text:
    WORTMAN, Respondent, v. MONTANA CENTRAL RAILWAY CO., Appellant.
    [No. 1,000.]
    [Submitted January 20, 1899.
    Decided March 13, 1899.]
    Contracts— Construction — Sight to Terminate — Performance Within Specified Time— Waiver — Provisions Ousting Jurisdiction— Validity — Pleading— Variance.

      l. A contract for replacing the wooden walls and arches of a railway tunnel with others authorized the railroad company to stop any of the work, or to diminish the force employed by the contractor, should it be necessary to do so, and required the contractor to stop the work or diminish his force as the railway company’s engineer directed. The work was to he prosecuted at such times and at such points as the engineer should direct. Cars for handling the material were to be furnished by the railroad company. Failure of the contractor to comply with the contract was to authorize a cancellation thereof by the company, and if, in the opinion of the company’s engineer, the contractor neglected to prosecute the work as fast as required to complete it within the specified time, the company had the right to terminate it, or to employ other parties to complete it; charging the cost thereof to the contractor and deducting it out of the moneys due him. Held, that the railroad company had no right to temporarily stop the whole work to be resumed later on.
    2. The railroad company did not have the right to arbitrarily cancel the contract without cause, regardless of the rights of the contractor.
    3. Under Civil Code 1895, Sec. 2245, providing that provisions of contracts by which controversies thereunder are to be arbitrated without 'the right of appeal to the courts shall be void, a provision of a contract by which the construction to be placed on it by the agent of one of the parties should be final, without the right of appeal to the courts, is void.
    4. A provision, in a contract to replace the abutting walls and arches of a railway tunnel with others, that the engineer of the railroad company shall be the judge as to whether the work has been done according to the specifications of the contract therefor, is valid.
    5. A building contract was alleged to have been breached by temporarily stopping the contractor from proceeding with the work, and wrongfully refusing to permit him to resume. The evidence was that after the time for its completion the contractor had notified the company he should quit, unless he was paid installments due. A letter to the company stated that he had shut down work because the company refused to make the payments stipulated. The company wrote the contractor to continue work as per certain instructions, and then stop all work until further notice; and the answer was that the contractor would obey instructions, reserving his rights. In. another letter the contractor stated that he should proceed with the work as ordered, and then stop, unless ordered otherwise; that the company’s action was a hardship, the cause of the company’s action being his stopping work for one day only, but that, should the company terminate the contract, and pay him the balance due, and allow him a fair valuation for the working plant, he would have nothing further to claim. The company answered to stop work as soon as completed, according to previous letters. Another letter of the contractor stated that the company’s order to quit bankrupted him; that he desired to continue the work in some other way, if not under the contract. The company answered that when work was resumed on the tunnel, the company might be able to arrange with him for doing the work, but that he should distinctly understand that no promises were made him as to when work would be resumed, or, if resumed, who would do it. Held, that the evidence showed a cancellation of the contract by the company for failure of the contractor to complete it within the specified time, and hence there was a fatal variance, even if the cancellation was wrongful.
    6. The correspondence between the parties did not amount to an independent agreement to stop work temporarily.
    7. A contract for walling and arching a tunnel was to be completed within a specified time, and payments for the work were to be made in installments. If slides occurred in the tunnel during the progress of the work, the contractor was to remove them for a specified compensation. Such slides having occurred, the contractor refused to remove them, claiming that they were not within the terms of the contract; and the railroad company assented, and made an independent agreement with him for their removal, agreeing to pay him a specified compensation. Held, that the railroad company’s failure to pay him the amount due under the independent contract for their removal was not a breach by the railroad company of the contract to wall and arch the tunnel.

      8 In an action for the breach of a contract to wall and arch a railway tunnel, which authorized a cancellation by the company if, in the opinion of its engineer, the work was not properly done, or not done fast enough to complete it within the required time, the complaint alleged that the breach was by the company’s engineer temporarily stopping the contractor from working, and then wrongfully refusing to permit liim to resume.- The defense was that the engineer .had permanently stopped the work, as under the contract he was authorized to do. The court charged that the burden was on the railway company lo show that, in the opinion of its engineer, the contractor was either refusing, or was not prosecuting the work with reasonable diligence, and that the jury must.find for the contractor, unless they found that the engineer had formed such opinion, and communicated it to the railway company, and that, though he formed it, the company could not take advantage thereof, unless it was communicated to the company. Held, that, in the absence of proof on the subject-matter of the instruction, it was erroneous, as authorizing the jury to infer that the railway company, having failed to establish that it had canceled the contract only after its engineer had formed such opinion and communicated it, had violated the contract.
    S. Such charge was erroneous as ignoring the fact that, by claiming that the termination of the contract by the engineer was authorized, the defendant had ratified his acts.
    10. The presumption is that a provision of a contract requiring it to be completed within a specified time is waived by the owner permitting the contractor to'proceed with the work after the expiration of the time for its completion.

      Appeal from District Court, Lewis and Clarke County; LL. JR. Buck, Judge.

    Action by Daniel P. Wortman against the Montana Central Railway Company. Prom a judgment for plaintiff, and' from an order denying a new trial, defendant appeals.
    Reversed.
    Statement of the case by the Justice delivering the opinion.
    Action for damages for breach of contract. The contract out of which the action arose, so far as its stipulations and agreements enter into this controversy, is as follows:
    “First: The party of the second part (plaintiff), in consideration of the covenants and agreements of the party of the first part (defendant), as héreinafter mentioned, promises and agrees to build abutment walls and arch the tunnel on the line of railway of the party of the first part known as Wickes or Boulder tunnel, and that he will execute and finish such work, in every respect, in the most substantial and workmanlike manner, and to the satisfaction and acceptance of the chief engineer of the party of the first part.
    ‘ ‘Second: The party of the second part agrees to commence said work on or before the fifth day of May, 1892, and' to prosecute the same with such help and means as will, in the opinion of the said chief engineer, insure the completion of the work on or before the first day of August, 1893. That he will be subject at all times during the progress of said work to the direction of said chief engineer or assistant engineer of said railway company as to the method of doing the work; and that he will conform to the rules and general specifications hereto annexed, and made a part of this agreement.
    “Third: The party of the second part also agrees not to assign or transfer this contract, or sublet any of said work, without the written consent of the party of the first part, and that he will at all times superintend the work in person. That he will not employ any man, either as overseer or laborer on said work, who shall have been dismissed from any other work for bad workmanship, intemperance, or disorderly conduct; and that he will, whenever directed by said chief engineer or assistant, engineer, dismiss any and every person who is disorderly, intemperate, unfaithful, or unskillful. Said party of the second part also agrees to conform in all respects to the directions of the chief or assistant engineer of the party of the first part relative to said work, and to prosecute the same at such time or times, and in such manner, and at such particular points on the line of said work in said. tunnel, as said chief engineer or assistant engineer shall direct.
    “Fourth: It is further agreed between the parties that should any difference arise as to the construction of this contract or any provisions of it, or relating to the performance of the contract, such matter of difference shall be decided by said chief engineer, and his decision shall be conclusive as to the matter in dispute.
    ‘ ‘Fifth: It is further agreed that if the party of the second part shall, in the opinion of the party of the first part ('such opinion being determined by íhe chief engineer), have failed or shall refuse to comply with any of the provisions of this contract, said first party shall have the right to cancel it, in ' which event said second party shall have no claim whatever on said first party for damages, compensation, or percentage retained by said first party as hereinafter stated, either for material or work, but said first party shall have a right to take possession of and hold said material and work, and shall be absolved from any obligation under this contract, as though it had never been made.
    ‘ ‘Sixth: It is further mutually agreed that if said second party shall at any time neglect or refuse to prosecute the work as fast as, in the opinion of the chief engineer of the party of the first part, may be necessary for thé completion of it by the time specified herein, the first party may declare this contract terminated, and the amount which shall have been retained at the time out of the monthly estimates which have become due up to the time of the termination of said contract shall be forfeited to said first party, or said first party may employ other parties, at its option, to execute and complete its contract, and charge the cost of the same to the said second party, to be deducted out of such retained percentage, or out of any payment that shall have become due on any subsequent estimate. * * *
    “Eighth: Parties further agree that whenever, in the opinion of the party of the first part, it may be necessary to stop any of the work, or to diminish the force employed, said first party shall have the right to do so, — such opinion being determined by said chief engineer, — and the party of the second part shall have no claim for damages, but shall stop the work or diminish the force as the first party may direct. It is further agreed that when any work under this contract shall be done by said second party at the request of said chief or assistant engineer, and for which no price is specified in this contract, said second party shall be entitled to a reasonable price, in the same proportion as the work for which prices are" stipulated herein. * * *”
    Then follow specifications for the details of the work, the materials to be used, the mode of doing the work, car service, safety of employes, the disposition of falling material or slides, movement of trains, dimensions of the tunnel, possible changes in form and material, mode and times of payment, and other matters, none of which are material to consider here, except the following: “* * * In case material falls or slides as aforesaid, party of the first part agrees to allow party of the second part fifty cents per cubic yard for removing the same from the tunnel upon cars and unloading near the portals of the tunnel, except when such material shall be hauled away by the railway company. * * * All claims for compensation for removing the material of slides or falls must be made in writing within thirty days after removal of the same. * * *
    “Party of the first part agrees that it will furnish motive power and a sufficient number of flat cars for handling material in the prosecution of the work, and that it will at its own expense construct necessary side tracks and switches from its main line near the tunnel to enable it to handle cars and trains and such material in a reasonable and proper manner, and that it will also construct necessary side tracks from its main line at points where party of the second part desires to quarry and obtain rock to be used in filling in, or in the prosecution of the work. * * *
    “It is further agreed that estimates may be made from month to month of the work done, and when made, and reported to the party of the first part by said chief engineer, party of the first part agrees to pay party of the second part ninety per cent, of such estimate, in cash, on or about the twenty-fifth day of the month, for all work done and covered by said estimate during the previous month. ’ ’
    The complaint alleges that the plaintiff entered upon the performance of the work provided for in this contract, and continued therein, in accordance with the terms and provisions thereof, and in obedience to the directions of the representatives of the defendant, as in said contract provided; that he kept and performed all the conditions thereof on his part until the breach committed by defendant, in its refusal to allow him to proceed; that in the month of October, 1893, the defendant, through its chief engineer, claiming to act under paragraph 8 of the contract, directed the plaintiff to stop work temporarily, and that in obedience to such direction he did stop the work temporarily; that the defendant has failed and refused ever since to allow him to proceed with the work under the contract and complete it; that by the refusal to allow him to proceed with the work the- defendant has violated the contract; that time is not of the essence of the contract; that plaintiff continued to work under the contract, under the direction of the defendant, long after August 1, 1893, — the defendant, with full knowledge of this fact, accepting the work as it progressed, and making payments thereon, in accordance with the conditions of the contract; -and that, if he had been allowed to complete the work under the contract, he would have realized thereon a profit of $40,000. Judgment is demanded for this sum.
    The answer of defendant denies all these allegations in the complaint, except that it notified plaintiff to stop work in October, 1893. This is admitted, but the defendant denies that it gave such notice under the provisions of the eighth paragraph of the contract. The answer then proceeds to allege various matters affirmatively, to wit: That the contract provides, in terms, that the defendant should have the option to stop the work at any time it saw fit or desired to do so, and that it elected, under the terms of the contract, to stop work and cancel the contract in October, 1893; that plaintiff would not be entitled to any damages in case this was done; and that, therefore, he should not be heard to claim any damages by reason of the stopping of the work.
    The answer further alleges that the plaintiff did not perform the work as provided for in the contract, and as directed by the representatives of the company; that he did not conduct the work with reasonable diligence, or with force of men and means sufficient to complete the work by August 1, 1893; that plaintiff on many occasions during the time he was engaged in the work, and down to the time he was stopped by the defendant, voluntarily, for his own purposes, and without the consent of the defendant, stopped work, and for this reason, by his own fault, failed to complete the contract by August 1, 1893; that he was repeatedly notified by the chief engineer of defendant that the work must be completed by the time fixed in the contract; that the said engineer repeatedly notified plaintiff to increase the number of men and the means employed to finish the work by that time, but that plaintiff, though promising to comply, failed and refused to do so; that the defendant at the time the contract was entered into was engaged in operating its line of railway as a common carrier; that the work to be done by plaintiff would naturally interfere with this business, and that the material inducement to enter into the contract was the undertaking on plaintiff’s part to speedily finish the tunnel, all of which was known to plaintiff; that the principal part of the work to be done by plaintiff was to remove the lining of wood then in the tunnel, and replace the same with one of brick or stone; that the wooden timbering in the tunnel was weakened by decay and other causes; that, because the plaintiff failed to complete the work under the contract, a large part of the tunnel was left in a dangerous state, owing to the probable giving away of the timbering, and the falling or sliding of earth and rock, and the consequent obstruction of defendant’s business and its duties to the public; that on August 1, 1893, owing to this unsafe condition of the timbering in the parts of the tunnel left incomplete, the defendant could not stop the work and leave these parts unfinished without violating its duties to the public; that defendant permitted the plaintiff to continue work aftei this for the sole purpose of putting the tunnel in a safe condition, and for no other reason; and that no other work was done under the contract after August 1, 1893, except for this purpose. It further alleges that the plaintiff notified the defendant, in writing, in October, 1893, that he would not be able to proceed with the work until some future day, and thereupon ceasgd work; that then defendant terminated the contract, with the acquiescence of the plaintiff, through the chief engineer of defendant, whose opinion was that the plaintiff had not prosecuted, and was not at that time prosecuting, the work in accordance with the terms of the contract. It further alleges that, at the time notice was given the plaintiff to cease work, notice was also given to the plaintiff that he would not be permitted to do any more work under the contract; that it was at that time the opinion of the chief engineer of the company that the company had a right to discontinue the contract; and that the plaintiff thereupon presented to the defendant his excuses for failing to keep the contract according to its terms, and asked that he might be permitted to continue, but that defendant refused, and the plaintiff thereupon consented to the termination of the contract.

      VOL. XXII — 18

      A trial, was had by a jury, which resulted in a verdict for plaintiff for $15,500. Judgment was entered thereon. From this judgment, and' from an order overruling its motion for a new trial, defendant appeals.

      A. J. Shores, for Appellant.
    Citing: Martinsburg da P. R. Go. v. March, 5 Sup. Ct. Rep. 1035; Sweeney v. United States, 109 IT. S. 618; Fihlberg v. United States, 97 U. S. 398; Ogden v. United States, 68 Fed. 725; Lewis v. Chicago S. F. da G. Ry. Go., 49 Fed. 708; Lcmgdon v. Northfield, 42 Minn. 464; Denver da N. O. G. Go. v. Stout, 5 Pac. 627; Williams v. Chicago S. F. da G. Ry. Go., 20 S. W. 637; O'Donnell v. Forrest (La.) 11 So., p. 245; Bowman v. Stewart (Pa.) 30 Atl. 988; Pres. Etc. D. da H. Canal Go. v. Pennsylvania Goal Go., 50 N. Y. 258; Hudson et al. v. McCartney, 33 Wis. 340; Mon. Go. v. Fenton, 4 Watts & Sarg. 205; Lanman v.. Young, 31 Pa. St. 306; Grantor. Savannah Ry. Go., 51 Ga. 348; Gray v. Gen. Ry. Go., 11 Hun. 70; Snell v. Brown, 71111. 133; Territory v. Owens, 3 Mont. 139; Felly v. Gable Go., 7 Mont. 77; Heilbronner v. Lloyd, 42 Pac. 855; Territory v. Hart, 7 Mont. 502; Nixon v. Gutting F. Go., 42 Pac. 108; G. B. d> Q. Ry. v. Anderson (Neb.) 56 N. W. 794; Carson v. Stevens (Neb.) 58 N. W. 845; Goodell y.B. G. L. Co. (Ark.) 21 S. W. 104; McEUey v. C. d O. Ry. (W. Va.) 14 S. E. 261; Lmhoffv. G. & M. Ry., 20 Wis. 365.

      McConnell, Clayberg & Gunn, for Respondent.
    Citing: Utter v. Ins. Go., 65 Mich. 545; Friends v. For-

      singer, 25 N. E. 129; Cooley on Const. Lim., p. 443; note to 8 Am. St. Eep. 921, 922 and 923; Pearl v. Harris, 124 Mass. 390; Randall v.‘ American Insurance Company, 10 Mont. 353; Reed v. Washington Insurance Company, 138 Mass. 535; German Insurance Company, v. Etherton, 41 N. W. 406; Baeur x. Samson Lodge, 1 N. E. 575; Home Insurance Company v. Morse, 20 Wall. 445; Doyle v. Continental Insurance Company, 94 IT. S. 535; Barron v. Burnside, 121 U. S. 186; Hancock v. Yoden, 23 N. E. 253; Sutherland on Stat. Constr., Sections 428, 476; People x. Langtree, 64 Cal. 256-259; Baltimore By. Co. v. Scholes, 56 Am. St. Eep. 312; Dunn v. Stenburg, 24 N. E. 315; Davis x. Robert, 18 Am. St. Eep. 126; Hennessy x. Bacon, 137 U. S. 178; Robin son x. Lake Shore, Etc., R. Co., 61 N. W. 1014.
   BRANTLY, C. J.

The cause of action stated in the complaint is the temporary suspension of the work by defendant, which it is conceded it had a right to do, its failure to permit plaintiff to resume after the lapse of a reasonable time, and the damage accruing to plaintiff for the wrong thus done. The denials in the answer put in issue these allegations. The answer alleges that the work was stopped by defendant under its option reserved in the contract, to terminate it at any time, and also that the contract was terminated because, in the opinion of the chief engineer, the terms of it had not been observed by the plaintiff. A brief examination of the contract will materially aid us in the investigation of the record, and this we proceed to do before taking up the questions presented for review.

The first and second paragraphs provide for the quality of workmanship to be employed, the time within which the enterprise was to be completed, and the arbitrator to judge both of the quality of the workmanship, and the method and means for its accomplishment.

The third paragraph, after an agreement by plaintiff not to assign the contract or sublet any of the work, and to employ men satisfactory to the chief engineer, then provides that the work must be prosecuted at suck time or times, and at suck points, as this arbitrator or referee might direct.

The fifth and sixth paragraphs contain special provisions touching the right of the defendant to stop all work under the contract, and its rights in case this should be done. The former has reference generally to all the conditions of the contract; the latter emphasizes the element of time. The right to terminate the contract entirely for failure of performance of any one of its material stipulations is to be found only in these two provisions, unless it be in paragraph é, to which reference will be made hereafter. It is clear, also, from an examination of them in the light of the other provisions, that it was the intention of both parties at the time of signing the instrument that the work should be prosecuted continuously to completion, and that it should be completed within the time fixed in the contract. While the chief engineer is named as the arbitrator whose judgment should determine that an exigency had arisen justifying the termination of the contract, yet it is clearly implied that this judgment should be exercised in good faith. There is nothing more in either one of these paragraphs than would be implied in any contract, — so far as concerns the right in either party to terminate it when the other failed or' refused to comply with its provisions, exc'ept that, as to the matter of time, the engineer could, upon reaching the conclusion that the work was not getting forward fast enough, order an increase of force, and cancel the contract for disobedience. The reservation of the right to cancel in the fifth paragraph clearly has reference to the stipulations of the second paragraph as to means and help, and the period within which performance must be accomplished, while the sixth has reference to the performance of the terms and conditions of the contract generally.

The seventh and ninth paragraphs have been omitted from this discussion, because their provisions are not in controversy here.

The eighth paragraph is the one upon which this action is predicated. Upon his interpretation of the expressions, “stop any work or diminish the force employed,” and “shall stop the work or diminish the force,” the plaintiff reaches the •conclusion that the defendant had the right to stop the whole enterprise temporarily, to be resumed after a reasonable time under more favorable auspices. Now, while it is competent for parties to incorporate in their contract a stipulation that the enterprise may be stopped temporarily, or even abandoned •entirely at the option of either, and while they may stipulate, independently of the contract, for temporary or permanent abandonment of the work during its progress, we do not think this paragraph susceptible of the interpretation given to it by the plaintiff. The reservation is not the right to stop the work or discharge the force, but ‘ ‘to stop any of the work or diminish the force.” Though the words “stop the work” are used in the latter part of the paragraph, yet they have reference, clearly, to the same thing with reference to which the necessity might arise, viz, ‘ ‘to stop any [that is, some] of the work or diminish the force. ’ ’ This becomes clear when reference is made to the latter part of paragraph 3, wherein it is provided that thé work shall be prosecuted “at such time or times, and in such manner, and at such particular points on the line of said work,” as the engineer shall direct; bearing in mind, meanwhile, the fact that both parties intended that the enterprise should be prosecuted to completion, and that the tunnel was to be used during the progress of the work. It is to be remembered, also, that the defendant was to furnish car service for plaintiff to enable him to handle his materials. This was to be without expense to plaintiff. Safety in the handling of cars was a matter of prime importance. The business of the company must proceed. Therefore paragraph 8 must have been inserted for the purpose of enabling the defendant company to control the amount of such service, and, to a reasonable extent, the number of men employed, as well as the distribution of the various bodies of the force along the line of the tunnel; otherwise, the contractor could demand so much car service, and so fill up the tunnel by his forces and appliances, as to greatly impede the usual operations of the company to the inconvenience of its patrons.

Turning now to paragraph 4, we find that the engineer is made the final judge of two things, — the construction to be put upon the contract, and the fact of performance by the plaintiff. Differences of opinion between the parties as to both these particulars are to be determined by him, and from this determination there shall be no appeal. It is now the well-settled doctrine, by the great weight of authority, that parties cannot stipulate beforehand to submit their rights generally to the judgment of a designated third person for final determination. The effect of such a stipulation is to oust the courts of their jurisdiction, and to restrict the parties from enforcing their rights under the contract by the usual legal proceedings in the ordinary tribunals. There is some conflict of authority upon this subject in the reported cases, but we do not think the question open to discussion in this state. ‘ ‘The question as to how far courts Will be governed by a provision in the contract requiring that controversies arising as to. the rights and liabilities of parties thereunder be submitted to arbitration has engaged the profound consideration of both American and English courts of last resort. The conclusion reached, and probably settled beyond further controversy, is that a provision in a contract requiring all differences or controversies arising between the parties as to their rights and liabilities thereunder to be submitted to arbitration will not be allowed to interfere with or bar the litigation of such controversies when brought into court. ’ ’ (Randall v. American Insurance Co., 10 Mont. 340, 25 Pac. 953.) The principle stated in this passage has since been enacted in the Civil Code of 1895, and may be found in Section 2245. This section of the Civil Code we hold to be a statement in the form of a. statutory enactment of the common law as it existed in this state prior to the adoption of the Codes in 1895. For other authorities supporting this principle, see Utter v. Travelers Insurance Co., 65 Mich. 545; Reed v. Washington Insurance Co., 138 Mass. 572; Noyes v. Marsh, 123 Mass. 286; German-American Insurance Co. v. Etherton, (Neb.) 41 N. W. 406; Bauer v. Sampson Lodge No. 32, K. of P., (Ind. Sup.) 1 N. E. 571; Insurance Co. v. Morse, 20 Wall. 445; Pres. etc. D. & H. Canal Co. v. Penn. Coal Co., 50 N. Y. 218; Hancock v. Yaden, (Ind. Sup.) 23 N. E. 253; Barron v. Burnside, 121 U. S. 186, 7 Sup. Ct. 931; Supreme Council Order Chosen Friends v. Forsinger, (Ind. Sup.) 25 N. E. 129; Bac. Ben. Soc. Sec. 450; and B. &. O. & C. Railway Co. v. Scholes, (Ind. App.) 43 N. E. 156, 56 Am. St. Rep. 312. This paragraph of the contract is therefore void in so far as it seeks to bind plaintiff to submit without appeal to the construction given by the agent of the company, but valid in so far as it stipulates that the engineer shall be the judge as to whether the specifications of the contract have been complied with by the plaintiff, provided always that this judgment should be exercised honestly and in good faith.

There is much contention in the briefs of counsel touching °the validity of this section, but the other stipulations are in this Court assumed to be valid, and we think this assumption correct. We do not find in the contract any ground for the assumption by defendant that it had any option reserved to abandon the enterprise at any time, without reference to the rights of plaintiff. It did not belong to the umpire to construe the contract, and, in the absence of a strained construction, we cannot find this option.

At the close of plaintiff’s proof, defendant moved for anon-suit upon the ground that the proof did not support the allegation of the plaintiff’s complaint that the defendant stopped the work temporarily, and wrongfully refused to resume it again. This motion was denied. We think this was error. The proof offered by plaintiff did not tend in any way to support the breach of the contract alleged in the complaint. It failed to show that the defendant intended to suspend the work temporarily, and resume it again after a reasonable time. It tended to show the contrary. It tended to show, and did show, that at the time the work was stopped the defendant intended to stop it permanently, and that the plaintiff so understood it, or should have so understood it. The evidence upon this subject is embraced in a series of letters and telegrams between plaintiff and N. D. Miller, chief engineer of defendant, bearing date from September 28, 1893, until about the end of the year. . The material parts of this correspondence follow:

Telegram from Wortman to Miller, September 28th: “If you cannot send money due, I shall quit work on tunnel tomorrow night at company’s risk. ’ ’

Letter from Wortman to Miller, October 4th: “I have shut down work on tunnel No. 6, and cannot proceed, for following reasons: You will see from inclosed statement that there is due me about $36,390. My plant at tunnel and quarry is about $27,000, making my resources $63,000. The pressure in money matters is such that, while the money due me from the company is good, I am compelled to pay for my supplies and labor! The money received yesterday, $2,590.-15, will be applied to time checks, leaving nothing for supplies. I owe on account of tunnel work that the company might have to pay about $17,000. What 1 ask you to do is to forward forthwith my August estimate, and pay for May and June slides, so I can pay for supplies and tunnel work. If you cannot do this, I can go no further with the work until the money comes. ” . •

Telegram from Miller to Wortman, October 10th: “Letter of instructions was sent you at Helena on the 5th. Please get it there. ’ ’

Same from Miller to Wortman, October 12th: “Please do work at tunnel as per my letter to you and J. C. Patterson of the 5th, and then stop all work until further notice. ’ ’

Same from Wortman to Miller, October 9th: “Have not received your letter of the 5th or any other letter regarding work at tunnel 6. I shall obey your instructions regarding this work if I can. Please wire at Portal.”

Same from Wortman to Miller, October 12th: “Will work as per instructions to J. C! Patterson and myself of 5th, reserving my rights in the matter.”

Letter from Wortman to Miller, October 11th: “Your letter of October 5th I found in Helena last night when I came home from quarry. As I have written you, I shall proceed with work as you have ordered, and then stop the work, unless you order otherwise. This action on your part will work a hardship on me that I cannot recover from. The cause for your action, as per your letter, is stopping the work the last time for one day. On that day I distributed stone at bridges for culverts; the one time only before, the tunnel engine needed repairs, and was out to Helena for that purpose. ’ ’ Alter recounting his efforts to do the work to the satisfaction of E. R. McNeill, the assistant engineer of defendant, the unexpected outlays made by plaintiff, and other matters, the letter then proceeds: “However, should you deem it just,and right to terminate the contract, and pay me moneys that may be due, and the 10 per cent, retention, and allow me a fair valuation for my plant at tunnel and my quarries, I suppose I ean have nothing further to claim. * * * Hoping you will reconsider your last decision, and allow me to proceed with this tunnel work, I await your reply to this letter.”

Letter from Miller to Wortman, October 14th: “In answer to your letter of the 11th, would say that this company cannot at the present time stand the additional expense that it is put to on account of your not completing your contract on time, as it costs this company over $60 per day for every day that you are working at the tunnel, and as it would probably take you about a year more than your contract time to complete the work, thus putting this company to an additional expense of about $25,000 or more, and at the present time we do not feel that we could incur this additional expense. * -A? ■<£

“But the main question now is about the stoppage of the work. The company does not feel that they should go on with this increased expense at the present time, and you will please stop work as soon as you have it all completed, according to my previous letters. ’ ’

Letter from Wortman to Miller, October —: “I shall probably finish work at tunnel 6 about the 20th of this month, as per your letter of instructions.

“I desire respectfully to call your attention to some facts in regard to this work, to show you that I have diligently prosecuted this work to the exclusion of everything else. I have invested all I had, borrowed all I could,- — about twenty-seven thousand dollars, ■ — in good faith, believing I should finish the work, enabling me'to pay for plants-I bought on account of this work. But your order to quit makes it impossible for me to pay my debts, and leaves me a pauper. As I told you in St. Paul, this is bitter medicine. I shall take it as best I can, but desire to ask you if this is right treatment, as between your company and myself. * * *

“If your company, through you, its chief engineer, shall terminate the contract, and by its action pauperize me, I suppose I shall have to suffer it, but shall do so knowing that I have honestly, industriously and continuously prosecuted this work at all times under the immediate supervision of E. R. McNeill, engineer in charge. I desire, if it is possible for you to do so, to continue this work, if not under the present contract, some other way, or employ me in some way so I can at least pay the debts incurred by me for this work, or fix a time in the near future that I may proceed with work. I hope you will pardon me for writing so long a letter. Please answer as may seem best to you for all parties. ’ ’

Letter from Miller to Wortman, November 24th: “I received a letter from you a few days ago, without date; and, from the tone of the letter, it would seem that you think you have not been treated fairly in respect to your work at tunnel 6. I do not think that you have any just cause for complaint in relation to this work, as far as I am concerned, as you will recollect, when the work was first turned over to me, I wrote you, urging you to put on more men, and complete the work on contract time. I think you could have very nearly done this, .if you had tried. You say in your letter that Mr. Beckler wanted good material and labor. This was especially provided for in the contract, and I do not think the labor or material is anything better than provided for in the contract.

“In relation to buying the contractor’s outfit, of course that is something that the company had nothing to do with, and you were supposed to know more about it than they were at the time you bought it. The same in relation to the quarry. * * *

‘ Tf anything should come up whereby the work is allowed to go on, I shall be glad to communicate with you in relation to the same. ’ ’

Letter from Miller to Workman, December 31st: “In relation to the completion of the lining of the Wickes tunnel, or tunnel No. 6, or any further work in relation to the said lining, would say I cannot make any promises at the present time as to when work will be resumed again, or upon what terms. I think, however, that when work is resumed we shall be able to make an agreement with you to do the work; but I would suggest that you put your tools at the quarry and at the tunnel in good shape where they are. We may possibly commence work again next summer; but I wish you to distinctly understand that I make no promises as to when the work will be commenced, or who will do it when it is commenced.

“The railway company does not wish to purchase any cement or brick at the present time, but, however, I wish you would write me what you can sell same for at Helena or Butte. ’ ’

Letter from Wortmán to Miller, January 9th: “Replying to your letter of December 31st, will say that I shall act on your suggestion, and put tools and appliances for getting out rock and tunnel lining in good shape where they are, and hold myself in readiness to resume work on tunnel No. 6, or to do any other work you may desire in the future. I hope you can put me to work soon. There is no sale for brick at present, and Louisville cement is not used here, that I know of. Cement is stored in a good house at tunnel, and will be kept dry. Sixty thousand brick I unloaded at tunnel; two cars are in yard at Helena. Brick and cement can be used in culverts when they are finished. As my two sons and myself will have to be at tunnel and quarry more or less this winter, will you kindly direct passes, issued for Daniel P. Wortman, Great Falls to Anaconda; George Wortman, Great Falls to Anaconda; and William Wortman, Helena to Basin.”

In addition to these communications, there were several others introduced, bearing date from January 1, 1895, to April-5, 1895, containing inquiries from Wortman as to when work would be resumed at the tunnel, and propositions to do other work in case there was no intention on the part of defendant to complete the tunnel. This correspondence also shows that the defendant, through its chief engineer, notified plaintiff on March 18, 1895, that he could resume work long-enough to complete 500 feet more of the tunnel, but that re-, spondent refused to begin, except under a different contract, claiming that the defendant had violated the original contract. He was subsequently informed by the chief engineer that he had given this notice through a misconception of the facts, because upon an examination of all the correspondence of the year before, he found that the original contract had been canceled. This engineer wak the successor to Miller, the engineer in charge at the time the contract was made.

This is all the proof on the subject of the stoppage of the woik at the tunnel, except that plaintiff says he knew the contents of the letter of October 5th, referred to in the foregoing correspondence, and that the correspondence after that date had reference to the orders contained in it. This letter was not introduced in evidence, because plaintiff denied, when it was offered, that he had ever seen it. It is fair to infer from an examination of the communications which passed between the parties after October 4th that the plaintiff was, in the letter of the 5 th, notified that his contract was terminated, and that he so understood it. It is also clear that the reason alleged on the part of defendant was that plaintiff had failed to finish the work by the time named in the contract. If any conclusion is to be gathered from this correspondence, this must be the correct one, else the plaintiff would not have used the expressions he does in these letters as to the hardship resulting to him from a cancellation of the contract after he was in such good shape to complete it. Neither would he have made an effort to sell his supplies and his machinery and quarry. If any doubt was left in his mind at all as to the intention of the company, surely this was set at rest, or should have been, by the language of the chief engineer in the letter of December 31, 1893, where he says: “We may possibly commence work again next summer; but I wish you to distinctly understand that I make no promises as to when the work will be commenced, or who will do it when it is commenced. ’ ’ To the same effect is the last paragraph of the letter written by Miller to plaintiff on October lith. The use of the expressions, “until further notice,” and “at the present time, ’ ’ frequently occurring in the correspondence, cannot, in the face of the other facts and statements appearing therein, be construed to mean that the defendant was attempting to stop the work temporarily, under any clause of the contract; for we have seen that the contract contains no provision empowering it to do so. Nor can they, with the other statements in the correspondence, be interpreted as a stipulation, independently of the contract, to stop the work temporarily. This correspondence, together with the other evidence of .the plaintiff, all of which we have examined with the greatest care, tends to show, if anything at all, that the defendant wrongfully canceled the contract, and thereby damaged plaintiff,— an entirely different cause of action from that alleged in the complaint. The motion for nonsuit properly presented the question, and it was incumbent upon the court to interpret this evidence. This was the office of the court in any event, for it was a matter of intention of the parties as expressed in these writings, and this intention was for the court, and not for the jury, to determine; and it seems to us that it is impossible to reach any other conclusion than the one we have reached.

Nor does the proof introduced on the part of defendant aid the plaintiff’s case. An issue is made in the pleadings upon the plaintiff’s cause of action, and the defendant maintained its position there assumed throughout. It maintains its position in this Court. Nor can it be contended successfully that the variance is an immaterial one. The plaintiff is seeking to recover on a cause of action accruing from an alleged wrong for an act of defendant long after October 5, 1893, while his proof tends to establish another breach of the contract for another wrongful act at that time. If the question had not been raised during the trial in the lower court, we should hold that the defendant could not now complain, but it preserved its rights, and we do not feel that we can properly ignore the question as presented here, and treat the case as if the pleadings had been properly amended at the trial so as to cure the substantial variance. This is not a new question in this Court. (Childs v. Ptomey, 17 Mont. 502, 43 Pac. 714; Newell v. Nicholson, 17 Mont. 389, 43 Pac. 180; Maul v. Schultz, 19 Mont. 335, 48 Pac. 626.) In the case of Maul v. Schultz, supra, this Court said: “ELe (plaintiff) cannot be permitted to mend his hold after litigation has begun, change his ground, and upon new aspects of the case shift his position from that taken and relied on before the court. ” Upon another trial of the cause totally different aspects may be presented by the proofs, and the results may be different.

But, apart from this aspect of the case, we do not think the verdict can be sustained. Under the allegations of the answer, the defendant undertook to establish the fact that it canceled the'contract in October, 1893, because-the work was not completed by August 1, 1893, as in the contract provided. The plaintiff, in rebuttal, endeavored to show that his failure in this regard was due to the failure on the part of defendant to pay moneys due from time to time for work done, according to the monthly estimates. Proof was offered to show that slides occurred in the tunnel during the months of May and June, 1893, which had been removed by plaintiff, and that the pay due for this work, amounting to about $1,500, had been withheld for several months, to the great embarrassment and delay of plaintiff. The contract provided for the removal of such slides, but, when- these of May and June occurred, they were of such dimensions that the plaintiff refused to remove them under the contract; claiming that the contract did not cover them, and that such were not contemplated at the time the contract was signed. The defendant finally agreed that they were not covered by the contract, and further agreed to pay for their removal independently of the contract, and at a better price per yard. This proof was admitted over the objection of defendant. This was error. The failure to pay this sum under the provision of the contract (that is, on or before the 25th of the month following the one in which the work was done) was in no sense of the word a violation of the contract on the part of defendant under the issues as made up by the pleadings; it had nothing more to do with the fulfillment of the contract by defendant than the failure of any other person to pay plaintiff what was due him. Besides, the proof having already shown that plaintiff refused to construe the contract so as to cover these slides, and that his construction had been conceded by defendant, he should not have been allowed to allege the failure on the part of defendant to pay for them under the contract as a breach of duty in defendant.

The instructions are in material respects erroneous. The plaintiff alleges that the defendant stopped the work temporarily through the chief engineer. The defendant admits that it stopped the work, but says the stoppage was permanent, and not temporary. There is therefore no issue made as to the authority of the engineer to perform the particular act. The issue is as to the nature of this act. The court undertook to instruct the jury fully as to how the engineer should get his authority to stop the work, and the mode in which he should exercise it. For example, the charge of the court in paragraphs 6 and 9 was as follows:

“(6) The burden is upon the defendant to show by a preponderance of the evidence that, in the opinion of the chief engineer, plaintiff either refused to prosecute, or was not prosecuting, the work with reasonable diligence, before you can find that the defendant had the right to terminate said contract' under the terms thereof. Unless you find some fact sufficient to justify your minds that the chief engineer had formed such an opinion, and that he communicated such opinion to the defendant, you must find that no such opinion existed, and that, therefore, defendant had no right to terminate the contract under the terms thereof. ’ ’

“(9) Under the contract the chief engineer was not given the right to terminate the same without an opinion, but only to form an opinion as to whether the plaintiff was.prosecuting the work in accordance with the terms and provisions of the contract. If he formed such an opinion, the defendant could not take advantage thereof until said opinion had been communicated to it. If defendant, after such communication, if there was any, then desired to terminate said contract, the law would require such desire to be expressed to the plaintiff by a notice in accordance with these instructions. ’ ’

These instructions were neither necessary nor proper. Under the allegations in its answer, the defendant assumed responsibility for all the engineer had done in the premises; for it is alleged distinctly that the contract was canceled because the work was not done in time. The only question for the jury to determine in this connection was whether this action of the defendant was justifiable. There was no proof upon the subject to which the latter part of instruction 6 and the whole of instruction 9 refer. They therefore required the jury to embark in a blind speculation as to the mental processes of the engineer, and the course of his communications with his principal; and in this connection they might conclude properly that they should consider the mode of these communications, and the circumstances of time and place in relation to them. They were also left to infer, in the absence of proof, that the defendant, having failed to sustain the burden thus cast upon it, to establish the matters referred to and assumed in these paragraphs to be material, was therefore at fault, and should be held to have violated the contract. These para-, graphs also ignore the fact that the defendant had ratified the action of the engineer. This part of the charge was therefore confusing and misleading in its submission to the jury of matters foreign to the issues.

The jury were also instructed that, if they found from the proof that the defendant permitted the plaintiff to continue work after August 1, 1893, in the same general manner as before that time, without notifying plaintiff that it intended to -insist upon any delays or violations of the contract prior to that date, and cancel the contract because thereof, and without any agreement or understanding on the part of plaintiff that he should do certain work, and then stop, the defendant thereby waived any right to cancel the contract for anything plaintiff may have done or omitted to dó prior to August 1, 1893. This instruction is assigned as error. Under the facts, we think it correct. Defendant certainly had the right to waive any breach of the contract on the part of plaintiff, — the covenant relating to time as well as any other. If he was allowed to continue work under the contract after a brench, or after the date at which the work should have been completed, then the presumption would arise that such breach was waived by defendant, and that it intended that plaintiff should have a reasonable timé after the date fixed in the contract to complete the work.

Many other errors are assigned in th.e record, but the views we have already expressed are sufficient to guide the court below in a retrial of the cause, if the plaintiff desires to amend his pleadings in conformity with the suggestions made herein.

Let the judgment be reversed, and the cause remanded, with directions to grant a new trial.

Reversed and remanded.

Hunt and Pigott, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    PARRIN, Respondent, v. MONTANA CENTRAL RAILWAY CO., Appellant.
    [No. 1,066.]
    [Submitted March 10, 1899.
    Decided March 13, 1899.]

      Railroads — Killing Stock — Measure of Damages — Appeal— Prejudicial Error.

    1. The fact that the owner is a dairyman cannot be considered in assessing damages against a railroad for killing cows, no recovery being sought for loss to the business.
    2. Where it is not shown that an error did not or could not prejudice the party against whom it was committed, the error will be presumed to be injurious.

      Appeal from District Court, Jefferson County; Frank Showers, Judge.

    Action by L. Parrin against the Montana Central Railway Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.
    Reversed.

      A. J. Shores and F. C. Parks, for Appellant.

      J. I. c& M. L. Wines, for Respondent.
   PER CURIAM.

Plaintiff owned nine cows and calves and two mares, which were killed by trains of defendant, and brought this action to recover as damages §995, their alleged value. The complaint states that, at the times when the cattle were killed, plaintiff was engaged in the dairy business, and in raising blooded stock for use and sale, that defendant did not comply with the requirements of Sections 950 and 953 of the Civil Code, and that the cattle were killed by the negligent running of trains, to the damage of plaintiff in the sum mentioned as their value. Defendant, by answer, denied the value to have been in excess of §310, and put in issue every material allegation of the complaint, except that in respect of the corporate character of defendant. Yerdict and judgment in favor of plaintiff. Defendant appeals from the judgment and an order refusing a new trial.

No point is made that the evidence is insufficient to justify the verdict. The sole error assigned is the giving of the following instruction: “Witnesses have testified before you in this case as to the value of the stock alleged to have been killed. While you have a right, and it is proper for you, to consider and weigh all such testimony, yet it is not, standing alone, conclusive upon you touching such value; and you have a right to consider all the facts shown to exist in this case, the business in which plaintiff was engaged, the breed of the stock killed, or of any portion of such stock, whether the original stock was imported or domestic, and from all these facts determine the value of such stock.”

It is contended by defendant that so much of the instruction as advises the jury that they may, in their effort to ascertain the value of the animals, consider the business in which plaintiff was engaged, is prejudicially erroneous; plaintiff, on the contrary, insists that the portion of the instruction in question is merely to the effect that the jury may, in estimating the value, consider the fact that the cows killed were dairy stock, and that, therefore, the instruction is not obnoxious to the objection. Upon the question of value, the evidence on the part of plaintiff tended to show that he was engaged in the business of selling milk given by the cows killed, which were good milch cows, and especially valuable as dairy cows, and that they were worth §995. In defendant’s behalf the evidence was to the effect that the value was less than §600. Whatever the rule may be whereby damages are computed or measured by a standard other than that of reasonable market value in cases where the animals killed had a peculiar value to the owner, or where damage exceeding the market value has been Sustained by the owner, such rule is inapplicable to this case. Although the fact that the cows were dairy stock was relevant as to value, the business of plaintiff was not one of the facts proper to be considered in determining their value. No attempt was made to plead or prove that damage to his business was suffered by reason of the killing; on the contrary, recovery was sought only for the value of the animals, which, under the complaint and evidence, would be the fair or reasonable market value, not their peculiar value to the owner, nor what they were worth to him in his business. Plaintiff was entitled to a verdict for a sum equal to the market value of the cattle, and to no more. The instruction virtually advises the jury to consider the business in which the plaintiff was engaged as an element going to value, and that the worth of the cows was to be determined, not by ascertaining the market value, merely, but by taking into consideration their value to plaintiff in his vocation of dairyman. The market value of the cattle as dairy stock was in no wise affected by the occupation of plaintiff, nor by the fact that plaintiff was engaged in selling milk obtained from them. The instruction was erroneous.

Was it prejudicial? The verdict is. for $710, — at least $110 more than the evidence in behalf of defendant tended to show the value to have been. The jury were distinctly instructed that, in reaching a conclusion as to the value, they might consider the business in which the plaintiff was engaged; and from this, it would seem, the jury necessarily understood that they were warranted in allowing, and indeed should allow, a sum larger than would be compensation were plaintiff not a dairyman. Every error is presumptively injurious; that presumption is rebutted only by establishing that it either did not or could not prejudice the party against whom it was committed. W e are not satisfied that it did not induce the jury to assess the damages at a sum greater than they otherwise would have done. The'jury may have been, and the presumption is that they were, misled by the instruction.

There is no merit in plaintiff’s argument that the formal exception taken to the instruction is insufficient in form "or substance. It is good, under the authority of Woods v. Berry, 7 Mont. 195, 14 Pac. 758, even if Sections 1151 and 1152 of the Code of Civil Procedure were not controlling; for Section 1151 provides, among other things, that the instructions and charge of the court are deemed to have been excepted to, and no bill of exceptions is required, and Section 1152 declares that no particular form of exception is required, but the grounds of the objection shall be particularly stated, excej t as provided in Section 1151.

The only matter for the j'ury was, as defendant concedes, the quantum of damages. The judgment must be reversed, and a new trial awarded; but it will be unnecessary to retry any question other than the one just mentioned.

Let the judgment and order be reversed, and the cause remanded, with directions to the District Court to try and determine the single issue as to the value of the 11 animals killed by defendant.

Reversed and remanded.


author: BRANTLY, C. J.

text:
    STATE, Respondent, v. SLOAN, Appellant.
    [No. 1,344.]
    [Submitted February 20, 1899.
    Decided March 20, 1899.]

      Homicide — Manslaughter— Self-Defense— Jury — Peremrptory Challenges— Evidence — Cha/racter— Threats— Witnesses — Objections — Instructions.

      1. The name of defendant’s wife was indorsed on the information among the names of the witnesses for the State, over his objection that she was incompetent; but on the trial she was excluded from testifying, on a renewal of the objection. Held, that he was not prejudiced by being compelled to object to her competency before the jury.
    2. Under Penal Code, Secs. 2044,2045, 2057, defendant is entitled to ten peremptory challenges, and the State to five, which must be taken as provided by Code of Civil Procedure, Sec. 1059, declaring that, if no peremptory challenges are taken until the panel is full, they must be taken by the parties alternately, commencing with plaintiff. Held, that an accused was properly compelled to exhaust alternately two peremptory challenges to each one taken by the State, where none were taken until the panel was full.
    3. Evidence of a message sent by defendant to deceased the day before the homicide, stating that he did not want any trouble, but that, if deceased wanted any, he could get it, was admissible, together with the attendant circumstances.

      Obiter. — Any declaration which indicates, however vaguely and indefinitely, an intention on the part of the accused to inflict violence upon the deceased, is admissible as a threat.

      4. Tlie jury may consider tlie previous good character of one accused of murder, whether or not they are in doubt whether deceased was the aggressor.
    5. An instruction leaving the jury to determine the degree of homicide according as malice, essential to murder in the first degree, and passion, essential to manslaughter, predominated, is error, since, in law, both these mental conditions could not coexist.
    6. An instruction that, if the killing was prompted by passion, it is manslaughter, is error, because it fails to distinguish between passion and heat of passion necessary to reduce homicide from murder to manslaughter.
    7. Instructions that, before defendant could slay deceased, he must have been in imminent danger of death or great bodily harm, are erroneous, since they ignore the right of defendant, as a reasonable man, to act on appearances.
    8. An instruction that the accused could not kill his assailant until it appeared to him that he was about to commit a felony on him is error, since it limits the right of self-defense to his ability to distinguish between felonies and misdemeanors, whereas he should be guided by reasonable apprehension of death or great bodily harm, regardless of the nature of the assault.
    9. An instruction stated that “‘heat of passion,’as used in defining‘manslaughter,’ means a condition of quick anger or sudden injury engendered by some real or supposed injury suffered at the time, and amounting to a temporary dethronement of reason, which must be sufficient to arouse an irresistible and uncontrollable passion in a reasonable person.” Held, that it was confusing and unintelligible.

      Appeal from District Court, Callatin County; F. K. Armstrong, Judge.

    Roland T. Sloan was convicted of murder in the second degree, and he appeals.
    Reversed.
    Statement of the case by the Justice delivering the opinion.
    The defendant was tried in the District Court of Gallatin County under an information charging him with the murder of one William B. Russell on July 19, 1898. The jury found the defendant guilty of murder in the second degree.
    The facts as shown by the record are the following: The deceased was the father-in-law of defendant. Prior to the date of the homicide there had been differences between defendant and his wife. She had twice left him and gone to the home of her father. Some time after the first separation she had become reconciled to her husband, and returned. Two days before the homicide, in the afternoon of Sunday, the 17 th, these differences were renewed. This seems to have been due in some way to the influence of Fred. Russell (also called Johnnie Russell), a cousin of the wife. The wife again returned to her father’s home, accompanied by Fred. Russell, who was that day at defendant’s home. Defendant furnished his wife and her companion a team to drive to her father’s home, but forbade them to take anything with them from his place. They took the team, and started away. They also took with them a bundle of the wife’s clothes. Defendant tried to make them leave the bundle, but Russell told him he would send him to the hospital if he interfered. Defendant armed himself, pursued them, and compelled them to return to his place and leave the bundle there. They were then allowed to proceed, the defendant following them for some distance on their way. Defendant and the deceased lived near Flathead Pass, in Gallatin county, about 25 miles from Bozeman. On the next day, the 18th, defendant and a companion, Earle Denny, rode into Bozeman for the purpose of get ing some extras for a mowing machine, and a saddle for .Denny. They reached there about 2 o’clock in the afternoon. The deceased, Fred. Russell, and defendant’s wife had also driven into Bozeman, and defendant discovered their presence there during the afternoon. Fred. Russell and defendant met during the afternoon, and had a conversation about the domestic troubles of the latter, and Russell arranged with him to bring about a meeting between defendant and his wife. Russell left defendant professedly for this purpose. Defendant then went to a hardware store, and purchased the revolver with which the homicide was committed. He then repaired to the Northern Pacific Hotel, where his wife was stopping, to obtain the interview with her promised by Russell. He there found Russell, but Russell refused to go with him to see his wife, and thereupon the plan for the interview was abandoned. Defendant had no interview with his wife. Before purchasing the revolver, defendant had also met the deceased at the store of Brandly & Ellis. No words passed between them, beyond a casual greeting. Defendant claimed that he purchased the revolver to protect himself from injury at the hands of Fred. Russell, because he blamed him for the trouble between himself and his wife, and because he thought Russell intended, by proposing an interview between himself and his wife, to devise a plan to do him some injury.
    The next morning the defendant and Denny arose early to go home. They got their horses and started, but, before leaving town, stopped at two or three places to drink. They finally stopped at the Tivoli saloon and restaurant. As they went in, they found deceased standing at the bar, and greeted him. Denny asked him to drink. He refused. They all stood at the bar, Denny being between defendant and deceased. Denny and defendant were about to drink. Deceased stepped by them, to the right of defendant, and asked him: ‘ ‘Are you going to let that girl have her clothes?” To this, defendant replied that he would, when she came after them right; meaning, as he said, whenever she came without Fred. Russell in her company. There is some conflict among the witnesses as to what else was said. The substance of the rest of the conversation was a threat on the part of Russell to take them any way, and a statement by defendant that he would give them up when he got ready. Thereupon, with an oath, Russell struck defendant in the face with his fist, breaking the skin upon his nose, and causing the nose to bleed. The blow staggered defendant, and he fell back against the bar. Deceased then caught him around the neck with one arm, and with the disengaged hand continued striking defendant in the face.. The struggle continued for a few moments, the deceased maintaining his advantage. Thereupon defendant drew his revolver, which deceased caught. It was discharged, the ball entering the body of deceased near the groin. . Deceased lived about three hours after the shooting. The defendant thereupon mounted his horse, and, in company with Denny, rode to Belgrade, in Gallatin county, where, after consulting with one J ohnston, a. constable residing there, he gave himself up, and was put under arrest.
    Fred. Russell testified that when defendant left him, in company with defendant’s wife, on the Sunday afternoon before the trouble, he said: “ ‘Well, so long. Tell the old man I don’t want any trouble, but, if he wants any, he can get it, ’ or something like this. ’ Defendant did not know when he left home on the 18th that he would meet deceased or any of the Russell family in Bozeman, nor did he know of the presence of deceased in the Tivoli saloon at the time he went there. Defendant had previously borne a good reputation for peace and good order. There is some evidence in the record that the deceased had not borne the best reputation in this regard. The defendant is a small man. The deceased was heavier and larger in every way.
    The court below announced judgment upon the verdict of the jury, fixing the punishment of the defendant at 15 years’ confinement in the state prison. From this judgment, and an order overruling his motion for a new trial, defendant appeals.

      Hartman cfi Hartman, for Appellant.

      G. B. Holán, Atty. Gen., II. O. Cockrill and IF. L. Holloway, for the State.
   BRANTLY, C. J.

1. The defendant takes exception to the action of the District Court in allowing, on motion of the County Attorney, the name of Carrie Sloan, the wife of defendant, to be indorsed upon the inf ormation, among the names of the witnesses for the State. This was done in open court three days before the trial began. The defendant was present, and made objection that the witness was his wife, and could not be a witness against him. He now complains that he was compelled to object to her competency at the trial, in the presence of the jury, and was therefore prejudiced in their estimation. The Penal Code (Section 1734) requires the county attorney to indorse upon the information, at the time of filing it, the names of all witnesses for the State known to him. But nowhere do we find any provision requiring the names of subsequently discovered witnesses to be so indorsed. It is, however, a safe and proper practice to have this done, so that the defendant may have no ground to complain that he has not had sufficient opportunity to meet the testimony of witnesses of whom he has received no notice. But the failure to have this done would not prevent the prosecution from examining at the trial a witness discovered after the filing of the information. The defendant could not complain, unless he could show that he had not been allowed suitable opportunity to meet such evidence. It was not necessary that the name of the wife should be indorsed, unless she was known to the county attorney to be a witness at the time the information was filed. She could have been called at the trial and offered by the State, subject to the objection defendant had a right to make under Code of Civil Procedure, Sec. 3163. The proper time to make the objection was when the testimony was offered. We cannot distinguish/the case under discussion from any other case where incompetent evidence has been offered and excluded. The nature of the matters sought to be proved by this witness is not revealed. Presumably she would have been an unfriendly witness. When she was offered by the State she was excluded, upon objection, when it appeared that, she was the wife of defendant. We do not think defendant was prejudiced. State v. McGilvery (Wash.) 55 Pac. 117, cited by counsel, is not in point. .

2. During the selection of the jury, when the time came to exercise the right of peremptory challenge, the court compelled the defendant to exhaust two challenges to each one taken by the State. This is assigned as error. Under the Penal Code (Sections 2044, 2045) the defendant was entitled to ten peremptory challenges, and the State to five. “Challenges for cause and peremptory challenges must be taken in. the manner provided in Sections 1059, 1062, 1063 of the Code of Civil Procedure.” (Penal Code, Sec. 2057.) ■ The Code of Civil Procedure (Section 1059) provides: “* -* * Each party is entitled to four peremptory challenges. If no peremptory challenges .are taken until the panel is full, they must be taken by the parties alternately, commencing with the plaintiff.” No challenge had been taken in this case until the panel was full. The other sections of the Code of Civil Procedure referred to in the section of the Penal Code cited supra do not refer to the manner of taking peremptory challenges. The only reference to be found in any of these sections, or elsewhere in the Codes, to the manner or order in which they shall be taken,- is Section 1059. This has reference to a condition where both parties have the same number of challenges. The contention is made by defendant that the proper construction of this section, as applied to criminal cases, is that the parties must alternately take one challenge each until the State has exhausted its number, and then defendant may continue challenging until he shall be satisfied, or has exhaused his entire number. We do not think the position tenable. The mandate of the statute is that the parties alternate in exercising this right. Alternation is possible only when the plan adopted by the District Court in this case is followed. The State gives the defendant the advantage of double the number of challenges it reserves for itself. It cannot for this reason be claimed that the defendant should have the additional advantage of reserving one-half his challenges until the State has exhausted its number. If this may be done, then there is no reason why the provision of the statute should not be construed to mean that the State should first take or waive all its challenges, and that the defendant, following it, should then take or waive all his. Thus the principle of alternation would be destroyed. No less would it be destroyed if the construction contended for by defendant’s counsel should be adopted. Certainly, in giving defendant double the number of challenges reserved to the State, the design of the law is that he should have this advantage, but it is equally clear that he should enjoy this advantage in the way pointed out by the law. The rule enforced in the selection of the jury in this case has been observed uniformly in this State since its birth, and was the rule in use under the territorial government, under similar statutory provisions. We think it a fair and just interpretation of- these provisions.

3. The defendant contends that the testimony of Fred. Bussell, detailing the occurrences on -Sunday afternoon before the killing, is immaterial, and should not have been admitted. In this we think the defendant is wrong. Certainly the message sent by defendant, — “Well, so long. Tell the old man I don’t want any trouble, but, if he wants any, he can get it,” ■ — tends to show the threatening attitude in which his mind stood towards the deceased. On the trial of an indictment for murder, previous threats of defendant against the deceased are competent as showing malice, or, when long before, as showing deliberation or premeditation. (Underh. Cr. Ev. Sec. 328.) This is the rule, even though the threat is conditional in its terms. (State v. Johnson, 76 Mo. 121; State v. Adams,, 76 Mo. 355; Schoolcraft v. People, 117 Ill. 271, 7 N. E. 649.) The threat may not be to do any specific injury, if it tends to show a malicious condition of defendant’s mind. (See case last cited.) “The language used need not be specific, as regards the means by which, or as to the time, place, or manner in which, violence is to be inflieted. It is for the court to say whether the utterance of the defendant imports a threat, and the cases go very far in admitting as a threat any declaration which indicates, however vaguely and indefinitely, an intention on the part of the accused to inflict violence upon the deceased.” (Underh. Cr. Ev. Sec. 329.) Evidence of this language was properly admitted for the purpose indicated, and, for the purpose of giving the jury a clear understanding of its import, the attendant circumstances were properly admitted.

4. Evidence was offered by defendant tending to show that he°had previously borne a good character for peace. The court below instructed the jury in this regard as follows:

“Evidence has been introduced as to the former good character of the defendant. This is to be taken into consideration by the jury, as one of the circumstances of the case, and as tending to illustrate or explain the circumstances attending the homicide, and tending to show who was the first aggressor, and who provoked this conflict; it being less probable and less reasonable that a man of former quiet and peaceable character would invite a contest, or make an unprovoked and violent attack upon another, than that a quarrelsome, violent and vieious person would do so. And it is for this purpose this testimony is admitted, in case there is any doubt in your minds as to who was the aggressor at the time of the homicide.
“However, if the jury believe from the evidence, beyond a reasonable doubt, that the defendant committed the crime in question, as charged in the information, it will be your sworn duty as jurors to find the defendant guilty, even though the evidence may satisfy your minds that the defendant, previous to the commission of the alleged crime, had sustained a good reputation and character as a peaceable and law-abiding citizen. ’ ’

This instruction practically tells the jury not to consider the evidence in this connection, unless they had doubts as to who was the aggressor. There is no controversy but that deceased was the aggressor. The jury therefore could not, under this instruction, consider at all the previous good'character of defendant. It should have been submitted to the jury generally, leaving them to form their own conclusion, upon the whole of the evidence, whether an individual whose character was previously unblemished had or had not committed the crime for which he was called to answer. (Thomp. Trials, Sec. 2444; State v. Northrup, 48 Iowa, 583; Booker v. State, 76 Ala. 22; People v. Doggett, 62 Cal. 27; People v. Bowman, 81 Cal. 566, 22 Vac. 917; People v. Smith, 59 Cal. 601; McQueen v. State, 82 Ind. 74; Rollins v. State, 62 Ind. 46; Hall v. State, 40 Ala. 698; State v. Clemons, 51 Iowa, 274, 1 N. W. 546.) The rule adopted by the authorities cited supra is approved. The instruction, as given, is erroneous.

5. The court instructed the jury as follows as to malice and heat of passion:

‘ ‘If you find from the evidence in this case that the defendant willfully and unlawfully killed the deceased, that such killing was done during a quarrel between deceased and defendant, and while defendant’s passions were aroused, but you further find from the evidence that malice towards the deceased was present in defendant’s mind immediately before and at the time of the killing, then you are instructed that the mere fact that the killing was done during such quarrel, and while defendant’s passions were aroused, is not sufficient to reduce the crime from murder to manslaughter; but you must, determine from all the evidence whether or not such killing was prompted principally by such passion or by such malice. If by passion, it is manslaughter; if by malice, it is murder.”

Under our statute (Penal Code, Sec. 350) “murder is the unlawful killing of' a human being, with malice aforethought. ’ ’ “Manslaughter is the unlawful killing of a human being without malice, ’ ’ either £ ‘upon a sudden quarrel or heat of passion, ” or “in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution or circumspection.” (Penal Code, Sec. 355.) The distinction between murder and manslaughter, therefore, is that in the former the element of malice aforethought enters, while it is wanting in the latter. The malice necessary to the crime of murder cannot co-exist with the heat of passion. “There can be no such thing in law as a killing with malice, and also upon the furor irevis of passion; and provocation furnishes no extenuation, unless it produces passion. Malice excludes passion. Passion presupposes the absence of malice. In law, they cannot co-exist.” [State v. Johnson, 23 N. C. (1 Iredell’s Law) 354, s. c. 35 Am. Dec. 742; 2 Bish. Cr. Law, Sec. 697.) The act of killing cannot be prompted by both. The heat of passion necessary to reduce the killing to manslaughter must be irresistible, as is sometimes said, and the killing must proceed from it. But the existence of such passion, aroused by. adequate provocation, rebuts the idea that the act is the result of malice. '. This is true always where the heat of passion ensues from a sudden quarrel. The law in such case attributes the fatal blow to the impulse of passion. If, however, the killing appears to have been done with deliberate intention, and with a deadly weapon, under circumstances not requiring its use, then the inference is that malice, not passion, impelled the blow, and the homicide is murder. Again, if it appear that the intent to kill was previously formed, then the existence of passion furnishes no extenuation. The homicide is murder. The distinction rests entirely upon the formation of the intent. If the intent is conceived in the heat of passion, the homicide is manslaughter. Otherwise it is murder. The instruction quoted is erroneous, in that the jury are left to determine the degree of homicide according as the one or the other of these mental conditions predominated. It fails, also, to draw any distinction between the mere existence of passion, and the existence of the heat of passion necessary to reduce the homicide from murder to manslaughter.

6. Exception is also taken to the following paragraphs of the charge:

“Although you should find from the evidence that the said William B. Russell and the defendant, Roland T. Sloan, got into a quarrel at the time in question, and that the said Russell struck the defendant with his fist, still the defendant would have no right to assault the said Russell with a deadly weapon, in a manner calculated to take life or do great bodily harm, unless there was reasonable ground to apprehend a design on the part of the said Russell to kill the said defendant or to do him some great bodily injury, and imminent danger of such design being accomplished, and the circumstances were such as to excite the fears of a reasonable person, and the defendant acted under the influence of such fears alone.
‘ 'The phrase ‘great- bodily injury, ’ as used in these instructions, means something more than mere apprehension, however imminent, of a mere battery not amounting to a felony. In order to justify the assault, and to slay an assailant, within the meaning of these instructions, there must be an apparent design on the part of such assailant to either take the life of the person assailed, or the infliction of some great bodily injury, amounting to a felony, if carried out; and, in addition thereto, there must be imminent danger of such design being accomplished. ’ ’

Both these instructions were prej udicial to the defendant, in that the jury were told that, before defendant could slay deceased, he must have been in imminent danger of death or receiving great bodily harm at the hands of deceased. They ignore the right of defendant, as a reasonable man, to act upon appearances as they were presented to him. This feature of the law of homicide is discussed by this Court in State v. Rolla, 21 Mont. 582, 55 Pac. 523, decided in December, 1898. It is not necessary to repeat here what is said in that case. The jury,- in a preceding paragraph of the charge, had been fairly and correctly, though briefly, instructed on this subject. These instructions contradict and nullify the previous correct statement of the law, and were well calculated to confuse and mislead the jury. The first sentence of the latter of these instructions is open to the further criticism that it involves a confusion of terms. It was evidently the intention of the trial court to say that the apprehension or fear of great bodily harm means more than the mere apprehension or fear of a battery not amounting to a felony; in other words, the apprehension on the part of the defendant of a mere battery upon himself at'the hands of deceased, not amounting to a felony, would not justify the killing of deceased. It is both inaccurate and misleading, in that it practically lays it down as the law that, though assaulted, the accused may not kill his assailant until it appears to him that the assailant is about to commit a felony upon him. The right of one assaulted -to kill his assailant in self-defense should not be limited by his ability to distinguish between felonies and misdemeanors. He must be guided by a reasonable apprehension of death or great bodily harm, and the fear or apprehension of this latter from an unlawful beating at the hands of the assailant may be sufficient, even when the assault is lacking in some of the elements of felony.

7. The first sentence of paragraph 16 of the charge is also open to the criticism that it is confused and unintelligible. It reads: “‘Heat of passion,’ as used in defining ‘manslaughter,’ means a condition of quick anger or sudden injury engendered by some real or supposed injury suffered at the time, and amounting to a temporary dethronement of reason, which must be sufficient to arouse an irresistible and uncontrollable passion in a reasonable person. ’5

Obviously the expressions “quick anger” and “sudden injury” are not synonymous. The phrase “sudden injury” expressed a physical not a mental condition. To a conscientious juror, endeavoring to gain from this instruction any distinct idea of the meaning of the expression ‘ ‘heat of passion, ’ ’ it would be palpably misleading and confusing, as was doubtless the fact upon the trial of this cause.

In other respects the charge to the jury was fair and intelligible, covering all the points upon which instructions were required.

Counsel for defendant at the trial requested 31 instructions, all of which were refused. It is insisted that there are 21 of these that the court should have given. It is neither necessary nor proper to discuss them. Sufficient has already been said in regard to instructions to guide the court in a retrial of the cause.

It is contended by counsel that the facts in the case do not justify a verdict for murder in the second degree. As the cause must be tried again, and as, upon another trial, different conditions may be presented by the proof, we do not deem it proper to express an opinion on this point.

Let the judgment be reversed, and the cause remanded„ with directions to grant defendant a new trial.

Reversed and remanded.

Hunt and Pigott, JJ., concur.


text:
    MILLER, Appellant, v. GATES et al., Respondents.
    [No. 1,049.]
    [Submitted February 24, 1899.
    Decided March 20, 1899.]

      Foreign Corporations — Compliance with State Loams — Mortgages — Foreclosure—Pleading—Decree— Validity.

    1. As against a mortgagor’s creditors, who obtained no lien prior to a foreclosure sale to the mortgagee, but who attached before the recording of the sheriff’s deed, the decree of foreclosure is not void on the ground that the mortgagee was a foreign corporation, and did not comply with the state laws governing such corporations.
    2. As against creditors of the mortgagor, a decree of foreclosure in favor of a foreign corporation is not void because in the foreclosure proceedings the corporation falsely alleged that it had complied with the state laws governing foreign corporations.

      Appeal from District Courts Lewis and Clarice Country; H. N. Blalce, Judge.

    Suit by John R. Miller against A. R. Gates, Gates, Townsend & Co., and the Mutual Benefit Life Insurance Company. From a decree for defendants, plaintiff appeals.
    Affirmed.

      Walsh Newman, for Appellant.
    The decision of this Court in the case of Mutual Benefit Life Insurance Co. v. Wvnne, eliminates many questions from this case. We contend, however, that the decision in that case is not decisive of the case at bar. The decision in that case, as we understand it, is based on the grounds that a curative act was passed by the Legislature, making valid a void contract, or removing a disability, and that the defendant Helena and Denver Investment Company, whose rights intervened, expressly assumed the payment of the debt secured by mortgage, and that it was in no better position to assail the contract, or the validity of the curative statute, than was Winne. In the case at bar the plaintiff’s lien attached to the property on January 21st, 1895, and again on the 1st of February, 1895. The curative statute under which the insurance company claims that its void contracts were made valid, was approved March 19th, 1895, but did not take effect until July 1st, 1895. It did not file its certificates to comply with that act until April 20th, 1895 (Record pages 18-56), and again on August 13th, 1895, although the court found that they were filed April 2nd. The plaintiff’s lien by attachment and execution was acquired and attached-to this property long before the curative act, under which respondents claim, was enacted, and long before it complied with the provisions of that act, and this suit was commenced before the act took effect. When plaintiff’s lien attached the mortgage of the insurance company, and its judgment was void. (Compiled Statutes, page 722, Sec. 445; Mutual Benefit Insurance Company v. Winne, 49 Pac. 446; Powder It. C. Co. v. Corners of Custer Co., 9 Mont. 145-51; Inswram.ce Co. v. Wright, 55 Yt. 520-533; White River Lumber Co. v. Southwestern Imp. Ass., 18 S. W. 1055; Reliance Mutual Ins. Co. v. Savage, 160 Mass. 413; Cary Lum. Co. v. Lumber Co., 22 S. W. (Tenn.) 743; Parrior v. New England Co., 88 Ala. 275 — 279; Cincinnati Mut. Co. v. Rosenthal, 55 111. 86; Aetna Ins. Co. v. Harvey, 11 Wis. 412; Iloffmam v. Bank, 41 Ind. 1; Bank of B. C. v. Page, 6 Ore. 431; The Penn. Co. v. Banerle, 143 111. 459.j
    The attachment lien took precedence of the defective mortgage. (See Carter v. Champion, 21 Am. Dec. 695.) The plaintiff’s lien by attachment and execution, attached to the property and he thereby acquired a vested right therein, and the Legislature could not divest the lien when thus acquired by plaintiff and given precedence to a mortgage and judgment that was each void when the lien attached to the property. The plaintiff pursued his remedy that the law gave him when the debt was contracted and the action commenced, and acquired a valid lien on the property of the debtor. It was beyond the power of the Legislature to then enact a law that would change the status of the parties, the title to the property, and without a hearing, or a chance to be heard, divest plaintiff’s lien and give precedence to a void mortgage and judgment. Such legislation would deprive him of his property without due process of law, deprive him of a vested right and impair the obligation of a contract, all in violation of the Constitution of the United States. (See Cunn v. Barry, 15 Wall, 610; Edwards v. Ilearsy, 96 U. S. 595; Cooly’s Constitutional Limitations, 347-48-49 — 442-443; Wade on Attachment, Sec. 35; Arnold v. Kelly, 5 W. Ya. 446; Law on v. Jeffi'ies, 47 Miss. 686; Atkenson v. Dunlap, 50 Me. Ill; Banks v. Quackenbush, 5 Denio, 591; Hannahs v. Felt, 15 la. 141; States. Hickman, 9 Mont. 370; Drake on Attachment, Sec. 224; Homestead Cases, 22 Grattan, 266; Fosters.

      Byrne, 76 la. 295; Lesleys. Phipps, 49 Miss. 790; Fitzgerald v. WeidenbecTc, 76 Fed. 695; Hooper v. California, 155 U. S. 648; Hershfield v. Telephone Co. 12 Mont. 119; Dudley v. Collier, 6 So. 304; Christian v. Mortgage Co., 7 So. 427; Dundee M. T. da I. Co. v. Nixon, 10 So. 311.)
    The judgment was obtained under the allegation contained in the complaint that the insurance company, the plaintiff therein, was at all times mentioned in the complaint, doing business in the State of Montana, under and by virtue of the laws thereof. It is now admitted that it did not file any papers in the office of the Secretary of State until April 20th, 1895, and on August 13, 1895, hence, it was not doing business under and by virtue of the laws of the State, but was doing business in violation thereof. A license to do insurance business limited it to that business and did not give it authority to do any other. (Chapters 29 — 30, General Laws, Compiled Statutes 1887; Record, p. 52.) Section 2 of the act of March, ■1893, expressly provided that no court in the State should enforce a contract made by foreign corporations that did not comply with the law. (Session Laws 1893, p. 92.) The judgment is therefore void. (Roberts v. Fancy, 21 S. W. 1047; Gevirds Appeal, 15 At. 468; In re Sawyer, 124 U. S. 200.)

      N. W. McConnell and Clayberg, Corbett da Gunn, for Respondents.
   PER CURIAM.

Action to set aside a decree of foreclosure of a mortgage upon certain real estate situate in Helena, Montana, in aid of an execution.

The facts, briefly, are: On August 1, 1890, A. R. Gates obtained a loan from the defendant insurance company of $35,000, and secured the same by a mortgage upon lots 15 and 16, block 42, in Helena. On September 10, 1891, Gates and his wife conveyed the property to defendant Gates, Townsend & Co., a corporation, subject to the mortgage. On June 16, 1894, under proceedings instituted for that purpose in the District Court of the First Judicial District of Montana, a judgment of foreclosure was entered by default against Gates and Gates, Townsend & Co. On June 19, 1891, an order of sale was issued in pursuance of said decree, and placed in the hands of the sheriff of Lewis and Clarke county, who, on J uly 12, 1891, sold the property to the insurance company, giving to it a certificate of sale. On January 17, 1895, the said sheriff also executed and delivered a deed to the said company, the time for redemption having expired. This deed was filed for record on February 2, 1895, in the office of the clerk of Lewis and Clarke county. On January 30, 1895, defendant Gates, Townsend & Co. executed and delivered to the insurance company its deed, whereby it conveyed to the said company any interest it had in the property described in the said mortgage, by virtue of the deed to it by A. R. Gates and wife. On January 21, 1895, in a cause pending in the District Court of the First Judicial District of Montana, wherein John R. Miller, the plaintiff herein, was plaintiff, and A. R. Gates and Gates, Townsend & Co. were defendants, in which a judgment was sought by the plaintiff against the defendants upon a certain promissory note executed by them to the plaintiff, an attachment was duly and regularly issued, and was, by the sheriff of Lewis and Clarke county, duly levied upon the same property as that described in the said mortgage by A. R. Gates and wife to the insurance company, so as to attach and hold any interest therein belonging to either of the defendants in said suit. On February 1, 1895, a judgment was duly given and entered in said action in favor of John R. Miller, the plaintiff, and against the defendants Gates and Gates, Townsend & Co. for the sum. of §3,199.11. On February 2, 1895, an execution was issued upon the said judgment, and placed in the hands of the sheriff of Lewis and Clarke county, and levied upon the said property. No sale was made by him because of the appearance upon the records in the clerk’s office of the said mortgage to the insurance company, the certificate of sale, and the sheriff’s deed above mentioned. This judgment is wholly unsatisfied. A. R. Gates and Gates, Townsend & Co. were wholly insolvent, and owned no property, except what interest the latter may have had in the property in controversy herein.

The insurance company is a foreign corporation, organized under the laws of the state of New Jersey, and had not, at the time plaintiff’s suit was brought, complied with the laws of Montana relative to foreign corporations doing business within this State, and did not do so thereafter until April 20, 1895. In its complaint in the foreclosure proceedings it alleged that it had so complied with the statutes of Montana.

The loan by the insurance company to A. K.' Gates was made, and the mortgage and note to secure it were delivered, in Montana. Other similar loans were made to other persons in the same way. The deed given by Gates, Townsend & Co. to the insurace company was executed and delivered after January 21, 1895. The decree of foreclosure was obtained by the insurance company after personal service of process upon all the defendants in the foreclosure proceedings.

The court below rendered judgment for defendants. From this judgment, and from an order overruling his motion for a new trial, plaintiff appeals.

Plaintiff contends that the contract of mortgage between Gates and wife and the insurance company was void; that consequently the decree and sheriff’s deed based thereon are void; and that all of them should be set aside, so that the property incumbered thereby may be subjected to the payment of his judgment.

As to the character of the mortgage contract, as affected by the failure of the insurance company to comply with the laws of Montana before doing business within the State, this case is not distinguishable from the case of Mutual Benefit Insurance Co. v. Winne, 20 Mont. 20, 49 Pac. 446. In that case it was held, and properly we think, that the contract was voidable only, instead of void, and that, if the obligee chose to do so, he could plead the statute, and thus, perhaps, avoid the contract. The question as to whether the doctrine of estoppel could be successfully invoked against him was reserved. In the foreclosure proceedings between the same corporation and the defendants A. B. Gates and Gates, Townsend & Co., the question was not raised. Judgment was permitted by them, and a sale of the property to the insurance company to satisfy the mortgage. The contract was merged in the decree, and the decree satisfied. This proceeding was as effective to convey the title to the insurance company as if these defendants had passed the title to it by their deed. These defendants might have paid the judgment had they been able and desired to do so; and the plaintiff in this cause, though a creditor, could have made no just complaint, though such payment had left these defendants insolvent. So now, as they have permitted the mortgage to be satisfied, the debt contract being void only at their election at the time the judgment was obtained, the creditors who had no lien upon the property before the title was finally vested have no right to complain. The decree of foreclosure is valid as to all the parties to it and those in privity with them. (Black v. Caldwell, 83 Fed. 880, and authorities cited.)

The fact that the attachment in the suit of plaintiff Miller against defendants Gates and Gates, Townsend & Co. was levied upon the property before the sheriff’s deed was filed for record makes no difference as to the rights of the insurance company. (Vaughn v. Schmalsle, 10 Mont. 186, 25 Pac. 102.)

Nor is there any merit in the contention of plaintiff herein that the allegation in the complaint of the insurance company in the foreclosure proceedings that it had complied with the law of Montana is false, and, therefore, that the decree is void. It was not necessary that this allegation should be made by the company in that suit. It was not necessary that it should be established by proof. Its noncompliance with the law was a matter of defense. (Zion Co-operative Mercantile Association v. Mayo, 22 Mont. 100, 55 Pac. 915.)

Let the judgment be affirmed.

Affirmed.