author: MR. JUSTICE PIGOTT,

text:
    COBBAN, Appellant, v. HECKLEN, Respondent.
    (No. 1,468.)
    (Submitted May 8, 1902.
    Decided December 8, 1902.)

      Appeal — Findings—Defects — Exceptions — New Trial — Sale of Land — Oral Contract■ — Principal and Agent — Ratification —Estoppel —• Statute of Frauds — Part Performance — Evidence — Tñal by Court — Harmless Error.

    1. Code of Civil Procedure, Sections 1114, 1115, 1116, have to do only with findings which omit matters necessary or proper to be stated, and relate to exceptions for deficiencies or omissions, and not for what is contained in the findings.
    2. under Code of Civil Procedure, Section 1171, Subd. 6, providing that a new trial may be had on the ground of “insufficiency of the evidence to justify the verdict or other decision,” a notice of intention to move for new trial on the ground that the evidence was insufficient “to justify the findings and judgment” is sufficient, since the words “and judgment” serve no purpose, they may be rejected, and so far as the question of the insufficiency of the evidence to justify the decision is ground for a new trial, the word “findings” is equivalent to the word “decision.”
    3. The authority of an agent to contract to sell land in August, 1894, was not required to be in writing, and could be shown by oral testimony, or any evidence legitimately raising the inference of agency; since Civil Code, Sections 2185, 3085, and Code of Civil Procedure, Section 3276, requiring such authority to be in writing, did not take effect until July 1, 1895.
    4. under Compiled Statutes, 1887, Fifth Division, Section 221, and Code of Civil Procedure, Section 3275, providing that nothing in the requirements that contracts for the sale of land shall be in writing (Compiled Statutes, 1887, Fifth Division, Sections 219, 220 ; Code of Civil Procedure, Section 3276) shall be construed to abridge the power of any court to compel the specific performance of an agreement in case of part performance, a principal, without writing, may be estopped to deny an oral contract of sale, made by his agent, after part performance, and specific performance may be decreed, though a mere ratification of such contract must be in writing.
    5. A contract to sell one acre out of a larger tract of land is definite and certain after the purchaser has selected and gone into possession of one acre of such tract.
    6. A contract to sell land is reasonable (so far as price is concerned) when the price for which it is sold is not disproportionate to its value.
    7. An oral contract to sell land, which has been partly performed, is mutual, for both parties are reciprocally bound, — the one to convey, and the other to pay the purchase price.
    8. Where an oral contract for the sale of land has been so far partly performed as to take the case out of the statute of frauds, such part performance vitalizes it, and by relation makes its terms obligatory from the beginning.
    9. where the owner of an undivided portion of a tract of land authorized his agent to sell a piece of such tract, and after such sale such owner acquired the entire legal title to such piece by partition, he held such title for the benefit of his vendee, and could enforce performance of the contract.

      10. A co-owner of a placer claim, for himself and as agent of the other owners, including plaintiff, by oral agreement sold one acre thereof to defendant, the deed to be delivered when patent was obtained, and the purchase price to be then paid.. Defendant, under such agreement, entered into possession, and improved such acre, thereafter plaintiff was informed of such agreement, and assured defendant that it would be carried out, and, relying on the agreement and such assurance, he made further valuable improvements. Two years thereafter such claim was partitioned by such owners. Plaintiff, thereby acquiring the entire legal title to such acre, brought ejectment to recover such acre. Sold, that there was sufficient part performance to take the agreement out of the provisions of Compiled Statutes, 1887, Fifth Di- . vision, Section 210, requiring contracts for the sale of land to be in writing.
    11. Under Code of Civil Procedure, Section 3265, Subd. 3, providing that whenever a party has deliberately led another to believe a particular thing true, and to act on such belief, he cannot be permitted to falsify it, plaintiff was estopped to deny the validity of such oral agreement, and held such legal title for the benefit of defendant.
    12. Where, on a trial before the court without a jury, inadmissible evidence is received over objection, but it, as compared with the evidence properly received, was so trifling and unimportant as not of sufficient moment to affect the result, the error was presumptively harmless, and it will be presumed that the trial court disregarded such evidence.
    13. Where defendant in ejectment claimed to have taken possession and made valuable improvements relying on an oral contract of sale and plaintiff’s assurances that he would make a deed on obtaining a patent, it was error to exclude the question, on cross-examination of defendant, whether he had not contributed to a fund for the purpose of breaking the patent under which plaintiff held.
    14. The rejection of proper evidence will require a new trial, unless the supreme court is satisfied that the result would not have been different if the evidence had been received.
    15. The right of cross-examination must be liberally interpreted and freely • exercised. Doubt respecting the limits to which cross-examination may go ought usually, if not always, to be resolved agaiDst the objection.

      Appeal from District Court, Silver Boiv County; J. B. Leslie, Judge. i
    ActioN by George Cobban against Samuel Heclden. From a judgment for defendant and .order denying a new trial, plaintiff appeals.
    Reversed.
    STATEMENT OE THE. CASE.
    Action to recover possession of a parcel of ground included witbin tbe boundaries of tbe Summit Valley placer mining claim. Tbe amended complaint states, in substance, tbat tbe plaintiff is, and since tbe 22d day of July, 1897, has been, tbe owner and entitled to tbe possession of tbe land demanded, and tbat tbe defendant wrongfully and without plaintiff’s consent obtained, and still withholds from plaintiff, the possession thereof.
    By his answer the defendant pleaded two defenses and an equitable counterclaim. The first defense consists of a genera] denial. In the statement of the second defense the following new matter is, in substance, averred: In August, 1894, the plaintiff, one W. F. Cobban, hereinafter called Cobban, and two other persons, were the owners in common of the Summit Valley placer mining claim, parcel of which is the land demanded by the plaintiff. While they -were so the owners, and on August 15, 1894, Cobban, who was their agent, and who was for himself and as such agent in possession of the entire claim, embracing 120 acres, orally agreed to sell to the defendant for the price of $100 that part of the claim described in and demanded by the complaint, being less than one acre in area. The price— which was the reasonable value of the land contracted for — was to be paid upon delivery of a deed from the owners. Immediately thereafter Cobban, for himself and his co-owners, delivered possession to the defendant, who was induced by Cobban to take possession and begin the erection of improvements thereon, and he did enter and begin to and did improve the land by erecting upon it a dwelling house, sheds, outhouses, and other betterments, inclosing it with a substantial fence. One of the conditions of the agreement for the sale was that the defendant should have the right immediately to enter upon and take possession and improve the land. By virtue of said right granted by Cobban for himself and his co-owTners, the defendant entered and took possession, and, relying upon the contract of sale and agreement to deliver the deed, made valuable improvements thereon. Defendant has been in peaceable and actual possession, owning and claiming to own the land, to the knowledge and with the consent of the plaintiff, ever since August 15, 1894, and as such owner erected valuable improvements thereon, with plaintiff’s knowledge and consent. In July, 1895, plaintiff ratified the agreement of sale, and agreed with the defendant to fulfill its terms, and to deliver to him a good and sufficient deed of conveyance for the price fixed by Cobban. Belying upon the ratification and upon the promise of plaintiff to execute the deed, the defendant continued to occupy and improve the land, and thereafter erected valuable improvements upon the same; the value of all improvements being the sum of $1,500. The plaintiff never paid or offered to pay to the defendant the value of the improvements, or any sum on account thereof. At different times .before the commencement of the action the defendant-tendered to the plaintiff and Cobban $100, the purchase price, and demanded a deed. On July 22, 1891, the plaintiff became, and now is, the sole owner of the legal title to that parcel of ground which Cobban contracted to sell, subject, however, to the rights therein of this defendant. At the time of his entry the paicel of land in controversy did not exceed in value $100. Because of the plaintiff’s acts, the defendant made serious- alterations in his plans, expending large sums of money in reliance thereon, and no compensation in damages would be adequate for the loss of the land and improvements thereon. At all times since August 15, 1894, defendant has been, and is now, able and ready to pay the purchase price agreed upon, and tenders to the plaintiff, and deposits in court for his use. and benefit the sum of $100. The plaintiff holds the mere legal title to' the land for the defendant, who is, and since August 15, 1894, lias been, the owner, and in possession and entitled to possession thereof. By reason of the facts set forth, the plaintiff is estopped from claiming any interest in or any possession of the land contracted to be sold and occupied and possessed by the defendant, and is estopped from denying the authority of Cobban to make the sale to the defendant. The counterclaim repeats all the allegations of the affirmative defense; and the defendant prays that the plaintiff be adjudged to be trustee for him of the legal title to the real estate in controversy, and that plaintiff be required to make to the defendant a deed of conveyance therefor, and for general relief.
    In reply the plaintiff denies every allegation of the answer except those admitted by the reply to be true. He admits that on August 15, 1894, and until the 22d day of July, 1891, he was an owner in common of the placer claim, and that the parcel of land described in the complaint and answer lies within the boundaries thereof; that on July 22, 1897, he became and now is the sole owner of the Summit Talley mining claim; that the defendant has made improvements upon the land in controversy, for which the plaintiff has never offered to- pay; but avers that the improvements were made without right or authority.
    The cause was tried without a jury. The following facts were either admitted, or their existence not seriously controverted: During all of 1894 the plaintiff, Cobban, and others, were the owners in common of the Summit Valley placer mining claim, for which a receiver’s receipt had been issued. Cob-ban was engaged in the real estate business, and acted as agent for his co-owners. One purpose of acquiring the property was to sell it for town lots or in acres. About the 15th of August, 1894, the defendant, being desirous of owning a home of his own, in pursuance of an oral contract with Cobban entered into possession of the parcel of land in dispute, comprising less than one acre, fenced it, and built a dwelling house and other structures thereon. Since that time he has been in the exclusive possession of the. land, asserting ownership, and has occupied it as a home for himself and his family. On May 28, 1895, the patent for the placer claim issued to the plaintiff and his co-owners. In July or August, 1895, the plaintiff and the defendant had a certain conversation, after which the defendant added other betterments. On Jxily 22, 1897, the land embraced in the placer entry was partitioned, and a tract including the demanded parcel wras selected by the plaintiff, who ever since has had the legal title to it. Before the action was brought, the defendant tendered to the plaintiff $120, as the purchase price, wdth interest, and kept the tender good. The defendant testified that between the 4th and 15th of August, 1894, he was introduced to Cobban by one Hammer; that the defendant and Oob-ban then and there agreed by word of mouth that the defendant was to buy one acre of the Summit Valley placer claim at the price of $100, with the privilege of as many more adjoining acres at the same rate as he might desire to purchase; that Cob-ban said he had either a patent or a receiver’s receipt; that the price was to- be paid upon delivery of a deed; that Cobban took him to the land, showed him where he wished the house to stand, and pointed out the ground, which the defendant inclosed with a fence, and placed permanent and valuable improvements thereon, worth $1,200; that his motive in going upon the land and making the improvements was to get a home, and cease paying rent; and that, relying upon the agreement with C’obban, he took possession and made the improvements. He stated further that in July or August, 1805, after the fence and the greater part of the other improvements had been made, the plaintiff and Cobban went to his home, where they had a conversation ; that Cobban introduced the plaintiff to the defendant, saying, “This is Mr. George A. Cobban. He is an uncle of mine, and we own the ground together, and he wanted to come down and see you. We have talked this over, and this is the ground you, are to have for $100 an acre.” The defendant answered by saying to the plaintiff, “I am waiting for my deed, so I can make other improvements on this ground.” Plaintiff replied: “Oh, we own it together, and whatever W. F. Cobban has done here is all right.” Defendant then remarked that he desired to make other improvements, and plaintiff responded, “All right, I will be able in ten days or two weeks to give you a deed to this ground.” The defendant’s wife then said that she and her husband “would be glad to have a deed, so as to know just where we stand, and we want to make some other improvements,” in response to which the plaintiff told her to- make the improvements, and assured her that the deed would be made. The defendant testified also that the valuable improvements af-terwards made were added because of these assurances. Between July, 1895, and September, 1897, the plaintiff often passed by the defendant’s home. The defendant further deposed that in September, 1897, the plaintiff told him that, if he would pay “a little rent until we get the title to this land, and until we get divided up on this land, I ami ready to make you people on this flat here your deedssaying he was willing toi carry out the contract of sale made by Cobban, which, as. he for the first time insisted, provided for the payment of rent. Thereafter the defendant added about $25 worth of betterments. His version of this conversation is corroborated by the testimony of his brother. Hammer — seemingly a disinterested witness — testified that in August, 1894, he interviewed Cobban for the purpose of ascertaining whether Cobban had land for sale which the defendant could buy for a home; that Cobban told the witness he could “locate” the defendant on the Summit Valley placer claim, and sell him an acre for $100; that the defendant,, at the suggestion of the witness, went with him to Cobban’s office, where Cobban told the defendant that he (the plaintiff) and others were the owners of the claim, for which a patent had not then been issued ; that he had full control of it, and authority to act for the owners; that he would sell him an acre for $100( would take him to the claim, locate him thereon, and, when a patent was received, he would see that the deed was made; that defendant-accepted the offer, went upon the claim, and selected the parcel of land which he has occupied ever since; that at the time of the agreement $100 an acre was the reasonable value; and that the improvements cost $1,500. Cobban testified: That he had general oral authority Horn the plaintiff and the other owners to make agreements to sell land situated on the Summit Valley placer claim, and that he had, before the transaction with the defendant, made other oral agreements to sell, which were always performed by the plaintiff. That the claim had been secured through the efforts of the witness. “My authority was never disputed on that ground by anybody, not until within the last two years [1897-1899]. I was allowed to go ahead and do whatever I chose with the ground. I was the one that won the ground for them in the first place. They would not have gotten it if it hadn’t been for me. Whatever sale I made of the ground was immediately ratified by all the owners.” That the parcel of land in dispute was worth $75 or $100 in 1894. Cobban corroborated the plaintiff and Hammer as to the agreement for the sale, saying, however, that it was his impression that the proposition was to lease to the defendant at 50 cents a month (which had not been demanded or paid), with the privilege of purchasing at the price of $100 when the patent was issued; and that tbe defendant himself, in the presence and with the approval of Cobban, selected the piece of land which he desired to buy. With respect to what took place in July, 1895, his testimony was also corroborative of the defendant’s. He testified that he had informed the plaintiff of the terms of the agreement with the defendant, and that the plaintiff understood them; that the plaintiff told the defendant that the 'agreement was “all right,” and made no objection to the defendant’s adding improvements; that the plaintiff confirmed the oral contract; that there was not any agreement among the owners of the claim that none of the land should be sold until a patent was obtained, but there was an agreement that no* deed should be made until after the patent issued. “We could sell the ground, and give a lease on it, — give a contract to* sell and deliver deeds. If we did not procure a patent and perfect a title, then the understanding with the parties with whom I contracted and myself was that they were to get off, provided anybody else got a better title than we did.” The defendant’s wife testified that in July or August, 1895, the plaintiff and. Cobban went to the land in dispute, which was then inclosed with a fence, and on which stood valuable improvements; that Cobban there told plaintiff that he had agreed to sell to the defendant the land for $100,- and had agreed to give a. deed for it; that she said that she and the defendant would like to* have the deed, so they could malee improvements, and that plaintiff told defendant and her “to ‘go* right ahead, and make any improvements you wTant to,’ and that he would give us our deed in the course of ten days or two vTeeks, or somewhere near that, or as soon as possible, and for us to go right ahead. The improvements talked of at the time was our dwelling house we had built there. We were to have an acre of ground, and that acre Mr. W. N. Cobban pointed out, and told us to build there; and he said we should have that shaft for a well. This was said in my presence at this time when we weie talking the thing over.” Afterwards the defendant added two* rooms to the house. She further testified that in 1896 the plaintiff told her he would be ready in a few days to make the deed, to which she answered that she and defendant were very anxious to get it. As. a witness for the plaintiff, one of the owners testified that she had never given Cobban authority to sell for her any interest in the placer claim. The plaintiff himself also denied that he ever authorized Cobban to contract for the sale of any part of the claim. His version of the conversation of July, 1895, is this: On the way to the defendant’s house Cobban told the plaintiff that he had leased^ a piece of the land to the defendant. The plaintiff answered that on the piece was a certain mining shaft which disclosed quartz. Cobban said that the defendant had cleaned the shaft, and was using it as a well. The plaintiff suggested going to see it, and when they got to the house plaintiff remarked to the defendant, “You have quite a place here,” and defendant answered: “Yes. W. F. [Cobban] sold me an acre of ground here for a hundred dollars.” To this the plaintiff made no answer, but turned to Cobban, and said to him: “How about this? Yon told me you had leased the ground.” Cobban answered, “I leased it, and agreed to give Mr. Hecklen the first chance to buy it,” and plaintiff replied, “Don’t you know that you have got no right or authority to contract any ground; that we agreed we would not sell any until we got our patent?” Cobban rejoined, “Well, it don’t make any difference,” and the plaintiff remarked to Cobban, in defendant’s presence, “If I owned that ground, and had title to it, I wouldn’t take a hundred dollars for the well alone.” Further on in his testimony he varied the version somewhat by saying that all Cobban said in defendant’s presence about the matter was that he had given the defendant the first privilege of buying the lot inclosed by him, and did not mention the giving of a lease. He admits that he did not make any objection to the defendant’s státement as to the contract of sale, or direct his conversation to the defendant. He denied both the conversation testified to by the defendant’s wife and the conversation of September, 1897, as'detailed by the defendant and his brother. As to: the latter denial he is corroborated by one Lindsey. He denied having written any letter inquiring whether Cobban could sell ground in the placer claim, or with reference to any sale of any ground thereon; but on cross-examination he admitted writing a letter in September, 1895, wherein be asked Cab-ban at wbat price he was offering acre lots in the claim, and suggesting that they should not be sold for less than $200 an acre, and $100 for half an acre, mineral reserved.. This letter was received in evidence.
    The court found in favor of the defendant upon every material issue, and decreed him tqjie the equitable owner, and the plaintiff to hold the legal title in trust for him. The plaintiff was directed to' make conveyance. From the order denying his motion for a new trial and from the judgment the plaintiff has appealed.

      Mr. E. B. Howell, and Mr. E. N. Ila/nvood, for Appellant.
    There are certain requirements which a contract must possess before a court of equity mil render a decree compelling a specific performance of it. Among these are the following: (a) It must be definite and certain -in its terms and limitations, (b) Tt must be complete, (e) It must be reasonable, (d) There must be a clear understanding and a positive assent on the part of each party, (e) It must be mutual. (22 Am. & Ehg. Eincy. Law, p. iOOGff.) The contract sought to be enforced by defendant fails to comply with any one of these requirements. (Oroasdale v. Lanigcm, 129 N. Y. 604; 22 Am. & Eng. E'ncy. Law, pp'. 1001, 1008, 1013, 1016; Lasher v. Loejf-ler, 190 Ill. 150; Civil Code, Sec. 4416, Subd. 6, Sec. 4411; Coop. Association v. Phillips, 56 Cal. 539, 546; Civil Code, Secs. .2125, 4412; Breckewridge v. Crocker, 18 Cal. 529, 536; Magee v. McManus, 10 Cal. 553; Banks v. Weaver, 48 Atl. Pep. 515; Palmer v. Gould, 144 N. Y. 611; Olsen v. Lavell, (Cal.), 21 Pac. 165; Jackson v. Torrence, 83 Cal. 521; Cooper v. Pena, 21 Cal. 404, 411; Sturgis v. Galindo, 59 Cal. 28, 31.)
    The agency of W. E. Cobban to make-the contract in controversy was not established. The burden of proof to show such agency was upon the defendant; he wholly failed to prove it by a preponderance of evidence, or by any evidence. (Civil Code, Secs. 2185, 3085, 3086; Code of Civil Procedure, Sec. 3214;
      Hally. Wallace, 88 Cal. 434; Lamine y. Dodson, 4 Mont. 560; Videau v. Griffin, 21 Cal. 390; Hanford v. McNair, 9 Wend. 54; Bank of Deer Lodge v. Hope M. Co., 3 Mont. 146; First Nat’l Bank y. Hall, 8 Mont. 341.)
    Tbe elements necessary to constitute an estoppel were not present. (Code of Civil Procedure, Sec. 3264, Subd. 3; Ferris y. ■Goover, 10 Cal. 631; Alexander y. Kerr, 2 Nolle, 90; Crest v. Jack, 3 Watts, 239; Garr v. Wallace, 1 Watts, 400; Pñntup y. Mitchell, 63 Am. Dec. 258; Bigelow on Estoppel, 5th Ed. p. 594; Bñngardy. Btelwagen, 41 Mich. 54.)
    As to the degree of proof necessary to establish a parol contract for the sale of land, the authorities are uniform that it must be clear and convincing. A mere preponderance of the evidence will not suffice. (Rice y. Ridgely (Idaho), 61 Pac. 290; Am. & Eng. E'ncy. Law, on ‘‘Specific Performance,” Yol. 22, 984; Aday v. Nichols (Ala.), 52 Am. D’ec. 225; Forrester v. Flores, 64 Cal. 24; Blum v. Robertson, 24 Cal. 129; Forres-ter y. Maginnis, 89 Cal. 264; Pñntup v. Mitchell (Georgia), 63 Am. Dec. 258; Robbims v. McKnight (N. J.), 45'Am. Dec. 406; Hudson v. Layton (Del.), 48 Id. 161; Johnson v. Clancy (Ind.), 28 Id. 45; Wagonblast v. Whitney (Ore.), 6 Pac. P. 399; Story’s Equity Jurisprudence, 165, 166; Robbins v. McKnight, 45 Am. Dec. 406; Aday v. Ehols, 52 Am. Dee. 225; Hudson y. Layton, 48 Am. Dec. 161; Blum v. Robertson, 24 Cal. 143; 2 Am. & Eng. Ency. Law, 2d Ed. p. 424; Parsons on Contracts, Yol. 2, 793, note; Moms v. Moore, 11 Humph. 433; Steel v. Smelling Go., 106 U. S. 456; Lombard Inn. Go. v. Garter, 34 Pac. 209; Grant v. Idle, 85 Cal. 418; Armstrong' y. Loive, 76 Cal. 616; Treat v. DeCilis, 41 Cal. 202; Garstens v. McReavey (Wash.), 25 Pac. Rep. 471; 1 Am. & Eng. Elncy. Law, 2d Ed. pp. 1005, 1006.)

      Mr. M. J. Gavananigh, for Respondent.
   MR. JUSTICE PIGOTT,

after stating the case, delivered 1he opinion of the court.

1. Some contention is made by the defendant to the effect that the findings cannot be reviewed here, because the plaintiff did not challenge them as defective; and he invokes Sections 1114, 1115, and 1116 of the Code of Civil Procedure. These sections are not applicable. They have to' do- only with findings which are defective; that is, which omit matters necessary or proper to- be stated. Exceptions thus provided for lie on account of deficiencies or omissions and not for what is contained in the findings. Such is the clear meaning of the sections. This interpretation was recognized and approved in Yellowstone National Bank v. Gagnon, 25 Montana Reports, on page 271, (64 Pac. 664). In Currie v. Montana Central Railway Co., 24 Montana Reports, 123, (60 Pac. 989), the last paragraph but one may be misunderstood unless it is considered with the opinion as a whole. To state the law accurately, the paragraph, if standing alone, should read thus: “Under the prevalent doctrine of implied findings, the judgment appealed from will not be reversed for defective findings, unless requests and exceptions were made and saved in accordance with Sections 1114, 1115, and 1116 of the. Code of Civil Procedure.”

The notice of intention to move for a new trial is attacked because one of the grounds stated therein is that the evidence was insufficient “to justify the findings and judgment and that the same are against law.” Subdivision 6 of Section 1171 of the Code of Civil Procedure provides that a new trial may be had upon the ground of “insufficiency of the evidence to- justify the verdict or other decision, or that it is against law.” Counsel’s point is that the notice is directed to the findings and judgment, instead of the decision. But the words “and judgment,” since they serve no- purpose, may be rejected. A somewhat similar objection, as appears from the brief of the respondent in that case, was made in Arnold v. Sinclair, 12 Montana Reports, 248, (29 Pac. 1124), hut the court disregarded the objection, and reversed the order upon the ground that the evidence was insufficient to justify the findings. The court was doubtless of opinion that the objection was a refinement of technicality. So far as the question of the insufficiency of the evidence to justify the decision is ground for a new trial, the word “findings” is equivalent to the word “decision,” for a new trial is the reexamination of an issue of fact after trial and decision. Under some circumstances a decision may consist of findings of fact and copclnsions of law drawn therefrom; but a new trial may not be granted because the evidence does not justify such conclusions, nor because they do not follow from the facts found. To warrant a new trial upon the ground of insufficiency of the evidence, the findings of fact (express or implied) or the verdict must, in the opinion of the trial court, be against the weight of the evidence, or must be unsupported by any substantial evidence.

There is no merit in either objection.

2. The plaintiff specifies as error the ruling of the court admitting evidence tending to prove that Cobban had oral am thority from him to make an agreement for the sale of the land to the defendant. lie argues that authority in an agent to make such an agreement must be in writing, and cites Sections 2185 and 3085 of the Civil Code and Section 3276 of the Code of Civil Procedure. These sections became law on July 1, 1895. Cobban made the agreement in August, 1894, — nearly a year theretofore, — at which time written authority was not necessary to the validity of an agent’s contract of sale. So far as we are advised, nothing in the statute of frauds then in force with respect to real property (Sections 217, 219, 220, 228, Fifth Division, General Laws, Compiled Statutes of 1887), nor in the common law, required the agent to be clothed with authority in writing to contract to sell and convey land. Prior to July 1, 1895, the agency might have been established by direct oral evidence of the appointment, or by infei’ence from the acts, letters, or conduct of the parties, or from their relations, the one to the other, or from all combined; in short, from any evidence legitimately raising the inference of agency. (Fry on Specific Performance of Contracts (3d Am. Ed.), Sec. 509, and cases there cited; Coles v. Trecothick, 9 Ves. 250; Johnson v. Dodge, 17 Ill. 433; McWhorter v. McMahan, 10 Paige, 386; Rutenberg v. Main, 47 Cal. 219; Worrall v. Munn, 5 N. Y. 234, 55 Am. Dec. 330; Dykers v. Townsend, 24 N. Y. 57; Moody v. Smith, 70 N. Y. 599; 1 Reed on Statute of Frauds, Sec. 379, and cases there cited.) Tbe court was, therefore, right in admitting the evidence. This disposes also of the point that under Section 3086 of the Civil Code the authority of Cobban to bind the plaintiff by a contract to convey must have been ratified by him, in writing.

3. When Cobban and the defendant entered into the oral agreement of 1894, Sections 219 and 220 of the Fifth Division, General Laws, Compiled Statutes of 1887, were in effect. These declare that every contract for the leasing for a term longer than one year, and every contract for the sale of land, or of any interest therein, shall be void unless the contract* or some note or memorandum thereof, expressing the consideration, be in writing, and subscribed by the party by whom the lease or sale is to be made, or by his agent lawfully authorized. As has been said, the contract was oral, and we may concede that a ratification of the oral contract could be made only in writing. (Section 3086, Civil Code.) But, while a mere ratification of such contract must be evidenced by a writing, the ancient rule that equitable estoppel need not be so evidenced is too well established and generally known to require argument or citation of oases in its support. So with part performance of an oral contract for the sale of land. Nothing contained in the statute of frauds abridges the power of courts to compel the specific performance of such oral contracts. (Section 221, Fifth Division, General Laws, Compiled Statutes of 1887; Section 3275, Code of Civil Procedure.)

4. The plaintiff contends that the contract, in its terms, was not definite, certain, or reasonable, and that its obligation was not mutual or reciprocal. The testimony of the defendant, his wife, his brother, and Hammer tended to show that the contract was definite, certain, and complete. From the evidence adduced, the court found that the contract was one for the sale of an acre of land out of a larger tract. This was reduced to- a certainty by the election and choice of the defendant. “If a man grants twenty acres, parcel of his manor, without any other description of them, yet the grant is not void, for an acre is a thing certain, and the situation may be reduced to a certainty by the election of the grantee.” (3 Bacon’s Abridgement, 807.) It was reasonable, for the price for which it was to- be sold was not disproportionate to its value. It was mutual, for both were reciprocally bound, the one to convey, the other to pay the purchase price, as soon as the defendant so far partly performed as to take the case out of the statute. True, the oral agreement was originally invalid, — it was unenforceable, — -but the part performance vitalized it, and by relation made its terms obligatory from the beginning. If all the owners empowered Cobban to contract, they could have enforced the agreement against the defendant by compelling him to pay the purchase price upon tender of a deed conveying full title. After the partition of July 22, 1897, the plaintiff, holding the entire legal title, might then have done so. Even if the other owners did not authorize Cobban to contract to sell, the plaintiff would not be without obligation, for there was ample evidence that he had clothed Cobban with power to act for him in that behalf, and when the legal title vested in him it was held for the benefit of the defendant. The plaintiff could then have enforced performance by the defendant.

5. The case was tried upon the theory that the plaintiff was estopped to assert title as against the defendant, and that he held the legal title in trust for the defendant. The court found: “That on or about the 15th day of August, 1894, said W. E. Cobban, for himself, as co-owner in said claim, and as agent for the other co-owners therein, entered into an agreement with the defendant, whereby he sold to the defendant the premises described in defendant’s cross-complaint for the sum of $100, which the defendant agreed to pay upon the delivery of the deed; and that said deed was to be delivered when a patent was obtained for said placer claim from the United States government. That said W. F. Cobban, as such co-owner and agent, aforesaid, took the defendant to the premises, and pointed the same out to him, and authorized him to enter into the possession thereof, and to occupy and improve the same; and that defendant had no possession of said premises prior to said time. That at said time the defendant desired to purchase said premises for tbe purpose of building a borne for bimself and family, and that immediately after said agreement was made he entered and took possession thereof, and inclosed the same with a substantial fence, and has ever since occupied the same. That the defendant was induced to enter upon said premises by reason of the contract and agreement with said W. F. Cobban aforesaid, and in reliance thereon; and that, had it not been for said agreement and contract, he would not have entered thereon, or made any improvements on said premises. That, in reliance on said contract, he did enter upon said premises, and inclosed the same as aforesaid, and made permanent and valuable improvements upon the same.” It also found that in July, 1895, the plaintiff was advised by Cobban of the agreement with the defendant, and that the plaintiff then assured the defendant that the agreement would be carried out, and a deed executed, and informed the defendant that he could proceed to make such improvements as he desired, and rely upon obtaining a deed; that, in reliance upon the assurances and representations of the plaintiff, the defendant made large additional, permanent, and valuable improvements upon the land, which he would otherwise not have made; that ever since July, 1895, the plaintiff had full knowledge of the defendant’s possession and claim of right and title to the land, and that defendant was improving the same under such claim of right and title from the plaintiff, who never objected until September, 1891, but, on the contrary, consented thereto, and agreed with the defendant that the contract made with Cobban would be performed, and that he would give a deed; that on July 22, 1S97, the owners partitioned the placer claim, and that the part assigned to the plaintiff included the land so occupied and improved by the defendant; that, if the defendant were deprived of the property by the plaintiff, he could not be compensated in damages, for the improvements made or for the loss of the property. The evidence was sufficient to justify the substance of these findings, and to take the case without the provisions of Section 219, supra,. Subdivision 3 of Section 3265 of the Code of Civil Procedure declares a very old doctrine, and a most just: “Whenever a party has, by bis own declaration, act or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it.” This doctrine is applicable to the facts as found by the court. The conclusions of law that the plaintiff is estopped from asserting any interest in the real estate occupied by the defendant, that he holds the legal title in trust for the defendant, and that the defendant is entitled to a decree requiring the plaintiff to execute and deliver to the defendant a deed conveying the legal title, inevitably follow.

6. The overruling of the plaintiff’s objection to' the reception of certain evidence is specified as error. We are inclined to the opinion that this evidence tended (perhaps very slightly) to establish, inferentially, from the conduct of the plaintiff and of Cobban, and their relations the one wdth the other, implied authority in Cobban to agree with the defendant for the sale. If, however, the evidence was inadmissible, it was, as compared with the evidence, properly received and considered in behalf of the defendant, so trifling and unimportant that we think it was not of sufficient moment to affect the result. Under these circumstances, — -the trial having been by the court without a jury, — the error, if any, was presumptively harmless. (Merchants' Nat'l Bank v. Greenhood, 16 Mont. 395, 41 Pac. 250; Anaconda Coffer Mining Co. v. Heinze, 27 Mont. 161, 69 Pac. 909.) The presumption will be indulged that the trial court disregarded such evidence. A different rule is applicable when proper evidence has been excluded, for in such case the error must be deemed to be prejudicial, unless it shall clearly appear that the admission of the evidence would not have affected the result, or justified a different decision.

7. On the defendant’s cross-examination he was asked the following question: “Is it not a fact that since you have gone upon that ground you have contributed to a fund for the purpose of 'breaking’ the patent under which the Summit Valley placer is held ?” The court excluded the question as not cross-examination, and as irrelevant and immaterial. The question was not subject to- any one of tbe three objections-. It was proper cross-examination; it was relevant-; it was material. Tbe defendant bad testified to tbe making of tbe alleged contract witb Cobban, to bis entry into possession and making of improvements, and tbat tbe occupancy and betterments were induced solely by tbe contract-. He bad testified to a conversation witb tbe plaintiff in July, 1895, wherein be informed tbe plaintiff of tbe contract, and of its terms, and tbat be desired a deed so tbat be could make other improvements-; tbat tbe plaintiff promised to carry out tbe terms of tbe contract, told tbe defendant to make tbe improvements, and. tbat tbe plaintiff would soon make tbe deed; and tbat tbe defendant placed improvements upon tbe land in reliance upon tbe assurances and representations of tbe plaintiff. Whatever tended to contradict, either directly or inferentially, this testimony, was- cross-examination, and relevant and material evidence. If tbe defendant, after making tbe alleged contract witb Cobban, and before tbe conversation witb tbe plaintiff in 1895, sought to- prevent tbe issuance of a patent to tbe Summit Valley placer claim, proof of tbat fact was admissible because of its tendency to contradict bis testimony as to tbe terms of such supposed contract and as to bis reliance upon its terms in taking possession and making improvements. If be so contributed after tbe supposed conversation witb tbe plaintiff of July, 1895, to which be testified, and which tbe plaintiff denied, tbe fact of tbe contribution was admissible in evidence upon tbe grounds just stated, and also because of its tendency inferentially to- contradict bis version of tbe conversation, and to show tbat be did not make further improvements in reliance upon plaintiff’s representations and assurances. An answer in tbe affirmative would have thrown light upon bis statements tbat be bad a contract of sale, and tbat be relied upon such contract,- and upon bis and bis wife’s- version of the talk witb tbe plaintiff in 1895. An attempt to- prevent tbe issuance of tbe patent, or to cause its annulment, would, if successful, have deprived him of tbe full benefit of tbe alleged agreement, by tbe terms of which be was to- obtain title through tbe patent, Tbe evidence sought to be elicited would have been pertinent in respect of tbe probability of tbe truth of bis statements, and sbonld have been admitted. Its weight, of course, would be for tbe trial court. Tbe error was never cured, and we cannot see that it was without prejudice. Presumptively, it was harmful to tbe plaintiff, for tbe defendant might have answered the question affirmatively, in which case it would be for tbe court to consider bow far, if to any extent, tbe act of tbe defendant was inconsistent with bis claim of part performance under the supposed contract, and with his assertion of estoppel against tbe plaintiff. Tbe rejection of proper evidence will require a new trial, unless we are satisfied that tbe result would not have been different if tbe evidence had been received.

We observe a tendency in district courts unduly to restrict cross-examination. This should not be indulged or encouraged. Tbe 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. Doubt respecting tbe limits to which cross-examination may go ought usually, if not always, to be resolved against the objection. Although Section 3376 of the Code of Civil Procedure radically changes the common-law rule in respect, of cross-examination, it “permits a wide range for cross-examination, and the courts should be inclined to extend, rather than to restrict the right. 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, wdrether directly or indirectly, which tend to enlighten a jury on a question in controversy.” (Kipp v. Silverman,, 25 Mont. 296, 64 Pac. 884.) These remarks are general in their application, and have no special reference to the able and learned judge who tried the case at bar.

We find but one error which is prejudicial to- the plaintiff. Because of it the judgment and order refusing a new trial are reversed, and the cause is remanded.

Reversed and remanded.


source: Caselaw Access Project

author: MR-. JUSTICE MILBURN

license: Public Domain

text:
    HAYES, Respondent, v. UNION MERCANTILE COMPANY et al., Appellants.
    (No. 1,432.)
    (Submitted March 11, 1902.
    Decided December 15, 1902.)

      Appeal — Notice — Undertaking — Conformity ■— Service— Acknowledgment by Attorney — Malicious Attachment —- Damage to Credit — Publication • — ■ Pleading — Admissibility of Evidence — Settlemeni—Instructions.
    1. A notice of appeal recited that tbe defendants “each hereby appeals.” The' undertaking, after reciting that the defendants were about to appeal, added that in consideration of such appeal the sureties bound themselves to pay damages and costs awarded against appellants, or either of them, on “the appeal.” Held, that the undertaking would warrant a recovery on a determination of the appeal adverse to both defendants, and was not the undertaking of one defendant, merely.
    2. Code of Civil Procedure, Section 1740, provides that no appeal can be dismissed for insufficiency of the undertaking if a proper undertaking is filed before the hearing of the motion to dismiss. Held, that an objection to an undertaking as only a joint one is not available where, before the hearing of the motion to dismiss, each appellant has filed a due and proper undertaking.
    3. where a judgment is rendered against two of three defendant co-tort-feasors, counsel for the three cannot acknowledge service for the third of the notice of appeal by the defeated two, as the third is adversely interested to escape contribution.
    4. where a defendant who recovers judgment has no counsel of record, except such as represents codefendants against whom judgment is rendered, and which counsel is therefore incompetent to acknowledge service, on behalf of the successful defendant, of the notice of appeal by the defendants charged, service of such notice on the successful defendant by mailing a copy to his postoffice address is sufficient.
    5. In an action for damages from a wrongful and malicious attachment of plaintiff’s goods, where injury to his credit is alleged, evidence of the amount of his business, his profits and credit, and the effect of the attachment upon the latter is admissible.
    6. Assignments of error not designated in the argument will not be considered.
    7. The supreme court will not notice an argument as to an instruction refused, where no assignment refers to that instruction.
    8. It is not error to refuse an instruction requested, where the same is covered by an instruction given.
    9. Injury to plaintiff’s credit being relied on, evidence that the news of the attachment was published by a mercantile agency is properly admitted in proof of such injury, though the defendants are not shown to have been' directly responsible for the publication. ,
    10. under the allegation that the lev3'ing of the attachment injured plaintiff’s business and credit, the evidence of such publication is admissible without being more specifically pleaded.

      11. In an action for wrongful attachment, defendants haying pleaded that, when the claim was settled and the attachment vacated, the plaintiff released them from all liabilitj', evidence of such release should have been admitted, though the complaint showed that the attachment was vastly In excess of the amount due, so as to suggest duress.
    12. In an action for wrongful attachment, an instruction that for a wrongful levy “any damages” resulting to the attachment defendant during the wrongful detention of property may be recovered is properly refused, as too broad.
    18. where, by uniform practice, existing through years, it is mutually understood that the debtor is to have until a certain day of the succeeding month in which to pay for goods purchased during the current month, he is entitled to such time, though no express agreement has ever been made.

      Appeal from District- Court, Leivis and Clarice County j 8. II. Mclniire, Judge.

    Action for wrongful attachment by Jerome D. Hayes against the Union Mercantile Company, Theodore Fuhrken, and Louis Hillebrecht. From a judgment against defendants Union Mercantile Company and Hillebrecht, they appeal.
    Reversed.

      Messrs. Walsh & Newman, and Messrs. Carpenter & Carpenter, for Appellants.
    Loss of credit through an attachment is too remote to be eon-¿ideordcL (Loicenstein v. Monroe, 7 N. W. 406, 55 la. 82; Campbell v. Chamberlain, 10 la. 337; Mitchell v. Harcourt, 17 N. W. 581, 02 la. 349; Anderson v. Sloan, 72 Wis. 566, 40 N. W. 214; Cunningham v. Sugar, 49 Pac. 910; Crymble v. Mulvcmey (Colo.), 40 Pac. 499; Seattle Crockery Co. v. Haley, 33 Pae. 650.)
    It is not alleged or proven, nor did respondent attempt to prove that appellants published, or caused to' be published through papers, reports, agencies, or through other means, the fact that an attachment had been issued against the respondent. When not pleaded it was not admissible; If pleaded it would not bo admissible unless shown that the appellants published, caused it to be published, or vrere in some way connected with, or responsible for its publication. (Maskell v. Barker, 99 Cal. 642, 34 Pac. 340; Tynberg v. Cohn, 24 S. W. 314; Jameson v. Weaver, 81 la. 212, 46 N. W. 996.)
    The question of duress is not a question of law for the court; it is a question of fact for tbe jury to say from all tbe circumstances in tbe case whether or not a party acted under duress» (Galusha v. Sherman,, 47 L. R. A. 411.)

    Evidence of duress cannot be introduced under a general denial, but must be specially pleaded. (Nordholt v. Nordholt, 81 Cal. 552, 26 Pac. 599.)
    If tbe contract was made, even though made under duress, it ivas not void but voidable. (Civil Code, Sec. 2111; Bossiter v. Loeber, 18 Mont. 312; Clark on Contracts, p. 363; Am. & Eng. Enc. Law, Yol. 10, 2d Ed. 334; Deputy v. Stapleford, 19 Cal. 302; Clark on Contracts, 361; State v. McCauley, 15 Cal. 429.)
    A person who settles a suit should not be permitted to after-wards bring an action on the ground that the suit settled was commenced without probable cause. There is a long line of authorities supporting this proposition, of which we cite only a few. (.Sartiuell v. Parker, 141 Mass. 405, 5 Ni E. 807; I-Iillard v. Began, 46 Ill. App. 313; Boseberg v. Hart, 33 Ill. App>. 262; Emery v. Oenran, 24 Ill. App. 65; Thompson v. Qatlen, 58 Eed. 534; Bachilman v. Skinner, 48 N. W. 116.)

    When an action is commenced in good faith and there is no malice, an action for malicious prosecution cannot be maintained. (Comales v. Gobliner, 8 Pac. 697, and notes; Stewart v. Sonneborn, 98 U. S. 192.)
    AVhere the facts are undisputed the want of probable cause is a question for the court, but where the facts are disputed the question is for the jury under proper instructions from the court as to what will constitute want of probable cause. (Gurley v. Thompkins, 30 Pac. 345; Mosley v. Yearwood, 19 S. 274.)

      Mr. B. B. Purcell, and Mr. T. J. Walsh, for Respondent.
    Loss of credit is an element of damages not too remote to be considered in actions for wrongful attachment. (Shinn on Attachment, 379; Waples on Attachment, 1010; Drake on Attachment (3d Eel.), 745; Kennedy v. Meacham, 18 Eed. 312; Lewis v. Taylor, 34 S. W. 92; Tynberg v. Cohen, 24 S. W.314; Donnell v. Jones, 48 Am. Dec. 59-71; 03Crady v. Julian, 34 Ala. 88; Meyer v. Fagan, 51 N, W. 753; Burton v. Knapp, 87 .Am. Dec. 479; Mayer v. Duke, 72 Tex. 445-453; Flournoy v. Lyon, 70 Ala. 308; Doll v. Oooper, 9 lea, 576-586; Lawrence y. Hagerman, 56 Ill. 68.)
    Evidence of tie publication of the attachment was admissible. (Brand v. Hinchman, 36 N. W. 664-669.)
   MR-. JUSTICE MILBURN

delivered the opinion of the

court.

This cause comes before us on appeal from the order denying a motion for a new trial and from the judgment.

The respondent has interposed a motion to' dismiss the appeal. The action was prosecuted by the plaintiff against the three defendants named, to recover for tort. The verdict was against all three of the defendants for $3,000. Judgment was taken and entered against the Union Mercantile Company and Louis Hillebrecht only, the court holding Fuhrken not liable. Two notices of intention to move for a new trial were served and filed, — one jointly by the Union Mercantile Company and Hille-brecht, and another by Euhrken. They all, however, filed a single motion in writing for a new trial. This motion was overruled on condition that the plaintiff abate all except $1,000 of the sum awarded by the jury. This he did. The Union Mercantile Company and Hillebrecht appealed. Fuhrken, of course, did not.

The notice of appeal, addressed to the proper parties, is as follows: “You, and each of you, will please take notice that the defendants Union Mercantile Company and Louis Hille-brecht each hereby appeals to the supreme court of the state of Montana from the judgment made, given and entered in the above entitled cause on the 30th day of November, 1898, in favor of plaintiff, and against the defendants Union Mercantile Company and Louis Hillebrecht, and each of them, and modified by order of court made on the 15th day of April, 1899, and the stipulation or waiver filed by the plaintiff on the 25th day of April, 1899, and from the whole and every part of said judgment. And you, and each of you, will further take notice that the defendants Union Mercantile Company and Louis Hille-brecht each hereby appeals to the supreme court of the state of Montana from the order made, given and entered in the above entitled cause on the 25th day of April, 1899, overruling the motion of the defendant Union Mercantile Company and the defendant Louis Hillebrecht for a new trial in said cause, and from the whole and every part of said order.”

An undertaking in the sum of $300 was filed, conditioned, after -reciting that the Union Mercantile Company and Hille-brecht are about to appeal to the supreme court, as follows: “Now, therefore, in consideration of the premises and of such appeal,” etc.; and the sureties promise “that the said appellants will pay all damages and costs which may be awarded against them, or either of them, on the appeal, or dismissal thereof.”

The motion to dismiss is upon two grounds: (1) That no undertaking on the appeal of tire Union Mercantile Company has ever been filed, and the only undertaking on appeal herein is an undertaking reciting a joint appeal by the said Union Mercantile Company and Lords Hillebrecht, which said undertaking is conditioned upon the affirmance or dismissal of said joint appeal; and (2) that the notice of appeal does not appear to have been served upon the defendant Euhrken, it being assumed that he is an adverse party.

Appellants, before the hearing of the motion to dismiss, each filed a good and sufficient undertaking, approved by the Chief Justice; they depending upon Section 1740 of the Code of Civil Procedure.

Excellent briefs bearing upon this motion have been filed and considered by this court.

As to the first ground of the motion: If damages and costs should be awarded against both of the appellants, and suit should be brought against the sureties on the undertaking, could there be a valid defense on the ground that the undertaking was void ? We think not. It may be that the undertaking is insufficient, in that, if damages and costs should be awarded against only one of the appellants, or if the appeal as to one should be dismissed, suit could not be maintained on tbe undertaking, for the reason that the sureties did not undertake to respond in such a case, but only in case “the appeal” of the two appellants named in their undertakings should be dismissed, or in case damages and costs should be awarded against them. The undertaking speaks for itself. The sureties, if sued, could not aver and maintain that the Union Mercantile Company and Louis Hillebrecht had not appealed, as they in their undertakings state that they (the Union Mercantile Company and Louis Hillebrecht) were about to do. These parties did appeal, and it would be the very refinement of technicality in the construction of language to hold that the words “on the appeal,” rtsed in the undertaking in connection with the word “appellants,” mean, and can only mean, the appeal of one of the appellants. The language of the undertaking means that if the Union Mercantile Company and Louis Hillebrecht do appeal, and do not prevail, the sureties will see to it that the appellants pay the costs and damages, or that the sureties will pay them. If the undertaking is insufficient to cover the case of the failure of some one of the two appellants to prevail in its or his appeal, — and this point it is not necessary for us to decide, — then the fact that the appellants have severally filed new undertakings, as above stated, is sufficient to save them from an adverse ruling on the motion to dismiss on the first ground. (Coleman v. Perry, 24 Mont. 237, 61 Pac. 129, with citations.)

As to the second reason alleged why the appeal as to the Union Mercantile Company should be dismissed: The reason given is that Fuhrken is an adverse party, and no notice of apt-peal was served upon him. The appellants, the Union Mercantile Company and Louis Hillebrecht, amending the record, by affidavit show service by mailing a copy of the notice of appeal to Fuhrken at his correct postoffice address, and further show that they, the said counsel, on the same day acknowledged service for Fuhrken as counsel for Fuhrken. If Fuhrken he adverse party, because he may be interested in seeing that the judgment be affirmed against the appellants, for that they may be compelled to pay without contribution from him as joint tort feasor, then counsel for the appellants could not accept service for their adversary, Fuhrken; and it would be proper and right to serve the notice by mail on him, as was done. It does not appear that he had any other counsel of record, or at all. Notice was given to Fuhrken.

The motion to dismiss is denied.

This action was commenced in March, 1898, for wrongfully and maliciously procuring, without probable cause, an attachment to be levied upon plaintiff’s goods. It is alleged in the complaint that ever since 1890 the plaintiff has been, and at the time of the alleged grievance was, doing a wholesale and retail business in Lewis and Clarke county; that the defendant Union Mercantile Company was and is a corporation; that on January 4, 1898, the said defendant corporation, by and through the defendants Hillebrecht and Fuhrken, officers thereof, commenced an action in the district court of Lewis and Clarke county against the plaintiff for $2,018.15 and costs, and sued out a writ of attachment; that defendants caused the writ to be executed by levying upon and seizing all of plaintiff’s stock, of the value of $15,000, and retaining possession thereof for two days; that no more than $250 was due to the defendant company, although plaintiff admits that he owed the full sum of $2,018.15 ; that if suit had been brought, and a writ of attachment issued only for what was due, to-wit, $250, the plaintiff could and would have paid that amount and costs, and thus have avoided the attachment; that the defendants maliciously and purposely caused the levy for the amount of $2,018.15 in order to destroy the plaintiff’s business and injure him; that plaintiff was doing a prosperous 'business; and “that, by reason of the wrongful and unlawful acts of the said defendant Union Mercantile Company, plaintiff’s trade and credit have been impaired and destroyed, and will be seriously injured for a long period in the future; that he has been financially cramped and distressed, to his damage in the sum of $10,000.”

The defendants answered, and denied all the material allegations of the plaintiff, except so far as, further answering, they admitted and averred that the debt of $2,018.15 was due at the time of the commencement of the suit and of the issuance of the writ of attachment; that, after stating the facts to legal counsel, and being by him advised that they had a good cause of action on the merits, they commenced the action, and the writ was issued and placed in the hands of the sheriff, with instructions to levy upon sufficient property to satisfy the claim and costs; that the sheriff on the said 4th day of January, after the close of the business of the defendant (plaintiff and respondent here), went to his store and told him, of his possession of the writ, and was by respondent requested to forbear the removal of any goods, but to take possession, and he would settle; that thereupon the Union Mercantile Company and respondent agreed that the sheriff should not remove any goods from the store, but should remain nominally in possession, and respondent should continue his business without interruption; that immediately the respondent then applied to appellant Union Mercantile Company to settle the said action and all issues; that a full settlement was made in consideration of said appellant accepting certain goods returned, and the guaranty of Bach, Cory & Co., instead of a certain part of the money sued for, and the respondent waived any claim for damages arising out of said suit, and that said settlement was in full of all demands of either of said parties against the other, and thereupon, and at noon of January 5th, the sheriff withdrew; that the defendants Hillebrecht and Fuhrken took no part as private persons in the case, but acted, so far as they did act at all, as officers of the company, and not otherwise, save and except that they executed an undertaking as sureties only, and without malice or intent to injure plaintiff in any way or at all. Defendants further averred that the goods said to have been levied upon were not worth more than the sum of $2,018.15, plus costs and interest, and the wages of the servants of respondent.

There are twenty-eight assignments of error. We shall notice only those designated or referred to in the argument contained in the brief of counsel for the appellants.

Appellants argue, referring to assignments 1, 2, 3, 4, 5, 7, and 11, that “it was error to admit evidence relating to respondent’s amount of business, its profits prior to tbe attacbment, tbe financial credit tbat be bad, and wliat effect tbe attacbment had upon bis credit.”

It is alleged and denied, respectively, tbat tbe business of tbe respondent at tbe time of tbe alleged levy was prosperous. In a case of malicious attachment and seizure without probable cause, it is not error to admit evidence as to loss of credit directly traceable to. such levy and attachment suit. Tbe weight of authority is to> tbe effect tbat it is not error to admit evidence tending to show tbat by wrongful and malicious attacbment tbe business credit of tbe alleged debtor has been injured. (Shinn on Attacbment, 379, and cases, cited; Kennedy v. Meacham (C. C.), 18 Fed. 312; Tynberg v. Cohen (Tex. Civ. App), 24 S. W. 314; Drake on Attachment (7th Ed.), 745; O’Grady v. Julian, 34 Ala. 88; Flournoy v. Lyon, 70 Ala. 308; 19 Am. & Eng. Enc. Law, 650, 651, 704, and citations.) The four cases, to-wit, Lowenstein v. Monroe, 55 Iowa, 82, 7 N. W. 406, Campbell v. Chamberlain, 10 Iowa, 337, Mitchell v. Harcourt, 62 Iowa, 349, 17 N. W. 581, and Anderson v. Shone, 72 Was. 566, 40 N. W. 214, 7 Am. St. Rep. 885, are contra-. Tbe Iowa court admits tbat there are courts Avhich do not agree Avith it, and says tbat “in most of tbe other states” tbe rale is in conformity Avitb Campbell v. Chamberlam, supra, but do.es not cite any case of these other states. ° The Wisconsin case does not, in terms, hold tbat recovery in case of wrongful and malicious at-tacbment cannot be had for injury to credit resulting from such attacbment.

The assignments are not tenable.

Deferring to assignments not designated in the argument, appellants say that it was prejudicial “to permit Mr. Hayes to testify what he Avould have done if appellants, did not agree to extend the time of tbe payment of tbe $200, and tbat be would let it stand, and take tbe 'chances of being attached.” No attempt is made to argue this point, or. to show why this was prejudicial, if it Avas. We are even left in the dark as to' wha.t $200 is referred to.

There is a suggestion in the brief that the court was inconsistent in permitting testimony to be introduced, over objection of the appellants, relating to appellants’ knowledge of respondent’s method of doing business, and whether or not he ever failed to meet payments immediately after “pay day” at the East Helena smelter, and about his credit business, and what day of the month was “pay day.” It is also stated in the same paragraph of the brief that these matters were not in issue in the case. There was a smelter near respondent’s store, the workmen in which being his customers and accustomed to pay him their accounts on the smelter pay day, as alleged by the respondent. No reference is made h> any particular one of the assignments, or to any part of the 216 pages of the testimony. We cannot go into this matter further than to say that this evidence, whatever it was, might have been pertinent to the issues.

Counsel say it was error to overrule appellants’ ■ motion to strike out the testimony relating to the publication of the attachment, and allowing other tesimony to be introduced on that subject. This doubtless refers to assignment 6, which is as follows: “It was error to overrule appellants’ motion to1 strike out the testimony relating to the publication of the attachment through Dun’s Agency, and its being wired over the country, and in admitting other testimony upon the subject of the publication of the attachment proceedings.” No reference is made to the parts of the transcript where the “other” testimony can be found. It is argued that the court was wrong, because it was not alleged in the complaint, or proven or attempted to be proven, that appellants had anything to do with any publication of the fact of such attachment. Counsel argues — Eirst, that, if not pleaded, publication, cannot he proven; and, second, if pleaded, proof may not be offered unless defendant was party to such publication. In support of this point, appellants cite three cases: Maskell v. Barker, 99 Cal. 642, 34 Pac. 340; Tynberg v. Cohen (Tex. Civ. App.), 24 S. W. 314; and Jamison v. Weaver, 81 Iowa, 212, 46 N. W. 996. The complaint in the Maslcell-Ba/rlcer Case alleged that the publication caused the plaintiff much anxiety. It says nothing about credit There was an attempt to’ levy upon real estate; but, the writ not having been levied in the manner and form as provided by the statute, — the constable, it was alleged, having received the writ, and filed a copy with the county recorder, with a description of the real estate sought to be levied upon, with a notice that it was attached, — the court held that this was not a levy, and declared in the opinion that the malicious suing out of a writ of attachment, without probable cause, without levying it upon the property of the alleged debtor, would not authorize a recovery by such party. This having been held, the addition of the remark that it did not appear that the defendant was in any way connected with the notices- which it was alleged were published was not necessary to a determination of the cause, and the remark seems to be obiter. No authority is cited for any of the conclusions of the court in the case, and the remark referred to is not authoritative or persuasive.

The Tynberg v. Cohen Case is not in point, for that the announcement in the paper was not such as one expects to be made in a case of attachment. The newspaper falsely announced that the alleged debtor had failed in business. The court, in discussing the point, said: “The mere levy of the attachment * *

* did not authorize such a publication.” This language does not exclude the proposition that a levy of attachment would authorize a newspaper to state that an attachment had been levied.

The Jamison-'Wemer Case is not in point. The court in that case held that it was not error “to refuse to allow the defendant to prove that his creditors had returned to him printed slips stating that he had been attached, and that notices had been sent to the commercial papers.” It nowhere appears in the statement of that case that the levy of the attachment Avas alleged to be malicious and without probable cause. It was merely said to be Avrongful. There is nothing to show that the defendant, in his counterclaim against the plaintiff, alleged damages for injury to his credit. The Avord “credit” does not appear in the opinion or in the statement of the case. Although the Iowa court-says that the testimony Avas clearly inadmissible unless the publication was traced to the party suing out the writ, this remark does not persuade us, as the case before us is one for malicious attachment, without probable cause, to the injury of the debtor’s business credit.

Being of the opinion, as we are, that malicious attachment without probable cause is a ground of action, in the trial of which action testimony is admissible to prove injury to business credit, it follows, as we think, that it is proper to prove that the news of the attachment was published in the usual way to the world in general, and to the business world in particular. It is a matter of common knowledge that attachments, levy of execution, assignments, mortgages, and the like, tending to1 show business embarrassments and difficulties, are published for the information of all persons who are doing or who are likely to do business with the alleged debtors. It is a matter of common knowledge, also, that there are information agencies, long established, for the sole purpose of giving such information.

A point also relied upon is that there could be no testimony as to publication, since there was no allegation in the complaint of publication, and that the same is irrelevant, immaterial and incompetent, and that there is nothing to show that the defendants, or any of them, caused or induced such publication. If one rightfully and lawfully cause an attachment to- be levied upon the property of a person in business, one naturally expects the fact of such attachment to be published to the business world, and that the credit of the person attached, if he have any, may be injured; but such a person is not liable in damages, for he has the right to levy the attachment to secure an honest debt. If the attachment be made maliciously and without probable cause, he is liable for damages to the alleged debtor, and damage to his business credit naturally follows, and such damage should be compensated. In Michigan (Brand v. Hinchman, 68 Mich. 590, 36 N. W. 664, 13 Am. St. Hep. 362) it is said that such publication, naturally injured the credit of the person sued. The Michigan court does not cite any court’s opinion in support of its declaration, but it was a question to be decided, and we agree with its views. If such injury is naturally to be expected, and such publication to be naturally expected, because all business men and all people at large know that such publication is generally made of such facts, then there is no necessity to specially set up in the complaint what was intended to be proven, to-wit, the particular matter of publication, which, it was attempted to be proven, was one of the means of injuring the plaintiff’s business credit; it being alleged in the complaint that the levying of the attachment injured the credit and business of the plaintiff. Under a general averment of malicious attachment of property, recovery may be had for the general loss of credit and mercantile character (13 Enc. PI. & Prac. 453), and general publication of such attachment all over the country would be admissible evidence, tending to show such injury. The definition of malicious prosecution is not limited to criminal suits. (19 Am. & Eng. Enc. Law, 650, 704; O'Grady v. Julian, 34 Ala. 88; Closson v. Staples, 42 Vt. 209, 1 Am. Pep. 316.) The rules of evidence in suits for malicious prose cution for alleged crime apply here. An averment of arrest, imprisonment, and tidal on a criminal charge authorizes a recovery for all the injury to reputation. (13 Enc. PL & Prac. 452, and cases cited.) In Minneapolis Threshing Machine Co. v. Regier, 51 Neb. 402, 70 N. W. 934, it was held that an uncolored statement of such arrest and trial, made by a newspaper, is a natural and probable consequence and a direct consequence of the institution of such proceedings, and the fact that the prosecution resulted in such publication may be shown, to aid the jury in estimating the damages. The Nebraska court cites Filer v. Smith, 96 Mich. 347, 55 N. W. 999, 35 Am. St. Rep. 603. There is, of course, a difference between one’s reputation, which may be injured by the publication of one’s arrest and tidal for alleged crime, and one’s business credit; but, by a parity of reasoning, it appears to us that if, in the one ease, testimony as to publication is admissible to prove natural result of the tort, then it may be in the other to prove such result.

Complaint is made, and the point argued, that the court erred in excluding offered testimony to prove that the plaintiff herein, while the sheriff was at the store, settled the demands of the-defendants in the attachment suit, procured the suit to be dismissed, and expressly waived all damages wbicb lie might have suffered from wbat he avers was a malicious attachment. Appellants say that the evidence was excluded on the ground of duress. Defendants set up, inter alia, payment, release, and waiver of damages. We do not think it is necessary to consider the point which has been made as to the absence of a replication, further than to remark that no replication was required at the time the answer was filed. It was for the jury to determine whether there was duress or not. The defendants certainly do not seem to have offered to prove that they coerced the plaintiff herein to settle. They asked their witness Mr. Newman certain questions as to what actually occurred and what was said at the time of the settlement. All this was objected to, and the court ruled it out. Then the defendants made a formal offer to prove the release and waiver, and the conditions thereof, and that the application to settle was made by plaintiff. This offer was rejected. It may have been shown that plaintiff did or said something then and there inconsistent with his material averments in his complaint. What was said and done by the parties to the conversation may have led the jury to believe that there was not any coercion or duress on the part of the appellants. If it should appear from the conversation that the then debtor (plaintiff herein) admitted that he owed the money, but, while claiming that it was not all due, saw and acted upon a chance to make an advantageous bargain for himself by threatening his creditors with a damage suit, and did make such a bargain, which would be better for him than paying the cash when it should fall due, and did offer to settle in such a way and release his creditors from all damages, would he not be the person who was taking advantage of the situation? Would this be coercion by his creditors? We do not intimate that such was the case, but it may have been, for all one can tell from the record as called to our attention in the briefs. The court should have let all the circumstances appear. It was alleged that plaintiff released his attaching creditors. This was an issue in the case. All the facts as to how such release, if granted, was given, should have gone to tbe jury. If be was - wrongfully and unlawfully coerced, tbis would bare to appear to tbe jury, under proper instructions of tbe court, before be could avoid sucb release or waiver, and maintain bis action for damages for tbe alleged malicious attachment. Tbe court erred in rejecting tbe offer to prove tbe circumstances and conditions of tbe alleged settlement of tbe suit, and release of plaintiff’s claim for damages.

As to tbe assignments and argument referring to tbe instructions given and refused, it is enough to say that we find no error in those given and assigned as erroneous. If tbe court bad admitted tbe evidence offered to prove tbe circumstances of tbe alleged settlement, then instruction No. 4, refused, might* as tbe evidence might appear, have been proper, for it correctly states tbe law that waiver of a right to demand cash, and tbe accepting of something else of value in consideration of a lawful contract, is a good consideration to- support sucb contract.

We do not notice tbe argument as to instruction No-. 5, ref-fused, for tbe reason that no assignment refers to- that instruction.

Instruction No. 6, refused, is covered by instruction No-. 11, given; hence it was not error to refuse tbe one asked by appellants.

We find no error in refusing to give defendants’ instruction No. 18, it being contrary to tbe views expressed hereinbefore as to damages for injury resulting from tbe publication of tbe alleged attachment.

It was not error to refuse defendants’ instruction No. 14, as it states, with other things, that, in a case of a “wrongful levy,” “any damages that may have resulted to tbe defendant during tbe time tbe property was wrongfully detained” might be recovered. Tbis is too broad. Neither a mere wrongful levy, nor a malicious levy, without probable cause, will warrant a recovery for “any damages to- tbe defendant during tbe time tbe property was 'wrongfully detained.” We add that malicious levy without probable cause is a wrongful levy, but not every wrongful levy is malicious; hence tbe defendants, in offering tbis refused instruction, should have added some apt word or phrase to the word “levy/’ to show that they meant a wrongful levy without malice, if this is what they did mean. It was not error to refuse the instruction. In the instruction given, which seems to be a substitute for the one asked, the court improperly used the words “any damages.”

Complaint is made in the argument that the court admitted some evidence, over the objection of the appellants, as to' when the money owing by respondent was to be paid, according to an understanding and a long established practice, without express agreement, and that the court was emphatic as to its opinion that the evidence was admitted to corroborate the respondent, Hayes, and to show a contract, and, further, that the court inconsistently gave instruction No. 14. We see no error in the instruction. It is as follows: “If, by reason or pursuant to a uniform practice, extending through years, it was mutually understood by the defendant company and the plaintiff that the plaintiff was to have until ‘pay day’ of the succeeding month in which to pay for goods purchased during the -month preceding, then he was entitled to such time, though it was never expressly and in so many words agreed between the parties; in other words, an agreement for time may be implied from the acts of the parties, the circumstances and conditions of their business relations, though express words may not have been employed to indicate their agreement.”

The evidence is conflicting, and we cannot say that the court erred, on the hearing of the motion for a new trial, in holding that the evidence would support a verdict of damages in the sum of $1,000, to which amount the verdict-was reduced by the court.

Because of the errors found and discussed herein, the order denying the motion for a new trial and the judgment are reversed, and the cause is remanded for a new trial.

Reversed and remanded.


author: ME. JUSTICE PIGOTT

text:
    STATE ex rel. HARRIS, Plaintiff, v. DISTRICT COURT et al., Defendants.
    (No. 1,899.)
    (Submitted December 18, 1902.
    Decided December 19, 1902.)

      Supreme Court — Jurisdiction—Writs of Supervisory Control— Certiorari — Mandamus—Review of Decisions of Trial Court.

    J. Rulings oí the trial court sustaining defendant’s objections to the introduction of evidence on the ground that the complaint failed to state a cause of action, dismissing the complaint, discharging- the jury, and entering judgment for defendant, are not reviewable by certiorari¿ the court having jurisdiction to make the rulings.
    2. A decision of a trial court that a complaint in a suit does not state a cause of action, being a determination of an issue of law arising in the case, will not be corrected by mcmaamus.

    11. The writ of supervisory control can be employed only in exigent cases to remedy manifest wrongs winch cannot be otherwise righted, hence a writ of supervisory control will not be granted (at least wRere the case is not shown to he exigent) to correct alleged errors in the decisions of a trial court that a complaint does not state a cause of action, discharging the jury, and entering judgment for defendant, t'he same being reviewable on motion for new trial or on appeal.
    Application- for writs of supervisory control, cerliorm'i, and mandamus by tlie state, on tlie relation of John S. Harris, as administrator of the estate of Eobert G. Ingersoll, deceased, to review the rulings of the district court of the Second judicial district of Montana for Silver Bow county, and the judge thereof, sustaining objections to the introduction o-f evidence on tlie ground that the complaint failed to state facts to constitute a cause of action, dismissing the complaint, discharging the jury, and entering judgment for defendant.
    Application denied.

      Mr. Edgar N. Harwood, and Mr. J olm Lindsay, for Relator.
   ME. JUSTICE PIGOTT

delivered the opinion of the court.

By'the amended complaint in an action pending in the district court- of Silver Bow county, entitled “John S. Harris, as Administrator of the Estate of Robert G. Ingersoll, Deceased, v. Henry A. Root et al." tlie plaintiff demanded judgement for $95,000 as tbe remainder dne for professional services rendered by the decedent in his lifetime to certain of the defendants; that the debt and judgment- be declared a lien upon the interests and shares of such defendants, and that a receiver thereof be appointed. Demurrers to the complaint were filed, and after-wards withdrawn, and the defendants answered. The court .appointed a receiver. On December 10, 1902, the cause came on for trial before the court sitting’ with a jury. On December 11th, when the plaintiff attempted to examine his first witness, the defendants objected to the introduction of any evidence, on the ground that the amended complaint fails to state facts sufficient to constitute a cause of action. The court sustained the objection, dismissed the “complaint,” and discharged the jury, the plaintiff excepting. Counsel for the plaintiff state that on the next day a formal judgment was rendered in favor of the defendants. The plaintiff now applies to this court for writs of supervisory control, certiorari> and mandamus. He asks that by means of these writs the order dismissing the complaint be annulled, and that the 'district court and its judge be required forthwith to recall the jury and to proceed to trial.

1. As to certiorari> it is enough to say that the court had jurisdiction to make the order sought to be annulled, and therefore this remedy is not available. (State ex rel. Prescott v. Third Judicial Dist. Court, 27 Mont. 179, 70 Pac. 516.)

2. Mandamus does not lie to direct the making of a particular judicial decision or ruling in a matter within the jurisdiction of the court or judge. (State ex rel. Independent Pub. Co. v. Smith, 23 Mont. 329, 58 Pac. 867.) Nothing in Raleigh v. District. Court, 24 Montana Reports, 306, (61 Pac. 991, 81 Am. St. Rep. 431), supports the plaintiff’s contention. There it was - held that refusal to take jurisdiction, or, after having acquired jurisdiction, refusal to proceed in its regular exercise, or the erroneous determination of a question of law or practice, presented as a preliminary objection, upon which the court refused to examine the merits, will be corrected by mandamus. Here the court took jurisdiction, and proceeded in its regular exercise1; its decision that the complaint lacks substance was not the determination of a preliminary objection, but was the determination of an issue of law arising in the cause itself (not before reaching’ its threshold), and hence involved the merits.

3. The writ of supervisory control cannot be successfully invoked, for, it may be employed only in exigent cases to remedy manifest wrongs which cannot be otherwise righted. (State ex rel. Sutton. v. Second Judicial Dist. Court, 27 Mont. 128, 69 Pac. 988.) Should the writ issue upon the present application, it would lie to correct each and every mistake of district courts,, and in great measure supplant the ordinary appeal. Such is not its office. (State ex rel. Moore v. Second Judicial Dist. Court, 25 Mont. 31, 63 Pac. 686.)

The alleged errors asserted by the plaintiff may be corrected only on motion for neiv trial or on appeal. Let the application be denied, and the proceeding dismissed.

Dismissed.


author: MB. JUSTICE MILBUBN

text:
    STATE, Respondent, v. BURRELL, Appellant.
    (No. 1,749.)
    (Submitted November 10, 1902.
    Decided December 22, 1902.)

      Criminal Law — False Pretenses — Witnesses — Examination — Questions — Incriminating Testimony — Privilege — Waiver — Instructions — Weight of Evidence.

    1. In a prosecution for false pretenses, a question asked upon the cross-examination of the person to whom the representations- were made,— whether he had not stated, and knew it to be a fact, that it had been represented to him prior to the time the representations by defendant were made that defendant was indebted to his brother, — was improper, as ambiguous and involving* two interrogatories.
    2. Where, on cross-examination of a witness, he is asked whether he had not at other times made statements inconsistent with his present testimony, it is not necessary tbat the times, places, and persons present, be related to him; such facts being required only when a foundation is sought for impeachment.
    3. In a prosecution for false pretenses, an instruction that the fact that defendant testified in an insolvency proceeding did not deprive him of his right to refuse to answer questions tending to criminate him, and an admission made by him in such proceeding was voluntary and competent evidence in a criminal prosecution, where he was not in custody or charged with a criminal offense when he made such admissions, was not objectionable as a charge on the weight of evidence.
    4. The provision of the bankrupt act that no testimony given by the bankrupt shall be offered in evidence against him in any criminal proceeding does not prevent sufficient incriminating information and evidence from being obtained from sources other than the bankrupt, the knowledge of such sources having been obtained from the bankrupt’s testimony.
    5. Where a bankrupt, on examination before the referee, made no objection to testifying on the ground that his answers might criminate him, he thereby waived his privilege (if he had any), and any admissions made by him in such proceeding could be properly used on cross-examination of defendant in a criminal proceeding against him.
    C. Where defendant in a prosecution for false pretenses did not refuse to testify as to admissions made on his examination before a referee in bankruptcy, he waived his privilege to refuse to testify on the ground that his answers might criminate him.

      Appeal from District Court, Cascade County; J. B. Leslie, Judge.

    Aechie Burrell was convicted of false prétenses, and he appeals.
    Affirmed.

      Messrs. Cullen, Day c(; Cullen, and Mr. J. A. Largent, for Appellant.

      Mr. James Donovan, Attorney General, for the State.
   MB. JUSTICE MILBUBN

delivered the opinion of the court.

The defendant was informed against and charged with the crime of obtaining property by false pretenses, in that he, on the 20th day of March, 1901, did falsely, fraudulently and feloniously represent to the Boyal Milling Company, a corporation, that a. certain statement in writing which he had then and there to the said company produced was a true and correct statement of his assets and liabilities, whereas the said statement was false, in that his liabilities were largely in excess of the amount set forth in such statement, — said defendant knowing the same-to be false, — and that the company was induced to sell and deliver to him certain goods of great value, sold because of said misrepresentations. The defendant was convicted, and the cause is before us on appeal from the judgment and an order denying ■defendant’s motion for a new trial.

Numerous technical objections have been made by the attorney general to the record and transcript as presented. In view of the conclusions we have reached as to1 other points, it will be unnecessary to consider any of these objections.

The only assignments of error seriously relied upon by the ■defendant, and the only ones which we consider it at all necessary to treat, are the following: Upon the cross-examination of W. M. Adkinson, agent of the said company, — being the person to whom the alleged false statements were made by the defendant, — he was.asked the following question: “I will ask you if you have not stated, and know it to be a fact, that it had been represented to you prior to March 20, 1901, that Archie Bur-rell, this defendant, was indebted to Henry Burrell ?” To which question counsel for the state objected on the ground that it was not in proper form, was immaterial, and failed to state “when and where and who. was present.” The question was not in proper form. There are at least two questions involved in the one, and the whole is ambiguous. If the witness had answered in the affirmative, the jury would not have known what he meant. If he had answered “No,” his answer would have been pregnant. The court was hot in error in sustaining the objection to the question, in the form in which it was put. The witness,' •on direct examination, testified that he had heard it rumored that the defendant was indebted to his brother, and that at the time of the making of the said written statement he had asked defendant whether he was indebted to his brother, and that he then and there explicitly denied that he owed his brother. If the defendant’s counsel desired to go further into this matter, he had every opportunity to ask another question, or as many as necessary, couched in proper form; and he should have done so, if he. desired to search the heart and memory of the witness on cross-examination in respect of the very material matter of whether he was actually deceived by any statement made by Archie Burrell at the time he advanced him credit as set out in the complaint.

Owing to the frequency with Avhich able counsel raise the point, and contend for it in this court, that when, on cross-examination, a witness is asked if he has not at other times made statements inconsistent with his present testimony, he must have related to him, before an answer is required, the circumstances of time, place, and persons present, we find it now proper to say tli at it is not always necessary to make such relation to the witness. If such a question be asked without reference to such circumstances, the question is proper. If, in answer to a question so put, he deny that he has made any inconsistent state^ ments, or say that he does not remember, that ends the matter; and he cannot be impeached by production of evidence that he has done so> for the reason that a proper foundation for such impeaching evidence has not been laid. (Section 3380, Code of Civil Procedure.) Before such evidence may be introduced to contradict him, common justice and ordinary fairness demand that he have his memory aided by such relation of such circumstances, and. that he be allowed to tell and explain exactly what he did say, if he said any thing- apparently or at all inconsistent at other times. If counsel intend to go further, and to bring in evidence of such inconsistent statements, if the witness deny them or say he does not remember, then, and only then, is it necessary to lay such a foundation. These remarks, of course,, are not intended to apply to admissions or declarations of a party as evidence against such party.

The other point relied upon by counsel is that the court erred in giving the following instruction, to-wit: “The court instructs the jury that the fact that the defendant testified in an insolvency proceeding in obedience to a citation did not deprive him of his right to refuse to answer questions tending to criminate him, if he did answer any such questions; and an admission made by him in such proceeding is voluntary and competent evidence in a criminal prosecution subsequently inaugurated, where he ovas not in custody or charged with a criminal offense when he made such admission, if he did make' any such.” This instruction is objected to for two reasons: First, that if it be correct in law, it would be erroneous to give it, for that it is a charge upon the effect and weight of the evidence; and, second, that it is incorrect as a statement of the law, for the reason that the Act of Congress to establish a uniform system of bankruptcy, approved July 1, 1898, provides, among other’ things, that “no testimony given by him [the bankrupt] shall be offered in evidence against him in any criminal proceeding.” It appears from an examination of the record that the defendant had been examined in his own bankruptcy proceedings before the referee in bankruptcy, and that during the course of his examination he made certain statements, which it is alleged were admissions conflicting with his testimony in chief in the criminal case before us. We do not consider that the instruction is open to objection as being a charge upon the weight of the evidence. The question Avas squarely before the court as to Avhether or not admissions made by him in the bankruptcy proceedings could be used in cross-examination of the defendant in the criminal case. If an instruction upon admissions made by the defendant is one Avherein the court iirvades the province of the jury in Aveighing eA’idenee, then no instruction upon the question of admissions could ever be gWen to a jury. The only authority cifed as in support of this contention is State v. Schnepel, 23 Mont. 523, 59 Pac. 927, Avliich we do not consider at all in point. That Avas a case in Avhich the court held that an instruction calling special attention to' the defendant’s Avitnesses, and giving special direction as to Iioav their evidence should be weighed, is properly refused, as invading the province of the jury. This is a case wherein the question arose whether alleged admissions made by the defendant in the bankruptcy proceedings, and made Avithout any refusal to testify, Avere voluntary or involuntary, and Avhether or not they could be inquired about on cross-examination of the defendant in criminal proceedings subsequently commenced; in other Avords, the court Avas passing upon the effect of the Bankruptcy Act in respect of the portion thereof heretofore quoted. A lengthy discussion of this point is not at all necessary. The familiar provision of the Constitution of the United States (Article Y of the Amendments) that “no person shall be compelled in a criminal case to be a witness against himself” is the one invoked by the defendant. He was not compelled to testify in the criminal case. He made no objection to the questions asked on cross-examination as to the alleged admissions. The position of the defendant in this case is that the Bankruptcy Act grants the bankrupt immunity from prosecution because of anything testified to by him in the bankruptcy proceedings. This is not so, as was held in the case of Counselman v. Hitchcock, 142 U. S. 547, 12 Sup. Ct. 195, 35 L. Ed. 1110, wherein, considering the Interstate Commerce Act, the court held that a witness is protected by the constitutional provision from being compelled to disclose the circumstances of his offense, or the sources from which or the means by which evidence of its commission or of his connection with it may be obtained or made effectual for his conviction; and that legislation cannot abridge a constitutional privilege, and cannot replace or supply one, at least unless it is so broad as to have the same extent in scope and effect, and that no statute which leaves the party or witness subject to prosecution after he answers the criminating question put to him can have the effect of supplanting the privilege conferred by the Constitution of the United States. The provision in the Bankruptcy Act that no testimony given by the bankrupt shall be. offered in evidence against him in any criminal proceeding does not prevent sufficient incriminating information and evidence from being obtained from sources other than the bankrupt, the knowledge of such sources having been obtained from his testimony. The bankrupt, before the referee, had the constitutional right to refuse to testify as to matters tending to incriminate him. He did not do so. He waived his privilege, and any admissions made by him in such proceeding before the referee could properly be made a matter of cross-examination, if pertinent, in a criminal proceeding. Besides, as we have said above, the record shows that no objection was offered by the defendant to such cross-examination in the district court. If the Bankruptcy Act were operative to protect him from disclosing anything in the criminal case, — which we do not believe, as we have stated,— he should have objected to the cross-examination touching such testimony before the referee. He did not do this. If he had any privilege when upon the stand in his own behalf in the criminal case, he waived it by not refusing to1 answer.

There is no question before us for decision as to whether, if the Bankruptcy Act contained a provision exempting a bankrupt from prosecution for crimes appearing from testimony in any proceedings before a referee in bankruptcy, such provision would exempt him from prosecution for such crimes in a state court, or from being examined in a state court as to matters pertinent to. such proceedings, and disclosed by him in the same; and we do not find it necessary to treat of or consider such a question in this case.

The assignments of error relied upon are not tenable. The judgment and the order denying the motion for a new trial are affirmed.

Affirmed.