author: MR. JUSTICE HOLLOWAY,

text:
    MEISNER, Respondent, v. CITY OF DILLON, Appellant.
    (No. 1,687.)
    (Submitted October 17, 1903.
    Decided November 9, 1903.)

      Municipalities — Defective Street — Personal Injuries — Proximate Cause — Instructions—Question for Jury — Contributory Negligence.

    1. A city is liable where, without any negligence on the part ol the driver, his horse takes fright and runs away and comes in contact with a defect in the street which the city negligently failed to repair, if the injuries would not have been sustained but for the defect.
    2. where it was shown that one of the principal streets of a city was about sixty feet wide, and there was nothing indicating that it was not open to public travel throughout its entire width, the question whether the portion of the street in repair was of sufficient width to render it reasonably safe was for the jury.
    3. Instructions that a city was bound to use all reasonable care to keep its streets in a safe condition for travel, and if it failed to do so it was liable for the injuries sustained in consequence thereof, if the party injured exercised reasonable care, but a city was not an insurer of the safety of its streets, properly presented the question whether the city was required to keep the entire width of a street in repair.
    4. The defense of contributory negligence in a personal injury action must be specially pleaded.

      Appeal from District Court, Beaverhead County; M. II. Parlcer, Judge.

    Action bj Herman F. .Meisner against the city of Dillon. From a judgment for plaintiff, and from an order denying’ a motion for a new trial, defendant appeals.
    Affirmed.
    STATEMENT OE THE CASE.
    Tbis action was brought by Herman F. Meisner against the city of Dillon to recover damages for personal injuries alleged to have been caused by the negligence of the defendant city.
    The complaint alleges that Hie city of Dillon is a municipal corporation; that during July, 1899, it negligently permitted a certain street crossing to be in an unsafe and dangerous condition; that on July 22, 1S99, while the .plaintiff was driving along the street over which the particular crossing extended, by reason of the dangerous and defective condition of the crossing he was thrown from his buggy, and received the injuries of which complaint, is made. The prayer vis for $5,210.50 damages.
    To this complaint the defendant city filed this answer, omitting formal parts: “Denies each and every allegation in the said complaint contained, save and except such as. are contained in the first, sixth and eighth paragraphs thereof.”
    The first paragraph of the complaint referred to alleges the corporate existence of the city of Dillon, the sixth alleges the presentation of plaintiff’s claim to the city, and the eighth alleges its rejection by the city council before the commencement of this action.
    The cause was tried to a jury, 'which returned a verdict for plaintiff for $550. The appeals are from the judgment entered for the amount of the verdict and costs and from the order denying defendant’s motion for a new trial. Heretofore, on motion, the appeal from the judgment was dismissed.

      2Ir. John G. 'Willis, and Mr. Ndwin Norris, for Appellant.
    The plaintiff knew at the time, and had known for some time, the condition of tire crossing; it was therefore his duty to, if possible, avoid the crossing and not pull his horse so that the defective part must of necessity be encountered.
    Upon the question of contributory negligence, see: Hearne v. Southern Pac. B. B. Go., 50 Cal. 482; Bobinsonv. W. P. B. B. Go., 48 Gal. 409.
    If plaintiff’s negligence contributed to the accident, it is immaterial whether or not the defendant was guilty of negligence. (.Fleming v. Western Pac. B. Go., 49 Cal. 253.)
    If the negligence of the plaintiff amounting to1 the want of ordinary care contributes proximately, in any degree, to the injury, the plaintiff cannot recover. (Robinson v. W. P. B. B. Co., 48 Cal. 409; Strong v. S. & P. B. Co., 61 Cal. 326.)
    Where there are two. apparently proximate causes, the one deemed in law as proximate is the original or primary cause, that is to say, the, originating and sufficient cause which sets the other in motion. {Lapleine v. Morgans L. £ T. B. £ 8. Co., 1 L, E. A. 378.)
    Where there is an originating cause to which the city did not contribute, the city is not responsible. {While v. Biley Twp., 113 Mich. 295; Moullon v. Sanford, 51 Me. 127; Perlcins v. Fayette, 68 Me. 152; Smith v. Kanawha Ct., 33 W. Ya. 713; Worriloiu v. Upper Ghindhester Twp., 149 Pa. St. 40; Kieffer v. ITumonelstown, 17 L. E. A. 304; Herr v. Lebanon., 16 L. E. A. 106; Shaeffer v. Jackson Tivp., 181 L. E. A. 100; Titas v. Noo'ihbridge, 97 Mass. 258; Jackson v. Bellevietv, 30 Wis. 250; Bell v. Village of Wayne, 48 L. E. A. 644; Elliott on Eoads and Streets (2d. Ed.), Sec. 615; Scanlan v. City of Cambridge, 163 Mass. 91; Brotan v. Glasgow, 57 Mo. 156; Iloufe v. Fulton, 29 Wis. 296; Biiger v. City of Miliuaukee, 99 Wis. 190; Doak v. Saginaw, 119 Mich. 883.)
    The duty to keep in repair only extends to the road actually used for travel, provided, it is wide enough to be safe, and is, in its actual condition, reasonably safe for travelers who use due care thereon. {Tinsdale v. Norton, 8 Mete. 388; Smith v. Wendell, 7 Cush. 498; Morse v. Belfast, 77 Me. 44; Kelley v. Columbus, 41 Ohio St. 263; Fitzpatrick v. Berlin.,, 64 Wis. 203; City of Wellington v. Gregson, 1 Pae. 253; Elliott on Eoads, and Streets, Yol. 2, Sec. 621; Tritz v. Gily of Kansas, S4 Mo. 632; Sykes v. Pawlet, 43 Yt. 446; Perkins v. Inhabitants, 68 Me. 152; Ireland v. Oswego, 13 N. Y. 526; Hay v. Weber, 79 Wis. 587; Bhyner v. City of Wenasha, 97 Wis. 523 ; City of Hannibal v. Campbell, 86 Eed. 297; Dillon on Mun. Gorp. (2d Eld.), Yol. 2, Sec. 1008.)
    Whether the street iras wide enough to. be safe, and whether or not the street was in a reasonably safe condition for public use by travelers who use ordinary care to avoid injury, are almost always questions for the jury. (Dillon, Municipal Corp. (2d Ed.), Yol. 2, Sec. 1016; City of Wyandotte v. Gibson, 25 Ivan. 286; Osage City• v. Brown, 27 Kan. 74; Maultby v. Gity of Leavenworth, 28 Kan. 745; Broion v. Glasgow, 57 Mo. 157; Fulliam v. Muscatine, 70 Iowa, 436.)

      Mr. TK S. Barbour, and Messrs. Pemberton cO Maury, for Despondent.
    Where there are two proximate and efficient causes of an injury, one a cause- in which neither plaintiff nor defendant participate, and the other a cause originating in defendant’s negligence, the authorities are not in unison, but, the better doctrine, and great weight of authority and reason, hold the defendant liable. (Elliott on Roads and Streets (2d Ed.), par. 615, and cases there cited; Stone v. Union St. By. Go. (Ivan.), 37 Pac. 1012; Lundeenv. Livingston E. L. Go., 17 Mont. 37.)
    Contributory negligence is new matter and must be pleaded in the answer, to avail aught to defendant (unless at the close of plaintiff’s case, it appears as a matter of law that there has been such negligence on the part of plaintiff). (Eincy. PI. & Pr. Yol. 5, page 10, and cases cited; Prosser v. ilí. G. By. Co., 17 Mont. 388.)
    Where a city has once improved a street, and leaves, it open to the public, throughout its entire width, the whole of it must be. kept in repair. (Goins v. Gity of Moberly, 127 Mo. 116, 29 S. W. Rep. 985; Elliott on Roads and Streets, par. 621; City Council of Montgomery v. Wright, 72 Ala. 411; 5 Am. & Eng. Corp. Cases, 642; Chicago v. Bobbins, 2 Black, 418 : Bacon v. Boston, 3 Cush. 174; Stafford v. Oskaloosa, 64 Iowa, 251; Indianapolis v. Gaston, 58 Tnd. 224; Biggs v. Huntington, 32 W. Ya. 55, 9 S. EL Rep. 51; Bud v. Biddeford, 82 Me. 433, 19 Atl. Rep. 912; Saylor v. City of Monte sano (Wash.), 39 Pac. 653; Walker v. Gity of Kansas, 99 Mo. 647, 12 S. W. Rep. 894.)
   MR. JUSTICE HOLLOWAY,

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

'At the instance of the .plaintiff the court gave instruction No. 8, as follows: “You are instructed that when, without any' f aiilt of the driver, a horse becomes uncontrollable or runs away, it is regarded as an accidental occurrence, for which the driver is not responsible ; and when two causes combine, to produce an injury to a. traveler upon a highway, both of which are in their nature proximate, the one being a culpable defect in the highway and the other some occurrence for which neither party is responsible, the city is liable, provided the injury would not have been sustained but for such defect”; and refused’ instructions numbered 1 and 2 asked by the defendant, as follows: “No. 3. The city is required to. exercise reasonable skill and diligence in making and keeping the streets and crossings safe and convenient for the ordinary and customary use of and travel thereon, but it is not required to keep' thei streets in such condition that users thereof may with safety drive a, horse thereon at an unusual or furious rate of speed, or may drive an unmanageable horse thereon; nor is the city required to keep the streets in such condition that damages may. not be caused by a horse which has escaped from the control of its driver, ” “No. 2. If you believe from the evidence that the horse driven by the plaintiff, by reason of fright or viciousness, became uncontrollable, so that the driver thereof could not stop' him, or direct his course, or gain control over his movements, and in this condition cámé upon the alleged defective part of the: street in question, and on account of which the plaintiff claims, the accident was caused, then you are instructed that the city is not liable for any injury there was, and you should find for the defendant, unless you believe that such injury would have occurred without such horse becoming unmanageable.”

The evidence tends to show that on the evening of July 22, 1899, the plaintiff and his daughter were driving on the streets of Dillon in a buggy to which was attached one horse; that without any fault on the piart of the plaintiff the horse became frightened and unmanageable and ran away; that at the intersection of Montana and Virginia streets the city had lately constructed a heavy plank walk across Montana, street; that this crossing projected from four to seven inches above the1 level of the street; that the city had caused grading to, be done on each side of this crossing near the center of the street for a portion of the distance along the crossing, so as to' enable vehicles to pass over it (the extent to which this grading had been done is somewhat in doubt. Witnesses for plaintiff testified that it was done only for a distance sufficient to enable one wagon to cross at a time, while witnesses for defendant, testified that it was done for from twenty to twenty-eight feet. Admittedly it was done for less than one-third of the width of the street and length of the crossing) ; that when plaintiff’s buggy passed over this crossing two of the wheels struck the -walk where no grading had been done, and the force of the contact threw the plaintiff to the ground, inflicting serious and probably permanent injuries. The contention of the defendant is that the cause of plaintiff’s injury was the running away of his, horse, and instructions Nos. 1 and 2, above, are apparently framed upon the theory that the negligence of the city in permitting' the crossing to be unsafe must, have been the sole cause of plaintiff’s injuries. If such injuries resulted from the defective street crossing, and from any other accidental, intervening or proximate cause, the city would not be liable.

While this theory of the law has the support of very respectable authority, we prefer to follow the doctrine which appears to be supported by the weight of authority and the better reasoning, viz., that where two causes contribute to an injury, one of which is directly traceable to the defendant’s negligence, and for the other of which neither party is responsible, the defendant will be held liable, provided the injury would not have been sustained but for such negligence. (Lundeen v. Livingston E. L. Co., 17 Mont. 32, 41 Pac. 995 ; Elliott on Roads and Streets, Sec. 615; Chicago & N. W. Ry. Co. v. Prescott, 59 Fed. 237, 8 C. C. A. 109, 23 L. R. A. 654; Brennan v. City of St. Louis, 92 Mo. 482, 2 S. W. 481.) Thei question for determination in this instance was not whether defendant’s negligence was the sole cause of the injury, but whether it was. causa- sine qua- non. (Hayes v. Michigan Central R. R. Co., 111 U. S. 228, 4 Sup. Ct. 369, 28 L. Ed. 410.) This question, we think, was fairly submitted to the jury for determination.

The doctrine here announced is, very fully set forth in Union St. R. Co. v. Stone, 54 Kan. 83, 31 Pac. 1012, in an action the facts of which are very similar to> the facts in the case at bar. The court in part says: “It is urged that there is no liability on the part of the railway company or the city of Winfield for the negligent defect or obstruction of the street, as, the runaway team concurred in producing the injuries of Mrs. Stone,. This is the rule in Massachusetts, Maine, Wisconsin, and West Virginia ; but the contrary is held by the courts of New York, Pennsylvania, Georgia, Missouri, Indiana, Connecticut, New Hampshire, Vermont and Texas. Elliott, in his recent work on Koads and Streets, says,: ‘According to the weight of authority, the city is liable where a horse takes fright, without any negligence on the part of the driver, at some object for which the municipality is not responsible, and gets beyond the control of his driver, and runs away, and comes in contact with some obstruction or defect in the road or street Avhich the city has been negligent in not removing or repairing, if the injuries would not have been sustained but for the obstruction or defect.’ -x- * *- ygQ prefer tó follow the general weight of authority, and therefore cannot adopt the rule that cities are not liable for injuries to a runaway horse or his, owner occasioned by an obstruction or defect in the streets.”

It is also contended by the defendant city that it was not required to keep the street crossing in repair for the entire width of the street, but only to the extent of the main traveled portion of the street, provided that be sufficiently wide to- accommodate the ordinary public -travel, and therefore the court erred in refusing instruction No1. 3, asked by defendant, as follows : “A city is not required to keep all parts of its streets and the entire width of its streets in good condition and repair. The duty of the city to keep in good condition and good repair only extends to tliat part or portion of the street actually used by the public for travel, provided that part so used for travel is of sufficient width to> be safe, and is, in its actual condition, reasonably safe for travelers who> use due care. And if you believe from the evidence that sufficient part and width of the street in question was. at the time the injury occurred, as complained of, in such condition and rep|air as to- be safe and convenient for the customary use thereof for public travel, then you should find for the defendant, notwithstanding you may believe that an injury occurred to the plaintiff by reason of defects in other parts of the same street outside- of the customary traveled portion of such street.’

The evidence shows that Montana street is about sixty feet wide; that it is one of the principal thoroughfares of the city of Dillon, and, so far as anything to the contrary appears, is open to public travel throughout its entire width. Taking the view most favorable to the defendant, the question whether the portion of the street in repair was of sufficient width to render the street reasonably safe for public use was one for the jury’s determination under proper instructions. (Union Street Ry. Co. v. Stone, above; Walker v. City of Kansas, 99 Mo. 647, 12 S. W. 894; Saylor v. City of Monte sano, 11 Wash. 328, 39 Pac. 653.) We hardly think it can be said as an abstract proposition of law that “a city is not required to' keep all parts of its streets and the entire width of its streets in good condition and repair.” The correctness or incorrectness of that in any given instance depends upon a variety of circumstances, which can hardly be said to' be fairly treated in defendant’s instruction No. 3. We think the court fairly presents the matter to the jury in instructions Nos. 4 and 5, which read as follows: “No. 4. You are instructed that the defendant corporation is bound by law to1 use all reasonable care, caution and supervision to- keep- its streets in a safe condition for travel in the ordinary mode of traveling, and if it fails to do so- it is liable for injuries sustained in consequence of such failure; provided the party injured is himself exercising reasonable care and caution.” “No. 5. Yon are instructed that a city is not an insurer of the safety of its streets, but is only required to keep them in a safe condition for ordinary travel; and, although the plaintiff may have exercised due care and could not have prevented the runaway, yet, if the street or crossing where the injury occurred was in a safe condition for ordinary travel, the city is not liable.”

Much of the argument in appellant’s brief is directed to questions of contributory negligence; but the answer in this case consists of general denials, and puts in issue only the questions of plaintiff’s injury and the negligence of the defendant. The defense of contributory negligence is in the nature of a confession and avoidance, and must be specially pleaded. (5 Ency. Pleading & Practice, 10; Kansas City, M. & B. R. R. Co. v. Crocker, 95 Ala. 412, 11 South. 262.) The question of con tributory negligence, therefore, -was not in issue in this case. It is -not made to appear from the allegations of the complaint itself, and under the rule that on motion for a nonsuit that will be deemed proved which the evidence tends to proveí we are of the opinion, after consideration of the evidence offered on behalf of the plaintiff, that the court committed no error in denying defendant’s motion for a nonsuit. Further than this, the subject is not properly before this court.

The specifications of particulars in which the evidence is insufficient to support the verdict are inadequate for the purpose intended under the provisions of Section 1173 of the Code of Civil Procedure and the construction given to' that section by this court in Cain v. Gold Mountain Mining Co., 27 Mont. 529, 71 Pac. 1004.

The order overruling defendant’s motion for a new trial is affirmed.

Affirmed.


source: Caselaw Access Project

author: MR. CHIEF JUSTICE BRANTLY,

license: Public Domain

text:
    STATE ex rel. CITY OF BUTTE, Relator, v. WESTON, Respondent.
    (No. 1,991.)
    (Submitted October 21, 1903.
    Decided October 24, 1903.)

      Taxation — City Taxes — Collection—City Treasurer — Duties of County Cleric — Statutes—Constitution.
    1. Political Code, Section 4867 et seq., authorizing* the collection of city taxes by the city treasurer, is not in violation of Constitution, Article XVI, Section 5, when the latter is construed together with Article XII, Section 4.
    2. Article III, Section 29, of the Constitution (providing that the provisions of the constitution are mandatory and prohibitory, etc.), applies to all parts of the constitution alike.
    3. Under the provisions of the Political Code, it is the duty of the county clerk to deliver to the city treasurer the duplicate assessment book required by Section 4867 et seq. at the same time the original or duplicate is delivered to the county treasurer, and hence the fact that the board of county commissioners has, under Section 3851, dispensed with the duplicate assessment book, does not prevent the county clerk from furnishing a, duplicate for a city, though the original assessment book is to be used by the county treasurer.
    4. Under the provisions of the Political Code, the word “similar” in Section 4869 does not require the county clerk to make an affidavit identical with the one required by Section 3845, but merely requires an affidavit covering all the facts showing that the clerk has done his duty in making the copy required by Section 4867 et seq.

      Mandamus by tlie state, on tbe relation of tbe city of Butte, against John Weston, as county clerk of Silver Bow county, to compel'respondent to make and deliver to' the treasurer of relator a duplicate assessment book as required by Political Codej Section 4867 et seq.

    Writ awarded'.
    STATEMENT OF TUB CASE.
    Application for writ of mandamus. On October 17, 1903, tbe application for the writ was presented to tbe court. Tbe case being’ exigent, tbe alternative writ was made returnable and a bearing was bad on October 21st. On October 24th judgment was entered for tbe relator, directing the peremptory writ to issue, the court stating that it would at a later date deliver a written opinion setting forth the reasons for its action.
    In brief, the facts upon which the demand for relief was predicated are the following: The defendant is the clerk of Silver Bow county. The city of Butte is a municipal corporation, which has> in pursuance of Section 4867 et seq. of the Political,Code, as amended by an Act of the Fifth legislative assembly (Sess. Laws 1897, pi 223), provided by ordinance that its treasurer shall collect taxes levied upon property within the city for city purposes. So' far as it is necessary to give special notice to these provisions, they are; the following:
    “Sec. 4867. It is the duty of the; county clerk on or before the first Monday in October in each year to make a duplicate of the corrected assessment book for each city in the county, the treasurer of which is required by ordinance of such city to collect its taxes. Such book shall be styled, 'The Duplicate Assessment Book for tire City of -,’ and must contain a copy of
    the 'Corrected Assessment Book’ of the county as far as the same refers to city property.
    “Sec. 4868. Such duplicate must be made in a, book furnished by the city clerk of each city in the county, and ruled in columns specifying the different funds so that the city treasurer may extend the same and collect the taxes.
    “Sec. 4869. The county clerk must deliver such duplicate assessment book to each city treasurer’, and take his receipt therefor, having attached thereto the affidavit similar to the one set out in Section 3845 of this Code.
    “Sec. 4870. The county treasurers of the counties ntust collect the taxes levied by all cities and towns' in the respective counties, except in ease of such cities of the first and second classes as may provide by ordinance for the city treasurer to collect the taxes from such 'corrected assessment book.’ ”
    In obedience to the requirements of Section 4868, the city clerk seasonably, and prior to the first Monday in October of this year, furnished a suitable book to the defendant, and demanded that he make therein a copy of the corrected assessment book of tile property of Silver Bow county SO' far as tlie same refers to city property, with, tbe proper affidavit attached, as provided in Section 4869, in order that it might be used by tbe city treasurer as tbe duplicate assessment book for the city of Butte for the collection of taxes for the year 1903. "With this demand the defendant refused to comply, his refusal being based upon two grounds, to-wit:
    (1) That tbe provisions quoted are invalid, in that Section 5 of Article XVI of the. Constitution provides that the county treasurer shall be the only collector of taxes; and
    (2) That the Act itself is so vague in its terms, and so much in conflict with other provisions of law upon the same subject, that it cannot be complied with.

      Mr. J. Brace Kramer, and Mr. E. 8. Booth, for Belator.

      Mr. J. E. Ilealy, for Respondent.
   MR. CHIEF JUSTICE BRANTLY,

after stating the case, delivered the opinion of the court

These provisions are not obnoxious to any constitutional objection. It is. true that the section of the Constitution referred to declares' that the county treasurer shall be the collector of taxes. In the absence of any other declaration upon the same subject making an exception in express terms or by very strong implication, this general provision would be exclusive. v Turning to Section 4, Article XII, of the same instrument, however, we find this provision: “The legislative assembly shall not levy taxes upon the inhabitants or property in any county, city, town or municipal corporation, for county, town or municipal purposes, but.it may by law vest in the corporate authorities thereof powers to assess, and collect taxes for such purposes.” This section in express terms denies to the legislature the power to levy taxes upon the inhabitants or property in any city or town for city or town purposes, but at the same time empowers, it to vest in the corporate authorities power to assess and collect taxes for such, purposes.

Article XVI deals with municipal corporations, but has special reference to counties. It does not refer to cities or towns, nor does, it contain any provision applicable to them, except that by implication, under Section 6 thereof, the legislature is empowered, within the. restriction therein stated as to the length of the. term, to provide for the election or appointment of such officers to. administer the government of cities and towns as circumstances may require- Article XII deals exclusively with the subject of taxation for state, county and other purposes, including city revenues. The two provisions are readily harmonized by reading them according to their obvious sense. The former declares that the county treasurer shall be the óolleetor of taxes. The latter declares, in effect, that cities and towns shall control the collection of their own taxes if the legislature so wills. The purpose sought to be accomplished by the convention was to constitute the county treasurer the collector of taxes for all purposes, unless the legislature should use the discretionary power granted by way of exception in Article XII to the general provision contained in Article XVI; for there is no other provision touching the subject. The legislature Aras thus left to. grant the power to1 cities and toAAms. under such conditions, as it might impose. In consonance with this idea the proiúsions. of the statute rae enacted. The authorities of cities of the classes mentioned, Avhich liaAre by ordinance expressed their desire to do so, may provide for the collection of their oavh taxes. Otherwise the county treasurer must perform thisi duty for them. Thus it appears that the. tivo provisions, are in perfect harmony, the one being of general application and controlling so long as the'legislature did not choose to proceed under the other, and that that body was clearly Avithin its powers in enacting the statute:

Counsel for defendant cite the case of Mutual Life Insurance Co. v. Martien, 27 Mont. 437, 71 Pac. 410, and contend that the construction there given to Section 5 of Article XVI is con-elusive of the present contention, and that in view of the statements therein contained, the provisions of law: now under consideration, must be held invalid or that that case must be overruled. In that case the court had under consideration the question whether it was within tire power of the legislature to make the assessor a collector of taxes for county and state purposes. What is there said was said with reference to this question only, and the conclusion reached is that the legislature had no power to do this, inasmuch as the duty of collecting taxes for these purposes is cast exclusively upon the county treasurer*, by the Constitution. The provision of Article XII above quoted was not considered, nor is it mentioned in the opinion except to say in effect that it had no pertinency to the controversy involved. If the opinion be examined in the light of what was before the court for determination, it becomes entirely clear that it is not an authority to' support the contention of defendant. The rule that the provisions of the Constitution are to be regarded as mandatory and prohibitory, unless by express terms they are declared to be otherwise (Sec. 29, Art. Ill, Constitution), ap>-plies to all parts of it alike, and if anything were said in the case cited which could be construed to uphold the contention made by the defendant, it would certainly violate this rule^ because the two sections of the Constitution now under consideration stand upon an equal footing and are to be construed by the same rule of interpretation. The provisions of Article XII are in their terms mandatory and prohibitory, just as are those of Article XVI, and there is no express provision anywhere in the instrument declaring that the provisions of Article XVI. are paramount to the provisions of Article XII.

It is contended by counsel for defendant that defendant could not perform' the alleged duty demanded of him, for the reason that, though it is enjoined by amended Section 4861, supra, the provisions of Section 3851 of the same Code'render it impossible* Section 3125 directs the form in which the assessor shall make up the assessment book. This book must be so kept that it will appear therefrom what property is within tbe limits of cities oí towns and what is elsewhere. It must be completed on or before tbe second Monday in July of each year (Section 3126), and immediately delivered to tbe clerk (Section 3728). Tbe cleric must then malee up tbe totals from tbe roll and transmit bis statement to tbe statei board of equalization and to tbe state auditor (Sections 3840, 3841, 3842). When the necessary corrections and additions bave been made to it under tbe direction of tbe state and county boards of equalization, tbe clerk must complete tbe book by extending tbe tax so tbat tbe amount ta be paid by eacli taxpayer for tbe year rvill be made to appear (Section 3843). A copy of the book must tben be delivered to tbe treasurer of tbe county witb an affidavit attached (Section 3845), and it tben becomes bis authority to collect the taxes as assessed (Sections 3860 et seq.) The copy-delivered by tbe clerk is styled “Duplicate Assessment Book,” the original being retained by tbe clerk. The board of county commissioners may dispense witb tbe duplicate assessment book; in case it does, tbe original assessment book is to .be used by tbe treasurer (Section 3851).

At the bearing in this court it appeared that the county commissioners of Silver Bow county bad dispensed with tbe duplicate assessment book, and tbat the defendant bad already deL livered tbe original book to tbe treasurer. Bor this reason it was contended tbat tbe defendant could not comply witb tbe duties cast upon him by Section 4869 supra. Tbe court was of tbe opinion, tbat tbe contention was without merit, for the reason tbat it is tbe duty of tbe clerk to deliver to tbe city treasurer tbe duplicate contemplated by Section 4867 at tbe same time tbe original or duplicate is delivered -to tbe treasurer of tbe county, and tbat Section 3851 has no application to tbe duplicate required to be prepared for tbe use of city treasurers. Tbe section refers to tbe duplicate necessary for county uses only, — else cities falling-in tbe class to which relator belongs would be left without tbe means of collecting any taxes at all. Tbe legislature in tbe adoption of tbe Code did not intend any such result, for at the same time at which Section 3851 was adopted, it. adopted Section. 5162, which, declares that “if the provisions of any title conflict with or contravene the provisions of another' title, the provisions of each title must prevail as to all matters and questions arising out of the subject-matter of such title.” This provision has application here, because Section 3851 is from Title X, Part III, of the Code which has to do with revenues of the state and counties, while the amended Sections 4867 et seq. are from Title III, Part IV, and refer exclusively to the government of cities and towns'. The requirements made by Sections 4867 et seq. must therefore be regarded as- controlling, notwithstanding the provisions of Section 3851. It is a mere quibble to say that the clerk could, through neglect of his duty until the time came for delivery of the original book to the county treasurer, render it impossible to perform his duty with reference to the city treasurer.

It was further contended by counsel that, when comparison is made of the affidavit required of the clerk by Section 3845, with that required of him by amended Section 4869, it is apparent that he cannot make It, for the reason that the former section requires him to state under his oath that he has done certain additions, calculations and extensions which are required under Section 4869 to' be done by the city treasurer. It was said that the term “similar” means that he must make the same affidavit in the one case as in the other, or that the requirement is so vague and indefinite that the defendant could not comply with it.

The evident purpose of all the provisions under" consideration is that the basis of taxation for state, county, city and town purposes shall be the same, and that the duty of the county clerk in relation to the taxes of cities and towns shall extend no further than to furnish to the authorities of cities to which Sections 4867 et seq. apply, the same valuations so far as they appertain to such cities as those used for the state and counties. This being the case, the clerk is required to state under oath, with reference to the book furnished to the city treasurer, nothing more than is necessary to make the fact appear that he has complied with the law in- this respect. Th-ei word “similar” does not mean identical in form and substance, but having charter-istics in common; that is, that while under Section 3845 the affidavit must cover all the facts showing that the clerk has done his duty in taking the basis furnished by the assessor in entering the authorized corrections and extensions, and in making the copy furnished- by him such as is required by law, the one required under amended Section 4869 need go no further than to state the facts necessary to show that the duty required by Sections 4867 and 4868 has been performed. The requirement of Section 4869 is clear and explicit, and there is no difficulty in ascertaining its meaning. Nor these reasons the court was of the opinion that the relator was emtitLed to: the relief demanded.

Writ Issued.


author: ME. JUSTICE HOLLOWAY

text:
    ANCIENT ORDER OF HIBERNIANS, Division No. 1, of Anaconda, Appellant, v. SPARROW et al., Respondents.
    (No. 1,701.)
    (Submitted October 21, 1903.
    Decided November 16, 1903.)

      Attachment — Construction of Statute — Action on Bond — Contract for the Direct Payment of Money — Statute Borroiued from Another State — Buie of Construction.

    1. The decision of the court of another state construing a statute thereof will not be followed by the court of a state borrowing such statute unless the decision appeals to it as founded on right reasoning.
    2. ' An action against sureties on a bond conditioned to be void if the principal performed his contract is not an action on a contract for the “direct payment” of money, within Code of Civil Procedure, Section 890, authorizing an attachment in such an action.

      Appeal from District Court, Deer Lodge Countyj Welling Napton, Judge.

      ActioN by the Ancient Order of Hibernians, Division No-. 1, of Anaconda, Montana, against Obarles W. Sparrow and others. From an order dissolving an attachment, plaintiff appeals.
    Affirmed.

      Mr. T. O’Leary, and Mr. H. B. WhitehiU, for Appellant.

      Mr. George B. Winston, and Messrs. Rodgers & Rodgers, for Bespondents.
   ME. JUSTICE HOLLOWAY

delivered the opinion of the court

On November 16, 189S, the Ancient Order of Hibernians, Division No*. 1, of Anaconda, Montana, entered into an agreement with Edward B. White, a contractor and builder, by the terms of which White agreed to furnish the materials and erect a building for the order in Anaconda, for which he was to* be paid the sum of $13,515, the building to be completed prior to December 1, 1898, and all the work to be done according to plans and specifications which were furnished. Eor the faithful performance of that contract White executed his indemnity bond in the sum of $3,500, with respondents Sparrow, Wegner, Badefeld. and Thiefenthaler as sureties, the condition of the undertaking being that, “if the said Edward B. White shall in all things comply with the contract in letter and spirit, and turn over to the said A. O. H. Div. No. 1, of Anaconda, the said building fully finished and completed in all its parts in strict compliance with the said plans and specifications, * * then the above obligation to be void, otherwise to remain in full force and virtue.”

The complaint alleges that, although White entered upon the work and performed a part of it, he abandoned the same before it was completed, and that the appellant was compelled to complete the same at a cost of more, than $.4,500 over and above the contract price of the building. The complaint then alleges that prior to the commencement of this action this appellant reeov-ered a judgment against White for the breach of said contract in the sum of $5,440, and that White was soon afterwards adjudged a bankrupt without assets. The prayer of the complaint is for the full amount of the bond.

At the time of the commencement of this action and the issuance of summons, upon a .proper affidavit being made and the undertaking required by law being given, thei clerk of the district court issued a writ of attachment under which the sheriff of Deer Lodge county levied upon property belonging to> the defendants. Thereafter the defendants appeared, and moved the court to discharge the attachment upon the ground, among others^ that the action is not founded upon a contract for the direct payment of money within the meaning of Sections 890 and 891 of the Code of Civil Procedure. This motion was by the court sustained, and the attachment dissolved. From, the order dissolving the attachment this appeal is prosecuted.

Section 890 of the Code of Civil Procedure provides as follows: “Sec. 890. The plaintiff, at the time of issuing the summons, or at any time afterward, may have the property of the defendant attached, as security for the satisfaction of any judgment that may he recovered, * * * as follows: In an action upon a contract, express or implied, for the direct payment. of money. * * *”

Without question this is an action upon an express, contract, and the only difficulty to be met with is in the proper construction of the phrase “for the direct payment of money.”

So far as we are advised, California and Oregon are the only other states having the sarnie statutory provision. Colorado had prior to 1895. Sections 120 and) 121 of the California practice act (St. 1851, p. 68, c. 5; Sections 537, 538, Code Civ. Proc., 1897) contain the same provisions as our Section 890, above, and those sections received construction by the Supreme Court of California in Hathaway V: Davis, 33 Cal. 161; where by a divided court it was held that an ordinary appeal bond was a contract for the direct ¡payment of money within tbe meaning of Sections 120‘ and-121, above. However, tbe majority of the court characterized its own opinion as not being very satisfactory. This decision was made the sole ground for holding that a bail bond was likewise a, contract for the direct payment of money (City and County of San Francisco v. Brader, 50 Cal. 506), and upon the authority of thése two* cases the same court in County of Monterey v. McKec, 51 Cal. 255, held the official bond of the county treasurer was such a contract as is contemplated by the attachment statute.

It is contended by appellant that under the rule of construction that^ where a statute is adopted from another state hy this state, it is adopted with the construction given it by the highest court, of that state, the decision in Hathaway v. Davis is conclusive in this instance.

It may be true, as assumed by counsel for appellant, that our Section 890, above, was borrowed from California, and yet that is only an assumption, as there is. nothing whatever to. indicate that it is a fact. The expression “for the direct payment of money” does not appear in o-ur attachment laws from January 15, 1869, to the adoption of the Code in 1895, at which latter date at least two other states had substantially the same statutory provision as California. However, this court will not blindly follow the construction given a particular statute by the court of a state from which we borrowed it, when the decisión does not aplpleal to us as founded on right reasoning. We understand the rule to be “that the construction put upon statutes by the courts of the state from which they are borrowed is entitled to respectful consideration, and that only strong reasons will warrant a departure from it” (Endlich on Interpretation of Statutes, Sec. 371; Oleson v. Wilson, 20 Mont. 544, 52 Pac. 372, 63 Am. St. Rep. 639) ; or, as was said in Stadler v. First National Bank, 22 Mont. 203, 56 Pac. 114, 74 Am. St. Rep. 582: “When a particular statute has been adopted by this state from the. statutes of another, after a judicial interpretation (suited to. our condition) has been placed upon it by the parent state, the courts of this state are bound by the interpretation of the courts of the state -whence it was adopted or will a,t least accord respectful consideration to such, interpretation, and depart from it only for strong reasons.”

Prior to 1895 Colorado' badi an attachment statute which 'provided that the writ should issue upon the plaintiff making an affidavit “that the, action is brought upon an overdue promissory note, bill of exchange, or other written instrument for the direct and unconditional payment of money only or upon an overdue book account.” (Mills’ Ann. Code, Sec. 92.) This section received consideration in Hurd v. McClellan, 14 Colo. 213, 23 Pac. 792, which was an action upon an appeal bond, and reference is there made to the case of Hathaway v. Davis, above, and the majority opinion disapproved. The Supreme Court of Colorado, after holding that such appeal bond does not come within the purview of Section 92, above, says: “In, this .case the obligation assumed by the sureties' was not direct, but collateral. They could be charged only upon, failure of the prin: cipal to pjay. If he failed to pay the judgment appealed from, if affirmed by this court, then there would be a breach of the condition of the bond Upon which a cause of action might be predicated.”

In People v. Boylan, 25 Fed. 595, Hallett, J., in construing the above section of the Colorado' Code in an. action upon an administrator’s bond, says.: “A direct payment is one which is absolute and unconditional as to, time, amount and the persons by whom and to, whom it, is to1 be made. And a written instillment which provides for such payment is one which expresses those terms fully. It is needless to point out the difference between such an instrument and an administrator’s bond.” Commenting on the majority opinion in Hathaway v. Davis, supra, Judge Ilallett says: “It is to be observed, also, that in the only case cited from that state (California) in which the question, was discussed the views expressed were not altogether satisfactory to the court. And the opinion will hardly be more convincing to the profession than it was to' the court.”'

In Hathaway v. Davis, above,.Sawyer, J., dissenting, says: “The undertaking upon which a. recovery is sought is ‘that the appellants will pay all damages and costs which, may be awarded against defendant on the appeal, not exceeding three hundred dollars.’ This appears to- me to- be an undertaking that another party shall pay, and not that the p-arty himself will pay. There is no promise that the defendants themselves will pay any money at all, and consequently no- contract on their part for. the direct payment of money. On a failure of the appellants in the suit to pay in accordance with the terms- of the undertaking, there is a breach, it is true, and the party to- the undertaking is liable for damages for the breach. But the liability is- strictly for damages, and not on his own contract that he- himself will pay money. For these reasons I think there was no- contract, express or implied, on the part of the defendant for the direct payment of money within the meaning of the attachment law, and that an attachment is unauthorized.” It is to be noted that this dissenting opinion is quoted with approval in Hurd v. McClellan, above.

The Code o-f Civil Procedure of New York (Section G35) provides for the issuance of an, attachment “in an action to recover a sum of money only as damages for a breach of contract, express or implied,” and Section 64-9 provides the manner of levying tire writ. Construing these sections, the supreme court, in Trepagnier & Bros. v. Rose, 18 App. Div. 393, 46 N. Y. Supp. 397, said: “But we are clear that, to be an instrument for the payment of money, it must b-e an instrument which acknowledges an absolute obligation to pay, not conditional or contingent; one, the execution of which being admitted, it would be incumbent on the plaintiff, in an action, to- enforce it, only to offer the instrument in evidence to entitle- him; to a recovery —in other words, an instrument that admits an existing debt. We think that this is the correct line which divides such instruments from other written contracts which contain obligations on the part of one party or the other to pay money, such as agreements of sale, hiring, leases, building contracts, etc.”

One of the definitions given in Webster’s Dictionary for the word “direct” is “immediate; express; unambiguous; confessed ; absolute”; and it does seem that, if the term is to be given any meaning1, as used in our attachment statute, it must distinguish a particular class of contracts for the payment of money from all other contracts for the payment of money. In other words, that class of contracts which provide for the direct payment of money must differ somewhat from, all other contracts for the payment of money, or the team, “direct” has no meaning whatever.

The term first appeared in our attachment statute in 1866 (Act Third Leg. Assem. approved Dec. 3, 1866, p. 62, c. 12, Sec. 1). These legislative enactments were annulled by Act of congress (14 Stat. at Large, 427). Practically the same provision was re-enacted by the Fourth legislative assembly (Laws of 1867, page 156). This Act was amended by Act of Fifth legislative session, approved January 15, 1869 (Laws of 1869, page 64), and the word “direct” omitted, and it does not reappear until 1895, when its re-enactment into our laws must he presumed to have been done for a p|urpose>, viz., to limit the operation of the writ of attachment. Before 1895 an attachment could be had in every action upon a contract, express or implied, for the payment of money, where the debt was not secured. Since then the writ can only issue in those cases arising on contracts, express or implied, for the direct payment of money, and, applying the definitions of the term “direct” as given above, the obvious intention of the legislature, can he made plain. The contracts now contemplated by Section 890, above, are such only as require the payment unconditionally and absolutely of a definite sum-.

As the sureties to the undertaking under consideration became liable only on condition that their principal, White, defaulted in tlie performance of his; contract, and then only for such sum as the indemnified party might recover as damages for the breach (not exceeding the sum mentioned in the bond), we are of the opinion that the bondl sued uplon is not such a contract as is contemplated in Section 890, above, and that the attachment was properly discharged.

The order discharging the attachment is affirmed.

Affirmed.


author: MR. COMMISSIONER CALLAWAY Per Curiam. Mr. Justice MilburN :

text:
    HEFFERLIN et al., Respondents, v. KARLMAN et al., Appellants.
    (No. 1,678.)
    (Submitted October 15, 1903.
    Decided November 16, 1903.)

      Appeal — Review of Facts — Conflicting F'vidence — Open Accounts — Interest —■ Demand — Institution of Suit — Partnership — Pleading—Sufficiency of Allegations — Cure loy Answer — Evidence — Variance —• Leading Questions — Trial —Instructions—Province of Jiiry.

    1. A verdict based upon substantially conflicting evidence will not be disturbed on appeal.
    2. A question asked in laying tlie foundation for the introduction of an account book, “whether or not this account book was kept in the regular course of business, and was made up at the time the items were purchased, or immediately thereafter,” was merely preliminary, and within the sound discretion of the trial court to permit.
    3. Under Civil Code, Section 3231, providing that every general partner is agent for the firm in the transaction of its business, and has authority in a proper manner to bind his copartners by agreement in writing, and Section 3250, making every general partner jointly liable with the others for all firm obligations, it was for the jury to determine whether a debt was created in the usual course of a firm business, and within the firm venture.
    4. The institution of suit on an open account for goods sold is a demand for its payment.
    5. Civil Code, Section 42S0, providing that every person entitled to recover damages, certain or capable of being made certain by calculation, the right to recover which is vested in him on a particular day, may recover interest from that day, authorizes a recovery of interest on an open account from demand.
    6. Where a complaint contains more than one count, introductory matter, such as the partnership capacity in which plaintiffs and defendants are brought into the action, need not be repeated after the first count.
    7. A defective allegation of partnership is cured by an answer which, denying all other allegations, admits the firm relation.
    8. An allegation that plaintiffs sold goods to defendants’ employes under an agreement with defendants that they would pay plaintiffs the value thereof, retaining the amount out of the wages of such employes, sufficiently states an original promise on the part of the employers to pay for goods sold to the employes.
    9. It will be presumed on appeal that an agreement' within the statute of frauds, set forth in the pleadings, was in writing; there being nothing in the record to show the contrary.
    10. Where a complaint states a cause of action, it cannot be attacked on appeal for defects which would have subjected it to a motion to make more specific, or to a special demurrer, in the absence of any objections to it in the court below.

      11. Allegations in a complaint seeking a recovery for merchandise sold to defendants’ employes under an agreement on defendants’ part to pay therefor * are not supported by proof of money paid out in cashing time checks for defendants, nor is evidence of such service admissible under such allegations.
    12. In an action for merchandise sold to defendants’ employes under a certain alleged agreement on the part of defendants to pay plaintiffs therefor, an instruction reviewed, and heldj inapplicable to the‘proof adduced and also erroneous because not sufficiently stating the nature of defendants’ alleged agreement to pay plaintiffs.

      Appeal from District Court, Park County; Frank Henry, Judge.

    AotioN by John W. Hefferlin and others against G. W. Karl-man and another, copartners as Nariman & Jennings. From a judgment for plaintiffs, and from an order denying a new trial, defendants appeal.
    Modified in part, and reversed in part.

      Mr. John J. Mcliatton, for Appellants.
    Every general partner is the agent of the partnership, in the transaction, of its business, and has authority to do' whatever is necessary to carry on such business in the ordinary manner. (Civil Code, Sec. 3231 et seq11 Am & Elng. Ehcy. of Law, 989, note 1.) He has no authority to do any act not within the scope of Section 3231, Civil Code. (See Section 3232, Civil Code.)
    One member cannot be made liable for the acts of another ■within the scope of the partnership' business unless it is proved that he assented to it or subsequently, with full knowledge of the facts, ratified it. (Goodman v. White, 25 Miss. 163; Hotchin v. Kent, 8 Mich. 526; Clayton v. Hardy, 21 Mo. 536; Welles v. March, 30 N. Y. 344; Lang v. Carter, 3 Ired. Law, 238; Hendrie v. Berkowitz, 31 Cal. 113; Curry v. White, 51 Cal. 530; California Bank v. Sayre, 85 Cal. 102; Steinhart v. Fyhrie, 5 Mont. 463.)
    One partner has no authority to bind the firm to answer for the debt, default or miscarriage of another without express authority or subsequent ratification. In an action against a trading partnership' the court will decide as a matter of law whether the contract was within the implied powers, of a partner, but as against a non-commercial partnership., each ease must be decided upon its. own facts, and in order to hold the firm it must be affirmatively established that the acting partner had the power to make the contract in question. (IT Am. & Eng. Ency. of Law, 994, note 14; Judge v. Braswell, 18 Bush (Ivy.), 69, 26 Am. Pep. 185; Pooley v. Whitmore, 10 Heisk. (Tenn.), 626, 27 Am. Pep. 733.) :
    Unless it affirmatively appears that the giving of guárannos was necessary for the carrying on of the business of the firm in the ordinary way, one of the partners has no implied authority to bind the firm by them. (1 Bindley on Partnership, p. 13S, notes; Brettel v. Williams, 4 Eix. 623; Moran v. Prather, 23 Wall. 492.)
    A special promise to. answer for the debt, etc., of another is invalid unless some note or memorandum thereof be in writing and sxibseribed by the party to be charged, or his agent. (Code of Civil Procedure, Secs. 3276, 3277; Civil Code, Sec. 2185; King v. Benson, 22 Mont. 256; 8 A]m. & E'ng. Ency. of Law, 673-684; Luce v. Zeile, 53 Cal. 54.)
    An agent’s declaration as to the terms of his authority are incompetent. (Civil Code, Sec. 3095 ; Omaha, etc. Go. v. Tabor, 21 Pac. 925-927; Marker v. Dement, 9 Gill. 16; James v. Stockey, 1 Wash. C. C. 330; Wilsons. Harris, 21 Mont. 374, 421-22.)
    The earning of wages by the employes of the defendant being a condition precedent to the right of recovery upon the second count of the complaint (Civil Cede, See. 1950 et seq.), the fact that the persons named therein had earned wages or that the defendants were indebted to them, on account of wages, was a condition precedent to the right of recovery upon this count, and the same should have been pleaded. (Code of Civil Procedure, Sec. 746; 4 Eincy. PI. & Pr. pp.. 627-632, 636; Wolf v. Marsch, 54 Cal. 228; Tiedman on Com. Paper, See. 26; Moody v. Mew-mark, 121 Cal. 446; 7 Am. & Eng. Eincy. of Law (2d. Ed.), 111, notes; Toombs v. Mining Co., 15 Nevada, 444; Conrad Nat’l Banh v. G. N. By. Co. (Mont.), 61 P'ae. 1.)
    Tbe second count isi defective in that a cause of action is not stated therein as required by law. Each cause of action must be complete in itself. (McKay v. McDougal, 10 Mont. 488-500; 4 Eiicy. of PL & Pr. p. 620; Ilaskell v. Haskell, 54 Cal. 260.)
    Where instructions are contradictory upon a material point the judgment must on this account be reversed. (Kelly v. Cable Co., 1 Mont. Ti; Flick v. Gold Hill Co., 8 Mont. 305; Heil-bronner v. Lloyd, 11 Mont. SOY.)

      Mr. John T. Smith, for Respondents.
    The second error specified is, that the court permitted a leading question to be asked the witness, ITenry Heiferliu. The question was merely introductory, and designed to save time in unimportant parts of the evidence, and it vras a matter of judicial discretion, and is not a ground upon which a verdict can be set aside. (G-reenleaf on EVidemee, 13 Ed. Vol. 1, See. 435; Moran v. Abbey, 63 Cal. 56; People v. Glarry, 72 Cal. 60.)
    As to the objection that the second cause of action is not complete in itself, in the absence of any specified defect, it is sufficient to cite “Remedies and Remedial Rights,” by Mr. Pomeroy, 2d Ed. Sec. 575; McKay v. McDougal, 19 Mont. 488.
    The Civil Code of the state of Montana, Section 2231, provides that “Every general partner is the agent of the partnership in the transaction of its business, and has authority to do whatever is necessary to> carry on such business in the ordinary manner,” etc. In this case no> special partnership: was either pleaded or proven, and certainly there is nothing in the records to show that respondents had any notice of any limited partnership, if any there were. (Lomme v. Kintzing, 1 Mont. 290.)
    It was the province of the j ury to determine whether the purchase of the merchandise sued for, and the taking up of the time checks, was necessary to carry on the business of the appellants in tbs ordinary manner. Tbis rule is tbe sanie, wbetber applied to trading partnerships, or 11011-trading partnerships. (Dowl-ing v. The Nafl Exchange Panic, 145 TI. S. 516, 36 L. 797; Lindley 011 Partnership, 2d American Ed. (Ewell), 361; McDonald v. Clough et al., 14 Pae. 121; Manville v. Parhs et al 2 Pac. 212; Greenleaf on Evidence, 13 Ed. Sec. 485.) ■
   MR. COMMISSIONER CALLAWAY

prepared the opinion for the court. - .

This is an appeal from a judgment entered against defendants upon the verdict of a jury, and from an order denying their motion for a new trial.

The complaint is in two counts, which we shall consider separately :

In the first' count plaintiffs allege themselves to be co-partners, and charge that a like relation exists between defendants. Then follows an allegation that between the 15th day of September, 1899, and the 21st day of December, 1899, the plaintiffs sold and delivered to the defendants, at their request, goods, wares and merchandise amounting to-, and of the value of, $1,679.74, which sum the defendants agreed to pay plaintiffs, and that no part thereof has been, paid. The defendants make general denial to this count, except that they admit themselves to be copartners.

Defendants assert that the evidence is insufficient to sustain the verdict. A discussion of the evidence in detail will serve no useful purpose. Suffice it to say that we have examined the ’ record carefully, and find a substantial conflict upon all disputed points^. The defendants, Nariman & Jennings, were railroad contractors engaged in building a railroad at Trail Creek, in Park county1. At the trial the plaintiffs claimed that one Dunlevy was defendants’ foreman, and that, as such foreman, he opened an account with them on defendants’ credit, and with the understanding that Nariman, the partner immediately in charge of the business at Trail Creek, would make definite arrangements concerning' tbe account; that in about two- weeks thereafter Nariman confirmed what Dunlevy bad' said, and authorized plaintiffs to furnish him what he wanted for his “camp.” It was necessary to provide for a number of men who were in Dunlevy’s charge. Plaintiffs introduced evidence tending to show that both Nariman and Jennings, after the commencement of the suit, acknowledged the correctness of the account, and said it should be paid. Plaintiffs’ proof tended to show that Nariman’s statements and agreements amounted to an original promise on the part of Nariman & Jennings — in other words, that defendants were the principals who- dealt with plaintiffs. Defendants claimed that Dunlevy was not their foreman, but was merely a subcontractor, and denied that they, or either of them, had ever authorized the running of the account, or promised to pay it, or acknowledged its correctness. They contended that plaintiffs opened the account with Dunlevy as principal, and should look to him for their pay. The jury heard the testimony, observed the witnesses upon the stand, and found for the plaintiffs. This court will not undertake to disturb the verdict of a jury, predicated upon a substantial conflict in the evidence. (Nelson v. Great Northern Ry. Co., 28 Mont. 297, 72 Pac. 642, and cases cited.) We shall therefore pass to- some of the alleged errors of law occurring at the trial to which defendants took exception. „

Counsel for plaintiffs offered in evidence an account book denominated “Exhibit A,” to which defendants objected on the ground that no sufficient foundation had been laid to warrant its introduction. Then this question was asked: “I will ask you, Mr. Hefferlin, whether or not this account book was kept in the regular course of business, and was made up at the time the items were purchased, or immediately thereafter?” This qustion was objected to on the ground that it is leading. The court overruled the objection. The witness answered, “It was; yes, sir,” and proceeded to testify at length concerning his method of keeping books as well as upon other matters. After a considerable period of time the book was offered in evidence again without objection on part of the defendants. The question, however, was merely preliminary, and it was within the sound discretion of the court to permit it to be asked. Speaking on a similar point, the Supreme Court of California said: “Four or five specifications of error relate to rulings made by the court in denying objections by counsel for plaintiff to leading questions asked by counsel for Heffner in the direct examination of his witnesses. But these are not errors for which a new trial will be granted. We are not aware of any ease, in which a verdict has been set aside for the reason that leading questions, although objected to, have been allowed to be put to- a witness.' Green v. Gould, 3 Allen, 466; Hopkinson's Adm’r v. Steel, 12 Vt. 582; Parsons v. Huff, 38 Me. 137; Mershon v. Hobensack, 22 N. J. Law, 372. And the reason is that the examination of a witness in the. trial of a case is a matter within the sound discretion of the trial court, who may, in the exercise of that judicial discretion, allow1 or disallow1 leading questions. Sections. 2044-2046, Code Civ. Proc. A matter resting in judicial discretion is not reviewable in an appellate court; it is only the abuse of such a discretion of which we will take cognizance. In this case no such, question is presented by the record.” (Moran v. Abbey, 63 Cal. 56.)

Defendants also contend that the court committed error in allowing plaintiffs’ witnesses to testify to' conversations had with defendant Nariman, because, as they assert, “neither one of the partners had a right to assume any obligations of a third person, or promise to pay the indebtedness of a third person, so as to bind his copartner.” Hnder plaintiffs’ theory of the case, defendants did not assume any obligation óf a third person, nor did they agree to pay a third person’s indebtedness. Plaintiffs contend that the action of Nariman in agreeing to pay for all of Dunlevy’s purchases was an original promise on the part of Nariman & Jennings. The goods which Dunlevy bought before Nariman came to plaintiffs’ store were all paid for by Nariman on December 2d. The other goods were bought after tbe alleged arrangement between tbe plaintiffs and Nari-man was made.

Our Civil Code (Section 3281) provides: “Every general partner is agent for tbe partnership in tbe transaction of its business, and bas authority tot do whatever is necessary to> carry on such business in tbe ordinary manner, and for this purpose may bind bis copartners by an agreement in writing.”

Section 3233 provides: “A partner is not bound by any act of a copartner, in bad faith toward him, though within tbe scope of tbe partner’s powers, except in favor of persons who have in good faith parted with value in reliance upon such act.”

It is not asserted by defendants that any of tbe acts of which they complain were tainted with bad faith, nor is there any allegation in defendants’ pleadings that their partnership was not a general one. So far as the record discloses, they were general partners. “Every general partner is liable to third persons for all the obligations of the partnership, jointly with his co-partners.” (Cavil Code, Sec. 3250.) It was within the province of the jury to determine from the evidence adduced whether the debt created was in the usual and ordinary course of defendants’ business, and within the scope of their partnership adventure; and, if it was, the individual member who made the purchases had lawful authority to bind his partner thereby. (Dowling v. Exchange Bank, 145 U. S. 516, 12 Sup. Ct. 928, 36 L. Ed. 795.) “The general principle which lies at the foundation of a partner’s liability is that every partner has full and absolute authority to bind all the partners by his acts or contracts in relation to the business of the firm, in the same manner and to the same extent as if he held full powers of attorney from all the members.” (Manville v. Parks, 7 Colo. 128, 2 Pac. 212.)

Defendants say that the court erred in giving instruction No. 1, in which the jury are told that if they find from the evidence that plaintiffs did sell and deliver to the defendants, at their request, goods, wares and merchandise, as set forth in the complaint, and that the defendants had not paid therefor, they should find for tbe plaintiffs, state in tbeir verdict the. value of the goods sold, not to exceed the sum mentioned in the first count, and allow interest thereon at the rate of 8 per cent, per annum from December 22, 1899. Special objection is made to that portion of the instruction which refers to the allowance of interest. This involves a question, of considerable importance. As observed above, the suit is brought upon an open account for goods, wares andi merchandise alleged to have.been sold to defendants by plaintiffs between September 15, 1899, and December 21, 1899. So far as the record shows, plaintiffs made no demand upon defendants for payment after December 21st and prior to the commencement of this suit. Of course, the beginning of the suit was a demand; but we are unable to ascertain from the record when it was begun, as the case was tried upon the amended complaint, which was filed March 17, 1900. We have two sections in the Civil Code which treat of interest upon accounts. Section 2585, as amended by Act approved February 28, 1899 (Sess. Laws 1899, p. 125), reads as follows: “Unless there is an express contract in writing fixing a different rate, interest is payable on all moneys at the rate of eight per cent, per annum after they become due on any instrument of writing except a judgment, on an account stated, and on moneys lent or due on any settlement of accounts from the date on which the balance is ascertained;, and on moneys received to the use of another and detained from him. * * *” This section, it will be noticed, in so far as it relates to accounts, applies when the amount due the creditor is determined — when a balance is ascertained. From, such time a certain sum of money is due the creditor.

Section 4280 reads as follows: “Every person who is entitled to recover damages certain or capable of being made certain by calculation, and the right to recover which is vested in bim on a particular day, is entitled alsoi to recover interest thereon from that day, except during such time as the debtor is prevented by law or by the act of the creditor from paying the debt.”

Does-this section apply to a case like tbe present? We con-elude that it does. What, then, is tbe “particular day” from wbicb tbe plaintiffs are entitled to charge interest? Speaking of interest upon open, running accounts, Mr. Sutherland, in bis work on Damages (Section 322), says: “Where there is no definite credit tbe parties deal upon tbe assumption by tbe debtor that, although be has no claim to forbearance, yet payment will be requested, and on part of tbe creditor that tbe account has no time to run, and will be paid on demand-. Hence interest is not payable before demand, for tbe same reason that it is never payable, except by) agreement, while tbe debtor has a right to retain tbe money. In such cases it is not payable on tbe ground of default until tbe creditor has put tbe debtor under a present duty by rendering tbe account or requesting payment.” We are therefore of tbe opinion that, as interest does not begin to run upon an open account until a demand basi been made for tbe payment thereof, tbe plaintiffs may not be allowed interest in this action prior to tbe beginning of tbe suit, in tbe absence of allegation and proof of a prior demand.

There is no merit in any of tbe other objections made by defendants to tbe instructions, with the- exception of instruction 2, which applies to tbe second count only.

As to tbe second count. This reads as follows: “For other and further cause of action, tbe plaintiffs complain and allege that 'being partners as aforesaid, and tbe defendants, G. W. Nariman and M. Jennings, being partners doing business as Nariman & Jennings, tbe plaintiffs, between tbe 15th day of September, 1899, and tbe 21st day of December, 1899, under and by virtue of an agreement entered into between tbe plaintiffs and tbe defendants, sold and delivered to divers employes of tbe defendants goods, wares and merchandise of tbe amount and of tbe value of one hundred and sixty-five dollars and ninety-five cents, with tbe agreement and understanding with tbe said defendants that they, tbe said defendants, would pay tbe plaintiffs tbe value of said goods, wares and merchandise so sold to their employes, retaining tbe amount thereof out of tbe wages of sncb employes”; tbat, under said agreement and understanding witb tbe defendants, tbe plaintiffs sold and de^ livered goods to tbe said employes of tbe defendants; and then follows a list of persons to wbom plaintiffs allege tbey sold tbe goods, witb amounts. T'ben tbis allegation: “Tbat tbe plaintiffs, under said agreement witb tbe defendants, took and have assignments of tbe time checks of the several parties to- wbom tbey sold goods aforesaid, as evidence of payment under said agreement witb tbe defendants, and tbat each and all of tbe several sums so paid became and were due December 21, 1899, and tbat tbe plaintiffs are entitled to tbe sum of $165.95. That' no part thereof baa been paid to plaintiffs.” Tbe amounts of goods which these employes are alleged to have purchased are tbe same in amount as tbe time checks mentioned. It is claimed by defendants that said count does not state facts sufficient to constitute a cause of action for two reasons.

Tbe first objection is tbat tbe plaintiffs’ allegation, “For other ’and further cause of action, tbe plaintiffs complain anl allege tbat, being partners as aforesaid, and tbe defendants, Gf. W. Nariman and M. Jennings, being partners doing business as Nariman & Jennings,” is an insufficient statement of tbe respective partnership relations, which is not cured by reference to tbe first count by use of tbe words “as aforesaid.”

Tbe rule announced in McKay V. McDougall, 19 Mont. 488, 48 Pac. 988, does not extend so far as to compel tbe repetition of mere formal matters. “It should be held to embrace those material and issiiable facts- * * * which constitute tbe cause of action.” Introductory matter, such as tbe character in which tbe plaintiffs and defendants are made parties to an action, need not be repeated in a succeeding count or cause of action. See Polneroy’s Code Remedies, 575, referred to in McKay v. McDougall, supra.

In their answer to tbe second count, defendants, while denying all of tbe other allegations of said count, admit themselves to be copartners, and thus supply tbe alleged defect, so far as their own partnership relation is concerned.

"Defendants also claim tbat plaintiffs’ pleading is obnoxious under the rule laid down in Conrad National Bank v. Great Northern Ry. Co., 24 Mont. 178, 61 Pac. 1, because “it is not alleged in the second count of the complaint that the defendants agreed to pay for the amount of goods sold to the! alleged employes, but were to retain the same out of their wages.” The allegation is, “with the agreement and understanding with the said defendants that they, the said defendants, would pay the plaintiffs the value of said goods, wares andi merchandise so1 sold to their employes, retaining the amount thereof out of the wages of such employes.” In the case at bar it reasonably appears that the defendants agreed to pa.yi for the goods sold their employes by plaintiffs, “retaining the amount thereof out of the wages due the employes.” The rule laid down in Conrad National Bank v. Great Northern Ry. Co., supra, is that “either the express promise should be alleged, or the facts fropn which it may be implied, as that the credit was extended to the employer, and not to the-employe.” It seems from this pleading that the plaintiffs, upon the agreement, looked to the defendants, and not to the employes, for the payment of the alleged' amounts-. The undertaking of the defendants was therefore an original promise.

But conceding that the agreement alleged1 in this count would be within the statute of frauds unless in writing, we must presume it to be a written agreement, there being nothing to show, the contrary. (Sweetland v. Barrett, 4 Mont. 221, 1 Pac. 745 Maygerv. Cruse, 5 Mont. 485, 6 Pac. 333.)

So* far as we can ascertain from the record, no' objection was made to this pleading in the court below, and while it is loosely drawn, and would have been subject to a motion to> malee more specific, or to a special demurrer under Subdivision 7, Section 680, Code of Civil Procedure, it does state a cause of action,, and cannot be attacked by defendants, on account of the defects they urge at this time.

The only testimony in support of this second count is substantially as follows: The witness-Dunlevy testified: .“The papers1 which you now show me, marked Exhibits D to- E, have my signature attached to them. I signed themj all as Kalph Dunlevy, contractor. The word ‘Contractor’ was printed on them. I did not sign Karlman & Jennings, by their foreinan, because it was not necessary. I say these checks were signed by me.” The time checks were in the following form:

No. 395. Karlman & Jennings, K. R. Contractors.
Butte, Montana, Dec. 18, 1S99.
Mr. Donnelly lias worked 12.G days in the month of December at $2.50 per day.
Total . $31 50
Less deductions for board. 13 50
Less deductions for merchandise. 4 30
Less deductions for hospital...<. 50
Total deductions . $18 30
Balance due . 13 20
Ralph P. Dunlevy, Contractor.
Payable.
Subject to legitimate corrections.

At the time they were offered in evidence, defendants objected to their introduction, but the objection was overruled. Thereafter Dunlevy, being called by defendants for further cross-examination, testified as follows: “I told Karlman that we had to issue time checks for the purpose of getting money to pay the men off, and he said it was all right; and I asked Henry Heffer-lin if he would cash the time checks, and he said he would.” Counsel for defendants then moved toi strike out this evidence for the reason that it is not alleged in. the complaint that the plaintiffs cashed anyi of the time checks for the defendants* Karlman & Jennings, or either of them, and the suit is not brought for cash paid out or expended. ■ The court overruled the motion. It is evident that this was error. There was a fatal variance between defendants’ proof and the allegations of the pleadings. Moreover, plaintiffs utterly failed to support this count by any material testimony whatsoever. The defendants claim the evidence is insufficient to justify a verdict upon this count, and of this contention there can be no doubt. Under this state of facts, the court erred in giving instruction No. 2, which reads as follows: “The court instructs the jury that the plaintiff's have sued the defendants in the second count of their complaint for goods, wares and merchandise delivered by them to various employes of the defendants, amounting in tlie aggregate to the sum of one hundred! and sixty-five dollars and ninety-five cents ($165.95'), for which it is alleged in the amended complaint herein that the defendants agreed to pay to the plaintiffs. And if the. jury find and believe from the evidence that under such agreements the plaintiffs had taken up and had duly'assigned to them certain time checks, then you will find for the plaintiffs for the amount of the time checks paid by them, not to exceed the sum mentioned in the second count of their complaint, as shown by the evidence, together with interest thereon at. the rate of 8 per cent, per annum from December 22, 1899.'’ This instruction is not applicable to the proof adduced. It is also subject to criticism because it does not sufficiently state to the jury the nature of defendants’ alleged agreement lo pay plaintiffs.

We are therefore of the opinion that this case should be remanded to the district court, with directions to modify the judgment founded upon the- first count by computing interest on the sum- of $1,619.14 a.t the rate of 8 per cent, from the date of filing the complaint, provided that be not prior to December 22, 1899, that being the date from which interest is claimed in the prayer of the complaint; when so modified that the judgment and order should be affirmed; and that as ta the second count, the judgment and order should be reversed and a new trial ordered.

Per Curiam.

For the reasons given in the foregoing opinion it is ordered that this cause be remanded to the district court' with directions that the judgment founded upon the first count be modified by computing interest therein from the date of filing the complaint, provided that be not prior to December 22, 1899, and upon the entry of the judgment as modified, the judgment and order be affirmed; and as to the second count, that the judgment and order be reversed and, a new trial granted.

Mr. Justice MilburN :

I concur, except as to the time when interest should run; under the statute, on an open account. As stated in the opinion, said Section 4280 applies to this case, but I cannot agree with the mlajority of this court in adopting the conclusion of the commissioners that “ ‘the particular day’ from which the plaintiffs are entitled1 to draw interest” is the day of filing the complaint. The day of the right of recovery is not vested in the creditor on the day of filing the complaint, but when the goods are sold and delivered, in the absence of an agreement to the contrary. The day of the right to recover the ¡nice and the clay of the right to recover interest are the same, or the language of the section means nothing, in my opinion. I cannot discover that. Mr. Sutherland, whose language is cited in the opinion, was discussing any such statute as Montana has. In the absence of an agreement to pay interest after demand, and only thereafter, I incline to the view that the debtor is liable for interest from the day when the creditor has the right to> sne; not merely from the day, when he actually sues. I think the judgment and order of the district court as to the first cause of action should be affirmed in toto. I concur as to the second cause of action.


author: MR. COMMISSIONER POORMAN Peu C'URJAm.

text:
    STATE ex rel. DAVIS, Relator, v. DISTRICT COURT OF THE FIFTH JUDICIAL DISTRICT, Respondent.
    (No. 1,688.)
    (Submitted October 17, 1903.
    Decided November 16, 1903.)

      Irrigation — -Water Ditch — Right of Way —- Condemnation— Certiorari to Review — Propriety — Jurisdiction of Lower Court — Remedy by Appeal.

    1. Code of Civil Procedure, Section 2210, relating to the condemnation of rights of way for water ditches, provides that all such proceedings must be brought in the county where the land is situated. Held that, after filing a complaint in the proper county, plaintiff could not change the place of trial at his own instance to another county merely by a recital in the summons that the hearing would be had there, and the order made at such hearing was without jurisdiction.
    2. Three prerequisites to the granting of a writ of certiorari are indispensable and must coexist: (1) Excess of jurisdiction in the court or judge making the order complained of; (2) absence oi the right of appeal; and (3) lack of any plain, speedy and adequate remedy other than certiora/ri.

    3. Code of Civil Procedure, Section 2214, relating to the condemnation of rights of way for water ditches, and providing that any party can appeal to the supreme court from any findings or judgment, as in other cases, precludes a resort to certiorari.

    4. "Where a resort to certiorari to review an order condemning land for a water ditch is precluded by the right of appeal given by statute, the question whether there is any third plain, speedy and adequate remedy is immaterial.
    ApplicatioN for certiorari by, tbe state of Montana, on tbe relation of A. J. Davis, against tbe district court of the Fifth judicial district of such, state.
    Application denied.

      Mr. R. L. Clinton, for Relator.

      'Mr. J. N. Kirk, and Messrs. McConnell & McConnell, for Respondent.
   MR. COMMISSIONER POORMAN

prepared tbe opinion for tbe court.

This is an original application for writ of certiorari to, have an order of condemnation made by tbe judge of tbe district court annulled on tbe ground that it was made in excess of jurisdiction. Tbe action in which tbe order was made was instituted in tbe district court in Madison county, Montana, for tbe purpose of having a certain stripi of land! therein condemned as a right of way for 'a water ditch. Tbe complaint w:as filed April 10, 1901,.and a summons was issued on that day citing defendant to appear before tbe judge of said district court at chambers at Boulder, in Jefferson, county, Montana, on April 2.2, 1901, and- show cause why the property described in the complaint should not be condemned. On April 20th tbe defendant filed in Madison county a demurrer to tbe 'complaint on tbe ground that no> cause of action was stated .therein,’ and that tbe court bad no jurisdiction of tbe person, or of.the subject-matter of tbe action. A liearing was bad in Jefferson county, at wbicb tbe defendant appeared specially by bis attorney, and objected to tbe jurisdiction of tbe court, and to any proceeding being had in Jefferson countyi Tbe judge, sitting in chambers, however, made an order of condemnation, which was afterwards filed with the clerk of tbe court of Madison county. Tbe record also contains certain other matters wbicb tbe relator claims are irregularities in tbe proceedings of tbe district judge, which, however, are not material to the question here presented.

There are three indispensable prerequisites to tbe granting of a writ of certiorari enumerated in Section 1941 of tbe Cbde of Civil Procedure, as that section is construed in State ex rel. King et al. v. District Court, 24 Mont. 494, 62 Pac. 820, and State ex rel. Whiteside v. District Court, 24 Mont. 539, 63 Pac. 395, to wit: (1) Elxcess of jurisdiction in tbe court or judge making tbe order complained of; (2) absence of tbe right of appeal; and (3) lack of any plain, speedy and adequate remedy other than certiorari. These prerequisites will be considered in tbe order enumerated.

Condemnation proceedings are special proceedings provided for by tbe statute. (Section 2210 et seq., Code Civ. Proc.) Section 2216 of this statute provides that all such proceedings must be brought in tbe county where tbe land is situated. This implies that they must also be tried there, unless transferred by the court or judge in some manner authorized by law. (City of Santa Rosa v. Fountain Water Co., 138 Cal. 579, 71 Pac. 1123; California S. R. Co. v. Southern Pac. R. Co., 65 Pac. 394, 4 Pac. 344; City of Helena v. Rogan et al., 26 Mont. 452, 68 Pac. 798; Allport v. Helena B. V. & B. R. Co., 12 Mont. 279, 29 Pac. 966.) To hold that the plaintiff may, after filing his complaint in the proper county, change the place of trial at his own instance, and without the knowledge or consent of defendant, to some other county, merely by reciting in the summons that, the hearing will be had in such other county (and this was the proceeding in this case), would be to make this section meaningless. If the plaintiff may move the action to some other county by merely naming the place of hearing in his' sum|mons, he might, with the same propriety and authority, remove 'the case to some other judicial district. In the last case cited above, the court made an order under similar circumstances, and under a similar statute, which on appeal was held to have been made without jurisdiction, and was therefore void. There can be no doubt that the action of the judge of the district court in holding this hearing in Jefferson county was not only in excess of jurisdiction, but without jurisdiction, and the order of condemnation based thereon is wholly void.

Section 2214, Code of Civil Procedure, after enumerating the prerequisites to the granting of an order of condemnation, says: “The plaintiff or defendant, or any party interested in the proceedings, can appeal to- the supreme court from any finding or judgment made or rendered under this title, as in. other cases.” It is very clear that under this statute the defendant had an appeal from this order. Prior to- the decision in State ex rel. King v. District Court, supra, writs of certiorari were issued by this court, though the party had an appeal,- where it was apparent that the appeal was not wholly adequate, or where the proceeding by certiorari was more expeditious or con venient. (State ex rel. Kenyon v. Laurandeau, 21 Mont. 216, 53 Pac. 536; State ex rel. Reins v. Sixth Judicial District Court, 22 Mont. 449, 57 Pac. 89, 145, 74 Am. St. Rep. 618; State ex rel. Bartlett v. District Court, 18 Mont. 481, 46 Pac. 259; State ex rel. Johnson v. Case, 14 Mont. 520, 37 Pac. 95.) This construction of Section 1941, supra, was clearly erroneous, and was changed in the cases cited in the 24th Montana, and in State ex rel. King v. District Court, supra; and it is now the settled law of this state that the three prerequisites mentioned in Section 1941, supra, must coexist, and that if there is either an appeal, or other plain, speedy and adequate remedy, certio-ra/ri does not lie; and if the order o-r judgment is not appealable, • but there is any plain, speedy and adequate remedy other than certiorari, the writ does not lie, and that even though the remedy by appeal may not be speedy or adequate. This latter case also contains a collection of decisions on this subject theretofore rendered by this court, and subsequent to that decision the doctrine announced1 therein has been adhered to. (State ex rel. Anaconda C. M. Co. v. Second Judicial District Court, 25 Mont. 504, 65 Pac. 1020; State ex rel. Leyson v. District Court, 26 Mont. 378, 68 Pac. 411; State ex rel. Riddell v. District Court, 27 Mont. 103, 69 Pac. 710.)

Whether the defendant in this action has or had any other plain, speedy and adequate remedy is immaterial, as his remedy by appeal was conclusive, so far as these proceedings are concerned.

The writ should be quashed and this proceeding dismissed on the ground and for the reason that the statute, as interpreted by the former decisions of this court, all rendered prior to the making of this application, declare that the writ of review cannot be resorted to where an appeal lies.

Peu C'URJAm.

Por the reasons given in the foregoing opinion, the writ heretofore issued is vacated, and the application is dismissed.


author: MR. JUSTICE HO'LLOWAY

text:
    HARRINGTON, Respondent, v. STROMBERG-MULLINS COMPANY, Appellant.
    (No. 1, 973.)
    (Submitted November 18, 1903.
    Decided November 28, 1903.)

      Conversion — Action by Chattel Mortgagee — Pleading—Complaint — Sufficiency.
    In conversion by a chattel mortgagee plaintiff must allege (1) tbat at tbe date of tbe conversion be was tbe owner and bolder of tbe notes in question; (2) tbat tbe notes bad not been paid, or, if paid in part, tbe amount then due; (3) tbat be bad some property interest in tbe chattels converted, either general or special, and was either in actual possession or entitled to tbe possession thereof; and (4) the value of tbe property converted.

      Appeal from District Gourt, Silver Bow County j William Clancy, Judge.

    AotioN by Cor. O. HarringtoR against tbe Stromberg-Mul-Hrs Company, a corporation. Prom a judgment for plaintiff, defeRdaRt appeals.
    Reversed.

      Messrs. Kirk & Clinton, for Appellant.

      Mr. J. K. Mealy, for RespoRdeRt.
   MR. JUSTICE HO'LLOWAY

delivered tbe opinion of tbe court.

This is au actiou in conversion. Tbe complaiut alleges tbat tbe defeudaut is a corporation; tbat or August 1,1901, Timothy P. Harrington executed aud delivered to tbe plaintiff aud re-spoudeut, Cor. O. HarriugtoR, bis promissory Rote for $500, due oue year after date,- witb interest at 6 per cent, per annum, aud to secure tbe payment thereof executed a chattel mortgage upou certain personal property; tbat or August 16, 1901, tbe said Timothy P. HarriugtoR executed aud delivered to plaiutiff bis certain other promissory note for tbe. sum of $500, due oue year after date, witb interest at 1 per ceut. per mouth, aud, to secure tbe paymeut thereof, executed a secoud chattel mortgage upou tbe same persoual property; tbat these mortgages were properly verified, aekuowledged aud filed for record in tbe office of tbe county clerk and recorder of Silver Bow county; tbat tbe defendant has entered into possession of tbe property described in tbe chattel mortgages, and has converted tbe same to its own use, and has thereby deprived tbe plaintiff of bis security, to bis damage in tbe sum of $1,000, for which amount judgment is demanded. Tbe defendant made answer, denying tbe material allegations of the complaint, and pleading fraud in tbe execution of tbe mortgages. To this answer plaintiff filed a reply. Tbe cause was tried to- a jury, which returned a verdict in favor of tbe plaintiff for $1,000, and from tbe judgment entered thereon this appeal is taken.

Tbe only question for determination is, does the complaint state facts sufficient to constitute a cause of action ? -

Tbe action is by a mortgagee, whose only interest in tbe property, so far as tbe complaint discloses, is tbe lien secured to a mortgagee out of possession. Tbe date of tbe alleged conversion is nowliere stated. It may have been at any time prior to the filing of the complaint, November 15, 1901, and was presumably subsequent to tbe execution of tbe second mortgage. Put tbe mere allegation that tbe first note was executed on August 1st-and tbe second on October 15, 1901, does not imply continued ownership or nonpayment of tbe notes, or either of them. If tbe plaintiff was not tbe owner of tbe notes at tbe date of tbe alleged conversion, or if tbe notes bad been paid, be could have suffered no injury; for a transfer of tbe notes would operate to transfer tbe mortgages, or payment of tbe notes would operate to discharge tbe mortgages, and tbe necessity for an allegation that tbe plaintiff was tbe owner and holder of tbe notes in question, and that they bad not been paid, or, if paid in part, tbe amount then due upon them at tbe date of tbe alleged conversion is apparent.

Assuming that tbe allegations of tbe complaint are sufficient to show a special property interest in the plaintiff in tbe property described in tbe mortgages, tbe complaint is defective, in that it does not allege that tbe plaintiff was either in possession or entitled to the possession at tbe date of tbe conversion. Tbe party complaining “must have bad, when tbe goods were taken, a general or special property in them, and a right to tbe immediate possession.” (Wetzel v. Power, 5 Mont. 214, 2 Pac. 388; Reardon v. Patterson, 19 Mont. 231, 41 Pac. 956; 21 Ency. Pleading & Practice, 1062; Binnian v. Baker, 6 Wash. 50, 32 Pac. 1008.)

In order for tbe court properly to determine tbe measure of damages, two things must be made to appear-: (1) The amount due tbe plaintiff, and (2) tbe value of tbe property converted ; for, in tbe absence of any allegation of time spent or money expended in pursuit of tbe property, tbe plaintiff could not have been injured beyond tbe amount due him.

Section 4333 of tbe Civil Code fixes tbe measure of damages. Tbat section reads as follows: “Tbe detriment caused by tbe wrongful conversion of personal property is presumed to be: (1) Tbe value of tbe property at tbe time of its conversion, witb tbe interest from tbat tim'e; or, where tbe action bas been prosecuted witb reasonable diligence, tbe highest market value of tbe property at any time between tbe conversion and the verdict, without interest, at tbe option of tbe injured party; and (2) a fair compensation for tbe time and money properly expended in pursuit of tbe property.”

Under tbe pleadings in this case the second subdivision of this section can be entirely eliminated from consideration. Tbe value of tbe property at tbe date of conversion, witb interest; thereon, or tbe highest market value of tbe property at any time between tbe date of its conversion and the determination of tbe trial, provided tbat does not exceed! tbe amount due tbe plaintiff, is tbe utmost tbat be could recover; and, as it was necessary for him to prove tbe value of tbe property, an allegation of tbat value must have been contained in tbe complaint in order to admit the proof. This question bas been before this court, bas been fully considered, and ought now to be deemed finally determined. (Rochelean v. Boyle, 12 Mont. 590, 31 Pac. 533.)

In passing, we may say that the complaint alleges tbat tbe defendant was, at tbe date of tbe filing of tbe complaint, a corporation. There is no allegation tbat it was such at tbe time of tbe alleged conversion.

To summarize, then, tbe plaintiff must allege (1) tbat at tbe date of tbe conversion be w>as tbe owner and bolder of tbe notes in question; (2) tbat tbe notes bad) not been paid, dr, if paid in part, the amount then duej (3) tbat be bad some property interest in tbe chattels converted, either general or special, and was either in actual possession or entitled to tbe possession thereof; and (4) tbe value of tbe property converted. These are all necessary averments, without any one of which the complaint would be fatally defective. In the absence of these allegations, the complaint does not state a cause of action, and will not support the judgment rendered. The judgment is reversed, and the cause remanded.

Reversed and remanded.

Rehearing denied December 24, 1903.