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MR. JUSTICE HOLLOWAY
delivered the opinion of the eonrt.
On October 10, 1901, an action was commenced in the justice of the peace court of Silver Bow county by one O’Flynn against Maurice Reagan and Joe Long to recover the sum of $70.90 and costs. A summons was issued, and placed in the hands of one F. E. Pilling, a nonofficial person, for service, who made his return thereupon by affidavit as follows: “State of Montana, county of Silver Bow — ss. F. E. Pilling, being first duly sworn, deposes and says: That he is and at the several times herein mentioned, was a male citizen of the United States, and a resident of the county of Silver Bow, state of Montana, and above the age of twenty-one years, and not a party of the above entitled action, and that he received the summons in the above entitled action on the 10th day of October, 1901, and personally served the same on the 10th day of October, 1901, by delivering a true copy thereof to Maurice Reagan and Joe Long, the defendants above named, in the county of Silver Bow, state of Montana. F. E. Pilling” — duly verified. This summons notified the defendants to appear on October 17th, at 9 a. m.. On this last-named day the defendant failed to appear at the time mentioned in the summons, and at the expiration of one hour thereafter their default was entered, plaintiff made proof, and a judgment in accordance with the prayer of the complaint was entered.
On April 20, 1903, the defendant Reagan instituted certiorari proceedings in the district court to have the action of the justice of the peace court reviewed. Upon the return of the justice of the peace the district court entered judgment annuling the judgment of the justice’s court. From that judgment this appeal is prosecuted.
The appellant is placed in the position of being compelled to show, if possible, the error of the district court by showing that there was not any lack or excess of jurisdiction in the justice of the peace court in the case of O’Flynn v. Reagan and Long. This he seeks to do by attempting to show that the service of the summons was legally made, for the only attack made upon-the proceedings in the justice court was upon the service of the summons. Respondent complains of that service on the ground that it was made by a nonofficial person, and contends that the effect of Section 1688 of the Code of Civil Procedure, as amended by an Act of the Sixth Legislative Assembly, approved February 28, 1899 (Sess. Laws 1899, p. 138), is to limit or supersede the terms of Section 1510 of the Code of Civil Procedure, in so far as the same provides that a summons issued from a justice of the peace court may be served by any male resident over the age of twenty-one years not a party to the suit. But the act of February 28, 1899, above, is not susceptible of such a construction. Section 1510, above, does not authorize a nonofficial person to do more than serve a summons, while Section 1688, above, as amended by the act of February 28th, is intended to provide for a special constable in any township where a constable is not elected or appointed, and seeks to invest such special constable with authority to make arrests or serve writs of attachment or execution. There is in fact no relation whatever between the provisions of Section 1510, above, and Section 1688 as amended. They seek to accomplish wholly different purposes. So far, then, as the person making the service was concerned, no valid objection can be offered to the proceedings had in the justice’s court.
Ajoparently no attack was made upon the manner of service, but every presumption will be indulged by this court that the judgment of the district court is correct, and the same will not be reversed unless prejudicial error is made to appear. Therefore, if that judgment can be sustained, it will be.
The return on the summons, quoted above, shows that service was made by delivering to the defendants Reagan and Long a copy of such summons. Is this a sufficient service to give the justice of the peace court jurisdiction of the defendants ?
Section 1510, above, provides that a summons from a justice of the peace court must be served and returned as provided in Title V, Part II, of the Code of Civil Procedure. That portion of the Code, among other things, provides for the manner of service of summons in the district court. Therefore a summons from a justice of the peace court must be served in the manner provided by law for the service of a summons from the district court.
Sections 635 and 636 of the Code of Civil Procedure provide for the manner of service of a summons from the district court. Section 635 provides that a copy of the complaint must be served with the summons, unless two or more defendants are residents of the same county, in which case a copy of the complaint need only be served upon one of such defendants.
Section 410 of the California Code of Civil Procedure is the same in terms as our Section 635, above, and Section 849 of the California Code of Civil Procedure is the same in effect as our Section 1510, above. Construing these sections, the Supreme Court of California, in Southern P. R. R. Co. v. Superior Court, 59 Cal. 471, held that it was absolutely necessary that a copy of the complaint be served with the summons in order to obtain jurisdiction of the defendant, in the absence of a voluntary appearance.
The method by which a resident defendant shall be notified that an action has been commenced against him to the end that jurisdiction of his person may be obtained, is a matter subject to the control of the legislature (19 Ency. P. and Pr. 614), and in Sanford v. Edwards, 19 Mont. 56, 47 Pac. 212, 61 Am. St Rep. 482, this court approved the doctrine that such statutory provisions are mandatory, and must be strictly pursued, and that a failure to observe "the statutory requirements in any material particular will prevent the court issuing the summons from obtaining jurisdiction of the person of the defendant.
The return on the summons in O’Elynn v. Reagan and Long is presumed to show all that was done by the person making the service, aucl that return shows that a copy of the complaint was not served. Upon the authority of Sanford v. Edwards and Southern P. R. R. Co. v. Superior Court, above, we hold that the justice of the peace court did not acquire jurisdiction of the persons of Reagan and Long, or of either of them, and in enter-i ing their default and rendering judgment against them the justice of the peace court exceeded its jurisdiction. As the defendants were never legally or at all before that court, they had no remedy by appeal, and the remedy by writ of review was available.
Rehearing denied December 16, 1904.
As the justice of the peace court had no jurisdiction to enter the judgment in O’Flynn v. Reagan and Long, the judgment of the district court in annulling and setting it aside was proper, and -is affirmed.
Affirmed.
Me. Chibe Justice Bbantly and Me. Justice Milbubn concur.
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MR. COMMISSIONER CALLAWAY
prepared the following opinion for the court:
The plaintiff brought this action as executrix of the last will and testament of Dwight T. Goodell, deceased. Trial was to the court, which entered judgment for the defendants. The plaintiff has appealed. The questions presented arise upon the judgment roll, which includes a bill of exceptions containing so much, of the evidence as is necessary to elucidate the issues involved. The facts, in so far as they are necessary to a determination of the appeal, are substantially as follows:
The testator died December 31, 1888, leaving a will dated September 18, 1882, in which he appointed the plaintiff sole executrix. Paragraph “fourthly” therein reads: “I hereby authorize and empower my executrix, hereinafter named, to manage my said estate as in her judgment she shall deem best, and for that purpose to sell any portion or the whole thereof, whether real, or personal, or mixed, and to invest or use the proceeds thereof as she shall deem fit and proper, and no liability shall attach to her in any event for the exercise of the discretion here authorized.” The will was admitted to probate, and letters testamentary thereupon were issued to plaintiff, prior to the occurrences hereinafter mentioned.
On May 28, 1889, the plaintiff, as executrix, sold at private sale certain real estate belonging to the estate to a syndicate, composed of the defendants (who acted throughout the transaction as the firm.of Sanford & Evans) and eleven other persons, for $50,000. The agreement seems to have been that the syndicate should pay one-fourth of the purchase price in cash, and the remainder in three equal installments, falling due «Tune 12, 1890, June 12, 1891, and June 12, 1892.
On May 29, 18S9, the plaintiff filed in the probate court a petition praying for the confirmation of the sale, in which she recited “that under and by virtue of said will power is given to your petitioner to sell all or any part of the real estate, hereinafter described, belonging to said estate, whenever and as to your petitioner may seem best and most to the interest of said estate,” and also' “that in pursuance of the power in said will contained, and deeming it for the best interest of the estate, your petitioner has sold the said premises at private sale, without notice, to George H. Hill, trustee, for the sum of fifty thousand dollars ($50,000.00) ; that said sum was duly and legally paid, and, as your petitioner believes, the amount for which the same has been sold is not disproportionate to the value of. the property-sold; and that a sum exceeding ten per cent of the purchase price in advance thereof, and excluding the expenses of a new sale, cannot be obtained for said property.” Forthwith, upon the filing of the petition, the court made an order fixing June 10, 1889, as the time for hearing the petition. On June 13, 1889, there was also filed a written consent to the sale, signed by the heirs, in which they set forth that, whereas, the will provides, among other things, that the executrix, Catherine M. Goodell, might, “if she felt so disposed, at any time sell and dispose of any or all of the real estate hereinafter described for cash in hand, and invest the proceeds from such sale or sales as she thought best for the interest of the heirs of said estate; and, whereas, the said executrix is offered the sum of fifty thousand dollars for such realty, and upon the following terms and conditions, to-wit: Ten thousand dollars cash down upon delivering the deed to said property hereinafter described, and the further stun of forty thousand dollars to be paid in installments, to be secured by mortgage upon said property — and being desirous of disposing of said property,” they therefore urgently requested the court to confirm the sale. Thereupon the court made an order confirming the sale, in which it is recited that, the executrix having made a return of her proceedings under the provisions of the last will and testament of the decedent, “and the court having examined said return and heard the testimony of -witnesses in support thereof, and it duly appearing to the court that in pursuance of said power of sale said Catherine M. Goodell sold the following described property, * that at such sale George Id. Hill, trustee, became the purchaser of said real estate above described for the sum of fifty thousand dollars ($50,000.00), being the highest and best bidder, and the sum being the highest and best sum for said property, * * it is by the court ordered, adjudged and decreed that the said sale be, and the same is hereby, confirmed and approved, and declared valid, and that proper and legal conveyances of said real estate are hereby directed to be executed to said purchaser by said Catherine M. Goodell, executrix.”
On the next day, June 12th, the plaintiff executed a deed to George H. Hill, trustee, whereby she conveyed to him “all the right, title, interest and estate of said Dwight T. Goodell, deceased, at the time of his death, and also all the right, title and interest that the said estate, by operation of the law or otherwise, may have acquired, other than, or in addition to, that of said testator, at the time of his death, and all dower and right of dower of the said party of the first part, as the widow of said deceased or otherwise, in and to” the real estate in question.
During the month of June, 1889, all the members of fEe syndicate and Mrs. Goodell signed an instrument reciting the fact that on June 12, 1889, plaintiff had executed the said deed to George H. Hill, trustee, and directing Hill to convey the property to George B. Child, trustee. The signature of Sanford & Evans was written thereto by the defendant Sanford. Hill did as directed; his deed to Child, trustee, being dated August 5, 1889. On Spetember 7, 1889, Child executed a declaration of trust, in which he acknowledged that the property -was conveyed to him as trustee for the syndicate. The instrument sets forth the respective interests and liabilities of the several members of the syndicate therein, among which is found the following: “The said Messrs. Sanford & Evans own an undivided two-twentieths interest in the said property, and is indebted thereon to the said Catherine M. Goodell in the sum of three thousand seven hundred and fifty dollars ($3,750.00).” The instrument then provides “that the said Catherine M. Goodell has a lien upon said property to secure the payment” of the sums due her according to the terms set forth therein. The three remaining payments are provided for as above stated, with interest payable annually. It is then certified that the trustee is to hold “the legal title in said premises for the said owners thereof, in the proportions or shares above specified, subject to the lien of the said Catherine M. Goodell, as aforesaid”; that he is to plat the premises mentioned in the deed as a townsite, to sell the same, to execute deeds to the purchasers, to collect the money therefor, and out of the proceeds to first pay Catherine 11. Goodell the amount due her, together with the interest thereon; and “if any payments to be made to the said Catherine M. Goodell as hereinbefore provided shall not be made within the respective times in that behalf above specified, either from the sales of property or from other sources, then and in such event the party failing to make such payment shall be deemed and held to forfeit all right, interest and estate of, in and to the said described property, and the undersigned shall thereupon reeonvey to the said Catherine II. Goodell all of the interest in said property owned by the party making such default, and in such event the payments that may have been made by such defaulting party shall be forfeited to the said Catherine M. Good-ell and retained by her as fixed, settled and liquidated damages, or, at the option of the said Catherine M. Goodell, the undersigned, instead of so reconveying such interest to her, shall sell the interest of said defaulting party at public auction to the highest bidder, and apply the net proceeds of such sale upon the payment of the amount due from such defaulting party, and the said Catherine kl. Goodell shall have her action against such defaulting party for the balance remaining due from such defaulting party after making such application of payment. Said Catherine M. Goodell shall make her election under such option by giving notice to said defaulting party, which notice shall specify the course she elects to pursue, and if, within ninety days after receiving such notice, such defaulting party shall have failed to pay the full amount, principal and interest, then remaining due upon said indebtedness, the right of the said Catherine M. Goodell to demand a reconveyance, or a sale of said property in the manner hereinbefore specified, in pursuance of her election, shall be absolute, and the undersigned shall proceed to reconvey or sell, as the case may be, upon the demand of said Catherine ki. Goodell.” To this declaration there was annexed a bond, which was given by Child to Mrs. Goodell in the sum of $20,000, -with Erastus D. Edgerton and John B. Sanford as sureties. The bond recites the execution of the declaration, naming specifically Sanford •& Evans, as well as other members of the syndicate, and was conditioned to the effect that the trustee should ""well, truly and faithfully execute and perform all duties as such trustee.” This declaration of trust and bond appear of record in Book 12, at page 41, in the office of the county clerk of Lewis and Clarke county.
Child continued to act as trustee for nearly six years. On April 25,. 1896, the members of the syndicate, by an instrument in writing signed by them, requested Child, who had removed from Montana, to convey the property remaining in his hands to George E. Cope, trustee. The written request begins: ""We, the undersigned, members of the syndicate named in a certain "declaration of trust,’ wherein George B. Child is trustee, said declaration of trust being of record in the office of the county recorder at Helena, Lewis and Clarke county, Montana, in Book 15, at page 41, to which reference is hereby made.” The signature of Sanford & Evans to this paper the defendants admit to be genuine. In pursuance of this request Child, on July 31, 1896, conveyed the property to Cope, trustee. In this deed it appears that a considerable portion of the property conveyed to Child, trustee, in the year 1889, was thereafter sold, during the years 1889, 1890, 1891 and 1892, as parts of the ""Hotel Park Addition.” The sales of lots were made by the firm of Porter, Muth & Cox, which firm was a member of the syndicate; the proceeds being turned over to the trustee, Child. On July 14, 1898, the defendants were notified by plaintiff, through her attorney, that on November 16, 1894, they were indebted to plaintiff in the sum of $1,(¡66.53 on account of the purchase price of the property. The defendants did not deny but that the statement was correct, and did not give any testimony tending to show that they had paid any portion of said amount. They say they sold Mrs. Goodell goods, wares and merchandise aggregate ing $156.41 during a period beginning May 1, 1894, and ending October 16,1898, but say these sales did not apply upon the real estate purchase, but, on the contrary, Mrs. Goodell still owes them for the goods, etc.
On December 16, 1898, the plaintiff notified the defendants that, as they had failed to comply with the terms of the declaration of trust, she elected to direct the trustee to sell their interest in the property at public auction to the highest bidder, and apply the net proceeds of the sale to the payment due from them; that, if there remained a balance due her after applying the amount obtained from the sale, she would commence an action against them for such balance. They were given ninety days to make the payment, according to the terms of the declaration of trust. To this notice the defendants paid no attention. Thereupon the trustee, in pursuance of his duty, sold the defendants’ interest in the property at public auction. The sum of $50 was realized therefrom, and the net proceeds thereof were applied upon the indebtedness. Thereupon this action resrdted. The plaintiff asks judgment for $1,575.83 and interest thereon at the rate of 8 per cent per annum from November 11, 1895, and for costs of suit. The transcript does not show when this action was begun, but the second amended complaint was filed April 16, 1900.
The defendants contend that, because of irregularities in the proceedings, there was no conveyance of title to them, and therefore there was no consideration for the transaction; consequently that no liability attaches to them; that the property was not sold to them, but was sold to Hill, trustee; that plaintiff never made a return of sale to defendants; that the court never confirmed any such sale as that alleged in the complaint; that the -sale did not authorize the creation of a trust by the executrix. The most of these objections are purely technical.
In the first place, defendants err in assuming that the sale was a judicial one. It was not. It was a sale under the authority granted to plaintiff in the will. (In re Pearsons, 98 Cal. 603, 33 Pac. 451; Id., 102 Cal. 569, 36 Pac. 934.)
Section 209, p. 233, Revised Statutes, 1879, which was m force when the will was drawn, and presumably was in contemplation of the testator, provides : “When property is directed by the will to be sold, or authority is given in the will to sell property, the executor may sell any property of the estate without the order of the probate court, and at either public or private sale, and with or without notice, as the executor may determine; but the executor must make return of such sales as in other cases, and if directions are given in the will as to the mode of selling, or the particular property to be sold, such directions must be observed. In either case no title passes unless the sale is confirmed by the court.” The same section wras re-enacted in the Compiled Statutes (Section 209, p. 328), which were in force when the sale herein referred to was made.
In re Pearsons, 98 Cal. 603, 33 Pac. 451, the court said: “A sale by an executor under a power in the will is not a judicial sale, nor does the statutory requirement that no title shall pass until the sale be confirmed give to it the incidents of a judicial sale. * * * The purchaser from an executor at a sale under a power in the will deals with him in making the purchase as ho would with any other vendor. He makes the purchase subject to a confirmation by the court, but in all other respects he may incorporate in his contract of purchase the same terms and conditions as he would in dealing with any other agent for the sale of property, and he can repudiate his contract of purchase only for the same reasons as he could in case he had bought from another. The executor is regarded as the donee of a power (Conklin v. Egerton, 21 Wend. 436; Newton v. Bronson, 13 N. Y. 592, 67 Am. Dec. 89), and the sale is treated as if made under a power; and the purchaser is required to examine the sufficiency of this power, as he is that of any other power under wdiicli a sale may be made (Larco v. Casaneuva, 30 Cal. 561). In this state it is essential that the will shall have been admitted to probate before the power can have any validity (Castro v. Richardson, 18 Cal. 478), but in all other respects the contract of purchase and sale between the executor and his vendee is attended with the same incidents, and is to receive the same eon •struction as a similar contract between any other vendor and vendee.”
In confirming a sale so made,N “the scope of investigation by the court is limited to ascertaining whether the sale was legally made and fairly conducted, and the sum bid not disproportionate to the value of the property sold, and that a sum exceeding such, bid at least ten per cent, exclusive of the expenses of a new sale, cannot be obtained.” (Sections 2685, 2687, Code of Civil Procedure.) The court heard the proof adduced upon the return of plaintiff and confirmed the sale. It doubtless inquired into the terms thereof, and was satisfied that the sale was legally made and fairly conducted, the sum bid not disproportionate to the value of the property sold, and that a sum exceeding the bid as the statute requires could not be obtained. The sale as actually concluded was not the precise sale to which the heirs consented; but it was equally as advantageous to the estate, if not more so, and it complied substantially with the sale to which the heirs consented. The plaintiff reserved a lien upon the land sold, with a right to have the same reconveyed to her, retaining all payments theretofore made by the syndicate, or to have the interests of the vendees sold at public auction, with a right to .sue them for the deficiency.- The heirs have never objected to the proceeding so far as the record discloses, nor has any creditor. What effect the consent of the heirs had, or could have had, upon the court’s action, is not perceptible, except that the court was thereby informed that the sale was not for cash, but was upon a partial payment, with the remaining payments secured.
The plaintiff had the right to make the sale in the manner .she did under the terms of the will. A correct construction of paragraph “fourthly” therein leaves no doubt that a very wide discretion was left to plaintiff, and she does not appear to have transgressed it. (See Huger v. Huger, 9 Rich. Eq. 217; Wright v. Zeigler, 1 Ga. 324, 44 Am. Dec. 656; Munson v. Cole, 98 Ind. 502.)
No warranty of title was made by the plaintiff.' “In the ordinary contract of purchase and sale there is an implication that the conveyance to be made thereunder will transfer the title to the property; hut, in the absence of auy special agreement upon the subject, it is incumbent upon the vendee to examine the title for himself, and to point out any objections he may have to the title tendered him by the vendor. (Easton v. Montgomery, 90 Cal. 307, 27 Pac. 280, 25 Am. St. Rep. 123.)” (In re Pearsons, supra.)
If defendants did not satisfy themselves of the title they were to get, it is their own fault. However, they have not shown us that they did not receive a perfect title, except as incumbered by their own contract. Their trustee entered into the possession of the property, platted a part of it into a townsite, sold portions thereof, and made payments upon the purchase price to plaintiff, all as he was empowered to do hy the declaration of trust. Until defendants lost the property by foreclosure sale, all their acts, so far as the record discloses, were in direct affirmation of the trust agreement. The fact that they assented thereto for years, entered into possession of the property, sold portions-thereof, made payments on the purchase price, and in all respects ratified the transaction between the syndicate and plaintiff, until sued for the balance of the purchase price due plaintiff, estops them from now saying they received no title, or that the sale was irregularly made. (Harbin v. Levi, 6 Ala. 399, 8 Smith’s Con. Rep. 486; Martin's Executor v. Truss, 50 Ala. 95; Adair v. Adair, 78 Mo. 630; Crumb v. Wright, 97 Mo. 13, 10 S. W. 74; Dupleix v. Deblieux, 26 La. Ann. 218; Lacy v. Johnson, 58 Wis. 414, 17 N. W. 246; Spinning v. Drake, 4 Wash. 285, 30 Pac. 82, 31 Pac. 319; Robertson v. Pickrell, 109 U. S. 608, 3 Sup. Ct. 407, 27 L. Ed. 1049.)
The evidence discloses clearly that the syndicate first designated Hill as trustee, and the deed was made to him hy plaintiff in accordance with direction of the members of the syndicate. Hill was connected with the Eirst National Bank, and presum ably would keep tbe syndicate’s money there. Edgerton, a member of the syndicate, was connected with the Second National Bank, and wanted the deposits. Through his influence ITill, trustee, was requested to convey the property to Child, trustee, and did so. Child executed the declaration of trust. This declaration was drawn by F. P. Sterling, Esq., attorney for the plaintiff. He testified that “there was a declaration of trust drawn, and it was entered into by all the parties interested.” There seems to have been some difficulty in-agreeing upon its exact terms. Sterling wrote and rewrote it seven or -eight times, before it was finally agreed upon. To this declaration was attached the bond, conditioned for the trustee’s faithful performance of his duties, and, as before stated, it was signed by Sanford, one of the defendants, as surety.
From the competent testimony in the record it is quite impossible to say that the defendants were not fully apprised, both in fact and in law, of the terms of the declaration of trust. Are they bound by its' terms ? When it was executed the Compiled Statutes of 1887 were in force. Section 217, p. 651, thereof, reads: “No estate or interest in lands other than for leases for a term not exceeding one year, or any trust or power over or concerning lands or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered or declared unless by act or operation of law, or by deed or conveyance in writing subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his lawful agent thereunto authorized by writing.” Section 219, p. 652, thereof, reads: “Every contract for the leasing for a longer term than one year, or for the sale of any lands, or interest in lands, shall be void, unless the contract, or some note or memorandum thereof expressing the consideration, be in writing, and be subscribed by the party by whom the lease or sale is to be made.” The land was conveyed to Child, trustee, by direction of all parties interested. Hill was a mere intermediary. Child executed the declaration as the grantee of plaintiff. In so doing he was the agent of all parties to the syndicate. He was the proper person to make the declaration. To be charged by it, it was not necessary that the defendants should sign it. “When the trust is not created in and by the instrument of conveyance, it may be sufficiently declared and evidenced by the trustee to whom the land is conveyed, or who becomes the holder of the legal title; and this may be done by a writing executed simultaneously with or subsequent to the conveyance, and such writing may be of a most informal nature.”' (2 Pomeroy’s Eq. Jur. Sec. 1007.)
A case much in point is that of Lowber v. Connit, 36 Wis. 182, in which it was claimed by counsel for defendant that a contract for the sale and conveyance of real estate was not binding upon defendant, because he did not sign it. The court said: “This question is practically decided adversely to this view in Vilas v. Dickinson, 13 Wis. 488. That was an action upon a bond for the conveyance of real estate, brought by the obligor against the obligee to recover a portion of the purchase money. The objection was taken that the obligation was signed by the plaintiff only, and therefore was not'binding upon the other party. But the objection was overruled, the court holding that a party who accepts and adopts a written contract, although it is not signed by him, is bound by its terms and conditions. But it is insisted that under the statute of frauds the defendant is protected, because he did not sign the instrument upon which the action is founded, and which creates an estate in lands. Our statute in substance enacts that any contract for the sale of lands or of any interest therein shall be void unless the contract, or some note or memorandum thereof expressing the consideration, be in writing, and be subscribed by the party by whom the sale is made. Section 8, c. 106, Bev. St. The distinction between this provision and the English statute, which requires the contract to be signed by the party to be charged, is pointed out by the chief justice in Dodge v. Hopkins, 14 Wis. 631, 641, 648, and need not be- dwelt upon here. See, also, Hodson v. Carter, 3 Chand. 234. The signature of the party who makes the sale satisfies this provision of the statute. But then the question arises whether the contract signed and delivered by the plain tiffs, and accepted and adopted by the defendant as the agreement between them, binds the latter. This can hardly be said to be an open question, certainly not after the rule laid down inVilas v. Dickinson, which was an action at law.” Further om the court said: “But it seems that the real foundation of the' rule is that the party who accepts and adopts a written contract,' though not signed by him, should be deemed to have fully consented to its terms and conditions, and is therefore bound by them. He ought not to be in a position where he can hold the other party to the contract, and compel its performance, if advantageous to him, and at the same time be at liberty to avoid-the contract on his part, if disadvantageous. Both parties ought' to be bound by the contract, or neither should be bound. And where the contract has been accepted and adopted by the party not signing it, he does assent and agree to it on his part, and' the law implies a promise to perform.” (And see Ide v. Leiser,10 Mont. 5, 24 Pac. 695, 24 Am. St. Rep. 17.)
From what'has been said, it follows that defendants were and are bound by the terms of a written instrument — the declaration of trust — to which they assented, and under which they acted for many years, and which they never sought to -repudiate until the commencement of this action. This being true, the defendants’ plea that the plaintiff’s action is barred by the statute of limitations cannot be sustained. By Section 41 of the First Division of the Compiled Statutes of 1887, as amended (Session Laws of 1889, p. 172), which was in force when the declaration of trust was executed, it was provided that an action upon any contract, obligation or liability founded upon an instrument in writing shall be commenced within eight years; Section 512 of the Code of Civil Procedure is to the same effect As before stated, the record does not disclose when this action was commenced, but the second amended complaint was filed within eight years after the payment of June 32, 1892, became due.
But, irrespective of the eight-year limtiation, under the facts in this case, we think plaintiff’s right of action against the d& fendants accrued when the trustee sold the property under the terms of the declaration of trust. The sum for which plaintiff should have judgment is therefore but a mere matter of computation for the lower court. Plaintiff concedes that defendants are entitled to a setoff amounting to $156.41. This latter sum is made up of several different items, which should be credited to defendants as of their respective dates.
We are of the opinion that the judgment and order should be reversed, and the cause remanded for further proceedings in conformity with this opinion.
'Per Curiam. — For the reasons stated in the foregoing opinion, the judgment and order are reversed, and the cause is remanded for further proceedings in conformity therewith.
Mr. Justice Milrurn, not having heard the argument, takes no part in this decision.
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MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
Appeal from an order refusing to dissolve an injunction. On January 20, 1912, the plaintiffs were indebted to the defendant Mary Cole in the sum of $949.44, evidenced by a judgment recovered in the district court of Ravalli county on September 2, 1911. They were also indebted to one Louise J. Hageman. A portion of this indebtedness, the exact amount being not then definitely determined, was secured by a mortgage upon lots 15 and 16, in block 21, in Hamilton, Ravalli county. The plaintiffs, desiring to effect satisfaction of the judgment and also to procure a discharge of so much of their indebtedness to Hageman as was secured by the mortgage, entered into a contract in writing with the defendant Cole, under the terms of which they agreed to convey to her the said lots by warranty deed at a price to be fixed by three arbitrators, one chosen by each of the parties to the contract, and the third by these two. The defendant Cole agreed on her part to accept the conveyance at the price so to be fixed, and in consideration therefor (1) to pay so much of the Hageman indebtedness as was secured by the mortgage; (2) to apply the remainder to the satisfaction of the judgment; and (3) to pay the balance, if any then remaining, to the plaintiffs. The arbitrators were selected and fixed the price of the lots at $1,750. The amount of the Hageman encumbrance was then definitely ascertained to be $778. In addition to these facts, the complaint alleges that the plaintiffs thereupon executed a warranty deed to defendant Cole; that they tendered it to her and demanded that she pay the mortgage indebtedness due Hageman; that she refused to accept the deed or to pay the said indebtedness and has ever since refused to do so; that the plaintiffs have ever since been ready to deliver the said lots to this defendant according to the terms of the contract; that on the-day of-, 1912, this defendant caused an execution to be issued upon the judgment and to be placed in the hands of the defendant George See, the sheriff of Bavalli county; that, under and by virtue of it, he has seized certain personal property of plaintiffs, consisting of livestock, hay, grain, farming implements, household goods, etc.; that he has advertised it for sale to satisfy the judgment; and that, unless he is restrained from so doing, he will proceed to complete the sale and satisfy the judgment. It is further alleged, by way of conclusion, that the plaintiffs are without a plain, speedy or adequate remedy at law, and will suffer irreparable damage if the sale -is carried to completion. The prayer is for a decree requiring the defendant Cole to perform the contract according to its terms, and for an injunction to restrain the sale pending the action. Attached as an exhibit is a copy of the contract. The allegations are upon positive knowledge. The complaint was filed on November 8. The court issued the injunction as prayed, but without notice, the sale being advertised for that day. On December 6 the defendants moved the court to vacate the order granting the injunction on the grounds that the facts stated do not warrant the granting of the writ, and that, in any event, they do not exhibit such an emergency as justified the granting of it with ont notice. The motion was supported by an affidavit by the defendant See, and by an answer by both defendants. The affidavit does not controvert any of the facts alleged in the complaint. The answer admits all of the allegations therein made, except that it denies a tender of the deed by the plaintiffs. It alleges in this connection that the defendant Cole, at the time the value of the. lots was fixed by the arbitrators, was, and ever since has been, ready and willing to accept the deed from plaintiffs and to carry out the terms of the contract, but that the plaintiffs refused, and ever since have refused, to deliver it or the possession of the lots.
It is a settled rule in this jurisdiction that the granting or refusing to grant a preliminary injunction in a particular case rests in the discretion of the district court, and that this court will not interfere with the exercise of that discretion unless there has been a manifest abuse of it. (Bennett Bros. v. Congdon, 20 Mont. 208, 50 Pac. 556; Boyd v. Desrozier, 20 Mont. 444, 52 Pac. 53; Forrester v. Boston & Mont. etc. Co., 21 Mont. 544, 55 Pac. 229, 353.) In exigent cases, before the defendant has answered, the writ may be granted without notice either upon the complaint alone or upon affidavits, if in the opinion of the court irreparable injury will result from the delay required for giving notice. (Rev. Codes, secs. 6644, 6645.) So it is discretionary with the court as to whether the injunction shall be continued after the defendant has answered.
The contention of counsel is that since it is not alleged that the defendants are insolvent, and it is apparent that an action at law for damages for a violation of the contract would adequately compensate the plaintiffs, the court abused its discretion both in granting the writ, and in refusing to sustain the motion to set it aside. There is no merit in the contention from either point of view. The complaint is verified upon knowledge. This meets the requirement of the statute. (Sec. 6644, supra.) We do not think that it can be questioned that the plaintiffs are entitled to a specific performance of the contract, if the facts as stated are .established by the evidence. The complaint is not a model of pleading, but it sets forth clearly the stipulations of the contract, the definite ascertainment of the purchase price in accordance therewith, and a tender of such a conveyance as the plaintiffs bound'themselves to make. But for the single issue as to the tender of the deed, upon the admissions in the answer it is apparent that defendant Cole is without defense. It is true the deed is not tendered with the complaint; yet, since the plaintiffs have submitted themselves to the jurisdiction of the court, they may be required to prepare and deposit the deed in court at any time before the decree granting them relief. By demanding the relief sought, coupled with the allegation of the offer to perform, they exhibit their willingness to meet all the obligations to be performed on their part. Hence the complaint is not open to objection because the plaintiffs do not allege a deposit of the deed with the clerk. As was said by the supreme court of appeals of West Virginia, in Vaught v. Cain, 31 W. Va. 424, 7 S. E. 9: “Whatever may be the rule as to dependent covenants in courts of law, it is well settled, in cases of this character in courts of equity, that it will not make the bill demurrable merely because the plaintiff fails to tender with his bill for specific performance a sufficient or any deed for the land.” There is some diversity in the decisions on the subject, but, where it appears that an offer to perform has been made and refused, it is sufficient if the plaintiff alleges that he is willing and stands ready to comply with the contract on his part. (Bruce v. Tilson, 25 N. Y. 194.)
In this character of action it is not necessary for plaintiff to allege special circumstances showing that he has no adequate remedy at law. The allegation of a breach of such a contract is itself sufficient to raise the presumption that pecuniary compensation will not afford adequate relief. (Ide v. Leiser, 10 Mont. 5, 24 Am. St. Rep. 17, 24 Pac. 695; Christiansen v. Aldrich, 30 Mont. 446, 76 Pac. 1007; Rev. Codes, sec. 6099.) In other words, when it appears that the defendant has refused to comply with his contract, the presumption attaches that the plaintiff has suffered detriment which is irreparable in an action for damages and is -prima facie entitled to invoke the aid-of equity to obtain adequate relief, viz., the performance of the contract. The court may grant or withhold relief, according to the circumstances as they are made to appear by the evidence (Christiansen v. Aldrich, supra); but, having assumed jurisdiction of the action, it will, as in any other action, make use of all the instrumentalities at its disposal to preserve the status quo until the controversy can be determined on the merits. (Taylor v. Florida East Coast Ry. Co., 54 Fla. 635, 127 Am. St. Rep. 155, 14 Ann. Cas. 472, 16 L. R. A., n. s., 307, 45 South. 574; 2 High on Injunctions, 4th ed., 1120.) The question here is not, as counsel seem to think, whether a case is stated for an injunction to restrain the collection of a judgment which should be deemed satisfied, but whether, pending the action, the court should restrain conduct on the part of the defendants which, but for the restraint, would result in a condition which would render the final decree in favor of plaintiffs ineffective. If the plaintiffs are entitled to any relief, they are entitled to have the judgment satisfied in conformity with the terms of the contract. This they cannot have if the sale is allowed to proceed and satisfaction is ha'd by that means; for, under the changed conditions which would be found to exist at the termination of the action, the rights of the parties, as affected by the seizure and sale of the property, would be left wholly unadjusted.
The injunction was properly issued in the first instance, and the action of the court in denying the motion was correct. The order is affirmed.
Affirmed.
Mr. Justice Holloway and Mr. Justice Sanner concur.
|
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
This is an appeal from an order granting an injunction. The complaint alleges that in June, 1911, Curtis Huller commenced an action in the district court of Missoula county against the Amador Copper and Gold Mining and Milling Company, Limited, a corporation, to recover $5,822.44, alleged to be due him for work and labor performed for the corporation; that due service of summons was made; that on July 8, 1911, the default of the defendant corporation was entered, judgment recovered by default for the full amount demanded, and execution issued and placed in the hands of the sheriff of Missoula county for service. It is then alleged that in the proceedings leading up to the sheriff’s sale, and in the sale itself, such irregularities occurred, and these are pointed out, that a sheriff’s deed ought not to issue to the purchaser of the property at such sale. After a hearing the district court ordered an injunction to issue restraining the defendant sheriff from issuing the deed, and this appeal followed.
But for certain statements contained in the brief of respondents we would be uncertain as to the theory upon which plaintiffs proceeded, but we have the repeated assurance that the purpose of this suit is twofold: (1) To set aside the Huller judgment; and (2) to have vacated the pretended sheriff’s sale. As ancillary relief and for the purpose of maintaining the status quo, an injunction was demanded restraining the sheriff from executing or delivering a sheriff’s deed pending a final determination of the cause.
1. The only allegations to be found in the complaint which reflect in the least upon the character of Huller’s claim or his judgment are these: “That the claim of the said Curtis Huller is a pretense and a fraudulent claim, approved by the said Bobert G. McIntosh and the said George F. Stoney, together with other parties unknown to your orators, for the sole purpose of obtaining possession of the Amador mine and the other property mentioned in the said sheriff’s sale for themselves in fraud of your orators’ rights,” etc. And, again: “Your orators further allege that the entire suit brought in this court by Curtis Huller is a mere scheme and conspiracy on the part of the said Curtis Huller, Robert G. McIntosh, and George F. Stoney and others unknown to your orators to obtain possession of the said premises described in the said sheriff’s return in fraud of the rights of your orators,” etc. It will be observed at once that in neither of these excerpts is there a single fact stated. Each consists of a bald conclusion. Under our Code, the complaint must contain a statement of the facts constituting the cause of action. (Rev. Codes, sec. 6532.) There is not any contention that Huller did not render services to the corporation of the value of the amount claimed, or that such services were not necessary; indeed, there is not a suggestion of any fact which tends in the remotest degree to impeach the integrity of the judgment. The employment of such extravagant terms as “fraud,” “conspiracy,” and other words of like malign import, unaccompanied by a statement of fact upon which the charges of wrongdoing rest, is a useless waste of words. (20 Ency. of Pl. & Pr. 786.) The complaint fails altogether to state facts sufficient to constitute a cause of action for setting aside the Huller judgment.
2. Assuming that sufficient facts are stated to warrant the action of the trial court in granting an injunction pendente lite if the corporation whose property is alleged to be in jeopardy was plaintiff, we still have for consideration the question: Does thé complaint state a cause of action for an injunction in favor of these plaintiffs? The suit is brought by seven named stockholders of the Amador Copper and Gold Mining and Milling Company, Limited, for themselves and for 500 other stockholders in that company similarly situated. The purpose of having the sheriff’s sale set aside is to protect property owned by the corporation, and not to subserve any private, personal interests of plaintiffs, as distinguished from the rights common to all other stockholders of the company. An action of this character is one brought in behalf of the corporation itself. (McConnell v. Combination Mining & Milling Co., 30 Mont. 239, 104 Am. St. Rep. 703, 76 Pac. 194.) It is elementary that, before stockholders can go into a court, they must first exhaust their remedy within the corporation itself. If they hold a majority of the stock, they may control the election of the directors (Rev. Codes, sec. 3835), or, if they control two-thirds of the stock, they may remove an objectionable director (section 3838). Because of the power and authority thus lodged in the stockholders, courts of equity refuse to listen to their complaints, unless it appear that the situation of the parties is such that they cannot secure relief from the corporate authorities.
In the first place, this complaint does not even disclose that these named plaintiffs and those for whose benefit the suit was brought are minority stockholders. "We are not informed what amount of the stock these plaintiffs own or control, or what the authorized or issued stock of the corporation is. Therefore the plaintiffs do not show their inability to secure relief within the corporation itself, and for this reason fail to state a cause of action. But, even if they are minority stockholders, they still fail to state a cause of action. It is an elementary rule of law that, before minority stockholders can be heard to prosecute a suit founded on a right of action existing in the corporation itself, they must allege that a demand has been made upon the board of directors or other governing body of the corporation for relief from the grievances of which they complain or for action in conformity with their desires, and that such demand has been met by a refusal, or, in lieu of such demand and refusal, they must show such a state of facts as discloses that the demand, if made, would have been entirely unavailing. The complaint fails to disclose any demand whatever upon the board of directors to prosecute this suit or prevent the threatened injury to the corporation’s property. It is alleged, however, “that your orators have requested the said officers and directors to redeem said property from said liens and judgment and especially from the pretended sale to Curtis Huller, but that the said officers and directors have made no attempt ,to redeem said property and have refused and still refuse to do so,” but this reference is only to the defendants McIntosh and Stoney, president and secretary, respectively, of the defendant corporation, and each a director thereof. We are not informed of the number of directors constituting the board, and it is therefore impossible to say that the acts of the president and secretary are such that relief could not be had from the board itself, and certainly neglect or misconduct on the part of those two officers is not sufficient to relieve the plaintiffs from the necessity of applying to the board of directors for a redress of their grievances or for action in conformity to their wishes. The authorities in support of these propositions are so numerous that reference to the texts where they are cited will suffice. (10 Cyc. 967; 26 Am. & Eng. Ency. of Law, 2d ed., 976; 20 Ency. of Pl. & Pr. 778; 2 Cook on Stock and Stockholders, 3d ed., sec. 701.)
While it is alleged that the officers have refused to redeem the corporation’s property from the pretended sale under the Huller judgment, the complaint fails to allege that the officers or directors have any funds, or the means of obtaining funds, with which to effect such redemption.
The complaint contains the following paragraph: “That since the year 1907 the operation and control of said mine has been in the hands of a board of directors, most of whom were residents of the state of Idaho, and the property has been managed and controlled since that time by said board of directors for their own personal advantage and gain, and in such a manner that the directors or some of them may finally acquire the property herein described, to the great loss and detriment of your orators, and the stockholders represented by them.” Assuming, without deciding, that the words “said mine” refer to all the real property sold at the sheriff’s sale, the paragraph quoted is distinguished by the adroitness with which the pleader approaches facts, which might reflect adversely 'upon the conduct of the board of directors, without stating them. It will not do to say that the directors managed the property for their own personal gain. The facts must be stated upon which such a charge can rest.
Because the complaint does not state any cause of action in favor of these plaintiffs, the trial court erred in directing an injunction to issue, and the order is accordingly reversed.
Reversed.
Mr. Chief Justice Brantly and Mr. Justice Sanner concur.
|
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] |
MR. JUSTICE HOLLOWAY.
The facts in this case are identical with those in Curry, v. McCaffery, this day decided (ante, p. 191), and upon the authority of that ease, the judgment is reversed and the cause is remanded for further proceedings.
Reversed and remanded.
Mr. Chief Justice Brantly and Mr. Justice Sanner concur.
|
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
In 1865, William Wallace and his predecessors in interest located a ranch upon Dunkleberg creek, in Granite and Powell counties, appropriated all of the waters of that creek for irrigation and other useful purposes, and thereafter used all the waters of said creek for such purposes during the irrigation season in every year, until interfered with by defendants. • Many years after Wallace’s appropriation, defendants Noid and Weaver located upon Dunkleberg creek above the ranch of Wallace, and about 1900 Weaver appropriated 200 inches of the waters of Gold creek, conveyed them into the channel of Dunkle berg creek and, by means of ditches tapping that creek, applied them to use upon his ranch. By some arrangement Noid secured an interest in the right which Weaver claimed. In 1906 a controversy arose and Wallace brought an action against Noid and Weaver, which action was numbered 734 on the records of the clerk of the court of Granite county. In that action Wallace alleged that defendants Noid and' Weaver conducted the Gold creek water through a ditch from Gold creek to the top of a divide between Carruthers creek and Dunkleberg creek and on the Dunkleberg creek side of the divide, and there turned the water loose and suffered it to run down the mountain side into Dunkleberg creek, whereby large quantities of earth, rock and other debris were carried down into Dunkleberg creek, polluting the waters of that creek, interfering with the flow of springs which constituted a part of the supply of Dunkleberg creek, and that large quantities of this debris were carried down to Wallace’s ranch and through his ditches over his property. It was further alleged that defendants were taking out of Dunkleberg creek much larger quantities of water than they were turning into the creek from Gold creek. In that action the defendants Noid and Weaver answered jointly, denying all the allegations of plaintiff’s complaint with respect to their wrongful acts, and the defendant Weaver set forth affirmatively the facts relating to his appropriation of the Gold creek water and asked that his right to use the channel of Dunkleberg creek for conveying that water to his ranch be confirmed. The issues being settled and the cause ready for trial, the parties reached an agreement and a stipulation was duly entered into for a consent decree in favor of Wallace and against Noid and Weaver, and that decree was rendered and entered on September 27, 1907. The decree follows the stipulation of the parties and specifically enjoins the defendants in that action from discharging the waters of Gold creek at the top of the divide and permitting them to flow down the mountain side into Dunkleberg creek, and from using, controlling or handling the waters of Gold creek in the manner that the same had theretofore been handled by them, as set forth in plaintiff’s complaint in that action. They were further enjoined from using or handling the water of Gold creek in any manner so as to cause the same to carry down into the channel of Dunkleberg creek any debris whatever or depositing the debris about Dunkleberg creek so that it would find its way into the creek channel or interfere with the springs at its headwaters or along its course. They were also enjoined from taking out of Dunkleberg creek more water than they conducted into it from Gold creek, with a reasonable allowance for loss by seepage and evaporation. The right of defendants to use the channel of Dunkleberg creek through which to flow their Gold creek water was recognized and confirmed, but they were particularly enjoined from using it in the manner in which they had theretofore done; and by a mandatory provision they were required to devise and construct artificial ways and means through which the water should be conducted from the top of the divide into Dunkleberg creek so as to prevent debris from being washed down into Dunkleberg creek. In May, 1910, this action was commenced by Wallace against Noid, Weaver and Goldberg. In his complaint the plaintiff charges that the defendants have violated the decree in cause 734; that they have continued to conduct the waters of Gold creek into Dunkleberg creek channel in the same manner as they did before the decree was entered; that they have failed to devise any means for conducting the water from the top of the divide into Dunkleberg creek, and that they have taken from Dunkleberg creek larger quantities of water than they conducted into it from Gold creek. It is alleged that by reason of these violations of the decree and the wrongful conduct of these defendants, plaintiff has suffered damages through the loss of crops, injury to certain of his crops, and a permanent loss of a portion of the waters of Dunkleberg creek by reason of the destruction of some of the springs at the headwaters of that stream. It is alleged that defendant Weaver violated the provisions of the decree directly, and that he further violated them acting through Goldberg. To this complaint, defendants Noid and Goldberg interposed a joint answer, which is in effect a general denial of the allegations of the complaint; a plea of the bar of the statute of limitations, and an affirmative defense, so called, in which it is alleged that the acts complained of by the plaintiff are the identical acts of which complaint was made in cause 734, and that the decree in that case is an adjudication upon these particular acts. The separate answer of Weaver is to all intents and purposes the same as that of Noid and Goldberg. There is a specific denial in his answer that Weaver used any of the waters of Dunkleberg creek during the season of 1909. Plaintiff demurred to these answers, but the demurrers were overruled and replies were filed. The cause was brought on for trial; the evidence was introduced, and at its conclusion the plaintiff requested the court to charge the jury that the evidence showed without any contradiction that the defendants had discharged the waters of Gold creek into Dunkleberg creek during 1908 and 1909 in the same manner as said waters had been discharged at the time and prior to the entry of the decree in cause 734, and “therefore you are instructed that your verdict in this case must be in favor of plaintiff and against the defendants.” He also requested another instruction relative to the measure of damages based upon the instruction just referred to. These two requests were denied. The trial resulted in a verdict and judgment in favor of defendants, and from that judgment and from an order denying him a new trial, the plaintiff has appealed.
1. It is argued that the court erred in refusing to give plaintiff’s requested instructions 2 and 3. It is urged that the evidence shows without any substantial contradiction that the defendants had not made any material change in the method of conducting the Gold creek water into Dunkleberg creek after the decree in No. 734 was entered; but we are unable to agree with this broad statement. There is evidence that they constructed certain ditches at the foot of the divide which caught up the waters as they came down the mountain side, and conducted them into Dunkleberg creek on grade. The evidence is not very clear as to the efficacy of this means of preventing the injury described in plaintiff’s complaint in cause 734; but the court was justified in its refusal to give these instructions for another reason. Counsel insist that for the violation of the decree in cause 734, plaintiff is entitled to a judgment for nominal damages at least, and certain authorities are cited, but they do not bear out counsel’s contention. Each is a case of trespass upon real property — strictly speaking — and it is elementary that in such a case the plaintiff whose property is trespassed upon has a right of action for nominal damages at least. But counsel overlook the peculiar character of plaintiff’s property in Dunkleberg creek. However secure he may be in his right to the use of the waters of that creek, he does not own the waters and he does not own the channel of the creek. He has merely the right to their use when their use is needed; when the use is not needed, his rights are not superior to those of anyone else. So that the bare violation of the decree in 734 does not of itself give the plaintiff a right of action. The statute provides a means for punishing the defendants for their contempt. . In Dillon v. Great Northern Ry. Co., 38 Mont. 485, 100 Pac. 960, we analyzed a cause of action for legal wrong and said: “ To constitute a cause of action for tort, then, the plaintiff’s right must have been infringed by the wrongful act of the defendant, with the result that plaintiff suffered damages.” While the mere violation of the decree might constitute a sufficient showing in a contempt proceeding, it is not sufficient to constitute a cause of action in favor of plaintiff, even for nominal damages.
2. The so-called affirmative defense in each answer is nothing more than a denial in affirmative form. To strike it would simplify the pleadings, but reversible error cannot be predicated upon the trial court’s refusal to do so.
3. Because, of errors committed upon the trial of the cause a reversal of this judgment must follow. We shall therefore not discuss the question of the sufficiency of the evidence. The plaintiff complained that debris was carried down through the channel of Dunkleberg creek and through his irrigating ditches over his meadow land, by reason whereof his hay crop was greatly injured, and that this resulted from the acts of defendants in handling the waters of Gold creek in the manner in which it is alleged they were handled. Upon the trial he offered evidence tending to show that silt was deposited over his meadow land and that his hay, when it was cut, was dusty, dirty and greatly depreciated in value. The defendants, over objection of plaintiff, offered evidence that this condition did not prevail upon Goldberg’s ranch, which is situated above the Wallace ranch. Witnesses testified that there was no deposit left on Goldberg’s ranch after irrigation; that there was no dust or dirt upon his hay and that his hay crop was of first-class quality. The error in the. admission of this evidence is apparent. There was not any attempt made to show that the conditions at the Goldberg and Wallace ranches were similar. It is conceded by counsel for appellant that if conditions were shown to be similar, this evidence would have been competent as tending to disprove the plaintiff’s contention. But in the absence of any showing that the conditions were similar, the evidence is not only of no probative force, but likely to mislead the jury into the belief that Wallace’s contention cannot be true because the same result was not found on.the Goldberg ranch. To make the evidence competent it was incumbent upon the defendants to show that the conditions were similar.
4. Upon the trial the court gave an instruction numbered 2, as follows: “You are instructed that if you believe from the preponderance of the testimony that the defendants have within the periods of time alleged in plaintiff’s complaint violated the terms and provisions of such decree in saidi suit No. 734 in any, either, or all of the respects set out in plaintiff’s complaint, that for such violations you should award to the plaintiff damages against the defendants, such damages not to exceed the sum of five thousand dollars, the amount demanded in plaintiff’s complaint.” That the jury disregarded this instruction and returned a verdict directly contrary to its provisions, there cannot be any doubt. The evidence offered by the defendants discloses that they did not provide any artificial ways or means for conducting the Gold cr.eek waters from the top of the divide' down the mountain side into Dunkleberg .creek, as they were enjoined to do in the decree in cause 734. This failure upon their part is charged in plaintiff’s complaint, and instruction 2 above specifically directs the jury that if they found from the evidence that the defendants failed in that regard, their verdict should be for the plaintiff. That they did fail is disclosed by their own evidence and that of every other witness who testified with regard to the situation at that point. There was no controversy over it whatever, and the verdict of the jury could not have been for the defendants. Counsel for respondents find fault with instruction No. 2 given, and we are now asked to say that the rule heretofore adopted in this state should be changed and, unless an instruction correctly states the law, the jury should not be bound by it. In Murray v. Heinze, 17 Mont. 353, 42 Pac. 1057, this court, speaking through Chief Justice Pemberton, said: “It needs no authority, then, to say that the jury is bound to take the law from the court. * * * And, when the law is announced by the court, it is the law of the case, until overruled by a higher authority. It follows, then, that a verdict in direct conflict with the law of the court is a verdict against the law. * * * So far as the jury is concerned, there is no such thing as the charge of the judge being contrary to law, because, whatever may be his charge, it is the law to them. * * * It matters not if the instruction disobeyed be itself erroneous in point of law. It is nevertheless binding upon the jury, who can no more be permitted to look beyond the instruction of the court to ascertain the law than they would be allowed to go outside of the evidence to find the facts of the case. * * * If the contention of appellant is correct, the time of this court in hearing future appeals will be devoted to determining whether the court or the jury were right in their views of the law in the trial of the cause in the lower court. Authority or no authority, we cannot give our sanction to a practice that would lead to such results. Such a course would ultimately result in overturning our system of keeping separate and distinct the powers and duties of courts and juries, confining each to its own proper province, in the degradation of the courts, and confusion and chaos in the administration of the law. Such calamities are much more to be deplored than the inconvenience and costs of a new trial in cases where juries usurp the powers of the court.” The decision in that ease has been followed ever since. (State v. Dickinson, 21 Mont. 595, 55 Pac. 539; King v. Lincoln, 26 Mont. 157, 66 Pac. 836; McAllister v. Rocky Fork Coal Co., 31 Mont. 359, 78 Pac. 595; State v. Radmilovich, 40 Mont. 93, 105 Pac. 91; Bliss v. Wolcott, 40 Mont. 491, 135 Am. St. Rep. 636, 107 Pac. 423; Allen v. Bear Creek Coal Co., 43 Mont. 269, 115 Pac. 673; Lynes v. Northern Pac. Ry. Co., 43 Mont. 317, Ann. Cas. 1912C, 183, 117 Pac. 81; Mason v. Northern Pac. Ry. Co., 45 Mont. 474, 124 Pac. 271; Gleason v. Missouri River P. Co., 46 Mont. 395, 128 Pac. 586.) Any other rule than that announced above would confer upon the jurors in every instance the authority to determine the law of the case as well as the facts; and we are not prepared to go to that extreme limit, even for the sake of preventing the reversal of a judgment.
5. In any event, counsel for respondent contend that there was no liability on the part of the defendant Weaver. We do not agree with this, as a matter of fact. But even if their contention be correct, they would be precluded from making the assertion in this case, because of the fact that without any objection on their part they suffered the trial court to give instruction No. 3, as follows: “You are instructed that if you believe from a preponderance of the evidence, that there were violations of the provisions of the decree set out in plaintiff’s complaint, between the periods of time mentioned therein by the defendant Goldberg after he went into possession and control of what is known as the Goldberg lands, and into possession and control of what is known as the Gold .Creek Ditch and waters flowing therein, that the defendant Goldberg and the defendant Weaver are jointly liable and responsible to answer for any damages to the plaintiff therefor.” By their failure to object to this instruction in the court below the defendants — including defendant Weaver — consented to the rule of liability which it announces and will not be heard in this court to urge a theory in conflict with it. (Cohen v. Clark, 44 Mont. 151, 119 Pac. 775.)
6. The contention of defendants that they took from Dunkleberg creek no more water than they conducted into it from Gold creek, with ample allowance for loss by seepage, evaporation, etc., is founded, in part at least, upon a method of dividing the water for which defendants cannot possibly find any justification in law. Plaintiff, as the prior appropriator of all the waters of Dunldeberg creek, was entitled to the maximum flow of that stream when needed and could not be limited to the average flow — a result brought about by defendant’s method of dividing the waters.
7. Contending that if plaintiff was entitled to recover at all, he was entitled only to nominal damages, counsel for respondents in their brief say: ‘ ‘ The rule is well settled that after verdict of a jury, and the refusal of the trial court to grant a new trial, the judgment will not be reversed for a failure to find nominal damages.” To this there are two objections: (1) While the statement is correct in part, it is not a correct statement of the rule. The rule is: “A judgment for defendant will not be reversed and a new trial granted merely to enable appellant to recover nominal damages.” (3 Cyc. 446; McCauley v. McKeig, 8 Mont. 389, 21 Pac. 22, 16 Morr. Min. Rep. 1; McAllister v. Clement, 75 Cal. 182, 16 Pac. 775; Johnson v. Cook, 24 Wash. 474, 64 Pac. 729.) (2) The rule, when correctly stated, is not of universal application. “But a failure to award nominal damages is reversible error where plaintiff is substantially prejudiced thereby — as where the judgment carries costs.” (3 Cyc. 447, and cases cited.) This record does not show that plaintiff is entitled to nominal damages only. According to his theory and the testimony offered by him, he is entitled to substantial damages. The record does disclose that if the judgment in favor of defendants is allowed to stand, plaintiff will be compelled to pay them $105 awarded them as costs. . .
Because of errors in the admission of evidence, and because of the fact that the verdict is contrary to the law, the judgment and order are reversed and the cause is remanded for a new trial.
Reversed and remanded.
Mr. Chief Justice Brantly and Mr. Justice Sanner concur.
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] |
PER CURIAM.
It is ordered that the appeal from the judgment herein be, and the same is hereby, dismissed in accordance with stipulation of counsel on file.
|
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PER CURIAM.
It is ordered that the appeal in the above-entitled cause be, and the same is hereby, dismissed in accordance with motion of counsel for appellants.
|
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] |
MR. JUSTICE SANNER
delivered the opinion of the court.
On March 21, 1911, the respondent, A. J. Hulse, with others, was riding on one of appellant company’s freight trains en route from Missoula to Helena without paying fare. When the train had reached a point about half a mile west of Helena he was in some manner cast bepeath its wheels and run over, sustaining the injury which is the basis of this action. The issue of fact was whether he had been pushed off by the brakeman while the train was in motion. The case was tried to the district court sitting with a jury, and the verdict was for the appellant. On motion of respondent the verdict was set aside and a new trial awarded; hence this appeal.
The motion for new trial was submitted to the district court upon the ground of errors of law occurring at the trial. If it appear that any such errors of a substantial character were committed, the order must be affirmed. (Monson v. La France Copper Co., 43 Mont. 65, 114 Pac. 778; Harrington v. Butte etc. Ry. Co., 36 Mont. 478, 93 Pac. 640; Gillies v. Clarke Fork Coal Co., 32 Mont. 320, 80 Pac. 370; State v. Schnepel, 23 Mont. 523, 59 Pac. 927.)
The exceptions noted in the record challenge the propriety of the rulings below in two respects: (1) The exclusion from respondent’s case in chief of certain declarations by him, to the effect that the brakeman had pushed him off; and (2) the exclusion of substantially the same evidence in rebuttal.
1. The declarations were self-serving, and the theory on which it was sought to have them admitted in chief is that they were part of the res gestae. To this we cannot assent. Without elaboration, it will suffice to say that the declarations in question were merely statements or narratives of a past trans action and within the rule against hearsay. (State v. De Hart, 38 Mont. 211, 99 Pac. 438; Poindexter & Orr L. St. Co. v. Oregon Short Line Ry. Co., 33 Mont. 338, 83 Pac. 886; State v. Tighe, 27 Mont. 327, 71 Pac. 3; State v. Pugh, 16 Mont. 343, 40 Pac. 861.) The order granting a new trial cannot be sustained for error in this regard.
2. In rebuttal it was sought to prove by the witnesses Matheny, Grotz and Ward that respondent said a brakeman had pushed him off. As to Matheny, the evidence was properly refused, since the declaration to be elicited from him was fixed at a time and place for which there was no foundation in the appellant’s case. As to Grotz and Ward, the condition is different. For the appellant the witnesses Porter, Gardiner and Wilson had testified to the effect that, after respondent had been taken to the baggage-room, some conversation occurred in which the respondent stated in effect that, as the train was coming into town and as he was getting out of the car, some one of his companions in the car pushed him and he fell. On cross-examination Porter further testified that the respondent did not say a brakeman pushed him off; and Gardiner .and Wilson testified that the respondent did not say who pushed him. We are satisfied that there was but one conversation in the baggage-room. The testimony of Grotz and Ward, therefore, was admissible as part of that conversation (Rev. Codes, sec. 7871; 1 Ency. of Evidence, p. 385), and as a contradictory version of it. (Fidelity & Casualty Co. v. Dorough, 107 Fed. 389, 46 C. C. A. 364; Carver v. United States, 164 U. S. 694, 41 L. Ed. 602; 17 Sup. Ct. Rep. 228; O’Keefe v. Eighth Ave. R. Co., 33 App. Div. 324, 53 N. Y. Supp. 940; St. Louis etc. Co. v. Frazier (Tex. Civ. App.), 87 S. W. 400.) The way for it having been opened in appellant’s case, its admissibility in rebuttal was not affected by the fact that the declaration was self-serving.
The trial court was in better position to appreciate the value of this testimony than we are. In view of what appears in the record, it does not seem to have been of very much importance; but its exclusion was error, and we cannot say that the trial court was guilty of a graver error in the effort to correct it.
The order appealed from is affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
|
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] |
MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
This action was brought to foreclose a statutory lien for a balance alleged to be due to plaintiff for services rendered'by him under a contract, by the terms of which he agreed to clear certain lands, situated in Ravalli county, belonging to defendant at a stipulated price of $25 per acre. Subsequent to the making of the original contract, its terms were, by mutual consent of the parties, extended so as to include other lands. The complaint alleges “that on the twentieth day of April, 1910, plaintiff entered upon the performance of said contract, and the defendant actually completed all of the work and labor to be by •him performed under said contract and did all of the things in said contract of him required to be done; that by reason of said work and labor performed defendant became indebted to said plaintiff for the clearing of eighty-eight acres at $25 per acre, making g total sum of $2,200, of which said amount defendant paid to the plaintiff $949, leaving a balance due- and owing and unpaid of $1,251, no part of which has been paid.” It then alleges the filing of the notice of lien with the clerk and recorder of the county within ninety days after completion of the work, as required by section 7291, Revised Codes. A copy of the notice of lien is attached to the complaint as an exhibit. The issue tried was whether the work had been performed by the plaintiff in accordance with the terms of the contract and had been so accepted by the defendant. The court found for the plaintiff, and that there was due him a balance of $651. It rendered a decree declaring this amount to be a lien on defendant’s lands, and ordered them to be sold to satisfy it. The appeal is from the decree.
It is contended that the complaint does not state facts sufficient to constitute a cause of action, in that it alleges “the defendant actually completed all of the work,” etc. This contention is without merit. It is apparent that the pleader, in drawing the complaint, inadvertently substituted the term “defendant” where he intended to use the term “plaintiff.” At most, this substitution of terms served only to render the pleading open to objection by special demurrer on the ground of uncertainty. Such a defect is waived by answer to the merits. (Eadie v. Eadie, 44 Mont. 391, 120 Pac. 239; Rev. Codes, sec. 6539.)
It is also argued that the complaint does not allege the performance of the contract on the part of plaintiff in terms sufficiently direct and certain. If the pleading be construed according to its purport as indicated above, it can mean nothing less than that the plaintiff fully performed all the conditions of the contract to be by him performed. This meets the requirement of the statute. (Rev. Codes, sec. 6572.)
The last contention is that the decree does not conform to the allegations of the complaint, and hence that the relief granted is not warranted by it. When we come to compare the description of the lands in question, as set out in the complaint, with that contained in the notice of lien and also with that found in the decree, we find it wholly inconsistent with them, not only with reference to the section subdivisions, but also with reference to their situation in the section, township, and range. In the complaint they are described as situated in sections 14 and 28, in township 5 north, range 21 west. In the notice they are described as situated in sections 14, 27, and 28, in the same township and range. In the decree we find two descriptions. It is first recited that the plaintiff filed with the clerk and recorder his notice of lien upon certain lands described therein. These are described as situated in part in section 14, township 3 north, range 21 west, and the rest as situated in sections 27 and 28, township 5 north, range 21 west. Later those described as subject to the lien are referred to as situated in the same townships and ranges, but the subdivisions of the sections mentioned are different. Besides, when the section subdivisions mentioned in the several descriptions are compared, no two of the descriptions are consistent. Such is the confusion and uncertainty in the record in this respect that it is impossible for us to ascertain whether any of the lands described are subject to the lien. The statute requires the description to be such as to identify the property sought to be affected by the lien. (Rev. Codes, sec. 7291.) This is a prerequisite to the validity of the lien; for, in order to perfect the claim, all the different requirements of the statute must be substantially complied with. (Yerrick v. Higgins, 22 Mont. 502, 57 Pac. 95; McGlauflin v. Wormser, 28 Mont. 177, 72 Pac. 428.)
Under the findings the plaintiff is entitled to a personal judgment against defendant for the amount found due, in any event. Whether he is also entitled to a lien must, under the circumstances, be determined by the district court, after the plaintiff has been afforded the opportunity, if this can be done, to amend the complaint so as to make the description therein agree with the description in the notice of lien.
The cause is therefore remanded to the district court, with' directions to set aside the decree, and, upon further proceedings not inconsistent with the suggestions herein, to ascertain what portion of the lands, if any, are sufficiently described in the notice to identify them. That court will then enter a decree declaring the balance found due plaintiff a lien thereon. If, upon such further proceedings, the description contained in the notice is found insufficient to identify any portion of the lands, the court will render and enter a personal judgment against the defendant for the amount found due, with costs.
Remanded, with directions.
Mr. Justice Holloway and Mr. Justice Sanner concur.
|
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] |
MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
The plaintiff heretofore brought an action in the district court of Chouteau county to recover upon the same cause of action alleged in the complaint herein. The court sustained a general demurrer to the complaint, and rendered judgment for the defendant for his costs. On appeal to this court this judgment was reversed. (Raiche v. Morrison, 37 Mont. 244, 95 Pac. 1061.) When the cause was remanded to the district court, the plaintiff dismissed it and brought a second action in the district court of Cascade county, where the defendant now resides. The defendant having filed his answer, a trial was had which resulted in a verdict and judgment for the plaintiff. The defendant has appealed from the judgment and an order denying his motion for a new trial. The complaint is substantially a copy of that considered on the former appeal. A statement of the allegations constituting plaintiff’s cause of action will be found in the opinion thereon delivered. They need not be restated here.
In his answer the defendant denied that the contract to repurchase the stock was executed and delivered to plaintiff in consideration of the sale to him of the stock and as an inducement to the purchase as alleged in the complaint, or upon any consideration, or that plaintiff had suffered any damage by reason of defendant’s failure to comply with the terms thereof. II* admitted all the other allegations in the complaint. The contention is now made that the evidence is insufficient to justify the verdict. On the former appeal the contract here in question was classed as an option contract, or an option, and we think this characterized it correctly. Under the rule applicable to such •contracts, when the option to buy or sell is based upon a consideration moving to the promisor, the promisee has the exclusive right to sell or buy during the time specified in the contract. He may or may not exercise his option, yet the contract is binding upon the promisor. If not based upon a consideration, it may be withdrawn at the will of the promisor; nevertheless it is a standing offer which may be accepted by the promisee at any time during its-life, and thus become a contract binding upon both parties. (Ide v. Leiser, 10 Mont. 5, 24 Am. St. Rep. 17, 24 Pac. 695, and eases cited.) If we regard defendant’s promise either as based upon a consideration — that is, made as an inducement to the plaintiff to purchase the stock — or as a continuing offer to repurchase made without any consideration, it became binding upon him when the plaintiff, at the date at which the option was to expire, accepted it and tendered the stock. The rule thus stated was distinctly recognized in the decision upon the former appeal holding the complaint sufficient, as is made clear by the authorities cited, though, perhaps, more importance was attached to the question of consideration than the allegations in the pleading required.
This brief statement, by way of preliminary, of our view of the rule of law applicable, clears the way for the determination of the contentions made by counsel for defendant. He insists that the evidence is insufficient to sustain the verdict, (1) in that it does not show that there was any consideration for the option; and (2) in that it fails to show that plaintiff suffered any damage. At the commencement of the trial, after a colloquy between the court and counsel, it was determined that, in view of the admissions in the answer, the burden of proof was upon the defendant to show want of consideration. Thereupon counsel for defendant introduced his evidence, which consisted of the testimony of the defendant himself, in connection with the option contract and a receipt for the purchase price of the stock, introduced as exhibits. While he testified that the option was not given until two or three days after the sale and was the result of subsequent negotiations wholly disconnected with the sale, it appears that the receipt and option both bear the same date, viz., September 18, 1903, the day upon which the sale was made. This fact he did not undertake to explain. His testimony was in several respects self-contradictory and confused. The plain tiff, who resides in the state of Wisconsin, was not present, and his testimony was not introduced. His counsel, called in rebuttal, testified that he notified the defendant of the plaintiff’s acceptance of the option, and that in an interview had with him a short time afterward the defendant admitted that, in order to induce the plaintiff to buy the stock and as a part of the consideration for the purchase, he had agreed to repurchase it at the end of three years at the price named in the option, and that at that time he intended to make his promise good, but had not done so because he had not been retained as manager of the corporation, the capacity in which he was acting at that time, as he then expected. Under these circumstances, we do not think that we ought to say that the jury arbitrarily disregarded the defendant’s testimony as unworthy of credit, or that the court erred in accepting their conclusion in overruling the motion for a new trial. (Whalen v. Harrison, 26 Mont. 316, 67 Pac. 934; State v. Willette, 46 Mont. 326, 127 Pac. 1013.)
In considering this feature of the case, we have proceeded upon the assumption that the question of consideration was a material issue, requiring the introduction of evidence and a finding by the jury thereon. Under the allegations made in the complaint which were admitted in the answer, this was not necessary. It is admitted that the option was given by the defendant, and that it was accepted at the expiration of the time limit named, with a tender of the stock by the plaintiff which was refused by the defendant. It is apparent, therefore, that plaintiff would have been entitled to a judgment on the pleadings for nominal damages; for proof of the breach of a contract is proof of a wrong for which the injured party is entitled to recover nominal damages. (13 Cyc. 17.)
No evidence was introduced by either party as to the value of the stock at the time the plaintiff accepted the option, or at any time before or after that time, other than a statement made by the defendant when counsel for plaintiff tendered him the stock and demanded payment of the purchase price. The latter testified that the defendant, upon refusing to accept it, said; “Yo.u can just as well keep it because it is worthless. It makes no difference who keeps it, whether I have to pay for it or not. ’ ’ Viewing this as an admission against interest, it was some evidence tending to show that the stock was valueless. We shall not stop to consider whether it would have sustained a finding of the jury that the stock had no value. The court and counsel both proceeded upon the theory that, if the question of consideration should be resolved in favor of the plaintiff, he would be entitled to recover the full amount of the price fixed in the option, viz., $1,720. In other words, court and counsel proceeded upon the assumption that the stock was valueless, and that plaintiff, if entitled to recover at all, should recover the option price. Accordingly, the court instructed the jury, in substance, without objection by counsel for defendant, that if at the time of the purchase of the stock by plaintiff, and as a part of the transaction and as an inducement to lead the plaintiff to make the purchase, the defendant made the agreement contained in the option to repurchase within three years at the price of $1,720, they should return a verdict for this amount in favor of the plaintiff. Let it be conceded that this theory of the case was wholly erroneous; nevertheless, counsel having accepted and acted upon it and permitted the court to do so without objection, he cannot now complain that his client has suffered prejudice. A party cannot be permitted to assume in this court a position different from that assumed in the trial court in order to predicate error upon any action of that court during the course of a trial to which he did not make timely objection in that court. (Childs v. Ptomey, 17 Mont. 502, 43 Pac. 714; Newell v. Nicholson, 17 Mont. 389, 43 Pac. 180; Maul v. Schultz, 19 Mont. 335, 48 Pac. 626; Durfee v. Harper, 22 Mont. 354, 56 Pac. 582; Hendrickson v. Wallace, 29 Mont. 504, 75 Pac. 355; Dempster v. Oregon S. L. Ry. Co., 37 Mont. 335, 96 Pac. 717.)
Counsel has devoted much space in his brief to a discussion of the measure of damages which he insists the court should have given to the jury. We agree, with him that the rule prescribed by section 6081 of the Revised Codes, applied in Welch v. Nichols, 41 Mont. 435, 110 Pac. 89, should have been followed in this case; but for the reason already stated we do not think counsel is now in position to allege prejudice because the court failed to do so.
The judgment and order are affirmed.
Affirmed.
Mr. Justice Holloway and Mr. Justice Sanner concur.
|
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
On March 26, 1909, David Fratt and wife entered into a contract in writing with the Daniels-Jones Company, a corporation, by which they sold and agreed to convey to the company Sec. 7, Tp. 4 N. R. 25 E., for $6,370, payable $637 in cash and the balance in ten equal annual installments, with interest at the rate of six per cent per annum, payable annually. The vendee was to have possession on May 15, 1909, and was to pay all taxes upon the land after the year 1909. The contract contains this provision: “It is hereby expressly understood and agreed that time is of the essence of this contract and if the party of the second part fails to pay any deferred installment, with interest thereon, or any portion thereof, when the same becomes due and payable, such failure shall work an immediate forfeiture of this contract, without any notice whatever, and the money paid on this contract shall be retained by the parties of the first part as liquidated damages.” In 1911 this suit was instituted. The complaint states two causes of action. The first contains the usual allegations in an ordinary suit to quiet title; and the second sets forth the facts concerning the execution of the contract, copies the agreement at length, alleges that the defendant Daniels-Jones Company entered into some kind of an agreement to sell the property to the defendant Luke, that the defendant Daniels-Jones Company failed to pay the installment of the purchase price and interest due March 26, 1910, and failed to pay the taxes for that year; that plaintiffs notified the company soon after March 26, 1910, and took possession of the property. There are certain allegations of the complaint and certain portions of the prayer which relate to the defendant Luke alone, and further reference to which is omitted. The prayer is that the defendants be required to set forth the nature of their claim for adjudication; that plaintiffs’ title be quieted; that the contract of March 26, 1909, be canceled, and that the defendants be enjoined from asserting any interest or claim to the property by reason of such contract. The answer of defendant Daniels-Jones Company contains some general admissions and denials, and then' sets forth affirmatively, and at length, the facts concerning the execution of the contract of March 26, 1909; alleges that the company took possession of the land in controversy on May 15, 1909, and thereafter continued in such possession; that it paid plaintiff $637 upon the execution of the contract; that it did not pay the installment due March 26, 1910, because the company’s officers were engrossed with other business, and overlooked the fact that a payment was then due; that while it did not pay the taxes for the year 1910, it intended to pay them before they became delinquent if the plaintiffs had not paid them; that on July 22, 1910, it received from the plaintiffs notice, signed by the plaintiff David Fratt, which after referring to the contract of March 26, 1909, continued: “You have forfeited your part of the contract by failing to pay the deferred payment that came due March 26th, 1910 ’ ’; that immediately thereafter it tendered to the plaintiffs the amount due with interest but the tender was refused; that again in March, 1911, it made another tender of the amount then due and this was also refused; that plaintiffs have never repaid the ,$637 paid on the purchase price at the time the contract was executed, or any part thereof; that the land has increased in value, and that the company is now ready, able and willing to pay the amount which may be found due by the court. The reply does not raise any material issues. Plaintiffs moved the court for judgment on these pleadings, and this motion was granted and a decree rendered and entered according to the prayer of the complaint. It is from that judgment that the defendant Daniels-Jones Company appealed.
1. Counsel for appellant contend that the complaint does not state facts sufficient to constitute a cause of action for the rescission of a contract, and cite section 5065, Revised Codes, and authorities applying the rules there announced, but they misapprehend the character of this suit. Plaintiffs are not seeking to rescind the contract; they are relying upon it and upon the provision for its own termination automatically upon the failure of appellant to meet the requirements imposed, and are now asking the court to decree that the contingency has arisen which by the terms of the contract render it of no further force or effect. They ask, further, that the contract, as a menace to their title, be canceled. The purpose of such an action is so far distinct from that of one to rescind a contract that the rules governing rescission do not have any application here. The question is not a new one in this state. It has been considered a number of times. (Clark v. American D. & M. Co., 28 Mont. 468, 72 Pac. 978; Merk v. Bowery Min. Co., 31 Mont. 298, 78 Pac. 519; Arnold v. Fraser, 43 Mont. 540, 117 Pac. 1064; Cook-Reynolds Co. v. Chipman, ante, p. 289, 133 Pac. 694.)
2. Counsel for appellant contend also: “That.this action seeks to enforce a forfeiture which is against the law and against public policy: 1. As to liquidated damages. 2. As to time of essence of contract. 3. As to necessity of giving notice.” But again they are mistaken as to the character or purpose of this action. Plaintiffs are not asking the court to declare the payment of $637 forfeited to them, and the judgment entered does not make any disposition of that sum or mention it at all. The language of the contract quoted, above, in which the word “forfeiture” appears, does not mean anything more than that upon, the failure of this appellant to keep and perform the terms of the contract by it to be kept and performed, and within the time limited, the contract thereupon terminates.
(a) It is said that in so far as the contract provides for liquidated damages it is void and of no effect under section 5054, Revised Codes. This may be conceded, but still it does not avail the appellant, for, as said before,- there is not any contention by plaintiffs that the amount paid to them shall be forfeited, and neither is there any adjudication upon the subject. But in any event, in the absence of a showing on the part of the defaulting purchaser such as would appeal to the conscience of a court of equity, he is not entitled to a return of the part payment of the purchase price even though he asked for it, and that was not done in this instance. (Perkins v. Allnut, 47 Mont. 13, 130 Pac. 1; Clifton v. Willson, ante, p. 305, 132 Pac. 424; Cook-Reynolds Co. v. Chipman, above.)
(b) That neither the provision “time is of the essence of this contract” in a contract, nor the contract containing such a provision, is invalid as against positive law or public policy is too well settled to merit serious consideration. At common law such a provision was read into every contract, but in equity the rule was that it must appear affirmatively that the parties regarded time as of the essence of their agreement or courts of equity would not so regard it. (2 Page on Contracts, secs. 1160, 1161.) To set the question at rest and to avoid giving expression to an intention which the parties may not have entertained, our Code (section 5047, Rev. Codes) declares: “Time is never considered as of the essence of a contract, unless by its terms expressly so provided.” This is a distinct recognition of the right of parties to a contract to include such a provision, and when it is included, as in the present instance, it is the duty of courts to carry out the intention of the parties by giving effect to that provision; for to ignore or circumvent it when deliberately written into a contract by the parties, or by any sort of construction to nullify its effects is to make a new contract for the parties, different from the one which they themselves constructed — something even a court of equity is not authorized to do. This is the rule declared by the supreme court of the United States in Cheney v. Libby, 134 U. S. 68, 33 L. Ed. 818, 10 Sup. Ct. Rep. 498, which was a suit in equity to compel specific performance of a contract to convey land. The court said: “The parties in this case, in words too distinct to leave room for construction, not only specify the time when each condition is to be performed, but declare that ‘time and punctuality are material and essential ingredients’ in the contract; and that it must be ‘strictly and literally’ executed. However harsh or exacting its terms may be, as to the appellee, they do not contravene public policy; and, therefore, a refusal of the court to give effect to them, according to the real intention of the parties, is to make a contract for them which they have not chosen to make for themselves. ’ ’'
In 1 Pomeroy’s Equity Jurisprudence, third edition, section 455, the same rule is stated as follows: “It is well settled that where the parties have so stipulated as to make the time of payment of the essence of the contract, within the view of equity as well as of the law, a court of equity cannot relieve a vendee who has made default. With respect to this rule there is no doubt.’’’ The phrase “time is of the essence of this contract” is employed for the benefit of the vendor (Dana v. St. Paul Investment Co., 42 Minn. 194, 44 N. W. 55), aind, being for his special benefit, he may waive the provision or by his conduct estop himself to insist upon its enforcement. In Cue v. Johnson, 73 Kan. 558, 85 Pac. 598, it was held that the failure to insist upon the enforcement of the provision when appealed to for further time and by tacitly extending the time for performance as requested by the vendee, the vendor waived his right to insist upon the enforcement of the clause which made time of the essence of the agreement. In Robinson v. Cheney, 17 Neb. 673, 24 N. W. 378, there was involved a contract for the sale of real estate upon installments. Notes were executed for the deferred payments and these were made payable at a particular bank. When the notes maturing August 27, 1883, became due, the vendor failed to have them at the bank, and the court held that by this failure on his part, the vendor waived his right to insist upon payment on that particular day as provided in the contract. In Cheney v. Libby, above, a court of equity intervened to save the purchaser who had not complied literally with the terms imposed upon him by his contract, but only upon the ground that by his course of conduct the vendor had misled him into the belief that a strict or literal compliance would not be insisted upon, with the result that it would have been unconscionable to have permitted the vendor to profit at the vendee’s expense. Probably the supreme court of Pennsylvania went further than it is necessary for us to go in this instance, when, in Miller v. Phillips, 31 Pa. 218, it is said: “Where the parties choose by clear and explicit terms to make time of the essence of the contract, performance to be entitled to compensation must be within it, and nothing but the act of God, rendering compliance physically impossible, will excuse a failure.” These eases are cited to show that courts will not undertake to make contracts for parties, different from those which the parties themselves intended, but that they will enforce a provision making time of the essence of a contract, unless the party for whose benefit it was inserted has waived the provision or is estopped to insist upon its enforcement, or performance has been prevented by some intervening circumstances sufficient to relieve the party from the performance of any other provision of the contract.
(e) Proceeding upon the assumption that this is a suit to rescind, counsel for appellant complain that plaintiffs failed to notify appellant that the payment of March 26 would be due upon that day, and that strict compliance with the terms of the contract would be insisted upon. There is not anything in the contract to impose any such duty upon the vendors, and, as we have already determined that this is not a suit to rescind, nothing further need be said upon this subject.
Counsel for appellant further contend that plaintiffs were guilty of laches in failing to take action until July 22 after the default of March 26, and eases are cited which hold that the failure of the vendor to act for two or three months after a payment becomes due will be held to constitute a waiver. But counsel fail to discriminate between a contract like the one now under consideration, by the very terms of which the failure to pay an installment when due ipso facto ends the contract, and one which provides that upon the failure of the vendee to make payment on time, the vendor shall have the right to declare the agreement at an end, time being expressly made of the essence of each contract. Recalling that this last provision is for the benefit of the vendor, the difference in the two classes of contracts becomes manifest at once. Under an agreement of the first class the breach by the vendee terminates the contract unless the vendor elects to waive the time provision and continue the agreement in force. Under such a contract notice is not required unless the vendor elects to continue it in force. Under a contract of the second class the breach by the vendee does not ipso facto terminate the agreement. It merely creates the condition under which the vendor may terminate it if he elects to avail himself of the power conferred; but an election is necessary on his part to the termination of the agreement, and notice of some sort of such election is necessary to make it effective. (Gaughen v. Kerr, 99 Iowa, 214, 68 N. W. 694; Pier v. Lee, 14 S. D. 600, 86 N. W. 642.) Since the contract under consideration was terminated by the default of the Daniels-Jones Company, notice was not necessary, and fault cannot be found.with the plaintiffs for their delay in giving a notice which they were not required to give.
Our attention is directed to section 6039, Revised Codes, which provides for relief from a forfeiture or loss in the nature of a forfeiture. Whatever may be the correct interpretation of the language of that section, this much is apparent: the very minimum requirement is that the party invoking the protection afforded by that section must set forth facts which will appeal to the conscience of a court of equity. “ 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.” (Cook-Reynolds Co. v. Chipman, above.) In the present instance the only excuse offered by the Daniels-Jones Company for its default is that its officers-, being engrossed with other business, forgot that a payment was due March 26, 1910. Apparently they continued to forget for the ensuing four months. It appears affirmatively that the defendants had possession of the land for. more than a year. There was but $637 paid on the purchase price. The value of the use of the premises does not appear; and even conceding that these are proper subjects of consideration in a case of this character — and upon that we do not express any opinion at all — yet, when all is said by appellant that can be said in its behalf, it failed to make any excuse or to disclose wherein the conscience will be shocked by permitting the plaintiffs to take advantage of the term in the contract which made time of its essence. If the facts disclosed here will excuse, then the provision so carefully inserted in this contract to compel performance at the precise time indicated becomes a dead letter. If these facts are sufficient to relieve a defaulting party, then any sort of excuse is sufficient. But, as we have indicated above, when parties deliberately make time of the essence of their agreement, the obligor must expect that the provision will be .given full force and effect, unless the party for whose benefit it was inserted waives the provision or by a course of conduct estops himself to insist on its enforcement, or the obligor is prevented from performing by circumstances which would be sufficient to relieve him from the performance of the most important provision of the contract.
The answer interposed does not constitute any defense, and the judgment of the district court is affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Sanner concur.
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MR. JUSTICE SANNER
delivered the opinion of the court.
At about 6:12 P. M., on July 28, 1910, the respondent, while driving a Ford runabout, was struck on a public road crossing between Butte and Anaconda by one of appellant company’s trains. His companion was instantly killed and he seriously injured. To recover for such injuries he brought this action, alleging as negligence on the part of appellants that they were running the train at excessive speed and that they failed to blow the whistle, ring the bell or give any alarm of its approach. Eespondent had a verdict for $15,000, upon which judgment was entered. This appeal is from that judgment and from an order overruling a motion for new trial.
1. It is claimed that the evidence of appellants’ failure to sound the whistle or ring the bell was insufficient to take the case to the jury, and that in the face of positive testimony that the whistle was sounded and the bell rung, the jury were not authorized to find for the respondent. It is quite true that the testimony of the engineer and other employees of the appellant company is positive and that of one other witness rather ambiguous, to the effect that the bell was rung and the whistle sounded in the regular way at from fifty to eighty rods from the crossing. The respondent, however, testified that as he approached the crossing and for some time before reaching it he was alert for any warning, having both looked and listened for the approach of a train, and that the whistle was not sounded nor the bell rung. D. M. Canty, who with his brother and niece had made the crossing a very few seconds before and who were only twenty or thirty feet away, whose hearing was good and who heard the sound of the train as it struck the respondent’s machine, testified that he heard no whistle, nor bell nor other warning of the train’s approach; and James A. Canty also testified that he heard no whistle nor bell, though he hears all sounds plainly and distinctly. The niece, Miss Dugan, testified to similar effect. The sufficiency of the foregoing to raise an issue, and the present contention of appellants against it are alike settled in Riley v. Northern Pac. Ry. Co., 36 Mont. 545, 93 Pac. 948. At page 559 of that decision Mr. Justice Smith, speaking for this court, said: “Appellant affirms that it was proven by the uncontradieted evidence that the bell was ringing, and that there was a headlight upon the rear of the switch-engine. On the part of the defendant there was positive testimony that the bell was ringing and the light burning. The plaintiff’s witnesses simply testified that they did not hear any bell or see any light. Appellant argues that this negative testimony is of no weight, in view of the positive testimony opposed to it. Ordinarily, when one witness testifies positively that a certain thing existed or happened, and another witness, with equal means of knowing, testifies that the things did not exist or happen, the so-called negative testimony is so far positive in its character that a court could not say that it was entitled to less weight than the affirmative testimony. ’ ’
2. The testimony of respondent tended to show that while he looked and listened as he approached the crossing, he did not “stop, look and listen,” and the question is presented by appellants whether the driver of an automobile approaching a railway crossing is not charged with the absolute duty to “stop, look and listen. ’ ’ The appellants, conceding that as to other vehicles using a public highway, the general rule upon approaching a railway crossing is to exercise such care and caution as might be expected of an ordinarily prudent person under the circumstances, insist that “the duty of an automobile driver approaching tracks where there is restricted vision, to stop, look and listen, and to do so at a time and place where stopping, and where looking, and where listening will be effective, is a positive duty.” (New York Central & H. R. Co. v. Maidment, 168 Fed. 21, 21 L. R. A. (n. s.) 794, 93 C. C. A. 413; Brommer v. Pennsylvania R. Co., 179 Fed. 577, 29 L. R. A. (n. s.) 924, 103 C. C. A. 135.) Both of the decisions just cited emanated from the circuit court of appeals for the third circuit, speaking through Judge Buffington, and they proceed upon the mistaken ideas that a railroad has some sort of a paramount right to the use of a public highway crossing, and that whether a citizen using the highway on approaching such crossing must stop, look and listen, depends upon the motive power he is using and its amenability to control; whereas the true rule, as we understand it, is that the citizen has an equal right with the railway company to use the crossing, and the amenability to control of the motive power he is using bears more properly upon how near he may come to the place of danger before taking the precautions that common prudence generally requires. Of these cases nothing further need be said than this: If they are to be taken to hold, in the ab sence of express statute, that it is contributory negligence as a matter of law for the driver of an automobile not to stop, look and listen before using a highway crossing, without regard to whether ordinary prudence would require such a course, they are contrary in spirit to the rule announced by the superior authority of the supreme court of the United States (Grand Trunk Ry. Co. v. Ives, 144 U. S. 408, 36 L. Ed. 485, 12 Sup. Ct. Rep. 689), are against the weight of general decision (Texas etc. Ry. Co. v. Hilgartner (Tex. Civ. App.), 149 S. W. 1091; Pendroy v. Great Northern Ry. Co., 17 N. D. 433, 117 N. W. 531; Spencer v. New York Central & H. R. Co., 123 App. Div. 789, 108 N. Y. Supp. 245; Bonert v. Long Island R. Co., 145 App. Div. 552, 130 N. Y. Supp. 271; Hartman v. Chicago G. W. Ry. Co., 132 Iowa, 582; 110 N. W. 10; Louisville & N. R. Co. v. Lucas, 30 Ky. Law Rep. 539, 99 S. W. 959; Vance v. Atchison etc. Ry. Co., 9 Cal. App. 20, 98 Pac. 41; Missouri etc. Ry. Co. v. James, 55 Tex. Civ. App. 588, 120 S. W. 269; Chesapeake & O. R. Co. v. Hawkins (Ky.), 124 S. W. 836), and are in conflict with the settled rule in this state. (Mason v. Northern Pac. Ry. Co., 45 Mont. 474, 124 Pac. 271; Sprague v. Northern Pac. Ry. Co., 40 Mont. 481, 107 Pac. 412; Hunter v. Montana Central Ry. Co., 22 Mont. 525, 57 Pac. 140.) In the Sprague Case appears the following: "Whether, in selecting the point which they did select to stop and listen for approaching trains, Nelson and Chappel exercised ordinary care to make their listening effective, and whether in doing what they did, from that point until the injury occurred, they exercised such care and prudence as reasonable men under like circumstances would have exercised, were questions of fact for the jury to determine ’ ’; and in the Mason Case this court, disapproving of certain instructions, said: "Neither of these instructions correctly states the law. They imposed too great a burden upon the plaintiff. If such were the law, a person approaching a railroad track would either be obliged to keep a constant lookout in both directions, or it would be incumbent upon him, in order to avoid the imputation of contributory negligence, to stop, if necessary, and look for a train at the last available point, and at the last moment of time before crossing the traek. The law is that one desiring to cross a railroad track must exercise reasonable care for his own safety.” We see no reason to change these rules either for or against any class of vehicles in lawful use.
3. The passages just quoted are decisive also of the third contention of appellants, viz., that the particular circumstances required respondent to stop, look and listen, and that, as he did not stop at all, nor look and listen where such looking and listening would have revealed the approach of the train, he is ipso facto convicted of contributory negligence. The argument, although not so expressed, seems to be that if the respondent’s view as he neared the crossing was restricted so that he could not see whether a train was coming, he should have proceeded, with his machine under such control as that he could instantly stop, to a point between the walls of the cut and the track where he could see, and there look and govern himself accordingly, or that he should have stopped his machine, gone forward into the cut afoot and ascertained whether the coast was clear; or, if a train coming from Butte toward the cut was visible, then failure to see it was due to failure to look at the right time and place — and in either case there can be no recovery under the Sprague and Hunter decisions. A short review of the salient features of the case will disclose that the matter is not so easily settled. The respondent was struck by a passenger train which had left Butte shortly before and was running at not less than forty-five nor more than fifty-five miles an hour. The crossing is in a cut variously estimated at from eight to twelve feet deep at that point, which cut extends from the crossing eastward about 1,000 feet. The county road east of the crossing follows the general contour, which is about the same as the top of the cut, to a point about 125 feet from the crossing; there the approach to the crossing begins, and it consists of another cut (at a right angle to the railway cut), through which the county road gradually descends from the general level to the level of the track. According to respondent, a train approaching the cut from Butte is visible to the traveler on the county road from where the approach to the crossing begins back to a point one-eighth to one-fourth of a mile distant; after proceeding into the approach a little distance such a train could not be seen, whether in or out of the cut; nor could such a train coming into the cut be seen before the traveler on the county road reached the point above mentioned, one-eighth to one-fourth of a mile from the cut; when he reached this space he took ‘ ‘ a reasonably long look” to the east for a train and saw nothing; lie-then looked westward with the like result; he then looked forward and being at the approach to the cut saw the Canty machine coming toward him; -alert then for any warning or sound of a train, anxious also to avoid meeting the Canty machine on the crossing, he checked his speed, descended slowing and quietly toward the track, saw the other machine pass safely over the track, passed the other machine about twenty or thirty feet from the crossing and, still listening for a train, reached the track where the accident occurred. He also testified-that to see a train after once entering the .approach to the crossing he would have to proceed to a point where his front wheels would be on the track; that there is a curve in the track where it enters the east end of the cut and that to stop his car, walk forward to the crossing to view the track, return to the car and make the crossing would require from two to five minutes. By way of maps, profiles and photographs there is evidence on behalf of appellants to show that when a passenger train is in the-cut, about six feet of it projects above the top of the cut. East of the crossing, between the county road and the cut, are a pole: fence and the right of way fence, built of posts and wire; these-to some extent obstruct the view, and while we think that a train drifting downgrade through the cut is visible to one on a. level with the top of the cut whose attention was drawn to it,, it would not be obtrusive without some warning. The witness Nick testified that he could stand in the county road at a point eighty feet from the track and still see a passenger train coming from the east; but how much above or below his eyes would be the eyes of the respondent sitting in a Ford runabout does not appear. There was also testimony that the curve in the track just east of the cut is a three-degree curve; that from. the east end of the ties at the crossing to the wall of the cut is eleven feet; that the distance from the’front edge of the front wheel to the seat of a Ford Runabout is five feet six inches, and that the width of a passenger coach is ten feet, so so that it extends over either side about one foot beyond the end of the ties.
Doubtless the case made by appellants was sufficient to defeat a recovery; but it must be remembered that if any substantial conflict existed in the evidence, this court will not substitute its views for those of the jury, who were the judges of the weight and credibility of respondent’s showing. If they believed that the curve to the east of the cut prevented a view from the crossing much beyond the end of the cut (1,000 feet away), and that it would take the respondent not less than two minutes to stop his machine, go to the track, take his view, return to the machine and cross, it is quite clear that such a proceeding, unless the train was in the cut, would induce a false rather than a real security, because a train approaching at forty-five or fifty-five miles an hour would traverse the entire visible distance in not to exceed thirteen seconds. If the jury believed that it was not feasible for the respondent — either from lack of knowledge or because of the narrow margin of safety as disclosed by the appellants’ own measurements — to stop his machine at a point within the cut where he could have a view without getting off, then he could not be convicted of negligence for failure to do that; and if the jury believed that the respondent did before descending into the cut take a reasonably long look from a point where he says a view was of any value, the facts that he took that look before instead of after his look in the other direction — which in due care he was also bound to take— and that thereafter, though still listening for the possible approach of a train, he gave some attention to the Canty machine — which it was also his duty to avoid and which he saw pass the track in safety — would certainly not necessitate the conclusion that he was guilty of contributory negligence in attempting to cross the track. Crediting the testimony of the engineer and others that the crossing of the Canty machine elicited two blasts from the whistle of the train, it might well be said that the respondent hearing them and nevertheless proceeding, was chargeable with negligence as a matter of law; but if it bé true that the whistle was not sounded then or at all, nor the bell rung, as the respondent and the occupants of the Canty machine say, then the very passage of Canty unchallenged, in the absence of information to the contrary, was some assurance to the respondent that the crossing was safe.
From the views above expressed it follows that no error was committed by the trial court in overruling the motion for non-suit, or in modifying appellants’ offered instructions 2a and 4a, or in refusing appellants’ offered instructions 5a and X. The instructions given were undoubtedly correct so far as they went; and if there was any error in failing to more specifically define the care required of the respondent, it is unavailing to the appellants, since no proper instruction on this subject was offered by them. We see nothing in the other rulings complained of to warrant a reversal of this case.
4. We are then brought to the verdict which appellants assert is unreasonable and excessive. At the time of the' accident the respondent was twenty-three years of age, was a stereotyper by trade, having spent several years in learning that business, and was earning $125 per month. By the injuries received in the accident he is forever barred from again pursuing his trade and at the time of the trial was earning $80 per month running a moving-picture machine. We have here an established loss of $45 per month, or $540 per year, and to purchase an annuity equal to this amount would require approximately $11,000. In addition to this the respondent suffered a total loss of earning capacity for about a year. When struck by the train he was thrown seventy-five feet; his hip socket was fractured, his skull slightly fractured; he sustained other severe external bruises and suffered internal hemorrhages from the intestines and kidneys; he was unconscious for six or eight hours, confined five weeks to his bed, compelled to use crutches for five or six months and a cane for three or four months thereafter. It was a year before he walked without help. His pain for several weeks was severe; his nervous system sustained serious shock; he has a displacement of the pelvic bone and of the lower spinal processes, causing atrophy, shortening and partial paralysis of one of his legs, an increased susceptibility to tubercular infection and other difficulties. For all this he receives the difference between the amount of the verdict and the proved loss of earning capacity. While the amount awarded may, apart from the circumstances, seem to have been generous, we do not feel authorized to say that it is so excessive as to evince passion and prejudice or to warrant any action by this court.
Rehearing denied July 7, 1913.
The judgment and order appealed from are affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
At the general election of 1912, Jas. R. Stephens was the Republican nominee for the office of sheriff in Valley county. The county canvassing board declared Patrick Nacey elected sheriff, and on December 2 Stephens filed his statement of contest. The clerk of the court immediately notified Hon. Frank N. Utter, one of the judges of the twelfth judicial district, but nothing whatever was done by Judge Utter, and on December 24 Stephens disqualified him. On January 2 Judge Utter made an order transferring the cause to that department of the district court of Valley county presided over by Hon. J. W. Tattan. On January 3 Judge Tattan made an order calling a special term of court for January 18, and citation was issued and served. On January 17 the contestee appeared by demurrer and also filed an affidavit disqualifying Judge Tattan. Judge Tattan thereupon made an order calling in Judge Ewing, of Great Falls, and continuing the cause to January 27. On January 25 contestee filed his affidavit disqualifying Judge Ewing, and on the same day- Judge Utter made an order calling in Judge Clements, of Helena. On January 26 Judge Clements, by telegram sent from Helena, directed the clerk to enter an order continuing the cause to February 6, and this direction was obeyed. On February 1 contestant disqualified Judge Clements, and on the same day Judge Utter made an order continuing the cause to February 11 and calling in Judge J. Miller Smith, of Helena. On February 11 Judge Smith opened court and called this proceeding. Contestee thereupon withdrew his demurrer and filed a motion to dismiss, upon the ground that a special term was not called by Judge Utter, and upon the further ground that Judge Tattan at chambers continued the cause from January 18 to January 27 — a date more than twenty days from January 3, the day upon which the order calling the special term was made. In support of this motion certain evidence was received and certain evidence offered by contestant was rejected, contestee’s motion was sustained and the proceedings dismissed. From the judgment of dismissal contestant appealed.
1. Section 7241, Revised Codes, provides that upon the statement of contest being filed, the clerk shall inform the judge, who “shall thereupon order a special session or term of such court to be held at the courtroom, on some day to be named by it (him), not less than ten nor more than twenty days from the date of such order, to hear and determine such contested election.”
Section 7244 provides: “The court must meet at the time and place designated, to determine such contested election, and shall have all the powers necessary to the determination thereof # # * ) >
In Curry v. McCaffery, ante, p. 191, 131 Pac. 673, we held that it was not intended to limit the special term of court to twenty days and that adjournments -for more than twenty days did not oust the court of its jurisdiction. We further recognized the rule for which counsel for respondent now contend, that “the principal object sought to he attained by the enactment of statutes for contesting elections, is to secure a speedy trial and determination of all such contests. ” We may agree with counsel, also, that the word “thereupon,” as used in section 7241 above, means “immediately” or “at once,” and that the legislative command was intended to be obeyed. The failure or refusal of Judge Utter to act is unexplained. The duty imposed by section 7241 is so plain that failure or refusal to comply with the requirements imposed would seem to be inexcusable. But conceding that error was committed in the failure of Judge Utter to call a special term of court immediately upon receiving notice that the statement of contest was filed, and that error was committed again in the failure of the court to convene in special term “at the time and place designated” in the order which Judge Tattan made calling the special term, the question arises: Did such errors operate to oust the court of jurisdiction? To answer this inquiry in the affirmative would result in clothing a district judge with plenary power by his own wrongful conduct to deny to a litigant the right to be heard in a court constituted for the purpose of administering judicial remedies — a power which we refuse to recognize as being lodged in any judicial officer. Since the days of Magna Charta it has been the proud boast of the English people that their courts are open to everyone to afford a speedy remedy for every injury to person, property or character, and to administer right and justice without sale, denial or delay. That charter of liberty, deemed essential to the very existence of free government, was a part of the inheritance of the original American colonies, has been adopted in the later states, and finds expression in section 6, Article III of the Constitution of Montana.
Section 7238 limits the right of the contestant in permitting him but twenty days after the canvassers make their return within which to institute his contest; but the district court has jurisdiction of the subject matter — election contests — and when a statement of contest has been filed within the limited time allowed, the court has jurisdiction of the subject matter of that particular contest. To deny to a contestant the right to be heard because the trial judge failed or refused to discharge his duty would set a premium upon official misconduct, impose a penalty upon a litigant for the judge’s wrongful acts, and in its ultimate result would reach the very acme of injustice and oppression. Without stopping to consider whether it is within the power of the legislature, in view of the guaranty of our Constitution above, to enact a statute which could be construed to warrant such absurd result, it is sufficient to say that our legislature has not undertaken the task. The portion of the Codes dealing with election contests defines the duty of the contestant, the clerk, judge and court, but it does not impose any penalty upon the litigant for the derelictions of others.
In Hagerty v. Conlan, 15 Cal. App. 643, 115 Pac. 762, it was held that the provisions of section 1118, California Code of Civil Procedure, which are the same as those in our section 7241 above, are directory only. In Busick v. Superior Court, 16 Cal. App. 499, 118 Pac. 481, the same rule was applied to the provisions of section 1121, California Code of Civil Procedure, which are the same as those found in our section 7244 above; and in Moore v. Superior Court, 20 Cal. App. 299, 128 Pac. 946, the doctrine of the Busick Case was reaffirmed. With that conclusion we agree. In view of section 6315, Revised Codes, giving to each party to a proceeding the right to disqualify judges by filing disqualifying affidavits', to hold the provisions of sections 7241 and 7244 mandatory would be to defeat the very purpose of the statute; for in practically every instance the contestee, by disqualifying the presiding judge on the eve of the day set for the hearing, could prevent a trial “at the time and place designated” in the order calling the special term and thereby oust the court of jurisdiction, if the terms of section 7244 are to be carried out strictly according to the language employed and not otherwise.
Our conclusion upon this branch of the case is that the district court of Valley county had jurisdiction of the subject matter and of the parties; that such jurisdiction was not ousted by any errors committed by the court or judges, and that in dismissing the proceeding the court erred.
Neither can the jurisdiction of the court be made to depend upon the action or nonaction of the contestant after he has filed his statement of contest and while the proceeding is pending. His proceeding might be dismissed for want of prosecution; but if the evidence offered by contestant upon the hearing to dismiss be true — and for the purposes of this appeal it is taken to be true — he cannot be charged' with having abandoned his contest or with responsibility for Judge Utter’s failure to act. Contestant might have applied to this court for a writ of mandate; but to secure such writ it is the general rule that the applicant must allege that he has made demand for the performance of the duty and that such demand was refused. By his offered evidence contestant sought to prove that Judge Utter did not refuse to call a special term of court, but repeatedly assured counsel for contestant that he would call such special term. Of course, a time would come when counsel would not be justified in relying upon such assurances further, and would be called upon to take appropriate steps to compel the performance of the duty by the judge, but we think there was not such delay on contestant’s part in this instance as would justify the application of such an extreme remedy as dismissal for want of prosecution. We do not think the proceeding was dismissed for that reason, but, if it was, there was exhibited a very clear case of abuse of discretion.
2. But it is insisted that even though the reason for the ruling may have been erroneous, the right result was reached, since, it is contended, the statement of contest does not state a cause of action. The statement sets forth at length the facts concerning the division of Yalley county into election precincts and the subdivision of certain of the precincts into “polling-places.” It gives the vote received by contestant and contestee at each polling-place, except polling-place No. 1, Saco precinct and Poplar precinct.
The first alleged ground of contest is that the contestee’s name was not rightfully on the official ballot. This is not a ground of contest (Rev. Codes, sec. 7234), and even if it were, the statement does not contain any facts, but the bald conclusion.
The second ground of contest is not couched in very terse or explicit language, and we are unable to agree with counsel for contestee as to its meaning. It charges “maleonduct and misconduct” on the part of the election judges at polling-place No. 1, Saco precinct, in failing to certify the returns as required by section 519, Revised Codes. No facts are stated from which it can possibly be inferred that the failure of the judges of election to certify to the number and names of the persons voting, and the names of candidates and the number of votes received by each, worked any prejudice to contestant, and such irregularity is not sufficient to warrant rejection of the vote of that polling-place. The statute itself so declares. (Secs. 520, 591, 606, and 7235, Rev. Codes.) But the foregoing is not all of the statement of the second ground of contest. It is further alleged that “said board of judges of election and said judges of election of said polling-place were guilty of maleonduct and misconduct in the discharge of their duties in that they pretended and represented and returned to the board of canvassers of said Valley county, Montana, the fact that ninety-seven (97) votes had been cast and voted at said election for said defendant, Patrick Naeey, whereas in truth and in fact no votes were cast in said polling-places of said precinct for said defendant, Patrick Nacey. ” If by this alie gation it is intended to charge fraud on the part of the election judges and to assert that contestee did not receive any votes at all in polling-place No. 1 of Saco precinct, but that he received credit for 97 votes which were not cast, and that these 97 votes are necessary to justify the canvassers in their return, then this statement states a cause of action. If, however, it was intended to charge that Nacey received 97 votes in polling-place No. 1, Saco precinct, but that such votes should not be counted for him because of the failure of the election judges to certify the returns, then this count does not state facts sufficient to constitute a cause of action. This count of the statement may be open to a special demurrer, but we are not prepared to say that the pleader did not mean what the language employed fairly expresses.
3. The third ground of contest relates to votes cast at Poplar precinct upon the Fort Peck Indian Reservation. Contestant alleges that the 45 votes received by the contestee at Poplar “were voted and cast by persons who at the time of voting and casting said votes were not residents of the state of Montana, but each and all of said persons, so casting and voting said votes, lived upon and within the Fort Peck Indian Reservation, in said county, and were not in any respect qualified electors.” If it be true that votes were cast for contestee by persons who were not residents of Montana and “not in any respect qualified electors,” then, of course,' such votes should be deducted from the total vote credited to contestee. The canvassers’ returns show that Stephens received 1,084 votes and Nacey 1,110 votes. Contestant alleges that he received 1,034 legal votes and that contestee received 968 legal votes, aside from the votes received by contestee from polling-place No. 1, Saco precinct, and from Poplar precinct; so that, to affect the result, it is incumbent upon contestant, under section 7237, Revised Codes, to show that from these two voting places his opponent Nacey received credit for more than 76 votes to which he was not entitled. Under the liberal rules of pleading in force in this state, we think the contestant has stated facts sufficient, if true, to show that Nacey was credited with 97 votes received at polling-place No. 1, Saco precinct, and 45 votes at Poplar precinct, to which be was not entitled, and therefore that a different result will follow, if he is able to prove these allegations.
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 SANNER
delivered the opinion of the court.
Application for writ of prohibition. Basis: that the respondent court, claiming to have before it, by virtue of a change of venue from Gallatin county, a certain divorce action by the relator, as plaintiff, against Alice B. Scollard, as defendant, has issued and caused' to be served upon the relator an order commanding him to appear before said court and show cause why he should not be required to pay alimony, suit money, and attorney’s fees, which order the said court, unless prevented, will proceed to hear and determine. It is alleged that the said court is without jurisdiction in the premises, because the files and papers in said cause have never been transmitted to said court, and because the order of the district court of Gallatin county, granting the change of venue, was stayed, and pending such stay the said action was on motion of plaintiff dismissed before the filing, on the part of the defendant, of any plea seeking affirmative relief.
We decline discussion at this time of any of the questions presented, but deny the application of relator for the reasons stated by this court in State ex rel. Mackel v. District Court, 44 Mont. 178, 179, 119 Pac. 476, as follows: “He should first present his contention * * * to the district court. That court has given him an opportunity to show cause, and he must avail himself of it. The presumption is that the court will correctly decide the point.” If the relator’s contention be correct and the court should so decide, he will not be aggrieved; “on the other hand, if the order below is adverse to him, * * * he may invoke the power of this court to afford relief therefrom.” (See, also, State ex rel. Browne, v. Booher, 43 Mont. 569, 118 Pac. 271; State ex rel. Heinze v. District Court, 32 Mont. 394, 80 Pac. 673.)
The proceedings are dismissed.
Dismissed.
Mr. Chief Justice Brantly concurs.
Mr. Justice Holloway did not hear the argument and takes no part in the foregoing decision.
|
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MR. JUSTICE SANNER
delivered the opinion of the court.
The city of Butte is composed of eight wards and its full complement of aldermen is sixteen. On April 16, 1913, John C. Smith, one of the aldermen for the third ward, resigned, and on April 23 a meeting of the city council was held for the purpose of filling the vacancy thus created. At this meeting one W. E. Eowan received the votes of eight aldermen and one James Walsh received the votes of six; whereupon the mayor declared that no election had resulted, for the reason that the votes of nine aldermen were necessary. On May 1 Rowan tendered his oath of office to the city clerk for filing and demanded of the city clerk that he file said oath and issue a certificate of election, but the city clerk refused to do either, and thereupon Rowan instituted proceedings in mandate which culminated! on May 7 in the issuance by the district court of Silver Bow county of a peremptory writ requiring the city clerk to file the oath and issue the certificate, and Rowan received his certificate on that day.
In the meantime, and on April 30, John Hawke, an aider-man of the fourth ward died, and on May 5 a regular meeting of the city council was held at which all the living aldermen of the city (including said Rowan) were present, together with the mayor. The matter of filling the vacancy caused by the death of Alderman Hawke was taken up, and the respondent Wilson and one John C. Driscoll were nominated, and it is alleged in the petition that Wilson received the votes of eight aldermen (including Rowan) and Driscoll received the votes of seven; whereupon the mayor, refusing to recognize the right of Rowan to vote, announced a tie vote of seven to seven and cast his own vote for Driscoll. It is further alleged in the petition that at the time of said election and before the vote was recorded, said Rowan demanded that his vote be recorded for Wilson, but this the city clerk refused to do. On May 14 Wilson tendered his oath of office to the city clerk for filing and demanded that the city clerk file the same and issue a certificate of election, which the city clerk refused to do. On May 15, Wilson commenced this proceeding to compel the city clerk by judicial mandate to record Rowan’s vote for Wilson in the minutes of May 5, 1913, to file the oath of office of Wilson as an alderman of the fourth ward, and to issue to Wilson a certificate of election. An alternative writ was issued, and after a motion to quash had been filed by the city clerk and denied by the court, answer was made and a reply filed. Upon the issues thus framed the cause was heard, and upon the testimony taken the only issues of fact, viz., whether Rowan had voted for Wilson at the meeting of May 5, and whether he had demanded that his vote be so recorded, were found for the relator Wilson. Judgment resulted awarding a peremptory writ commanding the clerk to record Rowan’s vote for plaintiff and to file Wilson’s oath of office. This appeal is from that judgment.
1. There is nothing before us upon which the correctness of the finding that Rowan voted for Wilson and demanded that his vote be so recorded can be assailed. The question, then, is whether he was a member of the council at the time. The appellant contends in the negative, asserting that under section 3263, Revised Codes, the votes of nine members were necessary to elect Rowan, which confessedly he did not have. Section 3263 forms part of a chapter of the Political Code especially devoted to the legislative powers of cities. It was brought forward from the Political Code of 1895, where it appeared as section 4803, and its language is as follows: ‘ ‘ The ayes and noes must be called and recorded on the final passage of any ordinance, by-law, or resolution, or making any contract, and the voting on the election or appointment of any officer must be viva voce, and a majority of the whole number of the members elected is requisite to appoint or elect an officer, and such vote must be recorded.” If the selection, by the council, of an alderman to fill a vacancy existing in its membership is within the purview of this section, then there cannot be the slightest doubt that the contention of appellant must be upheld; for nothing can be clearer than that the phrase “a majority of the whole number of the members elected” means a majority of the entire number necessary to constitute the full membership of the council; and this, in the case of Butte, would be nine. (Wood v. Gordon, 58 W. Va. 321, 52 S. E. 261; Pollasky v. Schmid, 128 Mich. 699, 92 Am. St. Rep. 560, 55 L. R. A. 614, 87 N. W. 1030; Pimental v. City of San Francisco, 21 Cal. 351.) But there are excellent reasons for the belief that section 3263 is not the provision to be applied to the ease of an election by the council to fill vacancies in its own body caused by resignation or death. In Article II, Chapter III, Title III, Part IV of the Political Code, which is devoted to the general subject of municipal officers and elections, we find section 3236: “When any vacancy occurs in any elective office, the council, by a majority vote of the members, may fill the same for the unexpired. term, and until the qualification of the successor. A vacancy in the office of alderman must be filled from the ward in which the vacancy exists, but if the council shall fail to fill such vacancy before the time for the next election the qualified electors of such city or ward may nominate and elect a successor to such office. The council, upon written charges, to be entered upon their journal, after notice to the party and after trial by the council, by vote of two-thirds of all the members elect, may remove any officer.” This section was enacted in 1903, and, being the later legislative utterance upon the subject, must control if any substantial conflict exists between its provisions and those of section 3263. It is to be observed that by section 3236 “a majority vote of the members” is required to fill a vacancy, whereas two-thirds “of all the members elect” is required to remove from office. Both of these phrases are designed as bases upon which to determine the sufficiency of the vote, and it must be presumed that in the enactment of this statute the legislature had in mind a distinction as real as the language, under settled construction, expresses. No ease called to our attention or revealed by our own researches, nor any analysis of the language independent of authority, suggests that the phrase “a majority of the members” could mean more than a majority of those constituting the actual membership of the body at the time; so that, if the full membership is sixteen but at a given time has been in fact reduced by the resignation of one, there are but fifteen members. (State ex rel. Attorney General v. Orr, 61 Ohio St. 384, 56 N. E. 14; People ex rel. Funk v. Wright, 30 Colo. 439, 71 Pac. 365; Board of Commrs. v. Wachovia Land & Trust Co., 143 N. C. 110, 118 Am. St. Rep. 791, 55 S. E. 442.) Hence, as long as there is a quorum present, a majority of fifteen, or eight, will elect to fill a vacancy. (Nalle v. City of Austin, 41 Tex. Civ. App. 423, 93 S. W. 141; People ex rel. Funk v. Wright, supra.)
We are not called upon to determine whether a majority of a bare quorum will suffice, as suggested by the respondent; nor what might be the situation if ten of the aldermen were killed at one time, as suggested by tbe appellant; happily neither situation is presented, and we confine ourselves to a determination of the case as made by the record.
2. It is next contended that even if Rowan was in fact elected as alderman prior to the meeting of May 5, still no certificate of election had been issued to him, no recognition had been accorded him by the mayor, and no final decision had been rendered as to his status by the court in which the matter was pending, and therefore he was not entitled to vote. The only office a certificate of election could have performed was to officially inform the council of the election of Mr. Rowan; but they required no such information. Having elected Mr. Rowan by their own official action, they had official cognizance of it and the certificate was not necessary. Neither did the right of Rowan to participate in the meeting of May 5 depend upon-recognition by the mayor or the decision of the district court. It depended upon whether he had been in fact chosen by the council and whether he had taken and subscribed the constitutional oath; both conditions having been met, there was no legal obstacle to the exercise by him, on May 5, of all rights and privileges of the office.
Since Rowan was properly present and participating in the meeting of May 5, and since he then voted, and demanded that his vote be recorded, for the respondent Wilson, it follows that Wilson had eight votes. By the death of Hawke, the actual membership of the council at the time was fifteen, and eight' was sufficient. Wilson was therefore duly elected alderman and is entitled to be seated as such.
3. Then, if this is so, appellant argues that a reversal of the case should follow because no right of Wilson’s was invaded by the omissions complained of, and because the statute does not require the clerk to file the oath. We do not appreciate the argument. Doubtless, the present form of action was employed primarily to ascertain whether Wilson had been elected; but, having been elected, he was required not merely to take but to subscribe the constitutional oath. (Rev. Codes, sec. 3248.) This means that the oath must be in writing, and it cannot be supposed that, having subscribed the written oath, the officer should then throw it away or carry it about upon his person. Clearly the oath, when taken and subscribed, was intended to become a record of the city. Again, the vote of Rowan for Wilson was part of the proceedings of the council at the meeting of May 5 and it constituted evidence of Wilson’s right to the office which, together with the vote of the other members, it was necessary should be recorded fully and accurately. By section 3253, Revised Codes, it is made the duty of the clerk to file and keep all records, books and papers belonging to the city, and also to record the proceedings of the council. We see no reason why he should not be compelled by mandate to perform either duty when he has failed therein.
The judgment appealed from is affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
|
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] |
MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
Action by the plaintiff for damages for personal injuries suffered by him during the course of his employment by the defendant. The accident occurred on September 20, 1909. The defendant owned and was operating a line of railway extending through the states of South Dakota, Wyoming and into and through portions of the state of Montana, and was engaged as a common carrier in interstate commerce. The plaintiff was in its employ as extra gang foreman, having under his charge a crew of laborers engaged in making repairs upon its tracks. He and the crew were required to occupy and live in outfit cars so that they could be readily moved from place to place as the exigencies of their service required. One of these cars was occupied by plaintiff and his wife. It was fitted up with a stove, bedding and other household furniture necessary to make it habitable. On the day of the accident the cars were being transferred from Dewey, South Dakota, to New Castle, Wyoming, so that the crew could effect repairs near the latter place. They were attached to the rear end of a freight train consisting of fifty-one cars. At a point about seven miles east of Dewey, while ascending a grade, the train parted, with the result that by the sudden stoppage occasioned by the automatic setting of the air-brakes, the plaintiff was thrown violently back and against a box in the rear end of the ear and thereby suffered the injuries complained of. It is alleged that the defendant was negligent in placing in the train a car equipped with a coupler which was unsafe, defective and insecure, in that the part thereof known as the lock-bloqk had become worn and loose, a fact which was known to the defendant, or, by the exercise of ordinary diligence on its part, ought to have been known to it, but was not known to the plaintiff. The complaint then alleges:
“Sixth. That on the said 20th day of September, 1909, while said train was being moved by the defendant along and upon its said track and railroad from Dewey, South Dakota, to New Castle, "Wyoming, at a rate'of speed of about twenty miles per hour, the said coupler upon said car in said train by reason of its being defective, worn and insecure, and because the defendant carelessly and. negligently failed and neglected to keep the same in good repair and in a safe and sound condition, and because of the negligent and careless operation of said train by said defendant, loosened and came apart causing the said train instantly to part, thereby breaking the air-hose of said train which controlled the brakes upon the cars. That the parting of said train and the breaking and separating of said air-hose caused the brakes upon the cars to which said outfit car was still attached, including the brakes on said outfit car, to become suddenly and violently set, thereby causing said train and cars last mentioned violently and suddenly to stop, whereby the said plaintiff was thrown with great force and violence backward a distance of about twelve feet along and in the interior of said car wherein he was then riding, against and upon a box in said car. ’ ’
The answer denies all of the allegations of the complaint, except that it admits that at the time of the accident the defendant was engaged in interstate commerce. It alleges certain matters as affirmative defenses, upon which there was issue by reply. The issues presented on this branch of the case do not require notice. At the close of plaintiff’s case, the court sustained a motion for nonsuit and directed judgment for the defendant. This appeal is from the judgment. The two questions presented for decision are, whether the exclusion of certain evidence was error, and whether the evidence was sufficient to take the case to the jury.
1. During his examination in chief, counsel for plaintiff inquired of him whether he was acquainted with the duties of a conductor on the defendant’s road. He was not permitted to answer. Counsel then offered to have him testify, in substance, that when such an accident as the one in question occurs it is the duty of a conductor to ascertain its cause, to restore the connection, if possible, and proceed with the train; to ascertain if any person has been injured, and, if so, also the nature and extent of the injury, and to make full report of the facts to his superior officers; that when the train parted, the conductor at once proceeded forward from the caboose where he then was, to ascertain the cause; that in passing the car in which plaintiff and his wife were he ascertained that plaintiff had been injured; that he then said that he was going forward to inquire the cause of the accident; that, the connection being restored, the train proceeded immediately to New Castle, arriving there thirty or forty minutes later; that the conductor then returned to the plaintiff’s car and made inquiry as to the extent of the injury in order to make his report of it, and that during the course of the inquiry, in response to a question by plaintiff as to the cause of the accident, he said that the train had parted “because of a defective coupler; a worn lock-block. ’ ’ An offer was also made to show by this witness that a similar duty to investigate and make report is required of a roadmaster; that when the train arrived at New Castle, defendant’s roadmaster came to plaintiff’s car and, after inquiry as to the nature and extent of the injury, wrote out his report; and that while so doing he stated to plaintiff that the parting of the train was caused by a “defective coupling; a worn lock-block.” This evidence was excluded on the ground that the declarations were not part of the res gestae, and were therefore incompetent.
The statute provides that where “the declaration, act or omission forms part of a transaction, which is itself the fact in dis pute, or evidence of that fact, such declaration, act or omission is evidence, as part of the transaction.” (Rev. Codes, sec. 7867.) This provision was not intended to embody the statement of a rule by which to determine the competency of such declarations as those in question, but to be a mere direction that they must be deemed competent when they are so connected with the main transaction as to form a part of it. It states one of the exceptions to the general rule recognized by all the courts in common-law jurisdictions which requires the exclusion of hearsay statements, viz.: that when declarations by the participant in or an observer of the litigated act are so nearly connected with it in point of time that they may be regarded as a spontaneous, necessary incident, explaining and characterizing it, they may be proved as a part of it without calling the person who made them. The principle upon which the exception is founded is that the declarations were made while the mind of the speaker was laboring under the excitement aroused by the incident, before there was time'do reflect and fabricate, and hence the solemnity of the oath is hot necessary to give it probative value. Such statements need not be strictly contemporaneous with the main incident. They may be in the form of narrative; yet if the circumstances show they were made while the excitement produced by the incident still dominated the mind and was the producing cause, they are nevertheless part of the main incident and competent. On the contrary, if they are in fact mere narrative, they are not competent. In State v. McDaniel, 68 S. C. 304, 102 Am. St. Rep. 661, 47 S. E. 384, the court said: “If the declarations are a mere narration of a past occurrence they are not admissible as res gestae. When the declarations are not precisely concurrent with the transaction, a delicate and complex question is presented to the trial judge in determining their admissibility, and each case must be decided upon its own circumstances. In the nature of the ease, there can be no hard-and-fast rule as to the precise time near an occurrence within which declarations explanatory thereof must be made in order to be admissible. The general rule is that the declarations must be substantially contemporaneous with the litigated transaction and be tbe instinctive, spontaneous utterances of tbe mind while under the active, immediate influence of the transaction, the circumstances precluding the idea that the utterances are the result of reflection or design to make false or self-serving declarations. * * * Questions of this kind must be very largely left to the sound judicial discretion of the trial judge, who is compelled to view all the circumstances in reaching his conclusion, and this court will not reverse his ruling, unless it clearly appears from undisputed circumstances in evidence that the testimony ought to have been admitted or rejected, as the case may be.” The tendency of recent decisions is to relax the rule of admissibility rather than to restrict it, and to consider the weight to which the evidence is entitled. (Jack v. Mutual Reserve Fund Assn., 113 Fed. 49, 51 C. C. A. 36, and cases cited.) Accordingly, this court in State v. Tighe, 27 Mont. 327, 71 Pac. 3, held that, as in ease of confessions, it is the province of the trial judge to determine in limine the admissibility of declarations and leave the question of their weight to the jury, in view of the circumstances under which they were made. This must necessarily be the case whenever a question of fact arises upon conflicting evidence as to whether they are part of the res gestae, or depends upon contradictory inferences either of which may fairly be drawn from uncontradicted evidence; and since this is so, the solution of the question of the admissibility of such evidence must in every case be left largely to the sound legal discretion of the trial court, subject to review only in eases of manifest abuse. (3 Wigmore on Evidence, sec. 1750; State v. McDaniel, supra; Walters v. Spokane International R. Co., 58 Wash. 293, 108 Pac. 593.)
Even under this liberal rule, however, we do not think the declarations admissible on the theory that they were prompted by the excitement produced by the accident itself. The conductor did not return to plaintiff’s car until the train had reached New Castle, some half hour or more after the accident. Apparently, he would not have spoken on the subject at all if he had not been questioned by the plaintiff. His statement assumed the form of narrative, rather than that of a spontaneous utterance as a necessary incident of the accident itself explaining and characterizing it. The roadmaster did not witness the accident but learned of it after the train had reached New Castle. ITis statement, therefore, could not have been due to any excitement aroused by his witnessing the accident or his presence when it occurred. But we think the evidence competent upon another theory, vis., as admissions by the agents of the defendant within the scope of their employment while engaged in the discharge of their duties. Whether it was in fact among the duties of these employees to ascertain the cause of the accident and the nature and extent of any injury caused by it and malte report to their superior officers, we need not stop to inquire. The plaintiff offered to show that this was so. If such was the ease, the statements were made while these employees were in the discharge of their duties. Now, it is a well-settled rule that when an agent is vested with authority to perform any act for his principal, his words — his verbal acts — while engaged in that business, are a part of the res gesiae of that business. They are therefore the words and acts of the principal and may be proved against him. (Hogan v. Kelly, 29 Mont. 485, 75 Pac. 81; Hupfer v. National Distilling Co., 119 Wis. 417, 96 N. W. 809; Hyvonen v. Hector Iron Co., 103 Minn. 331, 123 Am. St. Rep. 332, 115 N. W. 167; Turner v. Turner, 123 Ga. 5, 107 Am. St. Rep. 76, 50 S. E. 969; Lynchburg Tel. Co. v. Booker, 103 Va. 594, 50 S. E. 148; Baker v. Westmoreland etc. Gas Co., 157 Pa. 593, 27 Atl. 789; Anderson v. Great Northern Ry. Co., 15 Idaho, 513, 99 Pac. 91; Leach v. Oregon S. L. R. Co., 29 Utah, 265, 110 Am. St. Rep. 708, 81 Pac. 90; Redmon v. Metropolitan St. Ry. Co., 185 Mo. 1, 105 Am. St. Rep. 558, 84 S. W. 26; McNicholas v. New England T. & T. Co., 196 Mass. 138, 81 N. E. 889.) For the time being the agent is the alter ego of the principal, and while he is not employed to talk about the business of his principal or to admit away the rights of- the latter, declarations and admissions by him touching the business in hand dum fervet opus, are those of the principal. “This rule is especially applicable to corporations, which can speak and act only through agents. Justice to the rights of others requires that acts of such intangible entities must be significant, and the basis for conduct by others as in the case of individuals. When, therefore, a corporation selects an individual to do an act in its behalf, the individual, in doing that act, i. e., within the scope of his authority, is, in legal effect, the corporation.” (Hupfer v. National Distilling Co., supra.) If, however, the appointed work has been completed, any statement made by the agent with reference to it is, under all the authorities (2 Chamberlayne’s Law of Evidence, sec. 1346), a mere narrative of a past transaction and is not admissible under the res gestae rule. It is, as to the principal, mere hearsay.
Counsel for defendant cite and rely on the cases of Ryan v. Gilmer, 2 Mont. 517, 25 Am. Rep. 744, and Poindexter & Orr L. S. Co. v. Oregon Short L. R. Co., 33 Mont. 338, 83 Pac. 886. In the latter of these cases the person whose declaration was held incompetent was not the agent of the corporation to do the act with reference to which the declaration in question was made. With reference to the former, it may be noted that the admission held incompetent was made by the driver of a vehicle immediately after it had been overturned, the accident resulting in injury to a passenger, and while the driver was still in charge of it. Under the more liberal rule observed by many of the courts, the evidence was competent. The case serves only to illustrate the difficulty the courts have experienced in ascertaining and declaring any definite rule by which tó determine whether the admission under consideration was or was not made while the agent was acting within the scope of his authority. It is not in point, because, as we have shown, the declarations in question here were made while the conductor and roadmaster were in the actual discharge of the duties delegated to them. The exclusion of the evidence was error.
2. Counsel contend that inasmuch as the parting of a train is not an ordinary occurrence in the operation of railroads, the fact that such an accident occurred in this instance, there being no explanation of the cause of it, was sufficient to raise a presumption of negligence by the defendant or some of its servants, and therefore that a ease was made for the jury without regard to the excluded evidence. They insist upon two propositions, either of which, if accepted as sound, they say, will require a reversal of the judgment in this case, vis.: (1) That plaintiff for the time being occupied the position of a passenger; hence the presumption of negligence arising from the happening of the accident made out a prima facie case; (2) that the reason for indulging this presumption in favor of a passenger and not in favor of a servant is that an accident may be due as well to the negligence of a fellow-servant as to the lapse of duty by the carrier with reference to some nondelegable duty; that this action was brought under the federal Employers’ Liability Act (25 Stats. at Large, 65, 1909 Supp. Fed. Stat. Ann., p. 584), which cuts off the defense of negligence by a fellow-servant; and that, since this is so, logically, the same presumption must be indulged in favor of the servant as in favor of the passenger. We shall not undertake to determine at this time whether these contentions are maintainable. We think both of them involve questions which are at least debatable. Upon the presumption that the plaintiff proved his ease according to his offer, however, we think he was entitled to go to the jury without regard to the theory advanced by counsel in either of these contentions.
For present purposes we shall assume that it is settled law that in an action by a servant against his employer for an injury caused by the negligence of the latter, proof of the accident alone does not furnish a basis for an inference of culpable negligence, but that the servant must go further and show by direct proof, or by circumstances, that his injury sprang wholly or partly from some omission of duty by his employer. If he fails to do this he has failed to make a case for the jury. If, however, in proving the injury, the facts and circumstances disclosed tend to show that the instrumentality which caused the injury was exclusively in the control of the employer and the injury occurred by reason of some defect therein, the existence of which is attributable to a negligent omission of duty by the employer rather than to any other cause, he has made a case justifying a presumption of culpable negligence. The burden then devolves upon the employer to rebut the presumption, by explaining the circumstances so as to render their existence consistent with the exercise of due care. The general rule applicable to this class of cases, viz.: that the plaintiff must prove negligence, is qualified by way of exception by what is termed the doctrine of res ipsa loquitur, which means merely that the circumstances under which the accident occurred charge the defendant with culpable negligence. In Hardesty v. Largey Lumber Co., 34 Mont. 151, 86 Pac. 29, the rule is stated thus: “Of course, the general rule of law is that negligence is not inferable from the mere occurrence of the accident; but to this rule is the well-understood exception that, where the thing which causes the injury is shown to be under the management and control of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have such management and control use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from the want of ordinary care by the defendant. (1 Shearman & Redfield on Negligence, sec. 59.) Under such circumstances proof of the happening of the event raises a presumption of the defendant’s negligence, and casts upon the defendant the burden of showing that ordinary care was exercised. This rule has been invoked in numerous similar cases.” The train upon which plaintiff ivas riding was under the control and management of the defendant. The defendant knew, or ought to have known, by whom it was made up, how it was made up, how it was equipped and what degree of care had been exercised in making it safe to run. The duty to see that it was properly equipped was a primary, nondelegable duty of defendant. It separated because of a “defective coupler or worn lock-block.” Ordinarily, when a train is equipped with couplers which are sound and suitable for use, it does not part. Therefore, the fact that one of those in use at the time of the accident was defective and worn to such an extent as to permit the train to part, points to neglect by defendant to perform a primary duty rather than to any other cause, and properly calls for explanation. In the absence of such explanation the jury would be justified in holding it responsible for the accident and the injury resulting from it. (Griffin v. Boston & Albany R. Co., 148 Mass. 143, 12 Am. St. Rep. 526, 1 L. R. A. 698, 19 N. E. 166, and cases cited.)
The judgment is reversed and the cause remanded for a new trial.
Reversed and remanded.
Mr. Justice Holloway and Mr. Justice Sanner concur.
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
This is an action in claim and delivery. The controversy is between W. H. Taylor, who claims to have purchased the property from C. R. Buffington, the original owner, on the one hand, and, on the other, the Malta Mercantile Company, a corporation, which claims to have attached the property in an action by it against Buffington and while Buffington was still the owner and in possession of the property, and to have purchased the same at sheriff’s sale upon execution. Upon the trial of the cause the plaintiff offered evidence tending to show the circumstances under which he purchased the property, and what he did with reference to it. At the conclusion of his evidence the eourt granted a nonsuit. The appeal is from the judgment. The bill of exceptions presents all the evidence received and that offered and rejected.
1. Buffington, a witness for plaintiff, was asked whether at any time after he gave the bill of sale to plaintiff he had been up to the property or exercised any acts of ownership over it. An objection by defendant was sustained, and error is predicated on the ruling. Appellant is not in a position to insist upon the specification: First, because he did not make any offer of proof and the answer which the witness would have given is not apparent (Frederick v. Hale, 42 Mont. 153, 112 Pac. 70; Forquer v. North, 42 Mont. 272, 112 Pac. 439; Bean v. Missoula Lumber Co., 40 Mont. 31, 104 Pac. 869; Tague v. John Caplice Co., 28 Mont. 51, 72 Pac. 297); and, second, without objection the witness was afterward permitted to say, “I have not been up to Strater to that shearing plant since the execution of the bill of sale. ’ ’ Error in the exclusion of offered testimony is cured by the subsequent admission of substantially the same evidence. (Frederick v. Hale, above; State v. Van, 44 Mont. 374, 120 Pac. 479.)
2. Plaintiff offered to prove that the bill of sale which he received from Buffington for this property was filed with the county clerk and recorder of Valley county, and that on or about July 30, 1910, he made application to an agent of an insurance company for insurance upon the property in his own name. Each of these offers was properly refused. If plaintiff had been permitted to prove the facts, he would' not have been any better off. They would not have constituted, nor would they have assisted in constituting, the acts performed by plaintiff and Buffington a delivery of the possession of the property in controversy. At best they would have reflected only upon the good faith of the parties to the sale, and that question is not open to investigation in an action wherein the sale is attacked solely on the ground of fraud in law, under section 6128, Revised Codes. (Morris v. McLaughlin, 25 Mont. 151, 64 Pac. 219.) Section 6130 takes this transaction out of the category of those subject to explanation upon the theory of good faith and fair dealing. In Gehlert v. Quinn, 35 Mont. 451, 119 Am. St. Rep. 864, 90 Pac. 168, the transaction in question was attacked on the ground of fraud in fact, as well as fraud in law, and therefore the question of good faith was involved, and the admission in evidence of the fact that the bill of sale from the seller to the buyer had been filed for record was proper.
3. Is the evidence sufficient to make out a prima facie case in favor of plaintiff? The controversy rages around the application of the rule of law stated in section 6128, above, which, so far as applicable to this case, reads as follows: ‘ ‘ Every transfer of personal property * * * is conclusively presumed, if made by a person having at the time the possession or control of the property, and not accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things transferred, to be fraudulent, and therefore void, against those who are his creditors while he remains in possession.”
It is conceded that Buffington was the owner and in possession of the property until about the last of July, 1910; that he was indebted to the defendant company at that time and for several months thereafter; that defendant commenced an action against him on August 8, 1910, attached this property on August 11, and purchased it later at sheriff’s sale upon execution in the same action. The only question for determination now is: Was there such a delivery of possession by Buffington to Taylor prior to August 11, 1910, followed by an actual and continued change of possession of the property, as to satisfy the demands of section 6128 above? Much of the record is given up to evidence which is wholly irrelevant to the issue made by the pleadings. There was not any attack upon the sale from Buffington to Taylor for fraud in fact. Assuming, as we do, that there was a sale as claimed by plaintiff, still evidence of the consideration paid for the property by Taylor, or evidence of the good faith of the parties to the sale, or evidence of any or all of those facts and circumstances which are usually emphasized in actions where actual fraud is charged, was entirely irrelevant. (Morris v. McLaughlin, above.) Viewing the relevant evidence — and there is very little of it — in the light most favorable to the plaintiff, and assuming that it proves every fact which it tends to prove, and we are confronted with this situation: The property, a sheep-shearing plant at Strater, consists of a frame building used as a cookhouse; another frame building used as the shearing-house, in which was the shearing machinery — shafting, belts, pulleys, etc. — some scales, a gasoline engine, corrals, panels, etc. Sometime about the last of July, Buffington, who then owned and was in possession of this property, sold it to Taylor. Three witnesses only were examined. E. L. Wallace, cashier of the bank at Saco, testified to the conversation which lie heard between Buffington and Taylor which resulted in the sale, and to the directions given by Taylor to Buffington to go up to the plant and “see that everything is put in order- and locked up. ’ ’ He testified to other facts and circumstances which are not material to this inquiry, but he did not testify to anything further done by Buffington or Taylor looking to a delivery of the property or to a change of its possession. Taylor, the plaintiff, testified to the conversation had with Buffington about the end of July, 1910, which terminated in a sale of the shearing plant by Buffington to him. He gave much immaterial evidence as to the business transactions between him and Buffington prior to the time of the sale and the elements which entered into the consideration for this property. He testified that after their negotiations were concluded he directed Buffington to pile up the panels so that he could get insurance on the property, and that afterward in passing on the train he observed that the panels had been piled. He testified) that on August 9 he and Buffington went to Glasgow and there had a bill of sale of the property drawn and executed. He testified further: “I never went down there at any time for the purpose of assuming possession of the property. Q. After your agreement with Mr. Buffington you never pretended in any way to assume any control over the property, did you; just left it there as he had piled it up, and that is all you know about it, isn’t it? A. Yes, sir. (Redirect examination.) Q. State whether or not it was practicable to move that property. A. No, it wouldn’t be. I gave Mr. Buffington directions what to do with the keys to that property when he had stored the machinery and piled up the- panels. I ordered him just to leave them there at the Mercantile store.” This is all the evidence given by the plaintiff which tends to disclose the acts of the parties with respect to the delivery or change of possession of the property. Buffington testified to the verbal negotiations which resulted in the sale of this property to Taylor; that according to Taylor’s directions he, with other men in his employ, took down the shearing machinery, hauled it over to the cookhouse, stored it, locked that house, and sent the keys to the Saco Mercantile Company’s office for Mr. Taylor; that he never saw the keys afterward and never was up to the plant after the day upon which the bill of sale was executed. On cross-examination, however, this witness qualified his testimony to the extent of saying that he was not the last one at the plant when the machinery was stored; that other men were left there; that he instructed them to lock up the cookhouse; that afterward the keys were brought to him; and that he gave them to Burton or McKinney to take to the Saco Mercantile Company.
Does this evidence prove or tend to prove an immediate delivery of the property by Buffington to Taylor, and an actual and continued change of possession within the meaning of section 6128? We think not. Assuming for the purposes of this appeal — as counsel for appellant do- — that the character of this property is such that manual delivery was not practicable, counsel then insist that a symbolical delivery of such property may satisfy the demands of the statute, and Western Mining Supply Co. v. Quinn, 40 Mont. 156, 135 Am. St. Rep. 612, 20 Ann. Cas. 173, 28 L. R. A. (n. s.) 214, 105 Pac. 732, is cited to support this contention. In that ease we held that the delivery by the seller to the buyer of the keys to a warehouse in which was locked heavy mining machinery, lumber, etc., was a sufficient delivery of possession of the property to satisfy the statute above. We do not know of any case where the rule of the statute has been given a more liberal construction; but the evidence in this instance falls far short of establishing any delivery at all, manual or symbolical. It does not appear that the cookhouse in which most of this property was stored was in fact locked, and, if it was — which is a mere surmise — there is not any evidence that the keys were delivered to Taylor, the purchaser. All that can be said of the evidence is that it shows that Buffington left orders with the men at the plant to lock up the machinery in the cookhouse and that thereafter he delivered the keys to Burton or McKinney to deliver to the Saco Mercantile Company. But there is not an intimation in the record that the men obeyed Buffington’s orders, or that the cookhouse was actually locked, or that the keys were ever delivered to the Mercantile Company or to Taylor, the purchaser. Taylor was a witness in his own behalf, but he failed to state that he ever received the keys or knew whether or not the property was locked up or otherwise secured. While there may be a symbolical delivery of possession of a building and its contents or the contents of a building, it is asking altogether too much to have this court declare that the provisions of section 6128, above, are met by evidence of this character.
In Dodge v. Jones, 7 Mont. 121, 14 Pac. 707, the horses in controversy, with others, were gathered from the public range, the purchased ones separated from the others, branded with a distinguishing brand, and then returned to the range. This court held that there was a sufficient delivery and change of possession to meet the requirements of the statute. Upon a similar state of facts a like conclusion was reached in Cady v. Zimmerman, 20 Mont. 225, 50 Pac. 553. But in Dodge v. Jones this court quoted with approval from Stevens v. Irwin, 15 Cal. 503, 76 Am. Dec. 500, the following: “The delivery must be made of the property; the vendee must take the actual possession; that possession must be open and unequivocal, carrying with it the usual marks and indications of owmership by the vendee. It must be such as to give evidence to the world of the claims of the new owner. ITe must, in other words, be in the usual relation to the property which owners of goods occupy to their property. This possession must be continuous — not taken to be surrendered back again — not formal, but substantial.” This doctrine was repeated in Morris v. McLaughlin, above, decided after Cady v. Zimmerman, and in that ease the further language of the California court in construing a statute like our 6128 was adopted: “The word ‘actual’ was designed to exclude the idea of a mere formal change of possession, and the word ‘continued,’ to exclude the idea of a mere temporary change.”
The motives which prompted Buffington and Taylor in their transaction are not the subject of inquiry here. We may assume that they acted in perfect good faith, intending to accomplish a legitimate object in a lawful manner; but, because they failed to make an immediate delivery of the property and to follow such delivery by an actual and continued change of possession, the statute declares their sale void -as against the Malta Mercantile Company, a creditor of Buffington. For this reason the evidence produced fails to make out a case to go to the jury, and the trial court properly granted the nonsuit.
The judgment is affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Sanner concur.
|
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
This suit was brought to quiet title to certain real estate in Missoula county. The complaint is brief and sets forth the fact that the plaintiff is the owner of the land (describing it), that each of the defendants claims some interest adverse to the plaintiff, and that such claims are without foundation or right. The defendant Miller by separate answer admitted that the plaintiff was the owner in fee of the land in question on or prior to February 6, 1904. He then alleged that in December, 1903, a judgment was duly ‘ ‘ given and made ’ ’ in the court of the justice of the peace of Hell Gate township, Missoula county, in favor of H. H. Marsh and against John S. Miller, this plaintiff; that thereafter an abstract of the judgment was filed in the office of the clerk of the district court of Missoula county and the judgment duly docketed; that on February 6, 1904, execution was issued and levied upon the land above mentioned, and on March 1, the property was sold at sheriff’s sale to Marsh, the judgment creditor, and a certificate of sale issued to him; that the property was not redeemed from the sale, and after the lapse of more than a year the sheriff executed and delivered to Marsh a deed for the property; that in December, 1908, Marsh sold and conveyed the property to defendant F. L. Miller, and thereafter defendant Miller sold and conveyed to the defendant railway company a strip of the ground for right of way. The separate answer of the railway company is to all intents and purposes the same as that of its codefendant Miller. The affirmative allegations in each answer were put in issue by reply. Upon the trial of the cause the district court ruled that the defendants had the burden of proof, and this ruling was accepted without objection. Evidence was offered from which it appeared that the docket of the justice in use at the time the case of Marsh v. Miller was in court had been lost or destroyed. An attempt was made to prove the contents in so far as they related to the case of Marsh v. Miller, but without success. The only witness called for that purpose was unable to remember what entries appeared in the docket. Counsel for defendants then offered in evidence the abstract of the judgment which had been filed in the office of the clerk of the district court, and certain other evidence, and rested. The trial court found the issues for the plaintiff, and judgment was rendered and entered. It is from that judgment and from an order denying them a new trial that defendants appealed.
In their brief counsel for appellants say: “There is in fact but one really important question in this case, and that is: What effect is to be given to what is designated as ‘Defendants’ Exhibit A,’ being the ‘abstract of judgment,’ given by the justice of the peace and filed in the office of the clerk of the district court?” They then state their position very succinctly as follows: “The contention of counsel for appellants was and is that, as the abstract of judgment was in conformity with the provisions of sections 7056 and 7057, Revised Codes of Montana, it should be regarded as at least prima facie evidence that it was predicated upon a regular and valid judgment; and the burden of showing the contrary falls upon the party who brings its legal effect into question. ’ ’
Our attention is directed to section 7071, Revised Codes, and to subdivisions 15 and 16 of section 7962. Section 7070 provides that every justice of the peace must keep a docket, and specifies in detail the entries which must be made in any given case. Section 7071, among other things, provides: “Such entries in a justice’s docket, or a transcript thereof, certified by the justice, or his successor in office, are prima facie evidence of the facts so stated.” While it is admitted that the abstract mentioned in section 7056 is not a transcript of the justice’s docket, it is insisted that it should be given the same evidentiary force and effect; but with this we are unable to agree. It is only by virtue of the provisions in section 7071 above that the entries in the justice’s docket, or a transcript thereof, possess evidentiary value sufficient to make out a prima facie case of the facts there recorded. In the absence of that statute no such rule of evidence could be invoked. But there is reason for the rule as applied to the docket entries; for if the docket is kept as required by section 7070, it contains a complete history of the case, and this fact justifies the rule. But in attempting to apply it to an abstract of the judgment the reason for the rule is entirely wanting, for the abstract does not contain anything but the bare recital: “Judgment entered for plaintiff (or defendant) for $- [stating amount], on the-day of-[stating the date].”
But counsel for appellants invoke the presumptions of law found in subdivisions 15 and 16 of section 7962, as follows: “ * * * (15) That official duty has been regularly performed. (16) That a court or judge acting as such, whether in this state or any other state or country, was acting in the lawful exercise of his jurisdiction.” However useful these rules, or however generously their language may be construed, they cannot suffice to relieve one whose asserted claim depends upon the validity of a justice’s judgment from showing affirmatively that the court which rendered the judgment had jurisdiction, when the allegation that the judgment was duly given or made is controverted. Justices’ courts are courts of limited jurisdiction, and no presumption in favor of their jurisdiction is to be indulged. In Layton v. Trapp, 20 Mont. 453, 52 Pac. 208, this court said: “The justice’s court is a court of inferior jurisdiction, and there are no legal presumptions in favor of its jurisdiction. Its jurisdiction must affirmatively appear upon the face of the record. Proper proof of the service of the summons, by a person other than an officer, is a condition precedent to the rendition of a judgment by default, and without such proof the court has no jurisdiction.” To the same effect are State ex rel. Kenyon v. Laurandeau, 21 Mont. 216, 53 Pac. 536; Oppenheimer v. Regan, 32 Mont. 110, 79 Pac. 695; State ex rel. Collier v. Houston, 36 Mont. 178, 12 Ann. Cas. 1027, 92 Pac. 476.
Our Code, section 7962, above, was evidently copied from California, which has had the same statute in force there since 1872 at least. (2 Code Civ. Proc. Cal. 1872, sec. 1963.) Many years before its adoption in California the supreme court of that state had announced the doctrine that justices’ courts are courts of limited jurisdiction, and that no presumption may be indulged in favor of their jurisdiction, but that the facts showing jurisdiction must appear affirmatively from the record. Notwithstanding the adoption of their Code containing the same presumptions as are found in subdivisions 15 and 16 of our section 7962 above, the same rules have been reiterated uniformly ever since their adoption of the Code provision. (King v. Randlett, 33 Cal. 318; Cardwell v. Sabichi, 59 Cal. 490; Kane v. Desmond, 63 Cal. 464; Keybers v. McComber, 67 Cal. 395, 7 Pac. 838; Eltzroth v. Ryan, 89 Cal. 135, 26 Pac. 647.) Since the statute had been construed by the highest court of the state from which we borrowed it at the time of its adoption here, the rule that we adopted the statute as thus construed applies in this instance. (State ex rel. Dolenty v. District Court, 42 Mont. 170, 111 Pac. 731; Deer Lodge County v. United States F. & G. Co., 42 Mont. 315, Ann. Cas. 1912A, 1010, 112 Pac. 1060; State Savings Bank v. Albertson, 39 Mont. 414, 102 Pac. 692.)
But aside from the rules of law enforced by the courts above, our Codes themselves appear to reserve the final word upon the subject. Section 6571 relieves a party pleading a judgment from the necessity of setting forth at length the facts conferring jurisdiction, and authorizes him to make the bald declaration that the judgment was “duly given or made.” Acting upon this authority, each of the defendants in this instance contented himself with such an allegation. The section above then continues: “ If such allegation be controverted, the party pleading must establish on the trial the facts concerning jurisdiction.” By reply the allegation in each of the answers that the judgment in Marsh v. Miller was duly given and made was controverted and by express statutory rule the burden was then imposed upon the defendants, claiming under the Marsh judgment, to establish on the trial the facts which showed that the justice’s court rendering that judgment had jurisdiction. This they failed to do. In the absence of a statute embodying the rule announced in section 6571 above, the defendants would have been compelled to allege and prove all facts necessary to show jurisdiction in the justice of the peace court. The only purpose of the statute is to relieve the pleader from setting forth the jurisdictional facts (State v. Lagoni, 30 Mont. 472, 76 Pac. 1044; Weller v. Dickinson, 93 Cal. 108, 28 Pac. 854); but it does not operate to relieve him of the necessity of proving those facts if his abbreviated allegation is controverted. On the contrary, that he is compelled to assume that burden the statute declares in unmistakable terms.
Since defendants’ pretended claims depend altogether upon the validity of the justice’s judgment, and they failed to show that the justice of the peace court had jurisdiction of the case of Marsh v. Miller, they failed to show any outstanding claim or title in either of them adverse to the plaintiff.
The judgment and order of the district court are affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Sanner concur.
|
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MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
This action was brought by John O ’Rourke to recover of the defendant corporation on two counts, the first upon a promissory note executed by the defendant to O ’Rourke, and the second upon an account stated for money expended by him for the use and benefit of the defendant. Subsequently, upon a suggestion of the death of O’Rourke by counsel for defendant, Mary E. 0 ’Rourke, executrix of his will, was substituted as plaintiff. In its original answer defendant admitted its liability for the amount of the promissory note. Judgment was thereupon entered for the plaintiff upon the first count, and the action proceeded upon issues presented by an amended answer to the second count. The complaint alleges that between the 7th day of February, 1895, and the 15th day of Octo.ber, 1896, the plaintiff paid for the use of the defendant various sums of money aggregating $585, and that at a meeting of the board of trustees (directors) of the defendant held on the latter date, the defendant approved the payments and settled and allowed them as a valid debt against it in favor of O’Rourke. The answer denies generally all the allegations of the complaint, except the corporate capacity of the defendant. It then alleges affirmatively that from January 4, 1895, until and including January 4, 1897, O’Rourke was the president of the defendant, and that on February 1, 1895, and ever since that time the defendant has been, and now is, insolvent and unable to pay its debts. The reply denies that it is insolvent. The court, sitting without a jury, found the issues for the plaintiff and ordered judgment entered accordingly. The cause is before this court upon an appeal from the order denying defendant’s motion for a new trial, its appeal from the judgment having heretofore been dismissed.
1. Counsel for defendant have devoted a considerable portion of their brief to a discussion of the question whether the complaint states facts sufficient to constitute a cause of action. This question cannot be agitated on this appeal. The sufficiency of the pleading was not challenged during the trial by objection to the introduction of evidence, or otherwise, on the ground of a lack of material allegation therein; therefore, there was no ruling during the trial with reference to its sufficiency which can be regarded as an “error of law occurring during the trial,’’’within the meaning of section 6794, Revised Codes, desig nating the grounds upon which a motion for a new trial may be made. When such is the condition, the question of the sufficiency of the complaint can be examined only on appeal from the judgment. (Charles Schatzlein Paint Co. v. Passmore, 26 Mont. 500, 68 Pac. 1113; Campbell v. Great Falls, 27 Mont. 37, 69 Pac. 114.) We may remark, however, that while the pleading is not a model, it alleges a cause of action upon an account stated.
2. It is argued that the evidence is insufficient to show defendant’s liability, for the reason (1) that it appears, that when the resolution was adopted by the board of directors approving O’Rourke’s account, the board was not regularly assembled; (2) that it appears that O’Rourke was in collusion with the other directors after he had sold and disposed of all his stock in the corporation, and that his participation in the meeting of the board, under these circumstances, rendered its action in adopting the resolution void. The board of directors consisted of O’Rourke, W. R. Kenyon and M. J. Connell. O’Rourke was president, Kenyon vice-president, and Connell secretary. Prior to October 15, 1896, the company was engaged in litigation in an endeavor to foreclose a mortgage held by it upon real property in Butte, and to defeat claims for liens against the same property by others, including James A. Murray. It was without ready money with which to pay the expenses of litigation and to meet the charges for taxes, insurance, etc. From time to time O’Rourke advanced money to pay these charges. On February 7, 1895, the amount of his advancements aggregated $762. At a meeting of the board of directors on that date, which was attended only by O ’Rourke and Kenyon, the president and secretary were by resolution authorized to execute to O’Rourke a promissory note of the corporation for this amount, to bear interest from date. At a meeting held on October 16 of the same year, all the directors being present, a resolution was adopted authorizing the vice-president and secretary to execute the note, to bear date February 7, 1895, the reason for this action, as appears from the resolution, being that since O’Rourke’s presence was necessary to make a quorum of the board at the meeting held on February 7, 1895, and no business could be transacted without his vote, the resolution adopted at that time was not a valid act of the corporation. The resolution adopted at the later meeting contained this recital: “There being other payments in the sum of $585 made by John 0 ’Rourke for the use and benefit of the Grand Opera House Co., upon motion of W. R. Kenyon the said payments were approved by the board of trustees.” It appears from the evidence that the advancements by 0 ’Rourke were made by authority of the board of directors and that they were necessary to protect the interests of the company and to preserve its property. That this was the case is not seriously controverted by counsel for defendant, who introduced no evidence tending to impugn the honesty of O’Rourke or any of his associates. It may be noted just here that the note authorized at the later meeting of the board was the basis of the first cause of action and that the defendant permitted judgment to go for the amount of it, without offering any defense.
Counsel seriously contend, however, that since the meeting was not called by written notice as prescribed by section 449 of the Civil Code of 1895 (Rev. Codes, sec. 3848), the board of directors was not duly assembled, and hence that none of its proceedings were binding upon the company. This contention is without merit. The corporation was organized under the provisions of the statute in force prior to the adoption of the Codes of 1895. While the directors (or trustees, as these officers were then designated) had the power to enact by-laws for the government of the corporation and the management of its business affairs (Comp. Stats. 1887, Fifth Div., sec. 454), they were not required to do so. It was left to them, at their option, to establish their own custom and method of doing this. They had adopted the custom of holding special meetings upon informal notice. The meeting was called at the instance of the president, verbal notice being given by the attorney of the corporation to all of the directors. It was held at the usual place of meeting. This was the custom which had always been observed, except that formal notice by publication was given of annual meetings. If the provisions of the Code of 1895 were not ap plieable, as counsel for plaintiff contend, because the corporation had not elected to continue its existence under them, the notice was sufficient. If the provisions of section 449 of that Code were applicable, nevertheless the necessity of formal notice in conformity therewith was obviated, because all of the directors attended and no one objected to the holding of the meeting because of the want of notice or for any other reason. While ordinarily the requirements of the statute cannot be dispensed with, formal notice is not necessary when all the directors attend and participate without objection in the dispatch of the business in hand. “The only object of the notice is that the directors have an opportunity of being present at the meeting and taking part in its proceedings.” (Minneapolis Times Co. v. Nimocks, 53 Minn. 381, 55 N. W. 546; see, also, Stobo v. Davis Provision Co., 54 Ill. App. 440; State ex rel. Grimm v. Manhattan Rubber Mfg. Co., 149 Mo. 181, 50 S. W. 321; Troy Mining Co. v. White, 10 S. D. 475, 42 L. R. A. 549. 74 N. W. 236; 2 Thompson on Corporations, sec. 1142; 10 Cyc. 786.) Counsel for plaintiff cite many cases in support of their contention, but they fail to note that in the cases cited a part of the directors did not attend the meeting and take part in the proceedings, but were either absent or, being present, protested against the proposed action. Smith v. Dorn, 96 Cal. 73, 30 Pac. 1024, and Thompson v. Williams, 76 Cal. 153, 9 Am. St. Rep. 187, 18 Pac. 153, are illustrative examples.
The record does not sustain the contention of counsel that at the time of the meeting O’Rourke had sold his stock and thus disqualified himself to act as a director of the corporation. In fact, he did sell' his stock to James A. Murray, but the evidence does not go further than to show that at the time the meeting was held, negotiations for the sale were pending but not yet completed; for the stock was at the time in the hands of Mr. A. J. Davis, who had authority to complete the transaction. It does not appear how long it was afterward before the sale was actually made and the stoek transferred. If it be conceded, therefore, that in order to act as director, O’Rourke must have been a stockholder (Rev. Codes, sec. 3833; Civil Code 1895, sec. 434), and that the sale of his stock ipso facto vacated his office as director, this result was not accomplished until the sale-was completed. Under the allegations of the answer, however,, the defendant is not in position to insist that O’Rourke’s connection with the company Avas not legitimate. Upon the record,, therefore, O’Rourke was a director at the time the meeting was; held, and was qualified to act in any matter in which his interest was not adverse to that of the corporation. We are not. required to determine definitely what his relations with the company were. He was preferring a claim against it. He was; pro hac vice disqualified to vote. He took no part in the proceedings looking to the approval of the account. It was approved by a vote of both of the other directors who constituted a quorum of the board, and their action was binding upon the-corporation.
Counsel question the validity of the action of the board on the ground that, if it be conceded that O’Rourke was a director of the corporation, he could not deal for himself and the corporation at the same time, and since it appears from the evidence that all the members of the board were antagonistic to» Mr. Murray, the prospective purchaser of the O’Rourke stock, the result of the resolution was in any event to give O’Rourke an unfair advantage by reason of his position as director. The rule is well settled that the officers of a corporation may lend money to the corporation for legal purposes and hold and enforce their claims for repayment, provided, however, they act in good faith and do not obtain an advantage to the detriment of the other stockholders. It is frequently the case, as-here, that a corporation is temporarily in distressed circumstances, and if the officers were not permitted under such conditions to assist it by advancing the funds necessary to relieve-its distress, the result would be disaster to its business and loss to its stockholders. (Coombs v. Barker, 31 Mont. 526, 79 Pac. 1; Tatem v. Eglanol Min. Co., 42 Mont. 475, 113 Pac. 295.) An officer lending money to the corporation may even demand' and receive security for his advancements. So long as he has acquired by the transaction no advantage which might not be- accorded to any other creditor under the same circumstances, Ms claim will be upheld and enforced. The record does not Justify the assertion that there was enmity betwen Mr. Murray and the directors; but were this the fact, and were it also the fact that Mr. Murray had become the purchaser of the 0 ’Rourke stock at the time the meeting was held, nevertheless the propriety of the action of the majority of the board of directors 5s not to be condemned for this reason alone. The evidence fends to show that the advancements had actually been made to the amount claimed. The admission by the board of the justness of the claim as a charge against the corporation could not wrong the stockholders.
It is argued that the directors put O’Rourke in a position to gain a preference over the other creditors of the corporation and that his preference will be made good unless the Judgment be set aside. This is a matter about which the corporation is not concerned. Whether O’Rourke’s estate is entitled to a preference is a question to be determined upon an issue made between the executrix and the other creditors, if there are any, in a proceeding instituted to adjust their respective rights. The fact that the corporation is insolvent does not affect in anywise the right of one of its creditors, whether an officer of the corporation or a stranger, to reduce Ms claim to judgment.
3. Error is predicated upon the action of the court in admitting certain evidence over the objection of the defendant. On a former trial of this case, O’Rourke was alive and testified fully as to his relations to the corporation and the circumtsances out of which his claim arose. His testimony given at that time was reported and a transcript of it made by the official stenographer at the request of the attorneys. Subsequently the person who was then stenographer went out of office. At the trial he was produced as a witness and sworn. After stating that his original notes embodied an accurate report of O’Rourke’s testimony, that the transcript was a correct translation thereof, and that the original notes filed with the clerk had been lost or destroyed, he was permitted to rehearse the testimony by reading from the transcript. It was objected that the evidence was incompetent, and it is argued that the court erred to the prejudice of the defendant in admitting it. It having been made to appear that O’Rourke was dead, his testimony given on the former trial was admissible (Rev. Codes, sec. 7887; Reynolds v. Fitzpatrick, 28 Mont. 170, 72 Pac. 510). Since the stenographer who reported it and made a transcript of it had testified that the transcript was an accurate translation of the original report, it was competent for him to rehearse the evidence, either by using the transcript as a memorandum to refresh his memory, or, in case he had no independent recollection of the testimony, to testify from the transcript. (Rev. Codes, sec. 8020; Marron v. Great Northern Ry. Co., 46 Mont. 593, 129 Pac. 1055.) In permitting the witness to testify from the transcript without showing that he had no independent recollection of the testimony, the court was technically in error, under the rule declared in Marron v. Great Northern Ry. Co., supra. Under the circumstances of this case, however, we do not think the error prejudicial. The case was tried without a jury. The other evidence submitted to establish the plaintiff’s claim was amply sufficient to sustain the court’s finding. Another trial could not accomplish any result other than to enable the court to require compliance with the statute (sec. 8020, supra) as to the technical method to be observed in order to render the evidence available to the plaintiff. We do not think a new trial should be ordered to accomplish this purpose.
The order is affirmed.
Affirmed.
Mr. Justice Holloway and Mr. Justice Sanner concur.
|
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MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
The Chicago, Milwaukee and St. Paul Railway Company is a railroad corporation, organized and existing under the laws of the state of Wisconsin, having a capital stock of $232,623,100. It is engaged in the operation of its railroad, as a common carrier of passengers and freight, in and through the states of Wisconsin, Minnesota, Iowa, South Dakota, and other states. The Chicago, Milwaukee and Puget Sound Railw.ay Company, a railroad corporation organized and existing under the laws of the state of Washington, is likewise a common carrier of passengers and freight in and through the states of Washington, Idaho, Montana, and to the Missouri river in the state of North Dakota, where the lines of the two companies connect. The St. Paul Company, desiring and being about to purchase the railroad property of the Puget Sound Company, for the purpose of availing itself of the benefits of section 4299 of the Revised Codes of Montana, which requires the filing of its charter or articles of incorporation with the secretary of state, tendered to him for filing a true copy of its articles of incorporation, and also the sum of $1 in payment of the filing fee. The secretary of state refused to receive and file the articles upon the tender so made, but demanded payment of a fee amounting to $23,447.31, basing his demand upon the requirements of the provisions of section 165 of the Revised Codes. Upon his refusal to receive and file the articles without such payment, the amount so demanded was paid, under protest, however, with notice that an action would be brought to recover it back, on the grounds that said section 165, to the extent that it authorizes and requires the secretary of state to charge and collect a fee for the filing of articles of incorporation on the basis of a percentage of the entire capital stock of the St. Paul Company, is in conflict with and repugnant to the commerce clause of the Constitution of the United States, in that it imposes a tax upon the interstate business of the company ; and that the exaction and collection of the fee in question amounted to a taking of property without due process of law, in violation of the Fourteenth Amendment to the Constitution. The cause was submitted to the district court upon an agreed statement of facts sufficient in detail to present the questions raised by the position assumed by the plaintiff. The district court held the statute void, and rendered judgment for the plaintiff. The defendant has appealed.
Section 4299, supra, provides, among other things, that “any railroad company may sell or lease the whole or any part of its railroad or branches within this state constructed or to be constructed, together with all property and rights, privileges and franchises pertaining thereto, to any railroad company organized or existing pursuant to the laws of the United States or of any state or territory of the United States; * * * and the railroad company of any other state or territory of the United States which shall so purchase or lease a railroad, or any part thereof in this state, or shall extend or construct its road or any portion or branch thereof in this state, shall possess and may exercise and enjoy, as to the control, management and operation of the said road, and as to the location, construction and operation of any extension or branch thereof, all the rights, powers, privileges and franchises possessed by railroad corporations organized under the laws of this state, including the exercise of the power of eminent domain: * * * Provided, further, that before any railroad corporation organized under the laws of any other state or territory or of the United States shall be permitted to avail itself of the benefits of this Act, such corporation shall file with the secretary of state a true copy of its charter or articles of incorporation.” The part of section 165, the validity of which is brought in question, is the following: “The secretary of state, for services performed in his office, must charge and collect the following fees: * * * IY. For recording and filing each certificate of incorporation and each certificate of increase of capital stock, the following amounts shall be charged: Amounts up to $100,000, fifty cents per thousand dollars. Additional from $100,000 to $250,000, forty cents per thousand dollars. Additional from $250,000 to $500,000, thirty cents per thousand dollars. Additional from $500,000 to $1,000,000, twenty cents per thousand dollars. Additional over $1,000,000, ten cents per thousand dollars. * * * X. For filing each certified copy of charter or articles of incorporation of any foreign corporation, the same fee shall be charged as is provided for in Article IY of this section, for domestic corporations.” The question submitted for decision is whether section 165 is invalid for either or both reasons assigned by the plaintiff. In support of their contentions counsel for plaintiff cite Western Union Tel. Co. v. Kansas, 216 U. S. 1, 54 L. Ed. 355, 30 Sup. Ct. Rep. 190, later approved by the same court in Pullman Co. v. Kansas, 216 U. S. 56, 54 L. Ed. 378, 30 Sup. Ct. Rep. 232; Ludwig v. Western Union Tel. Co., 216 U. S. 146, 54 L. Ed. 423, 30 Sup. Ct. Rep. 280, and International Text-Book Co. v. Pigg, 217 U. S. 91, 18 Ann. Cas. 1103, 27 L. R. A., n. s., 493, 54 L. Ed. 678, 30 Sup. Ct. Rep. 481. These eases, particularly the first, are directly in point. In the first there was brought in question the validity of a provision of the General Laws of the state of Kansas, which, besides requiring a corporation seeking to engage in business in the state of Kansas, after having secured permission from the state charter board upon formal application made for that purpose, also required it to “pay to the state treasurer of Kansas, for the benefit of the permanent school fund, a charter fee of one-tenth of one per cent of its authorized capital upon the first one hundred thousand dollars of its capital stock, or any part thereof; and upon the next four hundred thousand dollars, or any part thereof, one-twentieth of one per cent; and for each million or major portion thereof over and above the sum of five hundred thousand dollars, two hundred dollars.” (Gen. Stats. Kan. 1901, sec. 1264.) In an elaborate opinion by Mr. Justice Harlan, in which there is an extensive review of the prior decisions of the court upon the same or analogous questions, the conclusion was reached that it is not competent for a state legislature to require a foreign corporation engaged in interstate commerce, as a condition precedent to its beginning or continuing to do business in that state, to pay a given per cent of its capital stock, representing all of its business everywhere within and outside of the state, because (1) it operates as a burden and tax on the interstate business of the corporation, in violation of the commerce clause of the Constitution, and (2) because it is a tax upon the property of the corporation beyond the limits of the state, inconsistent with the due process of law enjoined by the Fourteenth Amendment.
It is true that the method prescribed for ascertaining the tax imposed by section 165, supra, is a charge of a fixed number of cents per $1,000 of the par value of the capital stock, graduated in proportion to the amount of the capital stock; whereas, under the Kansas statute, up to $400,000 it was to be calculated by a graduated percentage, and thereafter at a uniform fixed sum per $1,000,000. This divergence in method, however, is immaterial. The vice of such legislation, as the reasoning of the court shows, consists in the nature of the burden imposed by it, and not in the amount. The method adopted for the ascertainment of the amount cannot be material, so long as the result is the same. This is apparent from the decision in Ludwig v. Western Union Tel. Co. In this case was brought in question the validity of a statute of the state of Arkansas, the purpose and effect of which was the same as that of the Kansas statute, supra. It required the payment of a license tax upon the whole of the capital stock of both domestic and foreign corporations, to be ascertained by a charge of a fixed sum, the amount of which was graduated according to the amount of the capital stock. It was held open to the same objection as was the Kansas statute. The case of Pullman Co. v. Kansas, and that of International Text-Book Co. v. Pigg, involved other provisions of the Kansas statute; but in both the court approves the decision in Western Union Tel. Co. v. Kansas as the settled law on the subject, and in the latter of them expressly declares that section 1283 of the General Statutes of Kansas, which required foreign corporations engaged in interstate commerce, as a condition precedent to doing business in the state, to obtain a license, was invalid under the commerce clause of the Constitution.
This court is concluded by these decisions, and hence must declare section 165, supra, in so far as it applies to foreign corporations seeking to engage in interstate commerce in this state, inoperative and void.
Some effort was made by counsel for appellant to maintain the contention that in each of the cases cited the question involved was whether the corporations which were already doing busi ness in a state should be excluded therefrom; whereas in this case the question is whether a corporation shall be permitted to come into this state to engage in business. A reading of these cases, however, leads to the conclusion that this difference in the situation of the parties cannot affect the result.
The judgment is affirmed.
Affirmed
Mr. Justice Holloway and Mr. Justice Sanner concur.
|
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MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the oourt.
Plaintiff brought this action to recover damages for an alleged breach by the defendant of the following contract:
“This is to certify that Preston H. Willson of Miles City, Montana, have this 12th day of April, 1909, bargained and sold to Ben Clifton of Billings, Montana, the following described livestock, and 'do hereby guarantee the title thereto, and that the said Ben Clifton of Billings, Montana, does hereby agree to purchase the said livestock at the price agreed upon: From 3,000 to 3,200 of ewes, ages as follows, about 200 head of yearling ewes, 1909, at $4.15 per head; about 1,700 head of two (2) year old ewes, 1909 ages at $4.15 per head; balance three (3) and four (4) years old about equal number of ages, 1909 ages at $4.15 per head. Said ewes to be delivered at Ismay or Terry, Montana, October first at buyer’s option. And that said Preston H. Willson of Miles City, Montana, does hereby guarantee said livestock to be all in good merchantable condition at the time of delivery and to pass the government inspection. The receipt of part payment is admitted as follows, to-wit, $800 down and $800 to be paid at the First National Bank of Miles City, Montana, July 1, 1909, or said payment is forfeited and this contract is null and void. The balance of the purchase price is to be paid on the delivery of the above sheep.
“[Signed] Preston H. Willson.
“Ben Clifton.
“By R. E. Gruwell.
“Witness: W. J. Dunnigan.”
It is alleged in the complaint, in substance, that the plaintiff performed all the conditions of the contract to be by him performed; that prior to the date fixed therein for the delivery of the ewes he notified the defendant that he would accept delivery at Terry; that the defendant refused to deliver them at Terry; that the plaintiff thereupon notified defendant that he would accept delivery at Ismay; that plaintiff was ready and willing at the time fixed to receive the ewes at Ismay, and that he offered to pay the balance of the purchase price; that defendant failed and refused to deliver them there or elsewhere, to the plaintiff’s damage in the sum of $4,446. In his answer defendant denied any breach of the contract on his part. He then alleged that about three weeks prior to October 1, 1909, it was agreed between him and the plaintiff that delivery of the ewes should be made at Ismay, and that on that date the ewes were at that place ready for delivery; that plaintiff refused to accept them, though defendant then and there offered to deliver them; that it was thereupon agreed that the plaintiff would accept delivery on October 3 or 4; that defendant was them ready to deliver them; that plaintiff refused to accept them; that, because he was required to keep them in close herd, defendant suffered a loss of 225 head of the value of $1,500; that he lost much time and was put to great expense in driving the ewes to Ismay and holding them ready for de livery, whereby he suffered additional damage to tibe amount of $1,500. He demanded judgment for $3,000. There was issue by reply.
At the trial it was conceded by plaintiff that it was agreed that delivery could be made at Ismay and that defendant was ready at that place for delivery of a sufficient number of ewes to meet the requirements of the contract. It was conceded also that the plaintiff, through his agent, R. E. Gruwell, whom he sent to Ismay to receive the ewes, refused to accept them because in his opinion they were not of the character specified in the contract. The controversy in the evidence at the trial, therefore, was entirely with reference to the questions whether or not the ewes offered to the plaintiff at Ismay were such as were specified in the contract, and what amount of damage had been suffered by plaintiff. At the close of the evidence the court ordered a nonsuit as to the defendant’s counterclaim, upon the ground that upon any theory of the case the evidence failed to show that he had been damaged in any amount. The jury returned a verdict in favor of plaintiff for $2,600, with interest on $1,600 from October 3, 1909, and judgment wias entered accordingly. The defendant has appealed from the judgment and from an order denying his motion for a new trial.
1. Counsel contend that the court erred in directing a non-suit as to defendant’s counterclaim. We think it did. It was a question for the jury, upon conflicting evidence, whether the defendant had failed to tender for delivery ewes such as the contract required and thus breached it, or whether he had fully discharged his obligation by the tender he made. A determination of this controversy in defendant’s favor would have entitled turn to a verdict for nominal damages, even though there had been no showing by his evidence of substantial loss by plaintiff’s refusal to accept. (Raiche v. Morrison, 47 Mont. 127, 130 Pac. 1074; 13 Cyc. 17; Sedgwick on Damages, 8th ed., secs. 96, 97.) It appears that within a few days after plaintiff had refused to accept delivery, and while the ewes were still held with other sheep at Ismay, the defendant sold the entire herd to one Hammond at the price specified in the contract. There was no evidence tending to show any item of special damage. Nevertheless the court should, under a proper charge, have left it to the jury to find a verdict for the defendant in nominal damages in case they found that plaintiff -had been guilty of a breach of the contract. Inasmuch as the jury found that defendant was in default, had the trial been free from error in other .particulars, we should regard the order directing a nonsuit as error without prejudice. Since, however, the defendant is entitled to a new trial because of error in the instructions, we have deemed it necessary to state our views with reference to this feature of the ease.
2. These remarks dispose of the -contention- that the- evidence is insufficient to justify the verdict. It presents a case upon conflicting evidence as to who was in default.
3. The court submitted to the jury these instructions: (2) ‘ ‘ The defendant in this action having failed to present sufficient competent evidence to sustain his claim for damages- alleged to have been suffered by him, you are instructed that the plaintiff is entitled to have returned to him the moneys paid in part performance of the contract in question, to wit, the sum of $1,600, together with interest thereon at the rate of eight per cent per -annum from October 3, 1909, and this irrespective of whom- you may find to have been at fault in the failure to carry out the contract in question.” (15) “ * * In this case your verdict must be for the plaintiff, but you must find and determine from the evidence to what amount he is entitled under the evidence and these instructions and insert such amount, not- exceeding $4,150, in your verdict. ’ ’
In another part of the charge the jury were told that the plaintiff was not entitled to recover -any amount -over and above the $1,600 advance payments, with interest, unless they also found that the defendant -had failed to tender delivery of ewes of the Character specified in the contract; but that if they did so find they should award, as additional damages, such an amount as would be equal to the excess of the value of the property to the plaintiff over the contract price. The theory adopted by the court seems to have been this: That under the various provisions of the Revised Codes, damages are in all cases to be measured by the standard of compensation for the detriment suffered (Rev. Codes, secs. 6038, 6040, 6041, 6048, 6086); that save in exceptional cases a stipulation in a contract of a sum to be paid as liquidated damages as compensation for a breach is void and cannot be enforced (secs. 5054, 5055) ; and that it must therefore follow that under the provision found in section 6039, since defendant had failed to show that he had suffered substantial detriment, he was not entitled to further consideration, and plaintiff must be allowed to recover the amount of the advance payments. In other words, if he were not permitted to recover, he would be denied the relief to which he is entitled under section 6039. We think this theory erroneous. Section 6039 declares: “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.” By its terms it applies to those cases in which a plaintiff has incurred a forfeiture of payments- already made or of the value of some act done in part performance of the contract, by a breach in failing fully to perform, and is seeking relief therefrom. It is based upon the principle that he who seeks equity must do, or offer to do, equity; and to obtain relief he must by his allegations and proof bring -himself within its purview.
At the common law, one who was guilty of a breach of his contract by stopping short of full performance could' not recover -payments made prior to the breach, for the obvious reason that it is the policy of the law to compel parties to live up to their agreements and not encourage them in their violation. This rule is recognized by all the courts, so far as we are aware. (Perkins v. Allnut, 47 Mont. 13, 130 Pac. 1, and cases cited.) We cite also the following cases: Neis v. O’Brien, 12 Wash. 358, 50 Am. St. Rep. 894, 41 Pac. 59; Witherow v. Witherow, 16 Ohio, 238; Rayfield v. Van Meter, 120 Cal. 416, 52 Pac. 666; Haynes v. Hart, 42 Barb. (N. Y.) 58; Walter v. Reed, 34 Neb. 544, 52 N. W. 682; Leonard v. Morgan, 6 Gray (Mass.), 412; Jones v. Marsh, 22 Vt. 144; Stevens v. Brown, 60 Iowa, 403, 14 N. W. 735; Colvin v. Weedman, 50 Ill. 311; Eddy & Bissell L. S. Co. v. Blackburn, 70 Fed. 949, 17 C. C. A. 532; Hapgood v. Shaw, 105 Mass. 276; Hansbrough v. Peck, 5 Wall. (U. S.) 497, 18 L. Ed. 520. In this latter case it was said: “No rule in respect to the contract is better settled than this: That the party who has advanced money, or done an act in part performance of the agreement, and then stops short and refuses to proceed to its ultimate conclusion, the other party being ready and willing to proceed and fulfill all his stipulations according to the contract, will not be permitted to recover back what has thus been advanced or done.” In such cases the adverse party was entitled to retain advance payments or the benefit of an act done in part performance, whether the contract, as here, provided for a forfeiture or not. (Glock v. Howard & Wilson Colony Co., 123 Cal. 1, 69 Am. St. Rep. 17, 43 L. R. A. 199, 55 Pac. 713; Tiedeman on Sales, sec. 129.) Manifestly, therefore, the purpose of the section is to provide a remedy by which the party in default may have relief, if he can allege and prove facts and circumstances upon which, in equity and good conscience, he should have relief from the consequences of his own default, and which also excuse him from the imputation of gross negligence, or willful or fraudulent breach of duty.
This view of the provision is consonant with the theory of compensation embodied in sections 6038, 6040, 6041, 6048, and 6068, and also 5054 and 5055, which prohibit parties to contracts from stipulating therein for liquidated damages to be paid for a breach thereof which may occur, save in the exceptional cases mentioned. Under these provisions, the courts, in adjusting the rights of parties after a breach has occurred, may not permit recovery in any case of a greater or less sum than will compensate the injured party for the detriment suffered by him. By way of supplement to them and in recognition of the rule of compensation established by them, the legislature enacted section 6039, not to abrogate but to modify the rule as stated in the cases cited supra, to the end that a party in default who would otherwise suffer total loss of all advance payments made or of the value of a thing done in part performance of his contract may, in proper cases, recover something notwithstanding he is in default. This must be so, otherwise its presence in the Code cannot be accounted for. Since the language of section 5054 is general, every contract containing a stipulation such as is denounced therein is prima facie void as to the stipulation. Therefore, when recovery is sought upon it, the plaintiff’s allegations and proof must bring it within the exception'provided in section 5055. (Deuninck v. West Gallatin I. Co., 28 Mont. 255, 72 Pac. 618; Long Beach City School Dist. v. Dodge, 135 Cal. 401, 67 Pac. 499.) The same rule is applicable when- relief is sought under section 6039. Prima facie, one who has violated a contract is not entitled to any relief. If he seeks it, he must put himself within- the exception created by the statute; that is, within its equity. Any other rule would enable him to make out a prima facie case by a bald allegation that he has partly performed his agreement, that he has determined not to proceed further toward its final conclusion, and that he desires to be relieved from the consequent forfeiture which the law has declared. Adopting the language of the court in Witherow v. Witherow, supra: “The establishment of such a principle would have a tendency to encourage the violation of contracts — -to diminish in the minds of contracting parties a sense of the obligation which rests upon them to perform their agreements. Any principle which would have such an effect ought not to be recognized as sound law. It is the duty of courts to enforce the performance of contracts, not to encourage their violation.” The case of Rayfield v. Van Meter, supra, is on principle directly in point in support of our view, the section of the statute of California, cited (Cal. Civ. Code, sec. 3275) as authority for the conclusion stated, being identical with section 6039, supra.
The statute has no application to a case where, as in this case, the plaintiff seeks to recover damages for a breach by the defendant. While he is seeking to recover his advance payments as a part of the compensation due him, the plaintiff assumes to stand strictly upon his legal rights — risking his chance of ultimate recovery exclusively upon his alleged ability to show that his loss has been due to defendant’s failure to deliver the ewes according to his agreement. For these reasons we think defendant entitled to a new trial.
Counsel for plaintiff argue that, even so, the defendant was not prejudiced because the jury found that he failed to tender delivery of ewes of the character stipulated for in the contract. Instruction 15, however, in effect withdrew from the jury entirely the question whether the plaintiff or defendant was in default. It assumed that defendant was and left it to the jury to determine only the amount of damages plaintiff should recover, if any, in addition to the amount of the advance payments; whereas the evidence as to who was in default was conflicting. It was the province of the jury to find on this question and to return a verdict for the defendant if they found that he had made tender of delivery in conformity with the terms of the contract.
Nor is plaintiff in any better position because, after he peremptorily refused to accept delivery, defendant sold the ewes at the contract price to Hammond. Defendant was not bound to hold them, indefinitely. The plaintiff refused to accept them and renounced the contract. He could not thereafter claim that defendant was bound to keep them for his benefit at the peril of incurring the obligation to refund the advance payments. If this were so, the result would be that plaintiff by his own wrong could compel the defendant to retain the property which his necessities might require him to sell. This would be unreasonable, and cannot be justified on any principle of law. (Ketchum v. Evertson, 13 Johns. (N. Y.) 359, 7 Am. Dec. 384; Rayfield v. Van Meter, supra; Neis v. O’Brien, supra; McKinney v. Harvie, 38 Minn. 18, 8 Am. St. Rep. 640, 35 N. W. 668.)
4. The correctness of several rulings made by the court in the admission and exclusion of evidence is drawn in question. We do not find material error in any of them.
The judgment and order are reversed, and the cause is remanded for a new trial.
Reversed and remanded.
Mr. Justice Holloway concurs.
Mr. Justice Sanner, being disqualified, did not bear the argument and takes no part in the foregoing decision.
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MR. JUSTICE SANNER
delivered the opinion of the court.
Edward J. Murphy died on November 27, 1909, leaving an estate worth approximately $30,000, and one heir at law, his mother, Mary Murphy, the respondent on this appeal. His other near relatives are a full sister, Anna B. Nett, the appellant here, and two brothers and three sisters of the half blood. An. instrument purporting to be his last will and testament, executed December 12, 1908, was offered by the appellant for probate, and its right to be received and regarded as his last will and testament is contested by the respondent, upon the grounds that at the time of its execution the testator lacked testamentary capacity, and was acting under undue influence of the appellant. By the terms of this will one dollar was given to each of the half brothers and sisters, and the balance of his property was left to appellant, on condition that she should, out of the property, support and care for the respondent during the remainder of respondent’s life.
This is the second appeal in this matter. On the former appeal (see In re Murphy’s Estate, 43 Mont. 353, Ann. Cas. 1912C, 380, 116 Pac. 1004), the judgment in favor of respondent was reversed, and the cause remanded for a new trial on account of certain errors in the instructions. The case was retried, and the jury found for the respondent upon .the issue of testamentary capacity. This appeal is from an order denying appellant’s motion for a new trial.
1. The respondent suggests that this appeal ought not to be considered, because an appeal was taken from the judgment herein and dismissed on motion of respondent, and because the appellant has, by failure to discuss it, abandoned specification No. 3, which claims error in the overruling of the motion for new trial. Concerning the appeal from the judgment, the argument is that by its dismissal the judgment was affirmed and became final, and cannot now be undermined by a reversal of the order overruling the motion for new trial. In Molt v. Northern Pac. Ry. Co., 44 Mont. 471, 120 Pac. 809, we considered some of the difficulties incident to our present appellate procedure; and it is a necessary consequence from what is there said that, where separate appeals, permissible under the statute, are taken in the same case, the fate of one is not necessarily involved in the fate of the other. Nor is there any merit in the supposed abandonment of specification No. 3. While we do not find in appellant’s brief any discussion of specification No. 3 eo nomine, the entire brief reads like an argument devoted to the theme that the motion for a new trial should have been sustained.
2. It is contended that the allegations of undue influence, as set forth in the amended statement of contest, were insufficient, and that the trial court erred in not eliminating this subject from the case. Doubt may be entertained as to whether this matter was ever properly raised in the district court; but, assuming it to be properly before this court, it presents two aspects: As affecting the integrity of the judgment, and as furnishing a basis for the introduction of evidence. As regards the integrity of the judgment, the question is purely academic, because there was no finding of undue influence. There were sufficient allegations in the amended statement of testamentary incapacity, and upon that only was there any finding by the jury. Since this finding is the sole support of the judgment, it cannot matter to the judgment what may be the deficiency in the allegations relating to undue influence. (In re Murphy’s Estate, supra.) Vigorous language is employed, however, to convince us that, if the subject of undue influence had been eliminated from the pleadings, no testimony could have been received upon it; and that, inasmuch as a great part of the record consists of such testimony, clearly creative of prejudice in the ordinary mind, its effect in producing the finding upon the other issue must be manifest, and this court should send the case back for a new trial. There is enough merit in this to warrant a determination of the question raised.
“Undue influence,” as applied to cases of wills, has been variously defined. In the former appeal of this case it was stated to be such as “imposes a restraint on the will of the testator, who, but for the restraint, would be free and responsible, so that his testamentary act is not the result of his own volition, but the will of another”; and this, in connection with our statute (Rev. Codes, sec. 4981), is sufficient for all practical purposes. The theory underlying the doctrine of undue influence is that the testator is induced, by the means employed, to execute an instrument in form and appearance his will, but in reality expressing testamentary dispositions which he would not have voluntarily made. (40 Cyc. 1146; Page on Wills, sec. 126, p. 145.) To defeat a will, the undue influence must have been directed toward the particular testamentary act and at the time thereof, or so near thereto as to be operative. (40 Cyc. 1145; Page on Wills, sec. 130, p. 151.) As such influence is seldom exercised openly, it cannot be expected that a pleading should specify with particularity the entire details of the manner in which it was used. If ultimate facts are alleged from which the legal conclusion of undue influence fairly follows, it is sufficient to support proof. (Estate of Gharkey, 57 Cal. 274; Sheppard’s Estate, 149 Cal. 219, 85 Pac. 312.)
Now, as constituting undue influence, the amended statement at bar alleges that when the will was made, the decedent was, and for a long time prior thereto had been, so afflicted with disease of the body and mind that he was unable to properly take care of himself, and was in constant need of the care and attention of some other person, and became so weakened in mind and body and reasoning faculties that he was easily influenced by those under whose care and into whose custody he came; that during all such time appellant acted as guardian and custodian of his person and property, was almost constantly with him, and he was entirely dependent on her for the care and attention of which he stood in need; that as a patient he was constantly in charge of physicians and nurses selected and employed by her; that by reason of all these things she acquired and had, at the time the will was made, a great and controlling influence over his mind and will, and was able to and did direct and dictate to him what he should do in matters pertaining to his property; that, “taking a grossly oppressive and unfair advantage of his necessities and distress of mind and body,” she did, many times before the will was made, “demand and importune of him that he leave all his property by will to her, to the exclusion of all his other relatives, and particularly to the exclusion of his mother, the contestant herein”; that by reason of such demands and importunities she did so prevail upon and influence him in his then weakened condition of mind and body at the time the will was made that he did, against his will and wish, “in form execute the said purported will,” but said will was not his free or voluntary act, and, had he been free from the said undue influence of appellant, he would not have made the will in question.
“Demands and importunities,” it is said, are all that is here alleged,- and as demands and importunities may be entirely proper, they cannot alone support the charge of undue influence. We think that counsel unduly restrict the effect of respondent’s allegations by ignoring the circumstances. In a case involving undue influence the question is not what effect the supposed influence would have had upon an ordinarily strong and intelligent person, but its effect upon the person on whom it was exerted, taking into consideration the time, the place and all the surrounding circumstances. (Page on Wills, sec. 126, p. 146; Mooney v. Olsen, 22 Kan. 69; Gurley v. Park, 135 Ind. 440, 35 N. E. 279; Griffith v. Diffenderffer, 50 Md. 466; Shailer v. Bumstead, 99 Mass. 112; Rollwagen v. Rollwagen, 63 N. Y. 504.) To say that demands and importunities can in no case amount to undue influence, unless coupled with fraud, threats or misrepresentation, is to misapprehend the purport of our statute and to beg the question. "Whether they do or do not depends upon what they are, how persistently and under what circumstances they are employed, and whether the mind of the testator is so infirm as to be overpowered by them. It is here charged that the demands and importunities in question were of a certain peculiar character, were plied by a person standing in a certain special and controlling relation to the testator, at a certain period of time when, by reason of mental weakness, he was unable to resist, and that they caused him to do what he did not want to do, and would not have done if left alone. While we do not acclaim the pleading before us as a model, we think that, under such circumstances as are detailed, it is quite possible for demands and importunities to amount to undue influence, without actual fraud, menace or misrepresentation (Hacken v. Newborn, Style, 427; Hall v. Hall, L. R. 1 Prob. Div. 481; Wingrove v. Wingrove, L. R. 11 Prob. Div. 81; Roman Catholic Episcopal Corp. v. O’Connor, 14 Ontario L. R. 666; Higginbotham v. Higginbotham, 106 Ala. 314, 17 South. 516; Barlow v. Waters (Ky.), 28 S. W. 785; Gordon v. Burris, 141 Mo. 602, 43 S. W. 642; Chappell v. Trent, 90 Va. 849, 19 S. E. 314; Lehman v. Lindenmeyer, 48 Colo. 305, 109 Pac. 956) ; and therefore the pleading was sufficient as a basis for the introduction of evidence upon this subject.
3. Complaint is made of the denial of appellant’s motion to strike paragraphs 6 and 7 from the amended statement, and of the admission in evidence of the facts that in 1901 respondent made a will leaving all of her property to the decedent, and that in 1906 she made a transfer by deed and bills of sale of all her real and personal property to him. If these facts were admissible in evidence on any theory, then we need not inquire whether error occurred in the refusal to strike the allegation of them from the pleading, because it could have had no prejudicial effect. As to the facts themselves, while they may appear remote and the deduction from them far-fetched, it cannot be said, as a matter of law, that they were not admissible on any theory. Indeed, appellant’s counsel, on page 79 of their brief, seem to concede that such evidence might be competent if it were made to appear that, in pursuance of a purpose to secure all this property through undue influence upon the decedent, she had induced the respondent to make the will and transfer; and this is precisely what the pleading attempts to say. But independently of that the evidence was admissible. While the injustice or unreasonableness of a will is never alone sufficient to cause its rejection, it is always a circumstance bearing upon testamentary capacity and upon undue influence. (In re Wilson’s Estate, 117 Cal. 262, 49 Pac. 172; Sim v. Russell, 90 Iowa, 656, 57 N. W. 601.) That his mother had willed and later had transferred to the decedent all her property, and that he knew these things before his will was made, were facts illustrating the reasonableness of his will, his realization of the extent and character of his property, and his ability to appreciate the special claims she had thereby created upon him. (Pergason v. Etcherson, 91 Ga. 785, 18 S. E. 29; Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405; Floore v. Green (Ky.), 83 S. W. 133; Lehman v. Lindenmeyer, supra; In re Ruffino’s Estate, 116 Cal. 304, 48 Pac. 127; Gunn’s Appeal, 63 Conn. 254, 27 Atl. 1113; Glover v. Hayden, 4 Cush. (Mass.) 580.)
4. Upon the trial a motion by appellant to strike certain testimony given by Mrs. Murphy touching her manner of living was denied. The court could very well have stricken this testimony, for it was manifestly improper and could serve no legal purpose. But error cannot be claimed because the evidence was evoked in response to five separate interrogatories, none of which were objected to. This court has repeatedly held that a party may not sit by in silence while objectionable questions are being asked and answered, and then complain because the record is not cleared on his motion to strike. (Cohen v. Clark, 44 Mont. 151, 119 Pac. 775.)
5. Over the objection of appellant “that one legatee or beneficiary of the will is not competent to make admissions affecting the validity of the will,' so far as the sanity or insanity of the testator is concerned, ’ ’ certain statements, claimed to have been made by her, were admitted as declarations against interest. It is not necessary to state them in detail, because we think they were all admissible as against the objection made. It is elementary that upon a trial evidence may be given of the act, declaration or admission of a party as evidence against such party. (Rev. Codes, sec. 7887.) Doubtless, in will contests this rule is to be considered as modified by another: That, where there are two or more legatees or beneficiaries under the will having a common or several, but not joint, interest in its provisions, the declarations of one of them as to testamentary capacity or undue influence are inadmissible to affect its validity, because the will cannot be defeated as to such legatee without being defeated as to all. (Wood v. Carpenter, 166 Mo. 465, 66 S. W. 172; McConnell v. Wildes, 153 Mass. 487, 26 N. E. 1115; Shailer v. Bumstead, supra; Fothergill v. Fothergill, 129 Iowa, 93, 105 N. W. 377; Campbell v. Campbell, 138 Ill. 612, 28 N. E. 1080; In re Snowball’s Estate, 157 Cal. 301, 107 Pac. 598; In re Myer’s Will, 184 N. Y. 54, 6 Ann. Cas. 26, 76 N. E. 920; In re Dolbeer’s Estate, 153 Cal. 652, 15 Ann. Cas. 207, 96 Pac. 266.) But this case affords no occasion to apply the modification, because there is no one to be adversely affected by avoiding the will, save appellant herself. As to the brothers and sisters who are mere nominal legatees, recipients of a sum established by custom as a polite mode of disinheritance, it is a case where the law does not care for trifles. The real parties in interest are two, the appellant and the respondent; one, the sole substantial devisee under the will, offering it for probate; the other, sole heir at law, resisting probate. Under such circumstances the declarations or admissions of the devisee, if otherwise competent, ought to be, and are, admissible. (Egbers v. Egbers, 177 Ill. 82, 52 N. E. 285; Teckenbrock v. McLaughlin, 209 Mo. 533, 108 S. W. 46; In re Myer’s Will, supra; Stull v. Stull, 1 Neb. (Unof.) 389, 96 N. W. 196; Beyer v. Schlenker, 150 Mo. App. 671, 131 S. W. 465; Wallis v. Luhring, 134 Ind. 447, 34 N. E. 231; Perret v. Perret, 184 Pa. 131, 39 Atl. 33.) By instruction 21 the court sought to limit the jury, in their consideration of these declarations, to the question of undue influence; if there was any error in this, appellant cannot complain, as it was to her advantage.
6. Two physicians, called in rebuttal as insanity experts, were permitted to testify that, in their opinion, the testator could not have had a lucid interval when the will was made. Counsel for appellant say that this was the same as permitting the doctors to decide the very question before the jury, whether the testator was capable of making a will, and approved authority is cited to show that the province of the jury may not be thus invaded. We assent to the rule invoked, but not to its application. The decedent was shown to have been insane before December 1, 1908, and after Christmas of that year. He died the following year of dementia, which is the terminal stage of insanity in many of its forms, and a controversy had developed as to the nature of this insanity. It was the contention of the appellant that on December 12, 1908, the decedent was sane, was enjoying a lucid interval, and this, supported by formidable evidence, was consistent with the nature of his disease as asserted by her medical witnesses. For the opposition it was sturdily maintained that the disease was paresis, a general, progressive, permanent, incurable condition admitting no such thing as a lucid interval; if this were true, then the questions asked were but another way of emphasizing the respondent’s contention as to the nature of the disease, and of inquiring whether the testator was of sound mind when the will was made. So considered, the question was within the scope of expert testimony.
7. Error is assigned upon the refusal of certain instructions and the giving of certain others. Appellant’s offered instruction No. 5 was properly refused. It charged the rule to be that a less degree of mind is required to execute a will-than a con tract, etc., and many decisions are cited to show that this is good law, and should have been given to the jury. Respondent’s counsel, on the other hand, present authorities which hold that the capacity to make a valid will or to make a contract is precisely the same, and that was the ground of their objection to the instruction. With all due respect to these learned decisions, we think that in such matters comparisons are odious, and, for purposes of instructing the jury, wholly unnecessary. To make a will or contract implies more than merely signing it, and it contravenes human experience to say that the conception, ordering and comprehension of a will dispensing, with care and precision, extensive property, involving, it may be, charities and-trusts of various kinds, requires less capacity than the purchase of a bar of soap; or that the same intellectual capacity is required for the simple holograph, “I leave all my property to my wife,” and for the elaboration of a complex trade agreement designed to accomplish far-reaching results. The conclusion of common sense is that it takes more mind to make some wills than to make some contracts, and vice versa; and there is excellent authority for the rule that, while contractual capacity implies prima facie the capacity to make a will, yet neither is a test for the other, and the presence or absence of one does not conclusively establish the presence or absence of the other. (Page on Wills, sec. 96; Turner’s Appeal, 72 Conn. 305, 44 Atl. 310; Brown v. Mitchell, 88 Tex. 350, 36 L. R. A. 64, 31 S. W. 621; Segur’s Will, 71 Vt. 224, 44 Atl. 342; American Bible Society v. Price, 115 Ill. 623, 5 N. E. 126; Greene v. Greene, 145 Ill. 264, 33 N. E. 941.)
Appellant’s offered instruction No. 7 was substantially covered by the given instructions Nos. 6 and 8. The court’s instruction No. 7 is attacked as assuming the testator’s insanity, and as imposing upon the appellant a greater burden than properly belongs to her. U]3on first reading this seems to be the case; but carefully read, and taken in connection with the other instructions, we do not think that No. 7 could have been so misleading or fruitful of prejudice to the appellant as to require a reversal of this case.
8. An exception appears to the ruling admitting certain testimony of the witness Taylor. This testimony was given on redirect examination, and he was entitled, after the plight in which the cross-examination had put him, to explain himself as best he could.
9. Upon the former appeal this court entered into a somewhat extended discussion of the evidence presented to show testamentary incapacity; with the result that, while it was characterized as “not as satisfactory as it might be,” it was still held sufficient. There is nothing in the present record to require a change in either the characterization or the conclusion. There was ample evidence to sustain the will, and there was substantial evidence against it. Under such circumstances we may not substitute our judgment for that of the judge and jury who tried the issue and had the advantage of personal observation of the witnesses. (In re Noyes’ Estate, 40 Mont. 178, 105 Pac. 1013; In re Murphy’s Estate, supra; In re Wilson’s Estate, supra.) So, also, as regards the submission to the jury of the issue of undue influence. Taken at its utmost inferential value, the evidence on this subject was sufficient to warrant the action of the court.
There is no reversible error in the record, and the order appealed from is affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
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MR. JUSTICE SANNER
delivered the opinion of the court.
On November 4, 1911, the respondent, Matthew Cullen, brought this action as plaintiff against the American Mining Company, Ltd., H. H. Stackpole, Carl Kleinschmidt, Albert Kleinschmidt, George F. Hale, Alfred W. Hale, Mattie F. Curtis, John G. Brown, Reinhold H. Kleinschmidt, Western Mortgage & Warranty Title Company, and Anna Davenport, to quiet the title of respondent to an undivided 4/15 interest in what is called the Narragansett Lode. The complaint is in the simple form alleging ownership of such interest in the plaintiff; that the defendants named claim some -estate or interest adverse to him, and that the claims of defendants are without right.
The defendants American Mining Company, Ltd., H. H. Stackpole, Carl Kleinschmidt, George F. Hale, Alfred W. Hale and Anna Davenport defaulted. Separate answers to the complaint were filed as follows: By the Western Mortgage & Warranty Title Company, denying that plaintiff has any interest in the property, alleging ownership of the whole of said property and that the Western Mortgage & Warranty Title Company and its predecessors in interest had been in the quiet and peaceable possession thereof since January 20, 1902, asserting that plaintiff and the other defendants named claim, but without right, some interest in the property, and praying that the title of the Western Mortgage & Warranty Title Company in the same be quieted; by Mattie F. Curtis, disclaiming any knowledge of plaintiff’s claim and asserting an undivided 1/48 interest in the property; by John G. Brown, disclaiming any interest in the property, and alleging that he had conveyed all his interest to the Western Mortgage & Warranty Title Company; by Reinhold H. Kleinsehmidt, disclaiming any interest in the property, and alleging that he had conveyed all his interest to the Western Mortgage & Warranty Title Company; by Frank H. Cooney, substituted in place of George F. Hale, admitting plaintiff’s interest as asserted, denying any daifa thereto, denying that the Western Mortgage & Warranty Title Company is the owner of the property or has any interest therein, save an undivided 1/48 interest, and alleging an undivided 3/20 interest by conveyance from George F. Hale. The plaintiff replied to the answer of the Western Mortgage & Warranty Title Company, denying its claim, and also replied to the answer of Mattie F. Curtis, disclaiming any knowledge as to hers. On July 8, 1912, Lucina S. Wadsworth filed her complaint in intervention, asserting ownership to an undivided 2/15 interest by virtue of the last will^and testament of Samuel H. Stuart, deceased, admitting the asserted claims of plaintiff Cullen, of defendant Curtis and of defendant Cooney, and also that John H. Johns owns a 1/24 interest, the American Mining Company an 11/30 interest, and the Western Mortgage & Warranty Title Company a 1/48 interest, and denying that the Western Mortgage & Warranty Title Company is the owner of the property or of any interest therein greater-than a 1/48. On July 10, John H. Johns filed his complaint in intervention, asserting ownership of a 1/24 interest in the property, admitting the asserted claims of plaintiff Cullen, of defendant Curtis and of defendant Cooney, and also that the American Mining Company owns an 11/30 interest and the Western Mortgage & Warranty Title Company a 1/48 interest, but denying that the Western Mortgage & Warranty Title Company is the owner of the property or has any interest therein greater than a 1/48.
On July 12, 1912, the above-named parties entered into a stipulation to submit the cause to the court upon the following agreed facts: That in 1892 the title to the property in question stood of record and was in fact vested in Alfred W. Hale (an undivided 7/60), George F. Hale (an undivided 7/60), Matthew Cullen (an undivided 4/15), Samuel H. Stuart (an undivided 2/15), and the American Mining Company, Ltd. (an undivided 11/30); that save as affected by the tax deed hereinafter referred to, the title so remains, except that in or since 1905 the above interests of Alfred W. Hale and George F. Hale became vested in John H. Johns (an undivided 1/24), Mattie F. Curtis (an undivided 1/48), Western Mortgage & Warranty Title Company (an undivided 1/48), and Frank H. Cooney (an undivided 3/20), and that the above interest of Samuel H. Stuart became vested in Lueina S. Wadsworth as his executrix and devisee; that in 1897 the property was assessed to Samuel H. Stuart and S. H. Stackpole for back taxes for 1891, 1892, 1893 and 1894, and such not having been paid, the property was on February 12, 1898, after due and regular notice, offered for sale and a certificate of sale was issued to Silver Bow county for all property offered for sale on February 12, 1898, a list of which, attached to the certificate, included the property in question ; that said property was redeemed from said sale on August 9, 1911, by Beinhold H. Kleinschmidt and whatever interest he thus acquired was before the commencement of this action conveyed to the Western Mortgage & Warranty Title Company; that in 1898 the property was assessed to “American Mining Company et al.,” taxes were levied and became delinquent, and on January 27, 1899, after due and regular notice, it was offered for sale and a certificate of its sale was issued to Lee Davenport; that on January 5, 1902, Lee Davenport filed with the treasurer his affidavit and notice of application for tax deed, and on January 28, 1902, a tax deed to said property was by the treasurer issued and delivered to said Davenport; that .whatever interest said Davenport acquired by virtue of said deed has be come vested in the Western Mortgage & Warranty Title Company.
It does not specifically appear when the agreed statement of facts was filed; but on July 23, 1912, Mattie F. Curtis and John H. Johns filed their separate replies to the answer of the Western Mortgage & Warranty Title Company, in effect denying the claim of ownership asserted by it; whereupon the following proceedings were had in court: “This eause coming on this day regularly on argument upon the agreed statement of facts heretofore filed herein, the parties being represented by their respective counsel, * * * it was stipulated and agreed * * * that the answer of the Western Mortgage & Warranty Title Company on file herein should stand as the answer to the complaint in intervention of John H. Johns and to the separate answer of Mattie F. Curtis, and that the replies of John H. Johns and Mattie F. Curtis filed and entered herein on this day should be deemed replies to the said answer of the Western Mortgage & Warranty Title Company; thereupon Massena Bullard, counsel for the Western Mortgage & Warranty Title Company, moved the court for leave to file an amendment to the separate answer of said Western Mortgage & Warranty Title Company, setting up a third affirmative defense which said proposed amendment is in the words and figures as follows, to wit: ‘ Third: For a third defense: That the plaintiff’s cause of action is barred by the provisions of section 2654 of the Revised Codes of Montana of 1907, as amended by Chapter 50 of the Laws of the Eleventh Session of the Legislative Assembly of the State of Montana.’ To the granting of which amendment * * * counsel for adverse parties objected, * * * which objection * * * was by the court sustained, and an exception to the ruling of the court noted on the part of the Western Mortgage & Warranty Title Company. Thereupon the ease was fully argued by counsel for the respective parties and submitted to the court for consideration and decision and the case was by the court taken under advisement.” On September 9, 1912, the action was dismissed as to the defendant Carl Kleinschmidt; testimony was taken as to the defendants who had defaulted, and a general finding was made by the court in favor of plaintiff Cullen, the interveners Wadsworth and Johns, and the defendants Curtis and Cooney, and against the defendant Western Mortgage & Warranty Title Company. The.judgment which was filed on September 10, 1912, decrees that the interests in the property are as follows: To plaintiff Cullen, 4/15; to intervener Johns, 1/24; to intervener Wadsworth, 2/15; to defendant Curtis, 1/48; to defendant Cooney, 3/20; and to defendant Western Mortgage & Warranty Title Company, 1/48. The costs of plaintiff, the interveners and the prevailing defendants are taxed against the Western Mortgage & Warranty Title Company, and it is decreed to be barred from asserting any claim to the property over and above an undivided 1/48 interest. From this judgment and from an order denying its motion for a new trial, the Western Mortgage & Warranty Title Company has prosecuted these appeals.
The principal question involved is the construction and application of section 2654, Revised Codes, as amended by Chapter 50, Session Laws of 1909. Section 2653, Revised. Codes, provides that the matters recited in the certificate of sale must be recited in the tax deed and that such deed, when duly acknowledged or approved, is prima facie evidence of certain things. Section 2654 as amended, provides that such deed, except as against actual fraud, is conclusive evidence of all other proceedings from the assessment by the assessor to the execution of the deed, ‘ ‘ and no action can be maintained to set aside or annul a tax deed, upon any ground whatever, unless the action is commenced within two years from and after the date of issuance of such tax deed; provided, that any existing right of action to set aside or annul any tax deed, heretofore issued, shall be barred unless instituted within two years from and after the passage of this Act.” (Sess. Laws 1909, p. 58.) It is argued by the respondent : (1) That the deed is void upon its face and therefore the above statute has no application; (2) that the sale to Davenport was void because at the time thereof, the property stood unredeemed from a previous sale to Silver Bow county; and (3) that the deed is void for want of jurisdiction in the treas urer to issue it because of fatal defects in the affidavit of the purchaser. The appellant, contending that the deed is valid on its face, insists that error was committed in the admission and consideration of the certificate of sale to Silver Bow county (Exhibit “A”) and the affidavit and notice of Lee Davenport for the tax deed (Exhibits “C” and “D), on the ground that under the section above quoted the deed was conclusive as to every matter to which these exhibits could be relevant. Error is also assigned upon the refusal of the trial court to allow the amendment to the appellant’s answer wherein it was sought to plead section 2654 as a limitation.
1. The deed recites that the property was sold for taxes upon an assessment to “American Mining Co. et al.” It is urged that this implies some knowledge or understanding upon the part of the assessor that others than the American Mining Company were owners and that since our statute requires that property subject to taxation be assessed to the owner, if known, or if not known, to “unknown owners,” the assessment is void, and if the deed shows such an assessment it is void upon its face. Were the question an open one in this state, the weight of authority might compel a recognition of the fact that the duty of the assessor was to assess to all the owners where they were known to or could readily have been ascertained by him, and that such an assessment as the one in question is- without validity. (McWilliams v. Gulf States L. & T. Co., 111 La. 194, 35 South. 514; Norres v. Hays, 44 La. Ann. 907, 11 South. 462; Asper v. Moon, 24 Utah, 241, 67 Pac. 409; Clark v. Bragdon, 37 N. H. 562; Weiwreich v. Hensley, 121 Cal. 647, 54 Pac. 254; De Frieze v. Quint, 94 Cal. 653, 28 Am. St. Rep. 151, 30 Pac. 1; Greenwood v. Adams, 80 Cal. 74, 21 Pac. 1134; Pearson v. Creed, 78 Cal. 144, 20 Pac. 302; Daly v. Ah Goon, 64 Cal. 512, 2 Pac. 401.) But the question is settled otherwise in this state by the provisions of section 2672, Revised Codes, and by the construction thereof as twice announced by this court, to the effect that when land is sold as the property of a particular person for taxes which have been correctly imposed upon the land, no misnomer or other mistake relating to the ownership thereof affects the sale or renders it void, or voidable (Cobban v. Hinds, 23 Mont. 338, 349, 59 Pac. 1; Birney v. Warren, 28 Mont. 64, 72 Pac. 293), such mistake being in the nature of an irregularity or informality only. (Cobban v. Hinds, supra.)
We cannot seriously consider the proposition that the tax deed is void because it does not state the year in which the assessment was made. Section 2653 required the deed to recite the matters that must be recited in the certificate of sale; and section 2641 requires the certificate to recite, among other things, the year of the assessment. The deed recites that the property in question “was subject to taxation for the year 1898,” and that it was duly assessed “for said year”; that the assessment for “said year” was duly equalized and the sum of $1.49 taxes was duly levied against it “for said year.” When it is remembered that the rule in this state is to assess in the year for which the taxes are payable, and that the assessment, equalization and levy all occur in the same year, it would be a refinement to say that the deed is silent as to the year of the assessment or the year in which the assessment was made. No set form of words is prescribed for the recital, and while the deed may not be perfect in phrase in this regard, it is not in the same condition as that condemned by the California supreme court in Simmons v. McCarthy, 118 Cal. 622, 50 Pac. 761. Protection to the delinquent owner against the taking of his property without due process of law does not go to the length of requiring that' tax proceedings “be criticised with microscopic nicety,” or that tax deeds shall be rejected for every insignificant departure from verbal precision. (Casey v. Wright, 14 Mont. 315, 36 Pac. 191.)
2. Concerning Exhibit “A,” the theory of respondent is that the property having been sold in 1898 to the county for delinquent taxes, it could not again be sold or exposed for sale until the period of redemption had expired, and therefore the sale in 1899 to Lee Davenport was void. Whether or not this exhibit was inadmissible in consequence of section 2654, we agree with the appellant that it should have been excluded on other grounds. It shows upon its face that all the real property in Silver Bow county the taxes upon which were then delinquent, though belonging to various owners, was sold at one time for a lump sum to Silver Bow county, “he being the person who would take the least quantity sufficient to pay the taxes, penalty,” etc. Such a sale has no validity (Casey v. Wright, supra; Rush v. Lewis & Clark County, 36 Mont. 566, 93 Pac. 943), and could not constitute any obstacle to the proceedings of the following years. For reasons, however, which will presently appear, we do not deem the error in admitting this exhibit as of any consequence.
3. Since the deed was not invalid on its face, the question that next arises is whether Exhibits “C” and “D” were properly admitted; in other words: Does the conclusive evidence clause of section 2604 preclude inquiry into the sufficiency of such proceedings as Davenport was required to take? This particular provision of section 2654 appears also as section 3898 of the Political Code of 1895, which was in force at the time the deed was applied for and given. At the same time and in the same chapter it was provided that no deed of property sold for delinquent taxes must be issued by the treasurer “until after the purchaser shall have filed” with the treasurer an affidavit showing that there had been served upon the owner of the property, or upon the occupant of it if it was occupied “a written notice stating that said property or a portion thereof, has been sold for delinquent taxes; giving the date of sale, the amount of property sold, the amount for which it was sold, the amount then due, and the time when the right of redemption will expire, or when the purchaser will apply for a deed.” (Secs. 3896 and 3895, Pol. Code of 1895.) Section 3895 also provided: “In case of an unoccupied property, a similar notice must be posted in a conspicuous place upon the property,” etc. Excellent reasons exist for the belief that these sections (secs. 3895, 3896, Pol. Code of 1896) were adopted from California; at all events, they are identical in substance with sections 3785 and 3787 of the California Political Code, and these, before the enactment of our Code of 1895, had been construed and applied in several decisions of the supreme court of that state. If the construction given by the California court to the California sections is not in truth an integral part of our sections, it at least commends itself in principle, and the effect of these California decisions is that the conclusive evidence provision refers, and was intended to refer, to acts and proceedings required to be done and had at the hands of public officials'intrusted with the various steps leading up to the execution of a tax deed, and not to something required to be done by the applicant for the deed. (Miller v. Miller, 96 Cal. 376, 31 Am. St. Rep. 229, 31 Pac. 247; Reed v. Lyon, 96 Cal. 501, 31 Pac. 619.) The deed is not even prima facie evidence that the statutory notice was given. (Johnson v. Canty, 162 Cal. 391, 123 Pac. 263.) The question then remains whether the affidavit and notice were so infirm as to affect the deed. The affidavit recites that Lee Davenport “on the 26th day of November, 1901, served by posting in a conspicuous place on said property, a written notice * * * of which a true copy is herewith attached.” The true copy attached to the affidavit bears date December 26, 1901. It is addressed “To American. Mining Co. et al.” The only designation of the property is the simple word “Naragansett,” and the amount “now due” is given as $3.59. Passing by such other questions as may be suggested by the disparity of dates and the paucity of detail in the notice, we think the affidavit was jurisdictionally defective because it shows service of notice by posting only, without any service upon the American Mining Company, one of the known owners, or upon any of the owners included in the designation “et al.,” and without any averment that the premises were unoccupied so as to authorize posting. Provisions such as appear in sections 3895 and 3896, Political Code of 1895, are a limitation upon the power of the treasurer to issue the tax deed, and render void any deed issued by him without requiring a compliance with them. The affidavit in particular is the basis upon which the treasurer is to act, and the conditions from which his power to issue the deed arises must appear by the affidavit. “If the affidavit shows that the notice was served upon any person other than the one to whom the property was assessed, it must also show that the person so served was one upon whom the purchaser was authorized to serve the notice. If the service is not made 'upon the owner, it must be posted upon the property, if it is unoccupied; or, if it is occupied, it must be served upon the person occupying it. It is incumbent, then, upon the purchaser to show by his affidavit whether the property was occupied or unoccupied, and if occupied, that the person upon whom the notice was served was at the time occupying it.” (Simmons v. McCarthy, supra; Hall v. Capps, 107 Cal. 513, 40 Pac. 809.)
4. It is contended that unless section 2654, Revised Codes, as amended, is a statute of inhibition or repose, and therefore applicable without plea, the amendment should have been allowed. A careful consideration of this statute fails to disclose that as to tax deeds before its passage, any question of public policy is involved, other than as such question is involved in all statutes of mere limitation; and instead of conferring a right where none existed before, the statute by its very language assumes an existing right, takes a remedy theretofore available as against an invalid tax deed issued before its passage, and changes the time within which that remedy may be invoked. A comparison of this situation with that disclosed in Franklin v. Franklin, 40 Mont. 348, 20 Ann. Cas. 339, 26 L. R. A. (n. s.) 490, 106 Pac. 353, or with that disclosed in Dolenty v. Broadwater County, 45 Mont. 261, 122 Pac. 919, will emphasize the distinction between such a provision as the one now before us and one in which time is part of the right of action. Way v. Hooton, 156 Pa. 8, 26 Atl. 784, contains some language in support of the conclusion that the statute in question is, as to tax deeds issued after its passage, a statute of repose, but that question is not before us. The argument assumes that the respondent had a right of action to annul or set aside appellant’s tax deed at the time the statute was enacted, and if, as we hold, the statute is one of limitation so far as such rights are concerned, it follows that advantage of it must be taken by plea in the answer.
The record does not disclose what objections were made nor why the trial court declined to permit the amendment. Respondent makes the suggestion that the statute applies only to actions “to set aside or annul a tax deed”; that this is not such an action but one to quiet title merely; hence the statute does not apply. In other words, a plaintiff seeking in fact to destroy the effect of a tax deed must confront the statute if he assail the tax deed as such, but, designing to accomplish precisely the same thing, he may avoid the statute by calling his action one to quiet title, declaring upon his ownership generally and demanding that his adversary appear and plead the tax deed. This is surely a subordination of substance to form; a thing is not changed by changing its name; where the sole object of an action is to get rid of a tax deed as a claim of title adverse to the plaintiff, we see no reason why it is not as much an action to annul or set aside such deed as though expressly so designated. In support of respondent’s position, 37 Cyc., pp. 1500 and 1501, is cited; but the decisions there collated seem rather to militate against the position taken. As we read them, the cases of Kipp v. Johnson, 31 Minn. 360, 17 N. W. 957, Flickinger v. Cornwell, 22 S. D. 382, 117 N. W. 1039, Smith v. Sherry, 54 Wis. 114, 11 N. W. 465, seem to support the view that this action as it finally exhibits itself in the agreed statement of facts is subjeét to the limitational provisions of the statute in question.
But we cannot hold that reversible error occurred in refusing the leave to amend. While it is the policy of our law to permit amendments to pleadings in order that litigants may have their causes submitted upon every meritorious consideration that may be open to them (Rev. Codes, secs. 6588, 6589), and while it is the rule to allow, and the exception to deny, amendments (Leggat v. Palmer, 39 Mont. 302, 102 Pac. 327; Flaherty v. Butte Electric Ry. Co., 43 Mont. 141, 115 Pac. 40), yet they are not at all stages of the proceedings a matter of right. After issue joined, the matter lies within the sound judicial discretion of the trial court, and an abuse of that discretion must be made to appear before this court can say that a refusal of leave to amend was wrong. No showing whatever was made by the appellant in support of his application; no explanation or excuse was offered for the delay in making the same. As we recall the oral argument, counsel for appellant stated that he had considered the necessity of pleading the statute and had deliberately chosen not to do so. At the time the application was made the appellant’s answer had been on file for something like four months and a half; the cause was before the court for argument; the parties had all agreed, some eleven days before, upon the facts which should be the basis of decision, and it is possible that had the amendment been allowed, further pleadings and additional delay might have been required. The statute of limitations, it is true, is an entirely legitimate defense, and no refusal of leave to amend could be justified solely because the amendment offered was the statute of limitations; but in view of the circumstances above mentioned, we do not feel warranted in saying that the court clearly abused its discretion in refusing the leave.
Rehearing denied September 20, 1913.
Such other questions as are discussed in the briefs of counsel are merely incidental. What has been written above disposes of the essentials of these appeals and requires that the judgment and order overruling the motion for new trial be affirmed. Ordered accordingly. Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
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MR. JUSTICE SANNER
delivered the opinion of the court.
The amended complaint alleges, substantially, that in July, 1898, the respondent bought two certain lots in the city of Lewis-town at the price of $200 from Henry P. Brooks, who was then the owner; that the respondent immediately went into possession, and has since been in the “actual, quiet, open, notorious, undisturbed and exclusive possession” of said lots, and has placed valuable improvements thereon; that Henry P. Brooks died leaving a will, under which the appellant, John Brooks, was made residuary legatee, and by judicial decree the said lots have been distributed to John Brooks as residuary legatee; that John Brooks has sold said lots to appellant Kettle-son ; that prior to the death of Henry P. Brooks, and when the distribution occurred, the appellant John Brooks had actual notice of the rights and claims of respondent and of the existence of said agreement, and that the appellant Kettleson, prior to his purchase, had actual notice of the rights and claims of respondent; that respondent has always been ready and willing to pay for the lots upon conveyance of the same to him; that at divers times he demanded a conveyance of Henry P. Brooks, and also of John Brookk, and offered to pay the purchase price, but acceptance of payment and issuance of deed have been refused; that about August 30, 1911, the appellant Kettleson, without the consent and against the instructions of respondent, went upon the said lots and tore down the fence inclosing the same, and tore down the fence inclosing his. poultry-yard, and is making preparations to erect a house upon said lots. It is prayed, among other things, that respondent be adjudged the owner of said lots; that a decree be entered requiring appellants to convey upon payment of $200; and that appellants be enjoined from asserting any interest or title in the lots or interfering with the same. This pleading was attacked by a demurrer on three grounds, two of which are that it does not state facts sufficient to constitute a cause of action, and that there is improperly united therein a cause of action based upon adverse possession for more than ten years with a cause of action for .the specific performance of an alleged contract of sale.
We will first dispose of the question of misjoinder. Upon it we have not been favored with any argument in appellants’ brief, and should be inclined to rule the point as waived but for the fact that respondent himself insists here that he has stated an action to quiet title as well as for specific performance, and that under the pleadings, evidence and findings he is entitled to prevail upon either theory of the case. It is possible, by selecting certain allegations and ignoring others, to carve from the amended complaint a claim of title by prescription, but the allegations necessary to be so selected are entirely pertinent to, and are not inharmonious with, the prayer for specific performance; whereas the allegations to be ignored and the pleading, taken as a whole, are inconsistent with any claim of legal title, since one possessing lands under a contract of sale holds, not adversely, but in subordination to, the legal title. (Lamme v. Dodson, 4 Mont. at 560, 594, 595, 2 Pac. 298.) We therefore conclude that the amended complaint should be viewed, as, in fact, it was viewed throughout the proceedings below, as seeking specific performance only, and not open' to attack for misjoinder.
The point of the general demurrer is that the agreement was made in July, 1898, and the suit was commenced in September, 1911, thus disclosing a period of over thirteen years in which respondent did nothing in assertion of his rights; that, in the absence of excusatory averments, this is laches appearing upon the face of the pleading by which equity is negatived, and therefore a general demurrer will lie. The argument is plausible, but ineffective. Assuming that, where laches appears on the face of the complaint, advantage thereof may be taken by demurrer for substance, and conceding that, following the maxim, “Equity aids the vigilant,” laches may arise from an unexplained delay short of the period fixed by the statute of limitation (American Min. Co. v. Basin & Bay State Min. Co., 39 Mont. 476, 483, 24 L. R. A., n. s., 305, 104 Pac. 525; Wolf v. Great Falls W. P. & T. Co., 15 Mont. 19, 38 Pac. 115), still laches will not be presumed from such a delay alone. (16 Cyc. 179; Lux v. Haggin, 69 Cal. 255, 267, 4 Pac. 919; Marsh v. Lott, 156 Cal. 613, 617, 105 Pac. 968.) Now, the statute invoked here is section 6151, Revised Codes, and whether we apply it as in itself a bar, or as a test for laches, the question arises: When, as to this case, did it commence to run?
It is the recognized rule, followed by this court, that specific performance of an oral contract for the sale of real estate may be decreed where possession thereunder, taken by the vendee with the vendor’s knowledge or consent, is followed by improvement of the property, even though no part of the purchase price has been paid. (Finlen v. Reinze, 32 Mont. 354, 80 Pac. 918; Cobban v. Hecklen, 27 Mont. 215, 70 Pac. 805.) In such a case, where the payment and conveyance are to be concurrent acts, and where the vendee has made repeated efforts to pay, and stands ready, able and willing to pay, the vendor is placed in the same position as though payment had been made; that is to say, he holds the legal title in trust for the vendee. (Cobban v. Hecklen, supra; Finlen v. Heinze, supra; Ives v. Cress, 5 Pa. 118, 47 Am. Dec. 401; Willis v. Wozencraft, 22 Cal. 608; Whittier v. Siege, 61 Cal. 238, 241; Howell v. Budd, 91 Cal. 312, 351, 27 Pac. 747.) On this theory the statute of limitation does not commence to run until the vendor has in some manner disavowed his trust (36 Cyc. 732, f), which disavowal may, in cases such as this, consist of a flat refusal to convey or to recognize the contract. Turning, now, to the amended complaint, we find the charge that both Henry P. Brooks and John Brooks have refused and neglected to convey, notwithstanding demand. But when? It may have been more than five years before the commencement of the action; it may have been less. This condition of the pleading, however it may be subject to a demurrer for ambiguity, certainly does not require the conclusion that the statute has run. Moreover, the weight of authority is that the vendee in possession cannot be barred from specific performance by mere delay, however long, because his possession is a continued assertion of his claim. He may rest in security until his title or right of possession is attacked. (16 Cyc. 174; 36 Cyc. 732; Love v. Watkins, 40 Cal. 547, 564, 6 Am. Rep. 624; Gilbert v. Sleeper, 71 Cal. 290, 294, 12 Pac. 172; Snider v. Johnson, 25 Or. 328, 331, 35 Pac. 846.) We are therefore of opinion that the amended complaint is good as against the general demurrer.
The trial resulted in certain findings of fact by the court, from which conclusions of law were drawn, in effect directing a decree of specific performance as prayed by respondent, and such decree was thereafter duly entered. These findings of fact are vigorously assailed for what they contain and for what they do not contain. As to their content, we say that, although a remarkable situation is disclosed by the evidence, yet the evidence does not preponderate against the findings. They have sufficient support in the evidence to require their acceptance by this court as the established facts in the case. (Boyd v. Huffine, 44 Mont. 306, 120 Pac. 228; Pope v. Alexander, 36 Mont. 92, 92 Pac. 203, 565.) As to their alleged deficiencies, these are not in themselves, singly or collectively, of sufficient importance to demand a reversal of this case. They consist, for the most part, of facts or circumstances not necessary to a determination of the case, or of alleged facts or circumstances not required by the evidence; and the failure to find them could not, with the possible exception of the payment of taxes, which we shall consider later, have operated to the prejudice of the appellants. Certain questions of law, however, are raised by the evidence and the findings, to which we shall briefly advert.
It is said that when the agreement was made Henry P. Brooks was not the sole owner of the property; that respondent then knew it; and that' under such circumstances specific performance will not be decreed. Appellants forget that- there was a visible occupancy of these premises for thirteen years immediately following the agreement, and that the evidence furnished by themselves tends to establish that when the agreement was made the title was in “H. P. Brooks & Bro.”; that “H. P. Brooks & Bro.” was a “concern” — apparently a partnership— composed of Henry P. Brooks, Anthony Brooks, and the appellant John Brooks, having business other than the owning of these lots, and owning them as it owned its other property; that Anthony Brooks and John Brooks possessed interests in these lots only as they were interested in the “concern”; that Henry P. Brooks tended to its business, particularly at the Lewistown end; that John Brooks for eight or ten years personally knew of respondent’s occupancy and inclosure of the premises, and made no objection of any kind. It is nowhere asserted by John Brooks that Henry P. Brooks was without authority to contract in behalf of the other members of the “concern”; and it appears that when respondent broached the subject of a deed to John Brooks he said respondent would have to see Henry P. Brooks about the matter. We think this was ample to justify the findings that in the agreement with respondent, Henry P. Brooks acted in behalf of his associates as well as of himself, and to estop any denial of John Brooks in that regard. Under these findings the case falls, not within Cochran v. Blout, 161 U. S. 350, 40 L. Ed. 729, 16 Sup. Ct. Rep. 454, cited by appellants, but within the rule recognized by this court in Cobban v. Hecklen, supra. But there is another aspect of this matter which is decisive against appellants.
Upon well-recognized principles the legal title to the lots in question, at the time the agreement was made, stood wholly in Henry P. Brooks by virtue of the deed from De Witt to H. P. Brooks & Bro. (Barnett v. Lachman, 12 Nev. 361; Winter v. Stock, 29 Cal. 408, 89 Am. Dec. 57; Arthur v. Weston, 22 Mo. 378; Ennis v. Brown, 1 App. Div. 22, 36 N. Y. Supp. 737.) As long as it so remained, Henry P. Brooks could convey the legal title, leaving his associates to their remedy of accounting for the proceeds (Barnett v. Lachman, supra); and if he could do that he could make the agreement in question.
It is contended that the improvements placed upon the lots by respondent were not such as to constitute part performance, because they did not equal or exceed the rental value of the lots while occupied by him. We do not know what the rental value may have been. The purchase price agreed upon was $200. The improvements consisted of fencing and of a barn, lathed and plastered in the lower part, used as a chicken-house; and there was evidence to the effect that the value of these improvements amounted to six or seven hundred dollars. We think this a sufficient showing of substantial and permanent improvement.
The evidence established that throughout the entire period of respondent’s occupancy the taxes and public charges upon the lots were paid by Henry P. Brooks or John Brooks, and error is assigned because the trial court did not so find. We see no error here. This court has held that in an action to quiet title, with taxes paid by the defendant in good faith, it is the duty of the trial court to require reimbursement as a condition to the relief (Larson v. Peppard, 38 Mont. 128, 133, 129 Am. St. Rep. 630, 16 Ann. Cas. 800, 99 Pac. 136), and we think counsel confuse that situation with the totally different one now presented. Whether the payment of the taxes by Brooks is considered to be of importance on account of the failure of the trial court to impose reimbursement as a condition to the relief granted, or as affecting the respondent’s right to any relief, we are not clearly informed. But in either view it is decisive that the court found, not the respondent, but Henry P. Brooks and John Brooks, to have been at fault, and fixed upon them the blame for the long continuance of the legal title in their names. While public charges against real estate are properly assessed to the holder of the legal title, and it is his privilege to pay them in order to protect it, yet in this case he could at any time have shifted that burden to the shoulders of the respondent by simply keeping the agreement. Such public charges as are to be expected in the usual course of events are like increases in value or depreciation in the currency after contract of sale and pending conveyance, in that they will not absolve the vendor, nor entitle him to any added recompense, where he is at fault for delay in performance. (Gotthelf v. Stranahan (City Ct. Brook.), 19 N. Y. Supp. 161, 138 N. Y. 345, 351, 20 L. R. A. 455, 34 N. E. 286; King v. Raab, 123 Iowa, 632, 99 N. W. 306, 307; Pomeroy on Specific Performance, sec. 322.) However, the court did require the respondent to pay interest at the legal rate on the purchase price for the entire period since the date of the agreement. This was sufficient.
Much space is devoted in the brief of appellants to the statute of limitations and to the question of laches. We have discussed these matters, so far as raised by the demurrer to the amended complaint, and the question now is whether limitation or laches is disclosed by the evidence. According to the evidence, respondent made several demands on Henry P. Brooks for a deed, which was promised, but deferred; in the year of, or the year before, the death of Henry P. Brooks, respondent made a final demand upon him, as well as upon John Brooks, and then occurred the first refusal to complete the agreement; Henry P. Brooks died in February, 1909; the first hostile invasion of respondent’s possession occurred August 30, 1911, and this action was commenced on September 9, 1911. We fail to see how this action can be held barred by the provision argued in the brief (Rev. Codes, sec. 6451), or by any of the statutes pleaded in the answers. And if it is borne in mind that, where payment, which is to be concurrent with the conveyance, is prevented by the vendor’s fault, the ease is the same as though pay ment were made, it can be readily seen that the authorities cited in support of the contention of appellants do, when rightly understood, make for the very opposite conclusion. (See Edwards v. Beck, 57 Wash. 80, 106 Pac. 492; Love v. Watkins, supra; Brennan v. Ford, 46 Cal. 7, 14; Gerdes v. Moody, 41 Cal. 335, 350.)
As to laches, we have already indicated that the weight of authority denies the application of this doctrine to the vendee in possession prior to challenge of his title or right of possession. But the appellants cite, among others, three decisions of this court: Wolf v. Great Falls W. P. & T. Co., supra, American Min. Co. v. Basin & Bay State Min. Co., supra, and Streicher v. Murray, 36 Mont. 45, 92 Pac. 36, upon which we are asked to decide that laches did, as a matter of fact, appear upon the trial of this case. These citations are not in point; the last two are not even suggestive, except as to certain general statements, to the effect that laches may or may not exist independently of the statute of limitations, but depending upon the circumstances of the individual case. In Wolf v. Great Falls W. P. & T. Co., however, a case of laches was held established in an action for specific performance, upon the theory that abandonment of his claim by the vendee was shown by the following circumstances: A written agreement was made for the sale of a town lot in Great Falls for the purchase price of $350, payable in installments at fixed times; it was expressly stipulated that “the above premises are sold to said second party for improvement, and the said party of the second part agrees and obligates himself, heirs and assigns, that he or they will on or before the first day of August, 1887, build and construct a frame building of the value not less than $500”; the vendee was also to pay the taxes; the execution and delivery of the deed was made contingent upon the prior performance of the conditions imposed upon the vendee, and the vendee was given possession under the agreement; the vendee did not pay the installments of the purchase price, nor the taxes; nor did he construct to completion the improvement as agreed; the successor in interest of the vendor took pos session after default in these matters; later, and on October 22,. 1887, the vendee tendered the balance of the purchase price, which was refused; on April 29, 1891, he commenced his action for specific performance, and no explanation was offered in the pleadings or at the trial for the delay. The above not only shows how divergent was the situation from the case at bar, but illuminates the following language of the decision: “We have confined the consideration to the question as to whether the plaintiff was guilty of inexcusable laches in commencing his suit for specific performance after he was ousted from the possession of the real estate in question, and knew that the defendant would not comply with the contract of sale thereof, unless compelled to do so.” Equally inept, for appellants’ purposes, is the decision in Marsh v. Lott, supra, in which the supreme court of California said: “Of course, notwithstanding the delay in moving to enforce the alleged contract, the circumstances may be such as to prevent any presumption of acquiescence or abandonment, as, for instance, where a vendee is in possession of the property under the alleged contract and continues in such possession, claiming under the contract, notwithstanding the attempted repudiation. ’ ’
We think that all the findings are sufficiently supported by the evidence, and that the ease, taken as a whole, authorizes the decree.
The judgment and order appealed from are affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
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] |
MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
This action was brought by the plaintiff to recover the sum of $5,507.13, alleged to be due from the defendant upon two express contracts, under the terms of which the defendant agreed to pay to plaintiff the cost of moving and relaying its tracks on two of defendant’s streets. The complaint declares upon these contracts in separate counts. The court below sustained a general demurrer to each of them. Plaintiff having declined to amend, judgment was rendered dismissing the action. In all essential particulars, the contracts are identical. The same objection is urged to both. A statement of the circumstances out of which the second grew will therefore be sufficient to present the question which it is necessary to examine and determine.
The fifth section of the franchise granted by the defendant to the plaintiff, and under which it constructed and is operating its railway, reserves to the defendant, and to persons, companies and corporations having authority from the defendant to use the streets, the right to take up the plaintiff’s tracks and move the rails for the purpose of laying or repairing water and gas pipe, electric wires, sewer-pipe, etc., or for any purpose that may be deemed necessary by the city council, without liability to the plaintiff for interruption of its business, “provided, however, that such work shall be done without any unnecessary delay, and that whenever the said rails or tracks are taken up or removed, the same shall, upon completion of said work, be relaid by the person, company or corporation taking up or removing the same, as soon as possible, and replaced in as good condition as the same were in prior to the taking up and removal thereof.” During the year 1911 it became of public concern that a sewer be constructed by the defendant along Cedar street. This rendered it necessary that plaintiff’s tracks be removed until the work could be completed. Thereupon “it was agreed by the defendant, acting through its mayor and city council, that, if plaintiff would remove its said track and line and replace the same and keep an account of the actual cost thereof and present a bill for same, the city would pay the cost of the removal and replacement of the tracks aforesaid.” The plaintiff removed and replaced its tracks, expending in that behalf a total of $2,716.65. The plaintiff also removed and replaced its tracks on Higgins avenue to permit a line of sewer to be laid therein, at a total cost of $2,790.38. When bills for these amounts were presented to the council, payment was -refused. The special ground of refusal does not appear; but the following are urged in justification of it: (1) That it was not competent for the city council, when it granted the franchise to plaintiff, to relieve it of the burden of the expense incident to the removal and re placement of its tracks whenever this became necessary in order to enable the city to install a sewer or to construct any other improvement along a street upon which the tracks had been laid, in that, by so doing, the city council undertook to abridge the police power of the city; and (2) that the contracts are void because it is apparent that they were entered into without observance by the city council of the requirements prescribed by the statute, and therefore no liability was cast by them upon the city.
Counsel for plaintiff contend: (1) That the franchise is a contract between the plaintiff and the city, and that, though it may be repudiated by the city at any time by legislative action, until this is done it is binding upon both parties; (2) that, since the contracts have been executed, the city is estopped to question its liability under them; and (3) that in any event the city will be required, upon the principle of equitable estoppel, to pay the reasonable value of the work.
For present purposes it may be conceded that the city council did not exceed its power by incorporating in the franchise the provision found in section 5 thereof. We incline to the view that it did not. The purpose of it was to adjust the mutual rights and obligations of the parties with reference to the expense which it was anticipated would be necessary for someone to bear when the city came to install its sewer system or otherwise to improve the streets, and to settle definitely all questions as to who should bear the loss incident to the interruption of plaintiff’s business pending the installment of any improvement in course of construction. The adjustment of such questions, it would seem, has no direct connection with the safety and welfare of the public, but is connected rather with the fiscal policy of the city. So regarded, it does not fall within the governmental functions of the municipality, but rather within what are termed its private functions, in the exercise of which it is free to contract at its discretion; it not being prohibited from doing so by the law of its creation or the general law of the state. But be this as it may, if, in incorporating in the franchise the provision in question, the council exceeded its power, the plaintiff has no claim against the city. From this point of view, the burden of expense and loss incident to the removal, and replacement of its tracks and the interruption of its business must be borne by plaintiff. If the council did not exceed its power, the plaintiff still cannot recover on the contracts, because, assuming that they were entered into by the city in strict conformity with the law in other respects, they are void because they were let to the plaintiff in total disregard of the statute requiring such contracts to be let to the lowest responsible bidder.
Assuming that the plaintiff was freed, by the terms of the franchise, from any duty to remove and replace its tracks, when they were removed by the city, the expense of the work required fell upon the city as a part of the expense of installing the lines of sewer. The.plaintiff, in contracting to do this part of the work occupied the same relation to the city as any other person who might have contracted to' do it. Section 3259 of the Revised Codes provides: “The city or town council has power: * * * (63) To make any and all contracts necessary to carry into effect the powers granted by this title and to provide for the manner of executing the same. Section 3278 declares: “All contracts for work, or for supplies, or material, for which must be paid a sum exceeding two hundred and fifty ($250) dollars, must be let to the lowest, responsible bidder, under such regulations as the council may prescribe. * * * ” The mode of exercising the power granted by the former section is subject to the limitation prescribed by the latter. Some of the courts hold that such a limitation is directory; but by the great weight of authority it is held to be exclusive and to apply to all municipal bodies. It falls within the general rule that, when the legislature has prescribed the mode by which a given power is to be exercised by a municipality, this mode must be pursued. It is the measure of power on that subject; and any attempt to pursue any other mode fails to bind the municipality at all. Contracts entered into in disregard of the limitation are void. Similar provisions have frequently been examined by this court, with the result that the rule, as above stated, has become firmly established as the rule of decision in this jurisdiction. (Davenport v. Kleinschmidt, 6 Mont. 502, 13 Pac. 249; Lebcher v. Board of Commrs., 9 Mont. 315, 23 Pac. 713; State ex rel. Lambert v. Coad, 23 Mont. 131, 57 Pac. 1092; Williams v. Commissioners, 28 Mont. 360, 72 Pac. 755; McGillie v. Corby, 37 Mont. 249, 95 Pac. 1063, 17 L. R. A., n. s., 1263; Carlson v. City of Helena, 39 Mont. 82, 17 Ann. Cas. 1233, 102 Pac. 39; Morse v. Granite County, 44 Mont. 78, 119 Pac. 286.) .ány further discussion of it would serve no useful purpose. Tested by it, the contracts are void and cannot furnish the basis of recovery.
In support of their last contention, counsel for plaintiff cite several cases which, in effect, hold that it is only when the subject matter of the contract is entirely outside of the scope of the corporate powers, or the contract is clearly prohibited, that the municipality will be permitted to escape liability; and they insist that, notwithstanding the contracts in question are void, the plaintiff upon equitable grounds ought to be permitted to recover the reasonable value of such benefits as have been received by the defendant. As already observed, the complaint declares upon the contracts according to their express terms. It is therefore doubtful whether its allegations are sufficient to support a judgment for the reasonable value of the work done. But assuming that they are sufficient, still we do not think the plaintiff entitled to recover. The result of such a holding would establish a rule which would abolish completely all limitation upon the power of the council to bind the city, and thus defeat the very purpose had in view by the legislature in enacting the statute, viz., to promote economy and to protect the taxpayers from fraud and favoritism on the part of the council or the officers of the city. The equitable doctrine of estoppel can have no application to such a case. In entering into the contracts, the plaintiff was dealing with an artificial person, a creature of the law, whose authority to contract is conferred and limited by law. The facts were all known to it. There was no misrepresentation made to it. It knew the extent of the power of the council and how it must be exercised. It dealt with the council at its own peril. (Lebcher v. Board of Commissioners, supra; State ex rel. Stuewe v. Hindson, 44 Mont. 429, 120 Pac. 485; State ex rel. Lambert v. Coad, supra.) If, when it began to work, the contracts were illegal, it knew it. It did the work with full knowledge of this fact. It was therefore not misled, and is not now in a position to allege that the defendant is estopped to question its own liability.
In Zottman v. San Francisco, 20 Cal. 96, 81 Am. Dec. 96, in considering the question involved here, Mr. Justice Field said: “To the application of the doctrine of liability upon an implied contract, where work is performed by one, the benefit of which is received by another, there must not only be no restrictions imposed by the law upon the party sought to be charged against making, in direct terms, a similar contract to that which is implied, but the party must also be in a situation where he is entirely free to elect whether he will or will not accept of the work, and where such election will or may influence the conduct of the other party with reference to the work itself. The mere retention and use of the benefit resulting from the work, where no such power or freedom of election exists, or where the election cannot influence the conduct of the other party with reference to the work performed, does not. constitute such evidence of acceptance that the law will imply therefrom a promise of payment. ” We are aware that in subsequent cases the supreme court of California has apparently departed to some extent, if not entirely, from the rule applied in this case, notably in Sacramento County v. Southern Pac. Co., 127 Cal. 217, 59 Pac. 568, 825, City of San Diego v. Higgins, 115 Cal. 170, 46 Pac. 923, and Contra Costa Water Co. v. Breed, 139 Cal. 432, 73 Pac. 189. In these cases the court applied to the contracts of a municipality the principle of estoppel under the rules which are applicable to contracts between natural persons and private corporations, but, as was remarked by Chief Justice Beatty in his dissenting opinion in Sacramento County v. Southern Pac. Co.: “This doctrine sweeps away at once all limitations upon the power of the board, for it can readily be seen that the contractor must always have it in his power to commence work just as soon as he has induced the board to enter into a contract in defiance of the regulations intended to govern their action; and it is also apparent that the board, which desires to make contracts in disregard of the law, will have the same motive to allow the commencement of work that they have to enter into the illegal contract. ’ ’ These cases are distinguished in their facts from the ease at bar; but the rule contended for by plaintiff’s counsel is recognized in all of them.
It may well be said that, in eases in which the municipality has acquired property which is still in specie, it may not be allowed to retain it and at the same time refuse to pay its reasonable value. In such a case, however, its liability would rest upon different principles. The contract being void, the title to the property would not vest under it, and the seller would be in a position to reclaim it, or, if restoration of it should be refused, to recover the reasonable value, of it. But even in such a case the liability would not arise out of the contract. The rule declared in the Zottman Case was expressly recognized by this court in State ex rel. Lambert v. Coad, supra, in announcing the following conclusion: “Nor do we think the defendant is precluded from asserting the illegality of the action of the board in defense of his action in refusing plaintiff access to the records for the purpose of indexing them. The board’s action in letting the contract was simply void for want of compliance with the law. Under the authorities cited, the execution of such a com tract, or payment for work done under it, will be enjoined at the instance of a taxpayer; and when mandamus is resorted to to compel recognition of it by thé auditing officer, whose duty it is to audit the accounts of the municipality and pay them, no relief will be granted.”
For these reasons, we think the action of the court in sustaining the demurrer was correct. The judgment is accordingly affirmed.
Affirmed.
Mr. Justice Holloway and Mr. Justice Sanner concur.
|
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
On March 8, 1912, the board of county commissioners of Hill county, Montana, let a contract to B. B. Weldy, proprietor and publisher of the “Chester Signal,” a newspaper which had been published in Hill county for more than six months prior thereto, to do the county printing, including the furnishing of blanks, blank books, etc. Thereafter Weldy sublet to the Shaw-Borden Company, of Spokane, Washington, the contract to furnish all blank record books, warrant books, certificate books, registers, and bound books of- every description to be used by the county. This action was commenced by a resident taxpayer to secare an injunction restraining the board of county commissioners from allowing the account of Weldy for supplies furnished through the Shaw-Borden Company, or from directing a county warrant to be issued to pay for such supplies, and to restrain the county treasurer from paying for such supplies. Upon the complaint a temporary injunction was issued. The defendants demurred to the complaint and moved to dissolve the injunction. The demurrer was overruled, and the motion to dissolve denied. Defendants thereupon stood upon their demurrer, suffered judgment to be entered against them, and have appealed.
It is insisted that section 2897 of the Revised Codes is unconstitutional, and this presents the only question for our determination. After providing for letting public printing contracts, that section of the Codes proceeds: “All newspapers which may receive any contract for printing under this Act which may not be able to execute any part of such contract shall be required to sublet such contract or portion of contract to some newspaper or printing establishment within the state, which may be competent to execute such work. * * * ”
1. In their brief counsel for appellants attack the statute, and say: “It is our contention that a county is a municipal corporation, having governmental and proprietary functions; that as to the former the state’s control is supreme, but as to the latter the state’s control is no more extensive than it is over private corporations; that county printing is a matter solely of local concern, and comes within the proprietary functions of a county, and that the above provision of section 2897 is an unconstitutional restriction upon the power of a county to contract as to its local affairs.” If the statement, “a county is a municipal corporation, having governmental and proprietary functions,” is true, the conclusion announced above might follow. But we are not able to agree with counsel that the premise states correctly any rule of law.
The word “municipal” means “pertaining to a city or a community within a state, possessing rights of self-government.” (Anderson’s Law Dictionary.) It is derived from the Latin “municipalis,” which in its origin referred to a town possessing the rights of Roman citizenship and governed by its own laws; in other words, to a free town. (Webster’s International Dictionary.) A municipal corporation is “a public corporation created by government for political purposes and having subordinate and local powers of legislation.” (Bouvier’s Law Dictionary.) Every authority on municipal law makes clear the distinction between a municipality and a county, as the word “county” is used in the Constitution and statutes of this state. In 1 Dillon on Municipal Corporations, fifth edition, section 32, the author says: “We may therefore define a municipal corporation in its historical and strict sense to be the incorporation by the authority of the government of the inhabitants of a particular place or district, and authorizing them in their corporate capacity to exercise subordinate, specified powers of legislation and regulation with respect to their local and internal concerns. This power of local government is the distinctive purpose and the distinguishing feature of a municipal corporation proper.” And again, in section 34: “All corporations intended as agencies in the administration of civil government are public, as distinguished from private corporations. Thus an incorporated school district, or county, as well as a city, is a public corporation; but the school district or county, properly speaking, is not, while the city is, a municipal corporation.”
That the framers of our Constitution did not intend municipal corporations to include counties is clear, for the two terms are used to distinguish different organizations (sec. 6, Art. XVI; sec. 4, Art. XIII; People v. McFadden, 81 Cal. 489, 15 Am. St. Rep. 66, 22 Pac. 851). A county is a body corporate (sec. 2870, Rev. Codes), so, likewise, is a school district (section 848); but neither possesses the powers of local legislation and control which are the distinguishing characteristics of a municipal corporation. (State v. Leffingwell, 54 Mo. 458; State v. Barker, 116 Iowa, 96, 93 Am. St. Rep. 222, 57 L. R. A. 244, 89 N. W. 204; Memphis T. Co. v. Board of St. Francis Levee Dist., 69 Ark. 284, 62 S. W. 902.)
Because of its autonomous character — its enjoyment of a large measure of organic independence — the municipal corporation is relieved to a considerable extent from officious, meddlesome legislation which seeks to interfere with its private or proprietary functions. The theory of local self-government for municipal corporations is firmly established in this state. (Helena Con. Water Co. v. Steele, 20 Mont. 1, 37 L. R. A. 412, 49 Pac. 382; State ex rel. Gerry v. Edwards, 42 Mont. 135, Ann. Cas. 1912A, 1063, 32 L. R. A., n. s., 1078, 111 Pac. 734.) But because of the difference in the character of a county and a municipality, the authorities which restrain the legislature from intermeddling with the private affairs of the municipal corporation are not in point when the question for determination is the right of the legislature to control county affairs.
‘ ‘ It is well-established law that a county is an involuntary corporation for governmental purposes, and is in no sense a business corporation; that the powers and obligations of the county are such only as the law prescribes or as arise by necessary implication therefrom. (Eikenberry v. Bazaar Township, 22 Kan. 556, 31 Am. Rep. 198; Commrs. of Marion Co. v. Biggs, 24 Kan. 255; 11 Cyc. 497; 7 Am. & Eng. Ency. of Law, 947.) Cities, however, in this state are municipal corporations, and neither their powers nor obligations are so restricted, and decisions as to their liability for negligence have no application here.” (Silver v. Board of Commrs., 76 Kan. 228, 91 Pac. 55.)
In 1 Dillon on Municipal Corporations, section 35, the author says: “With scarcely an exception, all the powers and functions of the county organization have a direct and exclusive reference to the general policy of the state, and are, in fact, but a branch of the general administration of that policy.” In section 37 of the same work the distinction between municipal corporations on the one hand and political or civil divisions of the state created for administrative purposes, such as counties and school districts, on the other, is made clear. (See, also, Shipley v. Hacheney, 34 Or. 303, 55 Pac. 971.)
“A county is one of the civil divisions of the state for political and judicial purposes, created by the sovereign power of the state of its own will, without the consent of the people who inhabit it. (7 Am. & Eng. Ency. of Law, 2d ed., 900.) It is quasi corporate in character, but has only such powers as are expressly provided by law or are necessarily implied by those expressed.” (Independent Pub. Co. v. Lewis & Clark County, 30 Mont. 83, 75 Pac. 860.)
In Board of Commissioners v. Watson, 7 Okl. 174, 54 Pac. 441, it is said: “A county is but a subordinate, political subdivision of sovereignty created for governmental purposes and for greater convenience in carrying on the public affairs.”
“A county is a governmental agency or political subdivision of the state, organized for purposes of exercising some functions of the state government, whereas a municipal corporation is an incorporation of the inhabitants of a specified region for purposes of local government.” (County of San Mateo v. Coburn, 130 Cal. 631, 63 Pac. 78.)
In speaking of a county, the supreme court of Oregon, in Yamhill County v. Foster, 53 Or. 124, 99 Pac. 286, said: “It is merely a political agent of the state created by law for governmental purposes, and is charged with the performance of certain duties for and on behalf of the state.”
“Counties are not in any respect business corporations for private purposes; nor are they organized exclusively for the common benefit of citizens and property holders within their respective limits. They are of a purely political character, constituting the machinery and essential agency by which free governments are upheld, and through which for the most part their powers are exercised. Their functions are wholly of a public nature. Counties are subordinate agencies for the orderly government of the state within the scope of their authority; hence they are subject to the control and direction of the legislature in which chiefly the sovereignty of the state is represented and exercised.” (11 Cyc. 341.) In State v. Board of Commissioners, 170 Ind. 595, 85 N. E. 513, it is said: “A county is an involun tary corporation, organized as a political subdivision of the state by the legislature, the sovereign power, solely for governmental purposes. Such subdivisions are instrumentalities of government, and exercise the powers delegated by the state, and act for the state.” In speaking upon the same subject, and to the extent of the state’s control over a county, the supreme court of the United States, in Rogers Locomotive Machine Works v. American Emigrant Co., 164 U. S. 559, 41 L. Ed. 552, 17 Sup. Ct. Rep. 188, said: “The county of Calhoun is a mere political subdivision of the state, created for the state’s convenience, and to aid in carrying out, within a limited territory, the policy of the state. Its local government can have no will contrary to the will of the state, and it is subject to the paramount authority of the state, in respect as well of its acts as of its property and revenue held for public purposes. The state made it, and could, in its discretion, unmake it, and administer such property and revenue through other instrumentalities.”
Since the enactment of Chapter 112, Laws of 1911, the involuntary character of counties in this state is somewhat modified, but the change thus wrought in the method of creating new counties does not affect their status as political subdivisions of the state for governmental purposes. We think it very clear that only incorporated cities and towns are municipal corporations in this state.
Of course, the authority of the legislature over the affairs of the county is not plenary. There are certain restrictions imposed by the Constitution, for instance: “The legislative assembly shall not levy taxes upon the inhabitants or property of any county.” (Sec. 4, Article XII.) But legislative power over counties is supreme, except in so far as it is restricted by the Constitution in express terms or by necessary implication. (11 Cyc. 343; State v. McFadden, 23 Minn. 40; Rogers Locomotive Machine Works v. American Emigrant Co., above.)
In speaking of counties and their enforced submission to legislative control the supreme court of Colorado said: “They are purely auxiliaries of the state, and to the general statutes of the state they owe their creation, and the statutes confer upon them all the powers they possess, prescribe the duties they owe, and impose the liabilities to which they are subject.” (Board of Commrs. v. Wheeler, 39 Colo. 207, 89 Pac. 50.)
That the authority of the board of county commissioners of Hill county to let a contract for county printing must be found written in the statutes, or necessarily implied, or it does not exist, is well understood. (State ex rel. Lambert v. Coad, 23 Mont. 131, 57 Pac. 1092.) In Morse v. Granite County, 44 Mont. 78, 119 Pac. 286, this court, in speaking of the authority of a county, said: “Its board of commissioners — -its executive body — is a body of limited powers, and must in every instance justify its action by reference to the provisions of law defining and limiting these powers.” Indeed, the Code itself (section 2870) declares the same rule: “Every county is a body politic and corporate, and as such has the power specified in this Code, or in special statutes, and such powers as are necessarily implied from those expressed. ’ ’ Under the doctrine of the maxim, “Expressio unius exclusio alterius,” the county does not have any powers other than those indicated in section 2870 above. The legislature in its wisdom has seen fit to prescribe the conditions upon which its agents — the counties — may conduct county business, and in the absence of constitutional restriction the authority to do so cannot be doubted.
In determining that the legislature has power to control the manner in which county road work shall be done the supreme court of North Carolina said: “Counties are but agencies of the state government. They can be created, changed, or abolished at the legislative will. * * * They are subject to legislative authority which can direct them to do as a duty all such matters as they can empower them to do.” (State ex rel. Tate v. Commissioners of Haywood County, 122 N. C. 812, 30 S. E. 352. See, also, Jones v. Commissioners, 137 N. C. 579, 50 S. E. 291.) The manner in which printing contracts shall be let is one of legislative or governmental policy, a question with which the-courts have nothing to do. (State v. Livingston Concrete B. & F. Mfg. Co., 34 Mont. 570, 9 Ann. Cas. 204, 87 Pac. 980.)
2. Again, counsel for appellants say: “As the provision of section 2897 under consideration bars outside competition, it prevents a county from getting the best work possible, and requires it to pay a higher price for its printing than if the newspaper to which the contract is awarded were permitted to sublet it to a printing establishment outside the state.” In this instance the premise is correct, but the conclusion is unwarranted. There is not anything before us to indicate that the cost of county printing and supplies will be greater or the quality of the work poorer by reason of the restriction found in section 2897. It is admitted that there are many printing and publishing establishments within this state fully equipped and competent to supply any of the matters or things specified in Weldy’s contract which he himself could not furnish; and for aught we know these Montana concerns may be willing to do the work or furnish the supplies as cheaply as any outside concern. In the absence of any showing that in its operation section 2897 imposes upon the taxpayers an arbitrary burden greater than they would otherwise have to bear, it is unnecessary to consider the effect of legislation which takes from one citizen his property and confers it upon another to swell his own private income.
We fail to see wherein the statute under consideration does violence to the provisions of either the Fifth or Fourteenth Amendment to the Constitution of the United States, or section 3 of Article III of our own state Constitution.
3. Based upon the assumption that by reason of the restriction in section 2897 county printing costs more than it otherwise would, counsel for appellants argue that the statute operates to take from the taxpayers a portion of the public moneys which might otherwise be saved, and thus indirectly operates to tax the inhabitants of the several counties, in violation of the provisions of section 4, Article XII, of our state Constitution. It is unnecessary to consider what the result would be if the fact which is assumed to exist had any real existence. Since there is not anything in the record to justify the assumption made, it is idle to pursue the inquiry further.
4. Again, it is insisted that the provisions of section 26, Article V, of our state Constitution, are violated by the enactment of this statute, in that section 2897 is a local or special law regulating county affairs; and authorities are cited which seem to uphold the view that a statute of this character is not general or uniform in its operation. In 36 Cyc. 986, the terms “local” and “special,” as applied to statutes, are defined as follows: “A special or private Act is a statute operating only on particular persons and private concerns.” “A local Act is an Act applicable only to a particular part of the legislative jurisdiction.” (See, also, 26 Am. & Eng. Ency. of Law, 2d ed., 532.) These definitions were approved by this court in State ex rel. Geiger v. Long, 43 Mont. 401, 117 Pac. 104, and we think they are correct. When we consider that section 2897 is state wide in its operation, it cannot be classed as a local statute; and, since it applies to all county printing contracts, it is not special.
5. Finally, it is insisted that the section under consideration is invalid because, by preventing outside concerns from bidding upon county contracts or furnishing the counties with necessary supplies, it amounts to a regulation of interstate commerce. Two cases are cited: People v. Buffalo Fish Co., 164 N. Y. 93, 79 Am. St. Rep. 622, 52 L. R. A. 803, 58 N. E. 34, and People ex rel. Treat v. Coler, 166 N. Y. 144, 59 N. E. 776. The first is clearly not authority in this instance. In it was considered! one section of the Fish and Game Law of New York, which imposes a penalty upon anyone who has in his possession certain kinds of fish during certain periods of the year. The Buffalo Fish Company imported from Canada fish of the proscribed variety, and an action was commenced to recover the penalty. It was held that in so far as the statute affected the possession, by citizens of New York, of fish imported from a foreign country, it operated to regulate commerce between the United States and a foreign country, and was therefore void. In the second case there was called in question the validity of a statute of New York which provided that all stone, except paving blocks and crushed stone, used in state or municipal works within the state of New York or which was to be worked, dressed, or carved for use, must be worked, dressed, or carved within the boundaries of New York state. By a divided court it was held that the citizens of other states having cut or dressed stone for sale had a right to compete in bidding for municipal work in New York, or at least had the right to sell their products to municipalities in New York state, and that the statute in question operated as a regulation of interstate commerce and was void. Parker, C. J., presented a vigorous dissenting opinion, the logic of which commends it to us.
Of course, it would not be within the power of the legislature of this state to say to an individual citizen, “You cannot have printing or bookbinding done unless you let the work to a Montana concern”; but, as Judge Parker points out in his dissenting opinion above, the state could not deny to a citizen the right to say, “I will not patronize any outside concern for my printing or bookbinding,’’-and, if an individual or a private corporation in this state should insist that his or its printing be done by a Montana concern, no one would suggest that the right thus asserted could not be insisted upon. As we have already determined, a county is but an agency through which the state transacts a portion of its business. The state speaks through its legislature, and in our opinion has the same right that any individual citizen has to declare that it will procure its supplies, or have the supplies for one of its constituent parts procured, from a Montana concern.
In Tribune Printing & Binding Co. v. Barnes, 7 N. D. 591, 75 N. W. 904, the supreme court of North Dakota had for consideration a statute which provided: “All county printing shall be done in the state, and if practicable in the county ordering the same.” In construing this statute the court used the following language: “Again, it is argued that if section 1807, supra, is construed to prohibit county officials from procuring county supplies or printed, matter from those who manufacture such supplies at places without the state, it would operate to violate section 8 of Article I of the federal Constitution relating to com merce among the states. No authority is cited in support of this contention by counsel, and we are unaware of the existence of any such authority. Viewed as a question of principle, we are unable to see why the state is forbidden to do what an individual certainly may do with impunity, viz., elect from whom it will purchase supplies needed in the discharge of its corporate functions. If such election may lawfully be made, it certainly is competent for the state to direct its officials by a mandatory statute to procure their office supplies from those who produce the same within its own limits, it having elected to purchase none other, either for the use of the state as such, or for the use of subordinate political bodies within the state.” In considering this same objection to a statute similar to our own, the supreme court of Idaho, in In re Gemmill, 20 Idaho, 732, Ann. Cas. 1913A, 76, 119 Pac. 298, reached the conclusion that such a statute does not operate to regulate or restrict interstate commerce. Whether the legislation under consideration is wise or otherwise is not a matter of concern at this time, but that in the absence of constitutional inhibition the legislature may impose the restriction found in section 2897 is not open to doubt. Since no provision of the Constitution has been called, to our attention which restricts the legislature in its control over county affairs in the respect mentioned in this statute, our conclusion is that the section is not open to any of the objections urged against it.
The judgment of the district court is affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Sanner concur.
|
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MR. JUSTICE SANNER
delivered the opinion of the court.
The appellant, Walter Whitworth, was convicted of the crime of murder in the second degree and sentenced to imprisonment for life. From the judgment of conviction and from an order denying his motion for new trial he appeals. Reliance is placed in twenty-five specifications of alleged error, involving some fifty-odd rulings by the trial court. We have considered them all; many were manifestly correct; others were of no apparent consequence; still others, for lack of proper record, are not reviewable here. Under the rule established in this state, that this court will be controlled in the disposition of appeals by considerations of substance and not mere technicality, we shall advert only to those rulings, properly presented, by which some substantial right of the appellant appears to have been erroneously and prejudicially affected.
1. The appellant sought to justify the homicide upon a plea of self-defense. Besides giving his version of the homicide and his reasons therefor, he also testified that on the day of the homicide he was and for many months had been a ranch foreman in the employ of the Gillette Company; that on the morning of April 26, 1911, five days before the homicide, while he, unarmed, was driving his employer’s wagon near one of the gates in the neighborhood, the deceased, armed wdth a rifle, overtook him, “threw down” on him, saying, “You are the son-of-a-bitch I am looking for this morning,” cocked the rifle, pointed it at him, menaced him with it, several times threatening to kill him, on account of some cattle and horses belonging to Levin Brothers that had been turned out of one of the Gillette Company fields; on Whitworth suggesting that there were laws in the country available to the deceased if wnong had been done, deceased replied that his gun was law on Flat creek and Whit-worth would have to abide by that; that at the point of the rifle deceased compelled Whitworth to promise to return the horses and to notify deceased of their return, and also compelled Whit-worth to promise that he would resign his place with the company and leave the country; that at the close of the interview, deceased said: “Now remember, this Winchester is with me all the time and it is for you especially, and if you don’t bring them horses back I am going to kill you; if I don’t have this Winchester, I will have this,” reaching into his hip pocket and drawing out a revolver.
To rebut this narrative, the state called Andy Levin, who was a brother of deceased and with him made up the firm of Levin Brothers. Andy Levin testified that he knew his brother intended that morning to see Whitworth about the horses that had been driven away, and, being anxious, followed deceased away from the house some time after; that he saw'the entire encounter from a distance of about 300 yards; that the deceased did not at any time point his rifle toward Whitworth but kept it at all times in the hollow of his arm; that they talked for ten or fifteen minutes, finally clasped and held hands “for more than a minute, ’ ’ and separated without any visible demonstration of hostility having been made. Whereupon, after some cross-examination along other lines, appellant’s counsel asked leave to and offered to cross-examine the witness Andy Levin for the purpose of eliciting that on April 28, two days after the encounter referred to, the witness met Frank Adams, another employee of the Gillette Company, with one Robará, and engaged Adams in conversation about the horses that had been driven out of the Gillette Company field, demanding that in future he be notified of any horses or cattle the Gillette employees might see in his fields, and he would come and get them; that on Adams replying, “Our men would drive them out,” the witness became abusive and said, they, referring to deceased and himself, would “kill any son-of-a-bitch they found driving horses out of the company’s field, and that Whitworth had promised Adolph to bring back those horses, and if he did not do so it would not be healthy for him.” This offer was objected to by the state and refused by the court. We think that cross-examination along the lines suggested should have been allowed and that its refusal was substantial error. “The purpose of trials of issues of fact is to bring out the whole truth, and to that end the right of cross-examination must be liberally interpreted and freely exercised. * “ * Properly understood, the right extends, not only to all facts stated by the witness in his original examination, but to all other facts connected with them, whether directly or indirectly, which tend to enlighten a jury on a question in controversy.” (Cobban v. Hecklen, 27 Mont. 245, 263, 70 Pac. 805.) Necessarily included in this broad statement is the credi bility of the witnesses; and in view of its character it was important for the jury to know just what weight should be given to the testimony of Andy Levin. If the conversation referred to in the offer occurred, it was relevant and material evidence touching the verity of his account of the meeting between deceased and Whitworth .on April 26; touching the attitude of himself and the deceased as one of hostility toward the appellant prior to and at the time of the homicide, and touching his own animus as a witness at the trial. If the witness admitted the conversation, such inferences therefrom as are valid would have at once obtained; if he denied it, the way would have been opened for contradictory evidence by the persons who heard his statements. (State v. Hanlon, 38 Mont. 557, 100 Pac. 1035.)
2. The appellant Whitworth at the time of the homicide was thirty-four years old, five feet and six inches in stature, and weighed about 157 pounds. The deceased was younger, six feet and three or four inches tall, weighed from 200 to 220 pounds, without superfluous flesh, broad-shouldered, well-proportioned, well-muscled, — “apparently a very strong, muscular, robust man.” He had been shot four times; in the thigh, in the left hand and wrist, in the left arm and in the left breast. The last-mentioned shot entered just above the nipple, pierced the lung and base of the heart and caused almost, if not quite, instantaneous death. On behalf of the state there was evidence which tended to show that on the morning of the homicide, the deceased was plowing with a sulky-plow and four horses; that Whitworth rode up and commenced to shoot while the deceased was still upon the plow, engaged in managing the horses attached thereto, and without any demonstration or manifestation of hostility having been made by the deceased; that the deceased quit the plow, was followed by Whitworth, who kept on shooting, and that Whitworth fired one shot after the deceased had fallen to the ground. The defendant testified, in effect, that while pursuing his way along the road upon his employer’s business, he saw deceased plowing and rode up to him for the purpose of explaining that he (Whitworth) could not keep the promises exacted of him by deceased on April^26 and to request the de ceased to take up the matter with Mr. Reeder; that when he got within speaking distance the following occurred: “I says, as usual, ‘Good morning, Adolph.’ He didn’t say good morning. I said, ‘Adolph, I would like to speak to you in regard to the trouble we had last Wednesday, and it is a matter that we cannot settle within ourselves.’ I says, ‘I want you to go to Mr. Reeder and settle it with Mr. Reeder. I am acting under his instructions,’ and I says, ‘Furthermore, I cannot do what I promised you I would do; I cannot bring them horses back.’ He says, ‘You haven’t brought them horses back?’ and I said, 'No.’ ‘Furthermore,’ I says, ‘I don’t intend to.’ He says, ‘You and I will settle it’; he says, ‘I will kill you.’ When he was off the plow he throwed his hand behind him and started toward me. I got my gun as quick as I could and fired twice as quick as I could; my horse reared and swung to the left with my back to Levin; I looked around over my shoulder and he was still coming. I fired twice more and the last shot that was fired I thought that I had wounded the man; I eouldn’t tell from any action that he made before that whether I had touched him at all or not. I did not fire at him after he got past me. * * * Q. Mr. Whitworth, as Levin started towards you, having put his hand toward his hip pocket, why did you shoot? A. I was sure the man was going to kill me there and then. * * * I saw Mr. Levin fall to the plowed ground. After I fired the last shot he went twenty-five or thirty paces.”
Alvin JohDston, a witness for the state, also testified: “I saw Whitworth riding up and he rode up to where Levin was plowing and Levin stopped, and they talked probably a minute, and Levin got off the plow and throwed his right hand behind him and Whitworth drew his gun and commenced firing.”
Whatever may be one’s personal impression of Whitworth’s story, it is clear from the above that a controversy existed as to who was the aggressor, as to whether there was on the part of the deceased an overt act or demonstration sufficient to induce a reasonable fear in the defendant for his personal safety, and as to whether the defendant did in fact kill the deceased under the influence of such fear alone. To throw such light as he might upon this controversy, the defendant sought in divers ways— generally unsuccessful — to show threats by the deceased directed toward the defendant, but made out of his presence. It is unnecessary to recite all of these. The following illustration will suffice: Stephen Dagan, a witness for the defendant, was asked whether on April 8, 1911, he overheard any conversation between Adolph and! Andy Levin with reference to any threats or difficulty with Whitworth. Objection by the state was- sustained and thereupon the following offer of proof was made and re-, fused: “The defendant now offers to prove by the witness Stephen Dagan testifying on the stand, and another witness, that they overheard a conversation on the evening of April 8, 1911, between the deceased, Adolph Levin, and his brother, Andy Levin; that said conversation occurred in the evening of said day, and that Andy told Adolph about a piece of land, and said that he had some talk with Reeder that afternoon at the Coulee ranch; the land referred to being that of a Mr. Hansen’s. Reeder had stated to Andy Levin that he thought he had the lease, and Andy Levin thought that he had the lease. Thereupon Mr. Reeder called Andy Levin back from Reeder’s house, Andy Levin was leaving, and said, ‘I have here the man who will tell you who has the lease on that land,’ and thereupon -Whitworth came forward and showed Andy Levin the lease which he, Whitworth, had obtained from Hansen. Thereafter Andy Levin discussed with Adolph Levin the matter of horses and cattle being driven away from the Levin Bros, ranch. Andy said: ‘The first man of Gillette’s that he ever catched herding cattle or horses off his land he would kill him.’ And Adolph said: ‘That it wouldn’t make any difference who it was, we will fix him, and if I do catch -one of them, I will see that he. don’t do it again.’ Adolph further said, referring to one of the Gillette Company employees, or Gillette’s foreman: ‘If I ever catch that fellow again, I will make him dance.’ ”
As we infer from the record, the views of the learned trial judge were: that communicated threats are admissible only “as-a moving influence in the apprehension of the defendant”; that •uneommunicated threats are inadmissible, or if admissible at all, then not until there has been sufficient evidence independent of them to create the inference of self-defense, for which purpose something more than the defendant’s statement should be required; and that threats — communicated or not — have no value in determining whether the deceased was the aggressor in the fatal affray. The law has been settled otherwise in this state. Over eleven years ago this court, discussing an instruction in a similar case, said: “It told the jury, in effect, that the threats were not pertinent to the consideration of the question whether or not the defendant was actually assailed or as a reasonable man believed himself in danger of great bodily injury or in peril of life at the hands of the decedent; in other words, that the prior threats of the decedent were not to be considered unless and until the evidence disclosed that the homicide was committed in necessary self-defense. * * * Such is not the law. Evidence of threats made by the decedent against the defendant, and communicated to him, was admissible in the latter’s favor as tending to characterize the acts and conduct of the decedent and of the defendant at the time of the killing. * * * Evidence of prior threats should be considered with, not apart from, the conduct and acts of the decedent, as well as of the defendant. * * * Threats of the decedent against the defendant which had not been communicated to the latter, were admissible for the purpose of indicating or tending to show that the decedent brought on the conflict or was the aggressor or assailant, and that the defendant acted in necessary self-defense. * * * While prior threats of the decedent against the defendant, whether communicated or not, are inadmissible in justification unless at the time of the killing the decedent indicated by his conduct an intention to carry them into execution, evidence that they were made is relevant and material wherever there is any evidence tending to show such conduct or to prove that the decedent was the assailant at the time of the homicide.” (State v. Shadwell, 26 Mont. 52, 66 Pac. 508.)
In State v. Felker, 27 Mont. 451, 461, 71 Pac. 668, the above principles were restated with this comment: “The controversy as to who -was in the wrong can be correctly determined only by revealing to the jury, so far as may be, the exact relations, actions and intentions of the parties to the affray, so that the jury may give due weight to every fact which influenced the mind of the defendant.”
It is suggested by the attorney general that the particular offer above quoted was inadmissible because the threats referred to were not specifically directed toward the defendant and because they were conditional upon catching the person in the act of herding cattle off the land, a condition which does not appear to have happened. We think this evinces a misapprehension of the scope and probative value of such threats if made. The fact that they are vague, indefinite and conditional is no bar to their admission. (State v. Sloan, 22 Mont. 293, 300, 56 Pac. 364.) The evidence offered, if true, manifests a hostile and aggressive state of mind in each of the Levin brothers, not only toward the employees of the Gillette Company, of whom the defendant was one, but toward the defendant as an individual. If its existence was known to him, it would amount to a constant threat communicated to him; if not, its existence would reflect the attitude of mind entertained by the deceased and throw light on the question as to who was the aggressor at the time of the homicide. (State v. Hanlon, supra.)
3. Complaint is made of the giving of certain instructions and of the refusal of certain others proposed by the defendant. It is contended here that the instructions, so far as they make any reference to the matter of previous threats, reflect the views of the trial judge as disclosed in the taking of the testimony. Instruction 20, which deals especially with the evidentiary scope and value of prior difficulty and threats, does apparently fall short of announcing the rule as above stated. Whether this be more apparent than real, the trial court will doubtless be more explicit at another time. In any event, neither as to this nor the other instructions complained of were specific objections of the right kind made in the trial court, so that matter needs no further attention.
We see no error in tbe refusal of defendant’s proposed instruction No. 25.
The judgment and order appealed from are reversed and the cause is remanded for a new trial.
Reversed and remanded.
Mr. Chief Justice Brantly concurs.
Mr. Justice Holloway did not hear the argument and takes no part in the foregoing decision.
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] |
MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
This cause was submitted to the district court upon an agreed statement of facts under the provisions of section 7254, Revised Codes, to have determined the question: “Has the city of Helena the right and power to require the plaintiff, the Helena Light and Railway Company, to light its railway tracks within the corporate limits of said city without cost or expense to the city, and particularly at street intersections ? ’ ’ The court upheld the contention of the city that it has the power and rendered judgment in its favor. The plaintiff has appealed.
The plaintiff is operating its railway under what is referred to in the briefs of counsel as the “Brill Franchise.” It also supplies to itself and to the city and its inhabitants electricity for light and power purposes under a second franchise granted to it by the city. The ordinance granting the railway franchise contains this provision:
“Section 2. Rights Granted, Subject to What. — The right and privilege hereby granted is subject, except as herein otherwise provided, to the terms, restrictions and provisions contained in Article III, entitled ‘Street Railroads,’ on pages 323 to 331, inclusive, of the Revised Ordinances of 1897.”
Section 19 of said Article 3, which was in force when the Brill franchise was granted, is as follows: “The city of Helena reserves the right, by resolution or order of the city council, to adopt such other or further regulations, rules or réstrictions, with reference to, or for the management of, street railroads, or companies or corporations conducting street railroads within the city of Helena, as the council may from time to time deem proper; and all grants for street railroads shall be construed, taken and held to be subject to the right in this section reserved, whether so expressed in the grant or not.”
Section 3259 of the Eevised Codes declares: ‘ ‘ The city or town council has power: * * * (12) To require the lighting of any railroad track or route within a city or town, the cars of which are propelled by steam or otherwise, and fix and determine the number, style and size of the lamp-posts, burners, lamps and all other fixtures and apparatus necessary for such lighting, and the points of location of the lamp-posts, and to require the construction of crossings on the line of any railroad track or route within the city or town, the ears of which are propelled by steam or otherwise where the said track intersects or crosses any street, alley or public highway, or runs along the same, and to fix and determine the size and kind of such crossings and the grades thereof, and in case the owner of such railroad fails to comply with such requirements, the council may cause the same to be done, and it may assess the expense thereof against such owner, and the same constitutes a lien on any property belonging to such owner within such city or town, and may be collected as other taxes.”
The ordinance imposing upon the plaintiff the requirement in question is not incorporated in the agreed statement of facts. What its specific requirements are as to the number of lights required, their character, position, etc., does not appear. This is not important, however, since the question presented is not whether the particular requirements of the ordinance are reasonable, but whether either under the reservation in the general ordinance, which must be read into the Brill franchise, or under the provision of the statute, the council may exact the requirement it has undertaken to make.
1. As to the reservation .clause in the ordinance, it is contended that, though the plaintiff by accepting the franchise entered into a contract with the city whereby it bound itself to observe any condition imposed upon it by the city, it did not thereby bind itself to submit to an exaction made of it, which, but for the reservation, it would be wholly beyond the power of the city to make. It is also argued that the general reservation does not impose upon the plaintiff any other duty than to submit to any reasonable regulation enacted by the city. We do not think the reservation enlarges in any degree the power of the city to enact suitable police regulations to. control the construction and operation of railways upon its streets. Upon examination of it we find that it prescribes with great particularity the method to be pursued in constructing them, the character of materials to be used, the grade upon which they shall be laid (on a level with the surface of the street), the portion of the street they shall occupy, the maximum rate of speed at which the cars shall be moved, the points at which the cars must be stopped to receive and discharge passengers, and the duty of the corporation or other person owning the railroad to make the necessary repairs to the tracks and to keep the portion of the street occupied by them planked or paved, as the necessities of the case from time to time require. It imposes the duty of keeping the cars clean and in good repair. It prohibits the carrying of freight. It defines the relative rights of the city and the owners of the railroads, when it bgcomes necessary to make repairs upon the streets. It reserves the right in the city to require the use by one owner of a single track in common with the owner of another railroad at points where the width of the street does not permit the laying of two tracks. It contains many other provisions guarding the comfort, convenience and safety of the public while traveling on the ears or upon the streets, and declares any violation, by omission or commission, of any of the provisions contained in it a misdemeanor, subjecting the offender to the penalty of a fine. If the owner of a railroad fails to comply with any of its requirements, its franchise may be forfeited. In short, the ordinance is nothing more nor less than a series of police regulations designed to control the operation of the railroad, and thus afford reasonable protection to the public- in the use of the streets.
The source of the police power of a municipality is the state. The extent of it must be ascertained from the-law creating the municipality, and from the laws of the state bearing upon the same subject. The power cannot be surrendered, alienated or abridged by contract, nor can it be delegated even with the consent of the legislature. Its exercise is a governmental function. Without it neither the state nor the municipality could protect the public welfare. (Northern Pac. Ry. Co. v. Minnesota, 208 U. S. 583, 52 L. Ed. 630, 28 Sup. Ct. Rep. 341; Dillon on Municipal Corporations, sec. 1269; McQuillin on Municipal Corporations, sec. 890.) By parity of reasoning, since the state is the source of this power, it is obvious that it cannot be enlarged or extended by contract or agreement with a private citizen or subject. To assert the contrary is to assert the proposition that a private citizen may by agreement clothe the municipality with a power which the state alone could grant. Therefore, the general expression “such other and further regulations, rules or restrictions,” etc., found in the ordinance, must, we think, be taken to refer to, and include only, regulations of the same character as these prescribed in the preceding sections, viz., police regulations. A familiar rule of statutory interpretation is that, where general words follow particular and specific words, the former must bp held to mean things of. the same kind. (Sutherland on Statutory Construction, sec. 268.) It is true that the particular provisions found in the ordinance preceding the section containing the reservation embody separate and distinct regulations applicable to the subjects with which they deal, yet they all fall under the head of “police regulations,” and the principle embodied in the rule, it would seem, should' be applied as well to the ordinance as to a statute in which the enumeration of specific things followed by general words is all embodied in a single section. To broaden the meaning of the expression so far as to make it include regulations pertaining to subjects wholly beyond the purview of its police power would be to hold that the city may exact of the plaintiff submission to any sort of burden or imposition which the council might deem it expedient to impose, including, for instance, a requirement that the plaintiff, besides lighting its tracks upon the streets upon which they lie, shall also pave and keep in repair throughout their entire length those portions of the same streets. It cannot be questioned that such a requirement would not be within the lawful exercise of the police power. It would simply be an imposition upon the plaintiff of a duty which rests exclusively upon the municipality itself. In accepting the franchise from the city, the plaintiff impliedly agreed to become subject to any reasonable police regulation which was in force at the time, as well as to any that might thereafter be enacted. It did not require an express agreement on this subject to enable the city to exact compliance of the plaintiff. (Dillon on Municipal Corporations, sec. 1269.) That the city might by an express agreement incorporated in the grant have exacted plaintiff’s consent to submit to any imposition which it chose to impose upon it we do not doubt. The plaintiff was not obliged to accept the franchise. It took it with whatever burden was attached to it. We do not think, however, that, in the absence of a specific agreement to that effect, the city has the right to impose upon it any burden other than such as it might impose upon any other person in the same position.
2. This brings us to the real question at issue; that is to say: Does the provision of the statute, supra, vest in the city the power to make the requirement in question? The rule is established in this jurisdiction that a municipality has only such powers as are expressly conferred by the law creating it, and such as are necessarily implied and are indispensable in order to accomplish the purpose of its creation; and, when there is a fair and reasonable doubt as to the existence of the particular power, it must be resolved against the municipality and the power denied. (State ex rel. Quintin v. Edwards, 40 Mont. 287, 20 Ann. Cas. 239, 306 Pac. 695; Davenport v. Kleinschmidt, 6 Mont. 502, 13 Pac. 249.) The reason of the rule is that the state has granted in clear and unmistakable terms all that it intended to grant at all. (Id.)
The provisions of the statute are not explicit. It is argued that the terms in which it is couched are broad enough to include any road constructed of rails. Whether it was intended by tbe legislature to put street railroads in the same class with commercial railroads and make them subject to the same regulations by the municipality is left in doubt. To ascertain its intention, reference must be had to the context in which the provision is found, other provisions pertaining to the same subject, the occasion and necessity calling for the enactment of it, and the remedy had in view.
Section 3259 is an enumeration of the powers of a city council. It confers the power to pass all by-laws, ordinances and resolutions not repugnant to the federal or state Constitution or the Title relating to the government of cities, which may be necessary to carry out the provisions of the Title. (Subdivision 1.) By specific provisions embodied in eighty-one other subdivisions it grants many of the powers included in subdivision 1, besides others not clearly included. Some of them are cumulative in character, but most of them deal with specific subjects. Subdivisions 11, 12, 13 and 66 relate exclusively to railroads. Subdivision 11 grants the power “to regulate and control the laying of railroad tracks and prohibits the use of engines and locomotives propelled by steam or otherwise, or to regulate the speed thereof when used.” Subdivision 12 is quoted above. By subdivision 13 is granted the power “to license and authorize the construction and operation of street railroads and require them to conform to the grade of the street as the same are or may be established.” Subdivision 66 confers the power to grant to street or other railroads rights of way through the streets or property of the city, to regulate the running and management of the ears, to compel repairs upon a street occupied by a railroad by the owner thereof, to regulate the speed of engines, and to require flagmen at crossings. This last subdivision in terms applies to both commercial and street railroads. We do not attach any significance to the use of the term “railroad” in these subdivisions. Similar provisions were first enacted by the territorial legislature in 1887. (Comp. Stats. 1887, Div. 5, sec. 325, subds. 14 [11], 15 [12], 16 [13].) They have been- amended from time to time since, but not in any particular indicating an intention to change or extend their application. (Laws 1893, p. 113, subds. 14 [11], 15 [12], 16 [13]; Pol. Code 1895, see. 4800, subds. 11-13; Laws 1897, p. 204, subds. 11-13.) As originally enacted, subdivisions 11 and 12 applied only to railroads propelled by steam locomotives. As they now stand, they include railroads upon which any kind of motive power is used, as is indicated by the expression “or otherwise,” now found in subdivisions 11 and 12, but not in the Act of 1887. The terms “railroad” and “railway” were used in the original enactment as synonymous. So they were used in the Act of 1893. They have been used indiscriminately in the same sense in much of the legislation on the subject of railroads and railroad corporations as is pointed out in Daly Bank & Trust Co. v. Great Falls St. Ry. Co., 32 Mont. 298, 80 Pac. 252. In the popular sense they are synonymous. As was said by the supreme court of California in Ferguson v. Sherman, 116 Cal. 169, 37 L. R. A. 622, 47 Pac. 1023: “We recognize that the word ‘railroad’ or ‘railway,’ as used in a law, is broad enough to include street railroads, and that many cases have arisen where the courts have held that the word does in its signification include such corporations; but, when all has been said, each case has been determined upon its own facts, having in view the circumstances of the case, the context, the presumed intention of the lawmakers, and the general policy of the particular state 'in regard to the matter, and therefore, while a large number of cases may be cited in which the courts have held that the statutes under consideration dealing with ‘railroads’ embraced in their provisions street railroads, an equal number could be instanced in which the courts have, under the facts of the case, narrowed and limited the application of the statute, and held that street railroads were not included. It would be difficult, if not impossible, to formulate any rule to govern the determination. In this state the difficulty is much relieved by the distinction which our Codes make between railroad corporations proper and street railroad corporations.”
Much of our legislation on the subject of railroads and railroad corporations has no application to street railroads. This is made apparent by the discussion of the provisions which were construed in Daly Bank & Trust Co. v. Great Falls St. Ry. Co., supra, and, while the question now before us was not involved in that ease, what is said on this subject and especially touching the provision now under consideration should be given weight in arriving at its meaning. It will be observed that the term “railroad” is employed in subdivisions 11 and 12 without qualification. Immediately afterward, in subdivision 13, the distinguishing prefix “street” is used. This same distinction is made in subdivision 66. It is found in sections relating to the assessment of railroads. (Rev. Codes, secs. 2528, 2529.) Again, in section 3808, enumerating the purposes for which corporations may be formed, the same distinction is observed. Yet again it is found in the recent Act of the legislature providing for the establishment of lighting districts in the business portions of cities and. towns. (Daws 1911, p. 167.) The frequent use of this prefix indicates the intention of the legislature to maintain the distinction, and suggests that in construing enactments touching railroads they should not be held to apply to street railroads unless the intention that they shall so apply is apparent. The character of their construction, the mode of their operation, the comparatively limited sphere of their activities, distinguish them from the railroads of commerce. Their tracks must conform throughout to the grade of the streets. Their cars are comparatively small and light, and therefore are easily subject to control. They are moved one at a time, or in trains consisting of a single car and a trailer. They are easily operated by one or two men. They are also lighted, and their approach or presence is easily observable. Their rate of speed is low. The danger to operators and the public is, for these reasons, comparatively small. Generally, they may convey passengers only. The operation of commercial railroads requires the use of massive locomotives. They convey passengers as well as freight, often making use of composite trains. Their trains are made np of many heavy cars which, with the massive locomotives drawing them, render them difficult to control. They extend for long distances. Freight trains cannot be lighted. The movements of all trains must be controlled by signals. Many men are required to operate them. The danger to the operators and the public is proportionately large. Hence, the greater necessity for precautions to protect against danger of accident, and to serve the convenience of the public. These and many other matters which might be mentioned serve to emphasize the distinctive difference in the two kinds of railroads and furnish support to the view that by the employment, in the statute, of the term “railroad” or “railway,” without qualification, the legislature does not intend to include street railroads, unless the intention to do so is apparent from the general legislation on the subject, or such intention is apparent from the provisions of the particular statute. (33 Cyc. 34; 36 Cyc. 1348, 1349.)
We refer to a few cases which justify the foregoing statement. In Minnesota it is held that a statute declaring that railroad corporations shall be liable for damages sustained by an agent or servant of the corporation through the negligence of any. other agent or servant is not applicable to street railroad corporations. (Funk v. St. Paul City Ry. Co., 61 Minn. 435, 52 Am. St. Rep. 608, 29 L. R. A. 208, 63 N. W. 1099.) The supreme court of Oregon in Thompson-Houston El. Co. v. Simon, 20 Or. 60, 23 Am. St. Rep. 86, 10 L. R. A. 251, 25 Pac. 147, determined that a statute authorizing railroad corporations to acquire rights of way by condemnation does not include street railroad corporations. A like conclusion was reached by Judge Taft in Byrne v. Kansas City, Ft. Scott & M. R. Co., 61 Fed. 605, 9 C. C. A. 666, 24 L. R. A. 693, as to the meaning of a section of the Code of Tennessee providing that every engine or train shall be brought to a full stop before crossing an intersecting railroad. It was held that the statute has no application to the crossing by a steam commercial railroad of a horse-car track. In San Francisco & S. M. El. Ry. Co. v. Scott, Collector. etc., 142 Cal. 222, 75 Pac. 575, the court had under consideration the provision of the Constitution of California, providing that the franchise, roadway, roadbed, etc., of all railroads operating in more than one county shall be assessed by the state board of equalization at their actual cash value, and that the same shall be apportioned to the counties, cities and counties, and cities, towns, townships and districts in which such roads are located, in proportion to the number of miles of railway laid in such counties, cities, etc. The conclusion was reached that the provision has no application to a street railroad, though it is operated in more than one county. A provision of the Revised Codes (section 4295) declares that a judgment against a railroad corporation for injury to a person or property, for material furnished or work or labor done upon any property of a railroad corporation, shall be a lien within the county where it is recovered on the property of such corporation, and prior and superior to the lien of any mortgage or trust deed provided for in the chapter of the Code of which it is a part. The application of this provision was considered by this court in Daly Bank & Trust Co. v. Great Falls St. Ry. Co., supra. The term “railroad” as used therein was held not to include street railroads. The same provision was examined and the same conclusion reached as to its application in Massachusetts Trust Co. v. Hamilton, 88 Fed. 588, 33 C. C. A. 46, and Central Trust Co. v. Warren, 121 Fed. 323, 58 C. C. A. 289. Many other cases could be cited, but these are sufficient for illustrative purposes.
When we come to analyze the provision of the statute itself, we find that one of the requirements authorized by it manifestly can have no reference to street railroads, viz.: ‘ ‘ The construction of crossings on the line of the track or route within the city or town * * * where the said track intersects or crosses any street, alley, or public highway, or runs along the same, and to fix and determine the size and kind of such crossings and the grades thereof.” As already stated, street railroads must of necessity be, and they are, laid on the grade of the street. Crossings, therefore, are entirely unnecessary; indeed, they would obstruct rather than add to the safety and convenience of travel along the streets either by foot-passengers or vehicles. Should it be held that the provision for lighting applies, but that the provision for crossings does not ? We think not. Taking the subdivision as a whole, it confers in appropriate terms the power to prescribe two police regulations, both of which apply to commercial railroads entering or passing through a city or town, whereas one of them could not have any application to street railroads. When we come to examine subdivision 13, we find that it deals exclusively with street railroads, and that, taken in connection with the general provision contained in subivision 1, it confers all the powers necessary for the policing of street railroads. We therefore conclude that the provision in question was not intended to apply to street railroads at all. Hence the ordinance is void.
Counsel for the city insist that the ordinance making the requirement of plaintiff to light its tracks is authorized by the general provision found in subdivision 1. Let it be conceded that a city has the implied power to require a commercial railroad to light the streets on which its tracks lie; let it be conceded, also, that it has the implied power to require a street railroad to light its tracks at crossings which may be regarded as dangerous, or even at other points along the tracks exclusively for the convenience of the passengers; nevertheless we do not think that an ordinance under which the city may require the railroad to light the entire length of certain streets, without reference to special conditions rendering their lighting necessary, can be sustained under any view of its police power. The city cannot, under the guise of the exercise of this power, impose upon the railway company the duty which necessarily rests upon itself. (City of Shelbyville v. Cleveland, C., C. & St. L. Ry. Co., 146 Ind. 66, 44 N. E. 929.)
The fact that the ordinance applies especially to street intersections does not render it free from objection. Under it the plaintiff is made subject to fine and forfeiture of its charter, if it fails or refuses to install lights at any point or points designated, whether these be at street intersections or not. Nor do we think that the situation is affected by the fact that the plaintiff has a franchise under which it is furnishing electricity to the defendant and its inhabitants. So far as we can gather from the record, the two franchises have no relation to each other.
The judgment is reversed and the cause is remanded to the district -court, with directions to enter judgment for plaintiff.
Reversed and remanded.
Mr. Justice Holloway and Mr. Justice Sanner concur.
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MR. CHIEF JUSTICE BRANTLY
delivered tbe opinion of tbe court.
Application to tbe district court of Lewis and Clark county for mandamus to compel the defendant, as register of lands for tbe state of Montana, to issue and deliver to tbe relatrix a certificate of sale of certain lands described in tbe affidavit, the same being a portion of the lands granted to tbe state by the federal government in aid of tbe common schools, under the Act approved February 22, 1889, commonly called the Enabling Act. It appears from tbe affidavit that at a sale held by tbe defendant on June 27, 1911, under authority conferred upon him by the statute (Sess. Laws 1909, Chap. 147, p. 289), and in conformity with the requirements thereof, the relatrix became the purchaser of the lands in question at the price of ten dollars per acre, paying to the defendant in cash fifteen per cent of the gross price. On July 11, 1911, the sale was approved by the board of land commissioners. The relatrix thereupon became entitled to receive a certificate of purchase. On August 18, 1911, she made demand for the certificate, but the defendant refused to issue it, basing his refusal upon the ground that the sale had been made through inadvertence and' mistake, in that one John Edgerton and other persons had acquired a prior interest in the lands and that they were for this reason not subject to sale. After the defendant had filed his answer, Edger-ton and his associates were permitted to intervene by answer and set up their alleged rights. Thereafter the controversy was submitted to the court upon an agreed statement of facts. The court held that the relatrix was not entitled to relief and rendered judgment accordingly. The relatrix has appealed.
The agreed statement sets forth in detail the facts upon which the parties base their respective claims. It appears therefrom that there was at the time the application was heard a contest pending before the state contest board, the issue being whether the relatrix has a prior right. Her counsel argue that having become the purchaser at a sale which was in all respects regular, she is entitled to a certificate without regard to any supposed rights Edgerton and his associates may have acquired in the lands prior to her purchase. In other words, upon the completion of the sale and receipt of payment, it is insisted, it became the ministerial duty of defendant to issue the certificate, leaving Edgerton and his associates to have determined, in an appropriate action, any rights which they may have. No appearance has been made in this court by the defendant. Counsel for the interveners argue that under the provisions of the statute supra, the authorities of the state, consisting of the board of land commissioners, the contest board and other state officers, are under the statute clothed with exclusive jurisdiction to try all controversies involving disputed rights to land purchased from the state, and that their proceedings are not, directly or indirectly, subject to control by the courts prior to issuance of patent. Which of these contentions ought to be sustained we shall not undertake to determine. Upon the facts stated the action of the district court in denying the writ was correct.
Section 1 of the Act constitutes the board of land commissioners, consisting of the governor, superintendent of public instruction, secretary of state and attorney general, and vests in it exclusive control and management of all lands belonging to the state. Section 2 designates the governor as president of the board. Section 19 creates a contest board. The register is made the chief officer of this board. Section 43 provides: “Whenever any purchaser of the state lands has paid fifteen per cent of the purchase price of the land bought, and delivered to the register of state lands the bond herein required to be given, the register will make out a certificate of purchase and deliver the same to the purchaser, which certificate shall contain a description of the land purchased, the sum paid, the amount remaining due, the date at which each of the deferred payments falls due, and the amount of each, and shall be signed by the governor, as the president of the state board of land commissioners, and by the register, and a record of the same shall be kept in a suitable book.” It will be observed that while this section enjoins upon the register the duty to issue the certificate, it must be signed by the governor as president of the board of land commissioners. If it does not bear the signature of this officer it is not complete, nor is it effective for any purpose. In effect, therefore, the duty enjoined by this section is made the joint duty of the register and the governor as president of the board of land commissioners. Neither can act effectively without the other. Now, it does not appear from the statement of facts or otherwise from the record, that the certificate has been executed, ready for delivery by the register. It is stipulated merely that on August 18, 1911, the relatrix made written demand upon the register for the issuance and delivery of the certificate and that he then and there refused to issue and deliver it. It does not appear that any demand was ever made upon the governor. The issuance of the writ would therefore not have given the relatrix any effective relief, for though the register were compelled to perform the duty enjoined upon him so far as he might, the governor would be under no compulsion to act with him and would be free to refuse to add his signature. Thus the relatrix would have gained no substantial benefit.
Rehearing denied September 15, 1913.
The rule is well settled that when the writ will accomplish no beneficial result it will be denied. (Gay v. Torrance, 145 Cal. 144, 78 Pac. 540; Boyne v. Ryan, 100 Cal. 265, 34 Pac. 707; Lamar v. Wilkins, 28 Ark. 34; State v. Towers, 71 Conn. 657, 42 Atl. 1083; State ex rel. Dixon v. Internal Imp. Fund, 20 Fla. 402; Stacy v. Hammond, 96 Ga. 125, 23 S. E. 77; People ex rel. Green v. Cook County, 176 Ill. 576, 52 N. E. 334; Brownsville Taxing Dist. v. Loague, 120 U. S. 493, 32 L. Ed. 780, 9 Sup. Ct. Rep. 327; 26 Cyc. 167; Bailey on Habeas Corpus, 781.) The same rule applies where the official act to be performed depends upon the act, approval or co-operation of a third person not a party, even though it is clearly the duty of the defendant to act. (State ex rel. Lacaze v. Cavanac, 30 La. Ann. 237; High on Extraordinary Remedies, 3d ed., sec. 14.)
Nothing said herein is to be understood as a recognition of the right of third parties to intervene in this character of proceeding. The question whether this right is accorded under the statute on this subject will be determined when a case is presented requiring such determination.
The judgment is affirmed.
Affirmed.
Mr. Justice Holloway and Mr. Justice Sanner concur.
|
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JUSTICE TRIEWEILER
delivered the Opinion of the Court.
The petitioner, Carol Ann Carrillo, filed a petition in the Workers’ Compensation Court of the State of Montana in which she sought benefits for an injury which she alleged occurred in the course and scope of her employment with Blue Cross Blue Shield in 1993. After a trial, the Workers’ Compensation Court entered an order and judgment in which it concluded that Carrillo’s injury did not occur during the course and scope of her employment and denied her claim. Carrillo appeals the order and judgment. We reverse the judgment of the Workers’ Compensation Court.
The issue on appeal is whether the Workers’ Compensation Court erred when it concluded that Carrillo’s injury did not arise out of and in the course and scope of employment.
FACTUAL BACKGROUND
Carol Ann Carrillo suffered an injury on the afternoon of March 2, 1993, when she was struck by an automobile while crossing an intersection in Helena. At the time of her injury, Carrillo had left the building where she worked and was walking toward the Holter Museum, which is one and one-half blocks from her place of employment. She had planned to purchase a gift for a co-worker who was leaving and for whom Carrillo and other co-workers were planning a party. Carrillo worked for Blue Cross Blue Shield (BCBS) of Montana which was insured against workers’ compensation claims by Liberty Northwest Insurance (Liberty). After her injury, Carrillo filed a timely claim for workers’ compensation which Liberty denied on the basis that her accident did not arise out of and in the course of her employment.
After Liberty denied her claim, Carrillo filed a claim with the Workers’ Compensation Court in which she alleged that she was injured when hit by a car during her fifteen-minute break from work. Liberty responded and contended that she had abandoned her employment and was not on break. The Workers’ Compensation Court held a trial on March 23,1995, to determine whether Carrillo’s injury occurred within the course and scope of her employment.
Testimony from the trial and from depositions reveals that at the time of the accident, Carrillo worked at BCBS offices located in the Donovan building which is on the west side of Last Chance Gulch south of its intersection with Lawrence Street in Helena. BCBS provided its employees with a fifteen-minute break in the morning and another fifteen-minute break in the afternoon. Employees customarily took the afternoon break sometime between 2:00 and 3:30 p.m. A substantial number of BCBS employees walk during their breaks and Carrillo testified that she walked during ninety percent of her breaks. While BCBS encouraged its employees to engage in a healthy lifestyle, it did not require them to walk during breaks or even to take breaks; employees were free to take them or leave them.
A small break room was located in the basement of the Donovan building where Carrillo worked. Approximately fifty to seventy-five employees worked in the Donovan building and employees at the Donovan building often walked to the Fuller building for breaks. The Fuller building is a second BCBS office which is located on the northwest corner of Fuller and Lawrence streets, approximately one block away from the Donovan building. Employees also walked to other nearby businesses to take their breaks and BCBS also had a room in the Downtown Athletic Club for use as a break room.
Testimony also revealed that BCBS permits its employees to give going-away parties for employees leaving BCBS or transferring to other departments. The parties were, at times, held during breaks and planning could be done anytime during the day. On their breaks, employees would sometimes buy going-away gifts from nearby merchants.
At the time of the accident, Carrillo’s direct supervisor, Beth Lamping, was leaving Carrillo’s unit and transferring to another job at BCBS. Therefore, Carrillo and her co-employees planned a going-away party for Lamping and decided to buy her a coffee mug to replace the one she had broken.
At approximately 2:15 p.m. on March 2, 1993, Carrillo left the Donovan building to go to the Holter Museum gift shop, which is approximately one and one-half blocks away from the Donovan building, to buy Lamping a replacement mug. Carrillo was not required by BCBS or her supervisor to purchase a mug for Lamping. She intended to return to the Donovan building to pick up a co-worker, then proceed to the Fuller building during her break. However, while on her way to the Holter Museum, a car struck her while she was crossing Lawrence Street and she sustained the injuries for which she now seeks compensation.
Ultimately, the BCBS employees held the party for Lamping during work hours and Carrillo’s co-workers drove to Carrillo’s house to take her to the party.
After a trial, the Workers’ Compensation Court concluded that Carrillo was not entitled to workers’ compensation benefits because she did not suffer an injury arising out of and in the course of her employment.
DISCUSSION
Did the Workers’ Compensation Court err when it concluded that Carrillo’s injury did not arise out of and in the scope of her employment?
We review the Workers’ Compensation Court’s conclusions of law to determine whether they are correct. CNA Ins. Cos. v. Dunn (1995), 273 Mont. 295, 298, 902 P.2d 1014, 1016; Stordalen v. Ricci’s Food Farm (1993), 261 Mont. 256, 258, 862 P.2d 393, 394. We review the Workers’ Compensation Court’s findings of fact to determine whether substantial evidence supports the findings. Wunderlich v. Lumbermens Mut. Casualty Co. (1995), 270 Mont. 404, 408, 892 P.2d 563, 566 (citing Smith v. United Parcel Serv. (1992), 254 Mont. 71, 75, 835 P.2d 717, 720).
Section 39-71-407(1), MCA, provides in part that “[e]ach insurer is liable for the payment of compensation ... to an employee of an employer that it insures who receives an injury arising out of and in the course of employment.” (Emphasis added.) We have stated that:
No exact formula can be laid down which will automatically solve every case involving the question of whether an accident arises out of and in the course of employment, but each case must depend upon its particular facts and circumstances.
Partoll v. Anaconda Copper Mining Co. (1949), 122 Mont. 305, 310-11, 203 P.2d 974, 977.
In this case, the Workers’ Compensation Court relied on § 39-71-407(3), MCA, to reach its conclusion that Carrillo did not sustain her injury during the course and scope of employment. Section 39-71-407(3), MCA, pertains to traveling employees and provides that “[a]n employee who suffers an injury ... while traveling is not covered by this chapter unless” certain conditions are met. Subsections (a) and (b) of 39-71-407(3), MCA, delineate when such injuries would be compensable and provide:
(a)(i) the employer furnishes the transportation or the employee receives reimbursement... and
(ii) the travel is necessitated by and on behalf of the employer as an integral part or condition of the employment; or
(b) the travel is required by the employer as part of the employee’s job duties.
The Court first concluded that Carrillo was traveling when injured by stating:
The word “traveling” is not specifically defined in the Workers’ Compensation Act but in its ordinary and usual sense it means going from one place to another. Larson’s treatise on workers’ compensation similarly refers to “traveling employees” as “employees whose work entails travel away from the employer’s premises.” 1A Larson Workmen’s Compensation Sec. 25.00 at 5-275 (underlining added). Claimant was going from her place of employment to a different place.
The Court then analyzed § 39-71-407(3), MCA, and relevant cases to conclude that the injuries Carrillo suffered while traveling were not compensable.
Carrillo contends that the court incorrectly concluded that the traveling statute, § 39-71-407(3), MCA, controlled the case. Instead, she contends that she was not traveling, but was on a “break” when injured and therefore that she was within the course and scope of her employment. In support of her contention that she was on break, she refers to her uncontroverted testimony at trial. Her attorney asked: “If you were to say, ‘yes, I was on break,’ or ‘No, I was not on break,’ when you left the Donovan Building to go to the Holter Museum, would you say yes or no?” and she replied, ‘Yes.”
The Workers’ Compensation Court made no specific finding that Carrillo was or was not on break at the time of her injury. The only finding that refers to her afternoon break was Finding No. 10 in which the court stated that Carrillo
left the Donovan building to go to the Holter Museum gift shop, which is approximately a block and a half away from the Donovan building, to buy Lamping a replacement mug. She intended to return to the Donovan building to pick up a co-worker, then proceed to the Fuller building for a break.
Liberty contends that when the court found that Carrillo was going on break after getting the gift, the court in fact found that she was not on break while getting the gift and that substantial evidence supports that finding. However, there is nothing inconsistent with her being on break at the time of her injury and her intention to continue her break at another location later on. In fact, the uncontroverted evidence and the Workers’ Compensation Court’s findings compel just that conclusion.
In her testimony, Carrillo described the break policy as follows: The breaks were normally — sometimes you didn’t take a break, sometimes you took a 15- or a 20-minute break, sometimes you just needed to get away and some people would be gone longer than that. It was kind of an unwritten code.
When asked if she was free to take a break when she wanted during the break period, which she said occurred between “2:00 to 3:30 or something,” Carrillo replied yes and also testified that she was free to leave the building and to go anywhere she wanted.
Here, Carrillo left the Donovan building at approximately 2:15 p.m. which is within the period of time that afternoon breaks are normally taken by BCBS employees. She planned to walk to a gift shop one and one-half blocks away and testified that she knew exactly what she needed to find. While true that Carrillo testified, as the Workers’ Compensation Court found, that she was going to return to the Donovan building to pick up a co-worker, then proceed to the Fuller building “on break,” she also testified that it would take her, “two to three minutes to get to the Holter Museum; two to three minutes to look for the mug; two to three minutes to get back to the Donovan Building, and another two to three minutes to pick up Sandy and get over to the Fuller Building; two to three minutes to pick up whatever we were going to buy there at the Fuller Building, and another two to three minutes to get back.” Therefore, she testified that her planned activities would have taken between twelve and eighteen minutes to complete. And, had Carrillo not been injured, she would have completed her activities within the time allocated for BCBS employee breaks — fifteen to twenty minutes.
Therefore, based on the undisputed evidence and the Workers’ Compensation Court’s finding that this was a typical way in which BCBS employees spent their break time, we conclude that Carrillo was on break when she was walking to the Holter museum and was hit by a car and injured.
Having concluded that Carrillo was on break when injured, we must determine if and when an employee injured during an authorized break is within the course and scope of employment. We have not previously decided this issue. In fact, only two Montana cases involve somewhat similar circumstances—Strickland v. State Compensation Mutual Ins. Fund (1995), 273 Mont. 254, 901 P.2d 1391, and Geary v. Anaconda Copper Mining Co. (1947), 120 Mont. 485, 188 P.2d 185.
In Geary, the worker suffered an eye injury during a lunch hour game of handball on the employer’s premises. The employer required the employees to remain on the premises in an “on call” status during the lunch period. Some of the employees had been playing handball during the lunch hour for approximately three months prior to the accident. On some occasions, the claimant’s foreman had participated in the game and in fact was present on the day of the accident. Geary, 120 Mont. at 486, 188 P.2d at 185. In that case, we looked at case law from other jurisdictions, indicated the importance of the employer’s knowledge of the activity and the employer’s requirement that the employees remain on call, noted that the Workers’ Compensation Act was to be construed liberally, and found the injuries compensable. Geary, 120 Mont. at 490, 188 P.2d at 187.
While we awarded compensation in Geary, it differs from this case in several respects. When we decided Geary, a different version of the Act applied and we were required to liberally construe the Act. Most importantly however, according to Larson’s Workmen’s Compensation Law, Geary differs because the injury occurred during a lunch break rather than during a “coffee break.”
In his treatise, Larson differentiates between injuries which occur during unpaid lunch breaks and those which occur during shorter, paid coffee breaks. See 1 Larson’s Workmen’s Compensation Law, § 15.51 at 4-157, and § 15.54 (1996). Specifically, unpaid lunch breaks are treated like trips at the beginning or end of a workday and involve the “going to and from” rule with its exceptions, whereas shorter paid breaks do not involve the “going to and from” rule with its exceptions. See generally 1 Larson, § 15.51; § 15.54.
The Montana Department of Labor and Industry also recognizes the distinction between coffee breaks and longer meal periods:
Bona fide meal periods. Bona fide meal periods are not work time. Bona fide meals do not include coffee breaks or time for snacks. These are rest periods. The employee must be completely relieved from duty for the purposes of eating regular meals. Ordinarily 30 minutes or more is long enough for a bona fide meal period. A shorter period may be long enough under special circumstances. The employee is not relieved if he is required to perform any duties, whether active or inactive while eating. For example, an office employee who is required to be at his machine is working while eating.
Rule 24.16.1006(2)(a), ARM.
Larson concludes that this difference between coffee breaks and lunch breaks is justified “because normally the duration of the lunch period, when lunch is taken off the premises, is so substantial and the employee’s freedom of movement so complete that the obligations and controls of employment can justifiably be said to be in suspension during this interval.” 1 Larson, § 15.54 at 4-183.
We have previously determined that § 39-71-407(3), MCA, the statute relied on by the Workers’ Compensation Court to decide this case, codified Montana’s going to and from rule:
In 1987, the legislature amended § 39-71-407, MCA, to codify exceptions to the general workers’ compensation rule that actions occurring when employees are going to or coming from work are not within the course and scope of their employment.
Dale v. Trade Street, Inc. (1993), 258 Mont. 349, 352, 854 P.2d 828, 829. Therefore, according to Larson’s analysis of the difference between lunch breaks and coffee breaks, while § 39-71-407(3), MCA — the codification of Montana’s going to and from rule — applies to injuries sustained during lunch hours, it does not concern injuries which a worker suffers while on coffee break. Because we have previously determined that Carrillo was on break when injured, the Workers’ Compensation Court erred when it decided this case based solely on Carrillo’s failure to meet the requirements of § 39-71-407(3), MCA. Reliance on this statute was also erroneous because it first required the Workers’ Compensation Court to conclude that Carrillo was “traveling” at the time of her injury. In order to arrive at that conclusion, the court relied on its common understanding of the term and a misapplication of Larson’s reference to “traveling employees” at 1A Larson’s Workmen’s Compensation Law, § 25.00 at 5-275. However, according to Black’s Law Dictionary 1500 (6th ed. 1990), to travel is “[t]o go from one place to another at a distance; to journey.” It does not seem to include trips of one and one-half blocks.
Recently, in Strickland, we considered whether a person injured after having left work during her work shift was injured during the course and scope ofher employment. Strickland, 273 Mont. at 257-59, 901 P.2d at 1393-94. We held that a person injured while on a personal errand was not acting within the course and scope of her employment when injured. Strickland, 273 Mont. at 259, 901 P.2d at 1394. In that case, we agreed with both the Workers’ Compensation Court’s finding that claimant left work on a personal errand and with its conclusion that claimant was outside the course and scope of her employment.
In Strickland we used § 39-71-407(3), MCA, as did the Workers’ Compensation Court, to conclude that claimant’s injuries were outside the scope of employment; however, in Strickland, we did not determine whether an injury suffered while on a break was compensable. Strickland neither contested the applicability of § 39-71-407(3), MCA, nor did she contend that she was injured while on break. Instead, Strickland asked us to conclude that she was within the course and scope of her employment despite the determination that she was on a personal errand. Strickland, 273 Mont. at 258, 901 P.2d at 1393.
Because neither Strickland nor Geary apply, we have not specifically dealt with the question presented here. However, case law from other jurisdictions and Larson’s discuss the issue. Larson states:
[N]ow that the coffee break or rest break has become a fixture of many kinds of employment, close questions continue to arise on the compensability of injuries occurring off the premises during rest periods or coffee breaks of various durations and subject to various conditions. It is clear that one cannot announce an all-purpose “coffee break rule,” since there are too many variables that could affect the result ... [such as] the duration ... whether the interval is a right fixed by the employment contract, whether it is a paid interval, whether there are restrictions on where the employee can go during the break, and whether the employee’s activity during this period constituted a substantial personal deviation.
The operative principle which should be used to draw the line here is this: If the employer, in all the circumstances, including duration, shortness of the off-premises distance, and limitations on off-premises activity during the interval can be deemed to have retained authority over the employee, the off-premises injury may be found to be within the course and scope of employment.
1 Larson, § 15.54, at 4-183 through -85 (footnotes omitted) (emphasis added).
Consistent with Larson, several states allow compensation for injuries sustained during coffee breaks. For example, in Jordan v. Western Electric Co. (Or. App. 1970), 463 P.2d 598, 599, claimant suffered an injury off the premises while returning from a coffee break. While break facilities were available on the premises, employees customarily went to the nearest restaurant, approximately two and one-half blocks away. Jordan, 463 P.2d at 599. An award of compensation was affirmed because the coffee break was for the employer’s benefit as well as the employee’s, it was contemplated under the contract of employment, it was acquiesced in by the employer, there was an element of control because the supervisor accompanied the employees, and the claimant was paid for the coffee break. Jordan, 463 P.2d at 601-02.
In Mellis v. McEwen (Or. 1985), 703 P.2d 255, an employee suffered an injury in a public cafeteria during a fifteen-minute break. The Oregon court applied the Jordan factors, found claimant’s injury was within the course and scope of employment, and stated: “[W]e find that a 15 minute break is a ‘typical kind of coffee break activity that is contemplated by an employer’ and that claimant’s activity was not a departure from the employment relationship.” Mellis, 703 P.2d at 257.
In Roache v. Industrial Commission of the State of Colorado (Colo. App. 1986), 729 P.2d 991, the claimant left her work place and was injured in an explosion in a convenience store where she had gone during a fifteen-minute paid break. The court adopted the Larson analysis and awarded compensation:
Determination of these issues rests upon inquiry into such matters as: whether the break period is of a duration so short as to support the inference that employment activities were virtually uninterrupted; whether it is provided for by employment contract; whether it is a paid interval; whether the employer permits off-premises breaks; whether the off-premises location is in close proximity to the employment site; and whether there are limitations on where the employee may go during break.
... The break period was of short duration and it was a paid interval. The store was located not far from the claimant’s place of employment, and the visit was for the basic purpose of rest and confinement.
Roache, 729 P.2d at 992 (citations omitted).
In a California case, an employee suffered an injury when, during a paid coffee break, she and several other employees went swimming in a canal a short distance from the employer’s property. State Comp. Ins. Fund v. Workmen’s Comp. Appeals Bd. (Cal. 1967), 434 P.2d 619, 620. The court found that the employer at least tolerated similar acts and awarded compensation. State Comp. Ins. Fund, 434 P.2d at 621.
Therefore, other courts have found injuries which occurred dining coffee breaks compensable and in doing so have looked to the considerations set forth in Larson. One of those factors is whether the employee was paid during the break. An uncompensated employee should be free to do whatever he or she wishes, whereas a paid employee is not. See King Waterproofing Co. v. Slovksy (Md. 1987), 524 A.2d 1245, 1249 (distinguishing between short paid breaks and longer unpaid lunch breaks). Carrillo testified that BCBS paid her during her breaks, and therefore, Carrillo satisfies this factor.
As to Larson’s criteria that the right to a break be fixed in the employment contract, Carrillo testified that BCBS employees were entitled to two breaks, one in the morning and one in the afternoon. Not only did Carrillo testify to her right to breaks, but also, the Montana Department of Labor and Industry Regulations defines rest period as hours “worked”:
Rest. Rest periods of short duration, running from 5 minutes to about 20 minutes, are common in industry. They promote efficiency of the employee and are customarily paid as working time. They must be counted as hours of work. Compensable time of rest periods may not be offset against other working time such as compensable waiting time or on-call time.
Rule 24.16.1006(1), ARM (emphasis added). The Department of Labor also recognizes that employers provide breaks to their employees, that these breaks serve the employer’s interests, and that they are not a departure from work time.
A third factor is “whether there are restrictions on where the employee can go during the break.” Liberty asserts that evidence does not show that Carrillo’s employer exercised any control over her activity during that break, but instead shows that it simply set general boundaries within which the break could be taken and set limitations on the duration of the break. However, while some of the testimony supports Liberty’s assertion, testimony also reveals that Carrillo had in the past been asked by her supervisor not to leave the building because she might be needed and had also been asked to postpone her break. Furthermore, Carrillo testified that, on occasion, someone had been dispatched to find her while on break and to bring her back. Therefore, although BCBS only set boundaries within which the break could be taken and set limitations on the duration of the breaks, these limitations amounted to the requisite “restric tions on where the employee can go during the break” and therefore, Carrillo also satisfies this element.
Finally, we look at whether the employee’s activity during this period constituted a substantial personal deviation. In this case, Carrillo’s injury occurred while she walked to a gift shop one and one-half blocks away from her work place. Carrillo knew exactly what she needed and testified that her planned activities would have taken between twelve and eighteen minutes to complete. Carrillo also testified that her employer not only acquiesced in the employees’ departure from the premises during break, but gave them little choice because of the inadequate break facilities at the Donovan building where she worked. Finally, she also testified that she walked during ninety percent of her breaks and that her director walked with her on occasion.
Carrillo also testified about the parties that employees at BCBS held for others who were transferring or leaving. Testimony revealed that employees expected these parties, that both the planning and the parties occurred during work hours, and that supervisors knew about and participated in these parties. In this case, the employees planned a party for a supervisor who was leaving and planned to give her a particular mug; Carrillo went to purchase the mug at the Holter gift shop when she was injured. Because Carrillo usually walked on breaks, because she would have been on a break of normal duration if not injured, and because she went to the gift shop to look for a gift for use at one of the BCBS parties, her activity during the break period did not constitute a substantial personal deviation.
Therefore, Carrillo meets the factors Larson sets forth for determining whether one’s injury during a coffee break is within the course and scope of employment. Carrillo had a right to a break for which she was paid; BCBS placed restrictions on where the employees could go during the break; and Carrillo’s activity did not constitute a substantial personal deviation from her employment.
For these reasons, we conclude that Carrillo was acting within the course and scope of her employment when injured and the Workers’ Compensation Court erred when it concluded otherwise. We therefore reverse the order and judgment of the Workers’ Compensation Court.
CHIEF JUSTICE TURNAGE, JUSTICES NELSON and LEAPHART concur. JUSTICE HUNT did not participate in this decision.
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JUSTICE TRIEWEILER
delivered the Opinion of the Court.
On August 17, 1995, Steven J. Shapiro, Rick Strieb, and Barbara Patrick (Plaintiffs) filed a petition for a writ of mandamus and prohibition and a petition for a declaratory judgment in the District Court for the Fifth Judicial District in Jefferson County. On September 15,1995, the District Court issued an alternative writ of mandamus. Following a hearing, the District Court issued a peremptory writ of mandamus and prohibition in which it prohibited Jefferson County from paying or allowing Valerie Wilson to act as Jefferson County Attorney and in which it required the County to reopen the application process for the county attorney position. The Defendants appeal the court’s issuance of the writ. We reverse the District Court.
On appeal, we address the issue of whether the District Court erred when it concluded that Jefferson County’s appointment of Valerie Wilson as county attorney was void ab initio.
FACTUAL BACKGROUND
Plaintiffs in this case are residents, electors, and taxpayers in Jefferson County. Defendants consist of Jefferson County, the Board of County Commissioners of Jefferson County, and three individual members of the Board of County Commissioners.
The population of Jefferson County is approximately 9,200. The office of county attorney in Jefferson County is a full-time, elected position. When a vacancy occurs in that position, it is the duty of the Jefferson County Commissioners to appoint a qualified attorney to fill the position until the next general election. See Section 7-4-2206, MCA.
On May 3, 1995, Richard Llewellyn, the duly elected and acting county attorney in Jefferson County, resigned his position. The Jefferson County Commissioners thereafter initiated a process to fill the vacancy created by Llewellyn’s resignation. The Commissioners advertised the vacancy in several newspapers and other publications. They received a total of twenty-one applications for the position.
Prior to the application deadline, the Jefferson County Commissioners formed a selection committee to interview and narrow the list of candidates. The committee was composed of three County Commissioners, the Jefferson County Sheriff, the Justice of the Peace, the District Judge for Jefferson County, the Madison County Attorney, an Assistant Attorney General, and two private consultants. The committee narrowed the list of applicants to seven candidates and scheduled interviews for July 19, 1995.
Following the interviews, the selection committee narrowed the list of remaining applicants to Bridgitt Erickson, Robert Zenker, and Valerie Wilson. After an investigation into those candidates’ backgrounds, the County Commissioners selected Valerie Wilson to fill the position of Jefferson County Attorney at a public meeting in Clancy on July 25,1995. No one lodged an objection to Wilson’s qualifications at that meeting. Wilson became a resident of Jefferson County on August 18, 1995. That same day she assumed office as the Jefferson County Attorney.
On August 17, 1995, Plaintiffs filed a petition for a writ of mandamus and prohibition and a petition for a declaratory judgment requesting the Fifth Judicial District Court to order the Defendants to rescind their decision to appoint Wilson as Jefferson County Attorney and to reopen the application process for that position. Plaintiffs claimed that based on § 7-4-2701, MCA, Wilson was not qualified to hold the position of Jefferson County Attorney because she had not been “admitted to the practice of law for at least 5 years prior to the date of election or appointment.”
Following a hearing on November 24, 1995, the District Court issued an order in which it concluded that Wilson was not qualified to retain the position of Jefferson County Attorney because she had not been admitted to the practice of law for five years prior to her appointment. The District Court therefore concluded that Jefferson County’s appointment of Valerie Wilson to fill the position of county attorney was void ab initio, but determined that Wilson’s actions since she had assumed office could not be challenged because she had been acting as a de facto officer. The court issued a writ of mandamus to enjoin and prohibit Jefferson County from paying or allowing Wilson to act as the county attorney, and to require the County Commissioners to reopen the application process for that position.
Defendants filed a notice of appeal on January 2,1996. On January 30, 1996, this Court issued an order staying the District Court’s writ of mandamus pending the outcome of this appeal.
DISCUSSION
On appeal, we address the issue of whether the District Court erred when it concluded that Jefferson County’s appointment of Valerie Wilson as county attorney was void ab initio. We review a district court’s conclusions of law to determine if they are correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.
In this case, the District Court concluded that Valerie Wilson had not been “admitted to the practice of law for at least 5 years,” as required by § 7-4-2701, MCA. The court therefore concluded that Wilson was not qualified to be appointed to the office of county attorney pursuant to the requirements of § 7-4-2701, MCA, and declared that the County Commissioners’ appointment of Wilson to that position was void ab initio. On the basis of its conclusions, the court issued a writ of mandamus in which it ordered that Wilson be terminated from her position as Jefferson County Attorney and in which it required the Jefferson County Commissioners to re-open the application process for the appointment of a statutorily-qualified county attorney.
Section 7-4-2701, MCA, establishes statutory qualifications for county attorneys in counties with populations in excess of 30,000. That statute provides:
No person is eligible for the position of county attorney in counties which have a population in excess of 30,000 unless he is a citizen of the United States who has resided in the state 2 years immediately before taking office and has been admitted to the practice of law for at least 5 years prior to the date of election or appointment.
(Emphasis added.) Counties with populations of fewer than 30,000 may create a full-time county attorney position. In accordance with § 7-4-2706, MCA, however, those full-time county attorneys are subject to the statutory qualifications of § 7-4-2701, MCA:
In any county with a population of less than 30,000, the county commissioners may, upon the consent of the county attorney, on July 1 of any year by resolution establish the office of county attorney as a full-time position subject to the provisions of 7-4-2701 and 7-4-2704.
Section 7-4-2706(1), MCA (emphasis added).
Jefferson County has a population of 9,200; however, that county created a full-time county attorney position on July 1, 1986. In accordance with § 7-4-2706(1), MCA, therefore, the Jefferson County Attorney is subject to the qualifications of § 7-4-2701, MCA: (1) she must be a United States citizen; (2) she must have resided in Montana for two years immediately preceding her election or appointment to that office; and (3) she must have been admitted to the practice of law for at least five years prior to the date of her election or appointment to that office.
In this case, the District Court concluded that Valerie Wilson had not been “admitted to the practice of law for at least 5 years” prior to her appointment to office onAugust 18,1995. The court reasoned that Wilson had not been admitted to the practice of law, pursuant to § 7-4-2701, MCA, until October 8, 1991, when she was admitted to the Montana Bar. Therefore, the court concluded that Wilson “would not achieve the five years until October 8, 1996.”
Although Wilson testified at the District Court hearing that she had begun practicing law as a student attorney in February 1990, and therefore had over five years of experience at the time of her appointment, the District Court discounted Wilson’s experience as a student attorney. Specifically, the court stated:
The court does not give Ms. Wilson credit for experience gained under the Montana Supreme Court “student practice” rule because that rule was intended only to apply to students who had not yet been admitted and who were under the supervision of a licensed attorney.
The Montana Student Practice Rule was adopted by this Court on April 30, 1975, and became effective on May 1, 1975. That rule provides that law students who are enrolled in an accredited law school, have completed two-thirds of the total credit hours required for graduation, and have been certified by the dean of the law school as being of good character and competent legal ability and as being adequately trained to perform as a legal intern, may practice under the Student Practice Rule. Students who are deemed eligible to practice under the Student Practice Rule may, subject to certain guidelines, appear in court or before any administrative tribunal in the state; prepare pleadings, briefs, abstracts, and other documents to be filed in trial or appellate courts in this state; advise, negotiate, and perform other appropriate legal services; and participate in oral argument before the Montana Supreme Court.
Section 37-61-201, MCA, designates who is considered to be practicing law in Montana. That statute provides:
Any person who shall hold himself out or advertise as an attorney or counselor at law or who shall appear in any court of record or before a judicial body, referee, commissioner, or other officer appointed to determine any question of law or fact by a court or who shall engage in the business and duties and perform such acts, matters, and things as are usually done or performed by an attorney at law in the practice of his profession for the purposes of parts 1 through 3 of this chapter shall be deemed practicing law.
Section 37-61-201, MCA, does not require that one must be admitted to the State Bar of Montana in order to be “deemed practicing law” in Montana. Therefore, a student attorney who “[appears] in any court of record or before a judicial body” or who “[engages] in the business and duties and performs such acts, matters, and things as are usually done or performed by an attorney at law in the practice of his profession,” is clearly “deemed practicing law,” pursuant to § 37-61-201, MCA.
At the district court hearing, Wilson testified that she had worked in the Missoula County Attorney’s Office from February 1990 through June 1991 under the Student Practice Rule. Wilson testified that in her position as student attorney with that office, she had tried several cases in front of the Fourth Judicial District Court. In trying those cases, she testified that she had drafted complaints and court orders, interviewed witnesses, and performed direct and cross-examinations of witnesses. Wilson testified that her work was reviewed by a supervising attorney, but that
[generally, when I was assigned a case, it was mine to work. And I would not be supervised as to whether I would continue with the case or dismiss it. That would be my discretion.
Clearly, pursuant to § 37-61-201, MCA, Valerie Wilson had “[engaged] in the business and duties and perform [ed] such acts, matters, and things as are usually done or performed by an attorney at law in the practice of his profession,” and was therefore deemed to be practicing law from February 1990 through June 1991.
Furthermore, since Wilson was entitled to engage in the practice of law only by virtue of this Court’s order enacting the Student Practice Rule and only after she met the requirements of and was certified to practice pursuant to that rule, the Court’s order did admit her to the practice of law. As a student, Wilson would not have been entitled to perform the business and duties usually associated with the practice of an attorney without the requisite certification pursuant to the Student Practice Rule. We hold, therefore, that this Court’s order, which provides for the certification of student attorneys, combined with the dean of the law school’s certification of students to act as student attorneys, provide the guidelines for “admission” of a student attorney to the practice of law. We therefore hold that Wilson was “admitted to the practice of law,” pursuant to the requirements of § 7-4-2701, MCA, in February 1990. Therefore, Wilson had been admitted to the practice of law for “at least 5 years” when she assumed her duties as Jefferson County Attorney.
On appeal, however, Plaintiffs maintain that even if Wilson meets the qualifications set forth in § 7-4-2701, MCA, her appoint ment is still invalid because the Jefferson County Commissioners did not follow the statutory procedure for filling a vacancy in the office of county attorney. Specifically, Plaintiffs maintain that the County Commissioners did not follow the procedures set forth in § 7-4-2702, MCA, which provides, in relevant part:
(1) Whenever a vacancy in the office of county attorney shall arise in any county and there is no licensed attorney residing in said county who is eligible to be appointed to fill said vacancy, the board of county commissioners is authorized and has the power to employ special counsel from without the county, who shall be designated and officially known as the “acting county attorney” and who during said employment shall be vested with all the powers and shall perform all the duties of the county attorney, including the filing of all complaints, informations, and/or other proceedings for and in which the county or state may be a party and the prosecution and defense of the same to the same extent and with the same force and effect as if he were the regular qualified county attorney....
(2) Whenever any licensed attorney shall establish residence in said county and become eligible to hold the office of county attorney, it shall be the duty of the board to appoint such attorney to fill said vacancy, and the employment of said special attorney shall thereupon cease.
Section 7-4-2702, MCA, provides a means by which county commissioners are authorized to appoint a temporary “acting county attorney,” from without a county, to perform the duties of a “regular qualified county attorney.” In this case, Wilson had become a resident of Jefferson County by the date on which she was sworn in as Jefferson County Attorney. Therefore, the County Commissioners did not appoint a temporary county attorney from outside Jefferson County, according to § 7-4-2702, MCA. They appointed a qualified licensed resident attorney to fill the vacancy in the position of the acting county attorney until the next general election. See § 7-4-2206, MCA. Because there was more than one qualified attorney to fill the vacancy, the County Commissioners clearly had the discretion to choose the replacement attorney. As we stated in Horvath v. Mayor of the City of Anaconda (1941), 112 Mont. 266, 273, 116 P.2d 874, 878:
The power to appoint carries with it a presumption that the appointing power is also, necessarily, discretionary. The determination of the appointing board or officer as to the qualifications of applicants involves official discretion, and, when made fairly and in good faith, is final.
In this case, the Jefferson County Commissioners, in good faith, made the determination that Valerie Wilson was qualified to fill the position of Jefferson County Attorney and appointed her to that position. Based on our conclusion that Wilson was qualified to assume that position, pursuant to § 7-4-2701, MCA, and based on our conclusion that the Jefferson County Commissioners followed the proper procedure for the appointment of a replacement county attorney, pursuant to § 7-4-2206, MCA, we reverse the District Court’s issuance of a writ of mandamus and remand this case to the District Court for entry of a judgment consistent with this opinion.
CHIEF JUSTICE TURNAGE, JUSTICES ERDMANN and LEAPHART concur.
|
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JUSTICE TRIEWEILER
delivered the Opinion of the Court.
On April 30,1985, the Confederated Salish and Kootenai Tribes of the Flathead Reservation (Tribes) filed an objection with the Montana Department of Natural Resources and Conservation (DNRC) to an application by Frank Pope, a non-Indian landowner on the reservation, for an authorization to change his point of diversion and place of use of a portion of his on-reservation water right. Between February 10,1987, and September 16,1987, the Tribes filed objections with the DNRC to three applications from non-Indian landowners on the reservation who were seeking permits for new water rights from sources on the reservation. DNRC consolidated the Tribes’ objections to all of the water permit applications, and on April 14,1992, issued a final order in which it denied the objections. On January 12, 1995, the District Court affirmed DNRC’s final order. The Tribes appeal the District Court’s order. We reverse the District Court.
On appeal we address only the issue of whether DNRC has authority to grant new water use permits on the Flathead Indian reservation prior to settlement or adjudication of the Tribes’ reserved water rights.
FACTUAL BACKGROUND
On October 5, 1984, Frank Pope, a non-Tribal member who owns land in fee on the Flathead Indian Reservation, filed an application with the Department of Natural Resources and Conservation for a permit to change the point of diversion and place of use of a portion of his existing water right. Between August 19, 1986, and August 4, 1987, three other applicants, all of whom are non-Tribal members who own land in fee on the reservation, filed applications with DNRC to obtain permits for new water rights from sources on the reservation. Following notice of each of these applications, the Confederated Salish and Kootenai Tribes filed objections and requested that the applications be denied in their entirety.
In response to the Tribes’ objections, DNRC appointed a hearing examiner and set an initial hearing date for each of the applicant’s petitions. Subsequently, the Tribes moved to dismiss one of the cases for lack of jurisdiction and requested that the hearing examiner bifurcate the jurisdictional and substantive issues. The Tribes contended that the merits of the individual applications could not be decided until it was determined whether DNRC has jurisdiction to engage in water rights proceedings on the Flathead Reservation. On November 8, 1989, the hearing examiner granted the Tribes’ motion to bifurcate and certified the Tribes’ legal objections to DNRC’s director pursuant to Rule 36.12.214, ARM.
DNRC director Karen Barclay Fagg consolidated the Tribes’ objections to all ofthe applications. On April 30,1990, Fagg issued an order and memorandum in which she concluded that DNRC has jurisdiction to regulate any surplus water on fee land on the reservation even though Tribal reserved water rights have not yet been quantified.
The consolidated cases were subsequently remanded to the hearing examiner who issued individual “Proposals for Decision for each of the Applications.” The Tribes filed exceptions to the hearing examiner’s proposed decisions based on their contention that DNRC does not have jurisdiction to regulate waters on the reservation. The DNRC director then allowed a consolidated oral argument on September 26, 1991, at which the Tribes were allowed to present exceptions. On April 14, 1992, Fagg issued DNRC’s final order which affirmed its previous April 30,1990, order and clarified that it applied to “new permits for surplus, non-reserved water, and to changes [to permits for] surplus, non-reserved water, by non-Indians on fee lands within the exterior boundaries of the Flathead Indian Reservation.”
On May 15, 1992, the Tribes simultaneously filed a petition for judicial review in the First Judicial District Court in Lewis and Clark County and a complaint for declaratory and injunctive relief in the United States District Court for the District of Montana. On July 24, 1992, DNRC filed a motion in the First Judicial District Court to affirm its final order regarding jurisdiction.
After considering various motions by the parties, the District Court held that the questions raised in the federal action should be resolved before the state issues, and ordered the state action stayed pending a decision from the federal court. The federal court, however, ordered the federal action stayed until the state issues were resolved and permitted the Tribes to reserve the federal questions pending state court resolution. The federal court expressly held that the Tribes had properly reserved the federal claims for later review.
On January 12, 1995, the District Court, after considering oral arguments from the parties, issued its decision and order affirming DNRC’s jurisdiction. The court held that DNRC has jurisdiction pursuant to the Water Use Act to issue new use permits prior to formal adjudication of existing water rights or completion of compact negotiations, that DNRC’s jurisdiction to issue such permits is not suspended by § 85-2-217, MCA, and that DNRC is not collaterally estopped by the District Court’s prior holding in United States v. Department of Natural Resources and Conservation (1st Jud. Dist. Mont. June 15, 1987), No. 50612.
DISCUSSION
On appeal we address only the issue of whether DNRC has authority to grant new water use permits on the Flathead Indian Reservation prior to settlement or adjudication of the Tribes’ water rights. Because this issue is dispositive, we need not address the Tribes’ additional contentions that (1) DNRC’s jurisdiction to issue water use permits on the reservation is suspended during the pendency of the Tribes’ negotiations with the Montana Reserved Water Rights Compact Commission pursuant to § 85-2-217, MCA, and that (2) the DNRC is collaterally estopped by the same District Court’s prior decision in United States v. Department of Natural Resources and Conservation (1st Jud. Dist. Mont. June 15, 1987), No. 50612.
This case was bifurcated prior to the DNRC hearing and the only issue decided has been whether DNRC has jurisdiction to engage in water rights proceedings on the Flathead reservation. Because this jurisdictional issue is purely legal, we review the District Court’s order to determine whether its interpretation of the law is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.
Title 85, Chapter 2, MCA (Montana Water Use Act) governs the administration, control, and regulation of water rights within the state of Montana. Section 85-2-101, MCA. Among other things, the Act provides for the application and issuance of permits for the appropriation of surface water. The requirements for the issuance of water use permits are specifically set forth in § 85-2-311(1), MCA, which provides that DNRC must issue a permit if an applicant proves by a preponderance of the evidence that all of the following relevant criteria are met:
(a) there are unappropriated waters in the source of supply at the proposed point of diversion;
(b) the water rights of a prior appropriator will not be adversely affected;
(e) the proposed use will not interfere unreasonably with other planned uses or developments for which a permit has been issued or for which water has been reserved ....
In this case, the Tribes maintain that given the undisputed fact that they possess senior unquantified reserved water rights, it is impossible for a water permit applicant to prove (1) that there are unappropriated waters in the source of supply pursuant to § 85-2-311(l)(a), MCA; (2) that the Tribes’ rights as a prior appropriator will not be adversely affected pursuant to § 85-2-3 ll(l)(b), MCA; and (3) that the applicant’s proposed use will not interfere with the Tribes’ planned uses for which water has been reserved pursuant to § 85-2-311(l)(e), MCA. The Tribes contend that until their reserved water rights have been quantified by a compact negotiation pursuant to § 85-2-702, MCA, or by a general inter sese water rights adjudication, an applicant cannot meet his burden of proof pursuant to § 85-2-311, MCA, and DNRC will not have jurisdiction to issue new water use permits on the reservation.
The District Court’s decision regarding DNRC’s jurisdiction to issue water use permits on the reservation pursuant to § 85-2-311(1), MCA, discussed only the applicant’s burden to meet the requirements of subsections (a) and (b). Although the Tribes contended that the existing water rights must first be adjudicated and the Tribes’ reserved water rights quantified before an applicant could prove that there is unappropriated water available for new use and that the rights of a prior appropriator would not be adversely affected, DNRC maintained, and the District Court agreed that “the applicant need only show that there is water available at the proposed point of diversion, and thus not appropriated, giving the applicant potential, adjudicable water rights to the surplus water.”
The District Court’s decision rested, in part, on its determination that “appropriated waters” do not include Indian reserved water rights, and therefore, that the Tribes are not “prior appropriators,” as contemplated by § 85-2-3 ll(l)(a) and (b). In its decision and order, the court specifically held that:
Section 85-2-102(1), MCA, defines “appropriate” as to “divert, impound, or withdraw (including by stock for stock water) a quantity of water ....” Section 85-2-301, MCA, provides that a person may not appropriate water except as provided in chapter 2 of the Water Use Act. Section 85-2-302, MCA, states that “[e]xcept as otherwise provided in (1) through (3) of 85-2-306, a person may not appropriate water ... except by applying for and receiving a permit from the department.” Section 85-2-311, MCA, sets forth the criteria for issuance of a permit. Subsection (6) provides that any appropriation contrary to the provision of the section is invalid.
Clearly, the language of these sections leads one to conclude that appropriated water is water that has been allocated by the permit process provided in that chapter, and the amount of water used should reflect the amount allocated by permit.
This conclusion addresses the Tribes’ contention that an applicant cannot prove the availability of unappropriated water unless the water supply has been quantified. The statutory scheme does not require it.
(Emphasis added.)
This Court has long recognized a distinction between state appropriative water rights and Indian reserved water rights. In State ex rel. Greely v. Confederated Salish and Kootenai Tribes of the Flathead Reservation (1985), 219 Mont. 76, 89-90, 712 P.2d 754, 762, we noted that:
State appropriative water rights and Indian reserved water rights differ in origin and definition. State-created water rights are defined and governed by state law. Indian reserved water rights are created or recognized by federal treaty, federal statutes or executive order and are governed by federal law.
Appropriative rights are based on actual use. Appropriation for beneficial use is governed by state law. Reserved water rights are established by reference to the purposes of the reservation rather than to actual, present use of the water.
(Citations omitted.)
We also distinguished reserved rights on the basis that they need not be diverted from the stream when we observed that:
The right to water reserved to preserve tribal hunting and fishing rights is unusual in that it is non-consumptive. A reserved right for hunting and fishing purposes “consists of the right to prevent other appropriators from depleting the stream waters below a protected level in any area where the non-consumptive right applies” [United States v.] Adair [(9th Cir. 1983)], 723 F.2d [1394,] 1411 [cert, denied, 467 U.S. 1252, 104 U.S. 3536 82 L.Ed.2d 841 (1984)].
The Supreme Court has also held that under the implied-reservation-of-water-rights doctrine, Indians are entitled to sufficient water “to develop, preserve, produce or sustain food and other resources of the reservation, to make it livable.” Arizona v. California [(1963)], 373 U.S. [546,] 599-600, [83 S.Ct. 1468, 1497-98, 10 L.Ed.2d 542]. “[I]ndian treaty rights to a natural resource that once was thoroughly and exclusively exploited by the Indians secured so much as, but no more than, is necessary to provide the Indians with a livelihood — that is to say, a moderate living.” Washington v. Fishing Vessel Ass’n [(1979)], 443 U.S. [658,] 686, [99 S.Ct. 3055, 3075, 61 L.Ed.2d 823],
The Winters Court held that reserved water on the Fort Belknap Reservation could be beneficially used for “acts of civilization” as well as for agricultural purposes. Winters v. [United States (1908)], 207 U.S. [564,] 576, [28 S.Ct. 207, 211, 52 L.Ed. 340]. It may be that such “acts of civilization” will include consumptive uses for industrial purposes. We have not found decisive federal cases on the extent of Indian water rights for uses classed as “acts of civilization.”
It is clear, however, that Indian reserved water rights may include future uses. Arizona v. California, 373 U.S. at 600-01, 83 S.Ct. at 1498; United States v. Ahtanum Irrigation District (9th Cir. 1964), 330 F.2d 897, 914. Most reservations have used only a fraction of their reserved water. National Water Commission, Water Policies for the Future 51-61 (1973). However, reserved rights may reflect future need as well as present use. For example, the “practicallydmgable acreage” standard applies to future irrigation or reservation land, not present irrigation practices and current consumptive uses.
Greely, 219 Mont, at 93-94, 712 P.2d at 764-65.
In addition, the Montana Water Use Act, as amended in 1985, reflects the distinction between federal and Indian reserved water rights and state-created appropriative rights. See, e.g., § 85-2-224, MCA (statement of claim for federal reserved water rights); § 85-2-234(2), MCA (terms of negotiated Indian water rights compact must be included in final decree without alteration); § 85-2-234(3), MCA (final decree must establish existing rights and priorities of Indian tribe possessing water rights arising under federal law); and §§ 85-2-701 through -705, MCA (establishing reserved water rights compact commission to negotiate with Indian tribes to quantify Indian reserved water rights).
Therefore, an applicant’s proof in satisfaction of § 85-2-3 ll(l)(a) and (b), MCA, does not satisfy the requirement of § 85-2-311(l)(e), MCA, that his “proposed use will not interfere unreasonably with other planned uses or developments for which a permit has been issued or for which water has been reserved.”
Because of the nature of Indian reserved water rights and because of the fact that the Tribes’ rights have not yet been quantified, the Tribes contend that an applicant cannot meet this statutory burden and that DNRC cannot issue a permit consistent with the Montana Water Use Act’s statutory scheme.
Although the argument was neither made in the District Court nor in its brief on appeal, DNRC asserted during oral argument, without citation to authority, that § 85-2-311(l)(e), MCA, does not pertain to Indian reserved water rights, but only to those rights reserved by the state or the United States pursuant to § 85-2-316, MCA. However, there is no basis from the plain language of § 85-2-311, MCA, for making that distinction. Furthermore, were we to construe § -311 to exclude Indian reserved rights as opposed to all others, we would be ignoring the admonition in Greely which served as the very premise for our conclusion that the Montana Water Use Act was adequate on its face to adjudicate Indian reserved water rights. There we stated:
We presume that the Water Court will not apply these code sections in an improper manner to the claimants of Indian reserved water rights. Federal Indian law must be applied in these areas as well.
In a similar manner, it may be contended that Section 85-2-316, MCA, which limits the reservation of future uses to certain river basins, sets forth an improper limitation on Indian reserved rights. We also presume that the Water Court will not apply these statutes without regard to controlling federal law on Indian water rights.
We recognize that the Water Use Act of Montana does not explicitly state that the Water Court shall apply federal law in adjudicating Indian reserved rights. However, we conclude that is not fatal to the adequacy of the Act on its face. We hold that state courts are required to follow federal law with regard to those water rights.
Greely, 219 Mont. at 94-95, 712 P.2d at 765-66.
DNRC farther maintains that even if § 85-2-311(l)(e), MCA, does contemplate Indian reserved water rights, an applicant for a water use permit may still, prior to quantification of the Tribes’ reserved rights, prove that his proposed use will not interfere with those rights. DNRC contends that, because any new water rights permits it issues are subordinate to the senior rights of the Tribes, the Tribes would not be prejudiced by the issuance of such permits.
It is undisputed that the Confederated Salish and Kootenai Tribes possess reserved water rights. Winters v. United States (1908), 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed 340; Greely, 219 Mont. 76, 712 P.2d 754. The Tribes and the State of Montana are presently involved in formal compact negotiations to quantify the Tribes’ reserved rights on the reservation pursuant to §§ 85-2-701 through -705, MCA. Until the formal negotiations are resolved, however, the extent of the Tribes’ reserved water rights remains unknown. Although it is likely that the Tribes’ rights are pervasive, reserved water rights are difficult to quantify. See United States v. Alexander (9th Cir. 1942), 131 F.2d 359, 360 (stating that “The [Hellgate] treaty impliedly reserved all waters on the [Flathead] reservation to the Indians”); Greely, 219 Mont. at 92, 712 P.2d at 764 (stating that “Winters [Indian reserved water] rights are difficult to quantify”). It is well-established, however, that Indian reserved rights incorporate both consumptive and non-consumptive uses, both implicit and explicit uses, and both present and future uses for reservation purposes. Greely, 219 Mont. at 93, 94, 98, 712 P.2d at 764, 765, 768. In addition, the Tribes’ reserved water rights will presumably include water for agricultural purposes, water for tribal hunting and fishing, and water for “acts of civilization.” Greely, 219 Mont. at 92-93, 712 P.2d at 764-65. Water for agricultural purposes includes enough water to “irrigate all the practically irrigable acreage on the reservation.” Greely, 219 Mont. at 92,712 P.2d at 764 (quoting Arizona v. California (1963), 373 U.S. 546, 600, 83 S.Ct. 1468, 1498, 10 L.Ed.2d 542). Non-consumptive water use for tribal hunting and fishing rights “consists of the right to prevent other appropriators from depleting the stream waters below a protected level in any area where the non-consumptive right applies.” Greely, 219 Mont. at 93, 712 P.2d at 764 (quoting United States v. Adair (9th Cir. 1983), 723 F.2d 1394, 1411). See also Joint Bd. of Control v. United States (9th Cir. 1987), 832 F.2d 1127, 1131-32, cert, denied (1988), 486 U.S. 1007, 108 S.Ct. 1732, 100 L.Ed.2d 196 (stating that the Tribes’ aboriginal fishing rights secured by treaty include the right to maintain instream flows and reservoir pools at levels designed to protect tribal fisheries, regardless of the effect on junior claimants to reservation waters). Water for “acts of civilization,” includes water to “develop, preserve, produce or sustain food and other resources of the reservation, to make it liveable,” and may also include consumptive uses for industrial purposes. Greely, 219 Mont. at 93, 712 P.2d at 764, 765 (quoting Arizona v. California (1963), 373 U.S. 546, 599-600), 83 S.Ct 1468, 1497-98, 10 L.Ed.2d 542).
Although the scope and extent of the Tribes’ reserved water rights have not been resolved and are not at issue in this case, the elusive nature of Indian reserved water rights underscores both the difficulty of quantifying those rights and the difficulty a water permit applicant would have proving that his proposed use will not interfere with those rights. Clearly the only way to determine if an applicant’s use will unreasonably interfere with the Tribes’ reserved water rights is to decide how much water is reserved and how much water is available. The Tribes maintain that such a determination obviously requires quantification of their reserved water rights. DNRC maintains, however, that “the DNRC process rarely requires that the ultimate scope of an existing right be known.” According to DNRC, § 85-2-313, MCA, which provides that a permit is provisional and subject to a final determination of existing water rights, is intended to permit the issuance of water use permits prior to the adjudication of existing rights.
Nothing in that section, however, relieves an applicant of his burden to meet the statutory requirements of § 85-2-311, MCA, before DNRC may issue that provisional permit. Instead of resolving doubts in favor of appropriation, the Montana Water Use Act requires an applicant to make explicit statutory showings that there are unappropriated waters in the source of supply, that the water rights of a prior appropriator will not be adversely affected, and that the proposed use will not unreasonably interfere with a planned use for which water has been reserved. Section 85-2-311, MCA. As we stated, the latter requirement is critical to our conclusion in Greely that the Act must be applied consistently with federal Indian law.
A reading of the Water Use Act which did not recognize the clear mandates of § 85-2-311, MCA, would promote the uncontrolled development of a valuable natural resource which, as we recognized in Montana Power Co. v. Carey (1984), 211 Mont. 91, 96, 685 P.2d 336, 339, would “contradict[] the spirit and purpose underlying the Water Use Act.”
The Montana Water Use Act, our prior decision in Greely, and the decisions of the federal courts make it clear that an applicant for a permit to use water within the exterior boundaries of the Flathead Reservation must prove that his proposed use does not unreasonably interfere with the Tribes’ reserved water rights. We hold that given the nature of Indian reserved water rights such a showing cannot be made until the Tribes’ rights are quantified by a compact negotiation pursuant to § 85-2-702, MCA, or by a general inter sese water rights adjudication. Because an applicant’s burden of proof pursuant to § 85-2-311(l)(e), MCA, may not be satisfied until the Tribes’ reserved water rights are quantified, we further hold that DNRC does not have authority to grant water use permits on the reservation until that quantification is complete.
Accordingly, we reverse the order of the District Court which held that DNRC has jurisdiction pursuant to the Water Use Act to issue new use permits prior to formal adjudication of the Tribes’ reserved water rights or completion of compact negotiations.
JUSTICES HUNT, GRAY and NELSON concur.
. The Tribes have challenged DNRC’s jurisdiction to issue new water use permits pursuant to § 85-2-311, MCA, and its authority to authorize changes of existing appropriation rights pursuant to § 85-2-402, MCA. Because an applicant’s burden of proof is essentially the same under either statute, this Court will focus its discussion on the requirements of § 85-2-311, MCA. Our decision, however, applies equally to both § 85-2-311, MCA, and § 85-2-402, MCA.
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JUSTICE TRIEWEILER
delivered the Opinion of the Court.
The respondent, 360 Ranch Corp. (“360 Ranch”), filed an action for declaratory relief in the District Court of the Eighteenth Judicial District in Gallatin County. The District Court granted summary judgment in favor of 360 Ranch. The appellant, R & D Holding, appeals the order of the District Court. We reverse the District Court, and remand for resolution of the factual issues.
The issue on appeal is whether the District Court erred when it granted summary judgment in favor of 360 Ranch Corp.
FACTUAL BACKGROUND
In January 1994, 360 Ranch, as seller, entered into a land sale contract with Patrick Lancione by which it agreed to sell a five-acre parcel for the amount of $260,000. Lancione subsequently contracted with David Williams to sell the parcel for $381,150. The simultaneous closings on the land sale contracts were held on April 28, 1994. Williams paid the sum of $381,150, and 360 Ranch received the sum of $260,000. At the time of closing, however, 360 Ranch was unable to convey title to the five-acre parcel. The five acres, as part of a larger twenty-acre tract, could not be conveyed until a survey of the land was conducted, and all of the applicable subdivision review requirements were satisfied. As a result, 360 Ranch conveyed to Williams a recordable deed for the entire twenty-acre parcel of land.
Then, on April 29, 1994, Williams and 360 Ranch entered into a written option agreement. The agreement gave 360 Ranch the option to reacquire fifteen of the twenty acres conveyed to Williams at the closing. In order to exercise its option, however, 360 Ranch was required to prepare and file a minor subdivision plat no later than one year following the date of the option agreement. The agreement also stated that, if the contingencies in the option agreement were not met within the one-year period, then ‘Williams [would] retain the consideration paid today as liquidated damages, and this option [would] become null and void.”
360 Ranch’s attempts to comply with the contingencies in the option agreement were unsuccessful. In January 1995, they applied for minor subdivision review, but their application was denied on the ground that a conflict between the Bozeman Area Master Plan and the Bozeman Area Zoning Map was discovered. The conflict was eventually resolved, but not until after tiie one-year period specified by the option agreement had expired.
Ultimately, therefore, a minor subdivision plat was not filed within one year of the option date. No additional consideration was paid to extend the option, and it expired on April 29, 1995.
360 Ranch filed an action for declaratory relief in which it requested the District Court to extend the one-year period specified in the parties’ option agreement. 360 Ranch moved for summary judgment, and a hearing was held before the District Court. At the conclusion of the hearing, the District Court made the following findings: (1) the clear intent of the parties was to contract for a five acre, and not a twenty acre, parcel of land; and (2) because of the conflict between the. Bozeman Area Master Plan and the Bozeman Area Zoning Ordinance, it was “impossible” for 360 Ranch to comply with the requirements of the option agreement.
Based on its findings, the District Court granted summary judgment in favor of 360 Ranch. The District Court determined that “equity and good conscience ... requires that [360 Ranch] be given reasonable additional time” to fulfill the obligations imposed upon it by the option agreement, and ordered R & D Holding, as the “record owner of the 20-acre parcel,” to sign the application for the minor subdivision plat.
DISCUSSION
Did the District Court err when it granted summary judgment in favor of 360 Ranch Corp.?
Summary judgment is governed by Rule 56(c), M.R.Civ.P., which provides, in relevant part, as follows:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law ....
The purpose of summary judgment is to encourage judicial economy through the elimination of any unnecessary trial. However, summary judgment is never to be a substitute for trial if there is an issue of material fact. Reaves v. Reinbold (1980), 189 Mont. 284, 288, 615 P.2d 896, 898.
It is well established that the moving party is required to show a complete absence of any genuine factual issues. D’Agostino v. Swanson (1990), 240 Mont. 435, 442, 784 P.2d 919, 924. To defeat the motion, the nonmoving party must set forth facts which demonstrate that a genuine factual issue exists. O’Bagy v. First Interstate Bank of Missoula (1990), 241 Mont. 44, 46, 785 P.2d 190, 191. All reasonable inferences that may be drawn from the offered proof must be resolved in favor of the nonmoving party. D’Agostino, 240 Mont, at 442, 784 P.2d at 924. Additionally, if there is any doubt regarding the propriety of the summary judgment motion, it should be denied. Whitehawk v. Clark (1989), 238 Mont. 14, 18, 776 P.2d 484, 486-87.
When the District Court granted 360 Ranch’s motion for summary judgment, it concluded that “there are no genuine issues of material fact in dispute ... and that [360 Ranch] is entitled to judgment as a matter of law.”
R & D Holding, however, asserts on appeal that there are genuine issues of material fact, and that, therefore, the District Court erred when it granted 360 Ranch’s motion for summary judgment. Specifically, R & D Holding claims that genuine factual disputes exist with regard to the following issues: (1) the intent of the parties with regard to the conveyance of the twenty acres and the execution of the option agreement; and (2) whether 360 Ranch’s failure to perform, as required by the terms of the option agreement, can be excused on the grounds of impossibility of performance.
INTENT OF THE PARTIES
The District Court determined that, “[c]learly, it never was within the contemplation of anyone involved in these transactions that [R & D Holding] would get a 20-acre parcel of real property ....” The District Court found, instead, that the parties intended only to buy and sell a five-acre parcel.
R & D Holding, however, contends that there is a genuine issue of material fact with regard to the parties’ intent. To support their claim, they first point to the affidavitof David Williams, in which he asserts, “it was [my] intent to purchase 20 acres for the sum of $381,150.00, subject to the 360 Ranch Corporation option, and to retain the entirety of said 20 acres if the option was not exercised in accordance with its term[s].” 360 Ranch claims that this affidavit is self-serving and was made only after the institution of litigation. We recognize, however, that when a court determines whether summary judgment is appropriate, “the papers supporting [the] movant’s position are closely scrutinized, while the opposing papers are indulgently treated.” Payne Realty v. First Sec. Bank (1992), 256 Mont. 19, 25, 844 P.2d 90, 94.
Even more significant, however, is the contract itself. The language of the option agreement states, “[i]f the option is not exercised on or before the above-specified date [one year from the date of the option agreement], DAVID WILLIAMS is to retain the consideration paid today as liquidated damages and this option shall become null and void.” The option agreement clearly contemplates the possibility that Williams (and R & D Holding as his successor in interest) could acquire the entire twenty acre parcel.
In Engebretson v. Putnam (1977), 174 Mont. 409, 413, 571 P.2d 368, 370, we held that “summary judgment is usually inappropriate where the intent of the contracting parties is an important consideration.” Furthermore, all reasonable inferences must be drawn in favor of R & D Holding, the nonmoving party.
Therefore, we conclude that there is a genuine issue of material fact with regard to the intent of the parties.
IMPOSSIBILITY OF PERFORMANCE
The District Court found that 360 Ranch’s “efforts to divide the 20-acre parcel through the minor subdivision process were made impossible due to the conflict between the Bozeman Area Master Plan and the Bozeman Area Zoning Ordinance.” On that basis, the District Court excused 360 Ranch’s failure to perform, and gave them “reasonable additional time” to comply with the terms of the option agreement.
R & D Holding, however, contends that there is a genuine issue of material fact with regard to whether 360 Ranch’s failure to perform should be excused on the ground of impossibility of performance. In support of its contention, R & D Holding makes the following assertions: 360 Ranch did not file its first application for minor subdivision review 'until January 1995 — more than eight months after the term of the option commenced; the application contained errors which caused the Bozeman City Planning Office to reject the application; and as of March 1995, one month before the option expired, 360 Ranch did not have a valid application on file with the proper authority.
R & D Holding concedes that the conflict in the Bozeman area planning documents caused a delay, and that 360 Ranch was not responsible for either the conflict or the delay. Nonetheless, R & D Holding claims, on appeal, that the delay “would not have prevented [360 Ranch] from obtaining minor subdivision review during the term of the one (1) year option period had it simply made a timely filing of its minor subdivision application.” In essence, R & D Holding contends that the doctrine of laches, rather than impossibility of performance, should apply to the facts of this case.
The starting point for our analysis is the principle that “[i]mpossibility of performance is a strict standard that can only be maintained where the circumstances truly dictate impossibility.” Barrett v. Ballard (1980), 191 Mont. 39, 44, 622 P.2d 180, 184.
There will, undoubtedly, be contract cases in which a district court could grant summary judgment based on impossibility of performance. For example, where an Act of God physically destroys the subject matter of a contract, or where the subject matter of a contract is subsequently declared illegal, then it could be held that, as a matter of law, performance of the contract was impossible. In many other cases, however, whether performance of a contract was impossible will be a question of fact, and summary judgment will not be appropriate.
We conclude that this case falls into the latter category. Based on the facts alleged in this case, there are two possible interpretations. The first is that, as the District Court determined, due to the conflict in the Bozeman area planning documents and ensuing delay, it was impossible for 360 Ranch to file a minor subdivision plat within the one-year time period specified by the option agreement. The other is that, as R & D Holding contends, had 360 Ranch acted with proper diligence, their application for a minor subdivision plat could have been filed within the one-year time period, despite the conflict in the planning documents and ensuing delay.
We conclude that, based on the facts alleged in this case, the question of impossibility of performance presents a genuine issue of material fact.
Accordingly, we hold that the District Court erred when it granted summary judgment in favor of 360 Ranch.
Finally, we note that when the District Court issued its order, it determined that “equity and good conscience ... requires that [360 Ranch] be given reasonable additional time” to comply with the terms of the option agreement. We conclude that the District Court exceeded its authority when it modified the express terms of the parties’ contract.
It is well established that a district court may only assert its equitable jurisdiction when no statutory or legal remedy is available. Jeffries Coal Co. v. Industrial Accident Board (1953), 126 Mont. 411, 252 P.2d 1046. In this case, the District Court modified the express terms of the parties’ contract, and also failed to apply § 28-2-603, MCA, which states:
Where a contract has but a single object and such object is unlawful, whether in whole or in part, or wholly impossible of perform anee, or so vaguely expressed as to be wholly unascertainable, the entire contract is void.
Thus, if after resolution of the pertinent factual issues it is determined that performance was, in fact, impossible, the District Court would be bound by the mandate of § 28-2-603, MCA.
The judgment of the District Court is reversed, and the case is remanded for resolution of the factual issues.
JUSTICES NELSON, HUNT, GRAY and ERDMANN concur.
. In June 1994, Williams conveyed the property to R & D Holding. As a result, R & D Holding became the successor in interest to Williams, and is the appellant herein.
|
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JUSTICE TRIEWEILER
delivered the Opinion of the Court.
The, defendant John O. Miller, IV, filed an amended petition for post-conviction relief in the District Court for the Thirteenth Judicial District in Stillwater County. The petition alleged that his guilty plea had not been entered in compliance with § 46-12-204(3)(b), MCA (1989), and that he received ineffective assistance of counsel. The District Court denied the petition. Miller appeals from that decision. We affirm the judgment of the District Court.
The issue on appeal is whether the District Court erred when it denied Miller’s petition for post-conviction relief.
FACTUAL BACKGROUND
On January 14, 1991, John O. Miller, IV, was charged with two counts of deliberate homicide in violation of § 45-5-102, MCA; He retained James Goetz, a private attorney, to represent him, and in August 1991 he pled guilty to both counts. In exchange for his plea, the State agreed not to seek the death penalty, and to recommend that he receive two concurrent life sentences.
At his change of plea hearing, Miller confirmed that he had signed the acknowledgment of waiver of rights form, and that his attorney had discussed those rights with him. The District Court instructed him that he could receive a maximum penalty of two consecutive life sentences and then informed him of the rights waived upon entry of a guilty plea: the right to a trial by jury; the right to assistance of counsel at trial; the right to testify on one’s own behalf; the right to confront witnesses; the right to remain silent at trial; the right to have the charges proved beyond a reasonable doubt; and the right to appeal a finding of guilt. The District Court also expressly stated that it was not bound by the plea agreement recommended by the parties, and that the court could “impose any other sentence that would be appropriate under the law ... without regard to [the] plea bargain.” Miller acknowledged that he understood his rights and the consequences of pleading guilty to the crimes charged.
The District Court accepted the guilty pleas. A presentence investigation report recommended that Miller receive two consecutive life sentences, and that he should not be eligible for parole in less than forty years.
On November 8, 1991, the District Court sentenced Miller to two concurrent life sentences. The District Court also imposed a condition that Miller not be eligible for parole for twenty-four years from the date of the sentencing order. Neither the conviction nor the sentence was appealed.
DISCUSSION
Did the District Court err when it denied Miller’s petition for post-conviction relief?
The standard of review of a district court’s findings of fact is whether they are clearly erroneous. State v. Bower (1992), 254 Mont. 1, 7, 833 P.2d 1106, 1110. The standard of review of a district court’s conclusions of law is whether the court’s interpretation of the law is correct. State v. Sullivan (1994), 266 Mont. 313, 318, 880 P.2d 829, 832.
On appeal, Miller presents the following argument: (1) his guilty plea was invalid because it was not entered in strict compliance with the requirements of § 46-12-204(3)(b), MCA (1989); (2) the District Court’s failure to strictly comply with § 46-12-204(3)(b), MCA (1989), gave rise to a right to appeal; and (3) attorney James Goetz provided ineffective assistance of counsel when he did not advise Miller of his right to appeal.
Ineffective assistance of counsel claims are analyzed by this Court pursuant to the two-part test set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. First, the defendant must establish that his counsel’s performance was not commensurate with the range of competence demanded of attorneys under similar circumstances. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Second, the defendant must establish that “but for” inadequate performance by his counsel, the result would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.
We conclude that Miller’s claim fails in both respects.
We start with the operative principle that there is no duty in all cases to advise of the right to appeal a conviction after a guilty plea. Rather counsel is obligated to give such advice only when the defendant inquires about appeal rights or when there are circumstances present that indicate that defendant may benefit from receiving such advice.
Marrow v. United States (9th Cir. 1985), 772 F.2d 525, 528.
Miller contends that he could have benefited from such advice because of the District Court’s failure to strictly comply with § 46-12-204(3)(b), MCA (1989). At the time his guilty plea was entered, that statute required, in relevant part, that:
(b) Before a judge accepts a plea of guilty, he must advise the defendant:
(iii) that prior to entering a plea of guilty, the defendant and his counsel should have carefully reviewed Title 46, chapter 18, and considered the most severe sentence that can be imposed for a particular crime ....
Section 46-12-204(3)(b), MCA(1989). It is undisputed that, during the guilty plea hearing, the District Court did not use the words “most severe sentence,” and failed to instruct Miller to review Title 46, chapter 18. However, we hold that, basedon the facts of this case, the District Court’s failure to strictly comply with § 46-12-204(3)(b), MCA (1989), was not prejudicial to Miller’s rights, did not give rise to a right to appeal, and, concomitantly, cannot support Miller’s claim that his attorney was ineffective.
Montana’s Code of Criminal Procedure states, in relevant part: Elements of record court considers on review — errors noticed. (1) Whenever the record on appeal shall contain any order, ruling, or proceeding of the trial court against the respondent [convicted person] affecting his substantial rights on the appeal of said cause, together with any required objection of such respondent, the supreme court on such appeal shall consider such orders, rulings, or proceedings and the objections thereto and shall reverse or affirm the cause on said appeal according to the substantial rights of the respective parties, as shown upon the record. No cause shall be reversed by reason of any error committed by the trial court against the appellant [convicted person] unless the record shows that the error was prejudicial.
Section 46-20-701, MCA (emphasis added). “To constitute reversible error, the trial court’s actions must affect substantial rights of the party.” State v. Bradley (1995), 269 Mont. 392, 395, 889 P.2d 1167, 1168. We have interpreted § 46-20-701, MCA, to require that “[w]hen prejudice is alleged in a criminal case the prejudice will not be presumed, rather, it must be established from the record that a substantial right was denied.” State v. Eichenlaub (1995), 272 Mont. 332, 336-37, 901 P.2d 90, 93. In addition, “[w]hen assessing the prejudicial effect of an error, we examine the totality of the circumstances in which the error occurred.” Bower, 254 Mont, at 6, 833 P.2d at 1109. Under the guidance of these principles, and after a thorough review of the record, we conclude that the District Court’s failure to strictly comply with § 46-12-204(3)(b), MCA (1989), did not deprive Miller of the essential information to which he was entitled, and therefore, did not constitute prejudicial error.
The District Court informed Miller of the maximum penalty provided by law: a life sentence for each count, and that the sentences could be imposed consecutively. Miller acknowledged that he understood everything the District Court had told him.
In its order denying the petition for post-conviction relief, the District Court correctly observed that, while the exact words “most severe sentence” were not used, Miller was informed of the “maximum possible penally.” This purely semantic difference does not amount to prejudicial error. Likewise, the District Court recognized that the failure to state that sentencing is governed by Title 46, chapter 18, did not prejudice Miller because “[t]hat information, standing alone, would not aid or benefit any criminal defendant in the least.”
Since Miller could not have successfully appealed his sentence based solely on the District Court’s failure to use the language of § 46-12-204(3)(b), MCA (1989), verbatim, we hold that, pursuant to Strickland and Marrow, counsel was not ineffective for not advising him of his right to appeal his sentence.
The District Court’s denial of Miller’s petition for post-conviction relief is, therefore, affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES NELSON, ERDMANN and HUNT concur.
|
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JUSTICE HUNT
delivered the Opinion of the Court.
Mark Roberts appeals the order from the Eighteenth Judicial District Court, Gallatin County, setting aside the entry of a default judgment on the issue of liability and the subsequent final judgment on damages against respondent, Empire Fire and Marine Insurance Company.
We reverse.
The issue in this case is:
Did the District Court manifestly abuse its discretion when it issued its order setting aside the default judgments of liability and damages entered against Empire Fire and Marine Insurance Company?
FACTS
In November 1992, Dirk Hinkle and the appellant, Mark Roberts (Roberts) were involved in an accident at an uncontrolled intersection in Bozeman, Montana. Following the accident, Hinkle’s insurer, Empire Fire and Marine Insurance Company (Empire), offered to pay 75% of Roberts’ property damage based upon its opinion that Roberts was contributorily negligent. Roberts rejected Empire’s offer and filed suit against Empire for vehicle damage as well as damages for the inconvenience caused by the loss of use of his vehicle. After Roberts filed suit, Empire filed an offer of judgment which Roberts then later accepted.
On March 3,1995, Roberts again filed suit against Empire alleging unfair claims settlement practices. Service of process was made upon the Montana Commissioner of Insurance (MCI) on March 9, 1995. MCI forwarded a cover letter, the Summons, the Complaint and First Discovery Requests to Empire’s corporate office in Nebraska.
Empire’s receptionist received these documents on March 13, 1995. Empire’s mail room log-in sheets reflect that the documents were then routed to Ms. Amy Bones, corporate counsel for Empire. Ms. Bones is designated as receiver for service of process from the State of Montana. Although Ms. Bones contends that she never saw the documents, the record shows that it was normal procedure for Ms. Bones to hand-deliver papers from her office to the claims department.
In any event, the documents did reach Empire’s claims department and from there were hand-delivered to Mr. David Sedlacek. Mr. Sedlacek is responsible for supervising Empire’s claims unit and for assigning new claims. Mr. Sedlacek wrote notes on the documents indicating his awareness of their contents, and intended that they be forwarded to Dennis Magnuson, one of Empire’s “file handlers” and also an attorney.
In Mr. Sedlacek’s affidavit, he stated that in all likelihood he handed the documents to Ms. Heidee Dorr, a claims clerk who at that time had been employed by Empire for only a few days. Ms. Dorr stated in her affidavit that if she was in the claims department at all on March 13, 1995, it would have been her first day there and she would not yet have received any training. Mr. Sedlacek speculated that Ms. Dorr, rather than pulling the 1992 file that had been prepared in the Roberts v. Hinkle case and delivering the file and the documents to Mr. Magnuson, filed the documents in that closed Roberts v. Hinkle file.
Aware of the contents of the documents, Mr. Sedlacek did not “flag” them as important, as was his duty; did not confirm that Mr. Magnuson received the documents; and did not inquire as to the progress being made on the matter. Mr. Sedlacek and Mr. Magnuson work across the hall from one another and often see each other several times daily.
On April 25,1995, the clerk of court entered a default judgment on liability against Empire in Montana’s Eighteenth Judicial District Court. Pursuant to Rule 55(b), M.R.Civ.P., the determination of damages was set for a later date. On October 2, 1995, the District Court held an evidentiary hearing. Following this hearing, the court entered a $615,000.00 final judgment against Empire, including $15,000.00 in compensatory damages and $600,000.00 in punitive damages. Roberts then filed this judgment with the District Court in Douglas County, Nebraska, on November 27, 1995.
After learning of the default judgment on December 1, 1995, Empire found Roberts’ complaint inside the closed Roberts v. Hinkle file. Empire then filed a Motion for Relief, citing to Rules 60(b)(1) and 60(b)(6), M.R.Civ.P. This motion was later amended to include Rule 55(c), M.R.Civ.P. Affidavits and depositions were filed with the District Court, and a hearing was held on January 30, 1996. By order dated February 2, 1996, the District Court granted Empire’s Motion to Set Aside the Default Judgment.
On February 5, 1996, Roberts filed an appeal with this Court. On March 28, 1996, Empire filed a motion to dismiss Roberts’ appeal for lack of jurisdiction, claiming that an order granting a motion to vacate a default is nonappealable. Based on the language of Rule 1(b)(2), M.R.App.P., this Court determined that it had jurisdiction over the matter and therefore, Empire’s motion to dismiss was denied. Roberts v. Empire Fire and Marine Insurance Co. (1996), [276 Mont. 519], 915 P.2d 872. This appeal followed.
DISCUSSION
Did the District Court manifestly abuse its discretion when it issued its order setting aside the default judgments of liability and • damages entered against Empire Fire and Marine Insurance Company?
In this matter, the District Court granted Empire’s motion based on Rule 60(b)(1), M.R.Civ.P. This rule provides:
On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect;....
The standard of review used by this Court when reviewing a district court’s decision to grant a motion to set aside a default judgment is whether the court has manifestly abused its discretion. Siewing v. Pearson Co. (1987), 226 Mont. 458, 461, 736 P.2d 120, 122 (citing Lords v. Newman (1984), 212 Mont. 359, 365-66, 688 P.2d 290, 293-94). Therefore, our discussion will center on whether Roberts has shown a manifest abuse of discretion by the District Court which would require reversal. First National Bank of Cut Bank v. Springs (1987), 225 Mont. 62, 65, 731 P.2d 332, 334.
It is Roberts’ position on appeal that, although the extent of poor judgment necessary to reflect a “manifest abuse of discretion” has not been clearly defined by this Court, there are previous decisions that have established the standard for setting aside a default. See, e.g., In re Marriage of McDonald (1993), 261 Mont. 466, 468, 863 P.2d 401, 402. And, although no Montana case law clearly establishes the parameters of “manifest abuse of discretion,” Roberts argues that the Ninth Circuit Court of Appeals has recognized that a court may abuse its discretion if it does not apply the law correctly or if it erroneously assesses the facts. United States v. Rahm (9th Cir. 1993), 993 F.2d. 1405, 1410; Northern Alaska Environmental Center v. Lujan (9th Cir. 1992), 961 F.2d 886, 889. Extending this argument to the instant case, Roberts contends that the District Court did not apply the law correctly, and therefore the court manifestly abused its discretion in setting aside the default judgment.
Roberts urges this Court to consider several cases involving instances of neglect or inattentiveness in an office setting in which this Court has affirmed a district court’s refusal to set aside a default. See Siewing, 736 P.2d 120; Myers v. All West Transport (1988), 235 Mont. 233, 766 P.2d 864; Paxson v. Rice (1985), 217 Mont. 521, 706 P.2d 123; Griffin v. Scott (1985), 218 Mont. 410, 710 P.2d 1337.
In Siewing, a company vice-president received a summons and complaint. Shortly thereafter, the vice-president resigned his position with the company and the documents remained undiscovered until a month later. This Court affirmed the district court and held that none of the evidence provided at trial established excusable neglect. Siewing, 736 P.2d at 122. In Myers, this Court affirmed the district court’s conclusion that the defendant’s inattention to mail did not establish excusable neglect. Myers, 766 P.2d at 867 (citing Siewing, 736 P.2d at 122).
In Paxson, an attorney intended to file an answer but postponed its preparation. This Court stated that this was not a factual situation where “reasonable minds might conclude” that the conduct of the attorney was excusable. Paxson, 706 P.2d at 126. Following Paxson, this Court affirmed the district court in Griffin. There, the district court determined that the failure of counsel to read his mail did not establish excusable neglect. Griffin, 710 P.2d at 1338.
Roberts contends it is clear that this Court has consistently held that a party’s inattention or failure to respond to mail does not establish excusable neglect. Therefore, Roberts asserts that Empire’s inattention to Roberts’ complaint cannot be excused by setting aside the default judgment. We agree.
This Court is aware of the importance of putting an end to litigation and establishing the respective rights of the parties once and for all, if necessary, through a default judgment. Karlen v. Evans (1996), [276 Mont. 181], 915 P.2d 232, 235. However, Rule 60(b) presents an exception to this doctrine of finality. The policy behind the rule is the preference for cases to be tried on their merits. Judgments by default are not favored. Maulding v. Hardman (1993), 257 Mont. 18, 23, 847 P.2d 292, 296.
In this case, the District Court was presented with an abundance of cases from both sides that discussed “specific reasons why relief should or should not be granted.” The District Court noted that there had been little if any discussion regarding the fundamental purpose of Rule 60(b)(1), M.R.Civ.P. The District Court then stated that in its view:
Rule 60(b)(1) provides a basic correction system for protecting the legal process from errors caused by neglect, inadvertence, and mistake — clearly, improper foundations upon which to base legal judgments.
In its conclusion, the District Court concurred with a statement from a 1978 case in which this Court held:
Each case must be determined upon its own facts; and when the motion is made promptly and is supported by a showing which leaves the court in doubt or upon which reasonable minds might reach different conclusions, the doubt should be resolved in favor of the motion.
Clute v. Concrete (1978), 179 Mont. 475, 479, 587 P.2d 392, 395 (citing Nash v. Treat (1912), 45 Mont. 250, 122 P. 745). The District Court determined that “on the facts of this case,” Empire’s failure to respond to Roberts’ summons and complaint stemmed from the type of “mistake” contemplated by Rule 60(b)(1), M.R.Civ.P.
This Court is aware that default judgments are not favored, but is equally aware of the limited set of factual circumstances in which we have consistently upheld a district court’s order of default. Collectively, the cases embodying these factual circumstances show, as appellant argues, that evidence of office mismanagement, neglect, and inattentiveness on the part of high-level employees can support a default judgment. Individually, each of these cases in which we upheld a default order contain facts establishing careless conduct bordering on willful ignorance. In addition, in McDonald, supra, we stated that pursuant to Rule 55(c), M.R.Civ.P, a default judgment may be overturned according to Rule 60(b), M.R.Civ.P, only if certain “good cause” criteria are met by the moving party. McDonald, 863 P.2d at 402 (citing Blume v. Metropolitan Life Insurance Co. (1990), 242 Mont. 465, 791 P.2d 784). In that case, we concluded that the appellant “failed to satisfy the threshold requirement of excusable neglect which would justify setting aside the default decree.” McDonald, 863 P.2d at 403. Citing In re Marriage of Castor (1991), 249 Mont. 495, 817 P.2d 665, we declared that “ ‘mistake’, ‘inadvertence,’ and ‘excusable neglect’ generally require some justification for an error beyond mere carelessness ....” McDonald, 863 P.2d at 403.
Clearly, the facts here establish careless conduct amounting to inexcusable neglect, the type of conduct we have consistently held to support a default. The District Court determined that the facts showed the kind of excusable mistake contemplated by Rule 60(b)(1), M.R.Civ.P, apparently focusing on Ms. Dorr’s misfiling of the documents. While we agree that a low-level employee who misfiled documents on her first day of work committed an excusable mistake, we fail to understand how this mistake could extend to excuse the neglectful and inattentive conduct of management-level employees aware of the importance of the documents from the moment they were received.
Because the law and facts so clearly support a default judgment, we hold that the District Court manifestly abused its discretion in setting the default judgment aside.
We reverse.
JUSTICES NELSON, TRIEWEILER and LEAPHART concur.
|
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JUSTICE HUNT
delivered the Opinion of the Court.
Tareque Aziz Ahmed (Ahmed) appeals the order of the Eighteenth Judicial District Court, Gallatin County, convicting him of one count of aggravated kidnapping and one count of felony assault. We affirm.
ISSUES
Ahmed raises numerous issues on appeal. We hold the following to be dispositive:
1. Was Ahmed denied his right to a fair trial due to the actual or apparent bias of the District Court?
2. Were Ahmed’s convictions for aggravated kidnapping and felony assault supported by substantial credible evidence?
3. Did the District Court abuse its discretion by considering evidence of flight?
4. Did the District Court abuse its discretion by allowing testimony regarding a telephone conversation between Ahmed’s New York attorney and a Gallatin County deputy sheriff?
FACTS
There are two versions of the events which gave rise to this case: the victim’s, which "the District Court largely found credible, and Ahmed’s, which the District Court largely disbelieved.
The victim, J.F., and Ahmed were both students at Montana State University in Bozeman when they became romantically involved in the spring of 1989. They had a stormy, off-again, on-again relationship due at least in part to Ahmed’s admitted jealousy and possessiveness. J.F. testified that his jealous behavior alienated several of her friends. She further testified that Ahmed had threatened suicide if she did not remain with him; that he had attempted to fight with a male friend whom she had dated; and that he followed her to work on at least one occasion. Ahmed denied that any of these specific even! s occurred. In June 1990, Ahmed purchased a nine-millimeter handgun. On at least one occasion, according to J.F., Ahmed threatened to kill her and himself with the gun. On at least two occasions, J.F. returned to her apartment to find Ahmed, uninvited, inside waiting for her.
In August 1990, J.F. went to the MSU campus police to report that Ahmed had followed her to work and was frightening her. She then went to the Bozeman police department and asked that someone speak to Ahmed about his behavior and direct him to leave her alone. That same day, she went to the County Attorney's office to attempt to get a restraining order against him, but was informed that the law in effect at that time would not allow her to obtain one because she and Ahmed were neither married nor living together.
Two days later, a Bozeman police officer spoke to Ahmed about J.F. He advised Ahmed that J.F. no longer wanted to see him and that he should stop showing up at her apartment or attempting to contact her in any way. The officer found Ahmed to be very cooperative; Ahmed expressed surprise at J.F.’s actions in going to the police; promised not to contact her further; and informed the officer of his intention to leave Montana for California in the near future.
According to J.F., she returned to her apartment on September 3, 1990, to find Ahmed waiting for her inside with his puppy. He was armed with the nine millimeter handgun and a Bowie knife, and informed her that he was going to hold her in the apartment for three days. He hit her lightly on the face, held the knife to her neck, and then ordered her into the bedroom to have sex with him.
J.F. testified that she was very frightened and attempted to be nice to Ahmed to prevent him from hurting her. She testified that she tried to act like his girlfriend because she was afraid he would shoot her if she resisted. During the next two days, Ahmed kept J.F. in the house except for one trip to run errands. J.F. testified that the only stop she could remember from the trip was the drive through at the local Burger King, dining which he kept the gun on the seat between them. J.F. also periodically took the puppy out into the yard to go to the bathroom. She testified that she made no attempt to escape because she believed Ahmed would shoot her if she tried to run.
On September 5, 1990, Ahmed went to take a shower. J.F. then took the gun and knife and went directly to the Bozeman police department, where she reported the incident. Bozeman police were dispatched to her apartment, but Ahmed was gone. They also checked his apartment but could not find him. They then returned to J.F.’s apartment with J.F. so that she could gather some belongings before going to a friend’s house. At that time, J.F. discovered and gave to the police a plastic bag from a sporting goods store which contained a box of 9 mm. ammunition and a receipt from the store.
According to Ahmed’s testimony, he went to J.F.’s apartment on September 4,1990, to collect some belongings and say goodbye. They spent the day together, going to the grocery store, park, gas station, and Burger King, before returning to the apartment where they ordered pizza. Ahmed then spent the night on the couch. The next day, he took a shower. "When he finished, he discovered that J.F. was gone and he left as well. He testified that they did not have sexual relations. He further testified that he did not threaten her with the gun or knife, nor did he attempt to restrain her movements.
It is undisputed that on the evening of September 5,1990, Ahmed caught a ride with friends to Fargo, North Dakota. From there, he took a bus to New York City. Less than a month later, he learned that the Bozeman police were looking for him regarding accusations made by J.F. He hired a New York attorney to “look into” the situation, but made no attempt to contact the Bozeman police himself.
In December, 1992, having been unable to locate Ahmed, the Gallatin County Attorney’s office requested that the U.S. Attorney issue a federal unlawful flight warrant for Ahmed. On March 14, 1994, Ahmed was arrested by the FBI in New York City. He was brought back to Bozeman where, in a bench trial, he was tried and convicted of one count of aggravated kidnapping and one count of felony assault. Ahmed appeals. Other facts will be provided as necessary to address the issues raised.
STANDARD OF REVIEW
In an appeal of a criminal case, the evidence will be viewed in the light most favorable to the prosecution. State v. Martel (1995), 273 Mont. 143, 148, 902 P.2d 14, 17. When determining whether the evidence presented was sufficient to sustain the criminal conviction, we ask if, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Gould (1995), 273 Mont. 207, 221, 902 P.2d 532; State v. Ross (1995), 269 Mont. 347, 360, 889 P.2d 161, 169.
Our standard of review of a trial court’s discretionary rulings is whether the trial court abused its discretion. State v. Loh (1996), 275 Mont. 460, 466-67, 914 P.2d 592, 596 (citations omitted). Since the admissibility of evidence is a discretionary ruling, we also deter mine whether the District Court abused its discretion by admitting or refusing to admit disputed evidence. State v. Bristow (1994), 267 Mont. 170, 173, 882 P.2d 1041, 1043 (citations omitted). The standard of review of a district court’s conclusions of law is plenary, and we will review to determine whether those conclusions of law are correct. State v. Hansen (1995), 273 Mont. 321, 323, 903 P.2d 194, 195 (citations omitted).
DISCUSSION
1. Was Ahmed denied his right to a fair trial due to the actual or apparent bias of the District Court?
Ahmed is a native of Bangladesh. He alleges that he was denied his right to a fair trial because the District Court was biased against him due to his race and culture. He alleges that this bias, while not overt, was manifested in several ways. First, he contends that the District Court improperly acted as the trier of fact at trial after having previously presided over Ahmed’s bail hearing. Second, he contends that the District Court excessively injected itself into the trial by questioning witnesses and terminating a given line of questioning. Third, he contends that the District Court demonstrated its bias by including an illegal condition of parole. Fourth, he contends that the District Court’s findings were not supported by substantial credible evidence, and that this itself was indicative of bias.
A. The District Court as trier of fact.
The same district court judge who presided over Ahmed’s bench trial also had presided over his earlier bail hearing. During the bail hearing, the District Court heard extensive evidence regarding Ahmed’s alleged flight from justice. The prosecutor presented this evidence in support of his argument that a high bail was necessary because of the chance that Ahmed would try to flee the jurisdiction again. The District Court agreed that Ahmed was a flight risk and set the bail in the amount requested by the prosecutor.
On appeal, Ahmed points out that whether he had in fact fled the jurisdiction was a seriously disputed question at trial. He contends the District Court improperly decided that issue at the bail hearing. Having allegedly decided this crucial issue previously, Ahmed contends that the District Court was not a truly impartial trier of fact at the trial.
Despite the bias he now alleges, however, at no time prior to this appeal did Ahmed object to having the same judge sit for both the bail hearing and the trial. Section 46-20-104, MCA, provides in part:
Upon appeal from a judgment, the court may review the verdict or decision and any alleged error objected to which involves the merits or necessarily affects the judgment. Failure to make a timely objection during trial constitutes a waiver of the objection except as provided in 46-20-701(2).
Section 46-20-104(2), MCA. Section 46-20-701(2), MCA, referenced above, provides:
No claim alleging an error affecting jurisdictional or constitutional rights may be noticed on appeal, if the error was not objected to as provided in 46-20-104, unless the defendant [convicted person] establishes that the error was prejudicial to his guilt or punishment and that:
(a) the right asserted in the claim did not exist at the time of the trial and has been determined to be retroactive in its application;
(b) the prosecutor, the judge, or a law enforcement agency suppressed evidence from the defendant [convicted person] or his attorney that prevented the claim from being raised and disposed of; or
(c) material and controlling facts upon which the claim is predicated were not known to the defendant [convicted person] or his attorney and could not have been ascertained by the exercise of reasonable diligence.
Section 46-20-701(2), MCA. None of the subsections of § 46-20-701(2), MCA, apply in this case. Yet despite the fact that Ahmed is foreclosed from raising this alleged error under the applicable plain error statute, he nevertheless argues that this Court should still notice it under the common law “plain error” doctrine.
The common law “plain error” doctrine is an exception to § 46-20-104, MCA, which allows this Court to remedy instances of manifest injustice which otherwise would not be addressed. State v. Arlington (1994), 265 Mont. 127, 152, 875 P.2d 307, 322. However, this Court will invoke the common law plain error doctrine sparingly, and only in exceptional cases where the failure to review the claimed error may result in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the trial or proceedings, or compromise the integrity of the judicial process. State v. Finley (1996), [276 Mont. 126], 915 P.2d 208, 215.
Ahmed argues that the District Court improperly decided the issue of flight based on evidence previously presented at the bail hearing. He further argues that this pre-judging of a crucial issue indicated bias, which in turn indicated that Ahmed did not receive a fair and impartial trial. These circumstances, he argues, justify the invocation, of the common law plain error doctrine in this case. We disagree.
Ahmed frames this issue as if the evidence of flight were only presented at the bail hearing. In fact, the prosecutor presented the same evidence regarding flight at trial as he had at the bail hearing, without objection. The District Court properly considered all the evidence presented at trial in reaching its verdict. There is nothing in the record to indicate that it relied upon flight evidence presented at the bail hearing, as opposed to flight evidence presented at trial. Since the District Court’s findings were based on evidence properly admitted at trial, we decline to invoke the common law plain error doctrine.
B. The questioning of witnesses.
Ahmed argues that the District Court demonstrated bias against him by excessively questioning witnesses and by terminating a given line of questions. In particular, Ahmed assigns error to the District Court’s questioning of himself and a clerk from the sporting goods store. He also assigns error to the District Court’s curtailing of a certain line of questions pursued by the prosecution.
The District Court questioned Ahmed at trial regarding his immigration status after Ahmed had invoked his Fifth Amendment right not to incriminate himself and after defense counsel objected to the line of questioning. After trial, the District Court determined that it had erred in questioning Ahmed regarding his immigration status. It therefore sustained the defense’s objection and ordered the pertinent testimony stricken. Since this was a bench trial, the manner in which a jury might interpret such questions was not and is not an issue. Ahmed nevertheless contends that the mere asking of improper questions regarding his immigration status is evidence of the District Corut’s bias against him.
Racial prejudice or bias against a defendant is a heavy charge to make against a court. Such bias is, of course, antithetical to the fundamental proposition that all people are entitled to a fair trial by an impartial corut of law. Such a serious accusation must be backed by evidence which tends to show its validity, not simply by mere speculation which cannot be traced to a single fact in the record.
Although in this case the questions put to the defendant by the District Court were admittedly improper, there is no evidence that the District Court considered the stricken testimony when reaching its verdict. If a defendant’s objection is sustained, the offending testimony is stricken from the record, and the jury is instructed to disregard the evidence (in cases of jury trials), the error which was committed is presumed to be cured. State v. West (1992), 252 Mont. 83, 91, 826 P.2d 940, 945. Ahmed fails to offer any specific evidence of bias to rebut the presumption that the District Court adequately cured its error. Far from rebutting the presumption of cure, Ahmed asks this Court to presume bias from the mere posing of such questions. We refuse to do so. While the District Court admittedly erred in asking Ahmed about his immigration status, it properly cured its error by sustaining the defense’s objection and striking the offending testimony.
Ahmed also argues that the District Court improperly questioned a sporting goods store clerk regarding a receipt, found in J.F.’s apartment, which reflected the purchase of a box of 9 mm. bullets two days before the incident in question. He also argues that the District Court erred by curtailing a certain line of questioning being pursued by the prosecution.
However, Ahmed did not preserve either of these assertions of error by means of a contemporaneous objection as is required by § 46-20-104(2) and § 46-20-701(2), MCA. “This Court has made it clear that where a defendant does not object at trial to the remarks and conduct of the trial judge, the issue will not be considered upon appeal.” State v. Martin (1987), 226 Mont. 463, 467, 736 P.2d 477, 480 (citing State v. Lloyd (1984), 208 Mont. 195, 676 P.2d 229). Because these issues were not properly preserved for appeal, we decline to address them. C. The illegal condition of parole.
When sentencing Ahmed, the District Court ordered:
Should the defendant be paroled, under no circumstances may he be released to any state or territory of the United States. The defendant shall remain in custody at all times unless, having been paroled, he is deported.
Further, the defendant shall be ineligible for re-entry into the United States, and shall be subject to arrest and imposition of any time remaining on his sentence should he re-enter the United States or its territories.
Ahmed contends, and the State concedes, that this is an illegal condition of parole. It is beyond the jurisdiction of a district court to order anyone deported without due process or to absolutely bar re-entry into the United States. Boutilier v. INS (1967), 387 U.S. 118, 87 S.Ct. 1563, 18 L.Ed.2d 661; United States v. Castillo-Burgos (9th Cir. 1974), 501 F.2d 217 (cert, denied, 419 U.S. 1010, 95 S.Ct. 330, 42 L.Ed.2d 284). Ahmed further contends, however, that the imposition of an illegal condition of parole indicates the District Court’s inherent racial and cultural prejudice against him.
As stated above, such charges cannot be based on mere speculation or conjecture. Ahmed is admittedly not a citizen of this country. He is also, now, a convicted felon and dangerous offender. Under the circumstances, the District Court might well believe that justice and society would be best served by deporting Ahmed after he is paroled. The parole provision is illegal not because it is racist or biased, but because it does not take into consideration Ahmed’s right to procedural due process before deportation. Because it is illegal, we hold that the subject parole condition must be stricken. Inclusion of the illegal provision does not, however, indicate inherent judicial bias warranting reversal of Ahmed’s convictions.
D. The lack of evidence as indicative of bias.
Ahmed asserts that the District Court’s bias against him is also illustrated by the fact that it convicted him of felony charges which the evidence presented did not support. This is merely another way of saying that the evidence was insufficient to sustain the convictions. Therefore, we next turn our attention to the question of the sufficiency of the evidence.
2. Were Ahmed’s convictions for aggravated kidnapping and felony assault supported by substantial credible evidence?
Ahmed argues that his convictions for aggravated kidnapping and felony assault must be reversed because they are not supported by substantial credible evidence. Ahmed notes that, since only he and J.F. were present during the period when the offenses took place, the case essentially comes down to his word against hers. He argues that J.F.’s testimony was inherently incredible and uncorroborated and, as such, is insufficient to support the convictions.
Ahmed claims that J.F.’s testimony was inherently incredible because it was contradicted not only by Ahmed’s testimony, but also by her own prior statement made to the police after the events in question occurred. Ahmed farther argues that J.F.’s testimony was not corroborated by physical evidence such as bruises or scratches from when she claimed he had struck her and held a knife to her neck. In the face of these inconsistencies and lack of corroboration, Ahmed argues that the evidence presented was insufficient to convict him of the crimes with which he was charged.
As this Court stated in State v. Brogan (1993), 261 Mont. 79, 862 P.2d 19:
[wjhere the sufficiency of the evidence is at issue on appeal in a criminal bench trial, the standard of review is whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Brogan, 862 P.2d at 24. Moreover, the credibility of witnesses and the weight to be given to their testimony are to be determined by the trier of fact, and disputed questions of fact and credibility will not be disturbed on appeal. Brogan, 862 P.2d at 24. See also State v. Santos (1995), 273 Mont. 125, 131, 902 P.2d 510, 514; State v. Moreno (1990), 241 Mont. 359, 361, 787 P.2d 334, 336. In the event that the evidence conflicts, it is within the province of the trier of fact to determine which will prevail. Santos, 902 P.2d at 514 (citing State v. Flack (1993), 260 Mont. 181, 860 P.2d 89).
In State v. Maxwell (1982), 198 Mont. 498, 647 P.2d 348, this Court held that prior inconsistent statements do not necessarily render a witness’s testimony inherently incredible. On the contrary:
[o]nly in those rare cases where the story told is so inherently improbable or is so nullified by material self-contradictions that no fair-minded person could believe it may we say that no firm foundation exists for the verdict based upon it.
Maxwell, 647 P.2d at 351 (quoting State v. Gaimos (1916), 53 Mont. 118, 126, 162 P. 596, 599). Further, the testimony of one witness is sufficient to establish a fact, Santos, 902 P.2d at 514, and the absence of corroboration alone is not sufficient reason to distrust the testimony of a complaining witness. State v. Higley (1980), 190 Mont. 412, 427, 621 P.2d 1043, 1052.
The District Court heard all the evidence presented as well as the testimony of both J.F. and Ahmed. It noted that J.F. had explained that her testimony differed, in part, because she could not remember some of the details she had reported to the police in her written statement. Noting that the trial took place almost four years after the events in question, the District Court found her to be candid in admitting when she simply could not remember certain details. The District Court included in its findings all the contradictions of which Ahmed complains, yet it still found J.F.’s testimony to be more credible than his. Looking at the evidence in the light most favorable to the prosecution, we hold that sufficient evidence existed for the District Court to convict Ahmed of the crimes charged.
3. Did the District Court abuse its discretion by considering evidence of flight?
Ahmed contends that the District Court abused its discretion by considering evidence regarding how and when he left Montana, and by construing that evidence as proof of flight. He admits that flight evidence may be admitted as a circumstance tending to show consciousness of guilt. State v. McKimmie (1988), 232 Mont. 227, 231, 756 P.2d 1135, 1138. But he also contends that flight evidence is admissible only if the District Court is satisfied that the crime charged has in fact been committed by someone. State v. Pepperling (1974), 166 Mont. 293, 299, 533 P.2d 283, 287.
In this case, the question faced by the District Court was not who committed a given crime, but rather whether a crime occurred at all. Ahmed argues that the District Court employed circular reasoning. He contends that the District Court concluded that evidence of flight is admissible to infer consciousness of guilt because a crime was committed, but then found that a crime was committed because Ahmed allegedly fled.
Ahmed misconstrues the decision of the District Court. In order to convict Ahmed of the crimes charged, the State had to show both that the crimes were committed and that Ahmed was the person who committed them. Having found from the testimony of J.F. and other witnesses that the crimes charged did in fact occur, the District Court properly considered flight evidence in reaching the conclusion that Ahmed was the one who committed them.
It is undisputed that, on the same evening that J.F. took the gun and went to the police, Ahmed left the state for Fargo, North Dakota. He then took a bus to New York City where he remained for the next three and a half years, knowing that the Bozeman police department was looking for him. He left Montana on the night in question without taking his car or the new puppy he had recently acquired, and without forwarding his mail. He headed to New York although he had previously informed the police that he intended to go to California. Based on this evidence, the District Court concluded that Ahmed had fled from Bozeman to avoid arrest or prosecution for his crimes.
Ahmed argues that the foregoing does not establish that he was fleeing from criminal charges because, in reality, no crimes had occurred. According to him, after spending the day “saying goodbye” to J.F., he left the state according to plan. This, however, is merely a reargument of the sufficiency of the evidence. The District Court concluded that Ahmed had held J.F. in her apartment against her will for almost three days and that, in the course of that time, he caused her reasonable apprehension that he would seriously injure her with the gun or the knife. As stated above, the evidence presented was sufficient to justify such a finding. Having satisfied itself that the crimes alleged did in fact occur, the District Court did not err in considering flight evidence in order to infer that Ahmed was conscious of his own guilt.
4. Did the District Court abuse its discretion by allowing testimony regarding a telephone conversation between Ahmed’s New York attorney and a Gallatin County deputy sheriff?
When Ahmed learned about the charges pending against him, he retained a New York attorney in an attempt to have the attorney “look into” the matter. At trial, a Gallatin County deputy sheriff testified that he had received several phone calls from Ahmed’s attorney. He farther testified that the attorney had inquired into the circumstances of the charges and indicated a desire to resolve the situation. The deputy sheriff also testified to telling the attorney that the situation could only be resolved by Ahmed’s returning to Montana to face the charges. The attorney then indicated that he would advise Ahmed to turn himself in.
Defense counsel objected to this entire line of questioning on the grounds that it was impermissible hearsay evidence. The State responded that the testimony was admissible as a statement of a party-opponent made through an agent, which is not hearsay under Rule 801(d)(2)(C) and (D), M.R.Evid. We agree with the State.
Rule 801(d) provides, in part:
Statements which are not hearsay. A statement is not hearsay if:
(2) Admission by a party-opponent. The statement is offered against a party and is ... (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of that relationship ....
Rule 801(d)(2)(C) and (D), M.R.Evid. Ahmed testified that he had retained the New York lawyer in an effort to resolve the charges against him. In attempting to do so, the attorney called the Gallatin County deputy sheriff to discuss the status of the case. In so doing, the attorney was acting as an agent for Ahmed. He was representing Ahmed’s interests and following Ahmed’s instructions by exploring how the charges might be resolved. The disputed conversation took place during the existence of the agency relationship, and the attorney’s comments concerned a matter within the scope of that relationship. Therefore, the attorney’s statements were not hearsay and the District Court properly refused to exclude them on that basis.
Ahmed also argues that the testimony should have been excluded because it constituted a violation of his attorney-client privilege. In Montana, the attorney-client privilege is codified in § 26-1-803, MCA, which states:
(1) An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him or his advice given to the client in the course of professional employment.
(2) A client cannot, except voluntarily, be examined as to any communication made by him to his attorney or the advice given to him by his attorney in the course of the attorney’s professional employment.
By its terms, this statutes applies to communications made by a client to an attorney or vice versa. In this case, however, the attorney made the disputed statements to a third party, the Gallatin County deputy sheriff.
Ahmed correctly cites Palmer v. Farmer Ins. Exchange (1993), 261 Mont. 91, 861 P.2d 895, as standing for the proposition that an attorney may not disclose advice given to his client without the consent of the client. Palmer, 861 P.2d at 906. However, Palmer is not on point for two reasons. First, Ahmed’s attorney did not reveal advice he had given to Ahmed, but rather conveyed what he intended to tell him. Second, Ahmed implicitly consented to the entire conversation by directing his attorney to attempt to take care of the charges. In contrast, Palmer concerned an attempt by a claimant to compel production of confidential files detailing communications between an insurer and its attorney. Voluntary disclosure to a third party was not the issue in Palmer and, therefore, it is not on point.
Because the conversations between the Gallatin County deputy sheriff and Ahmed’s attorney involved communications made by an agent in the course of his agency, they were not hearsay. Because the conversations took place between the attorney and a third party, with the client’s implicit consent, they are not subject to the attorney-client privilege. Accordingly, the District Court did not abuse its discretion by allowing the deputy sheriff’s testimony.
Ahmed raises several other specifications of error regarding various testimony which he claims the District Court should not have allowed into evidence. However, a review of the record reveals that no objections were made at trial to any of the testimony in question. As articulated in the discussion of issue 1(a), the lack of a contemporaneous objection precludes this Court from considering an alleged error. Section 46-2-104, MCA; Arlington, 875 P.2d at 321. Nor do any of the alleged errors justify invocation of the common law plain error doctrine. Because these issues were not properly preserved for appellate review, we decline to address them.
Affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES GRAY, ERDMANN, TRIEWEILER and NELSON concur.
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CHIEF JUSTICE TURNAGE
delivered the Opinion of the Court.
Defendant David Gonzalez appeals the Thirteenth Judicial District Court, Big Horn County, jury verdict which found him guilty of felony assault against Ronald Thompson. We affirm.
The following two issues are raised on appeal:
1. Did the District Court properly instruct the jury on the affirmative defense of justifiable use of force?
2. Did the jury properly reject the defendant’s affirmative defense of justifiable use of force?
BACKGROUND
The following facts come from the State’s case-in-chief. On August 7, 1994, David Gonzales went to the Wagon Wheel Bar in Hardin, Montana, at about 11:30 p.m. with his ex-wife, Marta Bergman. Also at the bar that evening was Ronald Thompson, an older man who was “acting strange,” telling people he was a karate expert and a Vietnam veteran. While Gonzales and Bergman were dancing to music performed by Randy McCallister, Thompson started dancing between them, making shadowboxing moves, but not saying anything or making any aggressive motions towards them.
Because Thompson was shadowboxing and “acting strange” around McCallister’s band equipment, McCallister told Thompson to behave. Thompson stopped what he was doing and repeatedly apologized. According to Jan Small, the owner of the Wagon Wheel, she received no complaints about Thompson.
After McCallister warned Thompson to behave around the band equipment, Gonzales approached McCallister and tried to stick up for Thompson. McCallister responded that it was not any of Gonzales’ business. Gonzales then hit McCallister, who hit him back. Richard Duncan, an acquaintance of McCallister, broke up the fight. McCallister went back on stage and prepared to resume playing with the band. Gonzales exited the bar after Jan Small asked him to leave.
Approximately five minutes later, Gonzales reentered the bar carrying something silver in his hand. He headed back to confront McCallister, and in McCallister’s direction, yelled, “Hey, bitch. You want to do it right. Let’s go outside.” At the same time, Thompson was sitting alone in the bar and watching the crowd. He got out of his chair, did an about-face, and hit Gonzales in the face. Duncan observed Gonzales, standing, slash Ronald Thompson with a carpet knife. Thompson grabbed Gonzales, who tried to stab Thompson in the back with the knife. Duncan approached the melee and grabbed Gonzales’ wrist, ordering him to drop the knife. Duncan hit Gonzales in the forehead and he dropped the knife. Duncan then knocked Thompson and Gonzales to the ground. When the three fell, Gonzales was on the bottom, Thompson in the middle, and Duncan on top.
When the three got up, Thompson was bleeding profusely from a deep laceration on his left arm. He also suffered smaller lacerations to his lower chest and back. Gonzales was uninjured except for a black eye. Immediately thereafter, deputies from the Big Horn County Sheriff’s Department arrived at the scene and arrested Gonzales. They also administered first aid to Thompson before transporting him to the hospital.
Thompson could not be found at the time of trial and was unavailable to testify. Sheriff’s deputies testified that Thompson did not appear to be dangerous and they did not feel threatened by him, although he did appear confused. Two officers also testified that the injury to Thompson’s left arm appeared to be a defensive-type wound.
At trial, Gonzales testified on his own behalf. He claimed that during one of the band’s breaks, McCallister made a derogatory comment to him about his ex-wife. Gonzales poked McCallister in the stomach. As Gonzales stood up to leave, McCallister hit him from behind. Gonzales then headed towards the front door of the bar, but before reaching it, he decided to find out why McCallister had hit him. Gonzales faced the band where McCallister was playing and yelled, “Hey bitch. You want to do it right. Let’s go outside.”
According to Gonzales, McCallister noticed him and nodded to Thompson. Thompson headed toward Gonzales, doing karate moves. Gonzales was afraid because Thompson was fifty pounds larger than he, he had just been beaten by McCallister, and he had been told that Thompson was a Vietnam veteran and a karate expert. Gonzales had a carpet knife in his wallet. He removed it as a warning for Thompson to stay away. Thompson punched Gonzales in the eye. Gonzales admitted at trial, that at that point, he could have turned around and run out the back door of the bar. After hitting Gonzales, Thompson tackled him, and the two fought on the floor until Duncan separated them.
Gonzales was charged by information with felony assault pursuant to § 45-5-202(2)(a), MCA. He pled not guilty. Following a jury trial, Gonzales was found guilty. The District Court sentenced him to a term of eight years in the Montana State Prison, plus two years consecutively for the use of a weapon. Gonzales appeals.
1. Did the District Court properly instruct the jury on Gonzales’ affirmative defense of justifiable use of force?
Gonzales asserts that the District Court committed reversible error at trial because it did not properly instruct the jury regarding his affirmative defense of justifiable use of force. He contends that the jury was instructed that the defense was not available to an aggressor, but that the jury was not instructed on the exceptions to the “no aggressor” rule contained in § 45-3-105(2)(a) and (b), MCA.
Section 45-3-105(2)(a) and (b), MCA, provides:
Use of force by aggressor. The justification described in 45-3-102 through 45-3-104 is not available to a person who: (2) purposely or knowingly provokes the use of force against himself, unless: (a) such force is so great that he reasonably believes that he is in imminent danger of death or serious bodily harm and that he has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or serious bodily harm to the assailant; or (b) in good faith, he withdraws from physical contact with the assailant and indicates clearly to the assailant that he desires to withdraw and terminate the use of force but the assailant continues or resumes the use of force.
During settlement of jury instructions, the State offered State’s proposed instruction number 15, which restates § 45-3-105(2)(a), MCA. Proposed instruction number 15 stated:
The use of force in defense of a person is not available to a person who purposely or knowingly provokes the use of force against himself unless such force is so great that he reasonably believes that he has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or serious bodily harm to the assailant.
Defense counsel objected to the State’s proposed instruction number 15, stating that there had been no evidence presented at trial to support it, and that it implied that Gonzales had provoked Thompson. Defense counsel admitted there was evidence that Gonzales provoked McCallister, but not Thompson. The District Court initially accepted the State’s proposed instruction 15, and allowed the defense to argue that there was no evidence that Gonzales was the aggressor. Gonzales then offered defense proposed instruction number 1, which stated, “No person has a duty to retreat from the use of unlawful force against him.” The State objected to this instruction because it conflicted with its proposed instruction number 15 and was an incorrect statement of the law.
The District Court then decided not to accept either proposed instruction. Instead, it gave the following instructions regarding justifiable use of force:
INSTRUCTION NO. 8
The defense of justifiable use of force is an affirmative defense and the defendant has the burden of producing sufficient evidence on the issue to raise a reasonable doubt of his guilt.
If you find that he was justified in the use of force, you must find him not guilty.
INSTRUCTION NO. 9
Apersonisjustifiedintheuse of force or threat to use force when and to the extent that he reasonably believes that such conduct is necessary to defend himself against the imminent use of unlawful force.
However, a person is justified in the use of force which is intended or likely to cause death or serious bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or serious bodily harm to himself.
INSTRUCTION NO. 10
The defendant has pleaded justification in the use of force in this case. As such he has the burden of producing sufficient evidence of justification in the use of force to raise a reasonable doubt of his guilt. You are to consider the following requirements of the law in determining whether the use of force claimed by-defendant was justified:
1) The defendant must not be the aggressor;
2) The danger of harm to the defendant must be a present one [and not merely threatened at a future time and not made by a person without the present ability of carrying out a threat];
3) The force threatened against the defendant must be unlawful;
4) The defendant must actually believe that the danger exists, that is, use of force by him is necessary to avert the danger and that the kind and amount of force which defendant uses is necessary;
5) The defendant’s belief, in each of the aspects described, is reasonable even if he is mistaken.
You are further advised that even if you determine that the use of force by defendant was not justified, the state still has the duty to prove each of the elements of the crime charged beyond a reasonable doubt.
(Bracketed material in original.)
This Court reviews jury instructions in a criminal case to determine whether the instructions, as a whole, fully and fairly instruct the jury on the law applicable to the case. State v. Leyba (1996), 276 Mont. 45, 915 P.2d 794, 797. District courts have broad discretion in formulating jury instructions. State v. Ross (1995), 269 Mont. 347, 358, 889 P.2d 161, 167. While a defendant is entitled to have instructions on his theory of the case, he is not entitled to an instruction concerning every nuance of his argument. Ross, 889 P.2d at 167.
Gonzales failed to object to or offer other instructions regarding the “no aggressor” rule contained in instruction number 10. He stated that he did not want the jury instructed on the exceptions to the “no aggressor” rule because his theory of the case was that Gonzales was not the aggressor. Because Gonzales did not raise an objection before the District Court, he is barred from raising the issue on appeal. See § 46-20-104, MCA. State v. Santos (1995), 273 Mont. 125, 133, 902 P.2d 510, 514-15.
Gonzales states in his reply brief that even though he did not object to the District Court’s failure to instruct the jury on the “no aggressor” rule, this Court should review the issue as plain error. Gonzales claims this error prevented him from receiving a fair trial because it inhibited his ability to use the defense of justifiable use of force.
We recently clarified the common law plain error rule in State v. Finley (1996), 276 Mont. 126, 915 P.2d 208. We held that we would review claimed errors that implicate a criminal defendant’s fundamental constitutional rights under the plain error rule only sparingly and only where failing to do so might result in a manifest miscarriage of justice, leave the question of the fundamental fairness of the proceedings unsettled, or compromise the integrity of the judicial process. Finley, 915 P.2d at 215.
Here, we conclude that declining to review Gonzales’ challenges to the District Court’s failure to submit alternative jury instructions on the “no aggressor” rule does not rise to the level of a manifest miscarriage of justice, will not leave unsettled the question of the fundamental fairness of the trial or proceedings, nor will it compromise the integrity of the judicial process. See Finley, 915 P.2d at 215; Seyferth v. State (1996), [277 Mont. 377], 922 P.2d 494.
Accordingly, we decline to address the issue of whether the District Court erred when it refused to submit the State’s proposed jury instruction number 15 and defense jury instruction number 1 as alternative jury instructions to the “no aggressor” rule, an issue which Gonzales raises for the first time on appeal.
As an additional argument, Gonzales argues that his counsel was ineffective for declining an instruction on the exceptions to the “no aggressor” rule. This Court reviews claims of ineffective assistance of counsel based on the two-part test adopted in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. The defendant must first establish that counsel’s performance was deficient in that counsel did not act within the range of competence demanded of attorneys in criminal cases. Walker v. State (1993), 261 Mont. 1, 6, 862 P.2d 1, 4. To satisfy the second prong of the test, the defendant must also establish that the deficient performance prejudiced him such that he was deprived of a fair trial. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. The defendant must prove both prongs of this test and bears a heavy burden when he desires that his conviction be reversed on the grounds of ineffective assistance of counsel. Leyba, 915 P.2d at 796.
Acts of counsel must stem from neglect or ignorance rather than from informed, professional deliberation in order to be ineffective assistance. State v. Paulson (1991), 250 Mont. 32, 44, 817 P.2d 1137, 1144-45. When defense counsel decides, as a tactical decision, to decline a jury instruction that is not consistent with the defense, this Court will not find that counsel was ineffective. State v. Sheppard (1995), 270 Mont. 122, 890 P.2d 754, 758. This Court will not second-guess trial tactics and strategy. Leyba, 915 P.2d at 797.
The record demonstrates that Gonzales’ defense at trial was that Thompson was the initial aggressor and that Gonzales used the amount of force that he reasonably believed was necessary to defend himself against Thompson. No witness for either the prosecution or defense testified that Gonzales was the aggressor in the fight between Thompson and himself. Witnesses testified that Thompson told people at the bar that he was a karate expert. After hearing Gonzales yell threats at McCallister, Thompson approached Gonzales and hit him in the face. Thompson was fifty pounds larger than Gonzales. Gonzales testified that he was frightened of Thompson and held up the knife in an effort to scare him. When Thompson grabbed Gonzales and the two fell to the floor, Thompson was on top.
The evidence presented at trial is consistent with Gonzales’ defense theory that Thompson was the aggressor. Defense counsel argued in both his opening and closing that Thompson, not Gonzales, was the aggressor. The decision to forego the jury instruction on the exceptions to the “no aggressor” rule was a trial strategy based on informed professional deliberation and was not the result of neglect or ignorance. The fact that this strategy proved unsuccessful does not mean that counsel was ineffective.
We therefore conclude that defense counsel’s performance was not deficient. Because Gonzales has failed to meet the first prong of the Strickland test, we do not address the second.
2. Did the jury reasonably reject Gonzales’ affirmative defense of justifiable use of force?
Gonzales argues that his conviction must be reversed because there was no evidence presented at trial on which the jury could find that he was the aggressor towards Thompson. This is contrary to Gonzales’first position that his conviction should be reversed because the court failed to instruct the jury on the exceptions to the “no aggressor” rule. Gonzales argues that if he was not the aggressor, then his use of the knife was reasonable and reasonable doubt had to be created in the minds of the jury by this defense.
The standard of review for sufficiency of evidence in a criminal conviction is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Arlington (1994), 265 Mont. 127, 146, 875 P.2d 307, 318.
The defense of justifiable use of force is an affirmative defense and the defendant has the burden of producing evidence sufficient to raise a reasonable doubt of his guilt. See § 45-3-115, MCA; State v. Grady (1975), 166 Mont. 168, 175, 531 P.2d 681, 684. To establish a defense of justifiable use of force, the defendant must prove: (1) that the defendant was not the aggressor; (2) that the defendant reasonably believed that he was in imminent danger of unlawful harm; and (3) that the defendant used reasonable force necessary to defend himself. Arlington, 875 P.2d at 318. Whether the force used was reasonable under the circumstances is a factual determination within the province of the jury. Arlington, 875 P.2d at 314.
Based on the evidence presented at trial, Gonzales does not meet the third prong for the defense of justifiable use of force. When the evidence is viewed in the light most favorable to the prosecution, the jury, as a rational trier of fact, could reasonably conclude that the force Gonzales used against Thompson was unreasonable. Thompson suffered a deep laceration which extended the length of his lower arm. The jury heard evidence that this wound was a defensive-type injury. Thompson also suffered several lacerations to his lower chest and back. Gonzales was not injured after his confrontation with Thompson, other than having a black eye. The jury reasonably concluded that the force Gonzales used against Thompson was excessive.
In summary, we hold that the District Court did not err when it instructed the jury on the defense of justifiable use of force according to Gonzales’ theory of the case — that is, that Thompson was the initial aggressor. Defense counsel was not ineffective for declining an instruction on the exceptions to the “no aggressor” rule, which was consistent with Gonzales’ theory of the case. Finally, the jury could properly find, based on all the evidence presented, that Gonzales did not meet all three requirements for the affirmative defense of justifiable use of force because he did not use reasonable force to defend himself.
Appellant’s conviction is affirmed.
JUSTICES ERDMANN, NELSON and LEAPHART concur.
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MR. JUSTICE SANNER
delivered the opinion of the eourt.
In a proceeding had under the provisions of section 9006, Revised Codes, the appellant, Nelson Story, Jr., was found by the district court of Gallatin county to have charged and collected illegal fees for services rendered in his office as county commissioner of said county, and was adjudged to be deprived of and ousted from such office. The basis for the finding and adjudication is an agreed statement of facts from which it is made to appear, among other things: That the appellant charged and collected from the county certain bills for services as county commissioner, which bills included items of charge at the rate of $8 per day for “attending to business of the county” other than meetings of the board, and items of charge at the rate of $8 per day for “inspecting and overseeing roadwork”; that the service for which such charges were made was actually rendered and believed to be for the best interests of the county in connection with roadwork under the immediate supervision of the board, but was not rendered pursuant to any previous order of the board directing the appellant to inspect the condition of any contract construction work on any highway or bridge in the county, or in connection with any such inspection.
I. The main contention of appellant is stated in the language of his counsel as follows: “We contend that the word ‘fees,’ as used in the section under consideration, refers only to the statutory charges for official services rendered by an official to the different members of the general public, and does not in any way include, refer to, or contemplate the compensation, whether by way of salary or per diem, paid by the state or the county direct to its officials for services rendered; that the statute was intended for the protection of the individual members of the general public who, dealing with the officer, as such, may have been compelled to pay an illegal fée for the services rendered; that it was never intended to protect the county, the state, or the municipality from charges by the officer against it for services rendered by the official which were either illegal or wrongful or which were covered by his compensation or salary fixed by the statute regulating the compensation which he should receive for his services; that the statute is both penal and criminal, and that it cannot be extended to charges made by officials (however irregular, wrongful or illegal) for services performed or alleged to have been performed which were not within the purview of the statute when enacted; that in this state county commissioners do not, and never have, charged, collected or received ‘fees’ within the meaning of the statute; that they could not do so from the nature of the services required of them by the statute, and rendered by them in practice; that, conceding that appellants charged and collected per diem for services which they had rendered to the county, which charges and collections were without authority of law, they did not thereby become guilty of charging and collecting illegal fees within the purview of the statute in question; and that therefore the judgment of ouster rendered against them in their respective cases by the trial court should be reversed.”
This entire contention is in reality foreclosed by the decision of this court in State ex rel. Payne v. District Court, ante, p. 350, 165 Pac. 294, wherein we said: “The term ‘fees,’ used in the Codes, is somewhat elastic.. Section 3172, Revised Codes, provides that ‘the county surveyor is entitled to receive and collect for his own use the following fees: * * * Expense of ehainman and markers, ’ etc. Section 3173: ‘ The coroner is entitled to receive and collect for his own use the following fees: * # * For each mile actually traveled in the performance of any duty, ten cents. ’ We think the term ‘fees, ’ used in section 9006, is sufficiently broad to comprehend both per diem and expenses. * * * If the items for which the accused charged these fees show on the face of them that they are not authorized by law, there is no necessity to characterize them or to attempt to show wherein they are illegal. They show for themselves. We think the accusation, in the first count, is sufficient to charge the collection of illegal fees. In effect, it alleges that the accused, acting in his official capacity as county commissioner of Madison county, spent one day seeing about a right of way for which he charged and collected from the county $8, and $5 additional for expenses, etc. This item particularly is not comprehended within any provisions of law authorizing fees or other compensation to a member of the board of county commissioners for services rendered in his office, and is therefore prima facie illegal.” Because, however, the conclusion thus announced has been challenged by a motion for rehearing, and because the appellant here invokes historical data to support his view, we determined to re-examine the subject. The result _has been to confirm our view that the term “illegal fees” is used in section 9006 in its broadest sense, as meaning any moneys collected or attempted to be collected, by a public officer from any source whatever, whether in the guise of mileage, per diem or specific charge for service rendered, or to be rendered, in his office without authority of law for such collection. ¥e are impelled to this result by these considerations:
1. Neither in common parlance nor in legal usage has the word “fees” any such narrow limit as that assigned to it by appellant’s counsel. It has many meanings, general and particular. Generally it signifies a reward or payment of money (Trench’s Select Glossary) ; money paid or bestowed; emolument (Century Dictionary); reward or compensation for services rendered or to be rendered (Webster’s International Dictionary). In its particular sense it imports a recompense or reward fixed by law for the services of a public officer. (Century Dictionary.) Legally, it means a reward or wages given to one for the execution of his office, differing .from costs in that fees are a recompense to the officer for his services. (Bouvier’s Law1 Dictionary.) Nowhere is it said to connote a particular source, as from individuals, and not from nation, state or county. So that, considered in its ordinary significance, the term “fees,” as used in section 9006, would cover the appellant’s charges made upon and paid by the county, and the phrase “collecting illegal fees for service rendered” accurately describes his receipt of the money if there was no legal warrant for its payment.
2. Confining ourselves to the historical data submitted, we might possibly conclude that prior to 1895 the word “fees” was understood as counsel now defines it, but a wider survey convinces us that this would not be correct. In the Bannack Stat utes (page 470 et seq.) it is specifically applied to the sheriff’s per diem for attending court, payable by the county, to his compensation for dieting prisoners, to his mileage for serving papers and for transporting prisoners; also to the compensation of $10 for each inquest and to the mileage allowed coroners, payable by the county; also to the per diem of judges and clerks of election, payable by the county; also to the compensation, percentages, and mileage allowed the county treasurer, payable by the county; also to the per diem and mileage of election couriers, the per diem and mileage of witnesses, the per diem and mileage of jurors, and the per diem of prosecuting attorneys attending causes on change of venue. Substantially the same use of the word appears in the Codified Statutes of 1871-72 (page 420 et seq.), in the Revised Statutes of 1879 (5th Div., secs. 585, 586, 587, 590, 593, 594, 596), and in the Compiled Statutes of 1887 (5th Div., secs. 956, 1074, 1075, 1089, 1090, 1095). It is further interesting to note that in the “Act concerning compensation of county, district, and township officers,” approved March 6, 1891 (Sess. Laws 1891, p. 235 et seq.), the word “fees” is used to describe charges paid by the county as well as by individuals, and charges for per diem and mileage as well as those for specific service; moreover, section 9 of the Act contains a provision that “any such officer who shall receive any fee or reward or salary not specifically provided by law shall be liable to the county, state, or persons paying the same,” etc. While none of these references apply specifically to county commissioners, they establish, we think, that prior to 1895 the word “fees” meant more than specific charges to individuals for particular services, and that illegal fees could be collected from the county and could consist of unauthorized claims for per diem and mileage.
But, whatever may be the correct, or even just, inference from previous legislation, there cannot be the slightest doubt that, when the Codes of 1895 were enacted, including as section 1545 of the Penal Code the present section 9006 of the Revised Codes, the term “fees” was not confined in its significance to specific charges for particular services rendered to individuals, nor did it always exclude moneys had from the county or state, whether as compensation, per diem, or mileage. On the contrary, we find in the Chapter on “Salaries and Fees of Officers” (Chap. IV, Pt. IV, Tit. II, Pol. Code), which with few changes reappears in the Revised Codes of 1907 as sections 3111-3197, that it is used in almost every possible sense. For example: In section 4592 (Rev. Codes, sec. 3113) it means a mode of compensation different from salary; in section 4604 (Rev. Codes, sec. 3137) it connotes mileage payable to the sheriff by the county in certain cases; in section 4605 (Rev. Codes, sec. 3138) it designates the recompense payable by the county to the sheriff for boarding prisoners; in sections 4606, 4607, 4611, 4612, 4614, 4615, 4616 (Rev. Codes, secs. 3139, 3140, 3144, 3145, 3147, 3148, 3149), and others it imports specific charges to be collected from private individuals for particular services; in section 4618 (Rev. Codes, sec. 3151) it refers to costs of publications; in section 4634 (Rev. Codes, sec.-3167) to the sheriff’s mileage as well as his other charges; in section 4639 (Rev. Codes, sec. 3172) to the per diem of the county surveyor, to his charges for copies, etc., and to his expenses for chainmen and markers, whether chargeable to the county or to private individuals; in section 4640 (Rev. Codes, sec. 3173) to the per diem and other charges of the coroner which are payable by the county; in section 4642 (Rev. Codes, sec. 3176) to the charges of the justice of the peace, whether collectible from the county in criminal cases, or from individuals in other matters; in section 4643 (Rev. Codes, see. 3177) to the charges of the constable, whether collectible from the county in criminal cases or from individuals in civil actions; in section 4643 (Rev. Codes, sec. 3177) to mileage as among the fees of the constable; in sections 4648 and 4650 (Rev. Codes, secs. 3182, 3184) to the per diem and mileage of witnesses. In no way can it be ascertained whether an officer has collected illegal fees within the meaning of section 9006 without a reference to the Chapter on fees from which the above references are taken; with such references, it would be a perversion to say that such collection occurred if the authorized moneys came from individuals, but not if they came from the county, or if they consisted of per diem, or mileage instead of specific charges or particular services.
3. Besides the Payne Case, supra, this court had occasion in State ex rel. Rowe v. District Court, 44 Mont. 318, Ann. Cas. 1913B, 396, 119 Pac. 1103, to consider some of the aspects of appellant’s present contention. There one Booher was sought to be removed from office under section 9006 for collecting illegal fees. The collection was from the county in good faith for services rendered, but it was held nevertheless that, since there was no legal warrant for it, the transaction constituted a collection of illegal fees for which removal, under section 9006, was possible. Elsewhere, too, the same result has been reached. Under the statute in North Dakota, Idaho and Utah, as here, county commissioners received per diem and mileage payable by the county; and in State v. Richardson, 16 N. D. 1, 109 N. W. 1026, State v. Borstad, 27 N. D. 533, Ann. Cas. 1916B, 1014, 147 N. W. 380, Rankin v. Jauman, 4 Idaho, 53, 36 Pac. 502, Rankin v. Ja/wman, 4 Idaho, 394, 39 Pac. 1111, Ponting v. Isaman, 7 Idaho, 283, 62 Pac. 680, and Robinson v. Huffaker, 23 Idaho, 173, 129 Pac. 334, it was expressly determined that a county commissioner who receives from his county per diem and mileage to which he is not entitled, either because not earned or not authorized by law, is guilty of collecting illegal fees for services rendered in his office, and subject to removal under provisions similar to section 9006 of our Code. And the same conclusion was reached in Skeen v. Craig, 31 Utah, 20, 86 Pac. 487, respecting a city councilman. In this case the court, upon the first appeal reversing a judgment below for the defendant, said: ‘ ‘ Counsel for defendant insist that the facts as disclosed by the record do not bring the case within the provisions of section 4580; their contention being that this section refers to officers only who are paid by fees for specific services, or, being salaried officers, are yet required to charge and collect fees for specific services, and that, as a city councilman is paid a stipulated and fixed salary, and in no way charged with the collection of fees of any kind whatsoever, he cannot be proceeded against under said section. It is conceded that the construction of the section of the statute under which this action is brought depends more upon the sense in which the term ‘fees’ is therein used than upon the technical definition of the word as contradistinguished from other terms denoting the compensation of public officers. The terms of this section of the statute wherein it refers to public officers and the ‘charging and collecting illegal fees’ are general, and are not confined to the fees charged and collected by any one class of public officers not liable to impeachment. Now, it is a well-recognized rule of statutory construction that general terms and expressions of a statute are to be given a general construction unless some other provision of the statute or the context itself shows that the legislature intended them to be used and applied in a limited or restricted sense. (Sutherland, Stat. Const., 2d ed., 392; Black on Interp. Laws, 136.) We fail to find anything in the phraseology of the section itself, or when it is read and considered in connection with other provisions of the statute relating' to the general subject matter of the action, which restricts or limits the scope or operation thereof to only one class of officers. By its very terms the statute includes any officer (not liable to impeachment) who has been guilty of chai’ging and collecting illegal fees. And its provisions are equally broad respecting ‘illegal fees.’ To bring the charging and collecting of illegal fees within the statute, it is not necessary that such fees be obtained from any specific source or sources, nor that they be charged or collected by an officer who is authorized by law to collect fees for specific services. The charging and collecting of illegal fees from the'state, county, or municipality by a public officer for private gain, is as clearly within the statute as the charging and collecting of illegal fees from a private individual. It would seem that, if it were intended to limit proceedings of this kind to include only a certain or specified class of public officers who might become de linquent, the legislature would have said so. The legislature has not only failed to so state in so many words, but, as we have observed, there is nothing in any of the statutory provisions which relate to or have any bearing upon the subject matter of this class of actions from which such an intent can be inferred.” We think that these authorities .effectually dispose of appellant’s contention.
It has been suggested — though it is not exploited in appellant’s brief — that the only illegal fees for collecting which an officer can be removed under section 9006 are those received for services rendered in his office, and if the service for which collection be made is not required of the officer or authorized by law to be performed by him as such, it is not service rendered in his office; so that, whatever legal animadversion he may be subjected to for the collection, assuming the charge to be without legal warrant, there can be no removal under section 9006. In a certain sense this is obvious; but it is not illuminating. At the time involved here county commissioners had general supervision over highways (Laws 1915, Chap. 141, sec. 2), were charged with the establishment, maintenance and control of the same (Laws 1915, Chap. 141, sec. 2; Rev. Codes, sec. 2894, subd. 4); it was their function to manage and care for highways as other interests committed to their charge (Rev. Codes, sec. 2894, subd. 22), and in that behalf they could do or cause to be done whatever might be necessary (Rev. Codes, sec. 2894, subd. 25; Laws 1915, Chap. 141, see. 2). If these provisions mean anything at all, it is that county commissioners could in virtue of their office personally superintend and effectively direct the work of construction and repair upon highways and could' depute one of their number to see and speak for them respecting the same; but, unless payment is authorized for such service none can be lawfully made, and to charge and collect for it is to charge and collect illegal fees for service “rendered in his office.”
II. In oral argument it was insisted that there are two statutory provisions, viz., sections 3194 and 2952, Revised Codes, under which it is permissible for commissioners to receive compensation for such service as was rendered in the present instance, and that therefore no illegal fees were collected. We cannot reconcile this with the theory of the briefs, nor does it at all conform to the postulates of the Payne Case referred to above. We consider it, however, in order that the matter may be set at rest. The sections referred to are as follows:
“3194. Members of the board of county commissioners each receive eight dollars per day and fifteen cents per mile for the distance necessarily traveled in going to and returning from the county seat and his place of residence.”
“2952. All claims against the county presented by members of the board for per diem and mileage, or other service .rendered by them, must be verified as other claims, and must state that the service has been actually rendered.”
If these two sections were the only provisions reflecting on the subject, it might be possible to imply from the phrase “or other service rendered,” in section 2952, and from the absence of any express restriction in section 3194, that the commissioners should have compensation for any service whatever rendered to the county — Tor those to which per diem properly applies at the rate of $8 per day, together with mileage, and for other services on some basis not stated, perhaps the reasonable value of the service. Section 2952, however, is in itself no authorization to take money from the public treasury for any purpose, and cannot be employed to bolster up a claim for which independent authority does not exist (Irwin v. County of Yuba, 119 Cal. 686, 52 Pac. 35); it is a mere prescription, touching the maimer in which commissioners’ claims for compensation, elsewhere authorized, shall be formulated and is designed in connection with section 2945 to enable the board to determine in the first instance whether it will even consider the claim (Christie v. Board of Supervisors, 60 Cal. 164). Moreover, these sections are not the only ones upon the subject. Section 2893 provides: “Each member of the board of county commissioners is entitled to eight dollars per day for each day’s attendance on the sessions of the board, and ten cents per mile for the distance necessarily traveled in going to and returning from the county seat and his place of residence, and no other compensation must be allowed”; and sections 12 and 13 of Article III in Chapter 141, Laws of 1915, authorize commissioners especially ordered by the board to inspect the condition of contract construction work on highways and bridges to receive $8 per day and actual traveling expenses. It is not impossible to harmonize these provisions ; construing them together, it may be said that, as respects per diem, a commissioner may receive $8 per day for each day’s attendance upon sessions of the board and for each day given to inspection of contract roadwork under order of the board, but shall receive no other compensation. In every instance his claim must be verified as other claims. Conceding, however, that as to sections 2893, 2952 and 3194, there is such a difference in implication as to present an essential conflict, then, for reasons prescribed in the Code itself, section 2893 must prevail. All are original sections in the Code of 1895 (Pol. Code, secs. 4222, 4293, 4660), but section 2893 is an obvious carrying forward of a pre-existing provision (sec. 347, 5th Div., Rev. Stats. 1879; sec. 755, 5th Div., Comp. Stats. 1887), with changes as to mileage and the fund from which payment shall be made. Section 2893 is part of the Article and Chapter (Art. I, Chap. II, Tit. II) which defines the organization, term and compensation of county commissioners, and is particularly germane to that subject. Section 2952 is part of the Article and Chapter (Art. VI, Chap. II, Tit. II) which relates to “Other Powers and Restrictions” in county government; and section 3194 is found in the general Chapter (Chap. IV, Tit. II) on salaries and fees of public officers. The rule established by the Code is that, if the provisions of any Article conflict with or contravene the provisions of another Article in the same Chapter, the provisions of each Article must prevail as to all matters and questions arising out of the subject matter of such Article (Rev. Codes, sec. 3557), and if the provisions of any Chapter conflict with or contravene the provisions of another Chapter of the same Title, the provisions of each Chapter must prevail as to all matters and questions arising out of the subject matter of such Chapter (Rev. Codes, see. 3556).
It is doubtless true that, in the case of a commissioner acting honestly and with a view to the efficient discharge of the duties of his office, the conclusion is a harsh one which results not only in the restoration of moneys actually earned, though illegally claimed, but also in his removal from office. This, however, cannot be helped. Section 9006 is general, makes no distinctions, leaves no room for judicial discretion. It was designed to serve a far-seeing public purpose, and to deny its application to this case, upon the grounds urged here, would be to destroy its value in other eases .where its effect may be more certainly needed.
The judgment appealed from was- commanded by the facts stated, and is therefore affirmed. . „
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
|
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] |
MR. 'JUSTICE HOLLOWAY
delivered the opinion of the court.
In the complaint in this action it is alleged that for more than six months during the year 1914 the defendant sold intoxicating liquors in the city of Roundup without having a license permitting him to do so. The prayer is for judgment for $264, the amount required to procure a liquor license to do business for six months in a city of the class to which Roundup belongs, and for certain penalties. The answer admits all the material allegations of the complaint, and, by way of special defense, alleges that during all the times mentioned there were outstanding in full force and effect in the city of Roundup the maximum number of liquor licenses allowed by law, by reason whereof the defendant could not procure a license, and the county treasurer could not lawfully issue one to him. A motion to strike this affirmative defense was overruled, and the trial of the cause resulted in a judgment for defendant, from which this appeal is prosecuted.
The single question presented is: May the state by civil action collect a license tax from one whom it refuses a license, but who nevertheless engages in business in violation of the law ?
It is the general rule that, in the absence of express legislative authority an action cannot be maintained to collect a license fee where a license has not been applied for or granted. (25 Cyc. 629.) The statutes relating to the granting of licenses and the collection of license taxes are found in sections 2746-2780, Revised Codes, with certain amendments subsequently enacted which are not of consequence here. Section 2749 provides that “a license must be procured immediately before the commencement of any business or occupation liable to a license tax.” Section 2750 authorizes the county treasurer to commence a civil action in the name of the state “against any person required to take out a license who fails, neglects, or refuses to take out such license or who carries on or attempts to carry on business without such license. ’ ’ [This is the only statute authorizing an action to collect a license tax, though counsel assume that authority is likewise granted by section 2780. The last section does nothing more than impose a penalty for doing business without a license.] Section 2752 provides that upon the trial of an action prosecuted under section 2750 the production of the license, proof that such license has been procured, or proof of the payment of the proper license tax with damages and costs shall constitute a complete defense. Section 2755 provides that all property held or used in any trade, occupation or profession for which a license is required is subject to\a prior lien in favor of the state for the amount of the license tax. Section 2759 requires every person who sells or offers for sale intoxicating liquors to obtain a license from the county treasurer and to pay therefor the license tax, which is graduated according to the population of the place where the business is to be conducted.
With the enactment of the Codes in 1895 a general license statute went into effect. Under its terms almost every trade, profession and business was subjected to the payment of a license tax. There were not any restrictions upon the number of licenses which might be issued, and no question of discretion was involved. Upon the payment of the required fee the license issued as a matter of course, and unless the state was in a position to grant a license, it could not exact the license fee. The sections mentioned above were all of that general legislative scheme.
Since section 2750 is the only statute which authorizes the prosecution of a civil action to collect a license fee, the solution of the question before us is to be found in the answer to the further inquiry: What does that section mean 1
In the construction of a statute the primary duty of the court is to give effect to the intention of the legislature in enacting it. (Lerch v. Missoula Brick & Tile Co., 45 Mont. 314, Ann. Cas. 1914A, 346, 123 Pac. 25.) The intention is to be sought in the language employed and the apparent purpose to be sub-served. (Johnson v. Butte & Superior Copper Co., 41 Mont. 158, 48 L. R. A. (n. s.) 938, 108 Pac. 1057.)
The language of section 2750 is that the county treasurer must direct suit in the name of the state “against any person required to take out a license who fails, neglects, or refuses to take out such license or who carries on or attempts to carry on business without such license.” When the statute was enacted that language had a definite and well-understood meaning. “Any person required to take out a license” meant any person engaged in a profession, trade or occupation for which a license tax was required, and a person engaged in any such business upon the payment of the required fee could demand a license as a matter of right. When we consider the history of our license legislation and the provisions of sections 2749, 2752 and 2755, in connection with the terms of section 2750, and realize that when these statutes were enacted the licensing authorities could not refuse a license to anyone who applied for it and paid or tendered the required fee, we are driven to the conclusion that in the enactment of section 2750 the legislature intended nothing more than to provide a means for the collection of a license fee from one entitled to a license as a matter of right upon payment of the fee. Though our license statutes have been changed in many respects since 1895, there is not anything in the subsequent legislation to indicate that section 2750 should be given a different meaning from the one manifestly intended in the first instance. It cannot be said that this construction renders that section a dead letter.
It is true that under the present statutes a liquor license does not now issue as a matter of course; but a license is still required as a condition precedent to the right to engage in any one of the several other occupations, and such license can be demanded as of right by anyone who pays or tenders the required fee.
An attempts is made to distinguish between a license tax or occupation tax, on the one hand, and a license fee exacted merely for regulation purposes. Our license statutes fail to indicate the particular purpose for which they were enacted. Section 1, Article XII, of the Constitution authorizes the legislature to impose a license tax, but in State v. Camp Sing, 18 Mont. 128, 56 Am. St. Rep. 551, 32 L. R. A. 635, 44 Pac. 516, this court held, in effect, that it was not the intention of that provision to differentiate between the license tax, strictly so-called, and the license fee exacted in a regulatory measure, but that it was the purpose to refer the general subject of licenses to the legislature, and that under the provision in question a license tax might be imposed for revenue, for regulation, or for both purposes.
The defendant may be prosecuted under the criminal laws, but he cannot be made to pay the license fee and be denied the license — the consideration for the fee.
The judgment is affirmed.
'Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Sanner concur.
|
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] |
MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
In this action plaintiff recovered a verdict for $500 and costs. Defendant has appealed from the judgment entered thereon and from an order denying her a new trial. The ground of recovery alleged is a breach of contract.
On April 29, 1910, defendant’s son, John Hollenback, was electrocuted by coming in contact with a wire heavily charged with electricity. Hollenback was then in the employ of the Stone & Webster Engineering Corporation, which was engaged in the construction of a dam in the Missouri River, in Lewis and Clark county. Defendant thereafter brought an action against the corporation to recover damages for the death of her son, alleging that it was caused by the culpable negligence of the corporation. This was determined in her favor, the jury awarding her a verdict for $18,000. After reciting the foregoing facts, the complaint herein alleges:
“III. Plaintiff avers that during the prosecution of said action of Matilda Hollenback v. Stone & Webster Engineering Corporation it became and was necessary in order to properly prepare said cause for trial that this defendant, plaintiff in the aforesaid cause of Hollenback v. Stone & Webster Engineering Corporation, should employ ■ someone to hunt up the legitimate and. proper evidence which would show how the accident occurred, also to show the negligence of the defendant, if such evidence in fact actually existed, as this plaintiff alleges that it did.
“IV. Plaintiff avers that in view of all the foregoing, and on or about the month of-, 1910, he made and entered into a contract with this defendant under and by virtue of which he was to search for bona fide witnesses and to hunt up such bona ■fide, competent, and legitimate testimony as he might be able to obtain to be produced upon the trial of the defendant’s said case, and to properly advise and to assist in all reasonable and proper ways this defendant generally in the prosecution of said cause, and that, in consideration of the same, defendant promised and agreed with plaintiff that, if she should recover in her said suit, she would pay plaintiff well for such services.
“V. That' in pursuance of the aforesaid agreement plaintiff entered upon the due performance of his said contract with this defendant and devoted a large amount of time in finding and endeavoring to find witnesses who were conversant with the aforesaid facts and who would testify as to the true facts regarding the same upon the trial of said cause; that plaintiff spent considerable snms of money in traveling around and going from place to place in search of evidence. That at one time plaintiff in the due performance of his said duties under said contract made a trip to the city of Butte, in the state of Montana, incurring considerable expense on account of the same. * # # >>
It is then alleged that the plaintiff fully performed the contract on his part; that upon recovery of the judgment in her action defendant became indebted to him for the reasonable value of his services; that she had failed and refused to recognize the contract or to pay plaintiff any sum whatever; and that there is due plaintiff the sum of $1,500, with interest and costs. Defendant’s general demurrer having been overruled, she answered, joining issue upon all the material allegations of the complaint.
Counsel for defendant assail the integrity of the judgment on the grounds that the contract is void because it contravenes public policy, and that the court erred in admitting and excluding evidence. The validity of the contract was questioned by the demurrer, and, during the trial, by motion for nonsuit and for directed verdict. The contention is that, while a suitor may lawfully employ a layman to search for and find witnesses who know the facts relevant and material to the issue which is or will be brought in controversy, for compensation to be paid without regard to the result, if the obligation to pay compensation becomes binding only upon the event of the suitor’s success, the contract is illegal and void, in that it has a tendency and opens a strong temptation to procure perjury. They insist that the agent so employed, realizing that he will receive nothing unless the suitor is successful, will naturally produce or secure witnesses whose testimony will win the suitor’s ease. Hence the contract alleged comes within the class of those denounced by this court in Quirk v. Muller, 14 Mont. 467, 43 Am. St. Rep. 647, 25 L. R. A. 87, 36 Pac. 1077, and Hughes v. Mullins, 36 Mont. 267, 13 Ann. Cas. 209, 92 Pac. 758.
In the first of these eases the plaintiff had obligated himself to furnish such evidence as would win the suit. In the second the plaintiff had undertaken to furnish evidence which would produce results favorable to the suitor in one or both of two pending suits, viz.: (1) Win one or both of them upon trial; or (2) put the plaintiff in such a position that he could force a favorable settlement of one or both of them. All the courts, so far as their decisions have been called to our attention, or we have examined them, hold such contracts void. Mr. Justice De Witt, in Quirk v. Muller, supra, quoted with approval the rule as stated by Mr. Bishop, as follows: “The mere tendency of a contract to promote unlawful acts renders it illegal, as against the policy of the law, without regard to any circumstances indicating the probable commission of such acts.” (Bishop on Contracts, sec. 476.)
In 6 Cyc., at page 864, it is said: “By the common law,- and in most of the states which have adopted the common law or enacted statutes on the subject, an agreement by a third person other than an attorney to defray the expenses of a suit in which he has no interest, or to give substantial support in aid thereof in consideration of a share of the recovery, is champertous.” On the same page it is further said: “An agreement to furnish such evidence as shall enable the party to recover a sum of money, or other thing, by action, and to exert influence for procuring evidence to substantiate the claim on condition of receiving a portion of the thing recovered, is champertous.”
The contract under consideration in this case, however, does not fall within the class of those considered in Quirk v. Muller or Hughes v. Mullins, supra, nor within any of the cases cited in support of the text quoted from Cyc. Plaintiff did not agree to furnish evidence that would establish defendant’s claim, nor was h.e to have any portion of the possible recovery. No authority has been called to our attention, nor have we been able to find any, which holds such a contract open to objection because it contravenes public policy. Under the common law in England, a contract by an attorney to conduct an action for compensation contingent upon recovery is champertous and void. (Hilton v. Woods, L. R. 4 Eq. 432; Earle v. Hopwood, 7 Jur. N. S. 775.) In some of the states this rule has been recognized and enforced. (Ware v. Russell, 70 Ala. 174, 45 Am. Rep. 82; Lafferty v. Jelley, 22 Ind. 471; Roberts v. Yancey, 94 Ky. 243, 42 Am. St. Rep. 357, 21 S. W. 1047; Martin v. Clarcke, 8 R. I. 389, 5 Am. Rep. 586.) In some of these eases the contract of the attorney included also a stipulation that he would pay the costs of the litigation. This element, however, does not seem to have been regarded as determinative of the invalidity of the contract. Other authorities hold that such a stipulation is invalid. (Croco v. Oregon Short Line Ry. Co., 18 Utah, 311, 44 L. R. A. 285, 54 Pac. 985.) As the contract in this case does not include such a stipulation, the question whether it would be lawful in this state is not here considered or determined.
By the current of authority a contract for contingent compensation is held valid. (Smits v. Hogan, 35 Wash. 290, 77 Pac. 390, and citations in note to this ease in 1 Ann. Cas. 299.) In this state, except in so far as they are prohibited by statute, attorneys are free to enter into such contracts with their clients for compensation as they choose. Section 6422 of the Revised Codes declares: ‘ ‘ The compensation of an attorney and counselor for his services is governed by agreement, express or implied, which is not restrained by law. * * * ”
Section 7153 declares: “The measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties. * * * ” When we come to look for the restraints imposed by law, we find that, aside from those enumerated in sections 6397 and 6398, among which is not mentioned a contract contingent upon the success of the litigant, we do not find any. The effect of the broad provisions found in sections 6422 and 7153 is that they abolish the common-law doctrine of champerty and maintenance in this state relating to contracts for compensation between attorney and client, except in so far as it is retained in modified form in the other sections cited. The Code of the state of Washington contains a provision identical with section 7158 (Ballinger’s Code, sec. 5165). In Smits v. Hogan, supra, the court, after expressing a doubt that the doctrine of champerty ever was in force in Washington, said that, as far as this doctrine relates to the compensation between attorney and client, it must have been repealed by the statute. The same conclusion was reached by the Supreme Court of Utah as to the scope of a similar provision in the Code of that state. (Croco v. Oregon Short Line Ry. Co., supra.) If such a contract may be made between an attorney and his client, the inquiry arises: Why should it be held unlawful for the client to contract upon the same basis with a layman for such services as the latter may lawfully perform ? An action usually cannot proceed without the aid of an attorney. It cannot proceed at all unless the witnesses are found who can testify in support of plaintiff’s suit. It cannot be questioned that it is lawful for a litigant to employ another layman at a stipulated compensation, to be paid in any event, to do for him what he could do for himself, viz.: To find the witnesses and to ascertain what the character of their testimony will be. (Quirk v. Muller, supra.) The physical condition of the suitor may render this course necessary, as where he has- been wholly disabled by a personal injury. Add to this that he is penniless and cannot pay for such needed services unless he succeeds in establishing his claim for damages, and the making of such a contract is necessarily the only means by which he can gain assistance. The attorney employed on a contingency in the same case may not have the time nor the disposition to find the witnesses and thus prepare the case for trial. Unless the suitor may employ a layman upon a contingency, he is effectually barred of his right. Does the contract in the latter ease have any greater tendency to promote unlawful acts than it has in the other? The attorney may, and frequently does, include in his employment the service of finding witnesses. Does this fact render his contract illegal? We apprehend that no one would assert this. Though the attorney is an officer of the court, he is not for this reason immune from the temptations to which the average man is sub ject. Besides this, his position affords him greater opportunity to make use of “base appliances” than does that of the average layman. Again, take the case of the penniless suitor. If he employs a stranger to find the evidence and promises compensation in any event, he is within the law. Yet the stranger knows very well that he will not receive any compensation unless the suit is won. This conti act in final analysis is in no respect different in its tendency than the one based upon a contingency. In our opinion, no cogent reason can be assigned why, if the one is valid, the other is not equally valid, or why, if the attorney’s contract is unobjectionable, that of the layman is not also. The latter has no greater tendency to taint the administration of justice than has the former. The obligation assumed in either case is to perform a legitimate service.
The fact that the obligee may abuse the contract and make it operate to the public injury does not itself invalidate it. (Greenhood on Public Policy, p. 27.) Parties are entirely free to contract as they please, so long as the particular engagement is not prohibited by law and does not contemplate the doing of any illegal act. That an engagement may be made by its abuse to operate to the public injury is no reason that it should be declared void.
The obligation is upon courts always, in interpreting contracts, to give them such an interpretation as will make them lawful, if this can be done without violating the intention of the parties. In any event a contract will be upheld unless it must receive such an interpretation as will compel the conclusion that it contravenes public policy or some express provision of law. (Lawson v. Cobban, 38 Mont. 138, 99 Pac. 128; Dallas v. Douglas, 45 Mont. 114, 122 Pac. 275; Finley v. School Dist. No. 1, 51 Mont. 411, 153 Pac. 1010.) The contention of counsel is overruled.
We have examined the other assignments, but find none of them of sufficient merit to deserve special notice.
The judgment and order are affirmed.
Affirmed.
Mr. Justice Sanner and Mr. Justice Holloway concur.
|
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MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
The defendant, having been charged with the crime of resisting a public officer while the latter was in the discharge of his duty in attempting to arrest the defendant, was convicted and sentenced to undergo imprisonment in the county jail and to pay a fine. He has appealed from the judgment and an order denying his motion for a new trial. He assails the validity of the conviction on the grounds that the information does not state a public offense, that the court erred to his prejudice in its rulings upon questions of evidence and in its instructions to the jury, and that the verdict is contrary to the evidence. We shall notice only the contention which questions the sufficiency of the evidence, because in our opinion a conviction could not be sustained upon the evidence found in the record, nor upon that supplemented by any other which might be introduced on another trial.
The charge in the information is that the defendant did “willfully, unlawfully, and knowingly resist, delay, and obstruct a public officer named Delos McBride, * * * a duly qualified and acting deputy sheriff, who was then and there in the discharge and attempting to discharge his duty as such deputy sheriff, being then and there engaged in making an arrest of said W. J. Bradshaw for a misdemeanor committed then and there in the presence of said deputy sheriff, to-wit, unlawfully driving cattle from their accustomed range,” etc. McBride attempted to make the arrest without a warrant.
The statute authorizes a peace officer to make an arrest without a warrant under the circumstances indicated in section 9057 of the Revised Codes; among others, “for a public offense committed or attempted in his presence.” Speaking generally, if such an officer has in his hands a warrant fair on its face, issued by a competent court, commanding him to arrest a person named therein, his warrant is his authority, and the person named in it must submit to arrest even though he is not guilty of any offense. The officer, after making his purpose known and exhibiting his warrant, if required to do so, may use force in order to effect the arrest, without subjecting himself to a charge of trespass, provided he uses only such force as is necessary (Rev. Codes, secs. 9062-9064; Sandford v. Nichols, 13 Mass. 286, 7 Am. Dec. 151; Appling v. State, 95 Ark. 185, 28 L. R. A. (n. s.) 548, 128 S. W. 866).
His right to arrest without a warrant, however, is vested in him by law, only under the circumstances defined in section 9057, and if the circumstances do not exist, thus bringing into activity the authority of the law, he has no power to make the arrest. His effort to do so is a trespass upon the right of the citizen to the enjoyment of his personal liberty free from aggression by anyone. In such case the person sought to be arrested may use such force as may be necessary to prevent the arrest, or to effect his escape after arrest. (Miers v. State, 34 Tex. Cr. Rep. 161, 53 Am. St. Rep. 705, 29 S. W. 1074.)
True, the offense for which the arrest is sought may be in the form of resistance or obstruction offered to the officer in an attempt to arrest the defendant or another, or to discharge some duty under civil process (Rev. Codes, see. 8259); but the power to make it must be brought into activity by the actual existence of the emergency pointed out by the law; and upon a prosecution for the offense of resisting an officer, this fact must be established by the same quantum of proof as is required to establish any material fact in any other criminal case. It is not sufficient that the officer believed that the defendant was engaged in a violation of the law, though such belief may have been entertained in the utmost good faith. Such was the rule at common law, and such is the rule under the statute. (1 Wharton’s Criminal Law, 11th ed., see. 136; Sanders v. Davis, 153 Ala. 375, 44 South. 979; Cummins v. State, 6 Okl. Cr. 180, 117 Pac. 1099.)
The officer must also make known his official character, or it must be known to the offender; else there is no obligation upon the latter to submit. (2 Wharton’s Criminal Law, 11th ed., see. 852; Jones v. State, 114 Ga. 73, 39 S. E. 861; Yates v. People, 32 N. Y. 509.)
There is some conflict in the evidence as to whether the defendant was informed of the purpose of the deputy, or presumptively knew of his character and purpose, and also upon the point whether the deputy made a bona fide attempt to effect defendant’s arrest, or went further than to say to him that he was under arrest. It shows without contradiction, however, that the defendant was not engaged in committing any offense, or attempting to commit any.
Section 8858 of the Revised Codes declares: “That any person or persons other than the owner of, or his agents who shall drive any horses, mules or cattle farther from their usual and customary ranges, than the nearest corral, and who shall neglect to return such horses, mules or cattle immediately to their accustomed range, provided they can have the use of such corral shall be deemed guilty of a misdemeanor, and on con viction. thereof before any justice of the peace, in the state of Montana shall be fined in any sum not exceeding one hundred dollars nor less than twenty-five dollars, to be collected as other fines are, and may also in the discretion of the said justice of the peace be imprisoned in the county jail for a term not more than three months, or both. All fines collected under the provisions of this Act shall be paid into the school fund of the county in which the said stock do most usually range and graze.” This provision is the only one in the Codes now in force upon the subject, though the district court and the county attorney both entertained the view that the defendant, by his conduct at the time of his alleged resistance to the officer, was acting in violation of section 8860. The trial court proceeded upon this theory, but that this was erroneous will be made clear by a brief reference to the history of these two provisions. Section 8860 was a part of the Penal Code of 1895, as reported by the Code Commission appointed under the act of March 14, 1889 (Laws 1889, p. 116), and the amendment thereto by the act of March 6, 1891 (Laws 1891, p. 278). It is found in the Penal Code of 1895 as section 1187. When the Codes of 1895 were adopted, the legislature, by an act commonly known as the Omnibus Bill, found in Part V, Title IV, of the Political Code of 1895, and appearing in the Revised Codes as sections 3560-3566, continued in force many of the laws of 1893, among them an act approved March 6, 1893, which is found in the Codes of 1895 as section 1185 (sec. 8858, supra). It is declared by one of the provisions of the Omnibus Bill (Pol. Code 1895, see. 5184 [Rev. Codes, sec. 3564]) that: “If any of the acts or parts of acts herein enumerated are in conflict with, or are inconsistent with, any of the provisions of the said Codes enumerated in section 3563 [Rev. Codes, sec. 5183] of this act, or any of them, the acts or parts of acts herein enumerated are to be considered and construed as amendments to the respeetivé Code or Codes, whose provisions they are in conflict with, or are inconsistent with, it being intended hereby that all of the acts or parts of acts herein enumerated shall be the law of the state of Montana, upon the respective subjects, so far as they are inconsistent with the provisions of the said Codes, or any of them, except as herein provided.” Upon a comparison of the two provisions it becomes apparent, not only that section 8858 is in conflict with section 8860, but so much so that the conclusion is necessary that by the retention of the former the legislature must have intended to supplant entirely the latter. The latter declares that any willful driving of any of the animals enumerated from their customary range without the consent of the owner is a misdemeanor; whereas, under the former, they may be driven away without the consent of the owner, provided this is done under the restrictions imposed, and they are thereafter returned. It is usually the case that animals of different owners customarily graze in common upon the public range. When this is the condition, an owner of a part of the herd can more conveniently and expeditiously separate his from the rest if he may drive the common herd to a near-by corral or other similar inelosure which he can make use of for that purpose, thereafter returning the others to the range. The right to do this was commonly recognized among stockmen in this state at the time the law of 1893 was enacted. By bringing it forward and preserving it in force, it was evidently the purpose of the legislature to give recognition to this custom and denounce as an offense only a violation of it, rather than to declare the more stringent rule found in section 8860. It doubtless also entertained the view that the former would effectively protect the absent owner from loss of his animals by having them driven away and scattered, and at the same time discourage attempted monopoly of the range by a more powerful and aggressive neighbor. It follows, therefore, that the former must be considered the law on the subject with which it deals, though both provisions have been brought forward into the Codes.
It will not be necessary to discuss the evidence in detail. These facts are not controverted: The defendant resides in section 22, township 8 north, range 52 east, being the owner of 400 acres in that section. He owns several other entire sections in that township. He is also the owner of sections 19, 29, 31 and 33 in township 8 north, range 53 east. The intervening sections are owned in whole or in part by other persons. All of section 20 in this township is open public range, except 160 acres covering the north half of the northeast quarter. At the time this controversy arose, this was under the control of J. H. Bickle, the prosecuting witness. He therefore was entitled to use the entire section. Prior to August 17, 1915, section 29 had been open range, and was pastured in common by cattle of the defendant, Bickle, and others who have homesteads or hold land by some sort of ownership in the neighborhood. Bickle resides in section 4, township 7 north, range 53 east, about five miles southeast of Bradshaw. Mrs. Agnes Barter has a homestead filing in section 34, township 8 north, range 53 east, but the entire section was open range at the time stated in the information, affording water and good pasturage. There is evidence that while the cattle in the community more usually ranged upon sections 20 and 29, they also ranged on section 33 until it was fenced by Bradshaw, and also on section 34. For range during the winter of 1914-15 Bickle had held his cattle in the neighborhood of his home upon the section in which he resides, and others toward the north, and thereafter permitted them to run at large on such public lands as were open range to the north and northwest. For the reason that water was more readily accessible in that locality, they drifted toward sections 33, 29 and 20, and further toward the west, which was mainly open range. In the early part of April, 1915, Bradshaw acquired sections 33 and 29. He inclosed section 33 in June or July. At the time this controversy arose he was engaged in fencing 29. The inclosure was completed on August 19. During the progress of this work, friction had developed between him and Bickle by reason of the fact that Bradshaw had, at different times, driven from section 29 the cattle running at large there, including some of Bickle’s. His apparent purpose was to preserve the grass there for his own cattle. The direction in which he drove them depended upon where he found them upon the section. On the afternoon of August 17 the deputy sheriff, who had been informed of the acts of Bradshaw and was on the watch for him, discovered him and his son, both on horseback, rounding up a number of cattle, including some of Bickle’s, near the southeast corner of section 29, and starting them in the direction of section 33. He approached Bradshaw on horseback, and told him not to drive the cattle in that direction, but to drive them to section 20. Upon refusal of Bradshaw to obey, he told him he was under arrest. The latter refused to submit, in the meantime whirling a rope, which he had been using as a quirt. The deputy testified that Bradshaw struck at his horse with the rope, so frightening it that he could not reach Bradshaw to effect his arrest. The deputy then went away, saying that he would have the sheriff come the following day and make the arrest. Bradshaw then drove the cattle through a gap in the fence upon section 33, and thence over upon section 34.
It is the policy of the federal government that the open, unoccupied public lands shall be free to all persons who desire to use them for grazing their stock. This policy is indicated by the act of Congress approved February 25, 1885 (23 Stat. 321, c. 149), prohibiting the erection of inclosures thereon, except by Iona fide settlers or persons intending in good faith to make entry of the area so inclosed. This same policy is indicated by our own statute supra. No one can lawfully exercise control over any of them to the exclusion of others and thus monopolize the use of them. (Buford v. Houtz, 133 U. S. 320, 33 L. Ed. 618, 10 Sup. Ct. Rep. 305.)
Even when one has acquired title to portions of them, these are still open to use by animals running at large, until the owner chooses to make exclusive use of them. The owner is entitled to so use them at any time, for the ownership of property carries with it the right to the exclusive possession and enjoyment of it. (Rev. Codes, sec. 4421.) He may exercise this right either by erecting lawful inclosures or by preventing encroachment by animals running at large, by keeping them driven beyond his boundaries. His right extends no further than to drive them across his own boundaries; but he is not bound to drive them to one portion of their customary range rather than to another.
The purpose of defendant here was, not to monopolize any portion of the public range, nor to drive the cattle away from it, for section 34 was a part of it, but merely to drive them entirely from his own land, leaving them on the range immediately in the vicinity of lands of their owner. This he had a right to do, and in doing so committed no offense.
The judgment and order are therefore reversed, and the cause is remanded to the district court, with directions to discharge the defendant.
Reversed and remanded.
Mr. Justice S'anner and Mr. Justice Holloway concur.
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MR. CHIEF JUSTICE CALLAWAY
delivered the opinion of the court.
While the transactions out of which this prosecution grew were in the making Bert’Rarey, the defendant, was vice-president of the Hardin State Bank. On August 26, 1922, his personal account was overdrawn $1,416.97. Upon that day he drew a draft upon one Voorhees, addressed to the First National Bank of Hysham, for $1,500. The draft was sent for clearance through, and was charged upon the books of the Hardin State Bank to, the Montana National Bank of Billings. Contemporaneously the defendant credited his personal account with $1,500. The. draft having been returned unpaid, the defendant credited the account of the Billings bank with the amount thereof and at the same time charged the “transit account” of the Hardin State Bank with a like amount. The Hardin State Bank then transmitted the draft to the First National Bank of Hysham for payment, but on September 20, 1922, it came back with $2.50 protest fees attached. Thereupon the defendant, by means of a “debit slip” charged the account of J. R. Boyd, a depositor of the Hardin State Bank with the sum of $1,500, credited the “transit account” with the same amount, and charged the protest fee of $2.50 to his own account.
On March 12 the defendant was charged by information with the crime of grand larceny. It was alleged: That on or about the twentieth day of September, 1922, the defendant, as vice-president of the Hardin State Bank, “then and there having in his custody, by virtue of his office in said Hardin State Bank, $1,500 lawful money of the United States of America, and of the value of $1,500 lawful money of the United States of America, did then and there willfully, wrongfully, unlawfully, and feloniously appropriate to his own use, take, and steal the sum of $1,500 lawful money of the United States of America, and of the value of $1,500 lawful money of the United States of America, then and there the property of the said Hardin State Bank, a corporation, with intent in him, the said Bert Rarey, to appropriate the same to his own use, and to deprive the true owner of its said property, and to steal the same.”
The defendant pleaded not guilty. Trial ensued, as a result of which he was found guilty and judgment was rendered against him. A new trial was denied him. Then he appealed from the judgment and the order denying his motion for a new trial.
Upon the trial it was the state’s theory that the crime was committed when the defendant wrongfully charged Boyd’s account with the sum of $1,500 which he placed to the credit of the “transit account,” thereby covering the amount of the Yoorhees draft.
The court instructed the jury: That every person acting as the officer of any bank or corporation, “who secretes, withholds, or otherwise appropriates to his own use, or that of any person other than the true owner, or person entitled thereto, any money, goods, thing in action, security, evidence of debt or property, or other valuable thing, or any proceeds thereof, in his possession or custody, by virtue of his office, employment, or appointment, is guilty of larceny in such degree as is herein prescribed with reference to the value of such property. ’ ’ The foregoing language is a part of section 11382, Revised Codes of 1921. The court added: “Grand larceny is larceny committed * * * when the property taken is of value exceeding $50.”
The jury was advised: “In this case you are not concerned with any loss or damage that may have been sustained by J. R. Boyd through the operations of the defendant. The defendant is charged with a larceny of the sum of $1,500, lawful money of the United States of America, from the Hardin State Bank, and, unless you find beyond a reasonable doubt from the evidence in this case that the defendant actually took and appropriated to his own use money belonging to the Hardin State Bank then you must acquit the defendant.”
And also: “You are instructed that before you can find the defendant guilty you must find from the evidence beyond a reasonable doubt that the defendant actually took and appropriated to his own use lawful money of the United States of America to the amount of $1,500, the property of the Hardin State Bank.”
Now, upon the record, was the defendant guilty of the crime of larceny? That he did not “actually take” from the bank $1,500 in money is conceded. But it is said by making the debit and credit entries aforesaid in effect he did steal from the bank that much money.
It was the defendant’s contention upon the trial, and is his contention on this appeal, that the evidence introduced by the state was insufficient to justify a verdict of guilty of the offense charged in the information, and that there was a fatal variance between the allegations of the information and the proof introduced by the state.
A brief discussion of some of the fact conditions may be helpful. J. R. Boyd had deposited money with the Hardin State Bank. When he did so he parted with the title to the specific money he deposited; it then became the property of the bark. (In re Williams’ Estate, 55 Mont. 63, 1 A. L. R. 1639, 173 Pac. 790.) The relation of debtor and creditor then existed between the bank and Boyd. The bank was obligated to repay him the money upon his demand; he was a general creditor of the bank in that amount. (Stankey v. Citizens’ National Bank of Laurel, 64 Mont. 309, 209 Pac. 1054.) On the morning of September 20, 1922, the bank owed bim $1,936.87, and the bank books showed that he had credit in that amount. The boobs of a bank are simply the means employed by the bank to show the condition of its business. The defendant by debiting Boyd’s account $1,500 caused the books to show a credit due Boyd of $436.87 only.
If wrongfully and without authority from Boyd the defendant changed the books to show a less amount due Boyd than Boyd was entitled to the wrongful act did not alter the true condition in the least; the bank still owed Boyd $1,936.87 — actually he still had that amount of credit.
The defendant was himself a customer of thé bank, main taining an open account with it. He was prohibited by law from overdrawing his account; by the provisions of section 6055, Revised Codes of 1921, any officer of a bank “who knowingly overdraws his account with such bank, and thereby obtains the money, notes or funds of any such bank” is guilty of a misdemeanor. According to the record the defendant for several weeks prior to August 26, 1922, had been overdrawing his account. It constantly increased day by day until it reached the sum of $1,416.97. But in overdrawing his account in this fashion he was not guilty of larceny; he was simply guilty of a specific crime which the statute made punishable as a misdemeanor. So on August 26 the relation of debtor and creditor existed between him and the bank. He owed the bank $1,416.97. But it is not asserted that he had stolen any of that money.
If the draft which he made upon Voorhees had been paid, it would have wiped out the overdraft. When defendant credited his account with the amount of the draft on August 26, he then had an apparent credit in place of an overdraft on the books. If the draft were dishonored, defendant still would owe the bank $1,416.97. The draft having been returned through the Billings bank, was again sent to the Hysham bank as we have seen, returning for the last time on September 20. During the period of time between August 26 and September 20 the defendant deposited from various sources which are not questioned, $857.49, but on September 20 his account was again overdrawn $232.77. Without the credit furnished by the Voorhees draft the defendant had considerably increased his overdraft. He had the right to draw checks against his account so long as he had credit (a real credit) upon the books of the bank. When he again overdrew knowingly, he again committed a misdemeanor. It is not asserted that the new overdraft in amount $232.77 affected the situation in any way. It merely increased defendant’s indebtedness to the bank.
It was not contended upon the argument, nor is it in the attorney general’s brief, that the Voorhees draft was not drawn in good faith; nor is it contended that defendant stole the money he obtained from the checks he drew against his account prior to September 20. As a matter of fact, it seems the president and cashier, as well as the defendant, all were more or less actively engaged in the management of the bank, and there is nothing in the record to indicate otherwise than that the president and cashier acquiesced in, or at least winked at, defendant’s continued practice of overdrawing his account.
The debit slip whereby defendant charged Boyd’s account with $1,500 came to the attention of the president and cashier on the day it was made. The cashier called it to the attention of the president and the latter spoke to defendant about it. The defendant wrote “O. H.” and his name upon the credit slip and no further question was raised concerning it at the time. Undoubtedly the explanation for this is that the president and cashier thought defendant was authorized to make the charge because of the very friendly business and personal relations which they knew existed between the defendant and Boyd.
The debit slip was included with Boyd’s canceled cheeks which were returned to him with his bank statement about October 1. On receipt of the statement Boyd, according to his testimony, called the defendant on the telephone and asked him what the $1,500 debit meant. It is unnecessary to detail the conversation which ensued. It is sufficient to say that the defendant did not attempt to assert that he had made the charge against Boyd pursuant to authority previously granted him, but he did contend that Boyd approved and ratified the transaction during the conversation. Boyd’s version of the conversation is Hot altogether clear, but it may be said that in some measure at least he denied that he had ratified or approved what the defendant had done. Upon this feature of the case the - evidence is somewhat in conflict. However, the jury did not accept the defendant’s explanation of his purpose and motives in debiting Boyd’s account.
The state does not assert that on September 20, before he debited the account of Boyd, defendant was guilty of larceny. These were the conditions then: The defendant was indebted to the bank on account of his overdraft; the books showed his account overdrawn $232.77; if the Voorhees draft and the “transit account” transaction be disregarded, he actually was overdrawn $1,732.77; he owed the bank that much money. Now when he took the $1,500 credit from the Boyd account, which he credited to the “transit account” — in effect to his own — and this without previous or subsequent authority from Boyd, he did not change the bank’s indebtedness to Boyd, nor his own to the bank in any degree.
Mr. Skaug, the cashier, in answer to the question, “Do the hooks and records of the Hardin State Bank show that Mr. Rarey on that date, or at any time, ever took $1,500 of the moneys of the Hardin State Bank?” answered, “No, sir.” Further he said: “There was mi cash in this transaction; it was a question of credit items. It was the debits and credits of the bank that were changed. The cash account did not fluctuate by virtue of the accounts being transferred as to debit and credit. ’ ’
Even if the defendant without authority took from Boyd’s account a credit which he applied to his own this did not constitute larceny from the bank. That he injured Boyd may be conceded, but of what did he thereby deprive the bank ? True, the bank was liable to Boyd for the $1,500 but its liability in that respect was not changed by what the defendant did. No single act of the defendant after the creation of his overdraft altered or changed the bank’s position or injured it in any manner whatsoever, so far as the record discloses.
It is clear that, upon the facts and circumstances in the record the transfer of this credit on the books of the bank did not constitute, nor was it equivalent to, appropriation of money by the defendant. It may be that he willfully misapplied a credit belonging to another (although we have not found any Montana statute constituting such act a crime), and it may be that he made a false entry upon the books of the bank, but neither of these acts ,qs comprehended by the information.
Counsel have discussed the meaning of the term “credit” as defined in section 1996, Revised Codes of 1921; “credits” (Clark v. Maher, 34 Mont. 391, 87 Pac. 272); “money” and “credits” (Mason v. State (Okl. Cr. App.), 212 Pac. 1028); and “moneys, funds and credits” as employed in section 5209, U. S. Rev. Stats., being U. S. Comp. Stats., section 9772 (United States v. Smith (D. C.), 152 Fed. 542), but the discussion has not proved useful in reaching a determination of this ease. Indeed, as counsel for defendant says, the case is unusual. Neither side has cited us to a similar case, and we have not been able to find any.
We again call attention to the law which demands that before one may be convicted he must be' directly, plainly and specifically charged with the commission of a certain crime and the crime charged must be proved substantially as alleged. (State v. Keerl, 29 Mont. 508, 101 Am. St. Rep. 579, 75 Pac. 362; State v. Wallin, 60 Mont. 332, 199 Pac. 285.)
Rehearing denied February 26, 1925.
Not under any theory of the ease which it seems permissible to evolve from the fact conditions presented may this conviction based upon this information be allowed to stand. Therefore the judgment is reversed, and the cause is remanded to the district court of Big Horn county with directions to dismiss the information and discharge the defendant.
Reversed.
Associate Justices Holloway, Stark and Matthews 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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] |
HONORABLE JOSEPH R. JACKSON, District Judge,
sitting in place of MR. JUSTICE GALEN, absent on account of illness, delivered the opinion of the court.
Action on a promissory note in the sum of $3,000, made and executed July 6, 1920, and due one year after date, given by Moses D. Jardine to the Yellowstone Packing Company for twenty shares of its capital stock. It is alleged that before maturity, and for value, the packing company sold the note to the South Side State Bank with indorsement: “Without recourse, pay to the order of the South Side State Bank. Yellowstone Packing Company, by J. B. Henderson, President.” There is also an indorsement in blank, “Moses D. Jardine,” said to have been made at the time of the execution and delivery of the note.
The complaint contains the usual formalities proper to an action of this character; that plaintiff is the owner and holder of the note; that nothing had been paid on principal or interest; demand made and relief sought.
By answer Jardine admits the corporate capacity of the plaintiff; that he signed his name on the face of the note; that demand was made by plaintiff and demand refused, and denies all other allegations. As a further answer defendant sets up that the J. B. Henderson mentioned in the complaint and one Blake came to the Jardine ranch in the Big Hole Basin, Beaver-head county, Montana, authorized to sell the corporate stock of the Yellowstone Packing Company, and in soliciting the defendant to buy twenty shares of the stock represented and warranted that it had the value of $3,000 and upwards; that it was then earning large dividends; that if defendant would subscribe for twenty shares and give his note he would receive therefor a stock certificate, and afterwards large dividends, and that every year thereafter the Yellowstone Packing Company would purchase all the livestock that defendant and his neighbors had to sell, and for which they would pay a higher price than would be paid by others. Defendant further alleges that the corporate stock did not then have nor since has had any value; that no stock certificate, dividends, proceeds or thing of value was ever paid to or received by him; that no buyer for the Yellowstone Packing Company since the execution of the note has offered to purchase or purchased any of the livestock of defendant or his neighbors, although every year since the note was executed they had been the owners of suitable livestock, and were ready, willing and able to sell it at a reasonable price; that no consideration ever did exist for the execution of the note, the ownership of which by plaintiff is denied. Issue was joined, and trial had by jury.
The record discloses, on the part of the plaintiff, that it received the note from the Yellowstone Packing Company on June 8, 1921, as part of collateral security for a loan to it for $10,000, and continuously thereafter owned and held it without notice of infirmity or defect in title, and that no part of principal or interest had been paid. The defendant’s case shows that defendant signed the subscription note July 6, 1920, and also an application to the packing company by which he subscribed for and agreed to purchase twenty shares of its stock at $150 per share, payable according to the terms of the note. Defendant testified: “As to what was the occasion of my giving this note and signing it on the face, I will say that I gave it for what I thought was a pretty good proposition from what they represented to me.” No stock certificate was ever offered or delivered to the defendant. Some testimony was had on the part of the defendant concerning the physical value of the plant of the Yellowstone Packing Company, all of which was lower than the $600,000 value placed upon it, according to the defendant, by Henderson and Blake.
Defendant testified that on the evening of July 27, 1921, Henderson came to his place and wanted him to renew his note, and after that time he had correspondence from the Yellowstone Packing Company with reference to the payment of the note, and also had a letter from the bank inclosing two notes as renewals for the original, both payable to the packing company at the plaintiff’s bank. Defendant paid no attention to the notes or correspondence.
After both sides had closed, the court-, upon motion, directed verdict for plaintiff, and from the judgment defendant appeals.
Error is urged on the insufficiency of defendant’s testimony to take the case to the jury upon the questions of fraud in the inducement, lack of consideration and plaintiff’s ownership of the note.
With respect to consideration, defendant under his own testimony affixed his name to the note with a knowledge and understanding that he was purchasing the stock, but that the certificate for it was not to be delivered to him until the note was paid. That the stock stood in his name on the company books is indicated by the issuance to him of a proxy, and that he considered himself the owner is shown by his signing the proxy and returning it to the company. .
In an action on a note given for corporate stock it is not necessary to have tendered the certificate, which in fact is but evidence of ownership, without a demand having been made, or unless the contract calls for it. (Gallatin County Farmers’ Alliance v. Flannery, 59 Mont. 534, 197 Pac. 996.)
In this ease the defendant made application for the purchase of the stock, and the same was approved by the corporation in the acceptance of the note by the agent of the company in payment. This constituted a sale. (Gallatin County Farmers’ Alliance v. Flannery, supra; Majors v. Girdner, 31 Cal. App. 47, 159 Pac. 826.) As to plaintiff’s ownership of the note, there is nothing in the record to justify its submission to the jury. The conversations related and the correspondence had could in no event change the character of the instrument as indorsed.
With respect to fraud in the inducement, the record merely shows that Henderson and Blake informed defendant it was worth $150 per share, had paid twenty per cent dividend the previous year, and that they expected it would be better that year. As to what the stock was really worth outside its par value, as to whether or not the Packing Company paid twenty per cent or nothing, the record is barren. Defendant’s own testimony that the sellers “expected” the dividend to be higher in the future than twenty per cent is merely the expression of a wish or hope, and cannot be construed as actionable fraud. (Citizens’ State Bank v. Snelling, 55 Mont. 476, 178 Pac. 744.)
The judgment is affirmed.
’Affirmed.
Mb. Chief Justice Callaway and Associate Justices Rankin, Holloway and Stark concur.
|
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MR. CHIEF JUSTICE CALLAWAY
delivered the opinion of the court.
Judgment was pronounced against William Peters and Ed. Adams upon the verdict of a jury finding them guilty of maintaining a common nuisance. They moved for a new trial, which was denied. They have appealed from the judgment and from the order denying them a new trial.
1. The information charged that these men, between certain dates, did knowingly, willfully, unlawfully and wrongfully conduct and maintain a place where intoxicating liquors were then and there sold, kept and bartered. The information describes a building, together with its additions and outbuildings.
The statute, section 11066, Revised Codes of 1921, declares in part that any room, house, building, structure or place where intoxicating liquor is manufactured, sold, kept or bartered, “in violation of this Act,” is a common nuisance, “and any person who maintains such a common nuisance shall be guilty of a misdemeanor.”
There was direct evidence tending to show that both de fendants during the times and at the place mentioned in the information had sold intoxicating liquors to divers persons. In addition, against objection, the state was permitted to show that the general reputation of the building during the period covered by the information was that it was a place where intoxicating liquors were kept, sold and bartered. This was error. The question at issue was whether the defendants had committed acts which under the statute created a nuisance. Neither the reputation of the defendants nor of the place is a constituent part of the offense charged. The offense may not be proved by hearsay evidence, and evidence as to general reputation is, of course, pure hearsay.
In a prosecution against a person for maintaining a liquor nuisance and in the absence of a statute permitting evidence of the general reputation of the place where the nuisance is alleged to have existed, such evidence is inadmissible. Indeed, this is the well-nigh universal rule with respect to common nuisances in general, although there are some exceptions. (Wharton’s Criminal Evidence, 10th ed., sec. 255; Greenleaf on Evidence, Lewis’ ed., sec. 186; 7 Ency. of Ev. 742; Elliott on Evidence, sec. 3063; 33 C. J. 755; State v. Foley, 45 N. H. 466; Overstreet v. State, 3 How. (Miss.) 328; Cook v. State, 81 Miss. 146, 32 South. 312; State v. Fleming, 86 Iowa, 294, 53 N. W. 234; Commonwealth v. Eagan, 151 Mass. 45, 23 N. E. 494; Hookman v. State, 59 Tex. Cr. 183, 127 S. W. 825; Commonwealth v. Hopkins, 2 Dana (Ky.), 418; Cook v. Commonwealth, 159 Ky. 839, 169 S. W. 553; State v. Brooks, 74 Kan. 175, 85 Pac. 1013; People v. Johnson, 63 Cal. App. 178, 218 Pac. 449; State v. Springs, 184 N. C. 768, 114 S. E. 851.) In the last case cited the court overruled State v. McNeill, 182 N. C. 855, 109 S. E. 84, a liquor case, in which it had held testimony concerning the general character of the defendant’s place admissible. In State v. Springs witnesses were permitted to testify that Springs’ place had a bad reputation for whisky selling. The court, speaking through Hoke, J., said: “With certain recognized exceptions, applicable chiefly in civil causes, and unless expressly made so by statute, hearsay evidence is not competent in the trial of issues determinative of substantive rights, a position particularly insistent where such issues involve the life or liberties of the litigant.”
Mr. Wigmore says: “The offense of being a common thief, a common gambler, or other common offender, or of keeping a common nuisance, e. g., a place for illegal sale of liquor or drugs, is one which by some courts, sometimes under statute, has been regarded as provable by reputation”; and then he adds this significant sentence, “but perhaps the notion here enters that reputation is a part of the issue.” (Wigmore on Evidence, 2d ed., sec. 1620 (3).)
The supreme court of Oklahoma, in Sibenaler v. State, 16 Okl. Cr. 576, 185 Pac. 448, a case somewhat similar to this, held evidence of the general reputation of the place where liquor was sold admissible, following Ostendorf v. State, 8 Okl. Cr. 369, 128 Pac. 143, which followed Carroll v. State, 4 Okl. Cr. 246, 111 Pac. 1022, and Titsworth v. State, 2 Okl. Cr. 282, 101 Pac. 293; rejected similar testimony in Mitchell v. State, 9 Okl. Cr. 172, 130 Pac. 1175, where the defendant was prosecuted under a statute which condemned as a vagrant “any person who is a professional gambler”; extended the doctrine in Ward v. State, 15 Okl. Cr. 150, 175 Pac. 557, where the defendant was prosecuted for having unlawful possession of intoxicating liquors.
Without attempting to analyze these Oklahoma cases, we deem it sufficient to say that all except Mitchell v. State are not only contrary to -the overwhelming weight of authority but they establish a rule of evidence which, according to the general voice, it is the province of the legislature to establish if the people desire to relax the well-known rule which excludes this character of testimony.
In a number of states statutes have been passed authorizing the reception in evidence of general reputation in common offender and common nuisance cases (Wigmore 'on Evidence, sec. 1620 [3], and note), certainly persuasive that evidence of the character we are discussing was not deemed admissible in those states in the absence of statute.
A well-established exception to the rule permits the state in the prosecution of one charged with keeping a house of ill fame to introduce as corroborative evidence the general reputation of the house itself. The reasons for the exception are well presented in State v. Hendricks, 15 Mont. 194, 48 Am. St. Rep. 666, 39 Pac. 93. And some courts apply the doctrine to “disorderly houses,” but here the authorities are in sharp conflict, the cases in many instances turning upon the language of the applicable statutes. (See Wharton’s Criminal Evidence, 10th ed., sec. 261, and cases-cited; Elliott on Evidence, sec. 3063, and cases cited.)
In abatement eases evidence of the general reputation of the place sought to be abated is admissible — probably in the absence of statute. (State v. Mercier, 70 Mont. 333, 225 Pac. 802.) But here it may be noted that section 11127, Revised Codes of 1921, which is a part of Chapter 30, relating to nuisances, provides that in an action to abate a nuisance “evidence of the general reputation of the place shall be admissible for the purpose of proving the existence of said nuisance.” The action contemplated is of an equitable nature, but if it should be thought desirable by the legislative assembly that body might with propriety extend the operation of the statute so as to permit the reception of evidence of that kind as corroborative in nuisance cases of a criminal character.
We cannot assent to the proposition that even if the admission of this evidence was error, it was not prejudicial. The defendants, while admitting they had served drinks to patrons of the place, attempted to maintain that all they sold was “soft drinks”; they denied that they had ever sold intoxicating liquor of any kind there. The weight of their testimony was for the jury’s determination. We cannot say that- there was not a substantial conflict in the evidence upon this vital point; consequently we are not in a position to say that the erroneously admitted evidence was not sufficient to tip the scales against the defendants.
2. The defendant Peters styled himself a day clerk in this establishment, while Adams said he was night clerk. They contended that they were mere employees of one Mickey Howard, who they asserted was proprietor of the place, and that they had nothing to do with conducting or maintaining it. But defendant Peters testified that Howard was absent for some three weeks, during which time he, Peters, when on shift had general supervision and charge of the entire place. Defendant Adams testified he worked during Howard’s absence. He denied that as night clerk he had full charge of the place, saying that it “automatically ran itself”; but he had the combination to the safe, and admitted that he was working on a percentage basis,- — that is, he received a percentage from the liquids sold. It is clear, despite his denials, that while he was on shift he and no other had charge of the place. If, then, these defendants, in the capacities in which admittedly they served, sold intoxicating liquor in the place mentioned in the information, they were guilty of maintaining a nuisance as charged in the information. (People v. Frankovich, 64 Cal. App. 184, 221 Pac. 671; State v. Pistona, 127 Wash. 171, 219 Pac. 859.)
3. The court correctly charged the jury that all persons concerned in the commission of a crime, whether it be a felony or misdemeanor and whether they directly commit the act constituting the offense, or aid and abet in its commission, are principals in any crime so committed. (Sec. 10732, Rev. Codes 1921.) The court defined the word “maintain” in the language of the first part of an instruction which appears in State v. Pistona, supra. In its opinion in that case the court quotes the 'Washington statute, observing, “So far as we are aware, no other statute is worded just as ours is.” In an instructive opinion in which the statute is construed and many authorities are reviewed the court sustained the instruction.
It is not necessary to extend this opinion with an analysis of that portion of the instruction which was given by the court in the case at bar. Suffice it to say that in our judgment it does not adequately define the word “maintain” as employed in our statute, section 11066, supra.
Counsel for defendants offered an instruction explaining the meaning of the word “maintain” correctly, but added thereto a complex sentence in which he attempted to cover the provisions of section 10732, supra. In doing so he rather confused than clarified the definition of the word. Error was not committed in refusing this instruction. As the ease must go back for a new trial it is suggested that the court in explaining the meaning of the word “maintain” as employed in the statute might use to advantage that part of the offered instruction which precedes the complex sentence above referred to.
4. Complaint was made because the court admitted in evh dence four bottles of intoxicating liquor which were seized on January 15, 1924, upon the occasion of a raid made upon the premises, and which was within the period covered by the information. Apparently these bottles were taken from a beer case which was outside the building but in close proximity to it. At that time the officers searched the building from top to bottom but were unable to find intoxicating liquors of any kind. There was evidence tending to show that just prior to the raid intoxicating liquors were being served in the building, and there was some testimony tending to identify one of the bottles as having been in use at the very time the officers entered the building. The circumstances indicated strongly that the beer case in which the bottles were found was used as a place of concealment for liquor by those who were in charge of the building. Under these circumstances the bottles were admissible in evidence. The law is that, as tending to show the maintenance of a liquor nuisance, evidence is admissible which shows the discovery of intoxicating liquor on premises occupied or controlled by defendant; and evidence may be admitted of the finding of liquor in a place other than the defendant’s house or place of business, provided it be shown that defendant used such other place, or resorted thereto or had access thereto, and there is evidence tending to connect him with the liquor discovered. (33 G. J. 753, 754; State v. Sawyer, 71 Mont. 269, 229 Pac. 734.)
The judgment is reversed and the cause is remanded to the district court of Hill county with direction to grant the defendants a new trial.
Reversed and remanded.
Mr. Justice Stark and Honorable Frank P. Leiper, District Judge, sitting in place of Mr. Justice .Holloway, disqualified, concur.
Mr. Justice Galen, being absent on account of illness, takes no part in the foregoing decision.
Mr. Justice Rankin, being disqualified, takes no part in the foregoing decision.
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] |
MR. JUSTICE MATTHEWS
delivered the opinion of the court.
On January 3, 1922, respondent commenced an action against appellant on an open account, and prayed for judgment for the amount stated and interest at eight per cent from December 20, 1921. On February 17, 1922, appellant joined issue by general denial. Nothing further was done until some time in December, 1923, when, it appears, the cause was set for trial. On December 28, 1923, appellant filed and served notice of motion and motion for leave to file a supplemental answer, tendering therewith his proposed a!nswer, alleging that on April 7, 1922, he was duly adjudged a bankrupt, and on the eighteenth day of July, 1923, he was finally discharged from all debts and claims, including that of respondent. The motion was regularly heard, and by the court denied, and on January 14, 1924, the cause was tried on the complaint and original answer, resulting in a verdict for respondent for the full amount claimed but without mentioning interest. On this verdict the trial court entered judgment for the amount stated “with interest thereon at the rate of eight per cent from December 20, 1921, until paid.” The appeal is from the judgment.
Appellant assigns error: (1) On the court’s refusal of leave to file the supplemental answer; and (2) the entry of judgment ‘ ‘ for more than is contained in the verdict. ’ ’
Considerable space is devoted in counsel’s briefs as to the effect of bankruptcy proceedings on an attachment; there is nothing in the record before us, however, even intimating that a writ of attachment was issued in this case, or that any property of appellant was ever seized or held under attachment. This question, therefore, is not before us.
1. Appellant’s motion for leave to file a supplemental answer was supported by the affidavit of one of counsel in the cause who also appeared as attorney for appellant in the bankruptcy proceedings; yet there is nothing in this affidavit, nor in the record, attempting in any manner to explain or excuse the delay of more than twenty months after he was adjudged a bankrupt, and of more than six months after his final discharge, in moving for such leave. From the record we may be justified in assuming that those proceedings were instituted for the very purpose of preventing the trial and entry of judgment in this action, and, had counsel acted promptly, there would have been no question of his right to set up the matters in a supplemental answer, or that a denial of that right would have been an abuse of discretion.
Our statute provides that: “The plaintiff and defendant, respectively, may be allowed, on motion, to make a supplemental complaint, answer, or reply, alleging facts material to the cause occurring after the former complaint, answer-, or reply.” (Sec. 9181, Rev. Codes 1921.) And, in the words of the supreme court of California: “It cannot be doubted that it is an abuse of discretion for a trial court to refuse leave to a defendant to set up by supplemental answer a bankruptcy discharge obtained subsequent to the commencement of the action, as a bar to any personal judgment, where proper application is made therefor within a reasonable time after obtaining such discharge.” (Jensen v. Dorr, 159 Cal. 742, 116 Pac. 553.)
However, by the wording of the statute as well as under the authorities, including Jensen v. Dorr, supra, the filing of such a pleading is not a matter which the party may demand as of right, but one which may be granted in the discretion of the court. (Alexander v. Clarkson, 96 Kan. 174, 150 Pac. 576; Pollmann v. Livingston, 17 App. Div. 528, 45 N. Y. Supp. 704; Harding v. Minear, 54 Cal. 502; Scoland v. Scoland, 4 Wash. 118, 29 Pac. 930.) And, in order to entitle a party to favorable action, the motion must be made “within a reasonable time after the facts material to the cause” come to the knowledge of the moving party. (Lincoln v. Sibeck, 27 Cal. App. 61, 148 Pac. 967; Balk v. Harris, 130 N. C. 384, 41 S. E. 940; Cahaba S. M. Co. v. Pratt, 146 Ala. 245, 40 South. 943.)
In the case of Lincoln v. Sibeck, supra, the court said: “The record does not show any sufficient reason why the proposed supplemental answer had not been filed before the case was set down for trial, and it cannot be said that the court * * * ' abused its discretion in refusing to allow such answer at the time when presented.”
"What is a “reasonable time” in any given case, of course, depends largely upon the facts and circumstances surrounding the motion. A logical and fair test is laid down in Henderson v. Daniels, 62 Mont. 373, 205 Pac. 967, to-wit: “ ‘Reasonable time’ is defined to be so much time as is necessary, under the circumstances, to do conveniently what > the contract or duty requires should be done in a particular case.”
The motion for leave to file a supplemental pleading is analogous to a motion for leave to amend, and, while this court has not heretofore been called upon to pass on the question of reasonable time as to the former, it has commented on untimely application in the latter. Thus, in Cullen v. Western Mortgage etc. Co., 47 Mont. 513, 134 Pac. 302, this court, held that where “no showing whatever was made by the appellant in support of .Ms application; no explanation or excuse was offered for the delay in making the same” and “ * * * at ^me application was made the appellant’s answer had been on file for something like four months and a half * * * ” the court may not be said to have abused its discretion in denying the application for leave to amend. Here the delay was for a greater time, and the demand for prompt action more imperative than in the Cullen Case.
The discretionary power of the trial court can only be reviewed on appeal on a showing of its abuse or its exercise in violation of established rules. (Mayger v. St. Louis M. & M. Co., 68 Mont. 492, 219 Pac. 1102; Marcellus v. Wright, 65 Mont. 580, 212 Pac. 299; Miller v. Fraley, 23 Ark. 735; Harding v. Minear, supra; Union Pacific v. Andrews, 41 Kan. 370, 21 Pac. 276.) No such showing was made in this case, and, therefore, no error was committed in denying the motion.
The entry of a personal judgment in the case, as tried, was proper.
2. The second assignment is that the court should not have included interest in the judgment, on a verdict silent as to interest. This respondent conceded in open court.
The cause is therefore remanded, with direction to modify the judgment by striking out the words “together with interest thereon at the rate of eight per cent from December 20, 1921, until paid,” and, as modified, the judgment will be affirmed.
It appearing that all the relief here accorded appellant could have been readily secured by application to the trial court, respondent is awarded his costs on appeal, as on a full affirmance of the judgment.
Affirmed.
Mr. Chief Justice Callaway and Associate Justices Holloway and Stark concur.
Mr. Justice Galen, being absent on account of illness, takes no part in the foregoing decision.
|
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PER CURIAM.
Upon motion of respondent, the appeal herein is- hereby dismissed for failure of appellant to file transcript in time.
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] |
Opinion
PER CURIAM.
Quo warranto to try title to the office of sheriff of Silver Bow county. The relator and the respondent were candidates for said office at the last general election upon the Republican and Democratic tickets, respectively. There was also a candidate of the Socialist party, but the vote cast for him was not sufficient to make the same an element in this controversy. Upon the final canvass it was found and declared that the relator had received 8,951 votes and the respondent 9,990 votes, an apparent plurality for the respondent of 1,039. But among these were the votes — 9,282 in number — cast by means of voting machines in twenty-eight of the sixty-eight precincts of the county, of which votes so cast the relator received 3,986 and the respondent 5,296; and, if said votes be all rejected as illegal, the relator stands elected by a plurality of 271 votes and is thus entitled to the office.
The questions presented are the same, and they are presented in the same way, as in State ex rel. Fenner v. Keating, ante, p. 371, 163 Pac. 1156. On the authority of that decision, the demurrer to the complaint herein is sustained, and it is adjudged that this proceeding be dismissed.
Dismissed.
|
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the' court.
For a considerable period of time the Postal Telegraph-Cable Company has maintained its telegraph lines from Butte through Silver Bow junction to points within and without this state, and has conducted a general telegraph and cable business, sending messages to and receiving messages from points throughout the world. For two years or more the defendants have owned the Pioneer and Jessie Placer claims, located between Butte and Silver Bow. Prior to the fall of 1914 the telegraph company’s pole line and wires followed generally the road between those two points and crossed the Pioneer claim. About November, 1914, the company changed the route of a portion of its line and crossed the Jessie Placer without having obtained a right of way. Negotiations failed to settle the controversy which followed, and defendants destroyed a portion of the line across the Jessie claim and upon their threats to prevent the company from repairing the line, or using the line over either claim, this suit was instituted to secure an injunction. About the same time plaintiff instituted a proceeding in eminent domain to condemn the right of way occupied by it over each of those placer claims. A hearing was had in this suit upon plaintiff’s application for an injunction pendente lite, but the applica tion was denied, the order to show cause was discharged and a temporary restraining order theretofore issued was dissolved. From the order plaintiff appealed.
The application for the temporary injunction was addressed to the sound, legal discretion of the trial court, and unless it is made to appear that such discretion was abused, the order will be approved. The purpose of an injunction pendente lite is to maintain the status quo until the relative rights of the parties can be determined by a trial on the merits. (Donlan v. Thompson Falls Copper & Mining Co., 42 Mont. 257, 112 Pac. 445.) To secure an injunction, the party applying for it has the burden of establishing a prima facie right to the relief. To apply these rules in the present instance, it is necessary to consider the relationship of the plaintiff to each of the placer claims separately.
1. Pioneer Placer. It .appears reasonably certain from the evidence introduced upon the hearing below that the plaintiff’s pole line and wires have been in place and in constant use over the same course across the ground now occupied by the Pioneer Placer for at least sixteen years, and that the Pioneer Placer was not located until about 1904. When that claim was located, the ground must have been open, public land of the United States, and while it is not necessary or proper — in advance of a trial of this cause upon the merits — to determine whether plaintiff has a right of way over that claim by virtue of the congressional grant contained in section 5263, U. S. Rev. Stats. (7 Fed. Stats. Ann., p. 205; U. S. Comp. Stats. 1913, sec. 10,072), it is sufficient for the purposes of this appeal to know that plaintiff was in the actual occupancy of the right of way for its lines over this property, before the claim was located and at a time when the ground was public land to which the congressional grant would apply under appropriate circumstances. Added to this, the fact that plaintiff is a public service corporation and that the character of its business is such that public interest will suffer from an interruption, the case-made presents a proper subject for equitable interference by injunction, until such time as the relative rights of the parties can be heard and determined upon the merits. (Pennsylvania R. Co. v. Ohio River etc. R. R. Co., 204 Pa. 356, 54 Atl. 259; Gurnsey v. Northern California Power Co., 160 Cal. 699, 36 L. R. A. (n. s.) 185, 117 Pac. 906.)
The trial court was doubtless influenced by the fact that upon this hearing plaintiff introduced in evidence its complaint in the condemnation proceedings, and thereby disclosed that by seeking -to condemn the same right of way over the Pioneer Placer which it now claims, it impliedly admits defendants ’ ownership and the absence of any right on its own part. However inconsistent these positions may appear on the face of the records, we think the allegations of the complaint in the condemnation proceedings cannot be held to amount to an admission that plaintiff is a trespasser upon this claim. It is possible to reconcile the allegations of the complaint with the contention now made, and apparently sustained by the evidence, that plaintiff’s original entry upon the ground now covered by the Pioneer Placer was made under some color or claim of right.
2. Jessie Placer. The evidence discloses that plaintiff erected its telegraph line across the Jessie Placer in the fall of 1914 at a time when the ground was held by defendants under patent from the United States; that the work was all done and the line installed and in operation before any of the defendants knew that an invasion of their property was contemplated; that no attempt was made to secure a right of way; that no permission was sought for the entry upon this claim and no offer of compensation made. The plaintiff appears to be a naked trespasser upon this ground, without even a semblance of a claim to the right of way occupied by it and without any defense whatever for its high-handed, unlawful act. If the maxim, “He who comes into a court of equity must come with clean hands,” ever possessed any virtue, this case presents circumstances which command its application.
In laying the foundation for its application for equitable relief, plaintiff disclosed that its property which it seeks to have protected is upon defendants’ land without a semblance of right. It cannot be heard to urge .the public character of its business as a justification for its trespass. “No one can take advantage of his own wrong.” (Eev. Codes, see. 6185.) While tacitly-admitting its wrongful occupancy of this claim, plaintiff nevertheless insists that having commenced condemnation proceedings to condemn the right of way, a court of equity, out of consideration for the public character of its business, ought to maintain the status quo until the question of damages can be determined. It would seem to be sufficient answer to say that plaintiff should have reversed the order and secured the right of way by purchase or condemnation before it occupied it. Whether the question of damages will be the only one raised in the eminent domain proceedings cannot be determined from this record.
Section 14, Article III, of our state Constitution provides: “Private property shall not be taken or damaged for public use without just compensation having been first made to or paid into court for the owner.” In Flynn v. Beaverhead County, 49 Mont. 347, 141 Pac. 673, we considered this constitutional guaranty and said: “By force of this provision private property cannot be taken for a public use in invitum, except upon compensation first being made to the owner. In other words, the payment or tender of compensation, the amount of which has been ascertained in the manner provided by law, is made a condition precedent to the acquisition of any right by the public. * * * Possession taken from the owner without compliance with this condition is wrongful, and ejectment will lie in favor of the owner to recover.”
Counsel for appellant direct our attention to decided eases which they insist support their view; but an examination of them discloses that in every instance there were equitable considerations aside from the public character of the applicant’s business. In not one of the cases was the entry sought to be protected, initiated in naked trespass. There was in every case some sort of claim or color of right.
The case of Everett Water Co. v. Powers, 37 Wash. 143, 79 Pac. 617, seems to lend itself in aid of plaintiff’s position, bnt it is directly opposed to the rule adopted by this court in the Flynn Case above, and we prefer to follow our own decision.
Counsel insist that a public utility corporation has the right to determine for itself where the line of its utility shall be operated, and cite Postal Telegraph-Cable Co. v. Oregon 8. L. R. Co., 23 Utah, 474, 90 Am. St. Rep. 705, 65 Pac. 735, in support of that view. Counsel need not have gone to Utah for their authority. In State ex rel. Bloomington L. & L. S. Co. v. District Court, 34 Mont. 535, 115 Am. St. Rep. 540, 88 Pac. 44, this court, announced the same rule as the Utah court, but in each instance the court was speaking with reference to a condemnation proceeding, and not with reference to the abstract right which would sanction a trespass upon private property. Subject to the provisions of section 7335, Revised Codes, it is no answer in eminent domain proceedings to say that a route different from the one sought to be condemned would suffice for plaintiff’s purposes, but it is a very forceful answer to a naked trespasser to say to him, “You have no right whatever upon my property.”
The order of the district court should be modified to meet the views herein expressed. The cause is remanded to the district court, with directions to issue an injunction pendente lite, which will preserve the status quo upon the ground now covered by the Pioneer Placer claim until the final decision upon the merits. With this modification made, the order will stand affirmed. Each party will pay his costs incurred upon this appeal.
Modified and affirmed.
Mr. Chief Justice Brantly and Mr. Justice Sanner concur.
Rehearing denied January 13, 1917.
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MR. JUSTICE STARK
delivered the opinion of the court.
. The plaintiff, a minor of the age of thirteen years, by his guardian ad litem, brought this action against the defendants to recover damages for personal injuries alleged to have been sustained by him in being run over by an automobile sprinkler truck which was owned by and under the care, supervision and control of the defendant city, and was at the time plaintiff received his injuries being operated upon the public streets of the city of Butte by the defendant Ollie Shoemaker as the agent, servant and employee of the defendant city in the performance of his duties as such and acting within the scope of his employment. The defendants appeared separately by motions to strike certain portions of the complaint, which motions were granted. The defendant Shoemaker did not appear further in the action.
A general demurrer to the complaint was filed by the defendant city, which was overruled, and thereafter that defendant filed its answer, in which it admitted that it had the care, supervision, and control of the automobile sprinkler truck in question, and also had the care, regulation and control of the public streets within the city of Butte, and that at all the times mentioned in the complaint the defendant Shoemaker was its servant, but denied the allegations of negligence. As a separate and affirmative defense it was alleged that, if the plaintiff received an injury as alleged in the complaint, the same was due to his own carelessness and negligence which caused and contributed to his injuries.
The cause was tried to a jury, and resulted in a verdict and judgment in favor of plaintiff, from which the defendant city has appealed.
The evidence on the part of the plaintiff was to the effect that Montana Street of the city of Butte runs north and south and Gold Street east and west and intersects Montana Street, and at the point of intersection, and northerly therefrom, Montana Street has a grade of about seven per cent sloping to the south. On the east side of Montana Street, about fifteen or twenty feet north of Gold Street, a hydrant is located from which water was taken to fill the tank of the motor sprinkling truck involved herein. About 11:45 A.- M. on October 3, 1922, the plaintiff, having come from the Webster school, which was located near by, on his way home stopped at the northeast comer of Montana and Gold Streets, and hailed a companion, asking for a ride on the latter’s bicycle. This request being granted, the plaintiff stepped off the sidewalk on to the east side of Montana Street for the purpose of rolling up his pants’ legs in preparation for the ride on the bicycle. As he did so he noticed the sprinkling truck standing at the hydrant while its tank was being filled. The truck was headed north. The plaintiff in rolling up his pants’ legs was stooped over, facing south, and while he was in that position the defendant Shoemaker, who was in charge of the sprinkler truck, without starting the engine, and without sounding any signal or giving any warning, allowed it to back down the east side of Montana Street and swing around on to the north side of Gold Street, and in doing so ran into the plaintiff, knocked him down, ran over him and caused the injuries complained of.
The plaintiff’s witnesses, McAlpin, Mondloeh and Berryman, referred to the truck which ran over the plaintiff as the “city sprinkler,” as a “city sprinkler truck,” and the “sprinkler.” The plaintiff himself said that shortly before the accident he “saw the water truck standing near there,” and further stated: “I have seen that sprinkling truck quite a lot. It has always been down that way sprinkling the streets when I was going to school,” and “I saw this truck, before I was injured, quite a few times around the streets.”
On the part of the defendant it was shown that the defendant Shoemaker on the day in question was engaged in the regular employment of driving a sprinkling truck for the sprinkling of certain specified streets. When the plaintiff rested his case the defendant city moved the court to grant a nonsuit, upon the grounds: First, that the injury alleged to have been committed, if committed at all, was done while the employee of the city of Butte, Ollie Shoemaker, was engaged in operating a sprinkling truck, and which was one of the governmental functions of the city of Butte; second, that the complaint does not state facts sufficient to constitute a cause of action; third, that there is no statute upon which the city may be held liable or no statute making a municipal corporation in the state of Montana liable for an injury of this character and committed as alleged. This motion was denied.
There are five assignments of error, the first four of which present for consideration only the question whether under any view the city is liable for the injuries inflicted upon the plaintiff through the negligence of its employee Shoemaker in driving the auto sprinkling truck.
It is the contention of counsel for defendant that the sprin kling of streets is a governmental function and that the city is not liable to any person who may be injured while it is engaged in doing so.
The .authorities are all agreed upon the proposition that the functions of municipal corporations, although all of a public nature, are properly divisible into two great classes: (1) Gov ermnental, which 'are those conferred upon such a corporation as a local agency of prescribed and limited jurisdiction to be employed in administering the affairs of the state and promoting the public welfare generally; and (2) municipal, being those granted for the special benefit and advantage of the urban community embraced within the corporate boundaries. (28 Cye. 267.)
“It is the settled rule that a municipality is liable at common law for its torts in the performance or nonperformance of municipal or corporate duties as distinguished from governmental duties. In other words, where its officers or servants are in the exercise of power conferred upon the municipality for its private benefit or pecuniary profit, and damage results from their negligence or misfeasance the municipality is liable to the same extent as in the case of private corporations or individuals.” (Sec. 2622, MeQuillin on Municipal Corporations.)
The rule thus announced is not questioned in any state except South Carolina. The main difficulty which confronts the courts in cases of this kind is to draw the line of distinction between governmental duties and municipal or corporate duties. As said by the supreme court of Mississippi in Pass Christian v. Fernandez, 100 Miss. 76, 39 L. R. A. (n. s.) 619, 56 South. 329, “It is a matter of no little difficulty to define what are and what are not purely governmental duties of a city. To a very large extent these questions can only be settled by the facts of each particular case, so variant are the conditions under which this question arises. The public or governmental duties of a city are those given by the state to the city as a part of the state’s sovereignty, to be exercised by the city for the benefit of the whole public, living both in and out of the corporate limits. All else is private or corporate duty, and for any negligence on the part of the agents or employees of the municipality in the discharge of any of the private duties of the city the city is liable for all damages just as an individual would be.” In that case the defendant city was held liable for injuries to a child inflicted by the negligence of the driver of one of its garbage carts engaged in the hauling of rubbish from its streets.
In the instant case we are called upon to determine whether the mere fact that the city’s servant, at the time he negligently inflicted injuries on the plaintiff, was engaged in driving a sprinkler truck for the sprinkling of portions of three or four streets relieved the city from liability for his negligence. Counsel for the respective parties have directed attention to numerous cases which they claim support their contentions of liability or nonliability under the circumstances detailed, and these, with many others have been examined in the course of the investigation, and to them attention is now directed.
Counsel for plaintiff relies upon the following cases: Denver v. Maurer, 47 Colo. 209, 135 Am. St. Rep. 210, 106 Pac. 875; Missano v. New York, 160 N. Y. 123, 54 N. E. 744; Silverman v. New York (Sup.), 114 N. Y. Supp. 59; Quill v. New York, 36 App. Div. 476, 55 N. Y. Supp. 889, 5 Am. Neg Rep. 324; Ostrom v. San Antonio, 94 Tex. 523, 62 S. W. 909; Opocensky v. City of South Omaha, 101 Neb. 336, L. R. A. 1917E, 1170, 163 N. W. 325; Jones, Admr., v. City of Richmond, 118 Va. 612, 88 S. E. 82; Hewitt v. City of Seattle, 62 Wash. 377, 32 L. R. A. (n. s) 632, 113 Pac. 1084; Johnston v. City of Chicago, 258 Ill. 494, Ann. Cas. 1914B, 339, 45 L. R. A. (n. s.) 1167, 101 N. E. 960; Fowler v. City of Cleveland, 100 Ohio St. 158, 9 A. L. R. 131, 126 N. E. 72. All of these cases recognize the general rule stated in section 2622, MeQuillin on Municipal Corporations, above, and make varying applications of it.
In Denver v. Maurer the city was held liable to a pedestrian who- was injured by tripping over a hose stretched across the sidewalk while being used to flush a storm sewer which had become clogged with filth so as to be a menace to health. Holding that flushing the sewer was a corporate and not a governmental act, the court said: ‘ ‘ When the city, acting in its private corporate character, by means of that sewer, created on its streets a condition that menaced the health and comfoid of the community, no authorities need be cited to show that it was its private corporate duty to remove that condition from its streets. It follows, therefore, that the flushing of that sewer, though done to preserve health and comfort, was not done primarily in the performance of the governmental duty relating to the preservation of health, but was done in the discharge of the general duty of caring for the streets. ’ ’
In Missano v. New York liability was fastened upon the city because of the negligence of the driver of an ash-cart driven by one who was employed in the street-cleaning department, on the ground that the driver was engaged in a private corporate act and not in a governmental capacity, and it was held: ‘ ‘ The fact that the discharge of the duty of repairing and cleaning the streets of a city might incidentally benefit the public health does not make the acts of the commissioner of street cleaning a public function, so as to exempt the city from liability for personal injuries caused by employees engaged therein.” And a like rule was adopted by the court in disposing of Silverman v. New York, Quill v. New York and Jones, Admr., v. City of Richmond.
In Ostrom v. San Antonio, the city was held liable for a trespass committed by the driver of a garbage wagon.
The plaintiff in Hewitt v. City of Seattle, while crossing a street near its intersection with another street, was run over and injured by an automobile driven by the superintendent of the street department of the city. The city was held liable for the resulting damage because the duty of the superintendent of streets was corporate and not governmental.
It is not deemed necessary to discuss the other cases cited, for the reason that the facts involved were so different from those presented in the instant case as to render them of little value in deciding the question under consideration.
Counsel for the defendant city have cited, as holding that it is not liable under the allegations and proof in this ease; Love v. Atlanta, 95 Ga. 129, 51 Am. St. Rep. 64, 22 S. E. 29; McCrary v. City of Rome, 29 Ga. App. 384, 115 S. E. 283; Louisville v. Carter, 142 Ky. 443, 32 L. R. A. (n. s.) 637, 134 S. W. 468; Conelly v. Nashville, 100 Tenn. 262, 46 S. W. 565; Kippes v. Louisville, 140 Ky. 423, 30 L. R. A. (n. s.) 1161, 131 S. W. 184, Harris v. District of Columbia, 256 U. S. 650, 14 A. L. R. 1471, 65 L. Ed. 1146, 41 Sup. Ct. Rep. 610 [see, also, Rose’s U. S. Notes Supp.]; Tzatzken v. City of Detroit, 226 Mich. 603, 198 N. W. 214; Scibilia v. City of Philadelphia, 279 Pa. 549, 32 A. L. R. 981, 124 Atl. 273; Gold v. City of Baltimore, 137 Md. 335, 14 A. L. R. 1389, 112 Atl. 588; Lynch v. North Yakima 37 Wash. 657, 12 L. R. A. (n. s.) 261, 80 Pac. 79; Nicholson v. Detroit, 129 Mich. 246, 56 L. R. A. 601, 88 N. W. 695; Stater v. City of Joplin, 189 Mo. App. 383, 176 S. W. 241.
In Love v. Atlanta the uncontradicted testimony showed that the injury complained of was inflicted by the servants of the city employed in that department of the city whose duty it was to look after and preserve the public health, and, inasmuch as it appeared that the injury was inflicted by the defendant’s servants while engaged in the performance of work essential to the discharge of that particular duty, it was held that the city was not liable for their negligence, but in the course of the opinion the court said: “It will be observed, however, that in order to exempt a city from liability, it is not sufficient to show that the particular work, from the negligent performance of which by the servants of the city a citizen was injured, was being performed under the direction of the health authorities; but it must be shown that the particular work so being done was connected with or had reference to the preservation of the public health.”
In McCrary v. City of Rome the court took judicial notice of the fact that the sprinkling of the streets was an act performed in connection with the maintenance of the public health and one which is conducive to the health of all persons residing or visiting in the city or merely passing through, and followed the decision in Love v. Atlanta. It is to be noted, however, that in the decision there is no reference to- the statutes of Georgia showing under what authority the sprinkling was being done by the eity.
In City of Louisville v. Carter the statutes of the state or ordinances of the city governing the sprinkling of streets are not referred to, so there is no way of determining from a reading of this ease whether the court would have held that there was no liability under statutes similar to ours.
In Conelly v. Nashville the plaintiff was sitting in her buggy, which was standing near a sidewalk. A sprinkling cart, driven by one engaged in the service of the city, collided with the wheels of the-buggy, causing the injury complained of. A demurrer to the complaint was sustained on the ground that it appeared that the employee of‘the city was engaged in the performance of a governmental and not a ministerial duty. In passing on the case the court observed that the ordinance under which the city was operating the sprinkling cart was adopted under the section of the city charter which gave it authority to “make regulations to secure the general health of the inhabitants, and to prevent and remove nuisances.”
In Kippes v. Louisville the petition alleged negligence of the city employees in flushing the streets with a hose which was in such an unsafe condition that it burst and caused the plaintiff’s injuries. The answer of the city alleged that the hose used as a flusher referred to in the petition, and the other street flushers owned and operated by it, were used for the promotion and preservation of the health of the people for the city, and were necessary for this purpose as well as for the comfort and safety of the general public; that at the time of plaintiff’s alleged injuries such flusher was being operated solely for the promotion of the health, safety and comfort of the inhabitants of the city and the general public, and that in using the flusher the eity was exercising a governmental function. To this portion of the answer a demurrer was sustained, and on appeal the supreme court held that this part of the answer stated a defense, since it showed clearly that the flushing of the streets, as alleged, was a governmental function, performed in aid of the public health.
The case of Harris v. District of Columbia was certified to the supreme court by the court of appeals of the District of Columbia on the following question: “Is the sprinkling of the streets to keep down dust for the purpose of the comfort and health of the general public, a public or governmental act as contradistinguished from a private or municipal act, which exempts the District of Columbia from liability for the injuries caused by one of its employees engaged therein?” It appeared from the case that the" sprinkling of the streets by the city was an act preliminary to their being swept. Answering the question in the affirmative, the court said: “But, nothing else appearing, we are of opinion that, when sweeping the streets, a municipality is exercising its discretionary powers to protect public health.”
In Scibilia v. City of Philadelphia the plaintiff was injured while standing at the side of a street by an autotruck loaded with ashes and operated by one of the employees .of the bureau of street cleaning and public works. The court held that the gathering up and disposal of refuse by this bureau was primarily a health measure, a public governmental function, and therefore the city was not liable for the negligent acts of its employees while performing this function.
A mere cursory reading of the other cases cited shows that their fact conditions were such as to make them of no assistance in determining the issues in the case now before us.
The above eases which have been referred to somewhat at length are readily distinguishable from the one under consideration. In eách of them (except McCrary v. City of Rome) it appeared definitely from the statutes, ordinances or proof that at the time the injuries complained of were inflicted upon the complaining party the city employees were performing acts under a, department of the city government, which primarily were connected with or had reference to the preservation of the public health, and that their acts were being performed in furtherance of that governmental function.
In tbe ease before us tbe statutes authorizing the city of Butte to provide for sprinkling streets and to defray the cost thereof (subsec. 69, sec. 5039, and secs. 5272-5275, Rev. Codes 1921) do not assume to declare that the same shall be done in aid of public health. No ordinance of the city has been called to our attention indicating that the city deemed the sprinkling of the streets to be a measure for the protection of the public health; the answer filed by the defendant city does not 'assert nonliability for the negligent acts of Shoemaker on the ground that he was engaged in public health service when the same were done; there is no word of testimony in the record which even remotely indicates that either the city or any of its employees had a thought that such was its purpose; even the defendant’s motion for a nonsuit did not indicate that counsel considered that the subject of public health was in any way related to or connected with the services being rendered to the city by the sprinkling truck and its driver when the plaintiff received his injuries; and, so far as disclosed by the record, the theory that Shoemaker was engaged in public health work was not mentioned in this case until the filing of defendant’s brief in this court. As stated* in Love v. Atlanta, supra, in order to exempt the city from liability on the grounds claimed by counsel for defendant on this appeal, it must be shown that the particular work being done by its servant when the injury was inflicted was connected with or had reference to the preservation of the public health.
By subdivision 44 of section 5039, Revised Codes of 1921, a city is given power to provide for a board of health and to prescribe its powers and duties, and by section 2464 a city of the class of Butte is required to have a local board of health which, by section 2469, is granted very broad and comprehensive authority in guarding and protecting public health. By subdivisions 6 and 7 of section 5039 the city is granted general control over the establishment, control, maintenance and cleaning of the streets. Nothing further appearing, the authority to provide for sprinkling of the same is more naturally referable to and connected with this control than to the health department. Under these conditions we cannot follow the rule laid down in McCrary v. City of Rome, supra, and assume that Shoemaker was engaged in service connected with the maintenance of the public health at the time in question.
Since the city wholly failed to show that Shoemaker was engaged in any work connected with the public health service at the time his negligence caused the plaintiff’s injuries, we conclude from the record now presented that the city is liable therefor.
The duty of the city in connection with the maintenance of its streets is ministerial and corporate, and for its negligence in that connection, it is liable. (Sullivan v. City of Helena, 10 Mont. 134, 25 Pac. 94; Snooks v. City of Anaconda, 26 Mont. 128, 66 Pac. 756; Ford v. City of Great Falls, 46 Mont. 292, 127 Pac. 1004.)
Defendant’s fifth assignment of error is predicated upon the action of the court in giving instruction No. 17A-5 over its objection. We think the instruction was proper under the facts of this case. (See Fisher v. Jansen, 128 Ill. 549, 21 N. E. 598; City of Chicago v. Major, 18 Ill. 349, 68 Am. Dec. 553; City of Louisville v. Tompkins (Ky.), 122 S. W. 174; Washington v. Pacific Elec. Co., 14 Cal. App. 685, 112 Pac. 904.)
Counsel for defendant have devoted a considerable space in their brief to the discussion of two other propositions, but there are no specifications of error to which this discussion is directed, and for this reason they cannot be considered.
No error appearing in the record, the judgment is affirmed.
Affirmed.
Mr. Chief. Justice Callaway, Associate Justices Holloway and Matthews and Honorable O. W. Pomeroy, District Judge, sitting in place of Mr. Justice Galen, absent on account of illness, concur.
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MR. JUSTICE STARK
delivered the opinion of tbe court.
On November 23, 1922, tbe defendant leased to Peter Lucas a certain building in Shelby, wbicb be agreed to erect and have ready for occupancy not later than January 25, 1923, for a period of two years at a monthly rental of $150, payable in advance.
On February 2, 1923, at Billings, Lucas, tbe plaintiff, Mrs. George Checuras, and John Stamos, having in contemplation tbe opening of a restaurant in tbe building wbicb bad been leased by Lucas, entered into a partnership agreement wbicb provided that Lucas and tbe plaintiff were each to contribute one-third of the capital required, while Mrs. Checuras and Stamos were each to contribute one-sixth, and the profits of the business were to be divided amongst the parties in tbe above portions. This agreement recited amongst other things: “It is further mutually agreed by and among all of tbe parties hereto that whereas tbe lease upon tbe premises upon wbicb said café is situate now stands in tbe name of said Peter Lucas, that tbe latter shall bold tbe same for tbe benefit of all tbe 9 parties hereto, and that this agreement shall continue during tbe whole period of said lease agreement.”
Tbe specific amount wbicb each of tbe partners was to contribute was not mentioned, but it appears that tbe plaintiff was the owner of the necessary furniture, fixtures, dishes and .cutlery for tbe equipment of tbe restaurant, which were stored in a warehouse at Billings. This property was turned in to the partnership by the plaintiff and, with the lease from the defendant to Lucas, constituted all of its assets.
John Stamos was unable to contribute the amount which he had agreed to put into the partnership, and did not figure in the transaction after signing the agreement. Mrs. Checuras seems to have put in some money, but subsequently, at a time not disclosed, got it back, and she likewise disappeared from the transaction.
About the middle of February, 1923, the restaurant equipment was shipped from Billings to Shelby, in the name of Peter Lucas. Upon its arrival at the latter place it was placed in storage, the leased building not being ready for occupancy at that time.
After the building was completed, in the latter part of March, Lucas moved the equipment in, 'but was unable to open up the business for lack of funds, and tried, unsuccessfully, to borrow $500 from the defendant for that purpose. About that time George Checuras, husband of the Mrs. George Checuras named in the partnership agreement, appeared upon the scene, claiming that Lucas owed him $500, and threatened to institute legal proceedings to enforce its payment. Lucas admitted he owed Checuras this money but was unable to pay it. At that time there was due to the defendant as rental upon the leased building the sum of $150, which Lucas was not able to pay. Defendant and Lucas then entered into an arrangement by which, in consideration of $50, Lucas surrendered the lease and gave defendant a bill of sale of the restaurant equipment, the defendant agreeing to sell the equipment and out of the proceeds pay certain debts of Lucas. The defendant took possession of the property under the bill of sale and subsequently, through his agent B. P. Radigan, sold it to one Henry C. Brown, as the evidence shows, for $1,500 and paid or assumed obligations of Lucas to the extent of $1,510. After Lucas obtained the $50 from the defendant he left Shelby, and was not heard from further.
At the time the lease between defendant and Lncas was negotiated, William Kotsakis, husband of the plaintiff, and -(Stamos, a brother of the John Stamos mentioned in the partnership agreement, were present and participated therein, and there is evidence tending to show that the defendant knew that, while the lease was taken in the name of Lucas, his name was inserted as lessee as a matter of convenience, and that he held the same for the benefit of the other parties, who later on entered into the partnership arrangement.
Subsequent to the time when defendant took over the restaurant equipment under the bill of sale from Lucas, the plaintiff demanded a half-interest therein from him, which demand was refused, and thereupon she instituted this suit to recover the value of her interest. The complaint is in the ordinary form for an action of conversion. The defendant answered, denying that plaintiff had any interest in the property. The case was tried before a jury, which returned a verdict in favor of the plaintiff for the sum of $1,200, upon which judgment was entered, and from which the defendant has appealed.
Appellant’s first specification of error is: “There is a material variance between the allegations of the complaint and the proof offered as to partnership, if any partnership was proven.”
The complaint alleges that, during the times mentioned, the plaintiff, Peter Lucas, Mrs. George Cheeuras and John Stamos were partners, for the purpose of carrying on a restaurant business in Shelby. As above indicated, it was shown at the trial that John Stamos never made payment of the amount which he was to contribute to the partnership under the agreement, and was not further considered therein, and likewise that Mrs. George Cheeuras got back what she had contributed and was not considered as a partner in the transaction. This testimony was introduced without objection.
Without objection on the part of appellant the court instructed the jury: “If you believe from a preponderance of the evidence that the plaintiff and Peter Lucas were associated together as copartners for the purpose of engaging in and carrying on a restaurant business in the city of Shelby, Montana, and as such partners were the owners of and in possession of the personal property” described in the complaint, “and that said personal property * * # comprised the whole of the partnership property, and that the sale of said personal property by said Peter Lucas to the defendant, J. W. Williamson, was without the consent of the plaintiff, then and in that event the said J. W. Williamson obtained no title to plaintiff’s interest in said personal property, and your verdict must be for the plaintiff.” Two other instructions of like import (Nos. 7 and 11) were also given by the court without objection. The question of a variance between the allegations of the complaint and the proof was not raised by' any objection to the testimony or to the instructions given.
The defendant, having acquiesced in the trial of the case on the theory that plaintiff and Lucas alone were interested in the property as partners, is not now in a position to assert that there is a variance between the pleading and proof, as the question of variance will not be considered when raised for the first time in this court. (Kalispell Liquor etc. Co. v. McGovern, 33 Mont. 394, 84 Pac. 709; Mosher v. Sutton New Theater Co., 48 Mont. 137, 149, 137 Pac. 534.)
Appellant’s second assignment of error is: “There is no competent proof offered by plaintiff as to the reasonable value of the property alleged to be converted at the time of the alleged conversion at Shelby by the defendant.” At the trial William Kotsakis, husband of the plaintiff, as a witness in her behalf, after having duly qualified to give an estimate of the value of property of the character involved, testified as follows: “Q. And from your experience, Mr. Kotsakis, what was the reasonable market value of this stuff that went into this building, at the time it reached here? A. Well, I paid $4,000 for it when it was new. Mr. Clinton: Move to strike his answer, what he paid for it new, as not being competent proof as to the value of it at the time. The Court: It has a bearing on the value, however. Mr. Clinton: Not what he paid for it. The Court: Overrule the objection. A. The value of it at that time was between $3,600' and $4,000.”
On behalf of the defendant, Eugene Malletts testified that the fixtures were worth about $700 in the building, and Patrick Connelly estimated that $400 or $500 would be a good price for them. This testimony was sufficient to send the ease to the jury on the question of value, and under the rule frequently announced by this court that when there is a substantial conflict in the testimony the verdict of the jury upon a disputed question of fact will not be disturbed, we are of the opinion that this assignment of error is not well taken.
Appellant’s third specification of error is: That the “court erred in permitting a lease from defendant to Peter Lucas to be offered in evidence over defendant’s objection, and in permitting plaintiff to show that defendant received $1,000 bonus for a new lease and a $50 per month raise in the rental, as it prejudiced the jury in arriving at their verdict.”
In reference to the first part of this specification: By her complaint the plaintiff has claimed damages from the defendant by reason of an alleged “conversion” of the lease from herself to Peter Lucas. In instruction No. 1, after advising the jury of the allegations of the complaint and of the nature of the cause of action which she set forth against the defendant, the court said: “The plaintiff, in addition to the facts set forth above, has claimed to be the owner of a certain lease upon certain restaurant property here in Shelby and alleged that the defendant converted this lease. As to this allegation in the plaintiff’s complaint, and as to all evidence introduced in support thereof, the same is withdrawn from your consideration and should not be considered by you in your determination of this controversy.” It is the general rule that an error in admitting improper evidence may be cured by an instruction which directs the jury to disregard it. (Sanborn v. Powers, 58 Mont. 214, 190 Pac. 990.) That rule is properly appli cable to the situation presented by this record. If error was committed by admitting this evidence, it was cured by the portion of Instruction No. 1 above quoted.
As to the second portion of this specification: B. P. Radigan, through whom the deal between defendant and Brown was negotiated, appearing as a witness on behalf of plaintiff, testified without objection that the property in question was sold by the defendant to Brown for $2,500, and that Brown’s lease called for the payment of a monthly rental of $200. On cross-examination by counsel for defendant he modified the statement by saying that the fixtures sold for $1,500 and that $1,000 was paid as a bonus for the lease, making the $2,500 referred to in his direct testimony. Referring to this transaction, the defendant, testifying in his own behalf on redirect examination, said: “On the deal with Mr. Brown, Mr. Radigan received $2,500. I made the deal with Mr. Radigan that he was to sell the fixtures for $1,500, if possible, and sell the lease also, and he was to get $1,000, of which he was to receive 50 per cent of everything over $1,500. That is what constituted the $2,500.”
Plaving permitted this testimony to be introduced by plaintiff without objection, and then having substantially repeated it in his own case, defendant is not now in a position to assert that his rights were prejudically affected thereby.
Appellant’s fourth specification of error is to the effect that the court erred in refusing to sustain the defendant’s motion for a directed verdict, upon the ground that the sale of the property in question was made by Lucas, one of the alleged copartners, and was agreed to by Checuras, another of the alleged copartners, and that these two, constituting a majority of the copartners, had the right to make a sale of the whole of the partnership property and give good title to it.
Without giving consideration to the correctness of the rule of law invoked by this specification, we direct attention to the fact that it is based upon an erroneous conception of the evi dence. As heretofore pointed out, at some time not disclosed by the record, Mrs. Cheeuras seemingly obtained a return of whatever she had contributed to the partnership, and was not at all considered in connection therewith. Counsel’s argument proceeds upon the theory that the $500 which was paid to George Cheeuras by the defendant under instructions of Peter Lucas, at the time the latter surrendered the lease and gave a bill of sale to the defendant for the restaurant equipment, was a payment for the interest of Mrs. Cheeuras in this property, but the evidence does not bear out this theory. The testimony shows that, at the time referred to, George Cheeuras appeared upon the scene and claimed that Peter Lucas owed him $500, which claim was admitted by Lucas, and that defendant’ gave Lucas a check with which to pay it. The testimony does not contain any indication that George Cheeuras claimed this money from Peter Lucas and received the same from the defendant as the agent of his wife or in settlement of any claim she might have on account of the partnership transaction.
The case having been submitted to the jury upon the theory that plaintiff and Lucas alone were partners in the business, the declaration of section 7998, Revised Codes of 1921, that a partner, as such, has not authority “to dispose of the whole of the partnership property at once” is controlling; and under the doctrine of Doll v. Hennessy Merc. Co., 38 Mont. 80, 81 Pac. 625, the plaintiff had a right to maintain this suit.
This disposes of all of appellant’s specifications of error. Nothing has been pointed out which would justify a reversal of the judgment, and the same is accordingly affirmed.
Affirmed.
Mr. Chief 'Justice Callaway and Associate Justices Rankin and Holloway 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 STARK
delivered the opinion of the court.
Plaintiffs brought this action to recover damages for the alleged conversion of a one-half interest in 1,300 bushels of wheat. It developed at the trial that the wheat was grown on a farm located about five miles from Bozeman, which belonged to plaintiffs, and was occupied by one Sam Kellar under a contract for its purchase, which gave him the right of exclusive possession and provided that he should turn over to plaintiffs one-half the grain crop each year, to be applied on the purchase price.
On October 20, 1921, after the crop for that year had been threshed, Mrs. Wells went to Bozeman to see about her interest in it. She met Kellar and with him, accompanied by her son-in-law, Bonnell, went to the office of Attorney Kiester, in Bozeman, for the purpose of making an adjustment. Kellar had already sold a part of the grain, and in settlement for it gave Mrs. Wells cheeks for $783 as her share. There remained unsold the wheat involved in this action, which was in Kellar’s possession, and stored in granaries on the farm. Kellar was uncertain whether he would be able to carry out his contract for the purchase of the land and before deciding what he would do, wanted to make a trip to Absarokee, and, if he was unable to raise the money there, intended to turn the place back to plaintiffs.
After settlement had been made for the grain that had been sold, the parties proceeded to dispose of the wheat left in the granaries, and what transpired in that connection was related by the witness Bonnell as follows: “After he gave her these checks, he said: ‘Now, Mrs. Wells, a balance of the grain is in the granary, and I will turn your part over to you right now.’ And he says: ‘I will help you make the division at any time after I come back from my son’s in the eastern part of the state.’ Mrs. Wells told him that we would leave the— He says: ‘I will haul the grain or deliver it any place you say.’ She says: ‘ I will leave the grain in the granary a while, as we might perhaps use some of it for seed or feed.’ ”
Mrs. Wells testified, in reference to the transaction, that Keller said: “ ‘It is yours right now, and you can measure it up any time you want to.’ I told him that I would just leave it until he came back, and then I would know if he was going to remain. I would have to sell it or — otherwise I might need it if I were going to stay there. I might need it for seed or for feed. The understanding was that when he came back he would haul it if I wanted it hauled.” And on cross-examina tion she stated: “When I went upstairs to Mr. Kiester’s office, Mr. Sam Keller verbally turned over half of the crop to me— half of this wheat. That is all there was to it. He paid me half of the wheat that had been sold, and half of the other he delivered to me that day. He said to me: ‘It is yours.’ He could not say any more than that, could he? He said that it was mine. The whole thing then was finished. I do not recall that there was anything else done, only that he delivered it that day to me. Simply saying, in the presence of Mr. Kiester, Mr. Bonnell, and I, that it was mine, that that half was to be mine, was all he could do. As a matter of fact, that was all he did.”
The parties then separated, and Mrs. Wells remained in Bozeman for several days. She did not go out to the land, and did nothing in the way of taking possession of the wheat in the granaries. Kellar remained in possession of the land and of the wheat in the granaries.
Two days later, on October 22, 1921, the defendant, as sheriff of Gallatin county, under writs of attachment duly issued out of the district court, in two actions instituted against Kellar, levied upon and took into his possession the wheat in question. Judgment was subsequently obtained against Kellarin these actions, writs of execution issued thereon, the wheat sold and the proceeds applied to their satisfaction. No other facts material to a determination of the appeal were developed at the trial.
At the close of the testimony the defendant moved for a directed verdict. The motion was granted, judgment was en tered in his favor, and the plaintiffs have appealed therefrom. Plaintiffs assign as error the action of the court in directing the jury to return a verdict in' favor of the defendant, and state: ‘ ‘ The only question we desire to present to the court is whether or not the evidence is sufficient to constitute a delivery of the grain in question.”
So far as applicable to this case, section 8604, Revised Codes of 1921, provides: “Every transfer of personal property is conclusively presumed, if made by a person having at the time the possession or control of the property, and not accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things transferred, to be fraudulent, and therefore void, against those who are his creditors while he remains in possession.”
The above section has frequently been before this court on the question of what acts constitute a sufficient delivery and jcontinued change of possession to satisfy. Many of these cases will be found cited in Taylor v. Malta Merc. Co., 47 Mont. 342, 132 Pac. 549, and Dover Lumber Co. v. Whitcomb, 54 Mont. 141, 168 Pac. 947. In the latter case it is said: “The purpose of the statute is the prevention of frauds. It requires the surrender of control by the vendor and the assumption of possession by the vendee. Mere words are not sufficient to constitute the delivery contemplated.”
The above-quoted language is decisive of this appeal. Here, there was no semblance of a delivery of the wheat. To hold that Hellar’s mere statement to Mrs. Wells, “It is yours,” in reference to wheat that was located five miles from the place where the conversation took place, constituted a sufficient delivery to satisfy the statute, would not be a construction of the statute, but its abrogation.
An examination of O’Gara v. Lowry, 5 Mont. 427, 5 Pac. 583, cited and relied upon by counsel for plaintiffs, shows that the facts in that ease were so wholly different from those here involved that the language used has no application to the instant case.
The judgment is affirmed.
1'Affirmed.
Mr. Chief Justice Callaway and Associate Justices Holloway and Matthews 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 HOLLOWAY
delivered the opinion of the court.
In 1865 William Wallace and David M. Dunkelberg each located a homestead near the mouth of Dunkelberg Creek in what was then Deer Lodge County, and about the same time each made an appropriation of the waters of Dunkelberg Creek for the irrigation of his lands. In 1885, Dunkelberg acquired the Hanley homestead which is located three or four miles above the mouth of Dunkelberg Creek. Later other persons located upon the same stream, and an astion was instituted by-Wallace against Dunkelberg, Weaver and Perryman to have determined the relative rights of the parties to the use of the waters of Dunkelberg Creek. Such proceedings were had in the action that in 1893 a decree was entered which adjudged that neither Weaver nor Perryman had any right to use the waters as against Wallace or Dunkelberg, and that Wallace and Dunkelberg had the right to use all of the waters of Dunkelberg Creek in equal portions and as of even date. Dunkelberg died, and in 1899 the administratrix of his estate, acting under an order of court, conveyed the Hanley homestead with its appurtenances to Weaver. In 1902 the Dunkelberg homestead was conveyed to Wallace by a deed which purported to convey also the right to the use of one-half of all the waters of Dunkelberg Creek. In 1906 Wallace commenced an action against Weaver and one Peter Noid, and such proceedings were had therein that a decree by consent was entered in 1907. For convenience, that decree will be referred to as the decree in cause No. 734. In 1908, Weaver contracted to sell and thereafter sold the Hanley homestead to C. E. Goldberg. In 1910, Wallace commenced an action (cause No. 849) against Weaver, Noid, and C. E. Goldberg, the first trial of which occurred in 1911 and resulted in a judgment in favor of the defendants. Wallace appealed and secured a reversal (47 Mont. 437, 133 Pac. 1099), and a retrial in 1915 resulted favorably to him. Wallace died, and his interests passed to his two children. In 1915, C. E. Goldberg transferred the Hanley homestead and its appurtenances to his wife, Mary B. Goldberg. In 1921 this present action was instituted by the Wallace heirs against C. E. and Mary B. Goldberg. The Butte & Western Mining Company was made a party defendant, but before trial it was dismissed by stipulation, and hereafter the Goldbergs alone will be referred to as defendants. In their answer these defendants assert claims to the use of the waters of Dunkelberg Creek as of date 1865, and particularly assert their right to use one-half of the waters as the successors in interest of Dunkelberg in tbe Hanley homestead and its appurtenances. In reply the plaintiffs pleaded the decree in cause 734 as an estoppel.
The trial court found that in 1885, when Dunkelberg acquired the Hanley homestead, he transferred the use of one-half of his water right from the Dunkelberg homestead to the Hanley homestead, and that that interest — the right to use one-fourth of the water of Dunkelberg Creek — became appurtenant to the Hanley homestead. The court held, however, that these defendants are estopped by the decree in cause 734 from asserting any right to use the waters of Dunkelberg Creek as against these plaintiffs, and rendered and had entered a judgment to that effect, from which the defendants appealed.
It is conceded that the plaintiffs, as the successors in interest of William Wallace and David M. Dunkelberg in the Wallace and Dunkelberg homesteads and appurtenant water rights, are entitled to use three-fourths of the waters of Dunkelberg Creek; but defendants claim a right of even date to use one-fourth of the waters of that stream as the successors in interest of David M. Dunkelberg in the Hanley homestead. They insist that the trial court erred in holding that they are estopped to assert this right, even though they are the immediate successors in interest of Weaver, who was a party defendant to the action in which the decree was entered. It is argued that the relative rights of the parties plaintiff and defendants (in cause 734) to the use of the waters of Dunkelberg Creek were not raised by the pleadings in that case, and therefore the decree should be construed as not having adjudicated those rights.
It is the genei’al rule that, if upon the trial of a cause the court departs from the issues and undertakes to adjudicate a matter not submitted for its decision, the judgment, to that extent at least, is without force and effect. (Gille v. Emmons, 58 Kan. 118, 62 Am. St. Rep. 609, 48 Pac. 569.) But counsel for defendants errs in assuming that an issue may not be adjudicated unless it is made by the pleadings. It is the purpose of pleadings to present issues for determination; but it occurs not infrequently that without objection evidence is received, and thereon matters are determined which in point of fact are not within the issues made by the pleadings, nevertheless the parties are bound by the judgment; and, likewise, it occurs not infrequently that, after the issues are made by the pleadings, a cause is submitted upon an agreed statement of facts, and in such ease the agreement rather than the pleadings is the basis for the judgment. (Yellowstone County v. First Trust & Savings Bank, 46 Mont. 439, 128 Pac. 596.)
In 33 C. J. 1154, it is stated to be the general rule that the parties to an action may elect to depart from the issues made by the pleadings and to try other questions relating to the merits of the controversy, by consent or acquiescence, and in such case the judgment is regular and binding upon them.
Every reason supports the rule that a judgment by consent or agreement binds those by whose consent or agreement it is entered, even though the pleadings would not support the judgment. (Hutts v. Martin, 134 Ind. 587, 33 N. E. 676; Schmidt v. Oregon Cold Mining Co., 28 Or. 9, 52 Am. St. Rep. 759, 40 Pac. 406, 1014; Lodge v. Williams, 195 Ky. 773, 243 S. W. 1011; Pacific Railroad v. Ketchum, 101 U. S. 289, 25 L. Ed. 932 [see, also, Rose’s U. S. Notes].)
In Telluride Power Co. v. City of Teague (Tex. Civ. App.), 240 S. W. 950, the Texas court said: “Whatever the pleadings in the former suit may have been, the judgment entered by consent was a waiver of every character of error, except fundamental error, going to the jurisdiction of the court. Any judgment which the parties to a suit cause to be entered by a bona fide agreement, no fraud being practiced in it, is binding upon them, regardless of what the pleadings and evidence may be, and such judgment is conclusive as an estoppel.”
In principle, this court applied the same rule in Corby v. Abbott, 28 Mont. 523, 73 Pac. 120, and Interior Securities Co. v. Campbell, 55 Mont. 459, 178 Pac. 582.
It is elementary that, for the purpose of determining the operation and effect of a judgment, the entire judgment-roll may be examined (Freeman v. Donohoe, 188 Cal. 170, 204 Pac. 593; Clay v. Hildebrand, 34 Kan. 694, 9 Pac. 466), and when a construction of a judgment has been accepted or acquiesced in by the parties to it, it will not be departed from except for the most cogent reasons (Rodee v. City of Ogdensburg, 86 Misc. Rep. 229, 148 N. Y. Supp. 826; Mooney v. Mooney, 10 Misc. Rep. 386, 31 N. Y. Supp. 118; 34 C. J. 503).
In his complaint in cause No. 734, Wallace alleged that he was entitled to use all of the waters of Dunkelberg Creek, and that Weaver and Noid had conveyed water from Gold Creek into Dunkelberg Creek in such manner as to pollute the waters and interfere with the exercise of his right. In their answer neither Weaver nor Noid asserted any claim to the use of the waters of Dunkelberg Creek, but relied solely upon their right to convey the waters of Gold Creek into Dunkelberg Creek, and to employ the channel of the latter stream as a means of conducting the Gold Creek water to their ditches. They alleged affirmatively that they had not interfered with the rights of Wallace, and that, by conveying water from Gold Creek into Dunkelberg Creek, the natural flow of the latter stream had been augmented, and thereby more water was made available for Wallace’s use. In reply Wallace alleged that Weaver and Noid had been ■ diverting from Dunkelberg Creek a greater quantity' of water than they were conveying into that creek from Gold Creek.
With the pleadings presenting the issues as thus outlined, the parties then stipulated that a judgment should be entered according to the terms agreed upon, which were that Wallace should waive all claims for damages; that Weaver and Noid should provide artificial means for conducting the waters of Gold Creek into Dunkelberg Creek so as to prevent sediment, debris or other foreign matters being deposited in Dunkelberg Creek, and so as to prevent “injury or damage to the lands or water rights of the plaintiff set out and described in his complaint.” It was stipulated further that the judgment should provide that Weaver and Noid should not “divert into their said ditches or use upon their lands, or for any purpose whatever, more waters from said Dunkelberg Creek than they have conducted and are at the time they so divert said waters conducting into said Dunkelberg Creek, by the artificial means to be provided by them, less the amount of such water which shall be lost by evaporation, flowage, and seepage and other means.” It was stipulated further that the decree should contain a provision that “said defendants, and each of them, are perpetually enjoined and restrained from diverting more water from the said Dunkelberg Creek for irrigation, or any other purpose whatever, than the amount turned into the said Dunkelberg Creek by them by the artificial means to be provided by them, less the amount of such loss as is hereinbefore stated. ’ ’
The decree itself follows closely the language of the stipulation. Indeed, in all essential particulars the terms of the two instruments are the same. To illustrate: Paragraph 3 of the decree reads as follows: “(3) It is further ordered, adjudged, and decreed that the said defendants, when they have so conducted the said waters into the said Dunkelberg Creek, as herein decreed and set out, shall not divert into their said ditches, or use upon their lands, or for any purpose whatever, more waters from said Dunkelberg Creek than they have conducted and are at the time they so divert said waters, conducting into Dunkelberg Creek, by the artificial means to be provided by them, less the amount of such water which shall be lost by evaporation, flowage, and seepage, and other means, from the point where the same is turned into the said Dunkelberg Creek to the point where the same shall be diverted from the said Dunkelberg Creek into the ditches of the said defendants for use upon their lands, and the said defendants and each of them are perpetually enjoined from diverting more water from the said Dunkelberg Creek for irrigation, or any other purpose whatever, than the a/mount turned into the said Dunkelberg Creek by them by the artificial means to be provided by them, less the amount of such loss as is herein-before stated.”
In Lyon v. United States Fidelity & Guaranty Co., 48 Mont. 591, Ann. Cas. 1915D, 1036, 140 Pac. 86, this court considered the effect of the judgment entered in Perrine v. Lyon, and concerning it said: “When the court by its judgment determined that Lyon was the owner-, it necessarily found that Perrine had no interest, and therefore no sufficient cause for the appointment of a receiver. As between the parties to this action, that judgment was an adjudication, not merely of the conclusions expressed, but of everything necessarily included in them,” citing section 7917, Revised Codes of 1907, now section 10561, Revised Codes of 1921.
Upon the same theory we say that, when Weaver and Noid agreed that a decree might be entered in cause No. 734, perpetually enjoining them from diverting any of the natural flow of the waters in Dunkelberg Creek for any purpose whatever, and, when in conformity with their stipulation the decree was entered, it must be held that the defendants necessarily agreed, and the court necessarily determined, that they had no right to use any of the waters of Dunkelberg Creek as against the right claimed by Wallace.
That this interpretation of the decree expresses the intention of the parties to the stipulation is evidenced, further, by the practical construction placed upon it by the parties themselves. When Weaver and C. E. Goldberg were called to account in 1909 for an alleged violation of the decree, Weaver testified that, prior to the time he sold the Hanley homestead to C. E. Goldberg, he placed a measuring box in Dunkelberg Creek so that he could determine that he was not diverting more water than he was conducting into that creek from Gold Creek. In the same proceeding, C. E. Goldberg testified:
‘ ‘ Q. And who is the owner of the water in Dunkelberg Creek ? A. Mr. Wallace is the owner of the natural flow. * ® *
“Q. Now, do you ever take out any more water other than leaving Mr. Wallace enough- to get the natural flow of the water of Dunkelberg Creek? A. No, sir.”
Upon the trial of this cause plaintiffs offered in evidence the judgment-roll in cause No. 849, but upon objection by defendants the offered evidence was excluded, and cross-error is assigned by plaintiffs. The offered evidence, with the plaintiffs’ exceptions, is presented in the bill of exceptions in conformity with the provisions of section 9751, Devised Codes of 1921. It is manifest that the trial court erred in excluding the evidence. It was admissible in support of the estoppel pleaded, and, bearing in mind that cause 849 was commenced in 1910, tried first in 1911 and retried in 1915, the materiality of the evidence becomes apparent. In case 849, Wallace alleged in his complaint that he was the owner of the right to use all of the waters of Dunkelberg Creek, and that Weaver, Noid and C. E. Goldberg were violating the decree in eause 734 by diverting more water than they were conducting into Dunkelberg Creek from Gold Creek. In their answer not one of the defendants laid claim to any right to the use of the waters in Dunkelberg Creek, and each one denied specifically that he had diverted or used any of the waters of that creek, or had diverted from its channel any water in excess of the amount conducted into it from Gold Creek. Upon the first trial of that eause, defendant Goldberg testified: ‘ ‘ Q. Tell the jury whether or not you took out more water from Dunkelberg Creek during the season of 1909 than you put in. A. No; I never did. Q. At any time, did you? A. No; I never took any more than I put in.” The witness explained further in detail the means employed by him to determine that Wallace was getting the use of the natural flow of the water of Dunkelberg Creek. When that cause was retried in 1915, apparently upon the pleadings referred to above, the court instructed the jury that, if they found that: £ £ The defendants diverted from Dunkelberg Creek more water than they were turning into Dunkelberg Creek from Gold Creek, less the amount of such water which would be lost by evaporation, flowage, and seepage, and other means, from the point where the same was turned into Dunkelberg Creek, to the point or points where the same was diverted from said Dunkelberg Creek and into the defendants’ ditches, or either of their ditches, and used the same upon their or either of their lands, you should assess in favor of the plaintiff and against the defendants, such damages as you believe from the testimony will reasonably compensate the plaintiff for the loss of such water so used by the defendants, and diverted from said Dunkelberg Creek.” The defendants acquiesced in the giving of that instruction, and thereby conceded that, if they had diverted any of the natural flow of the waters in Dunkelberg Creek, their acts in that respect were wrongful, and that Wallace was entitled to damages for the injury resulting from such acts. In other words, they conceded that, as against Wallace, they had no right to the use of any of the waters in Dunkelberg Creek.
If it can be said that the meaning of the decree in cause 734 is uncertain, this course of conduct on the part of Weaver, Noid and C. E. Goldberg, covering a period of eight years immediately after the decree was entered, constituted such a construction of the decree as to remove the uncertainty, and justified the conclusion of the trial court that these defendants are estopped to assert any right as against the plaintiffs to divert the waters of Dunkelberg Creek for any purpose whatever.
Counsel for defendants urges that the decree in cause 734 lacks the element of mutuality, and for that reason may not be relied upon as an estoppel. In 1 Freeman on Judgments, fourth edition, section 159, it is said: “It is essential to an estoppel that it be mutual, so that the same parties or privies may both be bound and take advantage of it.”
In explanation of the rule the same author says: “No man shall bind another by an adjudication which he is himself at liberty to disregard.” In the decree in cause 734 it was adjudged that Wallace was not entitled to recover damages for the trespasses to his property, and that the defendants should be perpetually enjoined from diverting any of the natural flow of the waters in Dunkelberg Creek. The decree is not wanting in mutuality. Wallace was bound by it to the same extent that it bound the defendants. It is not essential to mutuality that the estoppel shall operate upon the different parties in the same manner. To illustrate: If, after the decree in cause 734 was entered, Wallace had instituted another action to recover damages for the same trespasses, he would have been estopped by the decree as effectively as the defendants are estopped to claim a right to divert the waters which they were perpetually enjoined from diverting.
Finally, it is contended that, even though these defendants are estopped to claim a right to the use of the waters of Dunkelberg Creek for irrigation purposes, they may nevertheless use the waters of that creek for the so-called natural purposes: domestic use and watering livestock, and in support of that contention reliance is placed upon the decision in Mettler v. Ames Realty Co., 61 Mont. 162, 201 Pac. 702. But counsel completely misapprehends the force and effect of that decision. It was there held that the doctrine of riparian rights has never prevailed in Montana since 1865; that the doctrine of appropriation has prevailed and does prevail now; that the doctrine of appropriation sanctions the right of an appropriator to use all of the waters of a stream to the exclusion of riparian proprietors, if the entire flow has been appropriated by him, subject only to his needs and facilities as therein explained.
The judgment is affirmed.
Affirmed.
Mr. Chief Justice Callaway and Associate Justices Matthews and Stark concur.
Mr. Justice Galen, being absent on account of illness, takes no part in the foregoing decision.
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PER CURIAM.
Pursuant to praecipe of counsel for appellant, it is ordered that the appeal in the above-entitled cause be, and the same is hereby, dismissed.
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HONORABLE C. W. POMEROY, District Judge,
sitting in place of MR. CHIEF JUSTICE CALLAWAY, disqualified, delivered the opinion of the court. '
Suit was brought by the plaintiff, the First National Bank of St. Paul, against the Montana Cattle Loan Company, R. B. Noble, C. D. Eliot, Julius C. Peters, and L. H. Hamilton, upon a promissory note for $25,000, given the plaintiff by the loan company and indorsed by the other defendants, who were directors of the Commercial National Bank of Great Falls. The note was for a loan made through the Great Falls bank. It was a renewal of a $30,000 note indorsed by Directors Noble, Peters and Hamilton only.
The single issue pertinent to this appeal is contained in the following allegation in the amended answer: “That in order to obtain the indorsement of the answering defendants R. B. Noble, Julius C. Peters, and L. H. Hamilton, and each of them, on said note, plaintiff represented and promised to each of them, respectively, that if he would indorse said note the indorsement of each and all of the directors of the Commercial National Bank would be obtained thereon to secure the same before the delivery of said note would be made to said plaintiff.” It further appears by the amended answer and by the proof at the trial that the indorsements of four of the directors of the bank were not obtained.
The cause was tried to a jury. There was a directed verdict for the plaintiff against the defendants Montana Cattle Loan Company, R». B. Noble and C. D. Eliot, and for the defendant Julius C. Peters. The jury found in favor of the defendant L. H. Hamilton. Judgment was entered in accordance with the verdict. Plaintiff’s motion for a new trial was denied, and it appealed from that portion of the judgment in favor of the defendants Peters and Hamilton.
The only assignments considered are those argued by plaintiff. (Anderson v. Northern Pac. Ry. Co., 34 Mont. 181, 85 Pac. 884.)
The court’s instruction No. 9 reads: “You are instructed that the plaintiff bank is bound by the assurances made to the defendant Hamilton, through Noble, by plaintiff’s agent Schulenberg, to the effect that the note in suit should not be delivered to the plaintiff bank until it had been indorsed by all of the directors of the Commercial National Bank, and you cannot find a verdict against the defendant Hamilton unless you further find that when he signed the $30,000 note, as president of the Montana Cattle Loan Company, defendant Hamilton knew, or in the exercise of ordinary care should have known, that the $25,000 note would not thereafter be indorsed by all of the directors of said Commercial National Bank.”
Plaintiff objected to the instruction as follows: “The plaintiff excepts to the giving of instruction No. 9 for the following reasons, to wit: First, that said instruction assumes as a basis and fact that assurances were made to the defendant Hamilton through Noble, by Ed. Sehulenberg, as plaintiff’s agent, to the effect that the note in suit should not be delivered to plaintiff bank until it had been indorsed by all the directors of the Commercial National Bank, whereas, in truth and in fact, there is no evidence to justify such assumption of fact, and, at any event, said evidence is not conclusive or binding, and the instruction is, in effect, an instruction to the jury that the said assurances were in. fact made by the • said Ed. Schulenberg; that said Ed. Schulenberg was in fact plaintiff’s agent, and the assurances were made through the defendant Noble, and they were to the effect that the note in suit should not be delivered to the plaintiff bank until it had •been indorsed by all the directors of the Commercial National Bank, and that said instruction is prejudicial to the plaintiff in said assumption of fact. The plaintiff further objects to said instruction upon the ground that there is no sufficient evidence to go to the jury. That the assurances were made as therein set forth, and that said instruction is contrary to law, in the statement that the plaintiff is bound by the assurances made to the defendant Hamilton through the defendant Noble, by plaintiff’s agent Schulenberg.”
The objection to the instruction presents the question whether the trial court was warranted in assuming as a matter of law that the assurances mentioned were made to Hamilton as indicated, and Schulenberg, when he made the assurances, was, and was acting as, the agent of the plaintiff. The action of the court cannot be sustained unless the facts assumed are established by uncontradicted evidence which furnishes the basis for but one reasonable conclusion. (Consolidated etc. Min. Co. v. Struthers, 41 Mont. 565, 111 Pac. 152; John v. Northern Pac. Ry. Co., 42 Mont. 18, 33 L. R. A. (n. s.) 85, 111 Pac. 632; Flaherty v. Butte Elec. Ry. Co., 42 Mont. 89, 111 Pac. 348; Milwaukee Land Co. v. Ruesink, 50 Mont. 489, 148 Pac. 396; Old Kentucky Distillery v. Stromberg-Mullins Co., 54 Mont. 285, 169 Pac. 734; Stiemke v. Jankovich, ante, p. 363, 233 Pac. 904.)
I. E. Hansen testified that he was a vice-president of the plaintiff in charge of the department of banks and banking; that he handled all business with country banks; that he had a number of agents under him, and Schulenberg was one of them; that the business of the plaintiff bank involved in this suit was handled by the witness; and that Schulenberg under his direction came out and negotiated with the officers of the Great Falls bank and reported what he had done. Defendant Peters testified that in April, 1921, Hansen told him Sehulenberg would be out to Montana to go into the situation with full authority to do whatever was necessary. Defendant Noble testified as to a conversation he had with Sehulenberg in Great Falls just before the execution of the $30,000 note as follows: “Mr. Sehulenberg told me that he wanted all of the bank directors as indorsers on this note; I told him I didn’t think it could be done. He said, ‘It must be,’ and he said, ‘You can state further to the individual directors that if it is not indorsed by all of them, that the note will not be accepted or delivered’; and with that understanding I proceeded to get the indorsers, I did repeat that to the men who actually did indorse it. After I had the conversation with Sehulenberg to the effect that the $25,000 note was to be procured under substantially the same conditions, I again repeated the assurances as to the delivery of the note, and the indorsements that would be obtained before it would be accepted or delivered; so that applied to the $25,000 note, too.” March 6, 1922, Hansen, as vice-president of the St. Paul bank, wrote O. A. Carlson, a vice-president of the Great Falls bank, concerning the $25,000 note: “Mr. Sehulenberg thoroughly understands the situation and our attitude on the proposition and is therefore in a position to discuss it with you as well as any of the officers here in the bank.” The testimony of the witnesses Peters and Noble was not contradicted, nor was either witness impeached or by any testimony or circumstance discredited. Hansen and Sehulenberg were present at the trial, and neither testified as to the authority of Sehulenberg nor as to the statements Noble testified were made to him. “Evidence is to be estimated * * ® according to the evidence which it is in the power of one side to produce, and of the other to contradict.” (Sec. 10672, subd. 6, Rev. Codes 1921.) That the distinguished jurist who tried the case withdrew these issues from the jury is worthy of consideration., “The judge of the trial court, who saw this witness on the stand and observed his demeanor, was in a much better situation than are the mem bers of this court to determine his credibility; * * * and * * * the motion for a new trial was addressed to the sound discretion of the trial court, and in the absence of a clear showing of abuse of such discretion, this court will not interfere.” (Bowen v. Webb, 37 Mont. 479, 97 Pac. 839.)
Measured by the rule of law applicable as shown by the authorities cited, the trial court did not err in withdrawing the issues mentioned in instruction No. 9 from the jury. It is not necessary to find that Noble was the agent of the St. Paul bank. He was but a means of communication from Schulenberg to the directors who signed the note.
The court’s instruction No. 10 reads: “You are instructed that if you believe from the evidence that defendant Hamilton, at the time he signed the $30,000 note as president of the Montana Cattle Loan Company, had an opportunity to ascertain, and in the exercise of the care which would ordinarily have been exercised by a reasonable man under the same circumstances should have ascertained, that the said $30,000 note had been sent to plaintiff bank without the indorsement of all the directors of the Commercial National Bank, nevertheless if you believe from the evidence that at the time of signing the $25,000 note said defendant Hamilton believed that all the directors of said bank would indorse said $25,000 note before delivery and signed said note on account of and in that belief, your verdict should be for the defendant Hamilton.” Plaintiff objected to the instruction as follows: “The plaintiff objects to the giving of defendants’ instruction No. 10: First, that said instruction is contrary to law; second, that there is no evidence to justify the conclusion therein — that the defendant Hamilton at the time of signing the $25,000 note believed that all the directors of said bank would indorse said $25,000 note before delivery.”
Hamilton testified that when he signed the note he believed the note would not be delivered until indorsed by all of the directors. Noble testified that he told Hamilton it would not be otherwise delivered. Hamilton also testified: “I had confi dence in Mr. Noble at all times, and I believed that he wouldn’t tell me anything but the truth, and I still believe it, and I certainly do still have confidence in him.”
In view of this testimony it cannot be said there is no testimony to justify the conclusion that the defendant Hamilton believed that all of the directors would sign the note before delivery.
The judgment is affirmed.
Affirmed.
Associate Justices Holloway, Stark and Matthews 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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] |
MB. JUSTICE BANKIN
delivered the opinion of the court.
This is an action wherein the plaintiff seeks to hold the defendants, commissioners of Yellowstone county, individually liable for personal injuries sustained by her by reason of a defect in the highway.
Briefly stated, the plaintiff alleges that on August 4, 1922, a washout occurred in a public highway in Yellowstone county, leaving an excavation approximately thirty feet wide and eight feet deep; that the defendants had knowledge, individually and as a board of commissioners, of the washout and of the dangerous condition in which it left the highway, but failed and neglected to protect the traveling public by erecting barriers, signal devices or posting warning notices of any kind. Plaintiff further alleges that, while the automobile in which she was riding as a guest was being driven along the highway it was precipitated into the washout,’ causing her serious personal injuries.
Two answers were filed, one -by the defendants Chapple and Todd jointly and the other by the defendant Phelan. The answer of the defendant Phelan alleges that upon learning, on August 3, 1922, that the washout had occurred he erected sufficient barriers to warn the traveling public of the dangerous condition of the road, and that he or Chapple instructed the road supervisor to see that the barriers were maintained.
The answer of the defendants Chapple and Todd, after denying actual or constructive notice of the defect in the highway to the commissioners as a board, alleges as an affirmative defense that they were informed by the defendant Phelan that he had placed sufficient barriers on each side of the washout; that the defendant Chapple had instructed the road supervisor to see that the barriers were maintained; and that they had no notice that they had been removed.
Both answers deny the allegations of negligence and allege as an affirmative defense that the accident was caused by the contributory negligence of the plaintiff. The affirmative allegations of the answers were put in issue by replies.
The cause was tried to the court with a jury. At the conclusion of the testimony the defendants interposed separate motions for a directed verdict. The motions were granted, and judgment was entered in their favor. It is from this judgment that the appeal is prosecuted.
Defendants attack the sufficiency of the complaint upon three grounds: (1) That it fails to allege that notice of the washout was given to the board of commissioners; (2) that no allegation appears in it to show that proper barriers were not erected and maintained by the road supervisor; (3) that it is silent as to whether the board instructed the road supervisor to erect and maintain barriers.
1. With the contention that the allegations of the complaint as to notice are insufficient we cannot agree. The complaint alleges that “the defendants, both in their official ca pacity as a board, of commissioners and as individuals, had actual knowledge of said washout and of the condition of the said highway.”
2. The assertion that the complaint, to state a cause of action, must allege that proper barriers were not erected and maintained by the road supervisor is, in our opinion, disposed of by the allegation of the complaint that “there were no barriers or lights or any warning of any character at or near the approach to said excavation * * * on the ninth day of August, 1922, at the hour aforesaid.”
3. The contention that the complaint is defective without an •allegation that the commissioners did not instruct the road supervisor to erect and maintain barriers to warn the traveling public of the washout cannot be sustained. In our opinion, the commissioners are not relieved of liability by merely instructing the road supervisor to erect and maintain barriers. Section 1372 of the Revised Codes of 1907 imposed upon the road supervisor only the duty to remove any defect or obstruction in the highway forthwith, but the law was amended in 1915 (Rev. Codes 1921, sec. 1627) for the express purpose of imposing the same duty also upon the county commissioners. As amended, the law reads as follows: “Whenever any public highway becomes obstructed from any cause, or any bridge needs repairing or becomes dangerous for the passage of teams or travelers, the board of county commissioners, or the supervisor of the road district, if there be one, upon being notified thereof, must forthwith cause such obstruction to be removed, or bridge repaired, for which purpose” such person as “the board of county commissioners” may designate “or the road supervisor of the district may order out such number of inhabitants of the district as may be necessary to aid in removing such obstructions or repairing such bridge. * * * ”
The design of the statute is to maintain the highways unobstructed and safe for the traveling public by compelling the board of commissioners, as well as the road supervisor, to remove obstructions forthwith. To accomplish its purpose the board is clothed with drastic authority. It is given power to draft, without limit, the services of the physically fit inhabitants of the district, if necessary, to remove the obstructions. Manifestly, the commissioners may not shift the responsibility of making the repairs and warning the public of danger by mere direction to the road supervisor.
Inasmuch as the amended Act referred to above — which is now section 1627, Revised Codes of 1921 — places a positive legal duty upon the board of commissioners to remove defects and obstructions in the highway, after notice, any member thereof who neglects to perform that duty becomes liable under section 4520, Revised Codes of 1921, which provides: “Any county commissioner who neglects or refuses to perform any duty imposed on him, without just cause therefor, ° # * in addition to the penalty provided in the Penal Code, forfeits to the county five hundred dollars for every such act, to be recovered on his official bond; and is further liable on his official bond to any person injured thereby for all damages sustained.” This section was borrowed from California, and, with the exception of the term “county commissioner,” which was substituted for the word “supervisor,” is a literal copy of section 4086 of Kerr’s Cyclopedic Codes of California of 1906. The latter section was repealed; prior to its repeal however, the supreme court of that state, in referring to it, said: “For a neglect or a refusal to perform a duty imposed upon him by law, a supervisor is by section 4086, Political Code, made personally liable.” (Santa Cruz R. R. Co. v. County of Santa Clara, 62 Cal. 180.)
Counsel for defendants insist, however, that, even if the com plaint states a cause of action, the verdict was properly directed for the defendants because no evidence was introduced showing that notice of the washout or of the failure of the road supervisor to erect or maintain suitable barriers to warn the traveling public was given to the commissioners as a board. To support their contention they rely upon the deci sion of this court in Smith v. Zimmer, 45 Mont. 282, 125 Pac. 420.
The answers of the defendants Chapple and Phelan admit, and it is also disclosed by their testimony at the trial, that they had been to the scene of the washout, and that the board of commissioners was in session, with all members present, upon three separate days thereafter and prior to the night of' the accident. In other words, the defendants Phelan and Chapple admit actual knowledge of the washout and the conditions surrounding it, but deny official notice.
In the case of Smith v. Zimmer, supra, there is language in the opinion on rehearing to the effect that notice must come to the commissioners while convened as a board, but the character of notice required to charge the members is not stated. If that language is to be interpreted as requiring notice to commissioners while convened as a board before liability can attach to them, we do not adhere to it.
We think the correct rule of law is that knowledge gained by one as an individual, of matters demanding official action, is knowledge to him as an official. No officer who had actual knowledge of a condition that demanded official aetion and has failed to act should be permitted, after others have suffered injury from his nonfeasance, to assert the technical defense that in seeing the defect he used his sight in his private capacity but kept closed the official eye. It cannot be said that the members of the board of commissioners owe no duty to the public except when they are in session or are engaged officially. It is the duty of every commissioner who has knowledge of conditions demanding immediate attention to do all he reasonably can to see that the board acts forthwith.
The record in the case before us contains sufficient evidence of negligence on the part of the defendants Chapple and Phelan in failing to erect barriers adequate to warn the traveling public of the danger and to cause the obstruction to be removed forthwith to present an issue of fact for the jury.
The answer of the defendant Todd admits that he had knowl edge of the washout prior to the time of the accident. The uncontradicted testimony, however, discloses that he first heard of it after the accident occurred. He was in attendance at three meetings of the board of commissioners held between the date of the washout and the accident. It was the duty of the defendants Phelan and Chappie to notify him and consider the matter of remedying the defective condition of the highway at the first meeting of the board. Todd could not be held personally liable for the negligence of his associate commissioners but for the admissions in his answer of actual knowledge of the washout prior to the latter occurrence. No request was made by his counsel for leave to amend his answer to conform to the proof, nor did they offer to show that the admissions were made by inadvertence or mistake. Under this condition of the record he cannot controvert the admissions, but is bound by them until they are eliminated by amendment in the district court. (Wulf v. Manuel, 9 Mont. 276, 279, 286, 23 Pac. 723; Weatherman v. Reid, 62 Mont. 522, 205 Pac. 251.)
The judgment is reversed and the cause remanded for a new trial.
Reversed and remanded.
Mr. Cutre Justice Callaway and Associate Justice Stark concur.
|
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] |
MR. CHIEF JUSTICE CALLAWAY
delivered the opinion of the court.
1. The court did not err in refusing to strike from defendant’s answer the allegations respecting his service in the army. The defense set up was predicated upon the proposition that the contract between plaintiff and defendant had been rescinded by mutual consent, including the note which was a part of the transaction, the impelling cause for which was defendant’s retention in the army. His offer to rescind the contract was based upon that fact. No one could tell how long he would be compelled to serve as a soldier. This condition of his affairs made it impossible for him to comply with his contract; therefore he offered to rescind the contract. And for the same reason, it seems, plaintiff accepted the offer. The reason which induced the parties to act as they did was an element of importance in arriving at a correct solution of the controversy before the court. The matter alleged was not only proper by way of inducement, but also as going to the underlying cause which served to explain to the court the intentions of the parties upon the vital issue in litigation. It is true that the defense might have been stated more succinctly; nevertheless relevant facts only were pleaded.
2. Counsel for plaintiff contends that the court erred in submitting the case to the jury after both parties had moved for a directed verdict. In moving as they did the parties agreed that the evidence offered presented only a question of law to be determined by the court (Barkemeyer Grain & Seed Co. v. Hannant, 66 Mont. 120, 213 Pac. 208; Fifty Associates Co. v. Quigley, 56 Mont. 348, 185 Pac. 155), but the power of the court cannot be limited by such an agreement. The court may not agree with counsel. The court may deem the evidence in substantial conflict and if it does its power to require the jury to make a special finding or to return a general verdict, or both, is unquestioned. (See White v. Kenny, 146 App. Div. 803, 131 N. Y. Supp. 416; Bank of State of New York v. Southern National Bank, 170 N. Y. 1, 62 N. E. 677; Virginia-Tennessee Hardware Co. v. Hodges, 126 Tenn. 370, 149 S. W. 1056; McClure v. Wilson, 109 Wash. 166, 18 A. L. R. 1421, 186 Pac. 302.) Here the court was in doubt upon conflicting evidence. It desired the jury’s judgment upon the question whether the parties intended to include the note in their contract of rescission and so submitted special findings touching that issue. This was commendable practice. Disputed points deemed material by the court often might be resolved to the court’s satisfaction if special findings were required. All the facts and circumstances considered we think the jury was warranted in making the findings it did.
3. That the contract of sale between the parties was rescinded by their mutual consent is beyond doubt. The promissory note in suit was an integrant part of that contract. A contract is extinguished by its rescission. (Sec. 7564, Rev. Codes 1921.) The offer to rescind and the acceptance thereof were unequivocal. The effect of the agreement of rescission was to undo the contract, to treat it as if it had never been. “Now rescission has a well-defined meaning in law, and includes the idea of restoration of both parties to their status quo and the return by each to the other of the consideration given and received.” (Reiger v. Turley, 151 Iowa, 491, 131 N. W. 866.) Properly, when plaintiff received from defendant’s brother defendant’s copy of the contract he should have delivered up the note This he did not do but by the court’s order might well have been compelled to do.
The note was a promise to pay the initial payment required by the terms of the contract. Plaintiff failed to show that defendant was in default when he offered to rescind the contract. In any event, forfeiture of the contract had not been declared — the subject had not even been suggested.
Under the conditions shown by the evidence, when upon a mutual rescission of the contract the plaintiff received from the defendant restoration of the land which was the subject, of the contract, the defendant was entitled to a return of what he had paid plaintiff upon the contract. This would have been the case had he paid the $500 in cash. It was so held in Dietz v. Rabe, 65 Mont. 500, 211 Pac. 343. (And see Black on Rescission and Cancellation, see. 535; Reiger v. Turley, supra; Glock v. Howard & Wilson Colony Co., 123 Cal. 1, 69 Am. St. Rep. 17, 43 L. R. A. 199, 55 Pac. 713; Maffet v. Oregon & C. R. Co., 46 Or. 443, 80 Pac. 489.)
Section 8529, Revised Codes of 1921, cited, has no application to a situation like this. (Hornburg v. Larson, 93 Wash. 74, 160 Pac. 11.)
The court did not require the note to be delivered up for cancellation, but no complaint is made on that score.
The judgment is affirmed.
'Affirmed.
Associate Justices Rankin, 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. CHIEF JUSTICE CALLAWAY
delivered the opinion of the court.
In a proceeding charging her with having committed a contempt of court Anna E. Nett was found guilty. The court rendered judgment imposing upon her a fine of $250, and also ordered therein that the complainant recover from her his costs in the proceeding. Thereupon she made application to this court for a writ of supervisory control, upon which an order to show cause was issued.
The proceeding was instituted by affidavits filed by John A. Willard as complainant, which recited, among other things, that in a decree rendered by the district court of Cascade county in 1911, to which both he and Nett were parties, the water rights of the parties thereto were established in Sun River and its tributaries; by the terms of the decree the parties thereto were reciprocally enjoined and restrained from interfering in any manner with one another “in their respective rights to the use of * * * the said waters of Sun River, or its tributaries, and the said water ditches and water rights of the respective parties.” The decree awarded 80 inches of the waters of Willow Creek, a tributary of Sun River, diverted by a certain ditch for irrigating certain lands, to a predecessor of Willard. It is set forth in Willard’s affidavit that ever since on or about the twenty-second day of December, 1913, he “has been and now is the owner of the above-described lands and the aforementioned water right; * * * that said water right has never been abandoned.” That on May 31, 1924, at a time when the complainant’s lands were in great need of irrigation, he turned the water to which he was entitled into the ditch and Nett, relatrix here, closed down the headgate and thereafter prevented any water from flowing down the ditch. Upon the affidavits an order was issued requiring the relatrix to show cause why she should not be punished as for a contempt of court.
After a number of continuances by consent of counsel the cause came on for hearing October 4, 1924. Relatrix entered a plea of not guilty. Thereupon evidence in support of the affidavits was given by complainant and his witnesses. Relatrix then took the stand in her own behalf.
It appears that the ditch through which complainant claims the right to conduct the waters of Willow Creek to his land first passes over the lands of relatrix. She has a right to use water through this ditch, a right prior in time to complainant’s but this fact is not material to the present controversy for the reason that at the time complainant attempted to run water through the ditch there was ample water in the stream. to supply the rights claimed by both parties. The relatrix admitted that she had turned the water out of the ditch and back into the creek, thereby preventing its flow down to the lands of the complainant. In defense of her action in so doing she attempted to show, first, that the reason she turned off the water was to protect her lands, contending that the ditch was not in a condition to convey water, and when complainant turned in the water it overflowed the banks of the ditch and went then upon the farming lands of relatrix, thus preventing her from seeding her lands which she was then attempting to do. The court sustained an objection to proffered testimony along that line, saying: “I don’t think you can come in here with that kind of defense. You ought to have set that up affirmatively. ’ ’ As will be seen presently, we think the court was wrong in taking that position.
Whether the proffered testimony would have been of sufficient substance to purge relatrix of the contempt charged we shall not intimate an opinion; the weight of the evidence, viewed in the light of all the surrounding facts and circumstances, was for the trial court to determine. If for no other purpose, the testimony was admissible as bearing upon the good or ill intentions of the relatrix when she interfered with the water which complainant had turned into the ditch. But it is pertinent to observe here that where one has been enjoined from meddling with the ditch of his neighbor it is not every sort of interference with the ditch which will be followed by condign punishment: As, if my neighbor who lives below me on the stream has a ditch along a hillside above my land and through no fault of mine the ditch breaks, carrying sand and gravel upon my growing crops, whereupon I shut off the water to save myself from loss; in that case certainly my explanation will be received to show that I did not intend any contempt of the court’s decree when I shut off the water. If it should appear that the ditch in this ease was insufficient to carry water, which fact was known to complainant, and yet he persisted in turning water therein knowing that it would run upon the land of the relatrix and prevent her from seeding it, and relatrix then in good faith shut off the water to prevent loss and damage to herself, it would be a harsh rule that would reject her explanatory testimony.
Relatrix next essayed to show that complainant did not have any right in the ditch; she attempted to introduce testimony showing an abandonment of his right. An objection was sustained to this line of testimony, the court saying: “That should have been specially pleaded.” Thereupon counsel for relatrix asked leave to file an answer which the court denied.
Contempt proceedings are sm generis (State ex rel. Zosel v. District Court, 56 Mont. 578, 185 Pac. 1112), but are criminal in their nature (State ex rel. Rankin v. District Court, 58 Mont. 276, 191 Pac. 772). So highly penal are they in character that the evidence must show that the accused is guilty beyond a reasonable doubt, otherwise he is entitled .to be discharged. (State ex rel. Boston & Mont. C. C. & S. M. Co. v. Judges, 30 Mont. 193, 76 Pac. 10.) In the case last cited this court said that from an examination of the practice provided for in the Code of Civil Procedure (secs. 2170-2183 of the 1895 Codes, corresponding to sections 9908-9921, Rev. Codes, 1921) for summary punishment of contempts it is apparent that contempt proceedings “have most, if not all, the characteristics of a criminal case and few, if any, of a civil action.”
Our statute provides that when a person arrested upon a charge of contempt has been brought up or has appeared, the court or judge must proceed to investigate the charge, and must hear any answer he may make to the same and may examine witnesses for or against him. (Sec. 9916, Rev. Codes 1921.) The character of the “answer” is not indicated; but that the statute contemplates that a full and fair investigation of the offense charged shall be made by the court or judge is beyond question. When the accused is brought up, or appears, “the court or judge must proceed to investigate the charge” and “must hear any answer” which the accused may make. That an oral answer, a plea of not guilty, is sufficient for all purposes we have no doubt. A search of the authorities for the historical background of our statute has not afforded any information of an interpretive character. But it seems to us that the language of the statute speaks its own interpretation. In practice according to our observation persons haled before the court as for constructive contempt have made answer in one of three ways: By affidavit, by verified answer, by a plea of not guilty. Either method is appropriate.
Upon the hearing in this court Mr. Mclntire, Nestor of the Montana bar, and one of its most distinguished members, said he thought a plea of not guilty sufficient for all purposes, and we think his opinion correct.
We note, in passing, that in State ex rel. Webb v. District Court, 37 Mont. 191, 15 Ann. Cas. 743, 95 Pac. 593, State ex rel. Zosel v. District Court, supra, and State ex rel. Keiley v. District Court, 58 Mont. 272, 191 Pac. 519, the answers interposed by the accused were pleas of not guilty.
The proceeding being quasi criminal we see no reason why an accused should not rely upon a plea of not guilty as he may do in a criminal ease; and upon that plea or answer he should be allowed to present every defense which will show that he is not guilty of the public offense — contempt of court — - with which he stands charged. Relatrix was charged with a constructive contempt, was ordered to show cause why she should not be punished for the offense committed. She was told “Appear and you shall be heard” but when she appeared the court said, “You shall not be heard.” (Windsor v. McVeigh, 93 U. S. 274, 23 L. Ed. 914 [see, also, Rose’s U. S. Notes].) She was condemned without an opportunity to be heard upon the erroneous theory that she should have conformed to the rules of civil pleading. But even under those rules, in order for complainant to maintain that his rights had been infringed upon, it was incumbent upon him to show that he had the rights he claimed. lie pleaded affirmatively that his rights had not been abandoned. Relatrix was entitled to show the contrary under a general denial, and in any view of the case her plea of not guilty amounted to that.
Under that plea relatrix should have been accorded the im alienable privilege of being heard fully in her defense; “for no proposition can be more clearly established than that a man cannot incur the loss of liberty or property for an offense by a judicial proceeding until he has had a full opportunity of meeting the charge against him.” (State ex rel. Gemmell v. Clancy, 24 Mont. 359, 61 Pac. 987.)
This court has held repeatedly that costs in a contempt pro ceeding may not be assessed against the eontemnor. "Where a fine is proper the costs must be paid from the fine. (State ex rel. Flynn v. District Court, 24 Mont. 33, 60 Pac. 493; State ex rel. Morse v. District Court, 29 Mont. 230, 74 Pac. 412; State ex rel. Edwards v. District Court, 41 Mont. 369, 109 Pac. 434.)
The judgment finding relatrix guilty of a contempt of court is annulled. Let the writ issue as prayed for.
Writ issued.
Associate Justices Holloway and Stark and Honorable Wm. H. Poorman, District Judge, sitting in place of Mr. Justice Rankin, disqualified, 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 SANNER
delivered the opinion of the court.
The appellant was convicted of statutory rape, and seeks a reversal of the judgment, as well as of an order denying his motion for new trial on these grounds: (I) That he was put in jeopardy upon an information previously filed and dismissed; (II) that the evidence is insufficient; (III) errors of law occurring upon his trial; and (IV) newly discovered evidence.
I. The information upon which this conviction is based was filed February 25, 1916; it charges the appellant with the commission of an act of sexual intercourse with Rita Smith, a female aged thirteen years, on or about April 7, 1915, in the county of Broadwater; and to it the appellant interposed the pleas of former acquittal and once in jeopardy. There was no basis for the plea of former acquittal, but the plea of once in jeopardy was based upon these facts: An information had theretofore been-filed, charging the appellant with the commission of an act of sexual intercourse with the same Rita Smith on or about May 26, 1915, in the county of Broadwater, upon which information he was arraigned and entered his plea of not guilty. Iiis trial upon said charge was set for February 25, 1916, on which day both sides announced their readiness for trial; thereupon a jury was called and sworn, the county attorney made his opening statement, and C. S. Smith took the stand as a witness for the state; the appellant objected to the examination of said Smith because his name had not been indorsed upon the information, and made like objection to any examination as witnesses of Rita Smith and Lena Cullom. These objections being sustained, the county attorney applied for leave to indorse said names upon the information, which leave was, upon appellant’s objection, refused, and thereupon, on motion of the county attorney, the appellant not consenting, the court dismissed said information, and discharged the jury from further consideration of the cause.
Upon just what theory the court refused leave to indorse the names upon the first information, and thereby occasioned its dismissal, we are at a loss to conceive. Nine months before the time it was brought on for trial, this court had decided State v. McDonald, 51 Mont. 1, 149 Pac. 279, holding, in effect, that such leave ought not to be refused, but ought to be granted, allowing the cause to be continued or to proceed to trial, according to whether the accused does or does not show prejudice by reason of such indorsement. The defendant in all cases is entitled to know what persons will be called to testify against him, and every reasonable opportunity he might desire to investigate them, or to prepare to meet their testimony, should be accorded him. But he is not entitled to go free or to delay the course of justice merely because the public prosecutor has ignorantly or carelessly omitted to observe the rule prescribed by the statute in this respect.
The state contends there never was any jeopardy on the first information, because that information was dismissed without a verdict, and by the provisions of section 9536, Revised Codes, the dismissal of an action, if a felony, is not a bar to a subsequent prosecution. This section applies to dismissals before a trial has begun and to dismissals in furtherance of justice. We do not see how it can have anything to do with a situation like the present; but, if it has, the section is by no means decisive. The right to immunity from a second prosecution is constitutional (Const., Art. Ill, sec. 18), and that right is to be measured by the meaning of the term “jeopardy” as employed in the constitutional provision. This is to be ascertained from the state of the law when the Constitution was adopted, not from subsequent legislation; and, as so ascertained, we find that the term was not intended to apply merely to those eases where a verdict has been rendered (State v. Keerl, 33 Mont. 501, 85 Pac. 862), but it applies as well to every case where the defendant has been brought to trial in a competent court upon a sufficient indictment or information before a jury duly impaneled and sworn (8 R. O. Lpp. 138, 139, et cit.; 12 Cyc. 261); and whenever such jeopardy has occurred for the same offense, and has, without necessity or the procurement of the accused, ended by a discharge of the jury before verdict, the plea is available. (Rev. Codes, sec. 9317; State v. Keerl, 33 Mont. 501, 515, 85 Pac. 862.) Now, the first information against the appellant was sufficient, the failure to indorse the names of the witnesses being, at most, an irregularity eorrectible upon terms; the discharge of the jury called and sworn to try the appellant for the crime charged by it was not occasioned by unavoidable accident or the procurement of the accused. Hence the question here is whether the jeopardy suffered by the appellant upon the first information was for the same offense as that for which he now stands convicted.
Counsel for the appellant concede that the two informations do not, upon their face, charge the same offense, because the acts alleged as constituting the crime are separated in time by some fifty days; but they argue that since under the decision in State v. Harris, 51 Mont. 496, 154 Pac. 198, the act now charged could have been made the basis of a conviction upon the first information, the possibility of such conviction was jeopardy and a bar to the present charge according to the provisions of section 9216, Revised Codes. We think not. The section provides that when a person has been once placed in jeopardy upon an information, the jeopardy is a bar to another information “for the offense charged in the former, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted” under that information. The term “offense necessarily included,” as here used, has a well-defined significance. It means lower degrees of the crime charged, or minor offenses of the same character, predicated on the same act or acts; it has and can have no reference to other acts than the one directly presented by the charge, because such other acts, if of like character, may themselves be the bases of independent charges of equal gravity. One rape cannot be included in another any more than one forgery or one murder can be included in another. So that, if it could be possible for the accused, under a given information for rape, to be convicted of a rape other than the one charged thereby — which it is not — the danger of such a conviction is not such jeopardy as will afford a bar under section 9216, against a later prosecution for such other offense.
Again, the appellant misconceives the purport of the Harris decision, though excusably, perhaps, because there is language employed in the opinion which admits the position taken by him upon his plea of former jeopardy. It is said, for instance, that when the accused “has committed several acts constituting a series, upon proof of any one of which he may be convicted, of what substantial consequence is it to him that the prosecuting officer does not make his selection of the particular act until the close of the state’s case?” This language was inapt, and, literally taken, allows an inference which was not intended and is not legally permissible. In that case — -a prosecution for rape— the state failed to prove the act charged at the time charged, but did prove that Harris had, within the period fixed by the statute of limitations, committed several acts of that character, and the effect of the decision was to correctly apply two rules of evidence pertinent to this class of cases. The first of these is that the state is not required to prove the date of the crime precisely as alleged in the information — this for the reason that save in those cases where time is a material ingredient of the offense, it is not necessary that the precise time be alleged. (Kev. Codes, sec. 9152.) But the rule of evidence is not wider in its scope than the rule of pleading; it amounts simply to this: If the information fixes a definite date, the prosecution
will not fail because the evidence discloses that a mistake occurred in the pleading, and that the identical crime charged was committed upon a date different from the one named, but before the information was filed, and within the period of the statute of limitations, though the variance may be sufficiently material to call for a continuance. (Rev. Codes, sec. 9174.)
The second rule is that evidence of other acts of like character to that forming the basis of the crime charged is admissible to show the intimate relationship existing between the prosecutrix and the defendant, for purposes of corroboration— this on the theory that such evidence tends logically to prove the offense charged but not to show that the accused committed an independent crime. The information can, however, charge but one offense (Rev. Codes, see. 9151), and the defendant can be convicted only of the offense charged.
The state cannot prove two or more offenses as such, and then select any one of them as the one for which a conviction will be sought. In 8 R. C. L., page 206, section 200, the rule is well stated as follows: “Whatever may be the object of evidence as to other offenses — whether to prove motive, intent, or guilty knowledge, or to show a general plan or scheme, or to prove identity, or to establish sexual intimacy and opportunity — proof of a distinct substantive crime is never admissible unless there is some logical connection between the two, from which it can be said the one tends to establish the other.” What the state can do in such a' case as the Harris Case and what we said it must do where the evidence does not show an act of the character alleged at the time alleged, but does show several acts of that character within the period fixed by the statute of limitations, is to definitively announce, before the defense is gone into, which of these acts it claims to be the one charged in the information. The very purpose of this is to separate the evidence of the crime charged from that which is merely corroborative, by identifying the act which was from the beginning intended to be charged, and to destroy the possibility of a conviction for any other; and it necessarily precludes the notion that a conviction can be had for any act other than the one intended from the beginning to be charged.
It follows, too, that when the information fixes a date and the evidence shows an act of the character charged as a crime at that time, the state cannot be allowed to claim a conviction under that information for a similar act at some other time. Since the appellant here could have been convicted in the prior proceeding only of the particular offense charged in the first information, his plea of former jeopardy is without avail unless and until he shows that, as a matter of fact, the offense charged in the second information is the same offense as the one charged in the first information.
We acknowledge that the appellant’s contention seems to be upheld in the cases cited by him. (State v. Price, 127 Iowa, 301, 103 N. W. 195; State v. Dye, 81 Wash. 388, 142 Pac. 873.) The reasoning of the Price Case does not appeal to us any more than it appealed to that eminent authority in criminal law, Mr. Justice McClain, who, together with Mr. Chief Justice Sherwin, filed a vigorous and, as we think, a sound dissent. The Dye Case arose upon an information which fixed no time, but was a blanket charge, or roving commission covering the entire period of the statute of limitations, and the result announced was reached by applying this test of Wharton: “Was the matter set out in the second information admissible as evidence under the first, and could a conviction have been properly maintained under such evidence? If the answer is, ‘Yes,’ then the plea is sufficient; otherwise it is not.” We accept the test and say that, while the matter set out in the present information would have been admissible as evidence upon a trial under the first information, it would not have sufficed for a conviction unless the offense charged in the present information was the offense charged, or intended to be charged, in the first one. As this was a question of fact, fairly submitted to the jury, and as there is nothing in this record to show that such was the fact, and much to show that such was not the fact, no fault can be found with the result in this respect. (Rev. Codes, sec. 9151; State v. O’Brien, 19 Mont. 6, 47 Pac. 103; 8 R. C. L., pp. 120, 121, secs. 92, 93, et cit.)
II. It is undoubtedly true that charges such as this are easy to make and hard to defend against even by one who is guilt-less; and where the state relies upon the uncorroborated testimony of the prosecutrix, the jury should be cautious of convicting upon such evidence. The reason is that from motives as various as human perversity, the charge may be made when no rape at all has been done, or it may be made against an innocent person when the crime has, in fact, been committed. In the present instance the commission of the crime was never open to question; the prosecutrix, a girl of thirteen, gave birth to a child in January of this year, and the jury have said upon her unsupported testimony that the defendant is guilty. This they could lawfully do if she was worthy of credit (State v. Vinn, 50 Mont. 27, 39, 144 Pac. 773; State v. Peres, 27 Mont. 358, 71 Pac. 162), and it is not for the members of this court, who did not see the witnesses, to say that the jury were wrong, or that they should have credited the testimony presented in defendant’s behalf and constituting, on paper at least, the greater Aveight of the evidence. Counsel, realizing this, insist that a conviction can be had on the uncorroborated testimony of the prosecutrix only when she is entitled to full credit, and that by reason of her obvious falsehoods and self-contradictions, the prosecutrix at bar ought, as a matter of law, to be held unworthy of credit. This cannot be done. Only in those rare cases where the story told is so inherently improbable or is so nullified by material self-contradictions that no fair-minded person could believe it may we say that no firm foundation exists for the verdict based upon it. (State v. McMillan, 20 Mont. 407, 51 Pac. 827; Escallier v. Great Northern Ry. Co., 46 Mont. 238, Ann. Cas. 1914B, 468, 127 Pac. 458.) But the falsehoods and inconsistencies here pointed out are not of this description; they relate to collateral details; some of them are plainly excusable in a child of the age of this prosecutrix, placed in her position; and while they might have justified distrust on the part of the jury, they certainly did not command it. The jury were authorized to say that she was entitled to full credit, and their declaration that she was so, as implied from their verdict, is final.
III. In addition to the rulings involved in the questions above discussed, the appellant presents as errors of law four other rulings, viz.: Refusal to permit Sophia Yalles to answer two certain questions asked by way of impeachment, the striking out of certain testimony relating to appellant’s attendance at school, and the giving of instruction No. 15.
Sophia Yalles was a schoolmate of prosecutrix, and it was sought to show by her that at some time in January or February, 1915, the prosecutrix had said that she was going to marry a neighbor named Doe, and wished she had a dollar for every time that Doe had kissed her. Assuming that these were material matters, we think there was no error. Our statute (Rev. Codes, sec. 8025) prescribes that before a witness can be contradicted as to statements made, the circumstances of time, place, persons present and language used must be mentioned to the witness sought to be impeached; these requirements were only partially met in laying the foundation with the prosecutrix.
The prosecutrix, having testified, not only to an act of sexual intercourse with the appellant on April 7, but also to one on March 5, and that both acts occurred after the close of school for the day, said that appellant had attended school all day on March 5. To refute this, Margaret Mahoney, superintendent of schools of Broadwater county, was called, and testified from a book which purported to be an attendance record of .the Barron school, to the effect that appellant had not attended school on either of those days. The book was not by law a record of her office, nor in fact a file therein. The witness did not make the entries, and neither she nor anyone else vouched for their correctness or condition. This appearing, the court struck her testimony, and refused to admit the record in evidence. It is claimed that this was error, under State V. Yinn, supra; but the eases are not parallel. The ruling under the circumstances was correct.
Instruction 15 advised the jury that it was “not necessary for the state to prove the date of the alleged offense precisely as charged in the information herein,” and it is claimed this had no place in the charge, because there was no uncertainty in the testimony as to the date, nor any divergence from the date alleged in the information, and therefore the instruction told the jury, in effect, that they might ignore the testimony given on appellant’s behalf tending to show that he was elsewhere at the time. We agree that upon this evidence the instruction was unnecessary; but we do not agree that it had or could have the effect assigned to it; nor do we see how it could have prejudiced the appellant in any way. The silent assumption of counsel is that, since the prosecutrix had testified to an act on March 5, the jury might have convicted for that, even though they believed the charge itself based upon the act .of April 7, had been successfully met by the evidence on behalf of appellant; but this is untenable in view of instruction No. 23, which told the jury that the evidence of other acts than the one charged was admissible only for the. purpose of corroboration.
IV. There is nothing at all in the claim of newly discovered evidence. The affidavit of counsel, filed in support of this ground of the motion for new trial, does not go further than to express a belief that additional evidence contradictory of some of prosecutrix’s statements might be secured, and a hope that, if a new trial should be granted, such evidence would be forthcoming. The persons from whom such evidence is expected refused to make affidavits, and this is fatal. (Rev. Codes, sec. 9350.) They were in attendance upon the trial, and no sufficient showing is made to excuse his failure to then elicit such evidence, if in fact it was in existence.
While we may at this distance entertain some misgivings touching the result in this case, we are compelled to hold that. no reversible error has been made to appear. The judgment and order appealed from are therefore affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
Rehearing denied January 21, 1917.
|
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MR. JUSTICE SANNER
delivered the opinion of the court.
Appeal by plaintiff from an order granting a motion for new trial. The motion was made upon all the statutory grounds, save only that the verdict is against law, and the order sustaining it is a general one. We must therefore affirm the order if it can be justified upon any of the grounds assigned in the motion. (Reynolds v. Jones, ante, p. 251, 163 Pac. 469; Scott v. Waggoner, 48 Mont. 536, L. R. A. 1916C, 491, 139 Pac. 454.) The issue was whether there had been an account stated between the parties, and the record shows a continuous conflict of evidence upon that issue.
It must be taken as settled that where the evidence is conflicting, the granting- or refusal of a new trial is within the sound legal discretion of the trial court. (Reynolds v. Jones, supra; Walsh v. Conrad, 35 Mont. 68, 88 Pac. 655.)
The order is affirmed.
Affirmed.
Mr. Chief 'Justice Brantly and Mr. Justice Holloway concur.
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MR. JUSTICE SANNER
delivered the opinion of the court.
Action to establish a claim for damages for breach of contract. The substance of the complaint is: That prior to'November 1, 1913, the plaintiffs entered into a written contract with the defendant Alfalfa Products Company (now bankrupt), whereby the latter agreed that it would on or about said date complete yards and corrals at Big Timber so as to take for feeding, and would take and there feed upon its special product “mollasafal,” certain of plaintiffs’ sheep until the same should be ready for market, at a stipulated price per ton for feed furnished; that pursuant to said contract plaintiffs shipped to Big Timber 8,652 sheep, but the company did not have its yards completed or take said sheep for feeding until December 11, 1913, and did not thereafter furnish for said sheep more than one-half enough feed — in consequence of which plaintiffs were obliged to do with feed of inferior quality or inferior quantity, and were finally compelled on January 14, 1914, to sell the sheep at a price at least $1 per head less than they would have been worth, had the contract been performed. The damages are laid in gross at $8,652.
In addition to the general issue, the answer presents: That after said contract was entered into, and prior to November 1, 1913, the plaintiffs waived the reception of said sheep on that date, and granted to the defendant company an extension for the completion of its yards and corrals until such time as it could procure the necessary materials, delayed without its fault ; that pursuant to such extension, the plaintiffs made arrangements satisfactory to them for the pasturage of their sheep near Big Timber in the meantime, and shipped said sheep to Big Timber on November 8, 1913, for such pasturage; that the sheep were taken by the defendant company on December 4, 1913, and were fed and cared for until January 14, 1914; that although the contract called for payment on the first day of each calendar month for all feed furnished during the month preceding, the plaintiffs failed on January 1, 1914, or thereafter, to pay for the feed furnished in December, 1913, and have also failed and refused to pay for any of the feed furnished to their sheep by the company.
The affirmative allegations of the answer were denied by the reply, and the cause was brought to trial before a jury whose verdict was for the defendants. Judgment followed accordingly, and from this, as also from an order afterward made denying their motion for a new trial, the plaintiffs have appealed.
The verdict is confessedly justified by the evidence, but a reversal is sought for error in respect of the following:
I. Rulings admitting evidence to the effect that while the plaintiffs’ sheep were being fed by the defendant company, sheep belonging to one Arnold and some lambs belonging to Glenn Parker were also being fed by the defendant company on mollasafal, and did well. As to Arnold’s sheep, it was made to appear that they had been fed and handled substantially the same as the plaintiffs’ sheep, so that there was a sufficient showing of parity in conditions to authorize the evidence even if it tended to prove that plaintiffs’ sheep were sufficiently fed. The true effect of the evidence, however, as to both the Arpold sheep and the Parker lambs was merely to confirm what the parties themselves had admitted, viz., that mollasafal was a satisfactory food; and while it is technical error to receive evidence of facts admitted, such error does not command a reversal. (Rev. Codes, sec. 6593.)
II. ' Rulings permitting the defendants to show that after January 1, 1914, they had impressed upon Mr. Petrie, the man in charge of plaintiffs’ sheep, that they could not buy the syrup necessary to make up the feed without money, and the bill for the December feed would have to be paid. We see neither harm nor error in this. That the company might need or want its money and might not feel obliged to go on indefinitely without it was a fact of which the plaintiffs could take notice without any communication, in view of the contract itself. Moreover, Petrie was not merely an employee of plaintiffs charged with the physical direction of the sheep; he was the plaintiffs’ agent to speak, and, if necessary, to give directions or to complain for them relative to the feeding, and, of necessity, to receive for and convey to them such information as the defendant company had to give concerning such feeding or concerning any reasons which might exist for the stoppage thereof.
III. Rulings rejecting evidence touching the weight of the sheep when received, offered in rebuttal. The plaintiffs had presented testimony in their case in chief giving the average weight of all the sheep; so, likewise, had the defendants in their case, and the question was for the jury. The evidence offered in rebuttal was intended to show that only the light end of the sheep had been weighed, and thus by inference to contradict the testimony as previously given on both sides. There was no claim of mistake to be rectified, and we think under the circumstances the rulings were proper.
IV. Rulings rejecting testimony offered in rebuttal, to the effect that the sheep were not sold or shipped pursuant to the demands of the mortgagee thereof. While it was alleged in the answer that the sheep were sold or shipped pursuant to the demands of the mortgagee and not because of any failure of defendants, there was no proof to support this allegation, and therefore nothing to rebut by the evidence offered.
V. The remarks of the court addressed to counsel while sustaining an objection. Counsel for plaintiffs in asking a question about a certain alleged conversation, had assumed a state of facts as applicable to the conversation he had in mind' which pertained to another and different one, and the court remarked, “That wasn’t the testimony, Judge Reynolds.” In what tone or with what manner this was said we do not know, but the words were justified. The supposed rule forbidding trial judges from commenting on the evidence has no application to a situation like this. It is the duty of the court to see that witnesses are not misled and that the evidence is not misapplied, and this action of the court, so far as it is disclosed by the record, meets our approval.
VI. Rulings on Instructions:
(a) The modifications of plaintiffs’ offered instruction No. 4 were not objectionable. The substitution of “reasonable” for “reasonably short,” as applied to the time after November 1, 1913, within which the company should by the contract have completed its yards, worked no essential change, while the interpolation of the clause relating to the waiver was a laudable attempt to state the whole law applicable to the delay feature without needless and confusing repetition.
(b) On the facts presented by this record, offered instruction No. 5 was misleading and properly refused. The essence of it, so far as proper, was sufficiently stated elsewhere in the charge.
(c) Plaintiffs’ offered instruction No. 7 was intended to advise the jury touching plaintiffs’ claim to an offset on January 1, 1914; but it is predicated on two mistakes of fact, viz.: The assumption that there was evidence to warrant the inference of damages to plaintiffs’ sheep at that time greater in amount.than the feed bill, and that there was a balance due from the company to the plaintiffs for feed furnished in December. The court was therefore under no obligation to give the instruction as offered, even though the reason assigned for such refusal may not have been tenable.
(d) 'Plaintiffs assail instruction No. 7 as given to the jury, because of a technical misuse and misapplication of the term “cancellation,” cancellation not being involved in the case. Granting this, we are at a loss to see how the plaintiffs could have suffered any injury from the instruction, since its obvious meaning, taken in connection with the rest of the charge, is that if the plaintiffs by an unjustifiable refusal to pay for the December feed had breached the contract, the defendant company was under no necessity to go on with it.
The judgment and order appealed from are affirmed.
Affirmed.
•Mr. Chief Justice. Brantly and Mr. Justice Holloway concur.
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MR. JUSTICE SANNER
delivered the opinion of the court.
The plaintiffs brought this action to recover upon a certain promissory nóte for $800 and interest, executed on August 20, 1914, by the defendant Albert S. Hanson, and to foreclose a mortgage upon certain chattels described in the complaint, given to secure the payment of said note. Maggie Macer, Farmers & Traders’ State Bank and American Bank & Trust Company are joined as defendants, under allegations that they claim some interest in the property. The American Bank & Trust Company made no appearance. The Farmers & Traders’ State Bank filed a separate answer, claiming in effect that on March 25, 1914, the defendant Macer, then the owner of the chattels in question, mortgaged the same to it to secure the payment of her certain promissory note for $3,121.70, which mortgage was duly filed for record on April 9, 1914; that said note has not been paid, and, being overdue, a foreclosure of the mortgage as well as a personal judgment against Maeer is demanded. The defendants Hanson and Maeer jointly answered, and the effect of their answer is to admit all the allegations of the complaint, and to plead that the defendant Maeer was not on March 25, 1915, and never became, the owner of the chattels in question, but that, in order that she might become such owner, said mortgage to the Farmers & Traders ’ State Bank was signed by her, together with a note to be secured.thereby, under terms and conditions assented to by said Hanson and said bank, which conditions were not fulfilled, and in consequence no consideration ever passed to Hanson for the property, or to Maeer for the mortgage. The plaintiffs replied to the answer of the bank, denying that Maeer was the owner of the property at the time her alleged mortgage to it was signed, and denying that the bank is the owner of any mortgage on the property. Upon these pleadings the case was brought to trial before the court sitting with a jury; later on, by common consent, the jury was discharged, and the cause was submitted to the court for decision upon the evidence presented. The trial resulted in certain findings of fact and conclusions of law by the court, upon which final judgment was entered in favor of the defendant Farmers & Traders’ State Bank. It is from this judgment, as well as from an order denying their motion for new trial, that plaintiffs appeal.
The principal question is: Was Maeer the owner of the property when the mortgage to the bank was signed? The trial court found that she was, and this we must accept, unless it is opposed to the clear preponderance of the evidence. (Bordeaux v. Bordeaux, 32 Mont. 159, 80 Pac. 6; Dean v. Stewart, 49 Mont. 506, 143 Pac. 966.)
We think there is no conflict of evidence at all so far as essentials are concerned. As to the crops, the existence of a mortgageable interest in her cannot be doubted; and it is Conceded that, if she ever became the owner of the other property, she did so by purchase from Hanson, who, prior to March 25, 1914, was the owner. Concerning such purchase, the undisputed evidence, as given by both Hanson and Ed. Maeer (who acted for his wife in the negotiations), is: That Hanson wanted to sell, and Mrs. Macer wanted to buy; that she was unable to pay the purchase price, and Hanson was unable to give her any time; that it was decided she might have the property if the Farmers & Traders’ State Bank would take her note for the purchase price, $2,700, and credit Hanson with that amount, such note to be secured by mortgage on the property, with such other property as the bank might require; that she executed a note to the bank for $3,121.70 to cover the purchase price of the Hanson chattels and an old debt due the bank from the Macers, and to secure said note she executed the mortgage on the Hanson chattels, together with the crops to be raised on her land for the year 1914; that because the bank did not credit Hanson with the amount of the purchase price, and paid no money to either Macer or Hanson, the latter declined to consummate the sale; that the parties then agreed Macer might hold, use and enjoy the property for the current year in consideration of the grain crops to be grown on her place and rendered to Hanson as compensation, and this agreement, which has been carried out, forms the basis of Hanson’s assertion of ownership in the crops. Mr. Price, the only witness for the bank whose testimony is material to this phase of the case, admits the bank was advised of Hanson’s refusal to consummate the sale before the mortgage from Macer was filed; that it was filed in spite of Hanson’s objections and insistence to the contrary; that the Macer note for $3,121.70 was never entered on the bank’s account of bills receivable, or elsewhere on its books, because it did not regard the transaction as complete; that no credit was ever given to Hanson, nor any money paid to him or Macer, prior to notice to the bank from Hanson that the deal was off. Price and Hanson agree that the failure to credit Hanson was due to Hanson’s refusal to indorse Macer’s note; but they conflict as to whether he agreed to do so — Hanson claiming that he agreed to indorse to the extent of the purchase price, to-wit, $2,700, and Price insisting that Hanson was to indorse for the amount of the note as made.
As we view the matter, it is of no consequence why Hanson declined to indorse. The essential fact is that he and Macer agreed, as they had a right to do, upon a sale which was to be for the equivalent of cash, to-wit, credit to Hanson at the Farmers & Traders’ State Bank. Until this consideration passed, the sale was incomplete, and title to the property did not vest in Macer. (Rev. Codes, sec. 4632; Adlam v. McKnight, 32 Mont. 349, 80 Pac. 613; 35 Cyc. 274, 275, A; Benjamin on Sales, 7th ed., secs. 343-345; also sec. 4, p. 298 et seq.; Mechem on Sales, secs. 477, 541 et seq.)
But it is insisted Macer had possession of the property when the mortgage was signed. Macer’s possession at that time was in no wise different from what it had been for the preceding two years, during which she managed the property for the use and benefit of Hanson. This the bank knew, and so could not have been influenced by any apparent change of possession; nor did it part with any value upon the faith of any change of appearances or declaration by either Hanson or Macer. Indeed, to part with value is the very thing it declined to do, until long after notice that Hanson refused to consummate the sale. Since title to the Hanson chattels never passed to Macer, she was not the owner of them when the mortgage was signed; and since she was not the owner of them when the mortgage was signed, it created no lien upon them, nor any obstacle to the plaintiffs’ mortgage from Hanson, so far as this property is concerned.
Emphasis is laid by respondent on the proposition that, until Hanson indorsed or got credit, he had an interest in Macer’s note to the extent of the purchase price, and since that interest was seized and sold on execution against him, the bank becoming the ultimate purchaser, neither he nor anyone claiming under him, is in position now to assert any interest in the property. It was not the agreement that Hanson should have, and he never did have, the slightest interest in Macer’s note to the bank. Since Macer never had title to the property, the indebtedness for the purchase price never accrued; if the bank chose to think otherwise, and, acting on its judgment, to buy Hanson’s supposed interest on execution sale, that is a loss it must recoup in some way other than at the expense of plaintiffs’ mortgage.
Concerning the crops, the case is somewhat different. In them Macer had a mortgageable interest, and upon them her mortgage to the bank was good, as against any contention Hanson might make, though only as security for the old debt. The evidence of Price seems to establish that this debt has been paid; but there is a stipulation in the record, upon which the court doubtless based its finding, to the effect that only $189.81 has been paid; so that, as the case is presented to us, her mortgage to the bank must be upheld as a prior lien on the crops for the unpaid balance of the old obligation.
As between the plaintiffs and Hanson, the ease for foreclosure of plaintiffs’ mortgage is complete by admission.
The judgment and order appealed from are therefore reversed, and the cause is remanded, with directions to proceed in conformity with this opinion.
Reversed and remanded.
Mr. Justice Holloway concurs.
Mr. Chief Justice Brantly, being absent, takes no part in the foregoing decision.
|
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] |
MR. JUSTICE SANNER
delivered the opinion of the 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.
ed. Affirmed.
Mr. Chief Justice Brantly and Mr. 'Justice Holloway concur.
|
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] |
OPINION:
PER CURIAM.
This cause was submitted upon conditions precisely similar to those appearing in No. 5,593, State v. Cassill, ante, p. 381 233 Pac. 908.
For the same reasons assigned in that cause, the judgment herein is affirmed.
Affirmed.
|
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MB. CHIEF JUSTICE CALLAWAY
delivered the opinion of the court.
This is an appeal by plaintiff from a judgment in favor of defendants.
The gravamen of the charge upon which this action rests is that the defendants, remiss in failing to make inspection, sold to plaintiff’s intestate an automobile in which there was a hidden defect which rendered the machine dangerous to human life.
The defendant Pence Automobile Company is the distributor of Buick automobiles and parts in the northwest district, which includes Montana, while defendant Butte Buick Company is a local dealer. The ear in question was shipped direct to the Butte Buick Company by the manufacturer from the factory at Flint, Michigan, upon an order which the Butte Company had given the Pence company. After the receipt of the car at Butte it was sold by the Butte company to John G. Holland, the intestate, and his brother, James J. Holland. The sale was made on June 28, 1921.
The complaint charges that before the car left the possession of the Pence Automobile Company, the toe throttle controlling the feed of gasoline to the motor had a tendency to catch, thus failing to reduce the amount of gasoline going to the motor on relieving pressure upon the throttle; that the “defect was not apparent on the face of the car to any but a skillful automobile mechanic”; that each defendant negligently failed to inspect the car for the defect before selling the same. It is alleged that while the intestate, Holland, was capable of driving the car and had skill in driving it he did not have the experience or skill necessary to detect the said defect except by actual driving and the defect was concealed from ordinary observation and the danger of the same was not appreciated by him and he believed the car ordinarily safe to drive.
The inspection given the car sold to the Hollands by the Butte Buick Company was such only as was given all new ears sold by that company, as is illustrated by the testimony of Roy Murray, president and general manager of the Butte Buick Company, speaking as a witness for plaintiff: “¥e inspect all new • cars to see that they are operating* perfectly or correctly. * * * The inspection which we give a car is an inspection to jsee whether or not the carburetor is adjusted properly so that the proper amount of gas and the proper mixture of gas and air goes into the engine, and, also to see that the brakes are in proper working order, and the spark control, and gasoline control, and to see that the car is properly oiled and filled with gasoline, and things of that character.” They gave that inspection to the car in question and found it in perfect order.
In the car sold the Hollands the flow of gasoline into the carburetor is controlled by a throttle upon which pressure is exerted by one of two devices, called the hand accelerator and the foot accelerator — otherwise called the hand throttle, and the foot or toe throttle. The foot accelerator works against a spring tension. When pressure is exerted upon it the throttle valve opens and permits gasoline to enter the carburetor. When the pressure is removed the valve should close instantly thus shutting off the flow of gasoline. The hand accelerator does not open or close the valve through tension, but by rigid action. When the valve is opened or closed by the hand accelerator it stays in that position until the accelerator is shifted. The hand and foot accelerators are complementary in a measure; they connect at the carburetor; both are a means of control over the same instrumentality. But the foot accelerator does not affect the operation of the hand accelerator while the hand accelerator does affect the foot accelerator, A witness testified: “If the foot throttle will not work, the hand throttle should. If the foot throttle would not release, the hand throttle would. The hand throttle could be released without affecting the foot throttle. If the foot throttle was caught, the hand throttle would work. The foot throttle action doesn’t affect the hand throttle action, while the hand throttle action does affect the foot throttle action.” To state it in another way: “The hand throttle does not move at all when you work the foot throttle, but the hand throttle moves the foot throttle up and down.” If the driver accidentally or otherwise advances the hand throttle he to that extent advances the foot throttle and the foot throttle will refuse to recede until the hand throttle correspondingly recedes.
John G-. Holland was an expert automobile mechanic. He had been engaged in the work of a machinist for ten years and had worked steadily as an automobile mechanic in Butte for about a year and a half and had worked on many Buick cars which came into the garage where he was employed. In order to familiarize Holland (hereafter in this opinion Holland refers to John G-. Holland) with the running of a Buick car Murray used a “demonstrator” which was of the same model as the car sold, the only difference being that the demonstrator was a five-passenger while the car sold the Hollands was a seven-passenger car. Murray showed him how to shift the gears, how to use the throttle, and how to drive — -“everything that was necessary to handle and control the car.” The two men were riding in the demonstrator upon three occasions before the purchase of the new car was completed. On the second occasion Holland drove the demonstrator, using both the foot and the hand accelerators.
Murray testified that when the ear was delivered to Holland on the 28th of June it was in good condition; “there was nothing wrong with the foot throttle at that time to my knowledge; the fopt throttle did not at that time of my knowledge have any tendency to catch or stick. ’ ’ The ear was driven by Murray around Butte “about nine miles or so,” in company with Holland before it was delivered to him.
After the car was delivered and before the accident it was run over 700 miles. It was never returned to the place of business of the defendant Butte company for any repairs prior to the time of the accident and no complaint was ever made about it to that company. On the afternoon of July 16, about a quarter of 5, Holland, in company with a fellow-workman, William Perry McAuliffe, also an expert automobile mechanic, started for a ride. Going up Arizona Street in Butte the foot accelerator or throttle caught. Holland said: “This foot throttle is stuck again, I took it up to them and they were supposed to have it fixed and bring it down Friday O. K. I am going to take it back to them again and talk to them.” And then he swore. McAuliffe said: “We can fix it; let’s stop and fix it.” To which Holland rejoined: “No, we will make them do it. They were supposed to do it twice, and have not done it yet.” To whom Holland referred the record does not indicate. So Holland and his companion proceeded in the direction of the Columbia Gardens Road to a point where they picked up a friend of Mr. Holland’s, Norman 0. Bongard by name. The party then returned to Butte but upon reaching Harrison Avenue took the main road to the Nine Mile House. Returning from there Holland followed what is called the upper Nine Mile Road. As he was going up an incline at a speed of about twenty-five miles per hour, the foot accelerator caught again. When the accelerator did not release, the car lunged forward at an increased speed. Here the situation was made more difficult by ruts in the road caused probably by the passage of heavy trucks. Holland stooped to release the accelerator; indeed it is probable that both Holland and McAuliffe stooped at the same time, although the record as do this is not clear. At any rate Holland lost control of the ear which ran upon the bank and turned over. The three men were thrown out of the car and rendered unconscious. Holland died the next day.
Some time after the accident Murray examined the wrecked car at Murphy’s garage, which was where Holland had been employed. Murray found the foot accelerator “in perfect condition; it was not damaged and was not sticking in any way.”
At the conclusion of plaintiff’s proof the court sustained motions for nonsuit interposed by the defendants.
The very able briefs of counsel have covered pretty thoroughly the whole field in which the liability of manufacturers and vendors for negligence in the construction or sale of their articles has been considered. But we need not enter that field at all; perhaps it were better to say we are not permitted to enter it. After a careful consideration of the evidence we are convinced that reasonable men of fair and unbiased minds can reach but one rational conclusion upon it.
Presuming that the foot accelerator, or throttle, was defective as alleged the fact remains that Holland, knowing full well the existence of the defect, continued to drive the car. It will not do to say that he did not know and appreciate the danger. The admitted facts lead irrefutably to a contrary conclusion. An inexperienced driver would know — anyone with common sense would know — that if by reason of the defect in the control of the power of the engine could not be curbed danger would result. (Assuming here that he did not know he could exercise control by the hand accelerator, or throttle.) Holland, however, was an expert automobile mechanic, skilled in the repair of Buick automobiles. The foot accelerator had caught on two former occasions to his knowledge. Upon the third occasion when he was accompanied by a friend who was also an expert automobile mechanic, the friend said to him, “We can fix it; let’s stop and fix it,” but Holland rejected the offer and continued upon his pleasure ride.
In the complaint, as we have seen, plaintiff averred that the defect was not apparent on the face of the car to any but a skillful automobile mechanic. The proof showed Holland was an expert automobile mechanic. Further, plaintiff averred that while Holland had skill in driving the car he did not have the skill necessary to detect the defect except by actual driving; the proof showed that he had possession of the ear for eighteen days during which it was run over 700 miles, and that he knew the accelerator had caught on two former occasions; that at the beginning' of the ride which was to prove fatal he was driving the car, had actual knowledge of the condition of the foot throttle, and with another skilled mechanic at hand refused to remedy the defect. Under these circumstances it must be admitted that in continuing to drive the car after he had actual knowledge of the defect Holland proceeded not with ordinhry care and prudence, but carelessly, recklessly. “When the circumstances attending the injury, as detailed by the plaintiff’s evidence, raise a presumption that he was not, at the time, in the exercise of due care, he has failed to make out a case for the jury.” (George v. Northern Pac. Ry. Co., 59 Mont. 162, 196 Pac. 869.)
It is the settled rule in this jurisdiction that whenever the plaintiff’s own case presents evidence which unexplained makes out prima facie contributory negligence upon his part, there must be further evidence exculpating him, or he cannot recover. (Harrington v. Butte, A. & Pac. Ry. Co., 37 Mont. 169, 16 L. R. A. (n. s.) 395, 95 Pac. 8; Longpre v. Big Blackfoot Milling Co., 38 Mont. 99, 99 Pac. 131; Meehan v. Great Northern Ry. Co., 43 Mont. 72, 114 Pac. 781; Molt v. Northern Pac. Ry. Co., 44 Mont. 471, 120 Pac. 809; Neilson v. Missoula Creamery Co., 59 Mont. 270, 196 Pac. 357; Cameron v. Judith M. & C. Co., 61 Mont. 118, 201 Pac. 575; Puckett v. Sherman & Reed, 62 Mont. 395, 205 Pac. 250.) The record does not disclose explanatory evidence of the requisite character.
If upon plaintiff’s proof the court had submitted the case to the jury, and the jury had found for the plaintiff, the court would have been obliged to set the verdict aside.
The judgment is affirmed.
Affirmed.
Associate ’Justices Holloway, Stake 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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MR. CHIEF JUSTICE CALLAWAY
delivered the opinion of the court.
This is an appeal from a judgment dismissing plaintiff’s action upon the ground that her complaint does not state facts sufficient to constitute a cause of action, and whether it does is the sole question presented. In her complaint she alleges in substance that she is and ever since prior to March 2, 1906, has been the owner of described land in Powell county situated near the confluence of Cottonwood and Baggs Greeks, together with two certain water rights decreed to her husband, William Zosel, by a judgment bearing date March 2, 1906, and the ditches appurtenant to the lands; that approximately 125 acres of the land are arid, but valuable for the production of hay, grain, grass, vegetables and fruit, which can be grown thereon with the aid of artificial irrigation, but not otherwise; that at all times since March 2, 1906, she has been raising such crops on the land, and during all of that time has used the waters from Cottonwood and Baggs Creeks to irrigate the same and for domestic purposes; that without the use and enjoyment of the waters of said creeks plaintiff will be deprived of any water for domestic purposes.
She next alleges that on March 2, 1906, in an .action in the district court of Powell county wherein Conrad Kohrs and others were plaintiffs, and F. H. Albee and others including William Zosel were defendants, a judgment was duly made, given and entered (the judgment being set forth at length) which ■ has never been appealed from, modified, reversed or set aside; that Baggs Creek is a tributary to Cottonwood Creek for a short period in the spring of the year; that both of the creeks flow in a westerly and northwesterly direction, and that the confluence of Baggs Creek with Cottonwood Creek is about one-eighth of a mile below her land; that these lands are situated so that the same can and have been sufficiently irrigated by waters taken from each of said creeks; that by the judgment her husband, William Zosel, was adjudged and decreed the use, enjoyment and possession of the waters of Cottonwood Creek and its tributaries for all domestic and beneficial purposes in the following amounts, namely, 100 inches of the waters of Baggs Creek, as of date March 1, 1883, and 75 inches of Cottonwood Creek, as of date March 1, 1884, and that she is the successor in interest of William Zosel in said rights; that the defendants and their predecessors in interest were adjudged and decreed to have the use and enjoyment of 1,926 inches of the waters of Cottonwood. Creek and its tributaries as of dates prior to the first day of March, 1883, and 400 inches of dates subsequent to the first day of March, 1884; that the entire amount of water decreed was 2,401 inches, and the amount flowing in the creeks during the flood or high-water period in the spring and early summer, namely, during the months of March, April, May and the 1st of June of each year, has been in excess of the amounts actually used by said plaintiff and defendants; that during these months of each year a large amount of water flows past the ditches of the parties and goes to waste, and that during the remaining months of the irrigating season of each year, namely, the latter part of June, July, August, September and October, the water flowing in the creeks has been less than the 1,926 inches awarded to defendants and their predecessors in interest as of dates prior to the first day of March, 1883 (that being the earliest water right decreed to plaintiff); and unless plaintiff had diverted and used some of the waters decreed to defendants as of dates prior to her own rights, during all of the years since long prior to 1906, except during the high-water-period of each year, she would have been without water for irrigating her said lands and for domestic uses.
■She further avers that ever since the second day of March, 1906, she has kept and maintained her ditches which tap Cottonwood and Baggs Creeks, “being the same William Zosel ditches mentioned in the judgment of March 2, 1906,” and that the same have ever been of sufficient size and capacity to convey 100 inches of water from Baggs Creek and 75 inches from Cottonwood; and that during the dry summer season of each and every year the waters of Baggs Creek decrease in volume “until during the time of such dry seasons there is less than 100 inches of water flowing in said creek at the point where plaintiff’s said ditch taps said creek.”
She then says that commencing with the third day of June, 1906, and at all times since and during each and every year commencing with the spring of each year as soon as weather conditions have permitted, she has “diverted from said creeks, through her said ditches and to and upon her said lands, and openly, notoriously and adversely, used upon her said land by means of said ditches all the waters from said creeks which said ditches would and do convey, namely, 100 inches of the water from said Baggs Creek, and 75 inches from said Cottonwood Creek, and continued to so divert and convey as aforesaid said amounts of water through said ditches during the entire irrigating season of each year, except at such times during the dry summer season when the said volume of water in said Baggs Creek is less than 100 inches”; that she begins to so use the waters during the latter part of March or the first part of April of each year, and continues to use them continuously and without interruption until the end of the irrigating season in the month of September or October of each and every year, and after that she employs the water for household and domestic purposes “and has so diverted and so used said waters at all times during each and every year since said third day of June, 1906”; that the ditch through which she diverts water from Baggs Creek taps that creek at a distance of about one and one-fourth ■ miles above the confluence of Baggs Creek and Cottonwood Creek, and none of the ditches belonging to the defendants or either of them tap Baggs Creek between the head of plaintiff’s ditch and the confluence of said creeks, except the ditches of the defendant Pierce; that at certain times during the dry season of each year the water flowing in Baggs Creek at the point where plaintiff’s ditch taps the creek recedes'to 50 inches or less at plaintiff’si point of diversion, and all of that water, if allowed to flow uninterrupted, sinks and disappears before it reaches Cottonwood Creek, and is forever lost to the defendants and each of them.
Plaintiff then avers that her use of the waters aforesaid is, and at all times since said third day of June, 1906, has been, open, notorious, peaceable, continuous, exclusive and adverse to the claim of said defendants and each of them, and that on or about the - day of July, 1906, plaintiff “gave notice to and during all of said time subsequent to said last-mentioned date, defendants and each and all of them had actual knowledge of plaintiff’s use of said waters, and that said use by plaintiff has at all of said times been under claim of right, without interruption or interference from any off said defendants or anyone else, save and except during the year 1919 as hereinafter set forth.”
She then relates that in June, 1919, the duly appointed, qualified and acting water commissioner for that year, in the action wherein said judgment was rendered, closed the ditches of the plaintiff, and that her husband, William Zosel, opened the ditches; that thereupon Zosel was charged with contempt by the water commissioner and in the trial following William Zosel was adjudged guilty of contempt and was sentenced to pay a fine of $50, which was affirmed on appeal, and that Zosel paid the fine. She alleges that the defendants threaten to and will prevent her from using the waters she claims during the dry months of each irrigating season unless restrained by an order of tbe court, and that she will be subjecting herself to contempt of court if she uses or attempts to use water, unless she is granted the relief prayed for.
She prays that she be adjudged and decreed to have the use, benefit and possession of 100 inches of the waters of Baggs Creek and 75 inches of the waters of Cottonwood Creek, prior and superior to the rights of the defendants or any of them, and for appropriate injunctive relief against the defendants.
The situation presented by the complaint is unusual, to say the least. "While plaintiff was' not a party to the action in which the decree was rendered, she says she was the owner of the lands, and the water rights which were awarded to William Zosel, her husband, when the decree was rendered; she likewise alleges that she is the successor in interest of her husband. That at all times she has been bound by the terms of the decree does not seem to admit of doubt. (State ex rel. Pool v. District Court, 34 Mont. 259, 86 Pac. 798.)
She does not allege that she has ever taken a greater quantity of water than was awarded William Zosel. Indeed, it does not appear that her ditches were capable of carrying more water than the decree gave him. Her position in effect is that she took that quantity of water under the decree when the creek supplied all rights in full, but .when the creek subsided she took her full quantity just the same; she did so at all times during each and every year since the third day of June, 1906. If the plaintiff, in alleging her acquisition by prescription of the right to use the waters she claims, had been content to set forth merely the formal allegations — the ultimate facts — upon which a right acquired by prescription rests — such, for instance, as would be 'alleged in the ordinary action where real estate claimed by prescription is involved — undoubtedly her pleading would be deemed sufficient. That a water right may be ac- quired by prescription will be conceded, (State v. Quantic, 37 Mont. 32, 94 Pac. 491.)
But the pleader did not follow the course above indicated. He preferred to set forth in detail the facts upon which the ultimate fact of plaintiff’s ownership is alleged to rest. Presumably he did so to the end that the pleadings in the case, disclosing the fact conditions obtaining, might narrow the issue to one of law, or at most to a mixed question of law and fact. So in the complaint he set forth the decree in full and that plaintiff in the first instance was bound by its terms. He recognized that all parties and privies thereto upon its face were bound by its provisions and that each, party and privy thereto presumably took the water from the streams adjudicated comformably to the decretal provisions. The defendants were warranted in assuming that the plaintiff, in taking the water from the streams, did so pursuant to the provisions of the decree unless she gave them express notice that she repudiated the decree and intended thereafter to take the water from the streams in defiance of the decree and in hostility to their rights. (2 C. J. 163; Root v. Woolworth, 150 U. S. 401, 37 L. Ed. 1123, 14 Sup. Ct. Rep. 136 [see, also, Rose’s U. S. Notes]; Abrams v. Taintor, 76 Neb. 109, 107 N. W. 225; Dupont v. Charleston Bridge Co., 65 S. C. 524, 44 S. E. 86. Compare Roda v. Best, 68 Mont. 205, 217 Pac. 669.)
Now what does plaintiff’s complaint show respecting this feature of the case? That on or about the-day of July, 1906, she “gave notice to and during all of said time subsequent to said last-mentioned date, defendants and each and all of them had actual knowledge of plaintiff’s use of said waters, and that said use by plaintiff has at all of said times been under claim of right without any interruption or interference from any of said defendants, or anyone else” except during the year 1919. To whom she gave the notice does not appear. And not under any possible construction of the language employed can it be said that plaintiff has pleaded that she gave any notice to each and all of the defendants on or about the third day of July, 1906, that she had repudiated the decree, that she intended to take water in defiance of it, or that she intended to take water properly belonging’ to the defendants, or either of them. She does not state what character of notice she gave. Was it actual or constructive? This particular allegation is not only faulty but unintelligible.
Her allegation that each and all of the defendants at all times had actual knowledge of her use of the waters does not avail her for the reason that in the absence of express notice given by her to them they had the right to presume that she was taking the water in conformity to the provisions of the decree; and in view of this presumption, inasmuch as she was assuming to plead all the facts (rather than the mere ultimate facts) showing her title by prescription, it was incumbent upon her to show that she took the water when the defendants were needing it; that by doing as she did she invaded the rights of the defendants, or some of them at least. If a defendant knew the plaintiff was using water contrary to the decree, unless he knew also that his own rights were being invaded, he could not complain; even if the plaintiff were taking water which she had no right to take, a defendant who did not then need it did not have any cause to complain. Again, plaintiff’s statement that she filled her ditches at the beginning of the summer and kept them full for the entire time may be taken as true and yet she may not have used a drop of water contrary to law, for if water were running in the creek which no one needed, anyone might take and make use of it. She does not allege directly, or even inferentially, that at any time when she made use of the water she deprived any prior appropriator of water when he needed it.
The use of water by a subsequent appropriator cannot be said to be adverse to the right of a prior appropriator, unless such use deprives the prior appropriator of it when he has actual need of it. To take the water when the prior appropriator has no use for it does not invade any right of his and cannot even initiate any claim adverse to him. (Talbott v. Butte City Water Co., 29 Mont. 17, 73 Pac. 1111; Norman v. Corbley, 32 Mont. 195, 79 Pac. 1059.)
When there was sufficient water in the creeks to supxfiy the actual needs of prior appropriators there could be no such thing ás adverse use by plaintiff. Each party to the decree is entitled to the use of the water and it is only when it becomes so scarce that all of the parties cannot be supplied that an appropriator by taking that which by priority belongs to another can be said to initate an adverse use. (Egan v. Estranda, 6 Ariz. 248, 56 Pac. 721; Anaheim Water Co. v. Tropic Water Co., 64 Cal. 185, 30 Pac. 623.)
Under our statute (see. 7097, Rev. Codes 1921) and by the terms of the decree, the parties were required to turn back into the creek all water which they were not actually using for some useful or beneficial purpose. The evident reason for this requirement is to make the water available to subsequent appropriators, to the end that the water may 'serve its highest duty. The plaintiff shows that appropriators prior to her were entitled to use 1,926 inches of water, but she does not allege that it was necessary for the prior appropriators to use their respective amounts all the time, and it is not probable that it was necessary for them to do so. It may be that except in the year 1919. the prior appropriators were alternately using their waters in such fashion that at all times they had sufficient for their needs.
An adverse use cannot be initiated until the owner of the superior right is deprived of its use in such a substantial manner as to notify him that his right is being invaded. (Smith v. Duff, 39 Mont. 374, 133 Am. St. Rep. 582, 102 Pac. 981.)
In order for plaintiff to prevail she would have to show that during the entire statutory period her invasion of the rights of the defendants was such as to give them or some of them a cause of action against her. (Smith v. Duff, supra; Chessman v. Hale, 31 Mont. 577, 3 Ann. Cas. 1038, 68 L. R. A. 410, 79 Pac. 254; Boehler v. Boyer, ante, p. 472, 234 Pac. 1086.)
If a pleader, not content to rest hi| case upon general allega tions, sees fit to sux>plement those allegations by pleading facts relative or germane thereto which serve to weaken or destroy the general allegations he must abide what he has done. He is not then in a position to ask the court to disregard his special allegations in order that the general ones may sustain his action.
When the plaintiff pleaded the judgment which when rendered admittedly bound her, to escape the force of its continued operation it was incumbent upon her to set forth the facts which she contends free her from its mandates.
But plaintiff alleges that at certain times the waters of Baggs Creek below her ditch and before reaching Cottonwood Creek if not taken by her, would sink and be lost. (She does not say whether the water would reach the Pierce ditch.) She therefore avers that Baggs Creek during that period of the year is not a tributary to Cottonwood. But she is precluded from maintaining this position. The decree determined that Baggs Creek is a tributary of Cottonwood Creek; that is an adjudicated fact, and evidence to the contrary will not be heard until a change in the condition subsequent to the decree has been shown. (Howell v. Bent, 48 Mont. 268, 137 Pac. 49.)
If it 'be true that there are times when the waters at the head of plaintiff’s Baggs Creek ditch will be lost unless used by her, not being of sufficient quantity to reach to the ditch next lower upon the stream, her remedy is, in a proper proceeding for that purpose, to ask for a modification of the decree permitting her to use the water when those conditions obtain. Until modified in that respect she is bound by the decree as it is written.
As the complaint manifestly fails to state a cause of action for the reasons foregoing, it is not necessary to pass upon the other objections lodged against it by defendants.
The judgment is affirmed.
■Affirmed.
Associate Justices Holloway, 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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MB. CHIEF JUSTICE CALLAWAY
delivered the opinion of the court.
The plaintiff and defendant in this action, with another, became cosureties upon an indemnity bond given by one Bobinson to the Montana Oil Company. Bobinson defaulted in the fulfillment of the obligation for the faithful performance of which the bond was given, whereupon the company commenced an action upon the bond, making Bobinson and his sureties parties defendant, and in the action eventually judgment was rendered in favor of the company and against the plaintiff in this action. Why judgment did not go against any of the others the record does not disclose. Anyhow, on demand of the company, and to avoid the levy of execution against his property, this plaintiff paid the amount of the judgment and costs, with interest, amounting to $2,067.10. Neither Bobinson, the principal on the bond, nor plaintiff’s cosureties, have ever reimbursed him for the moneys he paid out, or any part thereof. Finding that the defendant was the owner of real estate in Musselshell county, plaintiff brought action against him for the sum of $689.03, being the defendant’s aliquot share of the amount of the judgment, costs and interest paid by the plaintiff to the company. In aid of the action the plaintiff sued out a writ of attachment and levy was made upon the defendant’s property. The defendant being in California, service of summons was made by publication. In due time defendant appeared specially by motion, by which he sought to discharge the writ of attachment and to quash the service of summons upon the following grounds: “ (1) That the said writ of attachment was improperly issued, because it affirmatively appears from the complaint on file in said action that the alleged cause of action is not an action upon a contract, express or implied, for the direct payment of money; (2) that the court is without jurisdiction of the person of the defendant for the reason that the service of summons appears upon the face thereof to have been made without the state of Montana, to wit, the state of California.” After hearing, the court denied the motion and from that order the defendant has appealed.
We agree with defendant in his assertion that the complaint is faulty in some respects, but, as this court observed in Union Bank Trust Co. v. Himmelbauer, 56 Mont. 82, 181 Pac. 332, the inquiry as to the sufficiency of a complaint in a proceeding of this nature “may not^go further than to ascertain whether the action is upon a contract, express or implied, for the direct payment of money; whether it states facts sufficient to constitute a cause of action against the defendant; and, if it does not, whether it can be amended so as to state a cause of action (Kohler v. Agassiz, 99 Cal. 9, 33 Pac. 741; Hale Bros. v. Milliken, 142 Cal. 134, 75 Pac. 653). A mere defective statement of a cause of action is not a sufficient ground for the discharge of an attachment.”
There is nothing in the record to indicate that the defects in the complaint may not be corrected by amendment so that the complaint unquestionably will state a cause of action; rather, the contrary is indicated.
The main question is whether the action is based “upon a contract, express or implied, for the direct payment of money.” (Sec. 9256, Rev. Codes 1921.)
The original contract — the bond executed by plaintiff and his co-sureties to the Montana Oil Company — was not one for “the direct payment of money.” In the suit brought by the company upon the bond, attachment .was not authorized by law; the obligation was conditional and bound the principal and sureties to pay, not an ascertained, liquidated amount, but upon condition broken an amount determinable by the loss sustained by the payee. (Ancient Order of Hibernians v. Sparrow, 29 Mont. 132, 101 Am. St. Rep. 563, 1 Ann. Cas. 144, 64 L. R. A. 128, 74 Pac. 197; Carter v. Bankers’ Ins. Co., 58 Mont. 319, 192 Pac. 827; Square Butte State Bank v. Ballard, 64 Mont. 554, 210 Pac. 889.) But the plaintiff grounds his action, not upon the original contract but upon the right of contribution.
The doctrine of contribution is a concept of equity. It is based on the maxim “equality is equity,” and originally “the right was enforced only in equity, and upon principles of natural justice. The right to it did not depend upon contract, 'but sprung from equitable considerations arising out of the relations of the parties to each other, and the fact of a common interest and a common burden to bear.” (Note to Gross v. Davis, 10 Am. St. Rep. 639.) The doctrine of contribution “comes from the application of principles of equity to the condition in which the parties are found in consequence of some of them, as between themselves, having done more than their share in performing a common obligation.” (13 C. J. 821; 6 R. C. L. 1059.) “The declaration, often made, that contribution does not spring from contract is sometimes misap prehended; it only means that there need not be an express contract for it. ” (13 C.J. 822.)
The right became so well established that courts of common law assumed jurisdiction to enforce contribution between the sureties upon the theory of implied contract. (Chipman v. Morrill, 20 Cal. 131; 13 C. J. 822; 6 E. C. L. 1059.)
The foregoing principles have been crystallized into statutes in the different states, and our Montana statute reads as follows: “A surety, upon satisfying the obligation of the principal, is entitled to enforce every remedy which the creditor then has against the principal to the extent of reimbursing what he has expended, and also to require all his co-sureties to contribute thereto, without regard to the order of time in which they became such.” (Sec. 8206, Eev. Codes 1921.) In other words, this section gives to the surety who satisfies the obligation of his principal two rights: He is subrogated to the rights which the creditor has against his principal, and he may compel contribution from his cosureties.
The statute commands defendant to pay; it recognizes the equity rule of old time to which the common-law courts applied the legal remedy of assumpsit as if the action rested upon an implied contract. The right of action is not based upon the written instrument upon which the surety was liable to the payee but upon an implied assumpsit for money paid by the surety for the use and benefit of the cosurety. (Northwestern Nat. Bank v. Opera House Co., 23 Mont. 1, 57 Pac. 440.)
It may be admitted, then, that the action may be said to be based upon an implied contract; but is the contract one for the direct payment of money within the meaning of our attachment statute? In an opinion handed down November 8, 1924, we felt constrained to answer the question in the negative. However, being in doubt as to the correctness of our conclusion, we granted a rehearing. The cause has been reargued, additional authorities have been called to our attention, and we have given the subject renewed consideration, as a result of which we think our former holding erroneous; that holding, we think, would narrow the operation of the statute; it would give the statute a technical rather than a liberal meaning. Probably from a purely scientific standpoint (Nevada Co. v. Farnsworth (C. C.), 89 Fed. 164), our first conclusion may be justified, but we call to mind section 4, Bevised Codes of 1921, which says the rule of the common law that statutes in derogation thereof are to be strictly construed has no application to the statutes of Montana; the provisions of the Codes and statutes and ‘ ‘ all proceedings under them are to be liberally construed with a view to effect their objects and to promote justice.” Our present holding seems consistent with the legislative intent. The subject, however, is not without difficulty.
It is probable that originally we borrowed the phrase “for the direct payment of money” from California. The supreme court of California first had trouble with it in 1867 (Hathaway v. Davis, 33 Cal. 161), and it appears to have been bothersome ever since (3 Cal. Jur. 415).
The history of the phrase as it appears in our statute, with particular reference to the mischievous word “direct” (the elimination of which from the statute would be beneficial, as it seems to function chiefly as a trouble maker) is covered fully in the Sparrow Case, supra. In that case, after an exhaustive analysis of the authorities then available (and upon this point no new light appears), this court concluded that contracts contemplated by our statute as it then existed — and it is the same now — “are such only as require the payment unconditionally and absolutely of a definite sum. ’ ’
Now the implied contract in the instant case, based as it is upon the statute, requires the defendant as a cosurety of the plaintiff to make contribution to the plaintiff unconditionally and absolutely in a definite sum of money, to-wit, one-third of the amount of the judgment which the plaintiff was required to pay. Therefore, attachment for the amount due the plaintiff is warranted as npon an implied contract for the direct payment of money.
The opinion heretofore promulgated is withdrawn. The order is affirmed.
Affirmed.
Associate Justices Holloway, Stark and Matthews concur.
Mr. Justice Galen, being absent on account of illness, takes no part in the foregoing decision.
|
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] |
HONOEABLE C. W. POMEEOY, District Judge,
sitting in place of ME. JUSTICE GALEN, absent' on account of illness, delivered the opinion of the court.
This action was brought to reform a deed on the ground of mutual mistake. It is alleged in the complaint that it was the intention of the parties in pursuance of a bond for a deed running to the plaintiff, Miller Humble, alone, that the deed should be made to the plaintiff as the sole grantee, but, due to the mistake and inadvertence of the scrivener and without the knowledge of the parties, it was made to “Miller Humble and wife.” After trial judgment was rendered for defendants, from which the plaintiff appealed.
The appeal must fail if the evidence was sufficient to sup port the judgment. “On appeal in equity cases the findings of the trial court will not be set aside unless there is a decided preponderance in the evidence ag’ainst them.” (Scott v. Prescott, 69 Mont. 540, 223 Pac. 490.) Such has been the uniform construction of the provisions of section 8805, Revised Codes of 1921. (Delmoe v. Long, 35 Mont. 139, 88 Pac. 778; Kummrow v. Bank of Fergus County, 66 Mont. 434, 214 Pac. 1098.)
Before equity will interfere to correct a mutual mistake in a written instrument the evidence of the mistake must be clear, convincing and satisfactory. (Parchen v. Chessman, 53 Mont. 430, 164 Pac. 531; Wigmore on Evidence, see. 2498; 11 Ency. of Evi., pp. 51-72; 23 R. C. L., p. 367.)
“When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible; subject, however, to the other provisions of this Chapter.” (Sec. 7530, Rev. Codes 1921.) “When the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms, and therefore there can be between the parties and their representatives, or successors in interest no evidence of the terms of the agreement other than the contents of the writing, except in the following cases: (1) Where a mistake or imperfection of the writing is put in issue by the pleadings. (2) Where the validity of the agreement is the fact in dispute. * * * The term agreement includes deeds and wills, as well as contracts between parties.” (Id. 10517.) “When through fraud, mistake, or accident, a written contract fails to express the real intention of the parties, such intention is to be regarded, and the erroneous parts of the writing disregarded.” (Id. 7531.) “When, through fraud or a mutual mistake of the parties, or a mistake of one party, which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised on the application of a party aggrieved, so as to express that intention, so far as it can be done without prejudice to rights acquired by third persons, in good faith and for value.” (Id. 8726.) “In re vising a written instrument, the court may inquire what the instrument was intended to mean, and what were intended to be its legal consequences, and is not confined to the inquiry what the language of the instrument was intended to be. (Id. 8728.) “Mistake of fact is a mistake not caused by the neglect of a legal duty on the part of the person making the mistake, and consisting in: (1) An unconscious ignorance or forgetfulness of a fact, past or present, material to the contract; or, (2) Belief in the present existence of a thing material to the contract, which does not exist, or in the past existence of such a thing, which has not existed.” (Id. 7485.)
It appears from the evidence the plaintiff and his wife, Mary Y. Humble, were married in 1887. They came to Montana in 1890. At that time neither had any property. They both worked for wages in the employ of his uncle, J. It. Humble, for eleven months, and she later for Marcus Daly. They bought a ranch and her wages were used in part for the purchase price. They sold the ranch and the money received on the sale in part paid for the land described in the deed involved in this action. This land was purchased for $12,000. Of this amount $8,000 was borrowed from J. L. Humble, who took the title in his name as security, giving the plaintiff a bond for a deed in which M. C. Humble, wife of J. L. Humble, joined. The loan of $8,000 was evidenced by a note signed by the plaintiff, and also by his wife. The plaintiff testified that his wife took no other part in any of the transactions. The deed is dated June 1, 1910, and acknowledged June 3, in Missoula county before Jas. M. Rhoades, a notary public, then residing at Missoula. It was recorded by the plaintiff June 4, 1910. The plaintiff and J. L. Humble testified that no instructions were given to have the words “and wife” written in the deed; that they did not know the deed contained the words; and that it was their intention that the land should ■be deeded to the plaintiff only. J. L. Humble testified that the deed was probably read to him. M. C. Humble, the wife of J. L. Humble, testified she signed the deed and that ended it with her. She never gave it a thought any more. On direct examination she testified:
“Q. Well, I will ask you if you know anything about the words appearing in the caption of this deed, whereby it conveyed to Miller Humble and wife, if you ever heard or knew of that before? A. No; I never have; I never even saw the deed; I might have looked at the deed, but I just simply signed the deed, and that’s all I know about it.
“Q. To whom did you understand the land was being conveyed at the time you signed the deed? A. Oh, yes; I knew it was being conveyed to Miller Humble; yes.
“Q. And to Miller Humble alone? A. Well, I don’t remember about that part of it, now, but of course I know the transaction, that it was being conveyed to Miller Humble, and I don’t know about Miller Humble and the wife — I don’t remember about that part of it.
“Q. Was there anything said, in your recollection, about the conveyance going to or being made to Miller Humble and his wife? A. No; I never heard anything said at all.
“Q. About his wife? A. No; I never heard anything; Mr. Humble just said Miller wanted the deed, and we was to come down and sign it, and I come and signed it. I am in the habit, when Mr. Humble wants me to sign a deed or anything like that, I never question it, I never look at it; I suppose it would be more businesslike if I did, but. I don’t; if he tells me he wants me to sign anything, I sign it, and I risk the thing to him.” J. L. Humble and Mrs. Humble testified by deposition.
Mary V. Humble died April 17, 1922. The defendants are her brothers, their wives, and her sister. The plaintiff stated that he first learned that the words “and wife” were in the deed in the fall of 1922. W. C. Angel, a witness for the defendants, testified that the plaintiff told him of the alleged mistake in the deed while they were planting potatoes in 1922; he thought it was in June. Anna McDonald testified for the plaintiff that Mary Y. Humble had told her the title to the land stood in her husband’s name.
Among the court’s findings are the following:
“(4) That the said Miller Humble, the plaintiff, accepted said deed, set out in Finding of Fact No. 3 and caused the same to be filed for record on the 4th day of June, 1910, and the same is now of record in volume 39 of Deeds, at page 559, records of Ravalli county, Montana, and that, during the twelve years which have elapsed since the plaintiff accepted said deed, neither the plaintiff, nor any one for him, has offered to return said deed or tender it back to the grantors, nor made any complaint as to its sufficiency, nor demanded any other, or different, or additional deed to correct any alleged mistake.
“ (6) That the court finds from the evidence that the scrivener who made the said deed is unknown; that the place where the said deed was made is unknown; that the person who instructed the scrivener is unknown; that, if any instructions were given to the scrivener, those instructions are unknown; and how the deed came into the possession of said J. L. Humble and his wife for execution is unknown.
“(7) That the evidence generally is of a negative character and is insufficient to overcome the presumption indulged in favor of written instruments as evidence, and is too meager and conjectural to justify the substitution of parol evidence therefor to establish a mistake.
“ (9) That the evidence is insufficient to justify a finding that the words ‘and wife’ were inserted in said deed set out in Finding of Fact No. 3 through mistake and inadvertence.”
It cannot be said that the evidence in this ease is either clear, convincing or satisfactory, as to the alleged mistake. Much less can it be said that the evidence clearly preponderates against the determination of the trial court. The evidence as to the admission made by plaintiff’s wife to witness McDonald is entitled to very little consideration. Evidencce of oral admissions are to be viewed with caution. (Sub. 4, sec. 10672, Rev. Codes 1921.) The reason for the rule is more evident in the ease of the death of the party alleged to have made the admission. It is significant that the living parties to this transaction after the lapse of twelve years should have memories so keen as to their intentions and as to the matter of instructions to the scrivener, yet be unable to recall his name or any of the other circumstances attending the execution and delivery of the deed. The notary public who took the acknowledgment possibly could have thrown light on the transaction. He did not testify and his absence is not explained. It is strange that a person so recently without property should purchase a 200-acre ranch for $12,000; then after two years should finish paying for it and finally get a deed, then should record the deed without reading it or noticing that he was not the only grantee therein. There is a witness in this case that is not discredited by any fact or circumstance, has an unfailing memory and has no interest in the outcome of the case, and that is the deed. No suggestion arises from reading it that the parties had any intention other than that which it clearly expresses.
Plaintiff argues that the judgment is not supported by the findings, in that the court in finding- No. 3, recited that the deed was given “pursuant” to the bond, meaning thereby that the deed was executed in accordance with the terms of the bond. His position is that, when a deed is so executed and it fails to conform to the preceding agreement in any particular, a court of equity will reform the deed accordingly, without further testimony. The findings must be construed as a whole. According to Webster’s dictionary the word “pursuant” may be used to mean the same as the word “following.” In view of the other findings of the trial court, the word was doubtless used in that sense. The parties could abrogate the prior written agreement by a subsequent one. (Sec. 7569, Rev. Codes 1921; Hochstein v. Berghauser, 123 Cal. 681, 56 Pac. 547; Whitney v. Smith, 33 Minn. 124, 23 N. W. 181; Hubachek v. Brown, 126 Minn. 359, 148 N. W. 121; Koen v. Kerns, 47 W. Va. 575, 35 S. E. 902.) A deed is such an agreement. (Sec. 10517, Rev. Codes 1921.)
The judgment is affirmed.
Affirmed.
Mr. 'Chief Justice Callaway and Associate Justices Holloway, Stark and Matthews concur.
|
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] |
ME. JUSTICE STAEK
delivered the opinion of the court.
On December 15, 1923, in the district court of Hill county, Charles Gies entered a plea of guilty to an information charging him with the crime of unlawfully selling intoxicating liquor, a misdemeanor; whereupon, as appears from the clerk’s record of the proceeding, “it was ordered that said defendant be punished by imprisonment in the county jail of Hill county for a term of ninety days, and pay a fine of $200. * * # On recommendation of the county attorney, the jail sentence was then suspended.” The defendant was then remanded to the custody of the sheriff, and on said day paid the fine of $200 and was released from custody.
On December 6, 1924, the court caused the following entry to be made in its minutes in said cause: “In this ease, the minute entry of the clerk is corrected to speak the truth which was and is, that upon the date of pronouncing judgment in this case, to-wit, December 15, 1923, it was then and there the order of this court that the jail sentence imposed of ninety days’ imprisonment in the county jail be suspended pending the good behaviour of the defendant. It appearing to the court that the defendant, Charles Gies, has violated the conditions under which his sentence was suspended; the clerk is hereby ordered to issue a commitment and place the same in the hands of the sheriff for service.” In accordance with the command of this minute entry the clerk of the court issued a commitment, by virtue of which the sheriff of Hill county took the defendant, Gies, into custody, and imprisoned him in the county jail to serve out the ninety-day sentence.
Claiming that such restraint and imprisonment by the sheriff was unlawful, on December 9, 1924, J. P. Donnelly, on behalf of Gies, filed in this court his petition for a writ of habeas corpus, which was granted; a writ was issued made returnable, before Honorable W. H. Poorman, one of the judges of the- first Judicial District, on the twelfth day of December, 1924. To this writ the sheriff filed his return, setting forth that he held Gies in his custody under the commitment issued out of the district court of Hill county under the circumstances above related. The matter was submitted to Judge Poorman upon the petition and return, and, after argument of counsel, he made an order directing that Gies be forthwith released from such imprisonment by the sheriff of Hill county.
On December 16, 1924, the attorney general filed a petition in this court, reciting the above facts, alleging that although the order of Judge Poorman was made within jurisdiction, it was nevertheless erroneous, arbitrary and without warrant of law; that gross injustice to the state of Montana was threatened by said order in that the result of it was to nullify a lawful commitment issued by a court of competent jurisdiction, and to permit a person lawfully convicted of crime to avoid serving the sentence imposed. Deeming the circumstances sufficient to justify it, this court thereupon issued an order directed to the said district court of the first judicial district and to the Honorable W. H. Poorman, the judge thereof, commanding that they appear on the fifteenth day of January, 1925, and show cause why a writ of- supervisory control should not issue directing said court and judge to set aside and annul the order so made on December 12, 1924. Upon the return day of this order the respondents appeared by counsel, and moved the court to dismiss the proceeding on the ground that the facts stated in the petition are insufficient to move the court to the exercise of its supervisory power»
To support his contention that Judge Poorman erred in ordering the release of Gies, the attorney general argues: (1) That the courts of this state have no inherent power to permanently suspend sentences in criminal cases; (2) that our statutes do not authorize the courts to suspend sentences in misdemeanor cases; and (3) that even if the power to suspend sentences in misdemeanor cases does exist, there was no legal suspension of the sentence in this instance by reason of failure to comply with the statutory requirements.
We need not pause to consider whether our district courts possess the inherent power to suspend permanently the execution of a, sentence in a criminal case, for, during all the times here involved, section 12078, Revised Codes of 1921, was in full force, and it provides: “In all prosecutions for crimes or misdemeanors, except as hereinafter provided, where the defendant has pleaded or been found guilty, or where the court or magistrate has power to sentence such defendant to anj penal or other institution in this state, * s* * said court may suspend the execution of the sentence and place the defendant on probation in the manner hereinafter provided. * # * » >
But the attorney general insists that in enacting this section the legislature did not intend that it should apply to misdemeanor cases where the imprisonment of the defendant is to be in a county jail, because the subsequent provisions for the supervision of one who has been given the benefit of a suspended sentence and placed on probation, appear to have application only to one whose confinement would be in the state prison or some other state penal institution, and in this connection refers to section 12080, Revised Codes of 1921, which is as follows: “Whenever a sentence to any penal or other institution in this state has been imposed, but the execution thereof has been suspended and the defendant placed on probation, the effect of such order of probation shall be to place said defendant under tbe control and management of tbe state board of prison commissioners and he shall be subject to the same rules and regulations as applied to persons paroled from said institutions after a period of imprisonment therein”; and to section 12082, which in substance declares that, when a sentence is suspended and the defendant placed on probation, it is the duty of the clerk of the court to certify to the state board of prison commissioners, and to the institution to which the defendant would have been committed but for the suspension of the sentence, a copy of the judgment and the order for the suspension of the execution of the sentence, and “upon entry in the records of the court of the order for such probation, the defendant shall be released from custody of the court as soon as the requirements and conditions fixed -by the state board of prison commissioners have been properly and fully met. ’ ’
We cannot yield to this argument, and read the word “misdemeanors” out of this statute. It would seem that by using the words “crimes and misdemeanors” in section 12078, the legislature laid emphasis upon the fact that misdemeanors were included within its provisions, for the general word “crimes” comprehends both felonies and misdemeanors (sec. 10722, Rev. Codes 1921), and the repetition of “misdemeanors” places the legislative intent beyond question.
It may be that a plan for the supervision of a defendant who has been placed on probation after sentence to the county jail, other than placing him under the supervision and control of the state board of prison commissioners, would be more advantageous; but because the legislature saw fit to make, the present plan is not a reason why we should say the provisions of section 12078 do not have application to those convicted of lesser offenses, as well as to those who have been convicted of felonies.
The next contention of the attorney general is that even though the statute authorizes the district court to suspend the execution of sentences in cases of misdemeanor, the result was not attained in this case because the order of the court which, after being “corrected to speak the truth” read “that the jail sentence of ninety days be suspended pending the good behaviour of defendant” does not meet with the requirements of section 12078, which authorizes the court to “suspend the execution of the sentence and place the defendant on probation,” in that it fails to place the defendant on probation. It must be noted, however, that this provision is in the conjunctive; it does not confer power to suspend the execution of sentence without placing the defendant on probation, and the order of the court must be read with a view to carrying the provisions of the statute into effect, if possible.
The rule is stated in 23 Cyc., p. 1101, thus: “A judgment should be so construed as to give effect to every word and part of it, including such effects and consequences as follow by necessary legal implication from its terms, although not expressed. ’ ’
Since the court had no authority to suspend the execution of the sentence without placing the defendant on probation when the order of suspension was made, it followed “by necessary legal implication” that the defendant was thereby placed on probation, and we hold that this was the effect of the court’s order.
Under the provisions of section 12080 above quoted, the effect of this order was to place the defendant under the control and management of the state board of prison commissioners, and subject to such rules and regulations as it might make; likewise subject to arrest and commitment for failure to comply therewith, and to have his term of probation terminated. (Secs. 12083-12084, Rev. Codes 1921.)
The clerk of the court did not certify the judgment of con vietion and order of suspension to the state board of prison commissioners, or elsewhere, as required by section 12082. The court had made the order suspending the sentence and placing the defendant on probation. It had performed its full function. There was nothing further for it to do. The defendant had paid the $200 fine imposed, and had been released from the custody of the court. There was nothing further for him to do except to comply with such rules and regulations as the state board of prison commissioners might fix for his government during the period of his probation. The duty of the clerk to certify the proceedings under section 12082 was purely ministerial. The fact that he failed to perform his duty, and the fact that the state board of prison commissioners may have failed to fix any rules for the government of the defendant during his period of probation, could not affect the status of the defendant.
In Ex parte Slattery, 163 Cal. 176, 124 Pac. 856, a defendant was rearrested after the period of his probation had expired, and it was sought to compel him to serve out his original sentence, the state contending that the proceedings of the court in suspending sentence and placing him on probation did not comply with the statutory requirements. The 'supreme court, however, brushed this contention aside, saying: “It will not be held that by reason of any informality or irregularity of the order so doing (placing him on probation) a defendant should be made to suffer. He has no control over the form of the order which the court issues and if during the probationary period he has himself lived up to the requirements of the law it would be manifestly unjust that he should be made to suffer because of the court’s error in any giyen particular.”
When the court made the order of December 15, 1923, its effect was to immediately place the defendant on probation and under the jurisdiction of the state board of prison commissioners, and thereafter that board alone had power to terminate his probation. (Sec. 12084.) Section 12085 provides “that the length of such period of probation shall not be less than the minimum or more than the maximum term for which he might have been imprisoned.”
The failure of the clerk to perform his ministerial duty could not nullify the order of the court, nor indefinitely extend the period of defendant’s probation. When the court made the order of December 6, 1924, the maximum term for which the defendant might have been imprisoned had long since expired, and the state board of prison commissioners could not at that time have caused his arrest and confinement under the ninety-day sentence. So far as that sentence was concerned, the district court divested itself of jurisdiction over the defendant by the order which placed him under the control of the state board, and so it had no authority to issue a commitment for his confinement on the original sentence.
It follows that the commitment issued under the court’s order of December 6, 1924, was void, the confinement of Gies thereunder illegal, and that the order of Judge Poorman directing his discharge was proper.
The writ prayed for is denied and the proceeding dismissed.
Dismissed.
Mb. Chief Justice Callaway, Associate Justices Holloway and Matthews and Honorable Lyman H. Bennett, District Judge, sitting in place of Mb. Justice Galen, absent on account of illness, concur.
|
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] |
ME. JUSTICE MATTHEWS
delivered the opinion of the court. •
The complaint herein alleges delivery by respondent to appellants, at Billings, of a player piano, under a contract by the terms of which appellants were to transport the instrument to Bearcreek and there have the use of it at a monthly rental of $50, with option to purchase at $1,250, they to keep the instrument insured for the benefit of respondent, and that, if at any time the agreement proved unsatisfactory, appellants were to return the instrument to Billings.
The complaint further alleges that appellants failed to insure, and, the agreement proving unsatisfactory, in December, 1921, appellants promised to return the piano to Billings, but failed to do so; that a demand for its return was made on January 15 or 16, 1922, but again appellants failed to return the instrument, which was thereafter, on February 11, 1922, destroyed by fire.
Appellants demurred to the complaint on the grounds: (1) That it failed to state facts sufficient to constitute a cause of action; (2) that two separate causes of action were joined in one count; (3) that the complaint was ambiguous, unintelligible and uncertain, because of the misjoinder. They also filed motion for change of venue and supported the motion by affidavits to the effect that they were l’esidents of Carbon county and were there served with summons, denied the agreement set out in the complaint and set forth that the convenience of witnesses would be served by the change. The motion was denied and the demurrer overruled.
Appellants thereafter, by answer, admitted delivery, denied the right to purchase and agreement to insure, and the allegation that appellants wrongfully retained possession of the instrument, and alleged possession in respondent by the retention of the key to the money compartment of the instrument, and that the agreement was that respondent was to divide the proceeds with appellants each month. Issue was joined by reply. Thereafter appellants moved to strike certain portions of the complaint, which motion was denied.
The cause was tried to a jury. At the opening, and again when respondent rested his case, appellants moved that he be required to elect as to whether he would stand upon his alleged cause of action in contract or that sounding in tort. These motions were denied. Appellants moved for judgment of nonsuit, which motion was denied, and thereupon moved the court to instruct the jury to bring in a verdict for respondent for nominal damages only, which motion was denied. Appellants introduced testimony and both sides rested. Appellants renewed their motion to instruct, which motion was denied. Respondent then moved for a directed verdict for the value of the piano at the time it was converted, which motion was granted.
The court announced that the jury would be instructed to bring in a verdict for “the amount which they find, from a preponderance of the evidence, was the market value of this piano on the fourteenth day of February, 1922, not exceeding athe sum of $1,250, together with interest.” Appellants then requested that the issues be submitted to the jury, which request was denied.
Under the court’s instruction the jury returned a verdict for respondent for $800, with interest at eight per cent from February 14, 1922, and judgment was entered accordingly. Appellants moved for a new trial on the ground of “newly discovered evidence.” The motion was denied. Error is assigned on each of the rulings indicated and on certain rulings on the introduction of evidence, which will appear later.
1. The motion for change of the place of trial was submitted on the theory that the “contract” or agreement for the return of the piano was to be performed in Carbon county, the place of residence of appellants. Respondent filed a counter-affidavit attempting to show that the contract was to be performed in Yellowstone county. Appellants moved to strike respondent’s affidavit, which motion was properly denied. (State ex rel. Interstate Lumber Co. v. District Court, 54 Mont. 602, 608, 172 Pac. 1030.) The motion was disposed of on the theory presented by the respondent, that the action was on a contract or agreement to be performed in Yellowstone county.
If the action can be said to be upon a contract, and it appears that the contract was to be performed in Yellowstone county, the ruling of the court was correct. (Sec. 9096, Rev. Codes 1921; State ex rel. Interstate Lumber Co. v. District Court, supra.)
This cause has heretofore been before this court, where it was held that, while there is some question as to the exact nature of the remedy, “the most satisfactory classification of this liability is * * * to put it under the fourth class of cases in conversion as arranged by Mr. Pollock, vis.: ‘Cases where there is not a conversion, but an action (formerly a special or innominate action on the case) lies to recover the actual damage.’ ” (Stiemke v. Jankovich, 68 Mont. 60, 217 Pac. 650.)
It is conceded by appellants that, as a part of the original contract, they agreed that, if the arrangement proved unsatisfactory, they would return the instrument to respondent at Billings, and that they did, later, agree to return it to that place. As suggested in the above quotation, “there was not a conversion”; the original contract of hiring was rescinded, but a part of that contract was the agreement to return the instrument to Billings on such a rescission. Indeed, that duty rested upon appellants in the absence of an agreement, on a rescission of the contract. (Hollingsworth v. Buckman, ante, p. 147, 232 Pac. 180.) There was, then, a duty which, in effect, was either an implied or express contract to deliver the piano at Billings, and which was therefore to be performed in Yellowstone county. No error was committed in denying the motion.
2. On the former appeal this court held that the complaint did state facts sufficient to constitute a cause of action, which disposes of the first ground of demurrer.
The other grounds set forth attack the complaint for an alleged joinder of two causes of action in one count. Even if this was the case, counsel did not invoke an available remedy. The statute enumerates the defects which may be reached by demurrer and this is not one of them. The defect can only be reached by motion. (Galvin v. O’Gorman, 40 Mont. 391, 106 Pac. 887; Marcellus v. Wright, 51 Mont. 559, 154 Pac. 714; Roberts v. Sinnott, 55 Mont. 369, 177 Pac. 252.)
3. Having answered to the complaint on March 23, 1922, on January 22, 1924, appellants moved to strike a certain portion thereof. “A motion to strike out a portion of a plead- mg is in fact [effect?] and in substance a demurrer to that portion attacked.” (Bank of Commerce v. Fuqua, 11 Mont. 285, 28 Am. St. Rep. 461, 14 L. R. A. 588, 28 Pac. 291; State ex rel. Juckem v. District Court, 57 Mont. 315, 188 Pac. 137.) The motion came too late and was properly denied.
4. As heretofore pointed out, the complaint stated, in a single count, a cause of action for damages for the breach of the contract to return the piano, after the contract of hiring had been rescinded by mutual consent. Appellants admitted right to possession in respondent and agreement to return. The duty to return or suffer damages for failure was fixed. “The legal duty to return being fixed, it is immaterial what prevented the return, unless it was plaintiff’s own acts.” (Stiemke v. Jankovich, supra.)
The allegations concerning an agreement to insure the piano and subsequent failure to do so were not necessary to a recovery, and should therefore be treated as surplusage and disregarded. (Hoskins v. Northern Pac. Ry. Co., 39 Mont. 394, 102 Pac. 988; Cassidy v. Slemons & Booth, 41 Mont. 426, 109 Pac. 976.) In the Hoskins Case this court said: “As the complaint was simply the basis or foundation. of plaintiff’s proof, if it contained allegations sufficient to enable him to introduce testimony showing a liability on the part of the defendants, and he could, in the absence of the specific allegations, rest his case without proving the particulars in which the latter were negligent, then it seems to follow that although he had made specific allegations of negligence, such allegations were immaterial, and should be disregarded.”
There is but one contract stated in the complaint, and a breach thereof in one or more particulars, and under such circumstances the court cannot be said to have abused its discretion in denying a motion to compel an election. (Cohen v. Clark, 44 Mont. 151, 119 Pac. 775.)
5. Appellants’ motion for nonsuit and the two motions for a directed verdict for nominal damages were directed to the alleged failure to prove the market value of the instrument as of December 28, 1921, the date of the rescission of the contract of hiring.
We have examined the evidence and find it sufficient to go to the jury. The hypothetical question put to the witnesses Nelson and Lindamood, called as experts, was fairly based upon the nature and condition of the instrument, as detailed by the respondent. While the testimony referred to the condition of the instrument on February 14, 1922, rather than December 28, 1921, the witnesses testified that such value would not fluctuate in the course of one or two months, and any change would, of course, have been to the detriment of respondent rather than appellants. Incidentally, while the witnesses fixed the market value at from $1,250 to $1,500, the jury’s verdict was for but $800. No substantial error was therefore committed in denying the several motions.
0. Bach of the parties having moved for a directed verdict, as indicated, had nothing more been done the court would have been justified in submitting the case to the jury on the one question as to the value of the piano, considering all other issues as submitted on an agreed statement of facts. (Moore v. Crittenden, 62 Mont. 309, 204 Pac. 1036; Stoltze Land Co. v. Westberg, 63 Mont. 38, 206 Pac. 407; Barkemeyer Grain & Seed Co. v. Hannant, 66 Mont. 120, 213 Pac. 208; Gunder v. Huggans, 71 Mont. 449, 233 Pac. 901.) However, before the court formally instructed the jury, appellants requested the submission to the jury of all the issues raised by the pleadings and evidence, and in particular whether or not respondent by his words or actions directed appellants to return the piano by a particular truck and in no other manner, or whether he prevented appellants from returning the piano by his words or actions. It is only in the absence of such a request that the court may deem the case submitted as on an agreed statement of facts. (Fifty Associates Co. v. Quigley, 56 Mont. 348, 185 Pac. 155; Buckhouse v. Parsons, 60 Mont. 156, 198 Pac. 445.)
A canvass of the evidence will answer the question as to whether the court erred in refusing to submit the issues as requested, for where the evidence is susceptible of but one conclusion by reasonable men, the court may either direct a verdict or withdraw the case from the jury and render judgment. (Helena Nat. Bank v. Rocky Mt. Tel. Co., 20 Mont. 379, 63 Am. St. Rep. 628, 51 Pac. 829; Milwaukee Land Co. v. Ruesink, 50 Mont. 489, 148 Pac. 396; Conway v. Monidah Trust, 52 Mont. 244, 157 Pac. 178.)
The court may also direct a verdict where the evidence is in such condition that, if the case were submitted to the jury and a verdict returned for one party, it would be the duty of the court to grant a new trial on motion of the opposing party. (McIntyre v. Northern Pac. Ry. Co., 56 Mont. 43, 180 Pac. 971; Bean v. Missoula Lumber Co., 40 Mont. 31, 104 Pac. 869; Long v. Davis, 68 Mont. 85, 217 Pac. 667.)
Here the respondent testified to all the material allegations of his complaint. Appellants denied any option to purchase or agreement to insure, and denied the agreement to pay a monthly rental, claiming a different arrangement. They admitted, however, the agreement that, if the arrangement proved unsatisfactory, they would return the instrument to Billings, and that, in December, 1921, all parties agreed that the arrangement was unsatisfactory, and that, either in December or January, they agreed to return the piano to Billings, and that they did not do so.
Counsel contends that appellants’ testimony shows that they were directed by respondent to return the piano only by a certain truck, and that, having attempted to do so, appellants were relieved from further responsibility. Counsel overlooks the fact that whatever the original agreement was, according to the testimony of all parties to this action, it was rescinded in the month of December, 1921, with the exception of the agreement to return the instrument to respondent at Billings. And a careful examination of appellants’ evidence does not warrant the contention that they testified that respondent directed them to return the piano by truck and in no other manner.
Jankovich, who speaks very broken English, testified that he received notice in January, either by letter or ’phone call from respondent, and talked with respondent over the phone, saying, “I tell him, a day or so; I tell Mr. Stiemke, the piano, send it down with them blankets, either him or driver.” Asked on direct examination, “What did he say, if anything, with reference to the truck driver getting the piano?” he answered, “He say all right, he go send the driver.” To the question, “Did he say whether or not you might send it on the train?” the witness answered, “He tell me first place he didn’t want to send it by train; he didn’t want it to be crated.” This last answer manifestly refers to his conversation with Stiemke as to the transportation of the piano to Bearcreek, when respondent asked Jankovich how it could be sent and stated “I do not want to crate it,” and in reply Jankovich told respondent of the truck plying between the two places. The testimony did not amount to a showing of direction to return the piano by truck and in no other manner, nor discloses that respondent prevented the return either by his words or actions.
It affirmatively appears from the' record that there was a train service between Bearcreek and Billings, and that the piano could have been returned at any time within thirty days prior to the fire and should have been so returned, if the truck had ceased to operate.
We are therefore forced to the conclusion that, had the court submitted these matters to the jury, no other conclusion could have been reached by reasonable men than that appellants were in duty bound to return the piano and agreed to do so; that they failed to return it, and, in doing so, were not prevented by respondent, and that respondent was entitled to recover the reasonable market value of the piano; further, that had there been a submission to the jury and a verdict by them rendered in favor of appellants, the court would have been forced to grant a new trial on motion of respondent. The court was therefore justified, under the authorities above cited, in refusing the request for submission.
7. Error is predicated on the court’s instruction to the jury to find the value as of February 14, 1922. On granting the motion to instruct, the court announced that the jury would be instructed to determine the value as of that date, and thereafter gave such instruction. No objection was made to the instruction as given, and this court is therefore precluded from reviewing the action of the trial court. (Sec. 9349, Eev. Codes 1921.)
8. The affidavits on motion for a new trial state that two additional witnesses were present at the time of a conversation between Jankovich and respondent, to which appellants testified. The evidence, if produced, would therefore be merely cumulative. Further, no showing is made that these witnesses would be present on a future trial; in fact, the affidavits disclose that one has departed from the state, his present whereabouts unknown, and that an unsuccessful attempt was made to take his deposition before the trial. The showing thus discloses the fact that the evidence, instead of being “newly discovered,” was known to appellants at all times since the date of the conversation. No error was committed in denying the motion for a new trial.
We have examined the remaining assignments and find no merit in them.
No prejudicial error appearing in the record, the judgment will be affirmed.
Affirmed.
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 RANKIN
delivered the opinion of the court.
This is an action to recover upon a policy of insurance for loss caused by the confiscation of an automobile by Canadian officials. The facts alleged in the complaint material to the issues presented by this appeal may be summarized as follows: A policy of insurance was issued at Great Falls, Montana, by the defendant British & Federal Fire Underwriters of the Norwich Union Fire Insurance Society, Limited, to T. Deloli, insuring an automobile, sold to him under a conditional contract of sale by the plaintiff Montana Auto Finance Corporation, against loss by fire, theft or collision “while within the limits of the United States (exclusive of Alaska, the Hawaiian Islands, and Porto Rico) and Canada.” At the same time and place there was issued by the defendant Fidelity & Deposit Company of Maryland to the plaintiff what is denominated a confiscation coverage bond, by the terms of which the company agreed to indemnify plaintiff ‘ ‘ against all direct pecuniary loss which the assured may sustain caused by the confiscation by municipal, federal or state authorities of said autoihobile by reason of the violation # ® * of the provisions of any municipal, federal or state law.” This bond was attached to the insurance policy issued by the defendant British & Federal Fire Underwriters, but this last-named company was not a party to the bond. For convenience these companies will be referred to hereafter as the “British Company” and the “Fidelity Company.”
The complaint, after reciting- the foregoing facts, sets forth that the automobile was taken from T. Déloli, the conditional vendee, and seized and sold by federal, state and municipal authorities of Canada, by reason of the violation by Deloli of federal, state, and municipal laws of that country. The defendants interposed a joint general demurrer to the complaint, which was overruled by the court, and they then declined to plead further. Thereupon judgment was entered for the plaintiff against both defendants for $1,233.40, from which judgment the defendants have appealed.
Counsel for defendants attack the sufficiency of the complaint, .and insist that it discloses upon its face that the seizure and confiscation of the automobile by Canadian officers within the Dominion of Canada is not “confiscation by municipal, federal or state authorities” by reason of the violation of the provisions of any “municipal, federal or state law,” within the meaning of the language of the coverage bond. They contend that these terms apply solely to officers and laws of the United States, and hence that the car was never insured against confiscation in Canada.
In construing the confiscation bond, reference must be had to the policy of the British Company; otherwise the contract with the Fidelity Company would be indefinite, uncertain and incomplete. In the first instance, without recourse to that policy, there is no way to identify the automobile insured against loss by confiscation under the Fidelity Company bond, except by this language in the bond “the automobile described in policy No. 27482 issued by the British & Federal Fire Underwriters Insurance Company.” The bond then reads: “This bond to be used only in connection with conditional sale indorsement where embezzlement coverage is also given.” This reference is to the policy of the British Company which executed the “embezzlement coverage” and the “conditional sale contract indorsement.” The bond also refers to the collision policy thus: “This company shall not be liable * * # for any loss ® ® through any of the perils insured against under the above-mentioned poliej'-.” It further provides “that no assignment or change of interest hereunder shall bind this company unless the consent of the company issuing the policy to which this is attached shall be indorsed thereon”; and then again, referring to the policy of the British Company, there appears in the confiscation bond the following: “Any cancellation or other termination of the above-mentioned policy, shall also, at the same time, terminate all liability of this company under this obligation.”
From the foregoing provisions and indorsements, together with the fact that both contracts of insurance are a part of the same instrument and were executed contemporaneously as one transaction, it is clear that in interpreting the confiscation bond, the entire contract of insurance must be considered to give it meaning and to determine the intention of the parties. (Herbst v. Lowe, 65 Wis. 316, 26 N. W. 751.)
Under the terms of the British Company’s policy the car was to be insured against fire, theft and collision while within the limits of Canada as well as the United States, all of which the Fidelity Company is presumed to have known at the time it insured the automobile against confiscation, and, if it desired to limit its liability to loss from confiscation while the car was within this country, it should have said so in its policy.
Defendants insist, however, that the policy cannot be construed as having insured the car .in Canada, because the words “federal,” “state,” and “municipal” have a very limited meaning and pertain solely to the government of the United States. The term “federal” is, inter alia, “commonly used to express a league or compact between two or more states” (2 Bouvier’s Law Dictionary, Rawle’s Third Rev., 1192) to become united under one central government. Reference to the preamble of the British North America Act of 1867 discloses that the Dominion of Canada may with propriety be designated a federal government; it reads: “Whereas the province of Canada, Nova Scotia, and New Brunswick have expressed their desire to be federally united into one dominion,” etc. (30 & 31 Viet., Chap. 3.) By the Act of 1867 the three provinces named above were formed into 1 ‘ one dominion. ’ ’
The word “state” is defined by Webster as “a political body, or body politic; the whole body of people united under one government whatever may be the form of the government. ’ ’
The term “municipal,” when strictly used, generally applies to a city, but it has been commonly used in a much broader sense. Blaekstone says: “ * * * Municipal or civil law; that is, the rule by which particular districts, communities,or nations are governed, being thus defined by Justinian, ‘Jus civile est quod quisque sibi populus constituit.’ I call it municipal law in compliance with common speech; for, though strictly that expression denotes the particular customs of one single municipium or free town, yet it may with sufficient propriety be applied to any one state or nation, which is governed by the same laws or customs.” (1 Blaekstone’s Commentaries, 72.)
In view of the foregoing, we deem the interpretation of the words “federal,” “state,” and “municipal,” contended for ■by the defendants, too restrictive.
If there is any uncertainty as to whether these terms are employed in their restricted signification so as to have reference solely to the United States or are used in an enlarged sense so as to include Canada, then that construction should be adopted which is beneficial to the insured (Ginell v. Prudential Ins. Co., 119 Misc. Rep. 467, 196 N. Y. Supp. 337), or, to state the rule applicable in language approved by this court: “ ‘No rule in the interpretation of a policy is more fully established, or more imperative and controlling, than that which declares that in all cases it must be liberally construed in favor of the insured, so as not to defeat without a plain necessity his claim to the indemnity, which in making the insurance was his object to insure.’ (May on Insurance, sec. 175.)” (Holter Lumber Co. v. Fireman’s Fund Ins. Co., 18 Mont. 282, 45 Pac. 209.)
It is a matter of common knowledge that insurance companies prepare their own contracts of insurance. The language of the policy is their language. They do not permit the insured to have a voice in the drawing of his own contract; nor does he negotiate with reference to its terms in the sense that negotiations are carried on before agreements are reached in ordinary contracts. (Joyce on Insurance, p. 594.) Policies of insurance are invariably complex and are understood by laymen with difficulty, and as a result the insured generally makes a request for the kind of insurance he desires and then signs “on the dotted line” upon a formidable appearing printed form with the provisions of which the average assured has slight, if any, acquaintance. The policies are prepared by skilled lawyers retained by the insurance companies, who through years of study and practice have become expert upon insurance law, and are fully capable of drawing a contract which will restrict the scope of the liability of the company with such clearness that the policy will be free from ambiguity, require no construction, but construe itself. Because of reasons such as these, whenever the contract of insurance is so drawn as to be ambiguous, uncertain and to require construction, the courts of this country resolve the doubt in favor of the insured and against the insurer,, in accordance with the rule contra proferentem. (Joyce on Insurance, par. 222; 32 C. J. 1156; Julius v. Metropolitan L. Ins. Co., 299 Ill. 343, 17 A. L. R. 956, 132 N. E. 435; Greer-Robbins Co. v. Pennsylvania Ins. Co., 47 Cal. App. 63, 190 Pac. 187; New York etc. S. S. Co. v. Aetna Ins. Co. (D. C.), 192 Fed. 212.)
We cannot narrow the range of the insurer’s obligation by giving to the terms “municipal,” “federal,” and “state” the technical and restricted construction for which the defendants contend, for under the facts disclosed by the-record we think they apply'not only to the United States bnt with equal propriety to Canada.
It is argued in behalf of the British Company that, regard less of the construction to be placed upon the words “federal,” “state,” and “municipal,” the judgment against it is unwarranted because it was not a party to the confiscation policy, and that, therefore, no cause of action is stated against it. With this we agree. While the demurrer was joint and general, and it is the rule in this jurisdiction that “where two or more parties demur jointly and a cause of action is stated against one of them the demurrer is properly overruled” (Band v. Butte Elec. Ry. Co., 40 Mont. 398, 107 Pac. 89; Poe v. Sheridan County, 52 Mont. 279, 157 Pac. 185; Cummings v. Reins Copper Co., 40 Mont. 599, 107 Pac. 904), nevertheless, the objection that the complaint does not state facts sufficient to constitute a cause of action is never waived (Clark v. Oregon Short Line, 38 Mont. 177, 99 Pac. 298), and where the complaint is so defective that it will not support the judgment, the judgment will be set aside. (Ellinghouse v. Ajax Livestock Co., 51 Mont. 275, L. R. A. 1916D, 836, 152 Pac. 481; Cole v. Helena L. & Ry. Co., 49 Mont. 443, 143 Pac. 974; Shober v. Blackford, 46 Mont. 194, 127 Pac. 329.) The British Company was not a party to the confiscation policy; hence the complaint does not state a cause of action against it.
The judgment is affirmed as to the defendant Fidelity & Deposit Company of Maryland, and reversed and the cause remanded as to the defendant British & Federal Fire Underwriters of the Norwich Union Fire Insurance Society, Limited,, with directions to dismiss the complaint against it.
Mr. Chief Justice Callaway, Associate Justice Stark and Honorable Frank P. Leiper, District Judge, sitting in place of Mr. Justice Holloway, disqualified, concur.
Mr. Justice Galen, being absent on account of illness, takes no part in the foregoing decision.
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] |
MR. CHIEF JUSTICE CALLAWAY
delivered the opinion of the court.
In April, 1923, plaintiff and his wife leased to the defendants certain lands in Broadwater county, with an option to purchase the same during the term of the lease which was to end on March 1, 1924, unless sooner terminated by the acts of the parties. As the defendants did not avail themselves of the option that subject is not in controversy. It was stipulated expressly that the lessees should yield the quiet and peaceable possession of the premises “within five days after the expiration of this lease, whether by expiration of the term, or by forfeiture, on five days’ written notice thereof.” On March 6, 1924, defendants still being in possession of the premises, plaintiff served upon them a notice in which he demanded that they “quit the said premises and yield the quiet and peaceable possession thereof within three days from and after the date of thh] notice.” When the defendants did not yield the plaintiff on March 11 began this action for the restitution of the premises and for damages for the rents and profits thereof, which were alleged to be $150 per month, praying that the damages be trebled. Summons having been served upon the defendants, on March 17 they appeared by, demurrer which challenged the sufficiency of the complaint. Five days later the plaintiff filed in the action an application for the appointment of a receiver in which he recited that the cause was commenced on March 11, that it “is an action in unlawful detainer and the complaint in said action alleges that the defendants and all of them are holding over after the expiration of the term of a written lease for the premises therein described,” that, although on March 6 the plaintiff gave the defendants three days’ notice to quit the premises they continued in possession. Summarized, the grounds of plaintiff’s application are that the defendants are insolvent; that they have neither funds nor horses, machinery nor tools with which to fai’m the lands, but nevertheless they propose to hold possession of the same during the cropping season of 1924; that the “said defendants do not intend and cannot put in a crop on said premises for the season of 1924, but intend to and will, if permitted to do so, let the said premises lie idle during the said season and grow up to weeds instead of valuable crops; that said defendants have permitted the improvements on said premises to deteriorate and the said premises to fail into a lamentable state of disrepair” to the great damage and injury of the plaintiff, and will continue to do so if permitted; that the plaintiff is the owner and holds the record title of the premises, and the withholding of possession thereof from him during the season of 1924 will work irreparable damage to him in that there will be no crops of hay or grain planted, cultivated, harvested or marketed during that season, to his damage in the sum of $2,000, which, owing to the financial condition of the defendants, cannot be recovered from them; that plaintiff has no plain, speedy and adequate remedy at law or in equity other than the appointment of a receiver to lease the premises for the season of 1924; that the cropping and seeding season is almost at hand and it is necessary, if the land be cropped for the said season, that the premises be leased immediately and the lessee placed in possession thereof.
Notice of motion for the appointment of a receiver having been served upon counsel for defendants, they made a special appearance — at least they denominated their appearance as special — in which they objected to the appointment upon a number of grounds.
At the time fixed for the hearing the defendants did not appear. The court received evidence from plaintiff and thereupon made an order appointing a receiver to take possession of the premises and to "either operate the same during the season of 1924 or lease the same to some fit and proper person on a crop basis, and upon the best terms obtainable, and to account to this court for the net proceeds of said premises during the said season,” From this order the defendants have appealed.
We shall not stop to consider the sufficiency of the notice of hearing given the defendants, for in view of the result reached that matter is not of any importance.
Nor shall we pass upon the sufficiency of the notice to quit which plaintiff gave defendants before beginning the suit. That may or may not become a material issue in the main cause and we do not desire to express an opinion now which may be understood as foreclosing the inquiry. Upon this appeal as will appear presently defendants are entitled to prevail regardless of whether there is merit in their contention respecting the sufficiency of the notice to quit.
Originally the appointment of a receiver was part of the jurisdiction of equity. While in this state the subject is covered by statute, it must be conceded that unless the instant case falls within the provisions of subdivision 6 of section 9301, Revised Codes of 1921 — a receiver may be appointed by the court in which an action is pending in all cases "where receivers have heretofore been appointed by the usages of courts of equity” — the receiver should not have been appointed. Receivership is an extraordinary provisional remedy of ancillary character, allowable only in an action pending for some other purpose. (Lyon v. United States Fidelity & Guaranty Co., 48 Mont. 591, Ann. Cas. 1915D, 1036, 140 Pac. 86; Hartnett v. St. Louis M. & M. Co., 51 Mont. 395, 153 Pac. 437.)
The power to invoke this remedy whereby property is to be “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.” Such is the language of this court in Montana Ranches Co. v. Dolan, 53 Mont. 397, 164 Pac. 306, in which the rule announced in Hickey v. Parrot S. & C. Co., 25 Mont. 164, 64 Pac. 330, is approved. In the Dolan Case the court also observed: “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.” (High on Receivers, sec. 555.)
Sufficient notice to quit having been given defendants, the action of unlawful detainer would have provided plaintiff an adequate remedy. That action, summary in character, is specially designed to afford a landlord speedy relief against a tenant who is guilty of an unlawful holding over. It was thus designed to obviate the delays incident to actions for the possession of real estate in which title to the premises is involved, as was pointed out in Cashman v. Vickers, 69 Mont. 516, 223 Pac. 897.
In this case we have presented this anomalous situation: In a summary action in which title may not be inquired into, the plaintiff in an attempt to invoke an ancillary remedy of a summary character rests his application (wherein he prays the interposition of equity) upon his title to the subject matter of the suit. This cannot be.
Rehearing denied March 21, 1925.
It cannot be for another reason. By the Constitution justices’ courts are given concurrent jurisdiction with district courts in eases of forcible entry and unlawful detainer (Art. VIII, sec. 21), which necessarily implies that in those cases a district court has precisely the same authority as has a justice’s court, and it follows necessarily, also, that in those cases a district court may not exercise any of its equitable powers.
Still another query arises: If the receiver were appointed, what means of getting possession of the premises would he have superior to those available to the plaintiff?
Whether the evidence given by plaintiff in support of his application for a receiver would have been sufficient to warrant an appointment in a proper case we need not determine. It is clear that in the instant case the appointment was not warranted.
The order appealed from is reversed.
Bevers&d.
Associate Justices Holloway and Stark and Honorable C. W. Pomeroy, District Judge, sitting in place of Mr. Justice Matthews, disqualified, 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 STARK
delivered the opinion of the court.
This is an action in conversion to recover the value of an automobile. In her complaint, plaintiff alleges that at all times therein mentioned she was the owner of a certain Buick automobile which, on May 2, 1921, was in the possession of the Franklin Garage, a corporation, with which she had left it as security for the payment of the sum of $90, being the balance of the purchase price thereof.
Paragraph 4 of the complaint reads: “That on the second day of May, 1921, and at all times thereafter, this plaintiff was prepared to and did offer to pay the said Franklin Garage the said sum of ninety ($90) dollars, and thereupon the said plaintiff became entitled to the immediate and exclusive possession of said automobile.”
The complaint also alleges that on or about the second day of May, the defendant Birely, who was then the sheriff of Yellowstone county, under and by virtue of a writ of attachment issued out of the district court of Yellowstone county, wrongfully took said automobile from the possession of the Franklin Garage; that subsequent thereto the plaintiff made demand of the defendant Birely for its possession, which demand was refused. Thereupon the plaintiff brought this action to recover the value thereof.
The defendants Birely and Northern Electric Company filed a joint answer to the complaint, which, after admitting the official capacity of Birely and the incorporation of the defendant Northern Electric Company, denied all of the other allegations therein contained. For a further and special de fense, the answer alleges in paragraphs 1 and 8 that the automobile in question was at the time mentioned the sole property of one J. G. Brennan, and that the plaintiff had no right or interest therein. In paragraphs 2 to 7, inclusive, of this separate defense it is alleged that on May 2, 1921, the defendant Northern Electric Company commenced an action in the district court of Yellowstone county against said J. G. Brennan, in which a writ of attachment was issued, by virtue of which the defendant Birely, as sheriff of said county levied upon and attached said automobile as the property of J. G. Brennan; that on December 24, 1921, a judgment in said action was duly given and made in favor of the plaintiff and against the defendant therein for the sum of $1,034.80; that an execution was issued on said judgment under which the defendant Birely, as sheriff, sold said automobile, the defendant Northern Electric Company becoming the purchaser.
To this answer plaintiff filed a reply, in which the allegations of paragraphs 1 and 8 of the separate answer were denied, and an attempt was made to deny the allegations of paragraphs 2 to 7, inclusive. The case was tried to a jury on November 3, 1923, and resulted in a verdict and judgment in favor of the plaintiff, from which the defendants have appealed.
1. The defendants attack the validity of the judgment on the ground that the complaint does not state facts sufficient to constitute a cause of action against them.
In the original transcript filed in this court the only pleadings included were the complaint, answer and reply; but at the time the cause was argued defendants were permitted to amend the transcript by inserting therein a demurrer to the complaint, which had been filed by them prior to the time they filed their answer. However, the transcript fails to show that defendants ever called the demurrer to the attention of the court, or requested a ruling thereon. The affidavit of the clerk of the district court, filed in support of the motion to amend the transcript, recites that he has searched the records in his office, “and has failed to find that said court ruled upon the demurrer to plaintiff’s complaint.”
The general rule is that, when, after a demurrer is filed, the parties file other pleadings and proceed to trial upon the merits of the cause, without calling the demurrer to the attention of the court or demanding a ruling thereon, the demurrer is considered as abandoned or waived. (Basey v. Gallagher, 20 Wall. (87 U. S.) 670, 22 L. Ed. 452 [see, also, Rose’s U. S. Notes]; State v. Bright, 224 Mo. 514, 135 Am. St. Rep. 552, 20 Ann. Cas. 955, 123 S. W. 1057; King v. Lacey, 8 Conn. 499; Livesley v. O’Brien, 3 Wash. 546, 28 Pac. 920; Adams v. West Shore R. Co., 65 How. Pr. (N. Y.) 329; 6 Ency. Pl. & Pr. 379; 21 R. C. L. 622.) So it must be assumed that defendants waived or abandoned their demurrer. Under such circumstances, the case stands precisely as if no demurrer had been interposed. (Freas v. Lake, 2 Colo. 480.) Therefore, in determining whether this complaint states facts sufficient to constitute a cause of action against the defendants, it must be considered as being questioned for the first time on appeal to this court, and subject to the rules applicable under such conditions.
In Ellinghouse v. Ajax Livestock Co., 51 Mont. 275, L. R. A. 1916D, 836, 152 Pac. 481, this court said: “When, however, the point [that the complaint does not state facts sufficient to constitute a cause of action] is made in this court for the first time on appeal, the objection is regarded with disfavor, and every reasonable deduction will be drawn from the facts stated in order to uphold the pleading.. So, also, will the pleading be held sufficient, if the defect made the basis of the objection is not a matter going to the root of the cause of action, but is such as might have been remedied by an amendment.” This doctrine has been followed in many subsequent cases in this court; amongst them being Crawford v. Pierse, 56 Mont. 371, 185 Pac. 315, and Hodson v. O’Keeffe, 71 Mont. 322, 229 Pac. 722.
The argument of counsel for appellants runs along this line: The complaint shows upon its face that when plaintiff brought this suit the automobile in question was in possession of, and held by, the Franklin Garage as security for payment of the sum of $90, due from the plaintiff as the balance of the purchase price thereof, and before she could maintain an action for its conversion she was required to show that she was entitled to its immediate possession, which fact could only be established by proving payment of the amount due from her, or a sufficient tender of such payment. (Reardon v. Patterson, 19 Mont. 231, 47 Pac. 956), and that paragraph 4 of the complaint above quoted is not a sufficient plea of a tender of payment of the amount due to the Franklin Garage, because it'does not disclose that she had the ability to pay, and in this connection cite section 7441, Revised Codes of 1921, which reads: “An offer of performance is of no effect if the person making it is not able and willing to perform according to the offer. ’ ’
We cannot agree with counsel’s contention. Amongst the definitions of the verb “prepare,” as given in the dictionaries, we find the following: “To provide with necessary means” (Century) ; “to make ready” (Webster’s New International) ; “to provide with what is appropriate or necessary” (Standard). The verb “offer” means “to tender, present, or bring to one for acceptance or rejection” (Standard); “to present for acceptance or rejection; to hold out” (Webster’s New International); and “to tender” means “to produce and offer unconditionally; as money, or other specific thing, in payment or performance of an obligation” (Standard).
Section 7429, Revised Codes of 1921, provides: “Performance of an obligation for the delivery of money only is called payment,” and section 7450 declares that “an offer of payment or other performance, duly made # * * has the same effect upon all incidents as a performance thereof.”
If plaintiff had actually paid to the Franklin Garage the sum of $90, for which it held the automobile as security, it would have followed as an incident to such payment that she was entitled to its immediate possession.
Under the rule applicable here, that “every reasonable deduction will be drawn from the facts stated, in order to uphold the pleading,” it is proper to read into the complaint the definition of the words used, and by so doing the scope of the allegations of the paragraph under consideration is made sufficiently broad to have entitled the plaintiff at the trial to prove that she had provided herself with the lawful money necessary to pay the $90 due to the Franklin Garage; that she had produced and offered it unconditionally in discharge of this obligation, and that such offer was refused, thereby establishing the fact that she was entitled to the immediate possession of the automobile held as security for its payment, and so entitled to maintain this suit.
2. Paragraphs 1 and 8 of the special defense set out in the answer allege that the automobile in question was not, at the time it was levied upon by the defendant Birely, the property of the plaintiff, but was the property of one J. G. Brennan.
By paragraphs 2 to 7, inclusive, the defendants set forth the seizure of the automobile under the writ of attachment issued in the case of Northern Electric Co. v. J. G. Brennan; that judgment was duly given and made against the defendant in said action; that a writ of execution was issued thereon, under which the defendant Birely, as sheriff, sold the same, thereby seeking to justify the seizure and sale.
The allegations of paragraphs 1 and 8 were denied by the reply, and an attempt was made to deny the allegations of paragraphs 2 to 7. It is urged by defendants that these last-mentioned denials are insufficient, and therefore the allegations of paragraphs 2 to 7 are deemed admitted. If it be conceded that all these allegations are admitted, it does not aid the defendants. In none of these paragraphs is the plaintiff’s ownership of the automobile denied, or its ownership by J. G. Brennan alleged. They only set out the proceedings leading up to tbe issuance of an execution against tlie property of J. G. Brennan under which the property was sold. If it belonged to the plaintiff, the sale did not divest her of her right. Unless the- automobile belonged to her, she was not entitled to recover. An issue of fact was made of that question which was resolved in her favor by the jury, and the correctness of that finding is not questioned by defendants on this appeal.
The judgment is affirmed.-
I'Affirmed.
Mr. Chief Justice Callaway, Associate Justices Rankin and Holloway and Honorable Frank P. Leiper, District Judge, sitting in place of Mr. Justice Galen, absent on account of illness, concur.
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] |
Opinion:
PER CURIAM.
There is involved herein the validity of the special Act creating Wheatland county. By stipulation of the parties, the same judgment is to be entered herein as in cause No. 4005, State ex rel. Ford v. Schofield et al., ante, p. 502, 165 Pac. 594. Upon the authority of that case, this proceeding is dismissed.
Dismissed.
|
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] |
MR. JUSTICE SANNER
delivered the opinion of the court.
By a general verdict of guilty J. E. Reed was convicted of a violation of what is known as the Donlan Act (Sess. Laws 1911, Chap. 1), and from the judgment entered on the verdict, as well as from an order denying him a new trial, he appeals.
The information is in four counts; but the state concedes that under the evidence the conviction can stand, if at all, only upon the first count, which charges that the appellant “did willfully, unlawfully, and feloniously attempt to induce, entice, procure and compel Jennie Doe, a female person, to reside with Joseph Kandelhofer for immoral purposes,” contrary to section 2 of said Act.
The facts, as presented on behalf of the prosecution by evidence to which no serious exception is taken, are substantially these: Diamondville, Wyoming, is a mining camp consisting largely of Italians and Austrians, and there one Joseph Kandelhofer maintains a “boarding-house”; this place has two stories, and on the ground floor are a barroom, leading off from which is a hallway with doors on each side, and farther on a dining-room; the doors leading off from the hallway give entrance to a wineroom and to bedrooms; the wineroom is a dance-hall, and the bedrooms are occupied by miners who lodge at the place; girls and young women were employed there, whose principal duties were to dance with men in the wineroom, drink with men at the bar, and otherwise, “entertain” the men who frequented the place, during all hours from 7 P. M. to 8 A. M. On or about February 17, 1915, the appellant, who was conducting an employment agency at Butte, was applied to by Dorothy Burger, a girl seventeen years old, for a position; he said he could furnish her a position as waitress in a hotel kept by Joseph Kandel hofer at Diamondville, Wyoming, the wages to b’e $30 per month, with room and board. She accepted, and he promised to have transportation for her the next day. On the next day he said he had her ticket, that the place was a sporting-house, and that her duties would be to dance, play cards, drink beer, and entertain men; she then consulted a woman friend, who in turn reported to the chief of police, and he, after satisfying himself as to the character of the place, planned that she should take the ticket and board the train en route for Diamondville, but be taken off at Silver Bow; she again sought the appellant, who gave her a letter addressed to Joseph Kandelhofer at Diamond-ville, Wyoming, and escorted her to the station, where he got and gave her the ticket, and she went upon the train; she was met at Silver Bow by officers, left the train, and returned to Butte. The letter just referred to was one of introduction, and also a notification to Kandelhofer that another girl “of good appearance,” named Bessie Krambeal, would come on receipt of transportation; this girl, engaged by the appellant to go to the same house, had been told by him that among her duties she would have to dance and entertain men; that the place was “a kind of a boarding-house with a bar in it and a dance-hall, ’ ’ and she had been given to understand that it was “not a very moral place”; her arrest on the following day prevented her from going. Other evidence, to which exception is taken, tends to show that the place was not one where a girl could live for any length of time and be respectable; that it was, after the events here involved, closed as a public nuisance; and that the appellant knew that girls who were “good-lookers” rather than efficient cooks and waitresses were the chief desideratum there.
1. The first contention is that no case was made for judicial cognizance because the purposes for which Dorothy Burger was to go to Diamondville were not immoral purposes within the meaning of the Donlan Act. In State v. Harper, 48 Mont. 456, Ann. Cas. 1915D, 1017, 51 L. R. A. (n. s.) 157, 138 Pac. 495, we took occasion to show the similarity of object of both the Donlan Act, as operative within this state, and the Mann Act of the national Congress, as operative in interstate commerce — such object being to suppress the traffic in women and girls for immoral purposes. In the Mann Act the thing forbidden is the interstate transportation of women “for prostitution or debauchery, or any other immoral purpose,” while the Donlan Act is directed to every form of traffic in women “for prostitution or concubinage, or any other immoral purpose”; and we think it manifest that the meaning of the phrase “or any other immoral purpose” is the same in each Act. Appellant insists that the rule ejusdem generis must be applied and the reference taken to mean immoral acts of like character. We think the rule ejusdem generis does aPply» but its correct application cannot absolve appellant upon the circumstances here presented. In Athanasaw v. United States, 227 U. S. 326, Ann. Cas. 1913E, 911, 57 L. Ed. 528, 33 Sup. Ct. Rep. 285, the national supreme court applied the Mann Act to a state of facts which, so far as undisputed, was not materially different from that at bar, and said: “The instructions-of the court were justified by the statute. It is true that the court did not give to the word ‘debauchery’ or to the purpose of the statute the limited definition and extent contended for by defendants, nor did the court make the guilt of the defendants to depend upon having the intent themselves to debauch the girl or to intend that some one else should do so. In the view of the court that statute had a more comprehensive prohibition and was designed to reach acts which might ultimately lead to that phase of debauchery which consisted in‘sexual actions.’ * * * The court put it to the jury to consider whether the employment to which the defendants called the girl and the influences with which they surrounded her tended ‘to induce her to give herself up to a. condition of debauchery which eventually and naturally would lead to a course of immorality sexually.’ * * * The plan and place justified the instructions. * # # The employment to which she was enticed was an efficient school of debauchery of the special immorality which defendants contend the statute was designed to cover.” This authoritative interpretation of the phrase “or any other immoral purpose,” as used in the Mann Act, is equally apt as an interpretation of the like phrase as it appears in the Donlan Act. We adopt it, and say that the employment to which the appellant tried to entice Dorothy Burger was an efficient school for that special immorality, to-wit: Prostitution or concubinage, which the Donlan Act was clearly designed to cover.
2. It is next contended that the court below had no jurisdiction, because the transaction, if culpable at all, was within the Mann Act. As stated above, the conviction was for an attempt, under section 2 of the Donlan Act, to induce or entice the girl in question to reside with Joseph Kandelhofer for immoral purposes. This offense, complete before the ticket was furnished or transportation commenced, was wholly intrastate and without the purview of the Mann Act or any other national legislation. It is quite true that to furnish a ticket or cause interstate transportation for immoral purposes to commence, subjects the offender to prosecution under the Mann Act. But it is doubtful if the plan of the appellant, frustrated by the girl and the police, could be so prosecuted; in any event, it could not prevent the state from punishing an infraction of its own laws, complete without regard to such transportation, and performed wholly within its own boundaries.
3. The appellant vigorously insists that the conviction cannot stand because the information was in four counts, three of which were unsupported by the evidence and, as the verdict was general, it cannot be told whether the conviction was for the offense as specified in the count supported by the evidence, or for the offense as specified in one of the counts not so supported. To sustain his contention he invokes the statement of this court in Martin v. Northern Pac. R. Co., 51 Mont. 31, 38, 149 Pac. 89, 91, as follows: “There is nothing in the general verdict itself, or in the entire record before us, from which it can be determined upon which of the three counts submitted the jury made their finding. We are unable to agree with counsel for respondent that the authorities cited by him sustain the proposition that, if the complaint contains one good count, the presump tion will be indulged that the jurors determined that fact and founded their verdict upon it, rather than upon the counts which fail to state facts sufficient to warrant recovery. Jurors are not familiar with the rules governing practice and procedure, but have a right to assume that any count submitted to them by the court will justify recovery if the evidence supports it.” Very clearly the question thus discussed is not the question sought to be raised here. The question sought to be raised here is: Can a general verdict .of guilty stand where the information shows four counts, all good as a matter of pleading, but only one of which is supported by the evidence? And that question the appellant is in no position to raise, because he did not seek in any way upon the trial to have the unsupported counts withdrawn from the consideration of the jury.
4. Upon his arrest the appellant was searched, and among the things taken from his person were certain keys. With these keys the officers obtained access to his private papers and secured certain letters, among them the copy of one dated January 6, 1915, addressed to Isa Goldstein, at Helena, which discussed the traffic in girls for Kandelhofer’s place; this letter the state offered, and the court over objection received in evidence. The principal ground of objection was, and it is here urged, that as the letter was taken without appellant’s consent, it could not be used against him, under his constitutional right to be secure from unreasonable searches and seizures and to not be compelled to testify against himself. There was no merit in the objection. (State v. Fuller, 34 Mont. 12, 9 Ann. Cas. 648, 8 L. R. A. (n. s.) 762, 85 Pac. 369; Adams v. New York, 192 U. S. 585, 48 L. Ed. 575, 24 Sup. Ct. Rep. 372; Smith v. State, 144 Ga. 679, 87 S. E. 893; Id., 17 Ga. App. 693, 88 S. E. 42; note, L. R. A. 1916E, 715.)
5. It is assigned for error that at the close of all the testimony the court permitted the information to be amended by inserting the name “Dorothy Burger” in lieu of “Jennie Doe.” The record shows affirmatively that the appellant, as well as the county attorney, knew from the time the information was filed that “Jennie Doe” was a fictitious name intended to describe the witness Dorothy Burger, and the case was tried throughout on that basis. The information was subject to the amendment (Rev. Codes, sec. 9174), and the conviction could have stood unaffected by the misnomer, had the amendment not been made (Rev. Codes, sec. 9157). The appellant was therefore not prejudiced by the ruling.
6. Over the appellant’s objection the court gave instruction X, as follows: “You are instructed that the word ‘immoral’ is defined to be anything inconsistent with rectitude, purity or good morals, or anything contrary to the conscience or the moral law, or anything hostile to the welfare of the general public; and the word ‘purpose’ is the object, effect or result aimed at, intended or attained. Therefore an immoral purpose is one which is violative of conscience or moral law, inconsistent with purity, rectitude or good morals, or hostile to the welfare of the general public.” As an abstract definition of immorality in the largest sense no exception could, perhaps, be taken to this instruction; but it should be clear from what is said above that as an interpretation of the phrase “immoral purposes,” as used in the Donlan Act, it was a palpable and prejudicial misdirection of the jury.
7. The remaining assignments relate to matters of evidence. Some of these are entirely without merit, and others do not suggest that the appellant could have suffered any prejudice; but this cannot be said of all of them. The court, for instance, permitted to be introduced a letter from one Bertolino, postmaster of Diamondville, to Jerry Murphy, chief of police at Butte, describing and characterizing' Kandelhofer’s place, together with certain newspaper clippings — damaging by reason of their contents and their mode of expression, and also received, over objection, a telegram from one Vicars, chief of police at Diamondville, to Mr. Murphy, to this effect: “Four girls deported from Kandelhofer house last week. My advice not to send girls.” These were all clearly hearsay, and were not, as the court seems to have thought, made admissible by anything which, occurred in Murphy’s cross-examination.
Rulings were also made permitting witnesses to express opinions of the Kandelhofer place, obviously wrong, since this was not a matter of expert testimony, but rather for inference by the jury from the facts laid before them, touching the arrangement of the place and the things which commonly occurred there. We do not deem it necessary to discuss these assignments any further, for it is highly improbable that the questions raised by them will recur.
The judgment and order appealed from are reversed, and the cause is remanded for retrial.
Reversed and, remanded.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
|
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
In an action pending in the district court of Lewis and Clark county, wherein Erma M. Stabler was plaintiff, and J. M. Adamson, Charles Hageman, the Maryland Casualty Company, and the Fidelity & Deposit Company of Maryland were the defendants, a judgment was rendered and entered on May 3, 1924, in favor of the plaintiff and against the defendants for $984.75. The Maryland Casualty Company, a foreign corporation doing business in this state, was the surety on the official bond of Adamson, a constable, and the Fidelity & Guaranty Company, also a foreign corporation engaged in business here, was the surety on the official bond of Hageman, a constable. On August 5 the clerk of the district court transmitted to the state auditor, ex-officio- insurance commissioner, a certified copy of the judgment, with the statement that the judgment had not been paid. On August 6 the defendants mentioned in the action above perfected an appeal to .this court by giving the required notice and furnishing the statutory appeal bond. They also secured a stay of execution by providing the bond required for that purpose by section 9735, Revised Codes, to the sufficiency of which bond no exception was taken.. The insurance commissioner failed or refused to act upon the record, and on September 6 this proceeding was instituted. An alternative writ of mandate was issued, but on the return the court sustained a motion to quash, and the proceeding was dismissed. The relatrix has appealed.
We shall not stop to determine whether the order made by the trial court is in point of law a judgment. The question has not been raised, and we shall assume, for the purpose of this case only, that the appeal is before us.
Chapters 40 and 139, Laws of 1909, supplemented by Chapter 6, Laws of 1911, now sections 6206-6236, Revised Codes, provide the conditions upon which a foreign indemnity or guaranty company may transact business in this state. Section 6207, Revised Codes, authorizes such a company to become surety' on the official bond of any public officer. Section 6221 provides that: “If any such company shall neglect or refuse to pay any final judgment or decree rendered against it upon any such bond * * * from which no appeal, writ of error, or supersedeas has been taken for ninety days after the rendition of such judgment or decree, it shall be the duty of the clerk of the court in which said judgment or decree was rendered to certify a copy thereof to the insurance commissioner, together with the fact that it remains unpaid; said commissioner shall revoke all licenses and the certificates of authority issued to such company,’’ etc.
Causes are not removed to this court by writ of error, although that procedure might be made available. (Sec. 15, Art. VIII, Constitution of Montana.) Technically, a supersedeas is an auxiliary process designed to supersede the enforcement of a judgment of the court below brought up by writ of error for review. (Williams v. Bruffy, 102 U. S. 248, 26 L. Ed. 135 [see, also, Rose’s U. S. Notes].) In the more general sense it is used synonymously with “stay of proceedings” (Dulin v. Pacific W. & C. Co., 98 Cal. 304, 33 Pac. 123), and doubtless it is in this sense that it is employed in section 6221 above.
By this proceeding it is sought to compel the state auditor, as insurance commissioner, to revoke the license of each of these foreign companies for its failure for more than ninety days to pay the Stabler judgment, appeal therefrom, or secure a stay of proceedings. We enter upon our investigation indulging the presumption that the judgment of the trial court is eoi’rect, and therefore the appellant must assume the burden of showing reversible error. (Haley v. McDermott, 45 Mont. 217, 121 Pac. 1060.)
In some of the states the proceeding in mandamus is treated as an ordinary civil action, from which it results that the writ issues as a matter of right. (26 Cyc. 144.) That rule, however, does not prevail in this jurisdiction.
“Mandamus is an extraordinary remedy, not to be had merely for the asking, but to be obtained only in those rare eases wherein there is not any plain, speedy, and adequate remedy in the ordinary course of law; # * * hence the rule so often announced by this court that the party applying for the writ must disclose the facts which establish his clear legal right to the relief sought.” (State ex rel. Duggan v. District Court, 65 Mont. 197, 210 Pac. 1062.)
In State ex rel. Donovan v. Barret, 30 Mont. 203, 81 Pac. 349, this court said: “Mandamus is a discretionary writ, and will be allowed only in furtherance of justice upon a proper case presented.”
In State ex rel. Beach v. District Court, 29 Mont. 265, 74 Pac. 498, we quoted approvingly from People ex rel. Harless v. Hatch, 33 Ill. 9, the following language of Mr. Justice Breese: “The writ of mandamus is a high prerogative writ, to be awarded in the discretion of the court, and ought not to issue in any case unless the party applying for it shall show a clear legal right to have the thing sought by it done.”
In State ex rel. Danaher v. Miller, 52 Mont. 562, 160 Pac. 513, it was said: “It is to be borne in mind further that mandamus is not a writ of right. It issues only in the discretion of the court.”
In 26 Cyc. 144, it is said: “The writ is employed only in unusual cases where other remedies fail, and it is hedged about by many conditions totally inapplicable to the ordinary suit at law. The appellant must in all cases substantially demonstrate the propriety and justice of his ease. Nor is the court bound to take the case as the applicant presents it. It may consider defendant’s rights, the interest of third persons, the importance or unimportance of the case, and the applicant’s conduct, in determining whether or not the writ shall go.” Again, on page 146, the same authority declares: ‘ ‘ The writ of mandamus issues only in case of necessity to prevent injustice or great injury. If there is doubt of its necessity or propriety it will not go. ”
It is the rule that, generally, mandamus will not issue where the rights of third persons who are not before the court are necessarily involved or will be affected injuriously. (Ex parte Du Bose, 54 Ala. 278; Farmers’ High Line Canal & Reservoir Co. v. People, 8 Colo. App. 246, 45 Pac. 543; State ex rel. Dixon v. Trustees, 20 Fla. 402; People v. City of Bloomington, 38 Ill. App. 125; Capital Printing Co. v. Hoey, 124 N. C. 767, 33 S. E. 160; Territory v. Perea, 6 N. M. 531, 30 Pac. 928; United States v. Commissioner, 5 Wall. 563, 18 L. Ed. 692 [see, also, Rose’s U. S. Notes]; United States ex rel. Redfield v. Windom, 137 U. S. 636, 34 L. Ed. 811, 11 Sup. Ct. Rep. 197 [see, also, Rose’s U. S. Notes]; 26 Cyc. 145; 18 R. C. L. 139; Merrill on Mandamus, sec. 83.)
With these principles in view we examine the facts pre sented by the record. It is true that the appeal in the .case of Stabler v. Adamson et al. was not taken within ninety days from the rendition of the judgment. It was perfected, however, on the ninety-fifth day after the judgment was rendered, and payment of the judgment was thereupon secured by a bond satisfactory to the judgment creditor — thirty days before this proceeding was instituted. It is perfectly apparent that no right or interest of the plaintiff, Stabler’, will be affected one way or the other by the issuance or denial of the writ. The issuance of the writ and the revocation of the licenses might gratify her, but those acts, if performed, would not pay her judgment or contribute to that end, while the refusal of the writ would not' leave her in any worse situation than she was when this proceeding was initiated. In other words, this proceeding cannot accomplish any purpose except to vindicate the law, and in the enforcement of that right plaintiff, Stabler, does not have an interest different in any respect from the interest of every other citizen, so that, if she may maintain this proceeding, every other citizen of the state may maintain a like proceeding.
It is equally apparent that, if the writ be issued, the necessary consequence will be that these foreign eorpoi’ations will have their licenses revoked, their business here destroyed and their right to engage in business in this state denied — and all without an opportunity to be heard, since neither of them is a party to this proceeding.
Rehearing denied January 5, 1925.
Under these circumstances the trial court might have held with propriety that resort should have been had to quo warranto proceedings, which would accomplish every purpose sought and at the same time afford the offending companies an opportunity to be heard and to present any defense they or either of them may have. (In re Hart, 159 N. Y. 278, 54 N. E. 44.)
■ While it is true that the attorney general appears in this proceeding as counsel for the respondent, it will not be presumed that upon direction of the governor he will refuse to discharge the duty imposed upon him by section 9578, Revised Codes.
The granting or refusal of the writ was lodged in the sound legal discretion of the trial court, and we are not convinced by this record that the discretion was abused when the writ was denied. The judgment is affirmed.
Affirmed.
Mb. Chief Justice Callaway and Associate Justices Rankin and Stark concur.
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
On or about June 29, 1923, the sheriff of Toole county, acting at the behest of the Great Falls Paper Company, took possession of personal property comprising the equipment of a restaurant in the town of Shelby. The property was seized under a writ of attachment issued in an action wherein the paper company was plaintiff and Lucien Wray and M. Higgins, partners doing business as the Exchange Furniture Company, were defendants, and later the property was sold to satisfy a judgment recovered in that case. Hetty Wray, the wife of Lucien Wray, instituted this action to recover damages for the alleged wrongful seizure of the property. Issues were joined and the cause tried, resulting in a verdict in favor of the plaintiff for compensatory and exemplary damages, and from the judgment entered on the verdict defendant appealed.
1. The principal objection is made to the award of exem plary damages, and it is insisted that the court erred in giving the instructions (3 and 4) submitting the question to the jury.
Instruction 3 follows substantially the language of section 8666, Revised Codes, which reads: “In any action for a breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud, or malice, actual or presumed, the jury, in addition to the actual damages, may give damages for the sake of example, and by way of punishing the defendant.”
By instruction 4 the court undertook to explain the meaning of “actual” and “presumed” as employed in section 8666. It assumed that “actual malice” is “malice in fact,” and that “malice presumed” is “malice in law,” and then attempted a definition of each of these phrases. Exception was not taken to the definitions, the only objections to either instruction being that it authorizes an award of exemplary damages for malice in law as well as malice in fact, and that the evidence does not warrant a recovery of exemplary damages.
In support of the contention .that malice in law does not justify an award of exemplary damages, counsel for defendant cites Walker v. Chanslor, 153 Cal. 118, 126 Am. St. Rep. 61, 17 L. R. A. (n. s.) 455, 94 Pac. 606, an action for damages for assault and battery, in which the court used this language: “Damages of an exemplary character could only be assessed against the defendants upon a showing of malice in fact as distinguished from malice in law.” Whether this court should be influenced by that statement must depend upon an understanding of the theory upon which 'the California court proceeded.
A reference to "Words & Phrases discloses the all but numberless instances in which the courts have attempted to define “malice” and to differentiate between so-called classes of malice, and an examination of the decided eases discloses the hopeless confusion which has resulted from the attempts. One court treats “implied malice” as “malice in fact,” another as “malice in law.” But, speaking in very general terms, it may be said that most of the authorities refer to “actual malice” and “express malice” as terms which denote malice in fact, and “constructive malice,” “implied malice,” “imputed malice,” and “presumed malice” as terms synonymous with “malice in law.” These so-called definitions, however, are all more properly characterized descriptions which deal primarily with the method of establishing the existence of malice, and even for that purpose they are of little value.
Malice, like envy, love or hate, is a. concept -of the mind, a term understood generally but one which practically defies definition. Our Codes do not, in terms at least, recognize any different kinds, grades or degrees of malice; but they do recognize malice itself, and declare that the term 'imports “a wish to vex, annoy, or injure another person, or an intent to do a wrongful act,” and that the existence of malice may be “established either by proof or presumption of law.” (See. 10713, Rev. Codes.) In other words, this statute deals with the characteristics of malice and the different means by which the existence of malice may be established; but, when once' established, the result is the existence of, not malice in law, nor malice in fact, but of just malice.
Generally, the existence of malice must be established by evidence, direct or circumstantial, but there are exceptions to the rule; for example, in the law of criminal libel “an injurious publication is presumed to have been malicious if no justifiable motive for making it is shown.” (Sec. 10991, Rev. Codes.) And again, “a malicious and guilty intent” is presumed “from the deliberate commission of an unlawful act, for the purpose of injuring another,” and this presumption is made conclusive. (Sec. 10605.)
At common law, malice was presumed from the fact that a publication was false, and, in turn, the falsity of the publication was presumed from the mere fact of publication. (Cooper v. Romney, 49 Mont. 119, Ann. Cas. 1916A, 596, 141 Pac. 289.) This was said to be a mere fiction of the law, and the fact that it was 'but a fiction may be illustrated by the case of Taylor v. Hearst, 107 Cal. 262, 40 Pac. 392. In that case a libelous article was published concerning J. W. Taylor. The intention of the reporter, publisher and proprietor of the paper was to charge the offense to J. N. Taylor, but by mere inadvertence the wrong middle initial appeared in the article. It is apparent that a wish to vex, annoy or injure J. W. Taylor, or an intent to do a wrongful act, was altogether wanting; hut nevertheless the existence of malice was to be presumed under the common-law rule. If this fiction is characterized properly as “malice in law,” then there may be justification for the classification made by the California court in Walker v. Chanslor, and that that court employed the phrase in the sense just indicated is made certain from the decision in Davis v. Hearst, 160 Cal. 143, 116 Pac. 530.
When we understand the theory which underlies the decision in Walker v. Chanslor, the language quoted above is unobjectionable; but the case is not authority for the proposition to which it is cited here. The trial court did not employ the phrase, “malice in law” in the sense that the California court used it.
The worst that can be said of instruction 4 is that it states mere abstract rules without any attempt to apply them to the facts of the instant case; and while we do not approve of the text of the instruction, and repeat the oft-stated condemnation of the practice of submitting abstract propositions of law, the instruction is not open to the objection urged against it. When read in connection with instruction 3, it does advise the jury that malice may be established either by direct or circumstantial evidence, and to this extent it is clearly correct. It does not conflict in the least with anything said by this court in Moelleur v. Moelleur, 55 Mont. 30, 173 Pac 419; in Luther v. Lee, 62 Mont. 174, 204 Pac. 365; in Gilham v. Devereaux, 67 Mont. 75, 33 A. L. R. 381, 214 Pac. 606; in Long v. Davis, 68 Mont. 85, 217 Pac. 667, or in Klind v. Valley County Bank, 69 Mont. 386, 222 Pac. 439.
Stated briefly, the evidence discloses in effect that the officer and an agent of the paper company appeared at the restaurant on June 20, but, for reasons satisfactory to themselves, did not levy the writ at that time, though they had it in their possession. On the 28th the officer returned just before the noon hour and informed plaintiff that he intended to close the place. Lucien Wray was not present, and plaintiff protested that the property belonged to her exclusively and asked the officer to examine the license, in her name, which was posted in a conspicuous place. This he refused to do, but excluded customers who were entering the place for the noon meal, and closed the restaurant, placing a keeper in charge. Plaintiff then went to the attorney for the paper company, made her claim of ownership and asked that the property be released, but this was refused. She then made a third-party claim under the provisions of section 9273, Revised Codes, and the paper company furnished an indemnity bond which required the sheriff to retain possession. Later the property was sold to satisfy the judgment recovered against Lueien Wray and Higgins.
Pursuant to the provisions of section 5793, Revised Codes, plaintiff had theretofore filed with the county clerk an inventory of her separate personal property, including all of the property seized. Section 5794 declares: “The filing of the inventory in the clerk’s office is notice and prima facie evidence of the title of the wife.” The paper company, its attorney, and the officer were therefore chargeable with notice that the property about to 'be seized was prima facie the separate property of the wife and not subject to seizure for the debt of the husband due to the paper company (see. 5799), but notwithstanding they persisted, over the plaintiff’s objections and protests, seized the property, closed the restaurant, and destroyed a prosperous, going business.
In Jones v. Lamon, 92 Ga. 529, 18 S. E. 423, it appeared that a daughter of the defendant in the attachment proceeding was stopped on a public street and the horse and phaeton then in her possession were seized by a constable acting under a writ of attachment and by direction of the attorney for the plaintiff in the attachment case. In an action by the daughter for damages for the wrongful seizure of her property to satisfy her father’s debt, she was permitted to recover punitive damages. In disposing of the case the court said: “As the property in fact belonged, not to the defendant in attach ment, but to his daughter, if the attorney knew or had reasonable grounds for believing it did belong to her, he was chargeable with notice of the daughter’s title, and notice to him would be notice to his client. ' On this ground the client would be liable in an action by the daughter for the actual damages sustained by- her in consequence of the levy, and might in the discretion of the jury be subject also to exemplary or punitive damages, if either in the act or the intention the tort was attended with circumstances of aggravation. If the attorney was ignorant of the daughter’s title, and believed in good faith that the title was in the defendant in attachment, as his possession indicated, and if he caused the levy to be dismissed without any unreasonable delay upon being informed of her title, the client would be liable to the daughter for actual damages only.”
If the testimony of the plaintiff and her witnesses be accepted as true, the jury might fairly infer that the purpose of the defendant in having the property attached and the restaurant closed was to coerce the plaintiff to pay the debt of her husband, for which neither she nor her property was liable; and that the jury accepted the testimony as true is evidenced by the verdict.
2. It is contended that the complaint herein does not state a cause of action for conversion, and that, at most, it charges only a trespass. In the complaint plaintiff alleges that on the twenty-ninth day of June, 1923, she was the owner and entitled to the possession of the property in question, -particularly describing it and giving its value; that on that day the defendant wrongfully took and carried it away, refused to restore it after demand, and wrongfully deprived plaintiff of its possession and use, to her damage, etc. The allegations necessary to lay a foundation for the recovery of exemplary damages were made also. That this pleading contains all the essential allegations of a complaint in conversion is apparent. (26 R. C. L. 1129; 38 Cyc. 2065.) In the early case of Tuttle v. Hardenberg, 15 Mont. 219, 38 Pac. 1070, this court quoted approvingly from Cooley on Torts, 448, the following: “Any distinct act of dominion wrongfully exerted over one’s property in denial of his right, or inconsistent with it, is a conversion, ’ ’ and the text has been approved repeatedly since that time. (De Celles v. Casey, 48 Mont. 568, 139 Pac. 586; Ferrat v. Adamson, 53 Mont, 172, 163 Pac. 112; Interstate National Bank v. McCormick, 67 Mont. 80, 214 Pac. 955.)
It is true that plaintiff made the unnecessary, additional allegation that she was the owner and in possession of the property at the time she verified the complaint (Babcock v. Caldwell, 22 Mont. 460, 56 Pae. 1081); but this allegation does not destroy the cause of action already stated.
3. Upon the cross-examination of plaintiff, the defendant sought to show that Lucien Wray was insolvent, but upon objection the evidence was excluded, and counsel for defendant then made the following offer of proof: “Defendant offers to prove by the witness on the stand, Mrs. Wray, that the Exchange Furniture Company, a, copartnership of which L. Wray, the husband of plaintiff, was a member, was financially involved and insolvent, and that its liabilities exceeded its assets by approximately $4,000.”
In justification of the court’s ruling rejecting the offer, it is sufficient to say that it was not properly a part of the cross-examination and was not renewed when the evidence on behalf of the defendant was introduced. But aside from these considerations, the offer itself is so indefinite and uncertain that the court could not be put in error for rejecting it. It does not refer to any particular time, though it speaks in the past tense. The offer was made and defendant’s instructions 1 and 2 tendered upon the theory that there was involved a transfer of property from an insolvent husband to his wife, which was void as against the defendant under the provisions of section 8603, Revised Codes. We doubt whether the evidence affords any justification for the theory, but we are not called upon to determine the matter.
The trial court adopted the theory that the question involved was the right of an insolvent husband to prefer his wife over other creditors, and by instruction 8 advised the jury at length upon that subject. Instruction 8 was given without objection, and, whether technically correct or not, became the law of the case, acquiesced in by the defendant. By that instruction the jury was told that if Lucien Wray was actually indebted to his wife at the time he paid over to her the money he received from the sale of his interest in the Exchange Furniture Company, such preference was not void as to defendant even though the payment operated to hinder and delay it in the collection of its debt due from her husband. Either defendant’s offered instruction 1 or 2, if given, would have contradicted directly the statement contained in that instruction. By instruction 8 the actual existence of a bona fide indebtedness, and not the intention of the parties, was made the factor which determined the validity of the transaction between Lucien Wray and his wife; whereas, offered instructions 1 and 2 each made the intention of the parties the determining consideration. It has been decided so often that a trial court commits reversible error by giving conflicting instructions that a citation of some of the eases suffices to dispose of the contention that the court erred in refusing to give defendant’s offered instructions, 1 and 2. (Palmer v. McMaster, 10 Mont. 390, 25 Pac. 1056; Yoder v. Reynolds, 28 Mont. 183, 72 Pac. 417; Sullivan v. Metropolitan Life Ins. Co., 35 Mont. 1, 88 Pac. 401; Wells v. Waddell, 59 Mont. 436, 196 Pac. 1000.)
4. Finally, it is contended that the court erred in refusing to give defendant’s offered instruction No. 3, as follows: “The law presumes that things which a person possesses are owned by him. If, therefore, you find from the evidence that the plaintiff’s husband, Lucien Wray, was in possession of the Pup Café prior to the levy of attachment thereon, then the law presumes that he, and not the plaintiff, was the owner of the property.”
In tbe opening sentence this instruction states the presumption declared by subdivision 11, section 10606, Revised Codes, but in the attempt to apply the presumption, the instruction is erroneous. It refers to the possession of Lucien Wray at some timé in the past — some indefinite time ¡prior to the seizure — whereas, the statute speaks in the present tense.
The judgment is affirmed.
Affirmed.
Mk. 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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] |
ME. JUSTICE STAEK
delivered the opinion of the court.
The complaint in this action alleges that the plaintiffs are duly licensed attorneys of this state practicing their profession at Butte, and that the defendant Northern Pacific Eailway Company is a corporation; that on the thirteenth day of December, 1922, acting as attorneys for the plaintiff therein they commenced an action in the district court of Silver Bow county entitled Leslie L. Yaterlaus, Plaintiff, v. Northern Pacific Eailway Company and Sam McAlpin, Defendants, which action was numbered 26731 in the files and records of said court; that thereafter the defendants therein filed a joint answer; that while said action was pending, and before a trial thereof had been had upon the merits, it was dismissed by the clerk of the court upon receipt of a praecipe for its dismissal signed by the plaintiff therein; that said praecipe was signed and filed and said case dismissed without the knowledge or consent of the plaintiffs. It is then alleged that the defendants “fraudulently, eollusively and maliciously connived with and induced the said plaintiff Yaterlaus to dismiss said action No. 26731, without and against the consent of and without the knowledge” of the plaintiffs; that these plaintiffs were the only attorneys of record of the plaintiff in said cause No. 26731; that they had a lien upon the plaintiff’s cause of action for the amount of their attorney’s fees therein, and that the services which they performed in that connection were of the reasonable value of $1,500, no part of which had been paid, and they ask for judgment against the defendants in this action for the sum of $1,500 actual damages, and $1,000 exemplary damages.
Service of summons in this action was not made upon the defendants McAlpin and Leslie L. Yaterlaus, and they did not appear. The defendant Northern Pacific Eailway Company filed an answer in which the commencement and dismissal of said cause No. 26731 are admitted as alleged in the complaint, except that it is denied that the dismissal was procured by fraud or collusion. For a separate defense the answer alleges that when said cause No. 26731 was commenced by the plaintiffs, the said Leslie L. Yaterlaus was a minor under the age of twenty-one years; that at said time no general guardian or guardian ad litem had been appointed to act for or on his behalf; that he was without capacity to enter into a legal contract with the plaintiffs, and that he thereafter disaffirmed and repudiated the pretended contract with plaintiffs for the commencement of said action on his behalf.
To this answer the plaintiffs filed a reply in which it was denied that when said Leslie L. Vaterlaus entered into the contract with the plaintiffs for the commencement of case No. 26731 he was a minor under the age of twenty-one years, but alleged that he was an adult over the age of twenty-one years and legally competent to enter into such contract. The case was tried before a jury on February 11, 1924, and resulted in a verdict and judgment in favor of the plaintiffs for the sum of $1,000. At the close of all the testimony the defendant had made a motion for a directed verdict upon grounds which will be hereafter noted. Defendant made a motion for a new trial, which was denied, and this appeal is from the judgment.
The testimony introduced at the trial showed that Leslie L. Vaterlaus had or claimed to have a cause of action against the Northern Pacific Railway Company and one Sam McAlpin, its special agent, for an alleged false imprisonment, and that he arranged with the plaintiffs to act as his attorneys in the commencement and prosecution of a suit to recover damages therefor under a contingent fee contract by which they were to receive as their compensation one-half of the amount realized, which contract further provided that neither party should be permitted to settle the ease without the consent of the other. Vaterlaus advanced the necessary funds to cover the fees for filing the complaint and making service of process upon the defendants, and thereafter, on December 13, 1922, plaintiffs commenced the action, as agreed, in the district court of Silver Bow county, the same being No. 26731 on the records of said court. In due course the defendants filed an answer in said case. While the action was pending, and before the trial thereof, one M. W. Simmonds, district claim agent of the defendant Northern Pacific Railway Company, having learned that the plaintiff Vaterlans had gone to his father’s home in Cowley, Wyoming, went to that place for the purpose of interviewing him. While there, in the course of a conversation with Vaterlaus and his father, Simmonds was advised that Vaterlaus was a minor of the age of twenty years, and thereupon,.. representing his employer, the Northern Pacific Railway Company, agreed with Vaterlaus and his father upon a basis of settlement for the damages claimed by Vaterlaus in said action No. 26731. To consummate the settlement, Vaterlaus, his father, and Simmonds went to Billings where Vaterlaus and his father employed counsel, had the elder Vaterlaus appointed guardian ad litem of his son Leslie L. Vaterlaus, and commenced a suit in the district court of Yellowstone county against the Northern Pacific Railway Company upon the same cause of action set out in the complaint in cause No. 26731. Immediately following the commencement of this suit, and on the same day, an order of the district court of Yellowstone county was obtained, authorizing its compromise and settlement for the sum of $275. Thereupon the defendant paid to Vaterlaus and his father the sum of $275, and said action was dismissed as fully settled upon the merits. In connection with this settlement, and as part thereof, the defendant also obtained an order from Leslie L. Vaterlaus, directed to the clerk of the district court of Silver Bow county, instructing him to dismiss said action No. 26731, which order was subsequently filed in that court, and the clerk thereof made an order of dismissal of said action on March 23, 1923. The above-mentioned settlement, as well as the dismissal of said action No. 26731, was without the knowledge or consent of the plaintiffs, and they were never paid anything for . their services in connection therewith. Other matters developed in the testimony will be referred to at appropriate places in later portions of this opinion.
1. Under the issues as framed by the pleadings in this case, it is apparent that one of the vital questions was the age of Leslie L. Vaterlaus. If the plaintiffs had no legal contract upon which they could assert a valid claim against him for the services which they rendered in case No. 26731, they cannot maintain this suit, since the right to recover against the defendant herein depends solely upon their right to recover from him.
The elder Vaterlaus, father of Leslie L., appearing as a wit ness for defendant, testified that Leslie L. was born on September 25, 1902, at Montpelier, Bear Lake county, Idaho. The testimony showed that the agreement alleged to have been entered into between the plaintiffs and Leslie L. was dated about the --- day of September 1922, so that if the statement of the elder Vaterlaus was true, Leslie L. was at that time just about twenty years of age.
While the plaintiff Freebourn was being examined as a witness in plaintiffs’ behalf, the following transpired:
“Q. Did he [referring to Leslie L. Vaterlaus] ever state to you what his age was ?
“Mr. Walker: Objected to as calling for the conclusion of the witness, and hearsay.
“Mr. Hall: And on the further ground that it is immaterial under the issue as formed in this case.
“The Court: In the reply, the plaintiffs allege that Vaterlaus was not a minor?
“Mr. Hall: Yes.
“The Court: I will overrule your objection.
“Mr. Hall: N'ote our exception. (No answer.)
“Q. What age did he state he was? A. He said he was twenty-three years of age.”
Later on, the plaintiff Downey, testifying as a witness for the plaintiffs, was interrogated as follows in reference to a conversation with Leslie L. Vaterlaus:
“Q. And at that time, did you have any conversation with him respecting his age?
“Mr. Hall: We object to this, as immaterial under the issues; not binding on the defendant.
“The Court: Overruled.
“A. Yes, sir.
‘ ‘ Q. What was that conversation ¶ A. Why, he said * * * that he was twenty-three.”
Aside from the statements attributed to Leslie L. Vaterlaus by these witnesses, there is no refutation in the record of the direct testimony of the elder Vaterlaus as to the age of Leslie L., hence their importance.
Defendant’s first specification of error is predicated upon the ruling of the court in admitting these statements. The plaintiffs, however, say that the defendant is precluded from urging this point because the record in each instance shows that no objection was made to the final question in response to which the objectionable statements were made, and, in support of this contention, invoke the rule, frequently announced by this court, to the effect that error may not be predicated upon the admission of testimony when it was received without objection. The rule invoked is not applicable here. In each of the instances the first question asked, to which proper objection was made, by necessary reference, related to the facts sought to be elicited from the witness in reply to the last question. The last questions developed naturally from, and were in effect but continuations of, the questions objected to. Under such conditions it was not necessary for counsel to repeat their objections to each of the series of questions. (Thomas v. Carey, 26 Colo. 485, 58 Pac. 1093; Cooper v. Bower, 78 Kan. 156, 96 Pac. 59; Diamond Coal Co. v. Cook, 6 Cal. Unrep. 446, 61 Pac. 578.)
The information elicited from the witness Freebourn was hearsay, and not within any exception to the rule permitting its use. The objection to it should have been sustained on that ground. While Leslie L. Vaterlaus was named as a party defendant in this suit, he was not served with process and did not appear. Any statements made by him were not binding upon the defendant Northern Pacific Bailway Company.
This testimony, as well as the similar testimony of the witness Downey above quoted, should have been excluded upon the second ground of the objection, namely, that it was inadmissible under the issues in the case.
The doctrine is quite generally accepted that estoppel in pais has no application to a minor. (Weiland v. Kobick, 110 Ill. 16, 51 Am. Rep. 676; Schnell v. City of Chicago, 68 Ill. 383, 87 Am. Dec. 304; Sims v. Everhardt, 102 U. S. 300, 26 L. Ed. 87.) There is, however, a line of cases which holds that a minor may be estopped from asserting the. defense of infancy when he has procured some advantage, property or benefit by fraudulently representing himself to be of age, and where the other party has believed in, relied and acted upon such false representations (Hayes v. Parker, 41 N. J. Eq. 630, 7 Atl. 511; Schmidtheimer v. Eiseman, 7 Bush (Ky.), 298), but to make such an estoppel available it must be specially pleaded (Cobbey v. Buchanan, 48 Neb. 391, 67 N. W. 176), and unless properly pleaded, evidence of facts constituting estoppel are not admissible (City of Butte v. Mikosowitz, 39 Mont. 350, 102 Pac. 593). In the instant case no estoppel is pleaded by plaintiffs, and it follows that the objection to the above-quoted testimony of both Freebourn and Downey should have been sustained for that reason.
The admission of this testimony was clearly prejudicial to the rights of the defendant, for without it there would have been no evidence to go to the jury upon the question of the infancy of Leslie L. Vaterlaus; For this error of the court, the judgment must be reversed and the cause remanded for a new trial. Under these circumstances, it becomes necessary to examine and pass upon-the other alleged errors pointed out in appellant’s brief.
2. Over objection of the defendant that the same was immaterial to any issue in the case, plaintiffs were permitted to introduce in evidence a letter addressed to them by Leslie L. Vaterlaus, dated December .6, 1922, inclosing a money order for $10 (to cover court fees in case No. 26731), and making in quiry as to whether they “still feel like pushing the case in court for me or whether you have gotten cold feet,” mentioning the fact that up to the time of his enforced stay in jail he had borne a spotless reputation, and stating 'the effect which this incarceration had upon him, and over a like objection were also permitted to introduce in evidence a letter from Emil Vaterlaus, father of Leslie L., dated October 2, 1922, in which he detailed the effect of his son’s incarceration upon himself and the boy’s mother.
The objection to each of these letters should have been sustained by the court. They were wholly immaterial to any issues in the case, and the statements which they contained were mere hearsay so far as the defendant was concerned.
3. Over appropriate objections of the defendant, the witness Freebourn was permitted to testify that he did not consider the $275 which Yaterlaus received in settlement of his case a fair consideration therefor, and that he would consider $2,500 a fair and reasonable consideration for its settlement.
The “fair and reasonable consideration” for settlement of the ease referred to was an estimate by the witness of the money value of the damages which Leslie L. Yaterlaus sustained by reason of his alleged false imprisonment at the instigation of the defendant. In principle there is no distinction between permitting the witness in this case to give his estimate of the amount of money which would have compensated Vaterlaus for his alleged damages, and permitting him to express the same opinion upon the trial of the ease, if it had not been settled.
The general rule is that it is not within the province of a witness to testify as to the value of damages sustained in such a case, but that he should testify only to facts from which the jury will be able to determine the amount of the damages. (DeWald v. Ingle, 31 Wash. 616, 96 Am. St. Rep. 927, 72 Pac. 469; Anderson v. Ogden Union Ry., 8 Utah, 128, 30 Pac. 305; Ohio etc. Ry. Co. v. Nickless, 71 Ind. 271; Atchison etc. Ry. Co. v. Snedeger, 5 Kan. App. 700, 49 Pac. 103; Tenny v. Rapid City, 17 S. D. 283, 96 N. W. 96.)
'The objection, to this testimony should have been sustained, and it was error to permit it to be given.
4. Specification of error No. 6 is: “The court erred in permitting plaintiffs, over objection of defendant, to cross-examine defendant’s witness, Emil Vaterlaus, at length on matters or facts not stated in his direct examination, or connected therewith.”
Section 10665, Revised Codes of 1921, permits a wide range for cross-examination, and the court should be inclined to extend rather than to restrict the right, and to permit a witness to be interrogated not only as to the facts stated by him in his direct examination but all other facts connected with them, either directly or indirectly, which tend to enlighten the jury upon the question in controversy.
Reading the entire testimony of this witness, both direct and cross, leads us to the conclusion that his cross-examination was unduly extended. He was interrogated at length upon matters which did not have even a remote connection with anything stated by him on his direct examination. While we would not be inclined to hold that the error of the court in this respect was sufficiently prejudicial to warrant a reversal of the judgment, it is suggested that if this witness appears upon a retrial of this action, his cross-examination should be limited so as to come within the spirit of the rule laid down in section 10665.
5. Specifications of error 7 and 8 are predicated upon the action of the court in refusing to grant defendant’s motion for a directed verdict upon the first and third grounds thereof a,nd in giving instruction No. 2.
The grounds of defendant’s motion for a directed verdict above referred to were that the evidence in the case conclusively shows that, at the time Leslie L. Vaterlaus employed plaintiffs to commence the action numbered 26731, he was under the age of twenty-one, and did not have the legal capacity to enter into a binding contract; that he thereafter repudiated the contract, and that, being a minor, he did not have the legal capacity to file a suit in his own name.
Instruction No. 2 above referred to is a copy of section 8993, Revised Codes of 1921, relative to the compensation of attorneys, which provides that an attorney has a lien upon his client’s cause of action which cannot he vacated by any settlement between the parties before or after judgment. The objection made to this instruction was that it was not applicable to the facts in the case because the evidence showed that Leslie L. Vaterlaus was a minor and had disaffirmed the contract of employment entered into with the plaintiffs as his attorneys and so had a right to make settlement after disaffirmance, and that no lien for attorneys’ fees would attach to the proceeds received in such settlement.
The court did not err in either refusing to grant defendant’s motion for a directed verdict upon the grounds mentioned or in giving instruction No. 2 over the objection made. Both the grounds of the motion and the objection to the instruction assumed that there was no dispute in the evidence as to the minority of Leslie L. Vaterlaus; whereas there was some testimony in the case (although improperly admitted, as heretofore pointed out) tending to show that he was twenty-three years of age when he employed the plaintiffs to act as attorneys, and therefore competent to contract.
6. Instruction No. 7, given by the court, in effect advised the jury that even though they believed from the evidence that Leslie L. Vaterlaus was a minor at the time of the commencement of suit No. 26731, and was without capacity to enter into a legal contract with plaintiffs, and that he thereafter disaffirmed his pretended contract with them for the commencement of said suit, still, if they believed “from a preponderance of the evidence that plaintiffs have proved the allegations of their complaint,” they should return a verdict in favor of plaintiffs for the reasonable value of the services performed by them in connection with said action.
To the giving of this instruction the defendant objected for the reasons, amongst others, that it was confusing and misleading, and in effect advised the jury that they must find a verdict in favor of plaintiffs notwithstanding the defense of the minority of Leslie L. Vaterlaus set up in the answer. These objections were well grounded. Under this instruction the jury was in effect expressly commanded to disregard the entire defense interposed in the action, and to direct their attention solely to a consideration of whether the plaintiffs had established the facts alleged in their complaint; and if they determined that such facts had been proven, to return a verdict in their favor. The theory upon which this instruction was given is not apparent to us, and we are not aided by plaintiffs’ brief, as it is not given even a passing mention. The instruction is clearly erroneous, and since it peremptorily deprived the defendant of the benefit of its entire affirmative defense, was highly prejudicial.’
7. The remaining specifications of error can all be properly treated together, since collectively they involve a consideration of the following questions: (a) Was the contract between the plaintiffs and Leslie L. Vaterlaus one which the latter could disaffirm if he was a minor; (b) assuming that Leslie L. Vaterlaus was a minor, under the age of twenty-one years when he entered into the contract with the plaintiffs to institute the action numbered 26731, was he required as a condition precedent to its disaffirmance, to pay plaintiffs for the services which they had rendered prior to the disaffirmance; (c) if Vaterlaus was not a minor, was his contract with plaintiffs void as against public policy because of the provision therein that neither party should be permitted to settle the case without the consent of the other; and (d) if this contract was void as against public policy, were the plaintiffs entitled to recover any compensation for the service rendered as a result of this contract, and, if so, how much?
(a) Section 5680, Eevised Codes of 1921, provides: “In all cases other than those specified by sections 5681 and 5682 of this Code, the contract of a minor may, upon restoring the consideration to the party from whom it was received, be disaffirmed by the minor himself, either before his majority or within a reasonable time afterwards. * s * ”
There is some argument made that the contract in question falls within the exception mentioned in section 5681, referred to in the above-quoted section, which exception is to the effect that a minor cannot disaffirm a contract, otherwise valid, to pay the reasonable value of things necessary for his support.
Claiming that there is an analogy between cases which have held that a minor is liable as for necessaries for the reasonable fees of counsel for defending him in a criminal action (Askey v. Williams, 74 Tex. 294, 5 L. R. A. 176, 11 S. W. 1101), for defending him in a bastardy proceeding which affects his liberty and good name (Barker v. Hibbard, 54 N. H. 539, 20 Am. Rep. 160), the prosecution of an action by an infant for seduction (Hickman v. McDonald, 164 Iowa, 50, 145 N. W. 322), and other cases of lihe character, it is argued that the prosecution of an action for a false imprisonment was essential to the protection of the good name and fame of Leslie L. Vaterlaus, and that counsel fees incurred in that connection should be classed as necessaries.
While we are not impressed with the argument that the compensation for services rendered by the plaintiffs in action No. 26731 falls within the exception mentioned in section 5681, we are relieved of the necessity of determining the matter in this case, for the reason that it is not properly presented in the pleadings. The rule in such cases is stated in Maxwell on Pleading, 448, as follows: “If the consideration for the contract or promise was necessaries or the defendant had ratified the contract by a new promise after he became of age, these facts may be stated in the reply. In those states where no reply is required the necessary facts such as ratification, necessaries, etc., must be stated in the petition.” The rule above stated, that matters of avoidance of a plea of infancy must be pleaded in the replication in an action at law, seems to be well established. (American Freehold L. M. Co. v. Dykes, 111 Ala. 178, 59 Am. St. Rep. 38, 18 South. 292; Medders v. Baxley Banking Co., 17 Ga. App. 703, 88 S. E. 407; Gibbs v. Poplar Bluff L. Co., 142 Mo. App. 19, 125 S. W. 840; Goodman v. Alexander, 165 N. Y. 289, 55 L. R. A. 781, 59 N. E. 145. See, also, 31 C. J. 1161, sec. 339½, 12 Standard Ency. Proc. 759.) Since there are no allegations in either the complaint or reply bringing the contract under consideration within the provisions of section 5681, supra, plaintiffs cannot now assert that they are within the exception mentioned in that section.
(b) Section 5680, supra, gives to a minor the right to dis- affirm his contract within the time mentioned “upon restoring the consideration to the party from whom it was received. ’ ’
Plaintiffs take the position that Leslie L. Vaterlaus did not have a right to' disaffirm his contract with them without paying or offering to pay them the value of the services which they had performed in case No. 26731. In support of this contention they call attention to the case of Spencer v. Collins, 156 Cal. 298, 20 Ann. Cas. 49, 104 Pac. 320, in which it is held under the California statute that a minor over the age of eighteen years could only repudiate a p'artly executed contract .for services of an attorney, by paying the reasonable value of the services he had performed thereunder. The California statute (Civ. Code, see. 35) differs materially from ours. It provides: “ * * * And if the contract be made by the minor whilst he is over the age of eighteen, it may be disaffirmed in like manner upon restoring the consideration to the party from whom it was received, or paying its equivalent.” In the case cited it was said: “All the minor is obliged to restore is what he received from the other side. That, in this case, consisted of services. The services themselves not being capable of restoration, the minor was required to return their equivalent, which consisted of the reasonable value of such services.”
Since our statute does not contain the final clause “or paying its equivalent,” which is found in the California Act, it would seem that the above quotation disposes of this argument of plaintiffs, for that case expressly holds that the services themselves are not capable of restoration. Manifestly, it was impossible for Leslie L. Vaterlaus to restore to the plaintiffs the time and effort expended or the skill exercised by them in preparation of the various proceedings in case No. 26731. “The law never requires impossibilities.” (Sec. 8760, Bev. Codes 1921.) And where, by the very nature or character of the consideration received by a minor, it cannot be returned by him, his right to disaffirm a contract will not be defeated by his inability to return it.
(e) The provision of the contract in question to the effect • that neither party could settle the contemplated suit without the consent of the other is void as against public policy. In Ford v. Gregson, 7 Mont. 89, 14 Pac. 659, this court said: “The law is a peacemaker, and will not recognize any contract which will not leave any litigant free to compromise and settle his suit if he chooses so to do. ’ ’ Many cases holding that such a stipulation is void, as against public policy, will be found cited in the following paragraphs of this opinion.
(d) The provision with reference to settlement referred to in the preceding paragraph being void as against public policy, it becomes necessary to examine into its effect upon the remaining portions of the contract.
There is much diversity of judicial opinion upon this subject, but the cases seem to fall into three classes: First: Those which hold that the contract is void; that the illegality extends to all its provisions; and no recovery can be had upon the quantum meruit for services rendered thereunder. (Kansas City Elev. R. Co. v. Service, 77 Kan. 316, 14 L. R. A. (n. s.) 1105, 94 Pac. 262; Davis v. Chase, 159 Ind. 242, 95 Am. St. Rep. 294, 64 N. E. 88; Burho v. Carmichiel, 117 Minn. 211, Ann. Cas. 1913D, 305, 135 N. W. 386; Davy v. Fidelity Insurance Co., 78 Ohio St. 256, 125 Am. St. Rep. 694, 17 L. R. A. (n. s.) 443, 85 N. E. 504.) Second: Those which hold that although the contract is void as against public policy, the attorneys may nevertheless recover upon the quantum meruit, for services actually rendered thereunder. (Snyder v. Foster, 190 N. Y. 66, 123 Am. St. Rep. 533, 13 Ann. Cas. 441, 14 L. R. A. (n. s.) 1101, 82 N. E. 742; Davis v. Webber, 66 Ark. 190, 74 Am. St. Rep. 81, 45 L. R. A. 196, 49 S. W. 822; 5 Am. & Eng. Ency. of Law, 2d ed., p. 828.) Third: Those which hold that the provision is void, but if the contract is otherwise valid, the invalid -clause may be stricken from the contract and the balance upheld. (Greenleaf v. Minneapolis R. Co., 30 N. D. 112, Ann. Cas. 1917D, 909, 151 N. W. 879; Howard v. Ward, 31 S. D. 114, 139 N. W. 771; Porter v. Ajax Min. Co., 22 Utah, 273, 61 Pac. 999; Newport Rolling Mill Co. v. Hall, 147 Ky. 598, 144 S. W. 760.)
In the last-cited case the contract under consideration was not unlike the one before us, and the court, after having determined that the provision limiting the right of settlement was void as against public policy, said: “We are disposed to the view that this contract may be treated as a severable one, and that the objectionable clause may be stricken from it without affecting the validity of the remainder of the contract. The clause in question does not particularly concern the consideration specified in the contract, and it is generally in reference to contracts in which a part of the consideration is illegal that the courts have ruled that the entire contract was tainted.” The rule adopted in this last group of authorities is most appealing to us.
In the contract between plaintiffs, and Leslie L. Yaterlaus the substantial considerations were that plaintiffs should give their services in the commencement and prosecution of ease No. 26731, and that as their compensation Yaterlaus should pay them therefor one-half of the amount realized in the litigation. These agreements were mutual and dependent one upon the other. The further stipulation with reference to the settlement did not enter into or constitute a part of the considerations and had no material bearing upon them.
In framing their complaint, plaintiffs proceeded upon the theory that the stipulation relative to settlement rendered the entire contract invalid, and that they were entitled to recover the reasonable value of the services rendered 'by them in case No. 26731. When the defendant settled with Vaterlaus for the cause of action mentioned in ease No. 26731, the settlement had the effect of a judgment for all purposes of the plaintiff’s lien (Walsh v. Hoskins, 53 Mont. 198, 162 Pac. 960), and thereby the contract became fully performed on their part.
Under the foregoing construction of the contract the suit may still proceed upon the plaintiffs’ complaint, under the doctrine announced by this court in Blankenship v. Decker, 34 Mont. 298, 85 Pac. 1035, in which it was held: “Upon a complete performance of an express contract for services at a stipulated compensation, there seems to be no sound reason why a recovery may not be had upon the quantum meruit. (Burgess v. Helm, 24 Nev. 242, 51 Pac. 1025; Shepard v. Mills, 173 Ill. 223, 50 N. E. 709; Fells v. Vestvali, 2 Keyes (N. Y.), 152.) In such case the effect of proof of the express contract is to make the stipulated compensation the quantum meruit in the case.” (See, also, Foley v. Kleinschmidt, 28 Mont. 200, 72 Pac. 432.)
It still remains to determine what, under the circumstances detailed, is the proper basis upon which , t° compute the amount of plaintiffs’ recovery, if they are entitled to recover at all.
Attention is here directed to the fact that there is no allegation in the complaint to the effect that the sum of $275 paid in settlement of the Vaterlaus claim, was an inadequate consideration therefor. In the absence of appropriate pleading and proof to the contrary, it must be presumed that the amount paid was adequate. When an adequate consideration is paid in settlement of an action in which the attorneys have a contract for a portion of tbe amount realized as their compensation, even though the settlement is made without their knowledge or consent, the amount paid in settlement must be taken as the basis from which to compute the amount of the attorneys’ lien. (Davis & Michel v. Great Northern Ry. Co., 128 Minn. 354, 151 N. W. 128; 6 C. J. 790; Greenleaf v. Minneapolis etc. R. Co., supra; Nichols v. Orr, 63 Colo. 333, 2 A. L. R. 449, 166 Pac. 561; Whitecotton v. St. Louis & H. Ry. Co., 2501 Mo. 624, 157 S. W. 776; McCormack v. Louisville & N. R. Co., 156 Ky. 465, 3 A. L. R. 461, 161 S. W. 518; Gooding v. Lyon, 63 Colo. 328, 166 Pac. 564; Johnson v. Missouri Pac. R. Co., 139 Ark. 507, 214 S. W. 17; In re Reisfield, 187 App. Div. 223, 175 N. Y. Supp. 365; Leary v. Sanzone (Sup.), 180 N. Y. Supp. 149; Cawley v. Burke, 43 R. I. 188, 110 Atl. 609.)
Under their contract and the pleadings in the ease the plaintiffs are entitled to recover only one-half of the amount realized; that is, one-half of the sum for which the ease was settled.
For the reasons above indicated, the judgment is reversed and the cause remanded, with directions to grant the defendant a new trial.
Beversed and remanded.
Mr. Chief Justice Callaway, Associate Justices Rankin and Holloway, and Honorable Frank P. Leiper, District Judge, sitting in place of Mr. Justice Galen, absent on account of illness, concur.
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] |
PER CURIAM.-
Relator Js application for writ of certiorari is, after due consideration by the court, denied.
|
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
L. B. Lockhart, having been convicted of the crime of making a false report to the state superintendent of banks, applied to this court for his release on habeas corpus. The sheriff of Cascade county, to whom the writ was directed, made return that he holds the prisoner in his custody by virtue of a judgment of the district court sentencing him to a term of imprisonment, and a commitment from the court directing the delivery of the prisoner to the warden of the penitentiary. A copy of the indictment upon which the trial was had, a copy of the judgment, and a copy of the commitment are attached to and made a part of the return.
The writ of habeas corpus is not supervisory in character, nor may it be made to perform the function of an appeal (In re Jones, 46 Mont. 122, 126 Pac. 929); its only office here is to present the inquiry whether .the court a quo had jurisdiction (In re Gomez, 52 Mont. 189, 156 Pac. 1078), for if jurisdiction were wanting, the judgment is void (In re Schaffer, 70 Mont. 609, 227 Pac. 37). The preponderant authority now sanctions the rule that in order for a judgment to be proof against an attack by habeas corpus, the court which rendered it must have had jurisdiction of the person and of the subject matter, and, in addition thereto, must have had authority to render the particular- judgment which it did pronounce. The absence of any one of these factors renders the judgment open to collateral attack (In re Mettler, 50 Mont. 299, 146 Pac. 747).
It cannot be questioned here, that the court below had jurisdiction of the person of Lockhart (Haupt v. Simington, 27 Mont. 480, 94 Am. St. Rep. 839, 71 Pac. 672) and jurisdiction to try Mm for the particular offense (sec. 11, Art. VIII, Constitution of Montana) if he.were before the court charged with that offense.
"While there is some diversity of opinion upon the question whether the sufficiency of the indictment or information may be questioned on habeas corpus after conviction to impeach the judgment, we are of the opinion that it may be done; for the jurisdiction of the district court in criminal matters extends only to acts which the law declares to be criminal, and if in this instance, the prisoner is restrained of his liberty for the commission of an act or acts -to which the law does not attach criminality, the court acted beyond its jurisdiction in passing judgment upon him and he is entitled to Ms release. But where the indictment or information is attacked for the first time after judgment, every intendment will be resolved-in favor of its sufficiency, or, in other words, this court on habeas corpus will not go further than to inquire whether, upon any admissible theory, the indictment or information states a public offense, however, informal the charge may be.
In the indictment before us the state charges that during May, June and July, 1921, the Miners’ State Bank of Sand Coulee was a domestic corporation engaged in banking business in Cascade county, and that at all such times Lock-hart was a director of that bank; that in July, 1921, the state superintendent of banks called upon the Miners’ State Bank of Sand Coulee to report fully its condition at the close of business on June 30, 1921; that, in response thereto, Lockhart and Sprengeler, the cashier, on July 14, 1921, made a report to the superintendent, which report was verified by Sprengeler and attested by Lockhart, and forwarded to the superintendent and by him received some time during the month of July, 1921. It is charged further that the report contained a material statement which, was false and known to be false by Lockhart and Sprengeler.
1. It will be observed that it is charged that, in making the report, Lockhart acted in his capacity as a director of . the bank, and it is urged, first, that he could not be “guilty of the offense charged in the indictment because a director, as such, has no right or authority to make any report to the state superintendent of banks. ’ ’ While it is true that the affairs of a bank are managed by a board of directors (see. 6025, Rev. Codes), and that this contemplates concerted action as distinguished from the action of the individuals constituting the board, nevertheless, if the legislature has seen fit to impose special duties upon the individual director, he cannot escape responsibility therefor merely 'because the board, as an entity, has the general management of the affairs of the bank. The question arises, then: Has the legislature imposed any duty upon the individual director with respect to the reports which his bank is or may be required to make to the superintendent-of banks?
So far as this alleged offense is concerned, the governing statutes are found in sections 6014-6109, Revised Codes of 1921; the amendments made in 1923 are disregarded. So much of section 6071 as is material to this inquiry, reads as follows: “Every bank shall make to the superintendent of banks not less than five reports during each year, according to the form which may be prescribed by him, verified by the oath or affirmation of the president, vicé president, or cashier of such bank, and attested by the signatures of at least two of the directors.” These may be designated the regular reports.
Section 6073 provides that the superintendent may also require from a bank a special report, verified as required by section 6071, “whenever in his judgment such special report is necessary to inform him fully of the actual financial condition and affairs of such bank.”
It does not appear directly whether the report upon which this indictment is laid was a general or a special report. From the fact that it was attested by only one director (Lockhart) counsel for the prisoner concludes that it must have been a special report; but the conclusion is hardly justified, since section 6073 does not, in terms at least, require a special report to be attested at all. Upon this hearing, and in the absence of any showing to the contrary, we will assume that in attesting the report the director did just what he urns required to do, and the fact that another director did not join in the attestation does not affect the situation at all. (State v. Struble, 19 S. D. 646, 104 N. W. 465; Cochran v. United States, 157 U. S. 286, 39 L. Ed. 704, 15 Sup. Ct. Rep. 628 [see, also, Rose’s U. S. Notes].)
The immediate question, then, is: Does section 6071 impose upon a director the duty of making these regular reports? It goes without saying that when the statute requires the bank to make the report it contemplates that it shall act through its duly constituted representatives, since a corporation cannot act otherwise. The report must be verified by the president, vice-president or cashier, and attested by the signatures of at least two directors. It is the making of the false report which is condemned by the law, and it is for that act that the penalty is prescribed by section 6077. That section reads: “Every person authorized by the provisions of this Act to make statements or reports, who willfully and knowingly subscribes or makes any false statement or report, shall be deemed guilty of a felony,” etc. The word “make” has many significations, among others, “to produce; to execute with the requisite formalities; to put forth, give out, deliver; to inform, apprise.” (Century and Webster’s Internat. Dictionaries.) The particular meaning to be imputed to it in any given instance must be determined from the context and the general purpose of the provision in which it is found.
Section 6071 requires that every bank “shall make to the superintendent of banks not less than five reports during each year,” and section 6073 declares that the purpose of the reports is “to inform him fully of the actual financial condition and affairs of such bank.” In view of these statutory declarations it becomes apparent at once that to make such report does not comprehend merely the manual labor of writing it or affixing the required signatures to it, or making the verification or attestation, but does comprehend any and all of these acts and any other acts necessary to effectuate the purpose, including the transmission of the document. (State v. Cassill, 70 Mont. 433, 227 Pac. 49; State v. Cutts, 24 Idaho, 329, 133 Pac. 115; State v. O’Neil, 24 Idaho, 582, 135 Pac. 60.) The statute makes no distinction, therefore it must be assumed that the legislature deemed the attestation by the director just as essential to the completion of the report as the signature or verification of the president, vice-president or cashier, as the case may be.
Counsel for the prisoner, however, insists that by his attestation the director does not vouch for the truth of the report, but only bears witness that the officer who signs and verifies it is such officer, and, in support of this contention, urges that a director is not in a position to know, and is not presumed to know, the details of the bank’s business.
Section 6025, Revised Codes, provides that “every director shall take and subscribe an oath that he will diligently and honestly perform his duty in such office.” Substantially the same oath is required of a director of a national bank (sec. 5147, D. S. Rev. Stats. [Comp. Stats., sec. 9685]), and, in speaking of the actual duties which that oath imposes, as distinguished from the somewhat fanciful notion of those duties sometimes entertained, it has been well said: “The idea which seems to prevail in some quarters, that a director is chosen because he is a man of good standing and character, and on that account will give reputation to the bank, and that his only office is to delegate to some other person the management of its affairs, and rest on that until his suspicion is aroused, which generally does not happen until the mischief is done, cannot be accepted as sound. It is sometimes suggested, in effect, that, if larger responsibilities are devolved upon directors, few men would be willing to risk their character and means by taking such an office; but Congress had some substantial purpose when, in addition to the provisions for executive officers, it further provided for a board of directors to manage the bank and administer its affairs. The stockholders might elect a cashier and a president as well. The banks themselves are prone to state and hold out to the public who compose their board of directors. The idea is not to be tolerated that they serve as merely gilded ornaments of the institution, to enhance its attractiveness, or that their reputations should be used as a lure to customers. "What the public suppose, and have the right to suppose, is that those men have been selected by reason of their high character for* integrity, their sound judgment, and their capacity for conducting the affairs of the bank safely and securely. The public act on this presumption, and trust their property with the bank in the confidence that the directors will discharge a substantial duty. How long would any national bank have the confidence of depositors or other creditors if it were.given out that these directors whose names so often stand at the head of its business cards and advertisements, and who are always used as makeweights in its solicitations for business, would only select a cashier, and surrender the management to Mm? It is safe to say such an institution would be shunned and could not endure. It is inconsistent with the purpose and policy of the Banking Act that its vital interests should be committed to one man, without oversight and control.” (Gibbons v. Anderson (C. C.), 80 Fed. 345.)
In Martin v. Webb, 110 U. S. 7, 28 L. Ed. 49, 3 Sup. Ct. Rep. 428 [see, also, Rose’s U. S. Notes], it is said: “Directors cannot, in justice to those who deal with the bank, shut their eyes to what is going on around them. It is their duty to use ordinary diligence in ascertaining the condition of its business, and to exercise reasonable control and supervision of its officers. They have something more to do than, from time to time, to elect the officers of the bank, and to make declarations of dividends.”
Our statute does not purport to set a premium on stupidity. If a director may shield himself behind the plea that he is negligently ignorant of the business of his bank, then the grosser his ignorance, the greater his security from liability. This is not the theory upon which the law proceeds. His attestation is necessary to complete a report, and “attest” means “to bear witness to; to certify; to affirm to be true or genuine.” (Webster’s Intemat. Dictionary.) In defining “attest” Black’s Law Dictionary says: “It is also the technical word by which in the practice in many of the states -a certifying ^officer gives assurance of the genuineness and correctness of a copy.”
It is our opinion that in requiring a director to attest a report, the law contemplates that he shall use reasonable diligence to know whether the report is true or false, and it cannot be gainsaid that the means of information are open to him. (Harkness v. Guthrie, 27 Utah, 248, 107 Am. St. Rep. 664, 1 Ann. Cas. 129, 75 Pac. 624; affirmed, 199 U. S. 148, 4 Ann. Cas. 433, 50 L. Ed. 130, 26 Sup. Ct. Rep. 4 [see, also, Rose’s U. S. Notes]; Tuttle v. Iron National Bank, 170 N. Y. 9, 62 N. E. 761.) Therefore, in attesting the report in question, Lockhart vouched for and certified to the absolute truthfulness of the statements contained therein (Gerner v. Mosher, 58 Neb. 135, 46 L. R. A. 244, 78 N. W. 384), and to that extent, at least, made the report, within the meaning of our statute.
The statute recognizes the fact that a director or officer of a bank is not infallible, and that either or both may make mistakes, and therefore it does not condemn a false report merely because it is false. The representative of the bank is called to account and condemned as a felon only when he willfully and knowingly makes a false report.
2. In the charging part of the indictment it is alleged that the report in question contained the statement that at the close of business on June 30, 1921, the bank did not owe anything for borrowed money, whereas “in truth and in fact at the close of business on June 30, A. D. 1921, the Miners’ State Bank of Sand Coulee had borrowed from the Midland Rational Bank of Minneapolis the sum of $10,000.” And it is further alleged that the statement that the bank owed nothing for borrowed money was false and known by Lockhart to be false, and was made for the purpose, and with the felonious and fraudulent intent, to deceive the superintendent of banks. This portion of the indictment is attacked upon the ground that it does not allege directly that the .Sand Coulee bank was indebted to the Minneapolis bank, or that the $10,000 constituted a valid and subsisting obligation of the Sand Coulee bank, or that the money, if borrowed, had not been repaid at the time the report was made. It would not make any difference if the borrowed money had been repaid at the time the report was made, July 14, 1921. The call was for a true statement of the condition of the bank at the close of business June 30, and the truth or falsity of the report could not be affected by anything which transpired after that date.
Section 11852 provides that the charging part of an indictment or information is sufficient if “the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended.”
Section 11853 provides: “No indictment or information is insufficient, nor can the trial, judgment, or other proceedings thereon be affected by reason of any defect or imperfection in matter of form which does not tend to the prejudice of a substantial right of the defendant upon its merits.”
These are the statutory rules which are to guide the trial court in passing upon a demurrer interposed under section 11898, but, upon an application for lease from custody on habeas corpus after conviction, this court is not restricted by those rules. If upon any possible theory the indictment states a public offense which will support the judgment before us, the application must be denied. The language employed in the indictment is not well chosen, and the gist of the offense might have been described in more appropriate terms. If to the portion quoted above, the draftsman had added “no part of which has been paid,” the sufficiency of the indictment could not be questioned, and we are unwilling to concede that the omission of those words, or their equivalent, renders the judgment herein open to collateral attack.
In the language quoted, the indictment speaks in the past perfect tense, which signifies' that the act was completed or perfected at some definite time in the past. In the connection in which it is used, the verb phrase “had borrowed” means that the act of borrowing the $10,000 had been completed at the time the bank’s business closed on June 30. We are of the opinion that the man-in-the-street, of common understanding, might reasonably interpret the language to mean that the act of borrowing had been complete immediately before the close of business on June 30, and this interpretation would not do violence to the language employed, but would fairly negative the idea that the borrowed money may have been repaid.
We repeat, that upon an application for release from custody on habeas corpus after conviction, this court will indulge every legitimate, presumption in favor of the sufficiency of the indictment, and since we are not convinced that the indictment before us fails entirely to charge a public offense, and it does’ appear that the prisoner is held in custody by virtue of the final judgment of a competent court of criminal jurisdiction and a commitment regularly issued upon such judg ment, the writ is discharged and the prisoner is remanded to the custody of the sheriff of Cascade county.
Writ discharged.
Mr. Chief Justice Callaway, Associate Justice Stark, Honorable Wm. H. Poorman, District Judge, sitting in place of Mr. Justice Rankin, disqualified, and Honorable Joseph R. Jackson, District Judge, sitting in place of Mr. Justice Galen, absent on account of illness, concur.
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MR. JUSTICE STARK
delivered the opinion of the court.
On November 25, 1920, Charles R. Ross purchased from the plaintiff one Cole Aero Eight seven-passenger touring car for the.sum of $3,650, under a conditional sale contract by which the title to the automobile remained in the vendor as security for an unpaid balance of the purchase price, amounting to $2,433.30. On the same day the defendants, in consideration of a premium of $36.30, issued to tiíe purchaser, Ross, their policy No. 25044 for $3,300, insuring said automobile against loss from fire, theft or robbery, or damages sustained in transportation. In this policy the automobile is described as a new 1920 model, seven-passenger touring car. For an additional premium of $5, by an indorsement on the policy, defendants insured- the plaintiff against all direct loss or damage which it might sustain by reason of the fraudulent concealment or disposal of the automobile by the vendee, Ross, and in consideration of a further premium of $2 attached to said policy a confiscation clause, by which it further insured the plaintiff against all direct loss or damage which it might sustain “caused by the confiscation of said automobile by reason of the violation (other wise than by the said vendor) of the provisions of the ‘National Prohibition Act/ or other laws of the United States relating to the transportation of intoxicating liquors or other articles subject to restricted sale, not exceeding the amount -named in the said policy, nor the actual cash value of the said automobile at the time of the said confiscation, nor exceeding two-thirds (%) of the contract purchase price thereof, and in no event to exceed the amount of the unpaid installments of the purchase price of said automobile, exclusive of any interest thereon.”
Claiming that after the issuance of this policy, and while it was in full force, the automobile described therein was taken from the possession of the vendee, Ross, confiscated and ordered sold for a violation of the laws of the United States of America relating to transportation of liquors, and that thereby the defendants had become liable to it for the sum of $2,433.30, which they had refused to pay, the plaintiff brought this action to recover judgment against them for that amount. A copy of the insurance policy with the indorsements is attached to and made a part of the complaint.
After a general demurrer to the complaint had been overruled, the defendants filed their answer, in which they admitted the purchase of the automobile by Ross in the manner and under the conditions above recited, and also the issuance of the policy of insurance together with the above-mentioned indorsements. They also admitted that after the issuance of the policy the automobile was taken from the possession of Ross, and in due time, in the manner provided by law, by order of the district court of the United States for the district of Montana, confiscated and ordered sold.
In addition to the general admissions and denials contained in their answer, the defendants set up several separate and affirmative defenses. In the second affirmative defense the following clause of the policy is set out: “Misrepresentation and Fraud. — This entire policy shall be void if the assured or his agent has concealed or misrepresented in writing or otherwise any material fact or circumstance concerning this insurance or the subject thereof, or if the assured or his agent shall make any attempt to defraud this company whether before or after loss.” It is then alleged that plaintiff’s rights as vendor under the conditional sale contract arises under the conditional sale contract indorsement upon the policy of insurance, and subject thereto; that when the policy was issued Ross informed the agent of the defendants that the automobile described in the policy was a 1920 model, when as a matter of fact it was a 1919 model; that defendants relied upon this statement and were deceived thereby; that such misrepresentation was of a material character, and by reason thereof the claim of plaintiff is null and void.
The third affirmative defense is similar to the second, except that it is therein alleged that the insured, Ross, represented to the defendants that said automobile was new at the time of the issuance of the policy, while as a matter of fact it was second-hand, and that by reason of that fact the policy is null and void.
The fourth, sixth and seventh affirmative defenses are based upon the alleged failure of the plaintiff to give notice of the confiscation of the automobile and to furnish proof of loss as required by the policy. In the fifth and eighth affirmative defenses it is alleged that the automobile was not confiscated under the laws of the United States relative to the illegal transportation of intoxicating liquors, but was in fact confiscated under the laws relative to internal revenue, being, specifically section 3450, United States Revised Statutes (U. S. Comp. Stats, see. 6352); that the plaintiff having voluntarily placed Ross in charge of said automobile, under that section the automobile itself became an actor in the violation of the law; and ‘‘that if said policy is construed to extend protection to the plaintiff for a confiscation of the automobile after violation of the provisions of section 3450 of the Revised Statutes of the United States,” said policy and confiscation clause are void and unenforceable as being against public policy.
Issue was joined upon the affirmative defenses by plaintiff’s reply. The cause was tried to a jury. At the close of all of the evidence, plaintiff and defendants each made a motion for a directed verdict. The ruling of the -court upon these motions was as follows: “By the Court: Let the record show in this case that the motion of the defendants is denied, and the motion of the plaintiff is granted except as to the value of the car. Upon the return of the verdict by the jury, the court will grant plaintiff’s motion in its entirety, except that it will insert in lieu of the value of the ear at $2,433.30, the amount so found by the jury, and will render judgment accordingly.” Thereupon the court instructed the jury as follows: “Gentlemen of the jury, the court instructs you that the only issue for you to determine in this case is the value of the automobile in question,” which was followed by other instructions for the guidance of the jury in determining the value.
The jury returned a verdict in effect finding that the value of the automobile was $2,433.30, and on January 16, 19-24, the court entered judgment in favor of the plaintiff and against the defendants for the value of the -ear as found by the jury, together with interest -thereon from August 7, 19-22, amounting in all to $2,715. Defendants made a motion for a new trial, which was denied, and they have appealed from the judgment.
Attention will first -be directed to the contention of counsel that the plaintiff is not entitled to recover for the reason that the policy of insurance and the confiscation clause attached thereto are void and unenforceable for the reason that they are against public policy.
Basing their argument upon the statement that section 3450, United States Revised Statutes (Comp. Stats., -see. 63-52), which had been on the statute books since the year 1866, and which provides: “Whenever any * * * commodities for or in respect whereof any tax is or shall be imposed, =» * * are re_ moved * * * with intent to- defraud the United States of such tax, * * # all such goods and commodities, * * * carriage, or * * * conveyance * * * shall be for feited,” was in force and applicable to the facts in this ease, and the decision of the supreme court in Goldsmith v. United States, 254 U. S. 505, 65 L. Ed. 376, 41 Sup. Ct. Rep. 189 [see, also, Rose’s U. S. Notes Supp.], in which it was held that an automobile used in aid of the violation of the provisions of section 3450 itself becomes the offender without regard to the criminal connection of the individual owning it, counsel contend that the effect of the confiscation clause is to insure against the effect of a criminal offense 'by the offender itself, and so militates against the public welfare, contravenes the established interests of society, and is void. A primary obstacle in the way of accepting counsel’s conclusion it that the major premise upon which it is based is erroneous.
It was shown in the evidence that the automobile in question was seized 'by the sheriff of Liberty county on January 4, 1921, while being used in transporting a load of whisky, and on January 8, 1921, was turned over to the federal authorities and thereafter confiscated and sold under an order of the United States district court for the district of Montana. The judgment of the federal court confiscating the car was not produced in evidence, probably for the reason that the defendants, in paragraph VI of their answer, admitted the confiscation and order of sale.
The National Prohibition Act (41 Stat. 305 [U. S. Comp. Stats. Ann. Supp. 1923, sec. 10138% et seq.]) became effective on October 28, 1919, and title 2, section 35 (see. 10138%v) thereof provides: “All provisions of law that are inconsistent with this Act are repealed only to the extent of such inconsistency. ” In the cases of United States v. One Haynes Automobile (C. C. A.), 274 Fed. 926, Lewis v. United States (C. C. A.), 280 Fed. 5, United States v. One Packard Truck (D. C.), 284 Fed. 394, and McDowell v. United States (C. C. A.), 286 Fed. 521, it was expressly declared that in so far as it provided for the confiscation and forfeiture of automobiles used in the illegal transportation of intoxicating liquors, the provisions of section 3450 were repealed by the National Prohibition Act. To the same effect is the ease of United States v. Yuginovich, 256 U. S. 450, 65 L. Ed. 1043, 41 Sup. Ct. Rep. 551 [see also, Rose’s U. S. Notes Supp.].
By the supplementary Prohibition Act of November 23, 1921, Chapter 134, section 5, 42 Stat. 223 (Comp. Stats. Ann. Supp. 1923, sec. 10138'%c), the Congress re-enacted “all laws in regard to the manufacture and taxation of and traffic in intoxicating liquor, and all penalties for violations of such laws that were in force when the National Prohibition Act was enacted.” (Sec United States v. Stafoff, 260 U. S. 477, 67 L. Ed. 358, 43 Sup. Ct. Rep. 197.
From this it follows that the automobile in question could not have been confiscated in January, 1921, under section 3450, since no authority for such a confiscation then existed under that section, and therefore, upon the record before us, we must hold that the confiscation was under title 2, section 26, of the National Prohibition Act (Comp. Stats. Ann. Supp. 1923, sec. 10138%mm).
It is not questioned in this case but that it is competent and legal to insure the vendor of an automobile against the confiscation thereof for a violation of the National Prohibition Act by a person other than the vendor. Since this in effect is all that the policy and confiscation clause in question did, we must hold that the same are not void and unenforceable as against public policy.
The question whether a policy of insurance against confiscacation under the provisions of section 3450 as re-enacted, would be void as against public policy, is not presented in this case and no opinion is expressed thereon.
Numerous assignments of error are predicated upon the rul ing of the court in allowing testimony to be admitted tending to show a waiver of notice of the confiscation of the automobile in the absence of any pleading of such waiver. These contentions are without merit.
The testimony disclosed, without contradiction, that on January 6, 1921, two days after the automobile was seized by the sheriff of Liberty county, the defendant’s agent at Billings, on behalf of the plaintiff, notified the defendants of the séizure by telegram addressed to their manager at San Francisco; that from then on for about eighteen months, the defendants were from time to time investigating the circumstances surrounding the seizure and subsequent confiscation. In paragraph XIII of the complaint it is alleged “that the said defendants up and to August 7, 1922, admitted liability on said policy.” This allegation is expressly admitted by paragraph XI of the answer.
The rule sustained by an almost unbroken line of authorities which will be found collected in 14 R. C. L. 1349, and in 4 Cooley’s Briefs on the Law of Insurance section 3522F, is that a distinct recognition of liability by a company, made under such circumstances as reasonably to show that it is satisfied as to the loss, will amount to a waiver of formal notice and proofs, or of defects therein. It would be difficult to imagine a case to which that rule is more readily applicable than to this. Having been engaged in investigating the facts surrounding the seizure and confiscation of the automobile for a year and a half, during all of which time, by their own admission, the defendants had admitted their liability on the policy, it must be held that they waived the right to raise any question as to the sufficiency of the plaintiff’s notice of confiscation or proofs of loss.
In reference to the second and third separate defenses, wherein it is claimed that the insured, Ross, at the time the policy was issued, represented that the automobile was a 1920 model and that it was a new car, which representations were alleged to be false in that it was a 1919 model and was secondhand : The testimony disclosed that no inquiries whatever were made of Ross concerning these matters. Wilds, manager of the plaintiff company, acting for the insured, Ross, furnished the agent of the defendants all the information which they required before issuing the policy. No written application was made for it. The evidence also disclosed that the automobile was manufactured and delivered to the plaintiff in the late fall of 1919, and defendants’ agent testified in effect that an automobile built after about August of 1919 would be designated as a 1920 model. It was likewise shown that this particular automobile had been sold in the spring of 1920 to a man named Mowre, who used it for a few months and drove it 450 miles, when it was turned back to the -plaintiff and the purchase -price applied toward payment of a different model -ear, which Mowre bought from the plaintiff.
When Ross bought the automobile both he and the plaintiff considered it new, and in fact Ross paid the full list price of a new car for it, which was $50 more than Mowre had paid, because the price of new automobiles of that -class had advanced.
The witness Wilds testified that when defendants’ agent was obtaining the information on which to write the policy, he told the agent that it was the Mowre ear and advised him of all the facts concerning it The agent denied such information was imparted to him by Wilds.
If, as contended by defendants, these representations were made, were in fact false and material, and known to- be such by the insured, it cannot be doubted that they rendered the policy void ab initio, unless there was a waiver of these conditions by the defendants.
There is no question but that, in writing the policy-of insurance and indorsing thereon the confiscation clause, the defendant’s agent was acting within the scope--of his authority. The information concerning the subject of the insurance which he acquired in connection therewith was imputable to his principals. (Wells-Dickey Co. v. American Alliance Ins. Co., 69 Mont. 586, 223 Pac. 489; 14 R. C. L. 1159, sec. 340.)
The general rule is that when the insurer at the time of the issuance of the policy had knowledge of existing facts which, if insisted on, would invalidate the contract from its very inception, such knowledge constitutes a waiver of the conditions in the policy inconsistent with the known facts, and the insurer is estopped from asserting the breach of such conditions, (14 R. C. L. 1166, sec. 345.) This rule was recognized and applied by this court in Johnston v. Rocky Mountain Fire Ins. Co., 70 Mont. 411, 226 Pac. 516, and Wright v. Fire Ins. Co., 12 Mont. 474, 19 L. R. A. 211, 31 Pac. 87. Whether this information was imparted to the agent of the defendants on the issuance of the policy was a disputed question of fact!
The following excerpts from 38 Cyc. 1582, is quoted with ap proval by this court in Fifty Associates Co. v. Quigley, 56 Mont. 348, 353, 185 Pac. 155, 156: “The general rule is that a request by both parties for a directed verdict amounts to a submission of the whole case to the court, and its decision upon the facts has the same effect as the verdict of a jury, and will not be disturbed when supported by any substantial evidence.”
In sustaining the plaintiff’s motion for a directed verdict, the court necessarily must have held that the information relative to the year model of the automobile and the fact that it had previously been sold to Mowre were communicated to the defendants’ agent when the policy was issued, and that despite this knowledge the defendánts elected to consider it as a new automobile of the 1920 model and to insure it as such. It cannot be said that the evidence preponderates against the finding, and under the circumstances we hold that the defendants are estopped from urging these alleged false representations as a defense to their liability on the policy.
All of the other specifications of error have been considered and found to be without merit.
The opinion filed in this case on January 5, 1925, is withdrawn and this one substituted in its place.
The judgment is affirmed.
!Affirmed.
Mr. Chief Justice Callaway, Associate Justices Holloway 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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] |
MR. JUSTICE MATTHEWS
delivered the opinion of the court.
Relator was indicted by a grand jury of Fergus county,, charged with having, as president of a certain bank, permitted it, while insolvent, to accept a deposit of money and place the same in the general assets of the bank, instead of in a trust fund for the depositor as required by law. Relator was taken into custody under a bench warrant; he is before this court on a writ of habeas corpus, the return to which admits his detention and seeks justification under the bench warrant.
The indictment is predicated upon section 6081, Revised Codes of 1921, as amended by Chapter 90, section 3, of the Laws of the Eighteenth Assembly (1923). There is no dispute as to the facts. Relator contends that the above section is unconstitutional in that it does not meet the requirements of section 23 of Article V of the Constitution, that all prior Acts on the subject embraced in the section have been repealed, and that the acts charged in the indictment do not constitute a public offense.
1. It is conceded that all Acts on this subject in existence prior to the passage of Chapter 89, Laws of the Fourteenth Assembly (1915), have been repealed, and therefore ■the indictment must stand or fall on the validity of that Act, of which section 6081, Revised Codes of 1921, is section 62.
2. The section under consideration, before amendment, provided: “Whenever any bank shall be insolvent or in an impaired condition in the manner described and set forth in section 6078 of this Code, such bank shall not accept or receive on deposit any money * * * except as trustee for the depositors, * * * and it or they shall keep all such deposits * * * separate and apart from the general assets of the bank: '* * * Provided, that in the event such impairment or insolvency be not made good or removed within the period stated in the notice required in section 6078, then * * * such trust deposits shall be returned to the depositors; * * * that any officer * * * thereof, who shall knowingly accept or receive, be accessory to, or permit, or connive at the receiving or accepting of such trust deposits, except in the manner hereinbefore set forth * * * shall be deemed guilty of a felony, and upon conviction thereof shall be punished by a fine not exceeding ten thousand dollars, or imprisonment in the state prison not exceeding five years,” etc.
Section 6078, referred to herein, is section 59 of the Act of 1915, and provides for an examination of banks organized under the Act, and, if the superintendent of banks shall find evidence of impairment or insolvency, he shall report to the governor and attorney general, who, if satisfied that impairment or insolvency exists, shall order the superintendent of banks to take charge of the bank or to notify the stockholders to make good the impairment or insolvency within a specified time.
Chapter 90 of the Acts of the 18th Assembly amended section 6081 only to the extent of striking out the words “section 6078 of this Code” in the opening paragraph of the section and substituting therefor the words “subsection 10 of section 1 of this Act,” and striking out the words appearing later in the section “or removed within the period stated in the notice required in section 6078.”
Section 1 of Chapter 90, Laws of 1923, is the enactment of a new section to the “Bank Act,” designated “Section 6014a. Definitions” — clearly designed to clarify the meaning of the original Act by defining various words and terms used therein. Subsection 10 reads as follows: “A bank is insolvent within the meaning of this Chapter when all of its capital surplus, and undivided profits are absorbed in losses and the remaining assets will not be sufficient to pay and discharge its contracts, debts and engagements.”
Counsel for relator urge that it was the intention of the legislature to substitute this provision for section 6078; that the two cannot be harmonized and, therefore, section 6078 is repealed by implication; that subsection 10, section 1, is not within the title to 'Chapter 90, and therefore, like Chapter 89, Laws of 1915, is unconstitutional, and no method is left for the determination of insolvency.
It is true that the amendment to section 6081 substitutes the words “subsection 10 of section 1” of the Act of 1923 for “section 6078,” in section 6081, but by so doing the legislature did no more than to declare the fact of insolvency the basis of the inhibition and consequent liability for its violation, in lieu of basing such inhibition and prosecution upon the finding and notice of insolvency. Such a substitution does not, however, necessarily lead to the conclusion that the legislature intended thereby to do away with action looking to a determination of insolvency, nor repeal section 6078 by implication. The fact of insolvency, if it exists, is present regardless of action or nonaction on the part of the superintendent of banks.
It is the rule, of course, that where two provisions of an Act of the legislature are conflicting and cannot be harmonized, the last in order of arrangement controls. (State ex rel. Koefod v. Board of Commissioners, 56 Mont. 355, 185 Pac. 147.) But where there is a statute dealing with a subject in general and comprehensive terms, and another dealing with a part of the same subject in a more minute and definite way, the two should be read together and harmonized, if possible. (State ex rel. Esgar v. District Court, 56 Mont. 464, 185 Pac. 157.)
Invoking this latter rule, we find no inconsistency here. The superintendent of banks may still proceed as in section 6078 provided, and an action be prosecuted under section 6081 on the fact of insolvency, after such proceedings are had, as such detérmination and notice as are there provided for do not affect the actual condition of the bank existing either then or theretofore.
3. The wording of subsection 10, section 1, of the Act of 1923, is not as clear as it might be, in that it is not specific as to the time when the “remaining assets will not be sufficient to pay and discharge the debts.” However in the construction of a statute, the intention of the legislature is to be pursued, if possible. (Sec. 10520, Rev. Codes 1921; Lerch v. Missoula B. & T. Co. 45 Mont. 314, Ann. Cas. 1914A, 346, 123 Pac. 25; State ex rel. Carter v. Kall, 53 Mont. 162, 5 A. L. R. 1309, 162 Pac. 385.) And we must look not only to the words employed, but also to the evil to be remedied. (,Johnson v. Butte & Superior C. Co., 41 Mont. 158; 48 L. R. A. (n. s.) 938, 108 Pac. 1057.) Of two admissible constructions of a statute, the courts are never justified in adopting the one which defeats the manifest object of the law. (Wilkinson v. La Combe, 59 Mont. 518, 197 Pac. 836.)
In enacting this subdivision or definition, the legislature had a definite purpose in view. That purpose was clearly to provide a rule hy which the insolvency of any bank could be determined at any given time. The intention was, manifestly, to designate a time to which proof of insolvency could be directed in an action arising out of a violation of the provisions of the Act, of which that subsection was made a part. That intention and purpose could only be carried out by placing on the statute books a definition, every phrase of which referred to but a single instant of time.
It cannot be that the legislature intended that its reference to absorption of the capital, surplus and undivided profits should be in the present tense, and the provision as to- the remaining assets should refer to some time in the future. But, having in mind the nature of the remaining assets, after what may be termed the liquid assets have been absorbed in losses, it seems reasonable to presume -that the phrase “will not be sufficient,” though appearing in the Act in the future tense, was intended to refer to the then value of such assets, admitting that such value could not, at that time, be applied to pay and discharge the debts and liabilities of the bank. This being the intention of the legislature, manifested by the purpose to be accomplished, the wording of the provision and the evils to be remedied by the Act of which this subsection is a part, the definition is construed as though it read “and the remaining assets will not be [when converted into cash at their present value] sufficient to pay and discharge its contracts, debts, and engagements.” This is but the reasonable construction of the statute, and, when so construed, the Act furnishes a concise rule for determining the insolvency of a bank at any given time.
4. We enter upon a determination of the question as to .the constitutionality of the Act of 1915 bearing in mind the principles governing our consideration thereof heretofore announced by this court.
In the case of State v. McKinney, 29 Mont. 375, 1 Ann. Cas. 579, 74 Pac. 1095, is found a summary of the rules theretofore announced by this and other courts, in five “general principles” with reference to this constitutional provision, viz.:
(1) The purposes of the provision are to prevent the enactment of laws surreptitiously; to give notice to the legislature and to the people that they may not be misled; to guard against fraud in legislation.
(2) The courts should give to this provision a liberal construction, so as not to interfere with or impede proper legislative functions.
(3) “The legislature is the judge, to a great extent, at least, of the title which it will prefix to a bill; and the court has no right to hold a title void because, in its opinion, a better one might have been used.”
(4) “The title is generally sufficient, if the body of the Act treats only, directly or indirectly of the subjects men tioned in the title, and of other subjects germane thereto, or of matters in furtherance of or necessary to accomplish the general objects of the bill, as mentioned in the title. Details need not be mentioned. The title need not contain a complete list of all matters covered by the Act.”
(5) “If the court, after an application of all these principles, is still in doubt as to the constitutionality of the bill, it should sustain the Act.”
To these principles were added:
(6) This provision of the Constitution relates to matters of substance and not merely to matters of form.
(7) “If a title fairly indicates the general subject of the Act, is comprehensive enough in its scope reasonably to cover all the provisions thereof, and is not calculated to mislead either the legislature or the public, this is a sufficient compliance with the constitutional requirement.” (Evers v. Hudson, 36 Mont. 135, 92 Pac. 462.)
To these two general principles-, since announced, should be added:
(8) The constitutionality of a statute is presumed, and construction consonant with constitutionality is favored. (State ex rel. Bankers’ Trust Co. v. Walker, 70 Mont. 484, 226 Pac. 894.)
(9) The presumption of constitutionality controls until, or unless, the party attacking the Act convinces the court of its unconstitutionality beyond a reasonable doubt. (State v. Pepper, 70 Mont. 596, 226 Pac. 1108.)
The constitutionality of any Act providing, in the body of the bill, penalties for the violation of the provisions of the Act without mentioning such penalties in the title thereto, has been set at rest in State v. Bernheim, 19 Mont. 512, 49 Pac. 441, and In re Terrett, 34 Mont. 325, 86 Pac. 266. In the Bernheim Case it is said: “Experience amply demonstrates that to regulate a particular business by law, and put a statute regulating it into practical and effective operation, there must be punishments prescribed and imposed upon those who violate its commands. But such penalties need not be included in the title, for they are but ‘ends and means necessary or convenient for the accomplishment of the general object.’ ”
The reasoning leading to the above conclusion applies with equal force to any “ends and means necessary or convenient for the accomplishment of the general object” and, aside from the- question of penalties, it has been repeatedly held in this state that the unity of title required by section 23, Article V, of our Constitution is observed notwithstanding the inclusion, in the body of the bill, of many provisions not mentioned in the title thereto, if such provisions are germane to the general subject expressed in the title. (Hotchkiss v. Marion, 12 Mont. 218, 29 Pac. 821; Beckstead v. Montana etc. Ry. Co., 19 Mont. 147, 47 Pac. 795; State v. Bernheim, supra; Snook v. Clark, 20 Mont. 230, 50 Pac. 718; State v. Anaconda Copper Min. Co., 23 Mont. 498, 59 Pac. 854; Yegen v. Board of County Commrs., 34 Mont. 79, 85 Pac. 740; Evers v. Hudson, supra; Carlson v. City of Helena, 39 Mont. 82, 17 Ann. Cas. 1233, 102 Pac. 39; State ex rel. Hay v. Alderson, 49 Mont. 387, Ann. Cas. 1916B, 39, 142 Pac. 210; State v. Pepper, supra.)
In a number of these cases the court has indicated the nature of such matters “germane to the subject,” and in 25 B. C. L., p. 844, the “subject” of an Act is defined as “the matter or thing forming the groundwork of the Act.” The remaining provisions are but the machinery provided for the purpose of rendering the subject or groundwork of the Act effective; the “ends and means necessary or convenient for the accomplishment of the general object.”
In State v. Bernheim, supra, the Act attacked was entitled: “An Act to regulate the sale and redemption of transportation tickets of common carriers.” The body of the bill provided for certificates of appointment of agents to sell such tickets, the issuance of a license on payment of a license fee and exhibition of the certificate; the posting of the certificate and license, and made it unlawful for any person to sell tickets without such license and provided a penalty for violation. It was held that there was no merit in the point that the subject of the Act was not clearly expressed in the title.
In Beckstead v. Montana etc. Ry. Co. and Snook v. Clark the Act under consideration was entitled ‘ ‘ an Act requiring railroad companies to pay for damages to stock,” while the body of the Act required such companies to fence their tracks and to install cattle-guards for the protection of stock. In each of these cases the railway company contended, as here, that the title does not clearly express the subject of the Act. In the Beckstead Case the court contented itself with the declaration that the Act was constitutional, and in the Snook Case it merely stated that the question was passed upon in State v. Bernheim, supra, and that “the constitutionality of the law in question was sustained also by this court in Beckstead v. Montana etc. Ry. Co.,” etc.
The decision in State v. McKinney, supra, upholds the constitutionality of an Act entitled “An Act to create the office of meat and milk inspector for the state of Montana, and prescribing their powers and duties and compensation therefor,” while the body of the Act provided for the licensing of certain dairymen and the regulation of their business.
Dealing generally with this subject, the author, in Ruling Case Law says: “A title need not disclose the means and instrumentalities provided in the body of the Act for accomplishing its purpose, where all the provisions are reasonably necessary as means for attaining the object of the Act indicated by the subject which is expressed in the title, as subdivisions of the general subject there stated.” (25 R. C. L., p. 868, citing numerous cases.) And specifically: “Where an Act provides for the organization of a corporation, it may include any provisions relating to the operation, regulation, control and maintenance of the corporation.” (Id., p. 845, citing Clendaniel v. Conrad, 3 Boyce (Del.), 549, Ann. Cas. 1915B, 968, 83 Atl. 1036.)
“Provisions for the individual liability of stockholders or making directors liable for the debts of the corporation for failure to file reports or for making false reports or certificates, are germane to the subject of creating corporations.” (Lewis’ ■Sutherland, Statutory Construction, 2d ed., vol. 1, p. 262.)
The Act under consideration, entitled as it is, provides for the creation and regulation of banks and banking corporations. The broad generic title' clearly expresses the subject or groundwork of the Act, and, in order to effectuate the regulation of such institutions, provides the machinery for determining when such institutions are in an insolvent or impaired condition, and when the banking department of the state, mentioned in the title, shall have to do with the regulation. Corporations can act only through human agencies, and, if such institutions violate the provisions for their regulation, the punishment should, justly, fall upon those responsible for the conduct of the business in such manner as is violative of the Act.
The provisions complained of are, therefore, but “ends and means necessary or convenient for the accomplishment of the general object” and clearly germane to the subject expressed in the title. This being so, we cannot say that either the members of the legislature or the public could have been misled 'by the omission of those matters from the title, which fully advised all parties interested therein that the legislature proposed to provide for the creation and regulation of banks and banking corporations, and to create a banking department for the purpose of such regulation. The remaining provisions logically follow as the machinery by which this purpose is to be accomplished.
What is heretofore said regarding the title to the “Bank Act” (Chap. 89, Laws of 1915), including, as it does, section 6081, Revised Codes of 1921, applies with equal force to Chapter 90, Laws of 1923, amending that section and defining “insolvency,” its title being more comprehensive than that of the original Act.
5. On his assignment that the indictment does not charge the commission of a public offense, in addition to reasserting the unconstitutionality of the Act, relator contends that the indictment does not charge that the insolvent condition of the bank was known to the officers and directors at the time of the acceptance of the deposit as alleged; that it does not charge a specific intent, and that, under the present chaotic condition of the law, there is no method provided for determining insolvency.
(a) The first and the last of these contentions, attacking the law and not the indictment, have already been disposed of.
(b) As the statute is constitutional and provides that failure to obey its mandates constitutes a public offense, a sufficient indictment can be drawn under its provisions. Without passing on the sufficiency of the indictment, we observe that it follows the wording of the statute, practically verbatim, and charges that the acts complained of were committed “wrongfully, unlawfully, knowingly and feloniously.”
However, even conceding that the indictment is defective in charging the offense alleged, such defect cannot avail the relator in this proceeding. The purpose of the writ of habeas corpus is to determine the question: Is the imprisonment or restraint legal? The court can go no further in this proceeding than to inquire as to the validity of the process on its face and the jurisdiction of the court, which raises the question as to the constitutionality of the law under which the court is attempting to proceed and the process it issued, and discharge the relator if he brings himself within the provisions of section 12362 of the Bevised Codes of 1921.
The rule is clearly stated in Buling Case Law as follows: “It is well settled that # # ® where an indictment has been found which, although subject to attack and overthrow upon a demurrer, contains enough to show that an offense has been committed of which the court has jurisdiction, the party charged cannot be discharged on writ of habeas corpus, but will be remitted to the court in which the indictment is pending for such proceedings as the law may warrant by way of defense. • The writ cannot be used as a substitute for a demurrer or motion to quash.” (12 R. C. L. 1190, sec. 13; see, also, 100 Am. St. Rep. 35.)
The proceeding is dismissed, and the prisoner remanded to the custody of the sheriff of Fergus county.
Dismissed.
Mr. Cheep Justice Callaway, Associate Justices Holloway and Stark, and Honorable C. W. Pomeroy, District Judge, sitting in place of Mr. Justice G-albn, absent on account of illness, concur.
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
On November 4, 1918, Robert Robke and his wife executed and delivered to the First National Bank of Raymond their promissory note for $2,500 and a real estate mortgage which on its face purports to secure the payment of the amount repre sented by tbe note. This action to foreclose tbe mortgage was instituted by filing a complaint in tbe usual form, wbicb contains only tbe necessary allegations as to tbe execution and delivery of tbe note and mortgage, their ownership by tbe plaintiff, and nonpayment, with an appropriate prayer for relief.
Tbe separate answer of tbe defendant Fisbbeck contains tbe allegation that be has become tbe owner of tbe mortgaged premises; otherwise it is in effect a general denial.
Tbe defendants Robke by their joint answer admit the execution and delivery of the note and mortgage in question, and deny tbe other allegations of the complaint. As an affirmative defense, they allege that on November 4, 1918, they were indebted to' tbe plaintiff bank in tbe sum of $3,200 represented by one note for $1,500, one for $900, and one for $800, all of wbicb amounts were secured by chattel mortgages; that on tbe day named they executed and delivered tbe note of $2,500 and tbe real estate mortgage as additional security for the original indebtedness of $3,200 or so much thereof as might remain unpaid after tbe chattel security became exhausted, and for no other purpose whatever. They allege that the note for $900 was paid on January 8, 1919, and that tbe note for $800 was renewed, and tbe renewal note paid on May 14, 1920. They then allege that during tbe fall of 1921 tbe plaintiff converted to its own use personal property 'belonging to these defendants of tbe value of $3',000, and tbis is pleaded as a set-off to tbe indebtedness represented by the note for $1,500.
In reply, tbe plaintiff admits that on November 4, 1918, Robke and wife were indebted to the bank in the sum of $3,200 and that payment thereof was secured by chattel mortgages, but alleges that tbe chattel security did not exceed in value $2,000. It is then alleged, in paragraph 3: ‘ ‘ That, as a part of tbe same transaction whereby plaintiff loaned to said defendants the sum of $3‘,200, as aforesaid, and as additional security for said loan and for tbe payment of tbe indebtedness thereby created, and not otherwise, the said defendants duly made, exe euted, and delivered to the plaintiff herein the promissory note and real estate mortgage mentioned and described in plaintiff’s complaint. ’ ’
In paragraph 9 appears the following: “That said real estate mortgage was to be held by plaintiff as security for the money loaned to said defendants at that time, as well as any other and further sums that might be loaned to said defendants from time to time by said plaintiff” — but there is not any allegation that other or further sums were ever loaned or advanced to Robke or to his wife.
Upon the issues thus made, the cause was brought to trial to the court without a jury. Findings of fact and conclusions favorable to the plaintiff were made, upon which a judgment of foreclosure was entered, and the answering defendants appealed.
The court found that of the original indebtedness of $3,200 only $420 remains unsatisfied; but that the plaintiff had made advances to Robke and wife from time to time since November 4, 1918; and that the total balance of their indebtedness is $4,006.73. The decree directs that the mortgaged premises be sold and the proceeds of the sale be applied toward the payment of that amount, with costs, attorney’s fees and expenses.
It is insisted that the court erred in holding that the real estate mortgage secures any advances made to Robke or to his wife after November 4, 1918, and we agree with counsel for defendants to this extent: That if the trial had been confined to the issues made by the pleadings, the lower court would have been compelled to exclude any evidence of advances made after November 4, 1918, and to conclude that the real estate mortgage secures only the balance due upon the original indebtedness of $3,200. But defendants could depart from the issues presented by the pleadings and make a ease for plaintiff that would justify the findings and conclusions of the trial court, if they chose to do so; or they could sit by without objecting and permit the plaintiff to make such a case, and in either event the pleadings would be treated as amended to meet the proof. (State ex rel. Dansie v. Nolan, 58 Mont. 167, 191 Pac. 150; Archer v. Chicago M. & St. P. Ry Co., 41 Mont. 56, 137 Am. St. Rep. 692, 108 Pac. 571; O’Brien v. Corra-Rock Island Min. Co., 40 Mont. 212, 105 Pac. 724.)
It is evident from the record that the defendants made a case for plaintiff, or at least contributed to that end, whether they did so wittingly or unwittingly. On direct examination W. M. Rader, cashier of the plaintiff bank, identified the note for $2,500 and the real estate mortgage; testified that they were in the possession of and owned by the bank, and that no part of the debt represented by the note had been paid. This is the substance of his direct examination; but on cross-examination counsel for defendants elicited from him that — “Plaintiff’s Exhibit 1 [note for $2,500] was held by the bank as security to all obligations against Robert Robke, whether at that time or later; that was the agreement * * * Exhibit K [note for $750 dated September 15, 1920] was not a renewal of any notes given by Robke before that time; but the fact that we had this real estate mortgage was taken into consideration. I understood the real estate mortgage provided for future advances. The bank took into consideration that the mortgage was to secure future advances.” Upon redirect examination the witness tes tified without objection that “the agreement was that the mortgage was to be a permanent collateral security.”
It may be conceded that this evidence, viewed from the cold record, is vague and not very convincing; but we are not in a position to say that it is altogether without probative value. The trial court found that by agreement of the parties the note for $2,500 and the real estate mortgage were to be held by the bank as security for the original indebtedness of $3,200 and “to secure future advances from the plaintiff bank to the defendants Robke and wife.” On cross-examination and on redirect examination, without objection, the witness Rader testified to the several advances made by the bank to the defendants Robke after November 4, 1918, disclosing that on March 11, 1921, there was a balance due of $4,405.05. This amount the trial court accepted as the basis from which it made its computation and found that the net balance due at the time of the trial was $4,006.73, after allowing defendants’ set-off.
Robert Robke denied that there ever was any agreement that the real estate mortgage should secure future advances; but this presents merely a conflict in the evidence. The trial court heard the witnesses testify, observed their demeanor on the stand and was in a more advantageous position from which to judge of their credibility and of the weight to be given to their testimony than are the members of this court. Furthermore, the court below, as a trier of facts, was authorized to draw any fair inference from the facts stated by the witness Rader (sees. 10601, 10603, Rev. Codes); whereas, this court is placed at a disadvantage in not having the testimony presented to it in the same form as it was presented to the trial court.
Subdivision 3, Rule VII, of the rules of this court, requires that in an action of this character the testimony shall be presented by questions and answers, and the reason for the rule was stated tersely in Koopman v. Mansolf, 51 Mont. 48, 149 Pac. 491. The rule was violated in this instance, and because of the violation we are obliged to place greater reliance upon the trial court’s findings than would be necessary otherwise. (Officer v. Swindlehurst, 41 Mont. 126, 108 Pac. 583.) Under these circumstances, we cannot say that the evidence preponderates against the findings, and therefore they will not be disturbed. (Hartnett v. Sterling, 67 Mont. 46, 214 Pac. 330; Allen v. Petrick, 69 Mont. 373, 222 Pac. 451.)
Defendants contend further that, since the real estate mort gage does not purport to secure future advances, it cannot be made to do so by agreement of the parties; but the authorities are practically all to the contrary.
In 19 R. C. L. 286, section 59, it is said: “It is now well settled that a mortgage to secure future advances, though it does not disclose such, purpose on its face, is valid between tbe parties or as against any subsequent encumbrancer not prejudiced thereby. * * * Of course, the omission to state the object subjects the mortgage to suspicion, and the holder will be put to strict proof of the payment of the consideration. But the rule .obtains in this instance, as in the case of descriptions of other obligations, that if the mortgage gives such information that by inspection of the record, and by the exercise of common prudence and ordinary diligence, the extent of the encumbrance may be ascertained, although the instrument may not truthfully state its object on its face, if the transaction is otherwise fair, there is nothing inequitable in enforcing it.”
The same rule is announced in 27 Cyc. 1069 as follows; “A mortgage may be made as well to secure future advances or loans of money to be made by the mortgagee to the mortgagor as for a present debt or liability; and if executed in good faith it will be a valid security. * # # And the validity of the mortgage is not necessarily impaired by the fact that it does not show upon its face the real character of the transaction, although it recites an existing debt as its consideration, it may be shown that it was intended to cover future advances, and the mortgagee can recover the amount actually advanced up to the time of enforcing the security. The question of good faith is always open to inquiry, but the mere fact that the mortgage was given to secure future advances, while it recites a present debt, or that it was given for a1 larger amount than was loaned at the time, and with a view of covering future loans, is not conclusive of fraud.”
In the note to Straeffer v. Rodman, Ann. Cas. 1913C, 552, tlM following general rules are stated and the numerous decided cases sustaining them are cited:
(a) “In the absence of any statutory regulation, there is no question as to the validity of mortgages of realty to secure future advances.”
(b) “A mortgage to secure future advances is valid between the parties or as against any subsequent encumbrancer not prejudiced thereby although it does not show on its face that it is made to secure future advances.”
(c) “It is not required that an agreement that a mortgage shall be security for future advances must be in writing-. Parol evidence is admissible to show that a mortgage absolute on its face was in fact intended to secure future advances.”
These rules have heretofore received the sanction, of this court. In Noyes’ Estate v. Granite-Alaska Co., 57 Mont. 511, 189 Pac 225, we quoted approvingly from Johnson v. Bratton, 112 Mich. 319, 70 N. W. 1021, the following: “Though the mortgage, on its face, is for the payment of a specific sum of money, parol evidence is admissible to show that it was really intended to secure future advances made from time to time.” And from Shirras v. Caig, 7 Cranch (U. S.), 34, 3 L. Ed. 260 [see, also, Rose’s U. S. Note], as follows: “It is true that the real transaction does not appear on the face of the mortgage. The deed purports to secure a debt of 30,000 pounds sterling due to all the mortgagees. It was really intended to secure different sums, due at the time from particular mortgagees, advances afterwards to be made, and liabilities to be incurred to an uncertain amount. It is not to be denied, that a deed, which misrepresents the transaction it recites, and the consideration on which it is executed, is liable to suspicion. It must sustain a rigorous examination. It is, certainly, always advisable fairly and plainly to state the truth. But if, upon investigation, the real transaction shall appear to be fair, though somewhat variant from that which is described, it would seem to be unjust and unprecedented to deprive the person claiming under the deed, of his real equitable rights unless it be in favor of a person who has been, in fact, injured and deceived by the misrepresentation.”
Defendant Fishbeck did not testify upon the trial of this •case, and it cannot be determined that he will be prejudiced by the judgment. So far as we know, he may have had actual knowledge that tbe mortgage was intended to secure future advances at the time he purchased the premises.
The judgment is affirmed.
'Affirmed.
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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] |
MR. JUSTICE HOLLOWAY
delivered tbe opinion of tbe court.
Stated briefly, tbe facts out of wbicb tbis controversy arose are that tbe Citizens’ National Bank of Laurel held a chattel mortgage upon a crop of grain belonging to G. A. Starkweather to secure an indebtedness of something over $17,000. The mortgage had been filed in the office of the county clerk and recorder, and, while it was still in full force and effect, the Occident Elevator Company purchased a portion of the mortgaged property, and paid the purchase price to Stark-weather directly.
This action in conversion was instituted by the bank, through the receiver in charge of its business, to recover from the elevator company the value of the grain so purchased, and in the complaint the transactions are set forth at length. The answer is a general denial.
Upon the trial, and after the plaintiff had rested, the defendant sought to show that it purchased the grain in controversy from Starkweather and paid the purchase price to him directly under an agreement with the plaintiff bank that it might be done. The offered evidence was rejected, and the defendant having rested, a verdict was returned in favor of the plaintiff by direction of the court, and from the judgment entered thereon defendant appealed.
1. It is contended that the mortgage was not entitled to be filed, and therefore did not impart constructive notice.
Section 8276, Revised Codes, provides that every chattel mortgage, in order to be entitled to be filed, must be signed and acknowledged by the mortgagor and bear the affidavit of good faith by the mortgagee. The section then proceeds:
“And every mortgagee must surrender without cost to the mortgagor, at the time of the execution of the mortgage, a correct copy of the original mortgage so signed, with acknowledgments shown thereon. And the mortgagor must surrender to the mortgagee a receipt, which shall be attached to the original mortgage, showing that the mortgagee has surrendered to him a copy of such mortgage, and said receipt must accompany the mortgage when presented to the clerk and recorder and filed therewith. Otherwise said mortgage shall not be filed as a chattel mortgage by the clerk and recorder.”
In the mortgage in question there appears immediately below the mortgagor’s signature and above the acknowledgment and affidavit the following:
“Mortgagor’s receipt for copy. I hereby acknowledge that at the time of the making, execution and delivery of this mortgage, the mortgagee delivered to me a full, true and complete copy of the foregoing mortgage, without additional cost to me, and that I received said copy of mortgage.
“G-. A. Starkweather.”
It is argued that this receipt does not purport to refer to the mortgage “with the acknowledgments shown thereon,” but can be construed only as a receipt of a copy of so much of the entire instrument only as precedes it in point of arrangement. At first blush there would appear to be some merit to the contention, bnt when it is recalled that section 8276 does not require that the receipt shall be written upon the mortgage, but only requires that it must “be attached to the original mortgage” and “must accompany the mortgage when presented to the clerk and recorder and filed therewith,” the defect recedes to the vanishing point. The mortgagor acknowledged the receipt of “a full, true and complete copy of the foregoing mortgage,” and it would require an extremely strained construction of the language to say that it means a copy of only that portion of the instrument which precedes it in place. The same contention made here was made and overruled in Colman v. Shattuck, 2 Hun (N. Y.), 497, and in Commercial State Bank v. Interstate El. Co., 14 S. D. 276, 86 Am. St. Rep. 760, 85 N. W. 219, and no authorities to the contrary are cited.
It is insisted by defendant that our chattel mortgage statute must be construed strictly, and some of the early decisions of this court announce that rule, but it has never prevailed in this state since the adoption of the Codes, although the statute was apparently overlooked in Reynolds v. Fitzpatrick, 23 Mont. 52, 57 Pac. 452. Since July 1, 1895, it has been the law of this state that “The rule of the common law that statutes in derogation thereof are to be strictly construed has no application to the Codes or other statutes of the state of Montana. The Codes establish the law of this state respecting the subjects to which they relate, and their provisions and all proceedings under them are to be liberally construed with a view to effect their objects and to promote justice.” (Sec. 4, Pol. Code 1895; sec. 4, Rev. Codes 1907; sec. 4, Rev.o Codes, 1921.) No exception is made in the chattel mortgage statute; hence we are bound by the rule of construction quoted above. The mortgage conforms substantially to the requirements of section 8276.
In passing, we observe that, if the matter stated in the first offer of proof be true, defendant must have had actual knowledge of the bank’s mortgage, otherwise there would appear to be no reason for defendant consulting the_ bank and securing its consent before purchasing the grain.
2. When defendant sought to show that the grain had been purchased from Starkweather and the purchase price paid to him, by consent of the bank, counsel for plaintiff objected upon the ground that the manifest purpose was to prove a waiver which had not been pleaded. Upon the admission of counsel for defendant that such was the purpose, the objection was sustained and the offered evidence excluded. It is urged that the court erred in the ruling, and that the evidence was admissible under the general denial in the answer.
A general denial is authorized by statute (see. 9137, Rev. Codes), and the effect of it is to put in issue every material allegation constituting the statement of plaintiff’s cause of action, and casts upon the plaintiff the burden of establishing, prima facie at least, the presence of every element necessary to a recovery. (Hickey v. Breen, 40 Mont. 368, 20 Ann. Cas. 429, 106 Pac. 881; Chealey v. Purdy, 54 Mont. 489, 171 Pac. 926.)
“A conversion is any unauthorized act which deprives a man of his- property permanently or for an indefinite time. * * * Any distinct act of dominion wrongfully exerted over one’s property in denial of his right, or inconsistent with it, is a conversion.” (Glass v. Basin & Bay State Min. Co., 31 Mont. 21, 77 Pac. 302.) From these definitions it follows that, to state a cause of action in conversion, plaintiff must disclose by his complaint that at the time of the alleged conversion he had a general or special ownership in the chattels, a right to the immediate possession thereof, the value of his interest, and that the acts of the defendant which deprived him thereof were wrongful. (Interstate National Bank v. McCormick, 67 Mont. 80, 214 Pac. 955.)
The general 'denial puts in issue all of these allegations, and any evidence which tends to negative any of them is admissible. (Chealey v. Purdy, above.) If in this action the bank con sented to the sale of the grain by Starkweather to defendant and to the payment of the purchase price therefor to Starkweather directly, then the appropriation of the property by the defendant was not wrongful (United States Nat. Bank v. Great Western Sugar Co., 60 Mont. 342, 199 Pac. 245), and plaintiff cannot complain under the familiar maxim “volenti non fit injuria,” — “he who consents to an act is not wronged by it.” (See. 8744, Rev. Codes.)
After a conversion of mortgaged chattels has actually taken place, the mortgagee may waive the tort (26 R. C. L. 1144), or he may waive his lien upon the property at any time. (11 C. J. 674.)
The distinction between a waiver of the conversion and a waiver of the lien is important as it relates to the question of pleading. The defense that the tort has been waived admits that defendant converted the property and that plaintiff had a cause of action therefor, but seeks to show that plaintiff chose to treat the act as not wrongful and thereby to relinquish his right of action. Such a defense is in the nature of a confession and avoidance, which must be pleaded specially. It is such a defense as is required to be pleaded by subdivision 2 of section 9137, Revised Codes. (31 Cyc. 218; Bowers on Conversion, sec. 543.)
In 38 Cyc. 2075, the general rule is stated as follows: “All defenses in bar are admissible under the general issue, except matters of confession and avoidance.”
The defense that the mortgagee bank waived its lien before the property was taken by the defendant is a denial that the mortgagee had any interest in the property at the time it was taken. In this action, in order to prevail it was incumbent upon plaintiff to show some interest in the grain at the time of the alleged conversion (Potter v. Lohse, 31 Mont. 91, 77 Pac. 419; Raymond v. Blancgrass, 36 Mont. 449, 15 L. R. A. (n. s.) 976, 93 Pac. 648), and, since the bank claimed only a lien, by virtue of its mortgage, if it had waived that lien, it did not have any interest whatever. The general denial put in issue the plaintiff’s claim of an existing interest, and under it defendant was entitled to show, if it could, that plaintiff did not have any interest in the grain at the time it was purchased. (Pico v. Kalisher, 55 Cal. 153; Hopkins v. Dipert, 11 Okl. 630, 69 Pac. 883; Southern Car, M. & S. Co. v. Wagner, 14 N. M. 195, 89 Pac. 259; Haynes v. Kettenbach Co., 11 Idaho, 73, 81 Pac. 114; 38 Cyc. 2075; Bowers on Conversion, sec. 532.)
A waiver is the intentional relinquishment of a known right (Murray v. Heinze, 17 Mont. 353, 42 Pac. 1057; 27 R. C. L. 904; 8 Words and Phrases, First Series, 7375), and implies necessarily that the right was in existence at the time it is claimed to have been waived (State ex rel. Driffill v. City of Anaconda, 41 Mont. 577, 111 Pac. 345; San Bernardino Inv. Co. v. Merrill, 108 Cal. 490, 41 Pac. 487).
When counsel for defendant conceded that the purpose of offering the evidence in question was to establish a waiver, he could not have referred to a waiver of the tort, for at the time to which the offered evidence relates no tort had been committed. His reference must have been to a waiver of the lien, and the offer clearly indicates that this was the purpose. The authorities are practically unanimous in holding that a mortgagee does waive his lien when he consents that the mortgaged property may be sold to a third person without reservation. (Fincher v. Bennett, 94 Ark. 165, 126 S. W. 392; Brandt v. Daniels, 45 Ill. 453; Reese v. Kapp, 82 Kan. 304, 108 Pac. 96; Littlejohn v. Pearson, 23 Neb. 192, 36 N. W. 477.)
In Bowers on Conversion, section 534, the general rule is stated as follows: “A general denial puts in issue the conversion of the goods, so that thereunder the defendant may prove any fact showing or tending to show that there' was no conversion; thus it may be proven under a general denial that the taking of the goods by the defendant was by permission of the plaintiff and according to an agreement between the parties.” To the same effect is the text in 26 R. C. L. 1145.
The offered evidence was admissible under the general denial and the court erred in excluding it.
Counsel for plaintiff now suggest that the purpose of the offered evidence was to establish an estoppel in pais, but that was not the theory advanced in the lower court, and on appeal counsel will not be heard to change the theory upon which the action was tried. (Raiche v. Morrison, 47 Mont. 127, 130 Pac. 1074.) Furthermore, the theory now advanced has no foundation in fact, for the offered evidence did not even tend to establish an estoppel (Wells v. Waddell, 59 Mont. 436, 196 Pac. 1000; Estate of Nix, 66 Mont. 559, 213 Pac. 1089), and there is not anything in the record to indicate that defendant relied upon that defense. On the contrary, the record discloses affirmatively that such was not the case.
It is argued further that the offered evidence did not go further than to establish a conditional waiver, and this upon the theory that the bank agreed to the purchase only on condition that its name should appear as a payee on the checks. But we are unable to so construe the language. The offer in its entirety reads as follows: ‘ ‘ The defendant Occident Elevator Company now offers to prove by the witness J. S. Nicholson, upon the stand, as follows, to wit: First, that prior to the dates of the alleged acts of conversion pleaded in the complaint in this action, the said J. S. Nicholson, who was then and there the agent and representative of the Occident Elevator Company at Molt, Montana, had a conversation with one Lester B. Koons, who was then and there the cashier and an officer of the Citizens’ National Bank of Laurel, in which the said Lester B. Koons, said to the said J. S. Nicholson that the Citizens’ National Bank of Laurel wanted Mr. Nicholson to put the name of the bank on any checks that were given to G. A. Starkweather in payment of grain of Starkweather delivered at the elevator; that Nicholson replied that he would do so, and further said to Mr. Koons, ‘What shall we do about the threshing and other expense in connection with this grain! Starkweather had been in to see me and wants some of the money for that purpose.’ To which Mr. Koons replied: ‘It will be perfectly satisfactory to the bank,’ or words to that effect, ‘for you to pay to Mr. Starkweather enough to take care of this expense.’ ”
While the language of the offer is not as explicit as it might be, the meaning appears to be reasonably plain. If in the first portion of this conversation the parties had in contemplation that the elevator company would purchase the entire crop subject to the mortgage, the reason for the bank’s request is perfectly apparent, for, if the cheeks given for the purchase price were made payable to Starkweather and the bank jointly, then the bank could see that the money was applied to the discharge of the indebtedness due it, for the negotiation of the checks would require the indorsement of both payees. (See. 8448, Rev. Codes.) If, however, the parties contemplated that the elevator company would purchase only so much of the grain as was necessary to defray the expenses, then the agreement that the bank’s name should be written in as a payee is meaningless and purposeless, since the money for that portion of the grain was to go to Starkweather directly and to be used for a purpose other than the payment of the debt due the bank.
We think the only fair construction of the language is that in the first instance the parties contemplated that the entire crop would be purchased by the elevator company, and the agreement that the bank’s name should appear as a payee was predicated upon that assumption. When, however, it was later suggested in the same conversation that the threshing and allied expenses required immediate attention the special agreement was made that, for the portion of the crop necessary to meet those expenses, the purchase price should -be paid to Starkweather directly, which would have authorized payment to be made in cash or by cheeks payable to Starkweather only.
What has been said with reference to the first offer of proof is applicable equally to the third and fourth offers.
The evidence sought to be introduced by the second offer appears to be altogether immaterial, and the ruling upon it was clearly correct.
3. While it appeared that Starkweather did not hold the legal title to all of the land upon which the mortgaged grain was grown, we think the evidence is sufficient to show that he had such interest in the grain itself that he could give a valid mortgage upon it.
The judgment is reversed and the cause is remanded for a new trial.
Reversed and remanded.
Mr. Cheep Justice Callaway and Associate Justices Rankin 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. CHIEF JUSTICE CALLAWAY
delivered the opinion of the court.
By this proceeding relator seeks a writ of supervisory control designed to annul an order of the district court denying his motion for a change of place of trial.
Suit was brought' in Valley county against the defendant as sheriff of McCone county. Summons was served upon him in McCone county. If the defendant, sued as he was in his official capacity, pursued his statutory remedy he was entitled to have the case tried in the county of which he was a public officer. (Sec. 9094, subd. 2, Rev. Codes 1921.) At the outset we are confronted with the question whether he did sufficiently comply with the statute. The record discloses that within twenty days1 after the service of summons upon him he filed what purported to he an affidavit of merits, and with it a notice in which, through his counsel, he advised the plaintiff and plaintiff’s attorneys that upon a date named, “or as soon thereafter as counsel could he heard,” he would move the court for an order changing the place of trial of the action from Valley county to McCone county. With the notice of motion he filed also- what he denominated a “motion” which conformed in substance to the language of the notice of motion.
In section 9097, Revised Codes of 1921, it is provided: “If ■the county in which the action is commenced is not the proper county for the trial thereof, the action may, notwithstanding, be tried therein, unless the defendant, at the time he appears and answers or demurs, files an affidavit of merits, and demands, in writing, that the trial be had in the proper county.”
The next section (9098) provides- that the court or judge must, on motion, change the place of trial when the county designated in the complaint is not the proper county. These are companion statutes and must be construed together. (Danielson v. Danielson, 62 Mont. 83, 203 Pac. 506.) The litigant seeking a change of place of trial under these sections must, first, file an affidavit of merits and a demand in writing; second, apply to the court for an order changing the place of trial. These movements, mentioned, as first and second above, are distinct and separate; also indispensable and imperative, in the absence of an agreement of the parties.
California and Nevada have statutory provisions similar to our own and such seems to have been the consistent holding of the appellate courts of those states.
The supreme court of Nevada, in Elam v. Griffin, 19 Nev. 442, 14 Pac. 582, held that the district court -erred in changing the place of trial from one county to another where no demand in writing was made as contemplated by their statute. The court opined that the object of the demand is to allow the plaintiff an opportunity of voluntarily correcting his error by stipulation or otherwise without the expense and delay of a motion. There is reason for the opinion, for we all know that it may happen in a district where court is held but four times a year, that several weeks, sometimes as much as three months, may elapse before a litigant moving for a change of place of trial will have an opportunity to present his motion to the court.
In Estrada v. Orena, 54 Cal. 407, the defendant filed an affidavit of merits but not any demand in writing though he filed with the affidavit a notice that upon a certain day he would move for a change. .The supreme court held that to entitle a defendant sued in the wrong county to a change of place of trial, demand in writing must be made as required by section 396 of the California Code of Civil Procedure, saying the notice of motion was not a demand. (Byrne v. Byrne, 57 Cal. 348; Hanna v. DeKoch, 52 Cal. App. 389, 198 Pac. 1006.) In the last case cited the court said: “The statute specifically requires that, in addition to the moving papers, a demand be made (Code Civ. Proc., sec. 396; Pennie v. Visher, 94 Cal. 323 [29 Pac. 711]), and we cannot legislate the provision out of existence.”
The filing of the affidavit and demand do not operate ipso facto to change the place of trial. The court can act only upon motion. (Sec. 9098, supra; State ex rel. Gnose v. District Court, 30 Mont. 188, 75 Pac. 1109.) It “cannot change the place of trial sua sponte.” (Danielson v. Damielson, supra.) “The change can only be effected through an order of the court after its judicial action has been invoked, by bringing the matter on for hearing where the right of the defendant to the transfer can be contested by the plaintiff.” (Bohn v. Bohn, 164 Cal. 532, 129 Pac. 981.)
Notice of the motion must be given by the moving party to his adversary in writing under the provisions of section 9778, Revised Codes of 1921. The notice must apprise the adversary that the movant will at a time and place make application to the court or judge for an order changing the place of trial, and should state with reasonable certainty the grounds of the motion. “An application for an order is a motion.” (Sec. 9772, Rev. Codes 1921.)
As has been adverted to above there is a clear distinction between the filing of the affidavit and demand and the notice of motion; a notice of motion does not supply the defect caused by failure to file the demand.
The notice of motion need not be filed simultaneously with the affidavit and demand (Lundy v. Lettunich, 501 Cal. App. 451, 195 Pac. 451), though of course it must be served and filed within a reasonable time thereafter; at least soon enough so that the applicant for a change of place of trial may not successfully be accused of laches. While a notice of motion stating the grounds upon which the motion is to be made will serve every purpose under our Code, it is common practice for one to file with his notice of motion a statement in writing of the motion he intends to make. The practice was recognized and approved in Wallace v. Lewis, 9 Mont. 399, 24 Pac. 22, in which the court said: “The grounds of the motion are often required to be stated in writing, and filed.” “The motion is thus preserved in the exact form which counsel desire 'to give it.” But “the motion itself is the application to the court, for the court must be moved to grant the order and when so moved the proceeding is a motion.”
Here counsel for defendant followed the course above indicated: He filed his notice of motion in which, however, he stated the grounds upon which he proposed to move the court for an order changing the place of trial of the action from Valley county to McCone county, and also filed a “motion” in which the same grounds are set forth and in practically identical words. The two were companion documents and did not purport to serve any purpose other than the procure ment of the order. The “motion” was not a demand either in form or in substance. The idea that either the notice of motion or the motion served to supply the demand in writing required by the statute is illusory.
One reason why we entertained the application for a writ of supervisory control in this case was1 based upon the assertion of counsel for relator that in view of certain language appearing in Feldman v. Security State Bank, 62 Mont. 330, 206 Pac. 425, the defendant in the event of an adverse judgment might not be accorded any remedy by appeal. In that case the court, after recognizing the rights of parties defendant in actions on contract to have a case removed to the county in which the contract is to be performed said: “Although such is the settled law in this state, we would have no hesitancy in this instance in affirming the judgment, the case having been once fully and fairly tried, but for the fact that the evidence is in conflict, and it is difficult to ascertain how the jury arrived at the amount of the verdict.” The quoted language is now expressly disapproved. There can be no doubt that when a defendant is entitled to a change of place of trial, has correctly pursued the statutory remedy afforded him to bring it about, and his application therefor has been denied, the order of denial constitutes error which ordinarily will compel the reversal of any judgment rendered in that action against him. It is doubtful if such error can be cured. We doubt if it can be in the absence of an express, intentional and unqualified waiver of the error.
So that, in the instant case, had the court erred against the defendant, in the event of a judgment against him-he was afforded a remedy by appeal. Further discussion upon this phase of the case is unnecessary.
By reason of the fact that the relator in omitting to file a demand in writing did not pursue his statutory remedy he was not entitled to a change of place of trial and the court correctly denied his application therefor.
The application for a writ of supervisory control is denied and the proceeding dismissed.
Dismissed.
Associate Justices Rankin, Holloway and Stark concur.
Mr. Justice Galen, absent on account of illness, did not hear the argument and takes no part in the foregoing decision.
|
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] |
HONORABLE JOSEPH R. JACKSON, District Judge,
sitting in place of MR. CHIEF JUSTICE CALLAWAY, disqualified, delivered the opinion of the court.
The American Bank & Trust Company, a state banking institution, with its place of business at Great Falls, Montana, and a capitalization of $225,000, divided into 2,250 shares of stock, each $100, failed to open for business on December 3, 1921, and has since remained closed. All the defendants, except those appearing as administrators, were on that date stockholders in various amounts; On January 6, 1922, the attorney general filed a petition in the district court of Cascade county, praying that a receiver be appointed for the bank. On January 7 the court appointed, upon nomination of the superintendent of banks, Mr. A. W. Springhorn as such receiver. On June 7, 1923, the receiver filed his petition in the district court of Cascade county, requesting, among other things, and giving reasons therefor, that the court make an order directing an assessment and collection from all stockholders of their full statutory liability. On the same day the court levied an assessment on all of the stockholders of the bank to their full statutory liability, and ordered the receiver to collect by suit or otherwise. Thereafter, and prior to June 30, 1923, several of the stockholders voluntarily paid the amount assessed. Against those who refused payment this action was instituted and tried by the court sitting without a jury. At the hearing the complaint of the attorney general praying for the appointment of a receiver, the order, appointing plaintiff, the oath filed by him, the petition requesting the assessment, the order for the assessment, and notice of assessment sent by registered mail to each stockholder, were received in evidence over defendants’ objections. The record then shows that no appeal was ever taken from either order, and that defendants had not paid the amounts assessed against them. The stock certificate book of the bank was received, showing stock certificates issued to all of the defendants for the respective amounts alleged in the complaint. This constituted plaintiff’s evidence.
On behalf of the defendant Hagenson the order of publication of notice to creditors, the affidavit of publication, and the decree showing . that due and legal notice to creditors was given, were placed in evidence, and it was agreed that no claim had ever been filed by the receiver in the Hagenson estate. The rest of defendant’s evidence showed that there had been but one complaint filed by the attorney general against the bank and that no process had issued thereon. Defendants’ motion for nonsuit was denied, proposed findings submitted, and thereafter the court ordered judgment for the plaintiff, from which this appeal is taken.
A motion to dismiss the appeal of defendant Charles Gies on the ground that subsequent to the perfecting of his appeal he had paid the judgment in partial satisfaction, and promised to pay the balance, having been duly served and filed, and no objection appearing, is granted, and his appeal is dismissed.
Sixteen specifications of error are assigned, all of which may be disposed of in testing the sufficiency of the complaint and determining the nature of the cause, with the exception of two in which the defendant Hagenson is alone concerned.
The action was brought under Chapter 9 of the Session Laws of 1923, which provides: “In cases where a bank is liquidated by a court through a receiver, the receiver may by order of the court institute and maintain appropriate suits or actions in the courts of this state on behalf of the creditors of the bank against stockholders for the recovery and collection of stockholders’ liability. Any money paid to the receiver by a stockholder, in whole or partial satisfaction of his liability, shall not be deemed paid voluntarily, but shall give the stockholder the same protection, to the extent of the amount paid, as if the payment were made after suit brought by the receiver. The receiver is authorized and empowered to receive and receipt for any and all amounts due and collected from stockholders, and shall from time to time, under order of the court, distribute the amounts so collected without diminution to the creditors of the bank in this section enumerated.”
It is urged that the complaint does not state a cause of action, in that it does not allege that the bank was a party to the proceedings in which the plaintiff was appointed receiver, nor that the bank is being liquidated by the court, nor the amount of the debts of the bank, nor the indebtedness of the bank, nor that its insolvency has been judicially determined, nor are other facts alleged from which it appears that the court had jurisdiction to appoint the plaintiff or make the assessment, and also that it does not allege facts bringing it within the principles of Barth, v. Pock, 51 Mont. 432, 155 Pac. 282.
The complaint sets forth that the receiver was appointed by an order duly given and made by the district court of the eighth judicial district of the state of Montana, and that “on or about the seventh day of June, 1923, upon a proper proceeding before the district court of the eighth judicial district of the state of Montana, in and for the county of Cascade, in the matter of the above receivership, the said court duly found, made and entered its order therein that it was necessary in order to pay the debts and the liabilities of said American Bank & Trust Company, that the full amount of the statutory liability be collected from the stockholders of said bank and each thereof, a copy of which said order is hereto attached, marked Exhibit ‘A,’ and by this reference made a part hereof.” The order made a part of the complaint by reference shows on its face to have been made in the receivership proceedings, and discloses that the bank is a party .defendant in the petition. That an exhibit may be considered as part of the pleadings needs no citation of authorities. Beyond any shadow of doubt the complaint shows the bank was a party to the receivership proceedings, and there is nothing in the record to suggest it did not appear voluntarily.
The objection that the complaint does not show that the bank is being liquidated by the court is utterly without merit. Outside the general receivership proceedings, in which court action and supervision are contemplated, there are two methods for the liquidation of a bank: (1) Through voluntary liquidation under supervision of the state banking department; and (2) through the appointment of a receiver in a court action brought by the attorney general. The complaint clearly shows that this action is under the latter. No other construction can be had of the complaint together with the attached exhibits.
As to the insolvency of the bank, its indebtedness, liabilities, and the amount of the assessment, all were determined in the receivership proceedings, and, since no appeal has ever been taken therefrom, the correctness of the determination of the court may not be questioned herein. (Sec. 10558, Rev. Codes, 1921.) The order is conclusive and binding on the stockholders. (Hotvarth v. Lombard, 175 Mass. 570, 49 L. R. A. 301, 56 N. E. 888; Lynch v. Jacobsen, 55 Utah, 129, 184 Pac. 929; Hanson v. Soderberg, 105 Wash. 255, 177 Pac. 827.)
There is certainly no allegation bringing this case within the principles of Barth v. Pock, supra, nor should there be. That was a suit brought by creditors for themselves and all other creditors against the stockholders of the State Savings Bank, and was no part of the receivership proceedings. The statute, Chapter 9, Session Laws of 1923, undoubtedly was passed to avoid the necessity of a creditor’s action. While this law was enacted subsequent to the failure of the American Bank & Trust Company, its nature is remedial, and does not concern any rights the defendants possessed. The stockholders have no vested right in any particular method or procedure or against the adoption of any new method for enforcing their liability. (12 C. J. 977; Moore v. Ripley, 106 Ga. 556, 32 S. E 647; Persons v. Gardner, 42 App. Div. 490, 56 N. Y. Supp. 822, 59 N. Y. Supp. 463; Henley v. Myers, 215 U. S. 373, 54 L. Ed. 240, 30 Sup. Ct. Rep. 148 [see, also, Rose’s U. S. Notes].)
The complaint is proof against the objections urged.
The trial court held that this action is in equity, and with it we must agree. The record shows there was not a single question of fact for decision by a court or jury. The matters raised by defendants were entirely questions of law. In a situation of this character we fail to see where any “right to trial by jury” was lost. Our statute, Chapter 9, supra, constitutes the receiver “the representative and quasi assignee of the creditors of the bank.” (Corwin v. Settergren, 70 Mont. 535, 226 Pac. 522.)
This action is for the recovery of money for the benefit of all creditors, and the stockholders’ liability is in the nature of a trust fund. (Bailey v. Tillinghast, 99 Fed. 801, 40 C. C. A. 93.) In Alsop v. Conway, 188 Fed. 568, 575, 110 C. C. A. 366, 373, it is said: “The suit below was thus essentially a proceeding for the collection, administration, and distribution of the trust fund. Such proceeding is properly brought in equity.” The action is in aid of the receivership, and equity controls and disposes of the accumulated fund.
It cannot be gainsaid that a multitude of actions at law would be necessary, should the receiver be compelled to sue all of the eighty-one defendants separately. The enormous cost entailed, and the time consumed, would be appalling. This, ■in connection with the other factors in the action, is, indeed, a persuasive argument in favor of equity jurisdiction.
To justify the interference of equity it must appear that such action will promote justice, and that all rights involved can be as well protected in the equity suit as in the separate action. Sustained in well-reasoned logic, we quote from Pomeroy on Equity Jurisprudence, fourth edition, section 269: “Under the greatest diversity of circumstances, and the greatest variety of claims arising from unauthorized public acts, private tortious acts, invasion of property rights, violation of contract obligations, and notwithstanding the positive denials by some American courts, the weight of authority is simply overwhelming that the jurisdiction may and should be exercised, either on behalf of a numerous body of separate claimants. against a single party, or on behalf of a single party against such a numerous body, although there is no ‘common title,’ nor ‘continuity of right,’ or ‘interest in the subject matter,’ among these individuals, but where there is and because there is merely a community of interest among them in the questions of law and fact invoked in the general controversy.
“The objection which has been urged against the propriety or even possibility of exercising the jurisdiction, either on behalf of or against a numerous body of separate claimants, where there is no ‘common title,’ or community ‘of right,’ or ‘of interest in the subject matter,’ among them, is that a single decree of the court cannot settle the rights of all; the legal position and claims of each being entirely distinct from that of all the others, a decision as to one or some could not in any manner bind and dispose of the rights and demands of the other persons, and thus the proceeding must necessarily fail to accomplish its only purpose — the prevention of further litigation. This objection has been repeated as though it were conclusive; but like so much of the eo-called ‘legal reasoning’ traditional in the courts, it is a mere empty formula of words without any real meaning, because it has no foundation of fact — it is simply untrue; one arbitrary rule is contrived and then insisted upon as the reason for another equally arbitrary rule. The sole and sufficient answer to the objection is found in the actual facts. The jurisdiction has been exercised in a great variety of cases where the individual claimants were completely separate and distinct, and the only community of interest among them was in the question at issue and perhaps in that kind of relief, and the single decree has without any difficulty settled the entire controversy and determined the separate rights and obligations of each individual claimant.”
The ease of Lynch v. Jacobsen, supra, is so fitting to our view in this instant action that we quote:
“In case, therefore, where it is manifest that a bank is insolvent it is to the best interests of all concerned that its debts be paid at as early a date as possible, and that the assets of the bank be not unnecessarily and unreasonably sacrificed by a forced conversion into cash at any price. The courts should exercise their full power in safeguarding, preserving, and protecting the rights of all the interested parties, stockholders as well as creditors, and require the receiver to proceed with reasonable expedition, but with fairness and justice to all. If such be done the method or nature of the proceedings to collect the stockholders’ additional liability becomes of secondary importance. It therefore seems to us quite needless to waste time or energy respecting what the character or nature of the proceedings should be so long as the rights and interests of both the creditors and stockholders are preserved and protected. Moreover, this court has repeatedly held that under our Constitution all forms of action are abolished. That instrument explicitly directs, ‘There shall be but one form of civil action, and law and equity may be administered in the same action.’ Why, then, longer quibble about what the form or nature of an action shall be? Under the foregoing constitutional provision the only question that should arise in any case is what relief, and the extent thereof, the complaining party may be entitled to under the law when applied to the conceded or established facts in the case. True, there are still equitable as contradistinguished from legal rights and remedies. Neither the rights nor the relief to which the litigants may be entitled, however, depend upon the form or nature of the action, but are entirely dependent upon the nature or character of the facts and the law applicable thereto. In this case, therefore, we see no reason whatever why, as a matter of economy and convenience, if for no other reason, the receiver may not sue as many of the stockholders in one and the same action as may be most convenient for all concerned. Nor do we see why he should not sue all the stockholders in one action if he can obtain legal service upon them or if they voluntarily appear. Nor do we see why a stockholder, in case he is sued separately, may not ask that his case be heard in connection with other cases in case such a course would not prejudice the rights of others. We can well understand that, in view that there may be stockholders who have defenses that are not common to all stockholders, such stockholders may desire to try their cases separately. That, it seems to us, however, is no reason why all the stockholders within the jurisdiction of the court may not be sued in one action. If it should appear that they might, or some of them might,.be prejudiced by a joint trial, the court should grant them separate trials or hearings. All that may be done in conformity with our procedure and without sacrificing the rights or interests of any one. Nor should such a course prevent any stockholder from appealing to this court separately. We are of the opinion, therefore, that the defendant’s contention that he, as a matter of right, may demand to be sued jointly with all other stockholders, or that any stockholder may, as a matter of right, demand to be sued separately, or that he may only be sued by a creditor or by several creditors, is not well founded. Each stockholder may, however, have his rights protected as hereinbefore stated. ’ ’
On behalf of Hagenson, administrator, it is urged that the complaint does not state a cause of action, since it is not alleged therein that a claim had been presented to the administrator and rejected, and also that the proof affirmatively shows that no such, claim had ever been presented. It is true that no claim was ever presented against the estate of Hagenson, deceased, although there had been time within which it might have been.
Chaptejr 9, Session Laws of 1923, provides in part: “No person holding stock as executor, administrator, guardian, or trustee, * * * shall be personally subject to any liability as stockholder in such corporation; but * * * the estate and funds in the hands of such executor, administrator, guardian, or trustee, shall be liable in like manner and to the same extent as the testator, intestate, ward, or the person interested in such fund would have been liable if he had been living or competent to act and hold the stock in his own name.”
Section 9690, United States Compiled Statutes (Eev. Stats., sec. 5152) provides: “Persons holding stock as' executors, administrators, guardians, or trustees, shall not be personally subject to any liabilities as stockholders; but the estates and funds in their hands shall be liable in like manner and to the same extent as the testator, intestate, ward, or person interested in such trust funds would be, if living and competent to act and hold the stock in his own name.”
The practical identity of the two sections is apparent. The defendant Plagenson holds stock as administrator within the meaning of the above Chapter. (Sec. 5947, Rev. Codes, 1921; Gow v. Cascade S. M. & M. Co., 66 Mont. 488, 213 Pac. 1092.)
The federal statute, practically identical with our own, has been several times construed by the federal courts, and we approve and adopt the law with respect to- the interpretation of our statute, as has been made applicable to the federal statute in the case of Zimmerman, v. Carpenter (C. C.), 84 Fed. 747: ‘£ There is a plea of the statute of limitations contained in the -answer, based upon the statute of the state of South Dakota regulating the time in which claims should be presented for allowance or rejection against the estate of decedents. By virtue of said statute and the order of the county court of the county of Minnehaha, the time within which a claim could be presented against the estate of Charles C. Carpenter, deceased, expired December 28, 1895, The bank failed November 23, 1896. The assessment was made February 4, 1897, and became due March 4, 1897, long after the expiration of the time limited for the presentation of claims against the estate of Charles C. Carpenter, deceased. While it is insisted that the claim is barred, it is as earnestly insisted that proper practice requires that the question whether the claim is barred or not should be left to the county court of Minnehaha county to determine; following the practice in Wickham v. Hull, 60 Fed. 326. If this court was of the opinion that the decision of this case required the court to construe a state statute, it would do so; but, it being of the opinion that it is not necessary so to do, it will proceed to dispose of the case upon the only grounds that to it seem tenable. Any theory upon which it is sought to maintain that the claim here attempted to be enforced is an ordinary claim against the estate of Charles C. Carpenter, deceased, to be presented and allowed in the manner required by the laws of the state of South Dakota, -and, if not so presented and allowed, to be forever barred by the statute of nonclaim of said state, involves a total misconception of the object, meaning, and effect of sections 5151, 5152, Rev. Stats. U. S.
“Section 5151 provides: ‘The shareholders of every national banking association shall be held individually responsible equally and ratably, and not one for another, for all contracts, debts and engagements of such association, to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such shares. ’
“Section 5152 provides: ‘Persons holding stock as executors, administrators, guardians or trustees, shall not be personally subject to any liabilities as stockholders, but the estates and funds in their hands shall be liable in like manner and to the same extent as the testator, intestate, ward, or person interested in such trust funds would be, if living and competent to act and hold the stock in his own name. ’
“Now, it was not necessary for Congress to provide by law that the estates of decedents should be liable for the debts of deceased persons. That result would follow irrespective of section 5152. But Cougress intended to, and did, provide that the estate of the testator or intestate, in the hands of an executor or administrator, should be liable in like manner, and to the same extent, as the testator or intestate would be if living, and competent to act, and hold the stock. By the language of the section last referred to, the death of the testator or intestate does not in any way affect the liability of the estate of the testator or intestate, except, if no liability on the stock arises until after the estate is fully distributed, then there would be no estate to be charged.” To the same effect are Rankin v. Miller (D. C.), 207 Fed. 602; 7 C. J. 773, 774, and the cases there cited.
The judgment appealed from is accordingly affirmed.
Affirmed.
Associate Justices Holloway and Stark, Honorable Vm. H. Poorman, District Judge, sitting in place of Mr. Justice Rankin, disqualified, and Honorable Frank P. Leiper, District Judge, sitting in place of Mr. Justice Galen, disqualified, concur.
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MR. JUSTICE MATTHEWS
delivered the opinion of the court.
J. E. Mott was convicted of the crime of permitting a game of stud-horse poker to be played for money, checks, etc., in his place of business at Billings, on March 24, 1924. His appeal is from the judgment and from an order overruling his motion for a new trial.
Appellant has made twelve assignments of error: Nos. 1, 2, 3 and 4 deal with a series of questions on cross-examination, all referring to the same subject matter*, and will be treated jointly; No. 5, with impeachment testimony; and No. 6, with the admission of certain evidence in rebuttal. No. 7 assigns error in denying a motion for a directed verdict; Nos. 8, 9, 10 and 11 deal with instructions; and No. 12 is based on the order overruling motion for a new trial.
The place of business involved is known as the Brunswick pool-hall, though there is neither pool nor billiard-table therein. It consists of a street floor and basement. The front is occupied on the one side by a cigar-stand and on the other a soda-fountain and small office partially separated from the rear by an archway. Back of the arch the room is furnished with tables and chairs for card games, and the rear is used as a restaurant. The basement is reached through a door in the corner back of the restaurant. The basement is divided into three parts, so that in traversing it one passes through an intermediate door and room, then through a door leading into a small room in which one or two tables are installed for card-playing. It was in this small basement room that the game complained of is alleged to have been played.
1. Mrs. J. E. Mott testified, on direct examination, that she was in charge and conducted the business in the absence of her husband, who operated a ranch. This condition had existed for something like three years prior to March 29, 1924. She likewise testified, in chief, that the room back of the archway was devoted to card-playing, the men playing rummy, cribbage, checkers or anything they saw fit, and that a day man and a night man were employed to “run the card games.” Speaking of the tables downstairs, she said, “Those were conducted in the same way.” Having so testified, on cross-examination the witness was interrogated as to the manner in which the games were conducted and her knowledge thereof. These questions form the basis for assignments Nos. 1, 2, 3 and 4, and are as follows: “Q. And do you know what they do back there? (No answer.) Q. And what do you say they do with the chips? A. Well, don't know how they handle the games. I just issue those chips and the men look after the games. Q. Do you handle the money? A. Yes.”
The court then inquired what these chips referred to were, eliciting the information that they were brass checks stamped, “Good for twenty-five cents in trade,” redeemable in any merchandise sold in the place of business. Further cross-examination brought out the fact that the witness issued the checks in bulk to the men in charge, charging them with the amount thereof, and receiving back either checks or money to the amount thereof at closing time; that no particular men had charge of the games in the basement, hut “just some one of the players.” To this line of cross-examination appellant interposed the general objection that the same was immaterial, improper cross-examination, and would tend to prejudice the jury by attempting to establish the commission of a crime other than the specific offense charged.
While the cross-examination was on matters not directly material to the charge, they' were connected therewith and tended to enlighten the jury as to the knowledge of the witness and her credibility on matters directly in issue.
Section 10665, Revised Codes of 1921, provides that “The opposite party may cross-examine the witness as to any facts stated in his direct examination or connected therewith,” etc. And this court has properly said: “The right of cross-examination is a substantial one and may not be unduly restricted. It may extend not only to facts stated by the witness in his original examination, but to all other facts connected with them which tend to enlighten the jury upon the question in controversy.” (State v. Biggs, 45 Mont. 400, 123 Pac. 410.)
The rule is laid down in Cyc. that “One who has brought out improper testimony on the examination in chief of his witness cannot complain of the cross-examination of the witness on the same subject.” (40 Cyc. 2496.)
By her examination in chief as to the manner in which the games played were conducted, coupled with her positive statement that there was never any gambling in the place, counsel opened the door and invited cross-examination as to the manner in which the games were conducted and as to her knowledge of what took place on the premises, in order that the jury might determine the credit to be given to her statement concerning gambling, and the inquiry complained of became a legitimate exercise of the right of cross-examination.
2. Again, Mrs. Mott testified on direct examination, that she closed the place at midnight or shortly thereafter, leaving the porter in charge, and that when she left no customers were allowed to remain, except, occasionally, those finishing a rummy game or two, which would take but a ■ short time. She was asked on cross-examination whether it was not a fact that boys came out of the place as late as 4:30' in the morning. She answered in the negative. On rebuttal one Holmes, a boy of sixteen was permitted, over objection that it was immaterial and improper rebuttal, to testify that such was the fact. The court permitted the answer on the statement of counsel that it went to the credibility of the witness.
Had the witness not testified as she did in chief, the cross-examination indicated and the rebuttal testimony would have been improper, as the subject matter was clearly collateral to the issues. (State v. Diedtman, 58 Mont. 13, 190 Pac. 117.) But the rule prohibiting rebuttal and impeachment on a collateral matter is confined to matters brought out on cross-examination. Wharton states the rule as follows: “The general rule is that when a witness is cross-examined- on a matter collateral to the issue, his answer cannot subsequently be contradicted by the party putting the question; but the limitation only applies to answers on cross-examination. It does not affect answers to the examination in chief.” (Wharton’s Crim. Evidence, 8th ed., sec. 484.) This distinction is recognized in the Diedtman Case, and in State v. McConville, 64 Mont. 302, 209 Pac. 987, relied upon by appellant.
While the question on rebuttal was similar to that asked on cross-examination, it was asked to bring out a statement directly contradicting the witness on her statement that the place closed at midnight or shortly thereafter, and that, when she left, no customers were left in the place, and tended to impeach her credibility and to show her lack of knowledge of happenings in and about the place. The evidence complained of was clearly admissible.
Where the facts thus brought out, as well as those hereto- fore discussed, had a tendency to show other crimes than the subject matter of the prosecution, the court should, of course, properly instruct the jury as to the purposes for which such evidence might be considered and that the defendant could only be convicted on proof of every material element of the identical crime charged; this the court did in its instructions Nos. 6, 7 and 8.
3. One Beardsley testified as to the physical conditions exist- ing in and about the basement card-room and, in this connection, that there was a “buzzer” or “alarm” just back of the representative of the house, connected by electric current to three push-buttons, one near the telephone upstairs, one in the office and one on the edge of the lunch counter, all in plain sight; that he had heard this system operated on two"occasions— once by Mott when he was having it repaired and on the occasion of a raid on the place.
Mott testified in Ms own defense that he had never seen such buzzer or push-buttons; there was no such system in the building and never had been.
On rebuttal a former proprietor of the place was permitted to testify, over objection, that he installed the buzzer system, and that it was in the building when he and his partner sold to Mott. "While the time referred to, perhaps six years prior to the date of the alleged crime, was remote, it directly contradicted Mott in his statement that there “never” had been such a system in the building, and, unlike a system in wMch the buzzer and push-buttons are reversed for the convenience of the players in calling the house, proof of such a system had a tendency to establish knowledge on the part of Mott as to what was taking place in the basement, and was directly, and not collaterally, connected with the issues involved. If the operations in that room were innocent, no such alarm system would be necessary.
What was said by this court in State v. Rose, 40 Mont. 66, 78, 105 Pac. 82, is pertinent here: “The testimony of witnesses as to the physical conditions in and about the building where the telegraph company conducted its business, both before and after its installation there, was competent. * * * TMs testimony served to illustrate the manner in which the business was carried on and the nature thereof.”
While this testimony might have properly been offered in the state’s case in chief, there was no occasion for doing so, but after Mott had contradicted the testimony of Beardsley, it was proper for the purpose of impeaching the witness.
4. Appellant contends that the evidence was insufficient to warrant the submission of the case to the jury. We have examined the evidence and find there is no merit in the contention.
5. Instruction No. 7, given, reads as follows: “You are in structed that evidence has been introduced in this case concerning gambling games testified to as having been played in and about the premises mentioned in the information, prior to the twenty-hinth day of March, 1924. This evidence may be considered by you for the purpose of determining whether or not the game charged in the information was played as a part of a scheme or plan of the defendant to permit gambling games to be played in and about the premises mentioned in the information, if such game was played, whether it was played in the course of business as it was conducted at said place by the defendant, and for the purpose of showing circumstances, which, if you find them to be true, might be considered by you in determining whether or not the defendant knowingly permitted the game alleged in the information to be played as charged therein. You must not consider this evidence of prior games for any other purpose than that stated in this instruction.” This instruction was objected to “for the reason that it is misleading and refers to the game being played in the course of business, which would mislead the jury so as to believe that if the game was played, notwithstanding that the defendant’s ordinary business was that of conducting a pool-hall, that it might permit them to find that he knew of the prohibited game; and that it attaches greater weight to and calls attention to this evidence, whereas it should specifically limit the jury’s consideration thereof to the purpose only of considering it as to whether or not there was a likelihood that the offense charged was committed; and it does not sufficiently caution the jury as to the purpose of such testimony.”
Evidence of the commission of like offenses is admissible for the purpose of showing that the act complained of was ‘ ‘ a part of a general plan or system pursued by him for evading the law.” (State v. Sylvester, 40 Mont. 79, 105 Pac. 86; State v. Pippi, 59 Mont. 116, 195 Pac. 556.)
While the instruction is not as concise as it might be, it fairly advises the jury that it may consider the testimony for the purpose of determining whether the act complained of was one of a series constituting a general plan or system employed in defendant’s business by which he permitted games of the nature of the one complained of to be played, and, if they found such to be the case, whether such facts warranted it in finding, beyond a reasonable doubt, that defendant did knowingly permit the game in question.
The court instructed the jury that they “must not consider this evidence for any other purpose than that stated in this instruction,” and abundantly cautioned them, in its instructions 6 and 8, that they could find the defendant guilty only of “knowingly permitting the precise and particular game” charged in the information. The instruction is not open to the objection urged.
6. Error is predicated on the court’s refusal to give defend ant’s offered instruction No. 5, commenting on the manner in which the jury should view the evidence of detectives employed for the purpose of securing evidence. "While it is proper to inquire, as was done in this case, as to the employment of a witness for such purpose, the manner and amount of his compensation, and what interest he may have in the outcome of the action, for the purpose of attacking his credibility as a witness (State v. Tudor, 47 Mont. 185, 131 Pac. 632), advantage of the facts thus brought out must be taken in argument, and they cannot be made the subject matter of an instruction.
Such an instruction has been condemned by this court in the following language: “Such an instruction is erroneous under any possible theory of this or any other ease. Our Code provides: ‘The jury, subject to the control of the court in the eases specified in this code, are the judges of the effect or value of evidence addressed to them, except when it is declared to be conclusive,’ etc. (Code Civ. Proc., sec. 3390 [now sec. 10672, Rev. Codes 1921], * * * It was the province of the jury to pass upon the weight of the evidence and the credibility of the witnesses, uninfluenced by any suggestion from the court as to the relative weight of the testimony of the different witnesses. * * * If it had been given, the court would have invaded the province of the jury.” (State v. Paisley, 36 Mont. 237, 92 Pac. 566.) To the same effect, see People v. Kilfoil, 27 Cal. App. 29, 148 Pac. 812; Copeland v. State, 36 Tex. Cr. 575, 38 S. W. 210; People v. Newbold, 260 Ill. 196, 103 N. E. 69; Salt Lake City v. Robinson, 40 Utah, 448, 125 Pac. 657; Jaynes v. People, 44 Colo. 535, 16 Ann. Cas. 787, 99 Pac. 325.
7. Appellant’s offered instruction No. 8 to the effect that, before the jury could convict the defendant, they must find beyond a reasonable doubt that he had knowledge of the particular game and, having such knowledge, permitted the same, was refused.
By its instruction No. 2, the court instructed the jury that they must so find on every material allegation of the information; by its instruction No. 6 that “you are at liberty to convict the defendant only for permitting the precise game charged * * * and no other game of stud-horse poker”; and by instructions Nos. 7 and 8 cautioned the jury that evidence of other games could be considered only for the purpose of determining whether the defendant “knowingly permitted a game of stud-horse poker to be played in his place of business on the night of March 29, 1924,” and could not “convict him of the crime charged merely because you may find that he permitted a game of stud-horse poker or any other gambling game at a different time,” etc.
We think the subject matter of the offered instruction was sufficiently covered in the instructions, and therefore no error was committed in refusing it.
8. Appellant’s offered instruction No. 9 pointed out with great particularity that, in order to convict, the state must prove beyond a reasonable doubt that the defendant did on the particular occasion permit the particular game charged in the information, and the jury were at liberty to convict only for the precise game charged, and that, “if you conclude that the defendant may have permitted” such a game on another occasion, this alone would not warrant a verdict of guilty. The court modified the instruction by adding, “but evidence concerning same may be considered by you, as defined in these instructions.” Assignment-No. 11 is that the. court erred in modifying the instruction, on the ground that it is repetition and emphasizes the value of that evidence.
While the addition was, perhaps, unnecessary, as the jury was so instructed in the following instruction, there was no prejudicial error in thus connecting the instruction up with what followed.
9. Appellant moved for a new trial upon the grounds form ing the bases of the assignments hereinbefore discussed, and upon the further ground of “newly discovered evidence.” In support of his motion appellant filed four affidavits, each to the effect that affiant was familiar with the premises prior to the sale to Mott, and never saw or heard a buzzer in the place. One of these affiants was a partner of the witness Benedict, at the time of the sale, who states that “to the knowledge of affiant” there never was a buzzer or system of wires operating the same, in that place of business. Appellant also filed his own affidavit and one by his counsel, stating that they were taken by surprise by this line of testimony and had no opportunity to secure the testimony of witnesses as set forth in the affidavits, prior to the close of the trial.
It must be remembered that Benedict was called in rebuttal, after both Mott and Mrs. Mott had testified that there never had been such a system in the building. The subject matter of the affidavits in support of the motion was therefore cumulative and impeaching.
The general rule is that, in order to warrant a new trial, the newly discovered evidence must be “(3) * * * so material that it would probably produce a different result upon another trial”; (4) must not be “cumulative merely— that is, does not speak as to facts in relation to which there was evidence at the trial; * * * . ” (6) nor such as only tends “to impeach the character or credit of a witness.” (State v. Matkins, 45 Mont. 58, 121 Pac. 881.) The exception to the rule that a new trial will not be granted where the newly discovered evidence is merely cumulative or impeaching being that, “where the impeaching evidence may demonstrate perjury in the witness upon whose testimony the verdict was founded and but for which conviction could not have been had,” a new trial- should be granted. (State v. Belland, 59 Mont. 540, 197 Pac. 841.)
Here the impeaching evidence set out in the affidavits goes to but one phase of the testimony tending to show knowledge on the part of appellant. Aside from the testimony concerning the buzzer system, tending by circumstantial evidence to show knowledge by the manner in which the business was conducted, there was an abundance of evidence, if believed by the jury, to show direct knowledge of the particular game, and that he not only permitted the game to be played, but assumed control over the men in charge thereof and supervision over the game itself. This testimony is to the effect that games of stud-horse poker wei’e played in the room in question almost continually, under a system where guards or watchmen were employed to pick the players, taking only those properly vouched for into the basement: that on the night in question Mott was personally present and, on the complaint that the party running the game was “losing the money,” became excited and took him out of the game, putting the man Roberts in charge! Roberts was the man who, according to the testimony of Church, sold to the complaining witness chips, took the rake-off and settled with players.
By his affidavit, counsel for appellant calls attention to the fact that the jury were permitted to view the premises, and states that the jurors made a careful examination of the place where witnesses testified the buzzer was installed. If Beardsley’s testimony was not truthful, such examination should have refuted it without the testimony of these affiants.
In our opinion the “newly discovered evidence” was not sufficient to warrant the granting of a new trial: First, because it is merely cumulative and impeaching; and, second, because it does not fulfill the requirement that it be “so material that it would probably produce a different result upon another trial.”
Rehearing denied February 26, 1925.
No substantial error appearing in the record, the judgment "and order appealed from are affirmed.
Affirmed.
Mu. 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 tabes no part in the foregoing decision.
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] |
MR. JUSTICE MATTHEWS
delivered the opinion of the court.
In March, 1919, respondent filed its complaint, stating two separate causes of action, the first on a promissory note for $10, the second on a note for $50. Answering, appellant admitted the execution of the notes and set up an affirmative defense, which was denied by reply. After two mistrials the cause was tried to a jury and verdict rendered for appellant on the first cause of action, and for the respondent on the second cause of action. Each party filed a memorandum of costs, and each moved to tax costs. The trial court held that neither party was entitled to recover costs, and a judgment was entered for respondent for $50, with interest, but without costs, and judgment for appellant according to the verdict. Respondent appealed from the judgment against it, but did not appeal from the judgment in its favor. On the appeal the judgment was reversed and the cause remanded, for a new trial. (First State Bank of Thompson Falls v. Larsen, 65 Mont. 404, 211 Pac. 214.) Remittitur was filed on January 24, 1924.
Some time in February, 1924, the cause was set for trial for March 4, 1924, and the clerk of the court notified the attorney of record for appellant, then residing in Missoula, of the setting. On February 13 counsel notified appellant at Thompson Falls. On March 4 the cause was regularly called for trial. The respondent and its counsel, being present, announced that they were ready; but neither appellant nor his counsel appeared. Respondent thereupon waived jury trial and submitted' its proof on each of the causes of action set out in the complaint. The court announced its finding for the respondent, and caused judgment to be entered for tbe full sum of $518.50, with $291.49 costs and $150 attorney’s fees.
On March 17, 1924, appellant through his present counsel moved to vacate and set aside the judgment on the ground of his mistake, surprise and excusable neglect. In his affidavit in support of the motion appellant sets up the letter received from his attorney of record in the case and a copy of his reply thereto, and alleges that he had had no notice of the reversal of the former judgment, and assumed that the “trial” referred to by his counsel was the hearing on appeal in Helena. In his reply he asks his counsel whether it would be necessary for him to go to Helena and, in answer to a suggestion that he go to Missoula to talk over the case, promised to do so “within ten days.” He further states that he wrote a second letter, but received no reply to either, and assumed that it was not necessary for him to go to Helena.
The motion was denied. Thereafter appellant moved the court to modify the judgment by striking out the items of costs and attorney’s fees. This motion was also denied. Before the motion was submitted, however, on motion of respondent and over the objection of appellant, the court corrected the minute entry of March 4, 1924, to show what took place on the calling of the case.
The appeal is from the judgment and from certain special orders made after judgment in denying appellant’s several motions. The specifications of error are:
(1) The judgment cannot be sustained in whole by the evidence, or any possible evidence.
(2) The court erred in giving judgment for the plaintiff and against the defendant.
(3) The court erred in denying and overruling defendant’s motion to vacate and set aside the judgment.
(4) The court erred in allowing plaintiff to recover costs.
(5) The court erred in denying plaintiff’s motion to vacate and modify the judgment by disallowing plaintiff’s costs.
(6) The court erred in allowing plaintiff to amend the minute ■ record of March 4, 1924.
1. Specifications 1 and 2 attack the judgment on the ground that respondent already had a judgment on its second cause of action. There is nothing in the record made before the court to show such fact. Respondent merely made formal proof of the execution and delivery of the notes, that it was then the legal owner and holder thereof and the amounts due thereon, with rate of interest, under the original allegations of the complaint. This proof made a prima facie case, entitling respondent to judgment.
Bes adjudicata is a matter of defense, and must be taken advantage of either in pleading or by proof. “Where a judgment operates as res judicata, certain steps to show its existence and effect must be taken in order that proper effect may be given to it. These steps consist of filing a proper plea or making an offer of the judgment in evidence.” (15 R. C. L. 1045, sec. 524, and cases cited.)
No amendment was made to the pleadings after the former trial and entry of judgment; no proof was introduced on the trial indicating that the case had ever been theretofore tried; nor was the matter brought to the attention of the trial court on the motion to vacate the judgment, or in any other manner, subsequent to the entry of judgment. The judgment was therefore not open to the attack made upon it.
2. The motion to vacate and set aside the judgment was made pursuant to the provisions of section 9187, Revised Codes of 1921, which reads, in part, as follows: “The court may, in furtherance of justice * * * in its discretion * * * relieve a party * * * from a judgment * * * taken against him through his mistake, inadvertence, surprise, or excusable neglect,” etc.
The showing made by appellant of his mistake as to the nature and place of the trial mentioned in the letter from his counsel might be excusable; but that showing also discloses neglect on his part in not going to Missoula to consult with Ms attorney as lie agreed, and in failing to ascertain whether his attorney was going to attend to the matter, after receiving no reply from his counsel, with no excuse offered for the neglect. Further, his own showing is of absolute neglect on the part of his attorney, with no attempt to explain or excuse such neglect. He does not .even show an attempt to secure an affidavit from his attorney as to whether or not the attorney received his letters, or why he did not appear at the trial.
The neglect of an attorney is attributable to, and is the neglect of, his client, and the client can only be relieved from the consequence of the attorney’s neglect on a showing which would excuse the client under like circumstances. (Thomas v. Chambers, 14 Mont. 423, 36 Pac. 814; Scilley v. Babcock, 39 Mont. 536, 104 Pac. 677; St. Germain v. Vollmer, 68 Mont. 264, 216 Pac. 788. See, also, note, 80 Am. St. Rep. 264.) The relief, or a denial thereof, lies within the discretion of the court, and a reversal of its order can only be had upon a showing of abuse of that discretion. (Pacific Acceptance Corp. v. McCue, 71 Mont. 99, 228 Pac. 761.) No such abuse has been shown.
3. Assignments 4 and 5 deal with the same subject matter; i. e., costs included in the judgment.
The only question presented to the trial court on appellant’s motion to vacate and modify the judgment was the legality of the inclusion in the judgment of the item of $291.49, costs.
(a) On the former trial, on motion to have the costs taxed as provided for in section 9803, Revised Codes of 1921, the court denied respondent its costs and entered judgment only for the principal of and interest on the note set out in its second cause of action. From that judgment respondent could have appealed, and had its right to costs determined. (King v. Allen, 29 Mont. 5, 73 Pac. 1107; Jones v. Great Northern Ry. Co., 68 Mont. 231, 217 Pac. 673.) This it did not do, and that judgment became final and conclusive against respondent’s right to recover costs incurred in the original trial. (Nelson v. Donovan, 16 Mont. 85, 40 Pac. 72.)
(b) On the appeal taken, respondent secured a reversal of the judgment in favor of appellant, and was entitled, without formal award thereof, to its costs on appeal, had it seen fit to claim them. (See. 9791, Rev. Codes 1921.) But section 9805 provides that: “Whenever costs are awarded to a party by an appellate court, if he claims such costs, he must, within thirty days after the remittitur is filed with the clerk below, deliver to such clerk a memorandum of his costs,” etc. It is true this court did not formally award costs in the former decision, but Rule XYII of this court provides that: “In all cases the costs of appeal shall be taxed against the unsuccessful party, unless otherwise ordered by this court. * * * ” The effect of the rule is “to award the costs to the successful party just the same as if a formal order was made in each case.” (State ex rel. Hurley v. District Court, 27 Mont. 40, 69 Pac. 244.)
(c) Again, on securing judgment in the trial court, respond- ent was entitled to its costs, had it again seen fit to claim them. (See. 9787, Rev. Codes 1921.) But, in order to claim such costs it was required by statute to file its memorandum of costs and serve a copy thereof upon the opposing party within five days after the decision of the court was made. (Sec. 9803, Rev. Codes 1921.) It is admitted in the record that no memorandum was filed either after the remittitur was filed with the clerk, or after the decision of the court on March 4, 1924.
The recovery of costs as such is regulated by statute, and the methód therein pointed out must be followed in order to claim them. (Orr v. Haskell, 2 Mont. 350; State ex rel. Riddell v. District Court, 33 Mont. 529, 85 Pac. 367; Barrick v. Porter, 56 Mont. 247, 184 Pac. 217; Gervais v. Rolfe, 57 Mont. 209, 187 Pac. 899.)
Having failed to file the memoranda required by the sections quoted, respondent was not entitled to have the amount of its costs included in the judgment. (Butte Northern Copper Co. v. Radmilovich, 39 Mont. 157, 101 Pac. 1078.) The court erred in denying appellant’s motion to strike the costs from the judgment.
4. The original minute entry of March 4, 1924, recites: “This action, having been set for trial at this time” plaintiff and its counsel appeared and “announced that plaintiff was ready for trial.” “The defendant not appearing, plaintiff waives jury trial and asks that the court hear the proof; default of the defendant was at this time ordered entered for want of appearance or answer.” Prior to hearing the motion to vacate the judgment, the court, on motion of respondent, corrected the entry, after the recitation of the appearance of plaintiff, to read: “Defendant not appearing in person or by counsel, and the court being advised by the clerk that written notice of the time and place of trial had been given * * “ the attorney of record, * * * and no reason or excuse being presented or offered to the court for the failure, * * * the court proceeded to the trial of said cause,” etc.
Appellant contends that the court had no authority to make the correction, and should have heard his motion on the record as it appeared at the time the motion was noticed. The original entry was inaccurate and a misstatement of the facts, in that it was thereby made to appear that no «answer had been filed, and that appellant was in default. The amendment did no more than to cause the entry to recite the facts as they existed at the time. Such an amendment is clearly within the province of the court. “In case of an omission or error in the record, the power exists in the court to amend such record so that it shall conform to the actual facts and truth of the ease.” (15 C. J. 975, sec. 395; Power & Bro., Ltd., v. Turner, 37 Mont. 521, 97 Pac. 950; Currey v. Butte Electric Ry. Co., 60 Mont. 146, 199 Pac. 243.)
The cause will be remanded, with direction to modify the judgment by striking therefrom the words and figures, “together with the sum of $291.49, costs,” and changing the amount of the total judgment from $959.99 to $668.50, and as modified tbe judgment will be affirmed. Respondent to pay one-half of appellant’s costs on appeal.
Modified and affirmed.
Mr. Chief Justice Callaway, Associate Justices Stark and Holloway and Honorable Lyman H. Bennett, District Judge, sitting in place of Mr. Justice Galen, absent on account of illness, concur.
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] |
OPINION:
PER CURIAM.
’The transcript in this cause was filed with the clerk of the court on October 23, 1924. On the twenty-third day of January, 1925, the appellant not having filed any brief, the attorney general moved to dismiss the appeal for that reason, basing his motion on paragraphs 4 and 5 of Rule X, rules of this court. However, we decided to hold the motion in abeyance until the time fixed for argument. Thereafter, on January 30, we assigned this cause for argument on February 13, 1925. "When on that day it was called for argument no one appeared for either appellant or respondent, the cause was ordered submitted for decision.
Section 12122, Revised Codes of 1921, provides: “The judgment may be affirmed if the appellant fail to appear, but can be reversed only after argument, though the respondent fail to appear.”
If the motion to dismiss the appeal be overruled and the terms of the statute be followed, the judgment must be affirmed.
As the same result will be reached in either case, the motion to dismiss the appeal is overruled and the judgment is affirmed.
Affirmed.
|
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
On October 7, 1897, J. D. Thomas and George P. Bretherton, minority stockholders in the Thornton-Thomas Mercantile Company, a corporation doing business at Butte, Montana, brought an action in the district court against that corporation for the purpose of having a receiver appointed to take charge of and wind up the business of the concern. The district court appointed one E. H. Hubbard as such receiver, who immediately took possession of the property, and upon the receiver’s petition the district court on October 19th made an order for the receiver to sell at once at public auction or private sale the personal property belonging to the corporation. It appears that pursuant to such order the receiver sold to Lutey Bros., appellants here, a portion of such personal property for the sum of $3,-241.19, which sum was paid over to the receiver, and by him deposited in the. bank of W. A. Clark & Bro., the respondents, in the name of E. IT. Hubbard, receiver; that thereafter on October 21, 1897, the Thornton-Thomas Mercantile Company applied to this court for a writ of certiorari to review the action of the district coitrt in appointing the receiver and in making the order of sale above mentioned; that the cause was heard in this court, and on November 15, 1897, this court rendered its judgment and decision reversing the order of the district court appointing the receiver, and vacating all orders of that court made subsequently thereto, including the order of sale above mentioned (State ex rel. Thornton-Thomas Mercantile Co. v. District Court, and Clancy, Judge, 20 Mont. 284, 50 Pac. 852); that on the 15th day of November, 1897, these respondents commenced an action in the district court against the Thornton-Thomas Mercantile Company to recover from said company the sum of $5,653.96, then due and owing to respondents from such company, and caused a writ of attachment to be issued and placed in the hands of the sheriff of Silver Bow county, who thereupon served notice of garnishment upon these respondents through Alex. J. Johnston, the cashier of the banking house of IV. A. Clark & Bro., and thereby attached said sum of $3,241.19, together with other moneys deposited in the name of E. 11. IJubbard, receiver, all aggregating the sum of $3,949.78; that while Lutey Bros, -were in possession of said personal property they sold and disposed of a portion thereof of the value of $415.85; that thereafter, on the 16th day of November, 1897, various other creditors of the Thornton-Thomas Mercantile Company brought actions in the district court against said company, and caused writs of attachment to issue therein, and caused said personal property remaining in the possession of Lutey Bros, to be attached, and the sheriff took possession of said property under and by virtue of said writs of attachment, and thereafter, upon judgments duly made and entered, sold such property so attached to satisfy the judgments thus obtained against the Thornton-Thomas Mercantile Company; that on March 1, 1898, E. H. Hubbard made demand upon W. A. Clark & Bro. for the moneys so deposited in said bank, but such demand was then and thereafter continuously refused; that on the 25th of May, 1898, the said Hubbard sold and assigned all interest that he had in said money so deposited to Lutey Bros., appellants herein; and thereafter, on May 26,1898, Lutey Bros, commenced this action in the district court against W. A. Clark & Bro. to recover the said sum of $3,949.78, with interest and costs. The defendants answered, and thereafter the parties agreed upon the facts of the case, and an agreed statement was filed February 13, 1901, containing the facts heretofore recited, and upon such statement of facts the district court found the issues for the defendants W. A. Clark & Bro., and entered judgment in their favor for their costs. From this judgment this appeal is prosecuted.
This court having determined in the certiorari proceedings that the áction of the district court in appointing the receiver was without jurisdiction, and having reversed that order and annulled all orders made subsequently thereto, particularly the order under which the receiver pretended to sell certain personal property to Lutey Bros., these appellants, it becomes a question for determination then whose money was it that was attached in the hands of W. A. Clark & Bro., deposited there by Hubbard, the receiver, and whose goods were they that were attached in the hands of Lutey Bros, at the suits of other creditors of the Thornton-Thomas Mercantile Company?
It is said that, as Hubbard and Lutey Bros, exercised acts of dominion over these goods without the consent of the mercantile company, and in opposition to its interests, each is liable in conversion; that after the decision of this court Hubbard became an involuntary trustee for that company, and, as the company then could have pursued their goods or the particular funds derived from their sale, respondents W. A. Clark & Bro. could do likewise.
Much discussion is indulged in by counsel for respondents which is not pertinent here. Assuming that the pretended sale by Hubbard to Lutey Bros, was wrongful, and constituted a conversion of the goods, and that Lutey Bros., by their acts of ownership over the goods in selling a portion of them, were likewise guilty of a conversion, it must be conceded that the mercantile company, while it could maintain an action against Hubbard for conversion, or could pursue Lutey Bros, and elect either to sue them as for a conversion of the property or in claim and delivery for the return of the specific property or such portion of it as remained in their possession, it cannot maintain an action in conversion against Hubbard and a like action against Lutey Bros., and thereby enforce two judgments for the same cause of action, or it cannot pursue Hubbard in conversion and sue Lutey Bros, for the specific property at the same time. The company was entitled to the property or to its value, but not to both. The effect of the decision of this court in vacating the order of sale was to declare such sale void ab initio; that in fact no sale had ever been made, and that the mercantile company was still the owner of the goods of which Lutey Bros, had come into possession; and whatever right the mercantile company had to make an election to take the property or sue for damages for its conversion, until it exercised such election, the ownership of the property was in it, and such property was subject to attachment at the instance of any of its creditors. The decision of this court was to the effect that no sale had been made; in other words, that the pretended sale was without effect, and conveyed no title to the property. Hubbard, having received the money belonging to Lutey Bros, on such void sale, became (on such sale being declared void) an involuntary trustee of Lutey Bros, for the amount of money received from them; and likewise Lutey Bros., having received such goods on such pretended sale, became an involuntary trustee for the mercantile company for the goods which they retained and for the money which they had received from a sale of the portion of the goods disposed of 'by them.
Sections 2958 and 2959 of the Civil Code provide: Section 2958: “One who wrongfully detains a thing is an involuntary trustee thereof, for the benefit of the owner.” Section 2959: “One who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful act is, unless he has some other or better right thereto, an involuntary trustee of the thing gained, for the benefit of the person who would otherwise have had it.” Section 4334 of the Civil Code is cited, and it is said that the presumption of the measure of damages arising from the wrongful conversion of personal property cannot be repelled in favor of one whose possession is wrongful from the beginning by his subsequent application of the property to the benefit of the owner without the owner’s consent. But this section has no application here, for the record discloses that the mercantile company did elect to have the sale set aside, to have its property restored to it or applied to its benefit, and when it was applied to the satisfaction of judgments recovered against the mercantile company it was applied to the company’s benefit. The proceedings in this court were taken at their instance, and constituted such election.
(Decided October 3, 1904.)
We are of the opinion that this disposes of the case, and it is • not necessary to decide the abstract question, can a plaintiff in an attachment suit secure a lien upon property in his own possession by having himself served as garnishee ?
As it does not appear from this record what disposition ivas ever made by appellants of the $415.85 received by them from the sale' of a portion of the goods belonging to the mercantile company, this court is unable to make any order respecting the same.
The judgment is reversed, and the cause remanded to the district court, with directions to enter judgment in favor of the plaintiffs (appellants here) for $3,241.19, together with interest and costs.
Reversed and remanded.
Mr. Justice Milburn, not having heard the argument, takes no part in this decision.
|
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] |
ME. COMMISSIONEE .POOEMAN
prepared the following opinion for the court:
This is an action in ejectment. Verdict and judgment w-ere for defendant. Plaintiff moved for a new trial, which was granted, and the defendant appeals.
It appears from the record that the Smokehouse lode claim was located April 16, 1875; that the same is within the corporate limits of the city of Butte; that title to this claim, or an undivided interest therein, afterwards passed by mesne conveyance to this plaintiff; that in July, 1882, the plaintiff instituted this action, claiming to be the owner of the ground;.that he had been ousted from the same by the defendant, who was then in possession. The action therefore appears to have been pending in the courts for about twenty-two years. The defendant disclaims any right to the possession of any part of the claim other than that conveyed to it by deeds, except its right to the use of that portion of the ground occupied by and used as streets and alleys, and alleges that this ground was so used and occupied prior to the location of this lode claim and under the Act oí Congress of July 26, 1866, c. 262 (14 Stat. 251), giving the right of way for the construction of highways over public lands, etc.
At the trial of the action the plaintiff introduced evidence of his title, and of the rental value of the ground occupied by the city, and rested. The defendant introduced evidence tending to show that the ground in dispute had been regularly laid out and used as streets and alleys of tbe town of Butte prior to April 16, 1875. Defendant also sought to sbow by evidence certain conditions existing and proceedings taken relative to tbe laying out of tbe townsite of Butte subsequent to tbat date. The plaintiff, however, objected to tbe introduction of any evidence along tbat line after April 16, 1875, and tbe court refused to admit the evidence. Tbe case was then tried upon tbe theory tbat no evidence relative to conditions existing subsequent to April 16, 1875, was admissible.
Tbe plaintiff in bis rebuttal testimony sought to sbow certain conditions existing subsequent to this last-named date, but the court adhered to tbe former ruling which it bad made in sustaining plaintiff’s objection, and refused to admit tbe evidence. Tbe court also refused to admit in evidence a photograph alleged to have been taken in October, 1875. The plaintiff assigned these rulings of tbe court as error, and tbe court granted a new trial.
It is evident tbat if it were error to refuse evidence tending to sbow conditions existing subsequent to April 16, 1875, tbe court was led into tbe error by tbe plaintiff; and as was said in Newell v. Meyendorff, 9 Mont. 254, 23 Pac. 333, 8 L. R. A. 440, 18 Am. St. Rep. 738: “A party in an action is bound by bis pleadings. He is also bound by tbe rulings of tbe court which be obtains upon bis own motion, and is estopped from claiming such ruling as error. (2 Herman on Estoppel, Sec. 823, and note.) A party is bound by bis theory and presentation of bis case. ‘A party cannot get relief on one basis, and then seek a new chance to litigate,' on tbe suggestion tbat be has a defense which be did not see fit to rely on before.’ ”
Tbe photograph of defendant city taken in October, 1875, was offered in evidence. Tbe court, in ruling thereon, said: “It may be introduced for tbe purpose of showing tbe condition of Butte prior to April 16, 1875.” Tbe plaintiff, however, refused to put the photograph in evidence for this restricted purpose; showing conclusively that the object of the plaintiff was to show conditions existing subsequent to April 16, 1875. The plaintiff could not complain of the action of the court in limiting this evidence to the time named.
It was further alleged that the court erred in not rendering judgment for the plaintiff on the stipulation filed. This stipulation is to the effect that Broadway street, Park street, Main street and Granite street, within the boundary lines of what is known as the “Smokehouse Lode Mining Claim,” were used as public highways prior to and at the time of the alleged location of the Smokehouse lode, and that the same have ever since been used as such. This stipulation was in effect an admission by the plaintiff of defendant’s contention respecting the streets named therein, to-wit, that this ground was occupied as public highways at the time of the location of this mining claim.
It was further claimed by plaintiff that the court erred in striking out certain testimony of the witness Kroft relative to the existence of a placer claim on the ground in dispute. The question asked the witness was: “I will ask you if you had any placer ground within the limits of the Smokehouse lode location prior to 1875, or any other place ?” To this question the witness replied: “I do not know when I bought Version out — whether it was in 1875 or 1876. I bought him out in that time.” The defendant moved to strike out this answer as being incompetent and immaterial, and as being too indefinite as to time. The court made this ruling: “Strike out that portion concerning the buying of placer ground prior to 1875.” Inasmuch as there was no evidence of the buying of any placer ground prior to 1875, the ruling of the court was practically without meaning and harmless.
It was further maintained by the plaintiff, in urging his motion for a new trial, that the evidence was insufficient to sustain the verdict. This claim cannot be sustained. Several witnesses on the part of defendant testified to the existence of 'these streets and alleys prior to the location of the mining claim, and, while there was some evidence tending to show that some portions of some of, the streets did not exist at that time, the variance is too slight to be regarded as a substantial conflict.
liehearing denied September 30, 1904.
Prom the evidence presented in this record, but one conclusion can be reached, and that is embodied in the verdict of the jury. The evidence excluded was excluded in accordance with the theory of the case which the plaintiff himself had led the court to establish, and is therefore not error of which the plaintiff can complain.
We find no error in this record which would justify the court in setting aside the verdict of the jury and in granting plaintiff a new trial. We therefore recommend that the order granting the new trial be reversed.
Per Curiam. — Por the reasons stated in the foregoing opinion, the order granting a new trial is reversed.
Mr. Justice Mieburn, not having heard the argument, takes no part in the decision.
|
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] |
Per Curiam.
Upon motion of respondent herein the appeal from the order denying the motion for a new trial is hereby dismissed.
|
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] |
Per Curiam.
-This appeal is hereby dismissed as per stipulation of counsel for respective parties.
|
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Mil. COMMISSIONER CALLAWAY
prepared the following opinion for the court:
- Appeal from a judgment of nonsuit, and from an order denying plaintiff’s motion for a new trial.
Plaintiff alleged the execution of a mortgage by her .to defendant Carroll on April 5, 1899, and his subsequent sale of the property therein mentioned, by virtue of a power of sale contained in the mortgage, to his co-defendant Morgan on January 29, 1900, her attempt on January 31, 1900, to redeem the property from the sale, Morgan’s refusal to permit a redemption, his claim that plaintiff had no further interest in the property, and his offer to sell the property to her for $850. Paragraphs 8 and 9 of the complaint are as follows:
“That plaintiff, laboring under the statements of the said defendants and their attorneys, that this plaintiff had no rights in the premises and was barred of the right of redemption, and laboring under a misapprehension of her rights and remedies, did on the 6th day of February, 1900, pay to the said defendants'the sum of eight hundred and fifty ($850) dollars, and received from said defendants a deed to said property. And •plaintiff alleges that said defendants had no right to demand or receive from this plaintiff any amount in excess of $588, and that the amount so-paid in excess of $588, to-wit, $262, was an overpayment, and paid through -mistake on the part of plaintiff, and said payment was made and caused to be made by and through the fraud, conspiracy and deceitful practices on part of the defendants.
“Plaintiff alleges that her right of redemption under the said sale had not expired at the time of said payment of the said eight hundred and fifty ($850) dollars, and that said time of redemption would not'expire until the 29th day of January, 1901.”
No defects in the method of procedure adopted by the mortgagee in foreclosing the mortgage under the power of sale are alleged by plaintiff. Practically her sole contention is that she had the right to redeem the property within one year after the sale, but because of a mistake of law on her part, which was induced by fraud, conspiracy and deceitful practices on part of the defendants, she purchased the property instead of enforcing her right of redemption.
A mistake of law from which a court of equity will relieve is defined and governed by Section 2123 of the Civil Code, which reads: “Mistake of law constitutes a mistake, within the meaning of this article, only when it arises from: (1) A misapprehension of the law by all parties, all supposing that they knew and understood it, and all making substantially the same mistake as to the law] or (2) A misapprehension of the-law by one party, of which the others are aware at the time of contracting, hut which they do not rectify.” It is readily perceived that plaintiff’s action is attempted to he brought under Subdivision 2 thereof.
The testimony on part of plaintiff discloses that, after the property had been purchased at the foreclosure sale by defendant Morgan, plaintiff’s agent, John B. Bottego, and her attorney, Mr. Maury, applied to Morgan to be allowed to redeem the property, but Morgan refused, claiming that the right of redemption was barred by the sale. He offered the property ro plaintiff for $1,0'00, but after some negotiations took $850 for it. Concerning this transaction Maury testified: “I advised him (Bottego) that our firm, Judge Pemberton and myself, both advised him that in our opinion the question was a very mooted one and difficult to determine either way, hut in our opinion there was no right of redemption. -They acted on that advice in the payment of the money. I was present when the deeds passed from Mr. Carroll to Bottego. This advice that I gave them was after the negotiations with Mr. Morgan in an attempt to redeem the property, which had been sold for the amount of the mortgage, interest and costs of sale.” And again he said: “Mr. Morgan claimed that he had the fee-simple title absolute, and we agreed with those views.” There is no testimony in the record showing, or tending to show, that the defendants did not at all times firmly believe that the plaintiff’s equity of redemption was totally cut off by the foreclosure sale; and neither is there any testimony indicating in the slightest degree that defendants, or either of them, procured the plaintiff to purchase the property through fraud, conspiracy or deceit. As above noticed, it is not contended that the sale was not fairly conducted. The sale having been completed, the defendant Morgan took the position that he was then the absolute owner of the prop erty by virtue of the foreclosure sale, and the defendants are now contending for that same position in this court.
It thus plainly appears that, if it be true that plaintiff,had one year from and after January 29, 1901, in which to redeem the property from the foreclosure sale, there was a misapprehension of the law by the defendants as well as by plaintiff, “all supposing that they knew and understood it, and all making substantially the same mistake as to the law.”
It also becomes apparent that there is a fatal variance between plaintiff’s allegations and her proof, and she did not ask leave to amend the pleading to conform to the proof, as she might have done.
She alleged a cause of action, which, if it comes within Section 2123 at all, comes within Subdivision 2 thereof; the proof she adduced, if it come within Section 2123 at all, comes within Subdivision 1 thereof; both her allegations and proof must come within one and the same subdivision, or she may not recover at all because of a mistake of law. Her allegation of mistake on her part and fraud on part of the defendants utterly excludes the idea of a mutual mistake. Thus the court did not err in granting the nonsuit.
This excludes any consideration of the interesting question as to whether plaintiff’s equity of redemption was barred by the foreclosure sale.
It follows that the judgment and order should be affirmed.
Per Curiam. — Por the reasons given in the foregoing opinion, the judgment and order are affirmed.
Hr. Justice Miixurn, being absent, takes no part in this decision.
|
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Per Curiam.-
Relator’s application for a writ of injunction herein is hereby denied.
|
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MR. COMMISSIONER POORMAN
prepared the following’ opinion for the court:
Defendant was convicted of murder in the first degree. A motion in arrest of judgment was interposed and overruled. Defendant then moved for a new trial. This motion was also overruled. The appeal is from the judgment, and from the order overruling the motion for a new trial.
1. The information states generally that the crime was committed in Missoula county, but contains no other allegations of venue. The defendant contends that inasmuch as the court takes judicial notice of the fact that Fort Missoula military reservation is situated within Missoula county (Section 3150, Code of Civil Procedure), and that the federal courts have exclusive jurisdiction of the trial of this offense if committed thereon (Section 40 et seq., Political Code; Section 1, Art. II, Constitution of Montana), the information should contain some averment that the crime, though committed within the county, was not committed on this reservation. This question as to the sufficiency of the information, and the further claim of defendant that the court erred in overruling his motion in arrest of judgment, and the further claim that the court erred in receiving evidence on the hearing of the motion in arrest of judgment, will be considered together.
(a) District courts are courts of general jurisdiction. The counties constituting each district are designated by legislative enactment. In this enactment no exception is made of reservations. The form-of information given in Section 1833 of the Penal Code contains no allegation relating to venue, except the general statement that the offense was committed within tic county. Section 1841, Penal Code, specifies what must be alleged in an information. That relating to venue is contained in Subdivision 4, which reads: “That the offense was committed at some place within the jurisdiction of the court, except where the act, though done without the local jurisdiction of the county, is triable therein.” Criminal actions must be tried in the county where the offense was committed (Section 16, Art. Ill, Constitution of Montana) ; and when “an offense is committed in part in one county and in part in another,” or “on the boundary of two or more counties,” the jurisdiction is in either county. (Sections 1564, 1565, Penal Code.) The exception named in Subdivision 4 of Section 1841, supra, un doubtedly refers to offenses committed in the manner named in said Sections 1564 and 1565.
It is true, the court may take judicial notice that this military reservation is situated within Missoula county, and that the state court has no jurisdiction of this offense, if committed thereon; yet the jurisdiction of the federal courts being exceptional, and that of state courts general, it is not necessary, in an information, to negative the jurisdiction of the federal courts. Where a statute states in detail what must be alleged with reference to venue, such allegations need not be broader than the statute.
Practically this same question was before the Supreme Court of California in People v. Collins, 105 Cal. 504, 39 Pac. 16, where the court, said: “The jurisdiction of the state being general, and that of the United States exceptional, it is not necessary to negative, in an indictment or information in the state courts, the jurisdiction of the federal courts. It is like an exception in an act creating or defining a public offense, in which ease it is held that, if the exception is not necessary to the description of the offense, it nefed not be alleged or negatived, but is matter of defense simply.”
In Territory v. Burns, 6 Mont. 72, 9 Pac. 432, this court said: “When an exception is stated in the statute, it is not necessary to negative such exception, unless it is a constituent part of the definition of the offense.”
This same question relative to the error complained of was passed upon in State v. Spotted Hawk, 22 Mont. 33, 55 Pac. 1026, where the court said: “The information is in conformity with the statute. The district court has general jurisdiction of all offenses committed within the limits of the county where it sits. The allegation quoted supra is surplusage. If the defendant should be charged with a crime committed out of the court’s jurisdiction, this is a matter to be taken advantage of at the trial. The authorities cited by counsel in the brief have reference to courts of limited jurisdiction, and have no application.” We find no reason for disturbing the decision in the Spotted Hawk Case, but hold this information sufficient as to its allegations respecting the venue of this offense.
(b) A motion in arrest of judgment must be founded on some defect in the information (Section 2200, Penal Code) mentioned in Section 1922 of the Penal Code. One of the defects mentioned in this latter section is where it appears that the court has no jurisdiction of the offense charged therein. The only error complained of here is lack of jurisdiction, and in this the contention of defendant is not sustained. Whether the failure to demur was a waiver, within the meaning of the decision in State v. Mahoney, 24 Mont. 281, 61 Pac. 647, is immaterial. The motion was properly overruled.
(c) At the hearing on the motion in arrest of judgment the attention of the court was called to certain matters relating to the situs of Port Missoula military reservation, to which reference had not been made at the trial of the case, and these matters were inserted in the record. Extrinsic evidence cannot be received at the hearing on a motion in arrest of judgment. (People v. Johnson, 71 Cal. 384, 12 Pac. 261; Commonwealth v. Brown, 150 Mass. 334, 23 N. E. 98; King v. State, 91 Tenn. 617, 20 S. W. 169; State v. Creight, 2 Am. Dec. 656.)
It is claimed by respondent that the matters to which the attention of the court was directed were only such as could be noticed judicially. However this may be, the information not being open to any objection made, and none of these matters being used or inserted in the record until after verdict, the defendant was not in any manner prejudiced; and the questions raised on the motion have here been examined and considered irrespective of any extrinsic matter.
2. The question of jurisdiction is again urged on the motion-for a new trial, the defendant maintaining that the evidence shows that the offense was committed on the Port Missoula military reservation. The evidence shows that both the defendant and the deceased were soldiers stationed at Port Missoula, and that the homicide was committed on October 18, 1903, on Sec. 36, Twp. 13 N., R. 20 W., on the sentry beat just back of the commissary building; that- several other buildings then used by the military authorities as a part of the post of Fort Missoula were situated on this section; and that, so far as military jurisdiction goes, the commanding officer of the post was «supreme over the tract of land thus occupied. Military jurisdiction, however, does not in time of peace extend to the trial of persons accused of murder, although both the defendant and the deceased were, at the time the homicide was committed, soldiers in the United States army, and the offense was committed on a military reservation. This question was considered at some length in United States v. Clark, (C. C.) 31 Fed. 710, where the authorities are reviewed and discussed.
The Oonstitution of the United States reserves authority in congress to exercise exclusive jurisdiction over military reserves. Section 8, Article I, in part provides: “To exercise exclusive legislation in all cases whatsover, over such district (not exceeding ten miles square), as may, by cession of particular states, and the acceptance of congress, become the seat of government of the United States, and to exercise like authority over- all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards and other needful buildings.” With reference to the term “exclusive legislation,” as used in the Constitution, Justice Story, in United States v. Cornell, 2 Mason, 60, Fed. Cas. No. 14,867, says: “The Constitution of the United States declares that congress shall have power to exercise 'exclusive legislation in all 'cases whatsoever’ over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards and* other needful buildings. When, therefore, a purchase of laud for any of these purposes is made by the national government, and the state legislature has given its consent to the purchase, the land so purchased, by the very terms of the Oonstitution, ipso facto falls within the exclusive legislation of congress, and the state jurisdiction is completely ousted. This is the necessary result, for exclusive jurisdiction is the-attendant upon exclusive legislation.”
On the admission of Montana into the Union, sections 16 and 36 in each township not reserved were granted to the state as school lands. That part of the Act of Congress relating thereto (Act February 22, 1889, c. 180) is as follows: “That upon the admission of each of said states [Washington, North Dakota, South Dakota and Montana], sections 16 and 36 in every township of said proposed states, where such sections or any part thereof have been sold or otherwise disposed of by or under the authority of any act of congress, or other lands equivalent thereto, in legal subdivisions of not less than a quarter section, and as contiguous as may be to the section in lieu of which the same is taken, are granted to said state for the support of common schools, such indemnity lands to be selected within said states, in such manner as the legislature may provide, with the approval of the secretary of the interior. Provided, that the sixteenth and thirty-sixth sections embraced in permanent reserves for national purposes shall not at any time be subject to the grant, nor to the indemnity provisions of this act, nor shall any land embraced in Indian, military'or other reserves of any character be subject to the grants or indemnity provisions of this act, until the reserve shall have been exhausted, and such lands be restored to and become a part of the public domain.” (Enabling Act (Political Code, p. Ixvii) 25 U. S. Stat. 679, Sec. 10.) By the act of admission the United States transferred to the state full authority to exercise complete sovereignty in the enforcement of state law over all lands and places not reserved, though the United States retained their proprietary interest in all lands not granted or sold. Montana was admitted into the Union upon “an equal footing in all respects with the original states.” Sovereignty once vested in the state remains there, unless by some act pn the part of the state it reverts to the general government. (U. S. v. Stahl, Woolw. 192, Fed. Cas. No. 16,373; Draper v. U. S., 164 U. S. 240, 17 Sup. Ct. 107, 41 L. Ed. 419.)
In United States v. Bateman, (C. C.) 34 Fed. 86, the court, in considering a question of jurisdiction of a homicide committed on the Presidio military reservation, said: “The United States were both proprietors and sovereigns of the Presidio lands till the admission of the state of California into the Union. By the act of admission, reserving only their proprietary right over these lands, they relinquished to the state their governmental or local sovereign right and jurisdiction, and were thenceforth only proprietors in the sense that any natural person owning land is a proprietor. Having so relinquished their sovereign rights, that condition remains to this day, unless the state has in some way, either directly or by implication, receded to the United States its sovereign jurisdiction. This could be done by direct cession, or by consent through its legislature to the purchase of land for such governmental purposes, and a purchase for such purpose in pursuance of such consent.”
In United States v. San Francisco Bridge Co., (D. C.) 88 Fed. 891, the court, in considering a question of jurisdiction, after quoting that part of the United States Constitution referred to above, said: “It is not alleged in the information, nor does the fact otherwise appear, that the land upon which the new San Francisco postoiB.ee is being constructed was purchased by the United States with the consent of the state, or that political jurisdiction over the same has been otherwise ceded to the United States by the state. Upon this state of facts, it must be held that the state of California retains complete and exclusive political jurisdiction over such land; and, this being so, there can be no question that persons who commit murder, or any other offense denounced by its laws, would be subject to trial and punishment by the courts of the state. 2 Story, Const. par. 1227; People v. Godfrey, 17 Johns. 225; Ex parte Sloan, 4 Sawy. 330, Fed. Cas. No. 12,944; U. S. v. Stahl, Woolw. 192, Fed. Cas. No. 16,373; U. S. v. Ward, Woolw. 17, Fed. Cas. No. 16,639; U. S. v. Cornell, 2 Mason, 60, Fed. Cas. No. 14,867. In the case last cited it was said by Mr. Justice Story: Hut although the United States may well purchase and hold lands for public purposes, within the territorial limits of a state, this does not, of itself, oust jurisdiction or sovereignty of such state over the lands so purchased. It remains until the state has relinquished its authority over the land, either expressly or by necessary implication.’ ”
The question in the case at bar is not whether the general government regained sovereignty, but whether it in fact ever parted with its original sovereignty. Section 1, Article II, of the Constitution of Montana, and Section 41 of the Political Code of Montana, provide: “Authority is hereby granted to and acknowledged in the United States- to exercise exclusive legislation as provided by the Constitution of the United States over the military reserves of Port Assinaboine, Port Keogh, Port Maginnis, Port Missoula and Port Shaw, as now established by law, so long as said places remain military reserves to the same extent and same effect as if said reservation had been purchased by the United States by consent of the legislative assembly of the state of Montana.” The Constitution of Montana thus acknowledges absolute sovereignty in the United States over the places named or referred to in the section of that instrument just quoted, but the state of Montana has, through its legislative assembly, gone further, and recognized absolute authority in the general government over all places subsequently acquired and used by the government for any of the purposes named in the Constitution of the United States. (Sections 42, 43, Political Code of Montana.) Said Section 42 consents to the purchase or condemnation by the United States of any land within the state for the purpose of erecting forts, magazines, arsenals, courthouses, postoffices and other needful buildings, and the only condition attached to this consent is that process of the state may be served in any of such places. Said Section 43 provides, in substance, that the state gives its consent to the purchase, and exclusive jurisdiction is ceded to the United States over and with respect to any lands within the limits of the state which shall be acquired by the United States for any of the purposes described in Article I, Section 8, paragraph 17, of the Constitution of the United States, provided that a map or plat describing such lands by metes and bounds shall be filed, etc., and that the state reserves the right to tax property of railroad or other corporations having a right of way over and upon said land.
Under these provisions of the Political Code the state consents to the purchase, condemnation or acquisition of lands by the United States. "Where, however, the United States still retains its original ownership of the land, it is apparent that neither purchase, condemnation nor acquisition is necessary, but that actual occupation for any purpose indicated in these sections stands in lieu thereof. Mere occupancy of government land by the military for any purpose not indicated in the law or the Constitution would not of itself be sufficient to divest the state of the sovereignty granted to it by Congress, nor does the right reserved to serve state process on these reservations infringe on the exclusive jurisdiction of the United States.
In United States v. Meagher, (C. C.) 37 Fed. 875, the court says: “The state, in the instrument of cession, merely reserves the right to serve process upon persons within the ceded land who may have committed offenses elsewhere, and I do not understand that its purpose is to reserve a concurrent jurisdiction over the territory ceded.”
. The same doctrine is held in United States v. Cornell, 2 Mason, 60, Fed. Cas. No. 14,867; and in Fort Leavenworth Railroad Co. v. Lowe, 114 U. S. 525, 5 Sup. Ct. 995, 29 L. Ed. 264, this language is used: “The reservation which has usually accompanied the consent of the states that civil and criminal process of the state courts may be served in the places purchased is not considered as interfering in any respect with the supremacy of the United States Oyer them, but is admitted to prevent them from becoming an asylum for fugitives from justice.”
That the state courts have no jurisdiction over this homicide, if committed on a military reservation, is well established. (Const. U. S. supra; U. S. v. Cornell, supra; U. S. v. Clark, (C. C.) 31 Fed. 710; State v. Kelly, 49 Am. Rep. 620; Lasher v. State, 30 Tex. App. 387, 17 S. W. 1064, 28 Am. St. Rep. 922.)
Congress expressly provided for the punishment of murder and manslaughter committed in such places (Rev. St. U. S. Sec. 5339 et seq. [U. S. Comp. St. 1901, p. 3627]), and has conferred exclusive jurisdiction upon the federal courts (Rev. St. U. S. Sec. 629 [U. S. Comp. St. 1901, p. 503]). State v. Kelly, above.
A different rule applies with reference to the jurisdiction of state courts of offenses committed on Indian reservations than that which obtains with reference to military reservations. Indian reservations are not specifically enumerated or named in the Constitution of the United States above referred to, wherein the Congress retains absolute jurisdiction Over certain lands and places, and the federal courts have repeatedly held “that where a state was admitted into the Union, and the enabling act contained no exclusion of jurisdiction as to crimes committed on an Indian reservation by others, than Indians or against Indians, the state courts were vested with jurisdiction to try and punish such crimes.” (U. S. v. McBratney, 104 U. S. 621, 26 L. Ed. 869; Draper v. U. S. 164 U. S. 240, 17 Sup. Ct. 107, 41 L. Ed. 419, and cases there cited.)
The Act of Congress granting sections 16 and 36 in each township to the state makes three classes of reservations: (1) Land not sold or otherwise disposed of; (2) lands embraced in permanent reservations for national purposes; (3) lands embraced in Indian, military and other reservations of any character. By the Act of Congress of May 26,1864, c. 95, Sec. 14, 13 Stat. 91 (Section 1946, Rev. St. U. S.), sections numbered 16 and 36 in each township of the territory of Montana and other territories “shall be reserved for the purpose of being applied to schools in the several territories herein named, and in the states and territories hereafter to be erected out of the same.”
In United States v. Bisel, 8 Mont. 20, 19 Pac. 251, the court, in referring to this Act, said: “While pections 16 and 36 were reserved for the purpose of aiding the development of the public school system in the coming state of Montana, and, so far as. their sale for the purpose of settlement is concerned, were segregated from the public domain, still the title to them and the dominion and control over them remain in the government of the United States.”
Whether this Act of Congress was a mere general reservation, or was in effect a grant irrevocable without the consent of the people of the territory, as the decision in Minnesota v. Batchelder, 1 Wall. 109, 17 L. Ed. 551, was construed in the argument of counsel in the Bisel Case, is immaterial, for “the title to them and the dominion and control over them remain in the government of the United States,” and this former Act of Congress was superseded by the subsequent Act (Montana Enabling Act), and the acceptance of statehood by the people under that Act. Moreover, the record before us practically concedes that the title to this land was in the United States at the time of the admission of the territory, and that it is still there, unless it vested in the state under and by virtue of the granting part of the Act providing for admission. This Act vests title in the state unless the lands come wdthin the exception named. It is apparent, therefore, that the United States granted both title and sovereignty to the state, or it granted neither, for, if the land was a part of the military reservation at the time that the grant took effect, so that the title to the same did not pass, the sovereignty remains in the United States so long as such condition continues, for the congress reserves exclusive jurisdiction over military reservations. Under the terms of the grant, no land embraced in a reservation of any kind is subject thereto “until the reserve shall have been extinguished, and such land be restored to and become a part of the public domain.”
Neither the term “public domain” nor “public lands” has ever been given a statutory definition. In various Acts of Congress and in the decisions of courts these terms have been used as including (1) all lands owned by the United States, whether surveyed or unsurveyed, reserved or unreserved; (2) all lands subject to sale or other disposition under general laws; and the two terms are used interchangeably in the decisions of courts unless a different meaning seemed necessary hy the terms of the law then being construed. As was said in the Bisel Case, “There is no statutory definition, of the words 'public lands/ and the meaning of them may vary somewhat in different statutes passed for different purposes, and they should be given such meaning in each as comports with the intention of Congress in their use.” (U. S. v. Bisel, 8 Mont. 20, 19 Pac. 251; U. S. v. Blendaur, 128 Fed. 910, 63 C. C. A. 636. See, also, the following United States statutes: Sections 2259, 2289, 2223 and 2380, Nev. St. [U. S. Comp. St. 1901, pp. 1388, 1362 and 1455].)
It is very apparent that the first of these definitions cannot apply to the term “public domain” as used in this Act of Congress, for land cannot be restored to the public domain if it is already a part of it. The term must therefore have reference to lands in which the public may acquire a right as lands under the jurisdiction of the land department, governed by the general laws. The use of the term “public lands” in a subsequent section would seem to sustain this construction. Section 19 of the Enabling Act (25 Stat. 682, c. 180) reads: “All lands granted in quantity or as indemnity hy this Act shall be selected, under the direction of the secretary of the interior, from the surveyed, unreserved and unappropriated public lands of the United States within the limits of the respective states entitled thereto. And there shall be deducted from the number of acres of land donated by this Act for specific objects to said states the number of acres in each heretofore donated hy Congress to said territories for similar objects.”
Land rightfully occupied cannot he classed as unappropriated public land so long as such occupation continues. The United States had the undoubted right to appropriate and occupy this land prior to the enactment of this law, and at the time of such enactment, and the fact that the United States is the granting party does not divest them of this authority and right. This last section quoted vests no authority in the secretary of the interior to declare lands “unappropriated” or not “otherwise disposed of,” then held and actually occupied by the United States for a definite and permanent purpose, such as is specified in the United States Constitution, above quoted.
A fourth limitation is by this Section 19 placed upon this grant, by enjoining upon the secretary of the interior the duty of making the selection “from surveyed, unreserved and unappropriated public land.” It appears from the record that this particular land in question was surveyed- at the time of the passage of the Enabling Act, so that the floating character of these grants, until surveyed, is not an element here for consideration. The term “unappropriated” is not given a specific definition in the Act itself, and the reference of this selection to the interior, department without such definition makes important the rules and decisions of that department as to when lands are there considered appropriated.
Mather et al. v. Hackley's Heirs, on review before the secretary of the interior, 19 Land Dec. Dep. Int. 48, is a case in point. In that case it appears that in 1824, in obedience to instructions from the war department, a certain piece of land was occupied by United States troops in cantonment, and that the land thus occupied was used until 1830, when it was formally reserved by executive order, but prior to this executive order, and in 1824, B,. J. Hackley, who was then in possession of a part of the land, was ejected therefrom by the military. In 1826 Congress enacted a law confirming in all settlers upon lands in that locality prior to January 1, 1825, the right to purchase the land whereon they resided, etc. (Act April 22, 1826, c. 28, 4 Stat. 154.) It is claimed that Hackley, having settled upon this land prior to January 1, 1825, had the right to purchase the same, and that this right descended to his heirs. Secretary Smith, in deciding the question, says, in part: “In support of his position, counsel cites the case of Johnson v. United States, 2 Ct. Cl. 391. Johnson’s claim was based upon what was known as the ‘Oregon Donation Act,’ and, as required by that Act, he had settled npon and occupied the land in controversy for four years continuously, Avith nothing left to be done to secure patent but to make proof of the same, Avhen the tract Avas forcibly taken and occupied by troops of the United States, ‘without the knowledge of the president, the secretary of Avar, or any high officer of the government.’ In that case the court held that such an occupation Avas not a reservation, Avithin the meaning of the Oregon Donation Act, and could not affect the rights of the plaintiff. In the case at bar, howeAmr, the facts are Arery different. The tract now knoAvn as the- Tort Brooke military reserA'ation’ Avas occupied under the direction of the secretary of Avar two years before the passage of the Act upon Avhich the claim of the TIackley heirs is predicated. In further support of his vieA\rs, counsel recites the history of Camp Stambaug, in Wyoming territory. It appears that in 1870 the secretary of war established said military post, which Avas laid off as a reservation, and included all the territory Avithin one mile of the flagstaff erected at the post. In 1881 the secretary of Avar notified the secretary of the interior that said post, being no longer needed for military purposes, had been discontinued. In said communication.be expressed the opinion that, inasmuch as there had been no formal reservation of the lands included therein by the president, the same might be restored to the public domain, as other lands, Avithout the consent of Congress. The secretary of the interior concurred in this opinion, and said lands were treated as having been restored to the public domain by the act of abandonment, and the subsequent notification on the part of the secretary of Avar. I am unable to see Avherein the correspondence above referred to sustains the contention of counsel, for, while it may be true that a military post established by the secretary of Avar may be restored to the public domain with less formality than if it had been reserved by a formal order of the president, still the secretary of Avar had authority to establish cantonment Brooke, and by virtue of such establishment the lands upon which it Avas located were not subject to entry so long as unrelinquished. Where a military post or cantonment is established upon the public domain, whether the same be for temporary purposes or permanent occupation by the military, if it be done by competent authority, the lands included therein are not subject to entry until properly restored to the public domain. If the secretary of war has the authority to establish a military post, it follows that, during the time that the lands included therein are occupied for military purposes, they are not subject to be disposed of under the pre-emption laws. In the case of Wilcox v. Jackson, 13 Pet. 498, 10 L. Ed. 264, it is held as follows: ‘The president speaks and acts through the heads of the several departments in relation to subjects which appertain to their respective duties. Both military posts and Indian affairs, including agencies, belong to the war department. Hence we consider the act of the war department in requiring this reservation to be made as being, in legal contemplation, the act of the president, and consequently that the reservation thus made was, in legal effect, a reservation made by order of the president, within the terms of the Act of Congress.’ It is further held in said case as follows: ‘But we go further, and say that, whensoever a tract of land shall have once been legally appropriated to any purpose, from that moment the land thus appropriated becomes severed from the mass of public lands, and that no subsequent law or proclamation or sale could be construed to embrace it or to operate upon it, although no reservation were made of it.’ ”
The principle announced in the first quotation from the Wilcox Gase, above, is sustained in Wolsey v. Chapman, 101 U. S. 755, 25 L. Ed. 915. It is further held in the Jlaclclcy Gasa that the ejectment of Hackley from his claim was itself an appropriation thereof by the military.
In the case of James H. T. By man, on appeal to the secretary of the interior, 9 Land Dec. Dep. Int. 600, it was held, “While the war department assumes and exercises for military purposes full control over the land in question, and the military, under order of the said department, holds actual possession of it, this department will not interfere, and Hyman’s application must therefore be denied.”
In the ease of Wilson Davis, 5 Land Dec. Dep. Int. 376, it is held that although a reservation for a cantonment was not in effect declared by the president, yet the actual occupation of the land by the military authorities for the purpose of a cantonment had the effect of segregating the land from-the public domain, and that such cantonment should be considered a military reservation.
It is apparent from these rules and decisions that the secretary of the interior, in making the selection required by the Enabling Act, would not regard land as unappropriated which was then “occupied by United States troops in cantonment.” It is a fair construction of this congressional enactment, that it was not the intention that either title to, or sovereignty over, lands actually occupied and used as a part of a permanent military reservation should pass to the state so long as such occupancy and pse was continued.
The general propositions herein discussed were considered to some extent in Territory v. Burgess, 8 Mont. 57, 19 Pac. 558, 1 L. R. A. 808, but that case was determined while Montana was still a territory, and the decision there rendered is not applicable, except in a general way, to the construction of subsequent legislative or congressional enactments or constitutional provisions; and the question there, so far as it related to jurisdiction, was rather a question between two federal courts, than one between a federal court and a state court.
Under the provisions of Section 3150, Code of Civil Procedure, the court takes judicial notice of the executive orders creating Eort Missoula reservation. These orders are dated February 19, 1877, and August 5, 1878. In neither of them is Section 36 mentioned or referred to, but the reservation thereby created is located on other and adjoining lands. If, therefore, Section 36 is a part of Fort Missoula reservation it is made so by being reserved from the operations of the grant in such manner as to prevent title passing to the state, under the Act of Congress above quoted, or else, if title did pass to tbe state, the United States hás, by purchase, condemnation or other means, acquired title, and by compliance with the provisions of law has become reinvested with sovereignty.-
Prom facts admitted by the respondent, and from matters inserted in the record by the respondent, which it is claimed the court may take judicial notice of, it appears that the buildings of Post Port Missoula were originally — probably through error —erected on the east half of section 36, instead of on the land described in the executive order creating the reservation; that the attention of the secretary of war was called to this fact in August,- 1878, and that'the general of the army issued orders to the post commander of Port Missoula to prevent any encroachments upon this land; that the secretary of war repeatedly communicated to Congress the facts relative to the location of these buildings, the last of such communications being in 1889; that these buildings were used for the purposes for which they were erected from 1878 until 1889, with the knowledge and consent of the secretary of war, and under orders from the commanding general of the army to prevent any encroachments on this land. It appears from these facts that this particular land in question was in the actual occupation of the military; that the buildings used by the post were on this land; and it is admitted in the evidence that on the day this homicide was committed, in 1903, these buildings and this land were used for this same purpose.
Subdivision 32, Section 3266, Code of Civil Procedure, relating to s satisfactory and disputable presumptions,•• says “that a thing once proved to exist continues so long as is usual for things of that nature.” And it appears that this is a permanent military reservation.
Under the decisions of the interior department above quoted, this land, on abandonment by the military, would be restored to the public lands, but there is no evidence in this record that there ever was any abandonment, by nonuser or otherwise, of this particular piece of land; and, in the absence of such evi deuce, and under the facts .above stated, it is presumed that these buildings and this land continued to be used as a part of this military reservation from the year 1878 until the time of the commission of this homicide, and that neither title to, nor sovereignty over, this land passed to the state of Montana, and that the state court had no jurisdiction over this homicide.
In the consideration of this question of jurisdiction, the Act of Congress approved March 19, 190-1, c. 718, 33 Stat. 113, has not been overlooked. By the terms of that Act the secretary of war is authorized to accept from citizens of Missoula, Montana,’ deeds donating to the United States lands for the enlargement of the Fort Missoula military reservation. These lands so donated, as referred to in the act, embrace a part of the east half of this section 36. The United States has the lawful right to quiet title to land without litigation. Furthermore, by the decision in the Bisel Gase, above referred to, no part of section 36 has been open to private entry or settlement since the passage of the Act of 1861; and it further appears that this land has been in the actual possession and occupation of the military since 1878, and that the Act providing for the admission of Montana was not passed until February 22, 1889, 25 Stat. 676, c. 180. It is not apparent, therefore, how these deeds could in any wise affect the question of jurisdiction involved in this case..
3. During the argument of the case the county attorney made certain statements as to what, in his opinion, the evidence showed. Objection was made to this line of argument, when the court said that the county attorney, in arguing the case, Had a right to state his theory of the case, and of what the evidence showed or tended to show, as a matter of argument, and the court saw no impropriety in what the county attorney had said so far, but that the jury should understand that what he had said in this respect was said as argument, not as a statement of fact. No exception was taken, and no further argument was made along this line. The defendant contends that these remarks of the court were prejudicial. They are, however, in effect, nothing more than an overruling of defendant’s objec tion, for, had the court-merely said, “Objection overruled,” he would thereby have told tbe jury and all others who' beard him that be saw no error in tbe remarks objected to. No exception being taken, we cannot now consider tbe matter. (State v. Cadotte, 17 Mont. 319, 42 Pac. 857; State v. Biggerstaff, 17 Mont. 510, 43 Pac. 709; State v. Bloor, 20 Mont. 587, 52 Pac. 611.)
Rehearing denied February 16, 1905.
This does not in any manner conflict with tbe decision of tbe court in tbe very recent case of State v. Harness, (Idaho) 76 Pac. 788.
4. It is contended by appellant that tbe evidence is insufficient to sustain a verdict of murder in tbe first degree. Inasmuch, however, as tbe judgment and order appealed from are reversed for other reasons, we do not at this time enter into any discussion as to tbe sufficiency of tbe evidence.
We think tbe judgment and order should be reversed, and tbe cause remanded.
Per Curiam. — For tbe reasons stated in tbe foregoing opinion, tbe judgment and order are reversed, and tbe cause remanded.
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MR. COMMISSIONER POORMAN
prepared the following opinion for the court:
According to the transcript, Joe Rogers and Pat Rogers were jointly informed against for burglary. The transcript does not contain any record of any trial or conviction of Pat Rogers. Joe Rogers, however, was tried and convicted, and subsequently made a motion for a new trial, which was overruled. Pat Rogers now appeals from the order of the court overruling this motion for a new trial, and Joe Sogers appeals only from the judgment of conviction made and entered against him. There being no record of any trial or conviction of Pat Sogers, his appeal will be disregarded, and the statement on motion for a new trial made by Joe Sogers will be treated, so far as applicable, as a bill of exceptions in aid of his appeal from the judgment.
1. It is alleged in the information that the defendants did, on June 25, 1903, “willfully,” etc., “enter that certain house situate in the rear of No. Ill East Broadway street * * * owned by one John Kovacevich, * * * with intent * * * the goods, chattels * * * of said John Kovacevich * * to steal,” etc. The evidence is to the effect that the house burglarized was No. Ill East Broadway, and at the time of the burglary was occupied by Michael Kovacevich, who owned property therein, but that the property actually stolen belonged to one Willoczjakake, and was in charge of Michael Kovacevich. On motion of the county attorney the court ordered the information amended by “changing the name from John to Michael Kovacevich.” It also appears that this house was situated on the rear of the lot, and that there was no other house thereon. The defendant insists that there is a variance between the proof and the allegations of the information. The entry of a building with the intent to commit a larceny or some felony is all that by the statute is made essential to the crime of burglary. (Section 820, Penal Code.) The gravamen of the charge is the entry "with this criminal intent. The particular ownership of the goods in the building, and the ownership and the location of the building entered, are only matters of description. This court cannot take judicial notice of the system employed by cities in numbering houses, nor of the relative location of buildings, nor whether there are buildings on certain lots and blocks. The description appears to have been inserted in the information on the theory that the number “111” applied to the front of the lot, and, the building being on the rear of the lot, it was proper to designate it as being in the rear of that number. There is no evidence that there were other buildings in that immediate vicinity.
“An indictment is sufficient if it can be understood therefrom that the offense was committed at some place within the jurisdiction of the court/’ etc. (Subdivision 4, Section 1841, Penal Code.)
In another part of the information it is alleged that the crime was committed at Silver Bow county, Montana. The defendant could not have been prejudiced by this description, or this evidence of ownership. The facts disclosed by this record indicate with sufficient exactness the location of the building entered.
2. It appeared from the evidence that the burglary was committed on June 17th, instead of June 25th, as alleged in the information. Section 1837, Penal Code, reads: “The precise time at which an offense was committed need not be stated in the indictment or information, but it may be alleged to have been committed at any time before the finding or filing thereof, except where the time is a material ingredient in the offense.” "Unless time is a- material ingredient in the offense or in charging the same (Section 1581, Penal Code), it is only necessary to prove that it was committed prior to the finding or filing of the information or indictment. Similar statutes have been construed in this manner in the following cases: People v. Sheldon, 68 Cal. 434, 9 Pac. 457; State v. Thompson, 10 Mont. 549, 27 Pac. 349; People v. La Fuente, 6 Cal. 202; People v. Littlefield; 5 Cal. 355; State v. Harp, 31 Kan. 498, 3 Pac. 432; State v. Williams, 13 Wash. 338, 43 Pac. 15; Rema v. State, 52 Neb. 375, 72 N. W. 474; United States v. Conrad (C. C.), 59 Fed. 458.
AVliere it is alleged in an information that a crime was committed on a certain day, and the prosecution then proves another day, the defense of the defendant, if an alibi, might thereby be practically destroyed; the defendant might not be prepared to prove an alibi as to any day except that named in the information. But the defendant in such a case may protect himself by asking for permission to subpoena other witnesses, or, if neces sary, to ask for a continuance, and the action of the court thereon would then become a proper subject for review on appeal. (Smith v. Shook, 30 Mont. 30, 75 Pac. 513.)' It does not appear from the record that the defendant made any such request in this case. Section 1842 of the Penal Code provides that no indictment or information is insufficient, nor can the trial, judgment, or other proceeding thereon be affected, by reason of any defect or imperfection in matter of form which does not tend to the prejudice of a substantial right of the defendant upon its merits. From the facts as they appear in this record, the defendant was not prejudiced.
3. During the trial counsel for the state asked several of the defendant’s witnesses as to whether or not sthe Rogers boys had been arrested in a room in the Hoffman House, or did not maintain a room in that house. These witnesses had not testified as to the arrest of the defendants, but had testified that neither of the defendants was in Butte between the 14th and 26th days of June; that they lived with their mother at Center-ville. The object of the cross-examination was undoubtedly to show, if possible, that the defendants resided at the Hoffman House, in Butte, instead of with their mother at Centerville, and might therefore have been within the city without their mother or the other witnesses knowing it. Pat Rogers, in testifying as a witness on behalf of his brother, Joe Rogers, stated on his direct examination that he and his brother, Joe, were arrested in a room in the Hoffman House, and explained the purpose of their being there, and defendant admitted that he was arrested there. There was no error in permitting this cross-examination.
4. The sheriff of Silver Bow county, when called as a witness on the part of the state, testified that he was acquainted with the defendant Joe Rogers, “and that he has been in my charge as sheriff of Silver Bow county since last July.” "When asked as to whether or not the defendant had attempted to escape from custody, the witness said: “Well, I know that he escaped, Mr. Breen. That is what I heard; I was not there at the time it happened. Q. Do you know that it occurred?” Both these questions were objected to by counsel for defendant, and the objection sustained as to the last question on the ground that the witness was not testifying- from his own knowledge. This ruling of the court practically withdrew from the consideration •of the jury the answer to the previous question. Had the defendant desired a more specific withdrawal, he should have made a motion to strike the evidence from the record, which he did not do. There is no error in the rulings of the court with reference to these questions.
5. Defendant’s witness Pat Rogers testified as to a fishing trip of himself and brother from Butte, via Anaconda, to Storm lake; that they left Butte June 14th, and did not return until June 26th. On cross-examination by the state’s counsel it developed that both of the defendants named in the information went by stage from Anaconda to Cable, thence to Storm lake; that the only purpose of going to Cable was to see the town, as the witness had not been there before, and had heard much of the place. It was in evidence that the parties had taken with them two pistols and one shotgun, in addition to fishing tackle, bedding and provisions. The witness was then asked: “Is it not a fact that when you went to Cable — when you took that trip — that your object was to find out when the bullion was to be shipped from Cable?” The witness testified that he had ordered a Lee straight-pull gun from Chicago for hunting purposes, but did not have it with him. This further question was then asked: “Now, Mr. Rogers, didn’t you get that Lee straight-pull rifle for the purpose of holding up the bullion that was going from the Cable mine?” Both of these questions were objected to as incompetent, irrelevant and immaterial, and as having nothing to do with the case. The objections were overruled, and the witness answered in the negative. It is claimed that the court erred in overruling these objections; that the questions have a direct tendency to degrade the witness and his brother, the defendant, in the eyes of the jury. The witness of whom these questions were asked was a brother of the defendant, and was jointly informed against with the defendant, and, according to the testimony, the two brothers had taken this trip for a common purpose. If it could therefore be made to appear to the jury that Pat Rogers had gone to Cable for the purpose of committing a robbery, such evidence would reflect equally upon the defendant, Joe Rogers.
It is a rule well established in this state that when an accused becomes a witness in his own behalf, and denies that ho committed the crime for which he is on trial, a wide latitude of cross-examination is permissible, owing to the general nature of the defendant’s statements. Upon the cross-examination of such witness such deflections from the matter brought out on direct examination are allowed as may be necessary to bring the whole matter involved in the direct examination before the court, and to extract the whole of the truth concerning the matter brought forward by the accused. (State v. Howard, 30 Mont. 518, 77 Pac. 50; State v. Duncan, 7 Wash. 336, 35 Pac. 117, 38 Am. St. Rep. 888; People v. Mullings, 83 Cal. 138, 23 Pac. 229, 17 Am. St. Rep. 223; People v. Morton, 139 Cal. 719, 73 Pac. 609.)
A witness, whether the accused or any other witness, may be discredited in any of the various ways named in the statute or sanctioned by law, but it is not permissible to ask any witness any question merely for the purpose of degrading him. It is the right of a witness to be protected from irrelevant, improper and insulting questions (Section 3402, Code of Civil Procedure), and he need not give an answer which will have a tendency to subject him to punishment for a felony or to degrade his character, unless it be to the very fact in issue, or to a fact from which the facts in issue would be presumed. (Section 3401, Id.) These questions were totally foreign to the matter before the court, and could have no bearing whatsoever on the guilt or innocence of the defendant of the crime with which he was accused by the information. They could therefore subserve no purpose whatsoever except to degrade and discredit the witness and his brother, the defendant, in the eyes of the jury.
It is not presumed that state’s counsel, being charged with the protection of the rights of all citizens, would accuse a witness of having committed a crime unless he had some evidence of the.truth of the accusation. The questions, therefore, would convey the impression to the jury that the state’s counsel had reason to believe that the defendant went to Cable for the purpose of committing a robbery. The fact that it was not intended to prejudice the defendant, or that the questions only accused the defendant of the intent to commit a crime, or that the negative answers of the witness were conclusive upon the state, could not free the questions of their objectionable character. It was certainly not to be expected that they would be answered in the affirmative.
In People v. Mullings, 83 Cal. 138, 23 Pac. 229, II Am. St. Rep. 223, the court said: “It is quite evident that the questions, and not the answers, were what the prosecution thought important. The purpose of the questions, clearly, was to keep persistently before the jury the assumption of damaging facts which could not be proven, and thus impress upon their minds the probability of the existence of the assumed facts upon which the questions were based.”
In State v. Gleim, 17 Mont. 17, 41 Pac. 998, 31 L. R. A. 294, 52 Am. St. Rep. 655, this court laid down the rule that such questions are improper and prejudicial. The reasons therefor are discussed in the opinion of the court in that case, and are also elaborately discussed in People v. Wells, 100 Cal. 459, 34 Pac. 1018, and it is unnecessary to repeat the discussion here. We cannot recommend that the rule in the Gleim Case should be reversed. The same questions are also discussed in People v. Un Dong, 106 Cal. 83, 39 Pac. 12; Estate of James, 124 Cal. 653, 51 Pac. 518, 1008; People v. Crandall, 125 Cal. 129, 51 Pac. 185; Gale v. People, 26 Mich. 161; People v. Cahoon, 88 Mich. 456, 50 N. W. 384; Leahy v. State, 31 Neb. 566, 48 N. W. 390; State v. Trott, 36 Mo. App. 29.
Matusevitz v. Hughes, 26 Mont, 214, 68 Pac. 468, cited by respondent, is not in point on this proposition. There the witness had voluntarily, in part of his testimony, stated that he had been arrested. On cross-examination he was asked, “What were you charged with at that time ? WFat were you arrested for ?” This question the court held was not prejudicial.
We think this judgment should be reversed, and the case remanded for a new trial.
Pee Curiam. — For the reasons given in the foregoing opinion, the judgment is reversed, and the case remanded for a new trial.
|
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] |
MR. COMMISSIONER CALLAWAY
prepared tbe following opinion for tbe court:
Tbis action was brought by tbe state of Montana, on tbe relation of Fannie E. Cbenowetb, against Rebecca Acton, to try title to tbe office of county superintendent of schools for Teton county, tbe relator claiming that tbe defendant bad intruded into and usurped tbe office, and asking that she be ousted and excluded therefrom. Tbe defendant answered, denying tbe material allegations of tbe complaint; pleaded affirmatively her own right to tbe office, tbe relator’s lack of right and ineligibility thereto, and prayed that she (tbe defendant) be decreed entitled thereto.
The relator, Chenoweth, was elected at the general election in the year 1900, and within the time allowed by law qualified and entered upon her office, which she has continued to hold ever since. At the general election held in the year 1902 the defendant, Acton, and one Brown were opposing candidates for the office. Both received an equal number of votes therefor. There being no election, the county commissioners of Teton county appointed the defendant to the office, whereupon she assumed to qualify and discharge the duties thereof. , The lower court rendered judgment for relator. Defendant moved for a new trial, which was denied, whereupon she appealed from the judgment and the order denying her a new trial.
The first question presented is, was there a vacancy when the county commissioners made the order appointing the defendant ? One of the provisions of Section 5, Article XVI, of the Constitution, is that there shall be elected in each county one county-superintendent of schools. It also declares: “Persons elected to the different offices named in this section shall hold their respective offices for the term of two years, and until their successors are elected and qualified. Vacancies in all county, township and precinct offices, except that of county commissioners, shall be filled by appointment by the board of county commissioners, and the appointee shall hold his office until the next general election.”
Section 1101 of the Political Code provides that an office becomes vacant on the happening of certain events therein enumerated, neither of which relates to the contingency of a tie vote. In construing a section identical with 1101, supra, the court said in Rosborough v. Boardman, 61 Cal. 116, 7 Pac. 261: “An office becomes vacant on the happening of any of the events enumerated in Section 996 of the Political Code, among which the event relied on in this case is not mentioned. The enumeration in the Code must be held to be exclusive.” Citing People v. Tilton, 37 Cal. 621; Stratton v. Oulton, 28 Cal. 45, and People v. Bissell, 49 Cal. 411.
“The word Vacancy/ as applied to an office, has no technical meaning. An office is not vacant so long as it is supplied, in the manner provided by the Constitution or law, with an incumbent who is legally qualified to exercise the powers and perform the duties which pertain to it; and, conversely, it is vacant, in the eye of the law, whenever it is unoccupied by a legally qualified incumbent, who has a lawful right to continue therein until the happening of some future event. Stocking v. State, 7 Ind. 326; Collins v. State, 8 Ind. 344; Akers v. State, 8 Ind. 484; State v. Bemenderfer, 96 Ind. 374; Gosman v. State, supra [106 Ind. 203, 6 N. E. 349]; Butler v. State, 20 Ind. 169; People v. Tilton, 37 Cal. 614; State v. Lusk, 18 Ho. 333; Commonwealth v. Hanley, 9 Pa. St. 513.” (State v. Harrison, 113 Ind. 434, 16 N. E. 384, 3 Am. St. Rep. 663.)
In appointing the defendant, the county commissioners assumed to act under the provisions of Section 1171, Political Code, which reads, in part, as follows: “In case of a tie vote for clerk of the district court, county attorney, or for any county officer except county commissioner, and for any township officer, the board of county commissioners must appoint some eligible person, as in case of other vacancies in such offices; and in case of a tie vote for county commissioner, the district judge of the county must appoint an eligible person to fill the office, as in other cases of vacancy.” Section 1171 does not in terms declare that a vacancy in office shall occur when there has been no election to the office by reason of a tie vote. Section 1101, as we have seen, defines “vacancies,” and .is exclusive. But in view of the constitutional provision it would not make any difference if the legislature had provided that a failure of -election by reason of a tie vote should cause a vacancy at the expiration of the two years for which the county officers are elected, for, by the terms of the Constitution, they “shall hold their offices for the term of two years, and until their successors are elected and qualified.” (Constitution, Article XVI, Section 5.) Under this section, it is clear that the relator in this case was entitled to hold her office for the term of two years, and it is equally clear that she is entitled to hold it until her successor is elected and qualified. Indeed, it is not only her right, but it is her duty to do so. (State ex rel. Thayer v. Boyd, 31 Neb. 682, 48 N. W. 739, 51 N. W. 602; People v. Hardy, 8 Utah, 68, 29 Pac. 1118.)
Under the provision of the Constitution which we are considering, the right of a duly elected and qualified officer to hold his office until his successor is elected and qualified is as much a part of his term as are the two years specifically mentioned. (People v. Green, 1 Idaho, 235.)
In Kimberlin v. State, 130 Ind. 120, 29 N. E. 773, 14 L. R. A. 858, 30 Am. St. Rep. 208, the court said: “The adjudicated cases seem to be harmonious in holding that, where one is lawfully in the possession of an office under a constitutional or statutory provision to the effect that he shall hold until his successor is elected and qualified, his right to hold over continues until a qualified successor has been elected by the sajne electoral body as that to which such incumbent owes his election, or which by law is entitled to elect a successor. Gosman v. State, 106 Ind. 203, 6 N. E. 349; State v. Lusk, 18 Mo. 333; People v. Tilton, 37 Cal. 614; Ex parte Lawhorne, 18 Grat. 85; Johnson v. Mann, 77 Va. 265; State v. Jenkins, 43 Mo. 261; State v. Harrison, 113 Ind. 434, 16 N. E. 384, 3 Am. St. Rep. 663.”
All elections by the people shall be by ballot. (Constitution, Article IX, Section 1.)
The policy of the provision that certain elective officers shall hold their offices until their successors are elected and qualified rests upon the theory, that in case the electoral body fails to discharge its functions, it is wiser and more prudent to authorize the incumbent to hold over rather than that a vacancy should occur, to be filled by the appointing power. (State v. Harrison, 113 Ind. 434, 16 N. E. 384, 3 Am. St. Rep. 663.)
It is significant that Section 5 of Article XYI, supra, provides that an elective officer shall hold until his successor is elected and qualified, while one appointed to fill a vacancy holds only until the next general election. The Constitution recognizes that vacancies will inevitably occur, and provides how they shall .be filled. What are vacancies, within the meaning of the constitutional words, is not clear. It was, of course, not necessary to provide expressly that vacancies may occur through the processes of nature. It was contemplated that vacancies might occur because of misconduct or malfeasance in office. For such causes all officers not liable to im-
peachment shall be subject to removal in such manner as may be provided by law. (Constitution, Article V, Section 18.) But whatever may or may not be vacancies, it is plain that there was none in the office of county superintendent of schools for Teton county when the county commissioners attempted to appoint the defendant to succeed the relator. (People v. Lord, 9 Mich. 227; Lawrence v. Hanley, 84 Mich. 399, 47 N. W. 753; State ex rel. Everding v. Simon, 20 Ore. 365, 26 Pac. 170; Eddy v. Kincaid, 28 Ore. 537, 41 Pac. 156, 655;State ex rel. Henderson v. Burdick, 4 Wyo. 272, 33 Pac. 125, 24 L. R. A. 266; People v. Osborne, 7 Colo. 605, 4 Pac. 1074; People v. Whitman, 10 Cal. 38; People v. Tilton, 37 Cal. 614; People v. Hammond, 66 Cal. 654, 6 Pac. 741; People v. Edwards, 93 Cal. 153, 28 Pac. 831; State v. Boucher, 3 N. D. 389, 56 N. W. 142, 21 L. R. A. 539.)
The case of Adams v. Doyle, 139 Cal. 678, 73 Pac. 582, is inapplicable to the one at bar.
It may not be amiss to say that the invalidity of Section 1171, Political Code, becomes more apparent when it is analyzed with reference to other constitutional provisions. (See Sections 1, 2, Article VII; Section 9, Article VIII; Section 4, Article XVI.)
We now come to the second point in the case. It is asserted that relator is not eligible to hold the office of county superintendent of schools, because when she was elected she did not possess the qualifications required by the statute, in this: She was the holder of only a second-grade certificate, whereas the statute prescribes that “no person shall be deemed legally qualified for the office of county superintendent unless he or she holds a certificate of the highest county grade, is a citizen of the United States, has resided one year next preceding the election in this state, and one year in the county in which he is a candidate, and has had twelve months’ successful experience in teaching in the public schools of this state. * * * ” (Political Code, Section 1744.) This section applies to men and women alike, and this fact must be borne in mind.
Section 2, Article IX, of the Constitution, declares that “every male person of the age of twenty-one years or over, possessing the following qualifications, shall be entitled to vote at all general elections and for all officers that now are or hereafter may be elective by the people and upon all questions which may be submitted to the vote of the people: First, he shall be a citizen of the United States; second, he shall have resided in this state one year immediately preceding the- election at which he offers to vote, and in the town, county or precinct such time as may be prescribed by law.” Section 10 of Article IX declares: “Women shall be eligible to hold the office of county superintendent of schools or any school district office, and shall have the right to vote at any school district election.” Section 11 of Article IX declares: “Any person qualified to vote at general elections and for state officers in this state, shall be eligible to any office therein except as otherwise provided in this Constitution, and subject to such additional qualification as may be prescribed by the legislative assembly for city offices and offices hereafter created.”
An examination of the Constitution discloses that it prescribes no other qualifications for a county superintendent of schools than those provided for in Sections 10 and 11; that is, the person must be either a woman, or a “person qualified to vote at general elections and for state officers in this state.” Additional qualifications are prescribed by the Constitution for certain other officers. The latter part of Section 11 cannot apply, because the office of county superintendent of schools is a creation of the Constitution. The Constitution has spoken, and it has prescribed the qualifications required of a county superintendent. The legislature may not supplement the constitutional pronouncement upon this subject. The maxim “expressio unius est exclusio altemus" applies.
It is earnestly argued that a person who holds the office of county superintendent should be one of learning and experience —one possessing especial professional attainments; that the statute is salutary and in accordance with the best interests of the public schools. All this is doiibtless true, but this argument should be addressed to the legislature, which has the power to submit constitutional amendments to the people, and not to a court. If there be unwisdom in the law, the courts have not the power to correct it. They must declare the law as they find it. The people have reserved to themselves the right to select their county superintendents from women and the general body of voters. If they desire to change the fundamental law, the way is open to them to do so conformably to their will.
It follows that the judgment and order should be affirmed.
Per Curiam. — For the reasons stated in the foregoing opinion, the judgment and order are affirmed.
|
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MR. JUSTICE HOLLOWAY
delivered tbe opinion of tbe court.
On January 23, 1903, the jury commissioners of Silver Bow county presented to the clerk of the district court of that county a list of names of persons selected for jury service for the year 1903, containing about 4,500 names, to which list the following sworn statement was attached:
“Butte, Mont., Jan. 22, 1903.
“Mr. Sam Roberts — Dear Sir: We, the undersigned county officials, beg leave to submit report relating to selection of jurors. Sec. 240, 241 and 242 (Penal) Code of Civil Procedure governs the same. This is to certify that Wm. D. Clark, Chairman of County Commissioners, James Maher, Treasurer, and Daniel Brown, Assessor, all officials of Silver Bow county, state of Montana. That the aforesaid Co. officials met in the office of the county clerk on the second Monday in January at 10 A. M. and selected said jury from the regular assessment roll of 1903. And said list of jurors is correct and accurate. Respectfully yours, “William D. Clark, County Commission.
“James Maher, County Treasurer.
“Daniel Brown, County Assessor.
“Subscribed and sworn to before me this 23d day of January, A. D. 1903.
“Samuel M. Roberts, Clerk.
“[District Court Seal.]”
On December 23, 1903, in Department No. 1 of the district court of Silver Bow county, an order was made directing the impaneling of a grand jury. This order was executed, and such grand jury, having been impaneled and charged, proceeded to the investigation of matters called to its attention, and after-wards returned into court an accusation in writing, charging W. D. Clark with various acts of misfeasance and malfeasance in office; W. D. Clark being a member of the board of county commissioners, chairman of such board, and the same person who, as such chairman, verified the list of persons selected for jury service as above -set forth. This grand jury also returned numerous indictments against Clark, who was thereafter ar rested and admitted to bail, and, when arraigned, made objection to the accusation and to the several indictments on a number of grounds, particularly specifying, among others, that the list of jurors from which the panel of grand jurors was selected was not drawn in accordance with the provisions of the law, in that (a) the jury commissioners did not meet at the time and place designated by law for drawing such list; (b) that the list of names returned to the district clerk was not drawn from the assessment roll for 1902; (c) that such list was not selected by the jury commissioners, or a majority of such board acting as such, but by one Lottie 0. Smith, a nonofficial person, who selected such list from a nonofficial list of persons, and that such list contains names of persons whose names do not appear on such assessment roll.
Upon the trial of this objection or challenge evidence was heard by the court, from which it appeared that on the second Monday of January, 1903, the chairman of the board of county commissioners, the county treasurer and the county assessor met in the county clerk’s office; that they employed Lottie 0. Smith, a typewriter, to write down the names; that each of the commissioners separately called off some of the names comprised in the list from a book used by the assessor’s deputies in making assessments ; that a considerable portion of the names were simply copied by Miss Smith without any member of the commission being present; that, after the list had been completed by the stenographer, the affidavit of the commissioners above was attached to such list, and the same then filed in the office of the district clerk.
This objection or challenge was overruled, and exception taken. A challenge to the individual grand jurors was also interposed and overruled.
Thereafter an application was made to this court for a writ of prohibition to prevent the district court from trying the defendant, Clark, upon any of the indictments so found. Upon the return this court dismissed the proceedings so far as they affected the action in the court below with reference to the in dictments, and this cause is now submitted on the question whether this court will prevent by prohibition the district court from proceeding to try Clark on the accusation returned against him.
The position assumed by the relator in the court below was this, in effect: I object to being tried on an accusation returned against me by this grand jury, for the reason that I, as a member of the jury commission, either willfully or in absolute disregard of my official duties failed and neglected to perform such duty, and, as the other members of such commission likewise failed in the performance of the duty imposed by law on them as members of such commission, therefore our own nonfeasance has left ihe county without any jury list frpm which a lawful grand jury might be selected to accuse, or a petit jury had to try, me for any criminal charge which might he presented against me; and this, loo, notwithstanding I verified the list made and filed with the district clerk.
It may be said in passing that in the affidavit above, where the figures “1903” appear, there is clearly a clerical misprision. Nrom the evidence taken on the hearing on the challenge to the grand jury it appears that what was intended in the affidavit was “1902,” as the assessment roll for 1903 was not in existence at the time the 'affidavit was made.
The first question with which we are confronted is this: May a member of the jury commission, who by his own nonfeasance or active misfeasance in office as a member of such commission has rendered the selection of the jury list so irregular that as to others it might be invalid, take advantage of his own wrongdoing when called upon to answer a charge presented by a grand jury selected from such jury list ? Or, in other words, will the courts hear a member of such commission, who has solemnly sworn that the jury commissioners did meet at the time and place designated by law, and did select the jury list from the last assessment roll, and that such list is correct and accurate, say now that the matters set forth in such affidavit are untrue, in order that he himself may escape the consequences of a trial upon an accusation presented by a grand jury selected from such, list ? The plainest dictates of reason would say at once, “No.” Whatever may be the rights of others, not members of such commission, to complain of the irregularities in the selection of such jury list, we hold that this relator’s mouth is closed when he assumed to act as such commissioner, and has solemnly declared that the mandates of the law were met and fully complied with, to say that in fact he, as well as the other members of such commission, who also assumed to act as such, had so willfully or negligently disobeyed the law as to render the selection of a jury list wholly nugatory.
To say that the relator’s position is tenable would be tanta1 mount to saying that two members of a jury commission may commit any crimes known to the law, and absolutely defy punishment, or even trial, during their terms of office, by designedly vitiating the jury list and taking advantage of their own wrongdoing. It is not possible that any such condition of affairs can exist under, or be countenanced by, the law.
There is no reason apparent why the doctrine of estoppel which pervades the civil department of our law ought not to be applied in the criminal law.
In State v. Spaulding, 24 Kan. 1, the defendant was charged with embezzlement. He was city clerk of Leavenworth. Under the law applicants for licenses were required to pay the fee to the city treasurer, and take his receipt therefor, and upon presentation of this receipt to the city clerk the license was issued. However, in many instances applicants for such licenses paid the fee to the clerk, who received the money .and issued the license. It was for the misappropriation of such funds that the clerk was charged with embezzling funds belonging to the city. The defendant contended that the funds did not belong to the city, because he had no right to receive them, and because they had not been turned over to the city treasurer; but the supreme court, in disposing of this contention, says: “The state rests upon the broad proposition that when a party assumes to act for another he is concluded by that assumption, no matter who else is bound; that if A. assumes to act as the agent of B., and receives money belonging to B.j he cannot thereafter'deny that it is B.’s money, and that notwithstanding B. is not concluded by his acts, and though in fact he was not the agent of B.; that this doctrine, universally recognized in civil, is equally true in criminal, law. A man may not say, £I have the right to receive money,’ and receive it, and then, when challenged for its receipt or embezzlement, avoid liability by saying, ‘I had no right to receive it.’ He has voluntarily assumed a position the responsibilities of which he may not avoid. The defendant may not say that he holds this money simply for the licensees, because he himself has issued the licenses, which he might rightfully issue only when the city had received the money; that by issuing he conclusively, so far as he was concerned, affirmed that the money he had received and was holding was city money. The law of estoppel binds him whether it binds any one else or not, and is equally potent in a criminal as well as a civil action. * * * We do not affirm that the city was concluded by the defendant’s acts, nor, indeed, that any one is estopped but himself. But we hold that when one assumes to act as agent for another he may not, when challenged for these acts, deny his agency; that he is estopped, not merely as against his assumed principal, but also as against the state; that one who is agent enough to receive money is agent enough to be punished for embezzling it.”
In State v. O’Brien, 94 Tenn. 79, 28 S. W. 311, 26 L. R. A. 252, the doctrine announced in State v. Spaulding, above, is quoted with approval. In this last case the defendant was supreme treasurer of a fraternal society organized under the laws of another state, and when charged with embezzling funds collected for such society in Tennessee he pleaded that the society had not complied with the laws of Tennessee, and therefore had no right to collect the funds in that state; but the supreme court brushed aside this contention, and, in addition to citing the Spaulding Case with approval, said: “Conceding that this corporation, organized, as is averred in the indictment, for benevolent purposes, is within the Act' of 1891 (and this we do not now determine), yet, if it should turn out in proof that the defendant, while acting as agent and employe of it, received money paid to him for his principal in the course of his employment, and then feloniously and fraudulently appropriated it to his own use, when indicted for the offense he cannot be permitted to defend himself from the criminal consequence of such wrongdoing upon the ground that his principal was carrying on its business in this state in violation of the terms of that Act. Upon the pláinest principles, having assumed to receive this money for his nonresident principal, he is concluded, both civilly and criminally, by this assumption. Whatever others 'might say about the right of this foreign corporation to come into this state to carry on its business and acquire property interests without having first complied with the requirements of the Act of 1891, at any rate the defendant’s mouth is closed when, as agent, he received the money of and for this corporation, and feloniously appropriates it to his own use. The wrongful act of the principal cannot be invoked as a protection against the still more wrongful act of the guilty agent. To him, under such circumstances, the rule of estoppel applies. * * * Without further discussion, we are content to adopt this rule of estoppel, so long recognized in the civil courts, as a proper one for enforcement in the criminal courts of this state, believing, as we do, that it rests on sound reason, and is supported by the weight of authority of eminent respectability.”
In 2 Bishop’s Criminal Law, 4th Ed., Section 367, the same doctrine is suggested as follows: “But why should not the rule of estoppel, known throughout the entire civil department of our jurisprudence, apply equally to the criminal ? If it is applied here, then it settles the question; for by it, when a man has received a thing for another under the claim of agency, he cannot-turn around and tell the principal, asking for the .thing, ‘Sir, I was not your agent in taking it, but a deceiver and a scoundrel.’ When, therefore, the principal calls the man under these circumstances to account, the man is estopped to deny the agency he professed, — why, also, if he is then indicted for not accounting, should he not he equally estopped on his trial upon the indictment?”
By law the selection of a list of persons from which grand or petit juries may be drawn is confided to the chairman of the board of county commissioners, the county treasurer and the county assessor (Section 240, Code of Civil Procedure), and to no others is this authority given; so that, if such officers breach their trust to such an extent as to render the list of no avail for jury purposes, the anomalous situation is presented of a county from which a valid jury may not be drawn until a proper list is selected, and that, too, through no fault of litigants or of the people generally. The seriousness of the situation is manifest. The law contemplates that at all times there shall be in readiness for use a proper list of persons from which juries may be drawn when required. Every litigant, in cases where a jury may be demanded as of right, and every person charged with crime, has a legal right to demand that the jury to try his cause shall be drawn and selected in a lawful manner, and every such person, speaking generally, may with perfect propriety urge any irregularity in the selection of the jury list; but to that rule this exception should be noted, viz., that whereas the people have confided to the jury commissioners the selection of such list to the end that the laws be administered with equal justice to all concerned, and such commissioners have assumed to act, and the public has relied upon such action, as it has a right to do, then, when the public’s interests are concerned in the accusation or trial of one of such commissioners, the public will not be misled to its injury by permitting such commissioner to say that he violated his official duty, and now takes refuge behind such violation as a shield to protect himself against the acts of a jury selected from the very list he himself has solemnly declared was duly selected in the manner required by law and a faithful observance of his official duties.
As the corollary to this it follows that this court will not hear relator, Clark, say that by prohibition the lower court ought to be restrained from proceeding to try him upon the accusation returned against him.
Relator also urges that prior to the time when such accusation was made the term of such grand jury had expired, as a new jury list had been prepared and filed on the second Monday of January, 1904; but this contention is not available.
Section 245 of the Code of Civil Procedure provides: “The persons whose names are so returned are known as regular jurors, and must serve for one year, and until other persons are selected and returned.” Standing alone, this section might seem to bear out the relator’s contention, but, when read in connection with other sections of that Code, its meaning becomes apparent. AVhen the jury commissioners have made the list of names as directed by Section 240, they must file the same with the district clerk (Section 242), who must write the names on slips or ballots, and deposit them in jury box No. 1 (Section 243). Before depositing such ballots or slips, the clerk must first destroy all slips remaining in such jury box. (Section 244.) When a jury is desired, it is drawn from jury box No. 1. (Section 260.) Assuming, for the purpose of illustration, that there are 1,000 men in a given county qualified and liable for jury service, whose names have been regularly drawn by the jury commissioners, and the slips containing such names have been regularly deposited in jury box No. 1, but during the year only 100 of those names are ever drawn for actual jury service, upon new names being returned the slips containing the 900 other names must be destroyed, and those men would not have performed jury service at all. This illustration, in the light of the sections of the Code above referred to, only serves to emphasize the fact that the term “regular jurors,” as used in Section 245, above, is applied to all persons qualified and liable for jury duty whose names were on the last assessment roll, for the presumption is that all such have been selected and returned by the jury • commissioners. (Section 241.) But they are not jurors in the sense that they have been summoned to attend court, have been examined under oath touching their qualifica tions to act as such., and have been regularly chosen by the court for such service. They are jurors in the sense that they have been set apart as eligibles, liable to be called upon to perforin jury duty; liable to be called upon to perforin such duty at any time within the year for which they were chosen by the jury commissioners when the list comprising their names was made up, and until other names are selected; and in this sense only do they serve as jurors for such prescribed term. If, then, the district court selected this grand jury from jury box No. 1, and such selection was made during the year 1903, or before the new list for 1904 had been filed, then the law in this regard was complied with, and the jury so selected was regularly constituted (assuming that all preceding steps had been regularly taken, which relator in this instance is not permitted to dispute) and qualified to perform the services for which it was chosen, even though the performance of such service should not be completed before the next jury list was selected and filed. In other words, the term of service mentioned in Section 245 has reference to the term during which a jury may be selected from such names, and not to the term during which such actual jury duties shall be performed. (State ex rel. Dunn v. Noyes, 87 Wis. 340, 58 N. W. 386, 27 L. R. A. 776, 41 Am. St. Rep. 45; In re Gannon, 69 Cal. 541, 11 Pac. 240, approved in Kelly v. Wilson, (Cal.) 11 Pac. 244; People v. Leonard, 106 Cal. 302, 39 Pac. 617.)
Rehearing denied January 3, 1905.
Por the reasons herein given, the alternative writ heretofore issued is quashed, and the proceedings are dismissed.
Dismissed.
Me. Ohiee Justice Brantly and Me. Justice Milbuen concur.
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ME. CHIEF .JUSTICE BEANTLY
delivered the opinion of the court.
In this action the plaintiff seeks to recover from the defendant the sum of $12,665, balance alleged to be due upon an account stated. It is alleged that on September 8, 1900, in Butte City, Montana, an accounting and settlement was had between the plaintiff and the defendant; that then and thereupon an account was stated between them; that upon such statement a balance of $20,665 was found due to the plaintiff from the defendant; and that the defendant then and there agreed to pay the same to plaintiff. It is further alleged that on the same day the defendant paid to plaintiff the sum of $8,000, leaving a balance due of $12,665, no part of which has been paid. Defendant answered by general denial of all the allegations of the complaint.
The action was commenced on February 5,1901. The answer was filed on June 13th. In the meantime, on March 15th, the defendant served upon plaintiff a written demand, of which the following is a copy: “The defendant in the above-entitled cause hereby demands an itemized account of the items of indebted uess which the plaintiff claims against the defendant — said items of account to be distinctly set out separately- — and, upon failure to receive the same, defendant will object to the introduction of proof.” The plaintiff having failed to comply with this demand, the defendant on October 3, 1901, after notice to plaintiff, filed with the cleerlc a motion asking the court for an order requiring the plaintiff to do so. On January 28, 1902, after a hearing upon this motion, the court caused to be entered in the minutes the following: “This day defendant’s motion for itemized account herein is by the court sustained.” On October 23, 1902, the cause came on regularly for trial. A jury was called and sworn. The plaintiff was sworn as a witness, and an objection by the defendant to the introduction of evidence, on the ground that the plaintiff had failed to comply with his demand, and the order of the court to furnish the itemized account, was sustained. The court thereupon directed a verdict for the defendant. Judgment was entered accordingly. The plaintiff has appealed from the judgment, and also from an order made denying him a new trial.
The only question presented arises out of the action of the court in sustaining defendant’s objection. Section 743 of the Code of Civil Procedure reads as follows: “It is not necessary for a party to set forth in a pleading the items of an account therein alleged, but he must deliver to the adverse party, within five days, or such further time as the court may allow, or may be agreed to by the parties, after a demand thereof in writing, a copy of the account, or be precluded from giving evidence thereof. The court or judge thereof may order a further account when the one delivered is too general, or is defective in any particular.”
A considerable portion of appellant’s brief is devoted to a discussion of the demand and the minute entry. It is said that both mention an itemized account, instead of a copy thereof, for which only the statute authorizes a demand. It is also said that the minute entry contains no direction to the plaintiff to furnish anything, and therefore is not in substance an order. We shall not consider these technical objections, but assume, for the purpose of this case, that the demand-was sufficiently accurate to be held as a compliance with the statute.
The theory upon which the district court proceeded was that the statute applies to actions on accounts stated as well as to those upon open, unsettled accounts. In suits upon the latter class of accounts the defendant is entitled to know the specific demand or demands made against him, and, when the complaint does not set forth the items of the charges making up the sum total, he is entitled to a bill of particulars to inform him of them, so that he may make proper defense. A copy of the account as kept by the plaintiff is the bill intended by the statute.
In an action upon an account stated, the situation is different. An account stated is an agreement between the parties, either express or implied, that all the items are correct. (Voight v. Brooks, 19 Mont. 374, 48 Pac. 549; Auzerais v. Naglee, 74 Cal. 60, 15 Pac. 371; 1 Waite’s Actions and Defenses, 191.) The action is based upon the agreement, the consideration of which is the original account, and the agreement has the force of a contract. This contract is the cause of action, and the plaintiff must recover upon it, or fail in the action. (Volkening v. De Graaf, 81 N. Y. 268; Holmes v. Page, 19 Ore. 232, 23 Pac. 961; Coffee v. Williams, 103 Cal. 550, 37 Pac. 504; Estee’s Pleadings, (4th Ed.) Vol. 1, 616.) It is therefore not necessary, nor is it permissible, to prove the items of the original account. They may not be inquired into or surcharged, except upon the ground of fraud, error or mistake in the ascertainment of the balance (Auzerais v. Naglee, supra; Hawkins & Co. v. Long, 74 N. C. 781), and then only when the fraud, error or mistake upon which the agreement is sought to be impeached is specifically alleged in the answer (Auzerais v. Naglee, supra; Coffee v. Williams, supra; Kronenberger v. Binz, 56 Mo. 121.)
Section 743, supra, can have no application to such a case. It, in terms, applies only to actions upon open, unsettled accounts, in which it is necessary to examine and establish the items going to make up the sum total, or an alleged balance which is disputed in whole or in part. The requirement is that the plaintiff shall furnish the copy upon notice within a time specified or fixed by the parties or by order of the court, or be precluded from giving evidence in support of his claim. "When the copy furnished is not specific or is indefinite, the court or judge may order an additional statement. If the copy is not furnished at all, the penalty may be exacted. If the further account is not furnished in obedience to the order, the penalty is not a refusal to hear evidence in support of the claim, but punishment as for a contempt. If, in an action upon an account stated, it should become necessary that the defendant have a bill of particulars, or otherwise ascertain the facts, in order that he may prepare his defense, the appropriate remedy would seem to be an application to the court for such a bill, or for an inspection of plaintiff’s accounts, under Section 1810 of the Code of Civil Procedure. But however this may be, we have seen that Section 743 has no application to actions on accounts stated. It follows that the action of the court in sustaining the objection to evidence was error.
The judgment and order are therefore reversed, and the cause remanded, with directions to the court below to grant a new trial.
Reversed and remanded.
Mr. Justice Milburn, not having heard the argument, takes no part in this decision.
|
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26,
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9,
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20,
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37,
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58,
-21,
18,
23,
23,
61,
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38,
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49,
-7,
22,
12,
14,
11,
-41,
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46,
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25,
-51,
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9,
20,
27,
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1,
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-5,
39,
35,
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8,
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69,
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10,
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91,
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3,
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61,
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54,
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13,
26,
37,
13,
-10,
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1,
32,
40,
-5,
18,
-7,
15,
0,
33
] |
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