate is invoked to remedy; and such — the expressed conclusion of some courts — is implied in the decisions of others to be found upon the subject. (Achey v. Creech, 21 Wash. 319, 58 Pac. 208; Bell v. Thomas, 49 Colo. 76, 31 L. R. A. (n. s.) 664, 111 Pac. 76; People ex rel. Broderick v. Morton, 24 App. Div. 563, 49 N. Y. Supp. 760; People ex rel. Deerell v. Musical Mut. Pro. Union, 118 N. Y. 101, 23 N. E. 129; Marion Beneficial Society v. Commonwealth, 31 Pa. 82; Hibernia Fire Engine Co. v. Commonwealth, 93 Pa. 264; State v. Board of Commissioners, 11 Kan. 66; State ex rel. Race v. Cranney, 30 Wash. 594, 71 Pac. 50; State ex rel. Billings v. Lamprey, 57 Wash. 84, 106 Pac. 501; McClure v. Scates, 64 Kan. 282, 67 Pac. 856; People ex rel. Van, Valkenburgh v. Sage et al., 3 How. Pr. (N. Y.) 56.) There are several considerations, however, which convince us that this cannot be the correct interpretation of the statute. In the first place, all the décisions which seem to hold that damages for the original wrong may be recovered in the mandamus proceeding are either upon statutes judicially declared to follow the Statute of Anne (9th Anne, Chap. 20), or they stand upon the theory that mandamus is, to all intents and purposes, a civil action. The Chapter of our Code relating to mandamus has been part of our written law since the territory was organized (Bannack Statutes, p. 123 et seq.; Codified Stats. 1872, p. 206 et seq.; Rev. Stats. 1879, p. 142 et seq.; Comp. Stats. 1887, p. 206 et seq.; Code Civ. Proc. 1895, sec. 1960 et seq.) and very early in our history it was settled that mandamus is not a civil action and that the Statute of Anne is not in force with us (Chumasero v. Potts, 2 Mont. 242, 258, et seq.; Territory v. Potts, 3 Mont. 364, 366). In Chumasero v. Potts, this court, touching the nature of mandamus said: “To call this an action or suit at law would certainly be a misnomer. * * * The manner in which the term ‘civil action’ is used in these two sections [secs. 522, 529, Civ. Prac. Act, 1872; Rev. Codes 1907, secs. 7218, 7225] shows conclusively that our legislative assembly did not consider that the proceedings in mandamus were a civil action. * * * The civil action has reference exclusively to private wrongs. * * * What is the nature of the proceeding called mandamus? It is not applicable as a redress for mere private wrongs. * * * It can- be resorted to only in those cases where the matter in dispute, in theory, concerns the public and in which the public has an interest. * * * The enforcement of the writ may incidentally, and as a result, affect private rights, but this is not the prime object of the issuance of the writ. * * * The attempt to classify the proceedings in mandamus is always futile. It is sui generis. Undoubtedly it may be called an extraordinary legal remedy, civil in its nature. * * * But, being a remedy to enforce public rights and not for the enforcement of private rights or the prevention or redress of private wrongs, it is not a civil action.” Again, in the recent ease of State ex rel. Stuewe v. Hindson, 44 Mont. 429, 442, 120 Pac. 485, we find the following: “This proceeding is essentially ex relatione. While Stuewe is nominally the complaining party, the taxpayers of Lewis & Clark county constitute the real party in interest; and if it can be said that from the allegations contained in the affidavit and the alternative writ the taxpayers of the county are entitled to relief of any character, which can be granted in this proceeding, it is the duty of the courts to extend that relief, whether this relator individually desires it, or the attorney general opposes it. In our determination, we are not bound by the prayer of the relator, but may search the affidavit, and order such relief as the facts stated' may warrant; for the relief is granted, not to Stuewe individually, but to the public, the real party in interest.” Inferences, therefore, founded upon the Statute of Anne or upon the hypothesis that mandamus is a civil action, can have no validity to require such a construction of section 7224, Revised Codes, as respondent here seeks to evoke.
And this conclusion finds collateral support in the further fact that in a mandamus proceeding a jury is not a matter of right but of discretion. Any and all of the questions arising therein, whether of law or of fact, may be tried by the court without a jury, with or without a reference (sec. 7219, Rev. Codes; Chumasero v. Potts, supra). If the relator must litigate therein any private right to damages which he may have against the respondent personally, arising out of the wrong to which the mandate itself is directed, perforce the adversary must submit; so that a cause of action at law becomes summarily justiciable without a jury, notwithstanding the fact that as to such causes of action both parties are entitled to a jury and cannot be compelled to submit to a summary adjudication. (U. S. Const., 7th Amendment; Basey v. Gallagher, 20 Wall. (U. S.) 670, 22 L. Ed. 452, 1 Morr. Min. Rep. 683; Const. Mont., Art. III, sec. 23; Chessman v. Hale, 31 Mont. 577, 581 et seq., 3 Ann. Cas. 1038, 68 L. R. A. 410, 79 Pac. 254.) But the statute clears itself of any such absurdity. It says, the applicant,,if he prevail, may have “the damages he has sustained” as found by the jury, etc. Sustained by what? Surely, by those circumstances upon which a jury may, but need not be, called to pronounce. These are questions of fact raised by the answer, “essential to the determination of the motion and affecting the substantial rights of the parties, and upon the supposed truth of the allegation of which, the application for the writ is based.” (Sec. 7219.) How is the question of what damages the applicant may have suffered from official inaction essential to the determination of whether the writ shall go to compel official action? Or how is the question of what damages the applicant may have sustained by reason of preclusion from office essential to determine whether he shall be restored ? It seems to be the rule even under the civil action theory of mandamus that damages cannot be awarded unless the peremptory writ is issued (Brown v. Worthen, 63 Kan. 883, 65 Pac. 255); and it is settled in this state that the peremptory writ cannot issue after the term of the officer involved has expired (State ex rel. Stranahan v. Board, 32 Mont. 13, 4 Ann. Cas. 73, 79 Pac. 402) ; what, in such a case, becomes of the relator’s right to damages for the original wrong if they are necessarily triable in the mandamus proceedings ?
The foregoing, and other considerations, as we think, justify our opinion that section 7224 is not to be interpreted as contended by the respondent; but rather that the damages therein provided to be allowed in mandamus proceedings are such damages as are incidental to the proceedings themselves, and not those arising out of the prior preclusion or deprivation which the writ itself was invoked in part to redress. This brings us within, not the letter, but the spirit of the decision in Peterson v. City of Butte, 44 Mont. 401, Ann. Cas. 1913B, 538, 120 Pac. 483, and to our final conclusion upon this branch of the ease: That the plaintiff is not precluded from maintaining this action by the litigation of the mandamus proceedings referred to in the answer.
2. We are constrained, however, to agree with the contention of respondent that the evidence presented to the trial court was insufficient to sustain the action as laid. The complaint alleges “that by, through and because of the hereinbefore stated unlawful, wrongful, oppressive and malicious acts and conduct of said defendant, plaintiff has been and still is deprived of said emoluments and compensation,” to his damage, etc. The “unlawful, wrongful, oppressive and malicious acts and con cttuct” above referred to are the dismissal and preclusion of the plaintiff and his associates from their offices as policemen. No other damages are claimed, no other cause of damage is alleged; so that the burden of the charge is that the plaintiff and his associates were damaged by the loss of their salary in consequence of their unlawful dismissal and preclusion, and not otherwise. What causal connection there was between their dismissal and preclusion on the one hand, and the loss of salary on the other, is not further revealed.
At the close of appellant’s case the state of the proof as regards any causal connection between the respondent’s acts and the damages claimed! was this: Bailey and his associates had been kept out of their offices from June 1, 1908, to February 10, 1910, as the result of orders of the respondent under an ordinance judicially held) to be void; during that time they drew no pay; upon their restoration they presented, in due form, to the mayor and city council their verified claims for the accrued salary, and these claims, for some reason, not made to appear, were rejected. There was an offer of proof that the city had exceeded the constitutional limit of indebtedness, but this was rejected, and properly so, for lack of an allegation in the pleadings.
The various decisions of this court relative to the status of the plaintiff and his associates establish that their dismissal and preclusion from office were without legal effect. (State ex rel. Quintin v. Edwards, 38 Mont. 250, 99 Pac. 940; State ex rel. Quintin v. Edwards, 40 Mont. 287, 20 Ann. Cas. 239, 106 Pac. 695; State ex rel. Bailey v. Edwards, 40 Mont. 313, 106 Pac. 703; State ex rel. Edwards v. District Court, 41 Mont. 369, 109 Pac. 434.) In contemplation of law, therefore, they were never dismissed, but were, during the entire period of their unlawful preclusion, police officers of the city, entitled to be paid as such, and, upon making good their claim to the office, in position to assert their right as against the city to the salary accrued. (Peterson v. City of Butte; 44 Mont. 401, Ann. Cas. 1913B, 538, 120 Pac. 483; Wynne v. City of Butte, 45 Mont. 417, 123 Pac. 531.)
So far as we can tell, the failure of appellant and his associates to receive their pay may have been due to circumstances wholly unconnected with the acts of respondent complained of; for there is absolutely nothing before us to show that the city could not have been made to respond or that it cannot now be made to respond; and if it should be made to respond, no emoluments will have been lost and therefore no damages suffered of the character alleged.
“But it does not lie in the mouth of defendant to say that another person — Helena—is liable for the salaries”; so say appellant’s counsel, and Lumley v. Gye, 2 El. & Bl. 216, is cited in support of this position. That case, which was for damages directly due to the malicious act of Gye in procuring an opera singer to abandon her contract with Lumley, was decided upon principles wholly foreign to the case at bar; and without indicating whether we should, under appropriate circumstances, care to follow it, we note in the opinion of Compton, J., this language: “The damages occasioned by such malicious injury might be calculated upon a very different principle from the amount of the debt which might be the only sum recoverable on the contract. * * * The servant or contractor may be utterly unable to pay anything like the amount of the damage sustained entirely from the wrongful act of the defendant. ’ ’ In the case at bar damage might have been claimed upon a different basis and therefore calculated upon a different principle and upon the amount of the unpaid salary; but it was not. The.city of Helena may be utterly unable to pay the salary arrears, and the damage sustained by appellant may be due entirely to the wrongful act of respondent; but, if so, these facts have not been made to appear. This being true, there was a lack of proof; and for this reason the judgment must be affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
(Submitted June 11, 1913.
Decided July 7, 1913.)
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MR. JUSTICE SANNER
delivered the opinion of the court.
On July 12, 1911, the appellant was employed by respondent company as a coal miner in what is known as “west 5 entry, No. 2 vein, east side mine,” at Red Lodge. While loading coal into a car in the course of his employment, a large piece of coal, which had without his knowledge become loose in the roof or walls of the entry, fell upon and seriously injured him; hence this action. He grounds his right to recover upon the allegations that an inspection and sounding of the roof and walls would have disclosed the presence of the loose coal; that it was the duty of respondents to inspect the roof and walls of the entry, and if any loose rock or coal existed to remove the same, and to timber such places along said entry where such timbering was necessary to prevent rock or coal from falling, and that such duty the respondents negligently failed to observe. In the answer it is alleged that the coal which the appellant was loading at the time he was injured was coal that shortly before had been blasted and broken from the face of the entry in the usual and customary manner; that he was loading the coal from the place where it had fallen and had been deposited by the force of the blast; and that, under the terms and conditions of his employment as a coal miner, it was his duty, and he was required, to look after and safeguard his own working place and see that it was in a reasonably safe condition; that he was required to provide for his own safety against the danger and risk from the falling of the roof and walls of the entry at his working place; that he failed to take precautions for his own safety and carelessly failed to examine the walls and roof to ascertain whether the same were safe and free from loose rock and coal liable to fall; and that the injuries received were due to his own fault. In the reply it was admitted that the coal the appellant was loading at the time he was injured had shortly before been blasted in the usual and customary manner, and that he was loading this coal from the place where it had been deposited by the force of the blast. He denied that it was his duty to look after the safety of the place where he was injured, or that his injuries were due to his own fault.
Upon the trial it was either admitted or established that the accident occurred at a point seventy or seventy-five feet from the face of the entry, at a place where and at a time when appellant and his associate were loading the coal blasted out by the preceding shift; that they had just come on shift, and this work was part of their duty as miners; that they had inspected the entry for a distance of fifty feet from the face but no further; that the appellant could not tell without an inspection by sounding that the piece of coal which fell upon him was loose and likely to fall, but its presence and character would have been revealed through an inspection by sounding so that it could be picked down; no such sounding was done by either appellant or respondents; that blasting affects the roof and walls of the entry for not to exceed ten feet from the face, but loosening of the walls and roof is accomplished by the action of air to which this portion of the entry in question had been exposed for nearly a month; that as the result of the accident appellant sustained serious injuries. Appellant also sought to show the existence of an agreement, rule or custom by which the miners were to examine and keep safe the entry for a distance of fifty feet from the face, and the company to do likewise beyond that point; but this the trial court would not permit, being of the opinion that by Chapter 120, Twelfth Session Laws, called the “Coal Mining Code,” the duty is imposed upon the miner to examine and keep safe his own working place; that his “working place, ’ ’ within the meaning of section 83 of that Act, is wherever as miner he is required to mine or load; and that the existence of any rule, custom or agreement in derogation of this duty is immaterial. In further expression of these views, the plaintiff was nonsuited, and error is assigned accordingly.
1. At the common law the rule undoubtedly is that it is incumbent upon the master to exercise ordinary care and diligence to provide his employee with a reasonably safe place in which to work; and the employee is justified in assuming this duty to have been performed, so that, though bound to observe and protect himself against such dangers as are open and obvious to his senses, he is not required to stop, examine, and experiment for himself to see if the place assigned to him is a safe one. (Allen v. Bear Greek Coal Co., 43 Mont. 269, 115 Pac. 673; Schroder v. Montana Iron Works, 38 Mont. 474, 100 Pac. 619.) This rule does not obtain “when the plaintiff and his fellow-servants are creating the place of work; when it is constantly being changed in character by the labor of the men working upon it; when it only becomes dangerous by the carelessness or negligence of the workmen” (Shaw v. New Year G. Min. Co., 31 Mont. 138, 77 Pac. 515; Thurman v. Pittsburg & Mont. Co., 41 Mont. 141, 108 Pac. 588) ; but it does obtain where the place is a completed one, as, for instance, that part of a mine tunnel which is behind the miner engaged in driving it (Kelley v. Fourth of July Min. Co., 16 Mont. 484, 41 Pac. 273). The argument is that, since these rules apply as well to a coal mine as to any other place of employment (Allen v. Bear Creek Coal Co., supra; Tennessee Coal etc. Co. v. Garrett, 140 Ala. 563, 37 South. 355; Central Coal & Coke Co. v. Williams, 173 Fed. 337, 97 C. C. A. 597; McKenzie v. North Coast Colliery Co., 55 Wash. 495, 28 L. R. A. (n. s.) 1244, 104 Pac. 801), iand since under them the appellant could have recovered, he should still be allowed to recover because the Coal Mining Act, by failing to define what the “working place” is which the miner must examine and keep safe, must be presumed to mean the working place as understood at common law.
We do not know of any precedent or principle by which the working place of a coal miner, which at common law he must keep safe, is precisely defined; but if the working place as understood at common law is’ merely the face of the entry or that portion of the entry the walls or roof of which might be affected by blasting, then we think a specific modification in that regard is indicated by section 83 of the Coal Mining Act (Laws 1911, Chap. 120), as follows: “Bach miner shall examine his working place upon entering the same and shall not commence to mine or load until it is made safe. He shall be very careful to keep his working place in safe condition at all times. Should he at any time find his place becoming dangerous from any cause or condition, to such an extent that he is unable to take care of the same personally, he shall at once cease work and notify the mine foreman. * * * ” In passing, we may add that by section 103 of the same Act penalties are provided for its violation, including violations by miners of section 83. The plain meaning of section 83, as it seems to us, is that before he goes to work the miner must examine the place where his work is to be done; if he is about to mine, he must examine the place where his mining is to occur; if he is about to load, he must examine that part of the workings throughout which the duty of loading is to be performed. "While he is at work he must keep safe the place where he is working, and whenever he finds it unsafe, whether as the result of his operations or otherwise, he must make it safe, or, if he cannot do that, he must quit the work and report. It is thus apparent that the “working place” which the miner must under the statute examine and keep safe is a varying area, and that the duty imposed is a positive one. The suggestion is made that this cannot be so, because the Act by its section 70 requires the master to see that “all loose coal, slate and rock overhead in rib in traveling ways, where miners have to travel to or from their work,” are taken down or carefully secured, and by its section 73 requires the foreman or his assistant to visit and examine every working place at least each alternate day and see to the security of the same. The conclusion does not follow; rather the clear intent of the statute is that such places as are the seat of active operations shall, be looked .after by both master and servant, and the mere fact that at a given time one of such places may not be the seat of active operations, and may therefore at such time be subject to the exclusive inspection of the master, does not absolve the employee from the duty of examination when that place is, or is about to become, the scene of his labors. As to the place at which the appellant was injured, the respondents should have seen to its safety; but it was also the duty of the appellant to refrain from loading until he had examined it and had made it safe. Neither party having observed the statutory duty, and the accident being due to this nonobservance, the parties were in pari delicto, and the ease is squarely within the reasoning of Melville v. Butte-Balaklava C. Co., 47 Mont. 1, 130 Pac. 441, in which, under analogous circumstances, the right to recover was denied. (See, also, White on Personal Injuries in Mines, sec. 354; Thompson on Negligence, sec. 204; Young v. Chicago, M. & St. P. Ry. Co., 100 Iowa, 357, 69 N. W. 682.)
2. No difficulty is met in the ascertainment of the intent with which the Act was passed — the evil sought to be remedied, the good to be attained. Every section speaks the legislative realization of the hazards of coal mining — hazards which may involve not only the loss of valuable lives, but other consequences of grave import to society, and which, in the interest of the employee, the employer, and the public, it is imperative to reduce. Can such an Act, can provisions therein imposing duties designed to accomplish such a purpose, be nullified by private agreement, private rule, or private custom? The answer is given in Edwards’ Admr. v. Lam, 132 Ely. 32, 119 S. W. 175, the very ease relied on by appellant to support his contention. In that case the effect of an agreement between the employer and employees, which was not in derogation of the statute, was involved, and touching it the court said: ‘ ‘ The duty of the mine owner, independent of statutory regulation and that primary duty to furnish a reasonably safe place in which to work, may vary according to the contract between him and his laborers. * * * If the employer and laborers all agree that the latter are to be of the' same or a common grade, and shall have control themselves of certain features in the work, designed for their better protection, we are unable to see wherein the arrangement is illegal, so long as the public policy and thé statutes are not violated.” But that the plain provisions and clear purpose of a statute may not be set at naught by agreemerit, rule, or custom is too well settled for discussion. (Chicago & E. R. Co. v. Lawrence, 169 Ind. 319, 79 N. E. 363, 82 N. E. 768; Voshefskey v. Hillside C. & I. Co., 21 App. Div. 168, 47 N. Y. Supp. 386; Young v. Chicago, M. & St. P. Ry. Co., supra; Smith v. Milwaukee B. & T. Exchange, 91 Wis. 360, 51 Am. St. Rep. 912, 30 L. R. A. 504, 64 N. W. 1041; Little v. Southern Ry. Co., 120 Ga. 347, 102 Am. St. Rep. 104, 66 L. R. A. 509, 47 S. E. 953; Missouri, K. & T. R. Co. v. Roberts (Tex. Civ. App.), 46 S. W. 270.)
The district court was clearly correct in both the positions taken, and the order of nonsuit necessarily followed. The judgment appealed) from is therefore affirmed.'
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
|
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MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
Action for slander. Plaintiff had verdict and judgment, The defendant has appealed from the judgment and an order denying her motion for a new trial.
The complaint alleges four causes of action, each counting upon slanderous words spoken falsely and maliciously of and concerning the plaintiff, in the presence of persons named and unnamed, at various times between August 20 and September 12, 1910. The first count, as originally drawn, charged that the words spoken of and concerning plaintiff were: “She is a bloody whore, and a thief; her son is a bastard and she and her family live like a pack of dogs.” The words laid in the other three counts are of like import. The questions submitted for decision arise upon exceptions to the action of the trial court in permitting plaintiff to amend the first count of her complaint and in refusing the defendant a postponement of the trial, to its rulings in admitting and excluding evidence, and to its refusal to grant defendant a new trial on the grounds that counsel for plaintiff was guilty of misconduct during the trial prejudicial to defendant, and that the amount of damages awarded by the jury is excessive.
1. When the cause was called for trial the plaintiff was permitted, over objection by defendants, to amend the complaint by changing the statement of the slanderous words laid in the first count from the third to the second person. Thereupon counsel for defendant orally moved the court for a postponement of the trial. The ground alleged was surprise, but no showing was made other than a statement by counsel that they had made preparation to meet the charge as laid in the original complaint, and that they were not ready with their défense to the charge as laid in the amendment. The court overruled the application and ordered the trial to proceed. Defendant alleges prejudicial error. It is argued that since the amendment amounted to the introduction of an entirely new cause of action, it ought not to have been permitted. The substance of the charge as laid was that the plaintiff was unchaste. The change wrought by the amendment was not to introduce into the complaint a charge of a different slander at another time and place, but merely to modify the language used by the defendant in making the same charge in order to avoid the consequences of a fatal variance at the trial. It was clearly within the discretion of the court under the statute (Rev. Codes, sec. 6589), to permit the amendment in that it amounted to no more than the correction of a mistake in the pleading as originally drawn. (Bates v. Harrington, 51 Vt. 1; Weston v. Worden, 19 Wend. (N. Y.) 648; Snediker v. Poorbaugh, 29 Iowa, 488; Baldwin v. Soule, 72 Mass. 321; Barber v. Barber, 33 Conn. 335; Conroe v. Conroe, 47 Pa. 198; Lister v. McNeal, 12 Ind. 302; 13 Ency. Pl. & Pr. 96 ; 25 Cyc. 471; Newell on Slander and Libel, 759.) The case is within the rule which this court has constantly observed under similar circumstances. (Dorais v. Doll, 33 Mont. 314, 83 Pac. 884; Sandeen v. Russell Lumber Co., 45 Mont. 273, 122 Pac. 913, and cases cited.) The fact that this is an action for slander does not make the rule any less applicable.
The court did not, under the circumstances disclosed, err in refusing a postponement of the trial. Counsel did not offer to show that the amendment presented an issue which they were not fully prepared to meet, or that they did not have at hand and were ready to introduce all the evidence available in support of the defense. The power to grant or refuse a postponement on any ground is vested in the discretion of the court (Rev. Codes, sec. 6729). Its exercise in any case is not subject to review by this court, in the absence of an affirmative showing that the complaining party has suffered prejudice. (Dorais v. Doll, supra; Jorgenson v. Butte etc. Co., 13 Mont. 288, 34 Pac. 37; Montana Ore Pur. Co. v. Boston & Mont. etc. Co., 27 Mont. 288, 70 Pac. 1114, 22 Morr. Min. Rep. 471; Christiansen v. Aldrich, 30 Mont. 446, 76 Pac. 1007.)
2. During the examination of Mary Heaney, a witness for the plaintiff, she was asked to rehearse statements which she had heard defendant make concerning the plaintiff on other occasions than those alleged in the complaint. Her answer was: “She [defendant] called Mr. Downs a ‘son-of-a-bitch,’ and Mrs. Downs ‘a damned whore.’ ” Being asked whether she heard defendant repeat these words concerning the plaintiff or any of them subsequent to that time, she answered: “Why, very often, very often.” Counsel then interposed the objection that words uttered on any other occasion than those charged in the complaint were irrelevant and incompetent for any purpose. The objection was overruled. The witness Margaret Brooks, having been asked similar questions, made similar answers. She-was then asked: “Well, would it occur once a week, or — that is, as near as you can recollect — or about how often?” Counsel thereupon interposed the same objection as that interposed to the testimony of Mary Heaney. Assuming that the evidence-was incompetent and that the objection of counsel was tantamount to a motion to strike it from the record, the ruling was-, not erroneous. When a party sits by and allows evidence to-go in without objection, he cannot complain that the refusal of the court to strike it out is prejudicial. (Poindexter & Orr L. S. Co. v. Oregon S. L. R. Co., 33 Mont. 338, 83 Pac. 886.)
That in so far as the evidence in question cast upon the-plaintiff an imputation of unchastity, it was competent, as tending to show that the words laid in the complaint were-spoken’with malice, all the courts agree. The rule is well established both in this country and in England (25 Cyc. 496; Newell on Slander and Libel, 349, 350; Odgers on Libel and Slander, 275 et seq.); and many of the courts hold that any publication importing ill-will and hatred, made before or after the date-of the charge laid, may be admitted to show malice, whether it •might be made the basis for recovery in a separate action or not. (25 Cyc. 498, 499, and note.)
Complaints as to other rulings upon questions of evidence we do not find of sufficient merit to require special notice.
3. During the course of his opening statement to the jury,. Mr. McCafferv, one of counsel for plaintiff, said: “We will show you, gentlemen of the jury, that the reputed wealth of this defendant is in the neighborhood of $40,000; and if Mr. Roote[one of counsel for defendant] objects to this we will bring it [more] closer than that.” Counsel for defendant took exception to this statement as misconduct. It is argued that since evidence either of the wealth or reputed wealth of defendant is not admissible for any purpose during the trial, the statement of counsel was such an irregularity as prevented the defendant from having a fair trial. -The plaintiff did not offer any evidence as to the actual or reputed financial condition of the defendant. Indeed, so far as there is any evidence on the subject* it tends to show that the defendant is in comparatively modest circumstances. While the decisions of the courts are not entirely harmonious, by the great weight of authority evidence of the financial condition of the defendant is admissible, on the ground that his wealth is an element which aids in determining his social rank and influence in society, and therefore tends to show the extent of the injury suffered by his words; and where punitive damages are allowed, it aids the jury in determining the extent of the punishment to be inflicted upon the defendant. (Newell on Slander and Libel, 878, and cases cited in footnote; see, also, Jones & Bro. v. Greeley, 25 Fla. 629, 6 South. 448; Kidder v. Bacon, 74 Vt. 263, 52 Atl. 322; Buckley v. Knapp, 48 Mo. 152; Burckhalter v. Coward, 16 S. C. 435; M’Almont v. McClelland, 14 Serg. & R. (Pa.) 359; Adcock v. Marsh, 30 N. C. 360; Brown v. Barnes, 39 Mich. 211, 33 Am. Rep. 375, and notes.)
In Stanwood v. Whitmore, 63 Me. 209, it was said: “We think, however, that the wealth of a defendant should be proved by general evidence rather than by particular facts. It is the defendant’s position in society which gives his slanderous statements character and weight. Reputation for wealth, rather than its possession, generally confers position. Therefore, the more proper inquiry is as to the reputation of a defendant for wealth. Of course, a presiding justice would have considerable discretion as to the form of a question in such a case, to be exercised according to circumstances.” Under these authorities, counsel was justified in his opening statement in proceeding upon the assumption that the evidence would be admitted, if offered, and it cannot be held to be misconduct on his part that he then •expressed the intention to introduce it but later changed his mind, whatever reason he may have had for his subsequent action.
4. The jury fixed the amount of damages on each count at $250, making the amount of the verdict $1,000. It is argued that since it appears from the evidence that the slanderous words were heard by comparatively few persons, that all the witnesses who gave testimony against the defendant were unfriendly, that the parties are persons of humble position in the community in which they reside, that defendant had some provocation because the plaintiff and her husband, who had been tenants of defendant, abandoned their tenancy leaving a balance of the rent and a small debt for borrowed money unpaid, and that it does not appear that defendant is in affluent circumstances, the amount of the verdict is manifestly excessive. It is true that the parties are of comparatively humble station, and that the slanders were circulated among a small number of people in the community; yet, as was remarked by the court of the defendant in Casey v. Hulgan, 118 Ind. 590, 21 N. E. 322, the defendant was not troubled with a stammering tongue nor was she slow of speech. She was evidently actuated by a spirit of malevolence toward plaintiff, as appears from the many repetitions of words of the same import as those laid in the complaint. While she may have had some cause to complain that plaintiff’s husband did not promptly pay the balance of the indebtedness due her, the jury were justified in the conclusion that his delinquency in this regard was to be attributed to his inability rather than any disinclination to do so. His income consisted of his daily wages as a miner, and during the latter part of the tenanby his expenses had been materially increased by the illness and death of a son. In any event, his failure to discharge his debt was no justification for the vicious, groundless assault made by the defendant upon the character of the plaintiff, to this extent destroying the only possession of substantial value wfhich she apparently had. She was entitled, upon the evidence to recover substantial damages, and, in the discretion of the jury, punitive damages also. In such cases there is no accurate standard by which to measure the injury. The amount to be awarded is peculiarly within the discretion of the jury after taking into consideration all the circumstances appearing from the evidence. The court ought not to interfere unless the sum awarded is so large as to raise a presumption that the amount fixed was due to some gross error on the part of the jury, arising out of a misconception of the case or the result of undue motives. (Newell on Slander and Libel, 848.) Furthermore, the discretion of the trial court in granting or refusing a new trial on the ground urged here is moved by several considerations which this court cannot take into account. Among these is a personal view by the trial judge of the parties and their witnesses. His action must, therefore, be accepted as final unless after making due allowance for the superior position he occupies toward the case, this court is compelled to the conclusion that he has been guilty of an abuse of discretion. While upon the whole case disclosed by the evidence we doubt whether -the’ jury should not have found a less sum, the existence of this doubt is itself sufficient to rebut any presumption, which might otherwise be indulged, that the trial court was guilty of a manifest abuse of discretion in refusing to grant a new trial.
The judgment and order are affirmed.
Affirmed.
Mr. Justice Holloway and Mr. Justice Sanner concur.
|
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
From the first Monday of January, 1905, to the first Monday in January, 1909, W. E. Davies was the duly elected, qualified and acting clerk of the district court of Silver Bow county. During a portion of that period W. P. Farrell was his chief deputy. The American Bonding Company of Baltimore was the surety on Davies’ official bond. During the time Farrell was acting as deputy clerk he issued false and fictitious jurors’ certificates, none of which bore the imprint of the official seal, and these certificates, to the amount of $2,076, came into the possession of the State Savings Bank of Butte and were by it presented to the county treasurer and paid. The fraudulent character of the certificates having been discovered, the county made demand upon the clerk of the district court and the bonding company, his surety, to repay the amounts which the county had paid out on such certificates, and, this demand having been refused, action was commenced by the county and prosecuted to favorable judgment, which judgment was affirmed on appeal by this court. (County of Silver Bow v. Davies et al., 40 Mont. 418, 107 Pac. 81.) The bonding company having paid the judgment, which included the amount received by the State Savings Bank, took an assignment of any right of action which the county may have had against the bank, and thereupon commenced this action to recover from the bank the $2,076 which the bank had received from the county upon the fictitious certificates held by it. The complaint sets forth the foregoing facts somewhat more in detail, and concludes by alleging that the bank has not repaid or returned to the county or to the bonding company the $2,076, or any part thereof. To this complaint a demurrer was interposed and sustained, and plaintiff electing to stand upon its complaint, suffered judgment to be entered against it and appealed. The only question presented for our determination is: Does the complaint state a cause of action in favor of the bonding company and against the bank?
The facts concerning Farrell’s peculations and the character of the instruments which he issued will be found detailed at length in In re Farrell, 36 Mont. 254, 92 Pac. 785, and in County of Silver Bow v. Davies et al., referred to in the statement above. Appellant insists that the certificates held by the bank were void, citing In re Farrell, above, and therefore the bank had no just claim against the county for their payment; that, having paid the bank the face value of the certificates, the county could have recovered back the money so paid in an action for money paid by mistake. To this extent appellant’s contention may be conceded for the purposes of this appeal. It is further insisted that since the county chose to proceed against the district clerk and the surety company, — the surety on his official bond,- — to compel them to make good tfie county’s loss, the surety company, upon paying the amount which the bank had received from the county, thereby became subrogated to the right which the county had to compel the bank to repay the amount which it had received. With this contention we do not agree. Furthermore, it must be conceded that if the bank would have had a cause of action against the bonding company in case the county had refused to pay the fictitious certificates, then the bonding company cannot have a cause of action against the bank in this instance.
1. Assuming that the county of Silver Bow had a cause of action against the bank to recover back the money it paid out on spurious certificates, it does not follow that by paying the county’s loss the surety on the clerk’s official bond became subrogated to the county’s right. The doctrine of subrogation had its origin in the civil law. It has been adopted and invoked by the courts of equity in order that justice may be done as nearly as possible. The application of the doctrine must therefore depend upon the circumstances of each particular case. When, therefore, this surety company seeks to be subrogated to the right which the county may have had against the State Savings Bank, it is necessary that something more be made to appear than that the bank could have been made to repay to the county the amount which it received upon the spurious certificates which it [held. The surety company must show that as between it and the State Savings Bank, if either must suffer loss because of Farrell’s peculations, in equity and good conscience the bank should be the one to lose. This is the rule recognized with practical unanimity. (American Bonding Co. v. Welts, 193 Fed. 978, 113 C. C. A. 598; United Fidelity & G. Co. v. Title Guaranty & Surety Co., 200 Fed. 443.) Does this complaint show such a state of facts? We think not. There is not any charge of negligence or wrongdoing on the part of the bank in purchasing the certificates. So far as the complaint discloses, the bank acted in perfect good faith, and was following a common custom in dealing in these certificates without their bearing the impress of the official seal. Someone must suffer now for Farrell’s official miscon duct. Shall it be the bank which acted in good faith and parted with its money for the spurious certificates issued by Farrell, or shall it be the surety company which for a compensation undertook to be responsible for Farrell’s official delinquencies not only to the state, and to Silver Bow county, but to this bank as well ? To such an inquiry a court of conscience can make but one answer. Upon the showing made in its complaint, the' surety company has failed to show .itself entitled to be subrogated to the right which the county may have had. (Stewart v. Commonwealth, 104 Ky. 489, 47 S. W. 332.) For this reason the complaint does not state a cause of action.
2. According to the allegations of this complaint, the State Savings Bank is in possession of and holds the legal title to the money which it secured from the county upon the fictitious certificates. At law this surety company would not have any right of action against the bank; but to state a cause of action at all it must allege such facts as will appeal to the conscience of a court of equity. If the equities of the respective parties are equally balanced, the position of the defendant— the possessor of the thing in controversy — is the better; in other words, the legal title, added to its equity, prevails over an equal equity which has no legal title to support it. (2 Pomeroy’s Equity Jurisprudence, 3d ed., secs. 727, 768; Fidelity Mut. Life Ins. Co. v. Clark, 203 U. S. 64, 51 L. Ed. 91, 27 Sup. Ct. Rep. 19.)
3. If the county had refused to pay the certificates held by the bank, would the bank have had a cause of action against the surety company for its loss? The surety company was responsible for Farrell’s official misconduct (Rev. Codes, sec. 384), to any party injured thereby, and such party could maintain an action for his damages (sec. 398). That it was Farrell’s official misconduct which caused the county’s loss has been judicially determined. (County of Silver Bow v. Davies et al., above; Board of County Commissioners v. Sullivan, 89 Minn. 68, 93 N. W. 1056.) If the county had refused to pay the certificates, the resulting loss to the bank would have been occasioned by the same acts of official misconduct (Stewart v. Com monwealth, above), and it is not any defense that by omitting to stamp the impress of the seal upon the certificates, Farrell avoided punishment or set afloat securities which were invalid. (County of Silver Bow v. Davies et al., above.) It would seem to follow as of course that the bank’s right of action against the surety company under such circumstances would be absolute.
To sustain their contentions, counsel for appellant rely upon the decision in National Surety Co. v. State Savings Bank, 15fi Fed. 21, 13 Ann. Cas. 421, 14 L. R. A. (n. s.) 155, 84 C. C. A. 187. Bourne, the deputy auditor of Ramsey county, Minnesota, fraudulently issued spurious refunding orders on the county treasurer, procured the chairman of the board of county commissioners to authenticate them, indorsed the names of the fictitious payees, and then sold the orders to the State Savings Bank. The bank presented them for payment and received from the county their face value, with accrued interest. The fraud having been discovered, the county brought action against the auditor and the surety company, the surety on his official bond, and recovered. The surety company, having paid the county, commenced an action against the bank’ to recover the amount which the bank had collected from the county. A general demurrer to the bill was sustained. The surety company appealed to the circuit court of appeals for the eighth circuit. The majority of the court held that Bourne’s personal, as distinguished from his official, misconduct would have been the proximate cause of the bank’s loss had the county refused to pay the orders, and therefore the surety on the auditor’s official bond could not be held responsible for such personal misconduct. But it was Bourne’s official misconduct which called the spurious orders into existence. (Board of County Commrs. v. Sullivan, above.) If he had issued them to real persons, but to persons not entitled to them, and such persons had negotiated them to the bank, there is not any question that the bonding company would have been liable to the bank for the injury sustained. Now by just what species of legal legerdemain Bourne’s forgeries of the indorsements of the fictitious payees, added to his wrongful act in issuing the spurious orders, could operate to relieve the surety company is beyond our comprehension. It was further held that since the orders were nonnegotiable — made so by statute for the very purpose of preventing misuse of them — the bank was guilty of gross negligence in purchasing them without inquiry, and for that reason it could not have recovered from the surety company if the county had refused payment. But, as pointed out in the dissenting opinion of Judge Hook, there was not anything before the court -to justify it in assuming the existence of such a state of facts. It was further decided that, since the bank had procured from the county upon these fictitious certificates money to which it was not entitled as against the county, the county might have recovered it back, and since the county proceeded against the surety on the auditor’s official bond and enforced payment, the surety company became thereby subrogated to the right which the county might have exercised, to proceed against the bank, and this, too, without any apparent consideration of the relative equities of the respective parties. Upon each of the questions decided, Judge Hook dissented, and in our opinion his position upon each question is unassailable. It is also worthy of note that this case was remanded to the district court for further proceedings; that answer was filed, issues joined, the cause tried, and judgment rendered in favor of the bank on the merits. The surety company again appealed; but this time the same circuit court of appeals — two of the judges being different persons — affirmed the judgment (National Surety Co. v. Arosin et al., 198 Fed. 605, 117 C. C. A. 313), and held that the bank was not guilty of negligence in purchasing the orders; and that it was Bourne’s official misconduct in manufacturing the orders which was the primary cause of the loss. Nothing is said upon the question of subrogation. In our opinion, there is not any substantial difference in the facts disclosed upon the trial and those appearing upon the face of the bill in the first appeal, and that the decision upon the second appeal ought to be treated as overruling the decision of the majority upon the first appeal. But whether it be so considered or not, we decline to follow the majority opinion upon the first appeal as unsound, and as opposed to the decided weight of authority.
Rehearing denied June 28, 1913.
The complaint does not state a cause of action, and the judgment of the district court is affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Sanner concur.
|
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] |
MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
The purpose of this action is to recover damages for the death of Michael Melville, which is alleged to have been caused by the wrongful act of the defendant. The plaintiffs are the widow and minor children of the deceased, and sue as his heirs.
The facts showing how the accident occurred may be briefly stated as follows: On the evening of December 6, 1909, the deceased was in the employ of the defendant as shift boss and pumpman. He had gone on shift at about 7 o’clock in the morning, and had worked continuously from that time until he was injured. He and four other men constituted the shift. They were engaged in excavating a third compartment to the defendant’s mining shaft. The work had begun at the 500-foot level, and had progressed upwmrd to the 200-foot level. The two compartments already constructed were used, respectively, for pumping and hoisting purposes. During the work the men stood upon a bulkhead, which extended over the three compartments of the shaft. Owing to the presence of the men there, the cage could not be lowered entirely to the level of the bulkhead. Therefore, in order to remove the debris resulting from the excavation, the men shoveled it into buckets, which were raised, one at a time, to the surface by means of a hook attached to the underside of the deck of the cage. When a bucket was ready to be raised, it was hooked to the cage; then, at a signal by the bell to the engineer at the surface, the cage was raised about five feet, or far enough to clear the bucket from the bulkhead. It was then stopped long enough to enable the men to steady the bucket, so that it would not swing back and forth and bump into the timbers on the way up. Upon the giving of a second signal, it was raised to the surface. When the change shift went on at 3 o’clock in the afternoon, it was found that the air-hose line had been broken by blasts set off by the morning shift. The air-line came down from the surface by way of the pump compartment, and through the other compartment into the excavation. The deceased, having charge of this shift also, undertook to repair the hose. The point at which the break in it had occurred was some fifteen feet above the level of the bulkhead. The deceased went up on the cage to this point, and stepped off upon the timbers separating the pump compartment from the hoist compartment. There being ample room for the cage to pass and repass him, he ordered the men below to send the cage up. Upon its return trip another bucket was attached to it, and the signal given to raise it. As usual, it was stopped for a moment to steady the bucket. By that time the deceased had completed the repairs, and, desiring for some reason to go to the surface, without giving notice to anyone of his intention to do so, he attempted to step upon the cage as it passed the position where he was standing. He missed his footing, was caught between the cage and the timbers, and so badly injured that he died within a few days thereafter.
The wrongful act for which recovery is sought is alleged in the complaint substantially as follows: That the deceased was working underground in defendant’s mine in the capacity of shift boss and pumpman; that' on December 6, 1909, the defendant wrongfully and intentionally required him to remain at work continuously for a period of more than eight hours; that after he had been engaged for more than eight hours he was “dealt by and in and from said required employment grievous bodily injuries, from which he died thereafter' on the twelfth day of December, 1909”; and that there was not, at the time of the injury, any emergency by which life or property was in imminent danger. The answer denies generally the allegations of the complaint. It alleges that the injury of the deceased was due solely to his own negligence in attempting to step upon the cage while it was in motion, and that in so doing he assumed the risk, knowing the danger thereof. The .reply joins issue upon these allegations.
It will be observed that the complaint does not allege that the deceased was in such a condition of mental and physical exhaustion, induced by overwork, that he was unable to give proper attention to his surroundings, and that this was the efficient cause of his injury. Though the evidence does not show definitely whether the deceased had continued work after the lapse of eight hours at the instance of defendant’s superintendent, or whether he did it voluntarily to accommodate the shift boss who should have relieved him, it is conceded, for the purposes of this ease, that he continued at work, with the knowledge of the superintendent, under a standing order made by bim that each shift boss should continue at work until he was actually relieved by his successor. At the close of the evidence the court granted a nonsuit and rendered judgment for the defendant. The appeal is from the judgment. Did the court err in granting the nonsuit ?
The plaintiffs are entitled to recover, if at all, under section 6486-of the Revised Codes, which declares: “When the death of a person not being a minor is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death, or if such person be employed by another person, who is responsible for his conduct, then also against such other person. In every action under this and the preceding section, such damages may be given as under all the circumstances of the case may be just.”
The theory of counsel for plaintiffs is that the. provisions of the Codes which declare that “the husband must support himself and wife out of his property or by his labor,” etc. (Rev. Codes, sec. 3692), and that “the parent entitled to the custody of a child must give him support and education suitable to his circumstances,” etc. (Id., sec. 3741), andi similar provisions, confer vested rights upon the wife and children to support by the father; and that in every case where they have been deprived of this support by the death of the father, caused by the wrongful act or neglect of another, they have a cause of action against such other person, without regard to whether the father, if death had not ensued, could have maintained an action in his own behalf. It is argued, therefore, that, since the deceased was injured while at work at the request of the defendant, in violation of the provisions of sections 1739 and 1740 of the Revised Codes, though the death was caused wholly by the negligence of the deceased himself, the defendant is to be deemed guilty of his death by wrongful act, within the meaning of the statute.
Sections 3692 and 3741, supra, are not pertinent to the present inquiry. They may be dismissed from consideration, with the remark that, so far as they go, they declare the mutual obligations of the husband and wife with reference to the support of the family and the education of the children. They enjoin duties upon the living parents, and do not purport to confer vested rights upon the wife and children, within the meaning of the expression “vested rights” as it is ordinarily used.
Section 1739, supra, declares that eight hours shall constitute a day’s work upon public works and in certain industries, in- eluding operations in underground mines. Section 1740 declares a violation of any of its provisions to be a misdemeanor, punishable by fine or imprisonment, or both. In State v. Livingston Concrete etc. Co., 34 Mont. 570, 9 Ann. Cas. 204, 87 Pac. 980, these provisions were examined by this court. It was held that the inhibition contained in the latter includes both employer and employee, and renders both subject to the penalty whenever the former eauses the employee to work and the latter works for a period longer than eight hours. We shall not undertake to question the contention of counsel that the continuance of work beyond the statutory period is to be deemed a proximate cause of Michael Melville’s death. 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 in its character or not. (Wharton on Negligence, see. 443; Bishop on Noncontract Law, sec. 132; 1 Thompson’s Commentaries on the Law of Negligence, secs. 10, 210; Queen v. Dayton Coal & I. Co., 95 Tenn. 458, 49 Am. St. Rep. 935, 30 L. R. A. 83, 32 S. W. 460; Pauley v. Steam Gauge & L. Co., 131 N. Y. 90, 15 L. R. A. 194, 29 N. E. 999; Pelin v. New York C. Ry. Co., 102 App. Div. 71, 92 N. Y. Supp. 468; Scally v. W. T. Garratt & Co., 11 Cal. App. 138, 104 Pac. 325.) A violation of the statute is negligence per se, or, properly speaking, legal negligence. (Osterholm v. Boston & Mont. C. & S. Min. Co., 40 Mont. 508, 107 Pac. 499; Neary v. Northern Pac. Ry. Co., 41 Mont. 480, 110 Pac. 226.) But the rule thus broadly stated does not preclude the defendant from showing that the negligence of the plaintiff was a proximate cause of the injury, or that he assumed the risk, and hence is not entitled to recover. The purpose of such statutes being to protect the employee or the public, they do not abrogate these defenses, unless they expressly so declare. Their effect is to render a failure to comply with their requirements negligence per se, or legal negligence, and not to excuse negligence in other persons. (4 Thompson’s Commentaries on the Law of Negligence, secs. 210, 4622; Bishop on Noncontract Law, sec. 140; Osterholm v. Boston & Montana C. C. & S. Min. Co., supra.)
If a violation of the statute by the employer is negligence, it is equally so on the part of the employee; and if the disobedience, on the one hand, is a proximate cause of the injury, so the dereliction, on the other hand, must be regarded as a contributing proximate cause; for the disobedience is concurrent, and the injury is the result of the concurrent causes which operated to the same end. In such a case the employee cannot recover, because, in alleging the injury, he must, of necessity, allege his own fault. It is the general rule that an action never lies when the plaintiff must base his claim, in whole or in part, on the violation of a criminal or penal law of the state. (Lloyd v. North Carolina R. R. Co., 151 N. C. 536, 66 S. E. 604; Nottage v. Sawmill Phoenix (C. C.), 133 Fed. 979; McGrath v. Merwin, 112 Mass. 467, 17 Am. Rep. 119; Louisville etc. Ry. Co. v. Buck, 116 Ind. 566, 9 Am. St. Rep. 883, 2 L. R. A. 521, 19 N. E. 453; Little v. Southern Ry. Co., 120 Ga. 347, 102 Am. St. Rep. 104, 66 L. R. A. 509, 47 S. E. 953; Voshefskey v. Hillside C. & I. Co., 21 App. Div. 168, 47 N. Y. Supp. 386; Thompson’s Commentaries on the Law of Negligence, secs. 10, 204, 249.) This rule finds expression in section 6192 of the Revised Codes, as follows: “Between those who are equally in the right, or equally in the wrong, the law does not interpose.” If, therefore, Michael Melville had survived, he could not have maintained an action, for the obvious reason that the evidence discloses, in the first place, that his injury was due to his own reckless conduct, and, in the second place, if this were not so, for the reason that he would have to rely on the violation of the statute by the defendant and thus show that he was himself in pari delicio with the defendant, and hence base his claim upon his own criminal conduct.
Counsel insist, however, that the statute, supra, creates a cause of action in favor of the wife and children because of the wrong done to them; and that, since the defendant’s violation of the penal statute was a proximate cause of the death of the hus band and father, the death was caused by its wrongful act, within the meaning of the statute, without regard to the negligence of which the deceased was himself guilty. In other words, the defenses of contributory negligence, assumption of risk, etc., which would have been available against the deceased if he had brought the action, are not available to the defendant in this action. This contention presents the real question in the case, viz.: Do the words of the statute “wrongful act or neglect of another” imply actionable wrong or negligence toward the deceased, or toward the surviving wife and children? It is thus made necessary to examine and construe the statute in the light of its history and the expression of opinion by the courts generally as to the purpose of such enactments.
At the common law one who was injured by the wrongful act of another had his action for the wrong. If he died before his action was brought, his right of action died with him. If he had brought his action, but died before judgment, the action abated. So, also, it was the rule that for the death of one person, caused by the wrongful act of another, there was not any remedy by civil action. (Dillon v. Great Northern Ry. Co., 38 Mont. 485, 100 Pac. 960.) To avoid this condition the English Parliament enacted what is commonly known as Lord Campbell’s Act (9 & 10 Vict. 93). This statute created a new right of action in favor of the kindred of the deceased for the damage sustained by them through the death of the deceased. In 1872 the legislature of the territory of Montana enacted a statute containing two sections, the first of which was substantially the first section of Lord Campbell’s Act. The second was a modification of the second section of that Act, in that it limited the amount of recovery and also the time within which the action might be brought. This Act was as follows:
“Sec. 1. Whenever the death of a person shall be caused by (a) wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or the corporation or company which would have been liable if death had not ensued, shall be liable for an action for damages, notwithstanding the death of the person injured and although the death shall have been under such circumstances as amount in law to felony.
“Sec. 2. Every such action shall be brought by, and in the name of, the personal representatives of such deceased persons, and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may give such damages, not exceeding twenty thousand dollars, as they shall deem a fair and just compensation, with reference to the pecuniary injuries resulting from such death, to the wife and next kin of such deceased person: Provided, that every such action shall be commenced within three years after the death of such person.” (Codified Statutes 1871-72, Chap. 61.)
The statute was thereafter retained in the various compilations and revisions of the laws of the territory and state until the Revision of 1895, from which it was omitted. (Rev. Stats. 1879, 5th Div., secs. 491, 492; Comp. Stats. 1887, 5th Div., secs. 981, 982.) In 1877 the territorial legislature enacted a complete Code of Civil Procedure. Section 14 of that Code is identical with section 6486 of the Revised Codes, supra. This provision was doubtless copied from the Code of Civil Procedure of California, as amended by the Act of March 24, 1874. (Cal. Code Civ. Proc., sec. 377.) However this may be, it has ever since been retained as a part of our Code of Civil Procedure. (Rev. Stats. 1879, 1st Div., sec. 14; Comp. Stats. 1887, 1st Div., sec. 14; Code Civ. Proc. 1895, sec. 579; Rev. Codes, sec. 6486.) The purpose had in view by the legislature is apparent. It was to provide the procedure by which the right of action created by the first section might be enforced, and to substitute it in the place of the second section of the older Act. The older Act was not repealed, but was allowed to stand undisturbed, except so far as the later Act, by implication, modified and became a substitute for the second section of it. The modification wrought by it was to except minors from its operation, to omit the limitation as to the amount of recovery and as to the time within which the action must be brought, and to authorize the heirs, as well as the personal representative, to maintain the action; whereas under the old statute it could be maintained by the personal representative only. It is thus apparent that the cause of action contemplated by the enactment of 1877 was the same as that created by the older Act; for the retention of both provisions in all subsequent compilations and revisions of the laws, up to the adoption of the Codes of 1895, the one in the Code of Civil Procedure and the other among the general laws, required both to be construed together as establishing the law on the subject, and compels the conclusion that the later Act, though its terms are appropriate to confer a right, was not intended to confer a different right from that created by the older. The meaning of the expression “wrongful act or neglect of another” thus became established and clearly limited to those eases only wherein the death is wrongful as against the deceased, and to preclude recovery when death was due to the decedent’s own fault. And though the legislature omitted from the Codes óf 1895 the general provision creating the right, and retained only the provision as now incorporated in the portion of the Code devoted to the subject of Civil Procedure, it evidently did so, not with the intention of creating a new right of action, but upon the theory that the provision as it now stands would effectually preserve the right as then declared by the omitted provision. This conclusion becomes necessary when we observe that the Code of Civil Procedure of 1895 declared: ‘ ‘ The provisions of this Code, so far as they are substantially the same as existing statutes or the common law, must be construed as continuations thereof, and not as new enactments.” (Code Civ. Proc. 1895, sec. 3454.) The same provision is found in the present Code. (Rev. Codes, sec. 8062.)
While this court has never expressly determined the question at bar, it has in many eases recognized the rule that recovery can be had only in a case in which the deceased was himself without fault. Some of the decisions of this court were made prior to the adoption of the Codes of 1895. Many more of them have been made since that time. We cite the following: Johnson v. Boston & Mont. Min. Co., 16 Mont. 164, 40 Pac. 298; Thompson v. Montana C. Ry. Co., 17 Mont. 426, 43 Pac. 496; Dillon v. Great Northern Ry. Co., supra; Meehan v. Great Northern Ry. Co., 43 Mont. 72, 114 Pac. 781; Neary v. Northern Pac. Ry. Co., 41 Mont. 480, 110 Pac. 226; Bracey v. Northwestern Imp. Co., 41 Mont. 338, 137 Am. St. Rep. 738, 109 Pac. 706; Poor v. Madison R. P. Co., 41 Mont. 236, 108 Pac. 645; O’Brien v. Corra-Rock Island M. Co., 40 Mont. 212, 105 Pac. 724; Neary v. Northern Pac. Ry. Co., 37 Mont. 461, 19 L. R. A., n. s., 446, 97 Pac. 944; Rilcy v. Northern Pac. Ry. Co., 36 Mont. 545, 93 Pac. 948; Mulville v. Pacific M. L. Ins. Co., 19 Mont. 95, 47 Pac. 650; Hunter v. Montana Central Ry. Co., 22 Mont. 525, 57 Pac. 140.
The interpretation thus given the statute by the legislature, and impliedly by these decisions of this court, has become so firmly established as the rule of decision in this jurisdiction that we do not feel justified in departing from it. To sustain the plaintiff’s contention would be to adopt an interpretation which the legislature never intended that the statute should have and thus destroy defenses of which defendant cannot be deprived, except by Act of the legislature. If a change should be wrought, it is the office of that body to make it, and not of this court.
Similar statutes have been enacted in many of the states of the Union, and have been under consideration by the courts. We shall not enter into an examination of the numerous decisions interpreting them. The following more or less directly support our conclusion: Northern Pacific Ry. Co. v. Adams, 192 U. S. 440, 48 L. Ed. 513, 24 Sup. Ct. Rep. 408; McDonald v. Eagle & Phoenix M. Co., 68 Ga. 830; Casey v. Louisville & N. Ry. Co., 84 Ky. 79; Jones v. Manufacturing & I. Co., 92 Me. 565, 69 Am. St. Rep. 535, 43 Atl. 512; Louisville Ry. Co. v. Raymond’s Admr., 135 Ky. 738, 27 L. R. A., n. s., 176, 123 S. W. 281; Hill v. Pennsylvania Ry. Co., 178 Pa. 223, 56 Am. St. Rep. 754, 35 L. R. A. 196, 35 Atl. 997; State v. Manchester & L. R. R. Co., 52 N. H. 528; Clark’s Admr. v. Louisville & N. Ry. Co., 101 Ky. 34, 36 L. R. A. 123, 39 S. W. 840; Watts v. Murphy, 9 Cal. App. 564, 99 Pac. 1104; Schneider v. Market St. Ry. Co., 134 Cal. 482, 66 Pac. 734. (See, also, 1 Shearman & Redfield on the Law of Negligence, sec. 65; Thompson’s Commentaries on the Law of Negligence, sec. 7071.)
Counsel for the plaintiffs cite and rely with confidence on the case of Northern Pac. Ry. Co. v. Adams, 116 Fed. 324, 54 C. C. A. 196. This was an action for wrongful death under the statute of Idaho identical with section 6486, supra. The trial court instructed the jury as follows: “You are not to consider what was the duty of this carrier toward Mr. Adams, who was killed, but the duty which the defendant owed to these plaintiffs; and the duty which they have the right to exact from the defendant in this case is the same duty which the defendant company owed to the public in general.” The circuit court of. appeals, by affirming the judgment in favor of plaintiffs, approved the above instruction, thus holding, in effect, that the right to recover was granted by the statute and existed without reference to what right the deceased would have had, had he survived the injuries and had himself brought an action. In reversing the judgment, the supreme court of the United States (192 U. S. 440, 48 L. Ed. 513, 24 Sup. Ct. Rep. 408) said: “The two terms, therefore, ‘wrongful act’ and ‘neglect,’ imply alike the omission of some duty, and that duty must, as stated, be a duty owing to the decedent. It cannot be that, if the death was caused by a rightful act, or an unintentional act with no omission of duty owing to the decedent, it can be considered wrongful or negligent at the suit of the heirs of the decedent. They claim under him, and they can recover only in case he could have recovered damages had he not been killed, but only injured. The company is hot under two different measures of obligation — one to the passenger and another to his heirs. If it discharges its full obligation to the passenger, his heirs have no right to compel it to pay damages.”
The judgment is affirmed.
Affirmed.
Mr. Justice Holloway and Mr. Justice Sanner concur.
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
The plaintiff was employed by the defendant company as a stationary engineer, and while in the discharge of his duties was injured. He brought this action to recover damages. In his complaint he describes somewhat minutely certain working parts of the engine, and alleges that a bracket which supported a valve-rod, on the end of which rod was a clutch designed to engage and raise the dash-pot rod, had been broken; that it had been repaired and kept in use until it became loose, rickety, unstable and failed properly to perform its function, with the result that the valve-rod and clutch, no longer kept in place, also failed to perform their duties; that this defect in the bracket was known to the defendant company, or should have been known to it, but that such defect was latent, unknown to the plaintiff and undiscoverable in the exercise of ordinary care while the engine was running; that there was a tension spring attached to the clutch for the purpose of regulating the contact of the clutch with the dash-pot rod; that on August 5, 1908, when plaintiff went to work, he was informed by the defendant’s foreman, who was then in charge of the engine, that the machinery was in proper working condition, except, perhaps, that the tension spring was loose ; that this information was false and misleading but believed by the plaintiff to be true, and was relied upon by him; that when the clutch failed to attach to the dash-pot rod, he, relying upon the information given him by the foreman, undertook to tighten the spring while the engine was running, with the result that his hand was caught in the machinery and cut and injured, and that his injury was caused proximately by the broken and defective condition of the bracket. The defendant interposed a demurrer and motion to strike, and, these being overruled, answered’ denying the allegations of its negligence and pleading contributory negligence and assumption of risk. Upon these affirmative pleas there w„as issue by reply. The trial of the cause resulted in a verdict for the plaintiff, and from the judgment entered thereon and from an order denying it a new trial, the defendant appealed.
1. We are unable to agree with counsel for appellant in their analysis of the complaint. In the statement above we have fairly epitomized the allegations, and while the pleader might be convicted of prolixity, the essential facts necessary to a statement of the cause of action are not difficult to detect. Terseness of expression is a most refined accomplishment, but it cannot be enforced as a rule of pleading.
Counsel for appellant err in construing an allegation of knowledge at the time the complaint was prepared into an admission of knowledge at the time the injury occurred. A careful reading of the complaint makes clear the plaintiff’s meaning.
2. Over the objection of defendant, evidence was introduced of certain things done by the defendant after the accident, in the nature of repairs and replacements. Upon the submission of the cause defendant requested an instruction withdrawing this evidence from the consideration of the jury altogether. The request was denied and error is predicated upon the ruling. It is elementary that evidence of repairs or improvements is not evidence of prior negligence. The plaintiff assumed the burden in this instance of showing (a) that the bracket was out of repair at the time he was injured, and (b) that such condition was due to the defendant’s negligence. While evidence of the condition of the bracket on the day following the injury would not tend to prove negligence, it might throw light upon the condition of the bracket when the injury occurred, and for this purpose the evidence was admissible.
In support of their contention that error was committed, counsel for appellant cite Limberg v. Glenwood Lumber Co., 127 Cal. 598, 49 L. R. A. 33, 60 Pac. 176. That case was decided upon the authority of Sappenfield v. Main St. etc. Ry. Co., 91 Cal. 48, 27 Pac. 590. In each of these eases the court proceeded upon the theory that the only purpose for which the evidence of after-repairs was offered was to prove prior negligence. However, in the later case of Dow v. Sunset T. & T. Co., 157 Cal. 182, 106 Pac. 587, the same court clearly distinguishes between the rule which excludes evidence of after-repairs as proof of prior negligence, and the rule which admits evidence of defective condition after the injury, as tending to prove the like condition at the time of the injury.
In 3 Bailey on Personal Injuries, second edition, section 782, page 2101, it is said: “So the fact that a defective appliance was repaired after an accident may be shown upon the question of what was broken, and how, and what was wanting, although improper for the purpose of showing the employer was negligent in not making repairs and alterations before the accident.”
When the evidence was offered, counsel for plaintiff announced: “This is for the purpose of showing that the bracket absolutely was unstable and rickety at the time Mr. Titus was hurt. We propose to show the next day that they propped it up with a block of wood.” For the purpose indicated the evidence was admissible. (Pullen v. City of Butte, 45 Mont. 46, 121 Pac. 878, approving Dow v. Sunset T. & T. Co., above.) Instead of requesting the trial court to charge the jury to disregard the evidence, the defendant should have asked for an instruction limiting the effect of such evidence. Having failed to make a proper request, it cannot complain that the court refused their erroneous instruction.
3. Complaint is made that counsel for defendant were re- stricted unduly in their cross-examination of the witness Howley. The record discloses, however, that the same witness was thereafter called by the defendant and testified at length as to the matters involved in his cross-examination while a witness for plaintiff; so that if any error was committed, it was error without prejudice. It is idle for counsel to appeal to this court for a reversal upon a bare apex juris.
4. It is urged that this record discloses that in attempting to tighten the spring, plaintiff assumed the risk of injury. If his act had been entirely voluntary, there might be some ground for this contention; but it appears that when plaintiff went on shift he was informed by the foreman, who was then, and had been during the preceding shift, in charge of this engine, that if there was anything the matter with the engine causing it to miss, the fault was in the loose spring. Plaintiff had a right to rely upon this information coming from one whose business it was to know, and he testified that he did so. Under the circumstances as here disclosed the foreman in effect substituted his own judgment for that of the plaintiff, and the defendant company must bear the responsibility for the consequence of the error of its vice-principal due to his negligence in failing to make investigation which would have disclosed the true nature of the trouble. (4 Labatt’s Master and Servant, 2d ed., secs. 1373-1375; Toone v. O’Neill Constr. Co. (Utah), 121 Pac. 10.) The question of assumption of risk properly went to the jury.
5. Plaintiff’s situation was not materially different from what it would have been had the foreman specifically ordered him to attempt to tighten the tension spring with his fingers while the engine was in motion. The evidence is all to the effect that if the trouble had been caused by a loose tension spring, it could have been cured safely by the method adopted by the plaintiff. The real difficulty was with the loose bracket, and because of the engine’s vibration, this could not be discovered while the engine was running under a load. Under these circumstances the plaintiff may properly invoke the rule that if the master orders the servant into a situation of danger, and in obeying the command he is injured, the law will not charge him with contributory negligence, unless the danger was so glaring that no prudent man would have entered into it, even under orders from one having authority over him.” (Wurtenberger v. Metropolitan St. Ry. Co., 68 Kan. 642, 75 Pac. 1049.)
The other alleged errors do not demand separate consideration. The judgment and order are affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Banner concur.
|
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MR. JUSTICE HOLLOWAY.
The facts in this case are identical with those in Curry v. McCaffery, this day decided (ante, p. 191), and upon the authority of that ease the judgment is reversed and the cause is remanded for further proceedings.
Reversed and remanded.
Mr. Chief Justice Brantly and Mr. Justice Sanner concur.
Messrs. Alexander Mackel, Wm. F. Davis, H. A. Tyvand, and I. G. Denny submitted a brief in behalf of Appellant; Mr. Davis argued the cause orally.
Messrs. John F. Davies, Kremer, Sanders & Kremer, James E. Healy, John V. Dwyer, and William Meyer, submitted a brief for Respondent; Mr. J. Bruce Kremer and Mr. Healy argued the cause orally.
|
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] |
MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
Appeals by the defendant from a judgment and an order denying his motion for a new trial. Plaintiff brought this action to recover damages for a personal injury suffered by him through the alleged negligence of the defendant. The injury was inflicted under these circumstances:
One Donati and defendant were conducting' a saloon in Meaderville, in Silver Bow county. On the evening of July 31, 1911, the defendant was in charge of the business, Donati being absent. Several persons were present, most of whom were in a room in the rear of the building engaged in gambling. Among these was plaintiff. Defendant was running a roulette wheel. The barroom extends east and west, and fronts to the east; the bar being on the north side. The rear room is reached by a door opening from the barroom. At the west end of the bar a door opens into another room toward the north. From this room a second door opens into the rear room, and a third to the outside toward the west. On the north side of the rear room is a window. One going toward the west from the outside door of the room at the end of the bar may look through the window and observe what is passing within the rear room. While the games were in progress, three men entered the room through a door opening from the rear to rob the players. They commanded all persons present to hold up their hands and face the walls. This they all did, except the defendant, who escaped into the north room. The plaintiff was standing against the west wall. While the robbers were engaged in gathering money from the tables at which games had been in progress, some one on the outside fired a charge from a shotgun through the north window, which struck plaintiff in the abdomen, inflicting a serious wound.
The substance of the charge in the complaint is that the defendant fired the shot with the purpose of preventing the robbery, but that he did it carelessly and negligently, thereby injuring plaintiff. The defendant in his answer denied that he fired the shot. Whether he did or not was the one issue made in the evidence in the district court; it being apparently conceded that defendant’s liability or nonliability depended entirely upon the determination of this issue. Whether the conclusion of the jury is based upon substantial evidence is the only question submitted to us for decision.
The evidence is somewhat voluminous. No useful purpose would be served by a detailed statement of it. A careful reading and analysis of it as a whole, however, produces the conviction that the jury could not reasonably have found otherwise than they did. It is true that the shot was fired through the north window from the darkness outside, and that no one definitely identified the defendant as the person who fired it. Yet it is not disputed that he was in the room north of the bar, immediately before and after the shot came through the window, in possession of a shotgun — the only one on the premises; it being kept there for just such an emergency as arose on the evening in question. These circumstances were supplemented by others-, which cannot be explained on any other reasonable theory than that defendant fired the shot.
The judgment and order are affirmed.
Affirmed.
Mr. Justice Holloway and Mr. Justice Sanner concur.
|
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] |
JUSTICE LEAPHART
delivered the Opinion of the Court.
A.C. Warnack and Kenneth R. McDonald (collectively Wamack) appeal and Coneen Family Trust, Elk Canyon Associates, and J. Bowman Williams (collectively Coneen) cross-appeal from the amended judgment and injunction order of the Fourteenth Judicial District Court, Meagher County. Wamack appeals from the District Court’s determination that the easement at issue here was limited in scope to its use during the prescriptive period, and Coneen appeals from the determination that a prescriptive easement has been established. We affirm.
We address the cross-appeal first and restate the issues raised on appeal and cross-appeal as follows:
1. Did the District Court err in granting Wamack a private prescriptive easement over and across Coneen’s lands?
2. Did the District Court err in restricting use of the prescriptive road easement to its use during the prescriptive period?
3. Should this Court adopt sections 478 and 479 of the Restatement of Property in determining the extent of a prescriptive easement?
This is the second appeal arising out of a dispute between landowners regarding a prescriptive easement. This Court reversed and remanded the District Court’s grant of a prescriptive easement in an earlier opinion, Warnack v. Coneen Family Trust (1994), 266 Mont. 203, 879 P.2d 715 (Warnack I), for reconsideration of whether Wamack had proven the elements of prescription for the full statutory period and for a determination of the scope of the claimed prescriptive easement.
On remand, the District Court granted the easement finding that Warnack had satisfied the elements of prescriptive use of the roadway for the full statutory period and that the easement was limited in scope to its use during the prescriptive period. Warnack appeals and Coneen cross-appeals from this determination.
1. Did the District Court err in granting Warnack a private prescriptive easement over and across Coneen’s lands?
Our standard of review for conclusions of law by a district court is whether the court’s interpretation of the law is correct. Warnack I, 879 P.2d at 718 (citing Public Lands Access v. Boone & Crockett (1993), 259 Mont. 279, 283, 856 P.2d 525, 527).
Coneen filed a cross-appeal asserting that the District Court erred in finding that Warnack had established a prescriptive easement. In order to establish an easement by prescription, the party claiming the easement “must show open, notorious, exclusive, adverse, continuous and uninterrupted use of the easement claimed for the full statutory period.” Leffingwell Ranch, Inc. v. Cieri (1996), [276 Mont. 421], 916 P.2d 751, 754 (citing Public Lands Access, 856 P.2d at 527).
The burden is on the party seeking to establish the prescriptive easement to prove all the elements of prescription. Leffingwell Ranch, 916 P.2d at 754. To be adverse, the use of the alleged easement must be exercised under a claim of right and not as a mere privilege or license revocable at the pleasure of the owner of the land. Tanner v. Dream Island, Inc. (1996), 275 Mont. 414, 424-26, 913 P.2d 641, 648. Such claim must be known to and acquiesced in by the owner of the land. Tanner, 913 P.2d at 648. Once the claimant establishes open, notorious, exclusive, continuous and uninterrupted (unmolested) use for the full statutory period, a presumption of adverse use or adversity arises and the burden shifts to the landowner to prove permissive use or license. Warnack I, 879 P.2d at 723. If the owner shows permissive use of the alleged easement, no easement can be acquired because the theory of prescriptive easement is based on adverse use. Tanner, 913 P.2d at 648. This Court has recognized that “ ‘where the use of a way by a neighbor was by express or implied permission of the owner ... continuous use of the way by the neighbor [is] not adverse and [does] not ripen into a prescriptive right.’ ” Tanner, 913 P.2d at 648 (quoting Public Lands Access, 856 P.2d at 528).
In Tanner, we recognized that the plaintiffs were under no duty to communicate to the landowner that they were using the road under a claim of right and adversely to the landowner. Tanner, 913 P.2d at 648. Accordingly, although the plaintiffs bear the burden of establishing that their claim is known to and acquiesced in by the owner, they need not specifically notify the servient landowners that they are using the easement under a claim of right. In this case, Coneen asserts that Warnack did not notify the servient landowners that he was using the primary easement under a claim of right. Coneen further asserts that the use of the easement was a “neighborly accommodation.” Under our holding in Tanner, Coneen’s first argu ment must fail — Warnack was not required to communicate notice. In essence, Coneen’s second argument is that Warnack’s use of the primary easement was not open, notorious, or adverse — that it was a “neighborly accommodation.”
This Court has held that “[i]n order to overcome the [claim of right] presumption, thereby saving its title from the encumbrance of an easement, the burden is on the defendant to show that the use was permissive.” Tanner, 913 P.2d at 648 (citations omitted). In addressing this argument, the District Court found that:
By reason of the foregoing findings, there arises a disputable presumption that the primary easement road was traveled under a claim of right not only by Plaintiffs, [Warnack] but by their predecessors which presumption must be overcome by Defendants [Coneen]. The use of the primary route was in fact exercised under a claim of right and not as a mere privilege or license revocable at the pleasure of the owners of the land and that claim was known to and acquiesced in by the Defendants and their predecessors and such use was adverse to the Defendants.
The Court specifically finds that though there was evidence of a local custom of neighborly accommodation or courtesy relating to many facets of the agricultural endeavors in the area, the use of the primary easement was based more on an assertion of the users’ respective rights to use the road than it was based upon neighborly accommodation.
The court found that Coneen failed to prove that use of the primary easement by Warnack and his predecessors was in any way merely permissive' or by revocable license. The court further noted that Coneen’s assertion that the use had been permissive did not overcome the presumption of adverse use and acquiescence that Warnack established. Accordingly, the court concluded that the primary easement “[h] as been used by Plaintiffs [Warnack] and their predecessors in an open and notorious manner, under claim of right, and such use has been adverse for a period of time exceeding the statutory period consisting of the early 1950’s through October 1, 1988[.]”
The District Court’s determination that Warnack had established an easement by prescription is well supported by the record. For example, Coneen’s predecessor in interest, Jeff Doggett, testified that he never objected to Warnack’s, or that of Wamack’s predecessors in interest, use of the road and never required permission to use the road. In addition, Ben Hurwitz, defendant J. Bowman Williams’ predecessor in interest who owned the servient estate from 1950-1991, testified that “[t]he idea of neighborly accommodation assumes that if you are not neighborly anymore that you could somehow stop a person from crossing you, and we never dreamed that we could have stopped anybody that had business on the end of that road.” Although Coneen has pointed to additional or contradictory evidence in the record, we will not substitute our judgment for that of the trial court where the issue relates to the weight given to certain evidence or the credibility of the witnesses. Taylor v. State Compensation Ins. Fund (1996), 275 Mont. 432, 437-38, 913 P.2d 1242, 1245 (citing Burns v. Plum Creek Timber Co. (1994), 268 Mont. 82, 84, 885 P.2d 508, 509). Accordingly, we hold that the District Court was correct in concluding that Wamack had established a private prescriptive easement over Coneen’s property.
2. Did the District Court err in restricting use of the prescriptive road easement to its use during the prescriptive period?
In Warnack I, we remanded the case to the District Court and directed that “if the court determines that the Respondents [Warnack] have met their burden of proof and have established a prescriptive easement over the lands of the Appellants [Coneen],” then the court should determine the appropriate scope and extent of the easement under the following rule: “It is settled law in Montana that in acquiring a prescriptive easement, ‘the right of the owner of the dominant estate is governed by the character and extent of the use during the period requisite to acquire it.’ ” Warnack I, 879 P.2d at 724 (quoting Marta v. Smith (1981), 191 Mont. 179, 183, 622 P.2d 1011, 1013).
We recently reiterated this principle in the case of Ruana v. Grigonis (1996), 275 Mont. 441, 452-54, 913 P.2d 1247, 1255. In Ruana, we stated that “for prescriptive easements, the use of a roadway cannot exceed the use made of it during the prescriptive period.” Ruana, 913 P.2d at 1255.
On remand, the District Court followed our mandate and limited the scope of the easement to its use during the prescriptive period. The court found that Wamack and his predecessors in interest utilized the primary easement in an open, notorious, and exclusive manner continuously and uninterrupted from at least 1950 to 1988. Further, the District Court determined that:
F. The right of the Plaintiffs [Wamack], heirs, successors, assigns and agents to use the primary road easement should be on foot, horseback, and all ordinary modern means of transportation for purpose of access to their lands, construction of a residence and outbuildings as necessary, all for agricultural purposes. Additionally, Plaintiffs have a right to access their property for hunting, fishing, camping and recreation. It is the conclusion of the Court that the easement is governed by the character and extent of its use during the period requisite to acquire it and that the easement can not exceed the use which Plaintiffs and their predecessors made of it during the prescriptive period. This grants Plaintiffs an absolute right to access their property over the primary easement for all agricultural purposes, as well as hunting and fishing recreational purposes. It does not grant an easement for purposes of logging, mineral extraction or exploration, or subdividing of the real property. Such uses of the prescriptive easement would increase the burden on the servient landowners. None of the parties are hereby prohibited from placing gates or cattle guards on their respective properties but if locks are placed on gates, keys or combinations, as necessary, shall be provided to Plaintiffs and their agents.
G. All of the Defendants [Coneen], their heirs, successors, assigns and agents, shall be permanently enjoined and restrained from obstructing or interfering with Plaintiffs’ use and enjoyment of the primary easement.
Warnack asserts that four homesteaders settled on the subject property in the early part of this century, thus, easements for four residences should be allowed. However, Warnack presented the District Court with this argument in his motion to amend the order. The District Court denied this motion to amend. Apparently, the District Court reasoned that during the prescriptive period, the easement had been used for only one seasonal residence and for agricultural and recreational purposes. Thus, under the direction given by this Court on remand in Warnack I, the District Court properly limited the scope of the easement to its use during the prescriptive period. See Ruana, 913 P.2d at 1255.
3. Should this Court adopt sections 478 and 479 of the Restatement of Property in determining the extent of a prescriptive easement?
Warnack urges this Court to adopt sections 478 and 479 of the Restatement of Property. Citing a number of decisions from other jurisdictions, Warnack asserts that an evolutionary approach should be used in prescriptive easement cases to allow greater use of the easement over time. In this regard, Warnack argues that “the inflex ible rule in Marta v. Smith should be reconsidered or clarified.” Although Warnack may not cotton to the result reached by this Court in Marta, and more recently in Ruana, neither decision is the least bit unclear. In fact, on remand, the District Court appropriately applied the principles expressed in Marta finding a prescriptive easement and limiting its scope. The rule expressed in Marta and Ruana accurately reflects the scope of prescriptive easements in Montana and we decline Warnack’s request to adopt sections 478 and 479 of the Restatement of Property.
Affirmed.
JUSTICES NELSON, ERDMANN, GRAY and TRIEWEILER concur.
|
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JUSTICE GRAY
delivered the Opinion of the Court.
V. Mark Rafanelli (Rafanelli) appeals from a judgment of the Fifth Judicial District Court, Madison County, that Hal Dale and his daughters, Virginia Lee Gabig and Paulette Dale-Hutcheon, '(the Dales) have an easement by prescription across a portion of his property. We affirm.
The following issues are raised on appeal:
1. Did the District Court err in concluding that the Dales had acquired a prescriptive easement?
2. Did the District Court err in not concluding that the Dales’ prescriptive easement had been extinguished?
3. Did the District Court abuse its discretion in admitting Exhibit 29 into evidence?
The Dales are the owners of approximately 43 acres of land located in Beall Canyon, Madison County, Montana. The Dales’ property is bordered on the north, west, and south by the Whiterock Ranch, currently owned by Rafanelli (see diagram). The east side of the Dales’ property abuts Forest Service land. The only means of accessing the Beall Canyon property is across land belonging to the Whiterock Ranch.
Hal Dale purchased the Beall Canyon acreage in partnership with his brother, Claude Dale, in 1971. The previous owners were Julian Strawn and his heirs Pearl Strawn, Alice Pasley and Frances Salveson (the Strawns).
Claude Dale died on October 3, 1990. Pursuant to a provision contained in Hal and Claude Dale’s partnership agreement, Hal and his two daughters jointly purchased Claude’s one-half interest in the property from Claude’s widow in February of 1992.
The Whiterock Ranch was purchased by Knight Carson and his family (the Carsons) in 1972. The Carsons sold the ranch to June and Ronald Thomas (the Thomases) in December of 1986, and the Thomases subsequently sold the ranch to Rafanelli in 1991.
Three routes across the Whiterock Ranch provide access to Beall Canyon. Route A leads south and east to the main buildings of the Whiterock Ranch, then west nearly to Beall Creek and southeast, roughly parallel to the creek, to the Dales’ property in Beall Canyon. Route B travels south from the Waterloo town dump along the west side of Section 2, Township 2 South, Range 5 West, MPM; turns east through a gate onto the Whiterock Ranch; crosses Beall Pasture and Beall Creek; and then follows the creek into the canyon. Route C begins at the Waterloo town dump, travels east, then southeast to Beall Creek and along the creek into Beall Canyon. The Dales have used all three access routes across Whiterock Ranch since purchasing the Beall Canyon property in 1971.
In 1992, Rafanelli brought an action to quiet title to the Whiterock Ranch property in which he requested the District Court to declare that the Dales had no right, title, or interest in any easement across Whiterock Ranch. The Dales counterclaimed, asserting that they had acquired prescriptive easements over Routes A and B. After a bench trial, the District Court concluded that the Dales had an easement by prescription over access Route B and entered judgment accordingly. Rafanelli appeals.
STANDARDS OF REVIEW
We review a district court’s findings of fact to determine whether they are clearly erroneous, giving “due regard ... to the opportunity of the trial court to judge of the credibility of the witnesses.” Rule 52(a), M.R.Civ.P. In determining whether a court’s findings of fact are clearly erroneous, we apply a three-part test:
First, the Court will review the record to see if the findings are supported by substantial evidence. Second, if the findings are supported by substantial evidence we will determine if the trial court has misapprehended the effect of evidence. Third, if substantial evidence exists and the effect of the evidence has not been misapprehended, the Court may still find that “[A] finding is ‘clearly erroneous’ when, although there is evidence to support it, a review of the record leaves the [C]ourt with the definite and firm conviction that a mistake has been committed.”
Interstate Prod. Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287 (citations omitted). We review conclusions of law to determine whether the district court’s interpretation of the law is correct. Public Lands Access Ass’n, Inc. v. Boone and Crockett Club Found., Inc. (1993), 259 Mont. 279, 283, 856 P.2d 525, 527.
DISCUSSION
1. Did the District Court err in concluding that the Dales had acquired a prescriptive easement across Whiterock Ranch?
Rafanelli contends that the preponderance of the evidence in the record does not support the District Court’s findings that the Dales had established adverse and uninterrupted use of Route B. He also argues that substantial credible evidence before the District Court proved that the use of Route B was permissive, rather than adverse, or was on the basis of neighborly accommodation. We note at the outset that Rafanelli’s arguments ignore our standard of review of a district court’s findings of fact. It is within the province of the trier of fact to weigh the evidence and assess the credibility of witnesses and we will not second-guess those determinations. Double AA Corp. v. Newland & Co. (1995), 273 Mont. 486, 494, 905 P.2d 138, 142. Moreover, we will uphold a district court’s findings when there is substantial evidence to support them even when there is also evidence supporting contrary findings. Wiesner v. BBD Partnership (1993), 256 Mont. 158, 161, 845 P.2d 120, 122.
The District Court found that the Dales’ predecessors used various routes across Whiterock Ranch without permission for many years. However, the bulk of its findings related to the Dales’ own use of the access routes after they purchased the Beall Canyon property in 1971 and, with regard to this period, the court specifically found that the Dales’ use of Route B met the elements necessary to establish a prescriptive easement. Given that Rafanelli challenges findings relating to only two of the elements, we scrutinize the record to determine whether it contains sufficient evidence to support the court’s findings that the Dales’ use of Route B after their purchase of the Beall Canyon property in 1971 was adverse and uninterrupted.
A prescriptive easement is created by operation of law in Montana. Swandal Ranch Co. v. Hunt (1996), [276 Mont. 229], 915 P.2d 840, 843. The party claiming the easement bears the burden of establishing “open, notorious, exclusive, adverse, continuous and uninterrupted use of the easement claimed for the ... statutory [five-year] period.” Public Lands, 856 P.2d at 527 (quoting Keebler v. Harding (1991), 247 Mont. 518, 521, 807 P.2d 1354, 1356). In order to show that the use of a claimed easement is adverse, a claimant must prove that the use is “exercised under a claim of right and not as a mere privilege or license revocable at the pleasure of the owner of the land; such claim must be known to, and acquiesced in by, the owner of the land.” Rappold v. Durocher (1993), 257 Mont. 329, 332, 849 P.2d 1017, 1019 (citation omitted).
When Knight Carson and his family purchased the Whiterock Ranch in 1972, he noticed the Dales using Route A — the road leading past the main ranch buildings — to reach Beall Canyon. Carson consulted his attorney, who sent a letter to Hal Dale on September 27,1972. The letter informed Dale that the Whiterock Ranch corporation stockholders had no desire to grant any easements across ranch property and that any future agreements regarding access would require approval by the stockholders. The letter also related that a portion of Route A would be plowed under to create a section of irrigated crop land.
The Dales’ attorney responded by letter dated October 16, 1972, stating that
[t]he Dales do not wish to force their way through anyone’s property if a road has not been established and even if it has, if another route of access can be used, then they certainly will comply with the wishes of your client.
The letter indicated the Dales’ belief they had the right, and were affirmatively asserting that right, to cross the Whiterock Ranch by specifically referencing, and attaching a copy of, a document referred to as the Holbert affidavit.
The Holbert affidavit was executed in 1967 by Howard S. Holbert, A. W. Purvis, and Otto C. Nolte, all of whom were acquaintances of the Strawn family, and was recorded with the Madison County Clerk and Recorder. The affidavit identifies the Beall Canyon property and states that the Strawns had used a certain road to access the property for more than twenty years. The Holbert affidavit neither clearly describes the location of the road it references nor indicates that the Strawns were claiming a right over that access adverse to any landowner. Hal Dale testified that, when he and his brother purchased the Beall Canyon property, they believed that they had a right to access their property across the ranch based on this affidavit and comments made to them by the Strawn family.
After the exchange of letters in 1972, the Dales continued to use both Route A and Route B to access the Beall Canyon property; they did not contact the Whiterock Ranch shareholders to make arrangements or ask permission to use either road. The Carsons eventually plowed up a portion of the Route A road in late 1972 and, thereafter, the Dales primarily used Route B to access Beall Canyon, although a ranch lane still provided access through the area of the ranch buildings.
In July of 1973, the Carsons sent the Dales’ attorney another letter regarding the Dales’ accessing Beall Canyon via the ranch and complaining of the amount of traffic through the ranch. The letter informed the Dales that any unauthorized traffic across Whiterock Ranch property would be considered trespass and that the Carsons were putting “no trespassing” signs up at all points of access to the ranch. Additionally, the Carsons intended to place, and eventually did place, an advertisement in the local newspaper notifying the general public of the closure of all roads across the ranch property. The letter stated that the Dales would need to make specific arrangements with Knight Carson or his attorney for access to Beall Canyon across Whiterock Ranch. If such arrangements were not made, the Carsons would consider any use of roads across the ranch by the Dales or anyone else a trespass. The Dales continued to cross ranch property on Route B to reach Beall Canyon, did not contact the Carsons to make arrangements to do so, and completely ignored the posted “no trespassing” signs. This use by the Dales continued until the trial on Rafanelli’s quiet title action.
The Dales’ continuous use of Route B to reach Beall Canyon, their ignoring two requests from the Carsons that they obtain permission to use the road, and the failure of the Carsons to obstruct or interrupt such use by the Dales, are evidence of a use hostile and adverse to the Carsons’ ownership. It is clear that the Carsons knew of the Dales’ use of Route B and that they acquiesced in such use. Although the Carsons requested that the Dales receive permission before using the road, they did nothing affirmative to enforce that request or otherwise stop the Dales from crossing Whiterock Ranch. The Dales notified the Carsons of their claim that they had a right to cross Whiterock Ranch in their October 16, 1972, letter to the Carsons and reinforced that claim by continuing to use Route B without asking for permission. Additionally, the Dales’ use of Route B continued thereafter throughout the entire time that the Carsons, the Thomases, and Rafanelli owned Whiterock Ranch, a period approximately four times longer than the statutory five years needed to establish a prescriptive easement.
We conclude, therefore, that substantial evidence supports the District Court’s finding that the Dales had established the elements of a prescriptive easement, including the adverse and uninterrupted use elements.
PERMISSIVE USE
Rafanelli advances a variety of arguments in support of his position that the Dales’ use of Route B was permissive rather than adverse and that the District Court erred in finding otherwise. We address each of his arguments in turn.
Rafanelli argues that the Carsons granted express permission to the Dales to improve and use Route B when the Carsons plowed up part of Route A in 1972 and, as a result, the Dales’ use of Route B cannot be adverse. The record reflects that, at some point in 1973, the Dales improved Route B by grading the road. Knight Carson stated that the Dales did so with his permission pursuant to a meeting between himself and Claude Dale. Carson testified that, during the meeting with Claude, he granted permission to the Dales to improve and use Route B, in place of Route A, as long as the Dales paid for all maintenance of the road and installed a locked gate at the point where the road entered the Whiterock Ranch. Carson’s son, Christopher, provided similar testimony.
Hal Dale claimed to have no knowledge of such a conversation between Claude and the Carsons. He testified that, even if a conversation had occurred, his brother would not have asked for permission to improve Route B because the Dales had always believed they had the right to use all of the various access routes to Beall Canyon across the Whiterock Ranch. According to Hal, the Dales simply decided they wanted to improve the Route B access and went ahead with the project without consulting the Carsons.
Sometime in 1974, the Dales installed a bridge over Beall Creek at the point where Route B crossed it because a flood had washed out the ford where the Dales usually were able to drive across the creek. Again, the Carsons claimed that Claude Dale met with them to ask their permission to build the bridge, while Hal Dale asserted that permission was not requested.
The District Court found the Dales’ testimony that Claude did not request permission to use and improve Route B to be more credible than the Carsons’ testimony that they granted permission and, as a result, rejected the Carsons’ version of the meetings. The court determin that Claude Dale, being “an experienced mining entrepreneur,” would not have requested permission to use an access route which his family and their predecessors already had been using under a claim of right for many years. Credibility determinations are within the province of the trier of fact and “[w]e will not second guess the district court’s determination regarding the strength and weight of conflicting testimony.” Double AA Corp., 905 P.2d at 142.
Moreover, the undisputed fact that the Dales paid all the costs of improving, building and maintaining Route B, the bridge, and the gate at the entrance to the Whiterock Ranch further supports the District Court’s finding that the Dales’ use of the road was not permissive. Regular maintenance of a road by the party asserting a prescriptive easement is evidence of adverse, rather than permissive, use. Swandal Ranch Co., 915 P.2d at 844.
Although Rafanelli points to evidence of record which might support a finding that the Dales’ use of Route B was permissive, we do not review findings to determine whether evidence supports contrary findings. Wiesner, 845 P.2d at 122. As discussed above, substantial credible evidence of record supports the District Court’s finding that the Dales’use of Route B was adverse rather than permissive.
Rafanelli also contends that the Dales admitted the permissive nature of their access. This contention is based on negotiations between himself and Hal Dale in 1991 regarding Rafanelli’s desire to purchase Claude Dale’s partnership interest in the Beall Canyon property.
When Rafanelli began dealing with the Thomases in late 1990 about purchasing the 'Whiterock Ranch, he became aware of the Dales’ use of roads across the ranch to access their Beall Canyon property. Rafanelli testified that he knew of the Dales’ use of the roads and requested a title company to investigate whether there was any record of an easement granted to the Dales. The title search revealed the Holbert affidavit but did not locate any record of an easement being granted to the Dales. When Rafanelli realized that the Dales had no deeded easement to cross 'Whiterock Ranch, he approached Hal Dale to discuss the possibility of purchasing Claude Dale’s interest in the Beall Canyon property. Rafanelli regarded this proposed partnership as a solution to what he considered a problem with the Dales’ access; if Rafanelli were a partial owner of the Beall Canyon property, any potential disputes over the access would be resolved without Rafanelli being required to grant or recognize an easement across Whiterock Ranch for access to the canyon. Rafanelli felt that the acquisition by the Dales of an easement over Whiterock Ranch would have a negative impact on the value of the ranch.
Rafanelli and Hal Dale arranged for an appraisal of the Beall Canyon property during their negotiations. In a letter to Hal Dale dated February 13, 1991, the appraiser noted that there was no deeded access to the Beall Canyon property and that access had always been with permission of the owners of Whiterock Ranch; in his opinion, however, there was a good chance of establishing a prescriptive easement. Rafanelli’s attempted purchase of Claude Dale’s partnership interest in the Beall Canyon property was never completed.
Rafanelli argues that, because Hal Dale neither objected to the appraiser’s characterization of the access as permissive nor made corrections to that statement in the appraisal, he impliedly admitted that access was permissive. Rafanelli also asserts, in this regard, that the mere fact of the negotiations between himself and Hal Dale evidences the Dales’ knowledge that access was permissive. He argues that Hal Dale would not have entered into the negotiations if he thought there was a clear right to access the Beall Canyon property via Whiterock Ranch and that the negotiations were conducted in order to solve the problem of the access.
The District Court found that Hal Dale’s actions regarding the appraisal letter and the purchase negotiations with Rafanelli were not inconsistent with a claim of a prescriptive easement. Rather, the court determined that Hal merely was attempting to solidify his right to use the access without going through the time and expense of litigation to establish a prescriptive easement. “[T]his Court may not substitute its judgment for that of a district court in making a finding based to a large extent on credibility and weight of the evidence.” In re Marriage of Boyer (1995), 274 Mont. 282, 288, 908 P.2d 665, 668. We conclude that the District Court’s finding that the Dales did not admit that the access was permissive was supported by substantial evidence.
Rafanelli’s final argument regarding permissive use is that the evidence on which the District Court relied in finding that the use was adverse rather than permissive was patently incredible. Specifically, Rafanelli contends that the District Court erred in relying on Hal Dale’s testimony because that testimony was inconsistent with his earlier deposition testimony and because Hal admittedly fabri cated a scene for purposes of taking a photograph which was later admitted into evidence.
The District Court observed that Hal Dale’s credibility was questionable because of his somewhat contradictory conduct over the years, but stated that it did not doubt his honesty or sincerity. The court specifically found that Hal’s overall behavior through the years was not inconsistent with his assertion that the Dales’ use of the access to the Beall Canyon property was adverse to the owners of the Whiterock Ranch.
We give due regard to the opportunity of the trial court in a nonjury trial to determine the credibility of witnesses and to resolve inconsistencies in the testimony. Rappold, 849 P.2d at 1020. We do so because the trial court is in a better position than this Court to observe the demeanor, and assess the credibility, of witnesses. Double AA Corp., 905 P.2d at 142. Additionally, even if a portion of a witness’ testimony is shown to be false or unreliable, the trier of fact need not discount the entirety of that witness’ testimony. Kis v. Pifer (1978), 179 Mont. 344, 350, 588 P.2d 514, 517-18.
Here, the District Court carefully considered Hal Dale’s testimony and actions and, having had the opportunity to observe his demeanor, accepted his testimony regarding the adverse nature of the Dales’ use of Route B to access their Beall Canyon property. We conclude that the District Court did not err in relying on the testimony of Hal Dale.
NEIGHBORLY ACCOMMODATION
Rafanelli next advances two arguments relating to his position that the Dales’ use of Route B was not adverse because it was based on neighborly accommodation. It is well-settled that a prescriptive easement cannot be established where use of a neighbor’s land is based on neighborly accommodation or courtesy because such use is not adverse to the owner of the land. Public Lands, 856 P.2d at 528.
Rafanelli contends that the statements in the Carsons’ 1972 and 1973 letters show that the Carsons allowed the Dales to use the access on a neighborly accommodation basis. We disagree. The letters clearly state that access would be permitted only if the Dales sought permission from, and made arrangements with, the Carsons to use the roads. Tb the extent the letters relate to the question of neighborly accommodation, they are evidence tending to show that the Dales’ access was not by way of neighborly accommodation, because neighborly accommodation does not require permission at every passing. See Lemont Land Corp. v. Rogers (1994), 269 Mont. 180, 186, 887 P.2d 724, 728.
Rafanelli also contends, in this regard, that the District Court misinterpreted June Thomas’ testimony insofar as it related to adverse use or neighborly accommodation when it found that she felt the Dales had a right to access Beall Canyon across Whiterock Ranch and that the Thomases did not attempt to control the Dales’ access. June Thomas testified by deposition that when she and her husband purchased the Whiterock Ranch in late 1986, the Dales were primarily using Route B to reach Beall Canyon. She also testified that she and her husband never tried to restrict the Dales’ use of the access road and, although she thought the Thomases could control where the access was, she believed the Dales had the right to cross the ranch to reach their Beall Canyon property.
Although the District Court did not specifically find that June Thomas’ testimony either supported or did not support its finding that the Dales use of Route B was adverse, the court made note of those portions of her testimony indicating that she and her husband thought the Dales had the right to cross Whiterock Ranch to reach Beall Canyon and that the Thomases did nothing to control the Dales’ access. Rafanelli contends that June Thomas’ testimony was consistent with his theory that use of the road was by neighborly accommodation and that the District Court erred when it failed to find that her testimony supported that theory.
The District Court found that the Dales’ use of Route B had been adverse to the Carsons’ ownership, rather than permissive, since 1972. Therefore, the Dales had established the statutory five-year period of adverse use well before the Thomases purchased Whiterock Ranch in 1986. As a result, it is not relevant whether the Thomases thought the Dales’ use of Route B was by permission, by neighborly accommodation or by right.
THE HOLBERT AFFIDAVIT AND PRE-1971 USE
Rafanelli next argues that the District Court erred in relying on the Holbert affidavit as evidence of a claim of right to access to Beall Canyon across Whiterock Ranch. The District Court found that the affidavit should have put any post-1967 owners of the Whiterock Ranch on constructive notice that an adverse claim of access across the ranch to Beall Canyon was being asserted. Although Rafanelli did not object to the admission of the affidavit into evidence, he challenges the court’s finding regarding its significance, arguing that the affidavit itself cannot, and does not, establish the elements of prescription. While Rafanelli is correct in this regard, the District Court did not determine that the affidavit proved the elements of prescription. Rather, the court used the affidavit as one piece of evidence supporting the Dales’ assertion of a claim of right to use the access routes.
When establishing a prescriptive easement, the element of adversity is proven by showing that the use of the easement was exercised under a claim of right. Rappold, 849 P.2d at 1019. A claim of right to an easement “must be known to, and acquiesced in by, the owner of the land.” Rappold, 849 P.2d at 1019.
Although the Holbert affidavit does not speak specifically in terms of a claimed right to access Beall Canyon across Whiterock Ranch property, the Dales relied on the affidavit in asserting their claim of right to use the access roads after they purchased the Beall Canyon property in 1971. The October 16, 1972, letter from the Dales’ attorney to the Carsons notified the Carsons of the existence of the Holbert affidavit and made it known to the Carsons that the Dales claimed a right to the access. The Carsons thereafter acquiesced in that claim of right when, although requesting the Dales to arrange for permission to use the access, they took no affirmative action to stop the Dales from crossing Whiterock Ranch.
The District Court stated that the recorded Holbert affidavit was constructive notice to all post-1967 owners of Whiterock Ranch that a claim of right to access Beall Canyon via the ranch was being asserted. The Dales gave the Carsons actual notice that they were asserting a claim of access across the ranch by sending the Carsons a copy of the affidavit. The District Court neither found nor implied that the Holbert affidavit supported any element of a prescriptive easement other than a claim of right to use the access road in question.
Rafanelli also advances a variety of arguments asserting that the District Court erred in finding that pre-1971 use of the access routes by the Dales’ predecessors was adverse. We determined above that the District Court’s finding that the Dales established that their use of Route B had been adverse to the Carsons’ownership of Whiterock Ranch since 1972 is supported by substantial credible evidence. Because the Dales proved that their use of the road had been adverse from 1972 forward, it is not necessary to determine whether pre-1971 use of the roads by the Dales’predecessors was adverse. Thus, we decline to address Rafanelli’s arguments regarding pre-1971 use of the access routes.
INTERRUPTED USE
Although the majority of Rafanelli’s arguments are directed toward whether the District Court erred in finding that the Dales’ use was not permissive, he also makes vague assertions that the Dales did not prove the element of uninterrupted use. This assertion is apparently based on the Carsons’ act of plowing up a portion of Route A in 1972 and allegedly giving the Dales permission to use Route B thereafter.
The District Court found that the Dales ceased to use Route A after 1972, and, as a result, the court did not grant the Dales a prescriptive easement over that road. Thus, any act of the Carsons which may have interrupted the Dales’ use of Route Ais not relevant to whether the Dales established an easement by prescription over Route B.
In addition, the District Court rejected Rafanelli’s position, advanced through the Carsons’ testimony, that Claude Dale sought— and the Carsons gave — permission to use Route B in 1972. Indeed, as discussed above, the District Court found that the Dales had been using Route B without permission and adversely at least since the Carsons purchased Whiterock Ranch in 1972 and substantial credible evidence supports those findings. Moreover, there is no evidence of record reflecting any post-1972 act by the Carsons, the Thomases, or Rafanelli himself which interrupted the Dales’ adverse use of Route B to access their Beall Canyon property until Rafanelli locked the gate at the entrance to the ranch in October of 1991. Even then, however, the Dales simply cut the lock off the gate and continued to use the road. Moreover, Rafanelli’s act of locking the gate occurred long after the running of the statutory five-year period for establishing a prescriptive easement. We conclude that the District Court’s finding that the Dales established uninterrupted use of Route B for the statutory five-year period is supported by substantial credible evidence.
In summary, the Dales and Rafanelli presented substantial and conflicting evidence in this case, primarily about the adverse versus permissive nature of the use of Route B across the Whiterock Ranch to access the Dales’ Beall Canyon property. “[A] district court sitting as a fact finder, is in the best position to determine whether use was permissive or adverse.” Swandal Ranch Co., 915 P.2d at 845 (citation omitted). We conclude that the District Court’s findings of fact that the Dales had established the elements of a prescriptive easement over Route B across the Whiterock Ranch to access their Beall Canyon property are supported by substantial evidence and are not otherwise clearly erroneous. We hold, therefore, that the court did not err in concluding that the Dales had acquired a prescriptive easement over Route B.
2. Did the District Court err in not concluding that the Dales’ prescriptive easement had been extinguished?
Rafanelli argues that, even if a prescriptive easement existed at one time over either Route A or Route B, that easement was extinguished when the Carsons plowed up a portion of Route Ain 1972 and gave the Dales permission to use Route B instead. A servitude maybe extinguished by the destruction of the servient tenement or an act by the owner of the servitude, or with his consent, which is incompatible with the nature of the servitude. Section 70-17-111, MCA.
We have held, on the basis of that statute, that if a prescriptive easement exists, subsequent acts inconsistent with the claim by prescription, support the conclusion that the prescriptive easement has been extinguished.
Public Lands, 856 P.2d at 531-32.
The District Court found that the Dales had stopped using Route A in 1972 and, therefore, no easement was established over that road. Because the District Court did not grant the Dales a prescriptive easement over Route A and the Dales did not appeal that determination, it is not necessary to address whether any easement over Route A was extinguished by the Carsons’ act of plowing up a portion of that road.
Rafanelli relies on Public Lands for the proposition that acquiescence in a change of the use of an easement extinguishes that easement and argues that, by allowing the Carsons to move the access from Route A to Route B, the Dales acquiesced in a change of use which extinguished any prior easement. In Public Lands, we concluded that, if an easement had existed, it would have been extinguished by the land owner’s act of blocking the road and creating a walk-in only policy. Public Lands, 856 P.2d at 532. Such a change in use, when cooperated with and adhered to by the owner of the easement, is inconsistent with a claim of a prescriptive easement and works to extinguish it. Public Lands, 856 P.2d at 532.
Rafanelli’s reliance on Public Lands is misplaced. The Dales did not acquiesce in any change in their use of Route B. The record reflects that the Dales had used Route B regularly since purchasing the Beall Canyon property in 1971 and continued that use after the Carsons purchased Whiterock Ranch in 1972. The obliteration of Route A did not affect or alter the Dales’ continued use of Route B and the District Court found that, contrary to their assertions, the Car-sons did not “permit” the Dales to relocate the access from Route A to Route B. Thus, the act of plowing under a portion of Route A did not create a change in the Dales’ use of Route B similar to the change in use which occurred in Public Lands. The only change that transpired here was that the Dales rarely, if ever, used Route A from that time on.
Moreover, even if there had been an act by the Carsons during 1972 which was inconsistent with the Dales’ claim of a prescriptive easement, the Dales’ continued adverse use of Route B for more than five years after that time would have created a new prescriptive easement over Route B. See Glenn v. Grosfield (1995), 274 Mont. 192, 196, 906 P.2d 201, 204. We held in Glenn that, if a change in location or modification of the use of an easement occurs and the owner of the previous easement uses the modified easement in the same manner for the statutory five-year period, a new prescriptive easement over the modified route is established. Glenn, 906 P.2d at 204. The District Court found that the Dales’use of Route B was adverse to the Carsons and the subsequent owners of Whiterock Ranch since 1972. Thus, even if a previous easement over that route had been extinguished, the Dales would have acquired a new prescriptive easement after five years of adverse use. Glenn, 906 P.2d at 204.
We hold that the Dales’ prescriptive easement over Route B was not extinguished by the Carsons’ plowing up of Route A in 1972 and that the District Court was correct in not concluding that the easement was extinguished.
3. Did the District Court abuse its discretion in admitting Exhibit 29 into evidence?
Exhibit 29 consisted of three hand-written pages of notes dated August 8, 1973, allegedly written by Claude Dale during or immediately after a telephone conversation he had with his brother Hal. The notes refer to comments Claude made to Hal regarding access to their Beall Canyon property.
As foundation for the exhibit, Hal Dale testified that the notes were in Claude’s handwriting, that Claude was in the habit of always making notes of his telephone conversations, and that Hal had found the notes with other possessions that Claude had brought with him when he moved to the Beall Canyon property after retiring from his work with a mining corporation. The Dales offered Exhibit 29 under the business records exception, as well as other exceptions, to the hearsay rule. Rafanelli objected to the exhibit on the grounds that it was hearsay, that the Dales had failed to properly authenticate it, and that it did not qualify under any of the exceptions to the hearsay rule.
The District Court admitted Exhibit 29 under Rule 803(6), M.R.Evid., the business records exception to the hearsay rule. It quoted the notes in its findings of fact and relied on them as part of the evidence showing that Claude Dale did not request permission from the Carsons to improve and use Route B or to build the bridge over Beall Creek. The court also found that the notes were indicative of adverse use by the Dales.
A district court has broad discretion in determining whether evidence is relevant and admissible. We will not reverse such a determination unless the court has abused that discretion. Galbreath v. Golden Sunlight Mines, Inc. (1995), 270 Mont. 19, 22, 890 P.2d 382, 384.
Under Rule 803(6), a document “kept in the course of a regularly conducted business activity” may be admitted into evidence, even though it is hearsay, when it is “the regular practice of that business activity” to create the document. Although Hal Dale testified that Claude made notes of all of his telephone conversations, the record does not reflect that Exhibit 29 was made by Claude in the course of any business activity; indeed, a review of the notes establishes that they were in the nature of a memorandum made for personal use. While district courts have broad discretion in admitting evidence, the record before us is totally lacking in foundation for admission of Exhibit 29 as a business record under Rule 803(6), M.R.Evid. Thus, the District Court abused its discretion in admitting Claude Dale’s notes under the business records exception to the hearsay rule.
The Dales also argued, however, that Exhibit 29 was admissible under the so-called state of mind exception to the hearsay rule. We recently have discussed state of mind evidence, distinguishing between hearsay state of mind evidence, admissible only under an exception to the hearsay rule, and nonhearsay state of mind evidence. In State v. Losson (1993), 262 Mont. 342, 348, 865 P.2d 255, 259, we determined that whether such evidence is hearsay or not depends on whether the statement is direct evidence proving the declarant’s state of mind or only circumstantial evidence of the declarant’s state of mind.
If the evidence circumstantially proves the declarant’s state of mind, then the evidence is not offered to prove the truth of the matter asserted and the evidence is not hearsay.
Alternatively, when the evidence directly proves the declarant’s state of mind, the evidence is introduced to prove the truth of the matter asserted and is hearsay.
Losson, 865 P.2d at 259. For example, if a person said “X threatened to kill me,” the statement is circumstantial evidence of that person’s state of mind regarding X to the extent it is used only to show that the person was afraid of X and not to prove that X actually threatened the person. As such, the statement is not hearsay as defined in Rule 801(c), M.R.Evid., and it is generally admissible if relevant. See Rule 402, M.R.Evid. Conversely, if the person said “I hate X,” the statement directly shows the person’s feelings about X and is offered to prove that the person hates X. In that case, the statement is hearsay under Rule 801(c), M.R.Evid., and is admissible only if it comes within an exception to the hearsay rule.
The District Court’s finding of fact #14 contains the following quote from Claude Dale’s notes of his telephone conversation with Hal on August 8, 1973, in which he advised Hal:
establish a road that we want to use and go ahead with its use. I advised Hal to make no commitment to Carson. Go up established road — cut lock or fence if necessary. Carson has changed road thru [sic] farm and is trying to get it established that this new road is a private road. This not so — -just because he changed it. County maintenance on the ranch road fives [sic] better access to us than any other. I think, anyway, don’t commit us to anything and keep all avenues open til [sic] we move there.
The District Court used Claude Dale’s notes in support of its finding that Claude did not request permission from the Carsons to use Route B. In other words, the court’s finding was that the notes reflected Claude’s state of mind that the Dales had the right to use the access roads regardless of what the Carsons did or said about such use. Thus, to the extent that the District Court admitted Claude’s statements to show that his state of mind was such that he would not have asked permission from the Carsons to use Route B, the statements are not hearsay. The statements were not offered to prove that Claude told Hal to cut the lock or fence; nor were they offered to prove that the Carsons changed the road or that Claude Dale told Hal not to commit to anything about the access. The statements circumstantially indicated Claude’s state of mind both about the Carsons and about the Dales’ right to use the road, and they were offered to show that Claude did not seek permission from the Carsons to use Route B in exchange for maintaining the road and installing a locked gate. To this extent, Exhibit 29 is not hearsay under Losson.
Rafanelli’s objection to Exhibit 29 was limited to the hearsay nature of the evidence and its lack of admissibility under any exception to the hearsay rule. Having determined that the exhibit was not hearsay to the extent'it was offered to show Claude’s state of mind regarding the Dales’ right to use Route B, we conclude that the District Court did not abuse its discretion in admitting Exhibit 29 for that purpose.
The District Court also found that Claude’s notes were “persuasive evidence of adverse use not permissive.” In making this finding, the court went beyond using the notes as circumstantial evidence of Claude’s state of mind regarding the Dales’ right to use Route B and used Claude’s statements, such as that he had told Hal to “establish a road that we want to use and go ahead with its use” and to “cut lock or fence if necessary,” as directly showing that the Dales’ use of the access was hostile and adverse to the Carsons. In doing so, the court accepted the contents of the statements as being true and, for that purpose, the notes are hearsay. Therefore, the notes are inadmissible unless they come within an exception to the hearsay rule. As noted above, the Dales argued that the notes were admissible under the “state of mind” exception contained in Rule 803(3), M.R.Evid.
Under Rule 803(3), M.R.Evid., a statement is not excluded by the hearsay rule if it is
[a] statement of the declarant’s then-existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed.
In Losson, we concluded that a declarant’s statements to a Naval Reserve officer that he thought his wife was going to kill him and that he was afraid of her were hearsay because they were introduced as direct evidence to prove that the declarant was afraid of his wife. We concluded, however, that the statements met the Rule 803(3), M.R.Evid., exception to the hearsay rule because they were offered to show the declarant’s state of mind at the time he sought to reenlist in the Navy. Losson, 865 P.2d at 259.
In the present case, the notes do not come within the Rule 803(3) state of mind exception to hearsay because the court interpreted the statements to be evidence of adversity, rather than an explanation of or reason behind any of Claude’s actions. In order to fall under the state of mind exception to the hearsay rule, the statements must be used to show “the declarant’s then-existing state of mind, emotion, sensation, or physical condition....” Rule 803(3), M.R.Evid. In Losson, the hearsay statement met the Rule 803(3) exception because it explained the reason behind the declarant’s subsequent actions. Here, the court did not connect Claude’s statements to a state of mind reason for any of Claude’s actions. Rather than finding that Claude told Hal to do certain things or that Claude himself did certain things because Claude thought their use of Route B was adverse to the Carsons, the court simply found that the statements themselves evidenced adverse use. We conclude that the District Court abused its discretion in admitting Claude Dale’s notes as direct evidence that the Dales’ use of Route B was adverse rather than permissive.
The question remains, however, whether the District Court’s error in admitting Exhibit 29 for this purpose was reversible error. “No civil case shall be reversed by reason of error which would have no significant impact upon the result. Where there is no showing of substantial injustice, the error is harmless and may not be used to defeat the judgment.” Paternity of W.L. (1995), 270 Mont. 484, 489-90, 893 P.2d 332, 336 (citations omitted).
Rafanelli attempted to show at trial that the access across Whiterock Ranch had always been on a permissive basis and, therefore, that the Dales could not prove the adverse use element necessary to establish a prescriptive easement. The District Court found Rafanelli’s evidence that the Carsons had granted the Dales permission to use Route B less credible than the Dales’ evidence that they did not request permission.
The evidence that the Dales had disregarded the Carsons’ two letters requesting the Dales to arrange for permission to cross the ranch, that the Carsons took no affirmative action to stop the Dales’ use of the access, and that the Dales had improved and maintained Route B, is substantial evidence supporting the court’s finding of adverse use. The further finding that Claude’s notes were evidence of adverse use was merely cumulative and not necessary to the District Court’s determination that the Dales’ use of Route B was adverse rather than permissive. Thus, the court’s finding that Claude Dale’s hearsay notes were direct evidence of adverse use did not have a significant impact on the result that the court reached and did not cause substantial injustice to Rafanelli.
We conclude that the District Court’s abuse of discretion in admitting Exhibit 29 as direct evidence of adverse use was harmless and did not constitute reversible error.
Affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, HUNT and LEAPHART concur.
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] |
JUSTICE NELSON
delivered the Opinion of the Court.
Eleven-year-old Robert Strever died May 3, 1992, as a result of a single gunshot wound to the head. Robert was shot with a handgun that he and several companions had stolen from a vehicle. Robert’s mother brought an action against the owner of the vehicle and the three boys present at the time of the shooting. The District Court for the Thirteenth Judicial District, Yellowstone County, granted summary judgment in favor of the vehicle owner and one of the boys and entered default against the remaining two boys. The District Court subsequently granted Plaintiffs’ Motion for Rule 54(b) Certification to this Court. We affirm.
The issues presented for review are:
1. Whether the District Court erred in determining that Thomas Susanj did not owe a legal duty to Robert Strever.
2. Whether the District Court erred in determining that, even if Thomas Susanj owed a legal duty to Robert Strever, the breach of that duty was not a proximate cause of Robert’s death.
Background Facts
On Friday, May 1,1992, Robert contacted his mother at work and requested permission to go on a weekend fishing trip with his friend, Brent McKellip. Robert’s mother instructed him to contact his grandmother, Josephine Strever, and have her speak with Brent’s father to get the details of the trip. Josephine called the McKellip home and spoke with an individual who represented himself as Mr. McKellip. He stated that the boys would be leaving for the fishing trip on Friday evening and that they would return to Billings on either Saturday or Sunday.
When the boys came to collect Robert’s clothing for the weekend trip, Josephine expressed her suspicions of Mr. McKellip’s youthful sounding voice. Robert and Brent told her that it was due to Mr. McKellip having a sore throat. After Robert’s death, it came to light that the fishing trip was a ruse and that fourteen-year-old Steven Cline pretended to be Mr. McKellip to obtain permission for Robert to spend the weekend with Brent.
On Saturday evening, May 2nd, Robert, Cline and another boy, Bowen Racine, attended a movie. After leaving the movie theater, the boys decided to enter several parked vehicles in the neighborhood and steal their contents.
Tom Susanj was in Billings that weekend to visit his father who had been transferred to St. Vincent’s Hospital for medical care. Susanj had parked his pickup on the street in front of a relative’s home and had left it for the night. Located in the cab of his pickup were a Spectrum radar detector, keys, a micro cassette recorder, jumper cables, a Black & Decker car light, Bushnell binoculars, a Shakespeare fishing rod and case, a tape case with 30 cassette tapes, a small tool box, and a Fujica camera. Underneath the seat of the pickup, in a white bag, was a Ruger 22-caliber semiautomatic pistol and ammunition.
In the early morning hours of May 3rd, the three boys entered Susanj’s pickup and removed several items. Although Susanj testified that it was his normal practice to lock his pickup, there was no evidence of forced entry. Susanj was not aware, nor had he reason to be aware, of a crime problem, if any, in that neighborhood.
Sixteen-year-old Thomas Morris joined Robert, Cline and Racine after noticing them near Susanj’s pickup. All four boys then returned to the pickup to search for more items to steal. Morris took the white bag from under the driver’s seat and discovered that it contained the handgun and ammunition. An animated discussion ensued over who should have the gun. After removing the gun from the bag, Morris either handed the gun to Cline at Cline’s request or Cline took the gun from Morris. Either way, Cline gained control of the gun. Prior to the incident Cline had been smoking marijuana and had informed Morris he was “high”.
Morris testified that Cline waved the gun around while his finger continually rested on the trigger. In the process of examining the gun, Cline ejected a live shell from the chamber. Cline was attempting to remove the ammunition clip from the gun when the gun discharged, the bullet striking Robert in the head. Susanj later testified that he did not keep the clip in the gun. However, Morris and Cline testified that the clip was in the gun when they took it from the bag.
After Robert fell to the ground, the other boys panicked. Morris and Racine ran down an alley and Cline followed, still carrying the gun. Morris and Racine urged Cline to put the gun down and he complied. Cline went to a nearby convenience store and called the police. The police later retrieved the gun from the spot where Cline placed it. Cline was convicted of negligent homicide for the death of Robert Strever.
Plaintiffs brought a civil action against the vehicle owner, Susanj, claiming that his negligent act of leaving his vehicle unattended and unlocked in a public thoroughfare contributed to the wrongful death of Robert Strever. Plaintiffs claimed that Robert’s three companions, Morris, Cline and Racine, should also be held liable for Robert’s death because they were involved in stealing the handgun from Susanj’s pickup. Plaintiffs claimed that Morris, as the oldest of the boys and the one with some familiarity of handguns, was negligent in failing to prevent harm to Robert and in failing to warn Robert of the danger involved with a loaded gun.
The District Court granted summary judgment in favor of Susanj and Morris on the grounds that neither of them owed a duty to Robert. The District Court further held that even if Susanj and Morris owed a duty to Robert, their actions or inactions were not the proximate cause of Robert’s death. The District Court entered default against the remaining two defendants, Cline and Racine, for failure to appear.
Upon motion by Plaintiffs and without objection by Morris and Susanj, the District Court granted Plaintiff’s Motion for Rule 54(b), M.R.Civ.R, Certification to this Court. Morris was subsequently dismissed from the appeal.
Standard of Review
Our standard of review in appeals from summary judgment rulings is de novo. Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785. When we review a district court’s grant of summary judgment, we apply the same evaluation as the district court based on Rule 56, M.R.Civ.P. Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903. In Bruner, we said:
The movant must demonstrate that no genuine issues of material fact exist. [Citation omitted.] Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. [Citation omitted.] Having determined that genuine issues of fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. [Citation omitted.] We review the legal determinations made by a district court as to whether the court erred. [Citation omitted.]
Bruner, 900 P.2d at 903.
Discussion
In order to sustain a negligence action, the plaintiff must establish a legal duty, breach of that duty, and damages proximately caused by that breach. Whitfield v. Therriault Corp. (1987), 229 Mont. 195, 197, 745 P.2d 1126, 1127.
Ordinarily, issues of negligence are issues of fact not susceptible to summary adjudication. Brohman v. State (1988), 230 Mont. 198, 201, 749 P.2d 67, 69. However, actionable negligence arises only from the breach of a legal duty; the existence of a legal duty is a question of law to be determined by the district court. Nautilus Insurance Co. v. First National Insurance (1992), 254 Mont. 296, 837 P.2d 409, 411, 49 St.Rep. 802, 803.
Yager v. Deane (1993), 258 Mont. 453, 456, 853 P.2d 1214, 1216.
Issue 1
Whether the District Court erred in determining that Thomas Susanj did not owe a legal duty to Robert Strever.
The District, Court determined that Susanj did not owe a legal duty to Robert because Susanj was unaware of previous thefts in that area of Billings that would compel him to lock his vehicle, because Susanj did not permit the boys to enter his vehicle, because Susanj did not have an open display of his firearm to lure the boys into entering his vehicle and stealing the firearm, and because Robert was not an innocent party but, rather, was a participant in the burglary.
Plaintiffs contend that Susanj had a legal duty to the general public to lock his vehicle to prevent the gun from falling into “improper hands.” Susanj argues that vehicle owners have no duty to protect burglars from injuries they inflict upon themselves in the course of their criminal acts. We conclude that Susanj did owe a duty to not only Robert but also to the public in general to store his firearm and ammunition in a safe and prudent manner.
Negligence denotes “a want of the attention to the nature or probable consequences of the act or omission that a prudent man would ordinarily give in acting in his own concerns.” Section 1-1-204(4), MCA. Moreover, every person is bound, without contract, to abstain from injuring the person or property of another or infringing upon any of his rights. Section 28-1-201, MCA.
At common law, a property owner’s potential liability for injuries suffered by one who entered onto his land was determined by the injured party’s status as an invitee, licensee or trespasser.
A trespasser is one who enters the property of another without any right, lawful authority, or express or implied invitation, permission, or license, not in the performance of any duties to the owner, but merely for his own purposes, pleasure or convenience.
Williams v. Bill’s Custom Fit, Inc. (Tex. Ct. App. 1991), 821 S.W.2d 432, 433. Although most cases have involved trespassers on land, these same rules have been applied to trespassers on personal property. Williams, 821 S.W.2d at 433 (citing Prosser and Keeton, The Law of Torts § 58 (5th ed. 1984)).
A trespasser could recover under the common law “only for intentional, wanton, or willful injury or the maintenance of a hidden engine of destruction.” Alston v. Baltimore & Ohio Railroad Co. (D.D.C. 1977), 433 F.Supp. 553, 560. In those states still adhering to the common-law classifications of licensee, invitee and trespasser, the general rule is that while a landowner cannot intentionally injure or lay traps for a trespasser upon his land, he owes no other duty to a trespasser. McKinsey v. Wade (Ga. Ct. App. 1975), 220 S.E.2d 30, 32 (where a storekeeper set a trap with dynamite in a vending machine and a sixteen-year-old boy was killed in the act of stealing from the machine).
While many jurisdictions still adhere to this concept, many, including Montana, have abandoned the common-law classifications of invitee, licensee and trespasser and have adopted a uniform standard of reasonable care under the circumstances. Yalowizer v. Husky Oil Co. (Wyo. 1981), 629 P.2d 465, 467.
In Limherhand v. Big Ditch Co. (1985), 218 Mont. 132, 140, 706 P.2d 491, 496, this Court held that the test for determining the duty owed by a landowner to an injured party is “not the status of the injured party but the exercise of ordinary care in the circumstances by the landowner.” In Limherhand, we cited § 27-1-701, MCA, which provides:
Liability for negligence as well as willful acts. Except as otherwise provided by law, everyone is responsible not only for the results of his willful acts but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person except so far as the latter has willfully or by want of ordinary care brought the injury upon himself.
Limherhand, 706 P.2d at 496. Thus, the question in the case before us becomes, did Susanj exercise ordinary care in storing his gun and ammunition clip under the seat of his unlocked pickup.
The existence of a duty of care depends upon the foreseeability of the risk and upon a weighing of policy considerations for and against the imposition of liability. Maguire v. State (1992), 254 Mont. 178, 189, 835 P.2d 755, 762. The policy considerations to be weighed in determining whether to impose a duty include: (1) the moral blame attached to the defendant’s conduct; (2) the desire to prevent future harm; (3) the extent of the burden to the defendant and the consequences to the community of imposing a duty to exercise care with resulting liability for breach; and (4) the availability, cost and prevalence of insurance for the risk involved. Phillips v. City of Billings (1988), 233 Mont. 249, 253, 758 P.2d 772, 775.
Applying these policy considerations in the present case, reasonable minds could attach moral blame to Susanj’s act of storing his gun and ammunition in an unlocked vehicle on a public street with numerous other items of attractive personal property in plain view easily accessible to thieves or simply to curious small children. In addition, requiring a gun owner to safely store his firearm (for example, in this case, by merely locking the vehicle, locking the gun in the glove compartment or removing the gun and ammunition from the vehicle) would not impose an undue burden upon the gun owner in light of the danger involved and the necessity of preventing thefts of firearms or accidental shootings. Finally, various types of liability insurance policies are readily available at a reasonable cost and cover the risks inherent in the negligent use and storage of firearms.
Moreover, in our recent opinion of Busta v. Columbus Hosp. Corp. (1996), [276 Mont. 342], 916 P.2d 122, we stated that duty “is measured by the scope of the risk which negligent conduct foreseeably entails.” Busta, 916 P.2d at 134 (quoting Mang v. Eliasson (1969), 153 Mont. 431, 438, 458 P.2d 777, 781).
In like manner, in Prosser and Keeton on Torts the authors state:
The amount of care demanded by the standard of reasonable conduct must be in proportion to the apparent risk. As the danger becomes greater, the actor is required to exercise caution commensurate with it. Those who deal with instrumentalities that are known to be dangerous ... must exercise a great amount of care because the risk is great. They may be required to take every reasonable precaution suggested by experience or prudence.
W. Page Keeton et al., Prosser and Keeton on Torts § 34, at 208 (5th ed. 1984). We cited with approval this same rule in Mang when we said:
As a classic opinion states: “The risk reasonably to be perceived defines the duty to be obeyed.” Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99, 100, 59 A.L.R. 1253. Thatis to say, defendant owes a duty with respect to those risks or hazards whose likelihood made the conduct unreasonably dangerous, and hence negligent in the first instance.
Mang, 458 P.2d at 781.
A firearm, particularly one that is loaded or has ammunition in close proximity, is considered a dangerous instrumentality and therefore requires a higher degree of care in its use or handling. This concept is set out in the Restatement (Second) of Torts, which provides:
Care required. The care required is always reasonable care. This standard never varies, but the care which it is reasonable to require of the actor varies with the danger involved in his act, and is proportionate to it. The greater the danger, the greater the care which must be exercised.
As in all cases where the reasonable character of the actor’s conduct is in question, its utility is to be weighed against the magnitude of the risk which it involves. [Citation omitted.] The amount of attention and caution required varies with the magnitude of the harm likely to be done if care is not exercised, and with the utility of the act. Therefore, if the act has little or no social value and is likely to cause any serious harm, it is reasonable to require close attention and caution. So too, if the act involves a risk of death or serious bodily harm, and particularly if it is capable of causing such results to a number of persons, the highest attention and caution are required even if the act has a very considerable utility. Thus those who deal with firearms... are required to exercise the closest attention and the most careful precautions, not only in preparing for their use but in using them. [Emphasis added.]
Restatement (Second) of Torts § 298 cmt. b (1965).
Accordingly, given the foreseeability of the risk involved in the improper and unsafe use and storage of a firearm; given the strong policy considerations favoring safe and prudent use and storage; and on the basis of the law as set forth in §§ 1-1-204, 27-1-701 and 28-1-201, MCA, our decisions in Limberhand, Maguire, Phillips, Mang and Busta and the above referred to standards of care set forth in Prosser and Keeton on Torts and in comment b to § 298 of the Restatement, we hold that, as a matter of law, the owner of a firearm has a duty to the general public to use and to store the firearm in a safe and prudent maimer taking into consideration the type of firearm, whether it is loaded or unloaded, whether the ammunition is in close proximity or easily attainable, and the location and circumstances of its use and storage.
Because we conclude that Susanj owed a legal duty to the general public to store his firearm and ammunition in a manner consistent with this standard of care, on the material facts here, we reverse the District Court’s legal conclusion that Susanj owed no legal duty to Robert.
Issue 2
Whether the District Court erred in determining that, even if Thomas Susanj owed a legal duty to Robert Strever, the breach of that duty was not a proximate cause of Robert’s death.
Implicit in the District Court’s riding that Susanj’s conduct did not cause Robert’s death is the conclusion that Susanj did not breach any duty of care that he might have had to Robert. Breach of a legal duty is a question of fact that is properly determined by the factfinder. Similarly, causation requires a determination — ordinarily by the fact finder — that defendant’s conduct helped produce the injury and that the injury would not have occurred without it. Proximate cause is proved by establishing cause in fact, i.e., the “but for” test or “substantial factor” test. Prosser and Keeton on Torts § 41, at 263-72.
We recently determined in Busta v. Columbus Hosp. Corp. (1996), [276 Mont. 342], 916 P.2d 122, 138, that ordinarily foreseeability is part of the analysis of “duty,” rather than “proximate cause,” and that to analyze it under both issues leads only to confusion. In Busta, we overruled that part of our decision in Kitchen Krafters v. Eastside Bank (1990), 242 Mont. 155, 789 P.2d 567, that required a two-tiered analysis of causation in cases other than those where there has been an allegation that the chain of causation is severed by an independent intervening cause. Since the case before us is just such an intervening causation case, foreseeability is properly considered with respect to causation on that basis, and, under the facts here, we conclude that failure of proof of causation can be determined as a matter of law.
We have previously stated that a defendant’s liability for his wrongful act will not be severed by the intervening act of a third party if the intervening act is one that the defendant might reasonably foresee as probable or one that the defendant might reasonably anticipate under the circumstances. Thayer v. Hicks (1990), 243 Mont. 138, 155, 793 P.2d 784, 795 (citing Nehring v. LaCounte (1986), 219 Mont. 462, 470, 712 P.2d 1329, 1334).
As to intervening acts by third parties in relation to a defendant’s conduct, Prosser and Keeton state:
The question is always one of whether the defendant is to be relieved of responsibility, and the defendant’s liability superseded, by the subsequent event. In general, this has been determined by asking'whether the intervention of the later cause is a significant part of the risk involved in the defendant’s conduct, or is so reasonably connected with it that the responsibility should not be terminated. It is therefore said that the defendant is to be held liable if, but only if, the intervening cause is “foreseeable.”
Prosser and Keeton on Torts § 44, at 302.
In Mills v. Mather (1995), 270 Mont. 188, 890 P.2d 1277, we recognized that although most negligence actions contemplate some action on the part of a defendant which is the actual and proximate cause of the plaintiff’s damages, failure to act can also form the basis for a claim of negligence.
There are ... situations in which the actor, as a reasonable man, is required to anticipate and guard against the intentional, or even-criminal, misconduct of others. In general, these situations arise where the actor is under a special responsibility toward the one who suffers the harm, which includes the duty to protect him against such intentional misconduct....
Mills, 890 P.2d at 1283-84 (quoting Restatement (Second) of Torts § 302B cmt. e (1965)).
However, we have also stated that the criminal or intentional actions of a third person may not be foreseeable. Sizemore v. Montana Power Co. (1990), 246 Mont. 37, 47, 803 P.2d 629, 635-36 (citing Cole v. German Savings and Loan Society (8th Cir. 1903), 124 F. 113). Similarly, a grossly negligent act on the part of a plaintiff may also be considered unforeseeable. Sizemore, 803 P.2d at 636.
Along these same lines, in Prosser and Keeton on Torts the authors state:
There is normally much less reason to anticipate acts on the part of others which are malicious and intentionally damaging than those which are merely negligent; and this is all the more true where, as is usually the case, such acts are criminal. Under all ordinary and normal circumstances, in the absence of any reason to expect the contrary, the actor may reasonably proceed upon the assumption that others will obey the criminal law.
Prosser and Keeton on Torts § 33, at 201. With that in mind, a review of some of our prior cases involving intervening criminal acts by third parties is appropriate.
In 1990, the relatives of a minor killed by an ex-convict sued the State of Montana over the convict’s release. VanLuchene v. State (1990), 244 Mont. 397, 797 P.2d 932. Plaintiffs claimed that the state has a duty to avoid the release of prisoners whose mental illnesses render them dangerous to society. The District Court found that plaintiffs’ theories of proximate cause were too speculative and that the state’s acts were not the proximate cause of plaintiffs’ injuries. Although this case involved an intervening act by a third party, we did not reach that point in our analysis since we held that the state did not owe a duty to plaintiffs because once the inmates’ sentence had expired, the state had no choice but to release him.
Three months later, in Kiger v. State (1990), 245 Mont. 457, 802 P.2d 1248, we were faced with a similar situation when the state was again sued over the release of a Montana State Prison inmate. In Kiger, several days after his release on parole, a former prison inmate shot a woman while attempting to steal her car. Plaintiff claimed the state was negligent in releasing the parolee. In Kiger we analyzed proximate cause in terms of foreseeability because of the intervening act and we said that in this case “there are too many ‘what ifs’ that are superseding events that break the chain of causation.” Kiger, 802 P.2d at 1251.
Two years later, in U.S. Fidelity and Guar. Co. v. Camp (1992), 253 Mont. 64, 70, 831 P.2d 586, 589, we said that not all intervening causes will act so as to absolve the defendant of liability. The plaintiff in Camp brought an action in negligence to recover moneys paid to its insured for damages resulting from a fire in an apartment building. In Camp, we said:
The chain of causation will only be broken, thereby cutting off the defendant’s liability, if the intervening cause is reasonably unforeseeable. Thayer, 793 P.2d at 795. However, if the intervening cause is one that the defendant might reasonably foresee as probable, or one that the defendant might reasonably anticipate under the circumstances, then the intervening act does not absolve the defendant of liability. Nehring v. LaCounte (1986), 219 Mont. 462, 712 P.2d 1329.
Camp, 831 P.2d at 589.
The following year in King v. State (1993), 259 Mont. 393, 856 P.2d 954, the parents of a young man murdered by a former mental patient of the Montana State Hospital brought suit against the state for negligence in releasing the patient to the community. In King, we relied on our three prior opinions in VanLuchene, Kiger and Camp and reiterated that the intervening acts must be reasonably foreseeable to establish proximate cause. We also stated in King that
if a plaintiff’s injury is caused by the intervening act of a third party, the defendant’s actions cannot be viewed as the proximate cause of that injury. [Emphasis added.]
King, 856 P.2d at 956 (citing Graham v. Montana State University (1988), 235 Mont. 284, 289-90, 767 P.2d 301, 304). Our use of the word “cannot” in this statement was an unfortunate choice as Graham does not state such a hard and fast rule and we had not intended to, nor did we, set forth such a hard and fast rule in King. In actuality, we said in Graham that:
If there is no room for a reasonableolifference of opinion as to whether the action of a party other than the defendant is the intervening cause of the plaintiff’s injury, summary judgment based on proximate cause is proper.
Graham, 767 P.2d at 304. For that reason, we overrule the statement in King that we quoted above and we reiterate that our holding in King is that “the intervening acts must be reasonably foreseeable to establish proximate cause.”
Our prior cases involving intervening criminal acts discussed above involved fact situations that were properly disposed of by the trial courts as a matter of law. Nevertheless, we emphasize that a cause.of action involving superseding intervening acts, whether criminal or non-criminal, normally involves questions of fact which are more properly left to the finder of fact for resolution. If, under the facts of a given case, an intervening criminal act is one which the defendant might reasonably foresee, then there is no reason why the fact finder should not decide causation the same as with any other intervening causation case. Three of our earlier cases, Lencioni v. Long (1961), 139 Mont. 135, 361 P.2d 455; Brown v. First Federal Sav. & L. Ass’n of Great Falls (1969), 154 Mont. 79, 460 P.2d 97; and Schafer v. State, Dept. of Institutions (1979), 181 Mont. 102, 592 P.2d 493, stand for a contrary rule — i.e. that no recovery can be allowed for an injury which resulted from an intervening criminal act of a third person. To that extent, we overrule those three cases and any other Montana authority espousing that rule.
Rather, trial courts must continue to carefully review each fact situation involving intervening criminal acts on a case-by-case basis, and it is only where reasonable minds could come to but one conclusion, that this issue is properly disposed of as a matter of law. See, for example, Kiger, 802 P.2d at 1251, where we affirmed the trial court’s use of this same approach in granting summary judgment.
This is such a case. Here, not only were there two intervening criminal acts (two thefts from Susanj’s vehicle), but there was also an intervening grossly negligent act (Cline, high on marijuana, waving the stolen gun around with his finger on the trigger, then trying to unload the weapon). Accordingly, on these facts, we conclude that reasonable minds could come to but one conclusion — that the series of intervening acts which included two criminal acts and one grossly negligent act was reasonably unforeseeable and, thereby, cut off all liability on the part of Susanj for Robert Strever’s unfortunate death.
On the facts here, we hold that the District Court’s grant of summary judgment was proper as any negligence by Susanj was superseded by the independent intervening criminal and grossly negligent acts described above.
Having, thus, analyzed and resolved the two legal issues in this case by application of Montana’s statutory law, by application of the well-established rules enunciated in decisions previously handed down by this Court and by application of other well-reasoned authority, it is now necessary that we respond to the special concurrence. While waving the red flag of “gun control” and raising the specter of “banning firearms” guarantees inflammatory headlines and a spate of letters to the editor, as a matter of legal analysis the special concurrence grossly and unfairly misrepresents this Court’s opinion and misstates the law.
At the outset, the special concurrence states that we have held that:
[A]s a matter of law, a property owner owes a legal duty to a thief or a burglar who enters an owner’s property on a mission of thievery, steals the owner’s property, and then injures himself or another with the stolen loot.
In fact, such a holding is nowhere to be found in our opinion. Rather, we have held simply that:
[T]he owner of a firearm has a duty to the general public to use and to store the firearm in a safe and prudent manner taking into consideration the type of firearm, whether it is loaded or unloaded, whether the ammunition is in close proximity or easily attainable, and the location and circumstances of its use and storage.
While the special concurrence apparently views this as the judicial creation of some sort of new, radical public policy designed to undermine the constitutional right to bear arms and promote the imposition of liability upon the innocent victims of crime, it takes neither a crystal ball nor a Rhodes Scholar to readily discern the fallacy of that conclusion.
In the first place, Montana’s public policy, already set forth in our statutes and in force for decades, clearly and unequivocally imposes on each citizen the legal duty to, in all matters, act prudently, with a view to the nature and probable consequences of his conduct, and to abstain from injuring other persons or their property or infringing on their rights. Sections 1-1-204(4), MCA, and 28-1-201, MCA. These statutes, enacted by our legislature, make no exception from the duty of care so imposed on the basis of the “status” of the individual injured by another person’s act or failure to act in the manner prescribed by these laws. Rather, these statutes mandate that each person owes a general duty of care to every other person. Moreover, in furtherance of and consistent with that policy, our statutory law imposes liability on those who either willfully or negligently breach that duty of care — again regardless of the “status” of the person injured. Section 27-1-701, MCA.
While the special concurrence would carve out an exception from this statutorily-imposed general duty of care for criminals who are injured by another’s breach of that duty, the black-letter law clearly does not make such an exception. To the contrary, rather than upholding the public policy set by the legislature as evidenced in the referred-to statutes, the special concurrence would simply ignore that policy in favor of one which rewards or punishes negligent conduct on the basis of the status of the person injured. Unfortunately, in so doing, the special concurrence also ignores the obligation of the courts to uphold and to fairly apply, as written, all constitutional laws. We have not rewritten public policy in this opinion; we have, to the contrary, properly upheld and applied the policy which the public, through its elected representatives, has enacted.
That was precisely what we did in Limberhand, a unanimous opinion of this Court, and that is all that we have done in this case. While the special concurrence attempts to narrow Limberhand to only encompass “civil guests, invitees or trespassers” as opposed to “criminals, thieves or burglars,” such an interpretation makes no sense given that trespassing, by definition, is a criminal, as well as tortious, act. See, Title 45, Chapter 6, MCA. Neither our statutes nor our controlling case law qualify a property owner’s general duty of care by the “status” of the victim of the property owner’s negligence. It, likewise, would be wholly improper that we do so in this case.
Secondly, the special concurrence maintains that the holding we have articulated in this case will come as a great shock to the public in general and to gun owners in particular. To the contrary, we suspect that the public and gun owners would be more surprised to learn that owning a gun does not include a responsibility and a duty to store and use the weapon in a safe and prudent manner. In point of fact, organizations which teach safety and promote responsible firearms use and ownership uniformly stress the necessity to unload and store all guns in a secure location, inaccessible to children and unauthorized persons and separate from the ammunition. Our holding in this case says nothing different. If the owner of a firearm does not owe “a duty to the general public to use and to store the firearm in a safe and prudent manner taking into consideration the type of firearm, whether it is loaded or unloaded, whether the ammunition is in close proximity or easily attainable, and the location and circumstances of its use and storage,” then that truly is a shocking revelation!
Moreover, the special concurrence strongly implies that under our decision here, the owner of a firearm is automatically or strictly liable for any firearms-related injury merely because of his ownership of the weapon. That absolutely is not the case; nothing could be further from the truth. Our holding simply sets forth the duty of care required in the use and storage of a firearm. If a member of the public is injured in a firearms-related accident, as in any negligence case, it is for the fact finder — typically a jury composed of Montana citizens, some of whom would likely be gun owners — to determine whether the owner of the firearm breached his duty of care. While the special concurrence apparently has little faith that such a jury could apply the law and come to a correct result on the basis of the particular facts at issue, we do not share that sentiment.
More to the point, the owner of a firearm who willfully or negligently causes injury in his use or storage of his weapon, has always been subject to suit. The special concurrence’s inference that the floodgates of litigation will be opened notwithstanding, our decision here does not invent any new theories of liability. In truth, we have simply articulated a rule of law that has implicitly existed in Montana for decades.
The special concurrence describes Robert and his group as a “roving band of teenage thieves.” Assuming, arguendo, that is true, it does not, however, follow that Susanj should thereby be relieved of his obligation to have done something as common sense and simple as removing his gun from his unlocked truck when he left it unattended on a public street or as easy as locking the truck or locking the gun in the glove box, in order to prevent a needless tragedy. Perhaps the next “roving band of thieves” will be a group of curious four-year-olds. Perhaps the next person to get shot while the thieves fight over the gun will not be the thief himself, but a mother strolling her baby in the vicinity of the truck. And, that is precisely the reason why, under the authorities we have cited, Montana law does not hinge duty of care on the status of the victim of the breach of that duty. While, the status of the victim is purely fortuitous, it is completely within the control of the owner of the firearm to safely and prudently use and store his weapon. The law imposes a duty of care, among other things, to encourage responsible conduct, not to set up a lottery that rewards or punishes negligent conduct on the basis of the status of who is injured when that duty of care is breached.
Furthermore, the special concurrence contends that citizens “are not required to foresee the acts of thieves and burglars” and that, therefore, as a matter of law, any intervening criminal act should, without more, automatically cut off liability where a duty of care is breached. First, the special concurrence’s basic premise is wrong. Citizens already do foresee the potential for criminal acts taking place in their daily lives, and they proceed accordingly. Few members of the public are willing to leave their cars unlocked with the keys in the ignition in a public parking lot for fear that the car will be stolen. Many women when traveling or living alone take precautions to avoid being assaulted. Every person who boards a commercial aircraft is subject to a personal and baggage search because we live in a society where, unfortunately, terrorist attacks are all too foreseeable. It, thus, does not take a crystal ball or a Rhodes Scholar to figure out that if one leaves a firearm and ammunition in an unlocked vehicle on a public street with a veritable candy-store of other goodies in plain view, that some felon just might enter the vehicle unlawfully and make off with the goods and the weapon.
More importantly, however, in our decision on Issue 2, we have not thrown the baby out with the bath water as the special concurrence suggests. We have simply held that:
If, under the facts of a given case, an intervening criminal act is one which the defendant might reasonably foresee, then there is no reason why the fact finder should not decide causation the same as with any other intervening causation case.
While, one can conjure up all sorts of Rube Goldberg scenarios involving intervening criminal acts, realistically, as our decision here and as VanLuchene, Kiger, Camp (which we have not overruled) and King (which we have clarified) reflect, in many instances intervening criminal acts are unforeseeable and will cut off liability. Notwithstanding, those same cases and our decision in Mills also stand for the proposition that if an intervening criminal act is reasonably foreseeable, then liability will not be cut off.
Finally, our opinion on Issue 1 is neither gratuitous nor advisory. As our decision clearly reflects, the District Court granted summary judgment on the basis that Susanj owed no legal duty to Robert Strever. We have concluded that ruling to be erroneous as a matter of law. Without reversing the District Court’s decision in that regard we would not have reached Issue 2.
Affirmed.
JUSTICES HUNT, TRIEWEILER, GRAY and LEAPHART concur.
. See, for example, “Firearms Responsibility in the Home,” published by the National Shooting Sports Foundation and “A Guide to Firearm Safety and “Parent’s Guide to Gun Safety” published by the National Rifle Association of America.
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OPINION AND ORDER
In this opinion we address the legal issues raised by Petitioner Philip Keating (Keating) in three separate applications for extraordinary writs filed in July and August 1996.
Procedural Background
Keating was charged in the First Judicial District, Lewis and Clark County, with felony assault; criminal possession of dangerous drugs (methamphetamine), a felony; criminal possession of dangerous drugs (marijuana), a misdemeanor; and two counts of criminal possession of drug paraphernalia, misdemeanors. The matter was set for trial on July 9,1996. The matter proceeded to trial on July 9,1996 at which time a jury of twelve was selected. Pursuant to the practice of the First Judicial District with regard to trials of three days or less, as well as the stipulation of the parties, no alternate jurors were selected or seated with the twelve Petit jurors. Following the seating and swearing of the jury, opening statements were presented by both the State and Keating’s counsel. Following the opening statements, the trial recessed for lunch.
When the proceedings resumed after lunch, Judge Jeffrey Sherlock informed the parties that during the lunch recess a juror had advised the court that she was ill and would not be returning to jury duty. After Judge Sherlock was unsuccessful at obtaining an agreement to continue the trial in order to wait for the juror, the judge discussed with counsel the possibility of proceeding with eleven jurors, or calling additional members of the Keating jury panel in order to obtain a new juror. Keating rejected both these alternatives and requested a mistrial. The court declared a mistrial without objection from Keating. Trial was then rescheduled for July 22, 1996.
On Wednesday, July 17, Keating filed a motion to dismiss all of the charges on double jeopardy grounds. On Thursday, July 18, prior to Judge Sherlock’s ruling on the pending motion to dismiss, Keating filed an Application for a Writ of Supervisory Control in the Supreme Court (No. 96-402) seeking a stay of the District Court proceedings until the double jeopardy issue had been addressed. On July 18, this Court issued an order staying further proceedings in the District Court until such time as the State had an opportunity to respond to the motion. Later that same day, the State filed a response asking this Court to reconsider its order vacating the trial setting and to dismiss Keating’s application for a writ of supervisory control. The State contended that granting the writ was inappropriate since Keating had an adequate remedy by way of appeal. We declined to reconsider our prior order and remanded to the District Court for a determination of whether the mistrial was the result of manifest necessity. In our order refusing to reconsider, we indicated that an opinion from this Court would be issued at a later date.
In subsequent proceedings, the trial court ruled that Keating impliedly consented to the mistrial and that the declaration of a mistrial due to a sick juror constituted manifest necessity. The court then scheduled a new trial for August 5, 1996. On August 1, 1996, Keating filed another Application for Writ of Supervisory Control (No. 96-452) arguing that the District Court’s finding that Keating acquiesced in the mistrial was erroneous. Keating’s August 1,1996, Application did not raise an issue as to whether the juror was, in fact, ill; did not address the court’s holding that juror illness constituted manifest necessity; nor did the Application contend that he had been denied an evidentiary hearing on the question of manifest necessity. We declined to issue the writ of supervisory control.
On Monday, August 5, 1996, the second trial proceeded as scheduled. The jury was empaneled and sworn and the State proceeded with presenting its case. That afternoon, Keating filed an Application for a Writ of Habeas Corpus (No. 96-457) claiming that his right not to be placed again in jeopardy and his right to due process were denied when the trial court made a determination of manifest necessity without affording him an evidentiary hearing on that issue. All three applications are discussed below.
Issues Presented
We phrase the issues presented as follows:
1. Must an issue of double jeopardy be addressed prior to the commencement of the second trial or is an appeal after the second trial adequate?
2. Did Keating consent to a retrial by moving for a mistrial and by failing to object to the court’s declaration of mistrial?
Discussion
1. Must an issue of double jeopardy be addressed prior to the commencement of the second trial or is an appeal after the second trial adequate?
On July 9, 1996, a jury was selected, empaneled and sworn and the counsel for the respective parties presented their opening statements. After a lunch break, a juror advised the court that she would not be able to continue to serve as a juror. Thereafter, Keating moved for a mistrial. The trial court declared a mistrial and set a new trial for July 22, 1996. Keating subsequently moved to dismiss the charges on the basis of the constitutional prohibition against placing a person twice in jeopardy. Fifth Amend., U.S. Const, and Art. II, Sec. 25, Mont. Const.
Before a question of double jeopardy arises, there must be an initial determination as to whether jeopardy has attached in the first instance. In a case which originated in Montana, the United States Supreme Court declared as unconstitutional, Montana’s statutory provision that jeopardy attaches when the first witness is sworn. Crist v. Bretz (1978), 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24. In Bretz, the Court held that, in a jury trial, jeopardy attaches when the jury is empaneled and sworn, not when the first witness is sworn. Despite the Bretz decision, § 46-11-503(1)(d)(i), MCA, still provides that a prosecution is barred if: “the former prosecution was terminated for reasons not amounting to an acquittal and takes place: in a jury trial, after the first witness is sworn but before a verdict is returned. ...” (Emphasis added.) This provision is just as unconstitutional now as it was eighteen years ago. Here, the District Court acknowledged, as it must, that the pronouncement by the United States Supreme Court in Bretz controls over the provisions of the statute.
In the present case, a jury was empaneled and sworn and opening statements were presented before the juror informed the court that she would be unable to continue sitting due to illness. Accordingly, there is no question under the holding in Bretz but that jeopardy had attached at the point in time when the court declared a mistrial.
The trial court reset the matter for trial and Keating then moved to dismiss based upon the constitutional prohibition against placing a person twice in jeopardy. Keating argued that the issue of double jeopardy had to be addressed prior to the commencement of the second trial. Relying upon our decision in State ex rel. Forsyth v. District Court (1985), 216 Mont. 480, 701 P.2d 1346, the State countered that the matter could proceed to retrial and that Keating’s double jeopardy issue could be adequately addressed on a subsequent appeal. In Forsyth, we held as follows:
This Court has previously held that the refusal by a district cotut to dismiss criminal charges on a double jeopardy claim does not warrant supervisory control, as the remedy for a criminal defendant lies in an appeal following conviction or in a post-conviction proceeding. State ex rel. LaFlesch v. District Court (1974), 165 Mont. 302, 306, 529 P.2d 1403, 1405.
Forsyth, 701 P.2d at 1351.
We now overrule Forsyth and LaFlesch. Both the U.S. Constitution, Fifth Amendment and the Montana Constitution, Article II, Section 25, protect individuals from being twice placed in jeopardy. If those guarantees are to have any significance, they require that the prohibition must be given effect prior to, not after, the second trial. If, as the State argued, Keating proceeded with a second trial and were convicted, he could appeal on the basis of double jeopardy. This Court could vacate the conviction. However, vacating the conviction would not change the fact that Keating would have been “put in jeopardy.” The same would hold true even if Keating were acquitted in the second trial. That is, the acquittal would not alter the fact that, in being tried a second time, he was again placed in jeopardy of being convicted. The constitutional prohibition is designed to prevent the individual from being put at risk of conviction at a second trial. Once he endures the second trial, regardless of conviction or acquittal, he has incurred the risk; he has been put in “jeopardy,” and that fact cannot be remedied or expunged after the fact.
The United States Supreme Court, in Abney v. United States (1977), 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651, established that a double jeopardy challenge is unique and must be addressed before the risk of a second trial occurs. The Court recognized that the Double Jeopardy Clause protects not only against double punishment but against “being twice put to trial for the same offense.” Abney, 431 U.S. at 661, 97 S.Ct. at 2041.
In construing the Fifth Amendment language, “nor shall any person be subject (for the same offense) to be twice put in jeopardy of life and limb,” the Court found that “[t]he ‘twice put in jeopardy5 language of the Constitution thus relates to a potential, i.e., the risk that an accused for a second time will be convicted of the ‘same offense5 for which he was initially tried.” (Emphasis added.) Abney, 431 U.S. at 661, 97 S.Ct. at 2041 (quoting Price v. Georgia (1970), 398 U.S. 323, 326, 90 S.Ct. 1757, 1759, 26 L.Ed.2d 300, 303).
The Court noted: “[t]hese aspects of the guarantee’s protections would be lost if the accused were forced to ‘run the gauntlet’ a second time before an appeal could be taken ....’’Abney, 431 U.S. at 662, 97 S.Ct. at 2041. See Mannes v. Gillespie (9th Cir. 1992), 967 F.2d 1310, 1312 (citing Abney).
Accordingly, our holding in Forsyth and LaFlesch, that a double jeopardy challenge can be adequately reviewed on appeal, is erroneous and those decisions are hereby overruled. Rather, we reaffirm our approach in State v. Van Dyken (1990), 242 Mont. 415, 791 P.2d 1350, in which we granted a writ of supervisory control to address the question of whether declaration of a mistrial due to a hung jury constituted a double jeopardy bar to a second trial. We concluded that a hung jury did not bar a second trial. The significance of Van Dyken in the present case is that, contrary to the ruling in Forsyth, we did not require Van Dyken to proceed with a second trial and then pursue an after-the-fact appeal on the double jeopardy issue. In keeping with the nature of the double jeopardy guarantee, we granted the writ of supervisory control and resolved the issue before the second trial commenced.
In the case sub judice, jeopardy had attached during the first aborted trial. Accordingly, in light of Keating’s subsequent motion to dismiss on double jeopardy grounds, our July 18,1996, order staying a second trial until such time as the trial court could first address the questions of double jeopardy and manifest necessity was constitutionally mandated.
2. Did Keating consent to a retrial by moving for a mistrial and by failing to object to the court’s declaration of mistrial?
Although Keating eventually filed a pleading in which he argued that his rights had been denied by the court’s failure to grant him an evidentiary hearing on the question of manifest necessity, that pleading was both deficient and untimely. First of all, the pleading in which this issue was raised was an Application for a Writ of Habeas Corpus. The writ of habeas corpus is designed to address questions as to the legality of incarceration. Section 46-22-101, MCA; State v. Sor-Lokken (1991), 247 Mont. 343, 805 P.2d 1367; August v. Burns (1927), 79 Mont. 198, 255 P. 737.
Keating did not allege, nor does it appear from the record or pleadings, that he was incarcerated prior to or during the trial. In his petition for habeas corpus, Keating stated that his case had already been delayed for more than a year, during which, “there has been a very large bond and no violations of that bond....” Thus it is apparent that Keating was not incarcerated at the time but was free on bond. Accordingly, there was no basis to grant a writ of habeas corpus.
Secondly, Keating’s argument that he was entitled to an evidentiary hearing as to whether manifest necessity existed ignores the fact that, not only was it he that requested the mistrial in the first instance, but also, he did not object when the court, after unsuccessfully attempting to get counsel to agree to an alternative, declared the mistrial.
The United States Supreme Court has held that the manifest necessity standard applies only where the mistrial has been declared without the defendant’s request or consent. United States v. Dinitz (1976), 424 U.S. 600, 607, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267, 273.
The Court in Dinitz went on to explain that:
[W]here circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error.
Dinitz, 424 U.S. at 607, 96 S.Ct. at 1079-80 (citing United States v. Jorn (1971), 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543).
This Court recognizes the general rule that when a defendant moves for a mistrial and the same is granted, the “manifest necessity” standard does not apply. State v. Laster (1986), 223 Mont. 152, 153, 724 P.2d 721, 722. This rule is codified at § 46-11-503(2)(a), MCA, which states:
A prosecution based upon the same transaction as a former prosecution is not barred under subsection (l)(d) when:
(a) the defendant consents to the termination or waives his right to object to the termination ....
Consequently, when a defendant requests or consents to a mistrial after jeopardy attaches, regardless of when it attaches, a second trial will not be barred by the double jeopardy prohibition. Although we declared § 46-ll-503(l)(d)(i), MCA, (jeopardy attaching upon swearing of first witness in a jury trial) unconstitutional earlier in this opinion, (2)(a) survives as a constitutional codification of the United States Supreme Court rule in Dinitz when (2)(a) is read in conjunction with a constitutional reading of when jeopardy attaches in a jury trial (jeopardy attaching upon empaneling of jury in a jury trial).
Dinitz does provide an exception to the general rule that a second prosecution is not barred when a defendant requests or consents to a mistrial. This Court recognized the exception laid out in Dinitz that:
where the defendant moves for mistrial but is goaded into doing so by the prosecutor’s actions, the double jeopardy clause bars retrial even though defendant himself moved for the mistrial.
Laster, 724 P.2d at 722.
Before we address the question of whether Keating was “goaded” into requesting a mistrial, we will first discuss whether Keating consented to the mistrial at all. Keating claims that he did not acquiesce in the declaration of mistrial and, therefore, the manifest necessity standard should apply.
In United States v. Smith (9th Cir. 1980), 621 F.2d 350, the Ninth Circuit Court of Appeals was confronted with facts strikingly similar to those before us here. In Smith, on the second day of trial, the court learned that a juror’s mother had suffered a stroke and that the juror had been with her mother at the hospital until very late at night and, consequently, was unable to return to the trial. The court had neglected to select an alternate. The defendant refused to proceed with fewer than twelve jurors and there was no indication that the trial court, which sua sponte declared a mistrial, considered the possibility of a continuance. The Ninth Circuit noted that while a trial court is not required to make an explicit finding of manifest necessity or to articulate on the record all the factors which informed its discretion, Arizona v. Washington (1978), 434 U.S. 497, 516-17, 98 S.Ct. 824, 835-36, 54 L.Ed.2d 717, 734-35, the record gave no indication that the trial court even considered the possibility of a continuance before ordering a mistrial. Even though, as a general rule, the unavailability of an irreplaceable juror makes a mistrial manifestly necessary, see Oelke v. United States (9th Cir. 1967), 389 F.2d 668, 671, the court in Smith held that, since the trial court did not consider a continuance of the trial as an obvious alternative to the mistrial, it could not say that there was “manifest necessity” to terminate the trial atthattime. Smith, 621 F.2d at 351. When a court, in the absence of manifest necessity, declares a mistrial without the defendant’s consent, the double jeopardy clause forbids retrial. See generally United States v. Sanders (9th Cir. 1979), 591 F.2d 1293, 1296-99. Having found no manifest necessity and that Smith did not expressly request a mistrial, the court in Smith thus turned to the question of whether Smith, by statements or silences, impliedly consented to the mistrial. In reviewing the record, the court determined that Smith’s counsel did not object to the order of mistrial, despite adequate opportunity to do so. When the eleven jurors arrived at the courtroom the trial court asked counsel “[D]o you mind if we bring the jury in ... and excuse them?” Smith’s counsel answered, “That is fine.”
These items show that defense counsel not only did not object to the order of mistrial, but affirmatively indicated his understanding that there could and would be a retrial. This is enough to constitute implied consent. Because Smith, through counsel, impliedly consented to the mistrial, and the need for the mistrial did not arise from any prosecutorial or judicial overreaching, the double jeopardy clause does not bar retrial. See Lee v. United States, 432 U.S. 23, 32, 97 S.Ct. 2141, 2146, 52 L.Ed.2d 80 (1977).
Smith, 621 F.2d at 352.
In the present case, the record militates even more strongly in favor of a retrial. Unlike the Smith court, the trial court here, did explore alternatives (continuance of the trial, proceeding with fewer than twelve jurors, selecting a new juror to replace the absent juror) before declaring a mistrial. Thus the record would support a finding of manifest necessity for a mistrial. However, the question of manifest necessity need only be addressed if the court declares a mistrial without the defendant’s consent. Dinitz, 424 U.S. at 607, 96 S.Ct. at 1079-80. Here, the District Court first explored the possibility of continuing the trial until the juror could return. When that option did not work, the following colloquy transpired between the court and counsel:
THE COURT: So our option, as I see it, unless I hear an idea from somebody else, declare a mistrial and begin again on the 22nd, start over, or call in the three alternates, pick the people that were left as the alternate pool, examine them and proceed. I don’t know that maybe we should call them. I’m thinking out loud. I don’t know that we shouldn’t call in even more. This has never happened. So this is my suggestion. We call in those three people, see what we can do, or start again on the 22nd.
DEFENSE COUNSEL: I ask we declare a mistrial.
STATE: Pardon me.
DEFENSE COUNSEL: I would ask that we declare a mistrial. On the 22nd I would be available.
Following this discussion, the cot .rt inquired of defense counsel as to whether he would consent to the 1.9th of July as a new trial date. Counsel stated that he reserved anj objections and that he would not stipulate. He reiterated a number c times that he was available on the 22nd of July. Ultimately, the cou t declared a mistrial and set the matter for July 22nd. Although the court inquired whether there was anything further from counsel, there was no objection from defense counsel as to this procedure.
The record is clear that Keating requested this mistrial and that he did not object to the court’s granting a mistrial and scheduling a new trial on July 22. Keating, however, argues (1) he had no realistic choice but to request a mistrial, and (2) his subsequent request for an evidentiaryhearingonthe question of “manifest necessity” should have been honored. We find no merit to either of these contentions.
In a case such as this where the defendant makes a request for a mistrial, the question becomes one of whether he was truly free to make the request or whether it was mandated by prosecutorial or judicial overreaching. Dinitz, 424 U.S. at 609, 96 S.Ct. at 1080. Although Keating has suggested that, in reality, he did not have any choice but to request a mistrial, he does not contend that he was “goaded” into the choice as a result of prosecutorial or judicial overreaching. The mere fact that a defendant may have felt compelled to ask for the mistrial alternative does not necessarily mean that he can then claim double jeopardy. United States v. McKoy (9th Cir. 1996), 78 F.3rd 446, 450.
Furthermore, his contention that he had no real alternative rings hollow. The court presented at least two viable alternatives: stipulating to a jury of less than twelve, or calling in three more of the veniremen and selecting a new juror. Keating rejected both of these options and moved for mistrial with a new trial setting.
After this Court stayed the trial setting and remanded for consideration of the double jeopardy issue, Keating requested an evidentiary hearing on the question of manifest necessity. This request came too late. It was obviated by the fact that Keating’s counsel had already requested a mistrial and had failed to object when the court declared a mistrial. In order to be of any effect, Keating should have raised the issue on July 9, 1996, before the court dismissed the jury. See Scott v. United States (D.C.Cir. 1952), 202 F.2d 354, 355-56, cert, denied, 344 U.S. 879, 73 S.Ct. 176, 97 L.Ed.2d 681, in which counsel was faulted for failing to object during the interlude between the order of mistrial and the actual dismissal of the jurors, after which it was “too late for his objection to be effective.” By the time Keating filed his Petition for Writ of Habeas Corpus with this Court on August 5, 1996, the question was further mooted by the fact that, since the second jury panel had been empaneled and sworn, jeopardy had already attached a second time. Thus, the only justiciable issue at that juncture would have been triple jeopardy. Furthermore, as we have previously pointed out, the question of manifest necessity does not even become an issue when defense counsel requests the mistrial and does not contend that counsel was “goaded” into the request because of prosecutorial or judicial overreaching.
We hold that Keating was not entitled to an evidentiary hearing on the question of manifest necessity and that a mistrial declared at his request and for reasons not attributable to judicial or prosecutorial overreaching was not a barrier to reprosecution. Dinitz, 424 U.S. at 607, 96 S.Ct. at 1079-80; United States v. Jorn (1971), 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543.
DATED this 10th day of September, 1996
CHIEF JUSTICE TURNAGE, JUSTICES HUNT, NELSON, TRIEWEILER and GRAY concur.
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
This is an action for damages for the breach of a contract. The complaint alleges that on September 30, 1909, the defendant gave to the plaintiff an option in writing to purchase the Allen ranch, comprising. 4,380 acres, at $10 per acre; that the option was to continue for thirty days, but within that period it was extended until December 1. A copy of the writing referred to is attached to the complaint. After reciting that the option to purchase is given to Monahan, and describing the land, the writing contains this principal clause: “It is hereby agreed that if the option for the purchase of the above property be exercised, that the terms for which shall be a payment.of five thousand dollars ($5,000) cash at the time of the signing of deeds of conveyance and the remainder of the purchase price of $10.00 per acre shall be paid on the terms and under such agreements as may hereafter be made.” It is further alleged: That after this writing was executed and delivered the defendant instructed plaintiff to deposit the first installment of the purchase price in any bank in Livingston; that thereafter, and on or about November 12, 1909, plaintiff notified defendant that he accepted the offer to sell “upon the terms set out in said option”; that on November 29 plaintiff caused to be deposited in the National Park Bank of Livingston the first installment of $5,000, notified defendant thereof, and demanded a deed conveying the property to a named purchaser, to whom plaintiff had resold the property; that on the twenty-third day of December, 1909, plaintiff and defendant agreed upon the terms and dates for the payment of the balance of the purchase price, as follows: $5,000 on January 1 of each year for six years, beginning with 1911, and the balance on January 1, 1917; deferred payments to be made at the National Park Bank of Livingston, and to draw interest at the rate of seven per cent per annum. The plaintiff’s readiness and willingness to perform all the terms of the alleged contract, a breach by the defendant, and the special circumstances tending to show the amount of plaintiff’s damages are then set forth. The answer is a general denial. Upon the trial, at the conclusion of plaintiff’s ease, the court granted a nonsuit and entered judgment for defendant for costs. From that judgment, and from an order denying him a new trial, plaintiff has appealed.
1. That the writing, a copy of which is attached to the complaint, is not a contract for the sale of the Allen ranch, both parties are agreed. While it bound Allen to sell, it did not bind Monahan to purchase. If anything, it was an option, by the terms of which Monahan had a right to purchase the Allen ranch on or before December 1, 1909. (Snider v. Yarbrough, 43 Mont. 203, 115 Pac. 411; Ide v. Leiser, 10 Mont. 5, 24 Am. St. Rep. 17, 24 Pac. 695.) Since an option, in legal effect, is a continuing offer to sell, which is capable of being converted into a valid contract by acceptance, by the tender of the purchase price, or by the performance of the conditions named in the option, within the time stated and before the offer is withdrawn (Ide v. Leiser, above; Gordon v. Darnell, 5 Colo. 302), it follows that, to constitute a particular instrument an option, the terms of the offer must be such that, when accepted, the offer and acceptance will constitute a binding contract. The peculiar characteristics of an option are not involved here; and neither are we concerned with all the essentials of a valid contract for the sale of real property. Speaking broadly, every express, executory contract, upon analysis, resolves itself into an offer by one party and an acceptance by the other (7 Am. & Eng. Ency. of Law, 2d ed., 125); and since an option is a continuing offer convertible into a contract by acceptance, it is subject to the same rules of law for determining its sufficiency as any other offer made in anticipation of the formation of a binding contract.
Our first inquiry, then, is: Was the offer made by Allen sufficient, so that, when accepted by Monahan, a binding contract for the sale of the Allen ranch resulted? The option was executed and delivered on September 30. Monahan testified that he accepted the offer, and notified Allen of his acceptance, about November 17. Paraphrased, Allen’s offer is this: “I will sell you my ranch [describing it] for $43,800, payable $5,000 upon the execution of the deed, and $38,800 upon such terms and subject to such agreements as we may hereafter make.” Monahan alleges that he accepted this offer “upon the terms set out in said option.” In other words, Monahan agreed to purchase the Allen ranch for $43,800, agreed to pay $5,000 in cash upon the execution of the deed, and the further sum of $38,800 upon such terms and under such agreements as he and Allen might thereafter make. Allen did not offer to agree to any terms which Monahan might suggest, and neither did Monahan agree to submit to any terms which Allen might see fit to impose. Even the time for the execution of the deed and the payment of the first installment is not fixed. Nothing whatever is said as to whether Allen should be secured for the payment of the balance due, whether he should receive interest on the deferred payments, or whether the deed should be delivered to Monahan or to the named purchaser, when it was executed. Indeed, aside from fixing the price of the ranch and the amount of the first installment, all other terms were left for future negotiations. The recital that $5,000 was to be paid upon the execution of the deed, and the balance thereafter upon such terms as might be agreed upon, negatives the idea that either party contemplated that the entire balance of $38,800 should be paid at once upon the execution of the deed; or, in other words, the idea that a cash transaction was in contemplation is completely disavowed. Viewed in the light most favorable to the appellant, the best that can be said is that Allen agreed to execute a deed within a reasonable time after receiving notice of Monahan’s acceptance and upon receiving payment of the first installment of $5,000. But from any point of view Allen’s offer to sell was conditional upon the ability of himself and Monahan to agree upon the terms for the payment of the balance of the purchase price. Such an offer is too vague, indefinite and uncertain to form the basis for a contract.
In 1 Page on Contracts, the author gives a critical analysis of a contract, enumerates the essential elements of an offer and discusses the subject of completeness, in section 27, as follows: “An offer, even if intended to create legal relations, must be so complete that, upon acceptance, an agreement is formed which contains all the terms necessary to determine whether the contract has been performed or not.” And by way of illustrating the same rule from the negative point of view the author says: “An offer which leaves the amount of compensation to be determined by subsequent negotiations, fixing only the extreme limits within which the negotiations are to range, or one which leaves to a future valuation between the parties the price to be paid for realty or personalty, or one which leaves the quantity of material to be furnished, or the character of buildings to be erected, or the terms of payment and security for the purchase price, to be determined by future negotiation, is not complete.” To the same effect is the decision in Schenectady Stove Co. v. Holbrook, 101 N. Y. 45, 4 N. E. 4, where it is said: “Until an offer is made by one party, complete and definite in all material terms, it is not possible for another to make a valid contract by the mere acceptance of a proposition. In other words, so long as there remains any of the material conditions of a contract to be settled and agreed upon, no binding agreement exists. ”
The acceptance, if' of any efficacy whatever, must be coextensive with the offer. (1 Page on Contracts, sec. 45.) “An acceptance, to be good, must in every respect meet and correspond with the offer, neither falling within nor going beyond the terms proposed.” (Knowlton’s Anson on Contracts, 22; Brophy v. Idaho P. & P. Co., 31 Mont. 279, 78 Pac. 493.) This being true, Monahan’s acceptance must be construed to mean: “I will purchase the Allen ranch for $43,800 and pay $5,000 upon the execution of the deed, provided we can hereafter agree upon the terms for the payment of the balance.” If, then, the offer is indefinite, and material terms are left for future negotiations, the acceptance, which must correspond with the offer, cannot aid it.
In 1 Story on Contracts, section 490, it is said: “In order to create a contract, it is essential that there should be a reciprocal assent to a certain and definite proposition. So long as any essential matters are left open for further consideration, the contract is not complete; and the minds of the parties must assent to the same thing in the same sense.”
In Long v. Needham, 37 Mont. 408, 96 Pac. 731, this court stated the rule as follows: “An agreement to be finally settled must comprise all the terms which the parties intend to introduce. An agreement to enter into an agreement upon terms to be afterward settled between the parties is a contradiction in terms. It is absurd to say that a man enters into an agreement till the terms of that agreement are settled.”
In Bissinger v. Prince & Blackman, 117 Ala. 480, 23 South. 67, it is said: “It is an elementary principle that there can be no valid contract without the mutual assent of the parties. Their minds must meet and concur as to all the essential elements of the contract involved, as to the subject matter, and as to their respective rights and duties.” (See, also, 7 Am. & Eng. Ency. of Law, 2d ed., 113; Etheredge v. Barkley, 25 Fla. 814, 6 South. 861; Watson v. Bayliss (Wash.), 128 Pac. 1061.)
That Allen’s offer and Monahan’s acceptance of it did not conclude the negotiations was thoroughly understood by both parties. The writing, on its face, provides for further treaty arrangements, and some of these negotiations were subsequently carried on. But if a contract for the sale of the Allen ranch was made between these parties at all, it was made when Monahan communicated his acceptance of Allen’s offer; for the record discloses that there were not any other arrangements had prior to that time and none subsequently made, except as will be noted hereafter. That the terms left open for future negotiations were deemed important by both parties is apparent. Provision was made for the payment of only $5,000 of the $43,800 representing .the purchase price of the ranch. Assuming that it sufficiently appears that Allen was to execute and deliver a deed to the property within a reasonable time after receiving notice of Monahan’s acceptance and upon the payment of the first installment of $5,000, he would be required to transfer the title to a stranger, and that, too, without any security for the balance of $38,800, unless the question of security was comprehended within the terms which were left open for future negotiations; and that this was so, or, at least, was Monahan’s understanding, is very clear, for he testified that the subject of security was discussed, but its determination was left open for negotiations to be had at a meeting to be held in January, which meeting never took place, and therefore the question of security was never settled. At the time of Monahan’s acceptance the only terms agreed upon were the upshot price and the amount of the first installment. The other terms were left open for future determination, and because of this fact the offer and acceptance did not constitute a binding contract for the sale of the ranch. Upon principle, the following cases are in point: Brown v. New York Central R. R. Co., 44 N. Y. 79; Wills v. Carpenter, 75 Md. 80, 25 Atl. 415; Mattoon Mfg. Co. v. Oshkosh etc. Ins. Co., 69 Wis. 564, 35 N. W. 12; Santa Rosa L. Co. v. Woodward, 119 Cal. 30, 50 Pac. 1025; Peet & Co. v. Meyer, 42 La. Ann. 1034, 8 South. 534.
In Krum v. Chamberlain, 57 Neb. 220, 77 N. W. 665, there was presented the case of an offer to sell real estate with, the entire price fixed, but the terms of payment and the security were left for future treaty. In speaking of the situation thus presented, the court said: “So at this stage of the negotiations it is perfectly clear that both parties understood that the only things definitely determined upon were the price of the property, the rate of interest on the deferred payment, and the time when the transaction should be closed. A court could not enforce specific performance at the suit of either party, because it could not ascertain from the evidence how much of the purchase money should be paid in cash, for what amount a mortgage should be given, nor when the security should become enforceable.”
In Gunn & Co. v. Newcomb, 82 Iowa, 468, 48 N. W. 989, the court was considering an offer to sell a stock of goods for an amount equal to the invoice price, to be determined by an inventory thereafter to be taken. It was held that an acceptance of this offer did not constitute a contract for the sale of the goods.
In Wardell v. Williams, 62 Mich. 50, 4 Am. St. Rep. 814, 28 N. W. 796, there was under consideration a question somewhat similar to the one now before us. Williams owned land which had been subdivided into lots. He offered to sell to Wardell the entire tract for a named amount, part cash and the balance secured by a mortgage upon the entire tract. In the offer there was contained a provision that the parties would thereafter fix a price for each lot, so that whenever the fixed value of a particular lot was paid it could be released from the mortgage.. This offer was accepted, and in an action for damages for a breach of the alleged contract the question was presented: “Was there a valid contract between the parties?” The court answered the question in the negative, and in the course of the opinion said: “The offer, upon its face, looks to future action and negotiation between the parties to determine and agree upon the valuation to be placed upon the lots, which were to be released as their value so agreed upon should be paid upon the mortgage. * * * The memorandum shows, upon’ its face, that the minds of the parties had not met, and that it was not evidence of a completed agreement, but stated terms which, if accepted, would be .the foundation of further treaty between the parties with reference to essential particulars, which, when agreed upon, would form part of the contract of sale and purchase.”
In order to determine whether Monahan’s acceptance of Allen’s offer constituted a contract for the sale of the Allen ranch, it is only necessary to inquire what effect the failure of the parties thereafter to agree upon the terms for the deferred payments, or the security to be given Allen, would have upon the transaction. Neither agreed to subscribe to any particular terms, and if their subsequent negotiations had failed, neither could have been charged with a breach of the contract. So long as the minds of the parties did not meet upon all the material terms of the contract, the contract was incomplete. (La Compania etc. de Bilbao v. Spanish-American L. & P. Co., 146 U. S. 483, 36 L. Ed. 1054, 13 Sup. Ct. Rep. 142.)
In Sibley v. Felton, 156 Mass. 273, 31 N. E. 10, the court had before it an instrument executed by parties owning certain industries, looking to a consolidation of their business. The written instrument, after reciting the purpose to be accomplished and enumerating certain terms, provided that a complete plan of unification should thereafter be prepared and agreed upon. In speaking of this transaction the court said: ‘ ‘ It is clear that on some things the minds of the parties had met, and on others they had not. The scheme or plan was not completed, and until it was there was no complete or final contract. Until then it was provisional and incomplete, and failure to agree upon the details or upon a complete plan would render all the preliminary agreements void.”
Until all the material terms were agreed upon between Allen and Monahan, either party was free to withdraw from the negotiations and terminate the transaction. (Dietz v. Farish, 53 How. Pr. (N. Y.) 217; Deshon v. Fosdick, 1 Woods (U. S.), 286, Fed. Cas. No. 3819; 7 Am. & Eng. Ency. of Law,. 2d ed., 139, note.) In Ridgway v. Wharton, 6 H. L. Cas. 238, it is said: “An agreement to be finally settled must comprise all the terms which the parties intended to introduce into the agreement. An agreement to enter into an agreement upon terms to be afterward settled upon between the parties is a contradiction in terms. It is absurd to say that a man enters into an agreement till the terms of that agreement are settled. Until those terms are settled, he is perfectly at liberty to retire from the bargain.” This language is quoted with approval in Brown v. New York Central R. R. Co., above, and a portion of it in Long v. Needham, above.
The distinction is to be made between an agreement to enter into a specific contract, whose terms are fixed in advance, and an agreement to enter into some sort of a contract, if its terms can thereafter be agreed upon. In discussing this subject the supreme court of Minnesota, in Shepard v. Carpenter, 54 Minn. 153, 55 N. W. 906, said: “A contract between two persons, upon a valid consideration, that they will, at some specified time in the future, at the election of one of them, enter into a particular contract, specifying its terms, is undoubtedly binding; and upon a breach thereof the party having the election or option may recover as damages what such particular contract, to be entered into, would have been worth to him, if made. But an agreement that they will in the future make such contract as they may then agree upon amounts to nothing. An agreement to enter into negotiations and agree upon the terms of a contract, if they can, cannot be made the basis of a cause of action. There would be no way by which the court could determine what sort of a contract the negotiations would result in; no rule by which the court could ascertain whether any, or, if so, what, damages might follow a refusal to enter into such future contract. So, to be enforceable, a contract to enter into a future contract must specify all its material and essential terms, and leave none to be agreed upon as the result of future negotiations.”
Monahan testified that in December, 1909, he and Allen met and agreed upon the amounts and maturities of the remaining installments of the purchase price; that they agreed that Allen should have security for the deferred payments, but the character of the security was left open for determination at a meeting to be held in January following. The January meeting was never held, and the character of the security was never agreed upon. Allen refused to proceed, and since there was not any binding contract he could do so without incurring liability. If the January meeting had been held, but the parties had failed to reach an agreement as to the character and extent of the security which Allen should receive, all the prior negotiations would have ended with nothing accomplished.
2. It is beside the question to inquire whether the written option is a sufficient note or memorandum to meet the requirements of the statute of frauds. Since there was not any contract, there could not be a note or memorandum of a contract, within the meaning of those terms as employed in the statute of frauds.
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.
This cause was heretofore before this court. (Quong Wing v. Kirkendall, 39 Mont. 64, 101 Pac. 250.) On writ of error it was removed to the supreme court of the United. States, where the judgment of this court was affirmed. (Quong Wing v. Kirkendall, 223 U. S. 59, 56 L. Ed. 350, 32 Sup. Ct. Rep. 192.) In disposing of the ease upon the pleadings as then drawn, the federal court, however, intimated strongly that, if in its operations section 2776, Revised Codes, applies only to persons of the Chinese race, it would be held invalid as contravening the provisions of the Fourteenth Amendment to the Constitution of the United States.. Upon the return of the remittitur to the district court, counsel for plaintiff amended the complaint to meet the views of the supreme court of the United States, and to bring the case within the rule announced in Yick Wo v. Hopkins, 118 U. S. 356, 30 L. Ed. 220, 6 Sup. Ct. Rep. 1064. To this amended complaint, a general demurrer was interposed. The trial court overruled the demurrer, and the county attorney, electing to stand upon his pleading, suffered judgment to be entered against the defendant, and appealed.
The controversy now presents a federal question upon the decision of which the judgment of the supreme court of the United States is conclusive. However reluctant we may be to subscribe to the doctrine announced in Yick Wo v. Hopkins, above, the decision in that case is binding upon us. Upon the authority of the former decision of this case by the supreme court of the United States, and the case of Yick Wo v. Hopkins, above, the judgment is affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Sanner concur.
|
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
On July 2, 1910, P. B. Moss was president of and principal stockholder in the First National Bank of Billings, when by order of the controller of the currency the bank was closed. Richard W. Goodhart was appointed receiver and immediately took possession of the bank’s books and assets, and continued to act as such receiver until superseded by Philip Tillinghast, on October 25, 1910. When Goodhart took possession, C. D. Prather was indebted to the bank upon a promissory note for $15,000. The indebtedness was secured, in part at least, by a chattel mortgage upon certain range horses and cattle. Prior to the maturity of the Prather note, and about September 19, 1910, a sale of the mortgaged property to R. D. Currier was effected for $5,000, which amount was paid to the receiver and by him credited on Prather’s note. After Tillinghast succeeded to the receivership, this action was commenced by Moss against Goodhart and Currier. The complaint recites the facts above more in detail, alleges that the mortgaged property was rea sonably worth $11,700; that Goodhart and Currier entered into a conspiracy to force Prather to sell the property to Currier for a sum much less than the fair value; and that Goodhart, by threats and menaces, succeeded in compelling the sale, to the injury of the stockholders and creditors of the bank in the sum of $6,700. It is further alleged that on or about November 22, 1910, the plaintiff “made demand upon the said Tillinghast,, as receiver of the said bank, to bring suit against the said defendant Goodhart and the said defendant Currier to set aside said sale of said property, and for an accounting to the said trust for the value thereof, which demand was by the said Tillinghast, receiver of the said bank as aforesaid, then and there refused.” The concluding paragraph of the complaint and the prayer read as follows: “This suit is brought and prosecuted in the interests of this plaintiff and of the other stockholders of said bank, as well as in the interests of all of the creditors of said bank, to the end that justice and equity may be done in the premises. Wherefore the plaintiff demands that the said sale, or pretended sale, of the said horses and cattle made by the said C. D. Prather to the said Currier be declared null and void, and that the bill of sale executed on such sale by the said C. D. Prather to the said Currier be declared null and void and of no effect, and that the defendant herein be required to account to, and pay over, to the said Philip Tillinghast, the receiver of the First National Bank of Billings, and to said trust, the said sum of $6,700, to be by the said Tillinghast treated as other funds and assets of the said trust, and for such other and further relief as the court may find meet and agreeable to equity, and for costs of suit.” To this complaint a demurrer, ’general and special, was interposed and overruled, and the defendants then answered, denying all the allegations of conspiracy, intimidation, or wrong conduct on the part of either of them, and alleging that the sale of the mortgaged property was made in good faith for the reasonable value thereof and for the best interests of the bank and its creditors. The affirmative allegations of the answer were put in issue by reply.
The cause was tried to the court sitting with a jury. At the close of the testimony, instructions upon the questions of law involved were settled and submitted to the jury. A general verdict in favor of the plaintiff and against the defendants for $3,312.50, and also twelve special findings, were returned. Counsel for the defendants moved the court to adopt four of the findings as made, to reject the general verdict and the other special findings, and also to find in favor of the defendants upon some eight questions which were presented. The court denied the request, rejected the first two special findings made by the jury, adopted the others and the general verdict as against defendant Goodhart, but in favor of defendant Currier, and further found: “That the defendant Richard W. Goodhart carelessly, negligently, and wantonly failed to represent the best interests of his trust, the said plaintiff, the First National Bank of Billings and its stockholders and creditors, and sold the property described in the complaint for a sum less than its reasonable market value to the damage , of the said First National Bank, its creditors, and the said P. B. Moss in the sum of $3,312.50.” The conclusion of the trial court was that the plaintiff should recover the amount of the verdict for the benefit of the bank, its receiver, creditors, and stockholders. The judgment rendered recites that: “P. B. Moss do have and recover of and from the said defendant Richard W. Goodhart the sum of $3,312.50 together with interest thereon at the rate of 8 per cent, per annum from the date hereof until paid, and together with costs and disbursements incurred in said action, amounting to the sum of $-.” It is from that judgment and from an order denying him a new trial that defendant Goodhart appeals.
1. The errors assigned upon the instructions given and refused, and upon the rulings of the court admitting evidence, are not available to appellant. It is unnecessary for us to determine the character of this action; whether it is a suit in equity -to set aside the sale of the mortgaged property, or for an accounting, or an action at law for damages. It appears from the record that the cause was tried upon the theory that it is a suit in equity, and appellant is bound by the theory he adopted in the court below. (Cohen v. Clark, 44 Mont. 151, 119 Pac. 775; Galvin v. O’Gorman, 40 Mont. 391, 106 Pac. 887; Dempster v. Oregon Short Line Ry. Co., 37 Mont. 335, 96 Pac. 717.) Upon that theory no error can be predicated upon the giving or refusal to give instructions. No instructions except the formal ones should be given; no general verdict should be submitted; and, if evidence be admitted which should not be, the presumption prevails that the trial court disregarded it, unless it appears that it influenced the decision in some material aspect. (Bordeaux v. Bordeaux, 43 Mont. 102, 115 Pac. 25; Rumping v. Rumping, 41 Mont. 33, 108 Pac. 10; Sanford v. Gates, 21 Mont. 277, 53 Pac. 749.)
2. The principal controversy is over the right of plaintiff Moss to maintain this action. The plaintiff’s allegation that before commencing this action he demanded of Tillinghast that he bring it and that this demand was refused is denied in the answer: There was not any proof whatever offered in support of the allegation. Counsel for respondent concede the general rule to be, as heretofore stated by this court, that a stockholder cannot prosecute an action for redress for an injury to a corporation, unless it appears that a demand has been made and refused or a situation is disclosed from which it is manifest that an appeal to the corporate authorities would be useless. (Brandt v. McIntosh, 47 Mont. 70, 130 Pac. 413.) If the corporation is in the hands of a receiver, the demand should be made upon that officer. (Boston & Mont. etc. Co. v. Montana Ore Pur. Co., 24 Mont. 142, 60 Pac. 990.) This is the rule applicable to ordinary, private corporations. If, however, the corporation which is in the hands of a receiver be a national bank, the demand and refusal are still necessary, though there is some diversity of opinion as to whether the demand should be made upon the corporation (Bank of Bethel v. Pahquioque Bank, 14 Wall. (U. S.) 383, 20 L. Ed. 840), or upon the receiver, or the controller of the currency. (Brinckerhoff v. Bostwick, 23 Hun (N. Y.), 237.) Our Code declares that every action must be prosecuted in the name of the real party in interest. There is not any right in Moss to act for the creditors of the bank, and he can only act for the bank itself by showing that he has made demand upon the corporation (that is, upon the board of directors) or the receiver in charge, or the controller of the currency, and that his demand has been refused. (4 Thompson on Corporations, 4180, 4181; 10 Cyc. 965.) The complaint in this instance does not proceed upon the theory that demand was excused, but upon the theory that a demand was necessary and was actually made. Whenever a demand is necessary, the allegation that such demand was made and refused is an essential ingredient to the statement of a cause of action by the stockholder. (O’Connor v. Virginia P. & P. Co., 184 N. Y. 46, 76 N. E. 1082; Flynn v. Brooklyn C. R. Co., 158 N. Y. 493, 53 N. E. 520; Cogswell v. Bull, 39 Cal. 320; Beshoar v. Chappell, 6 Colo. App. 323, 40 Pac. 244; Coble v. Beall, 130 N. C. 533, 41 S. E. 793; Hawes v. Oakland, 104 U. S. 450, 26 L. Ed. 827; 10 Cyc. 983.)
In their brief, counsel for respondent also concede that there was not “any right of action in the plaintiff below because of the loss to and decrease in the value of his stock in the bank. A right of action based upon this ground would unquestionably be in the corporation, or in the receiver thereof”; citing Howe v. Barney (C. C.), 45 Fed. 670; Hirsh v. Jones (C. C.), 56 Fed. 138; McMullen v. Ritchie (C. C.), 64 Fed. 262. If, then, this action is brought on behalf of the corporation or its creditors, or because of depreciation in the value of plaintiff’s stock, the plaintiff, in failing to prove demand and refusal, failed to make out a case, and there is not any attempt to defend against this conclusion. It is unnecessary for us to determine upon whom the demand should be made in an action brought on behalf of the First National Bank of Billings, for, notwithstanding the complaint alleges that a demand was made upon Tillinghast, plaintiff now repudiates the idea that this is a derivative action at all. It is insisted that since plaintiff, as a stockholder of the bank, is liable for an assessment equal to the par value of his stock, under section 5151, United States Bevised Statutes (U. S. Comp. Stats. 1901, p. 3465), he “had a financial interest in the collection of the assets of the bank, which interest was personal and independent of and separate from the interest of the corporation itself. A sacrifice of any of the assets of the bank meant an equal personal and individual loss to the stockholders thereof, entirely distinct from the loss to the corporation.” And again: “The plaintiff is under a personal liability to the amount of the par value of the stock, and in bringing this suit he brought it for his own personal benefit.” We have taken these excerpts from the brief of respondent in an effort to state his theory of the nature of his claim. If we understand his contention aright, it is that Goodhart, while receiver, sacrificed the security held for the Prather note, with the result that $6,700, the difference between the amount realized by Goodhart and the alleged actual value of the mortgaged property, has been lost to the funds of the bank, which sum this plaintiff, ás a stockholder, will or may be required to make good, in the proportion that his stock bears to the total capital stock of the bank.
We would be reasonably certain that we have stated respondent’s position correctly, but for the many changes which appear to have occurred in his theory of his case from its inception to the final submission in this court. As indicated in the quotation from his complaint above, he brought this action in the interest of himself and other stockholders and the creditors of the bank. After hearing the evidence, the trial court concluded that the recovery should be for the bank, its receivers, its creditors and stockholders, while the judgment entered was an ordinary money judgment in favor of plaintiff Moss personally. The alleged demand upon Tillinghast was to institute a suit “to set aside the sale” of the mortgaged property, and the prayer of plaintiff’s complaint is that the sale “be declared null and void.” If the purpose of this suit was to set aside the sale, the finding in favor of Currier, who was a party to the sale, amounted to a denial of the relief sought, while the judgment entered in favor of Moss personally takes no account of the rights of the other stockholders or the creditors of the bank. Apparently the judgment is in complete harmony with the theory of respondent at this time, as indicated by the excerpts from his brief above, but it is without any foundation whatever in the pleadings and contradictory of the trial court’s conclusion. Of course, if respondent is right now in asserting that he brought this action for his own personal benefit and for an injury which he suffered independently of the bank and its creditors, then it was not necessary to allege or prove a demand, and for the very obvious reason that it was not á matter of concern to the corporation at all. Upon this the authorities are uniform. (4 Thompson on Corporations, sec. 4590.)
If the action was brought on behalf of the bank, plaintiff has failed because he has not shown a demand and refusal, or any excuse for not making demand. If it was brought to redress a grievance peculiarly plaintiff’s own or to recover for plaintiff’s own benefit, then his complaint does not state a cause of action, and the general demurrer should have been sustained. The mere fact that under section 5151, United States Revised Statutes, he may be called upon to respond to an assessment upon his stock is not sufficient to give him a cause of action. He cannot anticipate that he will be injured. The bare possibility that he- will be damaged is not sufficient to entitle him to a judgment. Courts cannot adjudicate with reference to events which may or may not transpire. There is not any allegation that an assessment has been or will be levied upon plaintiff’s stock; neither is there any allegation that plaintiff has paid into the receiver’s hands any sum whatever, or that he ever will be required or able to do so. And in passing it may be said that there is not any suggestion in the evidence either that plaintiff has paid, or been requested to pay, any assessment upon his stock. If he has not paid, he has not been injured; and, if he is never required to pay, he never will be injured.
3. Counsel for appellant also insist that the complaint fails to state a cause of action in that it fails to disclose that Prather is insolvent or that any loss will result from the sale of the mortgaged property to Currier for the price received; and this argument would be unanswerable but for the fact that without objection evidence was introduced from which it is fairly inferable that Prather was insolvent at the time of the sale, and that this mortgaged property was the only resource from which to obtain payment of his indebtedness to the bank. Under such circumstances, after judgment, this court will treat the complaint as amended to admit the proof. (Lackman v. Simpson, 46 Mont. 518, 129 Pac. 325; Post v. Liberty, 45 Mont. 1, 121 Pac. 475; O’Brien v. Corra-Rock Island M. Co., 40 Mont. 212, 105 Pac. 724.)
4. Because of the uncertainty as to the theory upon which plaintiff has proceeded, we would be unable to make final disposition of this ease, if there were not any other errors appearing. On the one hand, there is much evidence in the record dealing with the management of the bank which is wholly immaterial upon any theory of the ease, while on the other we think the trial court committed error in unduly restricting defendant in the cross-examination of plaintiff’s witnesses. The issues presented related to the conspiracy alleged to exist, but which the trial court impliedly found did not exist; the fair market value of the mortgaged property; whether defendant Goodhart exercised reasonable care to ascertain the value; and whether by coercion he forced Prather to sell the property at a sacrifice. Any evidence, if otherwise competent, which would tend to throw light upon any of these issues should have been received. Courts exist to administer justice as nearly as may be, and to this end the tendency of modern practice is to liberalize the procedure in order that the very truth respecting the controversy may be disclosed. In Knuckey v. Butte Electric Ry. Co., 45 Mont. 106, 122 Pac. 280, this court said: “We think the court unduly restricted the cross-examination, and again suggest the propriety of allowing the fullest scope for such examinations, to the end that the jury may be advised of all facts having a legitimate bearing upon the issues presented.” And in State v. Biggs, 45 Mont. 400, 123 Pac. 410, these observations were made: ‘ ‘ The right of cross-examination is a substantial one and may not be unduly restricted. It may extend, not only to facts stated by the witness in his orig inal examination, but to all other facts connected with them which tend to enlighten the jury upon the question in controversy. (Kipp v. Silverman, 25 Mont. 296, 64 Pac. 884; Hefferlin v. Karlman, 30 Mont. 348, 76 Pac. 757; State v. Howard, 30 Mont. 518, 77 Pac. 50; Rev. Codes, sec. 8021.) The rule necessarily includes questions, the purpose of which is to bring out facts illustrative of the motives, bias, and interest of the witness, or as reflecting upon his capacity and memory. The right would be of little value if inquiry into these matters were not permitted.” Without stopping to consider separately each particular error predicated upon rulings of the trial court restricting defendants’ counsel in their cross-examination, we think the foregoing will suffice.
The judgment and order are reversed, and the cause is remanded for further proceedings not inconsistent with the views herein expressed.
Reversed and remanded.
Mr. Chief Justice Brantly and Mr. Justice Sanner concur.
|
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] |
MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
Action by respondent to recover from appellant the sum of $5,347.13, alleged to be due on account of goods, wares and merchandise sold and delivered to the Missoula Palace Market, a corporation, organized and existing under the laws of Montana. The theory upon which appellant is sought to be held is, that, as president and director of the corporation, he failed to file, or have filed, in the office of the clerk and recorder of Missoula county, the place where the corporation has its principal place of business, for the year 1910 the report required by section 3850 of the Revised Codes. On August 2, 1906, the appellant, W. P. Mills, filed with the county clerk of Missoula county articles of incorporation of the “Missoula Palace Market.” These were executed and acknowledged by Mills, Thomas C. Marshall and Thomas N. Marlowe. Thereafter a certified copy was filed with the secretary of state, and there was duly issued by him a certificate under the seal of the state. The articles recited that Mills, Marshall and Marlowe were the directors having charge of the corporation during the first three months of its existence; that its corporate stock was $3,000, divided into 3,000 shares of one dollar each, and that each of the incorporators was a subscriber for one share. The stock was declared nonassessable but was to be fully paid when issued. It does not appear that the directors formally organized by the election of officers or the adoption of by-laws, or that an election of directors was thereafter had. No certificates of stock were thereafter issued. On December 12, 1907, the appellant Mills entered into a written contract with one J. D. Watts, wherein he represented himself to be the owner of all the capital stock of the corporation, and agreed to sell to Watts three-fourths of it for the sum of $3,000. The writing provided that Watts should have charge, management and conduct of the business of the corporation, the same being the “butcher and meat business now carried on” in Missoula. Watts was to receive a salary of $125 per month, and he and Mills were to divide “the proceeds or dividends of said business in the proportion of their holdings.” Watts took charge at once and conducted the business until March 6, 1910. He did not pay the note given to Mills as the purchase price under the terms of the agreement. He never received any shares of stock. Prior to Watts’ connection with the business, Mills was manager and, according to his own testimony, sole owner of it until it was closed up by an attachment by himself in March, 1910. From its establishment until Watts took charge, and thereafter until it was closed up, the business was conducted in the corporate name. When Watts assumed charge an indebtedness of about $2,200 had been incurred. Checks issued by him were signed with the corporate name, by Watts himself or his daughter, who was the bookkeeper. On January 17, 1908, Mills verified an annual statement such as was required by the statute (Rev. Codes, sec. 3850), signed by himself, Marshall and Marlowe, and caused it to be filed with the clerk and recorder of Missoula county, wherein it was recited that the Missoula Palace Market is “a corporation organized and existing under the laws of Montana,” and that Mills was the president and a director of it; that Watts was its general manager; and that Marshall was its secretary. A report reciting the same facts, verified by Mills, was filed for record on January 19, 1909. In each of these reports is the statement that “the amount of capital stock actually paid in cash is the sum of $3,000.” The testimony given by Mills at the trial was in part as follows: “ Q. Who was doing business -before Mr. Watts got there? A. The Missoula Palace Market it was called. Q. What is the company of which you were president part of the time and Mr. Watts part? A. The business ran there, we called- it the Missoula Palace Market. Q. Who was manager'when Watts came? A. I was. * * * Q. Where did you get the money to pay that rent with? A. Why, he took it out of the corporation, I guess. * * * Q. Did you ever call a meeting or advertise for a meeting? * * * A. I know the secretary- — Marshall—called a meeting. * * * We met several times; Col. Marshall, Mr. Watts and myself. * * * I Was trying to get Mr. Watts to settle the business up; I was being told-1 might be held responsible. * * * I think I met Mr. Daily about January, 1910. * * * I told him not to give any more credit to the Market. * * * The meat market of which Mr. Watts was in charge did business up to the time that I attached it.” Touching the contract between himself and Watts he testified: “That paper was made out in that form as security; I transferred the entire property to Mr. Watts for $3,000. The understanding was that I sold Mr. Watts this property for $3,000, that he was to have absolute control of it; that he was to allow me to remain as a quarter owner that I might, as security, have some control of the shop, while I verbally was never to receive anything from it except the original cost. When he paid that $3,000 it was to be his, any day he wanted to pay the $3,000.” The plaintiff testified: “Q. Tell what Mr. Mills said in relation to the corporation, A. He said that he was willing to give me all he could get out of the Missoula Palace Market, but he didn’t want to go down-in his pocket and give any more.”
In his affidavit to obtain the attachment in his action against the corporation, it was stated by Mills that “the said John D. Watts on or about the 12th day of December, 1907, became the manager of the business of the defendant corporation, Missoula Palace Market, and continued in that capacity until about the 6th day of March, 1910,” when his “authority as said manager was severed and terminated.” This was brought about by a letter to Watts from Mills, Watts being “requested to stay away from the Market and to receive no more mail * * * belonging to the Missoula Palace Market.” The attachment suit was subsequently dismissed, and Mills’ attorney took' possession of the assets of the concern. On January 8, 1910, Marshall, with the consent of Mills, published a notice in the “Daily Missoulian,” calling a meeting of the “stockholders of the Missoula Palace Market.” The notice stated that the meeting was to be the annual meeting for the election of directors for the ensuing year. It was signed by Mills as president and director. It does not appear whether a meeting was held pursuant to this notice. The business had been conducted in a leased building, the lease running to the corporation by name. This lease was renewed in March, 1910. At one time Watts had some stationery printed for the corporation. By mistake the printer designated Watts as the proprietor instead of manager. This was made use of during the course of the business. No annual report for the year 1910, as required by section 3850, supra, as amended by the Act approved March 11, 1909 (Laws 1909, p. 217), was filed by the president or directors of the corporation, or by any director thereof. From November, 1909, and up to March 9, 1910, there became due from the Missoula Palace Market for goods, wares and merchandise sold and delivered to it by respondent, 'the sum of $5,347.13. Demand was made by respondent upon Mills for payment. Upon his refusal to pay this action was brought, resulting in a verdict and judgment for respondent. These appeals are from the judgment and an order denying appellant’s motion for a new trial. There was substantially no conflict in the evidence, the appellant himself being the principal witness examined by respondent.
1. The first contention made is that the complaint does not state a cause of action, in that it does not allege that the Missoula Palace Market is a corporation having a capital stock. The allegation on this subject is “that at all times herein mentioned the Missoula Palace Market was, has continued to be and is a corporation, organized and operated for profit,” etc. Amended section 3850, supra, declares: “Every corporation, having a capital stock, except banks, trust companies and build ing and loan associations, shall annually, within twenty days from and after the thirty-first day of December, file in the office of the clerk of the county in which the principal place of business of such corporation is situated, a report which shall state,” etc. The argument of counsel for appellant is that, since this section is penal in character, it is incumbent upon one ivho seeks to hold directors of a corporation liable upon failure to comply with it, to allege and prove affirmatively every fact and circumstance upon which his right to recover depends, nothing being presumed in his favor. The rule invoked is undoubtedly sound. It was recognized by this court in Gans v. Switzer, 9 Mont. 408, 24 Pac. 18, and Wethey v. Kemper, 17 Mont. 491, 43 Pac. 716. While the liability imposed by the statute is often called penal, it is not so in the sense in which that term is commonly used. It is so only in the sense that the liability was not known at the common law but is entirely of statutory origin. For this reason the legislative declaration of the rule may not be construed to include cases which do not fall clearly within its terms. (2 Morawetz on Corporations, 2d ed., sec. 908.) In every case, therefore, the pleading should allege facts and circumstances showing that the liability has attached.
Under section 3833 the corporate powers, business and property of all corporations must be controlled by not less than three nor more than thirteen directors to be elected from among the holders of stock, or, when there is no capital stock, from among the members of such corporation. Among other things, it provides: “Directors of corporations for profit must be holders of stock therein in an amount to be fixed by the bylaws of the corporation, except those named in the articles of incorporation for the first three months, who shall be directors until their successors are elected and qualified. Directors of all other corporations must be members thereof.” This section, and also section 3822, recognizes that there may be corporations without a capital stock; yet, since under section 3833 a corporation for profit must have a capital stock and stockholders, the allegation that the Missoula Palace Market was organized and operated for profit, clearly and necessarily implies that it is of the class which must, in order to have any legal existence at all, have a capital stock. This renders the complaint sufficient within the rule stated in County of Silver Bow v. Davies, 40 Mont. 418, 107 Pac. 81, viz., that whatever is necessarily implied or reasonably to be inferred from an allegation in a pleading is to be taken as directly averred. (See, also, Harmon v. Fox, 31 Mont. 324, 78 Pac. 517.)
The sufficiency of the pleading was questioned in the trial court by general demurrer, by motion for judgment on the pleadings, by objection to the introduction of evidence, and by motion for nonsuit. If open, to attack at all, it was by special demurrer for indefiniteness and not by general demurrer or any of the other methods resorted to, each of which raises, so far as the sufficiency of the complaint is assailed, only such questions, as arise upon general demurrer.
2. The next contention is that after the certificate had been issued by the secretary of state, no steps whatever were taken by the incorporators to organize the corporation by the adoption of by-laws, the election of directors, the organization of the board, the election of officers, or the observance of other similar requirements prescribed by sections 3829, 3830, 3832, 3833, 3834, 3836 and 3848 of the Revised Codes. Hence, it is argued that, though the articles were properly executed and filed and the certificate issued by the secretary of state, the failure to observe these requirements resulted automatically in the death of the corporation by the forfeiture of its franchise at the end of one year, with the result that thereafter it could not transact business as a corporation. Counsel rely upon section 3892, Revised Codes, which provides: “If a corporation does not organize and commence the transaction of its business or the construction of its works within one year from the date of its incorporation, its corporate powers cease. The due incorporation of any company, claiming in good faith to be a corporation under this Part, and doing business as such, or its right to exercise corporate powers, shall not be inquired into, collaterally, in any private suit to which such de facto corporation may be a party; but such inquiry may be had at the suit of the state on in formation of the attorney general.” In order to ascertain the scope and meaning of the first provision of this section it is necessary to notice what steps must be taken to bring a corporation into existence and how a dissolution of it or a forfeiture of its franchise may be wrought. Section 3807 provides: “Private corporations may be formed by the voluntary association of any three or more persons .in the manner prescribed in this Article.” Under section 3825 a corporation may be formed for any of the purposes enumerated in section 3808, (1) by the preparation and filing of the articles with the clerk of the county in which the principal business of the company is to be transacted, and (2) by filing with the secretary of state a copy thereof certified by the clerk. The secretary must then issue to the corporation his certificate that a copy of the articles, containing a statement of the facts required by section 3825, has been filed in his office. “Thereupon the persons signing the articles and their associates and successors shall be a body politic and corporate by the name stated in the certificate,” etc. Section 3905 declares: “A corporation is dissolved: (1) By the expiration of the time limited by its charter; or, (2), by a judgment of dissolution, in the manner provided by the Code of Civil Procedure * # # ; (3) By an Act of the legislative assembly.” By section 3898 a sale by the corporation of all of its property ipso facto operates as a dissolution. By reference to section 6944 it will be seen that an action lies in the name of the state to dissolve a corporation in the several instances therein enumerated, among which are: “2. "When it has forfeited its privileges and franchises by nonuser”; and “3. When it has committed or omitted an act which amounts to a surrender of its corporate rights, privileges and franchises. ’ ’
Considering all of these provisions together, we think the intention of them is obvious, viz.: that when the steps required by section 3825 shall have been observed, the corporation comes into existence; that failure to observe the requirements as to the adoption of by-laws, the subsequent election of directors, the election of officers, and the like (sec. 3829 et seq., supra), renders the franchises and privileges subject to forfeit nre, but does not ipso facto work a dissolution nor permit question to be made as to the corporate capacity in a collateral way by any private citizen in a controversy between him and the corporation. In other words, after the corporation has come into existence as provided by section 3825, it continues to exist for the period fixed by the statute (Gans v. Switzer, supra), or until by affirmative action the state has had a forfeiture judicially declared. This is clearly the import of the last provision, of-section 3892, for it says so in terms the meaning of which cannot be mistaken; and this is in full accord with the theory of the inhibition in section 3810, which provides: "One who assumes an obligation to an ostensible corporation, as such, cannot resist the obligation on the ground that there was in fact no such corporation until the fact has been adjudged in a direct proceeding for the purpose.” This must be deemed to be the legislative intention in enacting these several provisions, or else the question whether there is or is not a corporation is left open to investigation in every case in which an ostensible corporation seeks to avoid liability as such, or whenever, as here, it is sought by one or more directors to avoid liability for their omission to observe the requirements of the statute. Therefore, construing the first provision of section 3892, together with the last, in the light of the other provisions referred to, it can be assigned no other effect than to fix a rule by which judicial decision shall be controlled whenever' the question of corporate capacity is properly presented by the state itself.
The legislature may make such requirements as it deems proper as conditions precedent to the exercise of corporate power. For illustration: It may require the payment of a license tax as a condition precedent to the doing of any -business by the corporation. A failure to comply with such ‘a requirement ipso facto works a forfeiture, and the corporation ceases to exist. In such a ease a judgment of a court is not necessary to render the forfeiture effective, because the statutory declaration, is self-executing. (Kaiser Land & Fruit Co. v. Curry, 155 Cal. 638, 103 Pac. 341.) So, also, it may declare that a failure to comply with a requirement imposed as a condition subsequent shall ipso facto work a forfeiture; such statutes are also self-executing. (Los Angeles Ry. Co. v. City of Los Angeles, 152 Cal. 242, 125 Am. St. Rep. 54, 15 L. R. A. (n. s.) 1269, 92 Pac. 490.) Ordinarily, however, requirements to be observed subsequent to the creation of a corporation, even though forfeiture for failure to comply with them is declared to be the penalty, are not self-executing. The only acts by which the incorporators notify the public of the creation of a corporation are the records required by section 3825, supra. When these have been completed, the corporation becomes, as to those who deal with it, a living, active, responsible entity. The requirements to be observed for the perfection of the organization, the election of officers, and the like, pertain exclusively to its private affairs of which the public can have no information; and in the absence of statutory provisions to the contrary, or of inquisition at the instance of the state, are to be deemed directory only. (10 Cyc. 223; 1 Machen on the Law of Corporations, sec. 163.) Therefore, while the courts differ as to whether particular enactments such as the one found in section 3892, supra, should be held self-executing or only directory, they quite generally agree that different results flow from the failure of the directors or officers of the corporation to do those acts which are required as conditions precedent, and those which are required as conditions subsequent. The failure to observe the first results ipso facto in forfeiture; omission with reference to the- second merely exposes the corporation to the peril of dissolution upon inquisition by the state. Until the forfeiture has been judicially declared at the instance of tb* state, the corporate existence continues. (Murphy v. Wheatley, 102 Md. 501, 63 Atl. 62; Brown v. Wyandotte & S. E. Ry., 68 Ark. 134, 56 S. W. 862; Briggs v. Cape Cod Ship Canal Co., 137 Mass. 71; Cluthe v. Evansville etc. Co. (Ind.), 95 N. E. 543; Cheraw & Chester R. R. Co. v. White, 14 S. C. 51; Toledo & Ann Arbor R. Co. v. Johnson, 49 Mich. 148, 13 N. W. 492; In re Kings County Elevated R. R. Co., 105 N. Y. 97, 13 N. E. 18; Arkansas & O. R. Co. v. St. Louis & S. F. R. Co., 103 Fed. 747.) The principle applicable is the same as when a grant of land is made subject to forfeiture of title upon failure to perform conditions subsequent. The forfeiture can be enforced only at the instance of the grantor himself by judicial action, or, if the grantor is the state, by legislative action also. (Van Wyck v. Knevals, 106 U. S. 360, 27 L. Ed. 201, 1 Sup. Ct. Rep. 336; Bybee v. Oregon & C. R. Co., 139 U. S. 663, 35 L. Ed. 305, 11 Sup. Ct. Rep. 641.)
Accordingly, therefore, when the corporation has regularly been brought into existence, it is not deprived of the right to exercise corporate functions by the failure of the directors, designated by the statute to perfect the organization, to issue stock (Fayetteville etc. Ry. Co. v. Aberdeen R. Co., 142 N. C. 423, 9 Ann. Cas. 683, 55 S. E. 345); or to obtain subscriptions for its stock (National Bank of Texas v. Investment Co., 74 Tex. 421, 12 S. W. 101; Johnson v. Kessler, 76 Iowa, 411, 41 N. W. 57; Thornton v. Balcom, 85 Iowa, 198, 52 N. W. 190; Chicago K. & W. R. Co. v. Commissioners of Stafford Co., 36 Kan. 121, 12 Pac. 593) ; or to elect directors (Drake v. Herndon, 122 Ky. 206, 91 S. W. 674; Middleton v. Arastraville Min. Co., 146 Cal. 219, 79 Pac. 889; Morrison v. Clark, 24 Mont. 515, 63 Pac. 98), even though the taking of these various steps is necessary to the proper use of the franchise. It would be a gross injustice to those who propose to deal with an ostensible corporation to make it incumbent upon them first to ascertain whether in the conduct of its private affairs its directors have proceeded in strict conformity with all the statutory requirements as to the organization of the board of directors, the election of officers, etc., at the peril of being cast in actions subsequently brought by them to enforce their rights against it, upon a plea by it that it has no capacity to be sued. In our opinion it was the purpose of the legislature in enacting section 3892, supra, to prohibit inquiry in any private civil action into the question whether the ostensible corporation has a legal existence, further than to ascertain whether the requirements prescribed by section 3825, supra, have been observed. If this action had been brought by the Missoula Palace Market as a corporation, to collect an indebtedness due it from the respondent, the latter could not, under section 3810, supra, have made defense on the ground that there is no such corporation. On the other hand, since the corporation has been engaged in business apparently in good faith, it could not, by the same rule, avoid liability on the ground that its directors had not in the conduct of its private affairs observed the forms of law in perfecting the organization, and therefore that it had ceased to exist as a corporation. It could not be heard to say that it is not such in fact on the ground that the persons who have assumed to act as its directors have omitted to do anything looking to the perfection of its organization or to the conduct of its business according to the forms of law.
Counsel have devoted some space in their briefs to a discussion of the question whether the Missoula Palace Market should be regarded as a corporation de jure or de facto. We shall not undertake to determine which it is. The rule denying the right to collateral attack applies to the one as well as to the other. The following cases are sufficient for illustration: Merges v. Altenbrand, 45 Mont. 355, 123 Pac. 21; Miller v. Newburg Orrel Coal Co., 31 W. Va. 836, 13 Am. St. Rep. 903, 8 S. E. 600; Dean v. Davis, 51 Cal. 406; Gunderson v. Illinois T. & S. Bank, 199 Ill. 422, 65 N. E. 326; Johnson v. Corser, 34 Minn. 355, 25 N. W. 799; Emery v. De Peyster, 77 App. Div. 65, 78 N. Y. Supp. 1056; City of Ashland v. Wheeler, 88 Wis. 607, 60 N. W. 818; 2 Thompson on Corporations, sec. 1124.
Upon the undisputed facts, so far as concerns the public, the business of the corporation has been conducted in the name of the Missoula Palace Market, as a corporation. Liabilities have been incurred under this name and discharged in the same way. To an outward observer or anyone dealing with it, it has exhibited all the characteristics of a legal person living the life and pursuing the calling for which it was created', according to the course prescribed by law. The appellant has made it serve his purpose. He must therefore be held to bear the penalty which attention to duty on his part as a director would have enabled him to avoid, and this, too, whether he was properly chosen by the board as such director -or not. In the section cited from Mr. Thompson, supra, it is said: “It follows naturally and logically from what has been said heretofore, that persons acting as directors or other corporate officers without right, or where they assume to act rightfully by color of office, are subject to all the personal liability which attaches to the rightful incumbents of such offices, whether by the common, the equitable, or the statute law. De facto directors' and officers cannot plead that they are not such de jure in order to escape liability to the corporation or to its creditors for their acts as such, whether such infirmity in their title arises from the fact that they were irregularly elected, or were not legally chosen, or were ineligible at the time they were elected. This principle is illustrated in eases holding directors personally liable for the debts of the corporation where they fail to file an annual report as required by statute; in such cases it is sufficient to show that the directors or trustees were such de facto at the time the debt was contracted.”
3. It is next contended that amended section 3850 is repugnant to section 11 of Article XV of the Constitution of Montana, in that it imposes liabilities and burdens upon domestic corporations from which foreign corporations are exempt. This section provides: “ * * * No company or corporation formed under the laws of any other country, state or territory, shall have, or be allowed to exercise, or enjoy within this state any greater rights or privileges than those possessed or enjoyed by corporations of the same or similar character created under the laws of the state.” The plain purpose of this provision is to restrain the legislature from granting to foreign corporations rights and privileges which cannot be enjoyed by domestic corporations of like character under similar circumstances. (Criswell v. Montana Central Ry. Co., 18 Mont. 167, 33 L. R. A. 554, 44 Pac. 525; State v. Thomas Cruse Savings Bank, 21 Mont. 50, 45 L. R. A. 760, 52 Pac. 733.) Within this limitation the legislature is free to impose such burdens upon domestic corporations as it sees fit. In the nature of things, exactly the same system of laws cannot be devised for both domestic and foreign corporations. Necessarily, laws intended to apply to foreign corporations must be framed upon the theory that they are created under conditions and limitations over which the state legislature has no control. So long as it does not in framing laws discriminate against domestic corporations, its Acts will not be construed as discriminating within the inhibition of the Constitution. It is clear, however, that section 3850 does not discriminate against domestic corporations. Though in terms it imposes the duty of filing the annual report upon the corporation, it in fact imposes it upon the officers and directors and exacts the penalty for nonobservance from them individually, and not from the corporation. In effect, therefore, it is nothing more nor less than a requirement that the officers and directors shall give to the public, from time to time, a statement of the financial affairs of the corporation, at the peril, in ease of disobedience, of being held personally for the liabilities which they have permitted the corporation to incur under their management. This is a complete answer to counsel’s contention. (First Nat. Bank v. Weidenbeck, 97 Fed. 896, 38 C. C. A. 131.)
4. It is said that the statute is violative of section 20 of Article III of the state Constitution, which declares: “Excessive bail shall not be required or excessive fines imposed, or cruel and unusual punishments inflicted.” The argument is that since there is no limit to the liability which may be incurred by a failure of the officers and directors to comply with the statute, and since this court has declared the liability penal in its nature (Gans v. Switzer, supra; Wethey v. Kemper, supra; Teitig v. Boesman Bros. & Co., 12 Mont. 404, 31 Pac. 371; Elkhorn T. Co. v. Mining Co., 16 Mont. 322, 40 Pac. 606; State Savings Bank v. Johnson, 18 Mont. 440, 56 Am. St. Rep. 591, 33 L. R. A. 552, 45 Pac. 662), the result is the imposition of excessive fines and the infliction of unusual punishments within the meaning of the constitutional inhibition. As already pointed out, the statute is not penal in the sense in which that term is generally used. It is so only in the sense that it creates a liability which was not known at the common law and there fore must be construed strictly. The very purpose of the legal device known as a corporation is to enable natural persons to engage in business enterprises through the agency of others Without incurring personal liability. The extent of immunity is fixed by the law providing for the creation of the artificial body or person, and such a provision as the one in question, being a part of the law of creation, declares the immunity of those who manage the business, viz.: the officers and directors, dependent upon their observance of the conditions imposed by it. They may render their immunity effective by doing this; otherwise they are conclusively presumed to have assented to stand good as sureties for all the liabilities which they have permitted the corporation to assume. In considering the statute in force in 1894 (Comp. Stats. 1887, Fifth Div., sec. 460), the court in Fitzgerald v. Weidenbeck, 76 Fed. 695, said: “But, while the statutory liability of trustees has some of the characteristics of a penalty, and attaches upon such kind of default or omission of duty on the part of the trustees as is frequently in like statutes punished by the infliction of a penalty, yet, under this statute, such liability of the trustees is not a penalty, but the withdrawal, as to them, as a consequence of their failure to perform certain duties, of the exemption from personal liability which the statute allowing the incorporation of the company would otherwise afford them, and an allowance to the creditors of the corporation at the time of such default or during such omission of duty, of the further remedy of having the right to proceed in the collection of their debts, directly against the trustees from whom such exemption is withdrawn. ’ ’
A fine, in the sense in which the term is used in the Constitution, is a penalty exacted by the state for some criminal offense. The provision of the Constitution has no application to the liability involved here.
5. It is argued that the court erred in admitting in evidence copies of the annual reports filed by appellant for the years 1908 and 1909, the affidavit on attachment in the action brought by him against the corporation in March, 1910, and the written agreement made by Mm and Watts on December 2, 1907. It is argued that the only purpose for which they were introduced was to show that the Missoula Palace Market was a corporation and doing business as such; whereas its existence had been terminated by operation of law. That it was, in contemplation of law, up to March 10, 1910, a corporation we have already shown. The documents in question tended directly to show not only that it was engaged in business as such, but also that appellant and Ms associates were assuming to act, and were acting, as its directors. It is true that the appellant assumed to control the business as his own, his associates taking no active part in it. At the same time, they were acting ostensibly as directors of the corporation, their purpose evidently being to assist appellant by permitting him to use their names and thus the corporate franchise. The evidence was competent to show this.
6. The court submitted to the jury an instruction in which it directed them to find for the plaintiff if they believed that the respondent sold and delivered the goods, wares and merchandise, the value of which is in controversy in this case, to the Missoula Palace Market, for the reasonable value thereof, with interest from the time demand for payment had been made upon the appellant. It is argued that the court erred in withdrawing from the jury the question whether the Missoula Palace Market was a corporation. As we view the evidence in the record, however, it presents no disputed question of fact requiring a finding by the jury. Whether the corporation was in existence de ;jure or de facto was a question for the court to determine. The court should have directed a verdict for the plaintiff. There was evidence which lent some support to the inference that, as between the appellant and Watts, the latter was to be the owner of the business upon the payment of the $3,000 note executed by him to the appellant under the contract of December 12, 1907. This, however,. was a mere private, secret agreement between them. As to those dealings with Watts there had been no out ward change, and we think the court properly treated the evidence in this behalf as immaterial.
The judgment and order are affirmed.
Affirmed.
Mr. Justice Sanner concurs.
Mr. Justice Holloway 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 court.
In this action the verdict of the jury and judgment thereon were for the defendants. Thereafter the plaintiff filed his notice of intention to move for new trial, and later his motion was heard and granted. This appeal is from the order of the district court granting said motion.
The notice of intention to move for a new trial specifies seven grounds, to-wit, irregularities in the proceedings by which plaintiff was prevented from having a fair and impartial trial, misconduct of the jury, accident and surprise, newly discovered evidence, insufficiency of the evidence to justify the verdict, that the verdict is against the law, and errors of law. The notice recites: ‘ ‘ This motion for a new trial will be based upon a bill of exceptions to be hereinafter prepared and served upon you, and upon the pleadings, papers, minutes, files, and records of said cause, and upon affidavits to be hereinafter served.” The transcript on appeal, as filed in this court, does not pretend to be a complete record of the proceedings below, and it does not contain anything to put the trial court in error in granting the motion for new trial, if the motion was, or could have been, presented “upon the minutes of the court.”
As we understand the appellants’ contention, it is that the motion for new trial could not have been presented upon the minutes of the court for two reasons: (1) The notice of intention does not state that the motion will be made upon the minutes of the .court; that the word “minutes” in the notice does not mean “minutes of said cause,” and that “minutes of said cause” is not “minutes of the court”; and (2) that as to the ground, errors of law, the plaintiff having elected to cover this in a bill of exceptions, “he could not under any circumstances move for a new trial upon the minutes of the court.” This is entirely too technical. The word “minutes” is used in the notice in obvious connection with the phrase “of said cause,” and means “minutes of said cause.” The term “minutes of the court,” as used in the statute, means, of course, the minutes of the court in the particular cause, and contemplates that, “upon a motion for a new trial made upon the minutes of the court, the trial court may take into consideration all the pleadings, records, minute entries and the evidence offered at the trial, and, from the entire case thus presented, determine the motion” (State ex rel. Colin v. District Court, 38 Mont. 119, 125, 99 Pac. 139); the phrase, “pleadings, papers, minutes, files and records of said cause,” as used in the notice, can mean nothing else than the minutes of the court, as above defined. So that, although the notice of intention before us illustrates an unhappy tendency to depart from the statutory language, which, in matters of this kind, is much to be preferred, yet it gave the same information that the statute intends should be given, and it was, as to all purposes now considered, substantially equivalent.
The second criticism is founded upon the following language of the statute: “For any other cause it may be made, at the option of the moving party, either upon the minutes of the court or upon a bill of exceptions.” (Sec. 6795, Rev. Codes.) This is supposed by appellants to mean, not only that if a party move for a new trial for errors of law he must do so upon either the minutes of the court or a bill of exceptions, and not upon both, but also that if he have two grounds, such as errors of law and insufficiency of the evidence, he may not choose one method for the first and the other for the second. That construction is erroneous, as this court has indicated on several occasions. (Gamer v. Glenn, 8 Mont. 371, 20 Pac. 654; Sonden v. Northern Pac. Ry. Co., 39 Mont. 209, 102 Pac. 145; Cummings v. Reins Copper Co., 40 Mont. 599, 107 Pac. 904.)
The record here discloses that on his motion for new trial the plaintiff presented affidavits in support of his claims of misconduct of the jury and newly discovered evidence, and that as to irregularities and certain errors of law he presented a bill of exceptions; but as to the ground of insufficiency of the evidence, and that the verdict is against the law — grounds of motion reviewable upon the minutes of the court — we are not advised what the course of proceeding was. The situation is thus precisely similar to that in Sanden v. Northern Pacific Ry. Co., supra, in which this court said: ‘ ‘ The district court has general jurisdiction to grant new trials, and the action of that court is presumed to be regular. * * * Under the law relating to motions for new trials in force at the date of the proceedings, such motion could be made and granted on the minutes of the court. * * * As the notice of intention to move for a new trial recited that the motion would be made on the minutes of the court, and there is nothing to indicate that the order was not based upon the minutes, we cannot say that the court acted entirely upon the bill of exceptions. It may be that the bill was not considered by the district court, but that the order was based entirely on what was disclosed by the minutes. * * * The burden is on the appellant to show that the district court was not warranted in granting the motion for a new trial, either on the bill of exceptions or the minutes of the court. * * * ”
No useful purpose would be served by determining whether any of the particular matters set forth in the transcript was sufficient to justify the action of the trial court; for, the appellant having failed to show that it was unwarranted, the order granting plaintiff’s motion for new trial must be affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
|
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47,
-11,
29
] |
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