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PER CURIAM.
Appellant’s motion to dismiss the appeal herein is hereby granted and the appeal is accordingly dismissed.
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
Certiorari to review the action of the board of county commissioners of Teton county. This proceeding was instituted by Henry Jacobson, a taxpayer and qualified elector within that portion of Teton county which was sought to be organized into., a new county to be known as Toole county. On May 22, 1912, certain residents of the western portion of Hill county and the northern portion of Teton county presented to the county commissioners of Teton county petitions, in due form and subscribed by the requisite number of qualified electors, praying for the creation of a new county to be called Toole county, to comprise twenty-nine townships in the western portion of Hill county and substantially all of the northern half of Teton county, excepting about seven townships — the lines being drawn so as to exclude the town of Cut Bank from the proposed county. The petition recites that the assessed valuation of the property within the proposed new county is $4,122,357. Notice was. thereupon given for a hearing for June 21. Adjournments were taken from day to day to July 5, on which last-named date a final hearing was had; twelve requests for withdrawals; were denied, the prayer of the petitions granted, the proper resolution adopted, and the board determined the boundaries of the proposed new county as described in the petitions; that the petitions contained the requisite number of genuine signatures; that no lines of the proposed new county would pass within eighteen miles of the county seat, of Hill county or the county seat of Teton county; that within the boundaries of the proposed new county was property of the assessed valuation of more than four million dollars as shown by the last as sessment; that the formation of the proposed new county would not reduce the assessed valuation of either Hill county or Teton county to less than five million dollars or the area of either to an amount less than 800 square miles of surveyed lands; that the proposed new county should be a county of the seventh class and its name should be Toole. The board thereupon adjourned to July 15, on which date the proposed new county was divided into suitable road districts, school districts and election precincts; the proper election officers were appointed; an election called for October 15, 1912, and due proclamation thereof made and published. In this proclamation the territory in which the election was to be held was described the same as in the original petitions and in the resolution adopted on July '5. The board thereupon adjourned sine die. On March 26, 1913, the board being in session, an attorney representing certain petitioners moved the board “to take up the petition for the creation of Toole county and to proceed to finally determine the same.” At the same time there was presented, considered and allowed “a pretended petition for the withdrawal of territory from the proposed Toole county.” On that day the board adopted a resolution granting the prayer of the petitions filed May 22, 1912, for the creation of the proposed new county to be known as Toole county ; defined its boundaries; determined that the petitions contained the necessary number of genuine signatures; that no lines of the proposed new county would pass within eighteen miles of the county seat of Hill county or the county seat of Teton county; that the territory sought to be included within the new county contained property, according to the last assessment, of at least three million dollars; that the formation of the new county would not reduce the assessed valuation of property in either Teton county or Hill county to a sum less than five million dollars or the area of either of those counties to an amount less than 800 square miles of surveyed land; that the proposed new county would be a county of the seventh class and be known as Toole county. The board further divided the proposed new county into road districts, school districts and election precincts; appointed election officers and entered an order “that the election for the purpose of creating said county and organizing the same as required by law be postponed until the 35th day of June, 1913.” On March 27, a proclamation was issued calling an election for June 25, 1913, within the territory described in the resolution of the day-previous, and publication thereof was ordered. On May 21 this proceeding was instituted. The petition sets forth the foregoing facts somewhat more in detail, and then alleges that an election was not held on October 15, 1912, as ordered; “that said pretended petition for withdrawal of territory from said proposed Toole county was not signed by any petitioners and in no respect conformed to or complied with the provisions of law relating to petitions for the withdrawal of territory from a proposed new county and no other withdrawal petitions, except those hereinbefore referred to and which were denied on or previous to July 5th, 1912, were presented to or considered by said board.” It is further alleged that the resolution adopted on March 26, defining the boundaries of the proposed new county, included within the boundaries of such proposed new county territory for which no petition had ever been presented; that after the board had granted the withdrawal petition and had excluded from the proposed new county the territory described in such withdrawal petition, the assessed valuation of property within the proposed new county was then less than four million dollars and only slightly in excess of three million dollars. It is further alleged that all preparations are being made for holding the election on the 25th of June, and that, if such election be held, large expenditures will be incurred and the taxes of this relator increased thereby. A motion to quash the writ was interposed and the cause argued and submitted for final determination, it being agreed that the petition contains all the facts necessary to a complete determination of the questions sought to be raised.
1. Is the remedy by certiorari available? Section 7203, Revised Codes, provides that the writ may be issued by the supreme court “when an inferior tribunal, board or officer. exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer, and there is no appeal, nor, in the judgment of the court, any plain, speedy and adequate remedy.” It is urged upon us that the phrase “exercising judicial functions” gives character to the preceding words “tribunal, board or officer,” and limits the exercise of this writ to a review of the acts of those tribunals which are clothed with judicial power by section 1, Article VIII of the Constitution, and the officers of such tribunals, or, in other words, that the writ runs only to courts or judges; but with this we do not agree. The common-law writ of certiorari issued to review the decisions of quasi-judicial bodies as well as those of courts. (1 Bailey on Habeas Corpus, Certiorari, etc., sec. 171; 2 Spelling on Extraordinary Relief, sec. 1949; 6 Cyc. 751.) It has been the common practice to employ the writ to annul proceedings of such bodies as city councils, boards of county commissioners and the like, whenever such bodies exercised judicial functions and exceeded, or acted without, jurisdiction. So that, when our legislature employed the phrase “exercising judicial functions” above, it was intended to characterize the antecedent terms “tribunal, board or officer” and give to them a meaning which comprehends quasi-judicial bodies as well as courts and judicial officers strictly so called, just as they did comprehend such quasi-judicial bodies in the practice at the time the statute was first adopted. The question was determined by this court in harmony with these views, in State ex rel. Buck v. Board of County Commrs., 21 Mont. 469, 54 Pac. 939, and we see no reason for changing our opinion.
Nothing that is said in State ex rel. Arthurs v. Board of County Commrs., 44 Mont. 51, 118 Pac. 804, can be construed as conflicting with these views. In that case we assumed that the board of county commissioners was acting as a quasi-judicial body, but held that even so its refusal to take jurisdiction of a matter properly before it, or, after having acquired jurisdiction, its refusal to proceed, or its erroneous determination of a preliminary question of law upon which it refused to examine the merits of the matter before it, would be corrected by mandamus, and further than that we did not go.
2. In proceedings for the organization of a new county, the board of county commissioners is required to act as a quasi-judicial tribunal, within the meaning of that phrase as used in section 7203 above. Chapter 112, Laws of 1911, familiarly known as "the Leighton Act, constitutes the board of county commissioners the tribunal which shall have control of the proceedings for the creation of a new county. Upon the filing of a petition the board “shall forthwith fix a date to hear the proof of the said petitions and of any opponents thereto.” At the time so fixed, the board shall hear the petitioners and any opponents, and to that end “shall receive the proofs offered to establish or controvert the facts set forth in said petition or petitions,” and from such hearing the board shall determine (1) the boundaries of the proposed new county; (2) whether the petition contains the genuine signatures of at least one-half of the qualified electors, etc.; (3) whether any line of the proposed new county passes within eighteen miles of the county seat of any county proposed to be divided; (4) whether the proposed county contains taxable property of the value of at least four million dollars; (5) whether the creation of the new county will reduce the assessed valuation of any existing county to an amount less than the minimum allowed by law; (6) whether the area of any existing county will be reduced to less than 800 square miles of surveyed land; and (7) the class to which the proposed county will belong and its name as stated in the petition. The facts required to be set forth in the petition are prescribed, and an affidavit is required that the signatures to the petition are genuine. It is very clear that every fact necessary to be set' forth in the petition and affidavit is subject to be controverted by the opponents of the new county; and, if this be done in any given instance, the board must then receive evidence and render its determination thereon. While it is true that most of the facts required to be proved can be proved if they exist, by records which cannot be disputed, even so the board is required to consider the evidence^ weigh the same and deduce its determination therefrom. But assume that the petition is attacked on the ground that certain signatures thereon necessary to make up the required number are not genuine — that they are forgeries or fictitious; certain it is then that in receiving conflicting evidence upon this question, weighing the same and determining therefrom the truth or falsity of the allegation that the signatures are genuine, the board is exercising some judgment and discretion sufficient to bring- its actions within the definition of quasi-judicial functions, as given by this court in Bair v. Struck, 29 Mont. 45, 63 L. R. A. 481, 74 Pac. 69.
3. A valid petition describing the territory to be included within the proposed new county is the very foundation of the proceedings for the creation of a new county under Chapter 112 of the Laws of 1911, or under the amendatory Act (Chapter 133, Laws of 1913). While under certain circumstances the board is authorized to exclude territory, there is not any authority in the board to' incorporate new territory for which there has not been any petition presented. This proceeding is purely statutory, and for every act of the board, justification must be found written in the statute in express terms or necessarily implied; and since there is not any authority conferred upon the board to incorporate new territory, the order of March 26, 1913, including within the boundaries of the proposed new county territory not included in the descriptions given in the petitions filed for the creation of such county, was in excess of jurisdiction and void.
4. While authority is conferred upon the board to exclude territory “upon petition of not less than fifty per cent of the qualified electors of any territory lying within said proposed new county and contiguous to the boundary line of the said proposed new county and of the old county from which such territory is proposed to be taken, and lying entirely within a single old county, and described in said petition, asking that said territory be not included within the proposed new county,” the authority is limited to the circumstances just enumerated. Beyond the terms of the statute the authority does not exist. In the present instance it is alleged in the petition that the board of county commissioners eliminated from the proposed new county a large amount of territory without any petition having been presented therefor, and this allegation is admitted. The withdrawal petition mentioned in the statute quoted above is indispensable to the existence of the right to exclude, and in the exclusion of territory without such petition as the law contemplates, the board in its order of March 26 exceeded its jurisdiction, and its act in that regard was void.
5. That the board of county commissioners did not have any jurisdiction to make the order granting the petition for the creation of Toole county on March 26, 1913, or to issue the proclamation of March 27, is apparent. At the time the petitions were filed (May 22, 1912), Chapter 112, Laws of 1911, was in full force and effect. At the time the order was made and the proclamation issued, that Chapter had been amended by an Act which was approved and which went into effect on March 21, 1913. (Laws 1913, p. 484.) Section 1 of the original Act contains four distinct prohibitions against the creation of a new county. Paraphrased, that portion of section 1 of Chapter 112 above, relating to this subject, would read as follows: “A new county shall not be created (1) if its creation reduces the assessed valuation of any other county to less than five million dollars; or (2) if its creation reduces the area of any existing county to less than 800 square miles of surveyed land; or (3) if any line of the proposed new county passes within eighteen miles of the county seat of any old county proposed to be divided; or (4) if the new county has not property of the assessed valuation of four million dollars.” As indicated above, the statute enjoins upon the board the duty to ascertain and determine that the proposed new county does not infringe upon any of these prohibitions, and if it does, the end of the proceeding for its creation is at hand. The board must find affirmatively ‘‘that the proposed new county contains property of an assessed valuation of at least four million dollars.” 'This is jurisdictional, and without this finding the board cannot proceed under Chapter 112 above. At the hearing had on March 26, 1913, the board ascertained and determined that the proposed new county of Toole contains property of the value of at least $3,000,000. That this finding is not sufficient to warrant the board in proceeding further, and that all subsequent proceedings were and are void, must be conceded if the action of the board is to be controlled by Chapter 112 above.
But the board apparently assumed that its action was to be governed by the amendatory statute which had been approved and went into effect five days before the meeting of March 26 was held. The amendatory Act follows the original Act in enumerating the prohibitions 1, 2 and 3, but amends the original Act by substituting “three millions” for “four millions” as the minimum assessed valuation of the proposed new county. The board’s determination is justified if the proceedings had been taken under the amendatory Act, but is not justified under the original Act. And this brings us to a consideration of the question: What was the effect upon the pending proceedings of the amendments to Chapter 112, there being no saving clause in the amendatory Act?
Section 119, Revised Codes, provides: “Where a section or a part of a statute is amended, it is not to be considered as having-been repealed and re-enacted in the amended form, but the portions which are not altered are to be considered as having been the law from the time when they were enacted, and the new provisions are to be considered as having been enacted at the time of the amendment.”' This merely states a general rule as it was recognized by the authorities at the time our Codes were adopted. (Black on Interpretations of the Laws, sec. 133; 36 Cyc. 1083; Ely v. Holton, 15 N. Y. 595; Moore v. Mausert, 49 N. Y. 332.) In City of Helena v. Rogan, 27 Mont. 135, 69 Pac. 709, this court said: “Where a provision is amended by an Act using the words ‘to read as follows,’ it must be the intention of the lawmakers to make the amendment a substitute for the old provision, and to have it take its place exclusively.” The same rule is stated in 1 Lewis’ Sutherland on Statutory Construction, second edition, section 237, as follows: “The amendment operates to repeal all of the section amended not embraced in the amended form. The portions of the amended sections which are merely copied without change are not to be considered as repealed and again enacted, but to have been the law all along; and the new parts or the changed portions are not to be taken to have been the law at any time prior to the passage of the amended Act.” The effect which an amendment has upon pending proceedings is tersely stated by the supreme court of Indiana, in Mayne v. Board of Commrs., 123 Ind. 132, 24 N. E. 80, as follows: “It may be conceded, when one or more sections of a statute are amended in the mode prescribed by the Constitution, that the amended sections cease to exist, and the sections as amended are, in effect, incorporated into the original Act; but when the new law is a substantial re-enactment of the old, merely changing modes of procedure, but not changing the tribunal or the basis of the right, and when it takes effect simultaneously with the’ repeal of the old Act, it will be presumed, even without an express saving clause that the legislature intended that proceedings instituted under the old law should be carried to completion under the new.” The converse of this proposition is. equally true: If the amendment changes the very basis of the right or affects the jurisdiction, it cannot be that the legislature intended the proceeding to be completed under the new Act. From March 21, 1913, there was not any statute authorizing the creation of a new county with a minimum assessed valuation of property of four million dollars. The provision fixing that minimum limit was repealed by the new Act, Prior to that date there was not any statute authorizing the creation of a new county with an assessed valuation less than four millions. The provision for a new county based upon an assessed valuation of three millions as the minimum dates from the 21st day of March, 1913. It will be observed from a consideration of the original Act and the amendatory statute that the value of the assessable property has at all times been the very basis for the creation of a new county. While the statute authorizes withdrawals of territory from the proposed county as its boundaries are prescribed in tbe petitions for its creation, yet the statute declares that whenever by such withdrawals the assessed valuation is reduced below the minimum, “then such new county shall not be created or organized.” Again, each of the statutes specifically enjoins upon the board the duty to ascertain and declare affirmatively that the proposed new county contains property of the value equal to or exceeding the minimum provided by law. The change wrought by the amendatory statute affects the very basis of the proceedings and the jurisdiction of the board, and therefore the new Act cannot control proceedings pending at the time it went into effect.
Every elector who signed a petition for the creation of Toole county did so with the knowledge and understanding that whatever withdrawals of territory might be had, the remaining property within the new county must have a valuation of at least four million dollars, or the proceedings for its creation would fail. It would be absurd to say that the men who signed a petition under those circumstances consented to the creation of a new county with property of an assessed valuation of only three million dollars. The rate of taxation in a county having only three millions might be very much greater than in a county with four millions; but whether it would be or not, the statute does not authorize the board to. substitute for the petition which the electors have presented, a- petition based upon an entirely different set of circumstances or to act without any petition at all. There never was a petition presented to the board for the creation of Toole county with an assessed valuation less than four millions, and therefore the order of March 26, calling an election for the creation of a new county with property of the assessed value of only three millions or thereabouts, and much less than four millions of dollars, was without jurisdiction' and void.
It is ordered that the proceedings of the board of county commissioners taken on March 26, 1913, including within the boundaries of the proposed Toole county certain territory not theretofore petitioned for, and in excluding from the boundaries of said proposed county territory for which, no proper withdrawal petitions had been presented, and in granting the petitions for the creation of said county, defining its boundaries, etc., as set forth in the resolution of that date, adopted by such board; and the resolution adopted on the saíne day postponing the election to June 25, 1913, and the proclamation for, and notice of, an election to determine whether or not the said county of Toole should be created, made and entered on the 27th day of March, 1913, be and the same are hereby annulled.
Mr. Chief Justice Brantly and Mr. Justice Sanner concur.
|
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
Certiorari to review the action of the board of county commissioners of Teton county. This proceeding was instituted by R. C. Basmussen, a taxpayer and qualified elector within that portion of Teton county which was sought to be organized into a new county to be known as Pondera county. On February 24, 1913, certain residents of the western portion of Chouteau county and the northern portion of Teton county presented to the county commissioners of Teton county petitions in due form, subscribed by the requisite number of electors, praying for the creation of Pondera county, to include nine townships in the western portion of Chouteau county and substantially all of the north half of Teton county. The petition recites that the property subject to taxation within the proposed new county has an assessed valuation of $5,722,130. Notice was given and a hearing set for March 25. There was an adjournment to March 26, when the cause was taken up by the board, and upon the suggestion of J. A. McDonough, an attorney representing interested petitioners, the board eliminated from the proposed county certain territory constituting something inore than a township, and upon the objection of attorney Schmidt, representing Chouteau county, the board eliminated six of the nine townships to be taken from Chouteau county. The board further entertained a withdrawal petition and granted the same, thereby eliminating substantially one-half of that portion of the territory originally sought to be taken from Teton county. The board then adopted a resolution defining the boundaries of the proposed new county as thus amended; finding the facts as required by law; divided the proposed new county into election precincts, road and school districts, appointed the necessary election officers and called an election for June 25, 1913. On March 27 a proclamation for the election was duly made and published, and this proclamation describes the boundary lines of the proposed new county as they were described in the resolution adopted on the 26th of March. On May 21 this proceeding was instituted. The petition sets forth the foregoing facts in detail, and alleges that there was not any petition for the withdrawal of the one and a half townships withdrawn at the suggestion of attorney McDonough; that there was not any petition for the withdrawal of the six townships from Chou teau county, and that the pretended petition for the withdrawal of territory which was considered by the board and granted on March 26 was fraudulent; that it was never signed by any of the persons whose names appeared attached to it; that originally a valid withdrawal petition had been lodged with the board of county commissioners; that it had been withdrawn from the possession of the county clerk, the printed form at the head of the petition detached, and a new and a different heading attached to the signatures, and that it was this spurious and fraudulent withdrawal petition, and none other, which was considered by the board and granted on March 26; that after the eliminations made by the board the property included within the boundary lines of the proposed county had an assesssed valuation of less than four million and only slightly in excess of three million dollars. It is alleged that all preparations for the election are being made and that, if an election is had, large expenditures will be incurred and the taxes of this petitioner greatly increased thereby. The board of county commissioners appeared by motion to quash, and the cause was argued and submitted, it being agreed that the petition filed in this court contains all the facts necessary to a decision of the questions sought to be raised.
Upon the authority of State ex rel. Jacobson v. Board of County Commissioners of Teton County, ante, p. 531, it is ordered that the proceedings of the board of county commissioners of Teton county, taken on the 26th and 27th days of March, 1913, eliminating territory from the boundaries of the proposed new county to be known as Pondera county, and adopting resolution granting the petition for the creation of said county, describing its boundaries, etc., and issuing a proclamation for, and giving notice of, an election to be held on June 25, 1913, to determine whether or not Pondera county should be created, be and the same are hereby annulled.
Mr. Chief Justice Brantly and Mr. Justice Sanner concur.
|
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MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
This action was brought to have determined the extent of the respective interests of the plaintiff and defendant in a water right acquired by their predecessors by appropriation for agricultural purposes from Race Track creek, formerly in Deer Lodge, now in Powell county. The original appropriation was small, and was made by John Duncan in 1871. It was enlarged to 400 inches by Duncan and L. Strickland in 1872; the diversion being completed on June 5 of that year. They each held a possessory right upon the public lands lying along the south side of the stream. They made the appropriation jointly, and constructed a ditch which they used in common to a point at which a change in the direction became necessary in order that iach might convey the amount of water needed to his own lands. From this point each constructed his own ditch. Title to the lands held by them, respectively, was subsequently acquired by them or their respective successors by patent directly from the federal government or by deed from the Northern Pacific Railroad Company. In 1881 one Magone succeeded Strickland in his right to a portion of the lands then held by him, and to his entire interest in the water right and ditch. Magone subsequently acquired other lands. On April 1, 1910, the plaintiff purchased substantially all of his holdings, including his interest in the water right described in the conveyance as an undivided one-half interest. In 1884 John and Henry Quinlan succeeded by purchase to the rights and interests of Duncan, including that held by him in the ditch and water right. The defendant, a son of Henry Quinlan, thereafter became, and when this action was brought and tried was, the owner of the Duncan interests by conveyance from his father and John Quinlan. In 1887 Magone and the two Quinlans, desiring to cultivate portions of their land lying upon the slope above the Strickland-Duncan ditch, jointly constructed a second ditch from a point on the creek about three and one-half miles above the head of the Striekland-Dunean ditch. They used this in common, just as they did the old ditch, down to a point at which it became necessary for each to construct a branch for his own use. The diversion through this ditch was not, nor was it intended to be, an additional appropriation. The water diverted through it was used under the old right. In 1890 an action was brought by one P. IT. Meagher, who owned lands lying on Race Track creek near the Magone and Quinlan lands', and also claimed prior right to the use of water from the creek, to have the relative priorities of all the rights appropriated from it settled and determined. This case is referred to in the pleadings and evidence under the title of Meagher v. Glover et al. All the claimants of rights from the creek were made parties defendant, including Magone and the Quinlans. The court found the dates and amounts of the respective appropriations, and on July 22, 1890, rendered a decree determining the rights and priorities of all of the parties accordingly. With reference to the Magone-Quinlan right the court found: “(1) That the said defendants in the year 1871 appropriated, of the waters of Race Track creek, described in plaintiff’s complaint, 400 inches thereof, measured as provided by the statutes,” etc. “(2) That said water was appropriated by means of a ditch of sufficient capacity to convey said amount of water.” The decree, after reciting that the cause was heard upon the complaint, the separate answers of the several defendants, and “the stipulation on file herein,” adjudged that “the plaintiff and each of the defendants are the owners and entitled to the use of the waters of Race Track creek, * * * said waters to be diverted from said creek * * * in the order and manner hereinafter named: * * * (8) John Quinlan, Henry Quinlan, and Ed Magone, four hundred inches. * * * That the water be measured according to the statutes of the state of Montana, for the measurement of water. ’ ’ It further ordered and adjudged “that the plaintiff and each of the defendants, in the order named, have the right to the use of the waters of Race Track creek for the purposes of irrigation, domestic use, and for watering stock. That the defendants and each of them are hereby enjoined and restrained forever from diverting or interfering with the waters of said creek, except that each of said defendants may in the order named make reasonable use thereof in the amount named and for the purposes mentioned, and until each defendant has used the water in the manner and amount mentioned [and] each other defendant is restrained from using or diverting the same.”
The complaint contains two counts. In the first the plaintiff bases his claim to an undivided one-half interest upon the decree. He alleges that defendant claims adversely to him, and under such claim is interfering with the use and enjoyment of his right. In the second count he alleges title and right to the use of an undivided one-half interest, and an adverse claim by defendant which is without right. The prayer is for a decree declaring that the plaintiff is the owner of an undivided one-half interest, and that defendant’s adverse claim be adjudged to be without foundation. In his answer to the first count defendant admits the existence and validity of the decree; but denies that plaintiff by the terms thereof is entitled to an undivided half interest in the amount awarded therein to the predecessors of the plaintiff and defendant, or any other or greater interest than one-third, or 133⅓ inches. He denies all of the allegations of the second count, except that he asserts an interest adverse to plaintiff to the extent of the difference between a one-half and a one-third interest, and pleads the decree as an adjudication that Magone and the two Quinlans were each the owner and entitled to a one-third interest, and alleges that defendant is es-topped thereby to claim any other or greater interest. There was issue by reply.
The substantive question presented to the district court for determination was whether the decree of July 22, 1890, was" to be taken as a conclusive adjudication of the extent of the rights of Magone and the two Quinlans inter sese, and hence those of plaintiff and defendant, their successors, or whether it should be construed by the aid of extrinsic evidence and their rights declared accordingly. The court held that, since the decree does not upon its face appear to have adjudicated the rights of these parties and such adjudication was not actually or necessarily included in it, their respective interests were to be ascertained from evidence of the facts as they actually existed when the right was initiated and when the decree was rendered. Accordingly, over objection of defendant, it heard the evidence, found in favor of plaintiff, and adjudged him to be the owner of an undivided one-half interest. The defendant has appealed from the decree and an order denying him a new trial.
The integrity of the decree is assailed on the grounds (1) that the complaint does not state facts sufficient to constitute a cause of action; and (2) that the former decree was an adjudication of the interests of the parties inter sese, and that the court erred in not accepting it as such. The first contention may bé dismissed with the remark that, whatever may be its merits when referred to the first count in the complaint, it must be overruled as to the second count. As appears from the foregoing statement, it is alleged therein that the plaintiff is the owner of the property described, that defendant claims an interest therein adverse to that of plaintiff, and that such claim is without right. This is sufficient to put the defendant upon his defense. (Montana Ore Pur. Co. v. Boston & Mont. C. etc. Co., 27 Mont. 288, 70 Pac. 1114; Merk v. Bowery Min. Co., 31 Mont. 298, 78 Pac. 519; Castro v. Barry, 79 Cal. 443, 21 Pac. 946; 17 Ency. Pl. & Pr. 326; 2 Pomeroy’s Equitable Remedies, sec. 7411)
The second contention is equally without merit. Section 7917, Revised Codes, provides: ‘ ‘ That only is deemed to have been adjudged in a former judgment which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto. ’ ’ Section 4852 is in part as follows: “In any action hereafter commenced for the protection of rights acquired to water under the laws of this state, 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 judgment settle the relative priorities and rights of all the parties to such action.” If this latter provision were to be taken as mandatory, the defendant might well insist that the decree in the case of Meagher v. Glover was to be accepted, not only as an adjudication of the amounts and priorities of the different appropriations mentioned therein, but also of the rights of joint owners in any appropriation inter sese. But, as pointed out in Sloan et al. v. Byers et al., 37 Mont. 503, 97 Pac. 855, the terms of this provision are permissive only. Therefore, though the rights of all the parties — whether arising out of joint or independent appropriations — may be adjudicated in a single decree under the rule declared by section 7917, supra, no presumption attaches that any such adjudication has in fact been had, unless the fact appears upon the face of the decree itself, or, in any event, from the judgment-roll. True, it was said in McNinch v. Crawford, 30 Mont. 297, 76 Pac. 698, that in an action brought under section 4852, supra, each party is an antagonist of every other party. This statement was made with reference to the condition of the issues presented in that ease and is to be so taken and understood, and not to mean that in such an action every possible right touching the subject matter in controversy is to be presumed to have been adjudicated by the final decree, whether it was put in issue or not, or whether it was necessarily involved in the issues tried. As was suggested in Sloan et al. v. Byers et al., supra, it is doubtful whether the legislature has power to compel parties to litigate their rights when neither questions that of the other nor has committed a wrong with reference to it, for which the other is demanding redress. Hence in Sloan et al. v. Byers et al., inasmuch as neither the decree nor the judgment-roll in a former controversy over the water in the same stream showed that the extent of the interests of joint owners inter sese in the particular right in question had in fact been adjudicated, it was held that the decree in the former action did not estop the parties thereto from having these rights adjudicated in a second action. In that case the entire record in the former action was before the court at the hearing. In the case at bar it was shown that the record in the ease of Meagher v. Glover, except the findings and decree, bad been lost or destroyed. It cannot be determined from an examination of these remnants of the record that Magone and the Quinlans interpleaded each other, or that there was any controversy between them as to the extent of their rights inter sese. Indeed, so far as they furnished a basis for any inference, it is that the court adjudicated to them a common right in the ditch and water both, without regard to the extent of their individual interests. The findings refer to the right as a single entity — the property of all of these defendants. The decree refers to it in the same way; whereas, if they had interpleaded each other and had submitted their rights to the court for adjudication, the decree would undoubtedly have said so in unmistakable terms. It is true that the introductory recitals in the decree state that the cause was heard upon the complaint, the separate answers of the defendants, and “the stipulation on file herein,” but when we note that in the enumeration of the several rights adjudicated — thirty-five in all — several of them were jointly awarded to two or more persons, we do not think that statement imports into the adjudging portion of the decree any greater certainty. The court, having found itself thus left without evidence in the record to enable it to ascertain the issues made and tried, properly refused to accept the decree as conclusive, and held that recourse must be had to parol evidence to ascertain what in fact had been adjudicated by it, and that, if the Magone and Quinlan rights had not been determined, it was incumbent upon it to determine them. (Kleinschmidt v. Binzel, 14 Mont. 31, 43 Am. St. Rep. 604, 35 Pac. 460.)
In Russell v. Place, 94 U. S. 608, 24 L. Ed. 214, in speaking of the admissibility of parol evidence to show what issues had been tried in a former controversy, the court said: “It is undoubtedly settled law that a judgment of a court of competent jurisdiction, upon a question directly involved in one suit, is conclusive as to that question in another suit between the same parties. But to this operation of the judgment it must appear, either upon the face of the record or be shown by extrinsic evidence, that tbe precise question was raised and determined in tbe former suit. If there be any uncertainty on this head in the record, as, for example, if it appear that several distinct matters may have been litigated, upon one or more of which the judgment may have passed, without indicating which of them was thus litigated, and upon which the judgment was rendered, the whole subject matter of the action will be at large, and open to a new contention, unless this uncertainty be removed by extrinsic evidence showing the precise point involved and determined. To apply the judgment, and give effect to the adjudications actually made, when the record leaves the matter in doubt, such evidence is admissible.” This case is cited, with others to the same effect, in Kleinschmidt v. Binzel, and the above paragraph is therein quoted with approval.
There was scarcely any conflict in the evidence as to what the facts were, either as to the issues tried in Meagher v. Glover, or as to what the relative rights of Magone and the Quinlans inter sese were, and hence what are those of the plaintiff and the defendant. The court found that Magone and the Quinlans made common cause as against all the other parties, but that as among themselves there was no controversy whatever. There is no complaint, nor is there any foundation for any, that the findings are not supported by the evidence.
Counsel say in their brief that, inasmuch as the decree in Meagher v. Glover adjudged the right to Magone and the Quinlans jointly, the legal presumption attaches that their shares were equal, and that, since the defendant acquired the Quinlan interests by purchase, the presumption is conclusive that he thus became the owner of a two-thirds interest. They invoke the rule recognized generally in this country that when two or more parties acquire an estate by the same act, deed, or devise, and no indication is therein made to the contrary, they are presumed to hold as tenants in common (Washburn on Real Property, sec. 878), and insist that the decree should, for this reason, have been accepted as conclusive. As we have already pointed out, the decree does not on its face purport to adjudicate the rights of the parties inter sese. This made it incumbent upon the district court to ascertain what issues were determined, and to determine such as it appeared were not within the issues tried in that case. The title of the parties did not vest under the decree in any sense of the term “vest.” The question as to the extent of the interests of the parties was thus left' at large, to be determined by reference to the evidence showing the inception of the interests, viz., the original appropriation, and the rights claimed and conceded by each of the joint owners up to the date of the decree and subsequent to that time. The court found, in effect, that the extent of the interest acquired by the predecessor of plaintiff under the original appropriation was an undivided one-half. There is no conflict in the evidence on this point. While the findings are not specific as to what the course of conduct observed by the parties subsequent to the date of the appropriation was, the evidence is clear that Duncan and Strickland each claimed for himself, and conceded to the other, a one-half interest; that Magone on the one hand, and the Quinlans on the other, after they had acquired the interests of these appropriators, made the same claims and concessions, and that no claim was made by anyone to the contrary until long after the decree was rendered. Indeed, neither Henry nor John Quinlan ever questioned the extent of Magone’s right. It was first seriously questioned by the defendant after he had succeeded to the Quinlan interests, and then only after the plaintiff had acquired the Magone interest.
Let it be assumed, however, that the decree furnished a basis for the presumption that Magone and the Quinlans were entitled to a one-third interest each. As between them, this presumption was prima facie only, and could be overturned by evidence showing the facts. (Shiels v. Stark, 14 Ga. 429; Edwards v. Edwards, 39 Pa. 369; 38 Cyc. 74.) Though a different rule might apply to persons who purchased from them without notice of the actual condition of the title, and on this point we express no opinion, the evidence shows that both the plaintiff and the defendant at the date of the conveyances un der which they hold had full knowledge of the extent of the rights of their predecessors. Therefore, the presumption was only prima facie as to them..
Rehearing denied May 5, 1913.
The judgment and order are affirmed.
Affirmed.
Mr. Justice Holloway and Mr. Justice Sanner concur.
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] |
PER CURIAM.
Complainants’ application herein having been heretofore (April 22, 1913) argued and submitted, it is ordered that the writ be denied and the proceeding dismissed.
|
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PER CURIAM.
Respondent’s motion to dismiss the appeal herein this day submitted to, and taken under advisement by, the court, is hereby sustained and the appeal accordingly dismissed.
|
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] |
PER CURIAM.
Respondent’s motion to dismiss the appeal herein, heretofore submitted, is, after due consideration by the court, granted and the appeal is accordingly dismissed.
|
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MR. JUSTICE SANNER
delivered the opinion of the court.
Mandamus to the county clerk of Valley county to compel the placing of the name of Bainville upon the ballot as a candidate for county seat at a special election for the creation of the county of Sheridan. Upon the hearing it was ordered that the peremptory writ issue as prayed. The effect of this ruling was to decide that an unincorporated town is eligible as a candidate for the county seat of a county proposed to be created under the so-called Leighton Act. (Laws 1911, p.205 et seq.) It seems desirable, in compliance with section 6249, Revised Codes, that we give briefly the reasons which have moved us to this conclusion.
The Leighton Act was approved March 6, 1911, and its provisions touching the establishment of the county seat of a proposed new county are: “There shall also be printed upon said ballot the words ‘for the county seat,’ and the names of all cities or towns which may have filed with the county clerk a petition * * * nominating any city or town within the proposed new county for the county seat, and the voter shall designate his choice for county seat by marking a cross (X) opposite the name of the city or town for which he desires to east his ballot. * * * In ease any city or town fails to receive a majority of all the votes cast, then the city or town receiving the highest number of all votes cast, shall be designated as the temporary county seat. * * * If upon the canvass of the votes cast at such election it appears that sixty-five per cent of the votes- cast * * * are for the new county * * * the board of county commissioners shall * * * declare such territory duly formed and created as a county * * * an¿ that the place receiving the highest number of votes cast at said election for county seat shall be the county seat of said county. * * * ”
The contention in the brief of respondent is that the term “city or town,” as used in the foregoing extract, refers only to an incorporated city or town, for the following reasons: That, to be a city or town, a community must be incorporated, other wise it is merely a village or camp; that, whenever the legislature has intended an Act to apply to so-called unincorporated cities or towns, it has explicitly so declared; that, in the absence of a contrary intention, the term “city or town” must be construed with reference to section 3202, Revised Codes, in which it is provided that “a city or town is a body corporate and politic,” etc.; that there is nothing in the Leighton Act from which it can be reasonably inferred that the term “city or town,” as used therein, is not intended to mean an incorporated city or town.
The term “town” has a general and popular, as well as a technical, meaning. In common parlance it has had an almost unvarying significance; derived from the Anglo-Saxon “tun,” it originally meant “a collection of houses inclosed by a hedge, wall, or palisade” (Century Dictionary); it still means “any considerable collection of dwelling-houses, as distinguished from the adjacent country” (Standard Dictionary), or “an aggregation of houses so near to one another that the inhabitants may fairly be said to dwell together” (38 Cyc. 506). That it is used in this sense many times in our Codes, and that in the legislative, as well as in the popular, mind there is such a thing as an unincorporated town which is not a mere village or camp, is readily demonstrable. For instance, Chapter 107, Acts of the Twelfth Legislative Assembly (Laws 1911, p. 190), was approved on the same day and was under consideration by the legislature at about the same time as the Leighton Act. Chapter 107 is “An Act providing for bonding fire districts in unincorporated cities and towns,” and clearly presents, under the term “unincorporated city or town,” the idea of a community entirely beyond the stage of a mere village or camp. So, also, in sections 3514 and 3519 of the Revised Codes, there is a distinct recognition of a town as an entity without incorporation or municipal character. Again, in Article VIII, section 1, the Constitution of Montana provides that the judicial power of the state shall vest in certain enumerated tribunals and such inferior courts as may be established in any “incorporated city or town.” This use of the term “incorporated,” as applied to cities and towns, clearly connoting the opposite idea of unincorporated cities or towns, is repeated in sections 3212, 3214, and 3481 of the Revised Codes. It is quite true that in both the Constitution and the Codes the term “city or town” is used without any definite prefix, but under circumstances which make it clear that only incorporated cities or towns is meant; and a further investigation also discloses the frequent legislative use of the term “city or town” without any definite prefix, but under circumstances which would render it absurd to hold that only incorporated cities and towns is meant. Illustrations of this are: Constitution, Article XV, section 12; Chapter 58, Acts of the Twelfth Legislative Assembly; Revised Codes, section 6339, subdivision 10; sections 8483, 8535, 8547, 8548, 8582, 8765, 8771, 8834. It seems clear, therefore, that no consistency whatever has been observed in the legislative use of the term “town”; and it is not correct to say that, whenever an unincorporated town is meant, it has been explicitly so declared, or that the use of the term “town,” without the definite prefix, is in all eases intended to be an incorporated town, within the meaning of section 3202. On the contrary, the true inference is that the term “town,” as used in the Code, is. a term of varying significance, and so uncertain that a construction resting wholly upon it would be highly unsatisfactory.
Accepting, however, as correct the canon of construction proposed by respondent that, where a term has both a technical and a common meaning, the technical meaning must be applied whenever reasonably possible, and assuming that section 3202 is a technical definition for all purposes when the contrary does not appear, we think it is not difficult to see that in the Leighton Act the term “town” is not to be taken in the sense in which it is defined in section 3202. Counsel for respondent say “that the legislature is presumed to know existing statutes and the state of the law.” Very well, among the existing statutes, and included in the state of the law when the Leighton Act was passed, may be found the provisions of sections 2851 to 2856, Revised Codes. These provisions date back many years and to a frimA when incorporated towns in Montana were few and far between; to a time when county seats were notoriously situated at, or removed from, or moved to, unincorporated towns. These provisions in effect say that a county seat may be moved “from the place where it is fixed, by law or otherwise, to another place”; that, in voting at an election to move a county seat, the elector must vote “for the place” he prefers by marking opposite the name of “the place”; that, if two-thirds of the legal votes cast by those voting on the proposition are in favor of ‘ ‘ any particular place, ’ ’ the board must give notice, in which “the place selected” must be declared the county seat. No mention whatever is made in these provisions of a city or town, and no reason whatever appears for holding that, in this proceeding for removing a permanent county seat, the place selected must be an incorporated city or town. So that, if under the Leighton Act only incorporated towns are contemplated as eligible for county seat, we are brought to one of two remarkable situations: Either (1) as to all counties created under that law, the county seat must be an incorporated town, while in all other counties it need not be; or (2) the temporary county seat must be incorporated, but the people of the county may promptly thereafter remove it to a town that is not incorporated. Such a conclusion has no reason apparent or suggested to support it.
Furthermore, three days after the passage of the Leighton Act, there was approved Chapter 135 (Acts of Twelfth Legislative Assembly), which is “An Act to provide for the designation of temporary county seats and for the location of permanent county seats in new counties or in counties in which the permanent county seat has not been located.” In this Act we look in vain for the term “city or town,” or for any evidence of intention to require incorporation as a qualification for county seat. On the contrary, the language is that the board of county commissioners shall by resolution “designate some place” within the county as temporary county seat, and “the place so designated” shall be the temporary county seat; if the commissioners cannot agree, each shall write the name of the “place” he favors on a slip, and the slips shall be put in a receptacle and one of them drawn out, and the “place” named on the slip so drawn shall be the temporary county seat. At the succeeding general election, the matter must be submitted to the people, and at such election the elector is required to write on his ballot the name of the “town or place” at which he desires the permanent county seat to be located, and a ballot so marked and cast is to be deemed a vote for the “town or place” so marked; and the “town or place” found to have received a majority of the votes east shall be the county seat, etc. This Act is so nearly contemporaneous with the Leighton Act that the incongruity between its manifest intent and the construction sought by the respondent to be given to the Leighton Act must have been obvious to the legislature, if, as a matter of fact, any such construction of the Leighton Act had occurred to it as possible. If it cannot be supposed that the same session intended results so incongruous upon subjects so intimately related, then we must adopt the only harmonizing conclusion, viz., that neither Act presupposes incorporation as a qualification to become a county seat.
The respondent has failed to suggest any hypothesis, and none has occurred to us, for supposing that to the legislative mind any special reason appealed for preferring an incorporated city or town to one not so endowed. But there is, we think, a consistent purpose to be seen in the Leighton Act to submit the entire matter to the vote of the people, and it is in line with that purpose that we hold the choice of fixing the county seat to be theirs, as among all feasible locations, whether in incorporated towns or not.
It is ordered that the relator have of the respondent his costs herein incurred, which are taxed at $290.60.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
|
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
On February 13, 1912, A. B. Melzner, administrator de honis non of the estate of Henry Williams, deceased, presented to the district court of Silver Bow county his final account of his administration of said estate and prayed for its settlement and allowance. Due notice of the time and place for hearing such report was given, and within the time allowed A. J. Davis, as special administrator of the estate of Rachel E. Williams, deceased, and in his own right as the residuary legatee under the last will and testament of Rachel E. Williams, presented objections in writing to the allowance of such account upon the ground that certain alleged claims against the estate of Henry Williams, deceased, had not been paid. In the written objections it is set forth that from August 12, 1902, to March 3, 1907, Rachel E. Williams was the duly appointed, qualified, and act ing administratrix of the estate of Henry Williams, deceased; that during such period of time she made advances from her own private funds for the use and benefit of the estate of Henry Williams, deceased; that she made reports of her administration, including accounts of the funds so advanced by her, to the district court having jurisdiction of the administration of said estate; that after due notice her several reports were approved, allowed and settled, and the court thereby adjudged that the estate of Henry Williams, deceased, was indebted to the said Rachel E. Williams in sums aggregating $34,000 in round numbers; that no part of these sums has ever been paid; and that on the 3d day of March, 1907, Rachel E. Williams died intestate, without having concluded the administration of the estate of Henry Williams, deceased. It is alleged that under the terms of her will A. J. Davis became residuary legatee; that, because of delay in the probate of her will, Davis was appointed special adiministrator of her estate. It is further alleged that the administrator de boms non in his final account has failed to report to the court the amount and character of the real or personal property in his possession, and has failed to report what, if any, funds he has available to pay the indebtedness against the estate of Henry Williams, deceased. The prayer is that the final report be not allowed; that the administrator de bonis non be required to set forth and exhibit the amount and character of the property in his possession as such administrator, including money belonging to the estate of Henry Williams, deceased; and that if sufficient funds are not immediately available to pay the claims alleged to be due to the estate of Rachel E. Williams, deceased, then that an order be made for the sale'of sufficient personal property to satisfy such claims, and if the personal property be insufficient, that an order for the sale of sufficient of the real estate to satisfy the claims be made. On the day appointed for hearing the final account, the court heard evidence touching the ordinary receipts and disbursements of the estate, the compensation theretofore received by the administrator de bonis non, and the balance due to him, the employment of counsel, and the value of the services rendered, and thereupon made and entered an order solemnly reciting that, “no exceptions or objections in writing to said account having been made or filed, * * * it is ordered and decreed that the said account be, and the same hereby is, in all respects as the same was rendered and presented for settlement, approved, allowed, and settled.” From that order Davis appealed.
We are not informed as to the theory upon which the trial court proceeded in ignoring the written objections made by A. J. Davis to the final account of the administrator de bonis non. We are not prepared to say that the objections are sufficient to entitle them to serious consideration. While it is set forth that the several claims made by Rachel E. Williams against the estate of Henry Williams., deceased, were allowed, it is not anywhere alleged that the orders allowing them have not been vacated or set aside, or that appeals have not been taken therefrom. It is alleged that there is certain real estate in the possession of the administrator de bonis non belonging to the estate of Henry Williams, deceased; there is not, however, any allegation that the administrator has any personal property available for the payment of estate debts. While it is further alleged that no part of the several claims allowed to Rachel E. Williams has ever been paid, there was not any offer of proof in support of this allegation. But, independently of the objections made, the order of the trial court is indefensible.
It is very clear from sections 7661 and 7662, Revised Codes, that a final account of an administrator or executor cannot be settled or approved so long as there are outstanding claims against the estate which have not been paid, if there is any property in the hands of the executor or administrator available for the payment of such claims, in whole or in part.
And it is equally apparent that it was the intention of the legislature that, before a final account be approved, the executor or administrator must show .affirmatively that he has paid all outstanding claims against the estate or that he has exhausted the property available for such purpose, and in the absence of such showing his final account cannot be approved.
Assuming that there is sufficient in this record to show outstanding claims in favor of the estate of Rachel E. Williams, deceased, and that such claims have been settled and allowed in the reports which she made to the district court as administratrix, in the absence of any affirmative showing upon the face of such claims that they are illegal, the orders settling those accounts became conclusive upon the estate and upon all persons interested in the estate, not laboring under ahy legal disability. (Sec. 7649, Rev. Codes; In re Dougherty’s Estate, 34 Mont. 336, 86 Pac. 38.)
While it is not within the power of an executor or administrator by advances made by him to the estate to thereby make the estate his debtor regardless of the character or quality of his claim, yet it is equally well settled that such advances, made suitably and in good faith for the benefit of the estate, may be allowed and recovered as claims against the estate. (18 Cyc. 443.)
Our attention is directed to the following language employed by this court in Dodson v. Nevitt, 5 Mont. 518, 6 Pac. 358: “Claims against the estate are those in existence at the date of the death of the deceased. Other claims against an estate are those incurred by the administrator or executor in settling the estate, and are properly denominated expenses of administration.” It is now insisted that by this classification a claim for advances made to an estate cannot be considered a claim against the estate; but the language above quoted is to be understood in the light of the question before the court for determination at that time. The point at issue was whether or not a claim for services performed at the instance and request of an executor of an estate constituted a claim against the estate. The court held that it did not; that, if anything, it was an item in the expense of administration of the estate. If the language quoted be accepted literally, it would preclude a claim for funeral expenses; but the statute in force at the time the decision above was rendered (sec. 273, Second Div., Rev. Stats. 1879) particularly recognized a claim for funeral expenses as a claim against an estate.
It is no argument to say that a claim for advances should not be allowed, since the administrator would be placed in the situation of passing upon his own claim. Section 7542, Revised-Codes, specifically recognizes the fact that an executor or administrator may be a creditor of an estate, and provides the method of allowing such a claim.
In making the several orders approving the advancements made by Rachel E. Williams, we must indulge the presumption that the district court performed its official duties and made due inquiry as to the character of the advancements and the purposes for which they were made, and that before allowing them the court determined that they were for the use and benefit of the estate and properly chargeable- against it. Indulging this presumption, the orders allowing those several claims became conclusive, and, before the final report of the administrator de bonis non could be approved, it was incumbent upon him to show that those claims had been paid or that all available property for their payment had been exhausted. The prayer of the objector should have been granted.
The order of the district court is reversed and the cause is remanded for further proceedings.
Reversed and remanded.
Mr. Chief Justice Beantly and Me. Justice Sanner concur.
|
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MR. JUSTICE SANNER
delivered the opinion of the court.
On June 17, 1910, the parties to this action entered into a written agreement for the sale by respondent — plaintiff below— and the purchase by appellant- — defendant below — of certain real and personal property situate in Fergus county. Montana. The purchase price as fixed by the agreement was $29,605, payable, with interest, as follows: $5,000 at the execution of the contract; $5,819 on or before February 1, 1911; $9,786 on or before December 1, 1911; $1,000 on or before December 1, 1912; $1,000 on or before December 1, 1913; and $7,000 on or before December 1, 1914. It was further provided in the agreement that the purchaser should pay all taxes thereafter accruing; that when the purchaser should make the payment of $9,786 due December 1, 1911, he should be entitled to a warranty deed of the lands, giving back to the seller a mortgage or mortgages to secure the balance -of the unpaid purchase price; that “in case of the failure of the said purchaser to make either of the payments or interest thereon, or any part thereof, or to perform any of the covenants on his part hereby made and entered into, then the whole of said payments' and interest shall become immediately due and payable and this contract shall, at the option of the seller, be forfeited and determined, * * * and the said purchaser shall forfeit all payments made by him on this contract, and all his right, title and interest in all buildings, fences or other improvements whatsoever, and such payments and improvements shall be retained by the said seller in full satisfaction and in liquidation of all damages by them sustained, and they shall have the right to re-enter and take possession of the premises aforesaid; and the purchaser shall redeliver to the seller the personal property hereinbefore enumerated, or the value thereof. ’ ’
The amended complaint is in two causes of action. The first cause of action alleges that defendant defaulted in the payment dne February 1, 1911; that plaintiff after such default made demand upon defendant for the surrender of the property, both real and personal, which was refused; that plaintiff is the owner and entitled to the immediate possession of all said property; and that it is unlawfully withheld, to plaintiff’s damage in the sum of $5,000. The plaintiff’s theory of its rights is set forth in the following allegation: “That by reason of the acts complained of on the part of the defendant, and defendant’s failure to keep and perform the said contract, a copy of which is hereto attached, at the time and in the manner therein specified, under and by virtue of the terms thereof, defendant has abandoned and forfeited ail his right under said contract, together with the right of possession of said premises in said contract described, and to the right of the possession of the personal property therein enumerated, which plaintiff has demanded of defendant that he quit and surrender up to this plaintiff.”
The second cause of action is for interest, and attorneys’ fees for collecting the same, upon a promissory note for $3,000 given as part of the first payment, the principal having been paid,
The prayer contains no specific demand for damages, but asks, among other things: “That the said contract be declared to be ended and determined, and all rights of the said defendant L. H. Chipman thereunder, together with all payments made thereon., be forfeited according to the terms of said contract,” and “that plaintiff have such other and further relief in the premises as * * * may seem meet and agreeable to equity. ’ ’
The answer admits default in the payment due February 1, 1911; denies that the plaintiff is the owner or entitled to the immediate possession of the property, or that he, the defendant, unlawfully withholds the same, or that plaintiff is damaged by such withholding, or that plaintiff ever made demand for possession of the same prior to the commencement of the action, and alleges that he, the defendant, made an offer to restore the property to the plaintiff upon the condition that the plaintiff return to bim the $5,000 paid down on the contract, “less a reasonable amount to be allowed to the plaintiff for the use of said property, for the time defendant was in possession thereof,” which offer the plaintiff ignored; that he, defendant, has an equity in said real estate, and is the owner of said personal property, and is entitled to withhold possession of both until the sum of $5,000 paid down by him is returned, with interest “less a reasonable sum for the use of such property from the 17th day of June, 1910, until the same is restored to the possession of plaintiff.” By way of affirmative diefense an estoppel is attempted, and there is also a counterclaim pleaded for the return of the first payment of $5,000, with interest, and for the return of $143.58 taxes paid, with interest, less a reasonable sum for the use of the property. The defendant’s prayer is specific, but concludes with a demand for such other relief as may be just and equitable.
The findings and conclusions of law by the trial court were in favor of the plaintiff, and! judgment was entered accordingly. In the judgment was included an award of “$870 damages incurred by the plaintiff by reason of the refusal of defendant to deliver possession of said premises and property on the 11th day of July, 1911,” and a decree that all right, claim and interest of the defendant in and to the property involved “is ended and determined, and all payments made thereon are adjudged and decreed to be forfeited, to the plaintiff.”
The principal contention is that the trial court erred in. 'decreeing the defendant’s payments- forfeited, and in decreeing the return of the property involved “without imposing the condition that the plaintiff return, to the defendant the payments made by him, less a reasonable rental for the use of the property and any damages suffered by the plaintiff by reason of the breach of contract.” As we understand the argument of appellant, it is-: that the provision of the contract above quoted, being a stipulation for liquidated damages, is void; that time was not of the essence of the contract, hence there was no basis for a forfeiture; that a forfeiture was precluded because the property was subject to a vendor’s lien; that the appellant was entitled to be relieved from the forfeiture of his payments in view of his offer to make full compensation; that the respondent was estopped by its conduct in the premises from claiming a forfeiture; that this suit is based upon an election of respondent to rescind, anid having appealed to equity to vindicate its action, equity forbids that it retain more of appellant’s payments than will suffice to recoup its damage.
1. Whether the provision of the contract above quoted is a stipulation for liquidated damages, and whether, as such, it is within the inhibition of section 5054, Revised Codes, we need not inquire. Even if it be so, this fact would not of itself require that in every, or in any, case the defaulting purchaser should have a return of the moneys paid by him; on the contrary, its effect is to leave the parties where they would be if no such stipulation had been made (Bennett Bros. Co. v. Tam, 24 Mont. 457, 468, 62 Pac. 780 ; Glock v. Howard & Wilson Colony Co., 123 Cal. 1, 69 Am. St. Rep. 17, 43 L. R. A. 199; 55 Pac. 713; List v. Moore (Cal. App.) 129 Pac. 962; Edgerton v. Peckham, 11 Paige Ch. (N. Y.) 352) ; and it is settled that without such a stipulation the defaulting purchaser is not, in the absence of an equitable showing, entitled to a return of any part of the moneys paid. (Perkins v. Allnut, 47 Mont. 13, 130 Pac. 1; Clifton v. Willson, post, p. 305, 132 Pac. 424; Hansbrough v. Peck, 5 Wall. (U. S.) 497, 18 L. Ed. 520; List v. Moore, supra; Glock v. Howard & Wilson Colony Co., supra.)
2. But it is urged that neither the principle last stated, nor the stipulation itself could be a proper basis of the court’s decree, because time was not expressly made as of the essence of the contract. Whether time is or is not of the essence of the contract is material to the application of the above rule only where there has been a tender or offer of performance by tlm party in apparent default, with a refusal of acceptance by the other. Here the appellant not only has made no such tender or offer, but expressly pleads his inability to perform. The situation thus presented is in effect the same as though time had been expressly made as of the essence of the contract.
3. Nor can we sustain the contention that forfeiture was precluded in this case because of the following provisions of the Revised Codes: “All contracts for the forfeiture of property subject to a lien, in satisfaction of the obligation secured thereby, and all contracts in restraint of the right of redemption from a lien, are void” (sec. 5715); and: “One who sells real property has a vendor’s lien thereon, independent of possession, for so much of the price as remains unpaid and unsecured, otherwise than by the personal obligation of the buyer.” (Sec. 5800.) Neither section is pertinent. By the argument the application of section 5715 is made to depend upon the existence of a vendor’s lien under section 5800. We think that section does not apply where the legal title is retained by the vendor. As an expression of our views we quote from Professor Pomeroy as follows: “It has been said, in English and American decisions, that the vendor’s lien may arise before conveyance as well as after; and the interest or right of the vendor under an ordinary contract for the sale of land * * * has been called a vendor’s lien, and treated in the same manner 'as the equitable lien arising in favor of the grantor upon an actual conveyance of the land where the purchase price in whole or in part is left unpaid. This is an unnecessary ‘ and an incorrect use of terms; it confounds legal notions which are essentially different. There is a plain distinction between the lien of the grantor after a conveyance, and the interest of the vendor, before conveyance. The former is not a legal estate, but is a mere-, equitable charge on the land. * * * In the latter, although possession may have been delivered to the vendee, and * * * the vendee may have aeqriired an equitable estate, yet the vendor retains the legal title, and the vendee cannot prejudice that legal title, or do anything by which it shall be devested, except * * * by paying the price according to the terms of the contract. To call this complete legal title a lien is certainly a misnomer. _ In case of a conveyance, the grantor has a lien, but no title. In case of a contract for sale before conveyance, the vendor has the legal title, and has no need of any lien.” (3 Pomeroy’s Equity Jurisprudence, sec. 1260.) Where it appears that the intention of the parties was in fact to create the relationship o;f mortgagor and mortgagee, title being retained with the idea it should operate as a mortgage, there might indeed be occasion to apply the provision of section 5715, but that position is not, and could not well be, taken here, because the contract will beat’ no such, construction (Arnold v. Fraser, 43 Mont. 540, 117 Pac. 1064), and because it is not the forfeiture of the property to which a vendor’s lien might, under proper circumstances, attach that is complained of, but the forfeiture of the money paid thereon. Of course, if there is no lien within the meaning of section 5800, there can be no basis for denying a forfeiture upon this ground or for complaint because a period of redemption was not provided in the decree.
4. In the brief of appellant we find a vigorous discussion of the proposition that since the respondent “has come into a court of equity asking its aid to rescind the contract,” equity commands the return to appellant of all of the purchase money paid in excess of an amount sufficient to compensate the respondent in damages-. Granting the premise, the conclusion is inevitable; but although the suit is in equity it is not an action to rescind or to judicially vindicate a rescission. The respondent is standing upon, the contract seeking a cancellation of it because of appellant’s breach. It is quite true that in Arnold v. Fraser, supra, an action similar to this was tried on the theory that the vendor should have returned or offered to return the purchase money paid, less the value of the use of the property, and that that case was affirmed on appeal; but in the opinion the correctness of this theory was questioned, it being expressly stated that this court would determine the case as made without dissent by anyone in the court below, reserving the question itself for future treatment. We are now convinced that that case was, and the present case is, of the character referred to in Clark v. American D. & M. Co., 28 Mont. 468, 476, 72 Pac. 978, wherein it is said: “There is a wide difference between the rescission of a contract and its mere termination- or cancellation. ‘It is well settled that a technical rescission of the contract has the legal effect of entitling each of the parties to be restored to the condition in which he was before the contract was made, so far as that is possible, and that no rights accrue to -either by force of the terms of the contract. But, besides technical rescission, there is a mode of abandoning a contract as a live and enforceable obligation which still entitles the party declaring its abandonment to look to the contract to determine the compensation he may be entitled to under its terms for the breach which gave him the right of abandonment. ’ (Hayes v. City of Nashville, 80 Fed. 641, 26 C. C. A. 59.) ‘Such an abandonment is not technically a rescission of the contract, but is merely an acceptance of the situation which the wrongdoing of the other party has brought about.’ (Anvil Min. Co. v. Humble, 135 U. S. 540, 14 Sup. Ct. Rep. 876, 38 L. Ed. 814, 18 Morr. Min. Rep. 98.)” The consequence of this is that the rule of equity invoked by appellant has no necessary application to an action upon the contract to cancel it for a breach, and that in such an action the remedies afforded by the contract will be enforced unless they impinge upon other rules of equity or law.
5. This brings us to the consideration of the question of appellant’s rights under the affirmative pleas of the answer and in virtue of the provisions of section 6039, Revised Codes. That section provides: “Whenever, by the terms of an obligation, a party, thereto incurs a forfeiture, or a loss in the nature of a forfeiture, by reason of his failure to comply with its provisions, he may be relieved therefrom, upon making full compensation to the other party, except in case of a grossly negligent, willful or fraudulent breach of duty.” There is some contention by respondent to the effect that this statute is not intended to apply to a case of this nature; but if it does not, we axe at a loss to understand where it might better apply. If, as a matter of fact, the actual damages sustained by the vendor in this case are less in amount than the moneys paid by the purchaser, and if, under the principles above stated, the vendor can retain the excess, then most assuredly the purchaser will have incurred a loss in the nature of a forfeiture authorized by the terms of the contract, by reason of his failure to comply with the same. From such a loss he may be relieved upon a showing that he is equitably entitled to such relief, if his breach of duty was not grossly negligent, willful or fraudulent. As mentioned above, the appellant made an affirmative plea by way of estoppel which, whether defective as such or not, must, under the prayer for general relief, be noticed as a statement in part of his equities in the matter. From this and other portions of his answer it is made to appear that immediately after making the contract the appellant became fearful that he would not be able to comply strictly with its terms, and was reassured and encouraged by the respondent’s officers to the effect that he would not suffer damage at its hands if he would continue and endeavor to comply with its terms; that, relying on such assurances, he did in good faith endeavor to comply with the terms of the contract, and in doing so expended large sums of money and gave more than a year of his time and labor in attempting to carry out its terms and would be damaged to the amount of many thousands of dollars by the enforcement of the strict terms of the forfeiture; that respondent by its officers frequently waived the strict performance of the contract as to terms of payment, extending the time of the payment due February 1, 1911; and that on July 11, 1911, the appellant, finding himself unable to meet the payments, submitted the proposition to return the property as hereinabove referred to; that the property can be returned undiminished in value; that the value of its use is $500, and that appellant stands willing to have the property returned and to have full compensation made to respondent for the use of the property and for any damages sustained by respondent on account of his breach of the contract.
The evidence touching some of these allegations is conflicting, and, of course, the findings of the court as to them may not be disturbed; but as to others it is undisputed. For instance: the appellant testified to three distinct conversations with Mr. Reynolds, the president of the company, all before the payment of the $3,000 note which was given as part of the first payment. Concerning the first conversation held about August 8, 1910, the appellant says: “We came down and told him we saw we were not able to go through with the payments, couldn’t sell our ranch in the east, times had tightened up so, and we wished they would take it back, and he said: ‘Mr. Chipmian, you go out there and show good intentions; we will see you through with this. We will see that you don’t lose any money.’ ” This conversation was in the presence of appellant’s son who cor roborates his father concerning it. About a week after this, the second conversation occurred, as follows: “I came down then in about a week again, after some stuff, and. I went in and I says: ‘I wish you would take this ranch back.’ And he said: ‘Well, now, don’t be faint-hearted. You go out there and we will see that you don’t lose anything.’ I says, ‘Do you think you could sell this ranch?’ and he says, ‘Why, yes, I think we could.’ So I listed it with them for sale.” The appellant's wife, being dissatisfied, went with him to the respondent’s office, still in August, 1910, and there found Mr. Reynolds, and the third conversation occurred in her presence, which she renders as follows: “We visited Mr. Reynolds in reference to going out on the place; we were a little afraid we would not be -able to make the payments and he wanted to know what we wanted to dio, and I told him.' — he asked me what I wanted to do — he wanted to know if we wanted to go out in September and try it. I told him we would if we would be able to malee the payments. ‘Well,’ he said, ‘we have never foreclosed on anyone yet, and we won’t begin on you people.’ ” There is not in the record any semblance of contradiction of this testimony; and the finding of the jury that no such assurances were given is without any foundation whatever. After these conversations the appellant went on the land and paid the note, and concerning that matter he says: “If Mr. Reynolds had not made us these promises we would have throwed it up right then when we had $2,000 paid on it”; instead of that he estimates his detriment- by going ahead at $8,000. The appellant also testified that he had tried to sell his Iowa land to raise the money for the payments but was unable to do so, and he sought to show in detail and as ■evidence of his good faith, the particular efforts he had made to meet the terms of the contract, but in this he was checked by the trial court.
We think the evidence as a whole shows that the appellant’s breach of duty was not grossly negligent, willful or fraudulent,- and that it ^as entirely practical and mot .difficult to ascertain the damages of respondent on principles of compensation in accordance with the provisions of the statute. In these eircum stances, appellant was in position to ask relief from the forfeiture of his payments in excess of respondent’s damage, and that relief should in this case have been granted to him because of the conduct of respondent toward him and its effect upon him as detailed above. We subjoin a few authorities which lend support to these views: Barnes v. Clement, 12 S. D. 270, 81 N. W. 301; Cue v. Johnson, 73 Kan. 558, 85 Pac. 598; Parsons v. Smilie, 97 Cal. 647, 32 Pac. 702; Sherburne v. Hirst, 121 Fed. 998; Boulder & Beaver Placer Co. v. Maxwell, 24 Colo. 87, 92, 48 Pac. 815; 1 Pomeroy’s Equity Jurisprudence, secs. 432-460; 16 Cyc. 79, sec. 6, p. 80, sec. C.
6. If, as we have held, the appellant Should have been relieved from the forfeiture of his payments in excess of respondent’s damages, it necessarily follows that the findings and judgment relative to the second cause of action cannot be upheld. Seeking, as it did, the unpaid interest (with attorney’s fees for collecting the same) of the $3,000 note given as part of the first payment, the principal of which was paid, it was a mere incident to the main transaction, and upon the case presented, it necessarily falls with the forfeiture.
7. In addition to the forfeiture of all appellant’s payments without regard to the amount of respondent’s damage, the judgment also awards the respondent the sum of $870 damages for withholding the property after demand. Counsel for respondent addressing the trial court, stated his position concerning this matter to be that, had appellant surrendered possession after the breach, respondent would be entitled only to the payments made as liquidated damages for the breach, “but we claim that under the law and under the contract we are entitled to an additional damage by reason of having to maintain this action for the purpose of getting possession after the breach.” This is a clear claim for special damages of a particular character, which, if recoverable in this sort of action at all, must be supported by specific allegations in the pleadings (Gordon v. Northern Pacific Ry. Co., 39 Mont. 571, 18 Ann. Cas. 583, 104 Pac. 679; O’Brien v. Quinn, 35 Mont. 441, 90 Pac. 166; Root v. Butte, A. & P. Ry. Co., 20 Mont. 354, 51 Pac. 155), and no such allegations appear. Moreover, the evidence does net show any special 'damage due to withholding the property after demand. The jury found that the value of the real estate had not been diminished, and that the value of the use for the whole period from June 17, 1910, to the date of trial was $2,610; this being much less than the appellant’s payments, there was no basis in fact for the award of $870 over and above the forfeiture, and the judgment must be disaffirmed as to that.
8. It was possible for the trial court to adjust the equities of the parties as presented at the time of the trial, and this court should do likewise, so far as it can, to the end that the litigation may have a speedy close. Rejecting, then, the items of $870, damage for withholding after demand; rejecting also the allowance for interest and attorneys’ fees upon the second cause of action, and taking into account the moneys paid by appellant, with interest at the legal rate since such payment, on the one hand, and on the other, $2,610, the value of the use of the property, and $362.45, damage from personal property depreciated or not returned, we determine the difference in appellant’s favor to have been $2,706.40; and this amount the judgment should have provided that appellant recover from respondent. The appellant, however, was entitled to this only as a relief from forfeiture. Having defaulted, he was in no position to refuse possession; hence the respondent is entitled to the value of the use of the property up to the time of restoration. As we are not informed whether respondent has taken possession, we do not know what, if any, allowance should be made for the use of the property since the date of trial. We are therefore unable to make final adjustment of these equities, but must remand the cause for further proceedings.
The judgment and order appealed from are reversed and the cause is remanded to the district court of Fergus county with directions to find what, if any, further allowance should be made to respondent for the use of the property in question since the date of the trial of this cause, and to deduct the amount so found from the above balance of $2,706.40, after adding thereto interest at the legal rate since the date of trial, and thereupon to enter its judgment and decree canceling the contract in question, awarding possession of the property to respondent and providing that appellant have and recover from the respondent the sum ascertained to be due after taking the proceedings aforesaid.
Rehearing denied June 28, 1913.
Reversed and remanded.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
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] |
MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
This is an appeal from an order of the district court of Missoula county refusing to issue an injunction pendente lite. The principal question submitted for decision involves the validity and construction of Chapter 30 of the Laws of the Twelfth Legislative Assembly. When the appeal was perfected, the plaintiffs presented to this court their petition asking that an injunction issue pending the appeal under the rule of this court relating to appeals from injunction orders. (Rule XXI,
44 Mont, xxxix.) The petition was granted upon terms, and thereafter the hearing was upon motion of counsel expedited. We are precluded, however, from considering the appeal on the merits for the reason that counsel for the appellants have failed to file a properly authenticated transcript of the record of the district court upon which the order was made. The record submitted consists of the petition presented to this court at the time the injunction was issued, embodying copies of the pleadings, certain affidavits and a stenographic report of the evidence of one of the defendants. But while these are certified to by the clerk as correct copies, they are not embodied in a bill of exceptions identifying them as the papers used at the hearing in the district court. Section 7113, Revised Codes, provides: “On appeal from an order, except an order granting or refusing a new trial, the appellant must furnish the court with a copy of the notice of appeal, of the judgment or order appealed from, and of papers used on the hearing in the court below.” Section 7115 provides that the copies referred to in the preceding sections must be certified to as correct by the clerk or attorneys. As has been repeatedly announced by this court, while this latter section authorizes the clerk or attorneys to certify that the copies furnished are correct copies, it does not authorize either to convey to this court in a certificate the information that the copies furnished are copies of the papers actually used as the basis of the order from which the appealo is taken. This information can be furnished only by a bill of exceptions, settled by a certificate of the judge in the usual way.
(Rumney Land & Cattle Co. v. Detroit & Mont. C. Co., 19 Mont. 557, 49 Pac. 395; Cornish v. Floyd-Jones, 26 Mont. 153, 66 Pac. 838; Emerson v. McNair, 28 Mont. 578, 73 Pac. 121; In re Dougherty’s Estate, 34 Mont. 336, 86 Pac. 38.) Since we are not furnished] with a transcript which we can accept without question as a copy of the record upon which the district court based its order, we must observe the rule adopted in the eases cited and decline to consider the appeal on the merits. The order is therefore affirmed. Affirmed.
Mr. Justice Holloway and Mr. Justice Sanner concur.
|
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
At' the general election held in Silver Bow county on the 5th day of November, 1912, Joseph McCaffery, H. Lowndes Maury, and Louis A. Smith were contesting candidates for the office of county attorney. The county canvassing board declared McCaffery elected, and issued a certificate to him. Within the time allowed by law for filing contests George Curry, a resident of Silver Bow County and a qualified elector therein, filed in the district court of that county his statement contesting the right of McCaffery to the office of county attorney. The ground of the contest is malconduct on the part of the election officers, which, it is alleged, resulted in depriving the rightful claimant of the office. On December 2, after this statement had been filed, the district court, presided over by Judge Lynch, made an order calling a special session of the court for December 16 to determine such contested election case, and directed the proper citation to issue to the eontestee. Due service of the citation was made, and on the 16th day of December the contestee appeared by motion. Judge Lynch, deeming himself disqualified, called in Judge Poindexter, of the fifth district, to hear the motion and to try the cause, and by agreement of the parties the further hearing was continued until December 19. On December 19, by agreement of the parties, Judge Pierson, of the thirteenth judicial district, was called in to hear all pending matters and motions and to try the cause, and the further hearing was continued until January 3, 1913. Some time thereafter the clerk of the court received a letter from Judge Pierson, to the effect that it would be impossible for him to hear the motion or try the cause. On January 3, 1913, the matter was called before the district court while Judge Lynch was presiding. Counsel for the eontestee objected to Judge 'Lynch making any order or assuming any jurisdiction over the proceedings ; but these objections were overruled, and an order was made calling Judge Winston, of the third judicial district, and the matter was set for hearing January 4. Judge Winston was unable to try the matter or hear the motion, and on January 4, in open court while Judge Lynch was presiding, and over the objection of the eontestee that he had no jurisdiction to make any order, Judge Clements, of the first judicial district, was called to try the cause, including the hearing of the pending motion, and the matters were set for January 6. Judge Clements indicated that he could try the cause but that he could not be present until January 8. On January 6, in open court, Judge Lynch presiding, over the objection of the eontestee that he had no jurisdiction to make any order and upon the further ground that no affidavit for a continuance had been filed, and that the cause could not be continued to a date more than twenty days from the 16th of December, 1912, the day upon which the cause was originally set for hearing, Judge Lynch set the matters over to January 8. On January 8 Judge Clements appeared in court, and, the matter being called, counsel for the eontestee objected to any further proceedings, upon the ground that the court had lost jurisdiction, for the reason that the hearing had been continued for more than twenty days from the day originally set for the hearing, and moved the court to dismiss' the proceeding. The objection was sustained, the motion granted, and a judgment rendered and entered in favor of the contestee and' against the contestant for costs. It is from that judgment that this appeal is prosecuted.
1. Objection is made to the record by which this appeal is sought to be presented. Under our Code the proceeding for contesting an election is classed as a special proceeding. While it partakes of the nature of a civil action, it is not in fact such an action. It is altogether statutory. The provisions of law governing are found in sections 7234-7249, inclusive, of the Revised Codes. The only provision with reference to an appeal is found in section 7248, as follows: “Either party, aggrieved by the judgment of the court may appeal therefrom to the supreme court, as in other causes of appeal thereto from the district court.” Jurisdiction — original in the district court and appellate in the supreme court — of a proceeding of this character is conferred by the state Constitution. The right in a party to the proceeding to appeal is conferred by section 7248 above. There is not any provision made for a record by which the appeal can be presented. Under such circumstances we have recourse to section 6329, which provides: “When jurisdiction is, by the Constitution or this Code, or any other statute, conferred on a court or judicial officer, all the means necessary to carry into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically' pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code.” Apparently acting upon the analogy existing between the character of this proceeding and an ordinary civil action, counsel for appellant prepared such a record as would be appropriate in an ordinary civil action. The procedure thus adopted properly presents the matters for adjudication, appears suitable and in conformity with the spirit of our Code,- and meets with our approval. The objection urged against the record is untenable. (In re Liter’s Estate, 19 Mont. 474, 48 Pac. 753; State ex rel. Seres v. District Court, 19 Mont. 501, 48 Pac. 1104; State ex rel. Whiteside v. District Court, 24 Mont. 539, 63 Pac. 395.)
2. That Judge Lynch had authority to call one trial judge after another, until he finally secured the services of one who could preside at the trial of the cause, is not open to doubt or debate. (Littrell v. Wilcox, 11 Mont. 77, 27 Pac. 394; State ex rel. Anaconda C. M. Co. v. Clancy, 30 Mont. 529, 77 Pac. 312; 23 Cyc. 599.)
3. Complaint is made of the form of verification attached to the statement of contest. While it is somewhat informal, it is to all intents and purposes the same as that required for a pleading in an ordinary civil action and is sufficient. (Lane v. Bailey, 29 Mont. 548, 75 Pac. 191; Murphy v. Levengood, 31 Mont. 34, 77 Pac. 311.)
4. The record fails to disclose the cause of Judge Lynch’s disqualification. He was not compelled' to call upon the other judges of the second district, nor was he required to do so unless his disqualification was brought about by the filing of an affidavit under subdivision 4 of section 6315, as amended by the Act of 1909 (Laws 1909, p. 161). There is not any question, however, of Judge Clements’ authority to act for Judge Lynch. (Sec. 12, Art. VIII, Mont. Const.)
5. The special session of court to hear this contest was ordered for December 16. The postponement to the 19th and again to January 3, 1913, was taken by agreement of the parties, and no one complains. By filing the statement of contest in time, the district court of Silver Bow county acquired complete jurisdiction of the subject matter involved herein, and by due service of the citation upon the contestee equally complete jurisdiction was acquired over the parties. The court having met at the time and place designated in the order convening the special session, there was then presented a question for adjudication, a court having exclusive jurisdiction, and a special term duly convened for the purpose of hearing and determining the question.
It is conceded to be the general rule that “where the jurisdiction of a court is exclusive and has once lawfully attached it cannot be ousted by subsequent events or facts arising in the cause, but .the court may proceed to final judgment unless some constitution or statute operates to devest that particular court of its jurisdiction.” (11 Cyc. 690.) That there is not any provision of our Constitution by or through which the court lost jurisdiction of this matter must also be conceded.
In their brief, counsel for contestee say: “The jurisdiction of the court in this case was determined and ousted by the provisions of section 7244, Revised Codes of Montana.” As the trial of this cause was never begun, the provision of section 7244, above, for adjournment from day to day, was never invoked. The adjournments after January 3 were taken from time to time before the commencement of the trial, and over the objection of the contestee. Paraphrased, that portion of section 7244, above, invoked by the respondent, reads as follows: Upon the application of either party the court may continue the trial before its commencement for not more than twenty days, upon two conditions: (a) That the applicant present good cause by affidavit; and (b) that he pay the cost-of the continuance. But in the instant case every continuance was had upon the court’s own motion. Neither party asked for a continuance, and, so far as this record discloses, neither party desired one. There could not be any showing of cause, and there was not anyone upon whom the cost of the continuance could be imposed. Therefore the provision of section 7244 for a continuance before trial has no application to the facts of this case. We are confronted with the fact that the trial court ordered these adjournments of its own motion. If Judge Clements had appeared and tried the cause on January 6, no complaint could have been made. The periods covered by the several adjournments, including .the adjournment to January 6, equaled, but did not exceed, twenty days. The twenty days from December 16 would have expired on January 5, but for the fact that January 5 was Sunday, and, under the rule of computation of time prescribed by the Code, that day is excluded. If, then, the court lost jurisdiction, it resulted from the postponement of the cause for trial from January 6 to January 8; and that this is the theory of counsel for respondent is evidenced by the recital in their brief: “The hearing of the contest was not begun until more than twenty (20) days had elapsed, to wit: on January 8, 1913. The term of court could only continue for twenty (20) days; the twenty (20) days having elapsed on January 6, 1913, and no. hearing having been had or commenced, the special session of court which had been called, ended, and the court lost jurisdiction.”
The orders postponing the trial from January 3 to January 4, and from January 4 to January 6, even if erroneous, were orders made within jurisdiction, and in the absence of any showing of injury or inconvenience to the contestee arising therefrom, they are to be treated as errors without prejudice; and the same rule would be invoked as to the postponement to January 8 if it was accomplished by an order which the court had authority to make. So that by this process of elimination we reach the only serious question presented, viz.: Did the postponement of the trial to a date more than twenty days from the day on which the special session was convened work a discontinuance of the proceeding? The answer to this involves a consideration of two other questions:
(1) Is the duration of the special session which is authorized by section 7241 to be held to determine an election contest limited to twenty days? This inquiry must be answered “Yes” or “No.” If the term is so limited, the limitation is absolute; for there is not any provision for extending it. The words “session” and “term” are used here interchangeably. They are both employed in section 7241 to meet the condition arising from the different situations of different courts within this state. In a judicial district such as the second, comprising but a single county, there are no terms of court; while in a district compromising more than one county there are terms. The word “session” is employed for a court within a district of the first class, and the word “term” for a court within a district of the other class; but the two words as here used mean the same thing. If the duration of the special term or special session is fixed by hard-and-fast rule to twenty days, then any act performed in the matter after the expiration of that period would be coram. non judice and void. (11 Cyc. 735.) If this cause had been brought to trial on January 3 before Judge Pierson, there cannot be any question of the right of the court to proceed. However, if contestee’s theory of this statute is correct, the court would then have had but three days within which to complete the trial, and, if at the expiration of January 6 the trial was not completed, the mere expiration of that day would ipso facto work a dissolution of the special session of court and a discontinuance of the proceedings, even though neither party nor the'court was at fault. Such a result ought not to be reached unless the language of the statute leads inevitably to that end. While the manifest purpose of the statute is to secure a speedy hearing of election contests, it is certainly of more consequence that a contest instituted in good faith be determined upon its merits, and that the very right of the case be ascertained, than that the controversy be ended speedily without regard to right or wrong.
In support of their view counsel for contestee cite English v. Dickey, 128 Ind. 174, 13 L. R. A. 40, 27 N. E. 495, but the decision was upon a statute which is quite different from ours, and one whose terms seem to lend support to the position taken. The statute considered by the Indiana court authorizes the trial board to grant continuances “not exceeding twenty days altogether.” Of this the court said: “In our opinion it was the intention of the legislature that the entire time given to the consideration of a contested election ease by the board of county commissioners should be twenty days altogether.” There is not anything in our Code which limits the special term or special session to twenty days or at all. The language of section 7244, above, is that the court “may adjourn from day to day until such trial is ended.” As indicated above, the limitation upon the power of the court to grant a continuance for not more than twenty days applies only when an application by one party has been made for cause. The provision is reasonable, and its pur pose is to prevent either party from having recourse to delay merely for the sake of delay. Our conclusion is that the decision of the Indiana ease above is not authority upon the question of the construction of our statute, and that there is not any limit fixed by the Constitution or laws of this state to the special term or special session of court called to determine an election contest.
(2) Has the trial court authority of its own motion to postpone the trial of an election contest before the actual commencement of the trial? The position of counsel for eontestee is, in effect — though not in terms — that the court does not have such authority, and support for this view is found in the declarations of the supreme court of California in construing statutory provisions similar to our own. In Dorsey v. Barry, 24 Cal. 449, there-was presented the single question: Has the trial court authority to grant a new trial in an election contest case ? The supreme court very properly determined that such authority was not lodged in the court and annulled all proceedings subsequent to the judgment confirming Barry’s election. With that decision itself there cannot be any fault found; but, notwithstanding there was not involved any question of the power of the trial court to grant a continuance, and no continuance had been had, the supreme court, by dictum pure and simple, undertook to construe the provisions of the California statute similar to those of our section 7244, and said: “In section 62 of the Act, provision is made for the continuance of the special term, not exceeding twenty days, upon good cause shown before the commencement of the trial; and it further provides that after the commencement of the trial it may be continued from day to day until such trial is ended. The continuance in those two eases being provided for, all further power of continuance is excluded.”
Counsel also cite Norwood v. Kenfield, 34 Cal. 329, but the only question involved there was the power of the judge at chambers to grant a continuance of the trial of an election contest after the special term had been fixed and before the trial had actually commenced. The supreme court there very properly denied to the judge the power which he sought to exercise.
Counsel for contestee rely with great confidence upon the decision in Keller v. Chapman, 34 Cal. 635. In that case, after the trial of the contest had proceeded for two days, the trial court, on contestant’s motion and over the objection of the contestee, granted a continuance for seven days. The supreme court refers to the dictum in Dorsey v. Barry, quoted above, and makes it the foundation for its further observations as follows: “The summary nature of the proceedings is inconsistent with the exercise of the general discretionary power of granting continuances possessed by courts in civil actions. The expression of the particular mode and time of continuance is exclusive of all non-enumerated modes and times. The continuance from the 6th of the month, when the cause was on trial, to the 13th of the same month, against the objections of the respondent and without an affidavit showing cause, was unauthorized, and operates as a discontinuance of the proceeding.” We are unable to appreciate the force of that argument, and in our opinion the California court failed to grasp the meaning of the provisions of the statute involved. In Falltrick v. Sullivan, 119 Cal. 613, 51 Pac. 947, the decision in Keller v. Chapman is overruled in fact, though not in terms. In O’Dowd v. Superior Court, 158 Cal. 537, 111 Pac. 751, it was held that the provisions of section 1119 of the California Code of Civil Procedure (sec. 7242, Montana Rev. Codes) are directory merely. In Hagerty v. Conlon, 15 Cal. App. 643, 115 Pac. 762, the same rule was applied to the provisions of section 1118 of the California Code of Civil Procedure (sec. 7241, Montana Rev. Codes). In Busick v. Superior Court, 16 Cal. App. 499, 118 Pac. 481, the same rule was again applied to the provisions of section 1121, California Code of Civil Procedure, which are the same as the provisions of our section 7244, above. And in Moore v. Superior Court (Cal. App.), 128 Pac. 946, the doctrine of the Busick Case was reaffirmed. We are not required to adopt either theory thus advanced by the California court.
In onr opinion, the language of section 7244, above, is too plain to admit of the application of any rules of construction. All that this court is called upon to do is to declare that the legislature meant just what it said. The section provides that, when the court has met at the time and place designated for the special term or session, it “shall have all the powers necessary to the determination” of the contest. The only limitations upon that authority are found in the same section, viz.: (1) Before the trial commences, neither party may have a continuance, even for good cause shown, for more than twenty days; and (2) after the trial commences the only adjournment to be had is from day to day. That a court of record has authority of its own motion, and in the absence of statute, to adjourn the hearing of a matter pending before it, is the rule well-nigh universal (1 Ency. Pl. & Pr. 238); and that our own Codes recognize that rule as in effect in this state is manifested by the fact that in certain particular instances restrictions upon that power are imposed, as for instance, in section 8005. Since, however, there is not any restriction upon the power of the court of its own motion to adjourn the hearing of an election contest before the trial actually commences, we hold that the district court of Silver Bow county had authority to adjourn the hearing of this matter to January 8, and in the absence of any showing of an abuse of the court’s discretion or of prejudice resulting to the contestee, its action is to be approved. In holding that jurisdiction of this proceeding was lost by reason of the adjournment to January 8, the trial court erred.
The judgment is reversed and the cause is remanded for further proceedings.
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.
On December 2, 1916, William Moore executed and delivered to Oeo. L. Stephens his certain promissory note for $1,000. Before maturity Stephens indorsed and transferred the note to the First National Bank of Roundup. The bank commenced an action on the note against Moore and Stephens, and caused a writ of attachment to be issued and to be levied upon a stock of wines, liquors and cigars and certain saloon furnishings and fixtures. This relator made a third party claim to the property attached, but the plaintiff gave to the sheriff a bond of indemnity, and the sheriff retained possession. Upon application of the attaching creditor, the court ordered the sheriff to sell the attached property and deposit the proceeds in court to await judgment. Thereupon relator instituted this proceeding to prohibit the court from taking fúrther steps under the order of sale.
1. The respondent sheriff is not a proper party to this proceeding and must be dismissed. The writ of prohibition, when issued from this court, arrests proceedings of a judicial character only. (State ex rel. Scharnikow v. Hogan, 24 Mont. 379, 51 L. R. A. 958, 62 Pac. 493.) The sheriff is a, ministerial officer, and his acts are not subject to control by this writ. If it be a fact that the property levied upon belongs to this relator, his remedy for the wrongful seizure must run against the sheriff. The court below was not responsible for the act of the sheriff in levying the writ.
2. Assuming for the purposes of this proceeding that the relator is a person beneficially interested, though not a party to the action in the court below (Havemeyer v. Superior Court, 84 Cal. 327, 18 Am. St. Rep. 192, 10 L. R. A. 627, 24 Pac. 121; Cronan v. District Court, 15 Idaho, 184, 96 Pac. 768), the question presented is: Does the application disclose such a set of circumstances as warrants the relief sought?
The writ of prohibition is an extraordinary judicial writ which issues, not as a matter of right, but only in the sound legal discretion of the court. (State ex rel. Lane v. District Court, 51 Mont. 503, L. R. A. 1916E, 1079, 154 Pac. 200.) It is to be used sparingly for the furtherance of justice and to secure order and regularity in the inferior tribunals. It arrests proceedings of a judicial character when such proceedings are without or in excess of jurisdiction (Rev. Codes, see. 7227), but it issues only when there is not a plain, speedy and adequate remedy in the ordinary course of law (Rev. Codes, sec. 7228; State ex rel. Browne v. Booher, 43 Mont. 569, 118 Pac. 271).
The applicant must therefore assume the burden of showing that the court below is acting without or in excess of jurisdiction, and also that he has no plain, speedy and adequate remedy in the ordinary course at law. In this instance we think he has failed in both particulars.
The order of the district court directing the sale of attached property prior to judgment is the only proceeding of a judicial character which is attacked. Jurisdiction to order a sale of attached property prior to judgment is specifically conferred upon the court by section 6671, Revised Codes. To invoke that jurisdiction it must be “made to appear satisfactorily to the court or a judge thereof that the interest of the parties to the action will be subserved by a sale.” (Id.) The statute does not define the quantity or quality of proof necessary to move the court’s discretion or specify the particular facts from which the court is to determine that a sale will best subserve the parties’ interests. It is made to appear from the application for the order of sale that portions of the attached goods will depreciate in quality and value, that the licenses are expiring unused, and that the expense of keeping the property is continuing. We think the court might with propriety have required the facts to be set forth with greater particularity; but we are not prepared to say that the application was insufficient to move the court’s discretion.
The distinction is to be made between a sale of perishable property held under attachment, and a sale made in the interest of the parties. While it may be to the interest of all concerned that perishable property under attachment be sold in limine or before judgment, a sale of such property is made by the sheriff on his own responsibility under the authority conferred by section 6670, Revised Codes. It is only when attached property is sought to be sold under section 6671 that a showing is necessary, and the authority to sell is dependent upon an order of court. In this instance we think the showing and order are sufficient.
3. The relator’s petition for the writ of prohibition is further
deficient in that he failed to show that he has not a plain, speedy and adequate remedy in the ordinary course at law. There was available to him an independent action in claim and delivery, or in conversion; but if either of these was inadequate for any reason, he had a complete remedy by intervention in the original action where he might have had determined his right to or interest in the property. (Rev. Codes, sec. 6496; Dennis v. Kolm, 131 Cal. 91, 63 Pac. 141; Potlatch Lumber Co. v. Runkel, 16 Idaho, 192, 18 Ann. Cas. 591-594, 23 L. R. A. (n. s.) 536, and note, 101 Pac. 396; 2 Corpus Juris, 373; 2 R. C. L. 879; 4 Cyc. 725.)
It goes without saying that, if the defendants in the attachment suit have no interest in the property attached, the purchaser at the sheriff’s sale will not secure any'title; but this fact does not reflect upon the authority of the court to order a sale of whatever interest, if any, the defendants have.
The motion of the respondent court and judge is sustained. The alternative writ heretofore issued is quashed and the proceeding dismissed.
Dismissed.
Mr. Justice Sanner concurs.
. Mr. Chief Justice Brantly, being absent, did not hear the argument and takes no part in the foregoing decision.
|
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] |
MB. JUSTICE HOLLOWAY
delivered the opinion of the court.
On April 10, 1915, Bichard H. Kane and Margaret Kane, his wife, entered into a separation agreement which, among other things, provided that the wife, in consideration of $1,500 paid to her, relinquished all claims against the husband and his property, and agreed to support, maintain and educate the minor child, the issue of the marriage, at her own proper expense and without further cost or expense to the father. On the same day the wife was awarded a decree of divorce on the ground of extreme cruelty, but no mention whatever was made of the child. The father undertook to visit the child, but was prevented by the mother, and on May 20, 1915, he petitioned the court to modify the decree so as to permit him to see the child under such regulation as the court might impose, and to prohibit the mother from removing the child from Glasgow, where both parents then resided. In response to an order to show cause the mother answered, pleading the settlement agreement and alleging that it was understood by both parties to it that the mother was to have the exclusive custody of the child, and that the father was not to enjoy the privilege of visiting it; that the father’s visits are intended to and do annoy and vex the mother, and that the father is not a fit or proper person to associate with a child of such tender years. The answer concludes with a prayer that the father’s petition be denied, that the decree be modified so as to require the father to contribute to the support of the mother and child, and that the father be compelled to pay an attorney fee on account of the supplemental proceedings. At a hearing had, the father and mother testified at length. The court denied the father’s petition, but made no order upon the counterpetition of the mother. Prom the order made, this appeal is prosecuted.
There is not any controversy over the rules of law applicable, and practically no dispute as to the facts developed at the hearing. While there is some evidence which reflects unfavorably upon the father, it seems reasonably certain that it could not have been deemed sufficiently prejudicial of itself to warrant the order which, in effect, denies the father the right to see or communicate with his child altogether. As we understand the testimony, the mother’s objection to the father’s visits is not grounded upon the latter’s moral unfitness to associate with the child, but rather upon the fact that such visits annoy her and interfere with her work, and particularly upon the theory that, since under the separation agreement she is compelled to support the child, the father has no right to visit it so long as he does not contribute to its maintenance, and it must have been this theory which found favor with the court.
We are unable to agree with counsel for respondent as to the character of the proceeding instituted by the father in filing his
petition in the court below. Whatever may have been his intention in the premises, what he actually did was to invoke the jurisdiction of the court to modify the divorce decree so as to provide for the custody, control and education of the child (subjects omitted altogether from the decree as originally rendered), as authorized by section 3678, Revised Codes. It would be difficult to conceive of a legal proceeding to regulate the father’s visits to the child, independently of an order providing for its custody and control. Likewise the counterpetition of the mother, in legal effect, had the like purpose in view. It invoked the jurisdiction of the court to modify the decree so as to provide for the support and maintenance of the child. Under these circumstances, the welfare of the child should have been the paramount consideration with the court. (Brice v. Brice, 50 Mont. 388, 147 Pac. 164.)
Though the separation agreement is binding upon the parties to it and regulates their rights and obligations inter sese, it is not binding- upon either the child or the court. If its provisions for the care of the child are inadequate or become inadequate, the father may be called upon to supplement them by further contributions, notwithstanding the agreement by the mother releasing him from further costs or expenses. The child is the ward of the court, and, even if the parents agreed that the father should not enjoy the privilege of seeing his offspring, the court may nevertheless authorize him to visit it if the interests of the child will be thereby promoted.
The evidence does not support the mother’s contention that the father relinquished his right to see the child, or that she understood that he agreed to do so, and that such understanding on her part was a substantial inducement to her to enter into the separation agreement. She testified that though the terms of the agreement were discussed fully beforehand, she did not know that she was to have the custody of the child until the agreement was finally submitted for her signature.
The conditions under which the father’s visits may be made, the time, place and duration of them, his conduct during such visits, and the extent to which he may have the child in his custody, are all proper subjects for regulation by the court. It cannot be said that by the modification sought, the father gains a distinct advantage without any concomitant burden. When he submitted to the jurisdiction of the court, he was there for any proper order the court might make, and if the court requires him, as a condition precedent to his right to visit his child, that he make further reasonable contributions to its support, he will not be in any position to complain.
Since both father and mother applied for such modification of the decree as would provide for the child’s welfare as well as secure them in the rights to which they deem themselves entitled, and since it is apparent that the provisions of the contract are inadequate for either purpose, we think the court was called upon to make some appropriate order to meet those ends. Unless it can be said with reasonable certainty that the father is morally unfit to associate with the child, the dictates of humanity call for such regulations as will permit him to see his own offspring. “It must be borne in mind that the tie between parent and child is one of the most binding in human life, one which the law of nature itself has established. No legislation, no judicial interpretation of legislation, should lightly disregard the reciprocal duties of this relationship.” (State ex rel. Giroux v. Giroux, 19 Mont. 149, 47 Pac. 798.)
In our judgment, this record presents a case wherein the court failed to exercise its discretion when it should have done so, rather than a case wherein it abused its discretion.
While the court might, with propriety, forbid the mother to remove the child from the jurisdiction of the court, there was no such showing made, if indeed there could be, which would justify the court in compelling the mother to reside permanently in the same city as the father may choose as his place of residence.
The order is reversed and the cause is remanded, with directions to the trial court to take such further proceedings as will result in a proper modification of the decree, in conformity with the views herein expressed. Reversed and remanded. .
Mr. Chief Justice Beantly and Mr. Justice Sanner concur.
|
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MB. JUSTICE SANNEB
delivered the opinion of the court.
At the last general election, the appellant and the respondent were rival candidates for the office of clerk of the district court in and for Lewis and Clark county. Upon the final canvass the respondent was declared elected, and the appellant brought this proceeding to contest the result so declared. He failed to sustain his contest, and the court in its judgment, dismissing the same, awarded to the respondent $200 as attorney’s fees. The purpose of this appeal is to raise the question whether such award was warranted, and the appellant’s claim is that it was not, because: (a) There is no statute authorizing it; (b) if there is any such statute, the same is unconstitutional; (c) the award was made as against appellant’s sureties without giving them a day in court.
(a) This proceeding was brought under what is commonly called the Corrupt Practices Act, passed by the people at the general election of 1912 (Session Laws 1913, p. 593 et seq.), which provides, among other things, for contesting elections. Section 48 of this enactment is, in part, as follows: “Any petition contesting the right of any person to a nomination or election shall set forth the name of every person whose election is contested, and the grounds of the contest. * * * Before any proceeding thereon the petitioner shall give bond to the' state in such sum as the court may order, * * * conditioned to pay all costs, disbursements and attorney’s fees that may be awarded against him if he shall not prevail. If the petitioner prevails, he may recover his costs, disbursements and reasonable attorney’s fees against the contestee. But costs, disbursements and attorney’s fees, in all such cases, shall be in the discretion of the court, and in case judgment is rendered against the petitioner it shall also be rendered against the sureties on the bond. * * * ” Section 49 also provides: “ * * * If more than one petition is pending, or the election of more than one person is contested, the court may, in its discretion, order the cases to be heard together, and may apportion the costs, disbursements and attorneys’ fees between them. * * * ” We think the clear implication of these provisions is that the prevailing party, whether a petitioner or respondent, shall be entitled to attorney’s fees in addition to his other costs and disbursements, the amount to be awarded in that behalf to stand upon the sound discretion of the court. The language employed is not precise, but the greater part of it would have to be ignored to justify any other conclusion.
(b) This being their effect, can these provisions be upheld? Appellant insists they cannot for these reasons: They sub- . ject the unsuccessful party in an election contest to a penalty not visited upon other unsuccessful litigants, and therefore deny to him the equal protection of the laws guaranteed by- section 1 of the Fourteenth Amendment to the federal Constitution; they grant to the successful party in an election contest a special privilege not enjoyed by successful litigants in other cases, contrary to section 26, Article Y, of the state Constitution; they are violative of section 6, Article III, of the state Constitution, which provides that the courts of this state shall be open to every person and that justice shall be administered without sale, -denial or delay; and they constitute an attempt to delegate legislative power and authority to the courts.
To support the first two of these specifications, counsel rely upon Mills v. Olsen, 43 Mont. 129, 115 Pac. 33, and a number of eases from other jurisdictions referred to in that decision and cited in the brief of appellant here. In Mills v. Olsen, the constitutionality of section 7166, Revised Codes, authorizing an award of attorney’s fees to the successful claimant under a mechanic’s lien, was challenged; but this court, without express discussion or decision of the question, contented itself with approval of the reasoning of the authorities referred to. Typical of these authorities, and in fact the controlling case, is Gulf, C. & S. F. Ry. Co. v. Ellis, 165 U. S. 150, 41 L. Ed. 666, 17 Sup. Ct. Rep. 255, wherein a Texas statute authorizing the successful claimant of certain causes of action against railroad companies, to recover attorneys’ fees, was annulled as a denial of the equal protection of the laws. The grounds of this decision are thus interestingly stated: “It is simply a statute imposing a penalty upon railroad corporations for a failure to pay certain debts. No individuals are thus punished, and no other corporations. The Act singles out a certain class of debtors and punishes them when for like delinquencies it punishes no others. They are not treated as other debtors, or equally with other debtors. They cannot appeal to the courts as other litigants under like conditions and with like protection. If litigation terminates adversely to them, they are mulcted in the attorneys’ fees of the successful plaintiff; if it terminates in their favor, they recover no attorneys’ fees. It is no sufficient answer to say that they are punished only when adjudged to be in the wrong. They do not enter the courts upon equal terms. They must pay attorneys’ fees if wrong; they do not recover any if right; while their adversaries recover if right and pay nothing if wrong. In the suits, therefore, to which they are parties, they are discriminated against, and are not treated as others. They do not stand equal before the law. They do not receive its equal protection. * * * It is, of course, proper that every debtor should pay his debts, and there might be no impropriety in giving to every successful suitor attorneys’ fees. Such a provision would bear a reasonable relation to the delinquency of the debtor, and would certainly create no inequality of right or protection.” In our opinion, there is not the slightest analogy between the statute so incisively analyzed and the statute before us. The statute before us applies to all election contests, it treats the adverse parties thereto alike, and, if it would be proper to give attorneys’ fees to every successful litigant in actions to recover money, it is equally so to give attorneys’ fees to every successful litigant in actions brought to contest elections.
The appeal to section 26, Article Y, of the state Constitution, is also without merit. The provision there is: “The legislative assembly shall not pass local or special laws in any of the following enumerated cases, that is to say: * * * Granting to any corporation, association or individual the right to lay down railroad tracks, or any special or exclusive privilege, immunity or franchise whatever.” The Act before us does not grant or attempt to grant to any particular corporation, association or individual any special or exclusive privilege or immunity; it is a general law applicable alike to all persons within a class, and the provision invoked has nothing to do with it. Doubt no longer exists touching the right of the state through its legislature to classify, so long as such classification rests upon some difference which bears a reasonable and just relation to the matter in respect to which the classification is proposed (Gulf etc. Ry. Co. v. Ellis, supra; Hill v. Rae, 52 Mont. 378, et cit., 158 Pac. 826); and we think that election contests not only form a perfect class for special treatment because of their intimate relation to a matter of great public concern, but they also present special reasons for the particular discrimination here involved.
Nor does section 6 of Article III of the state Constitution-afford any objection to the award in question. In Wortman v. Kleinschmidt, 12 Mont. 316, 30 Pac. 280, a similar criticism was leveled at the statute allowing attorneys’ fees to claimants under mechanics’ liens; but it was held to be unavailing. True, the later case of Mills v. Olsen — accepting it as decisive — overturned a similar statute, but the reasoning invoked had to do with the guaranty of the equal protection of the laws. As a decision against the application of section 6, Article III, Wort-man v. Kleinschmidt is still in effect.
The argument against the statute as delegating to the courts the power to say when attorneys’ fees may and when they may not be allowed in election contests, falls to the ground in view of the conclusion above announced that the discretion of the court goes only to the amount which shall be allowed in each instance.
(c) Appellant is not in position to complain that his sureties have not had their day in court. As long as they have not appealed and are apparently satisfied, their situation is no concern of his.
The judgment is affirmed.
'Affirmed.
Mr. Justice Holloway concurs.
Mr. Chief Justice Bbantly, being absent, did not hear the argument and takes no part in the above decision.
Rehearing denied April 23, 1917.
|
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HONORABLE R. LEE WORD,
a Judge of the First Judicial District, sitting in place of the Chief Justice, delivered the opinion of the court.
All the questions raised by the assignments of error are resolved in favor of the respondents, except one, and that is: Is there any evidence in the record showing or tending to show that the vein from which the ore was taken has its apex within the Ripple lode? In view of the admitted fact that the ore extracted came from beneath the surface of the Tom Hendricks and Sixteen to One claims, respondents concede that the burden is upon them to establish their right to go within the boundaries of said claims and extract ore. Have the plaintiffs and respondents discharged this burden resting upon them? Have they established by competent or any evidence the existence, within the lines of their claim, of the apex of the vein or of that portion of the vein from which the defendants extracted the ore sued for? Upon this point the evidence offered by plaintiffs is in substance as follows:
John "W. Wade testified that he had surveyed the Ripple lode and the tunnels, shafts and upraises made by plaintiffs in the working and development of that claim. That Exhibit “C” for plaintiffs was a map of the Ripple lode, showing these workings, drawn to scale, and also included the Sixteen to One and a portion of the Tom Hendricks claims; that the Ripple vein has a north and south course and dips east into the mountain; that in a little tunnel about twenty feet long, near corner No. 4 of the Ripple lode, and within that claim, there is a well-defined vein about eighteen inches or two feet wide; that this vein carries ore, has a dip to the east of about twenty feet in a hundred, and, in the opinion of the witness, is the apex of the Ripple vein and the apex of the vein from which the ore wag taken beneath the surface of the Sixteen to One and Tom Hendricks lodes; that upon Exhibit “C” the witness has drawn a red line marked “Apex as Developed by Surface Openings,” to indicate the cropping or upper edge of the apex of the Ripple vein; that the dotted line at the south end of the claim is an extension of the south end line, marked “3” and “4,” in the same direction; that the lines in red, marked “Big Snowy Tunnel,” indicate the workings of the defendants beneath the surface of the Sixteen to One and Tom Hendricks claims. The witness concludes that the vein in the little tunnel near corner No. 4 is the apex of the Ripple vein and the same vein from which the ore in dispute was taken, because it has about the same dip and the same character of ore as has the vein disclosed in the Big Snowy Tunnel; because the vein in the little tunnel is on a line with the upraises from the vein to the surface farther north in the Ripple claim; for that the cross-cuts on the surface, and made by the Joki tunnel for a distance of nearly two hundred feet, and by the Tom Hendricks tunnel, run by the defendants, show that there is no other vein than the Ripple vein from which the disputed ore could come; that the Ripple vein always dips into the mountain, — that is, to the east; that the veins below and to the west dip to the west, and that there is no other vein which could apex in the little tunnel near comer No. 4 except the Ripple vein; that most of the openings where they took the dip of the vein are necessarily short, but that the dips show a trend out of the ground that will bring the apex into the red line marked “Apex as Developed by Surface Openings”; that in the Lower Tunnel, at a point marked “E-F,” about 755 feet north of corner No. 4, the vein is almost vertical; that beyond the south end line of the Ripple claim the development work done by defendants shows that the vein turns southwesterly, and the dip of the vein is about sixty-one feet in a hundred, and that, keeping that dip, it would apex below where it does apex near corner No. 4 of the Ripple lode; that at the point “C-D” upon the map about 390 feet north of comer No. 4, the Lower Tunnel is about 250 feet deeper than the Pierce-Westgard Tunnel; that in this distance the variation is thirty-one feet; that the Pierce-Westgard Tunnel is 140 feet deeper than the Weidell Tunnel, at the point “C-D,” and that between these tunnels at this point the vein dips from twenty to twenty-five feet; that from the Weidell Tunnel to the surface there is an upraise eighty feet in length, marked “Weidell Upraise”; that the dip of the vein between the surface and the Weidell Tunnel is about thirty feet.
On cross-examination the witness Wade testified in substance as follows: That the Weidell Tunnel is about 160 feet above the Westgard Tunnel; that at the point “C-D” there is no upraise from the Westgard Tunnel to the Weidell Tunnel; that the top of the Linquist upraise is 141 feet above the Westgard Tunnel, figured vertically; that at the point marked “E-F Upraise to Surface” the vein is vertical between the Lower Tunnel and the Westgard Tunnel, and between the Westgard Tunnel and the surface there is a dip of fifteen feet, or twenty feet in a distance of eighty feet, and below it is nearly vertical; that at the Weidell upraise it is 161 feet from the Westgard Tunnel up to the Weidell Tunnel, and from the Lower Tunnel up to the Westgard Tunnel it is 253 feet; perpendicularly it is about thirty feet shorter, the dip being about ten feet in a hundred; that at the point “C-D,” the last cross-seetion going south, there is more variation between the tunnels than at any other point; that at the point where the Lower Tunnel as projected crosses the south end line of the Ripple claim, it is 253 perpendicularly, and about thirty-five feet laterally below the Westgard Tunnel; that at the point where the Joki Tunnel cuts the vein it is about ninety feet vertically, and about fifteen feet laterally, above the Westgard Tunnel; that the red line marking the theoretical apex is about sixty-five feet from where the Joki Tunnel crosses the drift on the vein; that the witness has no knowledge of the Ripple vein coming to the surface at any point between the Weidell upraise and the south end line of the Ripple claim, a distance of 387 feet; that the witness does not know where the vein exposed in the Joki Tunnel — the uppermost tunnel — comes to the surface; that the vein shows in the south drift from the Joki Tunnel for a distance of 112 feet; that the south end of this drift from the Joki Tunnel is not directly over the Westgard Tunnel, but very close to it; that it lacks two, or three, or five feet of being directly over that tunnel; that the perpendicular distance from the south end of this drift to the Westgard Tunnel is about 120 feet; that the vein continues beyond the south end of the drift; that the lead may turn to the right, but the vein continues; that at the most southerly part in this drift from the Joki Tunnel, as shown upon the map Plaintiff’s Exhibit “C,” the Westgard Tunnel, the Barker Winze below the Westgard Tunnel, and the Joki Drift, are almost in a perpendicular line, that is to say, the vein disclosed in each is nearly perpendicular; that the lead after it leaves the Ripple claim on the south makes an abrupt turn to the right, of forty-five degrees, and shows a slope of sixty-one degrees, to the end of the Ripple; that in the little tunnel near corner No. 4 of the Ripple, the vein is eighteen or twenty inches wide; that the little tunnel runs across the vein; that the vein dips into the hill; that only five- or six feet of this vein are exposed; that the vein has a dip of twenty-one or twenty-two feet to the hundred — a very decided dip; that this little tunnel is fifteen or sixteen feet from corner No. 4; that the difference in elevation between the point where the apex line — the red line — crosses the south end line and the Westward Tunnel is 325 feet; that in this distance there are no developments to show where the vein is; that we have a measurement of twenty-three feet to the hundred between defendants’ and plaintiffs’ workings, which, if maintained to the surface, would bring the apex close to the vein in the little tunnel near corner No. 4.
On further cross-examination, the witness Wade testified that at the point “H,” about 210 feet north from corner No. 4, the pitch from the Westgard Tunnel to the Joki Tunnel is eight feet in a hundred; that the pitch from the Joki Tunnel to the theoretical apex is about sixty feet in a hundred; that the witness wishes the jury to understand that at the point “H” he has no idea or conception or belief that the apex of the vein at that point would reach the apex indicated by the red line; that to what extent the actual apex will leave the theoretical apex line between the Weidell upraise and the end line of the claim cannot be told; that the wave of the lead as indicated below and particularly as indicated at the point beyond the line of the Ripple ground, might do anything and still reach what is the apex right here in the little tunnel; that it is all theoretical except from “this point to this point.” “Q. When you say ‘this point,’ what do you mean? A. I mean the point over the Weidell upraise. It is all conjecture as to the actual position beyond the development in the lower tunnel. Q. Does the vein in the little tunnel dip to the point marked ‘3’ at the southerly end? A. No. It dips to the east. It is not my contention, and not that of any of our witnesses, that the little vein has the same dip of the other one. It is all conjecture as to the actual position beyond the development in the lower tunnel, or that the other one maintains its dip until it reaches there. I am sure it will not. After it reaches this point it will rise a short distance and then will strain up and fall back as it always does. Q. Now, Mr. Wade, it being 375 (387) feet from the Weidell upraise — your last observation and this little tunnel — and approximately 400 feet from that tunnel down to the Big Snowy Tunnel, and all that is undeveloped; nothing to show the trend or dip of the vein, and as you say these veins are liable to dip over and strain up, how can you base any theory upon which you can say to the jury that the apex is in any particular place? A. Well, it is impossible for any mortal man to tell to what extent that vein will wave and in what particular manner it will come to the surface and reach the point we have indicated here. In what manner it will reach there no mortal man can tell until it is developed and run through; but it is plain to my mind that it does reach there, because this apex belongs to something, and if it doesn’t belong to something else in the neighborhood, it must belong to this lead.”
Other witnesses called by plaintiffs gave support to the testimony of Mr. Wade upon the question here considered. Gus Weidell, a witness for plaintiffs, testified on his direct examination that at the point in the Big Snowy Tunnel, referred to by both Wade and Leininger as a place where the vein had its greatest dip, there did not seem to be any walls; that there were no solid walls. Charles W. Helmick testified that there was a vein definitely disclosed on the north side of the little tunnel near corner No. 4; that the ground at that point was pretty badly shattered; that there was a more or less defined wall on the east side; that the vein was fifteen or twenty inches wide, with an eastern dip.
A summary of plaintiffs’ evidence discloses that, in the little tunnel near corner No. 4, the ground is pretty badly shattered; that this tunnel is about twenty feet long; that a vein is disclosed therein having a more or less defined wall on the east side; that this vein has not been developed laterally; that it dips to the east; that the nearest surface opening on the vein is'the Weidell upraise, 387 feet north; that the next point where the Ripple vein comes to the surface is the'Linquist upraise, 210 feet north of the Weidell upraise and that the next and last point where the vein reaches the surface is the Pierce and Westgard upraise, 165 feet north of the Linquist raise; that at the Pierce and Westgard upraise the lower tunnel is about 250 feet below the Westgard Tunnel, and the Westgard Tunnel is about ninety feet below the surface. The Weidell Tunnel at the Wei-dell upraise is about eighty feet below the surface; the Westgard Tunnel about 140 feet below the Weidell Tunnel, and the lower tunnel about 250 feet below the Westgard Tunnel. At the point where the Jobi Tunnel cuts the vein, the distance to the surface is about ninety feet; the Westgard Tunnel is about 190 feet below the Jobi Tunnel at this point, and the lower tunnel about 240 feet below the Westgard Tunnel. At the Pierce and Westgard upraise the vein is vertical between the lower and the Westgard tunnels; and between the Westgard Tunnel and the surface, a distance of about ninety feet, the vein departs thirty feet from the vertical. At the Weidell upraise the vein dips about forty feet between the lower tunnel and the Weidell Tunnel, a distance of about 390 feet; from the Weidell Tunnel to the surface the dip of the vein is greater. Going south from the Weidell upraise, the vein straightens up. At a point about forty feet north of the line of the Ripple claim between corners 4 and 5, the vein is nearly vertical, and it maintains this position for a distance of 150 feet or more, going south, in and through the ground claimed by the defendants.
It is to be noted that at the place in the defendants’ claims from which the disputed ore was mined, east of, and a distance horizontally of about 120 feet from the vein in the little tunnel, and over 400 feet beneath the surface, the vein is nearly vertical; and that, if it maintains the same dip to the surface, it will come up within the surface boundaries of defendants’ claims. From the whole evidence offered by plaintiffs, we conclude that it does not appear even probable that the apex of the vein from which the ore was taken is within the Ripple claim. Going south from the Weidell upraise toward the vein in the little tunnel, a distance of 387 feet, no one can say from the development now upon the Ripple claim where the Ripple vein will apex, much less that it will apex in the red line marked upon the map, “Apex as Developed by Surface Openings.” True, as disclosed in the Pierce-Westgard and Weidell upraises, the dip oí the vein is greater as it nears the surface; but at no point south of the Weidell upraise does the vein as it appears in the tunnels or the stopes have a dip which, if maintained to the surface, would bring it out on or near the theoretical apex line. At the south end'of plaintiff’s claim the vein is nearly vertical. It is nearly vertical in the Big Snowy Tunnel, driven by the defendants, and does not make a turn or bend to the west until beyond the point where it is cut by plaintiffs’ south end-line continued in its own direction. At most we have an opinion or belief declared by plaintiffs’ witnesses that in some way, not made to appear by any development work now existing, the apex of the vein from which defendants took the ore sued for is in plaintiffs’ claim, and is shown in the little tunnel near corner No. 4. But this vein in the little tunnel has never been developed so much as a foot beyond the tunnel walls. Whether it persists or disappears; whether it straightens up or flattens out, are all matters of conjecture.
If plaintiffs had been found extracting ore from a vein beyond their side-lines and beneath the surface of defendants’ claims, the presumption would be against them, and prima facie they would be trespassers until they made it appear that they got there by following the lode on its dip from its apex within their lines. In order that a vein may be followed extra-laterally, identity throughout is essential. (Butte & Boston Min. Co. v. Lexington, 23 Mont. 177, 75 Am. St. Rep. 505, 58 Pac. 111.)
Not only are the defendants prima facie entitled to all ore beneath the surface of their claims (Maloney v. King, 25 Mont. 188, 64 Pac. 351; Parrot S. & C. Co. v. Heinze, 25 Mont. 139, 87 Am. St. Rep. 386, 53 L. R. A. 491, 64 Pac. 326; Maloney v. King, 30 Mont. 158, 76 Pac. 4; Anaconda Copper Min. Co. v. Pilot-Butte Min. Co., 52 Mont. 165, 156 Pac. 409)., but as a working hypothesis it is fair to assume, in the absence of a contrary showing, that the vein or veins there found will continue to extend upward at the same angle as exhibited below. (Brewster v. Shoemaker, 28 Colo. 176, 89 Am. St. Rep. 188, 53 L. R. A. 793, 63 Pae. 309, 311.) In any event, ore presumptively belonging to defendants, because beneath the surface of their claims, cannot rightfully be taken from them, for that the owners of an adjoining claim have produced witnesses who entertain the opinion that the vein containing the ore has its apex in this adjacent claim, and this presumption which attends defendants “is not overturned by speculative conjecture or intelligent guess.” (Heinze v. Boston & M. etc. Min. Co., 30 Mont. 484, 488, 77 Pac. 421; Collins v. Bailey, 22 Colo. App. 149, 125 Pac. 543.)
That plaintiffs might, by work done upon their vein from its apex down to the disputed territory, furnish substantial evidence that their claims, as to the identity of their vein with the vein found in defendants ’ ground, are well founded need not be questioned here; it suffices that they have failed to present such evidence in this suit; and as it appears they have presented all the evidence at this time available to them, it follows that the judgment should be reversed and the cause remanded with directions to dismiss the complaint. It is so ordered.
Reversed and remanded.
Mr. Justice Sanner and Mr. Justice Holloway concur.
Rehearing denied June 28, 1917.
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] |
HONORABLE R. LEE McCULLOCH,
a Judge of the Fourth Judicial District, sitting in place of the Chief Justice, delivered the opinion of the court.
This action was brought to recover on a promissory note executed and delivered by defendant Ingle to plaintiff, and to foreclose a chattel mortgage, given to secure the same. From the judgment, in so far as it denied plaintiff any relief as against defendant Parham, and from an order refusing a new trial, these appeals are prosecuted.
The plaintiff alleges that defendant Wirak leased a band of ewe sheep to defendant Ingle for a term of three years. Ingle was to perform certain services and pay certain expenses incident to the care of the flock, and, in payment and reimbursement therefor, to receive one-half the wool clip and one-half the lambs; the wool to be divided each year at the shearing-pens and the lambs to be divided when weaned, on October 1 of each year; the title to the lambs to be in defendant Wirak until division was made as stipulated in the agreement. All shortage in the original stock was to be made good by Ingle at shearing time each year, by furnishing ewes of the age of those lost, or, at the option of Ingle, to replace such loss by giving three ewe lambs for every two ewes lost. At the end of the third year Ingle was to replace the original stock with ewes of a certain age, and the original stock was then to become the property of Ingle. A.t shearing time in 1912 (the third year) the original stock had been diminished to the extent of some 800 head, which Ingle was obliged to replace, but which he did not replace, then nor at any other time.
In January, 1912, Ingle executed and delivered the promissory note and the chattel mortgage sued upon, and the mortgage was duly filed for record. From the pleadings it appears that prior to October 1, 1912, defendant Parham contracted with defendant Wirak for the purchase of all the lambs belonging to the band of sheep in question; that Parham had knowledge at the time of the interests of Ingle in the lambs, but had no actual knowledge of the existence of the chattel mortgage at the time of the purchase by him of the lambs; that the lambs were delivered to Parham after October 1 and by him immediately delivered to one Bailey, to whom he had sold them; that after delivery of the lambs, and before Parham paid the purchase price, he was informed of the existence of plaintiff’s chattel mortgage, and was directed by Ingle to pay the plaintiff the amount due him for his one-half of the lambs; that, owing to the failure of Ingle to replace the sheep missing from the band, Wirak demanded payment of all the money to him, and Parham paid it to Wirak, instead of to the bank.
The trial court found, along with other facts, that in the latter part of August, 1912, Wirak, with the consent of Ingle, contracted with Parham for the sale of the lambs, and at the same time informed Parham of Ingle’s interest; that in the latter part of September Wirak was informed and had knowl edge and notice of plaintiff’s chattel mortgage. Among its conclusions of law, the trial court declared that the sale of the lambs to Parham operated as and effected a division of the lambs as between Wirak and Ingle, and that each of them thereby became entitled to one-half of the proceeds of the sale; that the filing of the mortgage, owing to the indefinite description of the property did not impart notice to Parham; that the sale of the lambs from Wirak to Parham was completed when the delivery was made to Parham; that when Parham first learned of the mortgage he had sold and delivered the lambs to one Bailey, and that Ingle and Wirak were present at and knew of such sale and delivery; that Parham was not then in possession, nor had he any interest in them; that plaintiff, by its agent, Ingle, having consented to the sale and assisted in the delivery of the lambs to Parham without informing him of its mortgage, and not having given Parham notice of its claim prior to his sale and delivery of the lambs to Bailey, is estopped from asserting any claim against defendant Parham. Judgment was awarded against Ingle, but in favor of Parham. No judgment was sought against Wirak.
At the time Ingle executed and delivered the chattel mortgage to plaintiff, had he any interest in the increase of the flock that could be mortgaged?
The contract provided that the shortage of ewes was to be made good by replacement at shearing time; that the division of lambs was to take place on October 1, and that .the title to the lambs was to remain in Wirak until the division of them was made. If the language of the contract were strictly construed, Ingle would have no title or interest in the lambs until October 1, even had he at shearing time made good all shortages occasioned by losses occurring in the original band during the previous year. From shearing time to October 1 Ingle would be compelled to care for a large band of lambs in which he had no interest. Notwithstanding the language of the contract to the effect that title was to remain in Wirak until division, the intention of the parties was evidently that Wirak was to have a lien upon the lambs to secure the faithful performance by Ingle in the way of replacement of lost stock. Wirak alleges in his answer: “That it was the intention of said parties to said contract that the provision above mentioned, as to the title to said lambs remaining in defendant Louis L. Wirak until the same were divided, should stand as security to said Louis L. Wirak for the performance of the obligation of said Ernest Ingle assumed by him in said contract, including the obligation to make good the loss on the original stock as above mentioned; * * * that said plaintiff! took said mortgage with full knowledge of the terms of said contract made and entered into by and between said Louis L. Wirak and Ernest Ingle, and did thereby take said mortgage subject to the equities of defendant Louis L. Wirak.”
If the right Wirak was intended to have, and which he and Ingle understood he had, was a mere equity, to-wit, security for performance of Ingle’s agreement to replace stock on account of losses, then the title to the lambs was not in Wirak, but, instead, he had a lien upon the lambs for the performance of that particular part of the contract, and Ingle had the title. Assuredly Wirak could not hold his own- property as security for the performance of an obligation Ingle owed to him. He certainly so understood when he contracted with Parham for the sale of the lambs and informed Parham of Ingle’s interest; and Ingle certainly so understood when he mortgaged his interest in the lambs to plaintiff. The parties themselves having construed the contract so as to express their intentions, and having acted in accordance therewith, the court will adopt the construction they placed upon it.
Aside from this, the contract gave Ingle a certain interest in the original sheep, being the right not only to the possession and care of them, to the end that they might yield an increase from which he could receive pay for his services, but also the right to become owner of the original stock by substitution of other stock therefor. Title became vested in a particular one-half of the lambs or the proceeds thereof when, as the court concluded, a division was effected by the sale and delivery to Parham on October 10.
Wirak had no knowledge of the existence of the chattel mortgage until the latter part of September, which was shortly before the delivery of the sheep to Parham. When the division of lambs between Wirak and Ingle took place, Wirak had notice of plaintiff’s mortgage; yet he saw fit to consent to a division oi the lambs, which divested him of his lien upon them. The division of the lambs did not divest Wirak of the right to have the losses of original stock made good by Ingle, but it did divest him of the security he had for the making good of such loss; so that the mortgage of the bank, which up to that time was subject to the lien of Wirak, was no longer so as between Wirak and the bank.
Another conclusion of law made by the trial court is that, since a delivery of the lambs was made by Wirak and Ingle to Par-ham, and also by Parham to Bailey — Bailey being a purchaser from Parham — with the knowledge of Wirak and Ingle, before Parham became aware of the bank’s mortgage, and the sale between Wirak and Parham being complete, there is no liability on the part of Parham to the bank, although Parham had notice of the mortgage before he paid the money to Wirak. This is not correct, because it overlooks the proposition that the division of the lambs effected a waiver by Wirak of his security upon Ingle’s share and operated to vest in Ingle the right to dispose of the proceeds. When, therefore, Ingle directed the payment of his share of the purchase money to the bank, that direction was in effect a verbal assignment which Parham was bound to honor, and upon which the bank could maintain its action.
Moreover, Parham was not an innocent purchaser for value. An innocent purchaser is one who pays, or obligates himself to pay, the full purchase price of property to the vendor, with no notice of any claim or right to the property in another. (4 Words and Phrases, p. 3629; 5 Cye. 719; 24 Am. & Eng. Ency. Law, 2d ed., p. 12.) Assuming that Wirak made the sale to Parham, and that Ingle was not known in the transaction, as respondents’ attorneys contend in their brief, and that Parham then obligated himself to Wirak for the payment of the full purchase price, he was not an innocent purchaser so far as Ingle was concerned, because he then knew that Wirak was not the sole owner of the lambs, and he also knew that Ingle had some property right in them, and the extent of that right. Knowing, when he first obligated himself to Wirak, that Ingle was a part owner of the lambs, knowing, when the lambs were delivered, that Wirak had no right to receive the entire purchase price, and learning, before he had paid the purchase price, that the bank held a mortgage executed by Ingle, it is difficult to understand how Parham could be an innocent purchaser as to the bank.
Touching the asserted estoppel, these reflections are pertinent: If, as the trial court found, Ingle, at the time of the delivery of the lambs to Parham, was acting as agent of plaintiff in the delivery, plaintiff having previously consented to the sale of the lambs, it necessarily follows that Ingle, as agent for plaintiff, was in possession of the lambs. If the plaintiff was in possession of the lambs just prior to their delivery to Parham, it must have been by reason of the mortgage. Under this theory, it was Ingle who consented to the sale being made by plaintiff who was selling them under the mortgage. Just how this condition of affairs would estop plaintiff from asserting any claim against defendant Parham, in view of the want of any showing that he was misled to his prejudice is by no means clear. (Yellowstone County v. First Trust & Savings Bank, 46 Mont. 439, 128 Pac. 596.) It follows that plaintiff was entitled to judgment against defendant Parham.
The judgment and order appealed from are therefore reversed and the cause is remanded, with directions to enter judgment accordingly.
Reversed and remanded.
Mr. Justice Sanner and Mr. Justice Holloway concur.
|
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
In October, 1915, Lewis and Clark county had outstanding registered warrants against its several funds, aggregating in amount $100,000. Of this amount $32,077.82 represented road warrants issued for work done during 1914 and 1915 prior to June 14, 1915, on the public highways outside of the corporate limits of the city of Helena — the only incorporated city in the county. The board of county commissioners proposed to retire all of this warrant indebtedness by issuing and selling coupon bonds of the county to the like amount without having submitted the question to a vote of the electors, and plaintiff, a resident taxpayer within the city of Helena, instituted this proceeding to enjoin the issue of bonds to the extent of the $32,077.82 represented by the road warrants. The cause was submitted upon an agreed statement of facts. The trial court found for the defendant, and plaintiff appealed from the judgment which denied him any relief.
It is claimed by appellant, and conceded by respondent, that the property of appellant situated within the corporate limits of the city of Helena is not liable to taxation to pay the road warrants. It is conceded by both parties, as it must be, that if county bonds are issued to retire these warrants, such bonds will evidence an indebtedness of the entire county, and all taxable property of the county, including plaintiff’s property situated within the city of Helena, will be liable to taxation to pay these bonds and the interest thereon. It is the contention of appellant that his property cannot be subjected to taxation to discharge this indebtedness, by the mere subterfuge of changing the form of the evidence of the indebtedness without his consent, and that the county cannot issue refunding bonds without having the question submitted to and approved by a vote of the electors affected.
To justify the board in seeking to issue these bonds without consulting the electors affected, recourse is had to section 8, Article XII, of the Constitution, and section 2905, Revised Codes, as amended by an Act approved February 26, 1915 (Laws 1915, p. 47). The section of the Constitution referred to provides: “Private property shall not be taken or sold for the corporate debts of public corporations, but the legislative assembly may provide by law for the funding thereof, and shall provide by law for the payment thereof, including all funded debts and obligations, by assessment and taxation of all private property not exempt from taxation within the limits of the territory over which such corporations respectively have authority.”
Our Constitution is not a grant, but a limitation of power. Section 8, Article XII above, means nothing more than that the legislature is prohibited from enacting any statute under which private property may be taken to pay the debts of a public corporation, such as a county or city. Aside from this limitation the legislature was left free to enact such measures as it deemed best touching the subject matter under consideration. If it failed to act at all, there is no power other than public opinion which can coerce it into activity. The provision of the Constitution is addressed to the legislature, not to the board of county commissioners, and justification for the board’s action must be found in the statutes, if such action can be justified at all.
A county is but a political subdivision of the state for governmental purposes, and as such is at all times subject to legislative regulation and control, except in so far as the Constitution has placed limitations upon the law-making power. (Hersey v. Neilson, 47 Mont. 132, 131 Pac. 30.) Within those limitations the legislature may circumscribe or extend the powers to be exer cised by a county, as it sees fit.
The statutes constitute the charter of a county’s power, and to them it must look for the. evidence of any authority sought to be exercised. (7 E. C. L. 936.) The only statute upon which respondent relies, and the only one which furnishes even a semblance of justification, is section 2905, Eevised Codes as amended, above. That section provides: “The board of county commissioners of any county is hereby vested with power and authority to issue and negotiate on the credit of the county, coupon bonds to an amount sufficient to enable the county to redeem all legal outstanding bonds, warrants or orders; or for the purpose of necessary public building sites and for the construction of necessary public buildings, public highways,” etc.
In the days of the territory many general and special statutes were enacted to enable counties to borrow money, and to refund their outstanding indebtedness. A limit to the amount of indebtedness which might be incurred was always set, and before bonds could be issued for certain specified purposes the consent of the electors was necessary. Section 786, Fifth Division, Compiled Statutes 1887, authorized the county commissioners of any county to issue county bonds to redeem outstanding warrants or orders. Subdivision 4 of section 756 clothed the board with authority to borrow money upon the credit of the county in a sum sufficient to erect county buildings or to supply a deficit in the county revenues; but section 795 required that the question of borrowing money for either purpose mentioned in subdivision 4 above must first be submitted to a vote of the electors of the county. By an Act approved March 4, 1891, section 795 was amended to read as follows: “The board of county commissioners of any county may, when in its judgment it is advisable for the county to incur indebtedness or liability for any single purpose in an amount exceeding ten thousand dollars ($10,000), submit the question to the qualified electors of the county”; and section 808 was amended so as to authorize the issuance of refunding bonds and, upon a favorable vote of the electors, bonds for other purposes. (Laws 1891, p. 226.) In Hotchkiss v. Marion, 12 Mont. 218, 29 Pac. 821, it was held that under those statutes the question of issuing refunding bonds need not be submitted to a vote of the electors. This was the law when the Codes were adopted in 1895.
Title II, Part IV, of the Political Code, dealt with the subject: “The Government of Counties.” Section 4240 of that Title gave to the board of county commissioners authority to issue on the credit of the county coupon bonds to an amount sufficient to enable it to redeem all legal outstanding bonds, warrants or orders, etc. Section 4270 of the same Title declared that the board of county commissioners must not borrow money for any of the purposes mentioned m this Title or for any single purpose, to an amount exceeding $10,000 without an approval of a majority of the electors of the county. By an Act approved February 27, 1905, section 4240 above was amended to include other purposes for which bonds might be issued, and as thus amended that section became section 2905, Revised Codes, and section 4270, without amendment became section 2933, Revised Codes. By the Act of February 26, 1915, section 2905 was amended to further extend the scope of the purposes for which bonds may be issued. Section 2933 has not been changed since it was enacted in 1895 or re-enacted in 1907. The amendment to section 2905 did not alter in any respect the provision authorizing the county commissioners to issue bonds for refunding or retiring outstanding indebtedness, and under the rule of construction provided by the Codes (sec. 119, Rev. Codes), the portion of section 2905 relating to that subject is to be considered as having been the law from the time when it was first enacted.
We are, then, to determine the authority of the board to issue refunding bonds, by reference .to section 2905 and section 2933, Revised Codes. The two sections are parts of the same legislative enactment, treat of the same subject matter, and are to be construed together. The first contains a general grant of power — the power to issue county bonds for refunding and other enumerated purposes. The latter specifies the conditions under which the power granted may be exercised if the amount of the loan is to exceed $10,000.
The language of section 2933 cannot be misunderstood: “The board of county commissioners must not borrow money for any of the purposes mentioned in this Title or for any single purpose to an amount exceeding ten thousand dollars without the approval of a majority of the electors of the county, and without first having submitted the question of a loan to a vote of such electors.” “The purposes mentioned in this Title” include all the purposes enumerated in section 2905, for both sections are parts of the same Title. But we are asked to construe this phrase in the light of its historical antecedents — in other words, to declare that the language quoted above does not mean what it says, but was intended to comprehend only the limited number of subjects mentioned in subdivision 4 of section 756, Fifth Division, Compiled Statutes of 1887. This we cannot do. The language is altogether different from that employed in the territorial statute, and in reviewing the history of the Act we cannot close our eyes to the fact that after this' court had interpreted the former provisions, in Hotchkiss v. Marion, the legislature deliberately saw fit to make the radical change in phraseology, thereby furnishing the very best evidence that it was the intention to establish a rule different from the one announced in that case. The language, “for any of the purposes mentioned in this Title,” is as comprehensive as it can be made. The commissioners cannot borrow money to refund outstanding indebtedness exceeding ten thousand dollars, by the issuance of bonds or otherwise, without having first obtained the approval of the electors of the county.
If the commissioners issue and sell these bonds, will they thereby borrow money within the meaning of section 2933 above? We think counsel for respondent have confused the ideas expressed in section 5, Article XIII, of the Constitution, and section 2933. The Constitution declares: “No county shall incur any indebtedness or liability for any single purpose to an amount exceeding ten thousand dollars ($10,000) without the approval of a majority of the electors thereof, voting at an election to be provided by law.” In Hotchkiss v. Marion above, and in Palmer v. City of Helena, 19 Mont. 61, 47 Pac. 209, it was held that the issuance of refunding bonds merely changed the form of the evidence of pre-existing indebtedness and did not involve the creation of any new indebtedness within the meaning of the constitutional provision above. That inhibition of the- Constitution is directed to the legislature. Our legislature is one of inherent, not of delegated, powers, and the restraint laid upon the lawmakers in that instance does not operate to prevent them from imposing upon the counties further limitations in the management of county finances. Acting upon the authority reserved to it, the legislature has provided that a county shall not borrow money for any of the purposes mentioned in section 2905, to an amount exceeding ten thousand dollars, without the consent of the electors who must bear the burden of providing the funds for repaying the loan.
The terms “incur indebtedness or liability,” as used in the Constitution, are not synonymous with the term “borrow money,” used in section 2933. (7 R. C. L. 944-951.) It is apparent to anyone that the indebtedness represented by the road warrants will not be discharged by issuing bonds and from the proceeds paying off the warrants and that no new indebtedness will be incurred. The indebtedness will remain but the evidence of it will be changed from the warrants to the bonds. The transaction is not unlike that of the individual who gives his note for an indebtedness represented by a due-bill or open account, or who borrows from A to pay B. The indebtedness still exists though it may be evidenced by a different instrument, payable to a different creditor or more effectively secured.
Section 5, Article XIII above, has to do with the creation of new indebtedness or liability. The provision for funding an existing indebtedness is found in section 8, Article XII, where the entire subject is referred to the legislature. While it is true that by issuing and selling these bonds to take up the warrants, no new indebtedness will be incurred, it is equally true that when the bonds are sold and the money received, the transaction has amounted to nothing more nor less than borrowing money from the purchaser of the bonds. (Commonwealth v. Select and Common Council of Pittsburg, 34 Pa. 496; The Legal Tender Case, 110 U. S. 421, 28 L. Ed. 204, 4 Sup. Ct. Rep. 122; Scipio v. Wright, 101 U. S. 665, 25 L. Ed. 1037.) This is the sense in which the term “borrowing money” is used throughout our Codes. Indeed, a county cannot borrow money in any other manner than by issuing its bonds or other evidence of indebtedness, and in our opinion it was to prevent just such a transaction as the one contemplated by respondent that section 2933 was enacted. Whether the legislation is wise or otherwise is not a matter of our concern. Section 5, Article XIII, has to do only with the creation of new indebtedness, while section 2933 relates to borrowing money, whether the money borrowed is to be used to refund existing indebtedness or for any other purpose mentioned in the Title of which that section forms a part.
If the commissioners were permitted to complete the issue and sale of these bonds, they would borrow $100,000 on the credit of the county without the consent of the electors and without having submitted the question of a loan to a vote of the electors, and all in violation of the express prohibition of section 2933.
Appellant also invokes the provisions of Chapter 141, Laws of 1915, but in view of the conclusion already reached, we deem it unnecessary to consider that Act. Under the facts agreed upon, the plaintiff is entitled to the relief sought.
The judgment is reversed and the cause is remanded, with directions to enter a decree in favor of the plaintiff.
Reversed and remanded.
Mr. Chief Justice Brantly and Mr. Justice Sanner concur.
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PER CURIAM.
Pursuant to motion of appellant, the appeal herein is dismissed.
|
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] |
MR. JUSTICE SANNER
delivered the opinion of the court.
In August, 1889, the city of Livingston passed Ordinance No. 24, the effect of which, as amended by Ordinance No. 25 enacted within thirty days thereafter, was to grant to C. S. Stebbins, Isaac Orschel and Samuel Bundock, their successors dr assigns, “the privilege of. constructing and maintaining waterworks in the city of Livingston, * * * and thereby supply said city with as good and wholesome water for public and private uses as can be taken from the main Yellowstone River in the vicinity of Livingston on the following terms and conditions.” The terms and conditions which follow require that the schedule rates set forth in the ordinance shall not be exceeded; that the plant to be constructed shall be adequate as completed and shall be enlarged as may be necessary; that the city shall take from the grantees and be furnished by them with all the fire hydrants it needs, not less than a certain minimum number, and with water therefor, at a specified annual rental “for the full term of twenty years”; that certain conditions touching the free use of water by the city, the use of the public streets, avenues, alleys and parks by the grantees, the character and extension of its mains and laterals, the equipment of its plant, the maintenance of a definite fire pressure, and certain other features of service, shall be observed; and it is provided that in case the grantees or their successors shall fail at any time and for a period of sixty days “to comply with any material term, condition or stipula tion of this ordinance,” unavoidable delays and accidents excepted, the city shall have the right to terminate the contract. By section 6 of the ordinance the grantees agree to give the city the option to buy the plant at any time after the expiration of twenty years from its completion, under certain conditions; and section 7 provides: “At the expiration of twenty years from date of the completion and testing of said waterworks, if the city of Livingston does not purchase said waterworks upon above terms, it shall renew the contract with said Stebbins, Orschel and Bundock, their heirs or assigns, for twenty years longer upon such terms as are mutually agreed upon at that time, provided that such shall in no case exceed the prices fixed and stipulated by this ordinance, nor shall the renewal of such contract in any case annul the operation of this ordinance in its full force, effect and control of said Stebbins, Orschel and Bun-dock, their'heirs or assigns, as herein provided.”
The plaintiff below, pleading the passage of this ordinance and the execution of an agreement to comply with its terms, further alleges that the plaintiff is the successor of the grantees named therein; that the waterworks contemplated thereby were completed and accepted in July, 1890, since which time and by means whereof the city and its inhabitants have been supplied with pure and wholesome water in accordance with the terms of said ordinance; that, although more than twenty years have since elapsed, the city has not exercised the option to purchase and has refused to renew said contract; that in the erection and maintenance of said waterworks plant large sums of money have been expended, and since the expiration of said twenty-year period the city has required the plaintiff and its predecessors in interest to make certain improvements and extensions to said waterworks system which they have done, expending large sums of money in that behalf in reliance upon said provision requiring said city to renew said contract for a period of twenty years additional; that the plaintiff is willing to agree upon a fair, reasonable and just schedule of rates to form the basis of renewal and to enter into a contract accordingly, but the city declines and refuses to make any effort to agree upon suck schedule; that in consequence thereof plaintiff is subjected to irreparable and incalculable injury — for which reasons it is prayed that the court fix such rates itself or through reference to the Public Service Commission, and that the city, its mayor and board of aldermen, be compelled to enter into a renewal of said contract.
The defendants answered, contesting the right of the plaintiff to relief on many grounds, amounting to these: That the plaintiff has not performed said contract, that said contract was unreasonable and void in its inception, and that the provisions for renewal are not enforceable.
Upon the trial, which was to the court sitting without a jury, much evidence was presented, including testimony which tended to show that in times of fire the pressure has not been adequate nor anywhere near the contract requirements, of which fact the city repeatedly complained, and that the plaintiff was not disposed to negotiate for terms of renewal save upon the basis of the same or increased rates. The trial court found that plaintiff had failed to make a case for specific performance, and that defendants were entitled to judgment on the merits. Such judgment was entered, and from it, as well as from an order denying its motion for new trial, plaintiff has appealed.
We think it unnecessary to canvass all the questions presented in this ease. Clearly, the fundamental one is the force and effect of section 7 quoted above; for, unless there is a duty to renew in virtue of the provisions of this section, the other considerations suggested as supporting the judgment are relatively unimportant.
It is to be observed that the contract, as originally made, was apparently fo run only for twenty years; at the end of which time the city bound itself to either purchase the plant or to “renew the contract * * * for twenty years longer upon such terms as are mutually agreed upon at that time, provided that such shall in no case exceed the prices fixed and stipulated. by this ordinance.” That an agreement to enter into an agreement upon terms to b.e afterw;ard settled between the parties cannot, as a general rule, be enforced, is the settled law of this state. (Rev. Codes, see. 6102; Long v. Needham, 37 Mont. 408, 423, 96 Pac. 731; Monahan v. Allen, 47 Mont. 75, 130 Pac. 768.)
The appellant, conceding this, insists that “the renewal of a contract implies that the terms shall remain unchanged”; that the true meaning of the clause is “the contract was to continue for another period of twenty years, subject to an adjustment of rates”; and therefore the present case is not within the general rule above stated, but is within a recognized exception to that rule, as shown by the cases referred to below. This seeks to avoid one difficulty by encountering another equally serious. The clear contemplation of the contract, as created by the ordinance and its acceptance, is that the grantees, their successors and assigns, should have the exclusive right to supply the municipal needs of the city; and, upon the appellant’s interpretation, this right is to endure for forty years, subject only to an adjustment of rates at the end of twenty years.' As no such contract was within the power of the city (Davenport v. Kleinschmidt, 6 Mont. 502, 528 et seq., 13 Pac. 249), we cannot assume without convincing reasons that any such contract was intended.
In point of fact, the terms of the contract comprehend other things besides rates or prices. They stipulate conditions of quality, quantity, distribution, pressure; in short, the elements that go to make up “service” supposed in 1889 to be adequate to the needs of the city for twenty years, but which the experience of that time might demonstrate to be either inadequate or unnecessary. Had it been the intention to tie the hands of the parties in relation to all these matters, leaving only the matter of rates or prices for adjustment, the statement of that intention could have been made as plain as counsel now make it in their brief. It is quite true that the terms to be agreed upon “shall in no case exceed the prices fixed and stipulated by this ordinance,” but this does not make terms and prices synonymous. It merely attempts by fixing a maximum to limit the scope of any agreement upon terms, so far as the terms to be agreed upon have to do with prices. In our opinion, therefore, the words “renew the contract” do not mean an extension of the same contract for the additional period, subject only to a rate adjustment; they were used to signify that, in case the city did not purchase the plant, there should be further contractual relations between the parties for an additional period of twenty years touching the same subject matter and having in view the same general purposes, but with such differences in terms — with all the word implies — as the experience of twenty years might lead the parties to insist upon. If this interpretation be correct, the judgment was proper, because the appellant neither alleged nor attempted to prove any disposition to agree upon terms in this sense, but only upon “a fair, reasonable and just schedule of rates.”
Assuming, however, that the only terms to be agreed upon were rates, it does not follow of necessity that the stipulation to renew can be specifically enforced — and this because these terms were to be such as the parties themselves should fix. Rates or prices are generally an essential feature of a contract, though the mode of ascertaining them may not be; and, when they are left uncertain, the contract cannot be enforced unless they can be made certain by means provided in or contemplated by the contract itself. The existence within the contract of a method or means, by which uncertain terms may be made certain, forms the basis of the exception invoked, as appellant’s authorities abundantly show. (See Arnot v. Alexander, 44 Mo. 25, 100 Am. Dec. 252; Tscheider v. Biddle, 5 Dill. 58, Fed. Cas. No. 14,210; Gunton v. Carroll, 101 U. S. 426, 25 L. Ed. 985; Coles v. Peck, 96 Ind. 333, 49 Am. Rep. 161; Central Trust Co. v. Wabash Ry. etc. (C. C.), 29 Fed. 546; Joy v. St. Louis, 138 U. S. 1, 34 L. Ed. 843, 11 Sup. Ct. Rep. 243; Springer v. Borden, 154 Ill. 668, 39 N. E. 603; Union Pac. Ry. Co. v. Chicago, M. & St. P. Ry. Co., 163 U. S. 564, 41 L. Ed. 265, 16 Sup. Ct. Rep. 1173; Kaufmann v. Liggett, 209 Pa. 87, 103 Am. St. Rep. 988, 67 L. R. A. 353; City of Fayetteville v. Fayetteville Water Co. (C. C.), 135 Fed. 400; Bristol v. Bristol Waterworks Co., 19 R. I. 413, 32 L. R. A. 740, 34 Atl. 359; Castle Creek Water Co. v. Aspen, 146 Fed. 8, 8 Ann. Cas. 660, 76 C. C. A. 516; Slade v. City of Lexington, 141 Ky. 214, 32 L. R. A. (n. s.), 201, 132 S. W. 405.)
The earliest of these cases is Arnot v. Alexander; but the oldest precedent referred to by any of them is Hall v. Warren, 9 Yes. Jr. 605, decided in 1804, and this, for present purposes, may represent the genesis of the exception in question. Hall v. Warren was a bill for specific performance of an agreement executed by Warren, to sell an advowson and estate to Hall at such price as the advowson should be valued at by Mr. Morgan, and the other premises by persons to be nominated. The principal question was the competency of Warren to contract; but, some contention having been made that the contract was not enforceable, because of uncertainty in the price to be paid, the Master of the Eolls (Sir William Grant) said: “The contract is produced and proved. Upon the face of it nothing appears to prevent execution. * * * It fixes no value upon the estate, but it provides a mode in which the value is to be ascertained that is perfectly fair and equal between them ’ ’ — and he directed that issue be made and the cause be tried upon the question of sanity.
In addition to this ease, Arnot v. Alexander cites two pertinent decisions from Missouri, viz., Blackmore v. Board-man, 28 Mo. 420, decided in 1859, and Garnhart v. Finney, 40 Mo. 449, 93 Am. Dec. 303, decided in 1867. In each of these eases there was involved and held enforceable a covenant for the periodical renewals of a lease, which did not fix the rentals for the renewal periods, but did provide how such rentals should be fixed, to-wit, by appraisement in the lease specially provided; and Arnot v. Alexander is itself exactly similar, except that, instead of a formal appraisement, the rentals were to be determined by the agreement of the parties or by what “any other responsible parties will agree to give.” The court, deeming that to be certain which can be made certain, said: “Leaving the amount of rent for the renewal term of the lease to be ascertained by what responsible parties would agree to pay for the use of the prem ises fixes the rent with as much certainty a though it were to be determined by a board of appraisers to be selected by the parties to the lease. # * * The standard of valuation would be the same in both cases, to wit, the rentable market value of the premises at the time the valuation should be made.” Upon this theory, Tscheider v. Biddle, Gunton v. Carroll, Coles v. Peck, Springer v. Borden and Kaufmarm v. Liggett were similarly decided. They also disclose stipulations to renew leases or to convey real estate at a valuation to be fixed by appraisers; and though in nearly all of these cases the appraisement was defeated either by the refusal of the defendant to act, or by circumstances beyond the control of both parties, relief was allowed because the stipulations were held to express an intention to reach a fair and reasonable value — something capable of being made certain as well by the court as by appraisement.
Analogous to these decisions, and based either upon them or upon like considerations, are several of the other cases cited— though dealing with contracts of quite different character. Central Trust Co. v. Wabash Ry. etc., and Joy v. St. Louis, are the same — comprehending the decision on circuit and the decision on appeal. The subject matter was an agreement for a right of way across Forest Park, near St. Louis, wherein it was provided: “Said party of the second part shall permit, under such reasonable regulations and terms as may be agreed upon, other railroads to use its right of way through the Park and up to the terminus of its road in the city of St. Louis, upon such terms and for such fair and equitable compensation to be paid to it therefor as may be agreed upon by such companies. ’ ’ The supreme court, holding the matter of “reasonable regulations and terms” to have been settled by contemporary agreement, disposes of the unsettled question of compensation by saying: “Although the statement is that the compensation is to he such ‘as may be agreed upon by such companies’ yet the statement that it is to be ‘fair and equitable’ plainly brings in the element of its determination by a court of equity.” So, too, the case of Union Pac. Ry. Co. v. Chicago, M. & St. P. Ry. Co., enforcing an agreement for the joint use of a railway bridge and tracks, lays emphasis on the fact that the conditions of such joint use were not only to be reasonable and just at all times, but were to be settled by referees in case the parties should not be able to agree.
In Bristol v. Bristol Waterworks Co. there was enforced a contract to install a system of waterworks and supply the town of Bristol with water for fifty years, with the proviso that the town might at its option purchase the waterworks at any time after ten and within fifteen years for a fair and reasonable price to be agreed upon by the parties or fixed by a majority of appraisers, one to be appointed by the town, one by the waterworks, and the third by the two so chosen. The waterworks were installed, and at the proper time the town signified its desire to purchase; but the company refused either to negotiate or appoint an appraiser. On a suit by the town for specific performance, it was held that, forasmuch as the stipulation was to sell at a fair price, the manner in which such price should be ascertained was not so essential that the right of the town could be defeated by the arbitrary refusal of the company to do what it ought to do. And this ruling, with the reasoning employed to justify it, was followed in Fayetteville v. Fayetteville Water Co., presenting a similar stipulation, and in Castle Creek Water Co. v. Aspen, wherein the valuation by appraisers was to be based upon the “productive worth” of the plant. In the last-mentioned decision, Judge Sanborn' collates the precedents, and from them concludes: “The stipulation for a determination of the price by appraisers in case of a sale was neither a condition nor the essence of the agreement nor of the contract of sale. It was an incident of each, a stipulation not of substance, but of mode. Moreover, the contract prescribes the standard by which the price shall be measured. It provides that it shall be based upon the productive worth of the waterworks, and not upon their cost. The stipulation for appraisers, therefore, is but a designation of the method of the selection of those who shall take the necessary accounting, and apply this measure for the determina-. tion of the price. The ascertainment of this standard of measurement is necessarily conditioned by an accounting of the income and expenses of the waterworks during a reasonable length of time anterior to the date of sale, and a calculation from this accounting and from the net income it will disclose of the productive worth of the property. The consideration and settlement of issues dependent upon the taking of accounts composed of many items is one of the great heads of equity jurisprudence, and the appointment of an accountant, the examination and confirmation of his report, are the ordinary functions of the chancellor. The stipulation for the choice of appraisers is therefore merely incidental to the contract of sale,- and it provides for an act which may be well and wisely performed by a court of equity.”
Thus far the development and application of the exception invoked are reasonably harmonious, since all the cases appeal to an intention expressed in the contract to resort in the last analysis to some standard or method other than the bargaining of the parties themselves. Slade v. City of Lexington, however, is a distinct departure. There, as here, the contract was to furnish a city with water for a term of years, with the option to the city to buy the plant at the end of the term, and declaring that, if the city did not elect to buy, the contract should be renewed for a further period “on terms as mutually agreed on at that time.” The original period being about to expire, there was much conference between the city authorities and the water company, resulting in a renewal contract upon terms satisfactory to both and upon which renewal the parties were then acting. The renewal was sought to be annulled at the suit of a taxpayer, and the court, assuming that an agreement to renew upon terms to be agreed upon is a nullity, sought refuge in the exception here invoked, holding the stipulation to imply that the terms were to be “fair and equitable” and so within the cases referred to above. To our minds, this was unnecessary. An agreement to renew on terms to be agreed upon is simply riot enforceable, because the court cannot compel the parties to agree nor make an agreement for them; but the uncertain term can be made certain by agreement of the parties, and, if they choose to agree, the difficulty is surmounted and the agreement is complete. In such a case no need exists for thrusting into the contract a condition not expressed by the parties nor — in our judgment — implied by them, since they reserve to themselves the right to bargain; and the right to bargain means the right to negotiate for and settle upon terms which a court might or might not consider entirely “fair and equitable.” Any other conclusion vests with courts the power to make contracts for parties in every instance. There was not in that case, as there is not in this case, any intention expressed or implied to permit the settlement of the terms of renewal to be determined by any other agency than the parties themselves nor upon any other consideration than their free assent. Because in the Slade Case the parties did so agree and thus complete the contract, we may respect the final conclusion there declared; but, as an application of the exception here invoked, we must decline to follow it. In so doing, we conceive ourselves supported by the eases considered above as well as by other abundant authority. (Pomeroy on Specific Performance, secs. 148, 149, 150, 151, and citations; 36 Cyc., p. 959, sec. 7; Id., p. 596, secs, “b” and “c,” with citations; 26 Am. & Eng. Ency. of Law, 37, see. 5.)
The suggestion is made, however, that since the law now confers upon the Public Service Commission of this state the power and authority to make rates to be charged and to regulate and control the service to be given by water companies, and since the terms agreed upon for renewal by the parties, if they had agreed, would be subject to the control and regulation of that commission, the clause in question “amounts simply to an agreement for a renewal of the contract upon such terms or at such prices as said commission may prescribe.” The answer is: We are here concerned with a matter of contract, and no such thing was within the contemplation of the parties when the contract was made. It is the contract which was made that is sought to be enforced; and, granting that whatever terms the parties might have agreed upon would be subject to control by the Public Service Commission, this would not dispose of the fact that the renewal they agreed to make was one upon terms they themselves might fix.
Some stress has been laid upon the special appeal to equity said to arise out of the circumstances that the construction and maintenance of the water plant have entailed great expense, and that since the expiration of the twenty-year period, the appellant and its predecessors have made costly enlargements at the behest of the city. Nothing was done within the twenty-year period that was not required by the contract to be done, and nothing that was then done can authorize the courts to command either party to now do what they cannot be compelled to do. Since that time the renewal has been the subject of negotiation or controversy, and the nearest approach to an agreement upon terms has been the appellant’s expressed indisposition to consider any terms save rates, or any rates except those fixed by the ordinance or increased ones. If, therefore, the appellant and its predecessors have expended further moneys in reliance upon their view of the force and effect of the renewal clause, if they have chosen to depend upon a provision which cannot be enforced, they can hardly claim to have been misled by the conduct of the city to their prejudice. The appellant is simply left without a contract, and relegated to its rights and duties as a public utility, just as any water company is whose contract has expired. It must rest content in the fact that, possessing the only source of supply in Livingston, it may continue to furnish that city and its inhabitants with all the water needed by them, upon a fair and reasonable basis — at least until competition, lawfully established, shall compel it to share the field.
The judgment and order appealed from are affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
Rehearing denied January 25, 1917.
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MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
During the year 1913, under the provisions of Chapter 112 of the Laws of 1911 as amended by Chapter 133 of the Laws of 1913 (Laws 1911, p. 205; Laws 1913, p. 484), providing for the formation of new counties, Fallon county was created out of territory theretofore included in Custer county. The organization of the board of commissioners of 'the new county was perfected on December 8, 1913. The board at once gave to the governor the notice required by section 6 of the Act. As therein provided, the governor appointed three commissioners to ascertain and declare the proportion of the indebtedness of Custer county outstanding at the date of the organization of Fallon county, which should be paid by the latter, as provided in section 7 of the same Act. The three commissioners so appointed were John Oliver, residing at Ekalaka, Fallon county; Thomas Wear, residing at Miles City, Custer county; and Henry Mullendore, residing at Glendive, Dawson county. On January 2, 1914, the commissioners convened at Ekalaka, then the county seat of Fallon county, and, having effected an organization by choosing Mullendore for their chairman and T. S. Garlow for their secretary, proceeded to perform the duty enjoined upon them. On February 2, Mullendore and Oliver, a majority of the commissioners, certified the result of the proceedings in a report in duplicate to the respective boards of commissioners of Custer and Fallon counties. They found Fallon county indebted to Custer county in the sum of $44,486.20. This result was reached by the majority by pursuing the method of adjustment pointed out by section 7 of the Act. In ascertaining the value of the property to be included in the adjustment, with the county courthouse, the county poor farm, moneys in the treasury, etc., they took into account and treated as property belonging to Custer county several steel bridges recently constructed or then substantially completed, whereas, if these bridges had been disregarded and omitted from the adjustment, Fallon county would have been found to be indebted to Custer county in a much larger sum. In a minority report made by Commissioner Wear, who thought that all bridges should be excluded, the amount due from Fallon county was found to be $113,919.96. Thereupon the commissioners of Custer county, deeming themselves beneficially interested, applied to the district court of that county for a writ of certiorari to have the adjustment, as certified by Mullendore and Oliver, reviewed and modified in so far as bridges had been considered county property and included in it. Upon service of the writ the- defendants appeared and moved for an order quashing it, and dismissing the proceeding on the ground that the court was without jurisdiction to issue and determine it. The motion having been denied, the court heard the controversy upon a return of the record of the proceedings of the commissioners, aided by explanatory statements under oath by Mullendore and Oliver. It held that bridges are not'county property within the meaning of the statute, and modified the result reached by the majority report, by excluding all bridges. It also modified the report in other minor particulars, and adjudged the amount due from Fallon county to be $105,190.15. The cause is before this court on appeal from this judgment.
The first 'contention made by defendants is that, however erroneous may have been the result reached by the majority of the commissioners, the error cannot be corrected by certiorari. “A writ of review may be granted by the supreme court (and in proceedings for contempt, in the district court, by any justice of the supreme court), or by the district court or any judge thereof, when an inferior tribunal, board, or officer, exercising judicial functions, has exceeded the jurisdictionmf such tribunal, board, or officer, and there is no appeal nor, in the judgment of the court any plain, speedy and adequate remedy.” (Rev. Codes, sec. 7203.) That the writ may be successfully invoked under this provision it is indispensable that it appear (1) that the inferior court, tribunal, board or officer the validity of whose action is questioned has exceeded its or his jurisdiction; (2) that there is no appeal; and (3) that there is no plain, speedy or adequate remedy other than certiorari. (State ex rel. Whiteside v. First Judicial District Court, 24 Mont. 539, 63 Pac. 395.) It may be conceded at the outset that the power vested in such commissioners under their appointment is judicial in its nature, and that their action would, in a proper case, be subject to review by certiorari, just as may be the action of a board of county commissioners in a like case. (State ex rel. Jacobson v. Board of County Commrs., 47 Mont. 531, 134 Pac. 291.) It may be conceded, also, that no appeal lay from the final action of the commissioners because the statute does not provide for one. Did the commissioners exceed their jurisdiction?
By referring to the statute defining the functions of the commissioners (sec. 7), we do not find any statement as to what shall be considered property of a county, nor any enumeration classifying the items to be considered by them. True, the phrase “property belonging to the old county,” and similar expressions employed therein, would seem to refer only to property owned by a county in its proprietary capacity, as distinguished from that in which it has only a qualified interest as trustee for the general public, such as public highways and the like. (Elliott on Eoads and Streets, 3d ed., sec. 52.) It is also true that this court has held that, in view of the express provision of the statute upon the subject (Laws 1913, sec. 3, Chap. 1, p. 139), a bridge is a part and parcel of the highway upon which -it is built (State ex rel. Foster v. Ritch, 49 Mont. 155, 140 Pac. 731; State ex rel. Donlan v. Board of Commrs., 49 Mont. 517, 143 Pac. 984) ; nevertheless we do not think that in including the bridges the commissioners exceeded their jurisdiction in the sense meant by the statute. They were empowered to make the adjustment. To accomplish this they were vested with the power to determine what was the indebtedness of Custer county, what property belonged to it, what part of this, if any, was within the boundaries of Fallon county, what was the value of all of it and, after making the proper charges to Custer county and deducting these from the gross sum of the indebtedness, to declare the balance due from Fallon county. This necessarily involved a determination of questions of law and fact, because otherwise no final result was possible. As is the case with all such bodies, they might err in their judgment, but it was within their power to decide the questions presented during the course of their deliberations. This implied the power to decide wrong as well as right with reference to any particular matter, and though their decision might be manifestly erroneous, they did not, to this extent, lose jurisdiction of the subject matter which they had under consideration. The error was error within jurisdiction. Otherwise, as was suggested in State ex rel. Whiteside v. First Judicial District Court, supra, the decision must have been right in any event, or there was excess of jurisdiction. The case is not made different by the fact that the legislature has not provided for an appeal or some other method of review. The defendants are right in their contention, and it must be sustained.
It should be sustained for another reason. When the commissioners had filed their report in duplicate with the boards of commissioners of Custer and Fallon counties, their power, so far as they could voluntarily act, ceased to exist. It could not thereafter be put in motion except by judicial process appropriate to compel the commissioners to reassemble and proceed in conformity with the law. The office of the writ of certiorari is to annul, modify or affirm the action of the inferior tribunal, board or officer to whom it is directed. (Rev. Codes, sec. 7210.) It cannot supply defects or restrain excess.
Recognizing the true scope of the writ, the court in this case did not go further than modify the result as reached by the commissioners; in other words, it merely declared the law which should have controlled the commissioners, by ascertaining what it found to be the correct balance. The result is that its judgment was for all practical purposes upon a moot question, and was not effective for any purpose. In pronouncing the decision, the presiding judge expressed the opinion that some other appropriate proceeding must still be resorted to in order to compel the board to reassemble and proceed in conformity with his view. In this he was correct, but should have declined to direct' a judgment which could not have any effective operation.
The foregoing remarks dispose of this case. It is not out of place, however, to notice briefly some of the other questions submitted for our consideration.
Counsel for the defendants contend that the decisions in State ex rel. Foster v. Rich and State ex rel. Donlan v. Board of Commrs., supra, are not conclusive of the ownership of the bridges in question,' because they had been or were being: constructed by the use of funds derived from the sale of bonds for this special purpose. We do not think there is any merit in this contention. In such cases, funds are designated as “special” because they have been provided by the sale of bonds by the board of county commissioners for the particular purpose of constructing bridges, after securing the consent of the electors. These funds may not be expended for any purpose other than that for which they have been provided. (Const., Art. XIII, see. 3.) But the method by which they have been provided does not in the least affect the relation of the county to the public property acquired by means of them. If such funds have been provided for county purposes, such as the erection of a county courthouse, title to the property for which they are expended vests in the county in its proprietary capacity. If, however, they have been provided for the construction, repair, or improvement of public roads, bridges, etc., the expenditure of them inures to the public benefit, just as does the expenditure the commissioners may make at any time for the same purposes out of the general funds of the county. If the highways belong to the public, it must follow that anything permanently affixed to them, either in the way of repairs or in the form of completed structures, such as bridges and the like, becomes a part of them, and as much of public right as the highways themselves. It is undoubtedly true that materials purchased by a county for the construction of a bridge, for instance,' belong to the county until they are affixed to the highway. After this has been done, however, especially after the structure is substantially completed, the right of the public is complete, because in legal theory the structure has become permanently affixed to the public property. A different situation might call for a different conclusion, such as when the structure has not been so far completed that it is of any practical use. In such a case it might well be said that the public right has not attached.
After this controversy arose, the legislature amended section 7 of the Act, supra, by providing that steel bridges in use for a shorter period than ten years shall be considered county prop erty. (Chap. 139, Laws 1915, p. 301.) The question presented here will therefore probably not arise again.
Counsel for plaintiff submit the question whether, if cer tiorari is not the proper remedy, mandamus may be successfully invoked. That the latter is the proper remedy we think is clear. “It may be issued * * * to any inferior tribunal, corporation, board or person, to compel the performance of an act, which the law specially enjoins as a duty resulting from an office, trust or station.” (Rev. Codes, sec. 7214.) Under the decisions in State ex rel. Foster v. Rich and State ex rel. Donlan v. Board of Comrnrs., supra, it was the manifest duty of the commissioners to include in the adjustment only property belonging to Custer county, and exclude all other. This latter they failed to do, thus being guilty of a delinquency affecting substantially the rights of Custer county. They then adjourned. In order to perform their duty correctly, they must reassemble and formulate another report, excluding the property improperly included. Mandamus, it seems, is the only remedy adequate to compel this result.
It is not to the point to say that the commissioners have adjourned and cannot now act. Their office cannot be considered ended until they have performed their duty properly. Until they have done this, they are not beyond appropriate legal process to correct their dereliction. Nor is it to the point to say that the writ will control their discretion or compel them to render any particular decision. They have no discretion in the matter. The writ should go whenever there is no speedy or adequate remedy in the ordinary course of law and the person seeking it is entitled to have the defendant perform a clear legal duty. (Raleigh v. First Judicial District Court, 24 Mont. 306, 81 Am. St. Rep. 431, 61 Pac. 991; State ex rel. Bean v. Lyons, 37 Mont. 354, 96 Pac. 922; State ex rel. Stuewe v. Hindson, 44 Mont. 429, 120 Pac. 485.) The decision in State ex rel. Mount-rail County v. Amundson, 23 N. D. 238, 135 N. W. 1117, cited by counsel for relators, exemplifies the use of mandamus in a case similar in its facts to the one in hand, and besides contains an instructive discussion of the ownership of bridges on the public highways, and the rights and duties of county commissioners in relation to them. It is entirely in accord with our own views, both as to rights involved and the remedy awarded.
All the parties have assumed throughout that this proceeding was properly instituted by the relators in their official capacity as commissioners of Custer county. Assuming that a taxpayer might have prosecuted it on behalf of the county, the county commissioners, as such, could not do so. The county is the real party in interest. It is a body corporate (Rev. Codes, see. 2870). Its powers are exercised by the commissioners, it is true (Rev. Codes, sec. 2871), but they are not therefore authorized to bring actions in their official capacity on behalf of the county. There is no provision of law authorizing them to do so. In the absence of such provision, the county by its corporate name is the proper party to bring “all actions and proceedings touching its corporate rights, property and duties.” (Rev. Codes, see. 2872.) Therefore the proceeding should have been brought in the name of the county.
The judgment is reversed, with directions to the district court to quash the writ and dismiss the proceeding.
Reversed.
Me. 'Justice Sanner and Me. Justice Holloway concur.
|
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] |
MR. JUSTICE SANNER
delivered the opinion of the court.
The essential facts in this case are as follows: That the plaintiff (appellant here) is a domestic corporation engaged, since November 20, 1914, in conducting a theater and moving-picture show on Montana Street, in the city of Butte, called the Empire Theatre, an enterprise dependent upon patronage of the public for its success; that the defendants consist of the “Musicians Mutual Union, Local No. 241, American Federation of Musicians, ’ ’ with all its members, not specially named, the Silver Bow Trades & Labor Council, with all its members, not specially named, and certain named persons (thirty-nine in number) sued individually and as officers and members of either the Musicians Union or the Trades & Labor Council; that the Musicians Union and the Trades & Labor Council are voluntary, unincorporated associations, the former of the character known as a labor union formed for the purpose of advancing the condition of its members, the latter a sort of central body composed of delegates from the various labor unions of Butte, the purpose of which is to give to them coherence, solidarity and concert of action, with the power and influence which flow therefrom; that the combined membership of the unions affiliated to the Trades & Labor Council is more than 1,000, and such entire membership is affected whenever that body acts, as it is authorized to do, in the ordering, prosecution and furtherance of strikes and boycotts, its activities in that behalf being binding upon all and enforced by means of fines, expulsion and other penalties; that prior to November 17, 1914, the Musicians Union made demand upon the manager of the Empire Theatre that he employ five members of said union, at a wage rate fixed by it, to play at every show or exhibition of pictures given in said theater; that this demand was refused and the union, in order to enforce compliance therewith, declared a boycott against the said theater, and caused to be, from that date until and including November 29, 1914, carried by a man in a conspicuous place on the sidewalk, immediately in front of said theater during the performances therein, a canvas banner about three by four feet in size, on each side of which was printed in large letters the words, “Notice: The Empire Theatre is unfair to organized Labor”; that for the purpose of making its boycott effective, the union solicited and secured tbe co-operation of tbe Trades & Labor Council, so that on November 29, said union, said Trades & Labor Council, and tbeir respective members combined to boycott the plaintiff and its business, and thus to prevent it from securing sufficient patronage to successfully carry on the same unless it would yield to said demand; that in furtherance of such combination the said Trades & Labor Council did, on November 29, 1914, order and declare such boycott, and have caused the banner above mentioned to be carried in a conspicuous place, immediately in front of the Empire Theatre and within eight or ton feet of and in front of the entrance thereto every day since the twenty-ninth day of November, 1914, on which a show or exhibition of any kind was produced therein, and have also, on almost every day since November 29, 1914, publicly announced and openly published orally to the public in general in Butte that persons who patronized said theater would be regarded by the labor unions of Butte as unfair to organized labor and have also caused, on every day since November 29, 1914, and until the service of the restraining order herein, one or more men to stand on and walk along the street in front of and near the Empire Theatre to say, and who did say, to persons about to enter said theater and desiring to do so, that the said theater was unfair to organized labor, and to request, and who did request, such persons not to patronize the same; that these things were intended and done by the defendants and understood by the public as a threat that all persons patronizing the said Empire Theatre would be regarded by the defendants as unfair to union labor, would be listed as such, and would be compelled to pay money to the said union as a penalty, or else be themselves boycotted by the respondents; and the respondents propose to continue these acts, save as prevented or restrained by order of court; that the result of these acts has been to prevent many thousands of persons, desiring to patronize said theater, from doing so, to irritate, annoy and vex the plaintiff and its employees, to prevent the profitable conduct of plaintiff’s business and almost destroy the same, and to cause the plaintiff great, irreparable and incalculable damage.
Upon these facts, as alleged with much elaboration, the plaintiff sought a decree, perpetually enjoining the defendants and all persons acting for or under them, or any of them, “from further continuing any of the acts” above referred to, “from further boycotting the plaintiff and its business,” “from boycotting any person who may hereafter patronize the said Empire Theatre,” and “from in any manner interfering with the business of the plaintiff or with any of the employees of the plaintiff in the discharge of their duties”; but the trial court, though finding the facts to be substantially as above stated, held the plaintiff not entitled to any relief, and entered a judgment of dismissal, from which this appeal was taken.
The denial of any relief was expressly based upon the prior decisions of this court in Lindsay & Co. v. Montana Federation of Labor, etc., 37 Mont. 264, 127 Am. St. Rep. 722, 18 L. R. A. (n. s.) 707, 96 Pac. 127, and Iverson v. Dilno, 44 Mont. 270, 119 Pac. 719, and the plaintiff, contending that the second part of the Lindsay opinion is obiter, insists that so much of both decisions as are really effective, as well as the later case of Peek v. Northern Pacific Ry. Co., 51 Mont. 295, L. R. A. 1916B, 835, 152 Pac. 421, command, upon the facts found, a result exactly opposite.
The portion of the Lindsay opinion asserted to be obiter holds that injunction does not lie to restrain the publication of a .circular denouncing an enterprise as unfair to organized labor, whether such publication emanate from one or from many persons, a conclusion which is assailed as altogether wrong. Considering how that case was presented, we cannot regard the part referred to as obiter. A comprehensive injunctional decree had been entered in the court below, which the respondents sought to sustain upon two contentions, viz., that the boycott was itself unlawful, but that, if lawful, news of it could' not be conveyed by circulars scattered broadcast and so phrased as to invite or advise all union men and their sympathizers to withhold their patronage from Lindsay & Co., and from anyone else who patronized that concern. Obviously the matter could not be settled by deciding, as was done, that a boycott could lawfully be declared, but it became necessary to say whether the publication of it in the manner stated could be enjoined. The answer, necessarily negative, might have been put upon a different, and possibly better, ground than the one chosen; but this does not affect the decisional character of the answer itself or of the ground assigned for it. (Clark v. Thomas, 4 Heisk. (51 Tenn.) 419, 421.) “An obiter dictum is a gratuitous opinion, an individual impertinence which, whether it be wise or foolish, right or wrong, bindeth none — not even the lips that utter it. ’ ’ The second portion of the Lindsay opinion does not come within this definition.
Counsel urge, however, that the conclusion is unsound because the constitutional provision postulated as the basis of it (State Const., Art. Ill, sec. 10) is addressed to the legislature and not to the courts, because it in some way interferes with the power of courts of equity in eases of nuisance, and because it is contrary to the stand repeatedly taken by the supreme and other courts of the United States. The answer is not difficult. This court founded its decision upon the language of the provision above cited, which not only forbids the passage of any law impairing the freedom of speech — as does the national Constitution — but which also proclaims — as the national Constitution does not — that “every person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty.” We thought, as we still think, that this second clause of our provision conveys the idea of liberty, unchecked as to what may be published, by anything save penalty, and is therefore so material a departure from the meaning given to the national provision that the federal cases have little, if any, significance; and we were,' as we still are, unable to conceive how anyone can possess the right to publish what he pleases, subject only to penalty for abuse, and at the same time be prevented by any court from doing so. It is to be remembered, however, that this court was dealing in the Lindsay Case with the right to publish at large, not with the propriety of enjoining acts which, though they be in aid of the right to publish, are brought, or sought to be brought, within the category of nuisances. That subject was considered somewhat in the Dilno Case and will be referred to later in this opinion.
So premising, we come to the result common to both the Lind-say and Dilno Cases, which is to declare that labor unions
are not unlawful in this state; that such unions may publish and pursue a peaceful boycott against any person or enterprise deemed by them to be unfriendly, and that a combination -of such unions or their members for such purposes cannot be viewed as a conspiracy. Attention is called to the emphasis laid in the Dilno Case upon the want of an allegation that the publication there considered, to-wit, a banner, veiled a threat, whereas the findings here establish that the acts of the defendants did convey, and were intended to convey, a threat; and from this it is deduced that the combination of the defendants became indeed a powerful and far-reaching conspiracy. The force of this depends upon what is meant by the term “threat,” or, to put it in another way, upon what is threatened.
Generally speaking, what one may do in a certain event, one may give warning of an intention to do in that event; and such a warning is not a threat in the legal sense, whatever may be implied by the term in colloquial usage. (Payne v. Western etc. Ry. Co., 13 Lea (81 Tenn.), 507, 49 Am. Rep. 666, 674; Holmes, J., in Vegelahn v. Guntner, 167 Mass. 92, 107, 57 Am. St. Rep. 443, 35 L. R. A. 722, 44 N. E. 1077.)
What, then, was the “threat” conveyed by the acts of the defendants according to the findings? In the last analysis it was that all those who patronized the theater in defiance of the boycott would themselves be classed as unfriendly and subjected to boycott in their turn, a warning similar to that conveyed by the Lindsay circular,- implicit in the Dilno banner, and necessarily involved in every earnest boycott. We realize that many courts treat this as a threat in the legal sense because of the power of numbers behind it, and have enjoined, the execution of it upon the assump tion that the person boycotted is, through the intimidation of others, deprived of something to which he has a vested right. !As we see it, this position is unwarranted in every particular. There is no intimidation in the legal sense unless there is a threat in the legal sense. Every person has the right, singly and in combination with others, to deal or refuse to deal with whom he chooses; to reach his decision in that, as in all other matters, upon or without good reason; to regard as unfriendly all those who, with or without justification, refuse to co-operate or sympathize. These rights do not depend upon the character, numbers or influence of those who seek to exercise them; nor upon the occasion for their exercise; nor upon the consequences which may follow from their legitimate use. They have been recognized by this court as existing in an incorporated railway benefit society (Peek v. Northern Pac. Ry. Co., supra), and it may be said in passing that they likewise belong to merchants’ associations, to consumers interested in the cost of living, and, in some measure, to all other persons or groups of persons by whom a boycott may be conceived and practiced. The defendants had these rights, and, having them, could lawfully announce their intention to assert them. The plaintiff, on the other hand, has no vested right in the patronage of the defendants, or of anyone else who may choose to withhold it; and, no more than the plaintiff, have the persons who may choose to patronize it any vested right to such patronage. Such persons may take such patronage on the terms imposed, or not, as they see fit, just as the defendants and their friends may, if they see fit, choose to regard a rejection of these terms as a rejection of their patronage. In short, the “threat” conveyed was to do what the defendants lawfully could do — a mere warning of their intention, which they could lawfully give. (Cooke on Combinations, Monopolies and Labor Unions, secs. 77, et cit.) A combination to do a lawful thing by lawful means is no conspiracy. Counsel for plaintiff point to the occasion for this boycott, and eloquently denounce the effrontery of labor unions in dictating to those who are not held to them by any ties as offensive and as dangerous to our most precious heritage, personal liberty. Offensive such dictation must certainly be, but not more offensive nor more dangerous, we think, than when the like is put forward by agencies of quite a different character. Attempted dictation, more or less disguised, is ever present; but it is not, in contemplation of the law, an invasion of liberty so long as it amounts to nothing more than a demand which one party has a legal right to make, upon the alternative of its displeasure, and the other the legal right to refuse, braving that displeasure. We see nothing in the Peek Case to interfere with the conclusions announced in the Lindsay and Dilno Cases, but much to confirm them, and we are satisfied that these eases correctly apply the law to present-day conditions. It follows that the judgment must be upheld so far as the boycott and its publication at large are concerned.
The plaintiff insists, however, that;, certain features of defendants’ program as heretofore pursued and as proposed to be continued are subject to restraint as a nuisance. The defendants, contesting this, rely upon the provisions of subdivision 8, section 6121, Revised Codes, in conjunction with their right to use the streets and to publish what they will. The provision referred to is as follows: “An injunction cannot be granted: * * * In labor disputes under any other or different circumstances or conditions, than if the controversy were of another or different character, or between parties neither * * * of whom were laborers or interested in labor questions.” (Thirteenth Session Laws, p. 28.) Touching this provision, we may say that it adds nothing to the pre-existing law, since there never has been, in theory at least, one rule for the wage-earner and another for the rest of the community; yet it must be taken as an expression by the legislature of the belief that injunctions have been granted in labor disputes when, under exactly similar conditions, they would not have been granted in controversies of a different character, and of an intention to forestall the possibility of such a happening in this state. So the propriety of an injunction here depends upon whether an injunction would be granted if the acts proposed were to be done by an associa tion of a different sort, as, for instance, a combination of merchants or consumers. To determine this the rights above mentioned are not entirely adequate. The right to publish what one pleases does not mean that one may always publish when and where he pleases; nor does his right to use the public streets imply that he may do entirely as he sees fit anywhere upon those streets. These are rights which, like all others, must be exercised with reference to the same or similar rights of one’s neighbor as well as to certain public considerations. They are neither more nor less sacred than the right to possess property or the right to the free exercise of religious worship. Under the former, one may maintain a slaughter-house or a boiler factory, but not where such maintenance would constitute a nuisance; under the latter, the most saintly evangelist might be prevented from selecting as the place of his revival the front door of a cathedral or a synagogue. Similarly we think it entirely possible for a state of facts to exist under which the right to speak or publish might be so used as to constitute a nuisance and be restrained as such.
The difficulty here is that the facts found do not warrant application of the nuisance theory. In the Dilno Case we intimated that the acts of a single individual whose business it was to take his stand before one’s door and there display a- banner denouncing the owner as unfair, and thus, as well as by word of mouth, to dissuade others from entering, might constitute a nuisance, depending on whether they fall within the meaning of section 6162, Revised Codes. By this section, an act or thing to be a nuisance must be either: (a) Injurious to health; or (b) indecent or offensive to the senses; or (c) an obstruction to the free use of property so as to substantially interfere with the comfortable enjoyment"of life or property; or (d) an unlawful obstruction to the free passage or use, in the customary manner, of any navigable lake, etc., or public park or street, etc. Manifestly there was nothing injurious to health, or indecent, or offensive to the senses in what the defendants did, nor does the court in terms declare that what they did, created any ob struction to the free use by the plaintiff of its property or its right of access thereto. Does the inference of such obstruction follow from the facts found? We think not. The findings on this subject are: (1) That since November 29, 1914, the defendants have caused the banner to be carried in a conspicuous place immediately in front of the theater, and within eight or ten feet of the entrance on every day a show was given therein. In other words, the banner was carried at the place named at some time during each performance day — whether during the performance, whether once, twice, occasionally, many times or constantly is not stated — yet the defendants might have caused their banner to be carried upon and through every street in the city of Butte, passing or even occasionally stopping before the plaintiff’s theater, without at all obstructing the free use thereof or free access thereto. (2) On almost every day since November 29, 1914, they publicly announced and openly published orally to the public in general in Butte that persons who patronized the theater would be regarded as unfair to organized labor, and caused one or more men to stand upon and walk along the street in front of and near the Empire Theatre to say, and who did say, to persons who desired and were about to enter it, that it was unfair to organized labor, and to request, and who did request, such persons not to patronize the same. How long, how often, at what time or times on each day such man, or men, so stood, how many there were at any time, how near they were when not in front, whether they there dissuaded few or many persons from patronizing the theater, cannot be determined; yet, as against any right of the plaintiff to prevent, the defendants could “publicly announce” and “openly publish” orally, or in all the prints of Montana, what it is found they did announce and publish, and could, without committing a nuisance to the plaintiff, stop every person jn the city and communicate their message, so long as they did not take their stand in the immediate vicinity of the theater and there demean themselves so as to create an obstruction to the plaintiff’s free use of its property or an obstruction of the streets as a means of access thereto. (3) According to the plaintiff’s brief, the court also found that the men carrying the banner interfered with and unlawfully laid hands on many persons desiring to patronize the theater, thereby intimidating and dissuading vast numbers of persons from entering the same. We cannot discover any such finding, and do not infer it from what is said of paragraph 6 of the complaint ; the idea presented throughout the decision below is that no physical violence .or intimidation occurred. (4) According to the plaintiff’s brief, the court also found that the defendants have picketed the theater with the banner carriers to dissuade persons from entering it. This is a deduction from the fact that the court negatives the allegations of paragraph 6 of the complaint that there were pickets in addition to the banner bearers, but affirms the allegations of paragraph 12 that the defendants “have picketed the plaintiff’s said place of business as herein-before alleged,” and propose to continue so to do. The soundness of this deduction is not clear, since the only picketing “hereinbefore alleged” was by pickets other than the banner bearers as set out in paragraph 6 of the complaint. But if we accept the deduction, it adds nothing to the case, since it does not appear that the “picketing” done by the banner bearers consisted of anything more than the acts already ascribed to them by the findings, which acts as we have seen were neither wrongful in themselves nor a nuisance. (5) In consequence of all the acts complained of — those which are and those which are not supposed to constitute a nuisance — many persons were prevented from patronizing the plaintiff; vexation and annoyance were caused to it and its employees; great and irreparable damage was done to its business. How much or whether any substantial part, of this result was due to those acts supposed to constitute a nuisance is not disclosed, and cannot be gathered from the fact that such loss or annoyance occurred; nor can such loss or annoyance alone give color to the acts. Unless the things done constitute a nuisance as defined by our Code, prevention is out of the question, no matter what loss or annoyance ensued. The evidence is not before us, but, from the findings as well as from the legal reflections of the trial judge, it is apparent that the nuisance feature of the case had as little value in the district court as we must give it here.
In view of the foregoing, discussion of the question of parties is unnecessary.
The judgment is affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. 'Justice Holloway concur.
Rehearing denied February 19, 1917.
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
By Chapter 37, Laws of 1907 (Rev. Codes, secs. 4363-4399), the “board of railroad commissioners of the state of Montana” was created, and by that Act, and Acts supplementary thereto, its powers and duties are defined. The board consists of three members, each elected for a term of six years, and the present members are J. H. Hall, J. E. McCormick and Daniel Boyle. Hall was elected in 1912, McCormick in 1914 and Boyle in 1916. On January 1, 1917, Hall was duly elected chairman and continued in that capacity until April 16, when, at a regular meeting of the board at which all three members were present, by the votes of McCormick and Boyle he was deposed and Boyle elected chairman in his stead. Hall refused to abide by the order, and has since claimed and assumed to act as chairman. This proceeding in the nature of quo warranto was instituted by Boyle to have determined the right or title to the chairmanship of the board. To the complaint, which sets forth the proceedings fully, the defendant demurred, and, electing to stand on his demurrer, the matter was submitted for final determination. Defendant presents three contentions:
1. That the chairmanship of the board is not a public office. If this be sustained, the other contentions need not be noticed; for though the authority of the state (represented by the attorney general) to invoke the remedy by quo warranto is quite extensive (Bev. Codes, secs. 6943-6946), a private individual is limited in his right to the remedy to a single case, viz., a ease in which he claims “to be entitled to a public office unlawfully held and exercised by another” (sec. 6947). The question before us in limine is: Is the chairmanship of the board of railroad commissioners a public office, with public functions to be performed by the occupant independently of his duties as a member of the railroad commission?
Courts and text-writers have undertaken to define the term “public office,” and to prescribe certain criteria by which to determine whether, in a given instance, a public office is involved, but their efforts have been expended with rather indifferent success. The tests applied and found sufficient in one case have proved altogether inapplicable in another. The authorities are, however, quite generally agreed that the character of the functions to be performed is a primary consideration, if not a determining factor. (23 Bncy. of Law, 2d ed., 323.) The duties attached to the position must concern the public directly, and must be imposed by public authority — not by contract. (Mechem on Public Officers, 1-6; Throop on Public Officers, 3, 4; Wyman’s Administrative Law, sec. 44.) The duties must be public in the sense that.they comprehend the exercise of some portion of the sovereign power and authority of the state, either in making, administering or executing.the laws. (Eliason v. Coleman, 86 N. C. 235; Commonwealth v. Bush, 131 Ky. 384, 115 S. W. 249.) They must be public, also, in the sense that they imply the element of personal responsibility, as distinguished from the merely clerical acts of an agent or servant. (Attorney General v. Tillinghast, 203 Mass. 539, 17 Ann. Cas. 449, 89 N. E. 1058.)
In other words, a public officer is a part of the personal force by which the state thinks, acts, determines and administers to the end that its Constitution may be effective and its laws operative. (People v. Coler, 166 N. Y. 1, 82 Am. St. Rep. 605, 52 L. R. A. 814, 59 N. E. 716.) While the elements of fixed term and compensation cannot be said to be indispensable to a public office, they are indices the presence of which points to the existence of such a position, and the absence of which indicates to some extent the contrary conclusion.
The board of railroad commissioners is the creature of statute. It has such authority as is conferred expressly or necessarily implied from that which is expressed. It is subject at all times to legislative regulation and control. Its officers and employees —even the members of the commission — may be dismissed from the service of the state by a repeal of the law which created the board. Whether, then, the chairmanship of the board is a public office, with public duties and functions independently of the duties and functions which are attached to the office of commissioner, depends upon the intention of the legislature as manifested in the Act, when considered in the light of the general rules referred to above, and which are presumed to have guided the lawmakers to their ultimate determination.
The only mention of the chairmanship is found in section 4367, wherein it is provided that the board shall “organize by electing one of its members as chairman.” While this is not the creation of the position by specific legislative enactment, it might be deemed sufficient if other and indispensable elements of a public office were present. Counsel have not directed our attention to any public duties or functions attached to the chairmanship by the legislature, and our research has disclosed but a single reference, viz.: “The state shall furnish said board with suitable offices in the state capitol building at Helena, Mont., and provide it with all necessary furniture, stationery and printing, upon requisitions signed by the chairman of said board.” (Sec. 4369.) Throughout the original Act and the supplemental Acts the references are uniformly to the duties, powers and privileges of the board, while the chairmanship is dismissed by the brief references above. Any member of the board may administer oaths (sec. 4365), or verify the vouchers for the board’s expenses (sec. 4370).
Can it be said, then, with any degree of seriousness that a position to which are attached no duties, powers or prerogatives other than the authority to sign orders for paper, stamps and pencils is a public office, the incumbent of which is required by law to perform a portion of the sovereign power of the state? To suggest the question is to answer it. A review of these statutes would seem to indicate beyond the possibility of a doubt that while the board is created with important public functions to perform, and clothed with authority to make effective the purpose of its creation, the legislature, imposing trust and confidence in the intelligence and integrity of the members, referred to the board, as an entity, all matters of board regulation and control.
Section 4365, provides: “The board shall have power to adopt rules to govern its proceedings and to regulate the mode and manner of all investigations,” etc. In the absence of any specific declaration creating the office of chairman and in the absence of any independent public functions or powers attached to the position, this provision is peculiarly significant. The legislature recognized the fact that in the orderly proceedings of the board there should be one member designated to preside over its deliberations, put all questions, and declare the will of the majority; in other words, to be the mouthpiece of the board, its agent and servant, but without authority or power independently of his authority as one member of the board and with such other power and authority only as the board might confer by appropriate rules and regu lations or in the absence of any rule upon the subject, then with such authority as accords with the spirit of parliamentary procedure and meets the approval of a majority of the board. No mention is made of the term for which the chairman shall hold the position. The legislature recognized further that the chairman would be selected by the members only because of their confidence in him; that the harmony and efficiency of the board would continue only so long as that confidence continued; and that whenever for any cause, or without cause, the chairman forfeits or otherwise loses that confidence upon the strength of which he was selected, the majority would have the authority to remove him and select a successor. That the legislature thus treated the chairmanship as a merely honorary position, the occupant of which is subject to control by the majority, holds the position at the will of the majority, performs, without compensation, whatever duties are assigned to him by the majority, and is without public power and authority independently of his office as a member of the board, is fairly conclusive evidence that it was not the intention of the legislature to create an independent public office.
Out conclusion is that the chairmanship of the board of railroad commissioners is not a public office, and therefore this proceeding cannot be.maintained.
This demurrer is sustained and the complaint is dismissed.
Dismissed.
Mr. Chief Justice Brantly and Mr. Justice Sanner concur.
|
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] |
MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
On December 6, 1910, C. C. Barnett, one of the appellants, submitted to the board of commissioners of Beaverhead county his bid for a contract for the care of the indigent sick, poor and infirm of the county. This was in response to a notice published by an order of the board in pursuance of section 2054 of the Revised Codes, as amended by the Laws of 1909 (Laws 1909, Chap. 29). On December 10 he was awarded a contract. Under its terms he assumed the obligation to care for and support the indigents whose maintenance was chargeable to the county as provided in the statute, except that he did not assume to furnish medical attendance and medical supplies, to pay the salaries of the nurses for the sick or the expense of the necessary laundry work. It was expressly agreed that he was relieved from any obligation in this behalf. The contract covered a term of three years from December 12, 1910. Barnett was to be paid by the county, at the quarterly meetings of the board, eighty cents per day for each person who became a county charge; he was to have the use of the county poor farm, and, as a consideration for its use, was to pay to the county in installments on specified dates, for the first year, $1,900, for the second, $2,000, and for the third, $2,100 or a total of $6,000 for the three years. The contract recited with great particularity the obligations mutually assumed by the county and Barnett. For present purposes, the foregoing general statement of its nature and object will suffice. Appellants Eliel and Best became the sureties of Barnett for the faithful performance of the contract, and the latter proceeded to execute it on his part, receiving his compensation and paying the rent for the farm as therein provided. On August 29,1913, the respondent brought his action in the district court against the board, alleging that the contract was void because the board had failed in several particulars to observe the requirements of the statute in the letting of it, and demanding that the board be enjoined from making further allowance or payment to Barnett for his services under it. It was alleged that the contract was void because: (1) The notice was not 'published for the time required by law before the contract was let; (2) because of the exceptions made therein, relieving Barnett from the necessity of furnishing medical attendance, medical supplies, etc.; (3) because it fixed the compensation at a rate per day instead of a rate per week, as required by the statute; and (4) because it covered a term not contemplated by the statute. On application to the court, it issued an injunction pending final decree. None of the appellants were parties to this action. The board suffered a default to be entered, and on February 2, 1914, after final hearing, the contract was adjudged void, and the board was peremptorily enjoined from proceeding under it, and specifically from paying any further compensation to Barnett. On December 1, 1913, Barnett presented to the board a verified account for allowance for the care of indigents during the months of June, July and August, at the rate per capita specified in the contract, amounting to $1,518.30. On March 6, 1914, the board having allowed the account to the amount of $1,430, directed the issuance to Barnett of a warrant for this amount, and this was at once done. Barnett immediately assigned the warrant to Eliel and Best, who thereupon assigned and delivered it to the board for the county in part payment of the rent due from Barnett for use of the poor farm under the terms of the contract. Thereupon the respondent, as a taxpayer of the county, appealed to the district court from the order of allowance. On June 22, 1914, the controversy was submitted to the court upon an agreed statement of facts, to which the county, represented by the county attorney, the appellants, and the respondent were 'all parties. It was agreed, among other things, in addition to the foregoing recitals, that the persons cared for and maintained by Barnett were properly charges of the county; that it was the duty of the county to care for and maintain them; that Barnett performed the services rendered to the county in this behalf in good faith, in the belief that the contract was valid and binding upon him as well as the county; that the county received the benefit of his services and the supplies furnished by him in good faith; that the county had paid no consideration for the services and the supplies so furnished; and that the sum allowed by the board was the reasonable value thereof. Upon the facts submitted, the court held that the claim had been allowed and the warrant issued without authority of law, and that the county was entitled to recover from the appellants the amounts specified in the warrant. Judgment was rendered accordingly. The appeal is from an order denying appellants’ motion for a new trial.
Whether the Barnett contract was void upon any of the grounds alleged in the action brought by the respondent, and whether Barnett was concluded by the decree therein, are questions which do not arise on this appeal. When the action was brought and a temporary injunction was issued, Barnett abandoned further performance of. the contract, assuming, apparently, that he could not lawfully proceed under it. In any event, in presenting this case, counsel for appellants have assumed that the decree in that case was proper and binding upon the county, and also concluded Barnett for all purposes. They assail the integrity of the judgment in this' ease on several grounds. One of them is that, though the contract was void, yet since under the provisions of the Code on the subject it was the absolute duty of the county to provide for the care and maintenance of indigents in the county, and Barnett, at the instance of the board, performed services and incurred expense in that behalf, he is entitled to reasonable compensation for his services and to be reimbursed for his expenses. It is also contended that, upon the broad principle of equity and good conscience, the county, having received the benefit of Barnett’s services and outlay, ought to reimburse him. It is further contended that, whether Barnett is entitled to be reimbursed by the county or not, the court was without jurisdiction in this proceeding to render judgment against the appellants for the amount of the warrant issued in payment of Barnett’s claim.
It may be remarked here that the result of the transaction between the board and the appellants was not a withdrawal of funds from the treasury of the county, but merely a discharge pro tanto by the board of the rent assumed to be due the county for Barnett’s use of the poor farm up to the time' respondent brought his action to annul the contract. From this point of view Barnett had not received money from the county for which recovery could be had upon any theory. Counsel and the court, however, both seem to have assumed that the transaction was the equivalent of a payment to Barnett and to have tried the issue whether or not the payment was legal, the court having plenary jurisdiction for all purposes. However this may have been, and without regard to the merits of the other contentions of counsel, we think the court was wholly without jurisdiction to render the judgment it did.
The proceeding was before the court on appeal from the order of allowance by the board, in pursuance of these provisions of the Revised Codes:
“Sec. 2947. Whenever a claim against a county is disallowed in whole or in part, or when any taxpayer of the county is not satisfied with any allowance made by the board, the claimant or such taxpayer may appeal from the decision of the board to the district court for the county, by causing a written notice of appeal to be served on the clerk of the board, within thirty days after the making of the decision or allowance, and executing a bond to the county, with surety to be approved by the clerk of the board, conditioned to prosecute such appeal to effect, and to pay all costs that may be adjudged against the appellant.
“See. 2948. The clerk of the board, upon an appeal being taken, must immediately give notice thereof to the county attorney, and must make out a return of the proceedings in the matter before the board, with its decision thereon, and file the same, together with the bond and all the papers therein in his possession, with the clerk of the district court; and such appeal must be entered, tried and determined, the same as appeals from justices’ courts, and costs are awarded in like manner.”
These provisions contemplate that the parties to the controversy in the district court in such cases are the county and the claimant or the taxpayer. Clearly, this is so when the claimant is the appellant, for the controversy is between him and the county upon the question of allowance or disallowance, or, in other words, upon the question whether he has a legal claim against the county. The same situation is presented when a taxpayer is the appellant because there is no provision for notice to the claimant; the only provision on the subject being the requirement that the clerk shall give- notice to the county attorney, the representative of the county. It will be noted, too, that the appeal bond required of the taxpayer runs, not to the claimant, but to the county, and there is no provision that if the taxpayer is overruled, the claimant may recover his costs against the taxpayer or the county; nor, if the taxpayer is successful in reversing the order, that the county may have judgment against the claimant for its costs.
The scope and meaning of these sections have never been defined by this court, nor has any decision construing them been called to our attention. They were considered somewhat in State ex rel. Cope v. Minar, 13 Mont. 1, 31 Pac. 723, but the Justices were not in harmony, except upon the point that the judgment which had been rendered by the district court on appeal by a taxpayer from an order of allowance by the board of commissioners was void for want of jurisdiction. In a concurring opinion in that ease Mr. Justice Harwood expressed the view that when a taxpayer appeals, the real adversary party is the claimant, and that the clear implication is that he must be made'a party under the general provision of the statute (Rev. Codes, sec. 6498), authorizing the court, whenever the presence of other parties than those before it is necessary to a complete determination of the controversy in hand, to order them to be brought in. This proceeding, however, is a special statutory proceeding, and in conducting and determining it, the court must look to the statute for its authority. As in cases of appeals from justices’ courts, the district court is limited to a determination of only such matters as the justicé might have determined (Duane v. Molinak, 31 Mont. 343, 78 Pac. 588, and cases cited), so here the court is limited in its authority to the determination of only the matter that was before the board of commissioners. The language of the last clause of section 2948 can mean no more than that the court may try de novo the question whether the action of the board in its allowance or disallowance was correct, and so declare. The board is not a court, and its action is not tantamount to a judgment. Its refusal to allow a claim is'not conclusive even though the claimant does not appeal. (Rev. Codes, sec. 6450a; Greeley v. Cascade County, 22 Mont. 580, 57 Pac. 274.) S.o the action of the district court does not terminate in a formal judgment for the amount of the claim, but only in an order affirming or reversing the action of the board. In other words, for the time it sits in place of the board and performs the functions of the board, being authorized to render no judgment other than one for costs. This is apparently the limit of its power. This was the view entertained by Mr. Chief Justice Blake in State ex rel. Cope v. Minar, supra. We think it clearly correct.
But let it be conceded that the adversary parties are the claimant and the taxpayer, the county being only the pawn-holder, and that the determination of the district court is conclusive upon the question of allowance or disallowance. The statute does not. authorize the court to grant any other relief. It does not directly or by implication authorize judgment against the claimant for the amount of a claim already paid to him. Since the statute is the limit of the court’s power, the judgment in this case cannot be upheld.
The order is therefore reversed, and the district court is directed to grant the appellants a new trial.
Reversed and remanded.
Mr. Justice Sanner and Mr. Justice Holloway concur.
|
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] |
MB. JUSTICE SANNEB
delivered the opinion of the court.
The correctness of the judgment from which this appeal is taken depends upon whether the plaintiff has a valid lien, under section 7291, Bevised Codes, upon the property of the respondent Nick Baatz. As and for such lien the plaintiff filed in the proper office a document comprising: (1) An unsigned notice of lien claim, reciting, among other things, that the claimant furnished certain materials for the Nick Baatz building, erected on lot 1, in block 414, of the original town site of Great Falls, Cascade county, Montana; “that the value of the said materials amounted to the sum of $2,707.93, as will more fully appear, reference being had to an itemized statement of account of said materials hereunto annexed, marked ‘Exhibit A,’ and hereof made a part”; (2) the following matter, just after the notice: “ [Venue.] Charles S. O’Brien, being first duly sworn, on oath deposes and says: That he is the managing agent for the Crane & Ordway Company, a corporation, the party in the f oreging notice of lien and statement of account of the amount due said Crane & Ordway Company for the materials therein described, after allowing all credits and offsets; that said notice and statement contains a correct description of the property to be charged with said lien; and that all the facts stated in said notice and statement are true. C. S. O’Brien, Managing Agent for Crane & Ordway Company. On this 3d day of February in the year 1914, before me, Julius C. Peters, personally appeared Charles S. O’Brien, known to me to be the managing agent of the Crane & Ordway Company, the corporation that executed the within instrument, and acknowledged to me that such corporation executed the same. Julius C. Peters, Notary Public for the State of Montana, residing at Great Falls. My commission expires December 19,1916. [Seal.]” (3) Forty-five typewritten pages of figures headed, “Exhibit A, Itemized Statement of Account,” followed by (4) this matter: “[Venue.] C. S. O’Brien, being first duly sworn, deposes and says that he is the local manager of the Great Falls branch of the Crane & Ordway Company, a corporation existing under and by virtue of the laws of the state of Minnesota; that he has read and examined the within account; that it is true of his own knowledge; that the said account is just; that the balance of twenty-seven hundred seven dollars ninety-three cents ($2,707.93) is wholly unpaid. C. S. O’Brien. Subscribed and sworn to before me this 3d day of March, 1914. E. H. Schmidt, Notary Public for the State of Montana, residing at Great Falls, Montana. My commission expires July 8, 1916. [Seal.] ”
The trial court held this document to be ineffective to create a lien, because it does not purport to be “a just and true account of the amount due * * * after allowing all credits, and containing a correct description of the property to be charged, * * * verified by affidavit,” as required by law; and this conclusion is assailed as a violation of the well-known rule that mechanics’ lien laws are remedial, and therefore to be liberally construed and applied. Counsel mistake, and therefore misapply, the rule they seek to invoke. It is that, the necessary steps having once been taken to secure the lien, the law is subject to the most liberal construction, for it is remedial in character, and rests upon broad principles of natural equity and commer cial necessity. But the special right acquired in virtue of a mechanic’s lien is purely statutory, and the manner of securing it, by perfecting the lien, consists of various steps, which are also statutory, and must be strictly followed. (Stritzel-Spaberg Lumber Co. v. Edwards, 50 Mont. 49, 54, 144 Pac. 772; McGlaufiin v. Wormser, 28 Mont. 177, 181, 72 Pac. 428.)
The present case has to do with the means taken to secure the lien. “The paper containing the account, description, and affidavit is deemed the lien,” and while certain errors in the account or description may not invalidate the lien, the affidavit is essential, and must' go to both the account and the description. (Rev. Codes, sec. 7291.) It will be observed that the only effort to verify the description, as such, occurs in the matter marked (2) above, which contains no jurat, or other intimation by anyone authorized to administer oaths, to show that any oath was taken; on the contrary, it proves, if anything at all, that C. S. 0 ’Brien acknowledged that the corporation claimant executed the notice. By no liberality of construction can the matter embraced in item (2) be called an affidavit. (Rev. Codes, sec. 7988; Metcalf v. Prescott, 10 Mont. 283, 294, 25 Pac. 1037.)
The appellant, conceding, as it must, that the affidavit should verify the other two things necessary to make up the lien, to-wit, the account and the description, insists that the affidavit which appears at the end of “Exhibit A, Itemized Statement of Account,” that is to say, item (4) above, does so because the “account, ’ ’ to which it refers, means the narration embraced in the entire document, including the description. If this were true, the lien should be sustained, for no set form or order is required (Wertz v. Lamb, 43 Mont. 477, 482, 117 Pac. 89); but the true meaning of “account,” as used in section 7291, is not as contended, and is not the meaning intended to be conveyed by the affidavit, item (4). This affidavit does not assume to verify the description at all, and does not verify the account itself as the statute requires. The account must be a just and true one, “after allowing all credits,” and must be verified as such. The purpose of the affidavit is clear enough. It is not merely to entitle the lien claim to record, hut to furnish a sanction for it in such an oath as will subject .the affiant to punishment for perjury if it be false in material particulars. No such result could follow here, even though the description in item (1) were wholly false, or the account in item (3) were altogether untrue and unjust, “after allowing all credits.’’
The judgment appealed from is affirmed.
'Affirmed.
Mr. Justice Holloway concurs.
Mr. Chief Justice Brantly, being absent, takes no part in the foregoing decision.
|
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
At the general election in 1914 the people of this state, acting under the authority reserved to them in section 1, Article Y, of the Constitution, adopted by the initiative a statute familiarly known as the Farm Loan Act (Laws 1915, p. 486). Because the state board of land commissioners (for brevity designated the board) failed and refused to perform certain duties devolved upon it by the Act in question, and failed and refused to receive or consider an application for a loan on improved farm lands within this state, made by Charles Evert Evans, this proceeding in mandamus was instituted. In defense of its action the board insists that the statute is: (1) Unconstitutional and void in whole or in part, and (2) in any event impossible of administration.
No distinction is to be made between a statute enacted by the people directly, and one enacted by the legislative assembly with the approval of the governor. The result is the same in either case. In this instance the people performed the function of the legislature, and for convenience will be referred to as such.
We enter upon our consideration of the questions involved, with the fundamental principle established that the legislature of this state possesses plenary legislative power and authority, except in so far as it is limited by the Constitution of the United States, the treaties made and statutes enacted pursuant thereof, and by the Constitution of this state. (In re Pomeroy, 51 Mont. 119, 151 Pac. 333.)
The Act does not transgress any provision of the Constitution of the United States, and no treaty right is involved; but it is insisted that it conflicts with the Enabling Act and with several provisions of the Constitution of this state. Section 1 provides that the permanent common school fund and the other permanent educational, charitable, and penal institution funds shall be invested by the state board of land commissioners in: (a) Certain school district bonds; (b) in bonds of this state; (c)in bonds of the United States; (d) in certain state warrants; (e) in capítol building bonds of this state; (f) in irrigation district bonds; and (g) in first mortgages on good, improved farm lands of this state. Section 2 provides that applications for farm loans shall be filled by the board as rapidly as possible and in the order in which they are received. The same section contains a proviso under the terms of which there may be a distribution of certain of these funds among the several counties and loans upon farm lands, made directly by the counties. It is to this latter portion of the statute that the principal attack is directed.
Counsel for the board assume in the first instance that the Act in question provides but a single plan for loaning these funds upon farm lands, and upon that assumption condemn the entire measure. The assumption is unwarranted. The statute in very clear terms provides two distinct plans of procedure, one of which we shall designate the “primary” and the other the “contingent” plan.
1. The Primary Plan. Sections 1 and 2 above impose upon the board the duty to invest the specified funds in the securities enumerated therein, including the farm mortgages. Section 5 commands the board and the attorney general to prepare necessary blank forms for applications and for mortgages; each mortgage form to “contain a provision that default in the payment of interest thereon at any time for a period of thirty days after the same shall become due, shall cause the whole principal and interest on said mortgage to become at once due and payable, and said mortgage may be foreclosed in the manner provided by law.” This completes the primary plan, and the statute, in so far as it provides this plan of procedure, is proof against any attack made upon it. It does not conflict in the least with any provision of the Enabling Act. By that Act the federal government made generous grants of public lands and other property to this state for the benefit of: (a) The common schools; (b) the state university; (c) the agricultural college; (d) the state normal school; (e) the school of mines; (f) the reform school; (g) the deaf and dumb asylum; (h) the eapit'ol building; and (i) the penitentiary.
With respect to the lands granted for common school purposes, the Enabling Act fixes a minimum sale price and declares that the proceeds from such sales, together with five per cent of the proceeds from the sales of public lands in the state, shall constitute a permanent school fund the interest from which only shall be expended. It also provides that the lands granted may be leased under regulations prescribed by the legislature o'f the state, with a limitation upon the term of any such lease and upon the quantity which may be let to any individual, company or corporation. (Secs. 11 and 13.) Of the lands granted for university purposes, it declares that they shall not be sold for less than $10 per acre, but may be leased in the same manner as provided in section 11. With reference to the grants for capitol building and penitentiary purposes, it prescribes no restrictions or regulations whatever. (Sees. 12 and 15.) The only limitation imposed with reference to the other grants enumerated above is that: “The lands granted by this section shall be held, appropriated, and disposed of exclusively for the purposes herein mentioned, in such manner as the legislatures of the respective states may severally provide.” It will thus be seen that the Enabling Act does not attempt to regulate the manner in which the permanent funds derived from these grants shall be invested; .and, as the Farm Loan Act deals only with the investment of those funds, no possible conflict can be discovered between the two Acts.
Section 1 of the Farm Loan Act omits from the list of securities available for the investment of permanent public funds county, city and town bonds and warrants and school district bonds, which do not constitute the only outstanding issue. "Whether this omission was the result of inadvertence or design is not material here; but, because of the apparent attempt at discrimination, it is insisted that the section is in conflict with the provisions of section 3, Article XI, of the Constitution. Section 2, Article XI, defines public school funds. Section 12 of the same Article deals with the permanent funds belonging to the higher educational institutions, the university, agricultural college, school of mines and normal. There is still a third group made up of the permanent funds belonging to the reform school, deaf and dumb asylum and capitol building. The Constitution makes no reference whatever to the investment of the funds belonging to this last group, and therefore the legislature was left free to prescribe such regulations as might seem fit and proper. "With reference to the higher educational institution funds constituting the second group, the mandate of the Constitution is that they shall be invested under such regulations as “may be prescribed by law.” (See. 12, Art. XI.) Clearly, then, it was within the power of the legislature to make the discrimination contained in section 1 of the Faim Loan Act, and to exclude certain securities from the list available for the investment of funds belonging to the second and third groups above.
But what, if any, authority has the legislature over the investment of the public school funds constituting the first group ? Section 3, Article .XI — the only constitutional provision touching the subject — goes no further than to declare that: They shall “be invested, so far as possible, in public securities within the state, including school district bonds issued for the erection of school buildings, under the restrictions to be provided by law.” This concluding clause must be given meaning. The framers of our Constitution were discriminating in their choice and use of language. They apparently experienced no difficulty in choosing apt words to express the particular shade of meaning which they intended to attach to any provision; and therefore, when they employed the expression “under the restrictions to be provided by law,” we must assume that they meant to have that language construed according to its ordinary meaning. “Restriction” means: “The act of restraining or the state of being restrained; limitation; confinement within bounds; that which restricts; a restraint, reservation, reserve.” (Century Dictionary.) “That which restricts; a limitation; a restraint.” ("Webster’s Internat. Dictionary.) “Limitation or confinement within bounds.” (7 Words and Phrases, 6187.) “Restrict” means: “To prevent (a person or thing) from passing a certain limit in any kind of action; limit; restrain. To attach limitations to (a proposition or conception) so that it shall not apply to all the subjects to which it would otherwise seem to apply.” (Century.) “To restrain within bounds; to limit; to confine.” (Webster.) “To restrain within bounds; to limit; to confine.” (4 Words and Phrases, 2d Ser., 364.) Viewed in the light of these definitions expressing the common understanding of the term “restriction,” we think it must be held to have been the intention of the framers of the Constitution in drafting section 3, Article XI, and of the people in adopting it, that while the legislature cannot proscribe all securities or all school district bonds, it may classify such securities and include one class and exclude another. It may require the board to invest in state bonds and warrants, and forbid it to invest in county, city or town bonds or warrants. It may include in the favored class school district bonds constituting an only outstanding issue and exclude the bonds of a school district which do not constitute the only issue of the particular district. From the fact that public securities are mentioned specifically, it was doubtless intended that, when the legislature had prescribed the restrictions contemplated in section 3, such public securities thus hedged about shall be given preference in the employment of the public school funds, but further than this the section does not go.
We cannot subscribe to the doctrine that the legislature may provide restrictions for the investment of only such portion of the public school funds as may be invested in public securities, and that the remaining portion must lie idle, or, at best, be deposited under the provisions of section 14, Article XII. The language of section 3, Article XI, if standing alone, does not require such construction, and when read in connection with other provisions of the Constitution, particularly the terms of section 12 of the same Article, the purpose to confide to the lawmakers a wide discretion in the investment of all permanent school funds is apparent. The authority of the legislature, otherwise plenary, will not be held to be circumscribed by mere implication. He who seeks to limit the power of the lawmakers must be able to point out the particular provision of the Constitution which contains the limitation expressed in no uncertain terms.
Our conclusion upon this branch of the case is that the board, after having given preference to the public securities enumerated, in the investment of the public school funds, is charged with the duty to employ the residue of those funds and all the permanent funds belonging to the higher educational institutions and to the reform school, deaf and dumb asylum, and eapitol building in the other securities named, including first mortgages upon good, improved farm land in this state. This construction harmonizes section 1 of the Act with section 3, Article XI, of the Constitution, and leaves intact a complete, workable statute, absolved from any of the objections lodged against this plan.
It is no argument against the Act that it fails to provide for all the working details of this primary plan. It is an elementary rule of law that: “The grant of a specific power or the imposition of a definite duty confers, by implication, authority to do whatever is necessary to execute the power or perform the duty.” (36 Cyc. 1113.) By sections 1 and 2 of the Farm Loan Act the specific power is conferred, and the specific duty is enjoined upon the board to invest the public funds designated therein, in the securities enumerated, including farm mortgages, and whatever authority is necessary to execute that power and perform that duty is conferred by implication, and matters of detail are left to the board for control by appropriate rules or regulations.
While the statute declares that loans made by the several counties shall bear interest at six per cent per annum, no such restriction is laid upon the board. Under the law in force at the time the Farm Loan Act was adopted, there was conferred upon the board a very wide discretion in investing these public funds. The details of such investments were not covered by specific legislation, and yet it is a part of the history of the state that the board experienced no difficulty in making investments in public securities offered by the state, by the several counties and by municipalities in the state. The same wide latitude in matters of procedure is retained by the board under this Act. It seeks to classify public securities and to designate such of them as may be employed hereafter for the investment of these funds to utilize the funds to a much greater extent than heretofore, and to place the agricultural class in a more advantageous position toward the money market by including farm mortgages as available securities for loans. Under the former statutes the board could invest in one class of public securities bearing five per cent interest, and in another bearing four per cent or less. It could accept one issue and decline another. It could go into the market and bid as a private individual upon offered public securities of the classes mentioned, or it could waive its right to bid. So likewise it may now exact six per cent for loans made upon farm mortgages, or it may accept a lower rate if in the exercise of a wise discretion it deems it for the best interest of the state to do so; for the purpose of the law as declared in the title and body of the Act is to secure the con-. tinuous, safe investment of these public funds, and to the wisdom and integrity of the board are confided all matters of detail essential to the execution of the trust in conformity with the spirit of the Act.
2. The Contingent Plan. That it was not the intention of the Farm Loan Act to deprive the board of all control over these funds and to commit to the several counties exclusive authority to loan on farm mortgage security in the first instance is made as certain as plain, terse English can ever be made to express an idea. Primarily the investment of the funds in farm mortgages is intrusted to the board by sections 1 and 2 of the Act, and the board is commanded to make the loans in the order in which the applications are received by it. It was doubtless realized, however, that the contingency might arise in which the board would find itself unable to employ all of these funds available for investment in public securities and farm mortgages, and for the purpose of supplementing the primary plan, and, by bringing the borrower and lender into closer contact, encourage the utmost use of these funds by qualified land owners who might seek long-time loans at an attractive rate of interest, this proviso was added to section 2: “Provided, however, that if enough of such moneys remain on hand in the state treasury uncalled for, to warrant them doing so, the state board of land commissioners shall divide such moneys among the organized counties of the state, in proportion to the population, as nearly as may be, subject to the following provisions.” Then follow the provisions for loaning such residue by the several counties in the event that the contingency arises and the residue on hand is sufficient to warrant the board in .making a division of it. There may never be any funds for distribution. The board may be able to keep all of the funds securely and continuously invested in public securities and farm mortgages.
The contingency provided for in section 2 may never arise, and yet it may arise at any time, and the validity of the Act in so far as it provides for this contingent plan is to be tested, not by what is certain to be done under it, but by what may be done under it. (State ex rel. Holliday v. O’Leary, 43 Mont. 157, 115 Pac. 204.)
Whenever the contingency contemplated actually arises, the apportionment and distribution of such residue is to be made among the several counties according to population as nearly as may be done. Applications for loans are to be made to the county auditor (or, if there be no auditor, to the county clerk); the county attorney then examines the abstracts of title; the county commissioners appraise the lands offered as security, and loans may be made directly by the county, but the mort gages securing them must run to the state. No loan can be made upon land appraised at less than $10 per acre, no loan may exceed two-fifths of the appraised value of the security offered, and not more than $5,000 shall be loaned to any one individual, association or corporation.
Section 8 provides that, if any county receiving its distributive share of these funds is unable to loan them after giving the required notice, it shall return such funds to the board, with interest thereon for sixty days.
Section 9 provides that, if a borrower fails to meet the requirements of his obligation, the county attorney shall foreclose the mortgage. The same section then proceeds: “If no other person shall bid the full amount due upon said mortgage upon the foreclosure sale of the same, with the cost and expenses of the foreclosure and sale, the county attorney or county auditor shall bid in the land in the name of the county for the amount due and all costs and expenses incurred, and such county shall at once pay to the state board of land commissioners such full amount due and interest out of the general fund of the county, and if the same is not redeemed, as provided by law, the sheriff’s deed shall be made to the county and the county shall thereby become the owner of said land.”
• By section 12 each county is made responsible and accountable for the principal and interest of all moneys received by it, and in case of loss such county shall, out of its common revenues, repay the same to the board.
Notwithstanding such funds are distributed to the several counties, and the board releases all control over them, and the counties are charged with the duty to loan or return them with interest, the state nevertheless retains title to such funds. They belong to the state in the sense that they are realized out of the grants to the state by the federal government. (County of Des Moines v. Harher, 34 Iowa, 84.)
By sections 8, 9 and 12 of the Farm Loan Act every county is made primarily liable for the funds received by it. It is required by section 8 to return the funds if no loans are made, in which event it must pay interest for sixty days out of its revenues raised by general taxation, though it receives no benefit from the transaction whatever. By section 9 it is constituted a statutory guarantor of every loan made by it. If the borrower fails to pay principal or interest, the county is ultimately liable for the loss or deficiency, notwithstanding the Constitution in section 1, Article XIII, provides: “Neither the state, nor any county, city, town, municipality, nor other subdivision of the state shall ever give or loan its credit in aid of, or make any donation or grant, by subsidy or otherwise, to any individual, association or corporation, or become a subscriber to, or a shareholder in, any company or corporation, * * * except as to such ownership as may accrue to the state by operation or provision of law.”
The primary liability for the integrity of the funds distributed is sought to be fastened upon the counties by this Act, while the Constitution imposes such liability upon the state. (Sections 3 and 12, Article XI.) By the terms of this Act a county is compelled to pay out of its general revenues raised by taxation all the expense of operating under this plan, including interest on funds not loaned, and the principal and interest of loans foreclosed [in the absence of another purchaser at the foreclosure sale], excepting only the cost of abstract and recording fee; and if the funds to make these payments- are not on hand in the county treasury, the county must perforce issue its warrant or evidence of indebtedness, and all this without reference to its outstanding obligations. Section 5, Article XIII, of the Constitution limits the indebtedness which a county may incur for any pui’poses whatever to an amount not exceeding five per cent of the value of its taxable property; but the Act in question makes no distinction between the county which has reached the limit of indebtedness and the one which has not. It attempts to impose this additional burden upon all alike, doubtless to avoid the charge that the measure is obnoxious class legislation. The borrower who secures his loan from the county becomes indebted to the state, not to the county. His obligation runs to the state and his mortgage is made to the state; but by this Act the county is compelled to raise by taxation money to extinguish the private debt of a delinquent borrower to the state, notwithstanding the Constitution forbids it to do so.
Whatever may be said of other provisions constituting this plan — for instance, of the provision of section 2 requiring the funds to be distributed to the several counties according to population, without any means available to the board for ascertaining the population, or of the provision of section 3 requiring the board to relinquish control of these funds without any additional security from the county treasurer who receives the funds for the county, or of the provision of section 2, subdivision (c), requiring the county auditor to give public notice of the funds on hand available for farm loans, and the apparently contradictory provision of section 6, which requires such notice to be given by the county commissioners, or of the provision of section 10, which requires the county in its own name to give a release and satisfaction for a debt due to the state and paid by the borrower, or of the provision of section 6 (a), which attempts to impose upon a judicial officer purely ministerial duties — this much is certain: Sections 9 and 12 violate the plain mandates of the Constitution.
It is beyond the power of legislation to compel a county, or the several counties, to assume a burden imposed upon the state itself by terms of the Constitution which are mandatory and prohibitory.
A county cannot be compelled to loan its credit in aid of an individual or to make good the loss incurred by 'a delinquent borrower’s failure to discharge his obligation to the state.
The county which has already reached the constitutional limit of indebtedness cannot be burdened by further liabilities of this character imposed by statute, or at all, without an amendment to the Constitution itself.
Taxes imposed and collected by a county can be expended only for public purposes. (Const., sec. 11, Art. XII.) They cannot be diverted to liquidate the debt of a private individual.
Whether the invalid provisions of sections 9 and 12 shall operate to defeat the contingent plan depends upon the answer to the inquiry: Are those provisions so intimately related to the remaining portions of the statute creating the plan that it may be said fairly they were an inducement to the lawmaker to provide the plan?
In construing a statute the court must, if possible, ascertain and carry into effect the intention of the legislature enacting it (Power v. Board of Co. Commrs., 7 Mont. 82, 14 Pac. 658); and such intention is to be gathered from the terms of the statute, when considered in the light of surrounding circumstances. (Jay v. School District No. 1, 24 Mont. 219, 61 Pac. 250.) In so far as we are able to ascertain the intention of the lawmakers in providing for this contingent plan, it would seem reasonably certain that the provisions requiring the county to be responsible and accountable for the funds received by it and to guarantee each loan made by it were intended to constitute the mainstay or principal support of the entire plan. So long as the funds are committed to the custody of the board for investment, the state guarantees their integrity under the provisions of the Enabling Act and the Constitution requiring it to do so; but when by the terms of this plan the board is required to relinquish entire control and the county, through its officers, assumes exclusive management, the guaranty of the funds by the county was apparently deemed necessary to their safety and security and without which the plan would never have been devised. Under this view, the entire plan must be deemed abortive, and the statute, in so far as it provides for it, unconstitutional and void.
The people of this state, acting as a legislative body, can no more transgress the provisions of the state Constitution than can their representatives in the legislative assembly. The terms of the Constitution can be changed or modified only in the manner indicated in Article XIX of the Constitution.
But it does not follow that because this contingent plan must be disregarded the entire Act is invalidated. The respective portions of the Act providing the two plans are entirely distinct; that is to say, the provisions constituting the primary plan are in no wise dependent for their vitality upon the remainder of the Act. The primary plan is complete in itself, and will not be affected by a disregard of the remaining portions of the Act. The rule applicable here was stated by this court in Dunn v. City of Great Falls, 13 Mont. 58, 31 Pac. 1017, as follows: “If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained.” (Hill v. Rae, 52 Mont. 378, 158 Pac. 826.)
Under the views herein expressed, the county auditor of Cascade county is not a necessary or proper party to this proceeding, and he is dismissed from further consideration.
The peremptory writ will issue directed to the remaining defendants constituting the state board of land commissioners, commanding them to receive and consider the application of this relator, and to take such further steps as will render effective the primary plan of the Farm Loan Act as indicated herein.
Mr. Justice Sanner concurs.
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
B. S. Wiley was convicted of grand larceny, and appealed from the judgment and from an order denying him a new trial.
The evidence offered by the state discloses that in the spring of 1914 John S. Treece, the owner of a small black gelding branded combination rJ. T. inverted, turned tbe animal out on tbe range in Ravalli county; that in July following, the same animal was seen in the defendant’s possession; that the defendant again turned the animal out on the range; that in October the animal was in defendant’s possession, and continued in his possession until about the end of November; that during this period defendant attempted to trade it to Claude Chaffin; that about the last of November he traded it to Tom Randolph, who kept it throughout the winter and branded it in the spring of 1915; that soon thereafter the owner discovered the animal in Randolph’s possession and laid claim to it; that Treece, Randolph and defendant met in Hamilton within a few days, and defendant then stated to Treece that he had secured the animal in good faith from one Jensen from the Big Hole country, and had in turn traded it to Randolph; that later defendant told Treece that his first story was false, and that it was invented at the suggestion of Randolph to clear him from any appearance of wrongdoing; that in fact the animal was gathered in defendant’s pasture with animals belonging to defendant; that Randolph, seeing the animal and being informed by defendant that it was apparently an unbranded estray, took it from defendant’s possession, and later placed his own brand upon it. Upon the trial the court gave certain instructions which were excepted to by the defendant, and refused two instructions tendered by the defendant.
1. In each of the two offered instructions the defendant sought to have impressed upon the jury the idea that the felonious intent to steal must have accompanied the original taking, and that if it did not, larceny was not committed even though it might appear that defendant afterward converted the animal to his own use with intent to deprive the true owner of his property. Conceding, for the sake of argument, that each of these tendered instructions is correct, it does not follow that the court erred in refusing them. In Instruction 3, given, the court charged that “a felonious intent must have accompanied” the taking in order to constitute larceny, and in Instruction 5 the jury was informed that in order to find the defendant guilty, it was necessary to find that the defendant took the animal into his possession, that he knew at the time that it was not his' property, “and that he intended then to steal and convert it to his own use,” etc. We think the jury could not have misunderstood the meaning which the court intended to convey by these expressions. It is not error to refuse a correct instruction when the court has fully covered the subject by appropriate instructions given. (State v. Martin, 29 Mont. 273, 74 Pac. 725.)
2. The court defined larceny in the language of section 8642, Revised Codes, and grand larceny in the language of subdivision 4, section 8645, Revised Codes. Counsel for appellant apparently assumes that the court gave different definitions of the same offense, some of which were not applicable to the facts of this case; but attention is directed to the fact that the substantive crime defined in Chapter Y, Title XIII, Part I, of the Penal Code, is larceny, and that grand larceny and petit larceny are but the two separate degrees of that crime. Section 8642 defines larceny, and section 8644 provides: “Larceny is divided into two degrees, the first of which is termed grand larceny, the second petit larceny.” There is no punishment prescribed for larceny as such, but the degree of punishment is made to depend upon the degree of the crime. (Secs. 8647, 8648, Rev. Codes.) Speaking generally, where a specific crime is divided into degrees, it is sufficient to charge the commission of the substantive offense (State v. Copenhaver, 35 Mont. 342, 89 Pac. 61; State v. Mish, 36 Mont. 168, 122 Am. St. Rep. 343, 92 Pac. 459), and it is then made the duty of the jury to determine from the evidence the particular degree of the erime of which the accused is guilty, if guilt be shown. (Rev. Codes, sec. 9324.) It is true that the information charges the theft of an animal the stealing of which is grand larceny without reference to its value; but, even so, the substantive crime is larceny, and no fault can be found with the court for defining that offense as well as the particular degree of it, of which the defendant was guilty, if guilty at all. There is not anything said in State v. Dickinson, 21 Mont. 595, 55 Pac. 539, in conflict with these views. In this instance the court repeatedly impressed upon the jurors the fact that they must find the allegations of the information to be true in order to return a verdict of guilty.
3. By Instruction 11 the court advised the jury of the probative value of evidence of recent possession of stolen property. The objection urged upon us is that there is not any evidence that the defendant was in possession of the animal in question, recently, that is, immediately before the information was filed in June, 1915. Appellant misconceives the meaning of the term “recently,” as applied in this connection in the law of larceny. ‘ ‘ Recently ” or “ recent possession ’ ’ refers to possession in the defendant soon after the commission of the larceny, and not to possession immediately before the information is filed or a trial had. (4 Words and Phrases, 2d Series, 206; State v. Willette, 46 Mont. 326, 127 Pac. 1013.)
4. The court gave, in substance, sections 8119 and 9167, Revised Codes, defining a principal and advising the jury that the distinction between accessory before the fact and a principal in a felony case has been abrogated by statute, and that all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense or aid and abet in its commission, are to be prosecuted as principals. • The objection urged to these instructions is that there is not any evidence which warrants their submission, but with this we do not agree. Taking the evidence as a whole, we think the jury might, with propriety, have drawn the inference that Randolph was the titular principal, and that this defendant aided and abetted him in the commission of the offense. Neither of these instructions is open to the charge that it implies that a felony had been committed. They might have been amplified somewhat to make a concrete application, but defendant did not ask that any such application be made.
There is not any merit in the contentions made in behalf of appellant, and the judgment and order are accordingly affirmed.
Affirmed.
Mr. Justice Sanner concurs.
Mr. Chief Justice Brantly, being absent, takes no part in the foregoing decision.
|
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] |
MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
The plaintiffs, A. J. and J. M. Buhler, are father and son. On October 14, 1913, the latter executed and delivered to the defendant W. J. Loftus, a resident of Chicago, Illinois, his promissory note, negotiable in form, for the sum of $2,000, due and payable three years after date with interest at eight per cent per annum. To secure the payment of the note he executed and delivered to Loftus a mortgage upon certain lands owned by him and situate in Flathead county. The mortgage was duly recorded on October 23. The $2,000 was the purchase price, agreed to be paid to Loftus by A. J. Buhler, of 100 shares of the capital stock of the American Mortgage Insurance Company, a corporation organized under the laws of the state of South Dakota and having its principal office at Chicago. The purpose of the organization of the corporation was to loan money upon the security of first mortgages on farm lands. It was authorized to do business throughout the United States. Hereafter it will be mentioned as the company. It was capitalized for $1,000,000, divided into shares of the par value of $10 each. Loftus was one of the agents of the company to sell shares of its stock and also to appoint local agents to negotiate loans for the company upon a commission. The plan pursued was that anyone desiring or agreeing to become a local agent was required to purchase from the company 125 shares of its stock at $20 per share. He was then required to enter into a written contract to cover a term of ten years, by the stipulations of which he was appointed the exclusive agent in certain designated territory, in consideration of his performing certain duties for, and assuming certain obligations to, the company. Loftus went to Poison, in Flathead county, the residence of the plaintiffs, to arrange for the appointment of one A. D. Maynard, also a resident of Poison, as local agent. Maynard being away from home, Loftus entered into negotiations with the Buhlers. The negotiations resulted in the purchase by A. J. Buhler of 100 shares from Loftus personally at $20 per share; the latter agreeing to accept the note and mortgage of J. M. Buhler in place of cash, and giving the assurance that A. J. Buhler would be appointed agent. The action of Loftus was ratified by the company, and the appointment was made on October 20. It was understood at the time that the two Buhlers and F. H. McDermont, an attorney at law then residing at Poison, should each have a one-third interest in the business transacted under the appointment; A. J. Buhler alone being responsible to the company under his contract. The company was not then ready to begin negotiating loans, but was to begin within two months thereafter. It never did any business, however, for the reason that a sufficient number of shares of stock had not been and could not be sold to realize money enough to enable it to make loans. The note was made payable at the City National Bank at Dixon, Illinois. On January 6, 1914, W. J. Loftus assigned the note and mortgage to defendant John II. Loftus, a brother residing at Dixon, as part payment of a debt due the latter. The assignment was recorded in Flathead county on May 16, 1914. On May 25, 1915, plaintiffs brought this action to obtain a decree directing a cancellation of the note and mortgage, on the ground of fraudulent representations by Loftus whereby plaintiff J. M. Buhler was induced to execute and deliver them. As ground for relief, the complaint alleges: “(5) That it was represented to plaintiffs, at the time said plaintiff A. J. Buhler entered into said agency contract, by the defendant W. J. Loftus, and the president of the defendant the American Mortgage Insurance Company, H. A. Luther, that the said defendant company; although not fully organized, had not sold all of its capital stock, and was not quite ready to commence business, or to make and accept farm loans in the territory above described, but would be ready for business and accept loans in said territory within about two months from the date of making and entering into said contract, and that the said defendant loan company would allot to plaintiff A. J. Buhler, from month to month, that proportion of its available funds as the number of shares of its capital stock purchased by plaintiff A. J. Buhler bears to the total number of shares of its capital stock then sold for loaning purposes, which would amount to, as a loaning fund, at least $100,000 annually.” It is then alleged in substance: (6) That in order for plaintiff A. J. Buhler to secure the appointment as the sole and exclusive agent of the company, and to secure his approval of the contract, it was represented by Loftus that said Buhler was required to purchase at least 100 shares of the capital stock of the com pany at $20 per share, or a total of $2,000; (7) that in consideration of A. J. Buhler securing the contract, and that he would be furnished with money for the making of loans in the said territory, Buhler purchased the 100 shares for the sum of $2,000, and gave in payment therefor his promissory note, payable to the order of Loftus, and that it was signed and indorsed by J. M. Buhler; (8) that thereafter, and on the same day, the plaintiff J. M. Buhler, to secure the payment of the note, and for no other purpose, executed and delivered the mortgage; (9) that thereafter, on or about November 3, 1913, the company issued and delivered to A. J. Buhler the shares of stock, having on October 20 approved the contract and delivered the same to him, thus constituting him its sole and exclusive agent in the said territory; (10) that by reason of the statements and representations before mentioned A. J. Buhler was induced to purchase the shares, to enter into the contract, and to make the promissory note and mortgage and deliver the same to W. J. Loftus; (11) that the representations were wholly false and untrue, that they were then known by the company and Loftus to be false and untrue, that they were made with the intent and purpose of inducing the plaintiff A. J. Buhler to purchase the stock, and to secure from him and J. M. Buhler the note and mortgage, that the company was at all times unable to sell a sufficient amount of stock or otherwise to raise money with which to begin business, or to carry out its contract and agreement with A. J. Buhler, that it has never at any time furnished said Buhler with any money to make farm loans, that the company was insolvent and without funds with which to carry on business, and unable to perform any of the terms of its agreement with A. J. Buhler, and that it was well known to both Loftus and the company, when the note and mortgage were delivered to Loftus, that the company must at an early date go out of business and be dissolved; (12) that the mortgage was recorded in the office of the clerk of Flathead county on the -day of November, 1913; (13) that by reason of the facts heretofore alleged the mortgage and note were given to W, J, Loftus with out any consideration, and are wholly null and void, that the company has wholly failed to perform any of the terms of the contract with A. J. Buhler, that the shares of stock are entirely worthless, and that the plaintiffs herein offer to return them to the defendants; (14) that on May 16, 1914, in the state of Illinois, the defendant W. J. Loftus made a pretended assignment of the note and mortgage to his codefendant John H. Loftus,. which was thereafter recorded in the office of the clerk of Flathead county; and (15) that John H. Loftus is not a bona fide purchaser under the laws of the state of Illinois.
The company, though named as defendant, was not served with summons and did not appear in the action. The answer of the defendants Loftus denies all the allegations of the complaint charging fraud or misrepresentation by W. J. Loftus, and alleges that after the 100 shares of stock were sold to A. J. Buhler he authorized the company to transfer thirty-three shares to F. H. MeDermont. In a pleading designated as a reply the plaintiffs allege in effect that the note and mortgage are void for the reason that neither W. J. Loftus nor the company had complied with the laws of Montana (Chapter 85, Laws 1913, p. 367), relating to investment companies and stock brokers, enacted for the protection of investors, etc. The court called a jury to aid in ascertaining the facts, and submitted special interrogatories. Some of their findings the court adopted. It made formal findings on all the issues in favor of plaintiffs, and decreed to them the relief demanded. The defendants have appealed.
It would extend this opinion beyond any reasonable limits were we to give special notice to all the assignments made and argued by counsel. Many of them are not of sufficient merit to deserve even passing notice. We shall discuss only those which counsel seem to deem of controlling importance.
We notice, first, the contention that the complaint does not state a cause of action. This question was presented at the opening of the trial by an objection by defendants to the intro- ' duction of evidence, ■ Much of the argument on the assignment is more appropriately addressed to an inquiry whether the pleading is ambiguous and indefinite. Since it was not tested by special demurrer, however much it may be subject to criticism for defects in these particulars, this court is now confined to the single inquiry whether- it states sufficient facts to warrant the relief demanded.
It is argued that the representations by which plaintiff A. J. Buhler was induced to enter into the contract of agency were mere matters of opinion or related to what was to happen in the future, and that, though they turned out to be false, they did not constitute fraud, entitling him and his coplaintiff to have the mortgage and note canceled. It is true, as counsel contend, that parties are allowed under the law the greatest freedom of contract; that this is essential to the welfare of the community; that in their negotiations parties must be left to investigate for themselves and rely upon their own judgment; that the power vested in the courts to cancel contracts on the ground of fraud is extraordinary, and will be exercised only in cases in which the complaining party, free from fraud himself, has been deceived to his injury by his adversary; that the ultimate facts constituting the fraud must be specifically alleged, in order that the court may know whether, if proved, they will warrant the relief demanded, and that the adversary may know the particular charge he is to meet; that a misrepresentation as to what will be done in the future, or a statement of intention, or, generally, a mere expression of opinion, however erroneous, is not sufficient; but that the representation must relate to a present or past state of facts. In other words in order to make out a case of fraud, the pleading must allege facts embodying the following essential elements: (1) That the defendant made a representation or statement, intending that plaintiff should act upon it; (2) that the representation was false; (3) that the plaintiff believed it; and (4) that he acted upon it to his damage. (Butte Hardware Co. v. Knox, 28 Mont. 111, 72 Pac. 301, and cases cited; Power & Bro. v. Turner, 37 Mont. 521, 97 Pac. 950; Ott v. Pace, 43 Mont. 82, 115 Pac. 37; Henry v. Continental B. & L. Assn., 156 Cal. 667, 105 Pac. 960; Crocker v. Manley, 164 Ill. 282, 56 Am. St. Rep. 196, 45 N. E. 577; Southern Dev. Co. v. Silva, 125 U. S. 247, 31 L. Ed. 678, 8 Sup. Ct. Rep. 881; 2 Pomeroy’s Equity Jurisprudence, sec. 878.)
The fact concerning which the statement is made, however, may be with reference to the future, but so related to present existent conditions that its affirmation as a fact will constitute a fraudulent representation within the rule of the eases cited. On this subject we find this in the text of Mr. Pomeroy: “That the fact, however, concerning which the statement is made, is future, does not itself prevent the misrepresentation from being fraudulent. The statement of matter in the future, if affirmed as a fact, may amount to a fraudulent misrepresentation, as well as a statement of a fact as existing at present.” (2 Pomeroy’s Equity Jurisprudence, sec. 877.)
In support of this statement the author cites, among other cases, Piggott v. Stratton, 1 De Gex, F. & J. 33, 49, and Hutton v. Rossiter, 7 De Gex, M. & G. 9, 22, 23. To these may be added Pickard v. Sears, 6 Ad. & E. 469, Fall River Nat. Bank v. Buffinton, 97 Mass. 498, and Chouteau v. Goddin, 39 Mo. 229, 90 Am. Dec. 462. In the first of these cases Lord Chancellor Campbell said: “I apprehend that the injunction is to be supported on the well-established doctrine that if A makes a deliberate assertion to B, intending it to be acted upon by B, A is estopped from saying it was not true. If it turns out to be false, A is answerable for the damage which may have accrued to B from having acted upon, and B is entitled, in respect of anything done in the belief that it was true, to object to any denial of it by A.” In the note to the text of Mr. Pomeroy, supra, this remark is made referring to the cases cited: “Some of these eases may be referred to the doctrine of equitable estoppel; but it is plain that, where the representation is that of a fact in the future, and not a mere promise, and it is relied upon, and turns out to be false, the rights and remedies of the injured party are the same as those which arise from the fraudulent representation of an existing fact.” Under this rule, the representation, we apprehend, will operate as an estoppel in favor of the injured party, or may be availed of by him as a ground for the cancellation of a contract entered into upon the faith of it, according to the attitude occupied by the parties in the particular controversy, and the character of the relief sought.
The complaint is not a model of clearness and orderly statement ; but, assigning to the several parts of it their obvious meaning and purport, and construing it as a whole under favor of the familiar rule that “whatever is necessarily implied in, or is reasonably to be inferred from, an allegation, is to be taken as directly averred” (Phillips on Code Pleading, 352; Bayliss on Code Pleading, 49; County of Silver Bow v. Davies, 40 Mont. 418, 107 Pac. 81), we think it alleges sufficient to bring it within the rule stated by Mr. Pomeroy, supra.
The purpose of the negotiations had between the parties was that A. J. Buhler should become the exclusive agent for the company in the territory mentioned. The representation which operated as the inducement is alleged in paragraph 5. It is in effect a categorical statement that, while the company was not then ready to begin business, it was in such a condition that it would be ready in about two months and prepared to furnish the funds required to enable A. J. Buhler to negotiate loans in its behalf. In paragraphs 6, 7 and 8 is alleged the consideration demanded by Loftus for the contract, the purchase of the shares of stock which was made a condition precedent to the appointment, and the execution of the note and mortgage to secure the consideration to be paid, instead of paying it in cash. Paragraph 9 recites the approval of the negotiations by the company, the issuance of the shares of stock, and the final appointment for which the consideration was promised. Paragraph 10 alleges in effect that, by reason of his belief in and reliance upon the alleged statements of Loftus and Luther, the president, A. J. Buhler was induced to purchase the shares and to enter into the contract of appointment for the consideration demanded. Paragraph 11 alleges that the representations stated in paragraph 5 were wholly false, that they were known by Loftus and the president of the company to be such, that they were made with the intention to deceive and defraud the plaintiffs and to induce the execution of the note and mortgage, and that the company was unable at any time to sell its stock or to raise money otherwise to make loans or to furnish A. J. Buhler money for that purpose, in that it was insolvent at the time the contract was made.
If the representation had been in the form of a promise merely that the company would furnish A. J. Buhler money within two months of the date of appointment, it being able at the time and intending to do so, its failure to keep the promise would have been a breach of the contract. The plaintiffs, however, understood — and it was the intention of Loftus that they should understand — that the company had then approached a condition of readiness such as to enable it within two months to engage in the business which it was organized to conduct. This was tantamount to an affirmation of a matter in the future as a fact existing at the time the contract was made, and was the inducement upon which he effected the sale of the stock and the execution and delivery of the note and mortgage. It amounted to the suggestion as a fact of that which was not true, by Loftus, who did not believe it to be true, and was therefore a fraud, within the meaning of subdivision 1 of section 4978 of the Revised Codes. In any event, his statements amounted to an “ act fitted to deceive.” {Id., subd. 5.)
It is argued that the complaint is insufficient, also, in failing to allege in specific terms that plaintiffs are without an adequate remedy at law. Whether the particular ease alleged is one of equitable cognizance depends solely upon the specific averments upon which the demand for relief is predicated. The addition of the jurisdictional clause does not aid it in any way. It is merely a conclusion of law to be drawn by the court, not by the pleader, from the specific facts alleged. The allegation of it is therefore wholly unnecessary. (16 Cyc. 222.)
It is also argued that it does not appear that the plaintiffs have offered to restore to the defendants the shares of stock. This argument is without merit. The concluding clause of paragraph 13 is sufficient allegation on this subject. (Maloy v. Berkin, 11 Mont. 138, 27 Pac. 442.)
During the course of the trial the court permitted certain amendments to be made to the complaint. It is argued that this was error, in that the effect of the amendments was to make the complaint state a cause of action; whereas, before they were allowed, it was fatally defective. There was no error. The power to allow the amendments at any stage of the trial is within the discretion of the trial court, and its action in this behalf is not subject to review by this court, unless it is affirmatively shown that it abused its discretion to the prejudice of the adverse party. (Rev. Codes, sec. 6589; Bennett v. Tillmon, 18 Mont. 28, 44 Pac. 80; Merrill v. Miller, 28 Mont. 134, 72 Pac. 423; Bandeen v. Bussell Lumber Co., 45 Mont. 273, 122 Pac. 913; De Celles v. Casey, 48 Mont. 568, 572, 139 Pac. 586.) Though the defendants demanded a postponement of the trial, because of the allowance of one of the amendments, they presented no affidavit showing that they were surprised, or that they were not ready and able to produce all the evidence they desired. Indeed, it is apparent that they introduced all the evidence they had at their command.
Error is predicated upon the admission in evidence of Exhibits “D” and “F.” The first was a letter addressed to the stockholders, ostensibly by H. A. Luther, president of the company, under date of April 21, 1914, conveying the information that at the annual meeting of stockholders held in Chicago on April 7, 1914, it had been determined to surrender the Chicago office and remove general headquarters of the company to Aberdeen, South Dakota; that a committee had been appointed, whose chairman was W. S. Narregang, of the latter place, himself a stockholder, to suggest a feasible plan to conduct the business of the company; and that all letters addressed to the company should be addressed to Narregang until May 23, to which date the meeting of April 7 had been adjourned to reconvene at Aberdeen. It contained what purported to be resolutions adopted at the April meeting. Exhibit “F” was a letter written to A. J. Bnhler by Narregang on August 13, 1914, stating in effect that the company was going out of business, and was not in a position to make any loans of any kind. These were introduced, as tending to show that the company was in a failing condition, and hence that the representations of Loftus were false. They were not shown by any evidence to have been in fact signed by their purported authors, or identified as genuine. They were, therefore, not admissible for'any purpose.
Like objection was made to the introduction of Exhibits “H” and “I.” The first consisted of an order by the circuit court of the fifth judicial district of South Dakota, made on May 13, 1914, appointing one Arthur M. Cole temporary receiver to take charge of the property and assets of the company, in an action entitled S. W. Narregang v. American Mortgage Insurance Company. The second was a copy of the register of actions in the cause, disclosing the different proceedings had in it until it ended. Both were exemplified as required by section 7911 of the Revised Codes. They were introduced to show that the company had been forced into the hands of a receiver as an insolvent, and that it had thereafter been dissolved. Both these exhibits were mere fragments of the record, and did not tend to show for what cause the receiver was appointed, nor what was adjudicated by the final judgment. They were not, therefore, competent for any purpose. The order was interlocutory, and did not adjudicate anything. The register of actions merely indicated that certain steps had been taken in the action. Assuming that the final judgment in the action would have been admissible for the purpose intended (the company was not made a party to the present action), it could be made available only by the production- of an exemplified copy of the entire record, or so much of it as would disclose the issues made by the pleadings and what was finally adjudicated in the action.
In support of the allegations in their reply, the plaintiffs were permitted to introduce the deposition of Honorable William Keating, the state auditor and investment commissioner of Montana, to show that neither W. J. Loftus nor the company had been licensed to transact business of any kind in Montana. It is not necessary to inquire whether the sale of the shares of stock to plaintiffs was a doing business in the state, within the meaning of the statute relating to investment companies, supra, sought to be invoked by plaintiffs, or whether, if the sale of the shares was void, the plaintiffs were entitled for this reason to have the note and mortgage canceled. The allegation of new matter in the reply to impeach the sale transaction constituted a distinct departure in the pleadings, and presented an issue upon which no relief could be predicated. The office of a reply is to join issue upon the counterclaim, or the new matter of defense alleged in the answer, or to avoid it, as the case may be. It may, in a particular instance, aid the answer; but it cannot aid the complaint, by supplying an omission therein or broadening its scope, by adding to it a new ground of relief. (Thornton v. Kaufman, 35 Mont. 181, 88 Pac. 796; Waite v. Shoemaker, 50 Mont. 264, 146 Pac. 736; Doornbos v. Thomas, 50 Mont. 370, 147 Pac. 277; Bliss on Code Pleading, 437; 9 Cyc. 747.) The objection to these items of evidence should have been sustained.
Other rulings upon the admissibility of evidence are also assigned as error. None of these require special notice, save those which had reference to the means of proof of the unwritten law of the state of Illinois relating to the nature of the right acquired by the assignee of a trust deed or mortgage and the note secured by it. We shall notice these later when we come to inquire whether John H. Loftus became the owner of the note and mortgage free from equities in favor of plaintiffs.
Counsel strenuously insist that the rulings just noticed entitle defendants to a reversal of the decree. If the court had adopted the findings of the jury without further consideration, and rendered its decree thereon, the argument of counsel would perhaps have some plausibility. (Wetzstein v. Largey, 27 Mont. 212, 70 Pac. 717.) This, however, the court did not do. The formal findings were made after careful consideration of the evidence by the court, and after argument by counsel for defendants on their motion asking the court to reject the findings of the jury and adopt findings in favor of defendants. Under the circumstances, we may presume that the trial judge based the findings upon so much of the evidence as was competent and substantially material, rejecting such as ought to have been rejected. (Finlen v. Heinze, 28 Mont. 548, 73 Pac. 123; Lane v. Bailey, 29 Mont. 548, 75 Pac. 191; State v. Driscoll, 49 Mont. 558, 144 Pac. 153.)
The next assignment we will consider is that the evidence is insufficient to justify the findings. Since the appeal is from the judgment only upon a bill of exceptions, the question presented by the assignment is, not whether the trial court abused its discretion in denying defendants a new trial, but whether there is any substantial evidence to support the findings as made. "We shall not undertake to state and discuss the evidence with reference to the different findings in detail. It is sufficient to say that, with the exception of the finding of the specific date at which the receiver was appointed, and the finding that neither W. J. Loftus nor the company had been .licensed to do business in Montana, to which reference will be made later, the findings are responsive to the general scope and meaning of the allegations of the complaint, and are supported by substantial evidence. It is true that it is alleged in the complaint that the note was that of A. J. Buhler, and that it was signed and indorsed by J. M. Buhler, and that the evidence shows that it was signed by J. M. Buhler only; and not indorsed by him. This is not a material variance, as counsel contend. The note and mortgage were given by J.' M. Buhler to secure the appointment of A. J. Buhler as the exclusive agent of the company, and to enable the latter, as between the two, to have an interest in the commissions earned in the business. It appears incidentally, also, that it was the intention of A. J. Buhler that one-third of the shares of stock, when issued, should belong to F. H. MeDermont, one of counsel for plaintiffs, who, as between him and the Buhlers, was to have a one-third interest in the commissions earned in the business. It is insisted, therefore, that it appears that McDermont owns an interest in the stock, and hence that this condition of the evidence constitutes a material variance. The certificates themselves, however — one for sixty-seven shares and the other for thirty-three shares — were at the time of the trial still owned by A. J. Buhler, and were then tendered by him to the defendants. There was, therefore, no variance in this regard. The fact that the plaintiffs and McDermont had an agreement among themselves to share in the commissions to be earned is not of consequence.
It is insisted that there is no evidence tending to show that the stock is of no value. While, as we have said, the evidence introduced by plaintiffs, heretofore referred to as tending to establish the fact that the company was insolvent and that the stock was worthless, was incompetent, the defendant W. J. Loftus during the giving of his testimony admitted, in effect, that when the contract with A. J. Buhler was made, and he secured the note and mortgage, the company was in a condition of insolvency. According to his testimony, the company was organized and commenced selling stock in the spring of 1912. Though at the time the contract was made it had been engaged for more than a year in the attempt to accumulate sufficient cash from stock subscriptions to begin business, and had nominal assets to the amount of $175,000, it had accumulated but a small amount of cash; the great bulk of its assets consisting of subscription notes payable on the condition that all the stock had been subscribed for. The officers of the company were making every effort to get the stock disposed of, but had failed to do so, and he attributed this condition to a stringency in the money market. He admitted, however, that the company had gone into the hands of a receiver in May, 1914, at the suit of Narregang, one of the largest creditors. Taking the testimony as a whole, it furnishes some basis for the inference that the stock was not worth $20 per share, nor any other amount. Aside from this, however, the main purpose of the transaction was to secure for A. J. Buhler the appointment as exclusive agent of the company upon the implied assurance that it was practically ready to begin business. The purchase by him of the stock was not as an investment, but to qualify himself to secure the appointment, so that he would thereafter have a profitable business; and it is clear from all the evidence that, but for the assurance of the appointment, he would not have bought the stock. True, he was awarded the appointment; but it was without value, and the purpose he had in view failed of accomplishment entirely. In fact, the net result was that he did not get what he contracted for, and that W. J. Loftus secured a sale of stock owned by him personally at double its nominal value; whereas, when questioned as to its actual value, he was not willing to go further than to say that it had a value of about $16, basing this opinion upon his estimate of outstanding conditional subscription notes. On the whole, we think that the evidence, direct and circumstantial, is sufficient to justify the findings, so far as they are material and responsive to the allegations of the complaint. In view of this conclusion, the finding touching the matter of failure by Loftus and the company to obtain license under the statute, supra, may be eliminated and disregarded as immaterial. The same disposition may be made of the criticism of the finding as to the exact date when the receiver of the company was appointed.
It remains to inquire whether John IT. Loftus took the note and mortgage free from all equities in favor of J. M. Buhler. Since the assignment was made in Illinois, counsel for the plaintiffs assumed that the assignee’s rights were to be determined by the unwritten law of that state, and offered evidence to prove it. The mode adopted was this: Mr. Kendall, one of counsel for plaintiffs, testified in effect that he had become acquainted with the decisions of the supreme court of Illinois by reading the opinion in the case of Bouton v. Cameron, as published in 205 Ill. 50, 68 N. E. 800, and other cases. Thereupon the opinion was admitted over the objection, among others, that Mr. Kendall had not disclosed sufficient knowledge to lay the foundation for its admission. The means by which such proof may be made are prescribed by section 7908 of the Revised Codes. (See, also, Ridpath v. Heller, 46 Mont. 586, 129 Pac. 1054.) We shall not stop to determine whether the evidence was properly admitted. Assuming that the law of the state of Illinois is as counsel undertook to show, the law on the subject in this state is the same, and the conclusion reached by the trial court would have been the same, though the evidence had been rejected. The note did not refer to the mortgage and upon its face was negotiable. If it had been transferred to John H. Loftus by indorsement, without mention of the mortgage, what rights he would have acquired would have depended upon the solution of a different question from that before us, viz., whether, in view of the restrictive provision found in section 6861 of the Revised Codes, he would have acquired the rights of a holder in due course under the Negotiable Instrument Law (Rev. Codes, sec. 5906). The transfer, however, was made by written assignment of the note and mortgage both; W. J. Loftus indorsing the note without recourse. John H. Loftus, therefore, took it with full knowledge that it was a mortgage note, collectible by him only as such, under the provisions of section 6861, supra. It therefore did not come into his hands as “a courier without luggage,” but as a non-negotiable instrument, subject to all the equities existing in favor of J. M. Buhler at the time he received it. This was expressly so held by this court in Cornish v. Woolverton, 32 Mont. 456, 108 Am. St. Rep. 598, 81 Pac. 4, and that case is conclusive of this. Though the recorded written assignment gave J. M. Buhler constructive notice that John H. Loftus had become the owner of the note, it did not serve in any wise to cut off Buhler’s right to impeach the note on the ground that it had been secured by fraud.
The judgment is affirmed.
Affirmed.
Mr. Justice Sanner and Mr. Justice Holloway concur.
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MB. JUSTICE HOLLOWAY
delivered the opinion of the court.
This action was brought to recover upon a promissory note dated December 26, 1897. The defendant prevailed in the lower court, and plaintiff has appealed.
The second defense interposed is to the effect that in 1893 the defendant executed and delivered to plaintiff his certain promissory note; that when such note became due in 1894 it was renewed by defendant executing and delivering to plaintiff another note; that in 1896 a third note was given in renewal of the second; and that in 1897 the note sued upon was given in renewal of the balance due upon the third note. It is further alleged that the note sued upon was prepared by a scrivener through whose mistake a clause was inserted which neither of the parties to the transaction ever intended should be included; that not any one of the three preceding notes contained the objectionable clause; that it was the intention and agreement of plaintiff and defendant that the note sued upon should be a renewal pro tanto of the note executed in 1896; and that it should be in the same form and of like tenor and effect as the preceding notes evidencing the same indebtedness. Upon a former appeal (Parchen v. Chessman, 49 Mont. 326, Ann. Cas. 1916A, 681, 142 Pac. 631, 146 Pac. 469) we held that the facts pleaded in this second defense, if true, would warrant reformation of the note and make available the first defense. That decision became the law of the case binding upon this court as well as upon the court below. (Yellowstone Nat. Bank v. Gagnon, 25 Mont. 268, 64 Pac. 664; Conway v. Monidah Trust, 51 Mont. 113, 149 Pac. 711.)
The findings made by the trial court follow substantially the allegations contained in the defendant’s second defense, and the principal contention now made is that the evidence is insufficient to sustain such findings.
It is insisted that the testimony of the defendant in support of his affirmative defense is altogether uncorroborated, and that, if it is not absolutely necessary that it be corroborated, at least a court of equity should proceed with extreme caution in awarding reformation of a written instrument upon the testimony alone of the party seeking such relief. We may agree with counsel that to warrant reformation the evidence must be clear, convincing and satisfactory; but this rule refers to the quality rather than to the quantity of proof. It is idle to refer to authorities which hold that to warrant reformation on the ground of mistake, the mistake must be made to appear beyond a reasonable doubt or by any quantum of proof beyond a bare preponderance. Whatever may be the rule in other jurisdictions, the question is set at rest in this state by statute. Section 8028, Revised Codes, declares that in a civil case the affirmative of the issue must be proved, and when the evidence is contradictory, the decision must be made according to the preponderance of the evidence. (Gehlert v. Quinn, 35 Mont. 451, 119 Am. St. Rep. 864, 90 Pac. 168.) Neither can it be questioned that the preponderance of the evidence may be established by the testimony of a single witness as against a greater number of wih nesses who testify to the contrary; for section 7861, Revised Codes, declares that: “The direct evidence of one witness who is entitled to full credit is sufficient proof of any fact, except perjury and treason.” (See Story v. Maclay, 6 Mont. 492, 13 Pac. 198; subd. 2, sec. 8028, above.)
It was for the trial court to determine the credibility of the defendant in the first instance, and, unless his testimony is characterized by such inherent improbability as in effect to destroy the testimony itself, this court will not interfere.
We find nothing improbable in the story told by the defendant; on the contrary, there were facts and circumstances corroborating his testimony which doubtless weighed in the estimation of the court below. It is beyond controversy that the note sued upon is one of a series of four notes given to evidence the same indebtedness. The first one was executed in 1893. In 1894 the second one was given in renewal of the first. In 1896 the third was given in renewal of the second, and finally the note sued upon was given in renewal of the third. As each note was superseded by a new one, the old note was surrendered to the defendant. Upon the trial defendant was unable to produce either the first or third note, but he did produce the second note, which disclosed that it did not contain the objectionable clause found in the one sued upon. If each succeeding note was intended to be a renewal of the preceding one, then every one of the notes should have contained the same substantive terms except as to amount and date of payment. In Hay v. Star Fire Ins. Co., 77 N. Y. 235, 33 Am. Rep. 607, the court said: “An agreement to renew a policy implies that the terms of the existing policy are to be continued, and this would be so of any instrument, in the absence of evidence, that a change was intended. ’ ’
“The word ‘renewed’ or ‘renewal,’ as applied to promissory notes in commercial and legal parlance, means something more than the substitution of another obligation for the old one. It means to re-establish a particular contract for another period of time, to restore to its former condition an obligation on which the time of payment has been extended.” (7 Words and Phrases, 6084.)
“The word ‘renew,’ in a lease providing that the lessee shall have the right to renew the lease, imports a giving of a new lease like the old one, with the same terms, stipulations, and covenants.” (4 Words and Phrases, 2d series, 267; Leavitt v. Mayhel, 203 Mass. 506, 133 Am. St. Rep. 323, 89 N. E. 1056.)
With this second note in evidence tending so strongly to confirm the defendant’s version of the transaction, it cannot be said that the trial court was not justified in finding that a mistake was made in drafting the note sued upon; and this is particularly so in view of the fact that twenty-one years elapsed between the execution of the first note and the date of the trial, and that these witnesses were compelled to rely upon their uncertain recollection of transactions the last of which occurred seventeen years before they testified.
It is further contended that, even though the evidence discloses that as to defendant there was a mistake made in inserting the objectionable clause, there is not any evidence of a mutual mistake, since plaintiff insists that the note correctly represents the agreement made at the time it was executed and delivered. "We know of no rule of law which requires that each of these parties must come upon the witness-stand and admit that the writing does not correctly express their agreement, in order to prove that a mistake common to both was made in its execution. The fact that by a mistake a certain provision was incorporated which neither party intended should be included may be proved as any other fact, and if upon the whole ease it appears that such a mistake was made, reformation may be authorized, even though one of the parties denies that any mistake whatever occurred. There is presented merely a question of the credibility of the witnesses and the weight to be given to their testimony.
It may be conceded that, if plaintiff and defendant mutually agreed that the note sued upon should be in the same form (excepting amount and date of payment) as the 1894 note, which was produced in evidence, and if the objectionable clause was inserted only through the mistake or inadvertence of the scrivener, there is not presented a mutual mistake on the part of plaintiff and defendant according to the strict legal significance of those terms, though such a mistake is frequently referred to as a mutual mistake by the authorities. “The phrase ‘a mutual mistake’ as used in equity, means a mistake common to all the parties to a written contract or instrument, and it usually relates to a mistake concerning the contents or the legal effect of the contract or instrument.” (5 Words and Phrases, 4650; Page v. Higgins, 150 Mass. 27, 5 L. R. A. 152, 22 N. E. 63.)
It may be that the only issue presented where it is claimed the mistake occurred through the inadvertence of the scrivener is: What was the language intended by both parties to be incorporated in the writing ? But when the claim is made that by reason of the mutual mistake of the parties the instrument does not express their intention, “the court may inquire what the instrument was intended to mean, and what were intended to be its legal consequences.’.’ (Sec. 6110, Rev. Codes.) It is only in a very restricted sense, if at all, that it may be said that this defense presents a question of mutual mistake. It may possibly be said to be a mutual mistake in the same sense that, by defendant executing the note and plaintiff accepting it with the objectionable clause included, both are apparently made to do what neither intended to do, viz., to agree upon a form of note which includes the clause in question. But in reality, if the testimony of defendant be accepted, there was not any mistake made by plaintiff or defendant. They agreed upon the terms of their contract and were not mistaken as to its meaning or as to the legal consequences to flow from it. It was only because of the mistake of the scrivener that the instrument does not correctly express the terms agreed upon.
When it is said by courts and text-writers that equity will not lend its aid to reform an instrument for mistake unless it is a mutual mistake, the terms “mutual mistake” are used in contradistinction to a unilateral mistake or the mistake of one party to the instrument only. If the error occurs through the mistake of the scrivener, it' is none the less a mistake, and, to the extent of it, the writing does not express the will of the parties. To that extent the instrument is not their contract, for it lacks the indispensable element of meeting of minds upon the same thing at the same time. To speak of enforcing a contract which never existed is a contradiction of terms.
But, though, this case does not present a technical mutual mistake, it does present a mistake which a court of equity will not hesitate to correct to the end that the writing may express the agreement of the parties. (Born v. Schrenkeisen, 110 N. Y. 55, 17 N. E. 339; West v. Suda, 69 Conn. 60, 36 Atl. 1015; 34 Cyc. 910.)
It is not made certain by this record whether the plaintiff read the note sued upon before it was executed and accepted by him; but we do not deem it material if in fact he read the note before he received it and understood that it contained the objectionable clause. Plaintiff’s own testimony makes it clear that he had no agreement with defendant that the note should contain the particular clause in controversy. The question before the trial court was: What were the terms upon which the parties agreed at the time of their agreement? The discovery by one party after that time that the writing does not correctly express the agreement does not affect the agreement itself.
We have examined the other assignments, but do not think they merit special consideration.
The judgment is affirmed.
Affirmed.
Mr. Justice Sanner concurs.
Mr. Chief Justice Brantly, being absent, did not hear the argument, and takes no part in the foregoing decision.
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] |
PER CURIAM.
Pursuant to motion of appellants, the appeal in this cause is hereby dismissed.
|
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] |
PembertON, C. J.
— The court below evidently held that the defendant under the pleadings and evidence was entitled in equity to offset the appellant’s demand against the bank’s indebtedness to the county. The appellant contends that such holding is error. He insists that by allowing the offset an unauthorized preference was given to the defendant, which he claims is prohibited by section 5242 of the National Bank Law. This section is as follows:
“Sec. 5242. All transfers of the notes, bonds, bills of exchange or other evidences of debt owing to any national banking association, or of deposits to its credit; all assignments of mortgages, sureties on real estate, or of judgments or decrees in its favor; all deposits of money, bullion, or other valuable thing for its use, or for the use of any of its shareholders or' creditors; and all payments of money to either, made after the commission of an act of insolvency, or in contemplation thereof, made with a view to prevent the application of its assets in the manner prescribed by this chapter, or with a view to the preference of one creditor to another, except in payment of its circulating notes, shall be utterly null and void; and no attachment, injunction or execution, shall be issued against such association or its property before final judgment in any suit, action or proceeding, in any state, county, or municipal court.”
In Scott v. Armstrong, 146 U. S. 499, Mr. Chief J ustice Fuller, construing this statute in acase similar to the one under consideration, says: “The argument is that these sections by implication forbid this setoff, because they require that, after the redemption of the circulating notes has been fully provided for, the assets shall be ratably distributed among the creditors, and that no preferences given or suffered, iu contemplatiou of or after committing the act of insolvency, shall stand. And it is insisted that the assets of the bank existing at the time of the act of insolvency include all its property without regard to any existing liens thereon or setoffs thereto. We do not regard this position as tenable. Undoubtedly, any disposition by a national bank, being insolvent or in contemplation of insolvency, of its choses in action, securities or other assets, made to prevent their application to the payment of its circulating notes, or to prefer one creditor to another, is forbidden; but liens, equities or rights arising by express agreement, or implied from the nature of the dealings between the parties, or by operation of law, prior to insolvency and not. in contemplation thereof, are not invalidated. The provisions of the act are not directed against all liens, securities, pledges or equities, whereby one creditor may obtain a greater payment than another, but against those given or arising after or in contemplation of insolvency. Where a setoff’ is otherwise valid it is not perceived how its allowance can be considered a preference, and it is clear that it is only the balance, if any, after the setoff is deducted which can justly be held to form part of the assets of the insolvent. The requirement as to ratable dividends is to make them from what belongs to the bank, and that which at the time of the insolvency belongs of right to the debtor does not belong to the bank.”
While the case just cited was pending in the circuit court of appeals for the sixth circuit the court certified to the supreme court for instructions as to the proper decision thereof, among others, this question: “1. Where a national bank becomes insolvent and its assets pass into the hands of a receiver appointed by the comptroller of the currency, can a debtor of the bank set off against his indebtedness the amount of a claim he holds against the bank, supposing the debt due from the bank to have been payable at the time of its suspension, but that due to it to have been payable at a time subsequent thereto”? The supreme court answered this question in the affirmative.
Iu Yardley v. Clothier, 49 Fed. Rep. 337; 51 Fed. Rep. 506, the court holds that: “A depositor in an insolvent bank, who had indorsed a note that was subsequently discounted by said bank, can, in a suit by the bank to recover the amount of the note, set off his deposit against this amount, when the note matured after the insolvency of the bank.”
In this case the court further says: “The doctrine of setoff' is founded on the principles of equity, and, within certain limits, is universally recognized and applied. Where parties" dealing together become mutually indebted, the balance appearing on their accounts is, generally, alone recoverable. Well defined and easy of comprehension as the doctrine is, however, its application to the varying state of facts which arise is attended with the same degree of difficulty that attends the administration of other plain legal principles, under unusual circumstances. In the distribution of insolvents’ assets, whether under voluntary trusts for creditors, insolvent laws, in bankruptcy, or proceedings on decedents’ estates, its application has frequently been resisted on the ground that its allowance would create preference among creditors. To enter upon an examination of the questions raised and the distinctions drawn would be unprofitable. It is sufficient to say that in every instance in which this objection has been made (in the absence of controlling statutory provision) where the proposed setoff was due when the creditors’ rights attached, the courts have overruled it, whether the defendant’s debt, in suit, was due at the time or matured subsequently.”
In Van Wagoner v. Paterson G. L. Co., 23 N. J. L. 283, the court, discussing the doctrine of equitable setoff, say: “ I am of opinion, both upon principle and authority, that the debtor of an insolvent corporation loses none of his rights by the act of insolvency; that he has the same eqnitable right of setoff against the receiver that he had against the corporation at the time of insolvency, and, consequently, that the debtor of a bank, whether his indebtedness has actually accrued or not at the time of insolvency, may in equity set off against his debt either a deposit in the bank or the bills of the bank bona fide received by him before the failure occurred. It is said the object of the act is to do equal justice to the creditors, and that equality is equity. But equality of what, and among whom? Clearly of the assets of the bank, among the creditors of the' bank. In cases of cross-indebtedness the assets of the bank consist only of the balance of the accounts; that is, all the fund which the bank itself would have to satisfy its creditors in case no receiver had been appointed. And there is no equality, and no equity, in putting a debtor of the bank, who has a just and legal setoff against the corporation, in a worse position and the creditors in a better position by the bank’s failure and the appointment of a receiver.” Yardley v. Clothier, supra, is cited as authority in Scott v. Armstrong, supra, and is evidently in harmony therewith.
In view of these authorities we are unable to see how the defendant could be placed in a worse position and the creditors in a better one by the bank’s insolvency and the appointment of a receiver. If the bank had not failed and was now prosecuting this suit it would be hardly claimed that the defendant could not offset this claim. The appellant claims that the warrant in suit was not due at the time the bank became insolvent, because it had not been called for payment. Under the authorities cited we think this contention of little importance. But we are not satisfied that it is true that the warrant was not then due. The warrant is dated May 31, 1893, and there is no time specified when it is payable. It is indorsed “Presented and registered June 10, 1893. Not paid for want of funds.” But did the fact that the treasurer had no funds to pay it with at the date of its issue or presentation prevent its maturing until called for payment after funds had accrued to pay it with?
The evidence in the case shows that the officers of the bank knew this deposit was county money, placed in the bank for the sole purpose of paying the indebtedness of the county by the defendant as treasurer. And the circumstances of the case are such that the bank understood that, when the treasurer should seek to settle this account with it, either would have the right to claim credit for any cross-indebtedness that might exist. We think the facts and circumstances of this case are sufficient to establish the right to the equitable setoff claimed by defendant.
In this holding we do not intend to be understood as in any manner intimating that by the action of the county commissioners, as shown by the evidence, in treating this deposit by the treasurer as cash on hand, the defendant would be in any way relieved from liability as treasurer of said county, if loss should result by the insolvency of the bank.
The judgment of the court is affirmed.
Affirmed.
De Witt, J., and Hunt, J., concur.
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] |
Hunt, J.
— The plaintiff sued the defendant, the Murray Placer Mining Company, and sixteen others, to determine the right to the use of certain waters of Beaver creek, Jefferson county, and to have established, by decree, the relative rights of all parties to the suit to the use of said waters. Separate answers claiming appropriations and use were made by the defendants Davis, Thompson, and Julia Reynolds. The defendants, Samuel T. Hauser, Anton M. Holter, John Murray, and H. D. Hauser, jointly answered, denying plaintiffs appropriations at the dates alleged in his complaint, and the priority of the same over their rights, and setting up prior rights in certain of themselves.
Special issues were submitted to a jury, and fifty-nine questions answered by them. The court revised these findings, made certain modifications, and afterwards entered a decree establishing the respective rights of all parties.
Upon May 23, 1892, the appellant filed its statement on appeal, which was afterwards, on the 18th of July, settled as correct. There appears in the record, between the conclusion of the testimony of a witness and the instructions of the court to the jury, a “specification of errors,” in which are recited the particulars wherein the evidence is claimed to be “insufficient to sustain the findings of the jury and the modifications thereof by the court, and the decree of the court,” so far as the same relate to certain ditches belonging to certain of the defendants.
The appeal in the case is from the judgment in favor of defendants Davis, Thompson, and Julia Reynolds, adjudging that said defendants are entitled to the use of certain of the waters of Beaver creek prior in time to the right and appropriation of the appellant. There is no bill of exceptions in the record, no motion for a new trial, and no order denying such a motion; it is, therefore, impossible for the court to consider the alleged error of insufficiency of the evidence to sustain the findings of the jury and court. (Porter v. Clark, 6 Mont. 246; Alder Gulch Con. Co. v. Hayes, 6 Mont. 32.)
Appellant, in its brief, makes a point against oral transfers of ditches and water rights; but, there being nothing properly before the court to show that there were any such oral transfers, independent of a transfer of the land to which the water was appurtenant, it is unnecessary to pass upon the question raised. That a water right is appurtenant to the land upon which it is used, and, unless abandonment is proved, that a transfer of land with its appurtenances, conveys the interest of the grantor in any ditch or water right necessary to the use and enjoyment of the land, has been decided by this court. (Tucker v. Jones, 8 Mont. 225; Sweetland v. Olson, 11 Mont. 27.)
The only other point made by the appellant is, that the respondents, Davis and Thompson, should exhaust their prior claim to the waters of Beaver creek from the three hundred inches “ arising in the bed of the stream below the head of the appellant’s ditch, and above the head of the ditch of said respondents.” This cannot be considered in the absence of a motion for a new trial. See authorities above cited. It is presumed that the evidence supports the findings and judgment, and that the instructions were based upon testimony in the case. (Broadwater v. Richards, 4 Mont. 80; Mining Company v. First National Bank, 7 Mont. 530; Lockey v. Horsky, 4 Mont. 457; Morse v. Swan, 2 Mont. 306; Twell v. Twell, 6 Mont. 19; Black v. Black, 5 Mont. 15. The complaint supports the judgment, and the findings are consistent therewith. (Chumasero v. Viall, 3 Mont. 376.)
The judgment is therefore affirmed.
Affirmed.
Pembertost, C. J., and De Witt, J., concur.
|
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] |
De Witt, J.
— On March 3, 1887, the legislative assembly of the territory of Montana passed the following act: “ That from and after the passage of this act women shall retain the same legal existence and legal personality after marriage as before marriage, and shall receive the same protection of all her rights as a woman which her husband does as a man; and for any injury sustained to her reputation, person, property, character, or any natural right, she shall have the same right to appeal in her own name alone to the courts of law or equity for redress and protection that her husband has to appeal in his own name alone.” (Comp. Stats., div. 5, § 1439.)
As to that act this court said in the case of Kelley v. Jefferis, 13 Mont. 180, as follows: “ This isa comprehensive provision, and commands the courts in this jurisdiction, where a united jurisprudence of equity and law is administered, to disregard the ancient doctrine of the common law on the question under consideration as a dead dogma, and enforce and protect the rights of married women unhampered thereby; and we think the effect of this statute would be to so modify the prior act of 1872, above quoted, as to enable a married woman to hold her individual separate property as against her husband’s creditors without having a list thereof on record, on showing the facts necessary to establish her individual title thereto.”
The appellant contends that the loans made by Mary A. to Francis Patten, prior to March 3, 1887, cannot be held as enforceable from Francis to Mary, for the reason that she had not filed any list of separate property prior to 1887, aud that those transactions took place prior to the passage of the act above referred to, and sometimes called the Married Woman’s Emancipation Act. It is true that it does not appear in the case that this wife had filed any separate list. But we are of opinion that it is unnecessary to decide what her rights would be as to the loans made to her husband prior to 1887, for the reason that it appears by the record that the advances which she made to him after March 3, 1887, were more than sufficient to absorb the $600 due from Fraser & Ward, and which she claims as her own. As noted in the statement of facts, she pleads that in consideration of her assuming her husband’s obligations to his partner and to the insurance companies, her said husband had agreed with her that said Fraser & Ward should turn over to her the entire purchase money of the insurance business. The transaction by which this $600 was turned over to her, or assigned to her, was on August 14, 1890, which was some time before the garnishment was served In the case of Lambreeht v. Patten. In pursuance to this agreement and assignment she paid out some $800 on her husband’s account to the said insurance companies to settle his affairs with them, and this money she raised by a mortgage given upon her separate estate. The absolute and perfect justice of allowing this Fraser & Ward $600 to go to Mary A. Patten is made conspicuous by the fact that this very $600 came from the sale of the insurance business, and that her $800 advanced to her husband had gone to settle this very business which was so sold, and to enable the husband to make the sale. Therefore, under the views expressed in Kelley v. Jefferis, supra, Mary A. Patten need not have filed any separate list of this, her property, in order to protect it from the creditors of her husband.
The only other questions on this appeal are matters of fact as to the alleged fraud between the husband and wife. We have read this record carefully, and are of the opinion that the evidence establishes clearly and conclusively the absolute honesty of the debt claimed from Francis to Mary A. Patten. It is not fraud per se for a husband to pay to his wife a debt which he honestly owes her. And as we have remarked, fraud in fact was not shown in this case.
It was said in the case of Chapman v. Summerfield, 36 Kan. 610: “The relation existing between Edward and Sarah W. Chapman, being that of husband and wife, induces the court to scrutinize very closely their dealings with each other; but, when it is clearly established that there is an honest bona fide indebtedness by the husband to the wife, then their mutual transactions may be reviewed in the light of the trust and confidence incident to the marriage relation.” (See, also, Rockford etc. Mfg. Co. v. Mastin, 75 Iowa, 112; Gilbert v. Glenny, 75 Iowa, 513; Hoes v. Boyer, 108 Ind. 494; Jaycox v. Caldwell, 51 N. Y. 395; Tomlinson v. Matthews, 98 Ill. 178.)
We cannot reiterate too strongly the language used in the Kansas case, which we have above quoted, that, in questions of payment by a husband to his wife of moneys alleged to be hers, a court cannot scrutinize too closely the relations between the persons and their conduct as to such moneys. That relation is often a convenient means for the perpetration of a fraud, and when claims of such indebtedness are made between husband and wife, they must be subjected to the most searching examination, if not indeed suspicion. But when the absolute bona fides is established, as it was in this case, beyond any question or cavil, then the fact that the honest creditor is the wife of the debtor cannot in itself be considered as conclusive evidence of fraud against -the clear and positive evidence of good faith.
The judgment is affirmed.
Affirmed.
Pemberton, C. J., and Hunt, J., concur.
|
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Hunt, J.
— The contention of the defendants is that the evidence failed to show that there was an order given by the defendants, or their agents, to the plaintiffs, for the potatoes in question, or that there was an absolute sale, but that the evidence proves that the potatoes were delivered to defendants by plaintiff in the usual course of trade, and that there was a general understanding between plaintiff and defendants that the potatoes were to be disposed of by the defendants on commission only, and to the best advantage.
It appears that about August, 1891, plaintiff sold a carload of potatoes to defendants at one dollar and fifteen cents per hundredweight, less the freight, on the order of D. Hanley & Co., Helena, by one Altmeyer. Plaintiff shipped the potatoes and advised defendants of the shipment, transmitted the bill of lading, and received letters from defendants acknowledging the receipt of the potatoes. One letter objected to the size of the potatoes, and asked plaintiff for a reduction in the carload, but stated that they would give Mr. Altmeyer an order for another carload if sales would justify it, and that defendants would want about two carloads a week. Plaintiff subsequently saw one of the defendants in Butte, and demanded his money. One, or both, of the defendants admitted an indebtedness, but denied that the amount claimed was correct. L. C. Bade, one of the firm, acting for Winters & Bade, had receipted for the potatoes to the railway company. The original bill of lading was presented by Mr. Bade in order to secure the goods. The bill of lading was from Herbert & Troupe as consignors, consigned to Winters & Bade, Butte, Montana.
There was an attempt on the part of the defendants to throw a doubt upon .the genuineness of the handwriting of the letters of the firm to plaintiff, but the jury and the district court believed the plaintiff,
We are satisfied ourselves that the evidence was amply sufficient to warrant the verdict of the jury.
The law applicable to the case is, that the plaintiff, having consigned the potatoes by the bill of lading to the defendants as consignees, and having transmitted the bill to the defendants as consignees, and the defendants having received and accepted the potatoes, without objection until some time later on, and having admitted an indebtedness for the consignment, there was a complete sale and delivery, and the defendants are responsible to the plaintiff for the price of the potatoes. (First Nat. Bank v. McAndrews, 5 Mont. 325; 7 Mont. 150; Walsh v. Blakely, 6 Mont. 194; Willman Mercantile Co. v. Fussy, ante, p. 511; Hutchinson on Carriers, § 135; Craig v. Marx, 65 Tex. 649.) We find no error in the record.
The order overruling the motion for a new trial and the judgment are affirmed.
Affirmed.
De Witt, J., concurs.
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] |
Djg Witt, J.
— The labor and zeal of counsel in preparing briefs in this case seem to us to be disproportionate to the gravity of the legal proposition involved, which indeed occurs to us as a very simple one.
Counsel for respondent, among other things, in support of their opposition to the motion to grant the change of venue, rely upon a portion of section 11, article VIII, of the constitution, which is as follows: “All actions for the recovery of, the possession ofj quieting the title to, or for the enforcement of liens upon, real property shall be commenced in the county in which the real property, or any part thereof, affected by such action or actions, is situated.”
The action in the case at bar was commenced as the constitution requires.
The action was as to real property, and it was commenced in the county in which the real property was situated, to wit, Missoula county.
But we cannot understand how it may be argued that this provision of the constitution requires that the action shall be tried in a county where the real property is not situated, or in a county where the real property has ceased to be situated long before the trial, and, indeed, almost at once after the filing of the complaint. If any inference is to be drawn from section 11, article VIII, of the constitution, as to where an action in regard to real property is to be fried, it would seem to us to be more reasonable that such action is intended to be tried in the county where the real estate is situated. Why declare by the constitution that an action should be commenced in the county where the real property is situated, and then infer from this provision that the action must be fried in a county where it is not situated at the time of the trial, or long prior thereto. Such reasoning from the constitution seems to us to be wholly unwarranted. On the other hand, the spirit of this constitutional provision seems to be that if an action as to real property is to be commenced in the county where the real property is, that it should also be fried in such county.
The commencement of an action does not largely involve the convenience of the parties or witnesses. The complaint may be mailed to the clerk of the court and summons issued and served without the personal attention of the parties at all. But the trial does involve the convenience of the parties and witnesses.
We certainly cannot hold that the constitutional provision which requires an action to be commenced in the county where the real property is, also intends to require that action should be fried in that county, when the real property is no longer therein.
We therefore think that section 56 of the Code of Civil Procedure is not in conflict with section 11, article VIII, of the constitution, in its application to the facts in this case. Section 56 of the Code of Civil Procedure is as follows:
“Sec. 56. Except when otherwise provided, actions for the following causes shall be tried in the county in which the subject of the action, or some part thereof, is situated, subject to the power of the court to change the place of trial, as provided in this act: 1. For the recovery of real property, or of an interest therein, or for the determination in any form of such right or interest, and for injuries to real property; 2. For the partition of real property; 3. For the foreclosure of~a mortgage on real property. Provided, That where such real property is situated partly in one county and partly in another, the plaintiff may select either of said counties, and the county so selected shall be the proper couuty for the trial of any or all of such actions as are mentioned in this section.”
Therefore, section 56 designates the place of the trial of this action as in Flathead county, for it is there that the land is situated. But defendants, when they came to appear in the case, found that the action was in a county other than that in which the land was situated. They found that the action was in the wrong county. Consulting the statute they found sections 61 and 62 of the Code of Civil Procedure, as follows:
“Sec. 61. If the county in which the action is commenced is not the proper couuty 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.
“Sec. 62. The court may, on good cause shown, change the place of trial in the following cases: 1. When the county designated in the complaint is not the proper county.”
The defendants were timely in making their motion for change of venue, that is, at the time when they appeared. They then found that under the facts as they existed, that is, the land being in Flathead county and not in Missoula county, that the county designated in the complaint was not the proper county. These were the conditions existing at the time the defendants appeared. (Wallace v. Owsley, 11 Mont. 219.) It is true that these conditions did not exist when the complaint was filed, but were brought about by reason of the act of the legislature cutting off a part of the territory of Missoula county and placing the same within Flathead county, which territory included the real property in question in this action. And here counsel for respondent urge the applicability of section 209, General Laws, Compiled Statutes, which is in part as follows: “No action, plea, prosecution, civil or criminal, pending at the time any statutory provision shall be repealed, shall be affected by such repeal, but the same shall proceed in all respects as if such statutory provisions had not been repealed.”
Counsel contend that under this section of the statute the action must proceed in Missoula county, because it was pend ing there when Flathead county was created, and that the act of the legislature creating Flathead county could not affect the action then pending in Missoula county. But we are of opinion that the act creating Flathead county did not, in the language of said section 209, affect the action pending in Missoula county. It did not affect the action, or have to do with the action at all. It simply worked the result of changing the proper place of trial to the new county. No rights in the action, no pleas or defenses therein, were affected. By reason of the creation of Flathead county, and by reason of a change of venue, if it were granted, the action would simply be picked up in its entirety, taking all its parts and attributes, and transported to the place of trial intended by the constitution and the laws.
We are of opinion that the effect and intent of said section 209 is to preserve the action as it existed; that it shall not suffer in its validity, and that all the steps taken in the same shall be saved entire.
“Anderson’s Law Dictionary defines an action as follows: ‘The lawful demand of one’s right (3 Blackstone’s Commentaries, 116) in a court of justice. (McBride’s Appeal, 72 Pa. St. 483.)’ Another definition in the same dictionary is: ‘An action or suit is any proceeding for the purpose of obtaining such remedy as the law allows.’ The definition cites Harris v. Phœnix Ins. Co., 35 Conn. 310. In that case the court, speaking of‘suit’ or ‘action,’ says: ‘But by a suit, within the meaning of this provision of the policy (of insurance), is more clearly meant any proceeding in the court for the purpose of obtaining such remedy as the law allows a party under the circumstances.’ Black’s Law Dictionary, under the title of ‘Action,’ gives this definition: ‘The legal and formal demand of one’s rights from another person or party, made and insisted on in a court of justice.’ ” (State v. Newell, 13 Mont. 302.) See this same case last cited for a more full exposition of what an action is. We are of opinion that the action is the proceeding itself, and not the place where the proceeding is tried, and that section 209 refers to the proceeding, and its preservation, as above noted, and not to the place of the trial.
We are of opinion that the motion for a change of venue should be granted. The whole spirit of the constitution, and the laws of this state, and elsewhere, and the decisions of the courts, is to the effect that actions in regard to real property shall be tried in the jurisdiction, or in the geographical division of the jurisdiction, where the land is situated. It is quite true, probably, that in framing the laws as to the place of trial, and the change of the place of trial, there was not within contemplation the particular and peculiar facts of a county being divided at just about the time when a motion for a change of venue could be filed. But we believe that applying the constitution and the laws to the facts as we find them in this case, that the motion should have been granted.
The order of the district court is therefore reversed, and the case is remanded, with [directions to grant the defendants a change of venue to Flathead county.
Reversed*
IluNT, J., concurs.
|
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] |
MR. JUSTICE BANNER
delivered the opinion of the court.
Proceeding on the relation of M. S. Cohen to review and annul a certain order of the district court of Jefferson county sitting in probate. The record shows the following: James S. Flaherty, administrator of the estate of Edward Cardwell, deceased, filed his affidavit in the matter of said estate, reciting that John L. Cardwell, his predecessor in the administration, had without permission of the court paid to the relator a certain sum of money out of the funds of said estate, and that said funds are short in the amount so paid. Thereupon a citation was issued commanding the relator to appear and show cause why he should not be adjudged as in contempt for receiving said money, and why he should not be compelled to repay the same to the administrator Flaherty. The relator appeared, and by appropriate motion challenged the sufficiency of the affidavit to warrant any citation or to give jurisdiction to the court. This was overruled, and evidence was taken which tended to show that prior to the payment by Cardwell to the relator an order had been made by said court forbidding the disbursement of any funds of said estate by the administrator or by the depositary without express authority of the court; that Cardwell hired the relator and Mr. L. P. Donovan to conduct certain important litigation in which the estate was involved which required counsel to proceed to Billings, Columbus, Boulder and other places, and made the payment in question for account of the expenses thereof; and that Cardwell knew, but the relator did not know at that time, of the order forbidding disbursements without express authority. At the close of the hearing, the court, Honorable Joseph C. Smith presiding, made the order in question, commanding the relator. to repay said money within ten ‘days, and directing that his failure so to do be reported by the clerk for further action.
Some things of record, not material to the present inquiry, furnish an explanation of the order. The altogether unsatisfactory report of the administrator Cardwell shows that, besides the payment to-the relator, various sums have been disbursed for fees and expenses of the attorneys without apparent necessity; and the spectacle of a small estate expending a large proportion of its substance in this way offers the righteous judge strong temptation to act summarily. This course, however, often defeats the purpose in view, because it goes too far or, for other reasons, cannot, as a matter of law, be upheld.
It is so here. The court was under no obligation to' allow the expenditures, but could rightfully hold, as it did hold, that the administrator Cardwell should answer for the same; but engagements between an administrator and an attorney
for services to be rendered the estate are wholly personal, stand entirely upon the individual responsibility of the contracting-parties, create no relation between the attorney and the estate. (State ex rel. Kelly v. District Court, 25 Mont. 33, 63 Pac. 717; 1 Ross on Probate Law, p. 763 et cit.) In contemplation of the law, payments made pursuant to such engagements are of no concern to the estate or those interested in it, until, the administrator asks that allowance be made to him for them. He pays always at his own peril, for he can be allowed only such expenses in the care, management and settlement of the estate as are necessary, including reasonable attorney’s fees (Rev. Codes, see. 7631), and his judgment may be rejected by the probate court on the score of amount as well as of necessity. If this happens, he or his bond must make good regardless of whether he in turn can or cannot recoup from the attorney;
As the attorney cannot demand of the estate or receive from it, as such, moneys for services rendered, so the estate cannot demand of him moneys received from the'administrator on the latter’s sole responsibility. Were it otherwise, the estate would not be more but less protected than it is, for any attempt on its part to re cover would mean issues, based upon the necessity and value of the services, triable not to the probate court, which is directly concerned in the conservation of the estate, but to a jury in a civil action. (See Estate of Sullivan, 36 Wash. 217, 78 Pac. 945.)
Nor can the order be upheld upon the theory that the relator, a stranger to the estate, possesses or has disposed of property, to-wit, funds, belonging to the estate for which he may be called to account. In such a case the probate court may require the parties accused to appear and submit to an examination (Rev. Codes, sees. 7505, 7506), but it has no jurisdiction to adjudge the rights or claims of right which may be asserted or involved. This, also, can only be done by the district court sitting as such in an action brought for the purpose. (In re Roberts’ Estate, 48 Mont. 40, 135 Pac. 909.)
It follows that the order in question must be and it is annulled.
Order annulled.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
|
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
The plaintiff, while leaving the Star Theater in Billings, was injured by a billboard falling against her. She brought this action to recover damages and secured a favorable verdict. The lower court granted a new trial, and plaintiff appealed from the order.
The motion for a new trial was made upon all the statutory grounds, and the order sustaining it is general in terms. If the order can be justified upon any of the grounds, it must be approved. (Scott v. Waggoner, 48 Mont. 536, L. R. A. 1916C, 491, 139 Pae. 454.) One ground of the motion is insufficiency of the evidence to justify the verdict. There was not any evidence to disclose what caused the billboard to fall, and plaintiff relied upon a presumption of negligence invoking the maxim res ipsa loquitur. The defendants offered evidence tending to show the degree of care exercised by them with reference to the billboard. The presumption on the one hand, and the evidence on the other, at least raised an issue as to whether defendants were guilty of actionable negligence. The burden was upon the plaintiff to sustain the affirmative of this issue by a preponderance of the evidence, and though the presumption had the force and effect of evidence, if, upon the whole case made, the trial court was of the opinion that plaintiff had failed to sustain the burden thus imposed, the duty devolved upon it to grant a new trial. (Hamilton v. Monidah Trust, 39 Mont. 269, 102 Pac. 335.) The application was addressed to the sound, legal discretion of the court below, and its order is subject to review only for an abuse of that discretion. An examination of the record fails to disclose any such abuse, and for this reason the order 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.
At the election held in the town of Twin Bridges in April, 1915, A. J. Wilcomb and Merton S. Gould were rival candidates for the office of mayor. The,, canvassing board returned that Wilcomb received eighty-two votes and Gould eighty-three, and a certificate of election was thereupon issued to Gould. Fred W. Sommers contested Gould’s election, upon the ground that two illegal votes were cast and counted for Gould in ward 1, and that such votes were cast by Eli Twitchell and Roland A. Webb, neither of whom, it is alleged, was a resident of that ward at the time. Gould answered, and denied that he had any knowledge or information sufficient to form a belief as to whether Wilcomb received eighty-two legal votes, or any greater number than seventy-nine; admitted that the canvassing board returned that Wilcomb received eighty-two votes, and denied that any illegal votes were cast or counted for him. Upon the trial it was admitted that Twitchell and Webb were both registered in ward 1 and both voted in that ward. Touching the qualifications of these two voters, the contestant offered evidence to the following effect:
Webb is a single man, about twenty-three years old. For seven or eight months prior to the election in question he was working on a ranch about ten miles from Twin Bridges. During that time he came to Twin Bridges occasionally, and stopped either at the Duella rooming-house, in ward 3, or at the Stark Hotel, in ward 2; but in either instance he occupied a room provided for him by his employer.
Sommers testified that he has lived in Twin Bridges for twenty years, and in ward 1 for eight years; that at the time of this election he was an alderman for ward 1; that there are only about eighty voters in the ward, and that he knows them all personally; that he knows Webb; that he knows that Webb did not live in ward 1 for at least a year prior to the election in April, 1915.
Wilcomb testified that he has lived in Twin Bridges continuously for seventeen years; was mayor of the town from May, 1913, to May, 1915; that he lived in ward 1 at the time of the election in question; that he is well acquainted in the town, which has a population of only about 500; that he has known Webb for five or six years; that he knew him first when he lived on a ranch near Twin Bridges, but outside the corporate limits of the town; that he knew him afterward, when he lived in Sheridan and Rochester; that in the summer of 1914 he worked in ward 1 and took his meals at a hotel in that ward, but had his room and slept in ward 3; and that he has never lived in ward 1 to the knowledge of the witness.
Gallahan, a judge of election in ward 1, testified that Webb came to the polling place on election day, ostensibly for the purpose of voting; that, when asked where he roomed, he re plied at the Stark Hotel; that, when questioned concerning his right to vote in ward 1, “He said he did not know whether he had a right to or not,” and, when asked upon what theory he sought to vote in that ward, he replied, “We have some lots up town”; that he left, but returned soon afterward, and discussed his right to vote further, but again went away; that he eame for the third time, and, having taken and subscribed the statutory oath required of challenged voters, received his ballot and cast his vote.
Concerning Twitchell’s residence, Sommers, Wilcomb and Harvey testified that Twitchell has a house in ward 1, where he lived for a year or more prior to the fall of 1914; that he then moved his family into two small rooms in ward 3, where they have since lived, and where they cook, eat and sleep; and that, since they moved, their house in ward 1 has been rented to other parties, who have occupied it. After they moved, and before election, Twitchell asked Wilcomb whether an elector, who removes after registering, must re-register in order to vote, and Wilcomb understood from the circumstances that Twitchell was referring to himself.
Upon this evidence, offered by the contestant, the court held that a prima facie case of nonresidence had not been made out against either Webb or Twitchell, excluded evidence as to how either voted, and entered judgment dismissing the contest, and awarding contestee his costs and an attorney fee, amounting in the aggregate to $323.90. From the judgment, and from an order denying a new trial, contestant appealed. The term of office involved herein has expired, and the controversy now involves only the question of costs.
If the court was correct in holding that contestant did not make a prima facie case, it was correct in taxing against him a reasonable attorney fee. (Doty v. Reece, ante, p. 404, 164 Pac. 542.) Whether contestant shall be held for this judgment for costs depends upon the answer to the inquiry: Did he make out a prima facie case that Webb and Twitchell were not legal residents of ward 1 when they voted therein on April 5, 1915? To constitute either of these men a legal voter, he must have resided within the state a year (see. 462, Rev. Codes), within the town six months, and within the ward thirty days, immediately preceding the election (sec. 3231, Rev. Codes).
It would be extremely difficult to give a comprehensive and accurate definition of the term “resident” as used in our election laws. The statute does not attempt to define it, but does describe certain rules for determining in the first instance whether a voter is a legal resident of the precinct or ward where he votes. Section 24 of an Act approved March 8, 1915 (Laws-1915, p. 263), sets forth eleven rules designed to aid registration and election officers in determining the residence of a prospective voter. Of necessity, these rules are very general in their terms, and furnish but uncertain assistance at the best. Rule 1 provides: “That place must be considered and held to be the residence of a person in which his habitation is fixed, and to which, whenever he is absent, he has the intention of returning.” (Page 273.) Under rules 4 and 5 a person will not be deemed to have lost his residence by reason of his absence for temporary purposes only. Rule 8: “The place where a man’s family .resides is presumed his place of residence.” Rule 9: “A change of residence can only be made by the act of removal joined with the intent to remain in another place. There can only be one residence. A residence cannot be lost until another is gained.” (Page 274.)
The residence of a voter is to be determined from his acts and intent; but this fact, like any other fact involved in a civil action or proceeding, may be established by circumstantial evidence, and any declarations of the voter touching the subject, if a part of the res gestae, or any declarations in disparagement of his right to vote, if made at or before the election, may be received in evidence. (People ex rel. Boyer v. Teague, 106 N. C. 576, 19 Am. St. Rep. 547, 11 S. E. 665; Behrensmeyer v. Kreitz, 135 Ill. 591, 26 N. E. 704; 15 Cyc. 292; 9 R. G. L. 1032.).
From the fact that Webb registered in ward 1, there arose a presumption in favor of his right to vote there. To overcome this presumption involved the proof of a negative, and in such case the same high quality of evidence is not required as is ordinarily necessary to prove an affirmative fact.The rule generally recognized is that slight proof of the lack of any necessary qualification to vote is sufficient to overcome the presumption arising from registration or voting, and calls for evidence in affirmation of the voter’s qualifications from the party who would benefit from the vote. (People v. Pease, 27 N. Y. 45, 84 Am. Dec. 242; Beardstown v. Virginia, 76 Ill. 34; 5 Ency. of Evidence, 116.) To determine the sufficiency or insufficiency of evidence to establish the residence or nonresidence of a voter requires a more or less arbitrary application of the rules of law to the facts presented, and though the evidence tending to impeach Webb’s right to vote in ward 1 is not very clear and convincing, we think it is sufficient to make out. a prima facie case. (State ex rel. Hopldns v. Olin, 23 Wis. 309.)
The evidence touching Twitchell’s residence is much more substantial. His family resided in ward 3, and, when this fact appeared, the contestant made out a prima facie case against his right to vote in ward 1. (Carwile v. Jones, 38 Mont. 590, 101 Pac. 153; Rule 8, above.)
It was not necessary for the contestant to show the number
of legal votes cast for Wilcomb. Neither the correctness of the canvassing board’s return nor the validity of any votes so returned is questioned by the answer. The admission that the board returned that Wilcomb received eighty-two votes is, under the circumstances, tantamount to an admission that he received that number of votes. Until impeached, the returns furnish prima facie evidence of the correctness of the result so returned. (15 Cyc. 418.)
The judgment and order are reversed and the cause remanded for further proceedings.
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.
This action was brought to recover damages for personal injuries suffered by the plaintiff through the negligence of the defendant. The plaintiff resides south of the village of Conrad, in Teton county. On November 28,1913, he was returning from Conrad to his home, driving a mule harnessed to a light vehicle. As he proceeded, he observed the defendant, in company with others, about a quarter of a mile away coming from the opposite direction in an automobile. The automobile was owned by defendant and was driven by him. As the two vehicles were about to pass, the automobile came into collision with plaintiff’s mule and vehicle, with the result that plaintiff was thrown to the ground and suffered concussion of the brain and contusions about other parts of his body. It is alleged that defendant caused the collision by his negligence in failing to turn the automobile far enough to his right to permit it to pass plaintiffs mule and vehicle in safety. In his answer defendant denied negligence on his part, and, by way of counterclaim, demanded judgment against plaintiff for damage done to his automobile. The jury resolved the issues in favor of the plaintiff and awarded him a verdict. Defendant has appealed from the judgment and an order denying his motion for a new trial.
The only contention made on behalf of defendant is that the evidence was insufficient to justify the verdict.. The testimony of the plaintiff showed that the accident occurred under these circumstances: The highway was in a lane sixty feet in width from fence to fence. It was graded up to a crown in the center, the drainage gutter on either side being three or four feet from the fence, and about fourteen inches lower than the crown. The graded portion was about fifty feet in width. The line of principal travel, along which plaintiff was driving, was on the west side, to his right, and as near the fence as one could drive without encountering the bank of the gutter on that side. The part of the way to the east was not so much used, and therefore not so smooth, but was in good condition for travel. The defendant approached plaintiff along the line of principal travel on the west side until he was within twenty or twenty-five feet. He then turned his automobile to the right, but not beyond the center of the way, apparently intending to pass plaintiff without turning out further than was absolutely necessary to enable Mm to do so. As he was about to pass, plaintiff’s mule became frightened. It first stopped, and then, in an effort to get away, turned to plaintiff’s left. As this occurred, defendant’s automobile collided with it and also plaintiff’s vehicle, throwing plaintiff to the ground and injuring him as alleged. The automobile was turned upside down and came to rest in the middle of the way. Plaintiff had observed the approach of the automobile from the time it was a quarter of a mile away, but did not pay special attention to it, because his mule was accustomed to this kind of vehicle, and he assumed the defendant would take the other side of the way and thus accomplish the passage without trouble. The mule could not turn to the right because of the proximity of the fence on that side. It is apparent from this evidence that the defendant was at fault in failing to turn reasonably to the right of the center of the highway, as is required by the statute. (Laws 1913, Chap. 72, p. 158, sec. 1.) He was on the wrong side of the way. Inasmuch as the collision occurred as it did on plaintiff’s side of the way, defendant was also prima facie at fault in failing to exercise the precaution necessary to avoid frightening plaintiff’s mule, and thus to insure plaintiff’s safety. (Id., Chap. 72, p. 159, sec. 3.)
Defendant endeavored to show that plaintiff was at fault in that he was asleep, and, being startled by the approach of defendant and the stopping of his mule, unconsciously guided the mule to his left, and thus caused it to come in collision with the automobile. The evidence on this point was in conflict, and whether the plaintiff was at fault, and thus brought the catastrophe upon himself, presented a question which it was the exclusive province of the jury to determine. The jury having resolved the issues in favor of the plaintiff, and their conclusion having been approved by the court in denying the motion for a new trial, it must be accepted by this court as final.
The judgment and order are therefore affirmed.
Affirmed.
Mr. Justice Sannee and Mr. Justice Holloway concur.
|
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] |
MR. JUSTICE SANNER
delivered the opinion of the court.
Quo warranto by Edward W. Dunne, claiming to be the duly appointed and qualified county assessor of Yellowstone county, against Carrie Gr. Smith, also asserting a similar claim. The agreed facts' are these: At the general election held November 7, 1916, A. P. Smith, then, by previous election, the lawful incumbent of the office of county assessor of Yellowstone county, was elected to succeed himself. He qualified by filing the requisite oath and bond and on December 3, 1916, died. Four days later the board of county commissioners of said county, then composed of Messrs. Sorenson, Todd and Rademaker, appointed Carrie Gr. Smith to fill the vacancy “for the term ending on the first Monday in January, 1917.” Mrs. Smith qualified by filing the requisite oath and bond, her bond reciting that it was executed to assure the faithful performance of her official duties during the term “beginning December 7, 1916, and expiring on the first day of January, 1917”; she entered upon the discharge and ever since has discharged the duties of such office. On the first Monday of January, 1917, which was the first day of that month, the personnel of the board was changed by the succession of Mr. Phelan in place of Mr. Sorenson, and on the following day, the new board being in session, these proceedings were had: “It was moved by Phelan .that Edward W. Dunne be appointed county assessor to fill the vacancy beginning the first Monday in January, 1917, and ending the first Monday in January, 1919; Commissioner Todd stated that he did not believe a vacancy now existed in said office of county assessor; Chairman Rademaker then seconded the motion of Commissioner Phelan, and instructed the clerk to poll the board, with the following result: Phelan, aye, Rademaker, aye, Todd, nay.” Thereupon the county clerk gave written notice to Dunne of his appointment to such office for such term. On the same day, January 2, Mrs. Smith filed another instrument as and for her official bond as county assessor “for the term beginning on the first day of January, 1917, and expiring on the sixth day of January, 1919,” and on the next day, January 3, she filed her constitutional oath. Mr. Dunne likewise qualified on January 3 by filing his oath and bond, and thereupon made demand for possession of the office; but Mrs. Smith refused, and still refuses, to vacate or surrender the same. Certain facts are also agreed which raise a contention touching the right of F. X. N. Eademaker, one of the two acting commissioners who voted for the appointment of Dunne, to sit as a member of the board, which contention will be noticed later in this opinion. The ultimate question is: To which of these appointees does the office belong? This we shall consider: First, as though no dispute existed concerning Eademaker; and, second, as affected by such dispute.
1. The claim of Mrs. Smith is based upon an appointment which by its terms is expressly limited and which according to its terms expired on the first Monday in January, 1917. That fact alone would end this branch of the controversy but for her contention that the limitation is ineffective because, under Article XVI, section 5, of the Constitution, and section 2966 of the Eevised Codes, the appointee to fill a vacancy holds as a matter of law until the next succeeding general election. This may be admitted as a possible result of the bare language of these provisions superficially considered; that it cannot be a correct application of them seems clear if we bring to our aid certain very common possibilities. Let this be supposed, for instance: Someone other than the incumbent of a county office is elected to succeed him; the successor so elected files his oath and bond; the incumbent dies after such election, but before the elected and qualified successor is entitled to the possession of the office, and an appointment is made to fill the vacancy thus caused. For how long, regardless of its language, is such ap pointment good? Certainly not until the' next general election, nor beyond the unexpired portion of the incumbent’s term, because by virtue of the same constitutional provision the elected and qualified successor is entitled to the office upon the commencement of the term for which he was elected. For the county officers therein mentioned who have been elected to their positions, the constitutional provision plainly contemplates a fixed term of two years, with a contingent occupancy until their successors are elected and qualified. Any such officer holds beyond his fixed term as against a mere appointee (State ex rel. Chenoweth v. Acton, 31 Mont. 37, 77 Pac. 299); but his contingent right to hold over is cut off the moment a duly elected successor has qualified. In the nature of things it can make no difference whether the elected and qualified successor is the same or a different person — the fact of such election and qualification puts an end to the right of the incumbent to hold over after the expiration of his current term. (People ex rel. Sweet v. Ward, 107 Cal. 236, 40 Pac. 538.) Suppose again, therefore, that someone other than the incumbent of a county office is elected for the ensuing term, and that he qualifies but dies before the commencement of his term; the incumbent could not, save as locum tenens to prevent an interregnum, hold beyond the current term because his successor has been elected and qualified. If in this situation the incumbent should resign before the end of his fixed term, in virtue of what provision or principle could an appointee in his stead possess a greater or longer tenure? By the aid of these and other like examples we are enabled to see that not in all cases can the appointee hold until the next general election, and that a literal construction of the last clause of section 5, Article XYI, of the Constitution cannot be the proper one. •
The solution of the matter lies, we think, in the correlation of the last with the other clauses of the section, in holding the vacancies referred to in that clause to be those occurring after the fixed term has commenced, but before a general election, and in realizing its meaning to be that no appointment shall hold good beyond the next succeeding general election, whether the interval between that event and the end of the fixed term be great or small. (State ex rel. Rowe v. Kehoe, 49 Mont. 582, 144 Pac. 162.)
The subject has been illuminated by several California decisions, among which People ex rel. Sweet v. Ward, cited above, is particularly interesting. The facts in that case were: That at the general election in November, 1894, William Darby was elected district attorney of San Diego county to succeed M. L. Ward, then the incumbent by previous election. Darby qualified, and on December 15, 1894, died. By the law of California the elective terms of county officers began at noon on the first Monday after the first day of January in each odd-numbered year, and this, in the year 1895, happened to be the seventh day of the month. On January 2, 1895, the board of supervisors, as then constituted, appointed Ward to fill the vacancy caused by Darby’s death, and on the same day Ward qualified under the appointment. At 3 o’clock P. M., on January 7, 1895, the board, its personnel having been changed, declared a vacancy to exist in the office of district attorney, and appointed A. H. Sweet to fill it during the term for which Darby had been elected. Sweet qualified, demanded possession and, being refused, brought proceedings to try the title to the office. Ward contended that no vacancy in the office resulted from Darby’s death prior to the time Darby was entitled to take possession, because he (Ward) was then entitled to the office, with the right to hold until divested by a duly elected or appointed and qualified successor, or, if there was a vacancy, he was entitled to the office because of his appointment to serve out Darby’s term. Disposing of these contentions the court said: “It is not to be questioned but that if Darby had lived, and at noon of the seventh day of January, 1895, had demanded the office of Ward, he would have been entitled to enter it, and Ward’s term would thus and then have ceased and determined. But was a demand by Darby necessary to determine Ward’s tenure? The answer is found in the language of the statute. Ward, by section 60 of the Act quoted, and by section 879 of the Political Code, was entitled to hold absolutely until noon of January seventh, and contingently after that date, if no successor had been elected or appointed and qualified. * # * So here, the legislature having in effect provided that Ward’s term upon the election and qualification of Darby came to an end at noon of January 7, 1895, a vacancy in law resulted when Darby’s death prevented his succession. * * * The election and qualification of Darby as Ward’s successor (and not a demand by him for the office) ipso facto cut off Ward’s contingent term, and limited him to the absolute period; that is, until noon of January 7. * * * The vacancy which occurred having arisen at noon of January 7, it remains to be considered whether the action of the board of supervisors upon January 2 was legal or illegal. * * * The board then undertook to fill, not an existing vacancy, but one soon to exist, * * * one which in the nature of things was certain to arise, though at a future date, and at a time when, in legal contemplation and in fact, a different board would be in control of the county’s affairs. Briefly, the act of the board was to make an appointment to take effect, and to fill a vacancy to arise, in the term of its successor. # * # Upon the election and qualification of Darby his right to the office for the term commencing at noon of January 7 vested immediately, and Ward’s contingent right to an additional term was cut off.. Upon the divestiture of that right by death, it existed in no one, and there was no revivor of Ward’s contingent right to an extended term. The power of the board of supervisors in dealing with such matters is drawn from subdivision 21, section 25, of the County Government Act of 1891, and it is limited to the filling of vacancies. That power could properly be exercised only upon an existing vacancy. The board could by its action neither create a vacancy, nor by anticipation fill one, which was to arise in futuro during the term of its successor. * * * We conclude, therefore: First, that a vacancy arose in the office of district attorney by reason of the election, qualification and death of Darby; second, that this vacancy existed at and after noon of the seventh day of January, 1895, and not before; third, that the attempt of the first board of supervisors to fill the vacancy upon January 2 was in excess of its power and void; fourth, that the vacancy was properly filled by the existing board at 3 o’clock P. M. of January 7, 1895.”
Again, in People ex rel. Mattison v. Nye, 9 Cal. App. 148, 98 Pae. 241, the subject was considered' from a slightly different angle, the facts being that at the general election of 1906, one Colgan, state controller by previous election, was re-elected. A few days later he died, and the governor (then J. C. Pardee) appointed Nye “to fill the unexpired term.” Nye qualified, took possession, and carried on the work of the office. On Monday the seventh day of January, 1907, Governor Pardee issued a second commission to Nye “for the term prescribed by law,' vice self and E. P. Colgan, deceased,” and Nye immediately qualified thereunder. On April 29, J. N. Gillett, Pardee’s successor as governor, appointed one Mattison to the office, who qualified, demanded possession, and, being refused, brought proceedings. Nye advanced the contention that, under section 8, Article Y, of the California Constitution, which provides that vacancies in certain state offices, including that of controller, shall be filled by commission from the governor, which commission “shall expire * * * at the next election by the people, ’ ’ he was entitled to hold under the first appointment until the general election of 1908, or else there was a vacancy on the seventh day of January, 1907, and he was entitled to hold under the second commission. The court, overruling the first and sustaining the second of these alternatives, said: “Two distinct terms are involved in this controversy. Mr. Colgan was serving one term as controller when in November, 1906, he was elected for another term. If the first term did not come to an end, there could be no beginning of the second term. It is impossible to conceive of the beginning of one without the ending of the other. But the term for which he was elected in November, 1906, according to the provisions of the Constitution, began either January 7 or 8, 1907. * * * Therefore * * * Mr. Nye’s right to hold the office under the first commission expired either January 6 or January 7, 1907. It is true that in the interests of the public service, to prevent an interregnum, it was his privilege and his duty to discharge the functions of the office; * * * but he did not thereby acquire any right to a new, fixed and definite term. He became a temporary incumbent, locum tenens, by'virtue of public necessity, it has been said, until the place could be regularly filled. * * * From the foregoing considerations it clearly follows that at the beginning of the term for which Mr. Colgan was elected in November, 1906, there was in legal contemplation a vacancy in the office of controller.” And it was held that since this term began before the second appointment of Mr. Nye, “the latter is now entitled tu the office. ’ ’
So here, we may repeat: Two terms are involved, the term for which Mr. Smith was the incumbent of the office of county assessor of Yellowstone county when he died, and the term for which he was elected in November, 1916. Only the first of these became vacant when he died, and it alone could be filled by the board which appointed Mrs. Smith; the second did not become and could not be vacant until the first Monday in January, 1917, at which time a new board came into office. On that board was cast the duty to fill the vacancy by appointment, and this it did by the selection of Mr. Dunne. He therefore is entitled to hold until the next general election, unless it must be held that his appointment, depending as it did on the vote of Mr. Rademaker, was invalid on that account.
2. It is a fact established by the agreed statement that at the time Dunne was appointed, Rademaker was acting as a member of the board of county commissioners of Yellowstone county. He had theretofore and for some months been acting without challenge or question pursuant to an appointment; but he was then claiming the office by virtue of election in November, 1916, to fill the unexpired term of W. C. Renwick, who had been elected in 1914, and who had resigned. The contention is that Rademaker is a mere intruder, whose acts are void, because he failed to qualify in time under the appointment, and his selection by the people was invalid because no notice of any special election to fill the unexpired term of Mr. Renwick was ever given. Upon the face of the record the claim of Mr. Rademaker might possibly be upheld, under the decision of this court in State ex rel. Patterson v. Lentz, 50 Mont. 322, 146 Pac. 932; but be [4, 5] that as it may, his title to the office of commissioner cannot be tried in a proceeding to which he is not a party. (State ex rel. Buckner v. Mayor of Butte, 41 Mont. 377, 109 Pac. 710.) He was at least a de facto commissioner, and his acts colore officii are proof against collateral attack.
It is therefore adjudged that the relator, Edward W. Dunne, is, and since January 3, 1917, has been, entitled to the office of county assessor of Yellowstone county, Montana, and he is entitled to recover his costs herein incurred; that the respondent, Carrie G. Smith, is not entitled to said office; that she ought to be, and is, ousted therefrom and charged with the costs of this proceeding.
Me. Chief Justice Beantly and Me. Justice HolloWay concur.
|
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] |
PER CURIAM.
Appellant’s motion for leave to dismiss the appeal herein without prejudice is this day granted, and the appeal is accordingly dismissed.
|
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
In February, '1916, an action was commenced in the district court of Lewis and Clark county, the primary purposes of which were to secure the cancellation of a certain contract for the sale of real estate and the restitution of possession. In July following, and before a demurrer to the complaint had been disposed of, the plaintiff applied to the court for the appointment of a receiver. The application was denied and plaintiff has appealed from the order.
From the complaint we gain the following information: ín May, 1914, the Montana Ranches Company, then having a right to sell a certain tract of land in Lewis and Clark county, entered into an agreement to sell the same and certain personal property to defendants-for a stipulated price, a part of which was paid and the balance of which was to be paid in installments. Time was made of the essence of the agreement, and a provision was incorporated therein to the effect that if defendants failed to make any payment when due, the plaintiff at its option might declare the contract terminated, and thereupon all sums previously paid should be forfeited to the plaintiff, all rights of the defendants should immediately cease, and defendants should yield up possession to plaintiff. Under this agreement, defendants were let into possession of the premises about March 1,1915, and have since retained possession. On December 1, 1915, an installment of the purchase price, with interest, became due, but defendants failed to pay the same or any part, and in February, 1916, plaintiff notified defendants that it elected to exercise the option reserved to it in the contract, declared the contract forfeited, and demanded possession, which was refused. In the application for the appointment of a receiver, plaintiff alleges that it commenced the action above referred to, repeats the material allegations of its complaint, and then sets forth that the defendants are insolvent; that they are in the possession of the premises in controversy; that they are farming the same as their own; “that there are large quantities of alfalfa and other grasses growing upon said lands, as well as cultivated crops of great value; that there is danger that said crops will, if relief is not granted petitioner as hereinafter prayed, be removed and sold to innocent purchasers and the proceeds converted to the use of defendants, or that said crops will be consumed by defendants and converted to their own use; that the value of said crops is upwards of $1,500.”
It is the contention of appellant that at the time its application was denied, the material allegations of its complaint were admitted by the demurrer interposed by defendants, and that, since plaintiff had exercised its option, had declared the contract forfeited, had notified defendants, and had demanded possession, all rights of defendants in or to the property were prima facie terminated, the title restored to plaintiff, and with it the right to immediate possession; that the ownership of the crops followed the ownership of the land, and therefore plaintiff was prima facie the owner of the crops. For the purpose of argument only, we will assume that these premises are correct; that as between plaintiff and defendants, the plaintiff was the owner and entitled to' the possession of the land immediately upon giving notice of forfeiture, and that title to the crops then growing or afterward planted, followed the title and right of possession in plaintiff, and that, at the time this application was made, the crops had not matured or at least had not been severed from the soil.
The authority to appoint a receiver is conferred by section 6698, Revised Codes, but only in the instances therein enumerated. The present application does not bring the proceeding within any of the designated classes, unless it be the last one, viz.: “In all other cases where receivers have heretofore been appointed by the usages of courts of equity.” The power to invoke the extraordinary remedy by which property is taken into the possession of the court is to be exercised sparingly, with unusual caution, and only to prevent manifest wrong imminently impending, or where the case shows clearly that the complaining party is in danger of suffering irreparable loss and there is no other plain, speedy or adequate remedy. Where the application is made, as in this instance, before a decision adjudging the title to be in the applicant, the appointment, if made, amounts in effect to a levy of an execution in limine, entailing costs, expenses and other hardships often out of proportion to the value of the property right sought to be protected. (Hickey v. Parrot S. & C. Co., 25 Mont. 164, 64 Pac. 330.) Because of the extraordinary harshness of the remedy, courts of equity have ever been reluctant to apply it. If the applicant has any other adequate remedy, the application will be denied.
The record before us discloses that the application was filed in the district court on July 7, 1916; that on July 17 an order to show cause was issued; that on July 29 the application and defendants’ objections thereto were submitted; and that the order denying the application was made on October 9. The application was addressed to the sound, legal discretion of the trial court (Hartnett v. St. Louis M. & M. Co., 51 Mont. 395, 153 Pac. 437), and plaintiff must assume the burden of showing an abuse of such discretion.
Since the remedy by receivership is an extraordinary one, never to 'be allowed except upon a showing of necessity therefor (Prudential Securities Co. v. Three Forks etc. R. Co., 49 Mont. 567, 144 Pac. 158), the plaintiff was further charged with the burden of presenting facts sufficient to disclose to the court the existence of such necessity. (34 Cyc. 112.)
All that was presented to the court below to show such an exigency as would call for relief is contained in the portion of the application quoted above: “That there is danger that said crops will * * * be removed and sold to innocent purchasers and the proceeds converted to the use of defendants, or that said crops will be consumed by defendants. ’ ’ The expression of a fear is not the statement of a fact. It is not alleged that defendants threaten or intend to dispose of the crops in any manner, or that they will be disposed of, or that loss or waste will result from defendants’ possession or control of them. It is not shown that defendants are not farming in a good workmanlike manner, or not intent upon the proper care and preservation of the crops. Indeed, we think there is not stated any fact from which the court could determine that plaintiff was in imminent peril of losing whatever interest it might have in the property.
If the property was not disposed of before the crops were severed from the soil and became personal property, then claim and delivery would afford to plaintiff a plain, speedy, and adequate remedy. If the defendants threatened to dispose of the crops before severance, an injunction would defeat such purpose, and in either event a receiver would be unnecessary. We think plaintiff has failed to show such abuse of discretion as would warrant a reversal of the order.
The order is affirmed.
Affirmed.
Me. Justice Sannee concurs.
Me. Chief Justice Brantly, being absent, did not hear the argument, and takes no part in the foregoing decision.
|
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PER CURIAM.
The motion to quash the alternative writ of mandate heretofore issued herein is, after due consideration, sustained and the proceeding dismissed.
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MR. JUSTICE SANNER
delivered the opinion of the court.
On the twenty-eighth day of December, 1914, an order was made by the district court of Hill county admitting a certain instrument to probate as the last will and testament of Simon Pepin, deceased. Thereafter Exor A. Pepin filed his petition seeking to contest said will and to have the probate thereof revoked, upon the grounds that he and other persons named in his petition are collateral heirs of said Simon Pepin entitled to succeed to his estate in the absence of direct heirs or a valid will; that said will was not properly executed by Simon Pepin or published and declared by him to be such, in the manner required by law; that, if executed by him at all, it was the result of the menace, duress, fraud and undue influence of Rose Trottier and Elizabeth Meyer; and that at the time of its pretended execution Simon Pepin was not of sound and disposing mind and memory. On the face of the petition it is further made to appear that on July 27, 1902, Simon Pepin signed and on August 6, 1902, filed in the district court of Choteau county his verified petition reciting his desire to adopt as his own one Elizabeth Trottier “who is now of the age of eight years, and the daughter of Rose Trottier and Andrew Trottier, * * * husband and wife, * * * who have * * * given their full consent,” which petition contains all the other matters and things then required by law in such cases; that thereafter and on October 1, 1902, there was filed and presented to the court an agreement in writing, executed in the presence of Charles H. Boyle, clerk? of said court, between “Andrew Trottier and Rose Trottier, his wife * * * and Simon Pepin,” whereby the Trottiers assented to the adoption of Elizabeth by Pepin, and he agreed that she should be adopted, treated and cared for in all respects as his own child and daughter, her name to be changed from Elizabeth Trottier to Elizabeth Pepin; that thereafter and on the same day a minute entry was made of such adoption and a final order or decree was signed by Honorable John W. Tattan, Judge of said court, which, after reciting the matters and things necessary to give jurisdiction, “ordered, adjudged, declared and decreed that the said child, Elizabeth Trottier, shall henceforth be regarded and treated in all respects as the child and daughter of the said petitioner, Simon Pepin, and that her-name be, and it is hereby, changed to Elizabeth Pepin”; that thenceforth and until his death in November, 1914, she was regarded and maintained by said Simon Pepin as his legally adopted daughter, and that she, known since her marriage as Elizabeth Meyer, is the principal devisee under the will of said Simon Pepin. Upon citation, the executors of said will as well as Elizabeth Meyer and Rose Trottier, devisees named therein, appeared and by elaborate motions to dismiss, challenged the sufficiency of the petition upon several grounds, the chief of which is that the petitioner has no such interest in the matter as to authorize the proceeding by him or at his instance. This motion was granted, and from the order dismissing the proceedings the petitioner appeals.
It is an elementary proposition that the only persons authorized to contest or seek revocation of the probate of a will are those who, but for the will, would succeed in some degree to the decedent’s estate. (Rev. Codes, sec. 7407; State ex rel. Donovan v. Second Judicial District Court, 25 Mont. 355, 65 Pac. 120; Ingersoll v. Gourley, 72 Wash. 462, 130 Pac. 743; Wicker sham’s Estate, 153 Cal. 603, 96 Pac. 311; In re Zollikofer’s Estate, 167 Cal. 196, 138 Pac. 995.)
It is also obvious that if Elizabeth Meyer is the adopted daughter of Simon Pepin, she, under the statute, in the absence of a will would succeed to all his estate as against the petitioner or any other collateral heirs (Rev. Codes, secs. 3768, 4820; In re Newman’s Estate, 75 Cal. 213, 218, 7 Am. St. Rep. 146, 16 Pac. 887); and it necessarily follows that the petition was properly dismissed for want of interest in the petitioner, unless the apparent fact of Elizabeth’s adoption is in some manner overcome.
Appreciating this, the petitioner seeks to avoid prima facie the decree of adoption by allegations to the effect that the proceedings were without jurisdiction in the court; that Simon Pepin, being of French-Canadian blood, could not lawfully adopt Elizabeth Trottier, who is of Indian blood; and that the decree of adoption was procured by fraud on the court, in that the court was led to believe, and did believe, “ that said child was the child of Andrew and Rose Trottier,” and “that it was decreeing an adoption desired and consented to by Simon Pepin, whereas his consent, if given at all, was procured by the fraud, menace, threats and duress of Rose Trottier in persuading said Simon Pepin to believe that Elizabeth was his daughter.” We think the attack must fail for these reasons:
1. A comparison of the statutory provisions in force in October, 1902 (Civ. Code 1895, secs. 310-320 [Rev. Codes, secs. 3761-3771]), with the proceedings had in the matter of said adoption, is sufficient to establish that the latter were in apparent conformity to such provisions; the decree is therefore valid on its face. A judgment or decree valid on its face is not subject to collateral attack based upon consideration dehors the record. (Edgerton v. Edgerton, 12 Mont. 122, 33 Am. St. Rep. 557, 16 L. R. A. 94, 29 Pac. 966; Burke v. Interstate S. & L. Assn., 25 Mont. 315, 87 Am. St. Rep. 416, 64 Pac. 879; Haupt v. Simington, 27 Mont. 480, 94 Am. St. Rep. 839, 71 Pac. 672.) This is especially true of a decree of adoption by which the status of particular persons is fixed. (Rev. Codes, sec. 7914; 1 C. J. 1394, see. 114; Brown v. Brown, 101 Ind. 340, 342.)
2. The purpose of this proceeding is to contest the will of Simon Pepin and procure revocation of the probate thereof, and as a means to that end the petitioner attacks the adoption of Elizabeth Trottier; such an attack is not direct, but collateral. (Jenkins v. Carroll, 42 Mont. 302, 310, 311, 112 Pac. 1064; 23 Cyc. 1065; Van Fleet on Collateral Attack, secs. 2-6.) The significance of this is emphasized by the fact that the present proceeding is in probate (In re Davis’ Estate, 27 Mont. 490, 495, 71 Pac. 757), and a court of probate is a court of limited jurisdiction. (Bullerdick v. Hermsmeyer, 32 Mont. 541, 81 Pac. 334; State ex rel. Ruef v. District Court, 34 Mont. 96, 115 Am. St. Rep. 510, 9 Ann. Cas. 418, 6 L. R. A. (n. s.) 617, 85 Pac. 866.) It cannot entertain even a direct attack upon any final order, decree or judgment not entered by itself; this can only be done by the district court sitting with plenary powers in the exercise of its civil jurisdiction. If this be so, it would be singular reasoning which could authorize the court below to annul in this proceeding the order of adoption here sought to be questioned. (See In re Trimm, 30 Misc. Rep. 493, 63 N. Y. Supp. 952; Ward’s Estate, 59 Misc. Rep. 328, 112 N. Y. Supp. 282.)
3. The fact — if it be a fact sufficiently alleged — that Simon Pepin and Elizabeth Trottier were of different races constituted no obstacle to adoption under the law as it then existed. (Civ. Code 1895, sec. 310.)
4. The ground of attack is fraud upon the court, based upon matters dehors the record which are a trifle hard to appreciate. The order of adoption was entered in consideration of the fact that Simon Pepin on his part, and the Trottiers on theirs, had signified in lawful manner that Elizabeth should be adopted by Pepin, and that such action would be for the best interests of the child. The truth of these facts is not questioned, but the point is made that the court was led to believe Elizabeth was the child of Andrew and Rose Trottier, and that Pepin’s consent to adopt her was only apparent because procured by deceit and duress exercised, not by the person adopted, but by her putative parents. Undoubtedly the court was led to believe Elizabeth was the child of Andrew and Rose Trottier — by the allegations of Pepin’s own petition as well as by the fact that Elizabeth was born of Rose Trottier. while Rose was the wife of Andrew Trottier, living with him as such; and that the court was not deceived in this respect is established by the provisions of Revised Codes, section 7961, subdivision 5, as well as by the petitioner’s repeated allegations of deceit practiced upon Simon Pepin whereby Simon Pepin was persuaded to think that Elizabeth was his daughter. So far as the court was concerned, Pepin’s petition and his agreement constitute a twice repeated consent to the adoption, he being perfectly competent; with the motives or reasons which impelled him the court had nothing to do further than to be satisfied of his disposition and capacity to adopt the child and treat her as his own; he aione was in position to attack the proceedings for fraud, for he alone, if anyone, was injured by it. The rule is elementary that to avoid a judgment or other transaction for fraud, the person attempting to do so must show that he has rights which were vested at the time and were injuriously affected by it. (23 Cyc. 1068.) How was Exor Pepin injured? He was not in 1902 an heir of the living Simon Pepin, nor had he any natural or accrued right to be an heir of Simon Pepin at the latter’s death (In re Colbert’s Estate, 44 Mont. 259, 119 Pac. 791; 14 Cyc. 25) ; he was deprived of nothing by the adoption save a remote possibility. To say that with Elizabeth out of the way he would be entitled to succeed upon the death of Simon Pepin more than twelve years after the adoption is not enough; one whose rights accrue after a judgment is rendered cannot attack the judgment. (Hogg v. Link, 90 Ind. 346; Johns v. Pattee, 55 Iowa, 665, 8 N. W. 663; Brace v. Reid, 3 G. Greene (Iowa), 422; Smith v. Elliott, 56 Fla. 849, 47 South. 387.)
5. Finally, the facts alleged as invalidating Simon Pepin’s consent are indecisive. They are that because of illicit relations between him and Rose Trottier, the latter was enabled to induce him to believe that Elizabeth was his natural daughter, and that her influence over him in that behalf was enforced by menaces on her part and on the part of her husband. That Pepin was ever deceived in respect of Elizabeth’s relationship to him is refuted by his own petition for adoption — pleaded by the petitioner here — which recites that Elizabeth is the daughter of Rose and Andrew Trottier, husband and wife. Assuming it to be true that there were menaces, even that Pepin was bullied, coerced and driven into the adoption, he may nevertheless have become wholly satisfied with the arrangement, may have acquired through twelve years of association with Elizabeth in the adopted relation of parent and child, such affection as' not to desire & change, may have, in effect, ratified what he could have had annulled, so that for Exor Pepin or anyone else there could be no ground of complaint. One has only to imagine the petitioner in this ease seeking annulment of this adoption during the life time of Simon Pepin, to realize the futility of his present-position.
In our opinion the petitioner has not and shows that he cannot allege any sufficient interest in the matter of Simon Pepin’s estate to maintain this proceeding; the court was correct in dismissing his petition, and the order appealed from is affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. 'Justice Holloway concur.
|
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] |
MR. JUSTICE SANNBR
delivered tbe opinion of tbe court.
The questions presented by this appeal are the same and arise in the same way as those presented in State ex rel. Langohr v. Story, ante, p. 573, 165 Pac. 748. On the authority of that decision, and for the reasons stated therein, the judgment appealed from is affirmed.
■Affirmed,.
Mr. Chief Justice Brantly and Mr. Chief Justice Holloway concur.
|
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] |
MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
The plaintiff, as a trading corporation whose office and principal place of business is at Billings, in Yellowstone county, through Albert S. Hanson, as its president, and from March 30, 1914, to April 7, inclusive, drew checks upon its deposit account in the defendant bank to the order of various persons to whom it was indebted, and delivered them in payment of amounts due thereon. On April 8 these several checks were presented for payment, but payment was refused and they were returned to the plaintiff. On April 11, with the apparent purpose of closing up the account with defendant and transferring it to some other institution, Hanson drew a check payable to “currency” for the whole balance claimed to be due less the amount of checks theretofore drawn, and presented it in person for payment. The defendant refused to pay this also. Plaintiff thereupon brought this action to recover the amount of the several checks and for damages, alleging wrongful refusal to pay them. Each check is made the subject of a separate cause of action; plaintiff alleging that when it was drawn and presented there was deposited with defendant, subject to check, an amount more than sufficient to pay it. Defendant, admitting that all the checks were drawn and presented for payment as alleged, denied that plaintiff had upon deposit, subject to check, a sum sufficient to pay them, or any sum whatever. A trial to a jury resulted in a verdict and judgment for defendant. Plaintiff has appealed from the judgment and an order denying its motion for a new trial.
The inquiry at the trial was whether the deposit account had been exhausted before the checks were presented. Counsel for plaintiff contend that there is no evidence to justify the finding of the jury in this behalf. The facts disclosed by the evidence are these: The corporation was formed during the year 1907. Hanson transferred to it the business he had theretofore conducted, including all the property theretofore used by him in connection with it. Hanson, his wife, and Trogdon, a hired man, were-its organizers and became the owners of the entire capital stock. They became its directors and officers, Hanson being its president, his wife vice-president, and Trogdon secretary and treasurer. Mrs. Hanson became the owner of one share of stock of the par value of $100, paying therefor $1. In 1912 she became the owner of 100 other shares, paying as a consideration therefor $1 and her help to Hanson. Trogdon purchased one-third of the shares. He gave his note to Hanson for an unpaid balance of the purchase price, who held the certificates as collateral security. Ostensibly the mode of conducting the business was not changed by the organization thus effected, except in the use of the corporate name. Trogdon having failed to pay in full for his shares, and differences having arisen between him and his wife and Hanson, the shares were taken over by Hanson. This was in 1912. From that time until early in March, 1914, Hanson and his wife owned all the shares. At this time a brother of Hanson residing in Oregon acquired shares in the corporation in excess of 100, but the exact amount does not appear. He is referred to by Hanson as a director, but it does not appear when, if ever, he was elected. So far as the record discloses, no meeting of the directors or stockholders was ever had subsequent to the preliminary organization. By-laws were then adopted, but the record of such proceedings as were thereafter had were kept by Hanson in the form of notes and memoranda until this controversy arose. It appears that the brother of Hanson never took any part in the conduct of the business of the corporation and was never present in Montana after he acquired his shares. The corporation became a customer of the defendant in July, 1910, keeping a checking account with it and borrowing funds from it as the exigencies of the business required. Payment of the funds borrowed from time to time was secured by promissory notes executed in the name of the corporation by “Albert S. Hanson,” without official designation, and by him personally as security. A pass-book was kept in the name of the corporation from the time the account was opened until this controversy arose. Hanson kept a separate individual account with the defendant. He also borrowed money from it from time to time, giving his personal notes as security. This course of dealing continued until April 2, 1914. On that date the books of the defendant and the passbook of the plaintiff showed a balance in plaintiff’s favor of $14,316.91. This amount had been obtained by the sale of sheep ostensibly belonging to plaintiff, and had been deposited by Hanson on that day. There were then outstanding checks of plaintiff to the amount of $826.60. These had been presented and paid before those involved herein were presented. The balance .left was $13,490.31, and was sufficient to pay all of the latter. The plaintiff was then indebted to defendant to the amount of $3,500 upon his promissory note dated February 27, and due on or before August 27 following. Hanson was also indebted to the defendant by promissory note of the same date as that of plaintiff and due at the same time, to the amount of $12,000. These notes were renewals of other notes theretofore given for borrowed money. At the time the deposit of April 2 was made it was agreed between Hanson and the defendant’s officers that the amount of the deposit should be applied first to the discharge of plaintiff’s note, and then pro tanto to that of Hanson. This agreement was made in pursuance of an understanding had on February 27, when the notes were executed, that when a sale of the sheep belonging to the plaintiff, then in contemplation, should be made, the proceeds should be applied to the payment of the notes; the words “on or before” having been inserted in order to permit plaintiff to do this. This understanding was the consideration upon which the renewals were made. The deposit was made on Thursday afternoon, April 2. Hanson agreed to come in on the next day and give defendant plaintiff’s check for the amount of the balance, but did not come in until Saturday, April 4, after the close of business for the day. Instead of giving the cheek, he directed Mr. Price, the cashier, to charge the account with the balance and credit the notes. Sunday and the following Monday being holidays, the instructions then given were carried out on Tuesday, the checks representing the sum of $826.60 having in the meantime been presented and paid as heretofore stated. When the cheeks in controversy were presented, the account had in this way been exhausted.
There was a conflict in the evidence as to the understanding between Hanson and the officers of defendant when the notes were renewed, as well as to the making of the agreement that the defendant should credit the amount of the balance on the notes when it was deposited. Inasmuch as the jury found the issues for the defendant, we must assume for the purposes of these appeals that the facts were as claimed by defendant. Mr. Mains, the president of the defendant, and Mr. Price, its cashier, testified that they had often talked with Hanson about the business affairs of himself and the corporation, that they had considered Hanson and the corporation as one and the same person, and that they knew that the money borrowed by Hanson on the notes was intended to be used, and was used, by himself, for himself and the business of the corporation indifferently, he having no business other than that carried on in the name of the corporation. Mr. Price testified that Hanson had told him and the other officers of the defendant that the business of the corporation was his. Both said in effect that, since the corporate stock of the defendant was only $50,000 they could not lawfully lend to a single person more than 20 per cent of this amount, and hence that the indebtedness to the defendant was evidenced by the notes executed-as they were, in the names of Hanson and the corporation, to avoid a violation of the prohibition of the statute on the subject. Hanson drew checks upon either his personal account or that of the corporation as it suited his convenience, for money used in the business. There is some evidence which tends to show that the disposition made of the deposit by the officers of the defendant was at the time entirely satisfactory to Hanson, but that he subsequently changed his mind because he understood or surmised from the conduct of Mr. Mains and Mr. Price that he could not secure further loans of funds for use in trade during the coming summer months. The paid-up capital stock of the corporation was ostensibly $42,000, but the number of shares into which it was divided does not appear, except by inference from the fact that their par value is $100. At the time the present controversy arose it had unencumbered property of the value of $5,000 or $6,000. Aside from his shares of stock and his interest in the proceeds of the sale of sheep by way of dividends, Hanson himself had no property of substantial .value. He denied that he had used the money represented by his note in the business of the corporation, but claimed that he had used it in farming operations in different places in Yellowstone county. This statement is not corroborated in any way, and in view of the testimony of Mains and Price as to the purpose for which Hanson borrowed the money, we may assume that the jury rejected his claim as not in accord with the facts. It may be added that he stated that he always consulted the board of directors in regard to the conduct of the business. By this statement he evidently meant that he consulted his wife only, as is apparent from his testimony showing that he and she were the only directors.
Assuming these facts to have been fully established, what are the rights of the parties? Counsel for the plaintiff insist that, though they be accepted at their utmost probative value, they furnish no support for the verdict. They invoke the rule that a deposit belongs to him in whose name it is made, and that by accepting the deposit for plaintiff the defendant could not thereafter pay it to any other person than plaintiff, or apply it for plaintiff’s benefit under an express direction. We have no doubt of the propriety of the rule invoked. (Murphy v. Nett, 51 Mont. 82, L. R. A. 1915E, 797, 149 Pac. 713; Rev. Codes, sec. 5187.) If we assume for the moment that the plaintiff is a Tyona fide corporation with an effective legal entity, the rule invoked would doubtless apply. The balance disclosed by the pass-book when accepted as correct, became an account stated between plaintiff and defendant, as counsel contend, and until changed by other dealings between them with reference to it fixed the amount due the plaintiff unless fraud, mistake or error intervened in ascertaining it. (Martin v. Heinze, 31 Mont. 68, 77 Pac. 427; Noyes v. Young, 32 Mont. 226, 79 Pac. 1063.) Plaintiff had the exclusive right at any time through its authorized officers to make such disposition of the balance as it chose.
Of course, the president of a corporation has no authority to appropriate the assets of the corporation to his own use.
He and the other members of the board of directors cannot use their position for the purpose of enriching themselves at the expense of the other stockholders. They occupy a fiduciary relation to the stockholders. This imposes upon them the obligation to serve the purpose of their trust with fidelity, and forbids the doing of any act by them, or any one of them, by which the assets of the corporation are diverted to any use other than such as will serve the purpose of its organization.
And when it appears that any one of them has been dealing with the corporation, the burden is at once upon him to show that his dealings have been fair and honest. (Gerry v. Bismarck Bank, 19 Mont. 191, 47 Pac. 810; McConnell v. Combination M. & M. Co., 31 Mont. 563, 79 Pac. 248; Coombs v. Barker, 31 Mont. 526, 79 Pac. 1; Kleinschmidt v. American Mining Co., Ltd., 49 Mont. 7, 139 Pac. 785.)
The stockholders suffer wrong whether the assets are diverted to the use of one or more of the directors or to that of a stranger. Even so, by authority of the board of directors the defendant had the right, with Hanson’s consent, to discharge plaintiff’s note. He had been intrusted with the exclusive control of its business affairs from the time of its organization. So far as the plaintiff was concerned, he was possessed of the powers of the board of directors, and could lawfully do anything the board itself could do. At the time this indebtedness was incurred Hanson and his wife held all the stock, and, by the continued acquiescence of the latter permitting him to exercise all the powers and functions of the corporation, he' became for the time the board of directors, with all the powers' it possessed. The corporation cannot now question any act of his within the scope of its legal powers. (Edwards v. Plains L. & W. Co., 49 Mont. 535, 143 Pac. 962.) As the corporation itself by formal action might have taken up its note, though not due, so Hanson’s act in doing this must be regarded as that of the corporation, just as if he had been authorized in the most formal manner. (Id.) On the other hand, upon the assumption that we have made, Hanson had no power to authorize the application of any part of the deposit to the payment of his debt.
Counsel for the defendant insist, however, that the plaintiff is a mere colorable corporation — a shadow organized and maintained by Hanson as a cloak or alias under which to conduct his own business. They earnestly contend that the indebtedness was that of Hanson, and that he had the right to devote the deposit to the payment of it, whether evidenced by his own note or that of the ostensible corporation; in other words, Hanson, having used the corporate name merely as a means to serve his personal convenience, cannot insist that he and plaintiff are distinct persons, that he bears toward it a fiduciary relation, and that he could not lawfully apply its assets to discharge his personal debt. This contention, we think, must be sustained. Whatever view may be taken of the tona fides of the organization in the beginning, when Trogdon transferred his shares to Hanson the entity of the corporation fell into a condition of abeyance. It had no board of directors nor any secretary. Therefore it had no agency through which it could legally act. The business theretofore conducted in its name by Hanson was thereafter treated by him as his personal business, or at least'that of himself and his wife as copartners. The result was that the name of the corporation, except for the purpose of protecting strangers, became in effect the name of Hanson, and the business, so far as he conducted it in the corporate name, was his. When a corporation is in this condition, the public cannot be expected to know of the fact; hence the rule that, where strangers deal with it, it can be held for all obligations assumed by its officers in- its name.
Its legal capacity cannot be inquired into collaterally or questioned by a private citizen in a controversy between it and him. This can be done only by the state through its proper officer (Rev. Codes, sec. 3892), and for one of the causes prescribed by the statute (sec. 6944). But this rule does not preclude an examination into the facts to ascertain the identity of the person who uses the name of the corporation for his own purposes and to fix liability for the ostensible corporate acts upon him. In the language of the Court of Appeals of New York in Seymour v. Spring F. C. Assn., 144 N. Y. 333, 26 L. R. A. 859, 39 N. E. 365: “The abstraction of the corporate entity should never be allowed to bar out and pervert the real and obvious truth.”
In Barnes v. Smith, 48 Mont. 309, 137 Pac. 541, this court said: “There are exceptional cases in which the courts refuse to recognize the corporate entity, as distinguished from the stockholders, if the refusal of such recognition is necessary in order to get at the truth. This statement applies especially to eases in which the corporation is used as a cloak for fraud, or to enable the owner of the stock to evade personal liability or the performance of a public duty. It has application also to cases in which circuity of action would otherwise be necessary to reach an adjustment of the rights of the parties.” In that ease the plaintiff had become the owner of all the capital stock of a corporation, but continued its business through the agency of dummies selected to act according to his directions. A debt contracted in the name of the company by the dummies for the payment of which they had become sureties during the course of business was held to be in legal effect the debt of the owner of the stock, so that he could not hold his dummies for the am onot. of it though he had paid it. This case is not directly in point in its facts, but is authority for the proposition that, whenever it is necessary, the courts will look beneath the particular transaction in order to prevent the perpetration of a palpable fraud. If in the one case an ostensible debt of the corporation must be deemed to be the debt of the owner of the stock, by parity of reasoning the ostensible debt of the owner of the stock should be regarded, under proper circumstances, as the debt of the corporation. Here Hanson used-the credit of himself and the corporation to serve his own purposes. If he is permitted to hide behind the corporate entity to undo what he did in the adjustment of his and its debts, and mulct the defendant in damages besides, he will have been aided in committing a fraud. True, the defendant violated the statute in lending him the amount of money it did and evidenced as it was by the two notes. But he was a willing beneficiary, and since he authorized the defendant to appropriate the deposit, which was in fact his, to the payment of the notes, he stands in no position to say that he violated his trust as president of the corporation in doing this. It is not to the point that Mrs. Hanson’s rights were violated. She was merely the agency by which he attempted to preserve the corporate name. Nor is it to the point to say that the brother in Oregon suffered a wrong. In the recapitulation of the evidence above we have assumed as an established fact that he was the owner of shares in excess of 100. In view of Hanson’s vague and indefinite explanation of the transaction by which the brother acquired the shares, whereas he could have disclosed fully the facts in connection with it, the fact that the brother never took any interest in the affairs of the corporation, that it is doubtful whether he gave any consideration for the shares held by him, and that Hanson was permitted to conduct the business as theretofore, it is questionable whether this assumption is justified. Be this as it may, we think we are fully justified in the conclusion that his position as stockholder was-only nominal, the same as that of Mrs. Hanson. If he in fact became a stockholder, he became such after the debt was contracted and the notes were renewed under the agreement of February 7, 1914, and as an agent of Hanson to serve his purpose. If he did not in fact become a stockholder, the result is the same. The evidence as a whole suggests an effort on the part of Hanson to use the corporate entity to avoid the result of the payment to the defendant, having concluded, upon afterthought, that he would profit by this course.
If the foregoing conclusion is correct, Hanson’s authority to Price to apply the deposit as he did amounted to nothing more nor less than a payment of his personal obligation with moneys belonging to him. His verbal direction to the defendant gave it plenary authority to apply the deposit, and the contention by counsel for plaintiff that defendant must have had authority in writing is without merit.
The same may be said of the contention that the court erred in permitting the defendant to introduce evidence showing that the account had been exhausted. The argument is that the contract relation established between the plaintiff and the defendant by virtue of the deposit evidenced by the passbook could only have been terminated by a release, payment or accord and satisfaction by the plaintiff, and hence that it was incumbent upon the defendant to plead specially the facts showing that the relation had been thus terminated. Under the allegations of the complaint plaintiff was bound to prove that at the time the checks were presented it had a balance sufficient to meet them. Under its denials the defendant was entitled to show that this was not true, and this it could do by showing that the balance appearing on the pass-book had been exhausted by any appropriation made of it by the plaintiff by other checks that had been paid, or otherwise by the direction of the plaintiff. Any evidence is admissible under a general denial which tends to controvert the allegations of the complaint. This includes evidence of any fact which is inconsistent with, and thus negatives, plaintiff’s cause of action.
Hanson was the only witness who testified for plaintiff as to the transaction between him and the defendant. On cross-examination counsel for defendant were permitted to question him as to his relations to plaintiff, the extent of his interest in and control over it, the ownership of the shares of its capital stock, and all other facts tending to show that it was merely a colorable corporation. In fact, it permitted counsel to draw from the witness facts which related wholly to the defense and about which he had not testified in chief. This was error. (Shandy v. McDonald, 38 Mont. 393, 100 Pac. 203; Pelican v. Mutual Life Ins. Co., 44 Mont. 277, 119 Pac. 778.) The evidence was competent, however, and if it had been offered at the proper time and in the regular order, it would have been error to exclude it. The contention now is that the plaintiff should be awarded a new trial solely for the reason that the court permitted a technical violation of the rule of cross-examination. The contention is without, merit. It is not pointed out, nor is it apparent, wherein the plaintiff suffered in its substantial rights. The error must be disregarded. (Rev. Codes, sec. 6593.)
Counsel have assigned error upon several rulings of the court in excluding evidence. We have considered the argument made in support of each of them. The rulings were correct.
Though special exceptions were taken to the giving of certain instructions and the refusal to give others, counsel have not argued them in their brief. We therefore do not deem it necessary to notice them.
The judgment and order are affirmed.
'Affirmed.
Mr. Justice Sanner and Mr. Justice Holloway concur.
Rehearing denied April 3, 1917.
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35
] |
HONORABLE FRANK P. LEIPER, District Judge,
sitting in place of MR. JUSTICE GALEN, disqualified, delivered the opinion of the court.
This is an original application for a writ of mandate directed to the district court of the thirteenth judicial district of the state of Montana, and to Robert 0. Stong, a Judge thereof. The alternative writ was issued and the respondents answered. The pleadings are quite voluminous and contain much which we deem immaterial. The facts necessary to an understanding of the issues involved are:
That the relatrix is the proprietress of a hotel in the city of Billings, Montana, and in December, 1918, was granted a license to operate such hotel; that in the early part of 1924 proceedings were instituted before the city council of the city of Billings looking to the revocation of such license; that such further proceedings were thereafter had in this matter before the city council that the city council on the first day of April, 1924, made an order revoking the license; that on the seventeenth day of June following the relatrix herein commenced an action in the district court of the thirteenth judicial district of the state of Montana, in and for the county of Yellowstone, against the city of Billings, the city council of such city, and the mayor thereof (which action is numbered 11835 in the records of the above-mentioned district court), by filing a petition in which it was prayed that a writ of review issue commanding the defendants therein- to certify to the district court all of the proceedings had before the city council of the city of Billings relating to the revocation of the license of the relatrix, and that, after a review of the proceedings of the city council, judgment be rendered annulling the order made by said city council revoking the license of relatrix; that on the seventeenth day of June, 1924, a writ of review was issued in accordance with the prayer of the petition; that thereafter a motion was filed by the defendants in such action No. 11835 to quash the writ of review, which motion was on the twenty-first day of July, 1924, denied; that on the last-mentioned date the defendants in action No. 11835 filed their return to the writ, and also on the same day filed a motion for judgment on the pleadings; that on the third day of October, 1924, counsel for plaintiff in cause No. 11835 filed a motion to strike certain portions of the return to the writ of review, which motion was denied; that the matter came on for hearing on October 3, 1924, upon the defendants’ motion for judgment on the pleadings, and, as alleged in the petition filed in this court and admitted in the answer thereto, “thereupon the cause was argmed and submitted upon the petition for a writ of review and the return thereto as made by the defendants”; that thereafter the respondent court made an order which was entered in the minutes of the court- dismissing the complaint in cause No. 11835. The order is as follows:
“This proceeding seeks to review the actions of the council of the city of Billings in their revocation of rooming house license 11011. This matter was also before the court in cause 11728, wherein plaintiff sought an injunction. I still adhere to my views as set forth in the order made by me in that case. However, the city treasurer informs me, and such is the fact, that license 11011, which is the subject of this controversy, expired on April 1, 1924. As such is the case, the question before the court is only a moot one; consequently the court refuses to decide the matter ^and dismisses this proceeding.
“I will, however, venture this opinion: That if the license would not expire until after this date, I would sustain the writ and annul the order of the council in revoking the license, on the ground that, while the statutes of Montana empower a city council to prescribe the manner of revoking a license, the city is without an ordinance prescribing the manner or method.
“Dated October 17, 1924.
“Robert C. Stong, Judge.”
The minute entry is: “No. 11835. Violet Altop, Plaintiff, v. City of Billings et al., Defendants. In review of the action of the council of the city of Billings in their revocation of rooming house license No. 11011, court, finding that the said license expired April 1, 1924, refuses to decide the matter, and dismisses proceedings, and order dismissing proceedings is signed in open court.”
The relief prayed by the relatrix is that the respondents be directed (a) to cancel and annul the order made on October 17, 1924, in cause No. 11835; (b) to reinstate such action; and (c) to enter judgment in favor of the plaintiff therein and against the defendants on the merits.
Section 9848, Revised Codes of 1921, provides: “It [writ of mandate] may be issued by the supreme- court or the district court, or any judge of the district court, to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.”
What duty in relation to cause No. 11835 did the law enjoin upon the respondent court which it failed to perform? The answer to this inquiry must be found in the proceedings had in the respondent court in that cause. Looking thereto, we find that defendants in that action filed a return to the writ of review and on the same day filed a motion for judgment on the pleadings. Later and on the same day this motion for judgment on the pleadings came on for hearing. Plaintiff therein moved to strike certain parts of the return to the writ, which motion to strike was denied. Then the motion for judgment was argued, and, according to the admitted facts, the cause was submitted upon the writ of review and the return thereto; that is, both parties rested. There remained but one thing to be done by the'court in that cause, but one duty to be performed by it, namely, the rendition of judgment.
Section 9844, Revised Codes of 1921, provides: “If the return of the writ [of certiorari] be defective, the court or judge may order a further return to be made. When a full return has been made, the court or judge must hear the parties, or such of them as may attend for that purpose, and may thereupon give judgment, either affirming or annulling, or modifying, the proceedings below.”
The plain duty of the respondent court was to render judgment in cause No. 11835 in accordance with the provisions of. section 9844, supra, but by the order of October 17, 1924, supra, it refused to render judgment. The order of October 17 is not an appealable order. (Sec. 9731, Rev. Codes 1921.) Section 9849 provides: “The writ [mandamus] must be issued in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law.”
By its refusal to render judgment the respondent court failed to perform an act which the law specially enjoins as a duty resulting from the office of district judge, and, the order of October 17, supra, not being an appealable one, the relatrix has no plain, speedy and adequate remedy in the ordinary course of law. In this situation the writ of mandate is the proper remedy. (State ex rel. Robinson v. Desonia, 67 Mont. 201, 215 Pac. 220; State ex rel. Duggan v. District Court, 65 Mont. 197, 210 Pac. 1062; State ex rel. Peel v. District Court, 59 Mont. 505, 197 Pac. 741; State ex rel. Stuewe v. Hindson, 44 Mont. 429, 120 Pac. 485; State ex rel. Happel v. District Court, 38 Mont. 166, 129 Am. St. Rep. 636, 35 L. R. A. (n. s.) 1098, 99 Pac. 291; State ex rel. Montana Central Ry. Co. v. District Court, 32 Mont. 37, 79 Pac. 546.)
The writ will issue, directing the respondent court to reinstate cause No. 11835, and to render judgment therein in accordance with the law.
Writ issued.
Mr. Chief Justice Callaway and Associate Justices Ban-kin, Holloway and Stark concur.
|
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PER CURIAM.
The application of relatrix for a writ of certiorari is denied.
|
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MR. JUSTICE MATTHEWS
delivered the opinion of the court.
Application for writ of prohibition. On October 24, 1924, between the hours of 10 and 11 P. M., at Three Forks, Gallatin county, Orville Jones and E. M. Howell, deputy sheriffs, without warrant of arrest or search-warrant, halted relator’s automobile, placed relator under arrest and seized the car and twenty-five gallons of moonshine whisky found therein. An information was filed charging relator and his companion, E'tta Bennett, with the unlawful possession and transportation of intoxicating liqtior; plea of “not guilty” entered, and the trial of the cause set for December 4, 1924.
On November 24, 1924, relator filed and served written notice of motion and motion to suppress the evidence thus obtained and for the return of the car and its contents, and in support thereof filed his affidavit, asserting that the officers acted willfully and unlawfully without warrant, and “did not have any probable cause to believe that affiant was engaged in the commission of any public offense.” The motion was heard on November 29, 1924, and submitted on the Hansen affidavit.
In resistance of the motion the county attorney filed the affidavit of Deputy Jones, stating:
(a) That the officers had gone to Three Forks on advice that an automobile would appear there, after dark, loaded with liquor.
(b) That affiant knows the general reputation of Hansen, which is that Hansen is a moonshiner and a bootlegger.
(c) That Hansen had been an almost constant source of trouble to the sheriff’s office during the past year, and had been “prior to October 24, 1924, caught in the act of possessing and transporting intoxicating liquor. ’ ’
(d) That on the night in question affiant saw Hansen sitting in his car, near a building “into which affiant had reason to believe the said Hansen was about to deliver a load of intoxicating liquor.”
(e) That affiant approached the car and saw in the back seat thereof two five-gallon wooden kegs, one ten-gallon wooden keg, and one five-gallon glass container, and “as he was about to step upon the running-board of the said car detected an odor of moonshine whisky protruding from said car”; that Hansen started the car in motion, and thereupon affiant placed him under arrest and seized the containers filled with moonshine whisky.
(f) “That affiant acted in good faith, believing that a crime was being committed in his presence.”
Thereupon counsel for the moving' party stated that Jones was in the courtroom and requested permission to cross-examine him; this request the court denied, stating, “If you wish to put him on the stand as your own witness, you may do so.” Counsel did not avail himself of the permission, and made no further objection to the affidavit.
On rebuttal, Etta Bennett, codefendant with Hansen, testified that the night was dark, and that it could have been impossible for anyone to have seen into the car; further that the containers were covered with a blanket, and the back curtains of the car so arranged that no one could see into the ear or see what was in the back seat thereof. On cross-examination the witness admitted that the car was near the intersection of two streets and that there was an electric street light in the vicinity; she further admitted that she had never smelled moonshine whisky, and did not know what it smelled like. The county attorney then had the ear introduced in evidence for the court’s inspection.
The motion to suppress was denied and thereupon relator made his application to this court for a writ of prohibition.
Counsel submits three propositions, in the nature of assignments of error, on which he bases his contention that the motion should have been granted: (1) That the Jones affidavit should have been served upon him before the day of hearing; (2) that the court should have permitted cross-examination thereon; (3) that the oral testimony of Etta Bennett clearly shows that the search and seizure were unlawful.
1. In his brief counsel asserts that, by rule of court in the ninth judicial district, affidavits to be used on motion shall be served upon opposing counsel at least one day prior to the day set for the hearing of the motion. From the record it would seem that no objection was offered to the affidavit on this ground, and the court was therefore given no opportunity to rule upon its admissibility under the rule cited. However, while rules of court generally have the force of statutes, and are binding upon the court as well as litigants (State ex rel. Nissler v. Donlan, 32 Mont. 256, 80 Pac. 244), there is no showing, or attempted showing, of injury resulting to relator; the only witnesses who could have contradicted the assertions contained in the affidavit as to what transpired at the time of the arrest and seizure, to wit, Hansen and Etta Bennett, were available at the hearing, and the testimony of Mrs. Bennett attempted to refute those assertions. If error was committed, it was nonprejudicial error, in the absence of a showing of injury. (Roush v. Fort, 3 Mont. 175.)
2. The affidavit was offered and received as evidence in refu tation of the Hansen affidavit, likewise received as evidence, on motion, under the provisions of section 10636, Revised Codes of 1921, and properly so. As stated in Ruling Case Law: “In general practice, affidavits may be used to start in motion the process of the court, and are generally received as evidence upon hearing of motions, irrespective of the vital influence the latter may have upon the final outcome of the suit.” (1 R. C. L. 766.)
At the time the request to cross-examine was made no oral testimony had been offered; the motion had been submitted on affidavit and resisted in like manner. There is nothing in either the law or practice permitting cross-examination on proof by affidavit; in fact the very nature of the proof excludes it. “The characteristics of an affidavit are that it is a voluntary statement and is made ex parte without giving the adverse party either notice or an opportunity to cross-examine.” (1 R. C. L. 761.) The only method by which counsel could have examined the officer was, as suggested by the court, to have made him his witness.
3. Inasmuch as the affidavit of Deputy Sheriff Jones was properly received in evidence, the testimony of the witness Bennett, in contradicting the statements therein made, did no more than to create a conflict in the evidence, which it was the duty of the trial court to resolve. The court was not bound by this testimony, no matter how positively sworn to, if it did not credit it. (Daniels v. Granite Bi-Metallic Con. Min. Co., 56 Mont. 284, 184 Pac. 836.) The court had the advantage of observing the demeanor of the witness Bennett on the stand and the manner in which she testified, and may have entirely disbelieved her testimony.
Again, the court had the opportunity of examining the car concerning which the witness testified, and such examination may have entirely refuted her assertions. Plowever this may be, the court resolved the conflicting testimony against relator, and this court cannot disturb- its ruling on the motion, in the event there is substantial evidence in the record to support it.
In considering this question it must be borne in mind that the burden' of establishing a want of probable cause rested upon relator. (Sec. 10606, Bev. Codes 1921.)
An officer may arrest without a warrant and seize contra- band articles whenever a violation of the liquor laws occurs in his presence (sec. 39, Chap. 9, Laws Extra. Session of 1921), and may malee such an arrest and seizure under such circumstances as would have entitled him to the issuance of a warrant of arrest or a search-warrant on proper application (State ex rel. Neville v. Mullen, 63 Mont. 50, 207 Pac. 634; State ex rel. Brown v. District Court, ante, p. 213, 232 Pac. 201).
Analyzing the Jones affidavit: The statement that the officers had gone to Three Forks on advice that a car, without describing it, containing liquor, would appear there after dark would furnish no sufficient ground for the issuance of a search-warrant, nor probable cause for the arrest without a warrant, for the reason that it in nowise connects the relator with such car. (State ex rel. Samlin v. District Court, 59 Mont. 600, 198 Pac. 362.) Likewise proof of the general reputation of relator is insufficient for such purpose. (State ex rel. Stange v. District Court, 71 Mont. 125, 227 Pac. 576.) The statement that at some time prior to October 24, 1924, relator had been caught in the act of possessing and transporting intoxicating liquor refers to a past transaction, indefinite as to time, and forms no basis for either the issuance of a search-warrant or an arrest without a warrant. (State ex rel. Samlin v. District Court, supra; State ex rel. Stange v. District Court, supra; State ex rel. Sadler v. District Court, 70 Mont. 378, 225 Pac. 1000.) Proof that relator had been an almost continuous source of trouble to the sheriff’s office for a year prior to his arrest is too indefinite to render any aid to the officer; it does not even intimate what was the nature of the trouble caused.
Eliminating, therefore, these portions of the evidence, we still have proof that, as the officer approached the car in which relator was sitting, and which he thereupon started in motion, the officer saw, in the back seat of the car, two five-gallon wooden kegs, one ten-gallon wooden keg, and one five-gallon glass container, and “detected the odor of moonshine whisky protruding from the car,” and, “acting in good faith, believing that a crime was being committed in his presence,” made the arrest and seizure. Applying the test laid down by this court in the cases heretofore cited, were those facts and circumstances such as to cause a reasonable man, acting in good faith, to believe that a crime was being committed in his presence? We think they were.
As this court said in the Mullen Case, cited above: “We need not stop to consider whether this evidence would be sufficient to convict the defendant in a criminal action; it is only necessary to determine whether the sheriff had probable cause to believe that the law was being violated. ” . In the case of State v. Nilnch (Wash.), 230 Pac. 129, the supreme court of Washington said: “We think it sufficiently appears from the record that the liquor was in plain view in the appellant’s automobile, and that the offense was committed in the presence of tbe officers, to obviate the necessity for a search-warrant. ”
The writ is denied and the proceeding dismissed.
Mr. Chief Justice Callaway and Associate Justices Holloway and Stark concur.
Mr. Justice Galen, being absent on account of illness, did not hear the argument and takes no part in the foregoing decision.
|
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MR. JUSTICE HOLLOWAT
delivered the opinion of the court.
The defendants appealed from a judgment entered in favor of the plaintiff in an action to recover damages for personal injuries.
The Butte Electric Railway Company maintains a double-track system between the city of Butte and Columbia Gardens, over which it operates street-cars propelled by electricity. The cars from the city to the Gardens use the south track, and the cars returning from the Gardens to the city use the north track. Some distance east of the city limits, the tracks pass under a viaduct, and from that point to the East Butte Hotel, a distance of 250 feet, ascend through a deep cut upon a grade which varies from 3.3 to 8.8 per cent. Opposite the hotel building is a station or stopping place where the cars receive and discharge passengers, and immediately west of this station is a public highway which crosses the street-car tracks from north to south. At this crossing and for 48 feet along the tracks are heavy planks between the tracks, between the rails of each track and for a foot on the outside of the outer rail of each track, the upper surface of the planks being level with the top of each rail. The used portion of the highway crossing is confined to the west 12 feet of the planking, and from the crossing there is an unobstructed view along the tracks in either direction for 3,000 feet or more.
At midnight, October 9, 10, 1923, a street-car operated by defendant Settlemier as motorman left the city of Butte for Columbia Gardens, and when the car passed under the viaduct a signal was given that passengers desired to alight at the East Butte Hotel station. The car then proceeded up the grade at from 8 to 10 miles per hour, and, when it reached the planked crossing, ran over the plaintiff, who was then lying on the track about 6% feet east of the west end of the planking. An investigation disclosed that the front trucks had run over the plaintiff’s left leg and a portion of the thumb and first finger of his left hand, and that his body had been dragged 30 or 35 feet. There was no one but plaintiff in the vicinity of the crossing as the car approached; there were not any street lights near, and the night was cold and very dark. South of the west end of the planking were tumbleweeds from 6 inches to a foot in height, which came down to within 18 inches of the south rail of the south track.
Plaintiff testified that at midnight he left the home of John Baker in East Butte and went directly to the East Butte Hotel station — a distance of two blocks — to board a car for the city; that he crossed to the north side of the tracks and waited for a few minutes, when he saw a car bound for the Gardens approaching from the west; that he concluded to recross the south side of the tracks and ride to the Gardens and back to Butte, rather than wait in the cold for a car going to Butte directly; that in crossing from the north to the south side of the tracks his foot caught in the planking, he fell, struck his head, and was rendered unconscious; that he last saw the approaching car before he fell, when it was ‘1 about 300 yards, maybe more, west of where I was,” and ”1 next saw the car just a few feet from me. At that time I was lying on the track. I started to get up, and the ear was just a couple of feet from me, and I stared right at the head light, but before I could get up at all, I just started up on my hand, the ear struck me, knocked me down and ran over me, and I went unconscious then.”
Several persons, passengers upon the car, testified that immediately after the accident the motorman said that he did not see the plaintiff before the car ran over him. They testified also, that when the car stopped it was east of the east end of the planking.
Plaintiff introduced evidence as to his age, life expectancy, physical condition and earning capacity at the time he was injured, and anticipated the defense by evidence to the effect that he was not intoxicated. Photographs of the crossing, the hotel building and the surroundings generally were admitted in evidence.
Defendant Settlemier testified that the car was equipped with a headlight which illuminated the track for 200 feet immediately in front of the car; that by the application of the emergency brake the car, traveling from 8 to 10 miles per hour up the grade in question, could be stopped within 25 or 30 feet, and not within less than 20 feet; that as he approached the planked crossing he “just caught a flash of a dark object” 7 or 8 feet ahead of the car but “couldn’t tell what it was”; that he applied the emergency brake and brought the car to a stop with a sudden jar; that at the time he first saw the object the front end of the car was not more than 2 feet from the west end of the planking; that he could see the tumbleweeds from the viaduct and saw them much more distinctly when he was only 50 feet from them.
D. A. Porter testified that, at the time he served the summons in this ease, Settlemier said: “I didn’t know I had run over anything until I felt him under the car.”
¥e purposely omit any reference to the testimony introduced by the defendants, except such portions of Settlemier’s testimony as may tend to aid the plaintiff’s case.
At the opening of the trial, counsel for plaintiff disclaimed any purpose to rely upon the doctrine of the last clear chance, and the court narrowed the issues by an instruction “that the only charge of negligence left for the consideration of the jury is the charge that the defendant Russell Settlemier failed to keep a proper lookout as hereinafter defined.”
We eliminate from consideration the question of contributory negligence, including the question of plaintiff’s intoxication, and for the purposes of this appeal view the evidence in the light most favorable to the plaintiff, assuming that the jury drew from the motorman’s testimony every legitimate inference which tends to support the verdict and judgment.
No one of the other witnesses who testified for the plaintiff, assumed to know anything of what occurred outside the car before the injury was inflicted. The testimony of those witnesses is material only so far as it tends to establish the theory advanced by plaintiff: that the motorman did not see him before the car ran over him, and for the purposes of this appeal we assume that it is a proved fact that the motorman did not see the plaintiff at all before the injury was inflicted. From this point forward the case must stand or fall by the testimony given by the plaintiff himself. And again for the purposes of this appeal we assume that his story is true.
The case is not one wherein the maxim res ipsa loquitur can be invoked. The fact that plaintiff was injured by a car owned by the railway company and operated by its employee does not raise any presumption of negligence on the part of either defendant (Reino v. Mineral Land Dev. Co., 38 Mont. 291, 99 Pac. 853; Knuckey v. Butte Electric Ry. Co., 41 Mont. 314, 109 Pac. 979); on the contrary, the presumption is that the motorman discharged his duty. (Looney v. Metropolitan Ry. Co., 200 U. S. 480, 50 L. Ed. 564, 26 Sup. Ct. Rep. 303 [see, also, Rose’s U. S. Notes].)
There is not any direct evidence that the motorman did not keep a constant and vigilant lookout from the time the car passed the viaduct until it reached the crossing, but counsel for plaintiff contend that, from the fact that plaintiff’s position was not discovered before the injury was inflicted, the jury might infer that he was negligent. If this be conceded, liability would not follow as a necessary or even a permissible consequence. It is elementary that to justify a recovery plaintiff must show that defendants were negligent as charged, and that such negligence was the proximate cause of his injury. Each of these elements is indispensable, and the law imposes upon the plaintiff the burden of proving both of them. The trial court so instructed the jury, and the authorities are all to that effect. (Monson v. La France Copper Co., 39 Mont. 50, 133 Am. St. Rep. 549, 101 Pac. 243; Allen v. Bear Creek Coal Co., 43 Mont. 269, 115 Pac. 673; Ellinghouse v. Ajax Livestock Co., 51 Mont. 275, L. R. A. 1916D, 836, 152 Pac. 481; Barry v. Badger, 54 Mont. 224, 169 Pac. 34; Glover v. Chicago etc. Ry. Co., 54 Mont. 446, 171 Pac. 278; Stones v. Chicago etc. Ry. Co., 59 Mont. 342, 197 Pac. 252.) In a case of this character the question always is: Was the negligence causa sine qua non, a cause which, if it had not existed, the injury would not have occurred? Defendants may be held liable only if to their lapse of duty the injury to plaintiff is attributable directly as any given effect is to be assigned to its efficient cause. (Kern v. Payne, 65 Mont. 325, 211 Pac. 767; Hayes v. Michigan Central R. Co., 111 U. S. 228, 28 L. Ed. 410, 4 Sup. Ct. 369 [see, also, Rose’s U. S. Notes].)
To sustain a recovery the evidence relied upon, whether direct or indirect, must be substantial — more than a mere scintilla. (Escallier v. Great Northern Ry. Co., 46 Mont. 238, Ann. Cas. 1914B, 468, 127 Pac. 458; McIntyre v. Northern Pac. Ry. Co., 58 Mont. 256, 191 Pac. 1065.) A verdict cannot rest upon conjecture, however shrewd, nor upon suspicion, however well grounded. (Olsen v. Montana Ore Pur. Co., 35 Mont. 400, 89 Pac. 731; Gleason v. Missouri River Power Co., 46 Mont. 395, 128 Pac. 586.)
In order to sustain the burden imposed upon him, it ivas in- cumbent upon the plaintiff to establish by a preponderance of the evidence that, by the exercise of ordinary care in keeping a lookout, the motorman could have discovered him lying on the track in time to stop the car and avoid the injury. If plaintiff were not on the track or in a place of danger until the car was so near the crossing that it could not be stopped before it ran over him, then the failure of the motorman to keep a lookout could not have been the proximate cause of the injury, and in order to show that the motorman’s negligence was the proximate cause, the plaintiff had to discharge the burden of proving that he was in a position of danger where he could be seen from the approaching car and that he occupied that position for a sufficient period of time before the car reached him, to permit the car to be stopped and the injury averted after the motorman could have discovered his position of peril by the exercise of reasonable care. This burden the plaintiff did not discharge.
It does not appear at what point upon the crossing plaintiff caught his foot, whether between the two tracks or at the south rail of the south track. If he caught his foot between the south rail of the south track and the plank south of it, the probabilities are that his body lay beyond the danger zone. We suggest this merely to emphasize the fact that the record is silent as to where the plaintiff lay during the interval of unconsciousness. From the fact that only his left leg and left hand were injured, the fair inference would be that only those members of his body were upon the rail or in place of danger at the time the car reached him, but for what period of time they had been in that position, no one knows. Plaintiff testified that when he last saw the car before he fell, it was 300 yards or more from him and that when he next saw it, it was only 6 or '8 feet from him and at that time he was lying on the track. He does not tell where he was lying when he first regained consciousness or how much time elapsed before he saw the car. In other words, there is not even a scintilla of evidence that he was on the track, or in a place of danger, or in view of the approaching car, until the car was within 6 or 8 feet of him — too late to avoid the injury. In this condition of the record, counsel for plaintiff say: “Plaintiff must have been lying on the crossing at least from the time the car left the bottom of the grade. 200 feet or more away.” But this is mere speculation without any evidence to justify it, and counsel are driven to the necessity of urging, in effect, that from the fact that plaintiff was upon the track when the car approached to within 6 or 8 feet of him, the jury might infer that he was in the same position for a period of time sufficient to enable the motorman to stop the car and avoid the injury after his position could have been discovered by the exercise of ordinary care, and from that inference the jnry might infer that the motorman was negligent in failing to keep a proper - lookout, otherwise he would have discovered the plaintiff’s perilous position in ample time.
Negligence may be established by indirect evidence, but indirect evidence consists only of inferences and presumptions (see. 10600, Rev. Codes), and one inference cannot be drawn from another inference nor from a presumption (Kern v. Payne, above; United States v. Ross, 92 U. S. 281, 23 L. Ed. 707 [see, also, Rose’s U. S. Notes]); neither can a presumption rest upon an inference (Osborne v. Supreme Lodge, 69 Mont. 361, 222 Pac. 456). -Section 10601, Revised Codes, declares: “An inference is a deduction which the reason of the jury makes from the facts proved.”
In Cosgrove v. Pitman, 103 Cal. 268, 37 Pac. 232, the court said: “Unless facts are shown from which negligence may be reasonably inferred, a jury should never be permitted to infer, arbitrarily and without evidence, that there was negligence. When a fact is established, some other fact may be justly inferred therefrom, but when the plaintiff, instead of presenting a fact or facts from which the negligence of the defendant may be reasonably inferred, gives to the jury only a presumption drawn from other facts, the jury are not to be allowed to infer negligence from such presumption. An inference cannot be drawn from a presumption, but must be founded upon some fact legally established.”
While actionable negligence may be proved by indirect evi dence, the rule is settled in this jurisdiction that the circumstances must not only tend to prove the efficient proximate cause relied upon, but must tend equally to exclude any other. (Winnicott v. Orman, 39 Mont. 339, 102 Pac. 570; Andree v. Anaconda Copper Min. Co., 47 Mont. 554, 133 Pac. 1090; Wallace v. Chicago etc. Ry. Co., 48 Mont. 427, 138 Pac. 499.) In other words, if the evidence furnishes the basis for two equally permissible conclusions, one of which speaks negligence on the part of the defendant, while the other points to a different efficient proximate cause, the case must fail for want of sufficient evidence. (Shaw v. New Year Gold Mines Co., 31 Mont. 138, 77 Pac. 515; De Sandro v. Missoula L. & W. Co., 48 Mont. 226, 136 Pac. 711; Fusselman v. Yellowstone Valley L. & I. Co., 53 Mont. 254, Ann. Cas. 1918B, 420, 163 Pac. 473,; Scheytt v. Gallatin Valley Milling Co., 54 Mont. 565, 172 Pac. 321.)
Counsel for defendants invoke this last rule and suggest that plaintiff must have fallen among or east of the tumbleweeds, where his position was concealed from view from the approaching car; that, being aroused from his stupor by the noise of the car, he undertook to arise, and in his efforts his body came into view for the first time, and his left leg and left hand were extended over the rail; hence the injury. We need not stop to determine whether the evidence tends to support this theory, or whether it is equally as reasonable as the one advanced by plaintiff’s counsel. It is sufficient to say that the plaintiff’s case is wanting in one essential element: Evidence from which the jury could conclude that the motorman’s failure to keep a proper lookout was the proximate cause of the injury.
Since this cause must be remanded for a new trial, attention is directed to instructions 5, 15, 19 and 20 given by the court. Instruction 5 ignores the fact that evidence with respect to a material issue may be in equipoise, and leaves the jury to guess for itself what it should do under such circumstances. Instruction 15 informed the jury “that plaintiff had an equal right with the street-car company to use the crossing.” He had the equal right to use the crossing for any proper purpose and in a proper manner, but not for the unqualified right which the instruction mentions. Instruction 19 ignores altogether the defense of contributory negligence relied upon by the defendants, and instruction 20 is so confusing in its terms that it could not enlighten the jury.
The judgment is reversed and the cause is remanded for a new trial.
Reversed and remanded.
Mr. Chief Justice Callaway, Associate Justices Stark and Matthews and Honorable C. W. Pomeroy, District Judge, sitting in place of Mr. Justice Galen, absent on account of illness, concur.
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] |
HONORABLE' JOSEPH R. JACKSON, District Judge,
sitting in place of MR. JUSTICE RANKIN, disqualified, delivered the opinion of the court.
Defendant, convicted of murder in the first degree and sentenced to hang, appeals from the judgment.
On the night of June 26, 1923, Albert S. Johnson,.a storekeeper at Renova, was shot through the throat by someone outside the house; the bullet having gone through the edge of a screen door and also through a closed wooden door before it found its victim. Shortly afterwards Johnson died in a Butte hospital from the effect of the wound.
At the trial it developed that there had been no eyewitnesses to the tragedy. After he had been shot, Johnson walked from his store where he lived to a neighbor’s house, gurgling and speechless, and by signs indicated his appeal for help.. He returned to the store, and lying on the bed, by nods made clear he wanted a doctor; that he did not see his assailant; and that he had been told to throw up his hands.
A dying, declaration was made by the wounded man at the Murray Hospital in Butte, reading as follows:
“Q. Do you know who shot you? A. No.
“Q. Did you see them? A. Yes.
“Q. You saw one man? A. Yes.
“Q. You did not know him? A. No.
“Q. Were they trying to hold you up? A. Yes.
“Q. You were just bolting or unbolting the door? A. Yes.
“Q. You heard a noise outside and went to investigate? A. Yes.
“Q. Could you identify the man you did see if he was brought here A. No.”
Sheriff Mount joy, of Jefferson county, arrived at the Johnson place shortly after the wounded man had been removed for hospital treatment. Some automobile tracks were discerned in the road about 400 yards east of the Johnson store. In the mud these tracks were traced westward to the Yellowstone trail, and, after having notified the sheriff’s office at Butte, and giving a description of the tires, the sheriff and his party early on the morning of June 27 traced the tracks to Butte. In that city, at the foot of a street on the east side, and near an old smelter, the car was found abandoned. After having examined the contents, the sheriff’s party went to 510 East Park Street, Butte, and arrested one Arthur Hughes and placed him in the Silver Bow county jail. Hughes was questioned as to his whereabouts the preceding night and as to the defendant. He stated that he had been home all night; that he did not know Walsh, and had not seen him for about three weeks. Then, after a long-distance telephone call, Sheriff Mount] oy left for Jefferson Island, Montana, which is about two and a half miles southwest of Cardwell. There he found armed men searching the country. A Buiek car containing, among other things, a 30-30 Marlin rifle, the barrel of which showed it had been recently fired, was discovered in the brush, and some distance away defendant was captured, after he had been seen to crawl from the bottom of a gully and hide himself in the brush. When arrested he declared his name was Mason but admitted he knew Boy Walsh of Butte. On the road going from Jefferson Island to Whitehall the defendant several times denied his identity, but, after having arrived at the latter place, he was recognized by someone in the crowd that had congregated there and admitted that he was Boy Walsh. Defendant related at different times conflicting stories as to his actions, but all of them denying he had been near Benova. He was advised by the county attorney that he was under no threats or promises, and that anything he wrould say would probably be used against him. The following wi'itten statement, signed by the defendant after he had read it over and ordered several changes made in it, was received over objection: “I am making this statement for the reason that you have told me of Hughes’ statement, and since you seem to know most of the facts and will find out the rest of them anyway. Since you know about our camp on Cedar Hill, I will tell you the rest. We got to Butte at about 3 o’clock that morning from Baee Track; had breakfast at Hughes.’ We talked to Mrs. Hughes, and she told young Hughes that they were after him for the theft of the Cadillac car and she wanted him to stay. He said.there was no time for bim to be stopping if they rrere after him. We had breakfast, and left there about a quarter to 4. We got to Cedar Hill about 5 or 6 o’clock in the morning and camped there. We left there after dark, probably 8:30, for Benova. It was our intention to hold up Johnson personally for the money he keeps there. It was my intention to go to Seattle. Hughes did not want to leave for fear they would catch him at some city like Missoula on the way. He wanted to kill a week or two up the Madison until the pursuit died down for the Cadillac, so we decided to hold up Johnson for provisions and money to keep up until we could leave for Seattle. We had no definite plans, but planned to hang around the store until Johnson was alone and then stick him up. Hughes suggested that we lie in a ditch on the other side of the boxcar. I stated, ‘No, there is no use lying in the ditch; if we have got to do it, let’s do it and have it over with.’ I didn’t want to hurt Johnson, but supposed we would have to tie Mm. That was our intention. Hughes said that he would hold Johnson up with the six-shooter or 32 that he had. I would walk in after him and tie Johnson up. We would then take what provisions we needed and some money, and then hit for the Madison. The reason for having Hughes hold him up was that he would recognize me better than Hughes on account of my size. We were both to wear masks. Hughes was to walk in, hold Johnson up, make him turn around so that he could not see me when I came in, and we were to tie him up. When we left Cedar Hill Hughes went ahead, backed in on the spur near the loading platform not far from the bridge at Renova, and waited for me. I drove my car after Mm, but instead of turning in to go into the store at Renova I continued down along the lane leading straight to the main track. This was perhaps a quarter after 9 in the evening. Hughes came to my car after me. We left my car there, and went over along the spur to where the Cadillac was. Hughes said he had been waiting for quite a while, and wanted to know what was wrong. I told him there was nothing the matter. I had been trying to fix the flashlight, but the bulb was broken so that we couldn’t use it. I said, ‘Oh, well, Johnson might have some flash-lights in there.’ We were in the Cadillac car for maybe half an hour. The ear was parked some distance from the main road, maybe sixty feet. We masked up with parts of an old white shirt of Hughes in the Cadillac. We then went out in front of the store, and we went around between tbe store and tbe track on tbe west side of tbe store. We got to the walk that runs out from the store to the track. There was a man there talking to Johnson. I didn’t know him. Johnson was sitting on the counter talking to him until he left. Then we saw the other fellow leave, and Johnson got off the counter, took the money out of the cash register, and counted it. We couldn’t see him after that. He evidently went into the back room. We both' sat down in the brush then for a while, perhaps three minutes. Then we got up, went over alongside the store on the track side, and climbed over the board gate. Hughes stayed by the door that opens on the wrnlk to the track. I went around to the other side of the store. Hughes was supposed to watch, one side while I watched the other so that one of us would get Johnson whichever way he went. ' When I got there, and when I got around to the other side, Johnson was trying the middle door on that side, the one forward of his bedroom door. I heard him rattle the door-knob. I ducked back and made a little noise. When I got to the bedroom door Johnson was in the bedroom. When I got up past the 'bedroom door I ran into a box by the fence. The fence is about eight feet from the store, the box was against the fence, and had some tin strips on it. The box was at my left■ and the vines next to Johnson’s bedroom door were at my right. I was trying to go between the vines and the box. I hit the box with the gun and with my leg. Johnson opened the door and looked out. I crouched down by the vines with the gun in my right hand, started to beat it, and the gun caught in something and went off. It probably caught in the vines or in the strings. After the gun went off I went over the fence and ran to the spur-track and back along the spur-track to the Buick. It may have been five minutes between the firing of the shot and the time I started the Buick car. When the gun went off there was a light in Johnson’s bedroom. When I got back to the Buick I saw the tail light of an automobile going west along the main road to Whitehall. I know that it wasn’t the Cadillac, because I had disconnected the tail light. I started the Buick, went up the lane to the main i*oad, and around the main road, past the store, across the bridge, and up the hill on Parrott Bench. As I went past the store I noticed the lights still on in Johnson’s room. There was also a light in the house across the road. No promise has been made to me. I have made this statement not because of any promises that were made to me, and I am telling these things because I know that you would find them out anyway, having learned about our camps and having got information from Hughes. I have not been threatened, and am not making this statement or any part of it under threats or promises, but make them of my own free will and because I think it will all be found out anyway. I did not know that Johnson had been hurt when I left. 1 know this statement may he used against me.
“Roy W. Walsh.”
“Subscribed and sworn to before me this 30th day of June, 1913.
“Howard A. Johnson,
“Notary Public for the State of Montana, Residing at Boulder, Mont.
“My commission expires June 21, 1926.”
Many photographs were introduced showing the premises at different angles and likewise the bidlet hole in the doors. On the wall of the house on the side which contained the doors through which the shot was fired was the growth of hop vines, and the box spoken of in defendant’s written statement was a short distance away from the wall, and almost opposite the door.
While incarcerated in the county jail at Boulder, the defendant tore up the plumbing in the jail, broke off a piece of pipe, ripped some scrap iron from one of the bunks, and broke the chain that supported the bunk. The piece of pipe was found on defendant when he: was searched in the Silver Bow county jail, where he was kept as a matter of accommodation to Sheriff Mount]oy. It was hidden in the leg of defendant’s overalls and fastened by a piece of string.
Defendant assumed the stand on his own behalf. During the course of his examination he said that he had told the sheriff that he had been up the Madison country and that he had made a confession to Mr. Johnson, the county attorney, but also declared that some of the things contained in the confession he did not state. He said he could not state whether he was present at the Johnson store at the time Mr. Johnson was shot; that he and Hughes had intended to hold up Johnson, but that he decided he would not take part in the crime, but that he walked along the east side of the building and peered through the window, with a gun in his hand; that Johnson came to the door, and the defendant became panic stricken, and in endeavoring to get away he climbed over the fence and went back to his car; that he heard the report of no gun; and that, if the gun had been discharged, he would have known it. He stated the reason that he hid his Buick car and also himself was because he thought the car might have been stolen. He admits that some of the interlineations on his confession were made at his suggestion, but denies that he was familiar with all of the things mentioned in the confession.
Much evidence was received by both sides with respect to the effect of a soft-nosed metal patch 30-30 bullet penetrating the screen door and the wooden door as to whether or not the metal jacket would leave the lead projectile.
There are several assignments of error, upon none of which may be predicated prejudicial error. The court refused to exclude from the courtroom during the trial the state’s witnesses Mountjoy and Knight. Section 10660, Bevised Codes of 1921, provides: “If either party requires it, the judge may exclude from the court room any witness of the adverse party, not at the time under errnnination, so that he may not hear the testimony of other witnesses.” This provision is addressed to the sound legal discretion of the trial court, and, where no prejudice is shown, the action will not be disturbed. The rule is well stated in 16 C. J. 841, 842: “It is within the discretion of the court whether or not it will exclude witnesses from the courtroom during the trial. In accordance with the above rule the question what witnesses may be exempted from the operation of the rule when invoked, rests in the discretion of the court. * * * Persons whom the court usually exempts from the operation of the rule are attorneys of the court; court officers who happen to be witnesses, and whose attendance in the courtroom is necessary; a detective or officer assisting in preparing the case for prosecution.” Undoubtedly the witnesses Mountjoy and Knight, being members of the sheriff’s office, were properly exempted from the rule, but in any event it was all within the discretion of the trial court.
Another assignment of error is with respect to the testimony concerning the piece of pipe which had been taken from the person of the defendant. In connection with the evidence concerning the defendant’s attempts to break jail it was clearly admissible.
Another assignment of error relates to the testimony of Sheriff Mountjoy and the witness Knight on the all-embracing ground that the testimony is based on hearsay evidence and conjectures derived from statements they heard. The assignment is utterly without merit, and will receive no consideration by this court.
The only specification of error which seems to have serious reliance placed upon it by the defendant, and the only one in support of which any authority is,cited, relates to the admission of the confession made by Roy Walsh in the presence of the sheriff, his deputy, and the county attorney, in which the accused admitted the commission of the crime with which he is charged. It was a written statement taken down by the county attorney, afterwards written out by him, signed by Walsh, and sworn to before the county attorney. Much cross-examination was had during the trial as to whether any inducements were held out or threats made to the defendant or as to the voluntary character of the declarations contained in the confession.
The subject of confession has been repeatedly passed on by this court, and the rules governing their admissibility have been clearly stated in State v. Berberick, 38 Mont. 423, 16 Ann. Cas. 1077, 100 Pac. 209, State v. Guie, 56 Mont. 485, 186 Pac. 329, and State v. Stevens, 60 Mont. 390, 199 Pac. 256. In the latter case the court defines a confession as follows: “A ‘confession’ is an acknowledgment in express terms, by a party in a criminal case, of his guilt of the cxfime charged.”
In State v. Berberick, supra, this court held: “The question of the admissibility of a confession alleged to have been made by defendant while in custody is one to be determined by the court after -hearing evidence, in the presence of the jury, relative to the circumstances under -which it was made, and its finding thereon will not be distorted on appeal, unless clearly against the weight of the evidence.” In the same case the court held that, where a confession was taken down in writiixg but not in the exact wox-ds of the defendant, he, by sigxxing it and adopting the language employed, made it his own. The cases cited in appellant’s brief are without merit on this point, and will be passed without comment.
The specification of error relating to the introduction and identification of photographs is worthless, for the reason that it is cleaxiy and indisputably showxx that the px-emises were in the same condition at the time of the tragedy as when the photographs wex-e taken, a few days later.
It is urged that the testimony regarding the conduct of the prisoner while in jail is ex*ror. The evidence was clearly admissible as tending to show consciousness of guilt. (16 C. J. 554; 2 Wharton on Criminal Evidence, 10th ed., p. 497.) IIow ever, there is no question in the minds of this court but that, aside from the confession of the defendant, there was sufficient evidence in this case to warrant its submission to a jury and to justify its verdict. Here is the evidence, excluding the coxxfession: Johnson was killed by a soft-nosed bullet fired from a high-powered rifle. A 30-30 Marlin rifle, recently fired, loaded with soft-nosed bullets, is found in a Buick automobile hidden in the brush, which automobile the defendant admits he had been driving, and says, “It was supposed to be a stolen car.” The accused is captured about a mile from the ear, hiding in the brush, on the morning following the shooting. On being arrested he states that his name is Mason, but later admits it is Walsh. He tells a false story as to his whereabouts at the time of the shooting, and he attempts to break jail; later admits owning a rifle; on the witness-stand admits he was at Johnson’s store the night of the homicide, and testifies that he was there with the intention of holding Johnson up, and that he had a gun. This we feel would amply justify the submission of the case to the jury.
Rehearing denied January 8, 1925.
The trial court was under no duty to appoint a person to demonstrate the results obtained from shooting soft-nosed bullets. It was entirely within the discretion of the court, and its ruling will not be disturbed. The vagaries of missiles from firearms, after having struck or penetrated objects, are of such a generally .known character that it is next to an impossibility to determine what will happen to the projectile after it has left the muzzle of the firearm.
The judgment is accordingly affirmed.
Affirmed.
Mr. Chief Justice Callaway, Associate Justices Holloway and Stark, and Honorable Frank P. Leeper, District Judge, sitting in place of Mr. Justice Galen, absent on account of illness, concur.
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41
] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
In 1906 the Teton Co-operative Reservoir Company, a corporation, was organized -under the laws of this state, and ever since has maintained its corporate existence. Its capital is represented by 1,000' shares of stock, and under its by-laws the owners of a share of this stock is entitled “to the use during the irrigating season of each year, of a one-thousandth part of the waters, water rights and irrigating facilities and systems of this company, including the right to lease, pledge, sell and dispose of such use.” The company constructed a reservoir in which it impounds a large quantity of water from the Teton River, and installed a distributing system through which the waters are conveyed to the individual users. In 1920 the Bynum Irrigation District was organized for the purpose of irrigating approximately 25,000 acres of land in Teton county, and the individual defendants herein constitute the board of commissioners of the district. Through negotiations the district acquired an option to purchase 800 shares of the capital stock of the reservoir company or, as an alternative, the right to purchase from the stockholders owning 800 shares their respective rights to the use of the waters. Thereupon W. A. Thaanum, an owner of land included in the district, instituted this suit to obtain an injunction restraining the district and its board of commissioners from expending any money belonging to the district for the option or for the property sought to be acquired. To the complaint, which sets forth fully the history of the transaction, a general, demurrer was interposed, which was sustained by the district court, and the plaintiff, declining to plead further, suffered a judgment of dismissal to be rendered and entered against him and appealed.
Section 7174, Revised Codes of 1921, as amended by Chapter 157, Laws of 1923, defines the powers of the board of commissioners of an irrigation district, and subdivision 3 of that section reads as follows:
“The board shall have power and authority to appropriate water in the name of the district, to acquire by purchase, lease, or contract, water and water rights; additional waters and supplies of water, canals, reservoirs, dams and other works already constructed, or in the course of construction, with the privilege, if desired, to contract with the owner, or owners of such canals, reservoirs, dams and other works so purchased and in the course of construction, for the completion thereof and shall also have power and authority to acquire by purchase, lease, contract, condemnation, or other legal means, lands (and rights in lands) for rights of way, for reservoirs, for the storage of needful waters, and for dam sites, and necessary appurtenances, and such other lands and property as may be necessary for the construction, use, maintenance, repair, improvement, enlargement and operation of any district system of irrigation works. ’ ’
It is conceded by appellant that, if the legislature had authority to confer such broad powers upon an irrigation district, there is not any merit in this appeal, But it is contended that the statute quoted conflicts with, or is limited in its operation by, the provisions of section 1, Article XIII, of our state Constitution, and in either event the defendants may not lawfully acquire the particular property in question. That section of the Constitution reads as follows: “Neither the state, nor any county, city, town, municipality, nor other subdivision of the state shall ever give or loan its credit in aid of, or make any donation or grant, by subsidy or otherwise, to any individual, association or corporation, or become a.subscriber to, or a shareholder in, any company or corporation, or a joint owner with any person, company or corporation, except as to such ownership as may accrue to the state by operation or provision of law.”
It must be conceded that, if the first alternative option be accepted, the irrigation district will become a shareholder in a corporation, if the second alternative be chosen, it will, in a sense at least, become a joint owner with the holders of the remaining 200 shares of stock in the reservoir company, so that the question arises at once: Is an irrigation district, organized under the laws of this state, included within the meaning of the terms employed in section 1 above?
Such a district is not the state; neither is it a county, city or town. It is not a municipality, for the term “municipality” refers to a municipal corporation (Black’s Law Dictionary) and in this state only incorporated cities and towns are municipal corporations (Hersey v. Neilson, 47 Mont. 132, Ann. Cas. 1914C, 963, 131 Pac. 30). It remains to be determined whether an irrigation district is comprehended by the term “other subdivision of the state.”
A word or phrase may have different meanings as it is employed in different connections (Barnes v. Montana Lumber & Hardware Co., 67 Mont. 481, 216 Pac. 335), and the particular meaning to be attached to it in a given statute or constitutional provision is to be measured and controlled by the connection in which it is employed, the evident purpose of the Act, and the subject to which it relates. (Northern Pac. Ry. Co. v. Sanders County, 66 Mont. 608, 214 Pac. 596.)
The word “subdivision,” when standing alone, has a very broad signification, and the expression ‘‘a subdivision of the state” might well be said to refer to any portion of the state less than the whole; but the question before us is not what the word “subdivision” means generally, but what it means as used in section 1, Article XIII, of our Constitution. In other words, although an irrigation district is a subdivision of the state in the sense that it comprises some portion of the territory of the state, and is a subdivision of the state within the meaning of that term as used in section 4893, Revised Codes (Crow Creek Irr. Dist. v. Crittenden, 71 Mont. 66, 227 Pac. 63), the immediate question before us is whether it is comprehended within the expression “other subdivision of the state” as. that expression is employed in section 1, Article XIII, above, and s>" thorized to become a stockholder in a private corporation for the purpose of procuring ah only available water supply, or expressly prohibited from doing so, and the answer to the inquiry is to be found by ascertaining the meaning of the expression “other subdivision of the State.”
Constitutional provisions are subject to the same rules of interpretation and construction as are statutes (Martien v. Porter, 68 Mont. 450, 219 Pac. 817), and it is a recognized canon of statutory construction that, where general words follow particular and specific words, the former are limited in meaning to things of the same kind as those particularly enumerated. This is known as the ejusdem generis rule, a rule which has been recognized and applied by this court in numerous cases, among them: Helena Light & Ry. Co. v. City of Helena, 47 Mont. 18, 130 Pac. 446; Page v. New York Realty Co., 59 Mont. 305, 196 Pac. 871.
In 36 Cyc. 1119, it is said: “By the rule of construction known as ‘ejusdem generis,’ where general words follow the enumeration of particular classes of persons or things, the general words will be construed as applicable only to persons or things of the same general nature, or class as those enumerated. The particular words are presumed to describe certain species and the general words to be used for the purpose of including other species of the same genus. The rule is based on the obvious reason that, if the Legislature had intended the general words to be used in their unrestricted sense, they would have made no mention of the particular classes. The words ‘other’ or ‘any other’ following an enumeration of particular classes are therefore to be read as ‘other such like,’ and to include only others of like kind or character. ’ ’
In 12 Corpus Juris, 707, it is said: “The doctrine of ejusdem generis, by which general words in a statute following particular words are presumed to relate only to things of the same kind or class as the particular words, is applicable to the construction of constitutional provisions.”
There is not anything in the language of section 1, Article XIII, above, to remove it from the operation of this general rule, and, measured by that rule, the phrase “other subdivision of the state,” means other subdivision of the state of the same general character as a county, city, town or municipality, and excludes an irrigation district which is lacking in practically every essential element which gives character to any of the enumerated public corporations.
We might rest our conclusions solely upon this construction of the language of section 1, Article XIII, but our position is fortified when the history surrounding that constitutional limitation is considered. A like provision is found in the Constitution of nearly every state in the Union, and the reason for its presence is not difficult to discover. It represents the reaction of public opinion to the orgies of extravagant dissipation of public funds by counties, townships, cities and towns in aid of the construction of railways, canals and other like undertakings during the half century preceding 1880, and it was designed primarily to prevent the use of public funds raised by general taxation in aid of enterprises apparently de voted to quasi-public purposes, but actually engaged in private business. Although an irrigation district is authorized to levy taxes upon the lands included in the district for the purpose of raising funds to discharge any indebtedness incurred in purchasing or constructing an irrigation system and in maintaining such system, the taxes so imposed are in the nature of special assessments, as distinguished from general taxes (In re Valley Center Drain. Dist., 64 Mont. 545, 211 Pac. 218), and, by the expenditure of money under the authority of section 7174 as amended, the district obtains an equivalent in the value of the property purchased.
Because the state, a county, city, town or municipality has, and an irrigation district has not, the authority to impose general taxes, the reason for the restriction upon the first class of public corporations fails, when considered with reference to an irrigation district, and leads to the conclusion that an irrigation district was not in the contemplation of the framers of onr Constitution in drafting section 1, Article XIII, above, or in the contemplation of the people in adopting it.
It follows that section 7174 as amended does not impinge upon the provision of section 1, Article XIII, nor does the Act of which it is a part contravene the provisions of section 11, Article XII, of the Constitution. (Billings Sugar Co. v. Fish, 40 Mont. 256, 135 Am. St. Rep. 642, 26 L. R. A. (n. s.) 973, 106 Pac. 565.)
The judgment is affirmed.
Affirmed.
Mr. Chief Justice Callaway and Associate Justices Stark and Matthews concur.
Mr. Justice Galen, being absent on account of illness, tabes no part in the foregoing decision.
|
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Per Curiam.
Appellant’s motion for an injunction pending appeal herein is hereby granted, and an injunction ordered issued upon the filing and approval of a good and sufficient undertaking' in the sum of $5,000, conditioned according to law, said undertaking to be approved by the clerk of this court.
(Upon motion of respondents, injunction granted above was dissolved on January 23, 1905.)
|
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] |
MR. COMMISSIONER ODAYBERG
prepared the opinion for the court.
Five separate appeals are presented for review by the record herein, viz.: (1) By plaintiffs from an order granting a new trial in part to defendants David L. S. Barker, John C. E. Barker and J. T. Armington; (2) by plaintiffs from a judgment rendered in favor of Timothy E. Collins and Davina A. Collins, and representatives of the estate of E. J. Barker, deceased; ('3 ) by plaintiffs from an order overruling their motion for a new trial against Timothy E. Collins and Davina A. Collins, and the estate of E. J. Barker, deceased; (4) by defendants David D. S. Barker, John C. E. Barker and J. T. Armington from a judgment entered against them; (5) by these same defendants from an order overruling in part their motion for a new trial. By stipulation contained in the record, but one transcript is. presented for all these appeals. They were argued together, and will be considered and decided together.
The action was brought by T. C. Power & Bro., Frank Coombs, Annie S. Turner, Charles Duer, Kyle Price, E. M. Edwards, J. J. O’Marr, the estate of J. T. Bell, deceased, A. E. Thomas, W. D. Graves, D. G. Auchey and J. E. Kanouse, as stockholders in the Montana Gold, Silver, Platinum & Tellurium Mining Company, in their own behalf and in behalf of all other stockholders of said company who might come in and join in the prosecution of the suit, as plaintiffs, against David D. S. Barker, John C. E. Barker, J. T. Armington, Timothy E. Collins, Davina A. Collins, David D. S. Barker as administrator of the estate of E. J. Barker, deceased, Marcella O’Leary as special administratrix of the estate of E. • J. Barker, deceased, W. E. O’Leary as guardian ad litem of Edmund J. Barker, minor son and heir of E. J. Barker, deceased, and the Montana Gold, Silver, Platinum & Tellurium Mining’ Company, as defendants.
The objects of the suit are to have a certain redemption made by the directors of the Montana Gold, Silver, Platinum & Tellurium Mining Company from an execution sale of the property of said company declared to have been made in favor of the company and its stockholders, to have the individual defendants who obtained the sheriff’s deed to the property declared trustees of said property, to obtain an accounting by such defendants of the proceeds of said property while in their possession, to quiet title to the property, and for general relief.
Briefly stated, the complaint, in so far as its allegations are important on this hearing, is as follows: It alleges the corporate existence of defendant company, and that plaintiffs are stockholders therein; that defendants David L. S. Barker, John C. E. Barker, J. T. Armington and Timothy E. Collins were and are directors of defendant company, and stockholders therein; that defendants John 0. E. Barker and J. T. Armington are the president and secretary, respectively, of said mining company; that E. J. Barker, deceased, was at the time of his death a stockholder and acting director. It alleges the appointment and qualification of David L. S. Barker as administrator of the estate of E. J. Barker, deceased, of Marcella O’Leary as special administratrix of the estate of E. J. Barker, and of W. E. O’Leary as guardian ad litem of Edwin J. Barker, minor son and heir of E. J. Barker, deceased; that on the 3d day of February, 1898, one John E. Eitzsimmons recovered a judgment against the defendant mining company for the sum of $2,577.94, and $19.50 costs, upon which execution was duly issued, under which a sheriff’s sale was had on the 3d day of March, 1898, of all property of the company (which is then specifically described) to William Silverman and Laura Coombs for tbe sum of $2,900; that on tbe 2d day of March, 1899, defendants John C. E. Barker, Edwin J. Barker, David L. S. Barker, J. T. Armington and Timothy E. Collins, acting through and in the name of his wife, Davina A. Collins, redeemed said property for the sum of $6,145.90, which included the purchase price on the sheriff’s sale, with interest and costs, and also two other prior judgments, and the sum of $13 taxes; that redemption was made by the parties as owners and holders of a judgment in favor of John 0. E. Barker against the defendant mining company for the sum of $3,184.70; that on the 12th day of June, 1899, the sheriff executed a deed for said property so sold and redeemed, but that the deed was not called for until the 7th day of September, 1900, when it was taken and recorded; that on the 27th day of March, 1899, Edwin J. Barker filed articles of incorporation of the Big Snowy Mining Company, in which said redemptioners were named as directors and stockholders of all the stock in the corporation; that the Big Snowy Mining Company wras organized with the intent on the part of the incorporators to transfer to said company all the property so redeemed, intending thereby to deprive the stockholders in said defendant mining company, other than said incorporators, of all their interest in the property, but that no conveyance or transfer to such company had yet been made; that since the redemption the defendants have exercised exclusive ownership and control of the property, and have, by the operation and leasing thereof, realized profits of several thousand dollars, the amount of which is unknown to plaintiffs, but that they greatly exceed the amount paid by defendants fox the redemption of the property; that defendants have kept for their own use and benefit all of said moneys, and have never accounted therefor to said defendant mining company, to the plaintiffs, or to the other stockholders; that Timothy E. Collins, husband of Davina A. Collins, claims an interest in the property with the other defendants, as represented by the interest of said defendant Davina A. Collins; that defendant John O. E. Barker on the 4th day of March, 1899, conveyed to Edwin J. Barker Ms pretended interest in tbe property, bnt still claims and asserts an interest in the property; that the defendants and directors of the mining company defendant have never at any time, either before the rendition of any of the judgments set forth or since, called a meeting of the stockholders of the defendant mining company for the purpose of seeing what might be done towards protecting its interest in the property, and that neither of said defendants and directors, or any of them, have attempted in any way to protect the interests of the corporation by paying its'said indebtedness or making a redemption of said property for its benefit, but that all acts of said defendants and directors have been done and performed for their own individual benefit, and for the purpose of acquiring said property for themselves, and to deprive the mining company defendant and the remaining stockholders of the same, and that defendants threaten to hold said property for themselves, and adverse to the mining company and its stockholders other than themselves; that the defendants have never informed the mining company defendant or its stockholders of the adverse interest, in said property so acquired by them, but have acted in bad faith toward the said mining company, and in fraud of its and plaintiffs’ rights in the premises; that none of the plaintiffs knew that the defendants were intending to hold said property in their own individual right, or in hostility to the rights of the company and plaintiffs, until the recording of the sheriff’s deed; that defendants have acquired no right, title or interest in said property, but that the redemption should be declared to be a redemption for and in behalf of said defendant mining company and plaintiffs and other shareholders wdio may come in and share the expense of the action; that the certificate of redemption and sheriff’s deed issued to defendants cast a cloud upon the title of said property, which should be set aside and held for naught. The complaint then alleges the commencement of a suit in the name of the defendant mining company against the other defendants in this suit to obtain the same relief as sought in this action; that summons was issued and served on all the defend ants; that some of them moved to strike the complaint from the files on the ground that it was not verified by any of the officers of the corporation; that other defendants demurred to the complaint, and, upon presentation of said motion and demurrers to the court, the same were sustained, and the bill dismissed. Then follows the prayei: for an accounting- and other relief.
To this complaint the defendants filed separate general demurrers, which were overruled. They then, with the exception of the mining company defendant, filed separate answers. The substance of each, in so far as important to these appeals, is as follows:
Answer of Timothy E. Collins and Davina A. Collins: Denies that Timothy E. Collins was a party to the redemption of the lands, or that he was acting for himself, in the name of his wife, Davina A. Collins, and alleges that Davina A. Collins effected the redemption in her own behalf, and that Timothy E. Collins had no interest in the property so redeemed, and has never had any such interest since its redemption. Denies that Timothy E. Collins was a party to the incorporation of the Big Snowy Mining Company. Admits that since the redemption the defendants David D. S. Barker, John C. E. Barker, E. J. Barker and his estate, J. T. Armington and Davina A. Collins have exercised ownership and exclusive control over said property, but denies that Timothy E. Collins has had or exercised any control or ownership over the property. Admits that Davina A. Collins has received as profits arising from said property a sum to exceed $400, but denies that Timothy E. Collins has ever received any profits. Admits that Timothy E. Collins is the husband of Davina A. Collins, but denies that he claims any right, title or interest in or to said property since the redemption thereof. Alleges that Davina A. Collins has the right to an undivided one fifth interest in said property redeemed in her own right. Admits that no meeting of the stockholders was ever called or had as alleged in the complaint, and that defendants, except Timothy E. Collins, have acquired said property for themselves, and that they intend to hold the same adversely to the defendant mining company and stockholders. Denies that the board of directors, or any of them, acted in bad faith in permitting the property to be sold, and denies that they omitted to do anything which they were in duty bound to do as directors. Denies that plaintiffs did not have any notice of the sale and redemption of the property, and that plaintiffs did not know that defendants intended to hold said property for their own use and adversely to the rights of the corporation, and alleges that the transactions were had in good faith, openly and publicly, and that the transactions with reference to the sale and redemption of the property were made publicly. Npon information and belief, alleges that all of said transactions were within the knowledge of plaintiffs. Admits that Timothy E. Collins had not acquired any right, title or interest to said property. Denies that Lavina Collins has not acquired any interest. Alleges that she holds an undivided one-fifth interest thereof; that she is an innocent purchaser thereof; that she has a good right, title and interest as against the plaintiff and as against the world. Alleges that plaintiffs have stood by and permitted the property to be sold; allowed the defendants, except Timothy E. Collins, to expend a large amount of 'money in the redemption of the property, well knowing that it was advertised for sale, sold and redeemed by these defendants other than Timothy E. Collins, and did not attempt to bring any action until, by the work and labor of defendants, bodies of ore of considerable value were discovered; that, by reason of laches, plaintiffs are now estopped from instituting this suit.
Answer of Marcella O’Leary, special administratrix of the estate of E. J. Barker, deceased: Admits that, at the time of the beginning of the suit, David L. S. Barker was administrator of the estate of E. J. -Barker,, deeéased, but alleges that he has been superseded by herself as special administratrix of the estate. Admits that the defendant mining company was incorporated ; that the property described in the complaint was sold at sheriff’s sale; that it was afterwards redeemed as alleged in the complaint; that one-fifth was redeemed by E. J. Barker; that one-fifth was redeemed by John 0. E. Barker, which was áfterwards conveyed to E. J. Barker. Admits that the estate of E. J. Barker claims an undivided two-fifths interest in all the property described in plaintiffs’ complaint, and claims it adversely to plaintiffs. Alleges that E. J. Barker purchased said two-fifths interest, and paid therefor in good faith; that all the acts done by said E. J. Barker and his grantor, John 0. E. Barker, in the redemption of said property, were done in good faith and without fraud. Alleges that plaintiffs stood by and permitted judgment to be entered against the company, and the property sold, and the same to be redeemed by the defendants; that plaintiffs saw the defendants part with their money in good-faith, well knowing such property had been redeemed by defendants as individuals; and that therefore plaintiffs are es-topped to maintain the action.
Answer of J. T. Armington: Denies that [he mining company defendant has been carrying on business since the year 1897, that any of the defendants have acted as directors since 1897, and that the Big Snowy Mining Company was organized with the intent or design to deprive any one of any interest in the property. Alleges that the defendant mining company at the time of the redemption had no assets whatever to pay off the judgments mentioned in the complaint, save the property sold at sheriff’s sale; that- none of the stockholders showed any willingness or desire to advance the necessary funds to pay off the judgments, although they all well knew of the same, and of the sale of the property to satisfy the same, “and for that reason, and no other, defendant assisted in the redemption of said property as alleged in the complaint.”- Denies that the stockholders were not informed of said judgment and sheriff’s sale thereunder. Denies that he or any of his codefendants acted in bad faith or fraud of any of plaintiffs’ rights in the premises. Denies that plaintiffs did not know that the redemption of said property was intended for the benefit of the redemptioners. Alleges that plaintiffs well knew that the defendants redeemed the property openly and without bad faith, and, after such re demption, expended large sums of money in developing and exploiting the property; that the redemption was made with their own money, and in good faith, and rvith no design to defraud plaintiffs.
The answer of David L. S. Barker contains substantially the same admissions, denials and affirmative allegations as those contained in the answer of Armington.
Answer of John C. E. Barker: Denies that the organization of the Big Snowy Mining Company was made with the intent or design to deprive any one of his interest in the property. Alleges that the profits realized from operation and leasing of the mining claims amounted to $12,960.57; that the defendant mining company at the time of the redemption had no assets, whatever, save and except the property sold at sheriff’s sale; that none of the stockholders showed any willingness or desire to advánce the necessary funds to pay off the judgments, although they knew of the same, and of the sale of the property to satisfy the same, “and for that reason, and no other, he assisted in the redemption of the property as alleged in the complaint.” Denies that the stockholders of the defendant mining-company were not informed of the judgments and sheriff’s sale. Denies that he and his codefendants acted in bad faith or fraud of any of the plaintiffs’ rights in the premises. Denies that the plaintiffs did not know that the redemption was intended for the benefit of the redemptioners. Denies that defendants have acquired no right, title or interest in the property, or that the sheriff’s deed or certificate of redemption casts any cloud on said property, or that the title of the defendant mining company should be quieted. Avers that, in his individual behalf, he consents to a decree transferring all the property so redeemed to the defendant corporation, upon repayment to defendants of the sums of money so paid to effect the redemption, but insists that plaintiffs are not entitled to any accounting, because the defendants, after redeeming the property, expended large sums of money in developing and exploiting the property, in good faith, and in reliance upon the title so acquired in the redemp tion, all of which was known, to the plaintiffs, who raised no objection ’thereto, bnt remained silent. Wherefore he ’claims that plaintiffs are estopped to demand any accounting.
Answer of W. F. O’Leary, guardian ad litem of Edwin J. Barker, an infant: Admits that the property described in the ■complaint was sold at sheriff’s sale and afterwards redeemed, as alleged. Admits that a one-fifth interest was redeemed by E. J. Barker, and a one-fifth interest by John O. E. Barker, which was afterwards conveyed to E. J. Barker; that E. J. Barker purchased the said two-fifths interest in said property, and paid therefor in good faith; and that his estate is now owner of said property. Alleges that all the acts done by E. J. Barker and his grantor, John O. E. Barker, in the redemption of the property, were done in good faith and without fraud. The answer then sets forth laches on the part of plaintiffs, as in the other answers, and claims that they should be estopped from maintaining the action.
Each of the answers contain an admission that the property was redeemed as alleged in the complaint. Replications were filed, denying all the affirmative allegations contained in the several answers. Upon the issues thus formed the case was tried before the court, without a jury.
After the taking of testimony, the court made its findings of fact and conclusions of law, which, in so far as they are important upon this hearing, are, in substance, as follows: That the defendant mining company is a corporation, and that the plaintiffs are stockholders therein; that defendants David L. S. Barker, John 0. E. Barker, J. T. Armington and Timothy E. Collins are, and for several years last past have been, the duly ■elected, qualified and acting directors and officers of the defendant corporation, and stockholders therein; that the defendants John O. E. Barker and J. T. Armington have been for several .years last past the duly elected, qualified and acting president and secretary, respectively, of the corporation. In findings 3 and 4 the court determined the appointment and qualification of .administrators of the estate of E. J. Barker, deceased, and the guardian of Edwin J. Barker, an infant; that on the 2d day of February, 1898, one John R. Fitzsimmons recovered a judgment against the defendant mining company for $2,577.94, and $19.50 costs, upon which an execution was duly issued, the property advertised for sale, and sold on the 3d day of March,, 1898, to one William Silverman and one Laura Coombs for the sum of $2,900 [here follows a description of the property sold, which corresponds with the allegations of the complaint] ; that on the 2d day of March, 1899, the said John O. E. Barker, Edwin J. Barker, David L. S. Barker, J. T. Armington and Lavina A. Collins effected a redemption of said property from said sale upon the payment of $6,145.90, which included the-purchase price, with interest, two prior judgments, and the sum of $13.10 taxes; that the redemption was made by such persons-as the owners of a judgment entered in favor of John C. E. Barker on the 28th day of January, 1898, against the defendant mining company, for the sum of $3,184.70; that in all of the-actions, save the last named, the said John C. E. Barker accepted service of summons as president and managing agent of' said defendant corporation, and judgments by default were entered, based upon said acceptance of service, and that, in the action of John C. E. Barker against the defendant mining company, J. T. Armington, as secretary of defendant mining company, -accepted service of summons, and the judgment by default was entered, based upon the service so accepted; that a certificate of redemption was issued upon the redemption; that on the-12th day of June, 1900, the sheriff executed a deed to said redemptioners, conveying all the property so sold and redeemed as aforesaid, but the deed was not called for until the 7th day of September, 1900, whereupon it was delivered and recorded;, that on or about the 27th day of March, 1899, the defendants John C. E. Barker, David L. S. Barker, J. T. Armington, Timothy E. Collins and E. J. Barker duly filed articles of incorporation of the Big Snowy Mining Company, in which said parties were named as directors, and, together with said Lavina A. Collins, as stockholders of all the stock of the corporation; that the- .said redemptioners and directors never at any time called a meeting of the stockholders of the defendant corporation for the purpose of seeing what might be done toward protecting its interests and property, nor did they in any way attempt to protect the interests of the said corporation by paying the said indebtedness or effecting a redemption for its own benefit, but that .all the acts of said plaintiffs were done and performed individually and for their own benefit, and for the purpose of acquiring ¡said property for themselves, and depriving the defendant corporation and the remaining stockholders of the same; that the defendant directors never informed the defendant corporation •or its stockholders of the adverse interest in said property so acquired by them, but acted in bad faith toward the corporation, ■and in fraud of its and plaintiffs’ rights in the premises; that none of the plaintiffs knew that the redemptioners and defendants were attempting or intending to hold said property in their ■own rights, and in hostility to the defendant corporation and plaintiffs, until the recording of the sheriff’s deed; that Edwin •J. Barker was a bona fide purchaser of an undivided one-fifth interest in the property by virtue of said redemption, and that his estate is a' bona fide purchaser, without notice, of an undivided one-fifth interest in said property, by virtue of said redemption and sheriff’s deed; that Davina A. Collins was, by virtue of said redemption and of said sheriff’s deed, a bona fide purchaser of an undivided one-fifth interest in said property, .and a purchaser for a valuable consideration, without notice; that the defendants John O. E. Barker, David D. S. Barker and J. T. Armington acquired no right, title or interest in said property by virtue of said redemption and sheriff’s deed.
The court then determined the facts concerning the beginning •of the suit on behalf of the company on the 4th day of June, 1901, as alleged in the complaint, and further found that plaintiffs brought this action within a reasonable time after the discovery of the fraud, and have not been guilty of any laches; that the defendants John C. E. Barker, David D. S. Barker and J. T. Armington, as officers and directors of the defendant min ing company, in attempting to acquire the corporation’s property by means of said redemption and sheriff’s deed, violated the trust imposed in them as such officers and directors, and thereby committed a fraud, in law, upon said corporation, and its stockholders, including plaintiffs; that by virtue of said acts they became involuntarily trustees of the property of said corporation for the benefit of said corporation and its stockholders, including plaintiffs, and that said redemption should be held for the benefit of the defendant corporation; that Edwin J. Barker and his estate and Lavina A. Collins each acquired a one-fifth interest in said property by virtue of said redemption and sheriff’s deed; that said certificate of redemption and sheriff’s deed cast a cloud upon the title of said property, which should be set aside and held for naught, so far as the interests sought to be acquired by said John O. E.. Barker, David L. S. Barker and J. T. Armington are concerned, and that the title of said defendant corporation in and to an undivided three-fifths of said property should be quieted as against said defendants last named; that plaintiffs are entitled to a decree for the use and benefit of the said defendant company, quieting its title as aforesaid, and to a judgment in their favor for the use and benefit of said mining company against John C. E. Barker, David 1. S. Barker and J. T. Armington, jointly and severally. Bpon these findings of fact and conclusions of law, the court entered its decree.
Defendants John C. E. Barker, J. T. Armington and David L. S. Barker moved for a new. trial, which, after having been argued and submitted, was granted in part. The court ordered: “That the sixth (VI) conclusion of law, in so far as the same finds the plaintiffs entitled to a judgment in their favor, for the use and benefit of the corporation defendant, against the defendants J. 0. E. Barker, David L. S. Barker and J. T. Armington, amounting to $64,411.32, and also that part of the decree heretofore entered in this cause, decreeing that said last-named defendants áccount to plaintiffs, for the use and benefit of said corporation defend ant, for said last-named sum, and decreeing a personal judgment against said defendants therefor, be, and the same are, hereby set aside, canceled and held for naught; and plaintiffs’ motion for a new trial is granted for the purpose of ascertaining any proper expenditures made by said defendants J. C. E. Barker, David L. S. Barker and J. T. Armington, and for which they would be entitled to a credit, if any, upon the amount of receipts for ores extracted from the properties described in the complaint, and heretofore'found upon the trial of this cause. It being the purpose and intention of this order to grant a new trial only for the purpose of ascertaining the amount, if any, that the plaintiffs, for the use and benefit of the Montana Gold, Silver, Platinum & Tellurium Mining Company, may be entitled to against said last-named defendants on account of ores extracted from the mining properties described in the complaint and decree. And said motion for a new trial as to all other matters is hereby denied.”
Motion for a new trial was also made by plaintiffs as against defendants Timothy E. Collins, Davina A. Collins, Marcella O’Deary as administratrix of the estate of E. I. Barker, deceased, and W. E. O’Leary as guardian ad litem of Edwin J. Barker, an infant, which was overruled by the court.
1. Directors of a corporation stand in equity in a fiduciary capacity as to the corporation and stockholders. Whether „they should be treated as trustees for such stockholders or company, in the full sense of that term, is immaterial. Standing in a fiduciary capacity, they are not allowed to profit by virtue of their position. They must exercise the utmost good faith in all transactions touching their duties to the corporation and its property. All their acts must be for the benefit of the corporation and not for their own benefit. If by their acts the directors have received any profits from the company’s property or business, they hold the same as trustees for the benefit of the corporation and its sstockholders. Illustrations of this doctrine are very numerous, and the principles are so well established that citation of authorities seems unnecessary.
Our own court, speaking through Mr. Associate Justice Buck, in the case of Gerry v. The Bismarck Bank, 19 Mont. 191, 47 Pac. 810, announces this principle in the following commendable language: “That a trustee should not be allowed to profit by his trust is a well-known fundamental doctrine of equity. No evasions, no technical subtlety of reasoning, no empty distinctions, should be tolerated when the assertion of this principle becomes necessary. It is true that when the motives of a trustee in the neglect of his duty are not essentially bad, or are readily reconcilable with ordinary honesty of purpose, certain courts have applied this rule leniently. * * * It is true that weak toleration from the bench of frail, but penitent, humanity, has often apparently robbed the principle of its very life. But such precedents serve only to increase plausible devices for evading its consequences. They encourage the natural tendency of designing selfishness to substitute the vague expression ‘business enterprise’ for ‘business honesty.’ ”
Transactions had by a director of a company rvith reference to the property of the company for any purpose, whereby the director obtains any profit, are looked upon by the courts with great suspicion; and, while they may not be invalid or void per se, yet they are voidable by the company or its stockholders if action is taken within a reasonable time. There is some difference in the opinions of courts of last resort as to whether or not such transactions can ever be sustained, some holding that the stockholders in all instances may have them set aside upon repayment to the directors of the consideration paid over by them. Others hold that such transactions may be maintained as valid if the directors show that the entire proceeding by which they were entered into was fair, open and aboveboard.
Taking the more favorable of these authorities, the burden has always been held to be upon the directors to show that the transaction was fair, in good faith, open and aboveboard. These general principles are recognized in Sections 2910-2981 of the Civil Code. Do the facts bring the defendant directors within these principles ?
In the complaint in this case facts are alleged which distinctly show a profit to the directors redeeming, and the allegation is made that the acts of the directors whereby they acquired the property of the company were fraudulent. Defendants filed their answers, in which they specifically denied any fraudulent intent or actions, and alleged that all transactions were bona fide and fair.
It will be noticed that, upon the hearing of the case, none of the defendant directors except Timothy E. Collins was called as a witness. In fact, no other testimony was introduced in their behalf. Timothy E. Collins did not assume to testify as to the bona fides of the other directors. Upon the record, therefore, as it stands, there is no evidence given in any manner tending to show that the allegations of defendants John C. E. Barker, David L. S. Barker and J. T. Armington were truthful. They had every opportunity to prove the facts alleged in their answers, but they wholly neglected so to do.
While this court would not be authorized to draw as a conclusion, from this failure to prove, that the allegations of good faith in the answers were false, yet, inasmuch as these allegations in the answers were all denied by the replication, and as-the burden of proof to maintain them was upon the several directors, and they introduced no evidence, this court is justified in holding that their acts were not in good faith and aboveboard. \
The Montana Gold, Silver, Platinum & Tellurium Mining-Company had title to some 13 mining claims, from which it had extracted large quantities of rich ore. After being in operation a few years, it became indebted in a sum of from $12,000 to $15,000. Its directors consisted of John C. E. Barker, David L. S. Barker, J. T. Armington, Timothy E. Collins and Prank Coombs. John O. E. Barker was president, and J. T. Arming-ton secretary. Pour out of these five directors are defendants in this action. The proof discloses that Coombs never acted as a director, except at one meeting, and that he never received notice of any subsequent meeting of the directors; that all trans actions in behalf of the company were carried on by the four directors who are defendants. The record discloses no attempt to borrow money to liquidate this indebtedness, which, according to the testimony of Timothy E. Collins, all arose under the management of these directors. No meeting of the stockholders was ever called to discuss ways and means to take care of it. The last stockholders’ meeting was in June, 1897, when these directors were elected. Work by the company on the property was closed down in 1897 or 1898. The first judgment against the company on a portion of this indebtedness was entered in favor of the First National Bank of Great Falls some time in 1897 or 1898, the exact date not appearing in the record. Two other judgments soon followed. On the third judgment all the property of the company was levied upon and sold under execution. Other judgments were afterwards entered. No meeting of the directors or stockholders was held to devise ways and means for procuring the discharge of any of these judgments. None of the plaintiff stockholders were consulted in reference thereto, or asked to aid the company, by money or otherwise, to liquidate these obligations. All the judgments except the first had been obtained upon the acceptance of service of summons by John O. E. Barker as president of the company. The property was sold on the 3d day of March, 1898.
Collins testifies that after the sale he interviewed many of the stockholders, and advised them not to redeem. On the 28th day of February, 1899, two days prior to the expiration of the time for redemption, John 0. E. Barker obtained a judgment against the company by default, based upon the acceptance of service of summons by J. T. Armington as secretary. The four defendant directors and stockholder E. J. Barker held an informal meeting at Willard’s store, and concluded to redeem the property. The date of this meeting is not fixed definitely by the record, but was very shortly before the redemption was made. There was no formal meeting of the board of directors, and no notice was given to director Coombs of this meeting, nor any invitation extended to him to be present. No notice of any kind was given to any of the plaintiff stockholders of the intention to redeem the property from the execution sale.' There were no funds on hand belonging to the company with which to make the redemption. It was not sought to borrow money or to obtain it from the stockholders for this purpose.
Witness Oollina detailed what was done at this informal meeting of the trustees prior to the redemption: “My impression is that the board of trustees had a meeting after the one mentioned in these minutes. I wouldn’t say it was the meeting of the board of trustees. It was either a meeting of the board of trustees, or an informal meeting of three of the members of it. The meeting was held at Willard’s store for the purpose of devising ways and means to clear the property of its indebtedness and redeeming it. * * * We had a meeting a few days or a week, with these redemptioners, before the time for redemption; the purpose of the meeting being to determine whether or not we should redeem the property. We talked the matter over for a day or two, and concluded, after a great deal of consideration —the majority concluded that they would redeem. I didn’t want to redeem. I wanted to abandon everything I had in the property, rather than to redeem. I didn’t care a bit whether Mrs. Collins joined in the redemption. No; it was not arranged at this meeting who should redeem the property. The meeting was between I. C. E. Barker, D. L. S. Barker, J. T. Armington, E. J. Barker and myself, to determine whether we should redeem under the Barker judgment. After talking the matter over for a couple of days, those people concluded that they would put their money into it and redeem it. * * * With reference to redeeming the property, I tried to tell you the details of that. We talked the matter over. We had a whole year in which to consider, and it looked as though we were not going to do it; but a short time before the redemption we got together and talked it over quite awhile, and at last it was agreed that it should be done. * * * The meeting where it was arranged about redeeming the property was an informal meeting of the people there — of some who were officers and some who were not. I don’t think we met there as officers of the company. I wouldn’t say so. Mr. Jenks Barker was in it, and he wasn’t an officer of the company. I was an officer, Armington was an officer, and J. C. E. Barker was an officer. We were all directors of the company. -* * * This was not a meeting of the board with reference to the redemption of this property. There may have been casual meetings between two or three of us talking about the thing — no such formal meeting as that was. At the time of this meeting where we arranged to redeem the property, as I have testified, the intention was that the property should revert — should get away from the corporation in the hands of the individuals. The purpose of that meeting and the arrangement made was practically to take this property entirely away from the stockholders if they wouldn’t put up in the time in which they had to do it in. They had no time to put up after that meeting — no time at all. They were not given any notice or opportunity to put [up] after that meeting, because that meeting was almost directly before the time for redemption. The purpose of all us people that were a party to the redemption was to redeem this property in the name of these individuals, and for their benefit, and not for the benefit of the company.” Collins says that the property, in his judgment, was not worth more than $5,000 to $7,500, but, because of surrounding mines, its location, and the improvements upon the property, it might have been worth from $12,000 to $15,000; hut on cross-examination he' says: “This' property at the time of redemption might have been worth $50,000. I wouldn’t say it wasn’t worth $100,-000, or way in excess of that.”
The redemption was effected by means of the John C. E. Barker judgment above mentioned, of which the judgment creditor, John C. E. Barker, assigned an undivided four-fifths interest to defendants David L. S. Barker, J. T. Armington, E. J. Barker and Davina A. Collins, wife of defendant Timothy E. Collins. This redemption was made on March 2, 1899, by the payment of the amount bid on the judgment upon which the property had heen sold, with interest; of the amount of the two judgments prior to the one under which the property was sold, and interest thereon; and of the taxes then due. The deed was not issued until July,, 1900, and was not delivered to the redemptioners until September, 1900, when it was recorded. By this deed the title to all the property of the company was vested in John O. E. Barker, David L. S. Barker, E. J. Barker, J. T. Armington and Davina A. Collins. On March 23, 1899, the Big Snowy Mining Company was organized by J. T. Arming-ton, David D. S. Barker, John C. E. Barker and E. J. Barker. Timothy E. Collins was made trustee for the first three months. The certificate of incorporation recites that Collins was subscriber for 1,000 shares of the stock.
The record discloses that from September 23, 1899, until some time in 1901, shipments of ore taken from the property were made, and the net results of such shipments amounted to $96,781. These shipments, for the most part, wrere made in the name of the Big Snowy Mining Company, through David D. S. Barker, agent.
The record further discloses that, at a meeting of the directors held immediately after their organization as a board, it was voted to submit to the stockholders a proposition to lease any portion or all of the property. No such meeting of the stockholders is shown, but on July 17, 1897, a lease was signed by John C. E. Barker, as president, and J. T. Armington, as secretary, to George Moore, E. J. Barker and Spencer Kowley. The lease was for one year, but it was extended six months by John C. E. Barker, as president, and J. T. Armington, as secretary. It was recorded on the 19th day of January, 1898. Another lease was executed to E. J. Barker and one Fitzsimmons on a portion of the property of the company on the 28'th day of December, 1897, for one year, also executed by John C. E. Barker, as president, and J. T. Armington, as secretary. This lease was recorded on the 11th day of January, 1898. Witness Collins testifies that certain leases were in existence at the time the redemption was made. After the redemption was effected, plaintiff Coombs talked with defendant Armington in regard to the same, and suggested that he would probably lose his stock. Armington replied: “Your stock will be all right. You will get your stock all right” — leading Coombs to believe that the redemption had been made for, and in the interest of, the company. It also appears from the record that, immediately after the redemption had been completed, defendant John C. E. Barker caused to be published in a Great Falls paper the fact that the redemption was made for the company, and that all stockholders, upon paying their just, proportionate share of redemption, might still retain their interest in the property.
The record further discloses that defendant John C. E. Barker stated to several persons that, so far as he was concerned, che redemption might be treated as having been made for the company; and, so far as is disclosed by the record, none of the defendant directors ever stated to any one, until long after redemption, that they proposed to hold the property in their own interests, and adversely to the company. By this redemption the parties redeeming succeeded in obtaining the property from the company at an expenditure of a comparatively small sum, and in less than two years thereafter received from the smelting company, by which ores mined by or in behalf of the redemptioners were treated, $9(5,781 in cash.
Counsel for defendant directors cite many cases to the proposition that under certain circumstances the directors of a corporation may become its creditors, and enforce their claims against the corporation as any other creditors. We have no inclination to dispute this doctrine, but agree with it, as being for the best interest of the corporation. This doctrine, however, is based upon a contract relation between the directors and the company whereby the debt is created, and is allowed because directors of a corporation are more familiar with the business and affairs of the corporation and its necessities than outsiders, and that it would be extremely unjust not to permit them to assist the corporation in financial troubles. "When directors become creditors in this manner, they may enforce their claims by the same methods as any other creditor. It will be noticed, however, that in all such cases the contract is viewed with distrust by the courts, and is. subject to the strictest scrutiny, and may be enforced only when it is fair and equitable.
Counsel further cite numerous cases holding that a director may become a purchaser of corporation property at a judicial sale when such sale is made by another creditor, and when the director has no control over the proceedings. We also agree with this doctrine, subject to the qualification, however: That the acts of the director must be fair and honest, and he be not permitted to obtain any dishonest advantage over the corporation or stockholders.
Counsel also insist that a director may purchase property of the corporation from another purchaser at a judicial sale. This is really an application of the principles upon which the last above mentioned doctrine is based, and must be accepted only with the qualifications above noticed.
We are of the opinion that the facts of the present case do not bring it within either of the doctrines above announced. It cannot fall within the first, because of the absence of contract relation existing between director and corporation. It cannot fall within either of the others, because the directors did not become bidders at the sale, or purchase the right of a successful bidder. The latter would require a contract between the directors and bidder, which is entirely absent in this case. The directors here simply redeemed the property from a sale under the provisions of the statute. The purchasers are not shown to have consented to this redemption. It could have been made even as against their protest. It is also important to notice the method by which these directors acquired the right to become redemptioners. The redemption was made under a judgment rendered in favor of one of their number only two days before the redemption, which was obtained by default based upon the acceptance of service of the summons by another of their number. These'facts render it too doubtful for this court to hold that the entire proceeding was open, aboveboard, fair and equitable.
No explanation is offered by any witness wby tbe judgment of John C. E. Barker was obtained only two days before the time for redemption had expired. Neither is there any explanation offered as to why the summons was not served in the usual way upon the defendant corporation, or why notice of the pendency of the suit was not given to any one except the directors who took part in the redemption. There is too much opportunity for fraud under such circumstances to maintain them in absence of any explanation. The directors may have conspired among themselves to allow this judgment to be entered so short ■ a time before the redemption, to take an assignment of the judgment and redeem the property to the utter exclusion of all the other stockholders. The manner of showing the bona fides of the transaction was, if such Avas the fact, clearly Avithin the poAver of the directors. They sit by silently and say nothing, and this court, under the circumstances detailed, cannot say that their acts A\rere bona fide and sufficient to maintain their position. •
Counsel for defendants claim that there is no fraud in fact alleged against defendants in the complaint. Whether this is true, Ave deem immaterial. A breach of official duty on the part of the defendant directors is clearly alleged and relied upon. This is a fraud in laAV, and sufficient to Avarrant relief if proAren. It is A'ery difficult to distinguish the effect of fraud in fact from the effect of fraud in kw. Usually the two classes concur in their effect. It is the same. This court has Avell said in the ease of Gerry v. Bismarck Bank, 19 Mont. 191, 47 Pac. 810: “Appellants maintain that the loAver court must lmu rendered its decisioin upon the theory that Bannister Avas guilty of constructNe fraud, — fraud Avhieli the laAV Avould imply from any Auolation of his fiduciary relation as a trustee for the stockholders ; and that, inasmuch as plaintiffs’ complaint was Avholly on the theory of actual fraud, relief cannot be afforded in the present suit for any disregard by Bannister of his fiduciary obligation as to profits. We do not disagree with the general principle that, eAren under our form of procedure, the proof must substantially correspond with the allegations relied on for relief, and that a plaintiff cannot allege one cause of action, and then, even if the proofs might justify it, obtain relief on one which is essentially different in character. (See Pomeroy on Code Demedies, Sec. 553 et seq.) But does the complaint before us set forth different theories for recovery ? We think not. It contains an averment of a fraudulent conspiracy, and the fidm ciary relationship of Bannister and Child to the company is averred only as one of the means whereby the fraud was perpetrated. The latter averment supports the former. The two blend naturally into the gist of the action. Even if any line of demarcation could be preserved between the fraudulent conspiracy as one theory in this complaint, and the violation of the duties of the fiduciary relationship as another, still the two would not be essentially different. 'Fraud would be'the basis of recovery in each.”
Proof of either class of fraud is sufficient to 'warrant relief. Therefore allegations and proof of a breach of official duty are all that is necessary. (Fulton v. Whitney, 66 N. Y. 548; Alaniz v. Casenave, 91 Cal. 41, 27 Pac. 521; Hoyle v. Plattsburgh & Montreal R. Co., 54 N. Y. 314, 13 Am. Rep. 595; Morgan v. King, 27 Colo. 539, 63 Pac. 416.)
Further citation of authority seems unnecessary. The entire subject is thoroughly and succinctly treated by Judge Thompson in 10 Cyc. 787 et seq., where numerous authorities are cited.
It will be noticed that the allegations of the complaint as to defendants John C. E. Barker, David L. S. Barker and J. T. Armington are found to be true by the court in its findings of fact. Phder the principles above laid down, and the findings of the court, we are clearly of the opinion that as to defendants John C. E. Barker, David L. S. Barker and J. T. Armington, plaintiffs are entitled to relief.
2. The court below by its findings concluded that Edwin J: Barker was a bona fide purchaser of an undivided one-fifth interest in said property by virtue of said redemption, and that he and his estate was a bona fide purchaser, without notice, of an undivided one-fifth interest in said property by virtue of said redemption and sheriff’s deed, and also concluded that said Lavina A . Collins was, by virtue of said redemption and sheriff’s deed, a bona fide purchaser of an undivided one-fifth interest in said property, for a valuable consideration. In its conclusions of law the court also announced that the estate of E. J. Barker and Lavina A. Collins were bona fide purchasers, each of a one-fifth interest in said property, and were protected as such, and refused to enter any judgment or decree against them in favor of plaintiffs. In the answers of these defendants, it is alleged that they are bona fide purchasers, without notice.
The allegation of the joint answer of Timothy E. and Lavina A. Collins in that regard is as follows: “But they deny that the defendant Lavina A. Collins has not acquired any interest in and to said property, but allege that she has acquired, both in law and equity, an undivided one-fifth interest in and to said property; that she was an innocent purchaser thereof; that she has a good right, title and interest therein as against the plaintiffs herein and against the world.” The answers of the representatives of the estate of E. J. Barker allege that all acts done by E. J. Barker and his grantor, John C. E. Barker, in the redemption of said property in their own behalf, were done in good faith and without fraud. But each of these defendants admits the allegations of the complaint as to the facts in regard to the redemption of the property. It will be noticed that defendant Lavina A. Collins does not plead that she is a bona fide purchaser for value, or that she paid anything for her interest in the property.
As above stated, Timothy E. Collins was the only ivitness who testified at the trial in behalf of the defendants. ILis testimony, as bearing upon the connection of Lavina A. Collins with the redemption of the property, is as follows: “My wife got the money to redeem from E. J. Barker, who advanced it to her. * * Since redemption she has received a check for one thousand dollars, but not any more than that. * * * Mr. E. J. Barker represented her at the time the redemption was made. * * Mrs. Collins got none of it [the amount of $96,000, as testified to by witness Smith], and I think it is — this thousand dollars — is a part of that whole shipment, or her share of it, or I don’t say her share; it was all she got out of it. Mrs. Collins’ interest in the redemption is one-fifth. * * * After talking the matter over for a couple of days, those xieople concluded they would put their money into it and redeem it. When I left I told them I didn’t care about it, and Jenks Barker said, being as I was interested with him in a business way, that my wife should have an interest in it. I told him I didn’t have any money, and she didn’t have any, and he said he would put the money in for her — that on account of the business relations in the Big Seven. I have always been interested with these people. Yes; he wanted to keep me interested with them. My wife had an interest in the Big Seven. I represented her interest in the Big Seven, and our relations were close and intimate. My wife never had anything to do with these mining interests. "Whatever ivas done, I attended to it personally. She never attended to those things. She was consulted. I told her about this before she went into this, and we made up our minds that, as she got a lot of money out of the Big Seven, she would take a chance— she would invest some money. She didn’t have any money. So she didn’t put up any. She paid the money afterward. She didn’t pay the money out of the proceeds of the mine after it was redeemed. I was present when the money was paid on this account. It was in the month of February following the date of the redemption — January or February, 1900. This money was paid over in Helena to Mr. Jenks Barker. She hadn’t gotten any money at all out of this property at this time. I think that it was in July, 1900, that she made them a payment. Yes; up to that time a great many thousand dollars had been realized out of that property for these different redemptioners. As I remember, it was about eight hundred dollars that she paid to Jenks Barker. That was her part of it. That’s the way I remember it. She paid that, as I remember it, by check on the Montana National Bank on her own account. She got dividend No. 1 out of this property after the redemption, and no more. I don’t know when it was she got the thousand dollars. It was the time they paid their dividend, 1 suppose. It was a dividend signed by E. J. Barker, agent, or on account of D. L. S. Barker, agent. I presume he was agent for the redemptioners. That is the way he signed his check, I think. * * * When this one thousand dollars was paid over, I knew it came from the proceeds of that group. Mrs. Collins received this thousand dollars at Helena. It was sent to her by mail by Mr. D. L. S. Barker. I didn’t ask him anything about— Well, I did, too. I think I asked him two or three times to make a dividend, and after a while he declared a dividend, and sent my wife a thousand dollars. I had reason to believe they were getting money out of that, and I wanted my wife to have her share, and after waiting awhile they sent me this thousand dollars. I have tried ever since to get some more out of it, but I have failed so far. * * I have deemed this property of sufficient value to defend this suit and prevent the property being turned back to the stockholders. I thought it was worth enough to justify me in doing that. * * * My purpose now is to hold onto it. * * * Mrs. Collins acted on my advice in the matter. Her interest came really from Mr. Jenks Barker. Mr. Jenks Barker had control, and she could have been left out entirely if he wanted to. If it had not been for Jenks Banker putting her in as one of the redemptioners, I think she would have been left out entirely. Jenks Barker did that voluntarily and with my consent. Not a cent was put up at that time, except by Mr. Jenks Barker. He put up the money himself. No money was paid until July, 1901, on Mrs. Collins’ interest! I told Mrs. Collins about it at the time she was let in on this redemption. That was after we had our talk. Jenks and I made all the talk, and I went up to Helena and told her about it. * * * It was a business proposition whether we should put up the money to go into it or not. We determined, after consultation over it, we would redeem it. After it was agreed that we should go in on it, and she to be one of the parties, I told her about it, and that’s all she had to do ■with it. The meeting where it was arranged about redeeming the property was an informal meeting of the people there — of some who were officers and some who 'were not. I don’t think we met there as officers of the company. I wouldn’t say so. Mr. Jenks Barker was in it, and he wasn’t an officer of the company. I was an officer, Annington was an officer, and J. C. E. Barker was an officer. We were all directors but Jenks Barker, and I suppose he knew we were officers and directors of the company. I suppose everybody knew and all the stockholders knew who the officers of the company were. They could know. I don’t know whether Mrs. Collins knew who the directors of the company were, and that I was a director. I think possibly. I don’t know whether she did or not. She probably did. She ought to — all these years of my connection with it. I naturally think she knew I was an officer, and who the other officers were. I don’t know. The three of us — J. C. E. Barker, Annington and myself — had the active management of the property all the time, and that was thoroughly known, and who were the officers of the company. * * * I don’t know whether I or my wife ever authorized D. L. S. Barker to act as our agent, but the Barkers have the majority. "When the thing was working the Barkers had three interests and naturally D. L. S. Barker would be the one to represent the concern when they were working. 'Whether my wife authorized him, in writing or otherwise, to do it, I don’t know; cannot call to mind. I do not remember if I myself ever authorized him to do anything. I may have; may not. I cannot tell. If it came up I did. I don’t remember anything about it.”
Taking the testimony of this witness as true, we are satisfied that defendant Davina A. Collins was not a bona fide purchaser for value of any interest in the property in question. This testimony discloses that whatever money was necessary for Davina A. Collins to redeem was paid by E. J. Barker. She was a mere volunteer in the transaction, and parted with no consideration at the time of the redemption. Witness Collins gives no testimony tending to show that Davina A. Collins ever paid one cent to John C. E. Barker for an undivided one-fifth interest in the judgment which he held against the mining company, through which the redemption was made. According to his testimony, she never paid E. J. Barker but $800, and the date of this payment is quite uncertain. Witness first says that it was in January or February; again, that it was in July, 1900; and again, that it was in July, 1901. But at all events, $800 was all she paid.
It is alleged in the complaint and admitted by the defendants that over $6,000 was paid on the redemption. If defendant Lavina A. Collins was the owner of a one-fifth of the property redeemed, she should have paid one-fifth of the consideration, which is above the sum of $1,200. According to the testimony of this witness, she received a dividend of $1,000. The date when this was paid to her cannot be ascertained from the record. Witness, however, states that she did not pay the $800 to E. J. Barker out of this money.
But, again, according to the testimony of this witness, Lavina A. Collins knew who were the members of the board of directors of the defendant mining company at the time of the redemption. Having such knowledge,- she is charged with knowledge of the law that such directors could not redeem the properly in their ovTn names. This knowledge must be imputed to Lavina A. Collins, and yet we find her joining with the derelict directors in redeeming the property of the company for their own benefit.
But, again, E. J. Barker, according to the testimony of this witness, acted as Lavina A. Collins’ agent in the redemption of the property. We find on examination of the record that he signed her name to the notice of redemption by himself as her agent. She is therefore charged with all knowledge that her agent, E. J. Barker, possessed. The testimony of Timothy E. Collins shows that E. J. Barker was present at the meeting of the trustees of the mining company when it was concluded to redeem the property. In fact, it appears generally from the record that E. J. Barker was the chief actor in the making of the redemption. Witness says that E. J. Barker knew who the directors of the company were. And being present at the time the redemption was agreed upon, and taking part therein, and joining in the redemption in the manner as shown by the record, conclusively satisfies us that he should be charged with knowledge that the transaction was constructively fraudulent, and therefore he stands in no better position than the directors involved. (San Francisco Water Co. v. Pattee, 86 Cal. 623, 25 Pac. 135; Lathrop v. Bamplon, 31 Cal. 17, 89 Am. Dec. 141; Price v. Reeves, 38 Cal. 457; Hoffman Steam Coal Co. v. Cumberland Coal & Iron Co., 16 Md. 456, 77 Am. Dec. 311; Cumberland Coal & Iron Co. v. Sherman, 30 Barb. 553; Fort v. First Baptist Church, (Tex. Civ. App.) 55 S. W. 402; Neal v. Bleckley, 51 S. C. 506, 29 S. E. 249; Roberts v. Moseley, 64 Mo. 507.) He being the agent of Mrs. Collins in the redemption, she is charged with all the knowledge which he possessed. (Section 3112, Civil Code.)
Bemembering that under these circumstances the burden was upon Davina A. Collins to show that she was a bona -fide purchaser, without any notice of the unlawful acts of the directors, and for a valuable consideration paid before she acquired such notice, we are not satisfied that she has met this burden with proper proof. We are therefore clearly of the opinion that the court below was’ in error when it found that defendants Davina A. Collins and the estate of E. J. Barker were purchasers in good faith. The evidence does not justify such findings. We are therefore of the opinion that these findings should be set aside, and that defendants Davina A. Collins and the estate o£ E. J. Barker should be held responsible to plaintiffs in exactly the same manner as the directors J. C. E. Barker, D. D. S. Barker and T. J. Armington.
3. As to the amount of the recovery to which plaintiffs are entitled: There is no doubt but that defendants are entitled to a credit for whatever money they have actually paid out or expended for the use and benefit of the defendant company-such as the money paid by them upon the redemption of the property, in satisfaction of bona fide claims against the prop erty, interest tliereon at the rate of eight per cent per annum from the dates of payment, and also the reasonable expenses of extracting the ore taken from the property after redemption. The directors of the company, having the management of its business affairs, could have proceeded with the mining operations of the company and mined all this ore at the expense of the company. It is therefore inequitable to allow plaintiffs to recover the value of the ore after extraction, without allowing the defendants the necessary expenses of extraction.
As above noticed, the defendants John C. E. Barker, David. L. S. Barker and J. T. Armington made a motion for a new trial, which the court granted in so far as to allow said defendants to introduce proof as to the amount of credit to which they are entitled for extracting the ore. It is very doubtful whether the court below could have granted a new trial for this purpose upon the showing made upon the motion, but this is an equity case, and this court believes it to be its duty to arrive at exact justice between the parties, as nearly as practicable, and to enforce the time-honored maxim, “He who seeks equity must do equity.”
The case was evidently tried in the court below by defendants upon the theory that plaintiffs were not entitled to an accounting until after their liability was fixed in plaintiff’s favor by order or decree of the court. True, an entire accounting might have been had at the trial, but was not, and it is impossible to do exact justice between the parties in regard to such accounting on the record before us.
AYe therefore advise that the decree of the lower court be reversed, and that the court be directed to enter a final decree dismissing the complaint as against defendant Timothy E. Collins, and in favor of plaintiffs against John C. E. Barker, David L. S. Barker, J. T. Armington, Davina A. Collins, Marcella O’Leary as administratrix of the estate of E. J. Barker, deceased, and AY. F. O’Leary as guardian ad litem of Edwin J. Barker, an infant; declaring and adjudging that the redemption of the company’s property made by them or their predecessors in interest ivas made for the benefit of defendant mining company, and that they hold the legal title to all of said property in trust for said company; that they reconvey the same to said company, and that said company’s title thereto be quieted as against said defendants, and that defendants John C. E. Barker, David L. S. Barker, J. T. Armington, Davina A. Collins, Marcella O’T^eary as administratrix of the estate of E. J. Barker, deceased, and W. F. O’Leary as guardian ad litem of Edwin J. Barker, an infant, account to the said mining company, or to plaintiffs in its behalf, for the value of all ores extracted from said property since said redemption; that this accounting be in execution of this decree, and, when the amount is found due, the court enter the proper supplementary decree fin favor of plaintiffs for the use and benefit of said defendant corporation.
Per Curiam. — For the reasons stated in the foregoing opinion, it is ordered that the decree of the lower court be reversed, and that the court be directed to enter a final decree dismissing the complaint as against defendant Timothy E. Collins, and in favor of plaintiffs against John O. E. Barker, David L. S. Barker, J. T. Armington, Davina A. Collins, Marcella O’Leary as administratrix of the estate of E. J. Barker, deceased, and W. F. O’Leary as guardian ad litem of Edwin J. Barker, an infant; declaring and adjudging that the redemption of the company’s property made by them or their predecessors in interest was made for the benefit of defendant mining company, and that they hold the legal title to all of said property in trust for said company; that they reconvey the same to said company, and that said company’s title thereto be quieted as against said defendants, and that defendants John 0. E. Barker, David L. S. Barker, J. T. Armington, Davina A. Collins, Marcella O’Leary as administratrix of the estate of E. J. Barker, deceased, and W. F. O’Leary as guardian ad litem of Edwin J. Barker, an infant, account to the said mining company, or to plaintiffs in its behalf, for the value of all ores extracted from said property since said redemption; that this accounting be in execution of this decree, and, wbeu tbe amount is found due, the court enter the proper supplementary decree in favor of plaintiffs for the use and benefit of said defendant corporation; and that each party to the foregoing appeals pay his own costs.
Rehearing denied February 7, 1905.
Reversed and remanded.
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] |
MR. COMMISSIONER CLAYBERG
prepared the following opinion for the court:
Appeal by the city of Great Ealls from a judgment of $1,000 entered against it.
The cause of action stated in the complaint is based upon the alleged negligence of the city in making a dangerous excavation in one of its streets, and negligently allowing such excavation to remain in a dangerous condition, with full knowledge of such condition, whereby plaintiff was injured by falling into the same. The answer denied all the allegations of the complaint, except that of its corporate character, and set forth as an affirmative defense the contributory negligence of plaintiff. The replication denied all the allegations of the answer.
A trial was had by the court with a jury, which resulted in a verdict and judgment in favor of plaintiff for the sum of $1,000 damages. The defendant moved for a new trial, which was denied, and afterwards appealed from the judgment alone. At the close of plaintiff’s evidence, defendant’s attorney made a motion for nonsuit, which was overruled.
Appellant assigns eight errors, the first of which is the overruling of the motion for nonsuit; the second to the seventh, inclusive, are to the giving of certain instructions to the jury; and the eighth based upon the reason that the complaint does not state facts sufficient to constitute a cause of action.
Under the decisions of this court, assignments of error 2 to 7 cannot be considered, because they all refer to instructions of the court, and these instructions are not in the record as a part of the judgment roll, but in the statement on motion for a new trial. (Butte M. & M. Co. v. Kenyon, 30 Mont. 314, 76 Pac. 696; Shropshire v. Sidebottom, 30 Mont. 406, 76 Pac. 941; Glavin v. Lane, 29 Mont. 228, 74 Pac. 406; Featherman v. Granite County, 28 Mont. 462, 72 Pac. 972.) While the rule thus announced may seem harsh in certain instances, and savor considerably of technicality, it is based upon our statutes, and in no instance can it work a hardship if the attorneys preparing the record on appeal give this preparation proper attention. Further, this court announced to the profession in the Feather-man Case, supra, that “counsel may, upon timely application to the court, upon suggestion of diminution, amend their records.”.
This leaves only two questions for consideration, viz.: (1) Does the complaint state facts sufficient to constitute a cause of action ?' and (2) Did the court err in overruling the motion for a nonsuit?
1. Of the complaint: The only ground of insufficiency charged is “that there is no allegation that the demand of plaintiff was ever presented to the city council, as required by the provisions of Sections 1811 and 1812 of the Political Code.” These two sections are as follows:
“Sec. 1811. All accounts and demands against a city or town must be submitted to the council, and if found correct must be allowed, and an order made that the demand be paid, upon which the mayor must draw a warrant upon the treasurer in favor of the owner, specifying for what purpose and by what authority it is issued, and out of what fund it is to be paid, and the treasurer must pay the same out of the proper fund.
“Sec. 1812. All accounts and demands against a city, or town must be presented to the council, duly itemized and accompanied by an affidavit of the party or his agent, stating the same to be a true and correct account against the city or town for the full amount for which the same is presented, and that the same accrued as set forth, and with all necessary and proper vouchers, within one year from the date the same accrued; and any claim or demand not so presented within the time aforesaid is forever barred, and the council has no authority to allow any account or demand not so presented, nor must any action he maintained against the city or town for or on account of any demand or,, claim against the same, until such demand or claim has first been presented to the council for action thereon.”
It is apparent from these two sections that the requirement that “all accounts and demands” against the city should be submitted to the council was for the purpose of allowing the city to audit such accounts and demands and direct their payment. This purpose could not apply to a claim for damages arising from a tort. It would be difficult to present a demand arising out of a tort under the provisions of these two sections. The great weight of authority as to legislative provisions of the character of these two sections is that they do not apply to demands arising out of torts, but simply to accounts and demands upon contracts. (Adams v. City of Modesto, 131 Cal. 501, 63 Pac. 1083; Sutton v. City of Snohomish, 11 Wash. 24, 39 Pac. 273, 48 Am. St. Rep. 847; Kelley v. City of Madison, 43 Wis. 638, 28 Am. Rep. 576; Lay v. City of Adrian, 75 Mich. 438, 42 N. W. 959; City of Warren v. Davis, 43 Ohio St. 447, 3 N. E. 301; Sheridan v. City of Salem, 14 Ore. 328, 12 Pac. 925; McGaffin v. City of Cohoes, 74 N. Y. 387, 30 Am. Rep. 307; Howell v. City of Buffalo, 15 N. Y. 512; Pomfrey v. Village of Saratoga Springs, 104 N. Y. 459, 11 N. E. 43.)
A full discussion of the principles involved in this application of these sections is found in the above-cited authorities, and it would serve no useful purpose to repeat the same in this opinion.
2. As to the motion for nonsuit: The motion for, nonsuit was based upon the following grounds: “(1) The evidence conclusively shows that the plaintiff was guilty of contributory negligence. (2) That there is no evidence of defendant’s negligence. (3) That the evidence introduced is not sufficient to entitle plaintiff to a verdict. (4) For the reason that the facts stated in the complaint are not sufficient to supxiort the judgment in this action.” In the argument of the error assigned on the overruling of this motion, counsel takes four positions, some of which were not urged in the court below. They are as follows: (1) Insufficiency of the complaint, because it does not allege compliance with Sections 4811 and 4812 of the Political Code. (2) There was a fatal variance between the proof and the allegations of the complaint. (3) Because the evidence does not disclose that the excavation was the proximate cause of plaintiff’s injury. (4) Because the evidence conclusively showed that plaintiff had knowledge of the excavation of the street, that he could have easily avoided the same, and that he acted negligently.
Upon motions for nonsuit, everything is deemed proved which the evidence tends to prove, and no such motion should be granted unless the facts disclosed are such that all reasonable men must draw the conclusion from them that the plaintiff cannot recover. (Nord v. Boston & Montana Consol. C. & S. Mining Co., 30 Mont. 48, 75 Pac. 681, and cases cited.) We have examined plaintiff’s evidence given prior to the making of this motion, and are satisfied that it tended to show facts sufficient to sustain his cause of action. It made a prima facie case. We cannot consider the question of the sufficiency of the evidence, because the appeal is from the judgment, and'not from the order overruling the motion for new trial. (Withers v. Kemper, 25 Mont. 432, 65 Pac. 422.) This court can only examine the evidence to determine the legal question whether there is any evidence to support the judgment.
Neither can we consider the question of the alleged variance between the proof and the complaint, as this point was not called to the attention of the court below. Had it been, and the court below found such variance, it might have permitted an amendment to the complaint.
Therefore it follows that the only error assigned upon the correctness of the ruling on this motion is that the complaint does not state facts sufficient to constitute a cause of action. We have considered this proposition fully above, and are satisfied that the complaint does state sufficient facts to constitute a cause of action.
We therefore recommend that the judgment appealed from be affirmed.
Per Curiam. — For the reasons stated in the foregoing opinion, the judgment is affirmed.
|
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Per Ouriam.
Dpon motion of the respondent herein this appeal is hereby dismissed.
|
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MR. COMMISSIONER AYERS
prepared the opinion for the court.
Plaintiff seeks to recover damages for personal injuries alleged to have been caused' by the negligent driving of defendant’s automobile upon and against him, by Allen Gordon, a chauffeur of defendant, while the said Gordon was acting within the scope of his service. The defendant’s answer admits the ownership of the automobile in him, the service of Gordon, the collision of his automobile with plaintiff, the injury of plaintiff, and alleges that such injury was proximately caused by and due to the contributory fault and negligence of plaintiff. The allegation of contributory negligence is denied by the reply. No challenge of any pleading was made, either in the trial court or here. The trial was had in the district court of Silver Bow county, and resulted in a verdict for plaintiff, upon which judgment was entered. This appeal is from the judgment and from an order denying a new trial.
It was briefed and argued here that defendant’s negligence consisted in his driving other than on the right side of the street, in his excessive rate of speed, and his failure to sound an alarm.
The testimony on behalf of plaintiff shows that the accident causing plaintiff’s injury occurred about 11 o’clock on the night of August 20, 1918, oon Granite Street, in the city of Butte; that defendant was traveling 'westerly on Granite Street in a Cadillac automobile driven by his chauffeur; that it was raining “very hard” and had been for some time; that plaintiff came out of a garage on the north side of the street, looked up and down the street, saw nothing—however, he could see only about one-half block each way on account of the rain—and that he then proceeded south across the street on a run; that at the center of the street he was struck by defendant’s car, thrown into the air, coming down on the hood of the car, rolled off on the fender and then on the street; that the car was traveling between thirty and thirty-five miles per hour; that it was muffled so as to make no noise and no alarm was sounded; that a street-ear track was located in the center of'the street and the street was of sufficient width for a driveway on each side of the track. The testimony then detailed the injuries of plaintiff and the damage he had suffered.
That this testimony established the injury and damage of plaintiff (injury, however, was admitted by the answer), and that the negligence of defendant was the proximate cause thereof, and that a prima facie ease had been made, was inferentially admitted by defendant, for he did not move for a nonsuit, a dismissal, a judgment, nor ask for any other relief when plaintiff rested his ease. Likewise, we must infer that defendant was mindful of the rule that contributory negligence, unless it is to be inferred from plaintiff’s testimony, is a matter of defense to be established by a preponderance of the evidence. (Higley v. Gilmer, 3 Mont. 90, 35 Am. Rep. 450; Nelson v. City of Helena, 16 Mont. 21, 39 Pac. 905; Hunter v. Montana Cent. Ry. Co., 22 Mont. 525, 57 Pac. 140; Howard v. Flathead Ind. Tel. Co., 49 Mont. 197, 141 Pac. 153; Neilson v. Missoula Creamery Co., 59 Mont. 270, 196 Pac. 357; Lampe v. Jacobsen, 46 Wash. 533, 90 Pac. 654.)
Defendant’s testimony is, in effect, that he was not traveling to exceed twenty miles per hour when the accident occurred and that he was pursuing a course on the north or right side of the street. In other material matters it does not differ substantially from plaintiff’s testimony. However, in some instances, it aids plaintiff’s theory of negligence, for example: It discloses that the windshield was blurred by rain, so that only the outline of a pedestrian could be seen through it; that plaintiff rolled off the right fender of the car on to the street, landing in the middle of the street-car track.
At the close of the evidence, defendant moved for a directed verdict upon the ground that plaintiff’s own negligence proximately contributed to his injury. Under ordinary conditions, where a person receives injuries by an automobile, when he is crossing a street, mid-block, that would be the proper result, for it would seem that he was walking the street with closed eyes and inattentive mind—neglecting his own safety; but in the instant case we must consider the hour of night, the apparent absence of vehicles on the street, the-rainstorm, and all of the existing conditions at the time of and immediately prior to the accident, in order to determine whether the plaintiff acted as a reasonably prudent and cautious man would act under like or similar circumstances, which is the test in a case of this character. (Barbour v. Shebor, 177 Ala. 304, 58 South. 276; Ivy v. Marx, 205 Ala. 60, 14 A. L. R. 1173, 87 South. 813; Lampe v. Jacobsen, 46 Wash. 533, 90 Pac. 654; Hannigan v. Wright, 5 Penne. (Del.) 537, 63 Atl. 234; Simeone v. Lindsay, 6 Penne. (Del.) 224, 65 Atl. 778; Hennessey v. Taylor, 189 Mass. 583, 4 Ann. Cas. 396, 3 L. R. A. (n. s.) 345, 76 N. E. 224; 28 Cyc. 28.) Applying this test to the testimony, we must conclude that the issue of contributory negligence is a fairly disputed question of fact, and therefore necessary to be determined by a jury. The rule is that, if the issue of contributory negligence is a fairly disputed question of fact, it must be resolved by a jury; on the other hand, if the evidence is clear and convincing so that reasonable men of fair and unbiased minds cannot differ as to its effect, there is nothing for the jury to determine, and the trial court should declare the result as a matter of law. (Massey v. Seller, 45 Or. 267, 77 Pac. 397; Zvanovich v. Gagnon & Co., 45 Mont. 180, 122 Pac. 272; Neilson v. Missoula Creamery Co., supra.)
According to the testimony on behalf of plaintiff and the physical facts, plaintiff had passed the line of danger of defendant’s car—the driveway on the north side of the street-—which was the only place to expect cars coming from the east. Contributory negligence cannot be imputed to him when, under the surrounding circumstances, he had no reason to apprehend danger (Mahnken v. Monmouth County, 62 N. J. L. 404, 41 Atl. 921; Donnelly v. Cowen, 20 Misc. Rep. 100, 45 N. Y. Supp. 71; Texas & Pac. Tel. Co. v. Prince, 36 Tex. Civ. App. 462, 82 S. W. 327; 29 Cyc. 514); and certainly he would have no reason to apprehend an automobile proceeding along the street on any other place than the right-hand driveway. Therefore, it cannot be held as a matter of law that he. was guilty of contributory negligence. The decision of the question was properly in the province of, and submitted to, a jury.
The only questions involved by this appeal are whether or not plaintiff established negligence on the part of defendant, proximately causing his injury; and, did the evidence show the existence of contributory negligence as a matter of law— both of which questions are herein considered and answered.
We recommend the judgment and order be affirmed.
Per Curiam: For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.
Affirmed.
|
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] |
MR. JUSTICE COOPER
delivered the opinion of the court.
On February 18, 1921, there was filed in the office of the clerk of the town of Cascade three petitions, signed by resident taxpayers, praying the town council to call an election for the purpose of determining whether the town should issue bonds in the sum of $20,000 to provide funds for the installation of a sewer system. On February 21, three days after the petitions were filed, Chapter 104 of the Laws of 1921 was signed by the governor, and took effect immediately thereafter. The Act provides, among other things, that only qualified registered electors who are taxpayers upon property in any city or town, and whose names appear on the assessment list for the year next preceding the election, shall be entitled' to vote. Section 4 provides that the Act is to be in full force and effect immediately after its passage and approval. Section 1 reads as follows:
“No election for the issuance of bonds of any school district, or of any town, or city, or county shall be called except upon presentation of a petition therefor to the board of school trustees, or to the town or city council, or to the board of county commissioners, as the case may be, signed by at least twenty per cent of the qualified registered electors who are taxpayers upon property within said school district, town, city ’ or county, and whose names appear on the assessment-roll for the year next preceding such election, praying for the calling of said election. Provided that the board of county commissioners, board of school trustees, town or city council, as the case may be, shall determine as to the suffi ciency of such petition, and the findings of such governing body shall be conclusive against the municipality in favor of any innocent holder of the bonds issued under and by virtue of authority conferred by election provided by this Act.”
At a session of the town council adjourned from February 7 to the 21st, the petitions were considered. The meeting was presided over by Mayor Alfred Briscoe, M. M. Moore, an alderman, acting as secretary. A majority of the members of the council were present and participated in the proceedings. The council found the petitions to be in proper form, signed by the requisite number of qualified taxpayers, and ordered that an election upon the issuance of the bonds be had on April 4. A majority of the taxpayers voted for the bonds. They were advertised and sold. This action was commenced to enjoin their issuance and delivery to the purchaser. Judgment was for the plaintiff. Defendants appeal.
The validity of the bonds depends upon the question whether the petitions which were prepared and filed three days before Chapter 104 took effect invested the town council with jurisdiction to proceed.
Upon whatever authority the town council may have as- sumed to act before Chapter 104 became effective, the statute furnished the only basis for the council's jurisdiction from the moment of its approval. (Shapard v. City of Missoula, 49 Mont. 269, 141 Pac. 544; Hinzeman v. City of Deer Lodge, 58 Mont. 369, 193 Pac. 395; and the numerous decisions of this court cited.) In State ex rel. City of Billings v. Billings Gas Co., 55 Mont. 102, 173 Pac. 799, this court held that a city possessed only such authority as is conferred upon it by legislative declaration, or by necessary implication, and that doubt as to a particular power would be resolved against the city. Shapard v. City of Missoula, supra, involved the creation of a municipal improvement district—a proceeding bearing a close analogy to the one in this case. The necessity for a strict observance of the successive steps to acquire jurisdiction is emphasized by Chief Justice Brantly, as follows: “The resolution of intention is the primary step to be taken in every instance. It is the basis of the whole proceeding. It, with the notice of its adoption, is a condition precedent; nothing may be substituted in its place, and, though the proceedings may in all other respects conform to the requirements of the statute, the omission of it is fatal and renders all the subsequent proceedings nugatory.”
In State ex rel. Jacobson v. Board, 47 Mont. 531, 134 Pac. 291 (construing statutes and their amendments authorizing the creation of new counties), it was held that where an amendafoiy Act changes the very basis of a right, or affects jurisdiction, and provision is not made for a saving clause, proceedings initiated under the old law may not be completed under the new. These principles apply with like force to the present case. (Dillon on Municipal Corporations, 5th ed., sec. 946; McQuillin on Municipal Corporations, secs. 2268, 2318; Rochester v. Alfred Bank, 13 Wis. 432, 80 Am. Dec. 746; Berliner v. Waterloo, 14 Wis. 378.)
As distinguished from the right of the council to call an election of its own volition, Chapter 104 declares that the bonds shall not issue except in pursuance of the mode pointed out, and the manner in which authority is to be exercised. In this instance the petitions were signed and filed with the town clerk before there was a statute upon the subject, and before either the voters or the town authorities knew what effect the new legislation would have upon the proceedings then in progress. The issuance of municipal bonds, in all eases, involves the necessity of levying taxes for their payment. To that extent the property rights of the taxpayers are affected. Upon fundamental principles, obligations subjecting property to an additional burden can be imposed only in pursuance of the law as it stands when the proceeding is initiated. From this it is clear that the moment Chapter 104 was approved by the governor, the power theretofore resting upon the town council to call an election of its own motion came to an end and cut off and nullified all pending proceedings, rendering the election already initiated illegal and void.
Judgment affirmed.
Affirmed.
Mr. Chief Justice Brantly and Associate Justices Holloway and Galen concur.
Associate Justice Reynolds, being absent, takes no part in the foregoing decision.
|
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] |
MR. JUSTICE GALEN
delivered the opinion of the court.
This is an original proceeding in injunction, prosecuted in this court after leave granted by the state upon the relation of its attorney general against the Northern Pacific Railway Company and .eleven other corporate defendants named, constituting all the railroads engaged in intrastate transportation in Montana, and pro forma against the board of railroad commissioners of Montana.
The complaint was filed on January 31, 1921, the object and purpose of the action being the enforcement of Chapter 87, Laws of 1905, as amended by Chapter 250, Laws of 1921 (sec. 6586, Rev. Codes 1921); in short, “the three-cent passenger fare law,” which it is alleged the defendant threatened to violate by the exaction of a per mile passenger fare of three and six-tenths cents under color of an order of the Interstate Commerce Commission issued on January 24, 1921. It appears that suit was brought by the defendants herein, as plaintiffs, in the United States district court for the district of Montana on January 27, 1921, before complaint herein was filed, against the board of railroad commissioners and others charged with the enforcement and execution of the state’s three-cent passenger fare statute, wherein it was sought to have the state law declared void for conflict with the federal Constitution and statutes; and defendants were, on January 27, 1921, restrained from enforcing the state law and from in anywise interfering with the order of the Interstate Commerce Commission. On account of the previous institution of suit in the federal court and the issuance of a restraining order .therein, this court, in accord with the necessity for the orderly administration of justice, stayed the operations of the board of railroad commissioners under the three-cent fare law pending determination of the case in the federal court.
After the complaint was filed herein and order to show cause issued, the defendant carriers sought a removal of this cause to the federal court, but their application in this regard was denied on February 10, 1921; it appearing that section 266 of the Federal Judicial Code (36 Stat. 1162; U. S. Comp. Stats., sec. 1243), clearly authorizes the trial of such a federal question in the state court.
Defendant carriers appeared by demurrer in this cause, alleging lack of jurisdiction over the subject of the action, defect of parties defendant because the United States was not joined as a party, and failure of the complaint to state facts sufficient to constitute a cause of action. Extensive argument was had on all the propositions involved. In common with other courts throughout the country, decision of the question involved was deferred because of the pendency of similar questions in the supreme court of the United States, whose decision on the merits is conclusive.
On February 27, 1922, the supreme court of the United States, through Mr. Chief Justice Taft, announced its decision in two cases, Railroad Commission of Wisconsin et al. v. Chicago, B. & Q. R. R. Co. (No. 206, October term, 1921), 42 Sup. Ct. Rep. 232, and the State of New York ex rel. v. United States et al. (No. 283, October term, 1921), 42 Sup. Ct. Rep. 239. From a review of the facts involved in those eases, and the facts presented herein, there is no room for doubt as to the application of those decisions and their consequent control in the case before us. In New York and in Wisconsin, as in Montana, the railroad carriers, following the proceedings before the Interstate Commerce Commission in Ex parte, 74, Increased Rates, 58 Inter. Com. Com. R. 220, made application to the proper state authorities for an increase in intrastate passenger fares, in conformity with the increase on interstate fares allowed by the Interstate Commerce Commission. The state authorities denied the applications on the ground that a state statute in each instance prescribed a maximum mileage fare for passengers in intrastate traffic. Thereupon the carriers commenced a proceeding before the Interstate Commerce Commission under section 13 of the Act to Regulate Commerce (24 Stat. 379) as amended [June 18, 1910 (4 Fed. Stats. Ann., 2d ed., p. 453; U. S. Comp. Stats., sec. 8581), and February 28, 1920 (41 Stats. 456; Fed. Stats. Ann., 1920 ed., p. 72), for an order directing them to increase the fares in conformity with the percentage increase fixed as a standard by the Interstate Commerce Commission in the rate territories, including Wisconsin, New York and Montana. The federal orders prayed for resulted, after appropriate administrative investigation and hearing, and the fares were raised in each state notwithstanding, and in the face of, the state .statutes. (As to Montana, see Montana Rates & Fares, 60 Inter. Com. Com. R. 61.) In the Wisconsin Case the supreme court of the United States said: “Intrastate rates and the income from them must play a most important part in maintaining an adequate national railway system. Twenty per cent of the gross freight receipts of the railroads of the country are from intrastate traffic, and fifty per cent of the passenger receipts. The ratio of the gross intrastate revenue to the interstate revenue is a little less than one to three. If the rates, on which such receipts are based, are to be fixed at a substantially lower level than in interstate traffic, the share which the intrastate traffic will contribute will be proportionately less. If the railways are to earn a fixed net percentage of income, the lower the intrastate rates, the higher the interstate rates may have to be. The effective operation of the Act [Transportation Act of 1920, 41 Stat. 456-488; Fed. Stats. Ann., 1920 ed., p. 72] will reasonably and justly require that intrastate traffic should pay a fair proportionate share of the cost of maintaining an adequate railway system. Section 15a confers no power on the commission to deal with intrastate rates. What is done under that section is to be done by the commission ‘in the exercise of its powers to prescribe just and reasonable rates,’ i. e., powers derived from previous amendments to the Interstate Commerce Act, which have never been construed or used to embrace the prescribing of intrastate rates. When we turn to paragraph 4, section 13, however, and find the commission for the first time vested with a direct power to remove ‘any undue, unreasonable, or unjust discrimination against interstate or foreign commerce,’ it is impossible to escape the dovetail relation between that provision and the purpose of section 15a. If that purpose is interfered with by a disparity of intrastate rates, the commission is authorized to end the disparity by directly removing it, because it is plainly an ‘undue, unreasonable and unjust discrimination against interstate or foreign commerce,’ within the ordinary meaning of those words. # * * Congress in its control of its interstate commerce system is seeking in the Transportation Act to make the system adequate to the needs of the country by securing for it a reasonable compensatory return for all the work it does. The states are seeking to use that same system for intrastate traffic. That entails large duties and expenditures on the interstate commerce system which may burden it unless compensation is received for the intrastate business reasonably proportionate to that for the interstate business. Congress as the dominant controller of interstate commerce, may therefore, restrain undue limitation of the earning power of the interstate commerce system in doing state work.” •
And in the New York ease the supreme court of the United States said: “We said in Addystone Pipe & Steel Co. v. United States, 175 U. S. 211, 230, [44 L. Ed. 217, 20 Sup. Ct. Rep. 96]: ‘Anything which directly obstructs and thus regulates that commerce which is carried on among the states, whether it is state legislation or private contracts between individuals or corporations should be subject to the power of Congress in the regulation of that commerce.’ (Louisville & Nashville R. R. v. Mottley, 219 U. S. 467, [34 L. R. A. (n. s.) 671, 55 L. Ed. 297, 31 Sup. Ct. Rep. 265]; see, also, Scranton v. Wheeler, 179 U. S. 141, 162, 163, [45 L. Ed. 126, 21 Sup. Ct. Rep. 48]; Union Bridge Co. v. United States, 204 U. S. 364, 400, [51 L. Ed. 523, 27 Sup. Ct. Rep. 367].)
“The main objections to the order are the same as those presented, considered and overruled in the Wisconsin rate case just decided. The evidence in this" case shows that, if the passenger and other rates here in controversy were to continue in force as ruled by the Public Service Commission of New York, the annual gross revenues of the interstate railroads operating in the state of New York from both interstate and intrastate passenger and milk business would be less by nearly twelve millions of dollars than those revenues if the intrastate fares and rates were on the same level as the interstate rates as fixed by the Interstate Commerce Commission. If the lower level of intrastate fares and rates is to be maintained, it will discriminate against interstate commerce, in that it will require higher fares and rates in the interstate commerce of the state to secure the income for which the Interstate Commerce Commission must attempt to provide by fixing rates under section 15 a of the Interstate Commerce Act as amended by section 422 of the Transportation Act of 1920, 41 Stat. 456, 488, in carrying out the declared congressional purpose ‘to provide the people of the United States with adequate transportation.’ As we have just held in the Wisconsin Case, this constitutes ‘undue, unreasonable and unjust discrimination against interstate commerce,’ which is declared to be unlawful and prohibited by section 13, paragraph 4, of the Interstate Commerce Act, as amended by section 416 of the Transportation Act of 1920, 41 Stat. 456, 484, and which the Interstate Commerce Commission is authorized therein . to remove by fixing intrastate rates for the purpose.”
The validity of the orders of the Interstate Commerce Commission is now beyond challenge in consequence of these unanimous decisions of the supreme court of the United States, after almost a year of deliberation in these cases presented, argued and reargued.
As sweeping and revolutionary ,as these decisions may appear to those jealous of states’ rights, the questions herein involved must be accepted as finally determined. Our view as to the proper construction of the federal Constitution and statutes becomes wholly unimportant, and there is nothing left to be done other than to bow to the paramount authority asserted by the federal government.
Accordingly this proceeding is dismissed.
Dismissed.
Mr. Chief Justice Brantly and Associate Justices Cooper and Holloway concur.
|
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ME. COMMISSIONER CALLAWAY
prepared the opinion for the court.
Appeal by one Frederick W. Scheuer from a judgment denying the probate of an alleged lost will, and from an order overruling his motion for a new trial.
In the beginning we are met with the objection on the part of respondents that there is no record before this court upon which it may determine the matters presented by this appeal. This objection is based upon certain alleged fatal irregularities occurring in the preparation and settlement of the statement on motion for a new trial, which are made to appear by a bill of exceptions. This bill of exceptions is not made a part of the statement on motion for a new trial, and under the rule laid down in Beach v. Spokane Ranch & Water Co., 25 Mont. 367, 65 Pac. 106, we cannot consider it. (And see State ex rel. Beach v. District Court, 29 Mont. 265, 74 Pac. 498; Sweeney v. Great Falls & Canada Ry. Co., 11 Mont. 34, 27 Pac. 347; Arnold v. Sinclair, 12 Mont. 248, 29 Pac. 1124.) We shall therefore pass on to the merits of the controversy.
Charles Colbert died on February 14, 1901, in a cabin in Butte. Among his neighbors he was known as a wealthy, but miserly, old bachelor, and it may be said incidentally that sev .eral of these expected at his death to find themselves his beneficiaries. Shortly after his demise the clerk of the court received through the mails, or from an unknown source, an instrument purporting to be the last will and testament of Charles .Colbert. The beneficiaries therein named were William I. Lippincott and John Woolbeater. In due time thereafter Wool-beater filed his petition asking that the will be admitted to probate. Thereupon the state of Montana, through the attorney general, filed a protest against the probate of this alleged will, on the-ground thát it was a forgery. The state' alleged' that Colbert died intestate, leaving no relatives, and that his estate should, under the law, escheat to it. Shortly after this a petition was filed by appellant, Frederick Scheuer, alleging that Colbert made a will in 1896, in which he had named Scheuer and one Lillian E. Burton, now Lillian E. Eluke, his beneficiaries. It was further alleged that this will was in existence at the time of Colbert’s death, but had been destroyed or lost, and therefore could not be produced; that it was witnessed by two persons — John Woolbeater and one John Doe, whose true name and residence were unknown. Thereafter appellant filed an amended petition, asking that the lost will be admitted to probate, and in this petition stated that the subscribing witnesses to the will were John Woolbeater and one John Ackerman, both residents of Butte. Appellant and Lillian E. Eluke also filed objections to the will proposed by Woolbeater. The state of Montana likewise filed its objections against the so-called Scheuer or lost will,, alleging that no such will had ever been made by decedent. Woolbeater did not file any objections to the so-called Scheuer will. Many pleadings were interposed by the contending parties, but the foregoing seems to be sufficient to illustrate their contentions.
■ In order to. simplify the discussion, it will be well to ascertain first what are the essentials in proving a lost will. In every will case under our statute the rule of procedure is that the proponent of the will must first make out a prima facie case; that is to say, must make such proof $,s would entitle the will to probate in tbe absence of a contest. Then the contestant attacks the validity of the will, the proponent defends the same, and the contestant rebuts the testimony of the proponent. Doubtless the proponent may sur-rebut any new testimony adduced for the first time in'rebuttal (Maloney v. King, 30 Mont. 158, 76 Pac. 4), but the contestant has the right to open and close the case (Sections 2340-2346, Code of Civil Procedure; Farleigh v. Kelley, 28 Mont. 421, 72 Pac. 756, 63 L. R. A. 319). This disposes of one of appellant’s principal assignments of error.
The following sections of the Code of Civil Procedure are directly pertinent:
“Sec. 2370. Whenever any will is lost or destroyed the district court must take proof of the execution and validity thereof, and establish the same; notice to all persons interested being first given, as prescribed in regard to proofs of wills as in other cases. All the testimony given must be reduced to writing and signed by the witnesses.
“Sec. 2371. No will shall be proved as a lost or destroyed will, unless the same is proved to have been in existence at the time of the death of the testator, or is shown to have been fraudulently destroyed in the lifetime of the testator, nor unless its provsions are clearly and distinctly proved by at least two credible witnesses.
“Sec. 2372. When a lost will is established, the provisions thereof must be distinctly stated and certified by the judge, under his hand and the seal of the court, and the certificate must be filed and recorded as other wills are filed and recorded, and letters testamentary or of administration, with the will annexed, must be issued thereon in the same manner as upon wills produced and duly proved. The testimony must be reduced to writing, signed, certified and filed as in other cases, and shall have the same effect as evidence as in-ovided in Section 2344.”
At the trial the state and appellant jointly fought the Wool-beater will, and in turn the state and Woolbeater fought the Scheuer will. After the evidence had beén closed as to the "Woolbeater will, tbe appellant undertook to make out a prima facie cp.se. It was incumbent upon him first to show affirmatively either that tbe will be proposed was in existence at the time of tbe death of Colbert, or-that it was fraudulently destroyed during Colbert’s lifetime. This be failed to do. lie did prove prima facie some pertinent facts; for instance, be adduced evidence tending to prove that Colbert executed a will in tbe. spring of 1896, wherein be and Lillian E. Burton were named as beneficiaries; that its contents were made known to at least three persons; that tbe will was seen about Christmas time in 1896, in August, 1899, about three weeks before Colbert’s death, and on the day before bis death. The witness who said be saw tbe will tbe day before Colbert died testified that be went to see Colbert upon important business, and conversed with him about it. Without proceeding further in detail, it is sufficient to say that the testimony of this witness, if true, shows beyond any question that at tbe time when tbe will was last seen it was in Colbert’s possession, and Colbert was then in tbe exercise of bis mental faculties. So far as tbe record discloses, it was never seen again. The better opinion is that under circumstances like tbe foregoing tbe presumption is that tbe testator, having possession of tbe will, and being mentally competent, himself destroyed tbe will animo revocandi. This being tbe case, tbe burden of proof was on tbe proponent appellant to overcome this presumption. (See note to Clark v. Turner, 38 L. R. A. 434, and cases cited.) And tbe proof required to overcome it must be clear, satisfactory and convincing.
An instructive case upon this subject is that of In re Kennedy's Will, 30 Misc. Rep. 1, 62 N. Y. Supp. 1011, in which tbe court said: “Tbe law of this state is well settled that, where no testamentary papers have been found after a careful and exhaustive search, tbe presumption is that tbe decedent herself destroyed tbe wiE with tbe intention of revoking it. (Collyer v. Collyer, 110 N. Y. 481, 18 N. E. 110, 6 Am. St. Rep. 405; Knapp v. Knapp, 10 N. Y. 276; Schultz v. Schultz, 35 N. Y. 653, 91 Am. Dec. 88; Hard v. Ashley, 88 Hun. 103, 34 N. Y. Supp. 583; In re Nichols, 40 Hun. 387; Betts v. Jackson, 6 Wend. 173.) And even in England, where the courts are not controlled, as here, by any positive statutory provisions, the presumption is the same, as shown by the following cases: Colvin v. Fraser, 2 Hagg. Ecc. 266; 3 Phillim. Ecc. 126, 462, 552; 1 Swab. & Tr. 32; 32 Law J. Prob. 202; 36 Law J. Prob. 7; 7 El. & Bl. 886. The only cases where this presumption does not exist will be found to be where the will is clearly shown not to have been in the possession of the testator at the time of his death. (In re Brechtee’s Estate, N. Y. Suit. Dec. 1893, p. 709; Hammersley v. Lockman, 2 Dem. Sur. 524; Schultz v. Schultz, 35 N. Y. 653, 91 Am. Dec. 88; In re Marsh, 45 Hun. 107.) ‘Legal presumptions are founded upon the experience and observation of distinguished jurists as to what is usually found to be the fact resulting from any given circumstances; and, the result being thus ascertained, whenever such circumstances occur, they are prima facie evidence of the fact presumed.’ (Betts v. Jackson, 6 Wend. 173.) In the last-named case the court says that it is a fact that for every will that is publicly destroyed five wills are secretly destroyed by the testator. The law will not speculate as to the motives which may have operated upon the testator’s mind, either in the direction of intestacy or otherwise. The presumption that the decedent destroyed the will animo revocandi is 'so strong as to stand in the place of positive proof. The principle that a state of things once shown to exist will be presumed to continue, and that, therefore, the court should presume that, as in the case of a lost deed, the will remained in existence down to the death of the testator, does not apply to the case of a will. Betts v. Jackson, supra. Bearing in mind, then, this .presumption of law, the will must be absolutely held by me to have been destroyed by the testatrix during her lifetime, unless positive and satisfactory proof to the contrary can be produced, sufficient to rebut and overcome that presumption.”
This case was affirmed by the Supreme Court of New York by a decision which is found in 53 App. Div. 105, 65 N. Y. Supp. 879, aud was again affirmed by tbe Court of Appeals in a decision found in 167 N. Y. 163, 60 N. E. 443, in which the court says: “The burden of proof was upon the proponents, and, the execution of the instruments having been shown, it was claimed that the court should presume that they were in existence at the timé of the death of the testatrix, unless the contrary was established. It is urged that in such cases the law presumes that a fact continuous in its character continues to exist until the contrary is proved, and that there is a presumption that an instrument shown to have been executed continues in existence. This rule, however, has no application to an ambulatory instrument like a will or codicil. Indeed, as to such an instrument the presumption is the other way. It appears that a careful search was made among the papers and effects of the deceased and neither the will nor the codicil could be found. No testamentary papers having been found after a careful and exhaustive search, the presumption arises that the decedent herself destroyed the will and codicil animo revocandi. (Betts v. Jackson, 6 Wend. 173; Collyer v. Collyer, 110 N. Y. 481, 18 N. E. 110, 6 Am. St. Rep. 405; Schultz v. Schultz, 35 N. Y. 653, 91 Am. Dec. 88; Knapp v. Knapp, 10 N. Y. 276; Hard v. Ashley, 88 Hun. 103, 34 N. Y. Supp. 583; Matter of Nichols, 40 Hun. 387.)”
There was no proof adduced that the will was fraudulently destroyed in the testator’s lifetime. Appellant attempted to show that it was fraudulently destroyed after Colbert’s death by Woolbeater and others, presumably for the purpose of showing that the-will was in existence at the time of Colbert’s death. Of course, such testimony would have been competent, but appellant failed to show anything of the kind. He alleged that Woolbeater was a witness to the lost will. Woolbeater denied this, and said he never saw Colbert sign a will at any time! Appellant produced witnesses who swore that Woolbeater, while attending the funeral, said he had the Scheuer or lost will in his pocket at the time. This Woolbeater denied in toto. Appellant apparently places much reliance upon the evidence of those who testify to these statements, bnt obviously this testimony could have but one effect — to impeach Woolbeater, or establish the fact that he had at different times made contradictory statements. It did not tend to prove even remotely that Woolbeater ever had possession of the so-called Scheuer will. It simply proved him unworthy of credit, and tended to show his statements, upon which appellant relied as establishing the existence of the will, to be unworthy of belief. No one ever saw the will in Woolbeater’s possession, so far as the testimony discloses.
Now, as we have heretofore seen, the statute is to the effect that the proponent of a lost will must prove either that the will was actually in existence at the time of the testator’s death, or that it is in existence in contemplation of law. If it was fraudulently destroyed in his lifetime, it is still so in existence. If appellant cannot prove that the will was in existence, either actually or in contemplation of the law, at the time Colbert died, it follows that his case cannot stand. In order to overcome the presumption of revocation which follows from the fact that the will was last seen in Colbert’s possession when he was in possession of his mental faculties, appellant introduced certain declarations of Colbert’s in conjunction with the testimony of witnesses who had seen the will, to the effect that Colbert said he was well satisfied with it. As this question is one of first impression in this court, we deem it necessary to examine it at some length. A respectable line of authorities holds that such declarations are competent as tending to show that, the will being in existence, and the testator being satisfied with it, it is not likely that he destroyed it; in other words, that he would be likely to follow out the inclinations which he had always expressed with respect to it. Nothing can be founded upon a more insecure basis. The will is, according to law, of an ambulatory character. No one except the testator has any rights in it whatsoever. No other person can have any rights in it until the testator is dead. He may change it at pleasure, and human experience has shown that wills are almost always destroyed secretly.
It seems to ns that the better line of authorities is to the effect that such declarations are not admissible at all unless they are a part of the res gestae, and are introduced simply to show the mental condition of the testator when he did the thing which is being inquired into; that is, either when he executed the will or when he destroyed it. If any other rule is followed, it may result in this: A testator makes a will in the presence of witnesses. It is executed with all the formalities of law. These witnesses remember its contents. Other witnesses see it. The testator has expressed himself at various times as being satisfied with it. Then he secretly destroys it. In order that such will be admitted to probate after the death of the testator, it would only be necessary to have these different witnesses'testify to the facts touching its execution, etc., and thus the intention of the testator as to the disposal of his property would be thwarted. It would impose upon a testator the necessity of revoking his will with as much publicity as that with which he created it, and the clause of the statute which provides that a testator may revoke his. will by destroying it might be made nugatory in a given instance.
In the case of Throckmorton v. Holt, 180 U. S. 552, 21 Sup. Ct. 474, 45 L. Ed. 663, the court, speaking through Mr. Justice Peckham, says: “After much reflection upon the subject, we are inclined to the opinion that not only is the weight of authority with the cases which exclude the evidence both before and after the execution, but the principles upon which our law of evidence is founded necessitate that exclusion. The declarations are purely hearsay, being merely unsworn declarations, and, when no part of the res gestae, are not within any of the recognized exceptions admitting evidence of that kind. Although in some of the cases the remark is made that declarations are admissible which tend to show the state of the affections of the deceased as a mental condition, yet they are generally stated in cases where the mental capacity of the deceased is the subject of the inquiry, and in those cases his declarations on that subject are just as likely to aid in answering the question as to mental capacity as those upon any other subject. But if the matter in issue be not the mental capacity of the deceased, then such unsworn declarations, as indicative of the state of his affections, are no more admissible than would be his unsworn declarations as to any other fact.
“When they are not a part of the res gestae, declarations of this nature are excluded, because they are unsworn, being hearsay only, and where they are claimed to be admissible on the ground that they are said to indicate the condition of mind of deceased with regard to his affections, they are still unsworn declarations, and they cannot be admitted if other unsworn declarations are excluded. In other words, there is no ground for an exception in favor of the admissibility of declarations of a deceased person as to the state of his affections, when the mental or testamentary capacity of the deceased is not in issue. * * * The law cannot, therefore, be regarded as settled in England that, even in the case of a lost will, declarations of the testator made after its execution are to be admitted as evidence of its contents. It is also proper to call attention to the fact that all the judges participating in the decision of Sugdens Case were entirely satisfied with the proof of the contents of the lost will, wholly aside from evidence of these declarations. While the case is not like the one before us, inasmuch as the inquiry here is not in regard to the contents of a lost will, yet it might, perhaps, be urged with some force that, if declarations of that kind were admissible, the evidence now before us is competent, and was properly admitted. We are, however, convinced that the true rule excludes evidence of the kind we are considering. We remain of the opinion that the declarations come within no exception to the law excluding hearsay evidence upon the trial of an action, and we think the exceptions should not be enlarged to admit the evidence. Where the issue is not one in regard to the mental capacity of the alleged testator to make a will, his declarations upon the subject cannot be said to be declarations made against interest, such as declarations made by an individual while in possession of property, in disparagement of his absolute ownership. Such evidence has been admitted as declarations against interest, or as characterizing possession, but the same declarations, made after a conveyance of the land, would be inadmissible as mere hearsay, and in no deg’ree as declarations against interest. Declarations made by an alleged testator before or after the date of the paper are not declarations against interest, because they can have no effect upon his interest. The will would not take effect until after his death, and before that time he could revoke it or make another, and it would still -be immaterial evidence even if he did neither. * * *
“No inference is generally more uncertain ox unreliable than that which is sought to be drawn upon the question of the genuineness of a will from the alleged condition of a testator’s mind towards relatives or others, as evidenced by his declarations. It is everyday experience that declarations of that nature are to the last degree unreliable as a basis for an inference as to probable testamentary disposition of property. Those who thought by reason of such declarations that they would certainly be remembered in the will of the testator are so freqeuently disappointed * * * that it would seem exceedingly unsafe to permit a jury to draw an inference based upon such evidence, relative to the genuine character of the instrument propounded as a will.”
Justice O’Brien, delivering the opinion, commenting on this case in Re Kennedy's Will, supra, said: “As I read that case, it is a decision of the highest court in the land that the declarations of the deceased, when not a part of the res gestae, are not admissible to prove the execution of a will or its revocation, or rebutting the presumption of revocation from the fact that no will is found after death.”
And in the case of In re Calkins, 112 Cal. 296, 44 Pac. 577, •the court said: “The respondent does not claim that there is any direct evidence in support of the verdict outside of the evidence of certain declarations of the testatrix. The evidence chiefly relied upon by him consists of certain declarations made by her, which were admitted in evidence over the objection of the proponent. To the extent that these declarations at or prior to the making of the Avill afforded any evidence bearing upon the state of the testatrix’s mind at the time of the execution of the will — her mental capacity, the condition of her mind toward the object of her bounty, as well as toward the persons by whom she Avas surrounded, and the correspondence of her acts Avith the feelings and purposes entertained by her at the time she executed the will — they were properly admitted, and were entitled to consideration by the jury; but to the extent that they purported to be declarations of the acts of others, or of her oavu acts, they were but matters of hearsay merely, whose truth rested in the veracity of the utterer, and upon Avhich there Avas no opportunity of cross-examination or of explanation by the party aaIio had uttered them, and Avere not entitled to any Aveight by the jury, and cannot be considered for the purpose of sustaining their verdict. (Shailer v. Bumstead, 99 Mass. 112; Potter v. Baldwin, 133 Mass. 427; Bush v. Bush, 87 Mo. 480; Jones v. Roberts, 37 Mo. App. 163; Waterman v. Whitney, 11 N. Y. 157, 62 Am. Dec. 71; Marx v. McGlynn, 88 N. Y. 357; Matter of Palmateer, 78 Hun. 43, 28 N. Y. Supp. 1062; Griffith v. Diffenderffer, 50 Md. 466.)” (Wells v. Wells, 144 Mo. 198, 45 S. W. 1095.)
It thus appears that appellant’s case, upon this phase of it, was Avholly insufficient to overcome the presumption of revocation.
One of the grounds stated by apjJellant in the notice of intention to move for a new trial Avas that of newly discovered evidence, which could not with reasonable diligence have been discoAnred and produced at the trial. In support of this ground he filed the affidavit of one John Kempfer, Avho stated, in substance, that he was a resident of Butte, and was acquainted Avith Charles Colbert for several years prior to his death; that Colbert had shown him a will, signed by Colbert as testator and by John Woolbeater and William Ackerman as Avitnesses, in which Frederick Scheuer and Lillian E. Burton were the beneficiaries; that affiant was familiar with its contents, substantially; that prior to the time of the death of Colbert affiant went from Butte to East Helena, where he remained until about the 8th of March, 1901, which was subsequent to the death of Colbert; that upon his return to Butte he occupied a house on the Emory placer claim, the property of Colbert, near a cabin occupied at that time by Woolbeater; that shortly after his return from East Helena, and after the date of his occupation of the house on the Emory placer, .Woolbeater called upon him, and in a conversation concerning the death of Colbert he asked Woolbeater what had become of the will made by Colbert during the year 1896, in which Frederick Scheuer and Lillie Burton were named as beneficiaries, and that thereupon Woolbeater withdrew the will from his pocket, and showed it to affiant, who thereupon read it over, and saw that it was the same paper which had been shown to him by Colbert; that it was in the same condition as when last shown to him by Colbert, and bore the genuine signature of Charles Colbert as testator and the names of John Wool-beater and William Ackerman as witnesses; that the said paper was dated in the year 1896, written with a pen and ink upon ordinary legal cap paper, and was the same paper that had been previously shown to him. He further deposed that he had never mentioned the matters contained in his affidavit to any one until after the trial of this action, and said that the paper was in existence at least three weeks or a month subsequent to the death of Colbert, being in the possession of Woolbeater, intact, at that time.
In support of this affidavit appellant filed an affidavit in which he deposed that he had discovered the evidence stated in the affidavit of Kempfer since the trial; that he was unable to discover it prior to the trial, “although he had inquired of different persons living in the vicinity, and of every person, who he thought had any knowledge of the facts or circumstances concerning the death of Colbert, as to whether the said will offered by him for probate was in existence at and subsequent to the date of Colbert’s death, but that he was unable to discover any other evidence than that which was offered upon the trial.”
Rehearing granted January 23, 1905.
(Submitted March 14, 1905. Decided March 31, 1905.)
New Trial — Newly Discovered Evidence — Affidavits—Insufficiency.
1. The affidavit of proponent in support of a motion for a new trial on the ground of newly discovered evidence, in proceedings to establish a lost will, averred that since the dismissal of his petition he had discovered a witness wlio would testify that he was shown the will by testator, and that he saw it after his death; that proponent was unable to discover the evidence prior to the trial, although he had inquired of different persons living in the vicinity, and every person whom he thought had any knowledge of the circumstances. The affidavit of the witness in question showed that prior to the death of testator he left the vicinity, but returned after testator’s death and occupied a house on testator’s property. It did not appear how the evidence was discovered, or that the witness had not lived in the vicinity from a few weeks after testator’s death to the time of the trial, jlelcl^ that there was not a sufficient showing of diligence on the part of the movant to entitle him to a new trial.
The affidavit shows that appellant has been diligent in procuring evidence — in fact, has done all in his power to procure it; that the new evidence offered was upon a material matter; that it ivas not cumulative, and not of an impeaching nature. Indeed, it was the very essential evidence which the appellant lacked at the trial, and by reason of the absence of which he was unable to proceed with his proof. In appellant’s affidavit he also averred that he could produce the said Kempfer as a witness upon the trial, and that Kempfer would testify to the facts alleged in his affidavit. We cannot say that the new evidence will not probably change the result if a new trial is granted. The witness Lillian Eluke, nee Lillian Burton, made an affidavit to the same effect as that of appellant. The state made no attempt to contradict these affidavits in any way. They stand admitted in the record, and import verity. With this uncontradicted showing upon a matter of the utmost materiality, we think the court abused its discretion in not granting the motion for a new trial.
Many other errors are assigned by appellant, but, in view of what has been said in the foregoing, we do not think it necessary to discuss them.
Eor the reasons given, we think the' judgment and order should be reversed, and the cause remanded for a new trial.
Per Curiam. — -For the reasons given in the foregoing o; union, the judgment and order are reversed, and the cause is remanded.
Reversed and remanded.
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MR. COMMISSIONER POORMAN
prepared the following opinion for the court:
This is an action in conversion. The plaintiff had judgment in the district court, and from this judgment and an order over ruling defendant’s motion for a new trial, tbe defendant appeals.
1* The defendant purchased certain personal property from one Wadsworth. The defendant sold a part of this property, and plaintiff then commenced this action to recover from the defendant the value of the property, alleging conversion thereof.
It appears from the evidence that the plaintiff, Potter, in August, 1900, gave to Wadsworth an absolute bill of sale of the property in question. Afterwards, on January 11, 1901, Potter executed to Wadsworth a chattel mortgage on this same property to secure the payment of a note for the sum of $200, executed and delivered by Potter to Wadsworth on that day, and due three months after date, with interest. The mortgage is in the usual form, and provides that the mortgagee may take possession of the property under the conditions usually provided in such,, nibrtgages. It is admitted that on March 1, 1901, Wadsworth took absolute possession of the property, locked the building in which it was kept, and refused admittance to Potter. The right of the mortgagee to sixch possession was not disputed. On March 5, 1901, the defendant, Lohse, purchased this property from Wadsworth, paying $247.50 therefor, and on the succeeding day, through his ageut, took possession of it. -Potter at the time was present, and made no objection to the transfer. Plaintiff, Potter, has not paid nor offered to pay the mortgage indebtedness. It appears, therefore, that at the time of the sale to defendant the mortgagee was in possession of this property, claiming to be the owner thereof; and it does not appear from'this record that the plaintiff, at the time the defendant acquired possession of the property, or at the time this action was commenced, had the right to the possession thereof.
The action of conversion under our Code is the same as the common-law action of trover. In Harrington v. Stromberg-Mullins Co., 29 Mont. 157, 74 Pac. 413, this court said: “The party complaining ‘must have had, when the goods were taken, a general or special property in them, and a right to the immediate possession.’ ” (Glass v. Basin & Bay State M. Co., 31 Mont. 21, 77 Pac. 302; Wetzel v. Power, 5 Mont. 214, 2 Pac. 338; Reardon v. Patterson, 19 Mont. 231, 47 Pac. 956; Binnian v. Baker, 6 Wash. 50, 32 Pac. 1008; Swenson v. Kleinschmidt, 10 Mont. 473, 26 Pac. 198; Laubenheimer v. Bach, Cory & Co., 19 Mont. 177, 47 Pac. 803; Kennett v. Peters, 54 Ivan. 119, 37 Pac. 999, 45 Am. St. Rep. 274; 21 Ency. Pl. and Pr. 1062.)
The mortgagor undoubtedly has his remedy for any damage caused by fraud or injury to or sacrifice of the property by the mortgagee in possession, or by'any one in collusion with him; but no such facts appear in this case.
2. At the trial it was claimed by the plaintiff that this bill of sale which he executed to Wadsworth was, in effect, a mortgage, and that it was canceled by the subsequent mortgage. The defendant, however, testified that he purchased the property believing that Wadsworth was the sole owner, and asked permission to amend his pleading; that he be subrogated to the rights of Wadsworth as mortgagee, and permitted to set up a judgment which he held against the plaintiff, and that Wadsworth be made a party to the suit. This the court denied.
The theory of the plaintiff in this action is that Wadsworth was only a mortgagee in possession of the property. Wadsworth was a witness in the case, and testified: “My reason for selling the horses to Lohse was that I wanted to get my money out of the bill of sale, and did not want to be bothered with a lawsuit. That is how Lohse and I arrived at the particular sum of $247.50. It was the amount of Potter’s indebtedness to me. That amount was just reckoned up — itemized up.” It appears from this and other evidence of Wadsworth that the amount of money that he received from his grantee, Lohse, was the amount Wadsworth claimed to be due to him from the plaintiff, Potter. This record shows that the mortgagee, at the time this suit was tried, had not disposed of the note described in this mortgage, and that the same was then past due; and it further appears that defendant, Lohse, had not made voluntary payment of plaintiff- Potter’s debts.
The rule with reference to pledgees is, “A bona fide purchaser of property for value from a pledgee of the same, who sold it in violation of the pledge, succeeds to all the rights of the pledgee.” (Brittan v. Oakland Bank of Savings, 124 Cal. 282, 57 Pac. 84, 71 Am. St. Rep. 58; Williams v. Ashe, 111 Cal. 180, 43 Pac. 595.) This same principle was recognized by this court in Reardon v. Patterson et al., 19 Mont. 231, 47 Pac. 956. It is difficult to distinguish in principle, then, between a purchase from a pledgee and the purchase from the mortgagee by the defendant, Lohse, under the circumstances of this case. “Where the reason is the same the rule should be the same” (Civil Code, Section 4602) to the extent of permitting Lohse, the purchaser from the mortgagee, to succeed to the rights of his grantor with respect to the property purchased. It is true there was no contract between the mortgagee and his vendee that this note and mortgage should be assigned to the vendee, but “the right of subrogation or of equitable assignment is not founded upon contract, nor upon the absence of contract, but is founded upon the facts and circumstances of a particular case and upon principles of natural justice.” (See’note to Crumlish's Administrator v. Improvement Co., (Va.) 23 L. R. A. 120.)
It is also true that subrogation is an application of the principles of equity, but in this state an equitable defense may be pleaded to a legal cause of action. (Boone, Code Pleading, par. 78; Power v. Sla, 24 Mont. 243, 61 Pac. 468.)
It is likewise true that the defenses of absolute’ ownership and of rights as a mortgagee' are inconsistent; but as was stated in Ball v. Gussenhoven, 29 Mont. 321, 74 Pac. 871: “'We recognize the rule that a defendant is entitled to plead in the same answer as many defenses as he may wish to quesent, even though they are inconsistent with each other,’ and is entitled to present and rely upon any of such defenses upon the -trial of the case; subject, however, to proper instructions to the jury as to their proper effect in each ease.”
The judgment which the defendant, Lohse, holds against the plaintiff, Potter, cannot properly be pleaded in this action as a setoff' or counterclaim. Under Section 691 of the Code of Civil Procedure, in an action in tort the defendant cannot counterclaim any new matter not arising out of the transaction set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the action. (Davis v. Frederick, 6 Mont. 300, 12 Pac. 664.)
The converse of this proposition was held in Collier v. Ervin, 3 Mont. 142, where this court said: “A counterclaim founded upon a tort cannot be set off against a claim founded upon contract.” The court, further construing the statute, says: “The counterclaim must arise out of the transaction set forth in the complaint as the foundation, of plaintiff’s claim, or connected with the subject of the action. * * * The words in our statute ‘subject of the action’ should be construed, not as relating to the thing itself about which the controversy has arisen, but as referring rather to the origin and grounds of the plaintiff’s right to recover or obtain the relief asked.” (See, also, Boley v. Griswold, 2 Mont. 447; Wells v. Clarkson, 2 Mont. 230, 339; Roush v. Fort, 3 Mont. 175; Wells, Fargo & Co. v. Clarkson, 5 Mont. 336, 5 Pac. 894; Story & Isham Commercial Co. v. Story, 100 Cal. 30, 34 Pac. 671.)
Section 501, Code of Civil Procedure of New York, is the same as Section 691, Code of Civil Procedure of Montana. In construing this section the Supreme Court of New York, in Eckert v. Gallien, (Sup.) 53 N. Y. Supp. 879, says: “The action is in tort, and none of the counterclaims state a cause of action arising out of the contract or transaction set forth in the complaint, or connected with the subject of the action. They are therefore not proper counterclaims in such an action.” (Ferris v. Armstrong Mfg. Co., (Sup.) 10 N. Y. Supp. 750; Chambers v. Lewis, 11 Abb. Prac. 210; People v. Dennison, 84 N. Y. 272, 59 How. Prac. 157; Pattison v. Richards, 22 Barb. 143; Smith v. Hall, 67 N. Y. 48.)
In Lehmair v. Griswold, 40 N. Y. Super. Ct. 100, the court says: “The words ‘the subject of the action’ mean the facts constituting plaintiff’s cause of action.”
The remedy of the defendant, in the event of a judgment being taken against him in this case, is by bill in equity, or other appropriate proceeding to offset the one judgment against the other. (Russell v. Conway, 11 Cal. 93; Duff v. Hobbs, 19 Cal. 659; Lyon, Adm'r, v. Petty, 65 Cal. 322, 4 Pac. 103; Duncan v. Bloomstock, 13 Am. Dec. 728, 2 McCord, 318; Hovey v. Morrill, 61 N. H. 9, 60 Am. Rep. 315; Quick, Adm'r, v. Durham, 115 Ind. 302, 16 N. E. 601; Puett v. Beard, 86 Ind. 172, 44 Am. Rep. 280; Green v. Conrad, 114 Mo. 651, 21 S. W. 839.)
The assignment of the note and mortgage to defendant being made by operation of law, Wadsworth is not a necessary party to the suit in order to give the defendant complete protection as against the plaintiff, and the court therefore did not err in refusing to make Wadsworth a party at the instance of the defendant over the objection of plaintiff.
Plaintiff’s instruction No. 1, given by the court, is as follows: “The jury are instructed that in this case the action is one which is called conversion — that is, the plaintiff alleges that the defendant Lohse has taken plaintiff’s property from him, and converted the same to his (Lohse’s) own use. If you find that the plaintiff was the owner of the property at the time of the taking of said property by the said Lohse, and that Lohse had knowledge of the plaintiff’s rights therein and thereto, then you will find for the plaintiff and against the defendant for such amount as you find the value of the property under the evidence to have been, at the time of the said taking, in the market at Meaderville.”- This instruction entirely. ignores all question as to the plaintiff’s right of possession, and is therefore erroneous.
Plaintiff’s instructions Nos. 2 and 3 were given by the court upon the theory that the defendant was not entitled to be subrogated to the rights of the mortgagee, and would therefore be inapplicable upon a retrial of this case. Instruction No. 3 is also erroneous in that it instructs the jury that the taking of the-mortgage by Wadsworth was equivalent to an acknowedgment of plaintiff’s title by the defendant. This mortgage was executed on the 11th of January, and the purchase by the defendant from Wadsworth was not made until the 5th and 6th of March following.
Defendant’s instruction No. 1, as given by the court, is also erroneous. The words therein, “and you further find that said Wadsworth owned the same,” should be stricken from the instruction, and the- words “was present at and” should be inserted in the instruction immediately following the name “Potter” and before the word “knew.”
Defendant’s instruction No. 2, which the court refused to give, is incomplete. To make it sufficient, there should be inserted therein the word “plaintiff’s” immediately preceding the word “title,” where the same occurs in the phrase “notice of title”; also the phrase “but in plaintiff” should be inserted immediately following the name “Wadsworth,” and preceding the word “and,” where the same occurs in the phrase “said Wads-worth, and unless he has done so.”
The other errors complained of can hardly arise upon a retrial.
We think the judgment and order appealed from should be reversed, and the cause remanded for a new .trial.
Per Curiam: — -Por the reasons stated in the foregoing opinion, the judgment and order are reversed, and the cause is remanded for a new trial.
Mr. Chiee Justice Bbantly, not having heard the argument, takes no part in this decision.
|
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] |
MR .COMMISSIONED POODMAN
prepared the following opinion for the court:
This is an appeal from an order of the district court allowing an account of the administrator. In July of 1902 John H. Leyson, administrator with the will annexed of the estate of Andrew J. Davis, rendered and presented for settlement and filed in the district court his seventh annual account of his administration of said estate. Afterwards, in August, 1902, Henry A. Doot, Ellen S. Coram, Henry A. Eoot, administrator of the estate of Sarah Maria Cummings, deceased, and Joseph A. Coram, being parties in interest in the said estate, and a part of the distributees thereof, filed in the court their certain objections in writing to this account, and a hearing was had thereon. At the hearing many of the items objected to were withdrawn, and the only ones remaining to which objection is here urged are those of $1,250 paid by the administrator to E. N. Harwood “for legal counsel,” and $12,500 paid by him for attorney fees to Eorbis & Mattison. Objection is also made to the account as a whole, on the ground that it is not sufficiently itemized to show the condition of the estate. In December, 1902, the court made an order allowing the account so far as it related to the items not withdrawn, and from this order the objectors appeal.
1. The facts connected with the Davis estate have been so many times stated by this and other courts that a detailed statement is not here deemed necessary. The student of these matters will find a full narrative of them by referring to the following cases: In re Davis’ Estate, 11 Mont. 1, 27 Pac. 342; Id., 11 Mont. 196, 28 Pac. 645; Id., 11 Mont. 216, 28 Pac. 650; Id., 15 Mont. 347, 39 Pac. 292; Id. 27 Mont. 235, 70 Pac. 721; Id., 27 Mont. 490, 71 Pac. 757; Harris, Adm’r, v. Root et al., 28 Mont. 159, 72 Pac. 429; Davis v. Davis et al., (C. C.) 89 Fed. 532; Ingersoll v. Coram et al., (C. C.) 127 Fed. 418.
It is sufficient for the purpose of this appeal to say that John A. Davis, the proponent of the will, died pending the contest, and his son, John E. Davis, was appointed administrator of his estate. Erwin Davis had in the meantime made an agreement with John A. Davis, under the terms of which Erwin was to receive one-half of the estate which should pass to John A. Davis under the will, and under the provisions of the will practically the entire estate was to go to John A. Davis. A compromise agreement was subsequently entered into, under the terms of which a certain part of the estate was to go to the heirs of John A. Davis, and the balance of the estate was to go to the heirs of Andrew J. Davis other than Erwin. John H. Leyson is administrator of the latter estate. E. N. Harwood was and is the counsel for Administrator John E. Davis, and Eorbis & Mattison were and are the counsel for Administrator Leyson. The specific objection made to the item of $1,250 claimed to have been paid E. N. Harwood as counsel fee is that the evidence does not dis close that it is a proper charge against the estate, and that the same is not sufficiently itemized in the account. The litigation to which reference is made in the record are the cases above referred to as reported in the 27th Montana (70 and 71 Pac.), 28th Montana (72 Pac.), 89th Federal and 127th Federal.
In this litigation Judge Harwood represented interests not in accord with the agreement whereby the will was probated, and under which the distributees of the estate of Andrew J. Davis claimed, but directly antagonistic to the claims and demands of some or all of these distributees as to their distributive shares in the estate. And this litigation continued for years, and, still continuing, covers nearly every phase of the Davis estate. This fact alone is sufficient to prevent recovery of this item of expense. An administrator cannot charge an estate with expense incurred in advising with counsel who he knows is at the time representing interests and demands antagonistic to the claims of the heirs, as such, and with respect to those very interests. He cannot in any case or in any manner, either by advice or otherwise, litigate any claim or demand of one legatee or heir at the expense of the estate (In re Dewar' s Estate, 10 Mont. 422, 25 Pac. 1025), for this would be compelling a legatee or heir to pay for the institution and maintenance of litigation directed against himself; and this principle applies to litigation of -matters in difference between parties who are not heirs or legatees and those who are. The administrator may make himself personally liable, but he cannot be permitted to charge the same back to the estate. On question of allowance of attorney’s fees, see Royer’s Appeal, 13 Pa. St. 569; In re Archer’s Estate, (Sur.) 23 N. Y. Supp. 1041; In re Byrne’s Estate, 122 Cal. 260, 54 Pac. 957; Wysong v. Nealis, 13 Ind. App. 165, 41 N. E. 388; Woerner’s Amer. Law Administration, 2d Ed., Sec. 515; Estate of Page, 57 Cal. 238.
2. The objection made to the item of $12,500 paid to Eorbis & Mattison is that it is not sufficiently itemized in the account filed, and that it is not supported by the evidence. The statement in the account of the administrator is: “By Forbis & Mattison, atty. fees from Nov. 1st, ’99, to May 1st, ’02 (2y2 years) $12,500.” It appears from the record and is admitted tbat Eorbis & Mattison were the regular attorneys for tbis estate. It is therefore presumed tbat tbey appeared for tbe administrator in all matters of litigation requiring an attorney, and that tbey counseled him on all matters in which be required counsel. Tbe account is for a definite term, and, we think, Sufficiently itemized, taking into account tbe circumstances of this estate as appears from tbe record. Tbe evidence supporting this account is to' tbe effect tbat tbe condition of tbe estate occupied tbe entire time of an attorney, and the mass of litigation, involving various phases of tbis estate, tends strongly to corroborate this evidence. It is in evidence in this cause that nearly every step in tbe administration of tbis estate involved litigation in some form. An attorney and counsel fee of $5,000 per year in an estate of tbis magnitude, involving all tbis litigation — a continued succession of conflicting claims and interests — is not unreasonable, and we cannot say that tbe court abused its discretion in allowing tbis claim. We think tbe action of tbe court with respect thereto should be sustained.
3. It is also objected tbat tbe administrator, in tbe accohnt filed, has not charged himself with tbe appraised value of tbe entire estate, but has simply given a statement of tbe receipts and disbursements of money since bis last report. We are inclined to adopt tbe view of counsel for respondents tbat these intermediate accounts are only to inform tbe court and tbe interested parties of tbe receipts and disbursements and changes in tbe property from time to time, and it is not tbe intention of the law tbat the administrator should in every account give a full inventory of tbe assets of tbe estate. This properly belongs to tbe inventory which is filed, except tbe actual cash on band, which the law appears to contemplate he should carry forward in his several accounts rendered to tbe court. Tbe account filed in tbis case, we think, complies sufficiently with tbe requirement of Sections 2180 et seq., Code of Civil Procedure.
We think this order should be reversed so far as it relates to the allowance of this item of expense for the $1,250 paid for counsel to E. N. Harwood, and that otherwise the order should be affirmed.
Rehearing denied January 16, 1905.
¡Per Curiam. — It is ordered that the cause be remanded to the district court, with direction to that court to modify its order approving the account of the administrator by striking therefrom the item of $1,250 allowed as for counsel fees paid by the administrator to E. N. Harwood, and, as so modified, that the order be affirmed.
Modified and affirmed.
|
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Per Curiam.
-Appellant’s application for an injunction pending appeal is hereby denied.
|
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] |
MR. COMMISSIONER.OLAYBERG
prepared the opinion for the court.
Appeal by defendant from a judgment and an order overruling its motion for a new trial.
Plaintiffs claim to be the owners of certain agricultural lands situated on Deer Lodge river below defendant’s concentrating, smelting and reduction plant, and allege that defendant has polluted the water of Silver Bow creek, a tributary of Deer Lodge river, by the operation of its plant, to such an extent as to render such waters unfit for irrigation or domestic use; that the refuse and deleterious substances deposited in the stream by defendant have accumulated on their land and injured their crops, and have rendered the soil unproductive and sterile, per manently injuring the same. They pray judgment for $5,000 for deprivation of the use of the waters for domestic purposes for five years, for $5,000 for injury to and destruction of their cropis during’ the same time, for $10,000 for permanent injury done their land by defendant, and for an injunction against the further pollution, and for costs and general relief.
Defendant, by answer, denies most of the allegations in the complaint; admits that defendant for a period of over five years has operated a concentrating, smelting and reduction plant at a point upon one of the tributaries of the stream above plaintiff’s land; admits that since the year 1897 defendant has so operated said plant, and that the waters flowing therefrom “have been impregnated with and have carried away tailings and other substances, and refuse matter produced in and resulting from such smelting operations, and that such tailings and other refuse matter have been carried by the said waters and deposited along the course of said stream and of Deer Lodge river, into which said Silver Bow creek flows, and upon the banks thereof wherever said waters have been accustomed to flow”; and alleges that it is lawful for it so to do. As an affirmative defense, defendant sets forth the prescriptive right to commit the acts above stated. It then pleads Section 29, Code of Civil Procedure of 1887, Sections 484 and 524, Code of Civil Procedure of Montana, Subdivision 1, Section 513, Code of Civil Procedure, as amended by House Bill 75, Session Laws 1901, page 157, as defense by way of the statutes of limitation. The plaintiffs, by replication, deny all the affirmative allegations of new matter contained in the answer.
1. Under the facts disclosed by the record it is apparent that the nuisance complained of as causing the injury for which damages are sought arose from individual acts of different mining and reduction companies operating mines and plants in the city of Butte, whereby they have discharged deleterious and poisonous matter into the waters of Silver Bow creek, a tributary of Deer Lodge river; that the nuisance was merely incidental to and the result of such acts; and that the injury was not caused by tlie joint acts of defendant and any other corporation or person.
Under the following authorities the defendant was liable to plaintiffs for whatever damage it caused by its own wrongful acts, and none other: Chipman v. Palmer, 77 N. Y. 51, 33 Am Rep. 566; Harley v. Merrill Brick Co., 83 Iowa, 73, 48 N. W. 1000; Sellick v. Hall, 47 Conn. 260; Loughran v. City of Des Moines, 72 Iowa, 382, 34 N. W. 172; Martinowsky v. City of Hannibal, 35 Mo. App. 70; Little Schuylkill Nav. Co. v. Richards' Adm'r, 57 Pa. 142, 98 Am. Dec. 209; Miller v. Highland Ditch Co., 87 Cal. 430, 25 Pac. 550, 22 Am. St. Rep. 254; Brown v. McAllister, 39 Cal. 573; Westgate v. Carr, 43 Ill. 450; Partenheimer v. Van Order, 20 Barb. 479; Lull v. Fox & Wis. Imp. Co., 19 Wis. 100; Brennan v. Corsicana Cotton-Oil Co., (Tex. Civ. App.) 44 S. W. 588; Van Steenburgh v. Tobias, 17 Wend. 562, 31 Am. Dec. 310; Auchmuty v. Ham, 1 Denio, 495; Keyes v. L. Y. G. W. & W. Co., 53 Cal. 724; Sloggy v. Dilworth, 38 Minn. 179, 36 N. W. 451, 8 Am. St. Rep. 656.
Defendant could not be held to respond in damages for the entire injury occasioned to plaintiffs by the nuisance complained of, because confessedly it only contributed to this injury. The full damage, therefore, must be apportioned among all the wrongdoers. The mere fact that it is difficult to determine vffiat part of the damage was occasioned by acts of the defendant is no objection to the relief asked. (Chipman v. Palmer, 77 N. Y. 51, 33 Am. Rep. 566; Harley v. Merrill Brick Co., 83 Iowa, 73, 48 N. W. 1000; Sellick v. Hall, 47 Conn. 260; Lull v. Improvement Co., 19 Wis. 101.) The Supreme Court of Connecticut, in Sellick v. Hall, supra, uses the following very pertinent language: “It may be very difficult for a jury to determine just how much damage the defendant is liable for and how much should be left for the city to answer for; but this is no more difficult of ascertainment than many questions which juries are called upon to decide. They must use their best judgment, and make their result, if not an abso lutely accurate one, an approximation to accuracy. And this is the best that human tribunals can do in many cases. If the plaintiff is entitled to damages and the defendant liable for them, the one is not to be denied all damages, nor the other loaded with damages to which he is not legally liable, simply because the exact ascertainment of the proper amount is a matter of practical difficulty.”
Like all other case for the recovery of damages in actions upon torts, a jury must be trusted to arrive at a fair estimate of the damages after a full consideration of all the evidence which may be introduced upon the subject. However, competent-evidence must be produced of all facts necessary to a recovery, upon which the jury can base a reasonably reliable conclusion; nothing can be left to mere conjecture.
2. In this case the injury to plaintiffs’ land is alleged to be permanent; that its value is absolutely destroyed for agricultural purposes by the deposit of refuse and poisonous matter on the surface. Plaintiffs sought to recover as their damages for this injury the difference between the value of the land prior to the injury and its value after the injury. The court coincided with this view, and so instructed the jury, and we have no doubt but that this rule of damages for the permanent injury to the land was correct. (Sweeny v. Montana Central Ry., 19 Mont. 163, 47 Pac. 791; Jeffersonville, etc. R. R. Co. v. Esterle, 13 Bush. 667; Kemper v. City of Louisville, 14 Bush. 87; Babb v. Curators University of Missouri, 40 Mo. App. 173.)
Plaintiffs also allege damage caused by pollution of the water to such an extent as to render it unfit for domestic use and watering stock, but introduce no evidence of such damage. Plaintiffs thereby waived recovery upon such allegation.
They also claim damage for injury to their crops for various years; they introduced proof thereon, and the court instructed the jury with reference thereto. The verdict was a general one for $3,000 damages, and rendered by the jury under instructions of the court allowing a recovery for permanent injury to the land and also for injury to the crops. This verdict may, and doubtless does, include damages for both the above causes.
Generally, the recovery of damages for a total and permanent injury to land includes all injuries — past, present and future. It practically amounts to an allowance to take the land upon which the nuisance has been committed for those purposes upon payment of a reasonable compensation therefor, and the amount fixed as damages by the jury and court will be treated as such reasonable compensation. Put in this case the permanent and total injury to the land for agricultural purposes did not immediately result from the nuisance itself, but several years elapsed before such injury was completed. Therefore, .until the land was thus totally and permanently injured, plaintiffs would be entitled to recover damages for the yearly injury to their crops caused by the continuing nuisance.
When the land was totally and permanently injured for agricultural purposes, under the above authorities, no damages could be allowed for injury to the crops ensuing thereafter. Plaintiff thereby becomes compensated for everything which he could produce by the use of the land. In order, however, to allow plaintiffs to recover for injury to the crops and the permanent injury to the same land, the complaint and proof should show distinctly and unequivocally the date when the permanent injury to the land took place, and the annual injury to crops prior to that date. It may be that different portions of the land became permanently injured at different dates. This should also appear.
Put, again, the evidence discloses that plaintiffs claim to own 240 acres of land, and shows that only 10 acres were so totally and permanently injured. There is neither allegation nor proof as to whether the remaining 110 acres are susceptible of raising crops, or whether, if so, any crops thereon had ever been injured. Plaintiffs might recover for such total and permanent injury to the 10 acres, and also for injuries to crops on the remainder, but would be compelled to allege the proper facts in that regard to warrant a recovery.
The complaint and evidence in this case are very general, and it cannot be ascertained from either when such total and permanent injury to any of the land was actually completed. It must have occurred before the suit was commenced, or plaintiffs could not recover for the same. The record discloses that plaintiffs were permitted to recover for injuries to crops up to the date of the commencement of the suit, so that, if plaintiffs were entitled to recover for the permanent injury to the same land, some length of time must have elapsed before the commencement of the suit for Avliich plaintiffs A\7ere alloAved to recover double damages; that is, for injury to the crops and for permanent injury to the same land. Therefore an error Avas committed prejudicial to the defendant, and the case must be reArorsed. '
3. It is further disclosed by the record that plaintiffs procured a conAreyance of this property from the Northern Pacific Railroad Company, acknoAvledged on the 26th day of January, 1900. Plaintiffs, therefore, could not recOA^er for any injury arising from a destniction of the crop, by reason of the nuisance complained of, prior to that date, unless they introduced evidence shoAAÚng that they Avere in possession of the property or entitled to such possession, and AArere entitled to recoA'er for injuries to such possession.
4. Again, the record discloses that the defendant became the purchaser of the smelting and reduction plant, through the operation of Avliich the nuisance complained of occurred, in 1897. It is clear that the defendant could not be held liable in this or any other action for damages caused by the operation of such plant by its predecessors in interest. If such damage arose, plaintiffs or their predecessors in interest Avere entitled to recover against the predecessors in interest of this defendant for saicIi damage prior to the date Avlion defendant became the purchaser and Arent into possession and operation of the property. Therefore, under any theory, plaintiffs could not recover damages against this defendant Avliich Avere the result of acts committed prior to the day it became OAvner of the plant.
5. Many assignments of. error are predicated upon tlie action of the court in overruling defendant’s objections to certain questions propounded to plaintiffs’ witnesses which called for an answer as to the effect the polluted water had upon plaintiffs’ lands and crops, and as to the extent of the injury to plaintiffs’ property. Counsel for appellant contends that such testimony amounts merely to inferences, opinions and conclusions of the witnesses from existing facts, and not to facts within their own knowledge; that it was for the jury to ascertain and determine the effect of these waters upon plaintiffs’ land and crops, and the damage resulting therefrom, that such determination could only be reached by the jury from a consideration of the facts, testified to by witnesses, disclosing the extent of the pollution of the water, and the condition of the land and crops after such water liad been introduced thereon; that this condition was a fact, and the result and effect of the water and damage occasioned thereby was a conclusion from such facts; that it is the province of witnesses to testify as to the existence of such facts, and of the jury to draw and determine the conclusions to be reached therefrom; that to allow witnesses to draw these conclusions and testify to the same invades the province of the jury.
These conditions seemingly raise the very perplexing questions as to when a non-exj)ert witness may give his opinion, upon which the authorities are numerous and very much at war with each other. In the first place, we are of the opinion that these questions, in so far as the effect of the water on the land' and crops was concerned, did not call for the opinions, inferences or conclusions of the witnesses from the facts, but for tangible, visible facts themselves, which resulted from a combination of other existing facts. If tlie waters destroyed the crops or the lands, or ruined the land for agricultural purposes, such effect, when disclosed, would be a fact within the knowledge of all witnesses who observed it.
In considering the testimony of witnesses at to the amount of plaintiff’s injury because of the nuisance, however, vre enter the domain of opinions, inferences and conclusions of witnesses. As to non-expert witnesses, the general principles of evidence require them to testify as to facts within their own knowledge, and not to opinions, inferences and conclusions from existing facts. (Section 3121, Code of Civil Procedure.) There are, however, many exceptions to these principles, and no general rule can be announced whereby the existence of all these exceptions can be accurately stated. But some are so generally accepted that no rule as to the determination of their existence need be invoked. Por instance, this court has recognized the exception of proof of value when the witness has shown himself qualified to express an opinion thereon. (Holland v. Huston, 20 Mont. 84, 49 Pac. 390; Emerson v. Bigler, 21 Mont. 200, 53 Pac. 621; Porter v. Hawkins, 27 Mont. 486, 71 Pac. 664.) This exception has been recognized by the courts almost uniformly. We have seen that the measure of damage to the land permanently injured is the difference between its value before and after the injury. Given testimony of this value, which may be shown by the opinions of non-expert witnesses, the determination of the amount of injury or damage is a mere matter of computation, and, upon reason and weight of authority, its computation may be made and given to the jury by non-expert witnesses when they do so in connection with the facts showing competency.- (Lewis on Eminent Domain, Secs. 436, 437, and cases cited; Rogers on Expert Testimony, 154, and cases.) The knowledge of the witnesses can always be thoroughly tested on cross-examination, and a jury can be trusted to give the evidence such weight only as it deserves. There was no showing of the competency of many of the witnesses, and therefore the admission of their testimony was erroneous. The question of such, competency is for the court, and upon another trial plaintiffs may prove the competency of the witnesses before the introduction of their testimony.
6. One of the plaintiffs, while on the witness stand, produced a sample of water taken from Deer Lodge river above their ranch, which was received in evidence. Counsel for defendant asked of this witness the following question on cross- examination: “Don’t yon know that the sewerage of the city of Butte is dumped, into Deer Lodge river above your ranch, and above, where yon took out this sample of water?” This question was exclude^ by the court, and, in our opinion, was clearly competent as proper cross-examination, and should have been allowed.
7. Again, one of the plaintiffs, while a witness, was allowed to give in evidence some of the contents of a written contract between plaintiffs and the Northern Pacific Railroad Company for the purchase of the land in question, without properly accounting for the absence of the contract. This was erroneous under former decisions of this court, but on another trial like error may be avoided, and further reference does not seem necessary.
8. Another important question upon which error is assigned must be considered. The evidence discloses that defendant became the purchaser of the reduction plant, the use of which is alleged to have contributed to the nuisance in question, in 1897. Counsel for appellant contend that defendant cannot be held liable to pay damages for a continuance of this nuisance, without allegation and proof of notice to defendant of the existence of the nuisance, and of the damage accruing therefrom. There is no doubt but this is a correct statement of the common-law rule as it has existed since the Pendruddock Case, decided in Lord Coke’s time. It has been adopted and followed with great uniformity by the courts of this country, and, were it not for Section'4554 of our Civil Code, we should not hesitate to indorse and follow it. This section reads as follows: “Every successive owner of property, who neglects to abate a continuing nuisance upon, or, in the use of, such property, created by a former owner, is liable therefor, in the same manner as the one who first created it.” Counsel for appellant cite this section, and then say, “This provision of the Code has been interpreted in Grigsby v. Clear Lake Water Co., 40 Cal. 396,” and then quote from the opinion in that case language which sustains the principle for which they contend.
An investigation of the statutes of California discloses that the section of the statute of that state (3483, Civil Code), identical with Section 4554, above quoted, was first adopted in 1872. The case above referred to was decided in 1870. It cannot be considered as construing a statute not then in existence. True, the annotators of both the California Codes and those of our own state cite this case under the sections above referred to, which would naturally lead one to believe that it is cited as a construction of such sections. If such citation Avas so intended, it Avas done either through inadvertence or mistake, as is clearly shoAvn above.
The enactment of Section 3483 of the California Code may haAre been induced by the rendition of the decision above referred to; at all events, in our judgment it is directly contrary to the principle announced in the decision, and makes the successor to title to property who does not abate a continuing nuisance in the use of such property, Avhich has been created by a former oAvner of the property, liable therefor in the same manner as the OAvner avIio first created it. ITere it may be gathered from the pleadings and eAddence that the nuisance complained of Avas created by defendant’s predecessors in interest by the use of the property. There is no. showing that defendant abated or sought to abate it, but, on the contrary, it appears conclusiA^ely that it continued the nuisance. Therefore the question of the necessity of notice to it, as claimed by the counsel, must be determined by the laAV as applicable to its predecessors in interest, and, if the laAV does not require notice to them, none was necessary to this defendant, under the plain provisions of Section 4554, supra. AYe find no cases holding that the creator of a nuisance need, be given notice of its existence before suit is brought against him, and AA7e belieAre none exists. Every man is charged Avith the knoAvledge of the results of his own acts, and eArery one must so use his oavii property as not to injure his neighbor’s.
Defendant pleads Section 29, Code of Civil Procedure, 1887, and Sections 484, 524 and 513 (as amended), Code of Civil Procedure, as a complete defense to plaintiffs’ cause of action, and also pleads Subdivision 1, Section 521, Code of Civil Procedure as a partial 'defense. It is difficult to determine "from the instructions given which section of the statute of limitations the lower court determined was applicable to the case on the trial, because in paragraph 5 of the charge the jury was instructed that plaintiffs might recover for injuries committed at any time within five years prior to the commencement of the suit, while in paragraph 6 of the instructions the plaintiffs vere limited to injury committed within two years prior to the commencement of the suit. These' instructions are inconsistent and conflicting with each other, and it is entirely impossible to determine which charge the jury followed in making up their verdict. Ordinarily this would be sufficient to reverse the case, but, inasmuch as k new trial must be granted for other reasons, we shall not discuss the effect of these conflicting instructions. It may bo well to announce, for the guidance of the lower court upon another trial, that, if any part of the statute of limitations is at all applicable under this opinion, it would be Section 518 of the Code of Civil Procedure — which is not pleaded, as this is not an action arising under either of the sections pleaded in the answer.
AYe advise that the judgment and order appealed from be reversed.
Pur Curiam. — For the reasons stated in the foregoing opinion, the judgment and order are reversed, and the cause is remanded.
|
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] |
ME. JUSTICE HOLLOWAY
delivered the opinion of the court.
On December 1,1902, an action was commenced in the justice of the peace court of Township No. 1, Gallatin county, Montana, before W. Y. Smith, justice of the peace, wherein A. L. Love was plaintiff and F. E. Grissom and another were defendants. The complaint contained four causes of action; the first for $530.01, the second for $8.35, the third for $1.82, and the fourth for $7.50. Upon the filing of this complaint a summons was duly issued and served, but upon motion of the defendants the service was quashed. A new summons ivas thereupon issued and served. On December 24th the defendants appeared and filed a demurrer, which was overruled, and on January 14, 1903, each of them filed a separate answer putting in issue the allegations of plaintiff’s complaint. On February 13th plaintiff filed a reply, and by stipulation of counsel the cause was set for trial for March 23 d. At the time set for trial the defendants failed to appear, and after waiting one hour the court entered their default, and plaintiff made proof. At the close of his evidence plaintiff asked leave of court to amend his complaint by substituting $260 for $530.03 in his first cause of action. The amendment was permitted, and the court thereupon entered a judgment in favor of the plaintiff according to the prayer of his complaint as amended. On March 31, 1903, the defendants sued out of the district court a writ of review directed to the justice of the peace court of Township No. 1, county of Gallatin, state of Montana, W. Y. Smith, justice of the peace, respondent. A transcript of the record of the justice of the peace court in the case of Love v. Grissom, et al. was duly certified and transmitted, together with the original files in the case, to the district court. Upon the hearing the district court entered a judgment annulling the judgment entered in the justice of the peace court and rendering judgment for relators for their costs. In this judgment it is recited that the district court heard the matter upon the pleadings and return and upon the affidavits of IV. Y. Smith, E. M. Eeynolds and Eugene B. Hoffman, filed on behalf of respondent in the certiorari proceedings. From this judgment W. Y. Smith, the respondent in such proceedings, has appealed.
Certain questions of practice are presented for determination. 1. It is said that the district court had before it certain affidavits not contained in the writ of certiorari or in the return thereto, which were considered by the court in determining that proceeding upon its merits, but which affidavits are not in the record before this court. Section 1944 of the Code of Civil Procedure provides that the -writ of review must command the party to whom it is directed to certify to the court issuing the writ a transcript of the record and proceedings, that the same may be reviewed, etc. Section 1947 provides that the review upon this writ cannot extend further than to determine whether the inferior tribunal has regularly pursued the authority of such tribunal. Section 1948 provides that, when a full return has been made, the court must hear the parties, and may thereupon give judgment, either affirming or annulling or modifying the proceedings below. Section 1950 reads: “A copy of the judgment, signed by the clerk,.entered upon or attached to the writ and return, constitute the judgment roll.”
An appeal to this court from the judgment entered in the district court brings before us for review' any questions appearing on the judgment roll, as described in Section 1950, above, and in the consideration of such questions no other papers than those mentioned in Section 1950 are or could be properly before this court.
2. It is contended by respondents here that the appeal in this instance was not taken by the justice of the peace court, but only by W. T. Smith, the justice of the peace, and upon the authority of State ex rel. Healy v. District Court, 26 Mont. 224, 67 Pac. 114, 68 Pac. 470, it is urged that the appeal is ineffectual for any purpose. Section 1, Article VIII, of the Constitution, provides: “The judicial power of the state shall he vested in the senate, sitting as a court of impeachment, in a supreme court, district courts, justices of the peace, arid such other inferior courts as the legislative assembly may establish in any incorporated city or town.” The theory upon wdiich the case of State ex rel. Healy v. District Court, above, was decided, wras that under the Constitution and law's of this state there is a well-defined distinction between a particular district court and the judge of that court, and the reason for this is apparent. The Constitution and laws have vested in the district court certain jurisdiction, and also have vested in the judge of the district court at chambers power to determine various judicial matters (Section 11, Article VIII, Constitution, and Section 171, Code of Civil Procedure) ; but nowhere is there lodged in the justice of the peace any authority to do or perform any judicial act aside from the authority vested in such justice of the peace as a court. In other words, the authority of the justice of the peace and of the justice of the peace court, so far as judicial matters are concerned,- are identical. As the writ of review can only affect such inferior tribunals, boards and officers as exercise judicial functions, and as the justice of the peace, in contradistinction with the justice of the peace court, does not exercise judicial functions, but only does so as a court, it is apparent that, so fas as these certiorari proceedings are concerned, there is no distinction whatever between the justice of the peace court of Township No. 1, Gallatin county, Montana, presided over by W. T. Smith, justice of the peace, and W. Y. Smith, justice of the peace of Township No. 1, Gallatin county, Montana, as such; in other words, for the purpose of these proceedings they are one and the same thing. We are therefore of the opinion that the notice of appeal is sufficient to give this court jurisdiction.
3. It is contended that the specifications of error in appellant’s brief are insufficient; but, aside from any consideration of the others, specifications numbered 1 and 5 are sufficient. They are as follows: “(1) The court erred in entertaining the writ after the return.” “(5) The court erred in rendering a judgment contrary to and against law.” It is not necessary for the appellant to assign his reasons in the specifications contained in his brief. Whatever reasons he may have for his contention are properly embraced in that portion of the brief devoted to his argument. Taking up these two specifications, then, and considering them together, we observe that, after the justice of the peace made his return, the district court had before it all that was necessary to a determination of the vital point in controversy here, namely, will certiorari lie? Upon the affidavit filed the court doubtless felt justified in issuing the writ in the first instance, but when the return was duly made, and it appeared therefrom just what had been done in the justice of the peace court, the district court was able to determine whether certiorari was the proper remedy, and one which the applicants for the writ could invoke. Section 1941 of the Code of Civil Procedure provides, among other things, that the writ of review may be granted by the district court when an inferior tribunal exercising judicial functions has exceeded the jurisdiction of such tribunal, and there is no appeal, nor, in the judgment of the court, any plain, speedy and adequate remedy. To authorize the issuance of the writ, therefore, it must appear (1) that the inferior tribunal was performing some judicial act; (2) that such tribunal exceeded its jurisdiction; and (3) that there was no appeal, and, in the judgment of the court, no other plain, speedy and adequate remedy other than the writ of review. All these must concur to sustain the remedy by certiorari, and the absence of any one of them is fatal to it. (State ex rel. King v. District Court, 24 Mont. 494, 62 Pac. 820.)
It is conceded in this instance that the justice of the peace wras proceeding in a matter in that court, that such court was exercising judicial functions, and for the purpose of this decision it may be admitted that in exercising such functions the justice of the peace court exceeded its jurisdiction. We are then called upon to determine the question, was there an appeal ?
In the first place, we may say that this was in no sense a judgment by default. The defendants in the justice court had appeared and answered, but there is no provision in law requiring them to be present at the trial if they feel disposed to absent themselves. In Clark v. Great Northern Ry. Co., 30 Mont. 458, 76 Pac. 1003, this court said: “We preface our consideration of the cause by saying that the justice of the peace could not enter the default of the railway company on December 22d, notwithstanding the justice’s docket entry seems to indicate that such was attempted. The defendant had on file an answer which put in issue the allegations of the complaint, and, notwithstanding the entry made by the justice of the peace at the time of the trial, the record does show that the justice tried the issues and entered judgment on the proof adduced by the plaintiff, so that the judgment was in no sense a judgment by default, and could not have been. Corart v. Haskins, 39 Kan. 574, 18 Pac. 522; 9 Ency. Law, 2d Ed., 168, and cases cited; 6 Ency. Pleading and Practice, 60.” The doctrine announced above is particularly applicable to the facts of this case. -The judgment entered by the justice of the peace was not a judgment by default, notwithstanding the justice’s record may contain an entry to that effect.
Section 1761 of the Code of Civil Procedure provides that all appeals from a justice court must be tried anew in the district court. Each party has the benefit of all legal objections made in the justice court, and when a judgment is reversed or set aside on a question of law arising in a justice court the district court must either try the case anew or render a judgment. The argument of counsel that on an appeal to the district court the cause must be tried de novo, and that the objections made in the justice of the peace court cannot be reviewed, is not well founded. There can be no misunderstanding of the meaning of Section 1761, above. It is true that the action is tried de novo, but on such trial the district court, to all intents and purposes, sits as a justice of the peace court. Its jurisdiction in that particular appeal is no greater than the jurisdiction of the justice of the peace court, and either party may have reviewed any question of law or fact which was properly raised in the justice of the peace court and is properly presented in'the district court. (Clark v. Great Northern Ry. Co., supra.)
■It is contended by respondent that, even if there is an appeal in this instance, the remedy by appeal is not plain, speedy and adequate, and therefore certiorari ought to lie, and in support of that contention State ex rel. Johnson v. Case, 14 Mont. 520, 37 Pac. 95, is cited. That case was decided in 1894. Subsequent to that date this court in numerous cases has particularly disavowed the doctrine therein announced, and it may be considered settled now as the law of this state that, if an appeal lies, certiorari will not. (State ex rel. King v. District Court, above; State ex rel. Prescott v. District Court, 27 Mont. 179, 70 Pac. 516; State ex rel. Reynolds v. Laurandeau, 27 Mont. 522, 71 Pac. 754.)
Rehearing denied December 16, 1904.
Furthermore, in order that certiorari will lie, it must not only appear that there is not any other plain, speedy and adequate remedy, but it must affirmatively appear that there is no appeal. In this instance, on the contrary, it does affirmatively appear that defendants in the case of Love v. Grissom appeared in the action, filed their separate answers, and by stipulation agreed to a particular time for the trial, and they must then be charged with actual knowledge of all subsequent proceedings in the cause. They invoked the aid of certiorari before the time for appeal had expired. They had a remedy by appeal, and that excludes the remedy by the writ of review.
The judgment of the district court is reversed, and the cause remanded, with direction to that court to dismiss the certiorari proceedings.
Reversed and, remanded.
Mr. Justice Mieburn concurs.
Mr. Chiek Justice Prantey, not having heard the argument, takes no part in this decision.
|
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] |
ME. JUSTICE HOLLOWAY
delivered the opinion of the court.
This is an action brought by the Silver Camp Mining Company and another against Perdinand Dickert, to enforce the specific performance of a contract to convey certain real estate situate in Lewis and Clarke county, Montana, .and to compel the defendant Dickert to make an assignment of certain dividends.
At the time this action was commenced, and, so far as this record shows, at all times therein mentioned, Dickert was not a resident of the state of Montana, he being a resident of the state of Utah. The plaintiffs made affidavit for publication of summons, secured an order to that effect, and then made service on the defendant in Utah under the provisions of Section 638 of the Code of Civil Procedure. The defendant appeared specially and challenged the jurisdiction of the court. This appeal is from the judgment.
Three questions are presented for solution: First. Is the action for specific performance of a contract to convey real estate one in personam? Second. Will service of summons by publication warrant a judgment in personam? Third. Does a general statute providing for the publication of summons in civil actions abrogate the common-law rule which requires personal service of summons in actions in personam?
1. As to the first question. Conceding that there may be some conflict in the authorities respecting this, the decided weight of authority is in favor of an affirmative answer, though the courts holding this view have not always been in harmony as to the reasons, or as to the extent to which the doctrine should be carried. As early as 3 Cushing this question was before the Supreme Court of Massachusetts, and, respecting it, that court said: “The simple question raised in the case is whether the court can proceed in this suit against the defendant, he not being at the commencement of the suit, or now, within the jurisdiction of this court, but being then and now an inhabitant of and within the state of Connecticut. This is strictly a proceeding in personam. There is but one person who is the party defendant, and he is not a passive party, but must be eminently active in the performance of any decree which may be made against him. The whole object of the bill is to compel the defendant to execute a conveyance of land, as is alleged, according to his contract.” (Spurr et al. v. Scoville, 3 Cush. 578.) This doctrine is reaffirmed by the same court in Davis v. Parker, 14 Allen, (Mass.) 94, and Merrill v. Beckwith, 163 Mass. 503, 40 N. E. 855.
In Close v. Wheaton, 65 Kan. 830, 70 Pac. 891, it is said: “The character of an action for specific -performance as in personam entirely is so well established that courts having jurisdiction of the parties frequently entertain suits to compel the execution of contracts for the conveyance of lands in other states, in which, of course, their decrees as to the res cannot-operate. (Lindley v. O’Reilly, 50 N. J. Law, 636, 15 Atl. 379, 1 L. R. A. 79, 7 Am. St. Rep. 802.) Sometimes a question may exist as to whether the complaining party may not have such peculiar interest in the property as- to entitle him -to the enforcement of a trust, and not of contract merely (Merrill v. Beckwith, 163 Mass. 503, 40 N. E. 855), in which event the action might be local, and not transitory; but the plaintiffs in this case have neither stated in their pleadings, nor claimed before us, such character of right. We are therefore well convinced that the Inherent nature of the ordinary proceeding to compel a vendor to comply with this contract, as contract, by the execution of a deed, makes the action one in personam, which can be brought only where the defendant resides or may be legally served with personal process.”
The Supreme Court of Indiana, in Coon v. Cook, 6 Ind. 268, said: “Eor the reversal of this decree it is contended: (1) That the land In question, being in Hancock county, the circuit court of Henry county had no jurisdiction of the subject-matter in controversy. This objection is not tenable. We concur with the appellee’s counsel that the present, being a suit for a specific performance of a contract, operates on the person, and may properly be instituted in any county where the contractor resides.” This is approved and followed in Dehart v. Dehart, 15 Ind. 167.
In McQuerry v. Gilliland, 89 Ky. 434, 12 S. W. 1037, 7 L. R. A. 454, the court said: “The court is of the opinion that in case of fraud, of trust, or of contract, the jurisdiction of a court of chancery is sustainable wherever the person be found, although lands, not within the jurisdiction of that court may be affected by the decree. In such case the subject-matter is not that of the recovery of land. In other words, it is not an action in rem. The court need not have the land before it in order to be able to render a judgment; but the action is in personam, for the purpose of enforcing a personal obligation- of contract or of trust. It is true that the title to land is to be affected by the decree, in so far as it compels the party to convey; but, as said, by reason of his trust or contract duty, he is personally obliged to convey, and that duty may be discharged in one state as well as another, although the land may not be situated in such state. It is the breach of trust or contract to convey that may be complied with, without regard to the location of the land, that gives the right of action in personam.”
In Brown v. Desmond, 100 Mass. 267, the court said: “A. suit for specific performance of a contract for the conveyance of land proceeds in personam.” This doctrine is affirmed by the Supreme Court of Indiana in Bethell v. Bethell, 92 Ind. 318.
As if to place particular emphasis upon the view that -an action to enforce the specific performance of a contract to convey land operates strictly in personam, the chancery courts in England and of many of the states in this country have repeatedly held that such an action may be commenced in, and relief had from, a court having jurisdiction of the parties, even though the land to be affected lies in another state or in a foreign country. (Penn v. Lord Baltimore, 1 Ves. 444; Cranston v. Johnson, 3 Ves. Jr. 170; Ward v. Arredondo, 1 Hopk. Ch. 213, 14 Am. Dec. 543; Sutphen v. Fowler, 9 Paige, 280; Newton v. Bronson, 13 N. Y. 587, 67 Am. Dec. 89; Davis v. Headley, 22 N. J. Eq. 115; Massie v. Watts, 6 Cranch. (U. S.) 148, 3 L. Ed. 181.)
The doctrine is broadly stated by Story as follows: “The proposition may therefore be laid down in the most general form, that, to entitle a court of equity to maintain a bill for the specific performance of a contract respecting land, it is not necessary that the land should be situate within the jurisdiction of the state or country where the suit is brought. It is sufficient that the parties to be affected and bound by the decree are resident within the state or country where the suit» is brought, for in all suits in equity the primary decree is in personam and not in rem. The incapacity to enforce the decree in rem constitutes no objection to the right to entertain such a suit.” (1 Story’s Equity Jurisprudence (10th Ed.) Sec. 744; Brown v. Desmond, supra; Elliott on General Practice, Sec. 244; Close v. Wheaton, supra.)
As further illustrating the view that this character of action is purely in personam, and that a statute of the character of our Section 610 of the Code of Civil Procedure has no application to an action to enforce the specific performance of a contract for the conveyance of real estate, the Supreme Court of Washington, in Morgan v. Bell, 3 Wash. St. 554, 28 Pac. 925, 16 L. R. A. 614, said: “The first point argued by the appellant is that this is an action affecting the title to real estate, and should have been brought in Clallam county, where the land is situated, by virtue of Sectiqn 47 of the Code, which provides that actions for the recovery of, for the possession of, for the partition of, for the foreclosure of a mortgage on, or for the determination of all questions affecting the titles, or for any injuries to, real property, shall be commenced in the county or district in which the subject of action, or some part thereof, is situated. We do not think this is the character of cases contemplated by the statute. The title to this land was not in dispute, and could not be affected by the decree of the court, under the pleadings. It is true that the court could decree a specific performance of the contract, under the allegations of the complaint, but it would bo a decree affecting the parties to the action personally. It would not determine any question affecting the title, in the sense in which the word 'title’ is evidently employed in the statute.”
Eor the purpose of differentiating between the legal effects which flow from that class of actions wherein service of summons may be properly made by publication and actions strictly in personam, reference is had to the language used by the supreme court in Cooper v. Reynolds, 10 Wall. (U. S.) 308, 19 L. Ed. 931. The court there had under consideration an action which grew out of an action for damages, wherein summons had been served by publication, and in which property of one of the defendants which was within the jurisdiction of the court had been seized by attachment and sold under execution to Cooper. The original owner of the property, who was a defendant in that action, then brought ejectment against Cooper, who asserted title under the sheriff’s deed. After reviewing the proceedings had in the original action for damages, the court carefully reviewed the whole subject, and announced a rule which has since been followed. The court said: “But the plaintiff is met at the commencement of his proceedings by the fact that the defendant is not within that territorial jurisdiction, and cannot be served with any process by which he can be brought personally within the power of the court. For this difficulty the statute has provided a remedy. It says that, upon affidavit being made of that fact, a writ of attachment may be issued and levied on any of the defendant’s property, and a publication may be made warning him to appear, and that thereafter the court may proceed in the case, whether he appears or not. If the defendant appears, the cause becomes mainly a suit in personam, with the added incident that the property attached remains liable, under the control of the court, to answer to any demand which may be established against the defendant by the final judgment of the court. But if there is no appearance of the defendant, and no service of process on him, the case becomes, in its essential nature, a proceeding in rem, the only effect of which is to subject the property attached to the payment of the demand which the court may find to be due to the plaintiff. That such is the nature of this proceeding in this latter class of cases is clearly evinced by two well-established propositions: First, the judgment of the court, though in form a personal judgment against the defendant, has no effect beyond the property attached in-that suit. No general execution can be issued for any balance unpaid after the attached property is exhausted. No suit can be maintained on such a judgment in the same court or any other, nor can it he used as evidence in any other proceeding not affecting the attached property, nor could-the costs in that proceeding be collected of defendant out of any other property than that attached in the suit. Second, the court, in such a suit, cannot proceed unless the officer finds'some property of defendant on which to levy the writ of attachment. A return that none can be found is the end of the case, and deprives the court of further jurisdiction, though the publication may have been duly made and proven in court.”
2. As to the second question. If any doubt existed respecting the proper answer to be made to this inquiry, that doubt was settled by the Supreme Court of the United States in Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565. In 1866 J. II. Mitchell obtained a judgment in the district court of Oregon against Neff, a nonresident of Oregon, for services alleged to have been rendered to Neff. Summons was served by publication, and' Neff did not appear. Judgment was rendered by default. Execution was issued, and land belonging to Neff in Oregon was levied upon and sold to Pennoyer. Neff later returned and brought ejectment against Pennoyer, who pleaded title in himself, based upon the deed which he had received from the sheriff by virtue of the execution sale in Mitchell v. Neff. The validity of the judgment in Mitchell v. Neff was put directly in issue. Respecting the doctrine that a personal judgment can only be had after personal service of the defendant or his voluntary appearance in the action, the court said: “It is the only doctrine consistent with proper protection to citizens of other states. If, without personal service, judgments in personam, obtained ex parte against nonresidents and absent parties, upon mere publication of process, which, in the great majority of cases, would never be seen by the parties interested, could be upheld and enforced, they would be the constant instruments of fraud and oppression. Judgments for all sorts of claims upon contracts and for torts, real or pretended, would be thus obtained, under which property would be seized, when the evidence of the transactions upon which they were founded, if they ever had any existence, had perished. Substituted service by publication, or in any other authorized form, maybe sufficient to inform parties of the object of proceedings taken, where property is once brought under the control of the court by seizure or some equivalent act. The law assumes that property is always in the possession of its owner, in person or by agent; and it proceeds upon the theory that its seizure will inform him, not only that it is taken into the custody of the court, hut that he must look to any proceedings authorized hy law upon such seizure for its condemnation and sale. Such service may also he sufficient in cases where the object of the action is to reach and dispose of property in the state, or of some interest therein, by enforcing a contract or a lien respecting the same, or to partition it among different owners, or, when the public is a party, to condemn and appropriate it for a public purpose. In other words, such service may answer in all actions which are substantially proceedings in rem. But where the entire object of the action is to determine the personal rights and obligations of the defendants — that is, where the suit is merely in personam — constructive service in' this form upon a nonresident is ineffectual for any purpose.”
Pennoyer v. Neff, supra, is directly approved and followed by the supreme court in Hart v. Sansom, 110 U. S. 151, 3 Sup. Ct. 586, 28 L. Ed. 101, and the doctrine of that case reannounced in Leigh v. Green, 193 U. S. 79, 24 Sup. Ct. 390, 48 L. Ed. 623. That doctrine has also been followed by the courts of last resort of several states where it has been in issue.
In Eliot v. McCormick, 144 Mass. 10, 10 N. E. 705, it is said: “The Supreme Court of the United States has held, in recent decisions, that under this provision it is not competent for a state court to render a judgment in personam against a person who is not a resident of the state, who does not appear in the suit, and who is not served personally with process within the state. It is held that, where property of a nonresident defendant is found within the state, the state court may attach it on the writ, and may proceed t'o a judgment so far as to apply the property to the debt; but if there is no appearance of the de fencláiit, and no personal service on him, a judgment rendered ag’ainst him personally is void, and has no effect beyond the property attached, and no suit can be maintained on such a judgment, either in the same or any other court. (Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565; Freeman v. Alderson, 119 U. S. 185, 7 Sup. Ct. 165, 30 L. Ed. 372.)”
In Needham, v. Thayer, 147 Mass. 536, 18 N. E. 429, the views of the court in Eliot v. McCormick, above, were adopted and followed, and it is there held that a judgment in personam against a person who is not a resident of the state in which the judgment is rendered, who has not been personally served in the state with summons, and who has not appeared in the action, is wholly void, and no suit can be maintained on it either in that or any other court; that the court obtained no jurisdiction, and its judgment has no force either in the state in which it is rendered or in any other state. Pennoyer v. Neff is also approved and followed in Bank v. Henry, 156 Ind. 1, 58 N. E. 1057.
In Hill v. Henry, 66 N. J E. 150, 57 Atl. 554, the Court of Chancery of New Jersey said: “The following propositions have been established by the supreme court: Eirst. That a personal judgment is without validity, if it be rendered by a state court in an action upon a money demand against a nonresident, proceeded against by publication, but not personally served with process within the state, and not appearing. Second. That no validity is imparted to such a judgment by the fact that the defendant has, at the time the action is commenced, property within the state, upon which a levy can be made under the judgment. (Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565.)”
The Supreme Court of Minnesota, in Cabanne v. Graf, 87 Minn. 510, 92 N. W. 461, 59 L. R. A. 735, 94 Am. St. Rep. 722, said: “Prior to the decision in the case of Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565, it was the law of this state, and in some other jurisdictions, that, if a nonresident defendant had property in this state, its court had jurisdiction, without seizing it, to proceed by publication of tbe summons, and render a judgment in personam,, valid within the state to the extent of any property of the defendant therein. (Stone v. Myers, 9 Minn. 303, (Gil. 287) 86 Am. Dec. 104; Cleland v. Tavernier, 11 Minn. 194, (Gil. 126.) Such, however, is not now the law, for the statute authorizing such a proceeding would not be due process of law. (Kenney v. Goergen, 36 Minn. 190, 31 N. W. 210; Lydiard v. Chute, 45 Minn. 277, 47 N. W. 967; Plummer v. Hatton, 51 Minn. 181, 53 N. W. 460.)
“Pennoyer v. Neff, 24 L. Ed. 565, is the leading authority in support of the now well-settled proposition that, except as to proceedings affecting the personal status of the plaintiff, or in rem, or as to actions to enforce liens, or to quiet title, or to recover possession of property, or for the partition thereof, or to set aside fraudulent transfers thereof, or to obtain judgment enforceable against property seized by attachment or other process, no state can authorize its courts to compel a citizen of another state remaining therein to come before them and submit to their decision a mere claim upon him for a money demand, no matter what the prescribed mode of service of process against him may be. An attempt to do so is not due process of law.”
3. As to the third question. It is contended that it is competent for the state by statute to provide for valid service by publication in actions in personam. If this state has done so, the question of the constitutionality of such a statute might be involved. If it has not done so, that question is, of course, eliminated from consideration.
Section 637 of the Code of Civil Procedure provides: “When the person on whom the service of a summons is to be made, resides out of the state, or has departed from the state, or cannot, after due diligence, be found Avithin the state, or conceals him- ' self to avoid the service of the summons; or when the defendant is a foreign corporation, having no managing or business agent, cashier, secretary or other officer within the state, and an affidavit stating any of these facts is filed with the clerk of the court in which the action is brought, and such, affidavit also states that a cause of action exists against the defendant in respect to whom the service of the summons is to be made, and that he or it is a necessary or proper party to the action, the clerk of the court in which the action is commenced shall cause the service of the summons to be made by publication thereof.”
Counsel for respondents cites Perkins v. Wakeham et al., 86 Cal. 580, 25 Pac. 51, 21 Am. St. Rep. 67, as sustaining the view that service of summons by publication in actions strictly in personam may be had under a statute similar to our Section 637, above, and there is an expression to be found in the opinion of the court in that case bearing out that idea, and that case is apparently cited with approval in Seculovich v. Morton, 101 Cal. 67, 36 Pac. 387, 40 Am. St. Rep. 106, in an action to have a trust declared and enforced, and in which we are unable to see any applicability of the doctrine announced in Perkins v. Wakeham. In Loaiza v. Superior Court, 85 Cal. 11, 24 Pac. 707, 20 Am. St. Rep. 197, the same court had at great length reviewed the cases, and put itself in harmony with the weight of authority as we have outlined it, and distinguished between the classes of cases where service of summons may be made by publication and where it may not be, and in the latter class included actions strictly m personam; and this case was not alluded to or overruled in either of the cases cited above.
An examination of the opinion in Perkins v. Wakeham, above, discloses that the decision of the court is made upon the theory that an action to quiet title, which was the form of action in that case, is one affecting the title to real estate. Whether that doctrine would be approved by this court is not decided; suffice it to say that the present action, being to enforce the specific performance of a contract, is not one which affects title to real estate, for, if it did, it could only be tried in the county where the real estate is situated, whereas the authorities are practically unanimous in holding that such an action may be tried where jurisdiction of the defendant is obtained, without reference to the location of the real estate.
Rehearing denied February 7, 1905.
In Roller v. Holly, 176 U. S. 398, 20 Sup. Ct. 410, 44 L. Ed. 520, a statute of Texas, as broad in its provisions as our Section 637, above, was under consideration, and, respecting it, the court said: “It is true there is no statute of Texas specially authorizing a suit against a nonresident to enforce an equitable lien for purchase money, but Article 1230 of the Code of Texas, hereinafter cited, contains a general provision for the institution of suits against absent and nonresident defendants, and lays down a method of procedure applicable to all such cases. Obviously this Article has no application to suits in personam, as was held by the Supreme Court of Texas in York v. State, 73 Tex. 651, 11 S. W. 869; Kimmarle v. Houston & Texas Central Railway, 76 Tex. 686, 12 S. W. 698; Maddox v. Craig, 80 Tex. 600, 16 S. W. 328; and by this court in Pennoyer v. Neff, 95 U. S. 714, 723, 24 L. Ed. 565. The Article must then be restricted to actions in rem; but to what class of actions, since none is mentioned specially in this Article ? We are bound to give it some effect. We cannot treat it as wholly nugatory, and, as it is impossible to say that it contemplates a procedure in one class of cases and not in another, we think the only reasonable construction is to hold that it applies to all cases where, under recognized principles of law, suits may be instituted against nonresident defendants.” We prefer to adopt this view as more in consonance with reason and the general practice which has heretofore prevailed throughout this country.
The other questions involved in this case need not be considered.
The court had no jurisdiction of the defendant. The judgment rendered is nugatory and is reversed and the cause remanded.
Reversed and remanded.
Mr. Ohiee-Justice Brantly and Mr. Justice Milburn concur.
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] |
ME. COMMISSIONEE BLAKE
prepared the opinion for the court.
This action was commenced in the justice’s court by plaintiff (respondent) to recover the sum of $83.75 for 335 bushels of lime. It is alleged in the complaint that plaintiff, at the special instance and request of defendant (appellant), sold, September-12, 1901, and delivered the lime to defendant at Helena, Montana. On the trial judgment was entered for respondent for the amount of his demand, and an appeal -was taken to the district court. By agreement of the parties the motion of defendant for leave to file an amended answer was granted. The answer alleged: “That thereafter, and' on the 12th day of September, 1901, defendant notified plaintiff by letter, which said letter plaintiff received on said last-named date, not to ship-said lime, and further notifying plaintiff that defendant had ordered lime elsewhere, and that plaintiff, in disregard of said' notice from defendant, and thereafter, to-wit, on the 13th day of September, 1901, shipped said lime to defendant over the Montana Central Kailroad. And defendant avers that, had plaintiff used due diligence in the premises, he could have prevented the said shipment of lime to defendant, and any consequent loss to himself thereby.” The answer contained a counterclaim setting forth that plaintiff agreed to deliver the lime not later than the 6th day of September, 1901, and that by reason of his failure so to do the defendant had been injured in the sum of $500.
The action was tried de novo by the court below with a jury. The plaintiff testified in his own behalf, and rested, and the motion of defendant for a nonsuit was sustained upon the following grounds: That the title to the lime never passed to defendant, and that plaintiff, if entitled to recover, could maintain an action for damages for a breach or rescission of the contract. The defendant was then allowed to call witnesses to-establish his counterclaim. After the defendant had been examined and cross-examined, the court reconsidered the ruling- .granting the motion for a nonsuit, and ordered the same to be overruled. Evidence was offered by the parties covering all the issues, and judgment was entered on the verdict for plaintiff. Defendant appealed from the judgment and an order denying him a new trial.
The testimony of plaintiff tended to prove that two men— •O’Brien and Campbell — in the employ of defendant told plaintiff in Helena, September 2, 1901, that they wanted some lime shipped from Helena to Boulder, Montana, for defendant; that upon the next day the plaintiff, in Helena, and the defendant, in Boulder, had a conversation through the telephone; that defendant gave an order for the lime, and plaintiff informed him that he had no lime on hand, and would ship it as soon as he could over the Great Northern on a Montana Central car, loaded at the depot in Helena; that the lime was loaded on the car September 12, 1901, and the plaintiff received the bill of lading, which he retained and produced on the trial, to-wit:
“Montana Central Railway Company.
“Helena, Montana, Station, Sept. 12, 1901.
“Forwarded by James McKelvey..
*******
17,782
W. T. Perham
Boulder, Mont.
Via Great Northern Railway Line.
One Oar Lime
»
There is no controversy about the following facts: That about 5 o’clock in the afternoon of the day after the lime had been loaded on the car the plaintiff received a letter from defendant, to-wit: “Boulder, Montana, Sept. 11, 1901. Mr. McCalvin, Helena, Montana. Dear Sir: I have been very much disappointed you not sending me lime as agreed upon, I waited until Monday and no lime I then ordered a car from Butte. Your local lime came Tuesday I have used that but will not be able to use any more. Very Truly Yours, W. T. Perham.” The plaintiff then sent a telegram to defendant, reading, “Car shipped, cannot recall it,” or words to that effect. The plaintiff, in explaining his conduct, testified: “I did not send this telegram until I got the letter cancelling the order. I was going to ship the bill of lading the same as I always do. I did not send him the bill of lading — not until I would see what was going to happen.”
The defendant required the lime for use in a building he was constructing at Boulder on or' before September 6, 1901, and did not need it after that date. The carload of lime left Helena September 13th at 6 :25 p. m., and arrived at Boulder at noon upon the succeeding day. The bill of lading given to plaintiff was not sent to defendant, and the lime was not accepted or delivered. The car could have been stopped upon the request, of plaintiff by the railroad company at any time up to G o’clock p. m., before the train started from Helena.
The testimony of the parties is conflicting concerning the material parts of the contract, but in the view we take there is one question for our determination. Conceding everything-plaintiff sought to prove on the trial, he was notified on September 12, 1901, when he read the above letter, that defendant refused to comply with the contract, and did not intend to bilv the lime. It was the duty of defendant to use reasonable diligence in the exercise of what he considered his rights under the circumstances. The facts, which are not. controverted, show that plaintiff had twenty-four hours during which he could have stopped said car at Helena. The plaintiff did not make any effort in this direction, but permitted the lime to be transported to Boulder, retaining the bill of lading. What were the legal consequences of this act? The explanation of the plaintiff for-his retention of the bill of lading that he “would see what was going to hapxDen” is not consistent with his position that defendant was the owner of the lime September 12, 1901. The-authorities in this jurisdiction are in harmony as to the nature of this instrument. (First National Bank v. McAndrews, 5 Mont. 325, 5 Pac. 879, 51 Am. Rep. 51; Walsh v. Blakely, 6 Mont. 191, 9 Pac. 809; Willman M. Co. v. Fussy, 15 Mont. 511, 39 Pac. 738, 48 Am. St. Rep. 698; Herbert v. Winters, 15 Mont. 552, 39 Pac. 906.)
In First National Bank v. McAndrews, supra, tbe court said: “Hence it is held by the authorities that the transmission of a bill of lading by the consignor to the consignee is a delivery of the possession of the goods covered by it, and that thereby the title to the property passes from the consignor to the consignee.” In Pollard v. Vinton, 105 U. S. 1, 26 L. Ed. 998, the court said: “In the hands of the holder it (the bill of lading) is evidence of ownership, special or general, of. the property mentioned in it, and of the right to receive said property at the place of delivery.” The Civil Code provides (Section 2835) : “A carrier is exonerated from liability for freight by delivery thereof, in good faith, to any holder of a bill of lading therefor, properly indorsed, or made in favor of the bearer.”
We are of the opinion that the property in controversy was not delivered, and that defendant (appellant) was hot under .any obligation to accept the lime upon its arrival at Boulder.
We recommend that the order and judgment appealed from be reversed, and that the cause be remanded for a new trial.
Per Curiam. — Eor the reasons stated in the foregoing opinion, the order and judgment are reversed, and the cause is remanded.
Reversed and remanded.
|
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] |
HON. E. K. OHEADLE,
Judge of the Tenth judicial district, sitting in the place of the Chief Justice, delivered the opinion of the court.
At tlie hearing of this cause counsel for the respondent first objected to the admission of any testimony, upon the ground that the proceeding was prematurely brought. This objection was overruled by the court pro forma, and the taking of testimony proceeded. Subsequently, and before the final ruling of the court upon the objection, counsel for the nominees of the so-called “Walker ticket” appeared in open court, and asked that their clients, the said nominees, be permitted to appear in this proceeding, and that their rights be adjudicated. This request was granted by the court, all parties consenting, whereupon the said nominees appeared by their counsel, and participated in the examination of the witnesses of relator, and introduced witnesses to testify on their own behalf. This action of the so-called “Walker noininees” is held by the court to be, in effect, a waiver of the objection that this proceeding is prematurely brought, and a ruling tipon the-said objection is therefore reserved by the court.
There is no material contradiction in the testimony. The pleadings of the respective parties, the admissions of respective counsel, and the evidence leave substantially but one question to be decided by this court, to-wit: AAras the so-called “AATalsworth convention” or was the so-called “AYalker convention” the regular convention of the Democratic party of Silver Bow county, duly organized and legally empowered to nominate candidates for such offices as it was within the powers of that convention to make under the regular Democratic party designation ?
■ It is the contention of the relator that the AYalswortli convention was the regular party convention of the Democratic party, and that its nominees should be placed upon the official ballot in the column thereon designated “Democratic,” and that the nominees of the AAralker convention should be entirely excluded therefrom. It is the contention of counsel for the AAralker nominees that both tickets should be placed upon the official ballot in separate columns, each of which should be entitled “Democratic.” The respondent, AAbeston, took the position that he did not know which certificate he should receive, or the names of which nominees he should place upon the official ballot, and therefore declined to take any action in the matter until directed by this court.
It is urged by counsel for the Walker nominees that, inasmuch as the state convention admitted the delegates both of the Walsworth and of the Walker convention to seats in the state convention, and gave to each delegation the right to cast one-half the vote of Silver Bow county in the state convention, the action of the state convention v?as a recognition of both factions, and entitles each convention to be considered as a regular Democratic convention of the party in Silver Bow county, and that because of this recognition and the implied regularity of both conventions the nominees of each convention are entitled to be placed upon the ticket.
The state convention had the power for its own purposes to recognize either or both of the contending factions. No nominations had been made by either the Walswortk or by the Walker convention at the time that the state convention ivas held, and consequently there were no individual rights of nominees for the offices for which nominations might be made by a county convention to be affected by the action of the state convention. If the state convention had held that either the Walsworth or the Walker delegates were solely entitled to represent the Democratic party of Silver Bow county in the state convention, the question presented to this court would be a different one. However, while the state convention had the power to admit both the contesting delegations to seats in its body and to a participation in its proceedings, it could not lawfully decide in advance, or at all, that the nominees of each of the so-called conventions should be considered the regular nominees of the Democratic party of Silver Bow county, and entitled to have their names placed upon the official ballot in columns designated as “Democratic.” This court has heretofore held in State ex rel. Kennedy v. Martin, 24 Mont. 403, 62 Pac. 588, that only one ticket shall appear upon a ballot under a particular party designation. This case was decided October 22, 1900. The Session.Laws of 1901 (page-117) amend the law as it existed at the time of the above decision only to the extent of removing the circle from the head of each ticket, thereby preventing a voter from voting his straight ticket by marking in the circle. The court is of the opinion that this amendment in no wise changes the rule announced in the Martin Case, above. It follows that there can be but one democratic ticket printed upon the official ballot.
Thus there remains but one question for determination by this court: Was the ticket nominated by the so-called Walsworth convention nominated by a convention duly constituted and organized under the regularly constituted authority or party organization of the Democratic party of Silver Bow county? There is no question but that the Democratic county central committee of Silver Bow county had the authority to issue a call for primary elections .of delegates to a county convention. It is undisputed that this convention assembled at the time and place designated in the call of the central committee, that it proceeded regularly to organize, and that upon such organization being completed it placed in nomination the candidates composing the so-called Walsworth ticket. The sole claim of the so-called Walker nominess is that delegates alleged to have been chosen from certain precincts in Silver Bow county were excluded from participation in the convention. The evidence clearly shows, however, that after the Auditorium, which was a place owned and controlled by the city, was cleared by the mayor of Butte at the request of the central committee through its chairman, the convention was regularly called to order, and that there was opportunity for all claiming to be delegates to present their credentials to the regularly appointed committee of the convention. By the admission of counsel for the Walker nominees, the contesting delegates made no attempts to be admitted into the convention by presenting their credentials to the proper committee or otherwise, but immediately upon the clearing of the Auditorium proceeded to the courthouse, and then to the Family Theater, in the city of Butte, and there proceeded to organize another convention.
Hnder these circumstances it appears clearly to the court that the so-called Walsworth convention was in fact the regularly constituted and organized convention of the Democratic party of Silver Bow county, and duly empowered to nominate candidates for the offices for which it made nominations, and that the so-called Walker convention was in no sense entitled to be considered as a regular and legal convention of the Democratic party.
For these reasons the peremptory writ of mandamus was ordered to be issued on the 13th day of October, 1904.
Writ issued.
Me. Justice Milbuen and Me. Justice Holloway concur.
|
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] |
MR. COMMISSIONER CALLAWAY
prepared tbe following opinion for the court:
Action to quiet title. Tbe plaintiff, a corporation, alleged itself to be in tbe possession of tbe premises in controversy, and “tbat tbe said plaintiff claims to be tbe owner of, and claims title in fee to, tbe said premises, and tbat tbe said defendant claims an estate or interest therein adverse to tbe said plaintiff; tbat tbe claim of tbe said defendant is without any right whatever ; and tbat tbe said defendant has not any estate, right, title or interest whatever in said lands or premises or any part there of.” To this complaint the defendant answered. A demurrer to the answer was sustained, and upon the defendant’s refusal to amend, judgment was entered for the plaintiff, from which judgment the defendant has appealed.
In this court the defendant attacks the sufficiency of the complaint, saying that the plaintiff “nowhere pleads that it is the owner of the property in controversy; it pleads that the plaintiff claims to be the owner and the defendant claims to be the owner,” and says that the plaintiff has pleaded no better title for itself than it has for defendant. By the provisions of Section 1310 of the Code of Civil Procedure, “an action may be brought by any person against another who claims an estate or interest in real property adverse to him, for the purpose of determining such adverse claim.” The complaint is not a model, it is true, but it is alleged therein that the plaintiff is in possession of the premises; that he claims title in fee to the same; that the defendant claims an estate or interest therein adverse to the plaintiff; and that the claim of the defendant is without any right whatever, etc.
In construing Section 738, Code of Civil Procedure of California, which is identical with our Sectionl310, the court said: “The letter of this section would authorize any person to maintain the action whether he himself had any interest in the property or not. We are not, however, inclined to give it this broad construction. But it is clearly not necessary that he have title to the property. If he has the right to possession, and another is claiming an estate or interest adverse to such right, he may maintain the action. The language of the Code is broad enough to cover every interest or estate in lands of which the law takes cognizance. Pierce v. Felter, 53 Cal. 18; Stoddart v. Burge, 53 Cal. 398; Smith v. Brannan, 13 Cal. 107; Liebrand v. Otto, 56 Cal. 247.” (Pennie v. Hildreth, 81 Cal. 127, 22 Pac. 398.)
And in McKinnie v. Shaffer, 74 Cal. 614, 16 Pac. 509, the court said: “Whatever interest the plaintiff has may be quieted. If a title in fee, such interest may be quieted; if a less interest, the less interest may likewise be quieted.” (See Merk v. Bowery Mining Co., 31 Mont. 298, 78 Pac. 519, and cases cited.)
So far as the record discloses, no criticism was made upon the complaint in the court below, and the averments, “claims to be the owner of,” and “claims title in fee,” must be held sufficient in the absence of such a seasonable attack. (Hefferlin v. Karlman, 29 Mont. 139, 74 Pac. 201.) The pleader evidently meant to employ the word “claims” in the sense of “avers” or “alleges.” Among other definitions of the word “claim,” the Standard Dictionary gives the following: “To hold to be true against implied denial or doubt; affirm; assert.” Although this is a loose use of the term, its meaning is plain, and will be held sufficient under circumstances like the foregoing.
This disposes of the only question argued by defendant. It follows that the judgment should be affirmed.
Per Curiam. — For the reasons stated in the foregoing opinion, the judgment is affirmed.
Aff/rmed.
|
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Per Curiam.
These causes having been heretofore argued and submitted upon demurrers, it is hereby ordered and adjudged that the demurrers herein be and they are hereby sustained and the proceedings dismissed.
|
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] |
MR. JUSTICE MILBURN
delivered tbe opinion for tbe court.
This is a petition of relator asking for a writ of supervisory control to annul and set aside an order of the district court committing said Bordeaux to prison in certain contempt proceedings.
'It appears from the record that before the granting of a decree in divorce in favor of the plaintiff against the defendant in the case of Bordeaux v. Bordeaux, 30 Mont. 36, 75 Pac. 524, now before this court for final determination upon appeal after rehearing, the district court made an order directing the plaintiff (relator herein) to pay to his wife, the defendant, the sum of $100 per month alimony, and that this order has never been revoked or modified. In the contempt proceeding it appears that some time after the decree, and after appeal therefrom to this court, the relator failed to pay to his wife the alimony fixed by the court. Upon being cited to show cause why he should not be punished for contempt, he pleaded that he had been enjoined by the court from disposing of any of his property, and that his income was not sufficient to enable him to make the payment, and, further, that the court had no jurisdiction to make any order in the premises, because the case was not then in the district court, but on appeal. The court found his reasons insufficient, fined him $20 for contempt, and ordered him to pay the alimony then due, and to stand committed until the order of the court was complied with and the fine satisfied.
The action of the court was correct. If he could not, by stress of circumstances, comply with the order of the court, it was his duty, for his own protection, to go into court, relate the circumstances, and pray for a revocation or modification of the order directing him to pay alimony. It appears that his property is worth over $60,000, and his income more than $400 per month. A wife is entitled to the alimony until the case is finally determined, or until the order is revoked or modified by the court which made it. As has been heretofore said by this court, the supreme court has jurisdiction as soon as the notice of appeal has been regularly served and filed, and a sufficient undertaking properly filed witli the clerk of the court below, but. the case is in the district court. The determination of the appeal is for the supreme court. The district court has authority to compel obedience to its orders granting alimony. The supremo court certainly would not have any authority to enforce the order of the district court in the premises. (Grannis v. Superior Court of the City and County of San Francisco, 143 Cal. 630, 77 Pac. 647.)
The petition is denied, and the proceedings are dismissed.
Mr. Justice Holloway concurs.
Mr. Chiee Justice Rrantly, not having heard the argument, takes no part in the foregoing decision.
|
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] |
MR. CHIEE JUSTICE BRANTLY
delivered the opinion of the court.
The transcript on file in this cause shows that the plaintiff has attempted to appeal from a judgment entered against him in the district court, and also from an order overruling a motion to reject certain findings made by the jury. Respondent has interposed a motion, to dismiss the appeal from the judgment, on the grounds, among others, that the the transcript contains no copy of the judgment, and that no undertaking on this appeal was filed with the clerk of the district court. lie also moves to dismiss the appeal from the order on the ground that it is not appealable. The motion must be sustained.
To support an appeal from a final judgment, it must not only appear that the judgment has been entered (Section 1722, Code of Civil Procedure, as amended by Session Laws 1899, p. 146), but the record must contain a copy of it (Code of Civil Procedure, Section 1736). The record before us contains nothing which purports to be a copy of the judgment. It does not even show that any judgment has been entered. (Lisker v. O’Rourke, 28 Mont. 129, 72 Pac. 416, 755.) It also appears affirmatively from the showing made by respondent that no undertaking in support of this appeal was ever filed with the clerk of the district court. This omission renders the appeal ineffectual. for any purpose. (Section 1724, Code of Civil Procedure.)
Touching the attempted appeal from the order, it is sufficient to say that this order is not among those enumerated in Section 1722 of the Code of Civil Procedure, as amended by the Act of 1899, supra, from wbicb appeals are allowed. Hence it is not appealable. Let tbe appeals be. dismissed.
Dismissed.
Mr. Justice Mílburn and Mr. Justice Holloway concur.
|
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MB. COMMISSIONEB OLAYBEBGr
prepared the following opinion for the court:
This is an appeal by defendant from an order granting plaintiff a new trial.
Plaintiff filed a complaint in which he sought to recover upon five separately stated causes of action. The defendant answered the first cause of action, and allowed judgment to be taken against it on the other four. Plaintiff replied to this answer by way of general denial. By these pleadings an issue was formed, which was tried before a jury, and a verdict was rendered for defendant Plaintiff moved for a new trial, which was also granted.
The cause of action thus tried arose out of the following circumstances: In 1899 a syndicate composed of Charles Schatzlein, William Owsley, Silas F. King, John W. Cotter and S. W. Davis agreed and mutually contracted to enter into a company or co-partnership for the purpose of carrying on smelting and mining operations through a lease of the properties of the Montana Smelting & Mining Company at Twin Bridges. It appears that these parties paid certain money to rehabilitate the properties leased, and to prepare for the operations of the company. Cotter paid $6,000, and says: “There was a corporation to be formed, and we were to take stock in the corporation.” The corporation was subsequently organized, and corporate meetings were held, at which Cotter participated as a stockholder, voting 10,000 shares of stock. Afterwards the capital stock of the corporation was increased, in which proceedings Cotter also participated as a stockholder. No certificate of stock was ever delivered to Cotter. After some time two of the syndicate turned over certain promissory notes to the First National Bank of Butte, and that bank brought suit thereon, attaching all the properties of the company. The record is somewhat indefinite as to the purpose and character of these notes, but, as we view the case, this matter is entirely immaterial. After the attachment Cotter gave notice to defendant and to its president and secretary in the following form: “Gentlemen: You and each of you are hereby notified and requested to return and pay over to me the sum of $6,000 which was heretofore paid to the Butte & Iiuby Valley Smelting Company, on or about the 15th day of September, A. D. 1899, as a subscription for stock in the said company, which said stock has never been delivered to me, and I have elected to rescind the said contract of subscription for stock, owing to the failure of the company to deliver the stock to me in accordance with the terms of my subscription; and I hereby demand that the said company immediately repay to me the said sum of $6,000 with interest thereon from the date of tlie payment of the same to the said company to the date of repayment of same to me. Dated, Butte, Mont., September 4, 1902. John W. Cotter.” Subsequently Cotter assigned his claim to plaintiff, and this suit was brought.
1. The issue presented by the pleadings and proof was a very narrow one, and the evidence on material points was practically undisputed. Cotter says that he paid $6,000, which the company used, and that he was to have stock in return for it. He admits that the company was organized; that stockholders’ meetings were held, at which he participated as a stockholder, voting 10,000 shares of stock. It will be noticed that he undertook to rescind the contract under which the money was paid, and demanded a return of his money. He did not seek to compel the delivery to him of the certificates representing his stock, or to recover damages because the certificates were not delivered. His admissions that he paid the money for the benefit of the company and was to take stock therefor, and that he voted such 10,000 shares of stock as a stockholder in corporate meetings of the company, seem to us to be conclusive in this case that he was recognized as a stockholder by the company, and is estopped to claim the contrary. The mere issue of the certificates of stock to him would but furnish him with evidence of his ownership. One can be a stockholder prior to the issuance and delivery to him of certificates of stock. (Clark & Marshall on Private Corporations, Secs. 378 a, 378b; Cook on Corporations, Sec. 13; Cartwright v. Dickinson, 88 Tenn. 476, 12 S. W. 1030, 7 L. R. A. 706, 17 Am. St. Rep. 910; Mitchell v. Beckman, 64 Cal. 117, 28 Pac. 110; California Hotel Co. v. Callender, 94 Cal. 120, 29 Pac. 859, 28 Am. St. Rep. 99; Pacific Fruit Co. v. Coon, 107 Cal. 447, 40 Pac. 542; Packard Machinery Co. v. Laey, 100 Wis. 644, 76 N. W. 596.)
Section 2271 of the Civil Code provides that contracts may be rescinded “in the following cases only”: “(1) If the consent of the party rescinding, or of any party jointly contracting with him, was given by mistake, or obtained through duress, menace, fraud or undue influence, exercised by or with the connivance of the party as to whom he rescinds, or of any other party to the contract jointly interested with such party; (2) if, through the fault of the party as to whom he rescinds the consideration for his obligation fails, in whole or in part; (3) if such consideration becomes entirely void from any cause; (4) if such consideration, before it is rendered to him, fails in a material respect, from any cause; or, (5) by consent of all the other parties.”
Section 2273 provides that rescission “can be accomplished only” by compliance with the following rules: “(1) He must rescind promptly, upon discovering the facts which entitled him to rescind, if he is free from duress, menace, undue influence or disability, and is aware of his right to rescind; and, (2) he must restore to the other party everything of value which he has received from him under the contract, or must offer to restore the same, upon condition that such party shall do likewise, unless the latter is unable or positively refuses to do so.”
The record is barren of pleading or proof of the existence of any of the grounds of rescission mentioned in Section 2271, supra, and of compliance with either of the rules announced in Section 2173, supra. There was, therefore, no rescission shown. Before the right to recover the money paid upon the contract arose, the contract must have been rescinded.
'2. One of the grounds urged by plaintiff upon his motion for a new trial was that the verdict was “against the law,” being contrary to the instructions of the court. All the instructions given are to be taken into consideration in determining this question, and if the verdict was justified by any of the instructions given, and the instructions as a whole were inconsistent or conflicted with each other, the verdict was not contrary to the instructions.
By instruction No. 1 the jury were charged that if they found from the evidence that Cotter paid to defendant $6,000, or any amount, with the understanding that he was to receive a certain number of shares of the capital stock of the company, and if they further found “that defendant failed or neglected to deliver to him shares of its capital stock within a reasonable time, or at all, thereafter,” and that Cotter demanded a repayment to him of the amount and interest, and assigned his claim to plaintiff before the commencement of the suit, they should find a verdict for plaintiff. Under this instruction we believe that the jury was justified in finding a verdict for defendant. As above stated, the certificate of stock is merely evidence of ownership. The evidence disclosed that the company recognized Cotter as a stockholder to the extent of 10,000 shares, and that he voted that amount of stock as a stockholder at different stockholders’ meetings of the company. In our opinion this is equivalent to a delivery of the shares of stock to Cotter and an acceptance by him ydiich he is estopped to deny, and that the jury might have found such delivery, and therefore have rendered a verdict for defendant.
In instruction No. 2 the court charged the jury that if they found from the evidence that Cotter paid $6,000 as subscription to the capital stock of said company, to be thereafter organized, and if they further found that the company was organized and did not deliver to Cotter the certificates of stock for which he had subscribed or paid, “and if you further find that after the expiration of such reasonable time he rescinded said contract, and demanded a repayment to him of the money so paid as a consideration for such stock, to be delivered,” and if they further found that he assigned his claim to the plaintiff before the commencement of the suit, and that same has not been paid since the assignment, the verdict should be in favor of plaintiff for the amount so paid, together with interest. Instructions Nos. 4 and 5 also left the question .of rescission to the jury. The jury may have found, and were justified in finding, under these instructions and the evidence, that the contract had not been rescinded.
In instruction No. 8 the court charged the jury that “you are instructed that the written notice offered in evidence in this ease, signed by John W. Cotter, and notifying defendant that he had elected to rescind-the contract of subscription, and demanding a repayment of money claimed to be due him thereunder, was a sufficient rescission of said contract, and rescinded the same, provided you find that defendant failed to deliver to said John IV. Cotter the stock subscribed for by him, as explained in these instructions.” By this instructioii the court took away from the jury the right to fiixd as to whether or -not Cotter rescinded the contract, but left the jxxry to find xxpon the delivery of the stock. This instruction is inconsistent with the others given, and clearly the jury might have returned a verdict for defendant upon a finding that the stock had been delivered.
The court below was evidently confused xxpon the necessity for the delivery of the certificate of the shares of stock, instead of placiixg Cotter in the position of a stockholder and recognizing him as such.
Under the cases of Murray v. Heinze, 17 Mont. 353, 42 Pac. 1057, 43 Pac. 714, and King v. Lincoln, 26 Mont. 157, 66 Pac. 836, the rule of this court has been established that the jury is boxxnd by the law as givexx by the court, whether correct or ixot, and, if they do not follow such instructions in rendering their verdict, the verdict will be set aside and a íxew trial granted. This rule was adopted in California, as annoxxnced in the case of Emerson v. Santa Clara County., 40 Cal. 543. In oxir opinion this rule is not applicable in this case. Takixxg the whole charge of the court together, the jury was warranted by instrxxctions 1, 2, 4 and 8, as above recited, to find a verdict for defendant.
In the case of Altoona Quicksilver M. Co. v. Integral Quicksilver M. Co., 114 Cal. 100, 45 Pac. 1047, the court instrxxcted the jxxry to find a verdict against plaintiff. At the saxne time he gave other instrxxctions sxxbmittixxg the entire case to the jxxry. The court say: “In various iixstrxxctions it sxxbxnitted to the jxxry the qxxestion as to whether the plaintiff or its graxxtors had coxnplied with the law ixi regard to the location and working the mine, and as to its claixxi of right by actual adverse possession. The jury found for the plaintiff. In so doing they disobeyed the express direction to find against the plaintiff, but they obeyed the other direction to consider and pass upon the rights of the plaintiff, and to find according to the facts and principles of law declared by the court. The judge, in considering the case on motion for a new trial, was convinced that he had erred in directing the jury to find against the plaintiff, but thought, nevertheless, he ivas bound to grant a new trial on the authority of Emerson v. Santa Clara Co., 40 Cal. 543, in which it was held that a verdict against the instruction of the court is a verdict against the law. This case is not within the reason of that ease. Here the instructions were, in effect, contradictory, and the verdict, while opposed to one instruction, is warranted by others.”
Under the case of Murray v. Heinze. supra, we are not allowed to consider the correctness of any of the instructions given to the jury, but ive hold that we may look to the instructions 1o ascertain whether or not any thereof justified the verdict as returned by the jury. AYe have seen that the verdict was justified by instructions 1, á, 4, 5 and 8.
AATe cannot conceive how any verdict could be rendered upon the testimony as disclosed in the record except one for defendant. This being the case, we can perceive no reason for granting a now trial, and we therefore conclude that the court below abused its discretion in granting the new trial prayed for, and advise that its action in that regard be reversed.
AYe have not been aided in the investigation of this appeal either by printed brief or oral argument in behalf of respondent.
Per Ourtam. — For the reasons stated in the foregoing opinion, the order appealed from is reversed, and the court below instructed to set aside the order granting the plaintiff a new trial.
Mr. Justice Milu urn, not having heard the argument in this case, does not participate in this decision.
|
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] |
MR. COMMISSIONER CLAYBERG
prepared the following opinion for the court:
This is an appeal by the Bowery Mining Company from a judgment against defendants and from an order overruling its motion for a new trial.
Counsel for respondents moves the court to dismiss the appeaL on the ground that the notice of appeal was not served on John Berkin, one of the defendants, who is claimed to be an adverse party within the meaning of the statute. (Code of Civil Procedure, Section 1724.) This motion must be disposed of before entering into a -consideration of the case, because, if granted, this court has no jurisdiction to investigate the merits of the appeals.
The suit was for the purpose of removing a cloud from the title to plaintiffs’ mining claims, to quiet their title thereto, and to enjoin the defendants from prosecuting two actions then pending against plaintiffs — one of forcible entry and detainer to recover possession of said premises, the other for conversion of personal property; but from the record presented on these appeals it is apparent that upon the trial of the case all questions as to the injunctions to restrain the prosecution of these suits were omitted, and the case tried solely ripon the issues of removing the alleged cloud from plaintiffs’ title to the property and quieting the same. The defendants Berkin and the Bowery Mining Company filed separate answers, to which reference will be hereafter more specifically made.
Upon the motion for dismissing the appeal the only question to be considered is whether Berkin is an adverse party upon whom notice of appeal should have been served. Appellant concedes that the notice of appeal was not served upon him. In order to determine this question, a brief reference to the pleadings, the facts shown at the trial, the findings of the court, and the decree is necessary. It seems that respondents, being the owners of certain quartz claims, gave Berkin an option to purchase them upon the payment of $80,000 at different times, the last payment being due February 15, 1901. They also, by the same instrument, leased the property involved to Berkin uj>on certain considerations, which lease was to expire on the 15th day of February, 1901. Berkin afterward entered into an agreement with the Bowery Mining Company, whereby he gave to such company an option to purchase from him the same property on the payment of $100,000, the last payment to be made February 1, 1901, and leased the property to the company upon the same conditions as were expressed in the lease to him from plaintiff, except that the lease was to expire on February 1, 1901. The company entered into the possession of the property, and commenced the performance of its agreement with Berkin. Some months after the execution of these agreements plaintiffs entered into a supplementary agreement with Berkin, whereby, for certain considerations, they agreed to extend the later payments of the purchase price mentioned in the agreement for a period of six months from the time they were to mature under the original agreement. Berkin subsequently made the following indorsement upon the last-mentioned agree" ment, or upon a copy thereof, and delivered the same to the Bowery Mining Company, viz.: “The same modifications and extensions granted to me by F. R. and M. E. Merk in the foregoing agreement are hereby granted to the Bowery Mining Co. under the sublease made by me to said company embracing the said property.” The complaint, in paragraph 4 thereof, alleges that Berkin transferred the original agreement, together with his rights to operate the property, to the Bowery Mining Company, which company accepted the same and operated the property, and that on October 28, 1899, it was agreed between plaintiffs and the Bowery Mining Company that it should deal directly with plaintiffs under the agreement and lease between plaintiffs and Berkin, and should make all payments for royalties due, and all time payments, directly to plaintiffs. Berkin alleges in liis answer that after October 28, 1899, the Bowery Mining Company was the real lessee of plaintiffs under the attornment alleged in paragraph 4 of said complaint, and that, therefore, he was released and freed from all his obligations to pay plaintiffs as specified in his agreement, lie admits that the lease to him from plaintiffs expired by limitation on February 15, 1901, and that plaintiffs took quiet and peaceable possession of the property on February 16, 1901, and that at the time of the commencement of the suit they were in peaceable possession thereof, and were entitled to such possession. He then “denies that he claims any right, title or interest in or to the premisos mentioned in plaintiffs’ complaint, or in or to the possession thereof, and thus answers to paragraph thirteenth of said complaint.”
The Bowery Mining Company denies that Berkin ever assigned or transferred his agreement and lease with plaintiffs to it, and denies that it operated the property at all except under a lease from Berkin; denies that it was ever agreed that it should deal directly with plaintiffs; denies that plaintiffs peaceably took possession of the property, but alleges that they took possession by force and arms and with violence. The Bowery Mining Company then alleges by way of affirmative defense that plaintiffs made, executed and delivered to Berkin a lease and option upon the property described in the complaint, and that Berkin entered upon said property as a tenant of plaintiffs; that Berkin subsequently sublet the premises to it, and gave it an option for their purchase; that on May 9, 1900, plaintiffs gave Berkin an agreement extending said lease and option, and that Berkin gave it the same extension; that it occupied the premises as tenant of Berkin; that the plaintiffs agreed with the company to extend the time of the payment of the royalties under the lease until some time after the 15th of February, 1901, and claimed that by this agreement the royalties which were due on the loth of February, 1901, were to be used and had been used by it in work and improvements upon the property. This is denied in the replication, and the court found that no sueli contract bad been entered into. Tbe finding is in tbe following language: “That on or about tbe 19th day of January, 1901, tlie plaintiffs and Bowery Mining Co. had some conversation* relative to a further extension of time for tbe payment of royalties and tbe cash payment on the purchase price of the property due on the 15th day of February, 1901, but no contract was fully made or completed between tbe parties as to such ex- • tension.” Tbe Bowery Mining.Company further alleged in its answer that $10,000 due plaintiffs on the loth day of February, 1901, was fully paid by the additional work upon the property in its development and improvement and in the placing of improvements thereon, and that this was done with the knowledge and consent of plaintiffs, and under an agreement with plaintiffs. This is also denied in the replication, and is covered by the finding of the court above quoted. . Plaintiffs filed a replication to this answer, in which they reiterated the allegations of their complaint, and alleged that, if the premises were sublet to the Bowery Mining Company by Berldn, it was in equity an assignment to the Lowery Mining Company by Berldn of the lease and option given to him by tbe plaintiffs. The court found bat tbe Bowery Mining Company was tbe lessee of Berkin, and tkav. the lease from plaintiffs to Berkin expired by its own limitation on February 15, 1901, and that the supplementary contracts extending the time of payment of tlie purchase price did not, extend the lease. No question is raised by the pleadings or during the trial by either party as to tbe continuance of the lease and option from Berkin to tbe Bowery Mining Company, or as to tbe construction or validity of tbe contracts between it and Berkin, as between them.
From the circumstances and facts above detailed, and from the testimony hereinafter set forth, we must determine whether or not Berkin is an adverse party within the meaning of the statute.
The Supreme Court of California has announced the rule, and consistently followed it, that: “This court has jurisdiction to entertain an appeal only upon a compliance by the appellant with the procedure prescribed by the legislature for taking the appeal. Section 940 of the Oode of Oivil Procedure requires that the notice of appeal shall be served on the ‘adverse party/ Unless such service is made, this court has no jurisdiction over him, and any order or judgment it might make with reference to the judgment appealed from would be ex parte, and could .not affect his rights, or be binding upon him. The ‘adverse partjr* referred to in this section, is defined in Senter v. De Bernal, 38 Cal. 640, to.be ‘every party whose interest in the subject-matter of the appeal is adverse to or will be affected by the re~ versal or modification of the judgment or order from which the appeal has been taken In Williams v. Santa Clara Min. Ass'n, 66 Cal. 195, 5 Pac. 85, it was said: ‘This court has not jurisdiction to hear an appeal from a judgment unless the appellant shall have served the notice of appeal on all the adverse parties —-that is to say, upon all whose rights may be affected by a reversal of the judgment; or where the appeal is from part of the judgment, by a reversal of the part appealed from/ * * * AYhether a party to the action is ‘adverse* to the appellant must be determined by their relative position on the record and the averments in their pleadings, rather than from the manner in which they may manifest their wishes at the trial, or from any presumption to be drawn from their relation to each other, or to the subject-matter of the action in matters outside of the action. It would hardly be contended that the strength or relevancy of the argument of a party at the hearing in the court below could be conclusive for the purpose of determining whether he was in reality adverse, or in accord with the matter argued. If his position on the record makes him nominally adverse, he must be so considered for the purpose of an appeal from the judgment thereon.*’ (Harper v. Hildreth, 99 Cal. 265, 33 Pac. 1103.)
In the case of T. C. Power & Bro. v. Murphy, 26 Mont. 381, 68 Pac. 411, this court uses the following language: “A party is adverse who has an interest in opposing the object sought to be accomplished by the appeal. In the language of Chancellor Walwortli in Thompson v. Ellsworth, 1 Barb. Ch. 621, by ‘adverse party’ is meant ‘the party whose interest in relation to the subject of the appeal is in conflict with the reversal of the order or decree appealed from, or the modification sought for by the appeal.’ ”
It must be remembered that under the answer of the Bowery Mining Company in the case there was no privity of contract, agreement or estate between the Bowery Mining Company and plaintiffs. They claim to be lessees of Berkin, and to have the right to purchase the property under an option given to it by Berkin. JBerkin’s right to sell or to give the lease was dependent upon the performance by him of the option and lease given him by the plaintiffs. If he failed to perform these agreements according to their terms, all his right and interest in the property ceased. It will be noticed that the decree of the court says nothing about the validity or time of expiration of the option and lease given by Berkin to the Bowery Mining Company, but it seems to go on the theory that, if plaintiffs were entitled to recover from Berkin, and have the cloud created by the record of the option and lease removed, the same effect would necessarily follow as to the rights of the Bowery Mining Company under its contract and lease with Berkin. It must also be remembered that Berkin, by his sworn answer, admitted that the lease from plaintiffs to himself expired by its own limitation on the 15th day of February, 1901, and that plaintiffs were in the peaceable possession of the property at the time the answer was filed. He is precluded from thereafter taking a position, so far as plaintiffs are concerned, in any wise to the contrary.
The Bowery Mining Company seeks to reverse the judgment of the court below upon the theory, among others, that by the, supplementary agreement with Berkin dated May 9, 1900, plaintiffs extended to Berkin the time of the expiration of the lease for six months. They also claim that the supplementary agreement given to it by Berkin extended the term of the lease given to it by Berkin for a like period. We cannot consider, as an independent proposition, whether there is anything in the last claim of the' Bowery Mining Company or not, because the issues presented in the case by the pleadings raise no question as to the extension of the lease from Berkin to appellant. Nothing of this character was filed as against Berkin, and therefore there is nothing in that regard before this court for consideration.
The testimony introduced in behalf of appellant discloses that Berkin was manager of the property for appellant until about July 1, 1900, when he was succeeded by John N. Class as manager. Berkin expedited to go to Alaska, and it was agreed that all payments which were to be made to him under his contract with the Bowery Mining Company thereafter should he made directly to plaintiffs; that in December of that year there was due plaintiffs from Berkin about the sum of $3,000 as royalties, and that the Bowery Mining Company entered into an an agreement with plaintiffs for an extension of the time of payment of the same as follows: $1,000 to be paid about the 1st of January, 1901, the balance in $1,000 payments to be made every ten or fifteen days after the first payment, and agreed to pay the same accordingly; that the first payment was made under this agreement, but no other or further amounts were-paid; that in January and the early part of February, 1901, the Bowery Mining Company negotiated with plaintiffs to be allowed to expend the remainder of said royalties and other royalties accruing and accrued upon the development of the property and in doubling the capacity of the mill; that such agreement was made with plaintiffs, but never reduced to writing; that in reliance upon said agreement defendant expended several thousand dollars upon the property in excess of the amount required by the original lease. All this plaintiffs denied in their testimony, and. the court found that no such agreement was ever made. By the acts of the Bowery Mining Company above recited, as disclosed by its own evidence, Berkin was thereafter practically eliminated from the contracts, and the company took his place in all subsequent transactions thereunder with plaintiffs. All the Bowery Mining Company’s rights in and to the property in question originally came from its contract with Berkin, which necessarily depended for its validity upon the performance by Berkin of his undertakings and agreements in his contract with plaintiffs. By the action of the Bowery Mining Company above rehearsed, defendant practically assumed thereafter to take Berkin’s place in his contracts with plaintiffs, and Berkin was therefore eliminated from the transactions so far as plaintiffs are concerned. They treated the Bowery Mining Company as Berkin’s successor in agreeing to extend the time for paying the royalties in December, and in negotiating with it in regard to the balance of the royalties to be paid in January and February. The company acted in the place of Berkin in all these transactions, thereby excluding him therefrom. The.record is silent as to whether Berkin ever knew of these transactions at the time they were pending. The contracts between appellant and Berkin -were not involved in this suit, save as incidentally, and as claimed as a. defense by appellant. Their construction and validity were not in any manner passed upon as between appellant and Berkin, but only as to plaintiffs. The rights of appellant against Berkin under such contracts, whatever they may be, are left undetermined and unimpaired by this suit. Any liability against Berkin in favor of appellant must arise and be based upon said contracts, and cannot arise or become fixed under or by any judgment which may be rendered in this suit. Under all these circumstances we cannot see how Berkin can be affected or injured by a reversal of the judgment upon the Bowery Mining Company’s appeal, and therefore conclude that he is in no sense an adverse party upon whom notice of appeal should have been served by appellant. We therefore advise that the motion of respondents to dismiss the appeal be denied.
Upon the Merits.
It is not shown, either affirmatively, by sufficient recitals in the record, or otherwise, that it contains all, or the substance of all, the evidence introduced at the trial of the case bearing upon the errors alleged, and under the uniform decisions of this court we cannot consider the alleged insufficiency of evidence.
Aside from the insufficiency of the evidence alleged, there are but four questions to be considered upon the merits of these appeals, viz.: (1) Does the complaint state facts sufficient to constitute a cause of action? (2) Was time the essence of the option? (3) Was the lease part of the agreement extended by the supplementary agreement of May 9, 1900 ? (4) What is the effect of a clause in the original contract by which it is to be made void ab initio upon failure upon the part of the lessee to perform?
1. As to the sufficiency of the complaint. Appellant’s objections to the complaint are as follows: (a) That it is a complaint to restrain the prosecution of a pending action in forcible entry and detainer commenced by the appellant against plaintiffs. (b) That it is a complaint filed to declare and enforce a forfeiture, (c) That the plaintiffs have not done or offered to do equity, in, this: that appellant paid plaintiffs $5,000 on the purchase price of the property, and plaintiffs do not allege a return or offer of return of the same.
(a) Is the complaint to restrain prosecution of a forcible entry and detainer suit ?
We need not consider whether the complaint states facts sufficient to constitute such cause of action if it does state facts sufficient to constitute a cause of action for any other relief, as the,fifth subdivision of the prayer of the complaint is as follows:. “That the plaintiffs may have such other and further relief as shall be meet and agreeable to equity and good conscience.” This is sufficient to warrant the court in granting any relief to which the plaintiffs are entitled upon the allegations of the complaint and the proof introduced at the trial. (Leopold v. Silverman, 7 Mont. 266-286, 16 Pac. 580; Gillett v. Clark, 6 Mont. 190-192, 9 Pac. 823; Morse v. Swan, 2 Mont. 306-309; Davis v. Davis, 9 Mont. 267, 23 Pac. 715; Klein schmidt v. Steele, 15 Mont. 181, 38 Pac. 827; State ex rel. Russel v. Tooker, 18 Mont. 540, 46 Pac. 530, 34 L. R. A. 315; Section 1003, Code of Civil Procedure.)
An examination of the complaint discloses that it was filed to quiet plaintiffs’ title to the premises in controversy, to remove a cloud therefrom by cancellation of instruments which they say have no validity, and incidentally for an injunction against the prosecution of two suits against them by the Bowery Mining Company for forcible entry and detainer and one for conversion of personal property. There is no doubt but the allegations of the complaint are sufficient as an action to remove a cloud from plaintiffs’ title and cancel the contracts of August 15, 1899, and May 9, 1900, to Berkin, under Section 4450 of the Civil Code. (Wiard v. Brown, 59 Cal. 194; Angus v. Craven, 132 Cal. 691, 64 Pac. 1091.)
We are of the opinion that it is also sufficient to warrant a decree quieting title of plaintiffs against the adverse claim of the Bowery Mining Company. The complaint alleges that this company is assignee of the Berkin contract, and claims rights thereunder adverse to plaintiffs; but it asks in the prayer that defendants “set forth the nature of their adverse claims, and that the same-may be adjudged void.” The appellant sets forth a claim other than as assignee of Berkin’s contracts with plaintiffs, viz., an option of purchase and a lease of the premises in question between appellant and Berkin by written contracts. This claim is adverse to plaintiffs, and the court is given jurisdiction and authority under the pleadings and Section 1310 of the Code of Civil Procedure to decide upon the validity of this claim. All the complaint is required to allege in such case is that plaintiff is owner of the premises, and that the defendant claims some right adverse to him, without specifying of what such adverse claim consists. (Castro v. Barry, 79 Cal. 443, 21 Pac. 946; Montana Ore Purchasing Co. v. Boston & Montana C. C. & S. M. Co., 27 Mont. 288, 70 Pac. 1114.) It must ask that, such claim be set forth, and its merits be adjudicated. It would be absurd to say that plaintiffs, by the setting forth that the defendant' claims adversely under a state of facts and conditions mentioned in the complaint, could preclude the defendant from setting forth any other adverse claim.
(b) As to the plaintiffs’ complaint being to declare and enforce a forfeiture.
Appellant’s counsel misconceive the purpose of the suit when they make this assertion. Plaintiffs claim that the forfeiture was completed by proceedings taken by them in accordance with the provisions of the contract long prior to the commencement of the suit, and that such contracts are therefore void. They do not ask the court to declare or decree any forfeiture or enforcement of the same, but simply determine whether the acts of the plaintiffs in forfeiting the contracts under their terms have been sufficient.
The language of the Supreme Court of Michigan in the case of Pendill v. Union Mining Co., 64 Mich. 172, 31 N. W. 100, is very pertinent and conclusive: “Counsel for defendant further insist that the object of the bill is to declare a forfeiture of an estate for nonperformance of a condition subséquent against the rule that equity will never enforce a penalty or forfeiture. We do not think this is the proper view to be taken of the bill. The bill treats the lease as a void incumbrance, under which the defendant company, by its claims thereunder, clouds the complainant’s title. ' The court is not asked to declare the forfeiture, but to ascertain whether or not a completed forfeit" ure exists, and, if so, to remove the cloud. The bill does not ask the court to do the thing, but to ascertain whether it has been done, and, if so, to declare its effect upon the title to complainant’s property.”
(c) As to plaintiffs’ offer to do equity.
This contention is based upon the fact that plaintiffs have received $5,000 from appellant, and do not offer to return the same. The record discloses that this money was paid by appellant to Berkin under its contract with him, and not directly to the plaintiffs, and that Berkin paid it to the plaintiffs. There fore plaintiffs never have received it from appellant, were not bound to account for or pay it to appellant. Berlrin, from whom they received it, would be the only person, if any one, who could demand its return. He does not claim or demand it. But, even if it had been paid by appellant to plaintiffs it would not be entitled to its return under the decision of Clark v. American Developing & Mining Co., 28 Mont. 468, 72 Pac. 978.
2. AYas time the essence of the option?
AYe think it was. This court, in the case of Clark v. American Developing & Mining Co., supra, entered very fully into the discussion of this question, and came to the conclusion that time is the essence of every contract, whereby an option is given to purchase mining’ property. The court said: “The contract was unilateral, and by its express terms time was of its essence. There is a decided distinction between an option to purchase, which may be exercised or not by the prospective purchaser, and an absolute contract of sale, wherein one of the parties agrees to sell and the otller to buy certain projjerty, the sale to be completed within an agreed time. In the latter case, of course, the mere lapse of time, with the contract unperformed, does not entitle either party to refuse to complete it, and therefore time is not of the essence of the contract. But where the contract is merely an option, generally without consideration, and especially as applied to mining property, of course, as pointed out in the last preceding sections, time is of its essence. The prospective purchaser must act promptly within the time specified, or his right to purchase is gone. Snyder on Mines, Sec. 1378. And see Bindley on Mines, Sec. 839; Settle v. Winters, 2 Idaho, (Hash.) 215, 10 Pac. 216; Pomeroy on Contracts, Sec. 387; Pry on Specific Performance, 3d Ed., Sec. 1052.”
3. AYas the lease part of the agreement extended by the supplementary agreement of May 9, 1900?
AATe are satisfied that it was not. The purpose of the contract of May 9, 1900, was simply to extend the time in which to make the later payments provided for in the contract of August 15, 1899, for a period of six months. It recites: “The granting of above extensions axe to apply only to the time payments for purchase as specifically set forth in the original contract of August 15, 1899, and are not to apply on any royalties now due, or which may become due,' or otherwise.” And again: “In all other respects the original contract of August 15, A. D. 1899, to remain and be in full force and effect.” While the option and lease are contained in the same paper, either might have been given without the other, and each might have been given to different parties and by different papers. They are entirely separate and distinct agreements. The option part of the agreement does not give the proposed purchaser the right to the possession of the property at all. It only provides for the sale to the intended purchaser of the property as described in the contract upon the payment of certain sums therein mentioned at certain times. The only reference to the lease part of the agreement contained in the option is that the intended purchaser at thf time of making payments shall “have fully kept and performed all of the terms and conditions of this contract and the lease hereinafter given upon said property, to be kept and performed by the said party of the second part in accordance with the true and proper intent and meaning of this contract; * * * but if said party of the second part, his representatives or assigns, shall fail to make any of the said payments when due, or perform any or all of the conditions of this contract and hereinafter described lease to be by him performed, then, upon such failure, this agreement shall be declared void ab initio and at an end.” By this language the plaintiffs made it the duty of the defendant Berkin (and Berkin made it the duty of the Bowery Mining Company in his contract with that company) not only to make the payments at the time they were due according to this contract, but also to keep and perform the agreements set forth in the lease. The lease part of the agreement might have been for a time much shorter than that allowed for the payment of the purchase price. We cannot conceive any such relation between the lease and option that an extension of the time of payment of the purchase price under the option would extend the expiration of the lease. But, even if the lease was extended, it became forfeitable by its own terms by nonpayment to plaintiffs of the royalties when due, and it was so forfeited by plaintiffs before commencement of the suit.
4. As to the ab initio clause.
This clause is peculiar in its statements, and the words “ab initio" were evidently carelessly used; but we find in the contract of May 9, 1900, the following provision, which", in our judgment, modifies this clause, and sets it aside: “Said party of the second part further agrees with the parties of the first part, that any failure that may occur at any time during the iife of the original contract and this supplement, by said party off the second part, to fully comply with any of the terms in the original contract, or as modified or set forth in this its supplement, according to their true intent and meaning, or to make the payments for purchase as°herein extended and specified, is to cause a complete forfeiture of the original contract, and this, its supplement, to convey and lease.” We are clear that the language above quoted is a modification of the ab initio clause in the original contract, and makes a failure to pay the money at the time stated and specified in the two contracts a cause of forfeiture of the original contract and the supplement.
After a very full and careful consideration of the record, we are satisfied that the motion to dismiss the appeal made by respondents should be overruled, and that the judgment and order appealed from should be affirmed.
Mr. Commissioner Callaway, being disqualified, takes no part in the preparation of this opinion.
Per Curiam. —Por the reasons stated in the foregoing opinion, the judgment and order are affirmed.
Affirmed.
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] |
Per Ouriam.
This case presents the same question involved in that of Pollock Mining & Milling Company v. Davenport, decided this day, ante, page 452. Therefore, on the authority of the last mentioned case the judgment is affirmed.
Affirmed.
|
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] |
MR. COMMISSIONER CALLAWAY
prepared the following opinion for the court:
The lower court sustained defendant’s motion for a judgment on the pleadings, and plaintiffs appeal.
The determinative question is, does the complaint state a cause of action? It alleges the corporate capacity of the defendant, and states that on or about the 15th day of August, 1895, the plaintiffs, then being the joint owners of 1,425 shares of the capital stock of the defendant, at the instance and request of the defendant deposited with the treasurer of the defendant 1,400 shares of said capital stock, of the par value of $140,000, and of that actual value in money, “to be sold by the defendant, and the proceeds thereof to be used by the defendant in paying its debts and liabilities, as well as its current expenses, in consideration whereof the defendant then and there agreed” that the plaintiff James Glass should hold the offices of vice president, trustee and general manager of the defendant until the mining, concentrating and smelting business of the defendant should be in successful operation, and that the plaintiff Alexander J. Glass should have and hold the offices of trustee and treasurer of the defendant until the business of the corporation should be in successful operation as aforesaid; that there was no other consideration moving the plaintiffs to deposit the said stock with the defendant; that the business of the defendant has never yet been in successful or other operation, but that the defendant, in violation of its agreement, on or about the 20th of October, 1899, ousted and ejected plaintiffs from said offices, and ever since has refused and now refuses to permit the plaintiffs to have, hold or enjoy the same, by reason whereof the consideration whereby the 'defendant secured* the stock “has, through the Avrongful acts of the defendant, Avholly failed;” that the defendant has sold and issued all of the stock to other stockholders, and disposed of the same; that the defendant has Avholly failed and refused, and noAV does fail and refuse, to redeliArer the stock to the plaintiffs, or to pay the plaintiffs the value thereof, although often requested so to do by the plaintiffs. Other allegations in the complaint are immaterial to this inquiry. The plaintiffs pray for the recovery of the posesssion of the stock, or for the sum of $140,000, the value thereof, in case deliA*ery cannot be had, and for costs of suit.
At the outset avo are called upon to determine, if possible, the nature of the action. In attempting to do so we shall bear in mind that, under the Code procedure, distinct forms of action are abolished. The only question is, does the complaint state a cause of action ? It is the substance of the pleading, and not its legal Arerbiage, Avhich must determine the question. Though the Oode has abolished all forms of action, and provides that there shall be but one form of civil action for the enforcement or protection of private rights and the redress or prevention of private wrongs (Oode of Oivil Procedure, Section 460), yet the distinctions betAveen the different causes of action still obtain— the reasons underlying them are still the same — and the plaintiff may not recoA'er beyond the case stated by him in his complaint. (Bixel v. Bixel, 107 Ind. 534, 8 N. E. 614, and cases cited.)
From tbe relief prayed for, it would seem that tbe pleader intended this action for one in claim and delivery, ivbicb is an action to recover specific personal chattels, wrongfully taken and detained, or wrongfully detained, with damages for the wrongful detention. (Fredericks v. Tracy, 98 Cal. 658, 33 Pac. 750.) The gist of the action is the wrongful detention of the property. (Hynes v. Barnes, 30 Mont. 25, 75 Pac. 523.) The value of the property is recoverable only when a delivery of the specific property cannot be had. (Hunt v. Robinson, 11 Cal. 262; Riciotto v. Clement, 91 Cal. 105, 29 Pac. 414.) In such an action it is necessary to state that the plaintiff has either a general or special ownership in the property, with the right to its immediate possession, at the time of the commencement of the action. (Fredericks v. Tracy, supra; Affierbach v. McGovern, 79 Cal. 269, 21 Pac. 837; Williams v. Ashe, 111 Cal. 180, 13 Pac. 595; Holly v. Heiskell, 112 Cal. 174, 44 Pac. 466; Bank of Woodland v. Duncan, 117 Cal. 412, 49 Pac. 414; Melton v. McDonald, 2 Mo. 45, 22 Am. Dec. 437; Noble v. Epperly, 6 Ind. 414.) The rule stated in First National Bank v. McAndrews, 7 Mont. 150, 41 Pac. 763, is inaccurate, as inspection will show.
The complaint fails to allege these necessary facts. However, it does show affirmatively that, when the action was begun, the defendant had sold and disposed of the stock. This alone would be fatal to the action as one in claim and delivery, for it is essential for the plaintiffs to allege and prove that at the commencement of the action the defendant wrongfully detained the possession of the property from them. (Riciotto v. Clement, supra; Henderson v. Hart, 122 Cal. 332, 54 Pac. 1110; Gardner v. Brown, 22 Nev. 156, 37 Pac. 210; Herzberg v. Sachse, 60 Md. 126.) “It is the condition and situation of things when the suit is. commenced which furnish the grounds for the action.” (Aber v. Bratton, 60 Mich. 357, 27 N. W. 564, and cases cited; Burt v. Burt, 41 Mich. 82, 1 N. W. 936.) Whoever has the possession of the property to be replevied, and unlawfully detains it, is the proper person to be sued. (Rose v. Cash, 58 Ind. 278.) It is clear that, from what the complaint fails to show and does show, it does not state a cause of action in claim and delivery.
Does it state a cause of action in conversion? To recover in such an action, the plaintiffs must show a general or special ownership in the chattels, and a right to their immediate possession, at the time of the wrongful taking by defendant. (Wetzel v. Power, 5 Mont. 214, 2 Pac. 338; Sawyer v. Robertson, 11 Mont. 416, 28 Pac. 456; Reardon v. Patterson, 19 Mont. 231, 47 Pac. 956; Babcock v. Caldwell, 22 Mont. 460, 56 Pac. 1081; Harrington v. Stromberg-Mullins Co., 29 Mont. 157, 74 Pac. 413.) The complaint makes no such showing, and it fails to state that the defendant has converted the property. “A conversion is any unauthorized act which deprives a man of his property permanently or for an indefinite time.” (Union S. Y. & T. Co. v. Mallory S. & Z. Co., 157 Ill. 554, 41 N. E. 888, 48 Am. St. Rep. 341.) “Any distinct act of dominion wrongfully exerted over one’s property in denial of his right, or inconsistent with it, is a conversion.” (Oooley on Torts, 428.)
Was the sale and disposal of the stock by the defendant unauthorized or wrongful? The complaint answers the question in the negative. It recites that plaintiffs deposited their stock with defendant to enable the latter to pay its debts and current expenses. The defendant sold and disposed of the stock, and presumably applied the proceeds to the purposes intended when the stock was received from the plaintiffs. No other conclusion can be drawn from the wording of the complaint. And it does not appear but that these acts were done while the plaintiffs were holding the offices mentioned in the contract, and actively assented thereto.
Having determined that the complaint neither states a cause of action in claim and delivery nor in conversion, we will look to it to see whether plaintiffs may recover upon the contract. The plaintiffs concede the contract to be void, but do not indi cate upon what ground, they make such concession. In examining the subject, we find that Section 431 of the Civil Code provides that the directors of a corporation must be elected annually by the stockholders or members. By the contract pleaded, it was agreed that the plaintiffs shoidd be trustees (directors) until the business of the defendant should be in successful operation. Over four years elapsed, and yet it is alleged “that the business of the defendant has never yet been in successful or other operation.” Section 2240 of the Civil Code reads: “That is not lawful which is (1) contrary to an express provision of law; (2) contrary to the policy of express law, though not expressly prohibited; or (3) otherwise contrary to good morals.” It thus appears that this contract is void and unlawful, as being directly contrary to an express provision of law, in so far as it provides for the plaintiffs to succeed themselves as trustees indefinitely; and, in so far as it provides that the plaintiffs shall have a like tpnure of the offices of general manager and treasurer of the corporation, it is within the inhibition of the second and third provisions of Section 2240. Similar contracts have frequently been declared void as against public policy. (West v. Camden, 135 U. S. 507, 10 Sup. Ct. 838, 34 L. Ed. 254; Noel v. Drake, 28 Kan. 265, 42 Am. Rep. 162; Guernsey v. Cook, 120 Mass. 501; Noyes v. Marsh, 123 Mass. 286; Woodruff v. Wentworth, 133 Mass. 309; Forbes v. McDonald, 54 Cal. 98; Wilbur v. Stoepel, 82 Mich. 344, 46 N. W. 724, 21 Am. St. Rep. 568.)
In Swanger v. Mayberry, 59 Cal. 91, the court said: “The general principle is well established that a contract founded on an illegal consideration, or which is made for the purpose of furthering any matter or thing prohibited by statute, or to aid or assist any party therein, is void. This rule applies to every contract which is founded on a transaction malum in se, or which is prohibited by statute, on the ground of public policy. Ladda v. Hawley, 57 Cal. 51; Warren v. M. I. Co., 13 Pick. 521, 25 Am. Dec. 341; Mitchell v. Smith, 1 Bin. 118, 2 Am. Dec. 417; Holt v. Green, 73 Pa. 198, 13 Am. Rep. 737; Woods v. Armstrong, 54 Ala. 150, 25 Am. Rep. 671.”
In Gardner v. Tatum, 81 Cal. 370, 22 Pac. 880, the court quoted the foregoing language from Swanger v. Mayberry, and continued: “This principle is in accord with the express provision of our Civil Code which makes that unlawful which is either contrary to the express provision of law, or ‘contrary to the policy of express law, though not expressly prohibited.’ Civil Code, Section 1667.” (See note to Parsons v. Trask, 66 Am. Dec. 506.) Section 1667, referred to, is identical with Section 2240, supra. (And see Sections 2150, 2151, 2153, 2162 and 2163, Civil Code.)
The complaint contains no suggestion that the plaintiffs have repudiated the contract, nor any facts from which a repudiation thereof by them may be deduced. On the contrary, they allege that their side of the contract has been fully executed, but that the defendant ousted and ejected them from the offices they held and were to hold by virtue of the contract, and refused and still refuse’s to permit them to hold and enjoy the same. They characterize these acts of defendant as being a violation of the contract and. as wrongful.
The following language from the opinion in Williamson v. C., R. I. P. R. R. Co., 53 Iowa, 126, 4 N. AM 870, 36 Am. Rep. 206, is pertinent here: “In this case the plaintiffs have fully performed the contract on their part. On their side the contract has been executed. The action is not brought in disaffirmance of their contract. Upon the contrary, they allege a full performance of the contract upon their part, and a breach of the contract upon the part of the defendant. It is upon this breach that they predicate their right to recover. Their action is upon the contract. * * * AVe feel fully satisfied that for a breach of the contract, as alleged and proven, no damages are recoverable.”
The facts in the case from which we have just quoted were that the plaintiffs procured the conveyance to the defendant of certain lots in the city of Des Moines upon consideration of a promise by defendant that it would build thereon passenger and freight depots, which should be the only ones built or maintained by it in said city. Defendant built and maintained both passenger and freight depots thereon, but, having also built a depot in another part of the city, an action was brought by plaintiffs to recover, as damages, the value of the lots conveyed. It was held that such action was based upon the contract, which was illegal and void as against public policy, and, the parties being in equal fault, the action could not be maintained.
From the facts stated in the complaint before us, the parties, in making and carrying out the contract, which seems to have been fully executed by plaintiffs, and performed by defendant for over four years, were equally at fault. Therefore the maxim that, “as between those in equal fault, the possessor’s case is the better,” applies in all its force. (See Setter v. Elvey, 15 Kan. 157; Bagg v. Jerome, 7 Mich. 145; Knowlton v. Congress & Empire Spring Co., 57 N. Y. 518; Myers v. Meinrath, 101 Mass. 366, 3 Am. Rep. 368; Spalding v. Bank, 12 Ohio, 544; Tyler v. Smith, 18 B. Mon. 793; Hill v. Freeman, 73 Ala. 200, 49 Am. Rep. 48.)
The general rule is thus stated by Lawson in 9 Cyclopedia of Law and Procedure, commencing on page 546: “No principle of law is better settled than that a party to an illegal contract cannot come into a court of law and ask to have his illegal objects carried out, nor can he set up a case in which he must necessarily disclose an illegal purpose as the groundwork of his claim. The rule is expressed in the maxims, ‘Ex dolo malo non oritur actio/ and, ‘In pari delicto potior est conditio defendentis/ The law, in short, will not aid either party to an illegal agreement. It leaves the parties where it finds them. Therefore neither a court of law nor a court of equity will aid the one in enforcing it, or give damages for a breach of it, or set it aside at the suit of the other, or, when the agreement has been executed in whole or in part by the payment of money or the transfer of other property, lend its aid to recover it back.” It is unnecessary to cite authorities in support of this text. “Their name is legion.”
Counsel for plaintiffs says that they, upon a disaffirmance of the illegal contract, may recover the property transferred, as upon an implied promise on the part of the defendant to return or make compensation for it. Whether this position is tenable, we need not decide. It cannot be maintained in this action. The facts stated in the complaint are totally at war with such contention. (Phoenix Bridge Co. v. Keystone Bridge Co., 142 N. Y. 425, 37 N. E. 562.) The position .is ingenious, but has no foundation upon the facts alleged. Plaintiffs’ house is built upon the sands.
It follows that the judgment should be affirmed.
Per Curiam. — Eor the reasons given in the foregoing opinion, the judgment is affirmed.
|
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] |
ME. JUSTICE HOLLOWAY
delivered tbe opinion of tlie court.
On October 23, 1903, tbe Helena Water Works Company commenced an action in tbe district court to secure an injunction restraining the city of Helena and its executive officers from entering into a contract to purchase certain water pipes, fire hydrants, etc., and from paying for the same.
It is alleged in the complaint that the city is and has been for several years last past continuously indebted in excess of three per centum of the valuation of all the taxable property within the city; that pursuant to an order of the city council the city has caused to be published a notice, the material portion of which is as follows:
“Bids Wanted.
“Notice is hereby given . that until Monday, twelve (12) o’clock noon, October 19, 1903, the city of Helena, Montana, will receive sealed proposals, in accordance with specifications, for entering into a contract, to be awarded to the lowest responsible bidder, for furnishing one hundred and seventy-seven (177) tons of cast iron pipe, specials, eleven (11) fire hydrants, lead, jute, packing, gate valves, etc., such materials to be used on Main street as part of water system. Terms cash; * *”
“'Edward Hprsky, City Clerk.”
It is further alleged that the city of Helena does not own or control any water system, and has never supplied itself or its inhabitants with water, but that the city and its inhabitants have been supplied with water by the plaintiff company under a franchise owned by it and granted to it by the city of Helena; that it is the purpose of the city of Helena to make the pipe, hydrants, etc., mentioned in the notice above, a part of a water system which it is the purpose of the city to install, own, control and operate. It is further alleged that the city council has made an appropriation of $12,000 out of the funds received from taxes collected by the city for general municipal and administrative purposes for the payment of the pipe and other materials mentioned above. It is then alleged that, unless restrained by the court, the city will enter into a contract for the furnishing of the pipe and other materials mentioned in the notice; that a further indebtedness of the city will thereby be incurred; that the mayor and city clerk will issue a warrant for the payment of such materials; and that the treasurer, upon presentation, will pay such warrant, and thereby misappropriate a large amount of the funds belonging to said city.
The answer admits all the allegations of the complaint-, except the allegation that a further indebtedness on behalf of the city will be created, that a warrant to pay for the materials mentioned in the notice will be issued, or that there will be any misappropriation of city funds. It is also alleged in the answer as follows: “That under the conditions existing on said Alain street, in the city of Helena, and with which said city is and has been confronted at all times within the year last past, and immediately prior to the commencement of this action, the said appropriation and expenditure was, by the city council, in the exercise of its business functions and discretion, deemed and considered a reasonable, necessary and current expense of said city of Helena.” No reply was tiled.
Thereafter the plaintiff and the defendants each fíled a motion for judgment on the pleadings. The motion of the defendants was overruled, the motion of the plaintiff sustained, and a judgment in favor of the plaintiff entered granting the relief sought in the complaint; from which judgment this appeal is prosecuted.
In State ex rel. Helena Water Works Co. v. City of Helena, 24 Mont. 521, 63 Pac. 99, 55 L. R. A. 330, 81 Am. St. Rep. 453, this court intimated that it would be competent for the city of Helena, even though the constitutional limit of indebtedness had been reached, to continue to transact its business on a cash basis. However, in Helena Water Works Co. v. City of Helena, 27 Mont. 205, 70 Pac. 513, it was held that the intimation given in the former opinion was merely obiter, and erroneous, for the reason that under Sections 4811, 4812, Political Code, then in force, before any claim against the city could be paid, such claim must be presented to the city council, audited by it, an indebtedness on the part of the city established, a warrant for the amount of such indebtedness drawn, and such warrant duly presented for payment. The effect of this decision was to deny to the city of Helena and other cities which had reached the constitutional limit of indebtedness power or authority to proceed with the management of the business affairs of such cities, unless all work performed for or materials furnished to them be done gratuitously; and, as such a condition of affairs is not within reason, the actual effect was to stop the corporate existence of such municipalities until some relief could be had at the hands of the legislature, for the court specifically decided that no funds can be paid out until an indebtedness is first established, and, as the limit of indebtedness had been reached already, no funds could be paid out at all (special assessments excepted).
This decision was rendered November 10, 1902. On February 25, 1903, the Eighth Legislative Assembly passed an Act entitled “An Act to amend Sections 4811, 4812, of Article IY, of Chapter III, Title III, Part IY, of the Political Code of the State of Montana, relating to legislative powers of cities and towns.” (Session Laws 1903, Chapter 30.) Those sections, as amended, now particularly provide that, even after a city has reached the constitutional limit of indebtedness, it still has power (1) to manage and conduct its business affairs on a cash basis, and pay its reasonable and necessary current expenses out of the cash in its treasury derived from its current revenues; (2) in the event it makes such payment in advance, to require indemnity or security in the form of a cash deposit, to be held by the city treasurer; (3) before payment of the current expenses, to set apart sufficient money to pay the interest on its outstanding indebtedness, and to create any sinking fund for winch provision is made.
Considering the foregoing amendments, then, in the light of the history surrounding their enactment and the decision of this court to which reference has just been had, and which must be deemed to have been in the legislative contemplation in making such amendments, it is apparent that the purpose of the legis lature was to furnish some remedial measure which would permit such municipalities to live. ■
Section 4800, Political Code, specifies the items of expense which a city that has not reached the constitutional limit of indebtedness may incur. The list of items is a long one, and evidently was meant to include every species of expense necessary to the existence, well-being and prosperity of such municipality. If the legislature, in amending Sections 4811 and 4812, above, had intended to extend to municipalities laboring under the disability surrounding the city of Helena by reason of its having reached the constitutional limit of indebtedness, authority to incur any or all of those items of expense enumerated in Section '4800, terms sufficiently broad to indicate such purpose would doubtless have been employed. But, on the contrary, the legislative assembly made use of qualifying terms, which seem to indicate a purpose to limit the items to such only as are actually necessary to corporate existence. The terms used are “reasonable and necessary current expenses.” '
In the first place, then, under these amendments the city of Helena cannot pay any expense until provision is first made for interest on its outstanding indebtedness and for any sinking fund which, the city may have undertaken to create. Then its authority to make expenditure of public money is limited not only to paying current expenses, but further limited-to such current expenses only as are both reasonable and necessary. While it was left to the courts to determine what was meant by the expression “current expense,” it was a matter exclusively for the city council to determine Avhether a particular current expense was reasonable and necessary, and a determination by the city council of such question would not be subject to review by the courts, in the absence of fraud or abuse of discretion. (1 Dillon on Mun. Corp., 4th Ed., Sec. 94; East St. Louis v. Zebley, 110 U. S. 321, 4 Sup. Ct. 21, 28 L. Ed. 162.)
The expression “current expense” is not found in Section 4800, above, which grants to city councils authority to incur expense, and therefore that expression must be given the meaixing which was intended by the legislature in amending Sections 4811 and 4812, above, if that can be ascertained. The word “’current” means “running, now passing, common.” (Webster’s International Dictionary.) The term was doubtless used by the legislature to distinguish the common, .recurring, running expenses of a city from such expenses as partake of the nature of an investment, or such as are to be incurred in a 'substantial or permanent improvement. In other words, the city may incur such necessary, reasonable expense as is requisite to the corporate existence of the city. If the city may incur any expense enumerated in Section 4800, then the qualifying term “current,” made use of-by the legislature in amending Sections 4811 and 4812, is meaningless. It was certainly not intended to place a premium upon extravagance or improvidence. Neither was it intended that a city which has reached the constitxxtional limit of indebtedness shall enjoy greater freedom in the expenditure of public money than a city which has kept well within the limits prescribed by the fundamental law of the state.
The record discloses that the city of Helena and its inhabitants are furnished with water by a corporation existing under a franchise granted to it by the city of Helena. It is further disclosed that the purpose of the city in soliciting the bids called for was to install and operate a water system which should belong to, and be under the control of, the city itself; and, while the object to be sought by the city may be ever so praiseworthy, the expenditure partakes so much of the nature of an investment ill a permanent improvement that it cannot have been in the contemplation of the legislature when it limited the authority of the city of Helena to incur only necessary and reasonable current expenses.
If a city has so wisely administered its financial affairs that, it has not reached the"constitutional limit of indebtedness, every expenditure of public money made by it must be made under the very eyes of its inhabitants, any one of vdiom is afforded an opportunity to inspect the items of the proposed expenditure and register his objection to such as may appear to him unwise or unnecessary; for in such case every item of proposed expenditure must be incorporated in an itemized bill, duly verified, filed with the city council, audited and allowed before payment can be ordered. .Hut the city which has reached the limit of indebtedness may proceed to pay for its reasonable, necessary current expenses without any bills for the same ever having been made out, and with no opportunity whatever for interested taxpayers to impure into or contest the allowance of any items of such expense.
The city which has been so unfortunate as to reach the constitutional limit of indebtedness must be content thereafter, while such disability exists, to maintain corporate existence, leaving any and all improvements not necessary to such existence for future efforts, when, by this forced economy, the city may so far reduce its indebtedness as to be able to take its place among other cities of the state which do not labor under this disability.
The legislature, in its wisdom, made provision for such continued existence, but employed terms in so doing, such as seem to indicate a legislative purpose to limit expenditure of public money to those items of expense only which may properly be designated as living expenses.
We are of the opinion that the answer states no defense, and the judgment is affirmed.
Affirmed.
Mu. Cuiee Justice Hraxtly and Mr. Justice Milburx concur.
|
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Per Curiam.
Relator’s application for a writ of supervisory control herein is hereby denied.
|
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MR. COMMISSIONER CLAYBERG
prepared tbe following opinion for tbe court:
Tbis is an appeal from a final judgment and from an order overruling a motion for a new trial.
Tbe complaint upon wbicb tbe action is brought is as follows:
“Comes now tbe above-named plaintiff, and, leave of court first having been bad and obtained, files tbis, bis amended complaint, and for cause of action against tbe above-named defendants alleges:
“(1) That plaintiff is a resident of tbe county of Silver Bow, Montana.
“(2) That the defendant Charles Suiter is now, and for a long time prior hereto has been, a resident of tbe county of Silver Bow, gtate of Montana.
“(3) That heretofore and during the years 1896 and 1897, this plaintiff, 0. E. Roach, and Charles Suiter were copartners doing business as such in the state of Montana under the firm name of Riddell & Roach. That said copartnership was engaged in the erection and construction of the School of Mines building at Butte, Montana, for which it had secured the contract from the state of Montana through the state board of said School of Mines.
“(4) That at all the times hereinafter mentioned the defendant George L. Ramsey was the cashier of the Commercial National Bank at Bozeman, Montana, and as such cashier had supervision over the business of said bank, and over the paying out of all moneys which were paid out or withdrawn from the account of said copartnership, which was carried in said bank.
“(5) That it was agreed between this plaintiff, said Roach, and Suiter that all moneys belonging to the firm of said Riddell & Roach, and particularly all moneys which should be received by said copartners on account of the erection and construction of said School of Mines building under the contract aforesaid, should be kept and used by said copartnership for the purpose only of paying the cost of all labor and material necessary for the construction and erection of said School of Mines building, save that each of said copartners should be entitled to the sum of $125 per month out of the said copartnership money to defray his living expenses during the time while said School of Mines building was being erected, and until the same should be completed.
“(6) That it was agreed by and between this plaintiff and the said Roach and Suiter that all sums of money belonging to said copartnership of Riddell & Roach, and arising from said contract for the erection of said School of Mines building, or received by said copartnership on account thereof, or for the purpose of erecting said building, should be deposited in a bank to the credit of said copartnership of Riddell & Roach, and that the same, except the sum of $125, which was to be drawn by and paid to each member of said copartnership during the ,time when said School of Mines building was in course of construction for the purpose of defraying his living expenses, should only be drawn therefrom or paid out on account of materials, supplies and labor necessarily iirocured, used and employed in the erection and completion of said School of Mines building. That said defendant Geo. L. Eamsey knew of said agreement between the plaintiff and his copartners, and with a full knowledge thereof solicited this plaintiff and said copartnership of Eiddell & Eoach to deposit the funds of .said copartnership in the Commercial National Bank of Bozeman, Montana, and agreed that, if said moneys were so deposited, they should be kept in an account by said bank to the credit of Eiddell & Eoach for such purpose.
“(7) That during the time from on or about the month of July, 1896, to the month of March, 1897, the said firm of Eiddell & Eoach deposited with the said Commercial National Bank of Bozeman large sums of money belonging to it, and which were to be used for the purpose of paying for the materials and labor which were or might be necessary to be procured, used and employed in the erection of said School of Mines building, and for the living expenses of the said copartners, to-wit, the sum of $125 per month to each of them as aforesaid. ■ That all of the moneys which were deposited in said bank during the time aforesaid by said Eiddell & Eoach belonged to said copartnership in its said business of erecting and constructing said School of Mines building, and was to be used therefor, and that said defendant George L. Eamsey had full knowledge of the same, and of the agreement between this plaintiff and his copartners with regard to the use to be made of said sums of money.
“(8) That during the time when the money belonging to said copartnership was deposited in and was being deposited and kept on deposit in said Commercial National Bank of Bozeman, the defendants, Charles Suiter and George Tj. Eamsey, together with said 0. E. Eoach, and in pursuance of an agreement and scheme entered into between them to defraud the plaintiff of his rights in said cepartnorship and of said moneys, jointly engaged in withdrawing large sums of money from time to time from said account, and converting the same to their own use. That said defendants and the said Roach so jointly withdrew from said account, and jointly converted to their own use, without the knowledge or consent of the plaintiff, and in fraud of his rights, the sum of $8,200, to the damage of the plaintiff in said sum. That no part of the same was applied to the payment of any material or labor furnished or employed in the erection of said School of Mines building, or on account of said partnership business, or on account of said sums of $125 per month which the said Suiter and Roach were entitled to use for living expenses ; and that neither of said defendants or said Roach were entitled to any part of said amount so withdrawn and converted by them; and that, had said sum not been withdrawn and converted to the aforesaid use, the whole thereof would have remained to the plaintiff upon the dissolution of said partnership hereinafter alleged, and would have belonged to him free from any claim of right of said defendants or the said Roach,
“(9) Plaintiff alleges that said defendants and said Roach during all the time that they were withdrawing said money from said account and converting the same to their own use concealed the same from the plaintiff, and falsely represented to him that all moneys which had been deposited in said bank were being kept and used only for the purposes of said copartnership, as aforesaid, and that the whole amount which was paid out or which was being paid out or withdrawn from said bank, aside from .the monthly allowance to the members of said copartnership, was paid out and was being paid out for labor and material necessarily employed, procured and used and to be used in the construction of said School of Mines building. That he relied upon such representations, and that by reason thereof, and by reason of the concealment of the conversion of said moneys by the defendants and said Roach, he was prevented from having any knowledgé thereof until on or about the 20th day of January, 1898, and that by reason of the fraudulent acts, concealments and representations of said defendants and said Roach lie did not know of any sum or amount of said money having been converted by them to their own use until on or about said day.
“(10) That on or about the .... day of March, 1897, said copartnership was dissolved as to said O. E. Roach, and that on or about said day said C. E. Roach sold, assigned, transferred and set over unto the plaintiff all of his rights in and to said copartnership and in and to all of the property, claims, demands and rights of actions thereto belonging, and thereupon the rights of said Roach in and to said copartnership were fully determined and settled, and said copartnership fully dissolved as to him, and the plaintiff is now, and ever since said time has been, the owner and entitled to_ all of the rights of said Roach in and to said partnership, its business, property and assets. That thereafter the plaintiff and said Charles Suiter conducted the said copartnership business up until the 26th day of November, 1897, when, by mutual agreement between plaintiff and said Suiter, said copartnership was entirely dissolved, and thereupon said Suiter assigned and transferred to the plaintiff all of his rights in said copartnership and in and to all of the accounts, claims, demands, rights of action and property of every kind theretofore belonging thereto; and that this plaintiff is now, and ever since said time has been, the owner of all of the property, rights, claims, accounts and demands of every kind and description theretofore belonging to said copartnership, or in which said C. E. Roach and Charles Suiter had any interest as copartners. That said Roach and Suiter assigned to the plaintiff upon the termination or dissolution of said copartnership all rights of said copartnership in and to all moneys theretofore converted therefrom by said defendants and said Roach, as hereinbefore alleged. That at the time said sums of money were converted by said defendants and said Roach as hereinbefore alleged, and at the time of the dissolution of the said partnership and the settlement of its business and affairs between plaintiff and his copartners, the whole of said amount was in excess of the rights of said, Suiter and Roach in said copartnership and in the money and property belonging thereto. That upon the dissolution of said copartnership its business and affairs were settled as between this plaintiff and said Roach and Suiter, and the whole of said sum of money so wrongfully converted as aforesaid was due and owing and belonged to this plaintiff as a portion of his individual share of said copartnership property and money.
■“(11) Plaintiff alleges that said defendants and said Roach actively co-operated in the conversion of said sums of money, and jointly acted in diverting the same from the said copartnership and from copartnership uses, and jointly converted the same to their own use and benefit, and to the damage of said co-partnership and this plaintiff; and plaintiff therefore avers that the defendants are indebted to him on.account thereof in the full sum of $8,200.
“Wherefore he prays judgment against the said defendants for such sum, together with interest thereon, and for costs of suit.”
Does this complaint state a cause of action against defendants ? Prom a curso'ry reading of the same, doubts would naturally arise as to whether it was intended to state a cause of action in assumpsit, for conversion, or for damages for the misappropriation of funds of the partnership by defendants and Roach by reason of a fraudulent conspiracy between them for that purpose. But counsel for respondent have stated in their brief the theory upon which they rely for the sufficiency of their complaint, and therefore we shall consider only whether a cause of action is stated upon that theory.
Counsel for respondent say in their brief: “The right of the plaintiff to maintain this suit, as set forth in the amended complaint, is his personal right to recover damages in tort for the wrongs suffered by him individually in consequence of the fraudulent conspiracy of the defendants, and the acts done in pursuance thereof to the damage of the plaintiff. The damage for which he seeks redress is to him as an individual, — is for torts committed against him as an individual. It is the right of one who has suffered, through the wrongful acts of others, to demand damages for the injuries done to him personally. The defendants, conspiring together with others, defrauded the plaintiff out of a large sum of money. The fact that plaintiff was a member of a copartnership of which Roach and Suiter were also members facilitated the carrying out of the conspiracy, and helped the conspirators to accomplish their design, which was to cheat'and defraud the plaintiff. But it was not a partnership wrong for which plaintiff asks redress. He does not sue as assignee of a partnership wrong. The wrong is to him personally and individually, and that is the basis of his action.”
One of the fundamental requisites of a good complaint in an action in tort for damages is that it must show by proper allegation that plaintiff ivas damaged by the acts of defendants complained of. It is perceived that by this complaint it is alleged that Riddell (plaintiff), Roach and Suiter formed a copartnership under the firm name of Riddell & Roach to construct the School of Mines building at Butte, Montana, under a contract with the state of Montana. There is no allegation that either copartner contributed any money or property to the copartnership, or that it had any assets except such as would arise in the performance of the contract for the erection of the building. The complaint further alleges that it was agreed between the copartners that these assets, -when received, should be deposited with the Commercial National Bank of Bozeman, to be used only in payment for material and labor required in the erection of the building, except that each copartner might withdraw $125 per month for living expenses; that the firm' deposited large amounts of money with this bank subject to the above agreement, of which defendant Ramsey had knowledge, and to which he consented; that defendants and Roach, through a fraudulent conspiracy, withdrew from these assets so deposited and misappropriated the sum of $8,200, and converted the same to their own use. It is apparent that the injury complained of was damages resulting from this alleged unlawful withdrawal of a portion of the partnership assets.
What was the interest and ownership of each partner in the firm assets ? “Every partner owns the whole partnership property subject to equal ownership of every other partner; and no one partner can make his own ownership of any part absolute, or relieve it from the incumbrances of the ownership of the others, without their consent. * * * But although no partner owns absolutely any part of the property, he has an interest in the whole.” (Parsons on Partnership, Sec. 112.)
The individual interest of one partner in the firm assets can only be ascertained by a settlement of the partnership. (Bopp v. Fox, 63 Ill. 540; Chandler v. Lincoln, 52 Ill. 74; Menagh v. Whitwell, 52 N. Y. 146, 11 Am. Rep. 683; Sindelare v. Walker, 137 Ill. 43, 27 N. E. 59, 31 Am. St. Rep. 353.)
Such settlement can only be accomplished by agreement of the partners, or hy an action in equity for an accounting settling their several interests. Plaintiffs injury, as above stated, is only claimed to arise from this alleged misappropriation. In order to be injured as an individual by this misappropriation, his complaint must show that he was the individual owner, or entitled to the possession, of the funds misappropriated at the time of the alleged misappropriation. The only allegations of individual ownership or right to possession of the funds alleged to have been misappropriated are found in paragraphs 8 and 10' of the complaint. In paragraph 8 it is alleged that neither the defendants nor Roach were entitled to any part of the money converted, and, had it not been converted, the whole thereof would have remained to plaintiff upon dissolution of the partnership, and would have belonged to him free from any claim of defendants or Roach. In paragraph 10 we find allegations to the effect that in March, 1897, Roach sold to plaintiff all his rights in and to the copartnership property, claims, demands and rights of action, and that the rights of Roach were fully settled and determined, and that plaintiff is the owner of all of Roach’s right in the copartnership property; that on November 26, 1897, the copartnership was dissolved as to Suiter by mutual agreement between them, and Suiter transferred and as signed to plaintiff all his rights in the partnership and in and to all the accounts, claims, demands, rights of action and property belonging to such partnership, and that plaintiff is the owner of all the property, rights and claims theretofore belonging to the copartnership in which said Eoach and Suiter had any interest as copartners; that Eoach and Suiter assigned to plaintiff upon the termination and dissolution of the partnership all rights of said copartnership in and to all the moneys theretofore converted therefrom by defendants and Eoach; that at the time of the alleged conversion and at the time of the settlement of its business and affairs between plaintiff and his co-partners the whole of said amount was in excess of the rights of Eoach and Suiter in said copartnership and in the money and property belonging thereto; that upon the' dissolution of the partnership its business and affairs were settled as between plaintiff and Eoach and Suiter, and that the whole sum of money converted was due and owing, and belonged to plaintiff.
Are these allegations sufficient to show that the plaintiff was individually the owner or entitled to the possession of the money alleged to have been misappropriated ? From a reading of them one is led to believe that in the preparation of the complaint plaintiff’s attorneys intended to rely upon an assignment and transfer to plaintiff by Suiter and Eoach of all their rights of action in reference to the money alleged to have been misappropriated, or an assignment of all their rights in said fund. However, in their brief they distinctly say that they do not base plaintiff’s rights upon such assignment and transfer. If they do not base plaintiff’s rights upon such assignments or transfers, the allegations of the same in the complaint must be treated as surplusage. As a matter of law, plaintiff could not be vested with a right of action to recover the interests-of Eoach and Suiter in or to any of the funds so alleged to have been misappropriated by the assignment pleaded. According to the allegations of the complaint, Eoach and Suiter are both guilty of misappropriation of copartnership funds. They therefore could not assign the right of action to recover such funds against them selves. No person can transfer to another a right of action against himself. The right of action now claimed by plaintiff is one based upon the fraudulent conduct of Suiter and Roach, concurred in by Ramsey. We cannot conceive how such right of action could, in the first place, rest in Suiter and Roach, because no one can have a right of action against himself. It is absurd to say that Roach and Suiter could transfer to plaintiff a right of action against themselves growing out of their own fraud and misappropriation. (Hasselman v. Douglass, 52 Ind. 252; Van Scoter v. Leferts, 11 Barb. 140.)
In Hasselman v. Douglas, supra, the court said: “We are of opinion that the private accounts against the Douglasses and Conner in favor of the firm of Douglass & Conner were not such partnership assets as would pass, by the agreement, to ITasselman. These accounts represented what had been drawn out of the firm by the partners, and not debts due to the firm. Hasselman bought the interest which the three partners had in the partnership assets at the time of the purchase, not the assets they had previously drawn out of the firm; and the more they had drawn out the less would be the interest which Ilasselman would take by his purchase. Besides, only the creditor can sell a debt. The debtor has no interest in it which he can transfer. In these accounts the Douglasses and Conner were the debtors; the firm of Douglas & Conner was the creditor. The firm sold nothing to Ilasselman. It was a sale by the three partners of their undivided individual interests. They could not become their own creditors. As to the other dioses in action due the firm, they sold their right in them as creditors, not as debtors. Each one sold his interest in the firm, which -would be the share remaining to him after the payment of the partnership debts and the final settlement of the partnership affairs. A partner has no transferable interest in the property of a partnership to which, after its ultimate adjustment, he is indebted.”
Roach and Suiter are alleged to have transferred all their interest in the copartnership funds and assets to plaintiff, and it is doubtless claimed that this includes their interest in the funds misappropriated. They liad no interest in such funds, under the allegations of the complaint, because they are alleged to have fraudulently withdrawn and converted the entire fund. They had received it all. The liability rested on them in favor of plaintiff to account to him for his share of the fund misappropriated, if such misappropriation was of more than their share in the partnership assets, for if, upon such accounting, it should be ascertained that they were entitled to this amount or more of the partnership assets, they would be accountable to no one because of the withdrawal. The liability to account was in the nature of a right of action, but such right of action was not one in their favor, but against them. It matters not, as to their liability, how they obtained this $8,200. The talcing in any manner, if they were not entitled to it, created a liabilitiy. If they were entitled to it, the manner of the talcing is entirely immaterial.
There are only two-ways under the law of partnership in which it can be determined that any liability existed on the part of Roach and Suiter, or either of them, to the plaintiff. One is by copartnership accounting' in equity, and the other by a settlement of all partnership affairs by agreement of the partners. In the first case the amount of the liability must be found by and announced in the decree of accounting. In the other the amount must be fixed and stated in the agreement of settlement. The fact of liability and the amount thereof must be fixed and stated in either instance.
The complaint is utterly barren of any allegation that any accounting in equity has ever been had. It, however, alleges a settlement, but it fails to allege that upon such settlement any balance was found to be due from Roach or Suiter to the plaintiff. The settlement of partnership affairs in its broadest sense would 'include the settlement of all transactions between the partners relative to partnership affairs, and unless it is alleged that a balance was found to be due to one or the other of the copartners this court must presume that no such balance existed. No balance is alleged to have been found due from either Suiter or Roaeb upon this settlement. The only allegations bearing upon this proposition are: “That neither of said defendants or said Roach were entitled to any part of said amount so withdrawn and converted by them, and that, had said'sum not been withdrawn and converted to the aforesaid use, the whole thereof would have remained to the plaintiff upon a dissolution of said partnership hereinafter alleged, and would have belonged to him free from any claim or right of said defendants or said Roach.” “That at the time said sums of money were converted by said defendants and said Roach as hereinbefore alleged, and at the time of the dissolution of said partnership and the settlement of its business and affairs between plaintiff and his co-partners, the whole of said amount was in excess of the rights of said Suiter and Roach in said copartnership and in the money and property belonging thereto. That upon the dissolution of said copartnership its business and affairs were settled as between this plaintiff and said Roach and Suiter, and the whole of said sum of money so wrongfully converted as aforesaid was due and owing and belonged to this pláintiff as a portion of his individual share of said copartnership property and money.” These allegations are mere conclusions of the pleader, and entirely fail as allegations of fact upon which an issue could be formed. If the allegations had been to the effect that upon a settlement of the copartnership affairs it was found and agreed that neither Roach nor Suiter had any interest in the funds so withdrawn, but that plaintiff was entitled to the whole thereof, a different aspect would have presented itself, but we find no such allegation.
Neither did the plaintiff, by the alleged purchase from Suiter and Roach, obtain an individual ownership of the funds so alleged to have been misappropriated. There is nothing in the allegations of the complaint tending to show that there was transferred to plaintiff by these purchases anything except whatever interest Roach and Suiter had in the partnership and property. ■ If they had overdrawn their accounts as partners, or misappropriated a part of the partnership funds, their interests in the partnership would be that much less than it would have been otherwise. It must be presumed, in the absence of anything tending to show the contrary, that when plaintiff became the purchaser of Roach’s and Suitor’s rights in and to the partnership he only became the owner of such rights as they then had. According to the allegations of the complaint, each was then indebted to the partnership, either by overdrafts, or misappropriation of partnership funds, or otherwise. It therefore follows that such transfers to plaintiff would only be of a balance of the interest which Suiter and Roach then had.
It must be presumed that all partnership accounts and transactions between the parties were settled and merged in the new agreement. (Pierce v. Ten Eyck, 9 Mont. 349, 23 Pac. 423; Norman v. Hudleston, 64 Ill. 11; Johnson v. Wilson, 54 Ill. 419; Over v. Hetherington, 66 Ind. 365; Thompson v. Lowe, 111 Ind. 272, 12 N. E. 476; Roberts v. Ripley, 14 Conn. 543; Farnsworth v. Whitney, 74 Me. 370; Lesure v. Norris, 11 Cush. 328; Patterson v. Martin, (6 Iredell) 28 N. C. 111; Stoddard v. Wood, 9 Gray, 90; Woodward v. Winfrey, 41 Tenn. 478; Cobb v. Benedict, 27 Colo. 342, 62 Pac. 222; Hasselman v. Douglass, 52 Ind. 252; Van Scoter v. Lefferts, 11 Barb. 140; Murdock v. Mehlhop, 26 Iowa, 213.)
In Pierce v. Ten Eyck, supra, this court says: “Pierce contributed to the firm the sum of $387.52 in excess of his share, and it was agreed that upon the dissolution of the copartnership this amount should be first deducted from the assets, and that the remainder should be divided equally between the parties. The sale by Ten Eyck to Pierce of his entire interest in the property of the firm worked a dissolution. Rogers v. Nichols, 20 Tex. 719. But we are of the opinion that the agreement did not contemplate a termination of the partnership in this way, and that Pierce, by his new bargain with Ten Eyck, which was a purchase without any reservation of demánds, relinquished all claims of this class.”
In Over v. Hetherington, supra, the court says: “The interest of a partner in the partnership property of his firm is his share of what may be left of such property after the payment of the debts of the firm, and after the deduction therefrom of his indebtedeness, if any, to his firm; for his copartners have a specific lien on. his share of the assets of the partnership to secure his indebtedness to the firm, and in the ascertainment of his interest in the property of the firm his indebtedness thereto must be taken into the account, and settled out of his share. Smith v. Evans, 37 Ind. 526; Donnellan v. Hardy, 57 Ind. 393. AVhen, therefore, as in this case, a partner makes a sale of his ‘interest in the concern,’ it must be presumed, we think, that he sells only his legal interest in the firm, and nothing more. It cannot be assumed, in such case, in the absence of any stipulation to that effect, that such partner sold, or intended to sell, if he could, his own indebtedness to the firm, or any part thereof. But is was alleged by the appellant that Berner fraudulently concealed his indebtedness to' the firm, and that the appellant was ignorant of such indebtedness at the time- of his purchase of Berner’s interest. The appellant failed to allege what fraudulent acts were done by Berner in the concealment, of his debts to the firm. It is well settled by the decisions of this court that when a party relies upon fraud as a ground for relief it is not enough for him to ‘characterize the transaction as fraudulent by the simple use of that rvord. It is the office of a pleading to allege facts, not legal conclusions.’ Curry v. Keyser, 30 Ind. 214; Darnell v. Rowland, 30 Ind. 342; Ham v. Greve, 34 Ind. 18, and Joest v. Williams, 42 Ind. 565, 13 Am. Rep. 377. The appellant did not claim that Berner kept the accounts of the firm. On the contrary, he alleged that English kept the books of the concern. He did not claim that Berner’s indebtedness to the firm was not- charged against him on the books of the firm; nor did the appellant allege that he did not have free access at all times to the firm’s books. If the indebtedness of Berner to the firm appeared on its books, as we may assume that it did in the absence of any averment to the contrary, and if the firm’s books were open at all times to the examination of the appellant, as we may assume they were in the absence of an averment to the contrary, then it would seem that the appellant’s alleged ignorance of the existence of Berner’s indebtedness was the result of his own negligence, and inexcusable, and could not be pleaded by him as affording any ground of defense.” ’
In Thompson v. Lowe, supra, the court uses the following language: “It may be taken as settled, too, that where one partner transfers his interest in the assets, including the book and accounts of the partnership, to a continuing member of the firm, or to another, and receives in payment for such interest the note of the purchaser, the maker of the note cannot set off an account apparently due the firm from the member ivhose interest was transferred. A sale by a partner of his interest in the assets of the firm does not, in the absence of a special agreement to that effect, imply that the purchaser becomes entitled to collect from the seller what may appear to be due from him on the firm books. Over v. Hetherington, 66 Ind. 365; Hasselman v. Douglas, 52 Ind. 252. The effect of such a sale is to transfer to the purchaser whatever interest the seller has in the assets of the partnership after the j)ayment of all the partnership liabilities. In the absence of anything fo show the contrary, it will be presumed that the account of the retiring member was adjusted in ascertaining the value of his interest, and that the value was increased or diminished in proportion as he was found the debtor or creditor of the firm. Where the purchaser agrees to pay the partnership liabilities, and also to pay the retiring partner a specified sum for his interest, the presumption will be, until the contrary appears, that the debts were ascertained, and that the sum agreed to be paid wras the value of the retiring partner’s interest, and that this included the adjustment of his own account with the firm, whether by such account he appeared to be debtor or creditor.”
In Farnsworth v. Whitney, supra, the court says: “When the two members of which a firm is composed settle their partnership affairs and dissolve, and one of them takes an assignment of the other’s interest in the partnership property, paying therefor a sum agreed upon by them, and assumes the payment of the partnership debts, tbe effect of tbe arrangement is to extinguish the assignor’s indebtedness to the firm. Such an arrangement implies that the assignor is to retain whatever he- has already received from the firm, in addition to the consideration mentioned in the assignment. It is, in effect, an agreement that the sum paid is a balance due him after deducting what he has already received. No other rational interpretation can be put upon such an arrangement. It is impossible to believe that the one would pay or the other receive the sum agreed upon, unless all existing claims between them were to be thereby adjusted and settled. So held in Lesure v. Norris, 11 Cush. 328. In the case cited the partner’s indebtedness had been charged upon the books of the firm. In this it had not. But we think this can make no difference in the result. A settlement operates as an accord and satisfaction of all indebtedness intended to be included in it, whether such indebtedness is evidenced by charges upon the books of the parties or not. The charges are only evidence of the indebtedness. The indebtedness may exist without the charges. And when the evidence is satisfactory that the parties intended a full and complete settlement of all their affairs, it will operate as an accord and satisfaction of indebtedness which is not charged as well as that which is.”
In Lesure v. Norris, supra,, the court says: “The sale to the defendant, under the circumstances stated, was a dissolution of the copartnership. Taft v. Buffum, 14 Pick. 322. It was also, in effect, an adjustment by the partners, as between themselves, of all its concerns, and a division and appropriation of everything belonging to it. Nothing further remained to be done to effect a complete settlement between themselves' By the bill of sale the plaintiff transferred all his interest in the company property, including debts which were due, to the defendant, and the latter thereby became sole owner of the whole. The interest which any partner has in the effects, rights and credits of a solvent partnership is the'share or proportion of them which he will be entitled to receive upon a final adjustment and liquidation of its concerns. Whatever stands properly charged to him on the company books, whether it be regarded as a debt dne, or, perhaps, more correctly, as evidence that he has withdrawn already a certain amount of the capital invested or of the profits earned, is first to be deducted, and will, to that extent, diminish the share he is to receive. His interest in the concern is only the balance remaining' after such deduction has been made. The balance, therefore, is what was conveyed to the defendant by the bill of sale executed by the plaintiff. It was his interest in the company property, and that was his share of its assets which remained after deducting the amount charged to him on the books of Norris and Lesure. That charge was extinguished by the transaction between the parties, because it was, in effect, an entire adjustment of it. There was no occasion, therefore, to make any entry upon the books in relation to the amount, because the general liquidation and settlement rendered attention to its details unimportant and immaterial. It is not pretended that there was any particular assignment of the amount in- question to the defendant, and it clearly did not pass as any part of the interest of the plaintiff in the assets of the company.”
In Stoddard v. Wood, supra, the court says: “This note was given for money drawn by the defendant out of the partnership of which he was a member, and for no other consideration; and was indorsed when overdue, after the dissolution of the partnership, to a partner having full knowledge of all the facts, and therefore standing on no better ground than the indorsers. This note, given as it was, constituted an item of debit in account, for which no action lies. It was not a debt to the firm. The difficulty of maintaining an action by a partnership against one partner is not merely a matter of parties, arising out of the difficulty of bringing suit. It lies much deeper. A promise by a partner to the partnership is a promise to pay himself with other persons, and it cannot be said that anything is due until the whole is settled, until all the assets are collected, and all debts paid. Hntil then it cannot be known whether there is any balance due; still less, what that balance is.”
In Woodward v. Winfrey, supra, the court says: “The in strument, upon its face, purports to be a ‘compromise of all tbe matters now [their] in dispute between the parties.’ The paper must therefore be taken as at least prima facie evidence that the results herein stated were the final results of the ascertained rights of the respective partners, based upon a calculation or estimate comprehending’ all matters connected with or arising out of the whole partnership business, as well between the partners themselves as between the firm and third persons. Such, we think, is the plain import of the written instrument; and such also is the presumption of law. It cannot be supposed that in an adjustment professing to be a full and final one, and so intended to be by both parties, and brought about with so much pains and labor, so large and important an item would have been overlooked; and still less can it be supposed that Winfrey would have agreed to pay Woodward the sum of nearly $1,800, and let a decree be rendered against him for it, without claiming an abatement of that amount to the extent of Woodward’s account, if it had been understood to have been transferred to him, and without once requiring any explicit evidence whatever of such a claim on Woodward. This is not to be believed.”
We are satisfied, under the above authorities, that the allegations of plaintiff’s complaint are not sufficient to show that he wras the individual owner or entitled to the possession of the moneys alleged to have been misappropriated.
The only injury which could possibly result to plaintiff from the acts of misappropriation would be that plaintiff’s interest and ownership in the property, assets and funds of the copartnership had been affected and reduced. How can it be said that the misappropriation of a portion of the funds of a partnership is an injury to one partner’s individual interest therein until after a final accounting, either by way of a bill in equity for such purpose or by the specific agreement of the partners, has been had between the partners, and it has been determined that such funds belonged to such partner ?
The case of Sindelare v. Walker, 137 Ill. 43, 27 N. E. 59, 31 Am. St. Rep. 353, is illustrative of this proposition. That was a suit brought by oiie partner against his copartner and a third person, based upon the ground of collusion and • fraud, whereby the entire assets of the copartnership were diverted.' The allegations of the complaint were, in substance, that plaintiff and Hubka were partners in the dry goods business, OAvning a stock of goods and certain store fixtures, on Avhich they had previously executed a chattel mortgage to defendants; that long before the maturity of this chattel mortgage, and without any authority of laAV whatever, defendant, by collusion AAÚth Hubka, wrongfully foreclosed the mortgage and took possession of not only the goods and chattels described therein, but also others of the value of $5,000, belonging to said firm, which he afterwards' pretended to sell to Hubka; that by reason of such "wrongful transfer plaintiff was deprived of his said goods and profits and the good will of said business; that said Avrongs Avere committed in consideration of the confederation and collusion of said Hubka and defendant to injure and defraud plaintiff. There Avas no averment that the copartnership between plaintiff and Hubka had been dissolved, or any settlement had of their partnership affairs. The court says: “The declaration, therefore, not only fails to show any individual title or ownership in plaintiff to said property, partnership business or the profits or good will thereof, which he says he lost, bnt affirmatively discloses a state of facts from Avhich it appears that he had only a community of interest therein with his partner, who consented to said transfer and all that was done by defendant in error. A partner’s right to partnership property is an OAvnership of all the assets of the firm, subject to the ownership of 'every other copartner, all of the partners holding all of the firm assets subject to the payment of the partnership debts and liabilities. Parsons on Partnership, 350. It is clear, therefore, that the individual interest of one partner in the firm property and business can only be ascertained by a settlement of the partnership. Bopp v. Fox, 63 Ill. 540; Chandler v. Lincoln, 52 Ill. 77; Menagh v. Whitwell, 52 N. Y. 146, 11 Am. Rep. 683. This rule applies to the interest of a partner in the profits or good will of the partnership business as well as to the tangible assets of the firm. Until plaintiff’s actual interest in the partnership has been determined, there can be no ascertainment of his damages. Buckmaster v. Gowen, 81 Ill. 153; Sweet v. Morrison, 103 N .Y. 235, 8 N. E. 396. We are clearly of the opinion that on the facts stated in his declaration plaintiff has no standing in a court of law.”
The case of Sweet v. Morrison, 103 N. Y. 235, 8 N. E. 396, is also illustrative of this subject. In this case Sweet’s (plaintiff’s) partners made a settlement of their business dealings with another partnership without the consent of Sweet, and against his protest. He brought an action to set aside the settlement and recover the amount of money which he claimed was due to him as a copartner in the business transactions which were settled by his copartners. The Supreme Court of New York held that he had not proved any loss, and further said: “It cannot be known, until a settlement of the partnership accounts, what loss has resulted from the fraud. Payson, Canda & Co. are not bound to pay Sweet’s firm or Sweet’s partners anything. Primarily the action is by Sweet against his copartners for a partnership settlement, in which he charges them with the willful and fraudulent waste of a valuable claim, and holds the debtors responsible also by reason of their collusive participation. That is the sole theory upon which the action can be maintained. To Sweet’s partners and to his firm nothing is due from Payson, Canda & Co., and they can be compelled to pay only what is needed to perfect Sweet’s rights as disclosed by an honest settlement. He has a right, notwithstanding the settlement actually made, to be placed in the position he would have been in if the full debt had been honestly paid to his copartners and he had received his aliquot share of the assets thus increased, after payment of the firm debts. When that is done, he has obtained full justice, and all to which he is entitled. But as the case stands his recovery may prove to be much too large or much too small. No final settlement of the firm accounts has been had, and every effort to prove their exact condition was prevented by the rulings upon the trial. It may turn out that, even after charging the four partners with the entire amount of the disputed asset, Sweet has already had his full share, and is entitled only to judgment confirming him in its possession. In that event Payson, Canda & Co. would have nothing to pay. If it should appear that the firm debts are all paid, or, if not, that the four partners are so solvent and able to pay their proportions as to permit that subject to be disregarded, and that Sweet has already had from the firm property in excess a sum equal to one-quarter of the disputed claim, then the sole relief necessary to his protection is a judgment confirming him in the possession of what he has received. His partners claim that to be the truth; that he took in advance, and over and above his share, all this asset would produce; and, having got it already, has no claim to he paid it a second time. On the other hand, that claim of the four partners may prove to be untrue, and it may further appear that large debts are outstanding, for which Sweet is liable, and, at least, if his partners are insolvent, and unable to pay, and all the other firm property is exhausted, he may require from Payson, Canda & Co. a sum sufficient to restore the solvency of the firm, and secure him his share of the surplus, even if it took much more than the sum he has already recovered. In other words, whatever loss of Sweet on a final adjustment of the partnership accounts can be traced to the waste of the disputed assets by his partners in collusion with Payson, Canda & Co. must be made good to Sweet out of it. But when that is done full justice is rendered, and he is entitled to no more.”
This complaint does not contain any allegation of an accounting between the partners of the partnership business, either in equity or by agreement, or that upon such accounting the moneys alleged to have been converted were found and agreed to belong to the plaintiff. It is therefore insufficient, and we advise that the judgment appealed from be reversed.
Per Curiam. — Por the reasons stated in the foregoing opinion, the judgment is reversed and the cause remanded.
Rehearing denied January 16, 1905.
Mr. Chief Justice Brantly, not having hard the argument, takes no part in this decision.
Application for an order modifying the foregoing opinion, denied December 23, 1904.-
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MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
Original application for a writ of habeas corpus, and certiorari in aid thereof.
Prom the returns made to the writs it appears that on April 19, 1904, one David Trotter recovered a judgment in a justice’s court .in Silver Bow county against the complainant, Catherine Downey, for the sum of $234.88 and costs; that thereafter on the same day an abstract of the judgment was filed in the office of the clerk of the district court of the co.urity, and the judgment docketed; that an execution was issued by the clerk and placed in the hands of the sheriff for service; that the execution was returned wholly unsatisfied; that immediately thereafter the plaintiff began proceedings sxipplemental to this execution by filing in the district court his affidavit setting forth that the said Downey, the defendant named in the execution, possessed property which she xxnjustly refused to apply toward the satisfaction of the judgment, to-xvit, “an order for $2,000, or the cash already paid thereon, said order being upon J. C. Carroll, supreme treasurer of the O. II. of A., and being drawn by Dr. E. Gauder, supreme president, and Gerald Keiter, supreme secretary” ; that the court thereupon issued its order requiring the defendant to appear at 2 o’clock in the afternoon and answer concerning her property; that she did appear and -was examined; that from this examination it appeared chac che defendant was the owner of an “order” upon the Catholic Knights of America, purporting to be immediately payable in St. Louis, Missouri," which she had then forwarded to the proper officer of the society at St. Louis for payment; and that on April 22d the court entered the following order: “The matter of supplementary proceedings to execution coming on regularly to be heard this 22d day of April, A. D. 1904, and after the hearing of the testimony of the plaintiff and the defendant, the same having been fully considered by the court, and it appearing therefrom that the defendant is about to receive and has received property which she unjustly refuses to apply to the satisfaction of the judgment in the above-entitled action: - Now', therefore, it is ordered that upon receipt.of $2,000 to be paid on an order forwarded by the defendant to J. C. Carroll, supreme treasurer of the C. K. of A., she, the 'defendant, C. Downey, do pay, and she is hereby ordered to pay, into the hands of the clerk of this court, out of said sum, the sum of $247, to satisfy said judgment in full.”
The complainant was present in court when the order was made. It further appears that, this order not having been obeyed, the court, upon application of the said Trotter, and after an examination of the complainant, adjudged her guilty of contempt, and committed her to jail until she should render obedience to the order by making the payment as directed, and that the complainant is detained in custody under a commitment issued in pursuance of this order. These proceedings w’ere thereupon instituted to secure the release of the- complainant upon the ground that the order was made without jurisdiction.
The contention is made by the • complainant that the order entered on April 22d, requiring her to pay the amount of the judgment to the clerk out of moneys to be collected upon the order, is void, because in excess of jurisdiction, in this: that the order for $2,000 was the only asset in her hands or within her control touching which the court could have made any order; that the amount due thereon had not been collected, and was not under her control; and that, as the payer named in the order was not before the court, the only authority the court had in the premises, under the statute, was to direct the complainant to assign her right therein to Trotter to the amount of his judgment, or to appoint a receiver to collect the order and to pay the judgment out of its proceeds.
It is argued by the defendants that this order is appealable, and that, such being thé case, any error committed by the court was merely an irregularity or error within jurisdiction, and cannot be reviewed in this proceeding.
That the order directing payment to the clerk out of the moneys to be collected by the complainant was erroneous is apparent when we look to the statute authorizing the proceeding in aid of execution. The proceeding was instituted under Section 1260 of the Code of Civil Procedure. This and the following section specify the circumstances under which the judgment debtor may be required to answer. Under the former this may be done after an execution has been returned unsatisfied. The latter section (1261) is more stringent in its provisions. Under it the examination may be had before the return of the execution, and under some circumstances the debtor may be arrested. Section 1262 permits a person owing the judgment debtor to make payment to the sheriff and receive a discharge from him. Section 1263 provides a procedure to reach property in the hands of third persons, or debts due from them. Section 1264 authorizes the calling of witnesses in order to determine issues of fact arising during any of the proceedings. The order which may be made as to the disposition of property found to belong to the defendant is authorized by Section 1265. The remaining sections of the chapter provide for cases wherein the rights of third parties are put in issue, and for subjecting to the payment of the judgment, through the agency of a receiver, assets which are not capable of manual delivery, or which may not be subject to sale by the sheriff under the execution. For we apprehend that if the property discovered is not exempt from execution, and of such a nature that it may be sold under the execution, and there are no claims of interest in it by third persons which should be determined by an appropriate action, it should be applied to the satisfaction of the judgment under the execution. The general purpose of the chapter is to provide a substitute for a creditors’ bill — a cheaper and easier method of reaching assets of the debtor which cannot be reached by the execution unaided. This is the view expressed by the Supreme Court of California in the early case of Adams v. Hackett, 7 Cal. 187; and, where the statute is followed, every species of property which is not exempt from execution may be made available to satisfy the judgment creditor’s claim, whether in the form of mere dioses in action or property capable of manual delivery. A substantial compliance with the statute is required. It cannot be invoked except for the purpose of enabling the judgment creditor to reach property which cannot be reached by the execution unaided. For if the property sought to be reached is in open view and tangible, the statute does not avail. The court must look to it for authority, and should make no order nor adopt a course of procedure not authorized by it. It may order the delivery to the sheriff of the property found in the hands of the debtor or of a third party where the title is not in issue, or it may authorize suit by the creditor to recover a debt due the defendant, or, in case either of these courses will not be effective, it may appoint a receiver to take charge of the property, and pursue such a course with reference to it that the creditor may receive satisfaction of the claim. There is no authority to require the debtor to collect his choses in action and apply them to the debt. Under the facts of this case, the court should have appointed a receiver to collect the claim of the debtor and apply it, or so much of it as was necessary. The order does not require the complainant to deliver up any property. It merely requires her to pay the debt upon receipt of the money alleged to be due upon the order.
But though all this be true, is the order therefore void, so as to be open to collateral attack in this proceeding ? We think not. No question is made but that the court had jurisdiction of the supplementary proceeding and-of the person of the complainant. It had power to decide'all questions arising upon the hearing, and also to make afterwards an order determining the rights of the parties.
The correctness of the conclusion reached depended upon a correct construction of the statute. If, in applying to it the rules of construction, and endeavoring to ascertain the proper course to pursue, the court fell in error, this was error only in the exercise of jurisdiction, which may not be-reviewed and corrected by habeas corpus. It is well settled that this writ may not be used as a writ of error. (In re Boyle, 26 Mont. 365, 68 Pac. 409, 471; 15 Am. and Eng. Ency. Law, 172.) Under it the only inquiry permissible is whether the court had jurisdiction of the subject-matter and of the parties, and, though during the course of the particular proceeding even gross errors may have intervened, still these do not render the ultimate determination void; nor is the complainant in this case entitled to have her release on the ground that the court directed the application of the property by a mode which the statute does not expressly authorize. Bnder a proper construction of the statute, the chose in action could be applied to the satisfaction of the judgment. The court could have appointed a receiver, and directed him to collect and apply the proceeds so far as necessary. Instead of doing this, it practically made the complainant a receiver for that purpose. If she was not content to abide the determination of the proceeding, it was her right to have the error corrected by appeal or suitable method of review, and not to disobey the order. The principle of the case of State ex rel. Coad v. Judge of Ninth Judicial District Court, 23 Mont. 171, 57 Pac. 1095, is aj>plicable. In that case the district court had issued a writ of mandamus to compel the relator, who was the clerk and re- Border of Broadwater conntv, to permit one Lambert to have access to tbe records of tbe county for tbe purpose of preparing an index of them under a contract made by him with the board of county commissioners. The board had no authority, under the law applicable, to make the contract in the manner in which it was made. The district court issued the writ, holding that the contract was valid, whereas it was void. The relator was punished for disobeying the writ. Upon certiorari this court held that the decision of that court that the contract was valid, though clearly erroneous, was error within jurisdiction, and that it was the relator’s duty to obey the wit until it had been set aside on appeal. So, in California, under a statute identical with the one now under consideration, «where the district court had directed a debtor to deliver up a paid-up insurance policy which was exempt from execution, to be applied to the satisfaction of the creditor’s judgment, the supreme court refused the writ on the ground that the court had the power under the statute to decide the question of exemption, and that, even though its decision was wrong, and the order directed exempt property to be delivered up, the error did not render the order void. (Ex parte McCullough, 35 Cal. 97.)
The appealable or nonappealable character of the order is not determinative of the question whether the writ will issue. As we have already said, a solution of this quer-4on rests upon an answer to the inquiry whether the order or judgment complained of is -void, so as to be open to' collateral attack.
The result is that the complainant must be remanded, and it is so ordered.
Mr. Justice Holloway concurs.
|
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MR. COMMISSIONER POORMAN
prepared the following opinion for the court:
In this case the district court sustained a motion for nonsuit, and judgment was entered for defendant. The appeal is from this judgment.
1. The action was commenced to recover damages alleged to have been sustained by plaintiff by reason of a defective abstract of title to certain real estate which one George A. McDonald mortgaged to plaintiff to secure a loan, the defect being a failure to note in the abstract an unsatisfied judgment then of record against McDonald.
“On motion for nonsuit, * * * that which the evidence tends to show must be taken as proved.” (Cummings v. Helena & Livingston S. & R. Co., 26 Mont. 434, 68 Pac. 852; McCabe v. Montana Central Ry. Co., 30 Mont. 323, 76 Pac. 701, and cases cited.)
In this case the evidence tends directly to show that the plaintiff is a building and loan association incorporated under the laws of TTtah, and that McDonald was at the time a stockholder therein, and resided at Butte, Montana; that Paul A. Ozanne was president and general manager of defendant company from 1898 to 1900, and, as such official, signed its annual reports, and that he was also the agent of plaintiff company for the purpose of appraising the value of real estate offered as security for loans; that, under an arrangement previously made between plaintiff and defendant, applicants for loans were required to furnish abstracts prepared by defendant, the applicant paying defendant therefor; these abstracts were to be furnished plaintiff, and not the applicant, and the statements therein were relied upon by plaintiff; that the abstract in question was furnished under this arrangement. On May 10, 1899, the written application of McDonald for a loan, offering certain lands for security, was signed and sworn to before Paul A. Ozanne as a notary public, and on the same day the value of this security was appraised by Ozanne and one other, and on May 20th Ozanne sent the application for a loan, together with the appraisement, to the plaintiff, at Salt Lake,-Utah. The abstract was made by defendant, and closed with this statement: “We further certify that there are no unsatisfied judgments, liens, attachments or unpaid taxes appearing of record and affecting the property above described, except such as are noted herein. Witness our hand and the corporate seal of said company hereto attached this 13th day of May, A. D. 1899, at 2 o’clock p. m. Silver Bow Abstract Co. by Paul A. Ozanne, Manager.” This abstract did not contain any reference to a judgment against McDonald. The plaintiff relied exclusively on the abstract being correct, and suffered damage by reason of this omission. The abstract was sent to the plaintiff by Ozanne on May 20th, and the loan was approved May 27th or 28th. The mortgage from McDonald to the plaintiff was acknowledged before Ozanne on June 9th, and about June 13th the check for the loan was sent to Ozanne, and was made payable to McDonald. The plaintiff’s license to do business in Montana expired May 31st, and it was not renewed until July 25th, the explanation given being that the state auditor did not furnish the company a form of statement; that, relying upon this being furnished, the company did not make a report until it received this form from the auditor. All the dates herein referred to are in the year 1899.
The motion for nonsuit is based upon two grounds: (1) That there was no privity of contract between plaintiff and defendant; (2) that the plaintiff was not authorized to do business in Montana at the time this mortgage was executed.
The general, perhaps universal, rule of law is that there must be either contract, or privity of contract, to constitute liability on the part of the abstracter. (Symns v. Cutter, 9 Kan. App. 210, 59 Pac. 671.) This rule of law is conceded by the appellant. “Privies” are defined as “persons connected together, or having mutual interest in the same action or thing by some relation other than that of actual contract between them.” (Black’s Law Dictionary, 940.) “A contract made expressly for the benefit of a third person, may be enforced by him at any time before the parties thereto rescind it.” (Section 2103, Civil Code; Burton v. Larkin, 36 Kan. 246, 13 Pac. 398, 59 Am. Rep. 541; McLaren v. Hutchinson, 22 Cal. 187, 83 Am. Dec. 59.)
The evidence in this case, being admitted for the purpose of this motion to be true, tends not only to establish privity of contract, but an actual contract, between the plaintiff and defend ant with respect to this abstract. The defendant knew that the abstract was made for the exclusive benefit and use of the plaintiff, and knew that the plaintiff would rely thereon, and the abstract was delivered by the defendant to the plaintiff. Under this state of facts, there can be no doubt as to the liability of the defendant if the action can be maintained. (Brown v. Sims, 22 Ind. App. 247, 53 N. E. 779, 72 Am. St. Rep. 308.)
■2. It appears from the record that the plaintiff was licensed to do business in the state of Montana to and including the 31st day of May; that this abstract was made on the 13th day of May; that it was sent by the defendant to the plaintiff on the 20th day of May; that the plaintiff acted thereon, and approved the loan not later than the 28th day of May. It appears, therefore, that the contract or privity of contract existing between the plaintiff and the defendant with respect to this abstract was prior to the time when the plaintiff’s license expired, and there is no pretense that plaintiff had not complied with the law at the time the mortgage was foreclosed and at the time this action was commenced.
It is unnecessary to consider the proposition as to whether the penalty named in the law (Session Laws 1897, p. 231) is exclusive, or whether the plaintiff can be further punished by having all his contracts declared void or voidable.
We think this judgment should be reversed, nnd the cause remanded.
Pee Curiam. — Eor the reasons stated in the foregoing opinion, the judgment is reversed and the cause remanded.
|
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] |
MR. COMMISSIONER CLAYBERG
prepared the following opinion for the court:
Appeal by defendant from a judgment in favor of plaintiff, and from an order refusing a motion for a new trial.
There are three causes of action stated in the complaint— one on account for medical services rendered by plaintiff, at the request of defendant, for the benefit of one William Walters; one on account for medical services rendered by Dr. Miller, at the request of'defendant, for the benefit of one William Walters, and assigned to plaintiff; and one on account of labor performed by one Williams at the request of the defendant, assigned to plaintiff. An answer was filed to this complaint, practically denying all the allegations thereof. Defendant made a motion for a change of venue in accordance with the statute, within the proper time, which was overruled. The case was then tried before a jury (the defendant introducing no evidence), and resulted in a verdict and judgment for plaintiff, after which defendant made a motion for a new trial, which was overruled. The record on appeal consists of the judgment roll and bill of exceptions.
Counsel for respondent asks that the appeal be dismissed for two reasons, viz.: (1) Because appellant failed to file or serve his notice of intention to move for a new trial within ten days of the rendition and filing of the verdict; and (2) because “the record or statement on motion for a new trial does not contain anywhere any specifications of error of law or of fact, as required by Subdivision 3 of Section 11T3 of the Code of Civil Procedure.” There is no merit in this motion. The record dis* closes that' the verdict was returned and filed November 18, 1902; that the notice of intention, to move for a new trial was served on November 21, 1902, and filed on November 25, 1902. The motion for a new trial was made upon a bill of exceptions and not upon a statement settled under Subdivision 3 of Section 1173 of the Code of Civil Procedure. This bill of exceptions was doubtless settled under the provisions of Section 1155 of the Code of Civil Procedure, as directed by Subdivision 2, Section 1173, Code of Civil Procedure. This section does not require a bill of exceptions to contain the specifications which are required by Subdivision 3 of Section 1173 of the Code of Civil Procedure to be inserted in a statement on motion for a new trial. The only specification required in bills of exceptions is: “When the exception is to the verdict or decision on the ground of the insufficiency of the evidence to justify it the objection must specify the particulars in which such evidence is alleged to be insufficient.” (Section 1152, Code of Civil Procedure.) Again, the motion is to “dismiss the appeal,” and the ground stated would not be cause for a dismissal of the appeal from the judgment, even if sufficient to warrant a dismissal of the appeal from the order refusing a new trial.
Appellant only specifies three errors in his brief: (1) The action of the court in denying appellant’s motion for a change of venue; (2) in admitting in evidence a certain telegram; and (3) in denying appellant’s motion for nonsuit as to respondent’s second cause of action.
1. As to ruling on motion to change the place of trial: The affidavit on this motion discloses that summons was served at the town of Glasgow, Valley county, Montana, and that the defendant, at the time of the commencement of the suit and of such service, and at the time of filing the motion, was an actual, tona fide resident of the county of-Valley, state of Montana; that the plaintiff, at the time of the commencement of the action and issuing of summons, resided in the county of Beaverhead, state of Montana. The suit was commenced in Beaverhead county. ’ The question as to the right to a change of venue under similar circumstances was before this court in the case of McDonnell v. Collins, 19 Mont. 372, 48 Pac. 549, where it was said: “We think this is an action of that character which Section 613, Code of Civil Procedure, requires to be brought in the county where the defendants, or some of them, reside at the commencement of the action, or where the plaintiff resides, and the defendants, or any of them, may be found. It is not disputed that both defendants resided in Cascade county at the time this action was commenced, and that they were both served with summons in this suit in Cascade county; nor is it claimed that either of them was found in Fergus county. We think, under the showing made by the defendants, that the court erred in refusing to change the venue of the case to Cascade county.” Counsel for respondent, however, contends that “this suit was instituted for the collection for services performed in Beaverhead county. * * There are three causes of action alleged in the complaint, and in each cause it is alleged that the services or contracts were to be performed, and were performed, in Beaverhead county. * * * All the services sued for were to be performed, and were necessarily performed, in Beaverhead county.” Section 613, under which the case of McDonnell v. Collins, supra, was decided, in the latter part of the section, provides that°“actions upon contracts may be tried in the county in which the contract was to have been performed.” The first and second causes of action herein- are unquestionably actions upon open account for the reasonable value of medical services •rendered at the request of defendant, and not actions upon express contracts, as contemplated in Section 613, supra, at all. There may be some doubt as to whether the third cause of action is based upon express contract or open account. However, this is immaterial. The defendant was clearly entitled to a change of venue upon the first and second counts, and, under former decisions of this court, plaintiff cannot abridge this right by joining in the same complaint another cause of action which might be properly construed as triable in Beaverhead county. (Yore v. Murphy, 10 Mont. 304, 25 Pac. 1039; Wallace v. Owsley, 11 Mont. 219, 27 Pac. 790; Ah Fong v. Sternes, 79 Cal. 30, 21 Pac. 381.) The statute does not provide that actions for the recovery of money due for services may be tried in the county where the services are performed, but that an action on contract may be tried in the county “in which the contract was- to have been performed.” The case of Oels v. Helena & Livingston Smelting & Reduction Co., 10 Mont. 524, 26 Pac. 1000, is not contrary to the above decision.
2. As to the admission in evidence of the telegram: The second cause of action was for medical services rendered by one Dr. Miller to one Walters, an employe of defendant, who had been sent to Beaverhead county to receive some of defendant’s horses gathered by one Williams. In moving these horses, Walters was thrown from one of them, and very seriously injured. Plaintiff was called to attend Walters, and, finding him seriously injured, he called in Dr. Miller to assist him. The record discloses that Williams telegraphed to defendant, after the injury occurred, to the effect that Walters was hurt — still unconscious — and asked him whether he would pay the “doctor’s bill.”- The admission of the answer of defendant to this telegram is the error alleged. The court allowed plaintiff to introduce in evidence the copy of the telegram received by Williams from the telegraph office in Dillon, defendant having sent the message from Glasgow’. Defendant’s attorney objected to its introduction on the ground that it was a copy, and not the original sent by defendant, and- that there was no such showing that the original could not be produced as would warrant the introduction of a copy. The current authorities seem to be almost uniformly to the effect that whether the telegram filed with the telegraph company for transmission, or the one delivered by the telegraph company to the person addressed, after transmission, is the original, for the purpose of evidence, depends upon whether the telegraph company is the agent of the one sending the telegram, or the one to whom it is sent; that, if one initiates correspondence by telegraph, he selects the telegraph company as his agent, which agency continues throughout the correspond ence, and a telegram delivered to the company for transmission in reply to the one first sent is the original, for the purpose of evidence. In this case the record discloses that A. G. Williams sent a telegram from Dillon to defendant at Glasgow, and defendant replied thereto. Under the above rule, the message delivered by the defendant to the telegraph company at Glasgow for transmission to Williams at Dillon was the original for evidentiary purposes, and the one delivered by the telegraph company to Williams after its receipt in Dillon was but a copy. (Durkee v. Vermont Cent. R. Co., 29 Vt. 127; Anheuser-Busch Brew. Ass’n v. Hutmacher, 127 Ill. 652, 21 N. E. 626, 4 L. R. A. 575; Wilson v. Minneapolis & N. W. R. Co., 31 Minn. 481, 18 N. W. 291; Saveland v. Green, 40 Wis. 431; Smith v. Easton, 54 Md. 138, 39 Am. Rep. 355; Howley v. Whipple, 48 N. H. 487; Thompson on Electricity, Secs. 497, 502.) Under the statutes of Montana, the burden was upon plaintiff to show that the original telegram was lost, before he should have been allowed to introduce secondary evidence of its contents. (Section 3228, Code of Civil Procedure.) The record is barren of any such showing, and therefore we are of the opinion that the court erred in admitting it in evidence.
As to the motion for nonsuit on plaintiff’s second cause of action: This cause of action, as above stated, was on account of medical services rendered by Dr. Miller to one Walters in the employment -of defendant, which account is alleged to have been assigned to plaintiff. The record contains no evidence showing or tending to show the employment of Dr. Miller by defendant, or by any one as agent for him, duly authorized. The case seems to have been presented to the court below by plaintiff upon the theory that he (plaintiff) was employed by Williams, acting as the agent of defendant, and that Williams, as such agent, delegated to plaintiff authority to employ Dr. Miller as an assistant. Eor the purpose of discussing the ques" tion under consideration, we shall consider the telegram sent to Williams by defendant as properly in the record, for the reason that plaintiff may upon another trial introduce the original, or make proper proof to warrant the introduction of a copy. The only evidence in the record upon which agency could possibly rest is the telegrams passing between Williams and defendant — > the telegram of Williams to defendant announcing that Walters had been hurt, and asking if he would, pay the “doctor’s bill,” and defendant’s telegram in reply, announcing that he would do so. Plaintiff saw this telegraphic answer of defendant, accepted the offer therein contained, and acted upon it. No direct authority is given Williams to employ a physician, so that any agency on the part of Williams was implied from the telegrams'. However, no agency can be implied from' these telegrams which would authorize Williams to delegate to plaintiff the right to engage the assistance of other physicians, and bind defendant to liquidate their charges. The agent’s power to delegate authority is statutory in this state (Section 3140, Civil Code); and the testimony does not disclose that AYilliams lawfully delegated to plaintiff authority to employ Dr. Miller, as herein contended, within any of the provisions of this section.
, The court below in overruling the motion for nonsuit based his ruling on the ground that an emergency arose which justified the employment of Miller. In our opinion, neither substituted agency nor emergency is sufficient to hold defendant liable for the charges of Dr. Miller. Presumptively, plaintiff, when he was employed, assumed that he was a competent physician, and capable of taking care of the case for which he was employed without assistance. If he concluded that assistance was required, before procuring the same it was his duty, if he desired to hold defendant liable for the payment of the bills of an assistant, to communicate with him and obtain his consent to the employment. He knew where defendant resided; and knew of the telegraphic correspondence between him and Williams, and could have communicated with him. If the plaintiff had the right to employ Miller and make the defendant liable for his services, he would have had a like right to employ as many other physicians as he might have deemed necessary, and compelled defendant to have paid them all.
There would be very grave doubt as to the liability of defendant to furnish to Walters medical assistance upon the facts disclosed in the .record, aside from the above telegrams. The accident by which Walters was injured may have arisen from his own personal negligence, or from a direct violation of the instructions given him by defendant. The law is by no means settled that an employer is liable to furnish an employe with medical aid under all circumstances. Many courts of last resort have held that even a railroad company is not liable to furnish an employe with medical assistance in case of accident. There the work of the employe is at all times dangerous in its character, and the reason for holding the railroad company liable to furnish such medical assistance in case of accident is much stronger than it is where an individual employs another to perform a service which is not dangerous in itself.
After an investigation of authorities, we conclude that the holding of the Supreme Court of Indiana in matters of this character is the correct one, and should be followed. In the case of Terre Haute & Indianapolis R. Co. v. McMurray, 98 Ind. 358, 49 Am. Rep. 152, a brakeman on one of the defendant’s trains was injured at a way station along the line of the road, distant many miles from the main offices of the railroad company. The conductor of the train employed McMurray as a physician and surgeon to attend the bralceman. The injury demanded immediate surgical attention, and the conductor informed McMurray that the railroad company would pay him for such services. The supreme court, by Justice Elliott, delivered a very elaborate and learned opinion on the question of the railroad’s liability, and concluded that such an urgent necessity arose for the employment of the surgeon that the conductor had authority to bind the corporation by such employment. That court seems to place the liability on the ground of emergency and urgent necessity.
'It appears from the case of Terre Haute & Indianapolis R. R. Co. v. Brown, 101 Ind. 336, 8 N. E. 218, that McMurray (plaintiff in the above case) employed Dr. Brown to assist him in. the care of the brakeman. McMurray said to the conductor that he would need assistance, and the conductor replied: “I have not time to attend to this matter at all. You secure what assistance is necessary to do this man good work, and do it, and the railroad company will pay you and your assistants for it, whatever is necessary — whatever it is worth.” After the judgment in the case of McMurray was affirmed, Dr. Brown brought suit against the railroad company to recover his fees for services. The court says: “If it be conceded that such an overwhelming emergency might arise as would create a necessity for immediate action in order to save life or prevent great bodily suffering, and that under such circumstances a state of affairs might exist, in the presence of which one employe would have the implied power to bind the employer, in his absence, for necessary medical or surgical aid bestowed on another employe who sustained an injury, it by no means follows that the appellee was entitled to recover upon the facts in this case. If the emergency was such that we must assume that an imperious necessity existed, under which the conductor, from considerations-of humanity, had authority to employ Dr. McMurray at the expense of the company, we cannot indulge the further presumption that it was necessary that he should have the power to authorize Dr. McMurray to employ other surgeons at the company’s expense. Whatever authority the conductor had in that connection arose out of an implied agency, under which, owing to the peculiar circumstances under which he was placed, he might bind his principal by employing necessary surgical aid for the injured brakeman. No rule in the law of agency is better settled than that, where an agent has authority to do a particular thing, he must' do it himself. He cannot, unless specially authorized, or in pursuance of some usage, delegate his authority to another. Lyon v. Jerome, 26 Wend. 485, 37 Am. Dec. 271; Story, Agency, Sec. 13. Assuming that the conductor, under the circumstances disclosed, had adequate authority to secure necessary surgical aid to attend the injured brakeman at the company’s expense, it cannot be assumed that lie had authority to employ one surgeon, and authorize him to employ, at the company’s expense, as many more as he should think necessary. If the surgeon first employed found it necessary or convenient to call in other assistants, in order to accomplish that which he had been employed to do, in the absence of other employment than such as appears in this case, the assistants must look to him for compensation. This is according to the well-settled rule that if an agent employs a subagent to do. the whole or any part of that which he was employed to do, without the knowledge or consent of his principal, inasmuch as there is no privity between'the principal and the sub-agent, the latter will not be entitled to claim compensation from the principal.”
The Brown Case, above quoted from, is much stronger than the case at bar. We are satisfied that the record fails to show any such emergency as authorized the employment of Miller, or that Dr. Miller was employed by any one having competent authority to that end.
We have not been assisted by brief or argument or respondent’s counsel on the last two propositions decided.
We advise that the judgment appealed from be reversed, and the cause remanded, ufith instructions to the district court to grant the motion for a change of the place of trial.
Per Curiam. — Por the reasons stated in the foregoing opinion, the judgment is reversed, and the case remanded, with instructions to grant the motion for a change of place of trial.
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ME. COMMISSIONED POOEMAN
prepared the following opinion for the court:
■This is an action to quiet title to certain lands situate in Cascade county; the plaintiff claiming title to them under a deed, and seeking to set aside a subsequent conveyance made to the defendant, which was recorded prior to the plaintiff’s deed. The questions involved were submitted to a jury, which found for the plaintiff. The court, adopted the findings of the jury and rendered judgment for the plaintiff. Defendant has appealed from the judgment.
The material facts appearing in the record are that one Gus Btreid made final proof on his homestead entry on February 10, 1 í)()0; that on that or the succeeding day he conveyed the land to the plaintiff by a deed; that the final receipt issued by the receiver to Streid was never recorded, and the. deed executed and delivered by him to the plaintiff was not recorded until March 11, 1901; that the plaintiff, immediately after the execution' of the deed to him, took possession of the land, made some improvements by plowing and farming the same during the year 1900, and also seeded a part of the land in the spring of 1901, leaving some of his farming impleiiients on the ground; that plaintiff had fenced the land, inclosing it in large fields with other land owned by him; that the land was assessed to plaintiff in 1900 and 1901; that he paid taxes thereon, but that plaintiff never resided upon the land; that early in March, 1901, Btreid made application to one Biros to obtain a loan. Bires, not desiring to loan money at this time,.introduced Btreid to the defendant, to whom Btreid then made application for the loan, offering this land as security. Defendant desiring to see the land, Btreid procured a team and went with the defendant, and they together looked over the land; Btreid telling the defendant that ho had fenced the land, and had plowed about twenty acres of it. There was no one on the land at this time, nor was there any house on if, except a broken-down shack that was uninhabitable. Defendant then returned to Great Falls, went to the office of the county clerk and recorder, and examined the title to the land, and found that the only instrument on record relating thereto was the government patent to Btreid, which Streid then bad in his possession, dated November 28, 1900, and recorded March (i, 1901. Defendant then loaned Streid $350, and as security therefor, on March 11, 1901, Btreid executed and de livered to defendant a bargain and sale deed to tbe land, wbicli deed was recorded March 11, 1901, three days prior to the recording of plaintiff’s deed. The question is, which of these deeds, under this state of facts, should take the preference ?
Section 1641 of the Oivil Code provides: “Every conveyance of real property other than a lease for a term not exceeding one year, is void as against any subsequent purchaser or incumbrancer, including an assignee of a mortgage, lease, or other conditional estate, of the same property, or any part thereof, in good faith and for a valuable consideration, whose conveyance is first duly recorded.” This section unequivocally makes all unrecorded deeds and conveyances, except leases for one year, void as to subsequent purchasers and incumbrancers in good faith and for a valuable consideration. Section 1644, however, provides: “An unrecorded instrument is valid as between the parties and those who have notice thereof.” It therefore becomes material to inquire what kind of notice is required by this latter section — whether possession is sufficient notice, and, if so, what kind of possession; whether the payment of taxes is sufficient notice, and on whom is the burden of proof ?
Before the enactment of the recording laws, the only means a purchaser had of ascertaining whether his grantor had made a prior conveyance was by inquiry of the party in possession of the land, if occupied, and of those living in the vicinity. Long experience demonstrated that title or claim to title predicated upon information received by inquiriy of those who had no right to inquire into the prior ownership of land in which they had no interest, and whose conclusions might therefore be based upon casual observation or rumor, was productive not only of error, but actual fraud. To avoid what thus proved to be an evil, recording laws were enacted. These laws not only serve the double purpose of protecting Iona fide purchasers and of affording owners of land an opportunity of preserving their evidence of title, but of affording an opportunity for the acquisition of information in the preparation of valuable statistics relative to economic conditions, and also of aiding in the preparation of assessment lists. If the same inquiry must be made now as before the laAvs were enacted, of what use are these laA\7s to the purchaser? "We do not understand that such is the contention of counsel,- but these laws undoubtedly at least limit the extent of such inquiry.
Chief Justice Campbell, in the dissenting opinion filed by him in Shotwell v. Harrison, 22 Mich. 426, says: “The leading-case of Le Neve v. Le Neve, Ambler, 436, was the first in which it was .held that a /priority of record could be assailed in any court, and the doctrine has ever since been maintained that it may be done, but only by the most convincing proof of fraud, by notice or by Avant of consideration which raises a constructive fraud.' Fraud is the only ground of interference, and it cannot be presumed. The doctrine which assumes this without proof is at war Avith all the recognized legal presumptions, and I cannot but regard it as dangerous and unreasonable.”
In Page v. Waring, 76 N. Y. 463, it is said: “Such possession under an unrecorded deed as Avill amount to notice to a subsequent purchaser must be under the unrecorded deed, and must be actual, open and visible, so that the subsequent grantee could go upon the lands and obtain by inquiriy there information of the unrecorded deed.” The sainé doctrine is held in Brown v. Volkening, 64 N. Y. 76.
In Crossen v. Oliver, 37 Oregon, 514, 61 Pac. 885, the Supreme Court of Oregon sustained the following instruction Avith reference to a similar question: “The notice that will render a party a lienholder in bad faith must be something- more than would excite the suspicion of a cautious and wary person. It must be so clear and undoubted with respect to the existence of a prior right as to make it fraudulent in him afterwards to take and hold the property. In this case notice or knowledge that would bind Turner 01ÍArer, and render his judgment subject to the unrecorded deed of Crossen, must be either actual knoAvledge of the existence of this deed, or actual notice of such facts and circumstances as Avould haAV enabled him, by following up such information, to harm ascertained that Orossen held this deed and claimed this land.”
In Godfroy v. Disbrow, Walk. Ch. (Mich.) 260, it is held “that the presumption of lav is that a subsequent purchaser who lias got his deed first recorded is a bona fide purchaser without notice, until the contrary is made to appear.” See, also, Atwood v. Bearss, 47 Mich. 72, 10 N. W. 113.
The payment of taxes on this land by the plaintiff Avas not of itself, under the la\v, constructive notice to the defendant that the plaintiff oAvned or claimed it.
These three questions herein discussed Avere revicAved by this court in the AArell-considered case of Mullins v. Butte Hardware Co., 25 Mont. 525, 65 Pac. 1004, 87 Am. St. Rep. 430, inAvhich the court said : “The law is aycII settled that the actual, visible, notorious, continuous, exclusive and uuequiArocal possession of 'a definite tract of land by one rightfully in possession or holding under a A-alid title is a constructive notice to subsequent purchasers and incumbrancers of Avliatever estate or interest in the land is held by the occupant, equivalent in its extent and effects to the notice given by the recording or registration of his title.’ (2 Pomeroy’s Equity Jurisprudence, Sec. 615.) Such possession is eviden.ce of some right or title in the occupant, and is sufficient to put a subsequent purchaser or incumbrancer on inquiry as to the rights of the person then in possession.” Exceptions are then giAren to this general rule.' The court ’ further says: “The suggestion that the records 'of the county treasurer’s office shoAving that each of several occupants paid taxes on the parcel of ground in his possession Avere sufficient to put the appellants upon inquiry has already been considered, but may be further ansAvered by saying that such records are not of themselves constructive notice to purchasers or incumbrancers of the fact that certain persons haAre paid taxes. We are not advised of any statute Avliich declares the record of the payment of taxes to have that effect..” Quoting from the decision in Hull v. Diehl, 21 Mont. 71, 52 Pac. 782, the court further says: “We are, however, satisfied that the good faith of the purchaser ■will sufficiently appear by proof of the record of conveyances showing title in his grantor at the time of the purchase, upon which record he had the right to rely, and is presumed to have relied. If he had actual notice of the prior conveyance, this is a fact affirmative in its nature, and it is therefore more reasonable to require it to be shown by the party claiming under the prior unrecorded deed than to call upon the purchaser to prove the negative.” The court also quotes with approval a part of the decision in Anthony v. Wheeler, 130 Ill. 128, 22 N. E. 494, 17 Am. St. Rep. 288, note, to the effect “that one claiming title to land by a deed to him purporting to be made for a valuable consideration is presumed to be a purchaser in good faith, without notice of prior unrecorded deeds, until the contrary is shown, and that the burden of proof to show notice and want of good faith is on the party attacking the deed.”
In the trial of the case at bar the burden was by the trial court cast upon the defendant to show that he was not guilty of fraud in taking this second conveyance. This was error, for, under the decision in the Mullins Case, above quoted, the burden was upon the plaintiff to show that the defendant had notice, either actual or constructive, of this prior unrecorded deed.
The evidence in this cause not only fails to show that the defendant was guilty of any fraud whatsoever- in accepting this second conveyance, but does show that the defendant had taken all the precaution which the law required of him. Streid was introduced to him by a friend, and made application for a loan. The defendant did not solicit the purchase of the land, but, after the application was made, he went to the land in company with Streid. Streid told him that he had fenced the land, and had plowed a part of it. He found nothing to indicate that Streid’s statements were not true. The defendant then went to the records, and found that there had been no conveyance recorded except the patent from the United States to Streid, and Streid had possession of the patent. The mere fact that the fence in closing the land also inclosed other lands, or that there was more land plowed than Streid estimated that he had plowed, were in no manner contradictory of the recorded title in Streid.
It is contended that, as this is an appeal from the judgment only, resort to the record may not be had to determine the sufficiency of the evidence. This is the rule where there is any substantial conflict in the evidence; but this court may examine the record to determine whether, as a matter of fact, there is any evidence to support the findings. (Whalen v. Harrison, 26 Mont. 316, 67 Pac. 934; Mahoney v. Dixon, 31 Mont. 107, 77 Pac. 519.) An examination of the record discloses that there is not any evidence to support the findings of the court, and for this reason we recommend that the judgment be reversed and the 'cause remanded.
Per Curiam. — For the reasons given in the foregoing opinion, the judgment is reversed and the cause remanded.
|
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] |
MR. COMMISSIONER CALLAWAY
prepared tbe following opinion for- tbe court:
The plaintiffs and defendants were trying their respective titles to the waters of Bear creek, in Gallatin county, when the state of Montana, through the attorney general, intervened. Upon the trial, plaintiffs and defendants objected to the introduction of any evidence in support of the intervener’s complaint, on sevéral grounds. The court sustained the objection, and entered judgment against the intervener, from which it has appealed.
It appears from the record that by an executive order of the president of the United States there was created on February 15, 1868, the military reservation of Fort Ellis, situated in Gallatin county, state of Montana; that said military reservation ■was created for the purpose of stationing soldiers of the United States government there; that it consisted of a large number of acres of land, and that a plat thereof was made, and its boundaries clearly defined; that the United States continued to use and occupy the same until July 26, 1886, when it was abandoned; that it became necessary to supply the reservation with water for domestic and irrigation purposes, and that the government, through its officer in charge, constructed a ditch sufficient to carry something over 200 inches of water from Bear Greek canyon to section 15, where the buildings on said reservation were situated, and where the intervener alleges the water was used for domestic purposes, and for the purpose of irrigating plats for gardens, and the raising of hay and other crops. The intervener further alleges that the government of the United States continued to use said water, and had its ditches and flumes in such condition that they would carry more than 200 inches of water onto said section 15, and continued to use said water from the time of its diversion up to the time the military reservation was abandoned in 1886. The record does not show that the water was not used on other portions of the reservation besides upon section 15.
On February 13, 1891, congress passed an Act to provide for tbe disposal of tbe abandoned Fort Ellis military reservation, in Montana, under the homestead law, and for other purposes. (26 Stat. 141.) The first section of the Act authorized the-secretary of the interior to cause the land embraced in the reservation to be surveyed. The second section reads as follows: “That there is hereby granted to the state of Montana one section of said reservation to be selected according to legal subdivisions so as to embrace the buildings and improvements thereon, to be used by the said state as a permanent militia camp ground, or for other public purpose in the discretion of the state legislature; provided that whenever the state shall cease to use said lands for public purposes the same shall revert to the United States.” Pursuant to this provision the state of Montana selected the ground upon which the buildings were situated, which included all of section 15, except 40 acres, and in lieu of this 40 selected 40 in the adjoining section 10.
It is contended by the attorney general that congress granted to the state the ditch from Bear creek, together with the right to use 200 inches of the waters of said creek. Is the language employed in the foregoing section comprehensive enough to include a water right and ditch, as a part of the improvements upon said section ? It seems that both the plaintiffs and defendants, or some of them, own a portion of the land which was formerly a part of the military reservation, and they claim their water rights from Bear creek.' Prior to the time of settlement upon the lands in question, and prior to the appropriation of the waters of Bear creek by any one, both the land and the water were the property of the government. When the. government established the reservation, it owned both the land included therein, and all the water running in the various near-by streams to which it had not yielded title. It was therefore unnecessary for the government to “appropriate” the water. It owned it already. All it had to do was to take it and use it. When the government abandoned the military reservation, it also must have abandoned the use of the water thereon, which was again allowed to flow in its regular channel as a part of the public domain, subject to the appropriation of any one who sought to take it.
It appears affirmatively from the complaint in intervention that the government abandoned the reservation in 1886, and that it took no steps to dispose of it until the Act of February 13, 1891, was passed. The Act provides, as will be noticed, that the state is to select a section of land so as to embrace the buildings and improvements thereon. The word “embrace,” in the sense used, means “to inclose, as by surrounding or encircling; hence to take in; comprehend.” (Standard Dictionary.) The meaning of the section is made certain by the use of the word “thereon.” The rule is that if the language of a statute is plain and unambiguous, and expresses a single, definite and sensible meaning, it must be interpreted literally. (Black on the Interpretation of Laws, Sec. 26.) The language used is “the buildings and improvements thereon.”
While the general rule is that the description in private grants is construed in favor of the grantee, the reverse is the rule with regard to public grants. This is upon the theory that the government is a trustee for the public, and therefore the language of a grant by the government is construed in favor of the grantor; i. e., the people. As said in Newton v. Commissioners, 100 U. S. 548, 25 L. Ed. 710: “No grant can be raised by mere inference or presumption, and the right granted must be clearly defined. Charles River Bridge v. Warren Bridge, 11 Pet. 420, 9 L. Ed. 773, 938.” In speaking of a grant of public land, the court, in Dubuque & Pacific R. Co. v. Litchfield, 23 How. 66, 16 L. Ed. 500, said: “All grants of this description are strictly construed against the grantees. Nothing passes but what is conveyed in clear and explicit language.” And in Hannibal & St. Joseph R. Co. v. Missouri River Packet Co., 125 U. S. 260, 8 Sup. Ct. 874, 31 L. Ed. 731, the court said: “But if there be any doubt as to the proper construction of this statute — and we think there is none — then that construction must be adopted which is most advantageous to the inter ests of the government. Tbe statute, being a grant of a privilege, must be construed most strongly in favor of the grantor. Gildart v. Gladstone, 12 East. 668, 675; Charles River Bridge v. Warren Bridge, 11 Pet. 420, 544, 9 L. Ed. 773, 938; Dubuque & Pacific Railroad v. Litchfield, 23 How. 66, 16 L. Ed. 500; The Binghamton Bridge, 3 Wall. 51, 75, 18 L. Ed. 137; Rice v. Railroad Co., 1 Black, 358, 380, 17 L. Ed. 147; Leavenworth, Lawrence & Galveston Railroad v. United States, 92 U. S. 733, 23 L. Ed. 634; Fertilizing Co. v. Hyde Park, 97 U. S. 659, 24 L. Ed. 1036.”
Tbe question at once arises, if tbe water right was appurtenant to tbe reservation, was it appurtenant to tbe whole, or simply to that portion of it which tbe state of Montana selected? Tbe question cannot be answered from tbe record. Tbe only inference is that tHe government, when it abandoned tbe reservation, intended that tbe water should continue to flow in its natural channel, and to be subject to appropriation by any one who should take it and use it for beneficial purposes, possibly upon land included within tbe reservation. Had tbe government desired so to do, it could have granted tbe right to tbe use of tbe water in express terms, but this it did not do. Furthermore, it appears from tbe complaint in intervention that tbe ditch whereby tbe water was conveyed extends for a long distance beyond tbe confines of section 15 to tbe point where it taps Bear creek. Can it be said that the grant conveyed that portion of tbe ditch which is not upon section 15, when tbe language of tbe grant is tbe ^improvements thereon” ?
Following out tbe rule that public grants must be construed in favor of tbe grantor, there can be no question but that tbe government did not grant to tbe state of Montana anything but that which is expressly mentioned, and therefore did not attempt to grant any right to tbe use of tbe waters of Bear creek.
■It follows that tbe judgment should be affirmed.
Per Curiam. — For tbe reasons given in tbe foregoing opinion, tbe judgment is affirmed.
Mr. Justice Holloway, being disqualified, takes no part in this decision.
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] |
MP. COMMISSIONER POOPMAN
prepared the opinion for the court.
This is an appeal from a judgment, and from an order overruling plaintiff’s motion for a new trial. The complaint al leges that plaintiff is the owner, in possession of, and using certain lands, water ditches and flumes, and that he has a right to the use of certain waters conducted to his land through said ditches and flumes; that defendant, for several months prior to the commencement of the action, in conducting placer mining operations, and in making excavations above the head of plaintiff’s ditch, willfully, wrongfully and negligently polluted and fouled the said waters by depositing therein large quantities of debris, sand, gravel and tailings, which were carried and deposited by the waters in plaintiff’s ditches and flumes and on plaintiff’s land; that defendant threatened to continue these wrongful acts. Plaintiff asked for damages in the sum of $1,000, and an injunction restraining the continuance of the acts complained of. The defendant controverted the allegations of the complaint that defendant had invaded the rights of plaintiff, and further claimed that by twenty-three years’ user he had acquired by prescription, as against plaintiff, the easement and right of flowage of the said waters charged with said tailings, in addition to the right acquired by contract.
It appears that in 1813 defendant’s predecessors in interest were conducting placer mining operations in Grizzly gulch, and using the waters thereof for that purpose; that they had also, by means of an artificial ditch known as the “Park Ditch,” conducted the waters from another gulch into Grizzly gulch; that thesq waters so conducted would not naturally flow into Grizzly gulch; that in that year a contract was entered into between the plaintiff and the predecessors of the defendant, by the terms of which, for a valuable consideration, the waters, both of Grizzly gulch and those conducted through this Park ditch, were to be delivered to the plaintiff at the junction of Grizzly gulch and Ore Pino gulch; that the grantors reserved the right to the use of these waters for placer mining purposes, and to sell them to other parties for -such use, but were not in any event to use or permit the waters to be used in such manner as to prevent their delivery to plaintiff at the junction of the two gulches; that deeds were afterwards executed, conveying the right to the use of these waters to this plaintiff; that the waters had been used by the plaintiff since that period after being used for mining purposes by the defendant above this junction; that the waters were permitted to flow down Last Chance gulch, which is formed by the junction of the two gulches above named, for some distance, and thence through plaintiff’s ditch to the land in question; that the plaintiff also used certain waste waters flowing through a ditch known as the “Yaw Yaw Ditch,” owned by other parties, conducting a part of the waters of Ten Mile creek into Grizzly gulch above the head of plaintiff’s ditch. Plaintiff had for a great many years also used these waters for placer mining purposes.
1. 'If the defendant, under this contract, has the right to deposit tailings and debris in this water to any extent he may choose, it is within his power to make the plaintiff’s purchase of the right to the use of the water a burden, rather than a benefit, but the terms of the contract do not confer upon the defendant any right to pollute these waters to any greater extent than that permitted by law. A proprietor acquires no title to the water, but only the right to use the same. (Section 1880, Civil Code.) “No person, natural or artificial,' has a right, directly or indirectly, to cover his neighbor’s land with mining debris, sand and gravel, or other material, so as to render it valueless.” (Hobbs v. Canal Co., 66 Cal. 161, 4 Pac. 1147.) To the same effect are the decisions in Lincoln v. Rodgers, 1 Mont. 217, and Nelson v. O'Neal, 1 Mont. 284. This was the settled law at the time this contract was entered into. It has ever since remained the law, and is now the law. (Fitzpatrick v. Montgomery, 20 Mont. 181, 50 Pac. 416, 63 Am. St. Rep. 622.) But as was said-in the last case cited: “We think, however, as is held by the authorities, that each case of this character should be determined by its own facts and circumstances. Persons appropriating water cannot avoid fouling and obstructing, and, to some extent, diminishing, the quantity of water in a stream. These things are unavoidable, and are permitted to a reasonable extent in tbe right use of the water.” “One must so use his own rights as not to infringó upon the rights of another.” (Section 4605, Civil Code.) That which is reasonable, as shown by "the facts of each case, applied under the settled rules of law, must be the guide.
The prescriptive right as claimed by respondent, if maintainable under the authorities, is based upon a state of facts to be proven at the trial. It does not appear on the face of the pleadings. The complaint lays the inception of the injury complained of a few months anterior to the commencement of the action. In order to obtain a right by prescription, it is necessary that during the prescriptive period an action could have been maintained by- the party against whom the claim is made. A right of prescription is limited by the character and extent of the user during a period requisite to acquire the right. (Carson v. Hayes, 39 Ore. 97, 65 Pac. 814; Wood on Limitation, 3d Ed., Sec. 182; Mississippi Mills Co. v. Smith, 69 Miss. 299, 11 South. 26, 30 Am. St. Rep. 546. It is conceded that this record does not contain all the evidence, and we cannot, therefore, go further in interpreting this contract, or in passing upon the prescriptive right claimed by respondent.
2. Plaintiff claims that he was, as of right, entitled to have the questions as to the existence of the nuisance and as to the damages determined by a jury. This the court denied, but held the action to be in equity, and that the verdict of the jury was merely advisory. That the facts stated in the complaint, if true, constitute a nuisance, both.at common law and under the statute, is beyond question. (Section 4550, Civil Code; Section 1300, Code of Civil Procedure; 3 Blackstone, Comm. 217 et seq.) . The seventh amendment to the Constitution of the Hnited States provides, in substance, that the right of trial by jury shall be preserved in all suits at common law where the amount in controversy exceeds twenty dollars. This provision of the Constitution was in full force in Montana at the time of its admission as a state. (Kennon v. Gilmer, 131 U. S. 22, 9 Sup. Ct. 696, 33 L. Ed. 110.) Section 23, Article III, of the Constitution of Montana, provides, in part, “The right of trial by jury shall be secured to all and remain inviolate.”
With reference to the constitutional guaranty of the right of trial by jury secured by this seventh amendment, the Supreme Court of Montana in Mont. Ore Pur. Co. v. Boston & Montana Con. C. & S. M. Co., 27 Mont. 536, 71 Pac. 1005, said: “It must not be overlooked that the right of trial by jury guarantied thereby is the right as it existed at the common law; that is, in that class of cases in which there was no impediment in the way of complete and adequate redress by proceeding according to the court of the common law. The right of trial by jury under territorial government was exactly the same as that guarantied by this' amendment — no greater, no less.”
If the right of trial by jury existed at the time of the adoption of the Constitution of the state, or of the seventh amendment to the United States Constitution, it still exists, and cannot be taken away by legislative enactment. It cannot become obsolete, for it is perpetuated by the state Constitution, and it continues so long as the constitutional provision continues.
It is beyond question that at common law an action for damages caused by the maintenance of a nuisance was triable by a jury. (Blackstone, Comm., above, and the cases cited below.) In Basey v. Gallagher, 20 Wall. 670, 22 L. Ed. 452, the court said: “Sometimes in the same action both legal and equitable relief. may be sought, as, for example, where damages are claimed for a past diversion of water, and an injunction prayed against its diversion in the future. Upon the question of damages a jury would be required; but upon the propriety of an injunction, the action of the court alone could be invoked. The formal distinctions in the pleadings and modes of procedure are abolished; but the essential distinction between law and equity is not changed. The relief which the law affords must still be administered through the intervention of a jury, unless a jury be waived; the relief which equity affords must still be applied by the court itself, and all information presented to-guide its action, whether obtained through masters’ reports or findings of a jury, is merely advisory.”
Walker v. Railroad Co., 165 U. S. 593, 17 Sup. Ct. 421, 41 L. Ed. 837, was an action to recover damages from an overflow of lands, alleged to be caused by a wrongful obstruction, of a natural water course. The court, in considering the question as to the right of trial by jury, said: “The Seventh Amendment, indeed, does not attempt to regulate matters of pleading or practice, or to determine in what way issues shall be framed by which questions of fact are to be submitted to a jury. Its aim is not to preserve mere matters of form and procedure, but substance of right. This requires that questions of fact in common-law actions shall be settled by a jury,- and that the court shall not assume directly or indirectly to take from the jury or to itself such prerogative.”
In State ex rel. Blanpied v. Currier, 66 N. H. 622, 19 Atl. 1000, it is said: “By the uniform practice in equity, the maintenance of a private nuisance is not perpetually enjoined unless its existence, if not admitted, is established in a trial at law by the verdict of a jury, if the defendant demands such a trial.” . '
Hughes v. Dunlap, 91 Cal. 385, 27 Pac. 642, was an action at law for damages for trespass, joined with a petition for ancillary relief to the equity side of the court. A jury trial was. had, and special findings made. The court afterwards refused to ‘adopt the findings of the jury, and made findings of its own upon all the issues, contrary to the findings made by the jury. The court, in passing upon the question, said: “The first point made by appellant is, that the court erred in disregarding the verdict of the jury, and setting it aside without the proceeding of a motion for a new trial. This point is certainly well taken so far, at least, as the issue of damages is 'concerned. It has long since been held that under our system a legal and-equitable remedy may be sought in the same action;; but each remedy must be governed by the same law that would apply to it if the other remedy had not also been asked for. An action to recover damages for past trespasses is as clearly a legal remedy as any that could be named; and it is an action in which a party cannot be deprived of a jury trial. Nor this-reason, therefore, the judgment and order must be reversed.”
If in the case at bar no injunction had been asked for, but only damages been demanded, there could then be no question as to the right of trial by jury. Section 1300, Code of Civil Procedure, after defining a nuisance, and specifying who may bring the action, provides, “And by the judgment the nuisance-may be enjoined or abated, as well as damages-recovered.” At common law an action for the recovery of damages occasioned by a nuisance was always triable by a jury, and this whether the action was “on the case” or by “assize of nuisance.” In an action on the case only a judgment for damages could be recovered — no abatement could be had. In the latter action (assize of nuisance), a- dual judgment could be entered, to-wit, (1) to have the nuisance abated; and (2) to recover damages. Put trial by jury was preserved. (3 Blackstone, Comm. 220; Hudson v. Caryl, 44 N. Y. 553.)
Under the statute, “the abatement of a nuisance does not prejudice the right of any person to recover damages for its past existence” (Section 4555, Civil Code), and “the remedies against a private nuisance are: (1) A civil action; or (2) abatement.” (Section 4590, Civil Code.) Or the aggrieved party may, under Section 1300, Code of Civil Procedure, bring-one action for the double purpose of abating the nuisance and the recovery of damages. .This is a privilege which the law gives, and in its exercise the party is not required, as a condition for resorting thereto, to waive his right to trial by jury; nor can he, by voluntarily asking equitable relief in addition to legal relief, deprive the defendant of this right; nor can the-defendant, by pleading an equitable defense, make the action solely one in equity, though the court may, in passing upon the-equitable side of the cáse, determine that no legal cause of action exists. The damage feature of an action such as is now under consideration relates only to the past; the injunction relates only to the future; differing in this respect from an action to quiet title. The questions as to the existence of the nuisance and as to the damage feature are for the jury. That relating to the injunction is addressed to the equity side of the court.
Hudson v. Caryl 44 N. Y. 553, was an action for damages' occasioned by raising the waters of a certain creek by a mill-dam so as to overflow the lands of plaintiff, and to compel the removal of such dam. The defendant, relying upon a provision of the Constitution that the trial by jury should remain inviolate, claimed such right, which was denied. The appellate court held that the refusal of a jury trial was error, and said, in part: “Article I, Section 2, Const. 1846, demanded that-the issues be tried by a jtiry, and his demand was overruled. In this the court erred. The rule stated in Davis v. Morris (36 N. Y. 569, 572-3) is that when the facts stated, arising (as in this case) out of the same transaction, entitle a party to both kinds of relief, the right founded upon the common-law must be tried by jury. * * * The judge must determine whether any of the grounds, upon which the recovery is sought, were such as, at the adoption of the Constitution, were redressed solely by action at law, and, if so, direct that the cause be tried by jury.” Later on in the same opinion the court says: “Thus it will be seen that, in this single action, brought for .the double purpose of abating a nuisance and the recovery of damages occasioned by it, by whatever name the remedy may have been styled, a ease is presented in which a trial by jury has been heretofore used; and hence, that an error was committed in refusing the defendant’s demand and proceeding to judgment against him.”
It is apparent from these considerations that the facts of the ■existence of the nuisance and the amount of damages were triable by a jury before the adoption of the Constitution, and "that they are still triable by a jury, and that the plaintiff in this action had the right to have this ease presented to and determined by a jury. (Parker v. Winnipiscogee L. C. & W. Co., 2 Black, (U. S.) 545, 17 L. Ed. 333; Irwin v. Dixon, 9 How. 10, 13 L. Ed. 25; Parsons v. Bedford, 3 Pet. 433, 7 L. Ed. 732.)
3. The respondent contends that the appellant has waived his right to object to the action of the court in regarding this case as one in equity, and treating the findings of the jury as advisory. It appears from the record that at the beginning of the trial a jury was regularly impaneled, and the trial proceeded until the evidence was concluded as though it was a jury trial. The plaintiff then asked the court to give the jury certain instructions, which were submitted, and some of which, at least, were proper to be given on the law phase of the case. Tiie court seems to have regarded this action on the part of plaintiff as raising the question as to whether the action was one at law, or solely in equity, and announced that it would treat the action as one in equity, and regard the verdict of the jury merely as advisory, and refused to give the instructions, but did submit to the jury a large number of questions to be answered by them. The appellant took no exception to this ruling of the court, other than the exception given him bylaw on the refusal of the court to give proper instructions tendered. The cause Avas then argued and submitted to the jury, and the jury afterwards returned into court and announced their special findings, which were received and filed, and the jury discharged. The record then contains this statement! “That thereafter defendant * * * moved the court to reject certain of such special findings of the jury, and to make-other and additional findings; * * * that thereafter * * * plaintiff made like motion respecting certain of such special findings of the jury in said cause, * * * and said motions were duly heard by the court.” It also appears that the court denied the motion of appellant (plaintiff) with reference to the special findings, and sustained the motion of respondent (defendant) with respect thereto.
Section 23, Article III, Constitution, provides: “The right ■of trial by jury shall be secured to all, and remain inviolate, but in all ,civil cases * * * upon default of appearance or by consent of the parties expressed in such manner as the law may prescribe, a trial by jury may be waived.” This provision ■of the Constitution that a jury may be waived in the manner prescribed by the law — that is, by written law — is mandatory ■and prohibitory. (Section 29, Article III.) It is the'duty ■of the court to grant to litigants the rights given them by this -constitutional provision. The Constitution, in effect, commands that a jury trial, if waived, shall be waived in a certain manner, and prohibits its being waived in any other manner. The only manner prescribed by law for waiving a jury to a ■civil action is found in Section 1110, Code of Civil Procedure, which reads as follows: “Trial by the jury may be waived by the several parties to an issue of fact in actions arising on contract, or for the recovery of specific real or personal prop■erty, with or without damages, and with the assent of the court in other actions, in manner following: (1) By failing to appear at the trial; (2) by written consent, in person or by attorney, filed with the clerk; (3) by oral consent, in open court, entered in the minutes.”
The action at bar does not arise on a contract, nor is it for the recovery of specific real or personal property, but is, so far .as the law part of the action is concerned, an action for damages occasioned by the maintenance of a nuisance. It follows, therefore, that no waiver of the jury could be had at all without the consent of the court, and there is no pretense that the plaintiff waived his right to a jury trial by any of the methods which the “law may prescribe,” or that the assent of the court was ever given to any waiver at 'all, except the assent implied from the court’s action in holding the case to be wholly in •equity.
This action asked for both legal and equitable relief; that is, to have the existence of a nuisance declared, and for damages, which should be determined by the jury, and an injunction, which should be determined by the court. The special interrogatories submitted to the jury related to both the legal and equitable sides of the action. It appears by the record that the plaintiff did ask the court to set aside certain of these findings ®f the jury, but there is no intimation in the record as to which or what findings this request was directed. The findings relating to the equitable side of the controversy were not, in any event, binding upon the court, and the parties had the right to ask that they be set aside, or that other findings be made. Which of these classes of findings the plaintiff asked to have set aside, does not appear. So far as the record discloses, this request may have been addressed only to the findings relating to the right of the plaintiff to an injunction. We need not enter the field of speculation as to which class of findings the plaintiff referred.
- The plaintiff was under no obligation to demand a trial by jury, for that right was given him by the Constitution; nor was he required to submit to the court the question as to whether he had a right to a jury trial, for that right was also granted to him by the Constitution. The law gave him an exception to the action of the court in refusing to give proper instructions submitted on the law feature of the case. (Section 1080, Code of Civil Procedure, as amended (Sess. Laws 1901, p. 160).) The right of trial by jury may be waived only in 'the manner provided by law. It cannot be taken away. (Hodges v. Easton, 106 U. S. 408, 1 Sup. Ct. 307, 27 L. Ed. 169; Meech v. Brown, 4 Abb. Prac. 19.)
Any reason which the court may have stated for refusing to give the instructions is immaterial, and no exception to this reason stated was required. The error committed was in refusing to give the instructions, not in expressing the reason therefor, and all subsequent proceedings were under the exception given by the law. This exception is not waived by a party proceeding with the trial after the instruction has been refused.
This particular question as to the waiver of a jury was once before this court in Harris v. Lloyd, 11 Mont. 390, 28 Pac. 736, 28 Am. St. Rep. 475, but by reason of -the action of tbe parties the court declined “to enter this field of research,” but. reversed the case for other reasons.
In Biggs v. Lloyd, 70 Cal. 447, 11 Pac. 831, the court, in considering this question under a constitution and statute similar to those of Montana, held that the right to a jury trial is a constitutional right, and that no act on the part of a litigant shall be deemed a waiver of this right, except such as are so constituted by express law. And this decision was affirmed in Farwell et al. v. Murray, 104 Cal. 464, 38 Pac. 199. The same doctrine is also announced in Swasey v. Adair, 88 Cal. 179, 25 Pac. 1119.
'The plaintiff, by requesting the court to give certain instructions to the jury, emphasized his reliance upon the constitutional guaranty of his right to trial by jury. The court, by its ruling, having forced the plaintiff to treat the case as one in equity, it cannot now be claimed that the plaintiff waived his constitutional right by endeavoring to maintain his claim for damages, and to have the obstruction complained of declared a nuisance, under the theory of the case which the court had compelled him to adopt. The claim that the appellant had waived his right to object to this ruling of the court cannot be sustained.
4. Complaint is also made that certain items of cost were taxed against appellant, to-wit, for a transcript of the testimony given by plaintiff in another action, for a map introduced in evidence by the defendant, and for costs and expenses of a deposition of one of plaintiff's witnesses. These items of cost are included in the judgment, and, as the judgment mugt be reversed and the case remanded for a new trial, it is unnecessary to pass upon these objections, for the reason that the allowance of these items of cost must depend largely upon the facts of the case. Por the guidance of the court, however, we cite the following cases wherein Section 1866 of the Code of Civil Procedure has been construed: Mont. Ore Pur. Co. v. Boston & Montana Con. C. & S. M. Co., 27 Mont. 288, 70 Pac. 1114; King v. Allen, 29 Mont. 5, 73 Pac. 1107.
We recommend that the judgment and order appealed from be reversed.
Per Curiam. — The foregoing opinion was prepared and submitted for approval while Mr. Callaway was a member of the Commission. For the reasons stated therein, the judgment and order are reversed, and the cause is remanded.
Reversed and remanded.
Mr. Ctiiee Justice Brantly:
I agree with all that is said in the foregoing opinion touching the right of trial by jury in this case, as an abstract proposition. I do not think, however, that the question is presented in the record for determination. I do not think that the question of the right of trial by jury was presented or decided by a mere-refusal oh the part of the trial court to submit a particular instruction to the jury. Section 1151 of the Code of Civil Procedure enumerates the rulings and decisions of the trial court for which the law gives an exception, and for the preservation of which, for review in this court, no bill of exceptions is required. In order to have any ruling or decision of the court, other than one of those enumerated in Section 1151, supra, reviewed by this court, it is necessary for the party complaining to take his exception and preserve the ruling in a bill of exceptions. Among rulings enumerated in this section is not found a refusal on the part of the trial court to grant a trial by jury. What occurred at the time of the trial is stated in the third paragraph of the opinion, and, although it appears that the court announced that it would treat the action as one in equity, and regard the verdict of the jury as advisory only, appellant took no exception to this ruling. Nor has he presented this ruling in a bill of exceptions. Having taken no exception to the ruling, I do-not think he has any standing in this court to have the ques tion of his right in the premises determined. I think his behavior shows clearly that it was his intention to waive, and that he did waive, the right to have the cause submitted to a jury as an action at law. I therefore do not agree with the conclusion stated in this paragraph of the opinion — that a jury trial can be waived only by observance of the formalities provided by statute. In any event, he is estopped by his behavior to say that he was denied his constitutional right.
It has repeatedly been held by this court that, where á party adopts a particular theory of a case in the trial court, he will not be permitted in this court to change that theory for the purpose of obtaining an advantage which he would have had, had he adopted the correct theory of the case upon the trial. (Workman v. Montana Central Railway Co., 22 Mont. 266, 56 Pac. 316; Finch et al. v. Kent and Wife, 24 Mont. 268, 61 Pac. 653; Durfee v. Harper, 22 Mont. 354, 56 Pac. 582; Talbott v. Butte City Water Co., 29 Mont. 17, 73 Pac. 1111; Hendrickson v. Wallace, 29 Mont. 504, 75 Pac. 355.) While only two of these cases refer to the matter of the right of trial by jury, yet the principle of -the theory of the case is as applicable to cases involving the right of trial by jury as it is to other cases where the question of the right of trial by jury was not before the court. If a party himself assumes that his cause is one in equity, and not at law, and proceeds upon this theory through the trial in the district court, I do not think lie should be permitted to raise the question for the first time in this court, that he has been deprived of the right of trial by jury, simply because the formalities prescribed by the statute for waiving such right have not been observed.
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] |
MR. COMMISSIONER OLATEERO
prepared the following opinion for the court:
Appeal from judgment against defendant, and from an order overruling a motion for a new trial.
The action was to recover damages for a personal injury-arising from the alleged negligence of defendant. The record discloses that plaintiff was employed at the time of the accident in operating a shearing machine in defendant’s coal mine; that there was supplied to operators of these machines a pump jack for raising the machines ivhen.such raising was required or necessary; that this pump jack was intended to be operated by means of a handle about 27 inches long, fitting closely in the socket of the pump jack; that plaintiff used a sprag in such operation, which is about 17 inches long, and pointed at both ends, and which was intended for use in blocking the wheels of cars; that the teeth or cogs upon the upright bar and upon the sprockets of the pump jack used by plaintiff were so worn that, in raising the shearing machine with this pump jack, the teeth or cogs slipped past each other, and the weight of the shearing machine, falling upon the upright bar, threw the sprag upward, so that it struck plaintiff in the eye, destroying the same. The negligence alleged, and upon which the judgment is based, is want of reasonable care on the part of defendant in furnishing the plaintiff this pump jack, which it is claimed was defective. It is alleged in the complaint that the defendant knew that it was out of repair, and that the plaintiff did not know it, and could not have ascertained that fact by the exercise of reasonable diligence. The answer denies all the material allegations of the complaint, and alleges as á defense contributory negli gence of plaintiff, and that he assumed the risk of injury when he was employed by the defendant in the capacity of machine runner. Plaintiff testified that he had no knowledge of the worn condition of the pump jack, but testimony ivas given by defendant’s witnesses, and also drawn out of some of plaintiff’s witnesses on cross-examination, that the condition of the jack could have been ascertained by merely, lifting the upright bar so as to expose the notches or cogs thereon, and by pushing the handle of the machine down so as to expose the upper sprocket, and by lifting the handle so as to expose the lower sprocket. Therefore defendant claims that plaintiff should be charged with knowledge of its condition. Defendant also claims that a pump jack is a common tool, which needs no inspection by the defendant, apd that the plaintiff must have known of its condition at the time he used it, and therefore assumed the risk of injury from such use. Defendant further insists that the jack was not intended to be operated with a sprag, but with a handle made for that purpose, and that, if no handle was with the jack at the time plaintiff took it for use, it was his duty to have procured one prior to the use of the jack, and is guilty of contributory negligence which bars a recovery.
The court instructed the jury with reference to defendant’s liability on account of the defective pump jack as follows:
“There is no duty, even as to complicated machinery, to see to it at all times that it is in perfect condition, but only to use reasonable care in its inspection. And as to defects that can be seen as readily by the person working with the implement as by an inspector specially appointed by the master, it is equally the duty of the workman using the tool or implement to know of the defect, if any there is. So as to the pump jack. If its slipping was due to the wearing of the teeth or ratchets, and this worn condition could have been discovered by an examination of the jack, then, in placing the plaintiff to work with such a pump jack, even though it was liable to slip, defendant would iiót be violating any duty owed plaintiff, and he could not recover in this action, unless you find by a preponderance of the evidence that the condition of the pump jack could not have been seen by raising the lifting bar and examining' its notches, and the possibility of its slipping could not have been thus discovered. The court instructs you it was the duty of the plaintiff to make such examination, and if by doing so he might have discovered the possibility of the jack slipping, his failure to do so would prevent him from recovering in this action, and your verdict must be for the defendant.
“If, as a reasonable person, possessed of ordinary skill requisite to run a machine and use a pump jack— and, having accepted employment for this purpose, plaintiff must be presumed to have possessed such skill — if the plaintiff, by raising the lifting bar, might have been warned of the possibility of the jack slipping, his failure to do so would prevent him from recovering in this action.
“Plaintiff, having accepted employment as a machineman and run this machine, could not be heard to say he did not possess the necessary skill to operate it and the pump jack belonging to it. And if he was in charge of the machine, it would be his duty to inspect it and the pump jack, and, the duty being upon him to perform this inspection, he could not recover in this action for any defect that could have been discovered by an ordinarily careful inspection.”
These instructions were the law of the case, binding upon the jury, and it was the duty of the jury to follow them, notwithstanding they may be erroneous;. and a verdict rendered in disregard of them was against the law. (Murray v. Heinze, 17 Mont. 353, 42 Pac. 1057, 43 Pac. 714; State v. Dickinson, 21 Mont. 595, 55 Pac. 539; King v. Lincoln, 26 Mont. 157, 66 Pac. 836.)
The record clearly discloses evidence tending to show that the condition of the pump jack could have been ascertained by an examination as above indicated. Therefore the verdict discloses that the instructions above quoted were disregarded by the jury.
We have not overlooked the testimony of' plaintiff’s witnesses to the effect that it could not be determined whether the jack would slip without testing it by attempting to raise a weight. But such testimony does not, in our opinion, take the case out of the rule above announced, as the charge above quoted made the basic factor thereof the condition of the jack, and the fact that plaintiff could have ascertained that condition by merely looking at it in the way designated, and not whether the cogs would slip under a weight. If the cogs or teeth were worn, it might or might not have been dangerous, depending on the extent of the wear, and the circumstances under which it might be used. Under the charge above quoted, if plaintiff knew or should have known of its condition, and used it without objection, he assumed the risk of its dangerous condition, and the personal injury resulting from such use.
That part of the charge relating to the use of the sprag instead of a handle was also disregarded by the jury. The instructions in reference thereto were 'as follows:
“If the defendant company furnished a lever fitting the socket of this pump in the first instance, it would have discharged its duty in this regard. And in working the pump jack it would be the duty of the plaintiff to use such lever, and, if it was too long, to ask that it be cut off to proper length, or request another, shorter one. He would not be justified, because the lever originally furnished was too long, in using a sprag or other implement not intended for the purpose of pumping the jack, nor would he be justified in using such sprag simply because there was no lever with the pump jack at the time he started to work with the machine; but it would have been his duty to have asked for a proper lever, and if, without asking for the lever, he used the sprag, and the evidence fails to satisfy you by a preponderance or greater weight thereof that the use of the sprag did not assist in causing the injury, then plaintiff’s use of the sprag is his own fault, and, whatever the fault of the defendant in the action, the plaintiff could not recover.
“In accordance with the foregoing, if the plaintiff could have used a lever fitting the socket, and with it have lifted the shearing machine with less danger to himself than with the stick he did use, called a ‘sprag,’ lie ought to have used the lever, and he would not be justified in failing to use it because he found none at the machine or with the jack at the time he started to work with it; but it would have been his duty to have gone or sent his assistant to have procured the proper lever before undertaking to use the jack. And if the accident was caused by the use of a sprag instead of the lever, he cannot recover, and your verdict must be for the defendant.
“Again, if a long lever could be used in any manner to lift the shearing machine, and its use would have diminished the danger resulting from possible slipping of the jack with the weight of the shearing machine upon it, or would have made it less likely that the point of the lever could have put out his eye, if it was put out by the point .of the sprag or by the sprag itself, then he would have been bound to avoid the use of the sprag; and if he sustained his injury in consequence of the shortness of the sprag, either because he had not sufficient leverage to resist the impact of the dropping machine, or because its length was such as to enable it to reach and strike his eye, or because its shape and fitting in the socket diminished his power of control over the -weight of the machine, then his injury would be due to the use of the-sprag, and he would have assumed the risk of using it, and could not recover in the action, and your verdict must be for defendant.” '
The record discloses that plaintiff used a sprag instead of a handle when he operated the pump jack. It also discloses uncontradicted -evidence introduced by defendant’s witnesses tending to show that the use of a sprag was not as safe as the use of a handle as furnished by the defendant in the first instance, for the pump jack, and also that the injury to his eye would not have occurred as it did had a handle been used instead of a sprag, and that the injury might have been occasioned in consequence of the shortness and shape of the sprag. Therefore the verdict is directly in conflict with the instructions above recited.
Under the decisions of this court in Murray v. Heinze, supra, and other cases, we cannot determine upon this appeal whether such instructions are erroneous or correct. We therefore advise that the judgment and order appealed from be reversed, and the cause remanded for a new trial.
Per Curiam. — Por the reasons stated in the foregoing opinion, the judgment and order are reversed, and the cause is remanded.
|
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] |
ME. COMMISSIONER OLAYBEEG
prepared the following opinion for the court:
This is an appeal by defendant from a judgment in favor of plaintiff and from an order overruling a motion for a new trial.
P. J. Brophy was doing business under the name of P. J. Brophy & Oo. The defendant was a corporation. The contro versy arose over an alleged contract for the sale and delivery of ten carloads of potatoes, the plaintiff asserting snch sale and a non-delivery. The defendant admits making an offer of sale to plaintiff, and claims that the same was not accepted. The value of the properly involved in the alleged sale is sufficient to bring the contract under the provisions of Sections 2185 and 2340 of the Civil Code, and 3276 of the Code of Civil Procedure. The burden, therefore, was upon plaintiff to establish by a preponderance of evidence that a valid contract under the above statutes was entered into between the parties, its breach, and his damages. There is no dispute but that defendant failed to perform the contract, if one was made; neither is the amount of damages sought to be established by plaintiff contested. The only question, therefore, for our consideration is whether a valid contract was established by plaintiff’s proofs. The defendant offered no testimony, but relied upon that offered by plaintiff as not being sufficient to establish a valid contract; so that there is no conflict in the testimony, and the only question is, did the testimony offered by plaintiff, as a matter of law, establish a valid contract for the sale of ten carloads of potatoes ?
Section 2185 of the Civil Code provides: “The following contracts are invalid, unless the same, or some note or memorandum thereof, be in writing and subscribed by the party to be charged, or his agent: * * * (4) An agreement for the sale of goods, chattels or things in action, at a price not less than two hundred dollars, unless the buyer accept or receive part of such goods, chattels or the evidences, or some of them, of such things in action, or pay at the time some part of the purchase money * * *”
Section 2340 of the Civil Code provides: “No sale of personal property, or agreement to buy or sell it for a price of two hundred dollars or more, is valid, unless: (1) The agreement or some note or memorandum thereof be in writing, and subscribed by the party to be charged, or by his agent; or, (2) the buyer accepts and receives part of the thing sold, or when it consists of a thing in action, part of the evidences thereof, or some of them; or, (3) tbe buyer at tbe time of sale, pays a part of tbe price.”
Section 3216 of the Code of Civil Procedure provides: “In the following cases the agreement is invalid, unless the same or some note or memorandum thereof be in writing, and subscribed by the party charged, or by his agent; evidence, therefore, of the agreement cannot be received without the writing or secondary evidence of its contents; * * * (4) An agreement for the sale of goods, chattels or things in action at a price not less than two hundred dollars, unless the buyer accept and receive part of such goods and chattels, or the evidences, or some of them, of such things in action, or pay at the time some part of the purchase money. * * *”
As above stated, the proof-must, therefore, have shown an agreement which is covered by Subdivision 4 of Sections 2185 of the Civil Code and 3216 of the Code of Civil Procedure and by Section 2340 of the Civil Code. The evidence of the sale under Section 3216 of the Code of Civil Procedure must be in writing, or secondary evidence of such writings, and perhaps such oral testimony as is explanatory of ambiguities in the' writings.
The- alleged contract consists of the following correspondence between the parties: It seems that about September 6, 1901, appellant sent to respondent a trade circular (which is not in evidence), by which it announced the fact that it was prepared to furnish farm produce to purchasers. On September 10, 1901, respondent wrote the following letter to appellant: “Gents: ^Replying to your favor of the 6th inst.j we will be pleased to have you quote us prices on potatoes for winter use, say from six to ten cars, shipments to be made within the next six weeks. Tour very best efforts in this direction will be appreciated by, yours truly.” By this letter respondent requested appellant to make him' a proposition or offer to sell “from six to ten cars” of “potatoes for winter use,” to be shipped “within the next six weeks.” In reply to this letter appellant sent respondent the following under date of September 12th: “Tour favor of the 10th inst. at hand and noted. We can furnish you ten cars of nice white potatoes (Peerless stock) at 60c. per hundred sacked, f. o. b. Rexburg. We also have some stock, but a little scabby, at 55 c. per II. at this point. * * *” By construing this letter with that of respondent’s of the 10th, above quoted, appellant offered to sell respondent “ten cars of nice white potatoes (Peerless stock) at 60c. per hundred, sacked, f. o. b. Rexburg,” 'and “some stock, but a little scabby, at 5oc. per IT. at this point,” which were to be for winter use, and shipped within six weeks from September 10th. This was the only offer appellant made. All that "was required to make a valid contract between the parties was the acceptance by respondent of this offer within a reasonable time.
Judge Graves, of the Supreme Court of Michigan, in the case of Eggleston v. Wagner, 46 Mich. 610, 10 N. W. 37, states the rule as to the acceptance of an offer in the following clear and concise language: “In order to convert a proposal into a promise, the constituents of the acceptance tendered must comply with and conform to the conditions and exigencies of the proposal. The acceptance must be of that which is proposed, and nothing else, and must be absolute and unconditional. Whatever the proposal requires to fulfill and effectuate, acceptance must be accomplished, and the acceptance must include and carry with it whatever undertaking, right or interest the proposal calls for, and there must be an entire agreement between the proposal and acceptance in regard to the subject-matter and extent of interest to be contracted. If the parties do not refer to the same things in the same sense, the transaction is simply one of proposals and counter proposals.” This language is quoted with approval by Mr. Mechem in his work on Sales (Section 288), and numerous other cases are’cited in its support.
In Potts v. Whitehead, 23 N. J. Eq. 514, the court says: “An acceptance, to be good, must, of course, be such as to conclude an agreement or contract between the parties. And to do this it must in every respect meet and correspond -with the offer, neither falling within nor going beyond the terms proposed, but exactly meeting them at all points, and closing with them just as they stand.” ,
The Supreme Court of the United States, in the case of Minneapolis, etc. Ry. v. Columbus R’g Mill, 119 U. S. 149, 7 Sup. Ct. 168, 30 L. Ed. 376, says; “As no contract is complete without the mutual assent of the parties, an offer to sell imposes no obligation until it is accepted according to its terms. So long as the offer has been neither accepted nor rejected, the negotiation remains open, and imposes no obligation upon either party; the one may decline to accept, or the other may withdraw his offer; and either rejection or withdrawal leaves the matter as if no offer had ever been made. A proposal to accept or an acceptance upon terms varying from those offered is a rejection of the offer, and puts an end to the negotiation, unless the party who made the original offer renews it, or assents to the modification suggested. The other party, having once rejected the offer, cannot afterwards revive it by tendering an acceptance of it.” In fact, the cases holding this doctrine are legion, and no occasion arises for incumbering this opinion with further citations.
Now, remembering that the proposal ivas to sell “ten cars of nice white potatoes (Peerless stock) at 60c. per hundred, sacked, f. o. b. Rexburg,” or “some stock, but a little scabby, at 55c. per H. at this point,” which potatoes were to be for winter use, and shipped within six weeks after September 10th, let us see what action the respondent took upon such proposal, and whether or not he accepted the same within the rules above laid down. Respondent replied to the letter of September 12th, above quoted, on the 14th of September, in the following language: “We have your favor of the 12th inst. and would be glad to have you ship us immediately, as we are entirely out of Stock now, one carload of potatoes. Will instruct you as to the balance later, but your expedition in this matter will be highly appreciated.” Nothing is said herein as to whether respondent accepts either of the propositions stated in appellant’s letter of the 12th, but orders one carload' of potatoes. He does not say whether such car shall be of the nice white potatoes (Peerless stock), or of the stock which appellant said was a little scabby. Again, on September 18th respondent wrote appellant as follows: “Replying to your favor of the 12th and 16th, with reference; to the one ear of potatoes ordered by us on the 14th, we wish you would give us the quickest service possible, as we are at this time almost entirely out, and referring to your offer of the 12th on ten ears choice potatoes, there is no especial rush about this except that we want to get them in after they have fully matured and before any risk of freezing’ must be taken into account. That is to say, during the month of October will be all sufficient, commencing from the 12th to the 15th, and shipping- a car every two or three days until the amount will have been delivered. You of course will select the stock for us, and send no small ones. We expect the cars to average 30,000. By the way, if you have shipped the first car by this time we can use another on or about the 1st of October, and the eight for winter storage may then come along as above indicated, commencing about the 12th. We feel that they will be fully matured by that time, but if our judgment in the matter is wrong we will be glad to abide by yours.”
Do these two letters, or either of them, constitute an acceptance of the proposal made by the appellant, within the rule above announced? We do not think they do. In the first place, the offer was ten cars of “nice white potatoes (Peerless stock).” The letter of the 18th refers to an offer of ten cars of “choice potatoes.” Whether or not “nice potatoes (Peerless stock)” and “choice potatoes” are of the same grade and price the evidence does not disclose, and we are therefore left in doubt. The word “choice” is defined as “meriting preference; having-special excellence; select; precious.” (Standard Dictionary.) The -word “nice” is defined: “(1) Characterized by discrimination and judgment; acute; discerning-. * * * (4) Exactly fitted or adjusted; accurate; apt. * * * (5) Delicately eonstructedj hence, easily disarranged or injured; fragile; tender. (6) * * * Agreeable or pleasant in any way. * * "::‘ Specifically: pleasing to the senses.” (Standard Dictionary.) We are of the opinion that when the appellant proposed to sell “nice” potatoes (Peerless stock), and the respondent expected “choice” potatoes, that it was not an acceptance of the proposal
But again, in the letter of the 18th respondent says, “You of course will select the stock for us and send us no small ones.” It will be noticed that nothing of this kind is stated in the offer • — simply “ten cars of nice white potatoes (Peerless stock),” By the proposal it was undoubtedly intended to offer to defendant ten cars of nice potatoes (Peerless stock), as they run from the digging of the same; not that there should be no small ones among them. The small potatoes may be as nice as larger ones, but not as choice. We are of the opinion that this was a variation from the proposal.
Again, respondent says in the letter of the 18th, “We expect the cars to average 30,000.” Nothing is said in the proposal about the average weight of the cars. The proposal was to send, ten carloads of potatoes. The number of pounds of potatoes ip each car, therefore, would be such as are usually loaded in a car for transportation, and would depend somewhat,on the size of the cars, and the rules of the railroad company shipping the potatoes as to the weight which might be prrt in each car. We are of the opinion that this also was a variation from the proposal.
But again, the proposal was for ten carloads of potatoes. By respondent’s letter of the 12th of September he says: “We would be glad to have you ship us immediately as we are entirely out of stock now one carload of potatoes. Will instruct you as to the balance later, but your expedition in this matter will be highly appreciated.” In the letter of September 18th respondent says: “By the way, if you have shipped the first car by this time we can use another one shipped on or about the 1st of October, and the eight for winter storage may then come along as above indicated, commencing about the 12th.”
We find in respondent’s testimony disclosed in the record the following statements: “I have said that the one caí of potatoes which I paid for at 90 cents per hundred has nothing to do with the ten cars which 1 spoke of in my letter of September 14th. I bought that car as a separate proposition. The balance which I referred to in that letter was the balance of the ten cars which defendant had quoted. It referred to the balance of ten cars agreed to be shipped, taking one car out. There was one car shipped to me by defendant. ■ That car was quoted me by telegram. There is a letter which has not been offered in evidence, which refers to my order for one separate car. That letter has not been offered. It has been overlooked. It has nothing to do with the ten carloads sued for. The car which was shipped me was furnished to me at the price of 95 cents per hundred. I refused the offer at first, and then found myself obliged to order it shipped. This car was shipped on the 31st of September, and was billed at 95 cents per hundred. That car has nothing to do with the ten cars of potatoes mentioned in the letter of September 18th.” Yet we find in the letter of September 18th that respondent seemed to include this car and another ordered to be shipped about the 1st of October in the ten cars claimed by him to have been bought of the appellant, for he says, “By the way, if you have shipped the first car by this time we can use another one shipped on or about the 1st of October, and the eight for winter storage may then come along as above indicated.” It must be remembered that the request for proposal was for potatoes for winter use, and that the appellant proposed to sell ten cars of such potatoes. It is admitted by respondent that one car was paid for at either 90 or 95 cents per hundred, when the contract was for 60 cents per hundred, and that this car, together with one ordered to be shipped about October 1st, were for present use, and only eight cars were wanted for winter storage. The proposal to sell ten cars of potatoes for winter use and the acceptance of eight cars for winter storage are not consistent one with the other. The record further discloses that on the 15th day of October appellant wrote to respondentias follows: “Potatoes are now selling at this point at 15 cents per hundred. Have no doubt but that they will be cheaper later on. Will send you prices on car of mixed vegetables later.” Appellant had already shipped one car of potatoes either at 90 or 95 cents, and by this letter gives the prevailing price at his place of business to be 75 cents per hundred. In reply to this letter respondent wrote as follows on the 17th day of October: “We have your favor of the 15th inst. and replying thereto we must ask your attention to your letter of September 12th wherein you advise us that you can furnish us ten cars of nice white potatoes, Peerless stock, at GOc. per hundred, sacked, f. o. b. Rexburg. We accepted this offer immediately upon its presentation to us and nove we must advise you that we want the potatoes and as this is the best season in which to ship them we want them shipped as quickly as possible according to our instructions on the point. They can be shipped now with much less risk than later when weather conditions will be less reliable. We do not want to take the risk of waiting for the market to decline to suit your figure while the delay will probably drive the shipment so far into the ■winter that the danger from freezing would more than counterbalance the gain by you from the declining market. So therefore we expect you to commence shipping the potatoes as soon as possible at the price at which you sold them to us. We trust you will advise us by the 20th inst. that you have commenced shipping, as otherwise we will be obliged to purchase them for your account.” On the 19th of October, 1901, appellant replied to this letter as follows: “In reply to yours of the 17th inst. will say: We understand you want thirty days time on potatoes. Now we are paying cash for our potatoes and our terms with our customers are strictly cash, upon reasonable time for inspection, and we expect a remittance from you before we ship any more potatoes, and to that effect we have drawn sight draft on you to-day.” In reply to this letter respondent wrote as follows : “We have your favor of the 19th inst. wherein you observe that you understand that we want thirty days time on potatoes. Tour understanding in this matter is generally correct, in this, that thirty days time on potatoes, butter, eggs, poultry and produce of all description is general; but you advise us that your terms with your customers are strictly cash, and therefore you want cash after the lapse of a reasonable time for inspection of shipment. This is of course quite satisfactory to us. We realize that your contract to furnish us with ten cars of potatoes would involve the investment of quite a little money, and on this account it will be a pleasure to us to remit for each car as soon as it has arrived and is inspected. What we want you to do, however, is to ship the potatoes. You volunteer to deliver ten cars at 60c. and now when we want delivery made, you seem to be a little slow about it. We wired you yesterday on receipt of your letter as follows: Will'you commence shipping according to yours of September 12th, if we honor draft. Your terms, reasonable time for inspection, acceptable to us. Answer/ which we now confirm, and awaiting/5 etc., “we remain.55 It appears from the testimony of respondent that the draft mentioned in this correspondence was a draft made by appellant upon respondent for the first carload of potatoes ordered by respondent’s letter of the 14th, and, as respondent says, had nothing to do with the ten cars of potatoes under the alleged contract, but-was an extra car, ordered separately. In reply to this telegram and letter the appellant telegraphed respondent on October 21st, “Draft must be honored before further shipment.55 In reply to this respondent telegraphed: “Draft honored. We expect you to ship potatoes now as per your proposition of September 12th.55 In regard to this one car of potatoes ordered by letter September 14th the respondent further says: “I have personal knowledge of the draft referred to in this telegram of October 21, 1901, from defendant. It is a sight draft that defendant had made upon me for the carload of potatoes shipped to me at 90c. per hundred from the defendant. This carload of potatoes was not such potatoes 'as would he required for winter storage.55
It is apparent from the record that several communications passed between the parties which were not offered in evidence, and are therefore not in' the record. It may he that such communications would have explained a great many apparent inconsistencies in the letters and telegrams in the record, but, not being in the record, we must construe the letters and telegrams as they appear. It appears, judging’from the letters and telegrams in the record, that on September 14th respondent ordered one car of potatoes for immediate use. On September 18th he ordered another car, to be shipped about October 1st. The first car was shipped, and a sight draft made by appellant upon defendant for the potatoes included therein at 90 cents per hundred. Before the 19th of October respondent must have indicated in some manner that he desired thirty days’ time on the potatoes, and the appellant stated that, “We expect a remittance from you before we ship any more potatoes, and to that effect have drawn sight draft on yon to-day.” It must be remembered that at that time there was no other order given by respondent to appellant for shipment of any potatoes execept one car, which was ordered shipped about October 1st. This language in appellant’s letter may have had reference to such car. If it had reference to the alleged contract to purchase all ten cars it would show that a valid contract had not been entered into for such purpose, because there seemed to be a disagreement between the parties as to the time of payment. Therefore the minds of parties had not met, and no contract existed. The terms of payment, as well as the other elements, must be agreed- upon. (Washington Ice Co. v. Webster, 62 Me. 341, 16 Am. Rep. 462.)
It would have been very eásy for respondent, upon receipt of appellant’s letter of September 12th, to have written in reply, “We hereby accept the first proposal contained in your letter of September 12th.” This would have covered the entire matter. This would have established a valid contract, under the statutes of this state, for the sale and delivery of ten cars of nice white potatoes (Peerless stock) at the price of 60 cents per hundred, f. o. b. Rexburg; but this acceptance was not given. Respondent, in his letters of the 14th and 18th of September, ordered two cars of potatoes for immediate use, which he says were not potatoes fit for winter storage, and by this letter of the 18th directed that the remaining eight cars for winter storage should be shipped a little bit later. Instead of ten cars of nice potatoes (Peerless stock) for winter use, the respondent’s proof shows an acceptance of only eight cars of choice potatoes. He insisted that there should be no small ones among them, and that each car should contain 30,000 pounds. The letters of the 14th and 18th were, in effect, a counter proposition, and not an acceptance, under the above authorities.
It will be noticed that in the brief of respondent the position is taken that, the defendant in the court below declining to offer any testimony and submitting the action to the court upon the testimony of plaintiff, was, in effect, a motion for a nonsuit, and respondent urges that the law has been declared by this and other courts that a motion for nonsuit is deemed to admit the truth of all the evidence introduced by plaintiff, and that every fact which the evidence tends to prove and all reasonable deductions therefrom must be conceded to have been established for the purpose of deciding the motion, and all conflicting inferences or presumptions arising from the evidence must be resolved in favor of plaintiff; that the court'is bound to give the evidence the most favorable construction for plaintiff which it .will possibly bear. In this position counsel for respondent have fallen into error. There is no rule of law which requires a defendant in the trial of a case in the court below to offer any evidence. If he is satisfied that the evidence introduced on behalf of plaintiff is not sufficient, upon any theory, to warrant a recoveery, he may avail himself of that position by making a motion for nonsuit, which is, in effect, raising a point of law, and is tantamount to saying, “We admit the truth of all your evidence, but say as a matter of law that it is not sufficient”; or he may proceed upon another theory, and that is that the jury will not believe the testimony introduced by plaintiff, and submit the case for a finding of the jury upon the evidence the plaintiff has introduced. And upon this proposition it must be remembered thaf the burden is upon the plaintiff to establish by a x>rex>onderance of the evidence the allegations of his com plaint, and the question to be submitted is one of fact, and not of law.
AVe are clearly of the opinion that the .record does not disclose an acceptance of appellants proposition under the authorities above cited, and therefore that the plaintiff failed to show a valid contract. Therefore the case must be reversed, and we so advise.
Per Curiam. — Por the reasons stated in the foregoing opinion, the judgment and order are reversed, and the cause is remanded.
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] |
MD. COMMISSIONED CALLAWAY
prepared the following opinion for the court:
One Harold Kelly, alleging himself to be an heir of Patrick Kelly, deceased, has attempted to appeal from two orders made by the district court, viz., from an order denying his application to vacate the decree of distribution in the matter of the estate of Patrick Kelly, deceased, and from an order denying his application to vacate an order settling the administrator’s account and discharging him.
It is apparent that no appeal lies from either of the orders mentioned.
Subdivision 3 of Section 1722, Oode of Civil Procedure, as amended (Session Laws 1899, p. 14-6), provides that an appeal may-be taken to the supreme court from a district court in the following eases: “Erom a judgment or order granting or refusing to grant, revoking or refusing to revoke, letters testamentary or of administration, or of guardianship; or admitting or refusing to admit a will to probate, or against or in favor of the validity of a will, or revoking the probate thereof; or against or in favor of setting apart property, or making an allowance for a widow or child; or against or in favor of directing the partition; sale or conveyance of real property, or settling an account of an executor, or administrator, or guardian; or refusing, allowing, directing the distribution or partition of an estate, or any part thereof, or the payment of a debt, .claim, legacy or distributive share; or confirming or refusing to confirm a report of an appraiser setting apart a homestead.”
The foregoing enumerates all the cases in which an appeal may be taken to this court from the district court in probate proceedings, and an order refusing to vacate a decree of distribution and settlement of final account is not one of them; neither is an order denying an application to vacate an order settling an administrator’s account and dischai’ging him. (In re Wiard’s Estate, 83 Cal. 619, 24 Pac. 45.) It has been uniformly held that an appeal from an order of the character of those before us cannot be sustained unless the orders are specifically enumerated in the statute. (Estate of Calahan, 60 Cal. 232; Estate of Dean, 62 Cal. 613; Lutz v. Christy, 67 Cal. 457, 8 Pac. 39.) “The party against whom an appealable judgment or order has been made, or who is aggrieved thereby, may not appeal from an order refusing to vacate, dissolve or modify it.” (Butte Con. M. Co. v. Frank, 24 Mont. 506, 62 Pac. 922.)
(Decided January 23, 1905.)
If the appellant found himself too late to appeal from the orders which he moved to set aside and vacate, he should have adopted a different course from that pursued in order to obtain relief.
In our opinion, the court has not jurisdiction to entertain these appeals, and they should be dismissed.
Per Curiam.' — Eor the reasons given in the foregoing opinion, the appeals are dismissed.
|
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] |
MR. JUSTICE' COOPER
delivered the opinion of the court.
This is an original application for a writ of supervisor}' control directed to the district court of Pondera county and Hon. William E. Carroll, judge presiding.
On October 5, 1921, the county attorney of Pondera county filed in the district court a written accusation against James T. Green, praying his removal as county clerk for neglect and refusal to perform his official duties. In one paragraph it is charged that ever since the seventh day of March, 1921, as county clerk, he has willfully refused to make a full and complete statement of the financial condition of his county as required by sections 2953 and 3045 of the Revised Codes of 1907. In another, that he willfully neglected and refused to file a copy of the assessment-book or the original thereof, with the county treasurer on the first Monday in October, 1920, as prescribed by section 2609. The eighth paragraph charges that in eighteen specific instances he performed the services required of him as county clerk, collected the legal fees chargeable therefor (section 3139), but on each occasion willfully refused to enter, in the reception fee-book provided' by law, the full amount so charged and received, and in each instance has willfully paid into the county treasury an amount less than the legal fee so- collected. In still another paragraph it is alleged that, as county clerk, he charged and collected as a legal fee the sum of $15.85 for the services of a clerk and deputy in his office in searching and transcribing certain records of Teton county, but has willfully refused and neglected to perform his official duty to enter the same in the reception fee-book, or to pay any part of that amount into the county treasury.
Honorable John J. Greene, the judge of the nineteenth judicial district, being disqualified, Honorable C. W. Pomeroy, judge of the eleventh judicial district, appeared in court prepared to try the cause. The defendant demanded a jury trial. This the court denied. The defendant then filed an affidavit charging Judge Pomeroy with bias and prejudice. At the instance of the governor, Honorable William E. Carroll, a judge of the second judicial district, on the tenth day of January, 1922, appeared and assumed jurisdiction of the cause. The defendant entered a plea of not guilty and again demanded a jury trial. Judge Carroll annulled the order of Judge Pomeroy denying defendant a trial by jury, and set the cause for trial on Monday, February 6, 1922, before bimself as judge and a jury to be impaneled and sworn on that day. To test the legality of the order last made, this proceeding was commenced.
The relator’s contention is that, the charges to be tried being for misconduct involving willful refusal and neglect to perform official duty, the defendant Green is not entitled to a jury trial. The respondents insist that the charges involve a “criminal prosecution” under section 3 of Article III of the Constitution, and that Green is entitled to a jury trial as a matter of right.
Since the attempted disqualification of Judge Pomeroy, this court has held that in removal proceedings a judge may not be disqualified for imputed bias and prejudice. (State ex rel. Houston v. District Court, 61 Mont. 558, 202 Pac. 757.)
By the provisions of section 9006 of the Revised Codes of 1907 as amended by- Chapter 25 of the Session Laws of 1917, a public officer is subject to removal if he has willfully refused or neglected to perform his official duty, or “has knowingly, willfully or corruptly” charged and collected “illegal fees for services rendered or to be rendered.” He is to be cited into court, “not more than ten or less than five days from the time the accusation” is filed, and the time for the hearing or trial set. If the charges are sustained, a judgment of removal from office is to be rendered and costs allowed as in civil actions. The gist of the offense charged in this case is willful neglect of duties imposed by law, and not the collection of illegal fees.
For the purpose of fixing penalties for all crimes and offenses punishable at all, section 8107 of the Revised Codes of 1907 was enacted. In that statute death is prescribed as the penalty for murder in the first degree; for lesser crimes and offenses, fine and imprisonment; and lastly, for misconduct or malfeasance in office, removal therefrom and disqualification to hold public office again. By the provisions of Chapter 25, supra, the offender has a right to a jury trial upon a charge for the collection of illegal fees. For neglect, or nonfeasance, lie has not. The accusations in the present case are that the county clerk failed and neglected to perforin official duty. That removal proceedings are special and statutory, all the authorities declare. (State ex rel. Payne v. District Court, 53 Mont. 350, 165 Pac. 294; State ex rel. Rowe v. District Court, 44 Mont. 318, Ann. Cas. 1913B, 396, 119 Pac. 1103; State ex rel. Houston v. District Court, supra; Gay v. District Court, 41 Nev. 330, 3 A. L. R. 224, note, 171 Pac. 156; State ex rel. Kirby v. Henderson, 145 Iowa, 657, Ann. Cas. 1912A, 1286, 124 N. W. 767; People ex rel. Clay v. Stuart, 74 Mich. 411, 16 Am. St. Rep. 644, 41 N. W. 1091; Ashley v. Three Justices of Superior Court, 228 Mass. 63, 8 A. L. R. 1463, 116 N. E. 961; Rankin v. Jauman, 4 Idaho, 53, 36 Pac. 502; State v. Leach, 60 Me. 58, 11 Am. Rep. 172.) These authorities also hold that the right to hold public office is not a property right of which the guilty official may not be divested in a proper case upon sufficient proof. Both the Payne and the Rowe Cases, above cited, involved proceedings for the removal of public officers charged with the collection of illegal fees, but not liable to impeachment. Mr. Justice Holloway expressed the views of this court in the Payne Case as follows: “Section 17, Article V, of the Constitution provides for the removal of certain officers by impeachment, and section 18 of the same Article declares that officers not liable to impeachment are subject to removal for misconduct or malfeasance in office, in such manner as may be provided by law. Recalling that our Constitution is a limitation and not a grant of power, it will be seen at once that the provisions of section 18 above added nothing to the power which the legislature would have had in the absence of such provisions. In other words, the legislature was left entirely free to enact such statutes as it might see fit providing for the removal of officers other than those enumerated in section 17. * * * In State ex rel. Rowe v. District Court, above, this court held that the proceeding authorized by section 9006 is guasi-criminal in character, but that the accused is not entitled to a jury trial. (Page 327.) Doubtless it would be more nearly accurate to say that the proceeding is a special statutory one and avoid any attempt at arbitrary classification. It is one clearly authorized by law in the exercise by the legislature of its plenary power.” The saíne character of proceeding was again reviewed in State ex rel. Paige v. District Court, 54 Mont. 332, 169 Pac. 1180. Of section 9006 and Chapter 25, supra, Mr. Justice Holloway for this court said: “The gist of the offense defined by section 9006 was taking illegal fees, whether done ignorantly, in good faith, or with a dishonest purpose. The gist of the offense defined by the amended statute is the criminal intent. Unless the accused collects the illegal fees knowingly, willfully and corruptly, he commits no offense under the new Act. Under the original statute the accused was not' entitled to a jury trial, but he is under the new Act. Under this new provision he may offer evidence of good faith, honest mistake or value received by the. county, whereas under section 9006 none of these matters was relevant.”
The right of the legislature to enact these statutes comes from the exigencies of government and inherent legislative power. Therein no attempt is made to go beyond conviction and removal of the guilty. When the judgment is entered and executed by removal from office, the statute has spent its force without loss to the accused of any of the constitutional guaranties, including the right to a trial by jury in a “criminal prosecution.” (State ex rel. Payne v. District Court, supra.) Public office is not the private property of the person elected to it. (Taylor v. Beckham, 178 U. S. 548, 44 L. Ed. 1187, 20 Sup. Ct. Rep. 890, 1009; Gray v. McLendon, 134 Ga. 224, 67 S. E. 859), but a public trust to be administered according to law and in the interests of the people by whose grace it is bestowed. It is taken in full view of all the vicissitudes of legislative action, including removal for such cause as the legislative assembly may deem sufficient. The order granting the demand of the accused for a jury trial cannot be upheld without an unwarranted interference with the polity of government entrusted to legislative discretion.
The order made by Judge Pomeroy denying the defendant a trial by jury was proper under the law, and therefore the order of Judge Carroll is hereby annulled and set aside, and that made by Judge Pomeroy reinstated.
Mr. Chief Justice Brantly and Mr. Justice Galen concur.
Mr. Justice Holloway concurs in the result.
Mr. Justice Reynolds, being absent, did not hear the argument and takes no part in the foregoing decision.
|
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] |
MR. COMMISSIONER HORSEY
prepared the opinion for the court.
The defendant, Jack Mason, was convicted of the crime of obtaining money by false pretenses under the provisions of section 8683 of the Revised Codes of 1907, and sentenced to imprisonment in the state penitentiary. From the judgment of conviction and from an order denying his motion for a new trial defendant appeals.
The facts developed by the state at the trial disclose that the defendant appeared at the banking-room of the Daly Bank & Trust Company of Anaconda, Montana, on or about the fifteenth day of January, 1921, and in a conversation with J. R. Harrington, the cashier of said bank, represented himself to be a rancher in the Big Hole Basin, in Beaverhead county, Montana, and stated that he wished to move his family to Anaconda and was desirous of establishing business relations with the bank. Mr. Harrington informed the defendant that. Mr. E. J. Bowman, the president of the bank, was absent from the city, and to call again. Defendant returned on the nineteenth day of January, but found that Mr. Bowman was still absent. He visited the bank again on January 24, and found that Mr. Bowman had returned..
Defendant at that time stated to Mr. Bowman that he owned and operated a ranch in the Big Hole country; that he had about 1,500 head of cattle on his ranch; that he had been doing his banking business with Tegen Bros, of Bútte and owed them about $6,000; that he had some accounts he could not pay; that he could borrow no more money; and started to tell Mr. Bowman about his property, when interrupted by Mr. Bowman with the request that the information be given to Mr. Harrington, the cashier, who would fill out the printed form of property statement used by the bank, and stated' that the bank could then decide whether or not it would make the loan. The information given by the defendant was incorporated in a property statement by Mr. Harrington. Among other assets given by the defendant and noted in the statement were 3,480 acres of land, over 1,500 head of livestock, and about 2,500 tons of hay. Mr. Bowman discussed the various items in the statement with Mr. Mason, and particularly the item of 206 head of beef cattle, which cattle defendant stated he had sold, or contracted to sell, delivery to be made in about sixty days, and from the proceeds of which sale he would satisfy the loan he desired the bank to make. Some further conversation was had as to the weight of these animals and the price to be paid by the buyer. Mr. Bowman went over the statement with Mr. Mason and questioned him in regard to the facts set forth therein. The statement, however, through an oversight, was not signed by the defendant until January 27.
After the discussion was concluded, Mr. Bowman authorized the loan of $10,000. Immediately thereafter a demand note for $10,000 was drawn by Mr. Harrington, payable to the Daly Bank & Trust Company and signed by Mr. Mason; the $10,000 being credited to Miason’s account. At the same time a draft for $6,000 was drawn, payable to Tegen Bros. Bank in Butte; the draft was delivered to the defendant and paid by the Daly Bank & Trust Company on January 25. Two cheeks, bearing date the twenty-first day of January, 1920, payable to cash, for the sum of $1,200 and signed by the defendant, were paid to him in cash on January 24, 1921. Another cheek, bearing date the twenty-fourth day of January, 1921, for the sum of $250 and signed by the defendant, was presented by him to the bank and a draft for said amount issued on Seattle and delivered to him. The last check drawn by the defendant on his account was dated January 25, 1920, for the sum of $500, payable to John T. Stevenson, and was paid by the bank on January 27, 1921. There was paid to the defendant, or for his benefit, by the bank and charged to his account, the sum of $7,700. The bank, having learned that the representations made to it by Mr. Mason were false, withdrew the balance of his credit, amounting to $2,050, and stopped payment on the draft issued on Seattle. Mr. Mason had no account at the bank prior to January 24, 1921.
The testimony showed that both Mr. Harrington and Mr. Bowman believed the representations made to them by Mr. Mason as to the amount of property he owned, and by reason of such representations Mr. Bowman authorized the loan. The testimony on the part of the state further showed that defendant did not own the property set forth in the property statement, and that such representations were false.
The defendant did not take the witness-stand, so that the testimony of the state remains practically uncontradicted. He offered to prove by the witnesses Latham and Bowman an assignment to the bank of $8,000 worth of bonds which he claims the bank accepted as full restitution of the amount of money he had received from the bank. The offer, however, was by the court refused.
It is contended that the information does not state facts sufficient to constitute a public offense. With this we do not agree. The information sufficiently charges the offense of obtaining money by false pretenses under section 8683 of the Revised Codes of 1907, and clearly meets the requirements of the rule laid down in State v. Bratton, 56 Mont. 563, 186 Pac. 327.
The contention that there is a fatal variance between the allegations of the information and the proof in this, that the information charges the obtaining of money by false pretenses, while the proof shows merely the passing of a credit by the bank to defendant’s account on the faith of the note, is likewise without merit.
When the $10,000 was credited to Mason’s account, possession and title to the money passed from the bank to Mason, and it was as much a money transaction as if he, in fact, had received the money and placed it back in the bank, or had received the money and carried it away with him. It was his to do with as he liked. But in this case defendant, on the day charged in the information, actually received on two checks which he presented at the teller’s window the sum of $1,200 in cash. There was also delivered to him, immediately following the execution of the note, a draft for $6,000 payable to Yegen Bros, of Butte, which was paid by the Daly Bank & Trust Company on the day following.
Nor is the fact that defendant received only a part of the money alleged in the information of any consequence. “It is sufficient to prove that some definite portion of the goods was obtained by means of the alleged false pretense. Proof of obtaining a less sum of money or a smaller .quantity of property than that alleged is not a fatal variance.” (25 C. J. 641.)
That the defendant obtained the money by means of checks is likewise of no consequence. In this connection we quote with approval the following from a California case: “There is no variance between the allegations of the information and the proof. The allegation is that the defendant procured money from Norwood, and the proof is that he did procure money, but it was procured by the means or use of a check or written request which Norwood made upon the bank for the payment of the money. There may be a difference between getting money directly by handling the coin over in hand and giving a request in writing to a third party who complies with the request and hands it over, but the effect is the same, and the distinction is highly technical. An appeal that de pends upon such question for reversal is devoid of merit.. The defendant obtained the money, and obtained it from Norwood, no matter what means were used in finally conveying the money from Norwood to the defendant. (People v. Whalen, 154 Cal. 472, 98 Pac. 194.) ” (People v. Leavens, 12 Cal. App. 178, 106 Pac. 1103,)
We further believe that the weight of authority and the best reasoned cases support the proposition that “An averment of obtaining a certain sum of money is sustained' by proof of obtaining a check, draft, warrant, order, or the like, which is afterward paid or honored.” (25 C. J. 641.)
Other arguments advanced by defendant, dealing with the question of variance and failure of proof, have been carefully considered and found to be without merit.
It is earnestly insisted that the lower court committed error in refusing to receive certain testimony offered by defendant to show the amount and value of the property restored to the Daly Bank & Trust Company prior to the trial of the ease, and in support of their position invite attention to section 9328 of the Revised Codes of 1907, which reads as follows: “When the indictment or information charges an offense against the property of another, by robbery, larceny, burglary, fraud, or the like, the jury, on conviction, must ascertain and declare in their verdict the value' of the property taken, embezzled, or received, and the amount restored, if any, and the value thereof; but their failure to do so does not affect the validity of their verdict.” This section of the statutes, and in substantially the same form, was enacted by the first territorial legislature of the then territory of Montana. In 1895 the old section was amended, and among other amendments was one substituting the word “must” for the word “shall” appearing in the old section. This is' of no especial significance, except, perhaps, as evidencing a desire on the part of the legislature to give added emphasis to their intention to make its provisions mandatory.
There has not been called to our attention, nor are we able to find, another state having a statute like ours. There are a few states, notably, Wyoming, Nebraska and Ohio, which have statutes expressly requiring the verdict to specify, in terms, the value found, but in none of these states does the statute require the jury to find the amount of. the property restored or the value thereof, nor do any of the statutes contain the phrase found in the concluding part of the section of our statute.
The supreme courts of Wyoming (Thomson v. State, 21 Wyo. 196, 130 Pac. 850), and Nebraska (Holmes v. State, 58 Neb. 297, 78 N. W. 641), have quoted with approval the following from the case of Armstrong v. State, 21 Ohio St. 357: “Horse-stealing is larceny, and .the language employed in the 167th section of the Code [our section 6252, supra], is clearly broad enough to embrace that offense. It expressly includes in its provisions the offense of obtaining property by false pretenses, and the grade of punishment affixed to. this offense by the statute, like that of horse-stealing, does not depend upon the value of the property obtained. Since, then, the section applies expressly to one of these offenses, we cannot well hold that it has no application to the other, for there is no reason for applying it in one case that is not equally strong in the other. The determination of the grade of punishment is not, then, the only reason for this provision of the Code. Although the value of the property stolen in one case, or falsely obtained in the other, may not affect the grade or kind of penalty imposed for these offenses, it may influence the degree of punishment to be inflicted. The statute gives a wide discretion to the court as to the degree of punishment to be adjudged, on conviction. In this view, it may have been regarded as material to the substantial rights of the defendant. that the actual value of the property stolen, or falsely obtained, should be ‘ascertained and returned’ in the verdict, and that it should not be left, as on a general verdict of guilty, according to respectable authorities it might be (Bishop’s Criminal Procedure, see. 719), to be implied to be the amount stated in the indictment. But whatever reasons may have induced the enactment of the section, its terms are such, we are constrained to hold, that the offense for which the defendant was tried, was embraced in its provisions. To hold the reverse would virtually be a judicial repeal of the section. The verdict was not, therefore, in accordance with the express requisition of the statute, and should have been set aside on the motion of the defendant made for that purpose. ’ ’
We quote the above because, in our opinion, although decided under a statute in many respects unlike ours, it is persuasive of the purpose and intent of our legislature in enacting the section of. the statute now under consideration. But, by reason of the fact that our statute adds a provision requiring the jury to find the amount of the property restored and the value thereof, we are at liberty to add another reason for the enactment of the present section, and that is that it might, to some extent at least, be considered by the jury as a circumstance in determining the question of the intent with which the defendant acted at the time of the commission of the alleged offense with which he is charged. But whatever may have been the purpose for its enactment, we- are not at liberty to disregard its provisions.
It is a familiar and well-settled rule of statutory construction: “That every word, phrase and term of a statute shall be considered, and none shall be held to be meaningless if it is possible to give it effect.” (State ex rel. Bitter Root Valley Irr. Co. v. District Court, 51 Mont. 305, 152 Pac. 745; sec. 7875, Rev. Codes 1907.) To say that the concluding clause of this section cures the omission on the part of the court to follow its plain provisions would, in our opinion, violate the above rule and would, in effect, amount to a judicial repeal of the section. The phrase “but their failure to do so does not affect the validity of their verdict” was intended to cure any omission on the part of the jury to follow the mandate of the statute, but in no sense relieved the court, when properly requested so to do, of the obligation to follow its command in any case embraced within its provisions.
The rejected testimony should have been admitted, and an instruction in the language of this section of the statute, with the last clause thereof omitted, should have been given to the jury for their guidance. The exclusion of the testimony offered constituted error prejudicial to the substantial rights of the defendant.
It will be unnecessary to consider the remaining specifications of alleged error, because some have already been disposed of by what has been stated in this opinion and the others are deemed wholly without merit.
We recommend that the judgment and order appealed from be reversed and the cause remanded to the district court for a new trial.
Per Curiam : For the reasons given in the foregoing opinion, the judgment and order appealed from are reversed and the cause is remanded to the district court for a new trial.
Reversed and remanded.
|
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] |
MR. JUSTICE GALEN
delivered the opinion of the court.
This is an original application for a writ of supervisory control. In response to an order to show cause, the respondents appeared by answer, but no issue of fact is raised thereby. On the argument, counsel for respondents stated that “the facts alleged by the relator may be admitted as true.”
It appears that one Louis Rosenberg died in Yellowstone county on or about November 9, 1918, and thereafter, on December 16, 1918, letters of administration were regularly issued to Jennie Rosenberg, widow of the deceased, by the district court of Yellowstone county. On January 29, 1920, during the course of the administration, a petition to determine heir-ship was filed by one David Rosenberg, alleging himself to be a brother of the deceased, wherein he asked for an order requiring all persons to appear and exhibit their claims of heir-ship for a determination by the court to whom distribution of the estate should be made. Thereupon the court entered an order directing the clerk to cause notice to be served upon all persons, named or not named, who had or claimed any interest in the estate, to appear before the court on May 1, 1920, and exhibit their respective claims of heirship, ownership or interest in the estate. On the same day the clerk issued notice to Jennie Rosenberg, administratrix, and to her personally, citing her and all other persons not named who had or claimed any interest in the estate, to appear before the court on May 1,
1920, and exhibit their respective claims. This notice was served by the sheriff of Yellowstone county upon Jennie Rosenberg alone, both in her representative capacity and personally. No other service of notice was made, by publication or otherwise. On December 20, 1920, one William E. Collins forwarded to Billings a writing said to be executed on behalf of the relatrix in the matter of the estate, which was filed, reading as follows:
“State of Montana, Surrogate’s Court, Yellowstone County.
“In re Louis Rosenberg, Deceased.
“Please take notice that I appear herein in behalf of Rosie Rosenberg, mother of the deceased, and Saul, David, and Sam Rubin, first cousins of the deceased, and that I hereby request that notice of all proceedings be given to me and copies of all papers served upon me in the matter of this estate at my office as given below.
“William E. Collins,
“165 Broadway, New York, N. Y.
“New York, N. Y. December 3, 1920.
“To the Surrogate of Yellowstone County, Montana.”
On January 3, 1921, pursuant to stipulation between Jennie Rosenberg and David Rubin, a decree was entered establishing Jennie Rosenberg to be the only heir of the deceased, and as such the only person entitled to his estate. On January 7, 1921, Jennie Rosenberg, as administratrix, filed her final account and petition for distribution in the matter of the estate. On January 15, 1921, Arthur J. Cunningham, as one of the attorneys for Rosie Rubin, filed his verified petition in the matter of the estate, wherein it is alleged on information and belief thatJRosie Rubin is the mother of the deceased, and as such entitled to a share in the estate and praying that hearing on the final account and petition for distribution of the administratrix be postponed until such time as Eosie Eubin should be able to present proof in support of her claim. This latter petition appears to have been heard on January 17, 1921, and asked for a reinstatement of her petition filed on order of final distribution of the estate. Upon evidence introduced, the petition for postponement of the hearing was denied, the final account of the administratrix allowed and approved, and final' distribution of the estate ordered. By decree entered on that date the residue of the estate was distributed to Jennie Paul, née Eosenberg, and thereafter, on January 26, 1921, she was discharged as administratrix of the estate. On January 27, 1921, relatrix filed a motion supported by affidavit for an order setting aside and vacating the decree of final distribution of the estate, and on the day following filed a motion for an order setting aside and vacating-the decree of heirship entered therein on January 3, 1921. Both of these motions were by the court denied on January 29, 1921. On March 5, 1921, the relatrix again moved the court to set aside and vacate the decree of distribution, and the order discharging the administratrix, and asked the court to reinstate the administratrix, require her to furnish a new bond as such, and permit the relatrix to present objections to the distribution of the estate to Jennie Paul, née Eosenberg. On April 18, 1921, this motion was by the court granted, Jennie Paul reinstated as administratrix upon the filing of a new bond in the sum of $2,500, and the relatrix granted four months’ time within which to present proof of her right as an heir to a distributive share of the estate. Thereafter, on April 21, 1921, Jennie Paul, née Eosenberg, filed a motion to vacate and set aside the last order mentioned, and on June 18, 1921, the court made an order sustaining this motion, and vacating and setting aside its former order of April 21, 1921. Thereafter, on July 5, 1921, the relatrix filed another motion for an order setting aside the decree, of heirship of June 3, 1921, and another motion for an order vacating and setting aside the order entered June 18, 1921, and asked for a reinstatement of her petition filed on March 5, 1921, for a reopening of the administration of the estate. These motions were by the court denied.
At the outset question- arises as to whether this is a proper case for the exercise of supervisory control. “The writ of supervisory control is in the nature of a summary appeal, and the last refuge whereby relief may be had. It will issue only when there is no other plain, speedy, or adequate remedy at law by appeal or other constitutional writ.” (State ex rel. Peel v. District Court, 59 Mont. 505, 197 Pac. 741.)
Relatrix’s'rights as an heir were not foreclosed by the decree of heirship, as service of notice was not made as required by the statute, i. e., “in the same manner as a summons in a civil action.” (Sec. 7670, Rev. Codes 1907.) And the attempted appearance in the matter of the estate by William E. Collins, as attorney for the relatrix, did not alter the situation, for in legal effect it amounted to no appearance at all. The paper filed had no more force nor effect than if there had been filed with the clerk of the court a copy of the “Billings Gazette,” “a daily newspaper making comment concerning proceedings in the matter of the estate. ” It is not such an instrument as is entitled to recognition or place under our probate procedure, and, having been filed by one alleging himself to be an attorney, but who was not licensed to practice law in this state, either generally or specially, was wholly ineffectual for any purpose. (Sec. 6385, Rev. Codes, as amended by Chapter 13, Laws 1911; and see North Laramie Land Co. v. Hoffman, 26 Wyo. 327, 184 Pac. 226.)
Again, written evidence of the attorney’s authority to appear was not filed, as required on appearance in proceedings to determine heirship (sec. 7671, Rev. Codes), so that the decree of heirship may be wholly disregarded so far as the relatrix is concerned. But what is the effect of the decree of distribution of the estate and the order discharging the administratrix, and is the relatrix entitled to have her rights determined in heir-ship proceedings?
Section 7673 of the Revised Codes, as amended by Chapter 54 of the Laws of 1913-, provides in part: “Upon the final settlement of the accounts of the executor or administrator, or at any subsequent time, upon the application of the executor or administrator, or of any heir, legatee, or .devisee, the court or judge, must proceed to distribute the residue of the estate in the hands of the executor or administrator, if any, among the persons who by law are entitled thereto. * * * Provided, that whenever it appears from the records or files of an estate under course of administration, that any of the persons claiming to be heirs, or claiming a right to share in said estate, are nonresidents of the United States, then a proceeding to determine their rights shall he had under the provisions and as provided for in sections 7670, 7671, and 7672 of the Revised Codes with reference to the determination of heirship.”
Ordinarily proceedings to determine heirship under section 7670, Rev. Codes, are not necessary as a condition precedent to distribution of an estate (sec. 7670, Rev. Codes; In re Oxarart’s Estate, 78 Cal. 109, 20 Pac. 367; In re Davis’ Estate, 27 Mont. 490, 71 Pac. 757) but in this instance a different rule must be applied; it appearing from the files and records of the estate that a person claiming to be an heir or claiming a right in the estate is a nonresident of the United States. When such facts are disclosed from the files and records, it is mandatory upon the court under the amendatory provisions of section 7673 of the Revised Codes to determine the right of such person “under the provisions and as provided for in sections 7670, 7671 and 7672 of the Revised Codes with reference to the determination of heirship.” The relatrix, on making appearance in advance of the decree of distribution, was not required to furnish and file written evidence of the authority of her attorneys, as in proceedings. for the determination of heirship. She appeared by counsel, as she was rightfully entitled to do.
Arthur J. Cunningham, one of her attorneys, on January 15, 1921, made and filed a verified petition in the matter of the estate, asking a postponement of final distribution, and alleged on information and belief that Rosie Rubin is the mother of the deceased, Louis Rosenberg, and as such entitled to a share in his estate, and that she resides in Stanislau, Galicia, Poland. This petition was heard on January 17, 1921, and evidence taken in support thereof in advance of the decree of distribution, which was made and entered on that date. Later, on January 27, 1921, she appeared through' her attorneys by motion to set aside the decree of distribution, and again on January 28, 1921, by motion to set aside and vacate the decree of heirship entered on January 3, 1921. These motions being denied, she again appeared through her attorneys on March 5, 1921, and filed another motion to set aside the decree of distribution, which was by the court sustained on April 18, 1921. The decree of distribution was vacated, and Jennie Paul, née Rosenberg, reinstated as administratrix of the estate upon the filing of a new bond in the sum of $2,500. Thus the court evinced disposition to rectify its error committed by the entry of the decreee of distribution on January 17, 1921; it theretofore appearing from the files and records that Rosie Rubin claimed a share of the estate as the mother of the deceased, and that she was a nonresident of the United States. In view of such facts, the order of April 18, 1921, was entirely proper, and the estate should have been kept open and unsettled for a reasonable time or until after a determination of heirship in accordance with the provisions of the statute. Thereafter, however, on June 18, 1921, the court sustained a motion to set aside its order dated April 18, 1921, and restored to former status, with full force and effect, the decree of distribution made and entered on January 17, 1921. On July 5, 1921, the relatrix again interposed and filed two additional motions, one fo set aside the decree of heirship entered January 3, 1921, and the other to set aside the order of June 18, 1921, both of which were by the court denied.
The orders made overruling the motions to vacate the de cree of distribution are not appealable. (In re Kelly’s Estate, 31 Mont. 356, 78 Pac. 579, 79 Pac. 244.)
In determining the question of the right to appeal from an order refusing to vacate a decree of distribution and order settling an administrator’s account in the case last cited, this court said: “It has been uniformly held that an appeal from an order of the character of those before us cannot be sustained unless the orders are specifically enumerated in the statute.”
The statute (subdivision 3 of section 7098, Revised Codes), in providing a right of appeal in matters of probate, allows the same in the following instances: “From a judgment or order granting or refusing to grant, revoking or refusing to revoke, letters testamentary, or of administration, or of guardianship; or admitting or refusing to admit a will to probate, or against or in favor of the validity of a will, or revoking the probate thereof; * * * or refusing, allowing, directing, the distribution * * * of an estate, or any part thereof. * * * ” In construing this statute, this court has said: “The foregoing enumerates all the cases in which an appeal may be taken to this court from the district court in probate proceedings, and an order refusing to vacate a decree of distribution and settlement of final account is not one of them.” (In re Kelly’s Estate, supra.) It has been further held that “An appeal is authorized by statute only, and, unless the judgment or order which it is sought to have reviewed in this mode falls fairly within the enumeration of appealable orders or judgments made by the statute, the appeal does not lie.” (In re Tuohy’s Estate, 23 Mont. 305, 58 Pac. 722.)
It is clear, therefore, that the relatrix had no remedy by appeal from the order of June 18, 1921, reinstating the decree of distribution, as it is not one of the enumerated appealable orders mentioned in the statute. In making the order setting aside the decree of distribution and reinstating Jennie Paul, me Rosenberg, as administratrix on April 18, 1921, the court acted properly and seasonably in rectification of its error committed on January 17, 1921, in refusing to continue the hearing on final distribution until after decree of heirship; and, since the rights of the relatrix are protected by statute and she has' no adequate remedy by appeal, this appears to be a proper case for the interposition of supervisory control.
As it appeared from the files and records in the matter of the estate before the decree of distribution that the relatrix claimed to be an heir and entitled to a distributive share of the estate, and that she was a nonresident of the United States, the court was in error in not directing proceedings to determine heirship in advance of the distribution of the estate, and also in setting aside its order of April 21, 1921, by order of June 18, 1921, by which latter order the decree of distribution as of date January 17, 1921, was reinstated.
The district court and the judges thereof are hereby ordered and directed to annul and set aside the order of June 18, 1921, and to reinstate the order of April 18, 1921, setting aside the decree of distribution and reopening the estate, the relatrix to be given reasonable time and opportunity to establish her claim in proceedings for the determination of heir-ship.
Writ issued.
Mr. Chief Justice Brantly and Associate Justices Cooper and Holloway concur.
Mr. Justice Reynolds, deeming himself disqualified, takes no part in the foregoing decision.
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] |
MR. CHIEF COMMISSIONER POORMAN
prepared the opinion for the court.
Appeals by defendant from a judgment rendered on a verdict for plaintiff and from an order overruling a motion for a new trial. The action is for damages resulting from an alleged conversion by defendant of certain wheat, of which plaintiff claimed to be the owner.
It is alleged in the complaint that the defendant was at the time the sheriff of Gallatin county, Montana, and on September 27, 1918, plaintiff was the owner and entitled to the immediate possession of an undivided two-thirds interest in a crop 'of grain grown on certain described lands in 1918, “the same consisting of 200 acres of Turkey red wheat and about 100 acres of Marquis wheat,”- amounting, “when threshed,” to 3,786 bushels, two-thirds thereof, or 2,524 bushels, belonging to plaintiff, “of the value of $2 per bushel, or in all the sum of $5,048”; that on the twenty-seventh day of September, 1918, the defendant wrongfully took possession of the plaintiff’s share of said crop and converted the same to his own use, “to the damage of the plaintiff in the sum of $5,048, no part of which has been paid.” Judgment is then demanded for the sum of $5,048, with interest from September 27, 1918. A general demurrer was filed to the complaint, which was overruled. Defendant, answering, admits that he was the sheriff at the time of the alleged conversion, and denies all other allegations of the complaint. As an affirmative defense, he admits taking the wheat in question, but alleges that he took the same under and by virtue of an attachment issued out of the district court in the case, wherein the Home State Bank of Manhattan was plaintiff and L. C. Williams was defendant. For a second affirmative defense the defendant alleges that L. C. Williams had theretofore made and delivered to F. K. Armstrong his promissory note for $1,200, bearing interest at eight per cent per annum and due on the first day of October, 1918, and to secure the payment thereof had executed and delivered to Armstrong a chattel mortgage on the crop; that on the twenty-seventh day of February, 1918, the-note and mortgage were assigned to the Home State Bank, and, Williams having made default in the payment thereof, the defendant was instructed to foreclose the same in the manner provided by law and in the mortgage; that in the foreclosure of the mortgage the defendant on the thirteenth day of October, 1918, sold 1,161 bushels of the wheat belonging to L. C. Williams for the sum of $2,089.80, and ap plied the same in payment of the note and mortgage and costs incurred in caring for and threshing the crop. Further answering the complaint, the defendant alleges that the plaintiff was not at the time of the commencement of this action, nor ever had been, the owner of any property seized by the defendant, and that any attempted or pretended transfer made by L. C. Williams was with intent to hinder, delay and defraud the creditors of L. C. Williams, and particularly the Home State Bank.
The plaintiff in his reply admits and denies certain allegations of the answer, specially denying that L. C. Williams was at the time the owner of said crop of wheat or of any interest therein; admits the execution of the Armstrong mortgage; alleges notice given by plaintiff to the defendant of plaintiff’s ownership, and that he was willing that the grain be sold at the market price to satisfy and discharge the chattel mortgage indebtedness, but without the addition of costs, and that it was the unlawful attachment and holding of the grain by the defendant that prevented plaintiff from the payment of the mortgage at the time the same became due; alleges that the plaintiff purchased the crop of grain from L. 0. Williams on or about the fourteenth day of March, 1918; that prior to that date the Home State Bank had commenced an action against L. C. Williams for recovery upon the alleged indebtedness stated in defendant’s answer; that at the trial of the cause a verdict of a jury was rendered in favor of the defendant L. C. Williams; that the defendant neglected to have judgment entered within the time required by law; that the plaintiff in the action, the Home State Bank, on the tenth day of August, 1918, dismissed it; that at the time the transfer of the crop of grain was made by L. C. Williams to the plaintiff the verdict in that cause had been rendered in favor of L. C. Williams, and had not been set aside or the cause dismissed; that the plaintiff believed there was no obligation on the part of L. C. Williams to pay the claim made by the Home State Bank' against him; and that the transfer to him was made without any intent to hinder, delay or defraud the Home State Bank, or any other creditor of L. C. Williams.
At the trial of the instant action the jury found for the plaintiff in the sum of $3,648.50, and judgment was entered thereon.
I. Many of appellant’s objections are directed against the complaint on the ground that the value of the property at the time of the alleged conversion is not stated. It is claimed that the phrase “when threshed” relates to some date subsequent to the seizure. The sufficiency of the complaint as to the demurrer must be determined without reference to subsequent pleadings or to the facts appearing in evidence. The land on which the crop was grown is described, the number of acres and kind of wheat are stated, and at the close of the paragraph appears the allegation “of the value of $2 per bushel, or in all the sum of $5,048.” Intermediate, the phrase “of Marquis wheat” and the phrase “of value” is a further description of the wheat, that it was the crop of 1918, and “when threshed” consisted of 3,786 bushels, two-thirds of which belonged to plaintiff. It is further alleged that plaintiff was damaged in the sum of $5,048. There is not any statement when the threshing was done nor by whom; whether on the day of the seizure or at some subsequent date, it was evidently done on or prior to the filing of the complaint on October 23, 1918, for it was only by threshing that the exact number of bushels contained in the crop could be ascertained, and, if done subsequently to the seizure, presumably the threshing was done by the defendant, who, plaintiff claims, wrongfully converted the crop and exercised jurisdiction over it. The phrase “when threshed” has more direct connection with the quantity than it has with the value, and the entire clause seems to be parenthetical, containing additional descriptions of the crop, and not necessary to the sufficiency of the complaint, as against a general demurrer.
Actions for damages having their origin in alleged conversions of personal property are governed by a statute peculiar to that class of eases. The provisions of this statute are binding on the court, and the pleadings and proceedings must be construed with reference thereto. The rules governing the common-law actions of trover have been changed in one particular at least—that is, with reference to the measurement of damages.
Section 6071 of our Revised Codes provides: “The detriment caused by the wrongful conversion of personal property is presumed to be: “1. The value of the property at the time of its conversion, with the interest from that time; or, where the action has been prosecuted-with reasonable diligence, the highest market value of the property at any time between the conversion and the verdict, without interest, at the option of the injured party; and, 2. A fair compensation for the time and money properly expended in pursuit of the property.”
The right of the plaintiff to elect which rule of damages he will demand is by the terms of the statute, if he has prosecuted his action with reasonable diligence, to be exercised by him subsequently to the filing of the complaint, nor does he, by laying his damages at the value of the property when converted, deprive himself of the right to insist upon the alternative measure of damages provided by the Code. “He is not required to plead it. It is sufficient if in any appropriate way, even by oral declaration in open court, he announces his determination to demand that highest market value.” (Potts v. Paxton, 171 Cal. 493, 497, 153 Pac. 957, 959; State for Use Broadwater Farms Co. v. Broadwater Elevator Co., 61 Mont. 215, 201 Pac. 687.)
It is also apparent from the statute that the plaintiff, by waiving interest, may elect any date on or between the date of the conversion and the date of the trial on which to lay his damages. But he must by his pleadings or otherwise elect which of the two options he will claim. He cannot rely on-both. (Thornton-Thomas Co. v. Bretherton, 32 Mont. 80, 99, 80 Pac. 10.) To require a plaintiff to state, independently of his claimed damages, the value of the property at the date of the conversion, is to require him to allege that which is not binding upon him and which he is not required to prove. By the positive provisions of the statute, the detriment is presumed to be the value of the property at the time of conversion, with interest; hence, when the pleader states the amount of his damage, he has hy the presumptions stated in the statute given his estimate of the value at the date of conversion. Any further statement would be a duplicate allegation. The action is for damages and the value of the property is evidence and goes to the quantum of damages.
Where the plaintiff has only a special interest in the property as a mortgagee, the damages claimed would not necessarily be the value of the entire property converted, but it would be the plaintiff’s estimate of the value of his interest therein. And, if any special damages are claimed, they must be specially pleaded, with the amount thereof. (Ferrat v. Adamson, 53 Mont. 172, 163 Pac. 112.)
The supreme court of Minnesota, in considering a similar proposition, said: “It is also contended that the complaint is defective because it contains no allegation of the value of the property. The action is one for damages for wrongful taking and conversion. In such an action the essential allegations are: (1) The description of the property converted; (2) the plaintiff’s right to the same; (3) the wrongful conversion; and (4) the damage sustained by plaintiffs. The value of the property is usually the measure of damages, and proof of value is the usual means of establishing the amount of damages. But while it is usual, as well as better form, to allege the value in actions of this kind, yet this is not essential, if the pleading, as in this case, contains a proper allegation as to the amount of plaintiff’s damages. An allegation of value only goes to the quantum of damages.” (Brunswick Balke-Collender Co. v. Brackett, 37 Minn. 58, 33 N. W. 214.)
In a later case the same court.said: “It is urged that the complaint fails to state a cause of action, because there is no direct allegation of the value of the stock or of the respective tracts of land. The objection is without merit, for in an action of conversion of personal property it is not necessary to allege in the complaint the value of the property converted, if it contains an allegation of damages. In such a case the value of the property is evidence of the damages sustained and need not be pleaded.” (Humphreys v. Minnesota Clay Co., 94 Minn. 469, 103 N. W. 338.)
This court has many times affirmed the universal doctrine that in such actions the value of the property converted must be alleged, but it has not heretofore specifically held that the allegation of damages is sufficient allegation of the value of the property alleged to have been converted, but such seems to be the clear meaning of the statute, and a complaint containing such allegations is sufficient as to its statement of value.
II. Many of appellant’s specifications of error are based upon his assertion that acts and declarations as to ownership of property, in his interest made by the vendee in possession thereof, and prior to issue raised, are inadmissible in evidence upon an issue as to his ownership. This question has been often considered by courts of last resort. An early decision of the supreme court of Wisconsin clearly states the rule and the reason therefor: “It is sometimes briefly stated, that possession is prima facie evidence of title. But, when so stated, it is always implied that the possession is under a claim of title. It is that fact which gives to it its character and legal effect. * * * It is thus seen that, wherever title is sought to be proved by possession, the claim of title accompanying that possession is not only proper, but material and necessary to be known. And inasmuch as every person whose title is in issue is permitted to make out a prima facie case by proving possession if he chooses, he must also be allowed to give character and effect to that possession by proving what title he claimed in connection with it. The immediate point of inquiry is what title was claimed, and not what really existed; and, that being so, inasmuch as what a man claims consists of what he asserts and declares in respect to his rights, his declarations are original evidence of the fact. And to allow him to prove them for that purpose, is no more liable to the objection of allowing him to manufacture evidence for himself by his own statements than it would be, where it became material to prove a particular demand or notice, to allow him to prove his own declarations containing such notice or demand. The very nature and object of the inquiry establish the limit to the effect of his declarations as evidence. They are evidence only to show to what extent he claimed title and so far as they go beyond that, and assert any facts in regard to the title, they are not evidence of any such facts.” “It may be that on proof of possession merely, the law, in the absence of any further proof, would presume that the party claimed a perfect title; * * * [but] if there is any such legal presumption, it would seem to furnish a sufficient answer to any apprehended danger from allowing a. party to prove [expressly] that he claimed ■ title; for such proof would show nothing more than the law would presume without it. * * * [The defendant was thus not entitled to the instruction that the plaintiff’s] assertions of ownership were ‘no evidence of title.’ It is true they were not direct evidence. ITis statements that he had bought the cattle were not evidence of that fact. But it was in its nature explanatory of his possession, and of the title which he claimed. It was equivalent to a direct assertion of ownership. And such assertion the law allows to be given in evidence, accompanied with evidence of possession. And to both [together] it gives the effect of prima facie evidence of title. I think, therefore, the court was not bound to say that the plaintiff’s assertions of ownership were no evidence of title. They were evidence to prove the fact of such assertion, which fact, in connection with another, warranted an inference of title. They had, therefore, an ultimate bearing upon that question, and were proper to be considered by the jury to prove the fact of a claim of title.” (Roebke v. Andrews, 26 Wis. 311, 317, as given in 3 Wigmore on Evidence, sec. 1779.)
Possession of personal property is prima facie evidence of ownership. (Sweeney v. Darcy, 21 Mont. 188, 191, 53 Pac. 540.)
In considering a similar question, whether the vendor had remained in possession of goods, this court held admissible his acts and declarations accompanying and characterizing his possession as a part of the res gestae, and further said: “Whatever may be the ground npon which such evidence is declared to be admissible, it is now a well-nigh universal rule that it is admissible as a part of the res gestae to characterize the possession.” (Chan v. Slater, 33 Mont. 155, 163, 82 Pac. 657, 659; 3 Wigmore on Evidence, 1779; 2 Wigmore on Evidence, 1086; Jones on Evidence, 2d ed., see. 351, and 1st ed., sec. 354; Lowman v. Sheets, 124 Ind. 416, 7 L. R. A. 784, 24 N. E. 351; 10 R. C. L., sec. 166, p. 984; Abney v. Kingsand, 10 Ala. 355, 44 Am. Dec. 491; York County Bank v. Carter, 38 Pa. 446, 80 Am. Dec. 494; Marcy v. Stone, 8 Cush. (Mass.) 4, 54 Am. Dec. 736.)
It appears that the plaintiff was in possession of the property at and long prior to the time of the alleged formal transfer of the title, as evidenced by the written instrument and appellant claims that the transfer was fraudulent under the provisions of section 6127, Revised Codes, because there was not any transfer of possession. Under these circumstances the necessity of admitting evidence of the acts, conduct and declarations characterizing the possession becomes doubly apparent.
III. The plaintiff’s witness, L. C. Williams, had testified that during the sumifier and fall of 1917 he had frequent discussions with the plaintiff relative to the transfer of the property to him, but that the formal transfer was not made until about the thirteenth day of March, 1918, for the reason that the plaintiff did not attain his majority until February 28, 1918. The transfer then made was pursuant to the former negotiations between the parties. The defendant asked the witness Charles Yandenhook if the Bozeman Milling Company had extended credit to L. C. Williams upon the strength of that crop, meaning the crop of 1918. Upon objection being made and sustained, the question was then explained to the effect that the defendant desired to show that L. C. Williams was leading Mr. Vandenhook to understand that during 1918 he (L. C. Williams) was the owner of this crop. This evidence would have been proper as impeaching evidence relative to statements made by L. C. Williams concerning the negotiations leading up to the actual transfer of title to his son had Williams made any statements conflicting with the contentions of the defendant; but L. C. Williams in his testimony admitted that he was indebted to the Bozeman Milling Company; that he had not told it of this alleged transfer to his son; that it was his intention at all times that it should be paid from this crop; that it was a part of the agreement between him and his son that this should be done; and that he would then reimburse the plaintiff for the amount so expended. There was therefore nothing to impeach, and no substantial error was committed in excluding the evidence. .
IY. The defendant offered in evidence a record of the district court for the purpose of impeaching the credibility of the plaintiff’s testimony. The court refused to admit the record because it disclosed a conviction for a misdemeanor and was “not competent to impeach any person for truth and honesty.” This ruling is sustained by the recent decision of State v. Stein, 60 Mont. 441, 199 Pac. 278. The defendant’s counsel maintained that the record shows it was a conviction for assault in the second degree, but the record offered in evidence is not before this court, and cannot be further considered. (Roberts v. Sinnott, 54 Mont. 114, 169 Pac. 49.) There is-,not any evidence in this case warranting the granting of any attorney fees to the defendant in foreclosure of the chattel mortgage referred to.
Y. The defendant also objects to the action of the court in giving certain instructions and in refusing to give others proposed by the defendant. The examination of the record, however, discloses that there was not any reversible error committed by the court, either in the instructions given or in refusing to give those proposed by the defendant.
VI. Appellant’s objection to the insufficiency of the evidence to support the verdict or judgment, to the action of the court in denying his motion for nonsuit, and in overruling defendant’s motion for a new trial cannot be sustained for the reason that the evidence 'is in conflict as to the issuable facts, and the verdict of the jury is binding upon the court.
VII. The defendant did not act upon the offer of plaintiff to sell at the market price enough of the wheat to pay the chattel mortgage claim, but sold 1,161 bushels at forced sale under the mortgage foreclosure; hence he cannot now claim that plaintiff is bound by the price received at that sale.
The total cost of foreclosure as reported by the sheriff, is $830.74. The court allowed for posting notice, service, mileage, commission, filing fee, and certified copy, amounting in all to $45.94, and disallowed all other charges, including $388.05 threshing bill. The plaintiff gave his personal check for this amount for “threshing, gas and cook, team and wagon.” The check was drawn on and paid by the Home State Bank. It appears that this was a necessary and fixed charge which could not have been avoided or diminished had plaintiff’s possession not been molested. Under the particular facts in this ease, we think the defendant should have been credited with this amount. The other charges were properly disallowed.
For the reasons stated, we recommend that the order refusing a new trial be affirmed; that the cause be remanded to the district court, with directions to reduce the amount of the judgment by $388.05, with interest thereon at eight per cent from September 27, 1918, and as thus modified that it be affirmed.
Per Curiam: For the reasons given in the foregoing opinion, the order refusing a new trial.is affirmed, and the cause remanded to the district court, with directions to reduce the amount of the judgment by $388.05, witb interest tbereon at eight per cent from ■ September 27, 1918, and as thus modified it will stand affirmed. Each party will pay bis costs in this court.
Rehearing denied January 11, 1922.
Modified and affirmed.
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] |
MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
The complaint in this ease contains two causes of action. The first seeks recovery of damages for the removal by defendants of certain railroad tracks from mining property belonging to the plaintiffs. The second is for damages for the carrying away by the defendants and converting to their own use the material—rails, fish-plates, etc.—which constituted the tracks. The defendants interposed a separate general demurrer to each of the causes of action, which the court sustained. The plaintiffs refusing to plead further, judgment was entered in favor of the defendants. The appeal is from the judgment.
The complaint is very prolix. The facts constituting the first cause of action may be epitomized as follows: The plaintiff Helena & Livingston Smelting & Reduction Company, referred to in this statement as the Smelting Company, is a Montana mining corporation. The plaintiff Montana Silver Lead Company, referred to as the Montana Company, is also a Montana corporation. The plaintiff Boston & Alta Copper Company, referred to as the Copper Company, is a West Virginia corporation. By virtue of its compliance with the laws of Montana it is entitled to do business in this state. The defendant Northern Pacific Railway Company is a Wisconsin corporation, the successor of the Northern Pacific Railroad Company, owning and operating an interstate railway through the state of Montana. It will be mentioned as the railway company. The defendant Hugh McConnell was, at the times when the wrongs for which recovery is sought herein are alleged to have been committed, a contractor of the railway company, and through his agency the wrongs were done. On December 18, 1909, the Smelting Company was the owner and in possession of several contiguous mining claims, constituting one- consolidated claim, and a mill site, described in the complaint, together with the buildings necessary to the operation of the claim,, including a concentrator and mill used for the reduction of the ores extracted from the claim and the preparation of them for market. On that date the Smelting Company conveyed the property to A. E. Spriggs, who immediately executed and delivered to the Smelting Company a mortgage upon it' to secure the payment of the sum of $150,000. On the same date A. E. Spriggs conveyed the property to the Copper Company, which thereupon became the owner of it, subject to the mortgage, and continued to be the owner of it until it conveyed the same to the Montana Company. This conveyance was made on September 15, 1916. The Montana Company thereupon became the owner of it, subject to the mortgage held by the Smelting Company. The plaintiffs and their predecessors have at different times extensively operated the mines, and the plaintiff Mon tana Company is now engaged in conducting- operations and expending large sums of money in this behalf. Large quantities of valuable metals have been extracted from the mines, and large bodies of valuable ores are still contained therein.
For more than thirty years last past, and until removed by defendants, certain railroad tracks were situated upon and affixed to the mines and mining property,"the same being laid upon and securely fastened to cross-ties, imbedded in the soil and graded into the surface of the mining property at great expense. A portion of the tracks consisted of a mile and a half which originally constituted a part of a branch line extending from- the town of Jefferson, in Jefferson county, through the town of Corbin, and traversing the mining property above described, to the town of Wickes, the town of Corbin lying approximately midway between the towns of Jefferson and Wickes. This branch line was an offshoot from a line owned and operated by the defendant railway company and its predecessor, then extending from East Helena, Montana, to Boulder, Montana, and connected with the main line of the railway company and its predecessor at the town of East Helena. Some thirty years ago, while the line from East Helena to Boulder and the branch from Jefferson to Wickes were in existence, there was also an offshoot or spur extending from the Wickes branch at a 'point about a mile south of Corbin into and upon the mining property, called the Alta spur. This spur was divided into two branches, one called the high line and the other the low line, the former extending above the plaintiffs’ concentrator, which was situated on a side hill, and the other extending below the concentrator. Each of these lines to the extent of about 2,000 feet was situated wholly upon the plaintiffs’ mining property. The spur and the high and low lines were constructed solely for the use, benefit, and development of the mining property, and were and are essential to the proper operation and development of it, and the operation of the mill and concentrator, being necessary for the transportation of materials and supplies to the mines and the removal of the ores, concentrates and other products therefrom. The defendant railway company and its predecessor furnished the rails, fish-plates, etc., for the construction of the spur and high and low lines, and all of them, especially the high and low lines, were constructed and have been maintained and kept in repair by plaintiffs añd their predecessors at their own expense, the rails and other steel having been furnished for the construction of these tracks by the defendant company as an inducement to the plaintiffs to operate the mine, concentrator and mill, and to ship ores, concentrates and other products over the lines of the company and its predecessor in interest, they receiving all shipments to and from the mine.
At the times mentioned the only railroad connected with the mines, and available for the direct shipment to and from the same, was the railway of the defendant, and the branch line, spur, etc., above referred to. While they were in existence all the freight to and from the mines was handled by the defendant railway company and its predecessor in interest. The spur and the high and low lines were situated in the only feasible position to furnish proper ingress and egress to and from the property, and for connection with any railroad now or at any time heretofore in existence and accessible from the mining property. For this reason they were, and now would be, most useful in such position for the operation of the property. Until they were removed they were appurtenant to and affixed to the mining property. Several years ago the line from East Helena to Boulder and the Jefferson-Wickes branch, extending from the town of Jefferson to a point between Jefferson and Corbin about one mile south from Corbin, and from the concentrator, were removed by the defendant company, and a connecting track installed by the defendant company between the Great Northern Railway, which passes along the side hill several hundred feet above the concentrator, and a point on the Wickes branch between Corbin and Wickes about a mile and a half from Corbin, and the portion of the said branch lying upon the Alta mines was so arranged that the same could be, and was, used by the plaintiffs, or some of them, in connection with the operation of their mill, for the removal and reduction of tailings from the concentrator. After the removal of a portion of the Wickes branch transportation to and from the Alta mines was had by means of this connection with the Great Northern Railway, and the portions of the branch line situated upon the Alta mine and the Alta spur, with the high and low lines, were used as theretofore in the operation of the mines. In the meantime large sums of money were expended upon these tracks by plaintiffs, or some of them, for the repair thereof and the adjustment of the same to the uses and purposes desired by them, all being situated upon the property of plaintiffs. There are now more than 25,000 tons of tailings situated upon the property of plaintiffs, containing quantities of valuable metal. The Alta spur and the high and low lines, and also the portion of the branch line so situated upon and connected with the mines, and used therewith, were at all times fixtures of the said mines, and belonged to the plaintiffs and their predecessors in interest as a part thereof.
No agreement was ever made between the plaintiffs, or their predecessors, and the defendant railway company or its predecessor whereby this defendant, or its predecessor, retained or was given any right to remove any portion of the tracks, but the same were constructed, maintained and used solely for the benefit of the mines as aforesaid.
The Wickes branch was constructed at the expense of the predecessors in interest of the plaintiffs, but the cost of constructing the same was thereafter returned to the plaintiffs and their predecessors in the way of freight rebates, but no agreement was ever made between the predecessors in interest of the plaintiffs with the defendant railway company or its predecessor with reference to the ownership of the said branch line when completed, and no agreement made for the removal thereof by the defendant company or its predecessor. In re moving these tracks it was necessary to destroy the same as tracks, to tear the rails from the ties, and destroy a considerable portion of the value of the materials by so doing.
It is alleged that, until the removal of the tracks, plaintiffs and their predecessors in interest were in the open, notorious, continuous and uninterrupted possession of the mines and all properties situated upon or appurtenant thereto, including the tracks mentioned, and that neither plaintiffs nor any of their predecessors in interest knew that the defendant railroad company claimed the right to remove the tracks or any of them, or claimed to have any interest in them; that the concentrator is necessary to the proper and profitable operation of the mines for the treatment of ores extracted therefrom; that the same is situated upon the only site upon which a con•eentrator can be operated and used in connection with the development and operation of the mines; that during the month of December, 1913, and the month of January, 1914, the defendants, without the consent of the plaintiffs or any of them, and without notice to or knowledge of the plaintiffs, wrongfully and without authority of law entered upon the mining property and tore up and removed the rails therefrom, and tore up and removed the Wickes branch from the mine to the point of its connection with the Great Northern Railway; that in committing these acts the defendant Hugh McConnell was acting for, and on behalf of, -and jointly and in concert with, the defendant railway company under a contract entered into 'by him with this defendant for the removal of the tracks; that by the removal and destruction of the tracks plaintiffs have been damaged in the sum of $25,000, no part of which has been paid.
The allegations constituting the second cause of action are for all practical purposes identical with those contained in the first, except that it alleges the wrongful removal and conversion by the defendants of the steel rails, etc., of which the track was in part composed; that defendants acted therein jointly; and that the rails, etc., were at the time of their removal of the reasonable value of $10,000.
Upon an examination of the complaint, the inquiry at once suggests itself whether there is not a misjoinder of parties plaintiff. The Smelting Company parted with its title to the mining property on December 18, 1909, whereas the injuries to it for which a recovery is sought occurred in December, 1913, and January, 1914. At that time this plaintiff had no interest in the property, other than as its security tinder the mortgage for the debt due it. This situation pre sents the inquiry: May a mortgagee maintain an action for an injury to the mortgaged property unless he can allege and prove that his security has been impaired by the injury? The complaint contains no allegation in this behalf. As to the Montana Company, the question is suggested whether, it having become the owner of the property in 1916, long after the injuries are alleged to have been done, it may maintain an action because of them without allegation and proof that by its deed from the Copper Company, or otherwise, it became vested with the rights of action which had theretofore arisen in favor of the Copper Company in 1913 and 1914. A further inquiry is also suggested, namely, whether the mortgagee, the Smelting Company, may join with the mortgagor and its grantee, or either of them, in an action for damages for an injury to the mortgaged property. We do not venture to decide any of these questions, because the general demurrers do not raise them, and counsel for neither side have referred to them. We therefore pass them without consideration.
The allegations of the complaint are not arranged in a logical and consecutive order, but, in our opinion, are sufficient in substance to require the defendants to answer. They may be briefly epitomized as follows: That the property of plaintiffs consists of mines; that the Alta spur, including the high and low lines, was constructed by the predecessors in interest of the plaintiffs out of material furnished by the predecessor of the defendant company, being laid upon and securely fastened to cross-ties imbedded in tbe soil by being graded into the surface at great expense; that it was constructed and actually used and maintained at plaintiffs’ expense for working and developing the mines; that the portion of the track upon plaintiffs’ property constituting a part of the "Wickes branch was constructed at the expense of the plaintiffs and their predecessors, was adapted to the use of the plaintiffs in their mining operations, was -maintained at their expense, and was used in connection with the handling of the tailings deposited upon the property in the operation of the concentrator, the plaintiffs being reimbursed by the defendant or its predecessor by way of rebates in freight charges; that the tracks were constructed solely for the use and benefit and development of the Alta mines, and were essential to their proper operation and development ; that no agreement was ever made between the predecessors in interest of the plaintiffs and the defendant railway company or its -predecessor with reference to the ownership of these tracks, and no agreement was ever made for the removal thereof by the defendant company or its predecessor; that the plaintiffs acquired the property from their predecessors without notice of any claim by the defendant railway company of any right to remove the tracks.
To uphold the judgment, counsel for the defendants contend that, the tracks having been placed upon the property and operated by the Northern Pacific Railroad Company, the predecessor of the defendant railway company, by the consent of the plaintiffs, the predecessor of the defendant company and the defendant were licensees; that the license, having been created by parol, was revocable at any time; and that, upon the revocation of the license, the defendant railway company had the right to remove the rails, etc. In support of this contention they cite the case of Great Falls Water Works Co. v. Great Northern Ry. Co., 21 Mont. 487, 54 Pac. 963, and Archer v. Chicago etc. Ry. Co., 41 Mont. 56, 137 Am. St. Rep. 692, 108 Pac. 571, They also contend that whether these cases apply or not, railroad rails, etc., used by a railway company in constructing a track upon the property of another. lying along its line of road are generally considered trade fixtures, and do not become a part of the real estate upon which they are laid.
It may be remarked in passing that the plaintiffs do not occupy the position of bona fide purchasers. Such a pur chaser is: “One who, at the time of his purchase, advances a new consideration, surrenders some security or does some other act which leaves him in a worse position if his purchase should be set aside and purchases in honest belief that his vendor had a right to sell, without notice, actual or constructive, of any adverse rights, interests or equities of others in and to the property sold.” The foregoing definition quoted from the text of 5 Cye. 719, was approved by this court in Foster v. Winstanley, 39 Mont. 314, 102 Pac. 574. The allegations of the complaint do not bring the plaintiffs within its terms.
We do not think that either the defendant railway com- pany or its predecessor, as a matter of law, comes technically within the category of a mere licensee. The Alta spur, including the high and low lines, was constructed by the plaintiffs, the steel and fastenings being furnished by the predecessor of the defendant railway company, but, until removed, it was maintained by the plaintiffs at their own expense. What agreement was then made or understanding had as to the title to the rails, etc., upon the cessation of mining operations or at any other time, does not appear. So far as the facts alleged disclose anything on the subject, it cannot be determined whether the Northern Pacific Railroad Company made a gift of the rails, etc., to the plaintiffs or ever intended to reclaim them. The facts connected with the construction of the Wickes branch are different, but there was no understanding had or agreement made as to what should become of the rails and fastenings when mining operations should cease. However this may be, it does not appear that mining opera tions have ceased, nor that, if the Northern Pacific Railroad Company and the defendant company were technically licensees, the license was ever revoked directly upon notice by the plaintiffs, or indirectly by plaintiffs’ cessation of mining operations thereby relinquishing the arrangement they had enjoyed up to that time by the use of the tracks. An examination of the cases cited will demonstrate that they do not apply; for in each of them was considered the right of one who was a parol licensee upon what amounted to a formal revocation of his license.
Section 4428 of the Revised Codes of 1907 provides: “Railway tracks * * * used in working or developing a mine, are to be deemed to be affixed to the mine.”
Section 4572 declares: “When a person affixes his property to the land of another, without an agreement permitting him to remove it, the thing affixed, except as provided in section 4578, belongs to the owner of the land unless he chooses to require the owner to remove it.”
The exception mentioned in section 4572 is the following: “A tenant may remove from the demised premises any time during the continuance of his term, anything affixed thereto for purposes of trade, manufacture, ornament, or domestic use, if the removal can be effected without injury to the premises, unless the thing has by the manner in .which it is affixed, become an integral part of the premises.” Taking all these provisions, together" with sections 4425 and 4427, defining real and personal property, and specifying how the latter may be affixed to the former, it is apparent that, whether the tracks in question became affixed to the plaintiffs’ mining property within the meaning of section 4428 or not, there can be no question that the defendant company and its predecessor were not at any time tenants of the plaintiffs; for it does not appear 'that a contract of hiring existed between them. The facts alleged preclude the notion that they bore toward each other the relation of landlord and tenant. Even so, it does not follow as a matter of law, that the tracks were trade fixtures, and subject to removal by the defendants as such. Whether they were or not depends upon the relation existing between the parties, at the time the tracks were laid and their intention with respect to them.
In Mattison v. Connerly, 46 Mont. 103, 126 Pac. 851, this court in considering this subject, said: “The intention with which the fixture is attached or affixed to realty is always a pertinent inquiry in determining the status of what seems to be realty or personalty, as the case may be.”
In Montana Electric Co. v. Northern Valley Min. Co., 51 Mont. 266, 153 Pac. 1017, after referring to sections 4424, 4425 and 4427, and also quoting section 4428 of the Revised Codes, we also said: “The purpose of the Code was not to introduce new rules or definitions into the law, but rather to reduce to concise form the rules of law as they were then recognized and applied by the courts. Reference to New York and California decisions aids in determining the scope which the provisions of our Code above, were intended to have, and from those decisions we deduce the following: (1) Whether what would otherwise be personal property has become a fixture by reason of its attachment to the soil, is primarily a question of intention on the part of the person attaching it; (2) the attachment in the manner indicated in our Code sections above, raises a presumption that the one who made the attachment intended the thing affixed to become a part of the realty; this presumption, however, is a disputable one; (3) as a general rule, the manner in which the attachment is made, and the intention of the one making the attachment, determine whether the thing is realty or personalty.”
It will be observed that these cases were decided upon the facts introduced in evidence in support of issues made by the pleadings as to what the respective rights of the parties were. We deem them conclusive of the first contention made by counsel; for, though the steel, etc., out of which the Alta spur was constructed belonged to the predecessor of the defendant railway company, and that out of which the Wickes branch was constructed was paid for by the predecessor of the defendant railway company, it is clear that the installment of both was made for the mutual benefit of the plaintiffs and the company, and the intention of the latter with • reference to them must be determined from the facts and circumstances introduced at a trial on the merits.
As to the second contention, it is the general rule that, where the superstructure of a railroad is placed upon the land of another, the railroad company cannot be said to have intended to attach the rails and other appliances to the land so as to make them a part thereof, and the rule ordinarily applies to sidetracks and spurs constructed by the company to aid it in the discharge of its obligations as a public carrier, as well as to those constructed for the purpose of accommodating the owners of manufacturing and like enterprises situated along or near its main line. (Wiggins Ferry Co. v. Ohio & M. R. Co., 142 U. S. 396, 35 L. Ed. 1055, 12 Sup. Ct. Rep. 188 [see, also, Rose’s U. S. Notes]; Illinois Cent. R. Co. v. Hoskins, 80 Miss. 730, 92 Am. St. Rep. 612, 32 South. 150; Wagner v. Cleveland & Toledo R. Co., 22 Ohio St. 563, 10 Am. Rep. 770; Northern Central R. Co. v. Canton Co., 30 Md. 347; Skinner v. Ft. Wayne etc. R. Co. (C. C.), 99 Fed. 465; Georgia R. & Banking Co. v. Haas, 127 Ga. 187, 119 Am. St. Rep. 327, 9 Ann. Cas. 677, 56 S. E. 313; Toledo etc. R. Co. v. Dunlap, 47 Mich. 457, 11 N. W. 271; Oregon Ry. & Nav. Co. v. Mosier, 14 Or. 519, 58 Am. Rep. 321, 13 Pac. 300.) Some of these cases put steel rails and other appliances in the category of trade fixtures, and hold that they are removable at the pleasure of the railway company when it ceases to use the superstructure of which they form a part, or when their removal becomes necessary for the better accommodation of the public, while others regard such tracks as constructed for public use and enjoyment, and thus distinguish the acts of the company in constructing them from those of trespassers and others who attach their property to the land of another. In the first ease cited it was said: “As between landlord and tenant, or one in temporary possession of land under any agreement whatever for the use of the same,.the law is extremely indulgent to the latter with respect to the fixtures annexed for a purpose connected with such temporary possession.”
In the case of Illinois Central R. Co. v. Hoskins, supra, the court, in considering the rights of a plaintiff, who was seeking to eject a railroad company from his land upon which the company had entered and constructed a spur for its own purposes without plaintiff’s permission or acquiring a right to do so by condemnation proceedings, though it held that the company was a trespasser, said: “It is a general rule of law that whatsoever chattels are attached to the realty with the manifest intent that they remain there becomes part and parcel of it, and cannot be removed without the consent of the owner of the freehold to whom they are considered a gift; but to this rule there are exceptions, and among others is the superstructure of a railway company. Such a company exercises the right of eminent domain—a governmental function—and it takes no freehold, but a mere easement, and therefore cannot be said to have intended to attach its rails .and ties and other appliances to the freehold. They are constructed also for public use and enjoyment, and it is their quality in this respect that distinguishes the acts of the company in their construction from those of a trespasser or others; and, if the terms for acquiring this easement are too onerous, it may remove its rails and ties, and p.ass in another direction.”
It may not be overlooked, however, that the conclusion announced in these cases rested upon the facts as they were disclosed showing what must have been the intention of the railway company at the time the particular superstructure was installed. Under the peculiar facts alleged in the complaint, we think the question whether the plaintiffs can recover must be determined by the evidence as to what the intention of the railway company was at the time the tracks were constructed. It is apparent that they were not installed as a necessary or convenient part of the equipment of the railway company to serve the general public, but exclusively for service to the mining enterprise of the plaintiffs; that the Alta spur and high and low lines were installed by the plaintiffs out of material furnished by the predecessor of the defendant company, but were maintained by the plaintiffs at their own expense; that for the Wickes branch, originally constructed by plaintiffs, reimbursement was made by the predecessor of the defendant company, but that there was no agreement with reference to the occupancy of the land by the company or with reference to the material out of which the tracks were constructed ; that when the main line from East Helena to Boulder was abandoned defendant company connected the Alta spur and Wickes branch with the Great Northern Railway’s line, so that the enterprise of plaintiffs could be served as before;' and that the railway company and its predecessor had the exclusive right to carry for the plaintiffs while they were entirely dependent upon the spur and the branch line. Conceding it to be the rule that, though it appears that, when such spur and branch lines are necessary and proper for the company to have to perform its obligations as a public carrier, the company has the right to remove them when in its opinion it becomes necessary without subjecting itself to an action for damages for doing so (Helena & Livingston S. & R. Co. v. Northern Pac. Ry. Co., ante, p. 205, 204 Pac. 370, yet when, as here, such tracks are installed upon the property of another solely for the purpose of serving the private enterprise of the owner in order to increase its revenues from that source, and are installed and maintained at the expense of the owner of the enterprise, and cannot be used for any other purpose, it cannot be said as a matter of law that the right of the company rests prima facie upon any other rule than that by which is determined the question: What are and what are not fixtures?
Our attention has not been palled to any authority in point in this regard, but upon principle, under the peculiar circumstances disclosed by the complaint, we think the plaintiffs are entitled to a trial on the merits. Plaintiffs cite and rely with confidence on the case of St. Louis & S. F. Ry. Co. v. Beadle, 6 Kan. App. 922, 50 Pac. 988. It is not in point, however, because in that case the plaintiff based her right to recover upon the fact that she was a bona fide purchaser of the land upon which the tracts had been constructed.
As to the second cause of action, no particular discussion is necessary. If the facts as disclosed by the evidence upon the trial justify the conclusion that the rails, etc., were the property of the plaintiffs, it follows as of course that plaintiffs are entitled to recover their value.
The judgment is reversed, and the cause remanded to the district court, with directions to set aside the judgment and overrule the demurrers.
Reversed and remanded.
Associate Justices Cooper, Holloway and Galen concur.
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] |
MR. COMMISSIONER AYERS
prepared the opinion for the court.
On December 6, 1917, Mrs. James Park delivered to James II. Grady and Ethel G. Grady certain personal property, and entered into an agreement in writing, of the words and figures following:
“Conditional Bill of Sale.
“Know all men by these presents: That Mrs. James Park, herein called the vendor, has this day sold to James H. Grady and Ethel G. Grady, the personal- property described in the inventory hereto attached, marked Exhibit A, and hereto made a part, upon the following conditions, to-wit:
“The purchase of said property is to be the sum of nine thousand dollars ($9,000.00), of which the sum of four thou sand dollars ($4,000.00) has been paid in cash upon the delivery of said goods and the execution of this bill of sale, and that the balance of five thousand dollars ($5,000.00) is to be payable in the sum of one hundred dollars ($100.00) or more, payable on or before the 12th day of January, 1918, and like sums of one hundred dollars ($100.00) or more payable on or before the 12th day of each and every month thereafter, until the full sum of nine thousand dollars ($9,000.00) and interest, as herein provided, has been paid.
“Interest at the rate of nine per cent, per annum, is to be paid on all unpaid balances, interest payable monthly.
“It is further understood and agreed that the personal property herein conditionally sold and which is described in Exhibit A, attached hereto, is located in the Park Block, 217 West Park street, Butte, Montana, and possession thereof has been given to the vendees herein, but the title thereto is to remain in the vendor herein, Mrs. James Park, until the full sum of nine thousand dollars ($9,000.00) and accrued interest has been paid and said goods and chattels are not to be removed from said premises without the consent of the vendor herein.
“It is further understood and agreed as a condition of said purchase that vendees are to be allowed not more than fifteen (15) days grace in the payment of the installments herein-before named, and that in the event of the default of the payment of any of the installments, herein named, for a period of greater than fifteen (15) days after the same shall have been payable, then the entire sum at that time remaining unpaid shall immediately become due and payable, and if the same is not thereupon immediately paid, the vendor herein may at her option retake immediate possession of said personal property and the moneys theretofore paid to said vendor by' said vendees shall be retained by said vendor as rent for said goods and the use thereof, and as agreed damages for the violation of this contract.
“The vendees hereby agree to insure said property in a sum not less than five thousand dollars ($5,000.00), loss payable to Mrs. James Park, as her interest may appear.
“That upon the final payment as herein provided, made by or for the vendees herein to the vendor, the latter will cancel this agreement of record and the title to fhe property herein conditionally sold shall be absolutely vested in the said vendees.
“In witness whereof, the parties hereto have hereunto set their hands this 6th day of December, 1917.
“Mrs. James Park,
“Vendor.
“J. H. Grady,
“Ethel G. Grady,
“Vendee.”
The exhibit “A” referred to in the agreement is an itemized list of a large amount of furniture and rooming-house furnishings, and designates the location of such articles in various rooms in the Park Block, but fails, as does also the agreement, to state whether the same is all of the furniture and furnishings in the building designated “Park Block.”
On April 30, 1920, Mrs. Park, plaintiff below, and appellant here, filed her complaint in conversion in the district court of Silver Bow county, charging' that the respondent and Ethel G. Grady, his codefendant there, who was never served with summons, had, on or about December 6, 1917, while in possession, unlawfully converted and disposed of certain personal property particularly described as follows: “19 bedsteads, 21 bed springs, 23 bed mattresses, 94 bed sheets, 41 bedspreads, 70 pillow cases, 2 quilts, 10 tables, 16 common chairs, 72 pairs window curtains, 27 window shades, 10 rocking chairs, 15 room carpets, 11 waste baskets, 8 cuspidors, 4 folding beds, 2 dressers, 1 hall runner, 1 hall chair, 1 stair runner, 1 pair drape curtains, 1 ice box, 1 wardrobe, 14 blankets, 26 pillows, of the value of $639.60”—and alleging that she (the plaintiff) was then, to-wit, on or about December 6, 1917, the owner thereof, and entitled to the immediate possession of the same, and that she had been damaged by reason of said conversion in a sum equal to the value of said property, together with interest at the legal rate. The issues were made in the trial court by respondent’s answer in the form of a general denial, and trial was had, which resulted, after the plaintiff had rested her case, in the court sustaining defendant’s motion for nonsuit and entering judgment against her. This appeal was taken from the judgment and from the court’s order refusing a new trial.
The basis of the motion for nonsuit, as urged in the trial court, was the insufficiency of evidence, and, in addition thereto, it is also urged in this court that the complaint does not state a cause of action. The latter proposition, of course, can be raised here for the first time, for, if the complaint does not state a cause of action, no valid judgment could be entered thereon. This being an action in conversion, where damages only are recoverable, it is sufficient to allege ownership and possession or ownership and right of possession on the date the property was converted, as distinguished from the date of the commencement of the action, as is the rule when the action is brought in replevin to recover possession of chattels. In an action in conversion, the right to damages becomes fixed as of the date of the conversion, and does not depend upon the plaintiff’s ownership or right of possession at any subsequent time; hence we find the complaint to be sufficient. (Babcock v. Caldwell, 22 Mont. 460, 56 Pac. 1081; Didriksen v. Broadview Hdw. Co., 58 Mont. 421, 193 Pac. 63.)
Now, after determining the sufficiency of the complaint, the judgment must stand or fall on the evidence. The witness Slater testified that in December, 1917, he roomed in the Park Block; that furniture was stored in his room about the 6th of that month, and at the time it was placed there he asked the defendant what he was going to do with “these things,” referring to the stored furniture; that defendant re plied that he was going to sell them, and, after the furniture had been moved, whieh was before the 15th of the same month, he asked defendant if he had sold the same, to which defendant answered, “Yes,” that he had. Witness testified that he had seen these same articles before around the building, in the rooms of the Park Block. He enumerated them as: “There were about 20 beds, and about the same number of springs and mattresses, and I should judge there were 8 or 9 tables, about 16 common chairs, and 8 to a dozen rocking-chairs, about 7 or 8 rugs, 1 folding bed, 1 or 2 dressers, some cuspidors, a half dozen or so, 1 hall runner, 1 hall chair, and some tables, I think about half a dozen.” He attempted no further to identify the property or to fix title in the plaintiff. The plaintiff herself—the only other witness—does not testify nor show that she owned all of the personal property and furniture in the block or in the rooms of the block, nor does the agreement, nor the exhibit “A” attached thereto, make any such recital so as to exclude the presumption of ownership in the defendant. The defendant’s possession was un challenged in December, 1917, and to such possession attaches the presumption of ownership, and, unless controverted by competent evidence, the conclusion must be according to the presumption. (Sweeney v. Darcy, 21 Mont. 188, 53 Pac. 540; 16 Cyc. 1074; 32 Cyc. 677; Bradshaw v. Ashley, 180 U. S. 59, 45 L. Ed. 423, 21 Sup. Ct. Rep. 297 [see, also, Rose’s U. S. Notes]; see. 10606, Rev. Codes 1921.)
The plaintiff, to recover, must recover upon the strength of her title. She admittedly does not know what property, if any, was sold in December, 1917, for she testified that she understood the furniture was still there on April 13, 1918. In April, 1918, she repurchased all of the property from the Gradys. Some settlement, not disclosed by the record, was made with Mrs. Grady for her interest, and a note was given to Grady. Mrs. Grady, however, continued in possession until January, 1919, and, on her leaving, the plaintiff for the first time discovered that furniture was missing. Consequently she knew nothing about the alleged sale or conversion of articles by Grady in December, 1917, and for recovery she must rely on the testimony of Slater. The question now occurs, Does the evidence of Slater fulfill the requirements of the law as to proof of the allegations of the complaint?
Upon a motion for nonsuit everything will be deemed to be proved which the evidence tends to prove. (State ex rel. Pigott v. Benton, 13 Mont. 306, 34 Pac. 301; Morse v. Granite County Com., 19 Mont. 450, 48 Pac. 745; Cain v. Gold Mountain Min. Co., 27 Mont. 529, 71 Pac. 1004; Nord v. Boston & Mont. C. C. & S. M. Co., 30 Mont. 48, 75 Pac. 681.) No cause should be withdrawn from a jury unless the conclusion from the facts necessarily follows, as a matter of law, that no recovery could be had upon any view which could reasonably be drawn from the facts which the evidence tends to establish. However, under this rule, the record must contain competent testimony fairly tending to affirmatively prove the allegations of the complaint. The burden of proof is still upon the plaintiff, and is not satisfied if the conclusion to be reached from the testimony offered is merely a matter of conjecture. If such conclusion be equally consonant with the truth of the allegations, and with some other theory inconsistent therewith, it then becomes a mere conjecture, and the rule of the burden of proof is not satisfied. (Shaw v. New Year Gold Mines Co., 31 Mont. 138, 77 Pac. 515.) Slater’s testimony as to ownership is entirely circumstantial, and while, of course, these allegations can be proved in that way, yet such proof must be measured by the rules applicable in such cases. It must not be susceptible to any other equally reasonable inference than that which may be drawn in favor of the plaintiff. In fact, it must tend to exclude all other inferences. On the other hand, if it is susceptible to any other equally reasonable inference, the proof then fails, and, measuring the proof here by this standard, it certainly falls short of “fairly tending to affirmatively prove” the allegations of plaintiff’s complaint.
The other assignments of error not treated above are that too much latitude was allowed in the cross-examination of plaintiff. She testified, on such examination, without objection, that the property was sold December 6, 1917, to the Gradys, under a conditional bill of sale, No. 18687 of the files of the county clerk and recorder, and no error can follow by the identification and admission in evidence of the conditional bill of sale, as filed and numbered in said office, and after its admission in evidence the cross-examination may extend to all of its contents and conditions; and in this case the cross-examination did not exceed the privileges allowed by this rule.
Considering the proof most favorable to plaintiff, as is the rule on a motion for nonsuit—for defendant in making such a motion admits the truth of all of plaintiff’s testimony—we must conclude that the articles and furniture alleged to have been converted were never identified as the property of plaintiff, and that the allegations of the complaint were not proved by competent evidence, or at all, and that the court did not err in permitting the latitude it did on cross-examination.
The error complained of in this case, after being condensed, is based and specified on the granting of the motion for non-suit and the admissibility of evidence, neither of which is well founded.
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 GALEN
delivered the "opinion of the court.
In this ease the defendant was charged by information with a misdemeanor, it being alleged that at Lewistown, in Fergus county, he did, on or about August 28, 1920, sell intoxicating liquors contrary to the law. The ease was tried to a jury and upon a verdict of guilty, wherein the punishment was left to be fixed by the court, sentence was imposed upon the defendant to pay a fine of $300 and to serve a term of two years’ imprisonment in the Fergus county jail. At the beginning of the trial, on application of defendant’s counsel, the rule excluding witnesses during the taking of testimony was ordered. The appeal is from the judgment and from an order denying defendant’s motion for a new trial.
Several errors are assigned, but one of which requires consideration for the proper disposition of this appeal. It is urged that the court erred in sustaining objection to the giving of testimony by the witness Roy E. Ayers, and in overruling the defendant’s offer of proof in connection therewith. The objection, ruling of the court, and offer of proof are shown by the record as follows:
“Roy E. Ayers, called as a witness on behalf of defendant, and being first duly sworn, was interrogated as follows:
“Direct examination by Mr. Huntoon: Q. You may state your name.
“Mr. McConochie (County Attorney) : Just a minute; if it please the court, we object to the testimony of this witness for the reason that the rule was made at the beginning of this case that all witnesses, both on the part of the defense and the prose cution, should be excluded from the courtroom, and this witness has been in the courtroom during the trial of this case.
“Mr. Huntoon: I will submit to the court that he has not been in the courtroom.
“Witness: Yes, Mr. Huntoon, I came in and sat down there a moment, but this rule is news to me, and the county attorney saw me sitting there, and didn’t call my attention to it.
“Mr. Huntoon: I will say we didn’t discover until the very last minute here that this man on the 21st was in Stanford, this gentleman here and two others. As soon as I found that out, I got subpoenas out.
“The court: The judge was in here for about ten minutes, I think.
“Mr. Huntoon: I don’t think he has been in here since subpoena was served on him.
“Witness: Yes; I was in here, but I. didn’t know anything about the rule; I wouldn’t violate any rule.
“Mr. McConochie: We object to the testimony of this witness under the rule of the court.
“The Court: I don’t see how I can do otherwise than to sustain it. I didn’t know that Judge Ayers was a witness, or going to be, or I would have told him, and he knew nothing about the rule.
“Mr. McConochie: No, but, your honor, it was the bailiff’s instructions—
“Mr. Huntoon (Interrupting): Why, if the court please, assume that a man doesn’t know anything about a case, and happens to drop' into this courtroom; I discover that he is a witness, and I have a subpoena issued and served upon him.
“The Court: Did you know it before he came in here?
“Mr. Huntoon: I did not. I didn’t know the situation here until these men gave these dates here.
“The Court: Mr. Huntoon, that is after we had resumed the testimony in here, after I had waited for you to have a witness come up from town; it was after we had resumed in' here that Judge Ayers and Judge De Kalb came in and sat down there for probably ten minutes.
“Mr. Huntoon: Well, I didn’t know anything about that; if I had, I certainly—because I had subpoenas out for the judge at that time.
“Witness: I came in the minute I was subpoenaed.
“The Court: I don’t see how I can do other than sustain the objection, since it is made.
“Mr. Huntoon: Well, if the court please, we have no means of proving—
“Mr. McConochie (Interrupting) : We object to the remarks of counsel at this time.
“Mr. Huntoon: If you will let me use his cheek, Mr. Mc-Conochie, I will be satisfied.
“Mr. McConochie (Interrupting) : We object to the remarks of counsel.
“Mr. Huntoon (Continuing): To fix these dates.
“Mr. McConochie: And ask they be stricken from the record.
“The Court: Sustained. Strike them out.
“Mr. Huntoon: I would like to make an offer of proof by this witness.
“The Court: You may.
“Mr. Huntoon (out of hearing of the jury): The defendant offers to prove by the witness Roy K. Ayers, whose testimony has been objected to and objection sustained by the court, that on the fourteenth day of August, 1920, at the town of Stanford, he met the defendant, and knows of his being present a greater portion of that afternoon, and I think part of the ° evening; and on the twenty-first day of August, 1920, he has personal knowledge of the defendant being present with Perry Irish in the town of Stanford; and that he was there and talked with him and saw him at that time, and that both of these dates are susceptible of proof by checks that the witness Ayers had cashed on those dates in the town of Stanford, one on the 14th of August, and one on the twenty-first day of August, 1920.
“Mr. MeConocMe: To wbieb. tbe state objects for tbe reason that under the prior ruling of the court all witnesses were to be excluded, both for the defense and the state, and that this witness was present in the courtroom during the trial of the action, and after he knew he had been subpoenaed to appear as a witness in the case.
“Mr. Huntoon: I would like to add to that offer of proof.
“The Court: You might put in there ‘but without any knowledge by Judge Ayers of the rule.’
“Mr. Huntoon: I should like to add to that offer of proof by this witness Ayers that I expect to prove these dates, the 14th and 21st by these checks, which I have no means of proving by the recollection of the other witness called in that respect. (Objection sustained, exception noted, witness^ excused.) ”
In support of the charge, the state introduced two witnesses, George Bender and M. J. Ryan, both of whom were paid detectives, or decoys, in the employ of the county attorney.. The first of these witnesses, Bender, testified .that on 'August 28, 1920, between the hours of 9 and 10 o’clock P. M., he entered the Silver Dollar, conducted by the defendant, and asked the bartender, Mr. Refer, for a “shot.” He testified: “Well, I went in there and called for a shot. What I called for in there to Mr. Refer, whatever is his name, and he gave me a drink of whisky over the bar. I paid fifty cents. I asked him if I could get a pint; he said, ‘Yes.’ * # * Mr. Refer went to work and selled a pint of whisky over the bar, behind the bar, and I was standing alongside the bar, and I handed a $5 bill and some silver, $6. * * * I gave him a $5 bill and a silver dollar, so I .took the bottle and put it in my pocket. He gave me another drink for his treat. * * # Mr. Johnson was sitting in the back end, and some men around the table two or three—I wouldn’t say how many—and furthermore, I couldn’t tell if Mr. Johnson noticed it or not.”
He further testified that on Saturday, August 21, 1920, between 8 and 9 o’clock in the evening, he bought a drink in the Silver Dollar, and as to the person who sold it to him, he testified: ‘ ‘ Q. And whom did you buy that from ? A. I believe from my knowledge I bought that from Mr. Johnson. Q. The defendant in this case? A. Yes, sir. Q. Well, you know, don’t you? A. I believe I do.” The bottle, containing what remained of the whisky purchased by the witness from the bartender Refer on August 28, 1920, was introduced in evidence against the defendant.
The witness Ryan testified to having bought two drinks from the defendant, Johnson, in the Silver Dollar on Saturday, August 21, 1920, at 5 o’clock in the evening, and that the defendant, Johnson, drank one of the drinks so purchased; that again on Sunday morning, the twenty-second day of August, 1920, at about 8:30, he made purchase of two drinks from the bartender Refer, the defendant Johnson being present, and that Johnson drank one of such drinks; and that again on Sunday evening between 7 and 9 o’clock, he bought eight drinks from the defendant, Johnson, four at a time; and that again on August 23, at about 5 o ’clock in the afternoon, he purchased four drinks from the defendant Johnson, two other men, strangers to the witness, and Johnson joining in the treat; his testimony in this respect being as follows: “Q. On the 23d, did you make any purchases from Red Johnson? A. I did. Q. About what time of the day was that? A. About 5 o’clock in the afternoon. Q. And what did you purchase at that time? A. Whisky. Q. And did you pay for it? A. Yes, sir. Q. To whom did you make the payment? A. Red Johnson. Q. Do you remember how many drinks were purchased at that time? A. Four drinks. Q. Did you drink them all yourself, or was someone else present? A. Two other men there, and Red Johnson and myself. Q. This was the twenty-third day of what month ? A. August. Q. In what year ? A. 1920. ’ ’ Upon this testimony the state elected as the date of the offense charged August 23, 1920.
The defendant, having been called to the stand as a witness in his own behalf, denied all knowledge of the whisky sales alleged to have been made in his place of business, and said that as near as he could fix the date he was at Stanford, thirty-five miles from Lewistown, on August 21, 1920, in company with Deputy Sheriff Perry Irish, and that they returned home that evening after supper by way of Denton, the distance from Stanford to Denton being approximately twenty-five miles, and that they did not reach Lewistown until about 2 o’clock A. M., the morning of the 22d of August.
Irish, called as a witness for defendant, corroborated the defendant’s testimony regarding their having been in Stanford, and having there met Judge Roy E. Ayers, but was unable to fix the date positively. Thereupon Judge Ayers was subpoenaed and called as a witness in order to fix the date when the defendant claimed to have been in Stanford, namely, August 21, 1920, and his evidence was excluded as heretofore indicated.
The only possible theory upon which the testimony of the witness Bender was admissible, and that of Ryan, respecting the sale of 'whisky made other than on August 23, 1920, was to show a disposition to commit like offenses and continued law infractions of like'character in proof of the particular charge. Section 10660, Revised Codes, 1921, provides: “If either party requires it, the judge may exclude from the courtroom any witness of the adverse party, not at the time under examination, so that he may not hear the testimony of other witnesses. ’ ’ In case of violation of an order of exclusion, the proper remedy to be adopted by the court is to punish the offender for contempt, in the absence of a showing of connivance or collusion on the part of the defendant or his counsel, rather-than to deprive the defendant of material evidence in his defense. To deprive a party of his witness because of misconduct which the party has not caused, procured, or permitted would be to punish the innocent. (Palmer v. People, 112 Ill. App. 527.) The direct punishment for the offense should be visited upon the offender himself as for a contempt of court, and not go to the extent of denying the accused the right of making his defense. (Loose v. State, 120 Wis. 115, 97 N. W. 526.)
Refusal to permit a witness to testifiy in a criminal ease on the ground that he had violated the order excluding witnesses is reversible error where neither the state nor the defendant was responsible for the violation of the order and did not know he was present. (State v. David, 25 Ind. App. 297, 58 N. E. 83.)
In a quite similar case involving an order of exclusion made by the trial court under the statute above cited, it appears that at the request of the defendant the presiding judge required all witnesses to be excluded, and that the witness Keller, a deputy sheriff in charge of the defendant, and who held him in custody, remained thereafter in the courtroom. The deputy sheriff had not been served with a subpoena, and the county attorney did not know when the order was made that it would be necessary to call him to testify. Later it appeared that his testimony would be substantial and material, and Avhen he was called counsel for the defendant objected on the ground that he had disqualified himself from testifying by disobeying the order of exclusion. The court overruled the objection, and allowed him to testify. This court in passing upon the question on appeal held that there Avas no error, and through Mr. Chief Justice Brantly said: “The order of exclusion could not apply to anyone who did not expect to be called as a witness. Even if the order had applied to Keller, the penalty for his disobedience should have been inflicted upon him by punishing him for contempt, and not upon the state by excluding his evidence. Of course, in so far as by his conduct in violating such order a witness manifests unusual interest in the result of the trial, he furnishes ground for the jury to question the credibility of his testimony; nevertheless he is -not thereby disqualified to testify, nor may the party whose witness he is be deprived of his testimony.” (State v. McDonald, 51 Mont. 1, 149 Pac. 279.)
Another case which presents facts not unlike the case before us is that of Pile v. State, 107 Tenn. 532, 64 S. W. 477, Avherein it appears that the defendant, in order to contradict the material evidence of one of the witnesses for the state, called as a witness one Fox, who resided some distance from the county seat and who was not present when the trial of the case commenced, and who was not expected for some hours, but who in fact arrived late in the day, sooner than was anticipated, and went directly into the courtroom, where he remained, as he supposed was his duty to do, without the knowledge of the defendant or his counsel. The court in passing upon the subject used language which we quote with approval as applicable to the case under consideration: “This disclosure, in our opinion, made a clear and obvious case for the admission of the proposed testimony. The intended witness was entirely without fault, and so were the defendant and his counsel. The testimony rejected was very material to the defense, and might have changed the result. Such being true, the testimony should, undoubtedly, have been admitted. (Smith v. State, 4 Lea (Tenn.), 428.) ”
In Davis v. Byrd, 94 Ind. 525, the court in discussing the disobedience of a witness who had been placed under the rule as affecting the admissibility of his testimony, said: “A witness who disobeys the order of the court excluding him from the courtroom should be punished, and severely punished, for' his disobedience, but this punishment should fall on the guilty person, and not on an innocent party. It is difficult to imagine any principle of law which will justify the punishment of an innocent party for the contumacious behavior of a witness. A litigant has no authority over the witnesses subpoenaed by him, and is not answerable for their wrongful conduct, and he ought not to be denied a right because a wrong has been committed for which he is neither morally nor legally responsible. It may be a very serious punishment to be deprived of the testimony of a witness, and if the party is himself free from fault, this punishment should not be visited on him.”
The weight of authority, and we think the better view, is that where the party is without fault and the witness disobeys the order for exclusion, the party ought not to be deprived of the testimony of the witness. (3 Jones on Evidence, sec. 308; Holder v. United States, 150 U. S. 91, 37 L. Ed. 1010, 14 Sup. Ct. Rep. 10; Rooks v. State, 65 Ga. 330; Lassiter v. State, 67 Ga. 739; Grant v. State, 89 Ga. 393, 15 S. E. 488; Cunningham v. State, 97 Ga. 214, 22 S. E. 954; Hoxie v. State, 114 Ga. 19, 39 S. E. 944; McWhorter v. State, 118 Ga. 55, 44 S. E. 873; Davis v. State, 120 Ga. 843, 48 S. E. 305; State v. Ward, 61 Vt. 153, 17 Atl. 483; Parker v. State, 67 Md. 329, 1 Am. St. Rep. 387, 10 Atl. 219; Commonwealth v. Brown, 90 Va. 671, 19 S. E. 447.)
It is settled in this state that the testimony of detectives or decoys employed to ferret out infractions of the law is competent. (In re Wellcome, 23 Mont. 450, 59 Pac. 445; State v. O’Brien, 35 Mont. 482, 10 Ann. Cas. 1006, 90 Pac. 514; State v. Tudor, 47 Mont. 185, 131 Pac. 632; State v. Showen, 60 Mont. 474, 199 Pac. 917.) But the weight and credibility to be given to such evidence are matters proper for consideration of the jury (40 Cyc. 2654; State v. Showen, supra), so that the testimony of the witness Ayers was of importance to the defendant as affecting the credibility of the detective witnesses for the state. If the defendant was not in his place of business and could not have been there at the time mentioned by the witnesses on August 21, 1920, evidence showing this fact might have had weight with the jury in determining whether the defendant actually committed the offense charged on August 23, 1920. And had such evidence been admitted it is possible that the jury would have considered the evidence of the detective witnesses so discredited that there would have been an entirely different verdict rendered.
In this case it appears that the witness Ayers was entirely ignorant of the rule of exclusion of witnesses. There was no showing of connivance by the defendant, or knowledge of his presence in the courtroom during the trial; and the defendant should not be penalized by being deprived of such important testimony in defense. If anyone were to blame, it was the witness who violated the rule, rather than the defendant; and in eases of willful violation of a rule by the witness the remedy is punishment of the witness for contempt. In our opinion the evidence of the witness Ayers was most important to the defendant, and by excluding it the court was in error. It is manifest that gross injustice was perpetrated against the defendant when the court permitted the witnesses to testify to sales of liquor on August 21, and then denied him the right to impeach such testimony. To exclude this evidence, in our opinion, was more than an abuse of discretion; it amounted to a denial of substantial rights of the accused. He was not in any manner accountable for Judge Ayers’ presence in the courtroom in violation of the rule of exclusion of witnesses, and should not, on this account, be penalized and denied the right of complete defense.
The judgment and order are reversed and the cause is remanded to the district court of Fergus county for a new trial.
Reversed and remanded.
Mr. Chief Justice Brantly and Associate Justices Cooper and Holloway concur.
Mr. Justice Eeynolds, being absent, takes no part in the foregoing decision.
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] |
MR. JUSTICE COOPER
delivered the opinion of the court.
From a judgment awarding damages to the plaintiffs for the killing of sheep upon the right of way of defendant, and an order denying a new trial the defendant appeals.
Upon the trial the defendant’s failure to keep the book and record required by section 4311 of Revised Codes of 1907, and the pecuniary loss suffered by plaintiffs in the destruction of the sheep, were proven. It was admitted that they were not willfully driven upon the right of way. By its answer, and an offer of proof at the trial, the defendant sought to show that it caused timely and sufficient notice to be conveyed to the plaintiffs of the injuries to the sheep; to •prove that the plaintiffs were subjected to no inconvenience or disadvantage because of its nonobservance of the require-' ments of the act; that it was not negligent in the operation’ of its trains or in failing to furnish suitable equipment therefor; and that there were no defects in the fences at any point along the right of way near the place of the accident. These matters of defense the court excluded, upon the ground that the defendant, by ignoring the requirements of the section of the Codes mentioned, had sacrificed its right to be heard in its defense of freedom from the negligence charged.
The defendant’s counsel confine the inquiry to the power of the legislature so to deprive the railroad company of its right to defend the action. All the questions suggested in the argument of the present case were fully considered by this court in the case of Dewell v. Northern Pac. Ry. Co., 54 Mont. 350, 170 Pac. 753. By a reference to the exhaustive and able opinion written by Mr. Justice Holloway, it will be seen that the statute.now under consideration was held to be constitutional, and valid in all respects.
Judgment and order affirmed.
Affirmed.
Me. Chief Justice Brantly and Associate Justices Reynolds, Holloway and Galen concur.
|
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] |
PER CURIAM.
Upon motion of respondent, and for good cause shown, the appeal in the above-entitled cause is dismissed.
|
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] |
MR. COMMISSIONER HORSKT
prepared the opinion for the court.
The plaintiff, Hazel Johnson, commenced an action in the district court of Cascade county against the defendant, Nick Baatz, and the Nick Baatz Company, a corporation, alleging in her amended complaint that on -or about the third day of September, 1918, she sold and delivered to defendants, at their special instance and request, goods, wares and merchandise of the reasonable value of $1,000, and also an automobile truck of the reasonable value of $700, no part of which has been paid, except the sum of $300, a credit to which defendants were entitled, they having assumed a mortgage for $300 against said automobile; that she demanded payment for the same, which was refused, and that there is due her from the defendants the sum of $1,400, together with interest, for which amount she demands judgment.
The defendants, in their joint answer, deny all the allegations of the amended complaint, save and except that the Nick Baatz Company was a corporation, and set up as a further defense that plaintiff and her husband, Clifford Johnson, were conducting a business in Great Falls, Montana, known as the Alhambra Bottling Works, and that previous to September 3, 1918, the Nick Baatz Company had furnished to said Alhambra Bottling Works merchandise of the reasonable value of $294.75; that on the above-mentioned date the company instituted an action in the justice court to recover the amount of its claim, and a writ of attachment was issued to the constable of Great Falls township against the Alhambra Bottling Works; that Nick Baatz, in company with the constable, went to plaintiff’s place of business to attach such of her property as was' subject to attachment; that plaintiff and her husband at that time agreed to sell the Nick Baatz Company certain property described in the answer in payment of the amount due it; that plaintiff and her husband also sold to said company an automobile truck, the consideration being that the Nick Baatz Company satisfy a certain mortgage of $300‘against the automobile; and that bills of sale for said merchandise and automobile truck were made, executed, and delivered by plaintiff and her husband to the Nick Baatz Company.
Plaintiff in her reply admits that the Nick Baatz Company instituted suit in the justice court against plaintiff and her husband, but denies that plaintiff and her husband agreed • to sell the property mentioned in plaintiff’s complaint, and in the answer, in satisfaction of the claim of the company, and then further alleges that the plaintiff, on the aforementioned date, sold the Nick Baatz Company certain personal property; that the company agreed to pay her the reasonable value thereof; that the company was to be allowed to deduct from the purchase price the amount of its claim; that thereupon she delivered the property to the company, and that the company also purchased the automobile from plaintiff and agreed to pay therefor, as alleged in the complaint.
Upon the issues thus framed by the pleadings, the cause was tried to a jury, resulting in a verdict and judgment in favor of the plaintiff and against both defendants in the sum of $772.
Thereafter defendants moved for a new trial, which was by the court, granted as to the Nick Baatz Company, but denied as to the appellant Nick Baatz. From the order denying his motion for a new trial, and from the judgment rendered against him he prosecutes this appeal.
It is first urged that the trial court erred in holding that the evidence was sufficient to justify a verdict against the defendant Nick Baatz. In considering this assignment a brief reference to the pleadings and evidence is necessary.
The complaint proceeds upon the theory that the plaintiff on the third day of September, 1918, sold to Nick Baatz, and the Nick Baatz Company, certain goods, wares and merchandise and an automobile truck. The answer of the defendants after alleging that the company had furnished the plaintiff supplies in the amount of $294.75, then alleges that plaintiff, on or about the date mentioned in the complaint, sold certain merchandise described in the answer, as well as an automobile truck, to the Nick Baatz Company, for the sums specified in two bills of sale, executed and delivered by the plaintiff and her husband to said company. Plaintiff in her reply does not deny that the property in controversy was sold to the Nick Baatz Company. In fact it is affirmatively alleged therein that on said date she sold and delivered the property involved in this lawsuit to the Nick Baatz Company. The only matters alleged in the answer which are challenged by the reply are the amount and character of the property sold on that day and the amount that the company was to pay plaintiff therefor.
Plaintiff then voluntarily narrowed the issues so that the only matters remaining to be determined were the amount, character and value of the property purchased by the company, and the amount it had agreed to pay for it. The plaintiff in her reply not only did not deny the allegations of the answer to the effect that the company was the purchaser of the property involved in the suit, but actually by positive averment asserted that the company was the purchaser thereof. The plaintiff by so doing abandoned that part of her complaint which sought to fasten any responsibility upon the defendant Nick Baatz.
Now, let us examine briefly the evidence introduced at the trial. Mrs. Johnson, the plaintiff, testified that during the year 1918 she was the owner of and conducted a business known as the Alhambra Bottling Works; that up to September 3, 1918, she had been buying supplies from the Nick Baatz Company, and on that date was indebted to it in the sum of about $294; that on the last-mentioned date Mr. Baatz, in company with a constable, came to her place of business and offered to buy what supplies she had on hand; that Mr. Baatz stated that, while he did not need the property, 'he would give plaintiff and her husband the full value for it, after deducting the amount of his bill, and that she then sold him the property. Plaintiff then testified as to the amount, character, and value of the merchandise. She further stated that Mr. Baatz asked about the automobile, and that she informed him that there was a mortgage of $300 against the car, due and unpaid; that Mr. Baatz said he would pay off the mortgage, and wanted plaintiff and her husband to give him a bill of sale for the ear, and he would return it or pay the full value therefor; that Mr. Baatz took the automobile and other property testified to, and that prior to the institution of this action she had demanded the return of the automobile, or that she be paid its full value, and also demanded she be paid for the other property delivered to him. On cross-examination of this witness, there was introduced in evidence two bills of sale covering the property in dispute. Mrs. Johnson admitted that she and her husband executed both of these documents, and delivered them to Mr. Baatz. The one covering the automobile named as the consideration the payment of the mortgage of $300, but did not state the name of the vendee. The bill of sale covering the other property states that the Nick Baatz Company is the purchaser, and the consideration to be $294.75.
The testimony of Clifford Johnson, husband of the plaintiff, corroborated that of his wife in respect to Mr. Baatz’ agreement to pay full value for all the property. Other witnesses were qualified and also testified as to its value.
Several witnesses for the -defendant also testified as to the value of the automobile. The constable who accompanied Mr. Baatz on his visit to the bottling works stated that the defendant Baatz agreed to pay the plaintiff the difference between the value of the merchandise and the amount stipulated in the bill of sale.
Nick Baatz, one of the defendants, testified that he was the president of the Nick Baatz Company, and had been in the bottling business for about thirty-five years; that an action was instituted in the justice court against Mrs. Johnson and her husband (which is admitted in plaintiff’s reply), and in company with the constable went to plaintiff’s place of business and attached all the personal property. He said: “I sized the business up and told Mrs. Johnson if there were more goods there than what my bill amounted to I would pay for them, so then we took an inventory. Mrs. Johnson took an inventory.” According to the testimony of this witness, Mrs. Johnson, after taking inventory, presented Mr. Baatz with an itemized account, in which she had computed the value of the property to be $280.35, and, he remarked: “Mrs. Johnson, well, that would not cover my bill, but we will call the bill square.” This witness further stated that Mr. Johnson said he was in debt and was going through bankruptcy and wanted to sell everything; that he (Baatz) could have the automobile if he paid off the mortgage against it, which he did, and plaintiff and her husband executed and delivered to him a bill of sale for it.
A survey of the testimony leads to the conclusion that Mr. Baatz, as a representative of the Nick Baatz Company; went to plaintiff’s place of business for the purpose of collecting a claim owing to the company, and not on any mission of his own. When Mrs. Johnson referred to the claim as “his claim,” when she had just admitted that she owed the company, not Mr. Baatz, neither side pressed for any explanation as to what she meant; in fact, all parties to the suit knew that she was referring to the claim of the company, because no place in the testimony is it even hinted that Mr. Baatz had any individual claim against Mrs. Johnson Again, when Mr. Baatz referred to the company’s account as “my bill,” neither side asked for an explanation as to what meaning he intended to convey, for the very simple reason that there was only one claim in question—that of the company. Likewise, when Mrs. Johnson indulged in the following language: “He stated that he would give us full value for the property after deducting his bill for $294. I then sold him the property,” and, further, when Mr. Baatz said, “I sized the business up and told Mrs. Johnson if there were more goods there than what my bill amounted to, 1 would pay for them. The property that I received from Mrs. Hazel Johnson and Clifford Johnson was not of .the reason^ able value of $1,000. I have not used any of the bottles, and still have them. I received twenty gallons of extracts. I took the car into my possession. * * * The car was in very bad shape,” etc., no one questioned that Mr. Baatz was speaking for his company and not for himself, nor could they, when we consider the purpose of Mr. Baatz’ mission on that day, namely, the collection of an account of the corporation of which he was the president, and its only representative and spokesman on that occasion. This seems to us to be the only reasonable construction that can be put upon the testimony.
In fact, taking the testimony as a whole, there does not seem 'to have been any contention made by any of the parties as to who was the purchaser of the property. The controversy revolved around the question of the amount, character and value of the property, and the price to be paid for it. "While the defendant Baatz gave undue prominence to himself in a matter that strictly concerned the company, yet he is in a measure excused by the fact that the pleadings had set at rest the question of who was the purchaser.
Further than this, if it can be said that by the testimony Mr. Baatz bound himself, then we are confronted with the fact that the testimony was without the issues as framed by the pleadings, and must be wholly disregarded in determining the question of whether or not the verdict is sufficiently sustained by the evidence. (Hayne on New Trial, 477.)
The replication admitted that the company purchased the property. The bill of sale so recited the fact, and, taking into consideration the careless use of the pronouns “my,” “his,” etc., by the parties when making reference to the company’s claim, it is but a reasonable construction of the testimony, taking into consideration all of the surrounding circumstances, that in this whole transaction the company was in each instance the party referred to, and not Mr. Baatz. (Yancey v. Northern Pac. Ry. Co., 42 Mont. 342, 112 Pac. 533.) The evidence as introduced in this action was therefore wholly insufficient to justify any verdict against the appellant, Nick Baatz.
The appellant also contends that the court erred in over- ruling his objection to the admission of certain evidence, but, as the record fails to disclose that timely objection was interposed thereto, he is not now in a position to urge that matter in this court.
For the foregoing reasons, we advise that the judgment and order appealed from be reversed and the cause remanded to the district court for a new trial.
Per Curiam:: For the reasons given in the foregoing opinion, the judgment and order appealed from are reversed, and the cause is remanded to the district court for a new trial.
Reversed.
|
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] |
PER CURIAM.
The application of the relator for writ of supervisory control is denied.
|
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] |
PER CURIAM.
This cause this day came on for judgment and decision; whereupon, on consideration, and on the authority of State ex rel. Samlin v. District Court, 59 Mont. 600, 198 Pac. 362, it is now here ordered and adjudged by this court that the judgment below made on the fourth day of December, 1919, be and it is hereby reversed.
|
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