text:
    GREGG, Respondent, v. KOMMERS et al., Defendants. PORTER et al., Appellants.
    [No. 1,079.]
    [Submitted April 10, 1899.
    Decided May 8, 1899.]

      Appeal — Review—Mortgage—New Trial — Briefs—Rules of Supreme Court.

    1. Where decree on foreclosure fails to expressly provide that no deficiency judgment shall be entered against the mortgagor, and also fails to provide for a distribution of surplus, and the mortgagor does not appeal therefrom, no other party, who is unaffected by such omissions, can complain thereof.
    2. Where money was loaned, and a deed to secure the same executed in blank, and deposited in escrow, to be filled in with name of mortgagor, and delivered to him on payment of the loan, it was admissible in evidence, as bearing on the question whether the transfer was a mortgage or an absolute sale.
    3. Where no exception is noted, admission of evidence cannot be reviewed.
    4. Where appellants’ brief does not contain a “concise abstract or statement of the case, referring to the page numbers in the transcript where the evidence may be easily found,” assigned errors based upon the admission or exclusion of testimony will not be considered.
    5. A new trial will not be granted on the ground of newly-discovered evidence, because a witness who testified failed to state all he knew, either through forgetfulness on his own part, or unfamiliarity of his counsel with the knowledge of the facts which the witness possessed.
    O. Failure of the appellant to incorporate in his brief “a brief of the argument exhibiting a clear statement of the points of law or fact to be discussed” warrants a refusal by the Supreme Court to consider any of the assignments of error.

      Appeal from District Court, Cascade County; C. II. Benton, Judge.

    Action by J. O. Gregg against Louis Kommers and others. Judgment for plaintiff. Defendants Henry H. Porter and John W. Stanton appeal.
    Affirmed.
    Statement of the case by the Court.
    The complaint in this action alleges that on March 19, 1892, the plaintiff and the defendant ° Kommers entered into a contract of that date, substantially as follows: Gregg agreed to loan to Kommers, for a term of one year from the date of the contract, the sum of $1,000, with interest from date at the rate of 18 per cent, per annum until paid. To secure this loan, Kommers agreed to convey by deed a certain tract of land in Cascade county, which had been entered by Kommers at the United States land office on March 3, 1892. In order to induce Gregg to make the loan, Kommers agreed that his title was good, under the homestead laws of the United States. The agreement further witnessed that Kommers agreed to execute, contemporaneously with the contract, a warranty deed to one H. H. Porter for the land aforesaid, for a consideration of $2,000 expressed therein, which said deed was to be placed in the custody of John W. Stanton until Porter should execute a deed with the name of the grantee to be left blank, and, after Porter had executed the deed as aforesaid, Stanton was to have the deed of Kommers to Porter recorded. The deed to be executed by Porter was to be placed in escrow, in the custody of Stanton, and was to be held until Kommers should pay the loan, with interest thereon, and, upon the payment of the loan by Kommers to Gregg, Stanton should have power, which was given him by the contract itself, to insert the name of Kommers as grantee in the Porter deed, and to deliver the same to Kommers; whereupon Kommers should be entitled to receive the deed, and should be entitled to the land as if no conveyance had ever been made. The contract further recited that Porter had no interest of any nature in the land, and that, upon payment to him of the loan and interest, Gregg should have no further or other interest in the land, but that Kommers should have full enjoyment thereof as if the aforesaid conveyances had not been made. The contract then continued: “It being understood between the parties hereto that the title to the lands and conveyances aforesaid is made as security for said loan, and not as an absolute sale, the same being intended as, and deemed to be in the nature of, a mortgage. ” The complaint averred that, upon the execution and delivery of the aforesaid contract, Gregg loaned Kommers $1,000 upon the terms and conditions set out in the contract, and thereby Kommers became indebted to Gregg in the sum of $1,000 and interest, which has not been paid. It is then averred that, at the time of making the contract aforesaid, Kommers owned the property therein described, and that at the request of Gregg, and in order to secure the payment of the indebtedness, Kommers executed and delivered to the defendant H. H. Porter a deed of conveyance conveying to Porter the legal title to the land in trust, to be held by Porter to secure the payment of the loan to Gregg until the indebtedness from Kommers to Gregg should be fully paid, and upon full payment, as provided in the contract, the lands were to be reconveyed to Kommers. It is alleged that, after Kommers made the deed to Porter in trust, Porter, in accordance with the contract and on the request of Kommers, on April 4, 1892, made and acknowledged a certain deed of conveyance for said lands, but left the name of the grantee blank, as provided for in the contract; and thereupon Kommers delivered the deed to Stanton, to be held by him in trust until the debt from Kommers to Gregg should be paid, in which event Stanton was to deliver the deed to Kommers, and Kommers should then have the right to insert in the deed his own name, and thus secure the legal title to the land. It is alleged that Kommers has not paid the debt; that Porter still holds the legal title in trust; that, by reason of the premises, plaintiff Gregg has a valid lien in the nature of a mortgage upon the lands; that Porter has no right therein, except the trust for plaintiff and defendant Kommers; that Stanton has no right or interest to the lands, but that he has in his possession the deed made by defendant Porter to the blank grantee; and that Stanton •and Porter and others are conspiring to defraud plaintiff, and to deprive him of his lien, and threaten to convey the land to other persons. It is alleged that Chesbro, defendant, claims an interest in the land, but that it is subsequent to the lien of Gregg, and that H. H. Porter, Stanton and Kommers claim an interest therein, but that their rights, if any, are subject to the rights of plaintiff. Plaintiff prayed for judgment against Kommers for $1,000, and interest at the contract rate; that the contract between Kommers and Gregg, and the deed to Porter, and from Porter, now in possession of Stanton, be declared an equitable mortgage in favor of plaintiff; that the said mortgage might be foreclosed; and for further equitable relief.
    The defendants Kommers, Stanton and Porter answered, putting in issue all the allegations of the complaint, except that Kommers had conveyed the land to Porter.- As new matter, defendants alleged that on March 19, 1892, Kommers owned the land in question, and that on that day, for a valuable consideration, he conveyed the -land to Porter by warranty deed, and that since that time Porter has owned and possessed the same; that Chesbro is a relative of his counsel, Mr. Burlingame, who is a son-in-law of plaintiff; and that on July 28, 1894, plaintiff, Burlingame, and Chesbro entered into a conspiracy to put a cloud upon the title of Porter to the land, and by means of false and fraudulent statements and representations made by them to Kommers, and believed by Kommers, they induced Kommers to make a deed of the land to defendant Chesbro. Chesbro answered, admitting the allegations of the complaint, and alleging that on July 28, 1894, Kommers conveyed the land to him (Chesbro). He alleged that Gregg’s interest in the land was the lien pleaded in Gregg’s complaint, and that the defendants Kommers, Porter and Stanton had no right to the land, but that the deed of Kommers to Porter was a cloud upon his (Chesbro’s) title. He asked to be declared the owner after the satisfaction of Gregg’s lien.
    Gregg filed a replication, in which he admitted the allegation’s in Chesbro’s answer, but reasserted his own mortgage lien as the first upon the land.
    The case was tried by the court, and judgment entered for plaintiff. Defendants Porter and Stanton appeal from the judgment and an order denying a new trial.

      Stanton <& Stanton and Ransom, Cooper, for Appellants.

      Geo. H. Stanton, for Respondent.
   PER CURIAM.

1. There is sufficient evidencé- to sustain' the conclusion of the District Court that the contract sued upon created a mortgage lien in plaintiff’s favor on the premises described in the complaint. This was the controlling question in the case.

2. Kommers does not appeal. Therefore he cannot complain of the form of the decree, which fails to expressly provide that no deficiency j udgment should be entered against him; while defendants Porter and Stanton cannot be injured by such omission, for no deficiency judgment was asked or granted against them or either of them. Nor can Porter and Stanton complain of the omission in the decree to provide for a distribution of surplus, for neither of them is affected by such omission.

3. Under the contract between Gregg and Kommers, the court properly allowed interest on the principal sum found to be due at the rate of 18 per cent, per annum.

4. The deed by Porter to a blank grantee was competent evidence as bearing upon the question of whether the contract between Gregg and Kommers was acted upon by the parties thereto, and believed and intended by them to be a mortgage.

5. There was no reason why the court should have adjudicated the rights between Chesbro and Porter, for the court decided that Porter had no interest at all in the land.

6. Plaintiff objected to a question relating to the purchase of a tax title put by defendants to one Burlingame on cross-examination. The court sustained the objection. No exception was noted. Defendants cannot now complain.

7. Defendants have assigned several other errors based upon admission or exclusion of testimony. Most of these specifications are disposed of by saying that in their brief defendants do not refer us to the pages where such evidence occurs, nor have they made a concise abstract or statement of the case, referring to the page numbers in the transcript where the evidence may be easily found. For this inexcusable violation of the rules we pass several alleged errors. This comment applies also to the alleged error of the court in striking out certain new matter set up in defendants’ answer. The assignments which refer to the record and which are argued in the brief are not well taken.

8. The ground of newly-discovered evidence, upon which a new trial was asked, has no merit. Courts will not retry cases because a witness who has testified failed to state all he knew either through forgetfulness on his own part, or unfamiliarity of his counsel at the time of the trial with the knowledge of the facts which the witness possessed.

There are sixteen “specifications of error” set forth in the appellants’ brief, "but there is no brief of the argument exhibiting a clear statement of the points of law or fact to be discussed, as required by Rule 5 of this Court. (Babcock v. Caldwell, 22 Mont. 460, 56 Pac. 1081.) We were warranted in refusing to consider any of the assignments of error, but have patiently gone through the record, and, without enumerating all errors specified, are of the opinion that appellants are not entitled to relief. Judgment and order affirmed.

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE, Respondent, v. KINDER et al., Appellants.
    [No. 1,359.]
    [Submitted May 1, 1899.
    Decided May 8, 1899.]

      Becei/ovng Stolen Goods — Evidence of Larceny — Conviction.
    Evidence showing that defendant was guilty of the crime of larceny does not justify his conviction of the crime of receiving stolen goods, knowing the same to have been stolen.

      Appeal from District Court, Silver Bow County; William Clancy, Judge.

    J. W. Kinder, charged under the name of William Kinder, and Hannah Kinder were convicted of receiving stolen goods, and appeal.
    Reversed.

      Campbell <& Parr, for Appellants.

      C. B. Nolan, Attorney General, for the State:
   PER CURIAM.

Appeal by both defendants from judgment of conviction for receiving stolen property, knowing the same to have been stolen. (Penal Code, Section 899.) The Attorney General frankly confesses that the evidence is insufficient to sustain the conviction under the information filed herein. We shall not state the testimony, but have read it, and agree that it is altogether insufficient to convict J. W. Kinder of any crime at all; and, although it goes to show that Hannah Kinder stole certain property and was guilty of the crime of larceny, in no respect did it justify her conviction of having received stolen goods, knowing the same to have been stolen. The distinction between larceny and receiving stolen goods is commented upon in State v. Rechnitz, 20 Mont. 488, 52 Pac. 264. A defendant cannot be charged with the one crime and convicted of the other.

Judgment reversed. Reversed.


author: PER. CURIAM.

text:
    GIBSON, Respondent, v. HUBBARD, Appellant.
    [No. 1,222.]
    [Submitted May 3, 1899.
    Decided May 8, 1899.]

      Appeal — Brief-—Specification of Errors — Rules of Supreme Court.

    Wliere appellant’s brief contains no specification of errors relied upon, as required by Subdivision 3, Rule V, of the Supreme Court, the appeal will be dismissed.

      Appeal from District Court, Flathead County; D. F. Smith, Judge.

    Action by J. B. Gibson against W. F. Hubbard. There was a judgment for plaintiff, and defendant appeals.
    Appeal dismissed.

      Frank L. Gray, for Appellant.

      II. G. Swaney, for Respondent.
   PER. CURIAM.

Claim and delivery. This appeal must be dismissed. The brief contains no specification of errors relied upon, as required by Subdivision 3, Kule V, of this Court (44 Pac. vii). The appeal is brought directly within the announcement made last year in Beck v. O'Connor, 21 Mont. 109, 53 Pac. 94, that such an utter disregard of the rules of the Court would be punished by a dismissal of the appeal. As well put by Chief Justice Pemberton, “We must either punish such seeming contempt for the rules or abolish them.” (Beck v. O'Connor, supra; Babcock v. Caldwell, ante, p. 460, 56 Pac. 1081).

Dismissed.


text:
    HOSKINS, Respondent, v. HUBBARD, Appellant.
    [No. 1,319.]
    [Submitted May 3, 1899.
    Decided May 8, 1899.]

      Appeal — Brief-—Specification of Errors — Buies of Supreme Court.

    The case of Gibson v. Hubbard, ante p. 517, followed.

      Appeal from District Court, Flathead County; D. F. Smith, Judge.

    Achon by Jennie Hoskins against W. F. Hubbard. There was judgment for plaintiff, and defendant appeals..
    Appeal dismissed.

      Frank L. Cray, for Appellant.

      B. J. Me Intire and II. G. Swaney, for Kespondent.
   PER CURIAM.

Claim and delivery. Appeal dismissed for lack of a specification of errors in the brief of appellant. (Gibson v. Hubbard, ante, p. 517).

Dismissed.


author: PIGOTT, J.

text:
    KENCK, ADMR., Respondent, v. PARCHEN et al., Appellants.
    [No. 1,083.]
    [Submitted April 14, 1899.
    Decided May 8, 1899.]

      Executors and Administrators■— Conditions of Bonds — Signature of Principal — Liability of Sureties — -Res Judicata.

    1. The sureties on a joint and several administrator’s bond cannot defeat their liability on the ground that it was signed by them on condition that the administrator should sign before delivery, since such bond is good as to the sureties, without the signature of the principal, who procures and delivers it.
    2. The delivery of an administrator’s bond without the signature of the principal is not a violation of an agreement with the sureties that the bond was not to be filed with the probate court until he had signed it, where his name was signed in the body of the instrument before delivery.
    3. It is, as a matter of law, immaterial where a signature to a bond be; it is as binding when found anywhere else in the paper as it is when appearing at the end; provided it appear, as a matter of fact, that the party meant to be bound by his signature so placed.
    4. A judgment against an administrator in a probate proceeding determining the amount of his indebtedness to the estate is conclusive as against the sureties, and cannot be inquired into collaterally.

      Atrpeal from District Court, Lewis and Clarke County; 11. R. Buck, Judge.

    Action by Joseph Kenck, as administrator of the estate of William Craigie, deceased, against Henry M. Parchen and T. H. Kleinschmidt, impleaded with Henry C. Yaeger. From a judgment for plaintiff and an order denying their motion for a new trial, defendants appeal.
    Affirmed.

      Toole de Wallace, for Appellants.
    A bond, joint and several on its face, purporting to be that of both principal and sureties, subscribed by the sureties alone, is sued on in this case. At the time of its execution by the sureties it was left with the principal obligor upon the condition that it should not be filed until subscribed by him. The question arises: Do these facts constitute a defense to the sureties ? The following propositions are deduced from the authorities:

      (a) An extreme line of cases declares that where the obligation is joint of principal and sureties, and Jacks the subscription of the principal, it is an incomplete invalid contract, even though no conditions were made by the sureties at the time of signing.. (City v. Dunlap, 14 Cal. 421, 424; People v. Hartley, 21 Cal. 588, 589; City v. Melius, 59 Cal. 449; 17 Mass. 591, 904; Cavanaugh v. Castleman, 88 Cal. 549; Woods v. Washburn, 2 Pick. 24 (Administrator’s bond); 'Sharp v. U. S., 4 Watts, 21, (28 Am. Dec. 676); Savannah By. Co. v. Clark, 23 Fla. 308, (2 So. 667); Lovett v. Adams, 3 AVend. 380; Com. .v. Magoffin, 25 S. W. 599). .
    (b) As to a joint and several bond like ours, which on its face purports to be the bond of principal and sureties, and only signed by the latter, if there was in fact a condition of signing that it should not be delivered until subscribed by the principal, the appearance of the bond imparts notice to all the world, and when the condition is proven it is a defense to the surety because the condition is a part of his contract. (Fletchers. Austin, 11 Yt. 449; Kurtz v. Forquer, 29 Pac. 413 (Cal.); Woods v. Washburn, 2 Pick. 24; Wild Cat Branch v. Ball, 45 Ind. 213; Key v. Orr, 2 Mont. 562; State v. Wallis, 57 Ark. 64 (20 S. W. 811); King v. Smith, 2 Leigh 157 (Va.); Haskins v. Lombard, 16 Me. 140; Nash v. Fugate, 18 Am. Eep. 640; Mullen v. Morris, 62 N. AY. 74, 77, (in which case many authorities-are reviewed and classified, and nearly all of them referred to); also Williams v. Luther, 30 S. W. 199; State v. McDonald, 40 Pac. 312).
    The eases expressly distinguish between a bond apparently complete on its face and one that is incomplete — holding as to the former that it puts all the world on its guard, and as to the latter that actual notice must be brought home to the obligee. This distinction is recognized in California, as shown by 14 Cal. 424, and by 29 Pac. Eep. 413, the latter being a joint and several bond. So, also, in Maine they hold the undertaking invalid where bond incomplete on its face, in 16 Me. 140; but otherwise-where no proof of actual notice, and. the bond complete on its face, in 53 Me. 284. So inYirginia, they hold that, as to an incomplete bond, it is invalid in 2 Leigh, 157; 18 Gratt. 808; but otherwise, as to a bond complete on its face and no notice shown, in 24 Gratt. 202. So in Vermont they hold the former rule, in 11 Vt. 447; and the latter rule as to a bond complete on its face in 31 Vt. 318. So in Indiana they hold the latter rule as to an apparently complete bond in 31 Ind. 76; the former rule as to a bond incomplete on its face, in 45 Ind. 213. From the classification of cases in 62 N. W. 77, it will be seen that there is no controversy in the doctrine that a bond incomplete on its face puts everybody on notice to find out whether there were any conditions; the only dispute arises as to whether an incomplete bond is prima facie evidence of a condition, so as to put the plaintiff to the burden of showing the non-existence of conditions. This latter question is not in this case, however, as the condition is a fact, found by the court, as is also the incomplete character of the bond. That this condition to a joint and several bond can be legally made where the paper is left with the co-obligor and principal is decided, after full discussion of the question, and consideration of the cases in 18 Gratt. 811, 812, 813, where the conclusion is reached, also, that “all the cases agree” that the condition is always valid where the bond appears incomplete on its face. (See also 62 N. W. Rep. 74, 77, supra; Williams v. Luther, 30 S. W. 199). In the Calkins case, 13 Montana, 365, the statute required only an undertaking, not a bond; while here the statute and the order of appointment, each expressly required a bond, thus making subscription by the principal essential to the completion of the instrument. ( Wier v. Mead, 101 Cal. 125, 35 Pac. Rep. 567, 568, 569.) A case squarely in point on administrator’s bond. Board v. Sweeney, 4 8 N. W. 302). And in the Calkins case, Mr. Justice DeWitt in his concurring opinion expressly reserves his view on the question now before us. Our Supreme Court never intended to attack these principles so - firmly established everywhere; as one of the cases that holds to the extreme view under a, supra, {JPicot v. Webster, 14 Cal. Rep. 203), is afterward approvingly quoted in Bodini v. Bytle, 17 Mont. Rep. 452, to the extent of two pages.
    , (c) The distinction between conditional delivery to a third person and to the principal obligor is that, in the former instance, though the bond be complete on its face, it is notice; while in the latter it is not notice unless the bond be incomplete on its face, when the paper itself is notice. ( Whitsell v. Mebane, 64 N. C. 345, 18 Am. Rep. 640.)

      T J. Walsh, for Respondent.
   PIGOTT, J.

-From June 23, 3 888, to January 28, 3893, defendant Yaeger was administrator of the estate of William Craigie, deceased. On the day last mentioned his letters were revoked, and on June 12th following plaintiff qualified. On December 2, 1895, in a proceeding against Yaeger for an accounting touching his administratorship, the court found that on September 1, 1889, he had converted to his own use $2,256 of the money of the estate, which sum, with interest thereon at the rate of 6 per cent, per annum from October 1, 1889, amounting in all to $3,090.72, he still owed the estate; and judgment against Yaeger was rendered accordingly. To recover the sum so adjudged due from Yaeger, this action was brought against him- and his sureties on his official bond, of which the following is a copy:

“Know all men by these presents, that we, Henry C. Yaeger, as principal, and T. H. Kleinschmidt and Henry M. Parchen, ás sureties, are held and firmly bound to the Territory of Montana in the sum of five thousand dollars, lawful money of the United States of America, to be paid to the said Territory of Montana, for which payment well and .truly to be made we bind ourselves, our and each of our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated this 20th day of June, 1888.
‘ ‘The condition of the above obligation is such that whereas, by an order of the probate court of the county of Lewis and Clarke,-Territory of .Montana, duly made apd. entered on the 13th day of June, 1888, the above-bounden Henry C. Yaeger was appointed administrator of the estate of William Craigie, deceased, and letters of administration were directed to be issued to him upon his executing a bond, according to law, in said sum of five thousand dollars.
‘Now, therefore, if the said Henry C. Yaeger, as such administrator, shall faithfully execute the duties of the trust according to law, then this obligation to be void, otherwise to remain in full force and effect.
“T. H. Klbinschmidt. [Seal]
“H. M. Parchen. [Seal]”

Yaeger presented the bond to the probate judge, who approved it on June 23d, and the clerk, after filing it, issued letters to Yaeger, who had already taken the oath prescribed.

The sureties answered, denying that Yaeger converted any funds of the estate. They interposed also the following plea:

‘ ‘Deny that these answering defendants ever executed, made or delivered the said alleged bond set forth in paragraph 3 of said complaint; and, while admitting that they signed the same, they aver that they signed the same without intending to enter into any independent undertaking for themselves, and upon the express condition and direction to the defendant Yaeger that the same should not be filed with the probate court until said Yaeger himself had signed the same as principal, and that the said Yaeger was so named as a party to said bond upon the face thereof, but that he never signed or executed the said bond. ’ ’

Trial was by the court without a jury. The testimony of the sureties tended to show this state of facts: When Yaeger presented the bond to them for their signatures he had already filled in the blanks in the bond, with the exception of the names of the sureties. His own name, which appears three times in the bond, was written therein by himself. Entertaining the opinion that the bond would not be an obligation binding Yaeger, and that they would be principals and have no recourse to him thereon, unless his name were subscribed thereto, the sureties signed the bond and delivered it to Yaeger, with secret instructions not to file it until signed by him. Yaeger never subscribed the bond. The court found that the sureties signed the bond upon the express condition between themselves and Yaeger that the same should not be filed with the probate court until Yaeger had subscribed the bond, and that the approval and filing of the same by the probate judge, and clerk was without the knowledge of the sureties, but held that the sureties were nevertheless liable. Judgment was entered accordingly for $3,341.10, including interest; from which, and from an order denying their motion for an¿w trial, the answering defendants appeal.

1. The first assignment is that the court erred in rendering ju'dgment for any amount against the sureties on the bond, it being insisted that the instrument sued on is, under the facts stated, not enforceable against them, because they did not consent to its delivery. This condition is disposed of adversely to defendants in Woodman v. Calkins, 13 Mont. 363, 34 Pac. 187, and Cockrill v. Davie, 14 Mont. 131, 35 Pac 958. The cases of Hart v. Mead Investment Co., 53 Neb. 153, 73 N. W. 458, Byers v. Gilmore, 10 Colo. App. 79, 50 Pac. 370, and Doorley v. Farmers & Mechanics’ Lumber Co., 4 Kan. App. 93, 46 Pac. 195, are likewise in point and to the same effect. See, also, Kurtz v. Forquer, 94 Cal. 91, 29 Pac. 413. Were the bond joint only, and not joint and several, different principles might perhaps be applicable, as was held in Weir v. Mead, 101 Cal. 125, 35 Pac. 567.

Por another reason the assignment is without merit. The answer, as will be observed, avers that the sureties signed the bond upon the condition that Yaeger should also sign it, and that they did not consent to the delivery without his signature. Yaeger did effectually sign the bond by writing his own name three times in the body of the bond, and delivering it to the próbate judge, thereby adopting the signatures written by him. (McLeod v. State, 69 Miss. 221, 13 South. 268.) It is, as a matter of law, immaterial where the signature be; it is as binding when found anywhere else in the paper as it is when appearing at the end, ‘ ‘the question being always open to the jury whether the party, not having signed it regularly at the foot, meant to be bound by it as it then stood, or whether he left it so unsigned because he refused to complete it.” (Johnson v. Dodgson, 2 Mees. & W. 653; State v. Hill, 47 Neb. 456, 66 N. W. 541.) The answer states that the condition imposed on, and the direction to, Yaeger was that the bond should not be filed with the probate court until he had signed it, — not that his subscription must prcede the filing. The delivery of the bond was not, therefore, a violation of the condition pleaded. (State v. Hill, supra.)

2. The remaining assignment is that the court erred in rendering judgment for any amount above §2,256, and interest from December 14, 1895, when the demand was first made on appellants. This question was presented in Botkin v. Kleinschmidt, 21 Mont. 1, 52 Pac. 563, where it was, in effect, decided that a judgment against an administrator in a probate proceeding of the character of the one involved here is conclusive as against the sureties, and cannot be inquired into collaterally; and we affirm the doctrine there declared.

The judgment and the order denying a new trial are aifirmed.

Affirmed.

Brantly, C. J., and Hunt, J., concur.


author: BRANTLY, C. J.

text:
    HUNTER et al., Appellants, v. MONTANA CENTRAL RAILWAY CO., Respondent.
    [No. 1,097.]
    [Submitted April 24, 1899.
    Decided May 15, 1899.]

      Railroads — Evidence—Amendment—Harmless Error — Negligence— Contributory Negligence — Burden of Proof.

    1. There is no error in excluding a question where witness has already answered a similar one.
    •2. Error in permitting amendment to conform to proof was harmless, where the original pleading was broad enough to cover the proof.

      3. The evidence conflicting as to whether a whistle was blown and. bell rung on a train’s approaching a crossing, the court properly assumed that signals were not given in directing verdict for the company because of plaintiff’s contributory negligence.
    4. Under Civil Code, See. 908, making it a misdemeanor for a railroad to permit its trains to approach a crossing without sounding the whistle and ringing the bell, such action is negligence.
    5. Deceased, killed at a railroad crossing, and two of his companions, lived near the crossing, and, with the driver, were familiar withit. Thedriver passed it frequently; once before, that day. He was an experienced driver, and his team was gentle. They knew that vision of the track and approaching trains was obstructed to within 45 feet of the track, and that they could not turn out at that point. They trotted their team to within 30 feet of the traek, on a dark night, before they noticed a train which was then upon them. They had neither stopped, looked, nor listened. Seld, that action would not lie against the company, notwithstanding it failed to ring a bell and blow a whistle.
    6. Where plaintiff’s evidence raises a presumption of contributory negligence, the burden is on him to remove it; and hence a finding of contributory negligence may be justified, though defendants offer no proof.

      Appeal from District Court, Lewis cmd Clcurke County• Henry H. Blake, Judge.

    Action by Herbert Hunter and others against the Montana Central Railway Company. There was a judgment for defendant, and plaintiffs appeal.
    Affirmed.
    Statement of the case by the Justice delivering the opinion.
    Action by the heirs of Henry N. Hunter for damages for injuries resulting in his death. The accident in which the injuries were received occurred in Jefferson county, at a crossing of a public highway leading from Lump City to Hartford over the defendant’s road at or near the latter place.
    On January 13, 1896, at about 8 o’clock in the evening, the deceased, Hunter, with three companions, John Wallace, Kay Reed and T. J. Chestnut, were driving eastward from Lump City to Hartford in a surrey. The conveyance belonged to Wallace, who sat on the right in front, and was driving. Chestnut sat beside him. Reed and Hunter sat in the rear seat, Reed occupying the right. The three last mentioned had engaged Wallace at Lump City to drive them to Hartford. Wallace and Reed resided at Lump City. Hunter’s home was at Clancy. Hartford and Clancy are stations on the railroad. Lump City lies off to the west. All are in the same vicinity. The evening was cold and dark, but quiet. There was no moon. The road was “pretty rough.” All the party had lap robes, but none wore mufflers. All of them were familiar with the crossing, except Chestnut, who was a stranger. The railroad in the vicinity of the crossing runs north and south. On the south of the highway were willow bushes extending along the line of the railroad, and about 45 feet therefrom. These somewhat obscured the view of the persons approaching on the highway from the west until within about this latter distance, but from this point an approaching train can be plainly seen for about 200 feet towards the south. At 60 feet from the crossing is a bridge. From this bridge the road descends gently for a distance, and then ascends in the same way to reach the grade of the railroad. This part of the highway is a narrow turnpike, with a ditch on either side, so narrow that the team could not be turned. Wallace, the driver, was a livery man; was in the habit of driving over this road often; had driven over it at least once before on that day. His team was not “much afraid of trains, ’ ’ and on this occasion manifested no fear. The party had been driving “pretty fast” all the way. Wallace says they had been trotting ‘ ‘right along, ’5 but he thought he had “slowed- them up to a walk at the bridge.” The vehicle made a good deal of noise. A party of young people had a fire about 250 feet west of the track and about 50 feet north of the highway, and were engaged in skating. Eeed hailed this party as he and his companions came up. Further than this, none of the party spoke until they saw the train approaching from the south, when Eeed hallooed to Wallace “to get there,” and Wallace put the horses over. The train was observed by Chestnut and. Eeed while the team was still some 45 feet from the track. Wallace saw it while they were 20 to 30 feet away. He says he first checked the team, and then whipped up and put the horses over. The train consisted of an engine and caboose. The grade of the railroad was downward towards the north, and the train was drifting at from 20 to 25 miles an hour. The carriage cleared the engine by from four to six feet, and got safely over. Hunter left the carriage as it went over, was struck by the engine, and so badly injured that he died within an hour. The record is somewhat obscure as to how he got out of the carriage. Chestnut says that as they crossed the track Hunter was sitting behind him; that he looked back to see how they were makiug.it, and saw him. Wallace says that after they went over he heard Reed say that Hunter had jumped out. Reed says that, as they cleared the track, his attention was fixed upon the train; that he heard Hunter “fussing” behind him, and that upon turning he found him gone. All the party were sober. The carriage was open at the sides. We are therefore left to the inference that, in the excitement of the moment, Hunter jumped in an effort to save himself from an expected collision.
    Members of the skating party saw the light of the approaching train at a distance of half a mile, and also heard its rumble. They were expecting a party up by the train from Clancy, a few miles away. Chestnut, Wallace and Reed all testified that, after they saw the train, their only chance to escape collision was to whip up and cross over. There is a conflict in the evidence as to whether the headlight was burning, and also as to whether the whistle was sounded or the bell rung as the train approached the crossing. There is no conflict as to the other facts stated. They all appear from plaintiff’s proof.
    When the evidence was all in, the defendant asked the court for leave to amend its answer by alleging affirmatively that Hunter and the driver of the team both omitted to look or listen for the approaching train, and to take any care or precaution to avoid collision with it until too late. The defendant at the same time moved the court to direct the jury to render a verdict in its favor. The court granted both requests, and thereupon, after the answer was formally amended, under the direction of the court the jury rendered a verdict for defendant. Judgment was thereupon entered for defendant. From this judgment, and an order denying their motion for a new trial, plaintiffs appeal.

      Walsh & Newman, for Appellants.
    A failure to comply with Section 90S is negligence. (Texas A. P. Ry. Co. v. Ndson, 29 S. W. 78; Missouri P. Ry. Co. v. Lee, 7 S. W. 857, 70 Tex. 496; Gulf Ry. Co. v. Anderson, 13 S. W. 196; Cahill v. Cincinnati N. O. da T. P. Ry. Co., 18 S. W. 2; Ransom v. C. M. St. P. Ry. Co., 22 N. W. 147, 62 Wis. 178; Pittburg Gh. da St. L. Ry. v. Burton, 37 N E. 150.) It is also a penal offense. (Penal Code, Secs. 689-692; Lonergren v. 111. Cent. Ry. Co., 49 N. W. 852; Klanowski v. Grand Trunk Ry. Co., 24 N. W. 801, 57 Wis. 525; Pollock y. Ry. Co., 124 Mass. 158; 1 Thompsons. Negleyan, 507; Bitner v. Utah Cent. Ry Co., 11 Pac. 620.) It is the settled law of this State that contributory negligence is a matter of defense, which the defendant must plead and prove. (Nelson v. City of Helena, 16 Mont. 21; Higley v. Gilmer, 3 Mont. 97; Wall v. City of Helena, 12 Mont. 44; Melville y. Pac. Mat: L. Ins. Co., 47 Pac. 650, 19 Mont.) Contributory negligence is a question of fact for the jury, and not of law for the court. (Hayes v. Mich. Cent. Ry. Co., Ill U. S. 228; Rollins-v. Fitchburg R. Co., 36 N. E. 752; Railroad Co v. Stewart, 17 Wall. 657; Osbornes. Detroit, 32 Fed. 36; Atchison T. St. F. R. Co. v. Hague, 38 Pac. 257; Romick v. C. R. I. da P. R. Co., 62 la. 167, 17 N. W. 458; Greany v. Long Island R. Co., 101 N. Y. 419; Dynch y. N. P. R. Co., 69 Fed. 86, C. C. S.; Western A. R. Co. v. Roberson, 61 Fed. 592, C. C. S.; Chicago R. I. da P. Ry. Co. v. Sharp, 63 Fed. 532, C. C. S.; Smith v. Baltimore da O. R. Co., 27 Atl. 847.) The deceased and the driver were not guilty of negligence. They had a right to expect that the laws would be obeyed by the defendant. (Wall v. City of Helena, 12 Mont. 51; Wright v. Ry. Co., 4 Allen, 290; Pillsbury Ry. Co. v. Burton, 37 N. E. 150; Cahill v. Cincinnati N. O. da T. P. Ry. Co., 18 S. W. 2.

      A. J. Shores, for Respondent.
   BRANTLY, C. J.

1. Plaintiffs except to the ruling of the court in refusing to permit the witness Reed to answer the -question, “What have you to say as to whether or not, under the circumstances, it was the best thing to do ?” The purpose -of the question was to draw out the opinion of the witness as to the propriety of putting the team over in front of the train. There was no error in this ruling. This witness had already stated that, in his opinion, this was the only thing to do to avoid a collision. Wallace and Chestnut also testified to the same effect. Nothing was to be gained by a repetition.

2. The answer of the defendant, as it was originally made, contained allegations of contributory negligence on the part of Hunter (the deceased) and his companions broad enough to cover the matter alleged in the amendment. The amendment was, therefore, immaterial; but the error in permitting it to be filed resulted in no prejudice to the plaintiffs. The judgment cannot be reversed on this account.

3. The gravest question presented .by this appeal is predicated upon the action of the trial court in directing a verdict for the defendant. The Civil Code (Section 908) provides that any railroad corporation in this State which ‘ ‘shall permit any locomotive to approach any highway, road or railroad crossing, without causing the whistle to be sounded, at a point between fifty and eighty rods from the crossing, and the bell to be rung from said "point until the crossing is reached, * * * shall be deemed guilty of a misdemeanor, ’ ’ etc. As to whether the required warning of the approach of the train was given on the evening in question there, was sharp conflict in the evidence. The court, in directing the verdict for the defendant, assumed that none was given. The jury were told that the defendant had been guilty of negligence in its failure to do this (the court holding, on this issue, for the plaintiffs), but that Hunter, the deceased, and Wallace, the driver, had been guilty of contributory negligence in failing to “stop, look, or listen for an approaching train;” and that, therefore, defendant was entitled to a verdict. This assumption was correctly made; for the court could not pass upon the credibility of the witnesses, and, as the proof tended to establish this fact, it was assumed as proven. The legal conclusion drawn from the fact thus assumed to he proven was also the correct one. The failure on the part of a railroad company to observe these precautions enjoined by statute is negligence. (Elliott on Railroads, Sec. 711; Beach on Contrib. Neg. Secs. 185, 186; Missouri Pac. Railway Co. v. Lee, 70 Tex. 496, 7 S. W. 857; Harty v. Central Railroad Co., 42 N. Y. 468; Ransom v. C. St. P. Railway Co., 62 Wis. 178, 22 N. W. 147; Pittsburg C. C. St. L. Railway Co. v. Burton, 139 Ind. 357, 37 N. E. 150; 1 Thompson on Neg. p. 419.) This is the general rule. And, even where there is no statutory requirement upon the subject, it is held that it is still the duty of the company to use such care and precaution upon approaching a crossing, and to give such signals as, at least, ordinary prudence and diligence would require. (Harty v. Central Railroad Co. supra; 1 Thompson on Neg. p. 419; Louisville & N. R. Co. v. Com., 13 Bush. 388, s. c. 26 Am. Rep. 205; Beach on Contrib. Neg. Sec. 186.)

These requirements are for the benefit of the public, and persons traveling upon the public highways have a right to expect a compliance on the part of the railroad company. But failure of obedience on the part of the railroad company to the requirements of the statute does not excuse the citizen from the use of at least ordinary diligence and prudence; so that if one, upon approaching a railroad crossing intending to pass over it, fails to make a vigilant use of his senses, — that is, to look or listen, and to stop for this purpose, if necessary, to learn if there is danger, — and by reason of this failure to exercise this precaution he is injured, then he contributes directly to such injury, and cannot be heard to say that the railroad company did him the injury, and should compensate him for its wrong. The injury in such case is attributable to the recklessness and want of care in the person himself; for if he had performed the duty he owed himself, and taken the necessary precaution,. he would not have been injured. The amount of care to be exercised depends somewhat upon the special circumstances of each case. In general, the more obstructed the view, and the narrower and more difficult the crossing, the greater is the duty to use watchfulness and care. Justice Field, in discussing a case similar to the present one, says: “The failure of the engineer to sound the whistle or to ring the bell, if such were the fact, did not relieve the deceased from the necessity of taking ordinary precautions for her safety. Negligence of the company’s employes in these particulars was no excuse for negligence on her part. She was bound to listen and to look before attempting to cross the railroad track, in order to avoid an approaching train, and not to walk carelessly into the place of possible danger. Had she used her senses she could not have failed both to hear and to see the train which was coming. If she omitted to use them, and walked thoughtlessly upon the track, she was guilty of culpable negligence, and so far contributed to her injuries as to deprive her of any right to complain of others. If, using them, she saw the train coming, and yet- undertook to cross the track, instead of waiting for the train to pass, and was injured, the consequences of her mistake and temerity cannot be cast upon the defendant. ” (Railroad Co. v. Houston, 95 U. S. 697.) This language is quoted with approval by Justice Blatchford in Schofield v. C. M. & St. P. Railway Co., 114 U. S. 615, 5 Sup. Ct. 1125. (See, also, Dascomb v. Railroad Co., 27 Barb. 221; Haas v. C. R. & I. Railroad Co., 47 Mich. 401, s. c. 8 Am. and Eng. R. R. Cases, 268, 11 N. W. 216; Schaefert v. C. M. & St. P. Railroad Co., 62 Iowa 624, s. c. 14 Am. & Eng. R. R. Cases, 696, 17 N. W. 893; Taylor v. Missouri Pac. Railway Co., 86 Mo. 457; Pepper v. Southern Pac. Railway Co., 105 Cal. 389, 38 Pac. 974; Union Pac. Railway Co. v. Adams, 33 Kan. 427, s. c. 19 Am. & Eng. R. R. Cases, 376, 6 Pac. 529; Beach on Contrib. Neg. Sec. 185; 1 Thompson on Neg. p. 430; Hearne v. Southern Pac. Railroad Co., 50 Cal. 482.)

In this case, the deceased and two of his companions lived in the vicinity of this crossing. Their hired driver passed it frequently. He had passed it once before on that day. He was an experienced driver. His team was gentle. He and they were familiar with the crossing, from living in its vicinity, and, presumably, with the passage of' trains. They knew that the vision was more or less obstructed at that point, and that they would be within 45 feet of the track before they could see a passing train. They knew there was no opportunity to turn out at this point. And yet, in the face of all this, they trotted the team up to within 30 feet, at most (to take the driver’s account), before their attention was given to the probable danger. They then found it upon them (if the story of the survivors is to be taken as true), and were compelled to make the dash over to save themselves. They neither stopped, nor looked, nor listened. In fact, they made no use of their senses. It seems that they might have checked their team with safety. All of these precautions were omitted. The attention they should have given to their own safety they doubtless gave to the skating party; and now it is sought to have the railroad company compensate the brothers and sisters for the death of their brother, when he and his companions, by the most ordinary care, could have avoided it. We do not think the blame for the loss thus occasioned should be cast upon the defendant. Under the assumption of the trial court that it had failed in its duty, it was guilty of negligence, and subject to punishment. But that is no sufficient reason why the deceased and his companions should be held blameless. It does not alter the case that the deceased endeavored to save himself by leaving the carriage, and thus fell before the train. The determining fact in the case is that the party went recklessly and heedlessly into the danger from which he thus sought to escape. The District Court committed no error in directing a verdict for the defendant.

But the plaintiffs insist that it is the rule adopted by this Court that he who relies upon contributory negligence as a defense must allege and prove it, and that therefore the action of the lower court was wrong, in view of the fact that the defendant offered no proof of negligence on the part of deceased. This rule is well settled by several decisions of this Court, as plaintiffs contend. (Higley v. Gilmer, 3 Mont. 90; Wall v. Helena Street Railway Co., 12 Mont. 44, 29 Pac. 721; Nelson v. City of Helena, 16 Mont. 21, 39 Pac. 905; Mulville v. Pac. Mut. Life Insurance Co., 19 Mont. 95, 47 Pac. 650.) But it is a corollary to that rule, also recognized by this Court, as is well said by Justice De Witt in Nelson v. City of Helena, supra, “that whenever the plaintiff’s own case raises a presumption of contributory negligence the burden of proof is immediately upon him. In such a case it devolves upon the plaintiff, as of course, to clear himself of the suspicion of negligence that he has himself created. He must make out his case in full; and, where the circumstances attending the injury were such as to raise a presumption against him in respect to the exercise of due care, the law requires him to establish affirmatively his freedom from contributory fault.” The case at bar, in our opinion, comes squarely within the principles here announced.

The judgment and order appealed from will therefore be affirmed.

Affirmed.

Hunt and Pigott, JJ., concur.


author: HUNT, J.

text:
    BRYANT, Respondent, v. DAVIS et al., Appellants.
    [No. 1,096.]
    [Submitted April 21, 1899.
    Decided May 15, 1899.]

      Trusts — Judgment on Pleadings — Amendment— Verification — ■ Appeal — Fined Order.

    1. Where, in a suit to enforce a resulting trust, the complaint alleges a specific agreement by defendants to purchase property for the benefit of plaintiff, and the answer specifically and generally denies the allegations of the complaint, and affirmatively sets up a different agreement which raises material issues, which, if proven to have been made, would have defeated plaintiff’s recovery, a judgment on the pleadings cannot be entered for plaintiff.
    2. When there are two defendants to an action, and one of them is absent from the county and the other is a corporation, answers verified on the best knowledge, information, and belief of the persons making them, are correct under Section 731, Code of Civil Procedure. Plaintiff is not entitled to judgment on the pleadings merely because the verification of the answer is defective, as the verification is no part of the pleadings.

      3. Where an appeal is taken from a “Judgmentand order * * * denying defendants’ motion to vacate,” the recital of several nonappealable orders does not lessen the effect of the appeal from the Judgment, and those orders made therein, which are renewable on appeal from the Judgment.
    4. A Judgment declaring a trust and removing the trustee is a final order, from which an appeal will lie, under Section 1722, Code of Civil Procedure, notwithstanding that it directs the trustee to file an inventory and an account of all property received by him as trustee.
    5. An amended answer may be filed pending a motion by plaintiff for Judgment on the pleadings.

      Appeal from District Court, Silver Bow County; William Clancy, Judge.

    Suit by William C. Bryant against Andrew J. Davis and the First National Bank of Butte. There was a judgment for plaintiff, from which defendants appeal.
    Reversed.

      Geo. A. Ciarle, for Appellants.

      Wm. C. Bryant and Wells Ilendershott for Respondent.
   HUNT, J.

Action to establish and enforce a trust arising out of an alleged parol agreement between plaintiff and defendant bank. Plaintiff asked the court to. require the trustee to account, to remove the trustee, to appoint another, and for general relief. Defendants filed separate answers. Plaintiff’s motion for judgment on the pleadings was granted and judgment entered for plaintiff. Defendants appeal.

1. Defendants are correct in their contention that the court erred in rendering judgment on the pleadings. Plaintiff set up, among other things, a specific agreement under which defendant Davis was to act for plaintiff and defendant bank in the matter of buying a certain property to be sold und<|r execution, and to hold title to the same for plaintiff and the defendant bank, dispose of the same, and pay over the proceeds to plaintiff and the bank, according to their respective claims against certain judgment debtors. By answer, Davis denied ‘ ‘the agreement alleged, or any such agreement whatever, ’ ’ that the property levied on under execution should be sold thereunder for plaintiff’s and the bank’s benefit, or that the proceeds of any sale should be distributed between plaintiff and defendant; denied that upon the sale he was selected to bid in the property, or in any manner to hold title to the same, for plaintiff and the bank; denied ‘ ‘that upon the sale under the execution mentioned, or upon any sale in furtherance of the agreement alleged, or any such agreement to carry out said alleged agreement, or any such agreement, said Davis purchased any or all of the property levied upon as alleged, or m any manner;” denied that at any time, “pursuant to the agreement alleged, or any such agreement, or to carry out said alleged agreement, or any such agreement, said Davis took or held possession of any or all of- the property mentioned, or held title to the same, or any part thereof, as trustee for the plaintiff and said bank, or commenced the execution of the trust, or any trust in favor of said plaintiff, under any contract with him or anybody else. ’ ’ In addition to these and other specific denials, he denied generally all the allegations of the complaint not specifically admitted or denied.

We look upon the foregoing specific denials as sufficient to raise an is&ue as to the existence of the agreement set forth in the complaint, while the general denial put in issue whatsoever was not specifically .admitted or denied. There may have been an agreement between the defendant Davis and the bank; ■buc, if. in its essential features it was not the agreement pleaded by plaintiff, plaintiff could not recover under the allegations of this complaint. Where there are distinct denials of facts material to plaintiff’s recovery, plaintiff is not entitled to have such denials treated as nullities, so as to obtain judgment on the pleadings. (Bach, Cory & Co. v. Montana Lumber & Produce Co., 15 Mont. 315, 39 Pac. 291.)

The answer of the bank also denied the agreement pleaded by plaintiff, and that the agreement pleaded, or any such agreement, was acted upon by itself or Davis. * It also denied generally all the allegations of the complaint not specifically admitted or denied, and affirmatively, though needlessly, set up a materially different agreement from that pleaded by plaintiff — -one which, if proven to have been made, would have defeated plaintiff’s recovery. This answer likewise raised material issues upon which evidence should have been heard.

2. The fact that the answers were verified on the best knowledge, information and belief of the persons making them cannot affect the materiality of the issues raised by the averments of the pleadings themselves, which were positively stated. Davis was absent from the county when his answer was filed, and defendant bank is a corporation. The verifications were correct. (Code of Civil Procedure, Section 731.) Again, verifications are no part of the pleadings (Johnson v. Puritan Mining Co., 19 Mont. 30, 47 Pac. 337); and, under no circumstances will a motion for judgment on the pleadings lie, unless upon the pleadings themselves a party is entitled thereto.

3. Respondent says that the order appealed from is not a final judgment, but an order for a judgment, and cites us to Nelson v. Donovan, 14 Mont. 78, 35 Pac. 227. This appeal, however, is “from the judgment and order made and entered in the above-entitled action * * * in favor of the above-named plaintiff and against said defendants, denying defendant Davis’ motion to vacate, ’ ’ etc. The recital of the several orders of the court made before judgment, not embraced in the judgment proper, even if said orders are not appealable, should not be construed as lessening the effect of the appeal from the judgment and those orders made therein, which are reviewable on appeal from the judgment.

4. Respondent finally says that the judgment is not a final judgment from which an appeal lies under Section 1722 of the Code of Civil Procedure. This argument rests upon the fact that the court in its judgment, after declaring Davis a trustee and ordering him removed, and that he be devested of title to the property held by him as trustee, ordered him to file an inventory of property and statement of all money received by him as trustee under the sale made by him. But in adjudging Davis to be a trustee under the agreement alleged in the complaint, and in summarily removing him from the position of trust, and devesting him of title to the trust property, the court did finally determine the rights of the parties, leaving nothing at all for Davis to do, except within 10 days to “make a full, true and perfect inventory, under oath, of all property of every name and nature acquired by him at the execution sale aforesaid, together with a statement of any and all moneys that came into his hands under, by, or through the sale aforesaid, * * 'x‘ and file the same * * * with the clerk of this court, ’ ’ and to turn over all property and money held by him as trustee to Emmett Callahan, who was appointed Davis’ successor in the same decree of the court.

This branch of the case is disposed of by the decision in Arnold v. Sinclair, 11 Mont. 556, 28 Am. St. Rep. 489, 29 Pac. 340, where it was determined that, if after a decree in equity has been entered no further questions could come before the court except such as are necessary for carrying the decree into effect, it is final, within the meaning of the Code. (Code of Civil Procedure, Sections 1000, 1722.) Without fully approving of that doctrine, which has been distinctly repudiated by the United States Supreme Court in Latta v. Kilbourn, 150 U. S. 524, 14 Sup. Ct. 201, decided since Arnold v. Sinclair, we yet recognize that it has the support of many cases, and hold that in this instance it ought not to be departed from.

5. Defendants were denied leave to file amended answers, the court saying: “The motion to file amended answers having been filed while the motion for judgment on the pleadings was pending, the court applies the same rule in this case as in cases where demurrers are confessed and the party demurring pleads over, which is a substantial confession, and in every case is so treated. In view of all of which, the motion for leave to file amended answers is hereby overruled.” The court’s position on this point cannot be sustained, and we advise that defendants be given permission to amend their answers, if they wish to do so. J udgment reversed.

Reversed.

Brantly, C. J., and Pigott, J., concur.


text:
    HAMILTON, Respondent, v. NELSON, Appellant.
    [No. 1,122]
    [Submitted May 5, 1899.
    Decided May 15, 1899.]
    Review— Verdict— Weight of Evidence — ■ Order for New Trial —Scope.

    1. The discretion of the trial judge in granting a new trial on the ground that the verdict is against the weight of evidence will not be disturbed on appeal.
    2. An order for a new trial generally is too broad where the only objection to the verdict was that the evidence was insufficient to sustain it as to only a part of the alleged causes of action, and it could be readily granted as to those issues improperly tried without confusion resulting on the retrial.

      Appeal from District Court, Deer Lodge County, Theo. Brantly, Judge.

    Action by James L. Hamilton, executor of the estate of Michael Sullivan, deceased, against Sarah A. Nelson, administratrix of the estate of John W. Nelson, deceased. From an order granting a new trial on a verdict for defendant, defendant appeals.
    Modified.

      O. B. O' Bannov, and W. B. Rodgers, for Appellant.

      Gr. B. Winston and W. II. Trippett, for Respondent.
   PIGOTT, J.

Two causes of action, separately stated and numbered as is required by the last paragraph of Section 672 of the Code of Civil Procedure, are united in the complaint. The subject of the first cause is a promissory note for §960, alleged to have been executed by defendant’s intestate to plaintiff’s testator; the second cause of action is based upon a judgment for §299,- alleged to have been rendered against the intestate and in favor of the testator. The issues raised by the answer were submitted to a jury, who rendered a general verdict for defendant. Plaintiff moved for a new trial of the whole case upon the sole ground that the evidence was insufficient to justify a verdict for defendant on the first cause of action. The court granted the motion as made, thereby vacating the verdict, and ordering a new trial of both causes. Defendant appeals.

1. The defendant assigns as error the action of the court in granting a new trial of the first cause of action stated in the complaint. His counsel assert that the defense interposed was proved by a clear preponderance of the evidence. After a careful examination of the record we are of the opinion that the court below did not abuse its discretion in granting a new trial of the first cause, for the weight of the evidence is not manifestly with the defendant. Whether or not a new trial should be granted for the reason that the verdict is against the weight of the evidence, is a question peculiarly within the sound legal discretion of the trial judge, who has the advantage of seeing the witnesses, of hearing their testimony orally delivered, and of observing their demeanor and conduct upon the stand; hence the exercise of such discretion will not be disturbed by this Court.

2. The court erred, however, in granting a new trial generally. The only attack made upon the verdict was that the evidence was insufficient to sustain it as to the first cause of action. Plaintiff conceded that’ the second cause of action was properly tried, and the correct result reached. The order granting a new trial is too broad. In the case at bar, as in Wilson v. Barbour, 21 Mont. 176, 53 Pac. 315, the statement of each cause of action is practically a complaint in itself. No interdependence exists, but each cause is in all respects as in. dependent of the other as if it were the sole matter in the complaint. In Ramsdell v. Clark, 20 Mont. 103, 49 Pac. 591, the following pertinent language is used: “Where the issue or issues in one cause of action have been properly tried, and those in another cause of action in the same suit have been improperly tried, it is the duty of the trial court, in passing upon a motion for a new trial, to-grant it only as to those issues which have been improperly tried, where this can be done readily, and without confusion resulting upon the retrial. ’ ’

So much of the order appealed from as sustains the motion for a new trial of the first cause of action is affirmed, but that part of the torder granting a new trial of the second cause is-reversed. The case is remanded, with direction to modify the order so that it shall conform to the views herein expressed. The defendant will recover the costs of this appeal. Let remittitur issue forthwith.

Modified and remanded.

Hunt, J., concurs. Brantly, C. J., disqualified.


text:
    SULLIVAN, Respondent, v. SCHULTZ, Appellant.
    [No. 1,121.]
    [Submitted May 4, 1899.
    Decided May 22, 1899.]

      Contract for Tombstone — Purchaser's Right to Disregard— Ownership of Stone on Public Domain — Sufficiency of Brief- — Rules of Supreme Court.

    1. Defendant contracted with plaintiff for a tombstone, plaintiff reserving title thereto-until it was paid for, and the right to retake it for nonpayment. Plaintiff furnished the tools and engaged a workman, with defendant’s knowledge, to cut it, under his supervision, from granite on the United States public domain. Defendant paid the workman, at plaintiff’s request, a part of what he was to have for the work, consulted plaintiff from time to time as the work progressed, and was shown the work by plaintiff when finished. Held, that she could not disregard her contract, and buy it of the workman, though plaintiff may have been wrongfully in possession thereof as a trespasser on the public domain.
    2. Under the right conferred by Rev. St. U. S. Sec. 2319, and Act Cong. Aug. 4,1892 (27 Stat. 348), to explore and occupy for profit public lands containing mineral deposits, including stone, one who takes granite from the public domain is not a trespasser,, and by thus taking it and bestowing his labor upon it he becomes the exclusive owner thereof, though he does not acquire the exclusive right to the land from which it was taken.
    8. Error in refusing to permit the introduction of evidence will not be considered where the brief fails to set it forth in Twee verba, or in substance, in conformity with Sup. Ct. Rule V, Subd. 3.

      Appeal from District Court, Silver Bow Country/ John Lindsay, Judge.

    Action by Morty O. Sullivan against Carrie Schultz. From .a judgment for plaintiff, and an order denying a new trial, defendant appeals..
    Affirmed.
    Statement of the case by the J ustice delivering the opinion.
    Action in claim and delivery to recover the possession of 70 feet of granite coping and seven granite posts. The complaint is in the usual form, alleging title and right of possession in plaintiff at the time the suit was brought, a demand before suit, and a valuation of the disputed property at §282. The .answer is a general denial.
    The material facts, about which there is no controversy, are: On April 19, 1895, plaintiff, a stonecutter by trade, entered into a contract with defendant, in writing, under the terms of which he agreed to furnish her the coping and posts for a cemetery lot in which her mother was buried, at Butte, Silver Bow county. The amount and dimensions of cut stone necessary were provided for, and the price fixed at §282. The work was to be completed by May 27th, “unless unforeseen causes shall prevent. ’ ’ The purchase price was payable on or before June 1, 1895. The contract also contains the following provision: “The title in said monument to remain in the said Morty O. Sullivan, or his assigns, with- the right to take the same at any time after the whole or any part of the purchase price shall be due and unpaid; and (I) hereby authorize him or his assigns to enter upon the lots or premises where the same may be, and remove it therefrom, waiving all damages therefor; and, further, the above price shall be due and payable immediately upon any countermand of this order .after the acceptance hereof by the said Morty O. Sullivan, or his agent, or for a willful neglect to furnish him with such in-. formation as he may desire to enable him to properly complete said work. ’ ’ The contract was signed by both parties. As soon as it was executed, the plaintiff employed one Grus Theriau, at the agreed price of §150, to cut the stone, according to the specifications named in the contract between plaintiff and defendant, from a quarry upon public land belonging lo the United States. The plaintiff furnished Theriau with the tools necessary, and superintended the work until the stone was all cut, to see that it was done according to the contract. The defendant consulted with plaintiff from time to time during the progress of the work. Theriau was paid $30 by defendant upon the order of plaintiff as a part of his contract price. This was done before the work was completed. Theriau completed his contract during the latter part of May, about May 27th. On June 1st or 2d Theriau brought the stone from the quarry and set it up around the lot. This was done-at defendant’s request. She thereupon paid him the additional sum of $150. Theriau was not authorized by plaintiff to collect any money from defendant on the contract price but defendant, having learned from Theriau that he was doing the work for plaintiff for $150, and that he had not been paid for it by plaintiff, concluded to buy the stone from him at that price. Her intention was to save the difference between the amounts paid to Theriau and the original contract price of $282. This arrangement was made and carried out between the defendant and Theriau without regard to plaintiff’s rights. Thereupon defendant refused to pay the plaintiff anything. So far as the proof shows, Theriau had not demanded his pay from the plaintiff. Apparently he proceeded upon the assumption that, as he had not been paid in full for Ms work, he was at liberty to sell the stone to defendant. Defendant knew that he was employed by plaintiff to cut the stone for her, and plaintiff had shown her the work after it was done. She did not at any time notify plaintiff that she would not accept the work because it was not finished by May 27th. She stated on the trial that she did not pay plaintiff because the job was not completed by May 30th, Decoration Day, as she desired to decorate the grave of her mother on that day. Before suit was brought plaintiff demanded possession of the property of defendant, and it was refused.
    On the trial below the jury found for plaintiff, and fixed the value of the property at $102, evidently on the theory that the plaintiff should not recover more than the balance of the contract price. Judgment was entered for plaintiff. From this judgment, and an order overruling her motion for a new trial, defendant appeals.

      Howell (& Harney, for Appellant.

      C. P. Connolly, for Respondent.
   BRANTLY, C. J.

1. Defendant asks that the judgment and order appealed' from herein be reversed, for the reason that the proof shows that plaintiff took the stone in controversy from the public domain, but fails to show that he did so under license or permission from the government of the United States, and that, therefore, he has not made out a case upon which he is entitled to recover. He stands, defendant insists, in the attitude of one who has neither title nor right of possession but such as is founded upon his own tortious act as a •trespasser upon the lands of the United States. Defendant cites, as conclusive in support of this position, N. P. Railroad Co. v. Lewis, 162 U. S. 366, 16 Sup. Ct. 831; Schulenberg v. Harriman, 21 Wall. 44; Turley v. Tucker, 6 Mo. 583; U. S. v. Cook, 19 Wall. 591; Murphy v. Sioux City Railroad Co., 55 Iowa, 473, 8 N. W. 320; but an examination of these cases shows that they are not applicable to the facts of this case. In Murphy v. Sioux City Railroad Co. the plaintiff sought to recover the value of hay cut and stacked upon the land of another, and burned by the negligence of defendant. All the other cases involve controversies arising out of the unlawful cutting of timber upon public lands, and were suits, either by .the owner of the fee for the recovery of the timber cut and removed, as in Schulenberg v. Harriman, and U. S. v. Cook, or by a trespasser upon the public domain to recover for timber cut and left there by him, and afterwards removed or destroyed by the defendant, as in N. P. Railroad Co. v. Lewis, and Turley v. Tucker. These cases all follow the general rule applicable to cases of like character. But we do not find anything in them contrary to another general rule that mere possession, though wrongful, is sufficient to maintain an action in replevin as against a mere stranger. (Cobbey on Replevin,. Sec. 786.) This rule is also distinctly recognized in N. P. Railroad Co. v. Lewis, supra. Under the facts in this case defendant stands in no attitude to dispute the title or the possession of plaintiff. She contracted with him for a certain quantity of cut stone, to be used for a certain purpose. He hired Theriau to cut it at a stipulated price, thus incurring a liability upon the strength of his contract with her. He furnished the necessary tools for the work, and gave it his attention to see that it was done according to the contract. She knew that Theriau was working for him. She discharged a part of her obligation, under her contract with him, by paying Theriau a part of his contract price at plaintiff’s request. She consulted with plaintiff from time to time as the work progressed, and she was shown the work by plaintiff after it was finished. Having discovered that by collusion with Theriau^ and by paying him $30 more than plaintiff had agreed to pay- ■ him, she could save $102, as she supposed, she concluded to disregard her contract with plaintiff, and at the same time to take the fruits of his thrift and industry without compensation. In all fairness Theriau could not be permitted to disre- ■ gard his employer’s rights, and thus, for his own profit, dispose of what, so far as he was concerned, and according to-every principle of right and fair dealing, belonged to his employer. His act amounted to a conversion of his employer’s property. Having obtained possession of the stone from Theriau by collusion with him, defendant stands upon no higher ground, and therefore should be held to abide by the terms of her contract with plaintiff.

But whether this principle applies here or not, and apart from these considerations, we think the plaintiff entitled to recover. The cutting of timber upon the public domain is prohibited by law, but there is no such prohibition touching the deposits of mineral upon the public lands. Under the law they are all free and open to exploration and occupation by the citizen for his own profit. This applies to all lands containing valuable deposits, including building stone. (Revised Statutes U. S. Sec. 2319; Act Congress Aug. 4, 1892, 27 Stat. 348.) The right thus granted necessarily carries with it the license to take what may be found in the course of exploration and apply it to the discoverer’s own use. The option is left to him to acquire the exclusive right to the land containing the deposit; but, if he does not choose to do so, he may still avail himself of the deposit, exclusively or in common with others, until some one else acquires the exclusive right from the government. We are not aware that this right has ever been drawn in question. Therefore, in getting the stone upon the public domain, the plaintiff was not a trespasser. By taking it, and bestowing his labor upon it, or causing labor to be bestowed upon it by Theriau, his employe, he became the owner of it in fact as against every person. Theriau’s custody or possession of it was his. The defendant stands in the same position as if she had gotten it from the plaintiff. Having failed to pay for it, she was subject to have it taken from her possession, upon demand, after the price was due.

2. The contention is also made that the court erred in not permitting defendant to introduce evidence tending to show that, at the time the stone was delivered to defendant and set up by Theriau, it did not belong to plaintiff, but to Theriau, ■Though error may have been committed in this regard, this Court will not consider it, for the reason that the brief of counsel fails to- set forth, in heeo verba or in substance, the proof offered and rejected, in conformity with Subdivision 3 of Rule Y of this Court.

Let the judgment and order appealed from be affirmed.

Affirmed.

Hunt and Piuott, JJ., concur.


text:
    PROCTOR, Respondent, v. IRVIN et al., Appellants.
    [No. 1,224.]
    [Submitted May 3,1899.
    Decided May 22, 1899.]
    Trover’ and Conversion — Pleading — Evidence — Review— Harmless Error— Yerdict.

    1. In an action for the unlawful taking and detention of property, and damages therefor, a denial of a wrongful or unlawful taking or withholding is an admission that defendant did take and withhold the property, and under such pleadings the only issue for trial is, what damages plaintiff suffered by defendants’ taking and withholding.
    2. In an action for damages for the wrongful taking and detention of plaintiff’s cattle’ where it was proven that the cattle were driven 25 miles, and plaintiff testified that they were in much worse condition after the drive, and that on that account there were not as many calves that year as usual, evidence as to the increase of the cattle that year, as compared with former years, is admissible.
    3. A witness who has been in the cattle business for many years is competent to testify that the hard driving of cattle during their calving season caused a decrease in the number of calves.
    4. Where defendant admitted the taking of plaintiff’s cattle, and the detention of them until they were retaken by the sheriff, evidence for defendant as to who had possession when the sheriff took them is immaterial.
    5. Where defendant admitted the taking and detention of plaintiff’s cattle, and there is evidence that they were in good condition when taken, evidence as to their condition when plaintiff recovered them is admissible.
    6. Testimony of an expert as to the effects of driving and close herding cattle, founded on plaintiff’s testimony as to the condition of the cattle before the taking and after their recovery, is admissible. •>

    .7. Where defendant admitted the taking and detention of plaintiff’s cattle, evidence for defendant as to the fact and nature of his possession and control of the cattle during the time covered by said admission, is immaterial.
    •8. In an action lor damages for the taking and detention of plaintiff’s cattle, whicli plaintiff claimed were injured by being driven 25 miles and close herded for several days, evidence for defendant that they were in good condition at the end of the first o miles or the drive is immaterial.
    9. A finding of the jury, supported by evidence, as to the amount of damages resulting from the taking and detention of plaintiff’s cattle will not be disturbed.

      Appeal from District Court, Flathead County, D. F. ■Smith, Judge.

    Action by Clarence E. Proctor against William Irvin and -others. From a judgment for plaintiff, and an order denying a new trial, defendants appeal.
    Affirmed.

      B. J. Mclntire, E. D. Weed: and Eustace Wheeler, for Appellants.

      The court erred in admitting evidence as to the probable increase of the cattle, provided they had remained in the possession of plaintiff. This was too remote. The dam ages, referred to were purely speculative. There are hundreds of conditions which effect the increase of a band of cattle, especially in this country — the climatic influences, the conditions of the ranges, the amount of food and the breed of cattle all enter into the question of increase or decrease of range cattle..' Speculative damages are remote and evidence thereof is inadmissible. (DeCosta v. Mass. Flatwater <& Mining Go.,- IT Cal. 613; Story v. Robinson, 32 Cal. 206; Berry v. S. F. dé F. P. R. R. Go., 50 Cal. 435; Giacoomini v. BucMey, 51 Cal. 260; 2 Greenleaf’s Evidence, 256; 2 Sedgwick on Damages, 8th Ed., Sec. 498.) ' On page 6, line 28, witness was asked “for his knowledge of these cattle, and the effect of a forced drive. What was the cause of the falling off of the increase of these cattle?” This was objected to. Objection overruled, witness allowed to answer. This is expert testimony, and it has been announced by this Court that expert testimony, “even when admissible, is uncertain and unsatisfactory, for an expert is never called as a witness unless his-interest and views have been previously ascertained to be with the party calling him.” {Kelley v. Cable Go., 8 Mont. 449.) But even as' expert testimony this is inadmissible. First, because it goes to remote and not approximate damages, and secondly, even if it was admissible the expert might have been allowed to testify as to what would have been the effect upon a like band of cattle under similar circumstances but not this-particular band of cattle under these stated circumstances. (1 Greenleaf on Evidence, Sec. 440.) Both of these are reversible error. The court erred in sustaining the objection of plaintiff’s counsel to the following question propounded to defendant Irvin by counsel for the defendants: “Q. Did you have any understanding with Mr. Proctor in regard to what, should be done with these cattle at this time?” In that at said time plaintiff would be chargeable with any agreement or understanding he may have had with the defendant relative to-the care and conduct of said stock. The court permitted question after question on the part of plaintiff and respondent ■over the objection of defendants and appellants, showing that the cattle had sustained injury by reason of their ill-treatment by defendants while in possession. But the defendants were denied the right, which was clearly theirs (provided the court was not in error in his former ruling), of showing that the cattle sustained no injury by any act of the defendants. If the court was right in one instance, it was wrong in the other, and the injustice done to the defendants and the prejudice of the court against them, are too transparent for comment. Even though the the defendants are Indians, residing upon the Flathead Indian reservation, their rights as litigants should have been as carefully guarded as those of the plaintiff, a white man, who was grazing his stock upon their reservation without compensation and in utter disregard of their rights.
   HUNT, J.

Plaintiff, respondent here, sued defendants, who are appellants, to recover possession of 186 head of cattle belonging to plaintiff, alleged to have been wrongfully and unlawfully taken by defendants from plaintiff’s possession, and for damages for the detention of said cattle. Defendants, by an amended answer, on information and belief denied plaintiff’s ownership; positively denied a wrongful or unlawful taking, or a wrongful or unlawful withholding, and any damages by reason of such taking and detention. Trial by jury. Verdict and and judgment for plaintiff, awarding him a return of the property, and $200 damages. Defendants’ motion for a new trial denied. Appeal from judgment and order denying a new trial.

The denial of a wrongful or unlawful taking or a wrongful or unlawful withholding is pregnant with admissions that defendant did take and did withhold the cattle. (Harris v. Shontz, 1 Mont 212; Toombs v. Hornbuckle, id. 286.) These admissions narrowed the issues for trial, and justified the rulings of the court holding that, as the case developed, the real and only issue was what damages plaintiff suffered by the acts of the defendants in the taking and withholding.

Plaintiff’s evidence was that he owned the cattle; that up to April 23d the cattle were in very fair condition; that on April 23d defendants, without his consent, drove them to a point five miles away, called the “Arm of the Lake;” that on April 25th he demanded the cattle, but defendants refused to deliver them up; that on April 27th he found the cattle about twenty-five miles further away, being held by defendants at Sullivan’s Flacs; that the sheriff took possession of them at his instance on May 5th, and while they were in defendants’ possession at Sullivan’s Flats; that he was damaged by the driving and close herding of the cattle, and by loss of calves and the increase of the cattle; that the effect of the forced drives and close herding was to subject the cows to loss of calves and general impoverishment; that the cattle were driven over twenty miles in one afternoon after they were taken from his possession, though ten miles was plenty far enough to drive a mixed band in April; that the cattle suffered from rough handling; that when he took them they were very weak, lying around in alkali spots, too weak to stand up; that, when the cattle were turned back, 11 calves were included; that an ordinary increase for 1897 would have been 20 per cent., and that he ascribed the falling off principally to the rough handling the cattle had had in the spring; and that he had never recovered one cow and one calf.

Defendant Irvin admitted that he and others drove the cattle to the Arm of the Lake, but said it took them half a day to make that drive, and that he did not move them from there. A witness for defendant, named McGregor, said he saw the cattle at Sullivan’s Flats, which was a distance of about eighteen miles beyond the Arm of the Lake, but that he could not say the cattle were “badly injured at all.” This same witness, on cross-examination, said some of the cattle were in poor condition, some in fair condition, but that he ‘ ‘could not tell whether Mr. Proctor’s cattle were in fair condition or not,” as he did not observe his cattle.

In the light of all this evidence, the court committed no error in overruling defendants’ objection to a question asked of plaintiff as to what was the increase of plaintiff’s cattle for 1897, as compared with the increase of former years. Plaintiff had sworn to the drive the cattle had had, to the observed effects of that drive, to the condition of his cattle before and afterwards, and to what an average increase of cattle was in 1897, where there were no such conditions as those which surrounded his herd that year. We think the foundation was sufficiently laid to warrant the question.

It was equally proper to permit plaintiff to testify as to his belief as to the cause of the decrease in the number of calves. Having sworn that he had been in the cattle business many years he was fully qualified to testify in this respect. ' The point that the question assumed a state of facts not justified by plaintiff’s testimony is entirely untenable.

We must also sustain the court in excluding questions asked by defendants for the purpose of ascertaining who had possession of the cattle when the sheriff took them, on May 5th. Inasmuch as their pleadings admitted the taking on April 23d, and the detention until the sheriff took them under the direction of the plaintiff, the matter became immaterial.

The interrogatories put to several witnesses touching the condition of the cattle when taken by the officer were properly admitted. It having been testified to that they were in good condition before defendants drove them away, and it having been admitted that defendants took them and detained them until they were taken by the sheriff, it was clearly proper to show what their condition was when they were so taken from defendants’ possession.

Defendants objected to certain questions relating to effects of driving and close herding cattle, put to an experienced cattle grower, who was called as an expert witness. As the several questions were based upon the plaintiff’s evidence, no error was committed in allowing them.

Questions were propounded to defendant Irvin for the purpose of getting at the fact and nature of his possession and control of the cattle between the 23d of April and 5th of May. These matters became immaterial, under the pleadings, for reasons heretofore stated.

Defendants’ counsel asked Irvin if he knew “what the effect was upon these cattle, as driven from below Mr. Proctor’s to the Arm of the Lake. ’ ’ Plaintiff objected - on -the ground that the question called for the conclusion of the witness, and the. -court sustained the objection. Defendants excepted. This ruling is assigned as error; defendants contending that the ■question was competent to show that the cattle were not injured by the defendants on account of the drive from Proctor’s to the Arm of the Lake, and that the testimony was admissible to show mitigation of damages. Let us assume the question •called for an answer based upon a fact that is a matter of ■common observation, rather than for a conclusion from facts, .and let us also assume that the witness would have answered that he knew what the effect of the drive was,' and that.it was not harmful to the cattle; nevertheless we inquire how the defendants were prejudiced by the rulings of the court. The answer is, “They were not.” Defendants having admitted the taking and detention of the cattle until May 5th, could not relieve themselves of liability, or mitigate the damages done by the taking and detention, by proving that at the end of the first five miles of the twenty-five that the cattle were driven they were not injured. It was of little importance to fix the-exact time or place where" the cattle were injured, so long as it was established, upon the whole case of plaintiff, that the •damage to the band was done by the unlawful taking and detention of the defendants between April 23d and May 5th. For this reason we discover no error which prejudiced defendants. But, furthermore, the question was of no significance, inasmuch as plaintiff did not say that his cattle were in appreciably bad condition when he saw them at the Arm of the Lake, five miles from the point they were taken, but relied upon his proof of their condition as discovered after the drive-from the Arm of the Lake to Sullivan’s Flats, which was evidently the twenty-mile drive given the cattle in one afternoon, ¡and which enervated them to the extent testified to. This ber ing so, the material issue was not whether the cattle suffered by the first part of the drive, which appears to have been harmless, but by that part of it extending over the distance between the Arm of the Lake and the point where plaintiff found them exhausted and weakened. It follows, therefore, that upon no theory was the exclusion of the evidence sought to be adduced injurious to defendants.

Defendants argue that there was no evidence showing that plaintiff was damaged in the sum of §200, or any greater sum than §30, the aggregate value of the one cow and calf never delivered. But, if the jury believed plaintiff’s testimony, his cows were seriously injured, and his loss of calves was undoubtedly attributable to the acts of the defendants in taking, herding, driving and detaining his cattle. It is not for this Court to disturb the verdict.

Minor errors assigned are not well founded. Let the judgment and order be affirmed.

Affirmed.

Brantly, C. J., and Pigott, J., concur.