author:
MR. JUSTICE PIGOTT Mr. Chief Justice Brantey:
      Mr. Justice Milburn:

text:
    CHICAGO TITLE & TRUST CO., Respondent (BROWN et al., Interveners and Respondents), v. O’MARR, Sheriff, et al., Appellants.
    (No. 1,283.)
    (Submitted March 4, 1901.
    Decided April 8, 1901.)
    ,, . _ m Verdict — Excessive Verdict — Reduction—New Trial — Appeal.
    i. Where, in an action for conversion, the trial court regards the verdict asiu excess of the value of the property, it is not error to give the plaintiff the option of remitting the excess, and, if he does so, to order the verdict to stand for the residue, instead of granting a new trial absolutely, under Code of Civil Procedure, Sec. 1771, Subd. 6, authorizing the granting of a new trial for insufficiency of the evidence to justify the verdict.
    2. With questions of the mere weight of evidence in substantial conflict and the 'comparative credibility of witnesses the Supreme Court, as an appellate tribunal, has nothing to do.

      Appeal from District Court, Lewis' and Clarke County; Henry C. Smith, Judge.

    Action by the Chicago Title & Trust Company ag'ainst James J. O’Marr and others. Ralph Brown and others intervened. Erom a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal.
    Affirmed.

      Mr. A. J. Shores, for Appellants.

      Mr. H. G. McIntire, for Respondent Chicago Title & Trust Co.

      Mr. A. C. Gormley, and Mr. Richard Bennett, for Interveners,
   MR. JUSTICE PIGOTT

delivered the opinion of the Court.

This cause was here in November, 1896, on appeals by the defendants from a judgment and an order refusing a new trial, and is reported in 18 Montana, at page 568 (46 Pac. 809, 47 Pac. 4). This Court finally determined the respective rights of the parties, but reversed tbe judgment and remanded tbe cause witb directions to try tbe issue of fact touching tbe value cf tbe property converted by.tbe defendants on August 7, 1893; tbe Court saying: “Tbe single point to be retried is tbe value of tbe property at tbe time of tbe conversion.” Conformably to tbe order of this Court tbe court below tried tbe issue as to value. Tbe jury found tbe value to have been $14,825.25, and that at “forced sale” tbe property would have brought $11,500. By order of tbe court, judgment upon tbe verdict, was entered in behalf of tbe plaintiff and interveners declaring that tbe value of tbe property converted was $14,825.25, and .adjudging that of said amount tbe defendants were entitled to retain $5,020, and that tbe remainder be paid by them to tbe plaintiff and interveners to tbe extent of their several rights thereto as declared by this Court. Tbe defendants having moved for a new trial on tbe grounds that tbe jury gave excessive damages under tbe influence of passion and prejudice, that tbe evidence was insufficient to justify tbe special verdict, and that tbe court erred-in refusing to instruct tbe jury as requested by tbe defendants, tbe court ordered that a new trial be granted unless the plaintiff should within 30 days file its consent in writing to a modification of tbe judgment by remitting therefrom tbe sum of $1,595.55, tbe amount in Avbicb tbe verdict was deemed “excessive, and not justified by the evidence,” tbe court being of tbe opinion that tbe value of the property converted was $13,229.70, and bolding that the evidence was insufficient to>, justify tbe verdict for a sum in excess of that amount. In compliance Avitb tbe terms of tbe order tbe plaintiff remitted $1,595. 55, tbe judgment was modified accordingly, and fbe motion for a new trial was thereupon denied., Prom tbe order refusing a new trial and from tbe judgment .as modified, the defendants appeal.

1. Counsel for the defendants assumed that the-court below Avould tqke-a general verdict -in favor-of tbe plaintiff and interveners, and framed requests for instructions upon that theory. The jury, however, were directed to find a special verdict upon the issue submitted to them, and counsel does not seem seriously to urge that, under the circumstances, error was committed by the refusal to give the proposed instructions as prayed.

2. The action of the lower court in requiring the plaintiff to remit a part of the amount found by the jury as the condition upon which the motion for a new trial would be denied, is specified as error. It is insisted and argued at length that in cases where damages are allowed by juries for injuries to property or property rights, the practice of requiring a remission is unauthorized by either the common or the statutory law, except where the part which should not have been allowed is so distinguishable from the remainder of the verdict or finding that it may be ascertained by the court. Counsel assert that in the case at bar the value of the property converted was susceptible of ascertainment by application of fixed and definite rules of law, and that therefore the court was without right to reject the verdict of the jury and substitute a finding of its own as the basis of the judgment.

Much of appellants’ brief is devoted to a discussion of what the rule is or should be in respect of the right of the court to require a remission of part of the damages found by the jury as the condition of denying a motion for a new trial in cases for injuries to the person or to personal rights, such as libel, false imprisonment, assault and battery, criminal conversation, and the like, where the extent of the'injury suffered is often not susceptible of accurate estimation. That the trial court may in such cases require the plaintiff to forego so much of the amount found by the jury as in the opinion of the court was not justified by the evidence, is a rule which finds well-nigh universal recognition. If the appellate court finds that the court below was clearly wrong in deciding that the evidence was insufficient, of course the order would be erroneous and might be prejudicial. Many courts have decided that if the excessive damages appear to have been awarded under the influence of passion or prejudice, a new trial should be granted absolutely unless it is plain that the other issues were correctly decided by the jury. Whether in the class of cases mentioned where the damages appear to be both excessive and the result of passion and prejudice, the court would be justified in making an order refusing a new tidal upon the plaintiff’s remitting a certain part of the damages awarded to him by the jury (a question adverted to, at least, in Kennon v. Gilmer, 5 Montana, 257, 51 American Reports, 45, 5 Pacific Reporter, 847, and in Cunningham v. Quirk, 10 Montana, 462, 26 Pacific Reporter, 184), need not be considered in the present case. The general rule stated was approved and applied in Kennon v. Gilmer, 9 Montana, 108, 22 Pacific Reporter, 448, in Gilmer v. Kennon, 131 United States, 22 (9 Sup. Ct. 696, 33 L. Ed. 110), and in Hamilton v. Great Falls Street Railway Co., 17 Montana 334, 42 Pacific Reporter 860, 43 Pacific Reporter 713.

It is contended that the rule is inapplicable to a case, such as the one at bar, where the amount of damages is measured by the value of the property converted or is otherwise susceptible of accurate ascertainment.

Section 1171 of the Code of Civil Procedure provides, in substance, that a new trial may be granted because of: “(5) Excessive damages, appearing to have been given under the influence cf passion or prejudice. (6) Insufficiency of the evidence to justify the verdict or other decision.” Unless excessive damages appear to have been awarded under the influence of passion or prejudice, a new trial cannot properly, be granted for the cause specified in the fifth subdivision; if, however, the damages exceed the amount which the evidence justifies, a new trial may be granted upon the ground stated in the sixth subdivision, or the court may, in its discretion wisely exercised, refuse a new trial upon the proper remission by the plaintiff. In Gilmer v. Kennon, supra, the Supreme Court of the United States, in considering the provisions of the Code of Civil Procedure of Montana then in force, which designated among the grounds upon which motions for new trials might- be granted the canses specified in subdivisions 5 and 6 of Section 1171, supra,, said: • “Under these statutes, as at common law, the court, upon the hearing of a motion for a■ new trial, may, in- the exercise of its judicial discretion, either .absolutely deny the motion, or grant a new trial generally, or- it may order that a new trial be had unless the plaintiff elects to remit a certain part of the verdict, and that, if he does so remit, judgment be entered for the restand this quotation is cited in Cunningham v. Quirk, supra, as expressive of the law upon that subject in this state.

If there was not any evidence to support the verdict for an amount in excess of $13,229.70, or if there was some evidence tending to support the verdict for the excess but the evidence was not in the opinion Of the court below of sufficient weight to justify it, the court should either have grantetd a new trial absolutely or in the exercise of its judicial discretion have refused a new trial upon the remission of the excess. In the case before us the court below' was of the opinion that the verdict of the jury for $14,825.25 was excessive in the sum of $1,595.55, the evidence being insufficient to justify'the jury in finding that the property converted was of a greater- value than $13,229.70. For aught that appears- to the-contrary, the' conditional order for a new trial was’ made for-the cause mentioned in Subdivision 6 of Section 1171, supra, "The-court did not find that excessive damáges appeared to have been given under the influence of passion' or prejudice,-for which’cause a new trial may be granted by virtue' of subdivision 5, but that the damages were excessive because the evidence was insufficient (either in weight or for want of any probative force)- to justify the verdict for' more 'than $13,229.70. Under such circumstances the court in making the order that the motion of the defendants for a new trial-be overruled upon the remission by the plaintiff of the amount deemed to be excessive, did not err tó the prejudice of the defendants, provided’the'evidence was sufficient to support the verdict as reduced in amount.’

There is a contrariety of opinion upon-’the question under discussion, but we tbink the better reason and the weight of authority accord with the view we have expressed. In Arkansas Valley Land and Cattle Co. v. Mann, 130 United States 69 (9 Sup. Ct. 458, 32 L. Ed. 854), the action was brought to recover damages for the conversion of cattle by the defendant. The plaintiff, if entitled to recover, was entitled to the value of the animals with their increase, together with interest from the date of the conversion'. The jury returned a verdict for the plaintiff in the sum of $39,958.83. On motion by the defendant for a new trial, the court below ordered that if the plaintiff would remit $22,833.33 from the ámount of the verdict the motion for a new trial would be denied, but if he declined to do so it would be granted. The' plaintiff remitted in accordance with the order and stipulated in writing that judgment might be entered for $17,125, whereupon the motion' for a new trial was denied and judgment entered for the latter-named sum. To the action of the court in respect of the remission and to the order refusing a new trial the defendant excepted. On writ of error the case was taken to the Supreme' Court of the United States; we quote the reasoning of that court upon the precise question here presented: “The point was much pressed at the bar that the remission by the plaintiff of a part of the verdict, followed by a judgment for the sum: remaining, deprived the defendant of his constitutional right to have the question of damages tried by a jury, without interference upon the part of the court, except as it became neces-' sary to instruct them in reference to' the principles of law governing the determination of that question.' The precise contention is, that to make the decision of the motion for a new trial depend upon a remission of part of' the verdict, is in' effect a re-examination by the court, in a mode not known at the common law, of facts tried by the jury, and therefore wás’ a violation of the seventh amendment of the constitution. The counsel for the defendant 'admits that the views expressed by liim ale in conflict with the decision in Northern Pacific Railroad Co. v. Herbert, 116 U. S. 642, 646 (6 Sup. Ct. 590, 29 L. Ed. 755) ; but he aslcs that the question be re-examined in the light of the authorities. That was an action against a railroad company for the recovery of damages resulting from the negligence of its representative, whereby the plaintiff sustained serious personal injury. The verdict ivas for $25,000, and a new trial was ordered unless the plaintiff remitted $15,-000 of the verdict. He did remit that sum, and judgment was entered for $10,000. This court said: ‘The exaction, as a condition of refusing a new trial, that the plaintiff should remit a portion of the amount awarded by the verdict, was a matter within the discretion of the court. It held that the amount found was excessive, but that m> error had been committed on the trial. In requiring the remission of what was deemed excessive, it did nothing more than require the relinquishment of so much of the damages as, in its opinion, the jury had improperly awarded. The corrected verdict could, therefore, be properly allowed to stand,’ — citing Blunt v. Little, 3 Mason, 102, 107, Fed. Cas. No. 1,578; Hayden v. Florence Sewing Machine Co., 54 N. Y. 221, 225; and Doyle v. Dixon, 97 Mass. 208, 213, 93 Am. Dec. 80. In Blunt v. Little, which was an action for malicious civil prosecution^ in which the verdict was for $2,000, Mr. Justice Story, while admitting that'the exercise of the discretion of the court to disturb the verdict of the jury was full of delicacy and difficulty, recognized it to be a duty to interfere when it clearly appeared that the jury had committed a gross error, or acted from improper motives, or had given damages that were excessive in relation either to the person or the injury; and held that the cause then before him should be submitted to another jury unless the plaintiff remitted $500 of the damages. The remission was made, and the new trial refused. In Doyle v. Dixon, which was an action for breach of contract, the language of the court was: ‘When the damages awarded by the jury appear to the judge to be excessive, he may either grant a new trial absolutely, or give the plaintiff the option to remit the excess, or a portion thereof, and order the verdict to stand for the residue.’ To the same effect are many other cases. (Guerry v. Kerton, 2 Rich. Law, 507, 512; Young v. Englehard, 1 How. (Miss.) 19; Diblin v. Murphy, 3 Sandf. 20. See, also, numerous authorities collected in Sedgwick on Damages (6th Ed.), 765, note 3; 1 Sutherland on Damages, 812, note 2; 3 Graham & Waterman on New Trials, 1162.) The practice which this court approved in Northern Pacific Railroad Co. v. Herbert is sustained hy sound reason, and does not, in any just sense, impair the constitutional right of trial by jury. It cannot be disputed that the court is within the limits of its authority when it sets aside the verdict of the jury and grants a new trial where the damages are palpably or outrageously excessive. (Ducker v. Wood, 1 Term R. 277; Hewlett v. Crutchley, 5 Taunt. 277, 281; authorities cited in Sedgwick on Damages (6th Ed.), 762, note 2.) But in considering whether a new trial should be granted upon that ground, the court necessarily determines, in its own mind, whether a verdict for a given amount would be liable to the objection that it was excessive. The authority of the court to determine whether the damages are excessive implies authority to determine when they are not of that character. To indicate, before passing upon the motion for a new trial, its opinion that the damages are excessive, and to require a plaintiff to submit to a new trial, unless, by remitting a part of the verdict, he removes that objection, certainly does not deprive the defendant of any right, or give him any cause for complaint. Notwithstanding such remission, it is still open to him to show, in the court which tried the case; that the plaintiff was not entitled to a verdict in any sum, and to insist, either in that court or in the appellate court, that such errors of law were committed as entitled him to have a new trial of the whole case. But it is contended that the plaintiff could not have been required to remit so large a sum as $22,-833.33, except upon the theory that the jury, in finding their verdict, were either governed by passion, or had deliberately disregarded the facts that made for the defendant; in either of which cases the duty of the court was to set aside the verdict as one not fit to be the basis of a judgment. Undoubtedly, if such had been the view which the court entertained of the motives or conduct of the jury, it would have been in accordance with safe practice to set aside the verdict,- and submit the case to another jury. That was the course pursued in Stafford v. Pawtucket Haircloth Co., 2 Cliff. 82, Fed. Cas. No. 13,275. In that case Mr. Justice Clifford, after observing that the damages were greatly excessive, and without support in evidence,said:' ‘Such errors may in many cases, and under most circumstances,- be obviated by remitting the amount of the excéss but where the circumstances clearly indicate that the jury were influenced by prejudice, or by a reckless disregard of the instructions of the court, that remedy cannot be allowed. Where such motives or influences appear to have operated, the verdict must be rejected, because the effect is to cast suspicion upon the conduct of the jury and their entire finding.’ This court is not, however, authorized to assume from the mere fact that $22,833.33 was remitted that the court below believed that the jury were governed by prejudice, or willfully disregarded the evidence. On the contrary, it may be inferred that the amount for which the plaintiff was entitled to a verdict was ascertained by the -court after a calculation based upon the prices of cattle as given by numerous witnesses; or that the court became satisfied that thé preponderance of "evidence as to the ownership of some of ■ the cattle Was against the plaintiff; or, as to other cattle, that they were not traced to the possession of the defendant-.”' This was approved in Gilmer v. Kennon, 131 United States, 22 (9 Sup. Ct. 696, 33 L. Ed. 110). Doyle v. Dixon, 97 Mass. 208 (93 Am. Dec. 80), was an action to recover damages for the breach of k contract.1 A verdict for $800 was returned for the plaintiff, which the defendant moved to be set aside for' excessive damages and as 'contrary to the weight of the evidence. -■ The judge was of opinion that the' damages were-excessive,'but upon the plaintiff’s remitting $400 ordered' the verdict tó stand for the remainder. The court, through Mr. Justice 'Gray, -said :■ “The defendant has no ground of exception to the action of the superior court upon the motion for a new trial. Such a motion, so far as it depends upon the weight of evidence or other matter of fact, is exclusively addressed to the discretion of the presiding judge. When the damages awarded by the jury appear to the judge to be excessive, he may either grant a new trial absolutely, or give the plaintiff the option to remit the excess, or a portion thereof, and order the verdict to stand for the residue. (Lambert v. Craig, 12 Pick. 199; Hurry v. Watson, 4 Term P. 659, note; Blunt v. Little, 3 Mason, 107, Fed. Cas. No. 1,578.) The judge in this case having adopted the latter course, and ordered the verdict-to stand for the sum of four hundred dollars, the only question of law arising thereon is whether the law would warrant a verdict for this amount.” In Bills v. Hawes, 14 Colorado Appeals* 157 (59 Pacific Reporter, 422), the action was by a mortgagor against his mortgagee to recover for the conversion of the mortgaged chattels. The defendant asked for a new trial and the court considered that the damages found by the jury were excessive in the sense that $105 of the amount was not, in the opinion of the trial court, justified by the evidence, and suggested that the motion would be sustained unless the plaintiff remitted that sum from the verdict. The-plaintiff remitted and the motion was denied. Said the court: “The defendant filed a motion for a new trial, among other grounds for asking which alleging that the damages were excessive. In hearing this motion the' court seems to have considered this objection well taken, and suggested that, upon condition the plaintiff remitted the sum of $105 from the verdict of the jury, the motion would be overruled; otherwise, it would be sustained.' The plaintiff in open court electing tot remit the amount suggested, 1 the motion -was denied. Defendant insists that this is reversible error. '' He-contends that the court had no right- to substitute-' its ■ j udgment - for that of -the‘jury as to> the amount of - the- damages,'-and ¡that it had no-right nor power to ask the' plaintiff - to: -remit -in á suit of this character* where it was - an action 'for unliquidated damagés; that such póriér éxísts, if at all, only in actions for liquidated damages, and where there has been an error in computation, or of some similar character. If this be true, why does the Code provide as one of the grounds for a new trial which the unsuccessful party may urge that the damages, awarded were excessive, and why did the defendant include this ground in his motion for a new trial ? If the finding of the jury is absolutely conclusive, the Code provision would be a nullity. The position of defendant is that in such ease the court has no alternative except to award a new trial if it believes the damages given by the verdict of the jury to have been excessive. We do not believe such to be the rule, and certainly it is not in accord with general, and we may say universal, practice in this jurisdiction; nor does it seem to us founded on reason. The court has, of course, no power to compel the successful party to accept its suggestion to remit; but, if he does, we fail to see wherein the unsuccessful party is injured. If it is error, it is in his favor, and he certainly has no right to complain. He is not prejudiced either as to his rights or remedies. The successful party has'a right to remit, if he desires, without any suggestion from the court. If errors were committed during the trial, they still remain for review by the appellate court, the same as if judgment had been entered upon the verdict as rendered. That there was no error in the action of the court in this case of which defendant may complain, see Hayne on New Trials & App. Sec. 166; Gregg v. Railroad Co., 59 Cal. 312.” Broquet v. Tripp, 36 Kansas, 700, 14 Pacific Reporter, 227, was an action arising from a breach of warranty that certain sheep were sound and healthy. The plaintiff recovered a verdict for $850. The defendant moved for a new trial, which the court refused Upon the condition that the plaintiff remit $350 of the verdict. In affirming the judgment the court there said: “The defendant still further complains that the court, as a condition for overruling his motion for a new trial, remitted $350 of the verdict. We think it had ample authority to do so. If the plaintiff consented, thereto,- the defendant ought not to complain, as the reduction was in his favor. It seems to be well settled that in actions for damages of this kind an excess in the verdict above what 'the evidence might justify or satisfactorily estblish may, with the consent of the party in whose favor the verdict was given, be remitted, and judgment entered fori the residue. The exercise of such power is sanctioned on the theory that the excess arises either from error of law, misapprehension of the facts, or error in computation hy the jury, and that such error docs not permeate the entire verdict, and therefore it is competent to correct it. When the assent of the party is obtained whom, alone the correction would prejudice, the other party has nothing of which to complain, such order of the court being in his favor. (Pendleton Street Railway Co. v. Rahmann, 22 Ohio St. 446; Brockman v. Berryhill, 16 Iowa, 183; Dawson v. Wisner, 11 Iowa, 6; Craig v. Cook, 28 Minn. 232, 9 N. W. 712; Corcoran v. Harran, 55 Wis. 121, 12 N. W. 468.)” The Supreme Court of Wisconsin in Murray v. Buell, 74 Wisconsin, 14, 41 Northwestern Reporter, 1010, reached the same result hy a somewhat different course of reasoning. In Corcoran v. Marran, 55 Wisconsin, 120, 12 Northwestern Reporter, .468, it was said: “The practice adopted by the trial judge is clearly sanctioned by the great weight of authority. We must, therefore, hold that in actions of tort as well as contract, where the damages are clearly excessive, the trial judge may either grant a new trial absolutely, or give the plaintiff the option to remit the excess, and, in case he does so, order the verdict to stand for the residue. Certainly, the practice will tend to promote justice, and lessen the expense to litigants and the public. Besides, the allowance of such option is no more of an exercise of arbitrary power by the trial judge than it would be for him to set aside the verdict absolutely upon the sole ground that it is excessive, and then, in effect, direct a jury to bring in a verdict for a smaller sum, but not in excess of an amount named by the court.” In Chapin v. Bourne, 8 California, 294, — an action of ejectment, — there was a verdict for ”$500 damages in addition to a finding generally for the plaintiff. On the hearing of a motion for a new trial made by the defendant, the court ordered that unless the plaintiff remitted $250 of the damages recovered a new trial would be granted. The plaintiff remitted that amount and the defendant appealed. Said the court: “The court below had a perfect right to require the plaintiff to remit a portion of the damages. It has been repeatedly held that this power was within the discretion of the court, and its exercise has been encouraged.” In Davis v. Railroad Go., 98 California, 13, 32 Pacific Reporter, 646, the practice theretofore prevailing in California by which motions for new trials were denied upon the remission by the plaintiff of part of the damages awarded by the jury, was approved and declared applicable to liquidated as well as unliquidated damages, — that is to say, to damages susceptible of accurate estimation and to damages allowed by juries in the exercise of sound judgment and discretion where there are no fixed and rigid standards of measurement. The Supreme Court of West Virginia in Ohio River Railroad Co. v. Blake, 38 West Virginia, 718, 18 Southeastern Reporter, 957, after full consideration, adhered to the doctrine announced in the case of Arkansas Valley Land and Cattle Co. v. Mann, supra.

3. The final specification is that the evidence was insufficient to support the verdict after its reduction from $14,825.25 to $13,229.70. Although there was a wide divergence of opinion touching the worth of the property, substantial evidence was adduced tending to prove that the value somewhat exceeded the amount of damages ultimately awarded. The credibility of the witnesses and the weight of the evidence were for the ■jury, subject to the supervisory control and revisory power of the district court exercising its judicial discretion upon the motion for a new trial. With questions of the mere weight, of evidence in substantial conflict and the comparative credibility of witnesses this court, as an appellate tribunal, has nothing to do.

The judgment and order are affirmed.

Affirmed.

Mr. Chief Justice Brantey:

I concur.

Mr. Justice Milburn:

I concur. This Court having, notably in Kennon v. Gilmer, 9 Mont. 108, 22 Pac. 448, decided that in an action for personal injury a verdict held to be excessive may. be reduced without submitting the case to another jury upon a new trial,' it seems to me, in reason, unnecessary to discuss the question whether a verdict for damages to property or property rights may be reduced at the option of plaintiff by order of the trial or appellate court. If a verdict for personal injury may be lawfully reduced by the court, why does it not follow, logically and a fortiori, that the court has the power to reduce a verdict for injury to property or property rights ? In the latter case the verdict is based upon testimony of witnesses who testify to values within their knowledge, and the jurors do not have to grope in the darkness of speculation and conjecture, and the court may be able to definitely discover and point out the exact amount of excess which it intends to subtract’ from the sum found by the jury. I may say that I cannot see any reason in those decisions which have held that a court may interfere and reduce the verdict in the case of bodily injury and may not do. so in the case of injury to property or property rights. The existence of such respectable authorities, however, has made it necessary for Mr. Justice Pigott to cover the case at length. I wish to add also that the weight of the authorities,- particularly the decisions of the United States Supreme Court, is so overwhelming in support of the power of the court to reduce verdicts when excessive in the opinion of the court, with option to the plaintiff to accept or decline, that I am forced to concur in the opinion so ably written by Mr. Justice Pigott; but I wish to here go on record as saying that, while in duty bound to bow to the law as it is and has been made by the courts, I am opposed to the tendency of the times to increase the power of the courts, and to permit them to invade those duties which are the sole duties of the jury. I cannot, except in special cases, — as, - for instance, where the court by mistaken’ instructions has led the jury to add some 'specific sum to the amount which it would otherwise have found, — believe, notwithstanding the oveiwhehuiug weight of authorities, that a court should make itself judge of the weight of evidence or of the credibility of witnesses, as it does in most cases when it scales verdicts. The power to grant new trials in law cases because the verdict is excessive means to give the parties another tidal before a jury, and not, in the discretion of the court, to diminish the amount of damages given in the verdict. The action of the court in scaling the verdict and then refusing a new trial is too often to close the door to the losing party in the appellate court; for, notwithstanding the fact that in numerous cases the finding of excessive damages indicates passion and prejudice on the part of the jury, still the presumption is in favor of the act of the court, and the use of sound discretion by it; the effect of the law of verdict scaling being that the court below has, by the use of its intellect, discovered how much the mind of each juror was biased, and has, with a thorough knowledge of the laws of metaphysics, applied the remedy by cutting down the verdict. To dictate a compromise by threat of the expense of a new trial is a convenient way to clear the docket, but ought only to be resorted to in special cases, such as above indicated.


source: Caselaw Access Project

author: MR. JUSTICE PIGOTT

license: Public Domain

text:
    MALONEY et al., Respondents, v. KING et al., Appellants.
    (No. 1,548.)
    (Submitted April 8, 1901.
    Decided April 8, 1901.)

      Restraining Order — Appeal—Injunction.
    Code of Civil Procedure, Sec. 1722, as amended February 28¡ 1899, providing tbat an appeal may be taken from an order granting or dissolving an injunction, or refusing to grant or dissolve an injunction, does not authorize an appeal from a temporary restraining order pending the hearing of an order to show cause why an injunction pendente Ute should not be issued.

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

    Suit by James II. Maloney and others against Silas E. King and others. Erom a restraining order, defendants appeal.
    Dismissed.

      Messrs. McBride & McBride and Mr. E. N. Harwood, for Appellants.

      Messrs. McHatton & Cotter, for Respondents.
   MR. JUSTICE PIGOTT

delivered the opinion of the Court.

On the 18th day of April, 1900, the district court of Silver Bow county made and caused to be entered an order requiring the defendants to show cause on the 28th day of” May why an injunction pendente lite should not be issued against the defendants, and meanwhile restrained them from committing the acts which the plaintiffs alleged the defendants were threatening to commit, — in other words, the plaintiffs applied for an injunction upon an order to show cause, and the court enjoined the defendants until the hearing and decision of the application by an order which, by Section 873 of the Code of Civil Procedure, is denominated a “restraining order.” Erom the restraining order the defendants have attempted to take an appeal. The plaintiffs move that the purported appeal be dismissed upon the ground that the order is not one from which an appeal lies.

The question presented was considered and decided in Wetzstein v. Boston & Montana Consol. Copper & Silver Mining Co., 25 Montana, 135, 63 Pacific Reporter, 1043, where it was held that Section 1722 of the Code of Civil Procedure as amended in 1899 (Laws of 1899, p. 146) makes provision for an appeal from an order granting’ or dissolving or refusing to grant or dissolve an injunction, but does not authorize an appeal from an order granting or refusing a restraining order. In tbat case ibis Court said tbat “there is no appeal from an order granting •or refusing a restraining order pending the bearing of an order to show cause why an injunction should not issue.” The doctrine in tbat case is now adhered to; upon its authority the appeal must be dismissed, and it is so ordered. Let remittitur issue forthwith.

Dismissed.


author: MR. CHIEF JUSTICE BRANTLY

text:
    McKAY, Appellant, v. McDOUGALL Respondent.
    (No. 1,276.)
    (Submitted March 1, 1901.
    Decided April 15, 1901.)

      Mining Claims — Location — Forfeiture — Evidence — Instructions — Relocation—Notice of Location — Amendment—• Resumption of Worle by First Locator.

    1. Plaintiff based his title to a mining claim on a location made in 1877, and there was evidence that a third person had located the ground in 1876; but he testified that he never did any work thereon except “to represent the gulch,” and there was no other evidence that he ever did any work after his location, while there was some evidence that work had been done on the ground in 1869, but that none was done thereafter until plaintiff located the claim. The court instructed that, if such person located the claim at the time stated, plaintiff could acquire no title by his location, unless such person had abandoned the claim. Selll that this was misleading, since there might have been a forfeiture found by reason of such-person’s failure to represent the claim.
    2. Abandonment, as applied to mining claims held by location merely, takes place only when the locator voluntarily leaves his claim to be appropriated by tne next comer, and regardless of what may become of it in the future.

      3. A forfeiture takes place by operation of law, without regard to the intention of the appropriator, whenever he, — having neglected to make the required annual expenditure upon the claim within the time allowed, — fails tb preserve his right by resuming work thereon before a complete re-location by ’ another. ,
    4. In the absence of a statute making additional requirements, or a local rule or custom, a compliance with the statutes of the United States (as to discovery and marking of the boundaries of mining claims) is sufficient.

      5. Whether the evidence shows a valid location is a question of fact for the jury, — and not a matter of law for the court to decide.
    6. Forfeiture is a question of fact for the jury upon the evidence to decide.

      7. Where a mining claim on which plaintiff had located was relocated by defendant, but the notice filed by him was defective, and it was s{iown that, before it was properly remedied by an amended notice, plaintiff had performed work on the mine, it was error to instruct that on a suspension of work the right to resume was lost, where a qualified relocator enters and initiates a location, and a resumption of work between the initiatory and final acts of location is of no avail, since the acts required in the location of a claim are distinct, and all must be performed before a legal location exists.
    8. Plaintiff located a mining claim on ground which a third person had located the year before. Subsequently defendant entered and filed a notice of location on the same claim, but owing to defects therein he afterwards filed an amended notice, and meanwhile plaintiff had resumed work. Held, that as there was a question as to whether the claim by the third person was a valid and subsisting one when plaintiff entered, in which case plaintiff’s location was void and defendant’s title was good, the amended notice filed by defendant was admissible in evidence.

      Appeal from District Court, Madison County; M. H. Parker, Judge.

    Action by Alexander McKay against William J. McDougall. From a judgment in favor of defendant, plaintiff appeals.
    Reversed.

      Mr. Lew L. Callaway, for Appellant.

      Mr. W. A. Clark, for Respondent.
   MR. CHIEF JUSTICE BRANTLY

delivered the opinion of tlie Court.

Action by plaintiff for damages for alleged trespasses upon tbe Sboo Fly Gulch, placer claim, situate in Madison county, for a perpetual injunction restraining defendant from further trespassing thereon, and for a decree quieting plaintiff’s title. The defendant denies plaintiff’s title, sets up a counterclaim alleging title in himself, and demands judgment for damages and for injunction.

The opinion rendered on a former appeal, reversing a judgment in favor of the defendant herein and remanding the cause, is reported in 19 Montana, at page 488, 48 Pac. 988. The pleadings having been amended to conform to the suggestions made by this Court in that opinion, a trial was had upon the merits, resulting iu a verdict for the defendant for $1,800. Judgment was-entered for this amount and for costs, and also perpetually enjoining the plaintiff from asserting’ any claim to the ground in controversy. From this judgment and an order denying a motion for a new trial, plaintiff has appealed.

At the trial the plaintiff rested his claim of title upon a location of the ground in controversy as the Shoo Fly Gulch placer claim, made by himself and one Thurgood in July, 1877. A notice or declaratory statement of this location was filed for record with the clerk of Madison county on July 22. It was signed by both locators, but was not verified. Plaintiff thereafter by mesne conveyances, acquired Thurgood’s interest. The defendant, denying any title in plaintiff, claimed title under a location called the “Humbug Placer,” made on July 22, 1893, a notice of which was recorded on August 9, 1893, and an amended location made on September 1, 1894. The three contentions made at the trial were upon the questions whether the ground in controversy was subject to location at the time plaintiff’s location was made, whether the plaintiff had failed to represent the Shoo Fly Gulch claim during the year 1892, and whether the plaintiff resumed work before defendant located the ground as the Humbug Placer, either by what he did on the ground in 1893, or by his amended location made in 1894. All these questions were fairly within the issues made by the pleadings, as appears from a synopsis of them set out in the statement preceding the opinion on the former appeal, and the integrity of the judgment of the district court turns upon the correctness of the instructions submitted to the jury upon these issues.

1. Evidence was introduced tending to show that the ground in controversy was located as a placer claim by one Sboles and ethers in June, 1876. Sboles himself, who testified in the cáse, stated that he saw the plaintiff upon the ground early in 1877,' but that as his time had not expired he was not uneasy. In another place in his testimony he says that while he and his associates worked in the- neighboring gulches until 1880, when lie sold out, they never did any work upon the ground claimed by. plaintiff in the way of mining, except “to represent the gulch.” From other evidence in the case it appeared that there was not water enough in the gulch for mining purposes, and that all the work done there subsequently was by means of water brought in from other sources. There was also some evidence from which it might be inferred that work had been done upon the ground in 1869, but that none had been done thereafter until plaintiff made his location. There is no other evidence in the record that Sholes and his associates did any work upon the claim at any time after* the date of their location. Upon this evidence the court, after stating correctly to the jury the steps necessary to malee a valid location of a placer claim in 1876, instructed them as follows: “And if you find from the evidence that the said Clark M. Sholes and his associates in June, 1876, did make a discovery of placer gold on the unoccupied lands of. the United States, and on the premises in controversy, and did make a location thereof, and mark the boundaries thereof so that they could be readily traced, then the court instructs you that as a matter of law the said Sholes and his associates were the owners of and entitled to the possession of said claim against all the world, and were in law in possession thereof, so long as they complied with the laws of the United States; and any location placed thereon or attempted to be put upon said premises by the plaintiff while such prior location was valid and subsisting was a nullity and conferred no rights upon plaintiff, and he would be a trespasser, under the law, unless you further believe from the evidence that the said Clark M. Sholes and his associates abandoned said placer claim and left the same without any intention of returning thereto prior to July, 1877, when the plaintiff, McKay, claims to have made his location thereof.” Upon the facts in evidence before the jury upon this branch of the case, this instruction was clearly misleading. For, while failure to represent a mining claim, with other facts showing intention, may leave room for an inference of abandonment by the locator, there may be a forfeiture of all right by the mere failure where the intention to abandon does not exist. Abandonment, as applied to mining claims held by location merely, takes place only when the locator voluntarily leaves his claim to be appropriated by the next comer, without any intention to retake or claim it again, and regardless of what may become of it in the future. A forfeiture takes place by operation of law, without regard to- the intention of the appropriator, whenever he neglects to preserve his right by complying with the conditions imposed by law; that is, to make the required annual expenditure upon the claim within the time allowed. The former involves an inquiry of fact as to the intention as well as the act; in regard to the latter the inquiry is: lias the required expenditure been made as the law commands?' We are of the opinion that while there is, perhaps, sufficient evidence upon which to base an inference that Sholes and his associates had abandoned their claim at the time plaintiffs location was made, the question whether they had forfeited their rights by failure to represent the claim before that time was also fairly presented, and should have been submitted to- the jury under proper instructions. The paragraph quoted is correct upon the question of abandonment, this term being clearly defined in a following paragraph; but it should have gone further, and submitted, also^ the question of forfeiture. The logical effect of it is to exclude this question from the consideration of the jury altogether. In this connection the court should also have laid down the correct rule as to the time within which Sholes and his associates wrere obliged to- do their annual representation work in order to save a forfeiture-. Under the act of congress of May 10, 1872 (17 Stat. at Large, 92, Sec. 5), the year within which the required expenditure must be made upon all claims theretofore or thereafter located was computed from the date of the respective locations. As to claims located prior to the passage of that act the rule was changed by acts of congress of March 1, 1873, and June 6, 1874, respectively (17 Stat. at Large, 483; 18 Stat. at Large, 61), so- that after January 1, 1875, the year was computed from the 1st day of January in each year. As to1 claims located after May 10, 1872, the rule remained as provided in the act of that date until the act of congress of January 22, 1880 (21 Stat. at Large, 61), which so amended the act of May 10, 1872, as to permit the time of representation to be computed from the 1st day of January “succeeding the date of location,” and the provision was made applicable to all claims, whether located before or after the amending act. (Lindley on Mines, Sec. 621; Hall v. Hale, 8 Colo. 351, 8 Pac. 580; Belk v. Meagher, 104 U. S. 279, 26 L. Ed. 735.) The court having already, in another paragraph of the instructions, laid down the rule correctly as to when the representation should have been done by the plaintiff in order to prevent a forfeiture in 1892, the jury, in the absence of the specific instruction as to the rule applicable in 1876-77, were doubtless led to infer that the same rule applied in both cases. Under this view the jury anight well conclude that the locatioai anade hy plaintiff iaa July, 1877, was void froan the beginning, becaaase it was made oaa land still subject to the claim of Sholes aaad his associates, whereas, froan the evideaace, and aaaader a pauper instruction, they might have reached the coaaclusion that the Sholes locatioaa was forfeited for want of representatioaa pador to the end of June, 1877.

In what we have jaast said with reference to the Sholes locatioai ave have proceeded upon the assuanption that there was evideaace enough to go to the juay upon the questioaa aa-hether the acts doaae upoaa the groaand by Sholes aaad his associates in Jame, 1876, aaaade it a valid location. At that time the statute of the territoay of Moaataaaa requiring a record of a arerified notice or declaratory stateanent of location did not iaachade placea’ claians. It applied only to lode locations aaaatil the passage of the act of March 5, 1883 (Session Laavs 1883, p. .95), aadaich avas aonendatory of the Revised Statutes of 1879, and añade all locations subject to the saaaae rule. In the absence of a statute making additioaaal requiaunaents, or a local rule or coistoan (and none avas proven iaa this case), a coiaapliance avith the statutes -of the United States as to discovery and marking of the boun•daries was sufficient. ’ It was for the jury to say whether the •evidence showed such a compliance, though the monuments put upon the ground to indicate the exterior boundaries were-few and placed at great intervals. The court could not say, as a matter of law, that the facts did not show a valid location.

2. It was also a question for the jury, upon the evidence, whether the plaintiff had suffered a forfeiture of his rights by a failure to represent his claim in 1892, as well as whether he had resumed work in good faith before the Humbug Placer was located. The jdaintiff contends that it is shown by uncontradicted evidence that he did several hundred dollars worth •of work on his. claim in 1892. He also1 asserts that, if it be conceded that he did no work at all during that year, yet there is no controversy but that the evidence shows that he resumed work in good faith before the defendant made any location. As to work done in 1892 plaintiff’s position is sustained by his own testimony; on the other hand, the testimony of the defendant tends to show that jdaintiff did no' work at all, but that the excavation and removal of dirt from the gulch, which plaintiff claims to have done by the use of water from a ditch passing round the head of the gulch to other claims, was done by waste water from this ditch or by a cloudburst long before 1892, and that plaintiff had nothing whatever to do with it. There was thus a direct and substantial conflict in their statements. There is, however, no substantial conflict in the evidence introduced by the plaintiff to show that he did a large amount of work upon the claim in 1893, after the defendant •entered thereon, and during 1894, prior to September 1st. Indeed, a considerable portion of the judgment recovered by the defendant was for gold taken out by the plaintiff between July 22, 1893, and September 1, 1894, the date of defendant’s amended location. The facts connected with defendant’s location are that he entered upon the land in July, 1893. Having found gold, he marked the boundaries of his claim running up the gulch with monuments, which the jury evidently found sufficient to identify the claim. Thereupon he filed his notice for record with the county clerk, but it was not verified as required by the statute, and was defective in other particulars. After this suit was begun by plaintiff, and after plaintiff had commenced to “work the mine thoroughly,” as he says, the defendant filed his amended notice of location. This amended notice was sufficient in substance, and would, in the absence of any other rights, establish defendant’s title to the Humbug Placer. The question, therefore, is: Did plaintiff’s resumption of work, and' its continuance thereafter, prevent a forfeiture in favor of the defendant’s location initiated before a resumption of work, but not completed until some fourteen months after ? The trial court was of the opinion that it did not, as appears from the following instruction submitted to the jury upon this branch of the case: “The court instructs the jury that, in order to prevent a forfeiture for failure to perform assessment work required by law, the claimant must resume in good faith, and prosecute the same continuously and without unreasonable interruption until the full amount of labor is performed. Nothing less than the outward manifestation of intent to atone for the delinquency by diligent continuous prosecution of substantial and valuable development work will satisfy the law; that, while the claim will be protected from relocation so long as the claimant is actually engaged in making up the deficiencies, a suspension of work for any appreciable period before the full amount required has been performed will subject the claim to relocation, and the right to resume work is lost, where a qualified relocator enters and initiates a location, and a resumption of work upon a claim between the initiatory and final acts of relocation is of no' avail. And if you believe from the evidence in this case that the plaintiff had failed to represent said placer claim for the year 1892, and that the defendant entered npon said premises and proceeded to initiate a relocation thereof prior to the plaintiff commencing work, then any work done by the plaintiff after the initiation of said relocation will not avail Mm or save his rights in the premises, and you must find for the defendant.” This paragraph, except the last sentence, is taken from tho text of Mr. Lindley, on pages-825, 826. While we agree that it states the law correctly as to good faith and diligence in the prosecution of the work after resumption, we dissent from this learned author’s view that work may not be resumed after the entry of the relocator and the initiation of the second location, soi as to save the forfeiture. Whatever may be the rule in other jurisdictions, under local statutes requiring work of considerable amount to- be done by the relocator in order to complete his relocation, which is also-the case under our present statute (Political Code, Sec. 3615), the rule applicable under the statute in force in this state until July 1, 1895 (Compiled Statutes, of 188 Y, Fifth Division, Sec. 14YY), is stated in Gonu v. Russell, 3 Montana, 358, as follows r. “The law contemplates that tho location of a mining claim shall consist of a number of distinct acts, which are independent of each other. The last that may be dono does not relate back to-the first, and all must bo performed before a legal location exists. The owner of the lode which has become subject to-relocation can resume work thereon at any time prior to the performance of all these acts. The appellant could not mal-co a valid location of the Empire lode until he had marked the boundaries so that they could bo traced readily by means of stakes, monuments, natural objects, or any other certain means-The resumption of labor in good faith by the respondent before the appellant perfected his location rendered null the prior acts of the appellant.” The rule as thus stated necessarily results 'from the signification given to the term “location” used in the statute (Rev. St. U. S. Sec. 2324). The territorial supreme-court understood it in its broadest sense, comprehending all the several steps necessary to make a complete location. Under the rule adopted by other courts, and as stated by Mr. Lindley supra,, the term is held to mean tho initiation of a location by entry and performance of the first necessary step. While there is much to be said in favor of this latter view, the argument is. not so overwhehning that we feel justified in departing from tho rale as laid down in Gonu v. Russell.

In the first paragraph, of this opinion we spoke generally of a forfeiture as the result of a default on the part of the first locator. Speaking accurately, it is only by a complete relocation by another after default of the first locator that a forfeiture is wrought. This statement is fully in accord with Mr. Bindley’s view in his text, at page 820, and it is the only logical view. It will not be contended that if A., for example, enters upon a claim located by B., which is subject to forfeiture, with the intention to relocate it, and takes one or more of the necessary steps to that end, but abandon’s his purpose before he completes the relocation, B.’s rights will be thus effectually forfeited. If congress had intended this, the idea would doubtless have been expressed by use of some other temí less comprehensive in meaning than the term “location.” The rule as stated in Gonu v. Bussell is therefore logical and sound. In any event, we do' not feel disposed to reject it, especially in view of the fact that it has so long stood as the rule in this jurisdiction, and impliedly at least has twice been approved by this Court. (Honaker v. Martin, 11 Mont. 91, 27 Pac. 397; Hirschler v. McKendricks, 16 Mont. 211, 40 Pac. 290.)

The location of the defendant, which was not completed until September 1, 1894, did not cut off the right of plaintiff to resume work at any time prior to that date, provided his location was valid in the first instance and had not been abandoned, and provided, also, that under the rule in Honaker v. Martin and Hirscler v. McKendricks he diligently prosecuted the work without unreasonable interruption until the full amount was performed. Of course, if upon another trial it should appear that the plaintiff abandoned his location at any time before July, 1893, he would have no right to the ground whatever.

3. Plaintiff contends that the trial court erred in overruling his objection to the introduction in evidence of a copy of defendant’s amended notice of location. Upon the theory that the Sholes location was a valid, subsisting one at the time plaintiff entered and made his location, the latter was void at initio and imparted no title. In that case defendant’s title would be good. His record of September 1, 1894, cured all defects in tlie original notice, and made tbe location valid except as to intervening rights.

The judgment and order are reversed, and the cause is remanded for a new trial.

Reversed and remanded.


text:
    YELLOWSTONE NATIONAL BANK OF BILLINGS, Appellant, v. GAGNON, Respondent.
    (No. 1,292.)
    (Submitted March 20, 1901.
    Decided April 15, 1901.)

      Appeal and Error — Bill of Exceptions — Amendments—Incorporation — Necessity—Signing—Time—Law of the Case— Findings — Objection—Exceptions—Review.
    1. Where proposed amendments of a bill of exceptions, which were allowed, were not incorporated in the bill, but only appeared in the transcript, they cannot be considered on appeal, since they are not part of the record.
    2. Where proposed amendments to a bill of exceptions, whicn were allowed by tne court, were not incorporated therein, such bill of exceptions will be disregarded on appeal, since the proposed bill and amendments were both necessary to constitute a bill of exceptions.
    3. The trial judge should not certify to the correctness of a proposed bill of exceptions and amendments thereof until after both have been engrossed.
    4. Where, on a prior appeal, defendant’s answer was heid to state a defense, plaintiff cannot subsequently raise the question that it does not.
    5. In the absence of a compliance with the requirements of Secs. 1114, 1115 of tne Code of Civil Procedure, a judgment will not be reversed on appeal though the express findings do not support it, since in such case the presumption obtains that the court impliedly found for the prevailing party upon the issues of fact not covered by the express findings.
    6. Where there is no bill of exceptions (or new trial statement) on appeal, the evidence cannot be examined to ascertain whether it tended to prove the facts found or warranted the court’s decision.

      Appeal from District Court, Yellowstone County; C. 3. Loud, Judge.

      Action by the Yellowstone National Bank of Billings against E. EE. Gagnon. Erom a judgment in favor of defendant, plaintiff appeals.
    Affirmed.

      Mr. Gib A. Lane, for Appellant.

      Mr. O. F. Goddard, for Respondent.
   MR. JUSTICE PIGOTT

delivered the opinion of the Court.

The plaintiff has appealed from the final judgment in an action upon promissory notes executed by the defendant.

1. A paper entitled “Bill of Exceptions” is by copy included in the transcript. Appended to it is the following certificate by the judge who tried the cause: “The foregoing bill of exceptions is signed, settled and allowed by me this 27th day of June, A. D. 1898, together with the proposed amendments of defendant.” Counsel for the plaintiff, while conceding that the amendments offered by the defendant were allowed, but were not incorporated into- the bill, asserts that since they appear in the transcript the court should consider them in connection with the supposed bill. This we may not do. It is time that there is copied into' the transcript a paper .purporting to embrace the amendments proposed by the defendant and allowed by the judge; but it is no part of the record on appeal. It is not included within any bill of exceptions or statement on motion for a new trial, nor is it one of the papers which Section 1196 of the Code of Civil Procedure designates as part of the judgment roll; neither is it required by Section 1736 of the Code of Civil Procedure to be furnished to' this Court on appeal; hence we cannot look to it for any purpose. What the amendments are, or whether the matter therein contained be material or immaterial, relevant or irrelevant, we have no means of determining. They must .be disregarded. We have, then, the certificate of the judge to the effect that the bill of exceptions proposed by the plaintiff, together with the defendant’s amendments proposed thereto^ are settled, but wbat tbe amendments are is not disclosed, and it is apparent that tbe amendments are not in tbe bill. Tbe proposed bill and tbe amendments — not one, but both — were necessary to constitute a bill of exceptions. Tbe judge should not, in any event, have made tbe certificate be did, nor should he have certified tbe supposed bill'to be correct until after the amendments were incorporated.- He ought not to bave given any certificate before engrossment. Although there is in Subdivision 3 of Section 1173 of tbe Code of Civil Procedure an express provision requiring proposed statements on motions for a new trial and the amendments to be engrossed, no such provision is made, so far as we are advised, in respect of bills of exceptions; but the bill and amendments, when settled, must nevertheless be engrossed, in order to constitute such a bill of exceptions as is contemplated by the law. The amendments allowed must be inserted, and the proposer of tbe bill must see that this is done. Such has always been the rule and practice in the territory and state of Montana. Nothing in Wulf v. Manuel, 9 Montana, 276, 23 Pacific Reporter 723, nor in Penn Placer Mining Company v. Schreiner 14 Montana 121, 35 Pacific Reporter 878, indicates anything to the contrary. Tbe so-called bill of exceptions must also be disregarded.

2. Having eliminated the supposed bill of exceptions, nothing remains for our consideration except the judgment roll.

Counsel* for the plaintiff contends that the answer fails to state facts sufficient to constitute a defense or counterclaim to the second cause of action alleged in tbe complaint. That question was determined adversely to the plaintiff upon tbe former appeal in this case, tbe opinion being reported in 19 Montana, on page 402, (61 Am. St. Rep. 520, 48 Pac. 762). This Court there held that tbe answer in tbe respect mentioned does state a defense, and it matters not wbat view may now be taken of the correctness of tbe decision, for tbe law of tbe case was declared, and it is binding upon this Court as well as upon the court below.

3. The court, without a jury, tried the cause; and made certain express findings of fact, which in and of themselves ■do not support the judgment. But Sections 1114 and 1115 of the Code of Civil Procedure are as follows: “Sec. 1114. No judgment shall be reversed on appeal for want of findings at the instance of any party who-, at the close of the evidence and argument in the cause-, shall not have requested findings in writing and had such request entered in the minutes of the court; nor in cases tried by the court shall the judgment be reversed on appeal for defects in the findings unless exceptions be made in the court below for a defect in the findings or in a finding.- Sec. 1115. In cases of exceptions for defective findings, the particular point or issue upon which the party requires a finding to be made, or the particular defect to be remedied, shall be specifically and particularly designated; and upon failure of the court to remedy the alleged defect, the party moving shall bo entitled to his exceptions, and the same shall be settled by the judge as in other cases.” It does not appear that the plaintiff either requested findings in writing or filed exceptions for defective findings. In this state the system of implied findings prevails (Gallagher v. Cornelius, 23 Mont. 27, 57 Pac. 447; Haggin v. Saile, 23 Mont. 375, 59 Pac. 154), and, in the absence of a compliance with the requirements of the sections quoted, the presumtion obtains that the court impliedly found for the prevailing party upon the issues of fact not covered by the express findings. Unless the party .seeking a reversal has followed the course prescribed by sections 1114 and 1115, the express findings are supplemented by implied findings. So considered, the findings in this case are responsive to the issues, and support the judgment.

Owing to the want of any bill of exceptions, the evidence cannot, as we have said, be examined for the purpose of ascertaining whether it tended to1 prove the facts found or warranted the coui't in making the decision. Por the same reason, the question whether the court erred in sustaining the defendant’s motion for the judgment that was rendered cannot be determined.

The judgment will be affirmed, and it is so. ordered. Remittitur may issue forthwith.

Affirmed.

Mr. Justice Milburn, having presided as judge in the court below upon the first trial of the cause, did not hear the argument on the present appeal, and does not participate in the foregoing opinion.


text:
    ACKLEY, Respondent, v. PHENIX INSURANCE COMPANY, Appellant.
    (No. 1,289.)
    (Submitted March 19, 1901.
    Decided April 15, 1901.)

      Insurance — Pleading — Contracts — Condition — Breach— Interpretation — Trial by Referee — Bestriding Cross-Examination — IIarmless Error — Recovery—Amount.
    1. Under Code of Civil Procedure, Sec. 746, declaring that in pleading performance of conditions precedent in a contract it shall not be necessary to state tbe facts showing such performance, but if may be stated generally that the narty duly performed all the conditions on his part, a complaint in an action on a fire policy sufficiently alleges performance of a condition precedent in the policy, requiring loss to be ascertained by arbitrators in case of disagreement, when it alleges generally that plaintiff has duly performed all the conditions of the policy on his part.
    2. Since a policy insuring “articles usually kept for sale in retail drug •stores” covers gasoline, benzine and ether, the keeping of such articles in reasonable quantities on the insured premises is permitted, and will •not avoid the policy, though a printed condition therein declares in effect that, unless otherwise provided by agreement indorsed thereon or added thereto, the policy shall be void if there be kept benzine, ether or gasoline, notwithstanding any custom or usage of trade may permit them to be kept.
    3. Error of a referee in unduly restricting cross-examination of a witness was not prejudicial when the testimony sought to be elicited was covered substantially by subsequent testimony from the same witness on cross-examination.
    4. A decision by a referee allowing a recovery on a fire policy, without any deduction on account of a prior loss for which proof had been made, was not erroneous, where there was no evidence of the amount.of the prior loss or that it had been adjusted and paid.

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

    Action by Libbie T. Ackley against tbe Phenix Insurance Company of Brooklyn, N. Y. Prom a judgment for plaintiff,' and from an order refusing a new trial, defendant appeals.
    Affirmed.

      Mr. Thomas E. Brady, for Appellant.
    Under the provisions and conditions of the policies, which appear in and are made a part of the complaint, it was necessary for plaintiff to allege in her complaint either that there was an appraisement and award or that the submission to appraisement was waived or prevented by the defendant. ( George Dee & Sons Co. v. Ins. Co., 104 Iowa 167; Hamilton & Home Ins. Co., 137 U. S. 370; Ostrander on Fire Insurance, 2d Ed. Sec. 258.) The keeping of benzine-, gasoline and ether was a violation of the express terms of the policies and rendered them void. (Steinbach v. Ins. Co., 13 Wall (U. S.), 183 ; Lancaster Ins. Co. v. Lenheim, 89 Pa. St. 479 ; Fischer v. London & Lancashire Fire Ins. Co., 83 Fed. Pep. 807; Franklin Ins. Co. v. Yidegraff, 43 Penn. St. 350; Phoenix Ins. Co. v. Fleming, 65 Ark. 54; Yoch v. Home Ins. Co., 111 Cal. 503.) The written part of the policies control the printed part only where they are inconsistent with each other (Sec. 313.8 Code of Civil Procedure-), but they are not inconsistent in this case. Section 2206 of the Civil Code provides: “The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to- interpret the other.” (And see Sec. 3134 Code of Civil Procedure.) Under these statutes the provisions of the policies prohibiting the keeping of benzine, gasoline, etc., cannot be ignored. They were left in the policies as part of the contract. They must be given effect if reasonably practicable. This can be done by construing the policies to mean that the plaintiff could keep all things, other than benzine and the other prohibited articles, which are usually kept in drug stores, but that she could not keep tbe prohibited articles. That is the only reasonable construction which can be given to the contracts under the statute and the only way in which all the parts can be given effect. If the insured wished to keep benzine or any thing' else the policy could easily have been made to say so.

      Mr. James Donovan and Mr. N. W. McConnell, for Respondent.
   MR. JUSTICE PIGOTT

delivered the opinion of the Court.

This was an action to recover $2,650 on two policies of insurance issued by the defendant to the plaintiff upon “her stock of drugs, oils, paints, glass, fancy articles, patent medicines, wall paper, liquors, and other articles usually kept for sale in retail drug stores,” and “her store furniture and fixtures, including counters, shelving and showcases,” and “her one-story frame, shingle-roof building occupied as a drug store, situate on the premises of the assured in the town of Sand Coulee, Cascade county, Montana.” The policies insured the plaintiff to an amount not exceeding $1,650 upon her stock of merchandise and fixtures, and toi an amount not exceeding $1,000 on the building. The complaint states, that the plaintiff was the owner of the property insured; that the defendant issued the policies, which are pleaded by copy; that on the 4th day of February, 1897, the property was totally destroyed by fire, and at the date of the loss was of the actual cash value of ■$4,6O0; that plaintiff’s loss under the policies was $2,650 ; that the plaintiff, immediately after the loss, and more than sixty •days prior to the commencement of the action, notified the ■defendant thereof, and furnished it with written proof of the loss; that the plaintiff has duly performed all the conditions on her part to' be performed; that the sum of $2,650 is diie and unpaid from the defendant toi the plaintiff; and that the ■defendant refuses to pay that or any other sum. In its answer the defendant denies the plaintiff’s ownership of the property, and alleges that the property was nominally conveyed to the plaintiff for the use and benefit of one McCann, who was at all times the sole owner; that the actual cash value of the personal property destroyed was not in excess of $100, and that the building, at the time of the fire, did not exceed in value the sum of $200; that in August, 1896, a partial loss occurred under one of the policies, by a fire which destroyed some of the goods described therein, which loss was adjusted, and plaintiff paid thereon $94.06, and that such payment was made to the plaintiff without any knowledge on the part of the defendant at that time that plaintiff was not the real owner of the property, and that the liability, if any, under one of the policies, had thereby been reduced to the extent of $94.06. The defendant denies that the plaintiff duly performed all the conditions on her part to be performed, as imposed by the terms of either policy, specifying that the failure consisted in this: that she knowingly kept in stock in the building insured during the lifetime of the policies, and had therein at the time of the fire, a considerable quantity, consisting of between five and ten gallons, of gasoline, and between five and ten gallons of benzine, also a considerable quantity of ether, contrary to the express provisions and teams of the policies, by reason of which the risk was largely increased to the defendant, and whereby the plaintiff rendered void the policies. Defendant also pleaded that the policies pi*ovided that the company should not in any event be liable for an amount greater than three-fourths of the cash market value of the property at a time immediately preceding the loss or damage by fire. The contents of the pleadings need not be further stated.

By consent the cause was sent to C. II. Benton, Esq., as referee. He found the issues for the plaintiff, and reported a judgment for $2,650 against the defendant. In accordance with the report, judgment was entered, and from it, and am order refusing a new trial, the defendant appeals.

1. The first point urged by the defendant is that the complaint does not state facts sufficient to constitute a cause of action. Counsel argues that it does not appear from the policies or from the facts alleged in the complaint that the defendant assumed any obligation toward the plaintiff which it failed to perform. Each policy contains the following: ■ “This company shall not be liable beyond he actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to such actual cash value, with proper deduction for depreciation, however caused, and shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality. Said ascertainment or estimate shall be made by the insured and this company, or, if they differ, then by appraisers, as hereinafter provided; and, the amount of loss or damage having been thus determined, the sum for which this company is liable pursuant to this 23olicy shall be payable sixty days after due notice, ascertainment, estimate and satisfactory proof of the loss have been received by this company in accordance with the terms of this policy. * * * In the event of disagreement as to the amount of loss, the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire. The appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire; and the award in writing of any two shall determine the amount of such loss. * * * No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements.

Counsel says that under these provisions the complaint must state either that there was an appraisement or award, or that a submission to appraisement was waived or prevented by the defendant. Assuming that the complaint must, in substance, contain tlie statements which the defendant asserts have been omitted, we are clearly of the opinion that in this regard the compláint is not obnoxious to the objection now interposed, for the plaintiff therein alleges that she has duly performed all the conditions of the contracts on hear part. Section 746 of the Code of Civil Procedure declares that in pleading the performance of conditions precedent in a contract it shall not be necessary to state the facts showing such performance, but it may be stated generally that the party duly performed all the conditions on his part, and, if such allegation be controverted, the party pleading performance generally must on the trial establish the facts. The plaintiff in this case chose to avail herself of the privilege granted by this section, and the defendant did not by its answer controvert the allegation, except with respect to the keeping by the plaintiff of certain prohibited articles in the insured building, — we remark, in passing, that the defendant misapprehends the scope of the allegation that the plaintiff had duly performed all the conditions upon her part; it was not necessary for her to plead in the complaint that she had not kept the articles prohibited, and hence that she had not done so was not, as matter of pleading, the performance of a condition precedent; the allegation of due performance included the performance of conditions precedent only, and that she kept the articles forbidden was matter of affirmative defense, and no part of the statement of the plaintiff’s cause of action. Without considering what effect a denial by the defendant of any liability might have upon the arbitration and award clauses, without considering whether the complaint states a denial by the defendant of any liability, and without deciding whether such denial, if pleaded, would obviate the necessity of alleging compliance with the arbitration clauses, suffice it to say that the defendant, by failing to deny, admitted that the plaintiff complied with the requirements of the policies touching arbitration and award.

2. Each policy declares that the defendant insures the plaintiff against loss or damage by fire, “except as hereinafter provided,” and contains, among others, the following printed provisions: “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto', shall be void * * * if (any usage or custom of trade or manufacture to the contrary notwithstanding) there be kept, used, or allowed on the above described premises, benzine, * * * ether, * * * gasoline. * * * This policy is made and accepted subject to the foregoing stipulations 'and conditions, together with such other provisions, agreements or conditions as may be indorsed hereon or added hereto-; and no officer, agent or other representative of this company shall have power to waive-any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions no officer, agent or representative shall have such power, or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto; nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached.”

The provisions quoted appear and are part of the printed forms upon which the policies were made out. The description of the subject-matter of the risk, specified as plaintiff’s “stock of drugs, oils, paints, glass, fancy articles, patent medicines, wall paper, liquors and other articles usually kept for sale in retail drug stores,” is typewritten, and was attached to the policies in the places left for the insertion of the description. The defendant averred that the plaintiff, contrary to- the terms of the policies, .kept in stock gasoline, benzine and ether. At the trial it was shown that when the fire occurred there were in stock four pounds of ether, five gallons of benzine, and not more than ten, nor less than five, gallons of gasoline. The defendant insists that there was no evidence tending to prove that ether, benzine and gasoline are articles usually kept for sale in retail drug stores, but we are satisfied that the evidence did tend to prove that the three articles named are usually kept for sale in retail drug stores, and that the plaintiff kept them for that purpose. The testimony of the witness McCann was manifestly to that effect, although the question propounded to him upon the subject, if considered apart from the context, is not free from ambiguity. No effort was made to show that the articles were kept in excessive quantities. Under the evidence, the referee was justified in finding that gasoline, benzine and ether were articles usually kept for sale in retail drag stores. Did the keeping of these by the plaintiff for that purpose avoid the policies ? We are of the opinion that it did not.

The provisions quoted did not constitute an absolute prohibition against the keeping of benzine, ether or gasoline. In its printed part each policy declares, in effect, that, unless otherwise provided by agreement indorsed thereon or added thereto, it shall be void if there be kept benzine, ether or gasoline, notwithstanding the fact that any. usage or custom of trade or manufacture may permit them or any of them to be kept; and each policy is declared to be made and accepted subject to this stipulation and condition,'together with such other provisions, agreements or conditions as may be indorsed thereon or added thereto. In accordance with the terms of the printed part of each policy there was added an agreement in writing-by which the defendant insured, and the plaintiff accepted insurance upon, articles usually kept for sale in retail drugstores. This agreement is in no wise repugnant to the inhibition against the keeping of benzine, gasoline or ether, for the keeping of these articles is prohibited unless the parties otherwise agree. They did otherwise agree, and the agreements, must be held to be agreements attached to the policies “which removed the exemption from liability which would otherwise have existed.” (Yoch v. Home Mutual Insurance Co., 111 Cal. 503, 44 Pac. 189, 34 L. R. A. 857, and authorities there cited; and cases cited in note to Lancaster Fire Insurance Co. v. Lenheim, 33 Am. Rep. 781.) The true meaning of the prohibitory provision seems to be that the keeping of any of the articles named, though kept in accordance with, tlie usage or custom of trade or manufacture, will avoid the policy, unless an agreement be attached to the policy providing otherwise; a paraphrase of the provisions being: In the absence of an agreement, attached to or indorsed on the policy, by which gasoline, benzine and ether are permitted to be kept, the keeping of these articles will render the policy void, notwithstanding the fact that, by the usage or custom of trade or manufacture, such articles may be kept. The provision was designed to prohibit under all circumstances, save when an agreement to the contrary is indorsed on or attached to the policy, the keeping of the articles named. There is upon the face of the policy no conflict or repugnancy between its different provisions, nor do we think that the evidence discloses any repugnancy. The written parts of the policies described the subject of the risk as articles usually kept for sale in retail drug stores, and the evidence discloses that gasoline, benzine and ether fall within the description. These articles were covered by the insurance so long as they remained in the stock of goods; hence the defendant agreed to except them from the qualified or conditional inhibition, and to permit them to be kept by the plaintiff without thereby avoiding the policies. In promising to insure and insuring articles usually kept for sale in retail drug stores, the defendant must be presumed to have known that gasoline, benzine and ether were so kept (the evidence proving that they were), and that they were or might be kept by the plaintiff, and, consequently, that its policies covered or might cover them. Whether these articles were usually so kept was, of course,. a question of fact to be determined upon evidence. The defendant, by writing into the policy the subject matter of the risk, to-wit, “articles usually kept for sale in retail drug stores,” must be deemed to have intended thereby to insure all such articles as are usually kept for sale in such stores, and this agreement must be held to be an agreement added to the policy. (Yoch v. Home Mutual Insurance Co., supra.) Counsel for the defendant contends that, under Section 2206 of the Civil Code, the provisions of tlio policies prohibiting the keeping of benzine, gasoline and ■ether cannot be ignored, and that, since they were left in the policies as parts of the contracts, they must be given effect if reasonably practicable, lie argues that this can be done by construing the policies to mean that the plaintiff could keep ail things, other than the prohibited articles, which are usually kept in retail drug stores, but that she could not keep the prohibited articles. The views which we have expressed dispose of this suggestion; we add, however, that the interpretation for which counsel contends is based upon an assumed repugnancy, and, if adopted, would destroy, in part, the written agreement, which must prevail over any printed agreement repugnant thereto. It would be in disregard, also, of Section 2211 of the Civil Code, for the reason that, if effect were given to the printed clause which is asserted to be repugnant to' the written one, the general intent and purpose of the contract, viewed as a whole, 'would be subordinated to the printed clause assumed to be repugnant. The conclusion seems to be irresistible that that the defendant intended to insure the plaintiff against loss or-damage by fire of or to articles kept by the plaintiff in her drug store, including gasoline, benzine and ether, and that the intention of the plaintiff was to have these tilings covered by the policies.

3. Much of the brief in behalf of the defendant is devoted to an argument by which it is sought to be shown that the plaintiff failed to prove by competent evidence hovT much, if any, damage she sustained by the loss of the property, and that the evidence is insufficient to justify the finding that three-fourths of the cash value of the property was the sum of $2,650. Careful and repeated examinations of the evidence satisfies us that the witnesses ivere qualified to testify touching the value of the property destroyed, and that the evidence sustains the findings, both express and implied.

4. It is contended that the referee erred in not permitting pauper cross-examination of the witness McCann in respect of his interest in the insured property and the result of the suit. One of the questions propounded had a double aspect, and we think there was no error committed in ruling it out upon that ground. Proper questions, however, were put, and the cross-examination in the' particular adverted to was unduly restricted, but the error became nonprejudicial by subsequent testimony from the same witness on cross-examination covering substantially the material matter which by proper questions was sought to be elicited on the former cross-examination.

5. The only remaining specification of error which deserves mention is that the findings and judgment are for the full amount of the face of the policies, without deduction on account of a prior fire which consumed part of the insured property, and for which proof of loss had been, made by the plaintiff. Although the defendant, in its answer, averred that a' part of the property insured had been destroyed by a fir© in August, 1896, and that the loss thereby was adjusted, and $94.06 paid to her by the defendant, there was nothing shown upon the trial with respect to the amount of the loss, or what sum, if any, was paid. It appeared, incidentally, that there was a fire in August, 1896, which destroyed some of the property, and that the plaintiff made proof of loss; further than this the evidence is silent. It is obvious, therefore, that the position of the defendant is untenable.

The judgment and the order denying the motion for a new trial are affirmed.

Affirmed.


text:
    SHERMAN, Respondent, v. NASON, Appellant.
    (No. 1,320.)
    (Submitted April 16, 1901.
    Decided April 22, 1901.)

      Limitations — Statutory Change — Limitations Already Running — Unreasonable Limitation — Suit Within Reasonable Time — Ap>p ea l — Reversal—R emand.

    1. Laws oí 1889, p. 172, provides that au action on an account, not Hounded on a written instrument signed by the party chargeable therewith, shall be commenced within five years. Code of Civil Procedure, Sec. 514, Subd. 1, which took effect July 1, 1895, declares that actions of that nature shall be commenced within three years. Section 3456 provides that, when a limitation prescribed in any existing statute has begun to run before the Code takes effect, the time which has already run shall be deemed part of the time prescribed as such limitation by the Code. Held, that suit commenced December 29, 1897, on an open account not founded on a writing, due December 31, 1892, was barred by limitations, notwithstanding the period of six months after July, 1895, allowed by the Code within which to commence suit, was unreasonably short, since suit was not commenced within a reasonable time thereafter.
    2. Upon the reversal of a judgment the Supreme Court will remand the cause for a new trial.
    3. The only exceptions which may be considered on appeal are those preserved by the appellant.

      Appeal from District Court, Madison County; M. II. Par-leer, Judge.

    Action by W. P. Sbernian against Richard Nason. Erom a judgment for plaintiff, defendant appeals.
    Reversed.

      Mr. Lew L. Callaway and Messrs. Bender & Alley, for Appellant.
   MR. JUSTICE PIGOTT

delivered the opinion of the Court.

This action was brought to recover judgment for $262 (including interest) upon an open account for goods, wares and merchandise alleged to have been furnished by the assignor of the plaintiff to the defendant on the 31st day of December, 1892. We notice that the complaint, specifies, “Mass at church, $20,” as an item of the “goods and merchandise” which the 1 plaintiff’s assignor “furnished to defendant at his special instance and request;” but as the defendant is seemingly content with the description, and has not questioned its legal accuracy, we make no comment thereon, and do not decide whether the item is included in the phrase “goods and merchandise.” The complaint, which was filed on the 29th day of December, 1897, states, in substance, that the debt became due and payable on the 31st day of December, 1892. One of the defenses pleaded is that the cause of action is barred by the provision of Subdivision 1 of Section 514 of the Code of Civil Procedure. At the trial the plaintiff established by 'proof the matter stated in his complaint. Thereupon the defendant moved for a non-suit and that judgment be rendered for him, upon the ground that the cause of action alleged was barred by the provision of the statute pleaded in the answer. The motion was overruled, defendant declined to introduce any evidence whatever, and the court instructed the jury to find for the plaintiff. A verdict for the amount stated in the complaint having been returned, judgment was entered in accordance therewith, and the defendant has appealed. The plaintiff has not filed a brief or made any argument in this Court.

Upon the present appeal there is but one question involved,— that of the statute of limitations. The cause of action accrued on December 31, 1892. The account upon which the action was„ commenced was not founded on an instrument in writing. The complaint was filed on December 29, 1897. At the time the cause of action accrued, and until July 1, 1895, the period prescribed for the commencement of an action upon an account not founded upon a written instrument signed by the party chargeable therewith, was five years (Laws of 1889, p. 172). The Code of Civil Procedure of 1895 became operative on July 1, 1895. Subdivision 1 of Section 514 of that Code prescribes that an action such as the one at bar shall be commenced within three years after the cause of action has accrued. Section 3456 of the same Code declares that “when a limitation or period of time prescribed in any existing statute for acquiring a right or barring a remedy, or for any other purpose, has begun to run before this Code goes into effect, and the same or any limitation is prescribed in this Code, the time which has already run shall be deemed part of the time prescribed as such limitation by this Code.” By Section 3483 of that Code, the act of 1889, which prescribed the period of five years, was repealed, subject to- the provisions of Section 3456, supra. It appears, therefore, that from December 31, 1892 (when the cause of action accrued), to July 1, 1895, the period prescribed for barring the remedy of the plaintiff was five years, and that from July 1, 1895, to December 29, 1897 (when the action was commenced), such period was three years; so that the plaintiff and his assignor had two- years, six months and one day within which to commence an action before the taking effect of Section 514, supra, and had six months (less one day) further time after July 1, 1895, when the section last mentioned became operative, in which he might have sued. Conceding that the six months after July 1, 1895, was an unreasonably short period of limitation, the question arises whether the plaintiff instituted the action within a reasonable time thereafter. The answer is manifest. He delayed not only during the three years immediately succeeding December 31, 1892, but for the further period of two- years (less two days) after the end of the three-year period. He brought the action on December 29, 1897, — two years and six months (less three days) after the change from the five to- the three year period had been effected, on July 1, 1895. The action was not commenced until nearly five years had elapsed, two- and a half years (approximately) of which time was subsequent to July 1, 1895. Applying to the facts as presented the principles announced in- Guiterman v. Wishon,, 21 Montana, 458, 54 Pacific Reporter, 566, ive must hold, as matter of law, that the plaintiff did not commence his action within a reasonable time after the 1st day of July, 1895, and that the remedy is barred.

Tbe defendant asks that the judgment bo reversed and the cause remanded with directions to enter judgment for the defendant. The judgment will be reversed and the cause remanded for a new trial; but we shall not order judgment to be entered for the defendant, as this Court does not know what, if any, errors may have been committed to the prejudice of the plaintiff, the only exceptions which may be considered being those preserved by the appellant. (Westheimer v. Goodkind, 24 Mont. 90, 60 Pac. 813; Nolan v. Montana Central Railway Co., 25 Mont. 107, 63 Pac. 926.)

The judgment is therefore reversed and the cause remanded for a new trial. Let remittitur issue forthwith.

Reversed and remanded.