author: MR' COMMISSIONER CALLAWAY

text:
    MUTH et al., Respondents, v. GODDARD et al., Appellants.
    (No. 1,914.)
    (Submitted April 27, 1903.
    Decided May 25, 1903.)

      Power of Attorney■ — Construction—Authority of Attorney— Trust Deed — Power of Sale — Right to Exercise — Effect of Death of Grantor.

    I. An attorney in fact authorized to sell, convey, and mortgage the grantor’s property may execute a trust deed conveying the grantor’s individual property as security for the payment of a debt due from a firm of which he is a partner.
    2 where a person is liable on notes executed by a firm in payment of firm debts because a partner in the firm, a guaranty of the payment of the notes, executed by his attorney in fact, imposes no additional obligation.
    3. under Code of Civil Procedure, Section 3821, providing that a power of sale may be conferred on.the mortgagee or any other person, to be exercised after a breach of the obligation for which the mortgage is security, and Code of -Civil Procedure, Section 1293, declaring that, if a mortgage confers a power of sale after a breach, foreclosure may be had, an attorney in fact under a general power of attorney to sell, convey, and mortgage the grantor’s property may secure the payment of his grantor’s -debt by executing a trust deed conveying the grantor’s property, and authorizing the trustee or his successor in trust to sell the same in case of nonpayment of the indebtedness.
    4. Whether an attorney in fact under a general power of attorney may execute a trust deed containing a stipulation for attorney’s fees in case the deed is enforced by an action is immaterial wnere the trustee in the deed ■ sells the property under a power of sale therein granted.
    5. A trust deed, given as security for a debt, and containing a stipulation authorizing the trustee to sell the property after default, authorizes the trustee to exercise the power after the grantor’s death; it being a power coupled with an interest, and therefore not revoked by the grantor’s death.
    6. where a trust deed, given as security for a debt, conveys to him the legal title to the property therein described, and authorizes him to sell the same after default, the death of the grantor does not affect the trustee's right . to exercise the power of sale.
    7. under Code of Civil Procedure, Section 2603, authorizing the foreclosure of mortgages though the mortgagor is dead, a trustee in a trust deed given as security for the payment of a debt, and authorizing him to sell the property after default, may, after the death of the grantor, exercise the power of sale without reference to the administration of the grantor’s estate.

      Appeal from District Court, Lewis cmd Clarice County; J. M. Clements, Judge.

      Suit by William Muth, as administrator of the estate of Albert G-. Clarke, deceased, and others, against L. A. Goddard and others, to restrain defendants from selling lands described in a trust deed under the power of sale therein granted. From an order granting the injunction, defendants appeal.
    Reversed.
    STATEMENT OE THE OaSE.
    On the tenth day of October, 1890, Albert G. Glarke, Sr., was about to leave the state of Montana, to be absent during the winter, and on that d!ay he executed to- his son, Charles A. Clarke, the following power of attorney:
    “Know all men by these presents^ that I, Albert G. Clarke; Sr., of Helena, Lewis and Clarke County, Montana, have made, constituted and appointed and by these presents do- make', constitute and appoint Charles A. Clarke, of said city, county and state aforesaid, my trae and lawful attorney for me and in my -name, place and stead, and for my use and benefit to ask, demand, sue for, recover, collect and receive, all such sums of money, debts due, accounts, interest, dividends, annuities and ■demands whatsoever as are now or shall hereafter become due, owing, payable or belonging to me, and have, use and take all lawful ways and means in my name or otherwise for the recovery thereof by attachment, arrest, distress or otherwise, and to compromise and agree for the same and acquittances or other sufficient discharges of the same for me and in my name to make, seal and deliver; to grant, contract, agree for, purchase, receive and take, lands; tenements and hereditaments, and to accept the seisin- and possession of all lands and all debts and other assurances in the law therefor, and to lease, let, demise, bargain, sell, remise, release, convey, mortgage and hypothecate lands tenements, hereditaments upon such terms and conditions and under such covenants as he shall see fit, also- to bargain and agree for, buy, sell, mortgage, hypothecate and in any and every way and manner deal- in and with goods, wares and merchandise, choses in action, and other property in possession or in action, and to make, do andl transact all and every kind of business of wbat nature and kind soever, and also for me, and in my name and as my act and deed to sign, seal, execute and deliver and acknowledge such deeds, leases and assignments of leases, covenants, indentures, agreements, mortgages, hypother cations, bills of lading, bills, bonds* notes, receipts, evidences of debt, releases and satisfactions of mortgage, judgments and other debts and suck other instruments in writing of whatever kind and nature as may be necessary or proper in the premises; giving and granting unto my said attorney full power and authority- to do and perform all and every act and thing whatsoever requisite and necessary to be done in or about the premises, as fully to all intents and purposes as I might or could do' if personally present, hereby ratifying and confirming all that my said attorney shall lawfully do or cause to be done by virtue of these presents.”
    Albert G. Clarke, Sr., never revoked this power, and it ceased to be operative only at his death. In November, 1899, Mr. Clarke, Sr., lay in his last sickness. Nor quite a long time he had been a member of the firm of Raleigh & Clarke. This firm was then, November, 1899, owing about $35,000, about $23,000 of which sum was due the Union Bank & Trust Company, of which George L. Ramsey was cashier. The firm of Raleigh & Clarke was unable to pay the bank anything upon this indebtedness, and Ramsey notified W. B. Raleigh, who, with Albert G. Clarke, Sr., composed the firm, “that, unless the matter was fixed up> at once, he would attach Mr. Clarke,” to which Raleigh replied that he (Raleigh) had made every effort, but was at the end of his resources. Raleigh then sent for Charles A. Clarke, and acquainted him with the situation. In the meantime the power of attorney was placed of record. Then followed a series of negotiations extending over a number of days. The result was that Raleigh turned over all his property to Albert G. Clarke, Sr. As he said, “I turned over everything that I had; the interest in Raleigh & Clarke and 'everything; made a clean sweep.” He also, in the name of Baleigh & Clarke, executed to tbe Union Bank & Trust Company seven notes for tbe sumj of $5,000' eacb. These notes represented tbe money already dlue' tbe bank, and cask in band which the bank advanced to pay the; other creditors of the firm. Charles A. Clarke then, assuming to act under his power of attorney, indorsed the notes as follows.: “For value received, 1 hereby guarantee tbe payment of the within notes at maturity, or at any time thereafter, with interest as specified, until paid, waiving demand, notice of nonpayment, and protest. A. G. Clarke, by Charles A. Clarke, His Attorney in Fact.” And, likewise acting as his father’s attorney in fact, Charles A. Clarke thereupon executed to John H. Tucker, as trustee, and party of tbe second part, and! the Union Bank & Trust Company, party of the third part, a trust deed whereby he purported to convey: certain of his father’s real estate for the purpose of securing the payment of the seven promissory notes aforesaid. In this deed of trust it was stated that the grantor “has granted, bargained, sold and conveyed, and does by these presents grant, bargain, sell, convey, and confirm, unto' the said party of the second! p-art, with full power of substitution to his succesors in trust, and assigns, forever, the following described tracts or parcels of land,” etc. It was provided in the trust deed that in case of a default in the conditions thereof “the grantor herein does fully empower said trustee, original or substituted, bis successors or assigns, and it is hereby made his special duty, at the request of the holders of the obligation secured hereby, at any time made after default, as aforesaid, to take such steps as may he necessary for the collection of said debt, principal and interest, and to collect and sne for any rents dne or to become due on said premises, and without process of law to enter upon and take possession of or let said premises, and either before or after said entry, when the trustee, his successors or assigns see fit, to sell the property herein conveyed, or any part thereof, together or in parcels, at public auction, for cash or on credit, at a place-, time, and after the advertisement by him given, substantially conforming to and as required by law1 in the eases of sales on. execution at the time or the sale, and to execute and deliver to the purchaser or purchasers thereof good and sufficient deed or deeds in fee simple for the same, which shall vest the complete and unincumbered title of the said property, and be a bar against the grantor herein, his heirs or assigns, and all persons claiming under them or any of them, of all right, interest, or claim in or to said property and all parts thereof. * * In the trust deed it was provided that an attorney’s fee of five per cent, on the amount of the principal recovered should be a lien upon the property, and be taxed and collected as are other costs-, in ease the condi■tions of the indenture be enforced by an action in court.
    All these negotiations were completed on December 16, 1899. On December 23 following Albert G. Clarke, Sr., died. In due time the seven notes were presented in the form of a claim against the estate of Albert G. Clarke, deceased1, and allowed. Thereafter the said notes and trust, deed were assigned to one L. A. Goddard. Some time after the maturity of the notes, Goddard, through his attorneys, Cullen, Day & Cullen, commenced to execute the power of sale contained in the trust deed. Thereupon "William Muth, as administrator of the estate of Albert G. Clarke, deceased;, William H. Clarke, and Albert G. Clarke, Jr. (the two Clarkes claiming to be entitled to the whole of the residue of the said estate to- the exclusion of their brother Charles A. Clarke), as plaintiffs, commenced this action against the said L. A. Goddard, Cullen, Day & Cullen, and Charles A. Clarke, as defendants, to. enjoin the defendants from selling the lands described in the trust deed1 under the power of sale, etc. Upon the filing of the complaint a tempo*-Tiry restraining order was issued, together with an order to show cause why the injunction should not be granted.
    Upon the hearing of the order to show cause the court entered its order granting the injunction as prayed for. Front this order the defendants appeal.

      Messrs. Cullen, Bay & Cullen, for Appellants.

      Tbe power of attorney was broad, and comprehensive enough to authorize C. A. Clarke to execute the deed of trust in question. (Barr v. Schroeder, 32. Cal. 618; Wood v. McOaine, (Ala.), 42 Am. Dec. 613; Mechem on Agency, 1st Ed. Sec. 6, 304, 391; 18 Am. & Eng. E'noy. Law, 1st E!d. pi 873; Story on Agency, Secs. 61, 58, 59, 74; Marr v. Given (Me.), 39 Am. Dec. 600; Posner v. Bayless, 59 Md. 56; Beinick v. Wheeler, 4 McCrary, 119 ; Carson v. Smith (Minn.), 77. Am. Dec. 539 ; Burnett v. Boyd, 60 Miss. 627; 1 Am. & Eng. Ency. Law, 2d Ed., 1902; Wimberly v. Windham, 16 So. 23; Lamy v. Burr (Mo-.), 88 Am. Dec. 135; Heard v. Pierce, 54 Am. Dee. 757; Benjamin v. Benjamin, 39 Am. Dec. 384; Percy v. Hedrick, 98 Am. Dee. 774; Merchants’ Bank v. Bank, 44 Am. Dec. 665; Foster v. Smith, 88 Am. Deo. 604; Civil Code, Secs. 3250, 1941.)

      Messrs. Walsh & Newman, and Messrs. Toole & Bach, for [Respondents.
    Under the power of attorney, C. A. Clarke did not hqve authority to guarantee the payment of the notes of the firm of Raleigh & Clarke, and to execute the mortgage or deed of trust to secure that guaranty. {Nipple v. Hammond, 4 Colo. 211; Wolfley v. Rising, 8 Kan. 278; Rossiter v. Rossiter, 8 Wend. 495; Batty v. Carswell, 2 Johns. 48; Roundtree v. Davidson, 18 N. W. 518; Claflin v. C. J. Works, 11 S. E. 721; Reynolds v. Terrel, 86 Ill. 576; N. Y. Iron Mine v. BamJc, 39 Mich. 644; ■ Gouldy v. Metcalf, 12 S. W. 830; Malloye v. Conbrough, 31 Pac. 622; Reinhart on Agency, Secs. 197-201; Bank v. Hope Mining Co., 3 Mont. 146; 1 Parsons on Notes and Bills, 107; Stamback v. Read, 11 Gratt. 281; Little Rock v. State Bank, 3 Ark. 227; Story on1 Agency, 7th Ed., Par. 165; Tate v. Evans, 7 Mo-. 419; Mechanics’ Bank v. Schaumberg, 38 Mo. 228; Farmington S. B. v. BuzzeTl, 61 N. H. 612; Gulick v. Grover, 33 N. J. Law, 463; Cuyler v. Hastings, 5 Hun. 559; King v. Spa/rks, 77 Ga. 285; Hutton v. Toiuns, 6 Leigh, 47;
      Wallace v. Bank of Mobile, 1 Ala. (N. S.) 565; Kingsley v. Bank, 3 Yerger, 106; Nichol v. Green, Peek’s Eept. 227; div)ood v. Munnings, 7 B. & Ores. 278; 1 Am. & Eng. Ency. Law, 2d. Ed., p. 1000; Civil Code, Secs. 3197, 2213; In, re Kern’s Estate, 35 Atl. 231; Witz v. Gray, 20 S. E‘. 1019; Bo-hart v. Oberne, 13, Pac. 392; Essiclc v. Buclcwalter, 16 Atl. 849; Mecliem on'Agency, Sec. 274; Bodge v. Hopkins, 14 Wis. 685; Gilbert x.'Howe, 47 N. W. 643; Penfold v. Warner, 55 N. W. 680'; Bullirán v. Miller, 24 S. "W. 819; Johnston v. Wright, 6 Cal. 373; Frost v. Erath Cattle Go., 17 S. "W. 52; Horne v. Ingraham, 16 N. E¡. 868; Ferreira v. DePew, 17 How. Pr. 418; Brandt on Sureties & Guaranty, Par. 20; Bryan v. Berry, 6 Cal. 394; Durham v. Oddie, 14 Am. Dec. 190; Coulter v. Portland Trust Go.', 26 Pac. 565; Mora v. Murphy, 23 Pac. 63; Bates on Partnership', Par. 158, 159; Campbell v. Hastings, 29 Ark. 512.)
    A power of sale of mortgaged! premises on default, inserted in a mortgage, based on a valuable consideration, cannot be revoked by any ad) or deed of the mortgagor; but is revoked or ceases the instant of bis death, and cannot thereafter be exe* cuted. (Kerr, Supplement to Wiltse on Foreclosure of Mortgages, pi 1190; Johnsons. Johnson, 27 S. C. 309, 3 S. E: 606; Lathrop v. Brown, 15 Ga. 312; Yates v. PHor, 11 Ark. 58; Jones on Mortgages, • Sec. 1794; Wilkins v. McGee, 13 S. E. 84; Locket v. Hill, Federal Cases, 8443.)
    Foreclosure under a power of sale is inconsistent with the probate law. (Code of Civil Procedure, Secs-. 2603, 2610, 2701; Robertson v. Paul, 16 Tex. 472; McLane v.. Paschal, 47 Tex. 369; Black v. Rockman, 50 Tex. 94; Abney v. Pope, 52 Tex. 228; Rogers v. Watson, 17 S-. W. 29; Williams v. Washington, 19 S. EL 1.)
    The alleged trust deed provides fees for the trustee and at-tcmey. This is beyond the scope of power under the power of attorney. (Pac. Rolling Mills Go. v. Dayton, etc. Ry. Go., 5 Fed. 852; Code of Civil Procedure, Secs. 3150, 3146; Fitzgerald v. Hansen, 16 Mont. 474.)
   MR' COMMISSIONER CALLAWAY

prepared tbe statement of tbe case and tbe opinion for tbe court.

Tbe following questions have been presented and argued by counsel: (1) Was Charles A. Clarke authorized by tbe power of attorney to execute the trust deed conveying bis principal’s individual property -to secure the notes of tbe firm-? And herein, did be have tbe authority to include in tbe trust deed a power of sale, and a provision for an attorney’s fee in case of foreclosure? (2) Can tbe power of sale be executed now that Albert G. Clarke, Sr., is dead ? We will treat these questions seriatim.

1. Authorities in great number have been cited by counsel in discussing tbe right of Charles A. Clarke to> execute tbe trust deed under the power of attorney above set forth. We have examined themi all, and also have made much independent research, in order to arrive at a correct solution of tbe propositions involved; but no case has been cited to or discovered by us, which, construing a power of attorney like tbe one in question, decides any similar point.

Tbe instrument in question muy be denominated an unrestricted general power of attorney. It will be noticed that tbe donor of tbe power placed bis agent in a position to perform almost every act that may ordinarily arise in tbe transaction of business. Practically the only limitation it contains i's to tbe effect that tbe attorney must act for tbe principal’s use and benefit. It must be presumed that in giving this power tbe principal understood tbe full meaning of tbe words be employed, and undertook tbe risk to which be might be subjected in case bis agent should carry tbe given powier to its utmost limit. Being a business man, be must have known that tbe transactions of business do not always result in profit, and be therefore delegated to bis agent, bis son, very extensive powers, including tbe authority to pledge bis credit and mortgage bis property. Being about to leave tbe state of Montana for tbe winter, and knowing that be could not personally attend to bis business affairs, he confided ini bis son, and placed him in bis stead. And tbe fiduciary relation then established continued until tbe donor died.

“Much of tbe business of tbe world is transacted by agents, or through agencies, representing their principals. It is a rule recognized by all tbe authorities that the acts of the agent, within the scope of bis employment, are the acts of his principal, and tbe latter is bound by them. * * * The rules governing tbe construction of written instruments generally are resorted to in construing powers of attorney. (18 Am. & Eng. Enc. Law (1st Ed.) p. 871.) Tbe obvious meaning of the terms used is not to be restricted or extended by implication in the absence of necessity. Another well supported rule relating to powers of attorney is that tbe intention of the parties, as ascertained by the language used, governs.” (White v. Furgeson, 29 Ind. App. 144, 64 N. E. 49.)

. “But it is said the power must be strictly construed. This may be true, but it does not require that it shall be so construed as to defeat tbe intention of the parties. "Where the intention fairly appears from the language employed, that intention must control. A strained construction should never be given to defeat that intention, nor to embrace in the power what was not intended by. the parties.” (Hemstreet v. Burdick, 90 Ill. 444. And see Marr v. Given, 23 Me. 55, 39 Am. Dec. 600; Carson v. Smith, 5 Minn. 78, 77 Am. Dec. 539; Lamy v. Burr, 36 Mo. 85, 88 Am. Dec. 135; Posner v. Bayless, 59 Md. 56.)

“If the writing be open to two constructions; one of which would uphold while the other would overthrow the contract, tbe former is, where possible, to be chosen.” (Mechem on Agency, See. 304.) And where third persons are concerned in cases- of doubt, the general- rule is that the words in tbe power are to be construed most strongly against tbe grantor. (Story on Agency, See. 74; Code of Civil Procedure, Sec. 3140.)

Bnder a general power of atorney, however, the agent cannot lawfully do any act unless it be for the principal’s use and benefit. Thus he cannot lawfully act under it for tbe private benefit of himself or third persons. Belying on this principle, counsel for plaintiffs contend that under' the authority granted Charles A. Ciarte he could not lawfully execute the trust deed; not for the reason that the power of attorney is insufficient in form to warrant his execution of it, but because in so doing he was securing a debt of the partnership1, and thus was not acting for the use and benefit of his principal. We do not agree with counsel. Albert C. Clarke, Sr., as a member of the firm of Raleigh & Clarke, was liable to third persons for all the obligations of the partnership'. (Civil Code, Secs. 1941, 3250.) Now, where the principal was liable for every dollar of the indebtedness of the partnership, and the partnership was unable to pay its debts, and the other partner had arrived at the end of his resources) what would have been the result if the attorney in fact had neglected to take any action whatsoever? Obviously, the result would have been that the creditors of the firm of Raleigh & Clarke would have instituted suits and levied attachments; merged their claims in judgments running against Albert G-. Clarke, Sr., and W. B. Raleigh; issued and levied execution; sold all the firm property, and then a sufficient amount of Clarke’s separate property to satisfy their demands. Indeed, the creditors might have levied upon the firm property and the individual property of Albert G-. Clarke, Sr., simultaneously. Such action might have entailed great loss upon the solvent partner, Clarke; and it appears that thi$ state of affairs inevitably would have resulted had it not been for the prompt action of Clarke’s attorney in fact, and, under these circumstances, it seems clear that he acted for his principal’s use and benefit. Whether any benefit accrued to W. B. Raleigh by reason of the action of Charles A. Clarke as attorney in fact, it is unnecessary to inquire. Doubtless, when Albert GK Clarke, Sr., paid the debts of the firm, it relieved W. B. Raleigh to some extent, but did it change the status of Clarke, Sr., when he was personally liable for the payment of all of these debts, irrespective of any benefit which might or might not incidentally accrue to W. B. Raleigh, his partner ?

Upon this point plaintiffs say in their brief, “It is not pretended that Charles A. Clarke could, or attempted to, release Mr. Ealeigh from the liabilities of the firm.” The eases cited by plaintiff which they assert sustain their contention that the attorney in fact of a general partner cannot mortgage his principal’s property to secure a partnership! liability, even though the principal is solely responsible therefor, are not in point. No case has been cited by them which states the proposition that under a general power of attorney an agent may. not mortgage his principal’s property in order -to save the principal from loss. They mainly rely upon the language found in Mechem on Agency, Sec. 307. We think counsel place a broader construction upon this section than was intended by the learned author. The section, read as an entirety, does not conflict with our views in this case, and an inspection of the cases cited in support of the text discloses this clearly.

There can be no doubt that the attorney in fact, unless especially authorized so to1 do, cannot bind the principal for the private benefit of the agent himself, or of third persons only. And while we purpose to discuss the applicability of the authorities cited in Mechem on Agency and by counsel to the question here involved, wo suggest, in passing, this question: When Albert G. Clarke, Sr., was liable for all the debts of the firm of Ealeigh & Clarke, and his individual property was about to be seized by attachment levied by creditors of the firm, did not the agent act in the sole, separate, and individual business of his principal when he took such action as prevented him from being thus greatly injured!? And just here it must be remembered that Albert G. Clarke, Sr., was at this time the owner of all the property of Ealeigh & Clarke. Ealeigh, while still liable to the firm creditors, had transferred all his property to Clarke.

The first case cited by Mr. Mechem in support of Section 307, supra, and discussed by counsel, is Stainback v. Read, 11 Grat. 281, 62 Am. Dec. 648, in which it appears that the. controversy arose over a bill of exchange which was not drawn in the business of the principal, but in that of the attorney in fact exclusively. Attwood v. Muninngs, 7 B. & C. 278, 4 Eng. Rul. Cases, 364, is a leading and much misquoted case. The defendant had given to his wife a power of attorney authorizing her to accept for him “such bill or bills of exchange as should be dirawn or charged on him by his agents or correspondents as occasion should require.” She accepted a bill of exchange whicfy was not drawn by the principal’s agent for that purpose; in other words, the drawer of the bill of exchange had no authority to draw it, nor was it within, his ostensible authority. The court held that the wife, as attorney in fact, exceeded her power in accepting the bill, as the agent who drew it exceeded his in drawing it. North River Bank v. Aymar, 3 Hill, 262, was a case in which the attorney in fact executed notes for the accommodation of third persons, the notes having no connection with the principal’s business. The notes were, however, drawn within the ostensible authority of the attorney in fact; and, while they were held to be fraudulent as between the principal and the attorney in fact, nevertheless they were held to bind the principal when in the hands of a bona fide bolder. In the case of Camden Safe Deposit and Trust Co. v. Abbott, 44 N. J. Law, 257, the note in suit “was put forth for the personal benefit of Hie attorney, who converted its proceeds to his own use.” In Wallace v. Branch Bank at Mobile, 1 Ala. (N. S.) 565, the attorney in fact was given authority “for the plaintiff and in his name to draw or indorse promissory notes,” etc., and! the court said: “It is very clear that there is no express delegation of authority to the. attorney to' draw or indorse nctes for the mere accommodation of third persons; such notes, though they might be drawn or indorsed in his name, certainly would not be for the principal himself. Gallagher’s right to make and negotiate paper was not unlimited, but was to bo restricted to a transaction in which the plaintiff at least had the semblance of interest.” In Adams Express Co. v. Trego, 35 Md. 47, it was held that a general superintendent of the express company, with authority to employ and discharge agents and direct tbeir conduct, make contracts, and exercise a general supervision over the business of the company, had no power to license one of his employes, an assistant superintendent, to engage in and carry on a business in competition -with and injurious to the express company. The court said, “The powers of an agent are to be exercised for the benefit of the principal only, and not of the agent or of third parties.”

Plaintiffs also quote at length from Mechanics’ Bank v. Schaumburg, 38 Mo. 228. In that case it appeared that Or-leana C. Schaumburg and Martha A. Wills each gave to John W. Wills a power of attorney authorizing him “in her business, for her use, and in her name” to perform certain acts; among others, “to borrow money and! execute notes.” Wilis was president of the Mechanics’ Bank, to which institution he was indebted in the sum of $45,000. As attorney in fact he executed notes in the joint names of his two principals for $85,000 to the cashier of the bank, who drew checks for the amounts in favor of Wills, and the latter immediately deposited the same to his own credit in the bank. All of this money was used by Wills for his private benefit. The bank knew that the loan was actually made to John W. Wills in his namq for his use, and in his business. The court correctly held that Wills’ principals were not bound by such acts on the part of their agent. The court held in Ferreira v. Depew, 17 How. Prac. 418, that the words employed in the power of attorney did not confer upon the attorney the right to transfer all the principal’s property to a trustee for the payment of his (the principal’s) debts. In Johnston v. Wright, 6 Cal. 373, the principal authorized the attorney in fact “to settle and adjust all partnership. debts, accounts, and- demands, and all other accounts and demands now subsisting, or which may hereafter subsist, between me and any person or persons whomsoever,” and, among other purposes, the power was given to execute releases. The attorney discharged a debt due the principal and two others jointly. In reaching its conclusion the court said: “In Attwood v. Munnings, 7 Barn. & Cress. 279, the power was to endorse bills Tor the principal, in his name, and to his use/ and also to ‘accept bills drawn by his agents or correspondents.’ In the suit upon a bill drawn by one of the partners of the principal for the benefit of the partnership1, and accepted by the agent, it was held that the power extended only to the individual business of the principal, and not to his partnership affairs.” It is apparent that the court did! not understand the ruling in Attwood v. Munmngs, as no such decision was reached in that case. The Californa court then went on to say that, as the debt released was neither an individual nor a partnership debt, but a joint debt, the language of the power of attorney was not broad enough to authorize the attorney’s act, and said that, if the principal had personally executed the release, and had used only the language contained in the power of attorney, it would! have been totally ineffectual to release the covenant on which the controversy rested.

Whether the agents in the last two cases cited acted or assumed to act for the use and benefit of their respective principals, we are unable to ascertain. All of the other authorities cited by plaintiffs will be found, upon examination, to treat of cases wherein the agent acted either for the private benefit of himself or third persons, or else clearly transcended the authority granted him.

In the power of attorney before us Charles A. Clarke is given authority “to sell, remise, release, convey, mortgage, and hy-pothecate lands, tenements, and hereditament® upon such terms and! conditions and under such covenants as he shall see fit.” And also “to sign seal, execute, and deliver and acknowledge” such mortgages, hypothecations, bills, bonds, notes, receipts, evidences of debt, and “such other instruments in writing of whatever kind and nature as may be necessary or proper in the premises.” Under the languge used, can it be successfully contended by any one that Charles A. Clarke had not the right to execute and deliver notes, mortgages^ and hypothecations ? If he could execute such, for what purpose would the instruments be executed ? Certainly to secure debts on the part of the principal. When tbe principal executed tbe power of attorney be must bave contemplated that at some time it would be necessary for bis attorney in fact to execute instruments in writing in recognition of debts owed by bim, tbe principal; otherwise, for wbat purpose were sucb words as we bave last quoted inserted in tbe power of attorney? (Lamy v. Burr, 36 Mo. 85, 88 Am. Dec. 135.) If we were tol say tbat tbe attorney in fact bad no right to execute notes, mortgages, and bypotbecations, we might as well say tbat tbe principal never executed any power of attorney at all. We bave heretofore shown tbat tbe debt secured by tbe trust deed in question was tbe principal’s debt, and, after W. B. Raleigh bad executed tbe instruments conveying all of bis property to Albert G. Clarke, Sr., tbe debt secured was practically tbe sole and individual debt of Clarke, as between himself and Raleigh. The attorney in fact could not take a new partner into tbe firm of Raleigh & Clarke, and neither could be dissolve tbe partnership under bis power; but when Raleigh, tbe other partner, voluntarily turned over all of bis property to Clarke, Clarke’s attorney in fact, under the power given bim, bad tbe right to receive and protect it.

Plaintiffs contend tbat Charles A. Clarke, as attorney in fact, bad no'.right to execute tbe guaranty which be indorsed upon tbe notes. As we view it, this guaranty was useless and nugatory. Albert G. Clarke, Sr., was already liable for the payment of the’notes, and tbe guaranty executed on bis behalf imposed upon bim no additional obligations whatever, as it was in terms a guaranty of bis own-debt. (In re Wm. H. Blumer & Co. (D. C.), 13 Fed. 622.) Tbe question, then, is, as Charles A. Clarke bad tbe right as attorney in fact to secure tbe payment of the notes in question, did be bave tbe right to' execute tbe trust deed in controversy, including tbe power of sale ? Every general power implies every particular power necessary to its exer cise or performance; in other words, “tbe authority to- accomplish a definite end carries with it tbe power to1 adopt tbe usual legal means to accomplish tbe object. Cbitty on Contracts (Ed. 1860), 236; Anderson v. Coonley, 21 Wend. 279.” (Piercy v. Hedrick, 2 W. Va. 458, 98 Am. Dec. 774.)

In the ease of First National Bank v. Bell S. & C. M. Co., 8 Mont. 32, 19 Pac. 403, the court, speaking through Mr. Chief Justice McConnell, said: “While the exact boundary between mortgages with powers of sale, and deeds of trust, is not very clearly defined, we think the deed in question should be classed with the former. * * * But, from the view we take of it, we do not think it important to determine to which class it technically belongs. * * * ‘A mortgage is a pledge or security for a debt, whatever may be the form) which the transaction takes, whether a simple mortgage deed in form, or a mortgage with a power of sale, or a deed in trust, or a deed absolute on its face, accompanied by an agreement in writing to reconvey or to sell, or to do any other thing upon the payment of a certain sum of money. Courts of equity look upon it as a mortgage, and deal with it as such.’ Perry on Tfusts, Sec. 602d.” In reviewing and affirming this case the United! States Supreme Court said: “The joower of sale in the indenture, whether we call it a deed of trust or a mortgage, does not change its character as an instrument for the security of the indebtedness designated, but it is an additional authority to the grantee or mortgagee, and, if he does not choose to foreclose the mortgage by any of the ordinary methods provided by law, he can proceed under the power added for the sale of the property to obtain payment of the indebtedness.” (Bell S. & C. M. Co. v. First Nat’l Bank, 156 U. S. 470, 15 Sup. Ct. 440, 39 L. Ed. 497.) Section 3821, Civil Code, provides: “A power of sale may be conferred by a mortgage upon the mortgagee or any other person, to be exercised after a breach of the obligation for which the mortgage is a security.” Section 1293, Code of Civil Procedure, provides: “When a mortgage confers a power of sale, either upon the mortgagee or any other person, to be executed after a breach of the obligation for which the mortgage is a security, either an action miay be maintained under this chapter to foreclose, or proceedings may be had under the provisions of the mortgage.” We therefore conclude that Charles A. Clarke, as attorney in fact, had the right to execute a mortgage in the.form of a trust deed, containing a power of sale, just as he would have had the right to execute a mortgage in the ordinary form. Creating a trustee with power of substitution to his successors in trust was not delegating a delegated power. In effect, it merely provided a means for obviating the appointment of a receiver and foreclosure by an action in court in case of a default by the principal. Furthermore, Charles A. Clarke under the trust deed conveyed away the whole legal title. His power over the property then ceased. His act was not a delegation of power, but an execution of the power conferred under the power of attorney. (Lamy v. Burr, supra.)

It is also contended by plaintiffs that, even had Charles A. Clarke, as such attorney, the right to execute the trust deed in question, he had no right to include therein a provision for an attorney’s fee. It is unnecessary for us to decide this question. The mortgage foreclosure was commenced under the power of sale therein contained, whereas it is distinctly specified in the trust deed that the attorney’s fee shall be collected only if the mortgage be foreclosed' by an action. Plaintiffs are therefore complaining of something which is not in controversy in this action.

2. Can a power of sale be executed after the death of the mortgagor? The decisions are not in harmony as to- whether such a power can be so executed, for the reason that some affirm and some deny the power to be one coupled with an interest. If the power is one coupled with an interest, it can be executed after the death of the grantor; otherwise not. Chief Justice Marshall, in Hunt v. Rousmanier's Administrators, 8 Wheat. 174, 5 L. Ed. 589, in speaking of such a power, uses the following language: “We hold to be clear that the interest which can protect a power after the death of a person who creates it must-be an interest in the thing itself. In other words, the power must be ingrafted on an estate in the thing. The words themselves would seem to import this meaning. A. power coupled with an interest’ is a power which accompanies or is connected with an interest.” In Bergen v. Bennett, 1 Caines’ Cases, 1, 2 Am. Dec. 281 — a leading case on this subject — the court said: “It is admitted that a naked authority expires with the life of the person who gaye it; but a power coupled with an interest is not revoked by the death of the grantor. In my opinion, the power contained in the mortgage is of the latter description. A‘ power simply collateral and without interest, or a naked power, is when, to a mere stranger, authority is given to disposing of an interest in which he had not before, nor hath by the instrument creating the power, • any estate whatsoever. But when power is given to a person who derives, under the instrument creating the power or otherwise, a present or future interest in the land, it is then a power relating to the land.” It was said by our own court, in First National Bank v. Bell S. & C. M. Co., supra: .“But the mortgagee has an interest in the land mortgaged. He has a lien upon it for the security of his debt, and this will support the power of sale, and so- couple it with an interest in the land that it becomes a part of the security and irrevocable.” Says Mr. Jones, in his work on Mortgages (Section 1792) : “This being [a power] coupled with an interest in the estate cannot be revoked or suspended by the mortgagor. Of course, after his death the. power cannot-be exercised in his name, but the authority to execute it in the name of the grantee continues.” And see cases cited; Whitmore v. San Francisco Savings Union, 50 Cal. 146; More v. Calkins, 95 Cal. 435, 30 Pac. 583, 29 Am. St. Rep. 128.

Prom the foregoing authorities it clearly appears to us that the power of sale included in the trust deed in question is a power coupled with an interest; but, irrespective of this, the legal title to the property having passed to the trustee and from the mortgagor, the death of the latter, could in no wise affect the trustee’s right to carry out the trust which the mortgagor had reposed in him.

It is argued, however, that foreclosing under a power of sale is inconsistent with our probate law, and that the mortgagee should enforce his rights either through the regular course of administration or by foreclosure in court. Tbis argument cannot be maintained. “The law may suspend its own process. As it gives the process, it may regulate it. But deeds of trust and mortgages with the power of sale arise from the consent and agreement of parties, and there is no propriety in depriving creditors of the fruits of their foresight and caution.” (Beatie v. Butler, 21 Mo. 313, 64 Am. Dec. 234.) The Texas eases cited by plaintiffs are not in point. See In re Horsfall's Estate, 20 Mont. 495, 52 Pac. 199. It follows that the trustee or his successor in trust, having the legal title, could execute the power of sale (a power coupled with an. interest) without reference to the administration of the mortgagor’s estate, if he so elected. (Code of Civil Procedure, Section 2603.)

Rehearing denied June 13, 1903.

In our opinion, the order should be reversed.

Pee Cueiam. — Por the reasons given in the foregoing opinion, the order is reversed, and the' cause remanded.


source: Caselaw Access Project

author: ME. COMMISSIONER CLAYBEEG

license: Public Domain

text:
    DEUNINCK et al., Appellants, v. WEST GALLATIN IRRIGATION COMPANY, Respondent.
    (No. 1,560.)
    (Submitted May 1, 1903.
    Decided May 25, 1903.)

      Damages — Contracts — Provision for Liquidated Damages— Validity — Burden of Proof.

    1. A contract bound tbe defendant, an irrigation company, to furnisb to plaintiff a certain amount of water during a certain season, and provided that, if the company should for any reason fail to deliver the water, it would return to plaintiff the money paid by him, and plaintiff agreed to accept the same,' and to release the company for any damage arising from such failure. Held to fall clearly within Section 2243, Code of Civil Procedure, and to be void on its face to the extent of the liquidated damages agreed on in case of a breach.

      "Where a suit is brought on a contract for the actual — and not the liquidated —damages, it is for the defendant to show by proper answer and competent proof that the contract for stipulated damages is valid under Code of Civil Procedure, Section 2244; such question cannot be presented to the court by demurrer to the complaint.

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

    ActioN by D1. E. Deuninck and another against the West Gallatin Irrigation Company. Judgment for defendant. Plaintiffs appeal.
    Reversed.

      Mr. A. J. Walrath, Mr. W. B. C. Stewart, and Messrs. Holloway & Hoffman, for Appellants.
    Tbe complaint states a cause of action, and was therefore good on general demurrer. {Jacobs Sultan Co. v. U. M. Co., II Mont. 61; Code of Civil Procedure, Section 1003; Jessup v. Jessup, 34 N. EL 1017.)
    The ebntract falls squarely within the inhibition of Section 2243, Civil Code, and is void to the extent that it atempts to fix the amount of damages for a breach of the contract in anticipation thereof. (Greenleaf v. S. C. H. & A. Works, 21 Pac. 369; Easton v. Cressen, 34 Pac. 622; Drew v. Pedlar, 25 Pac. 749.)
    Even if the contract be not void in the particular above noted, still, the provision for the return of the money for a breach of the contract does not constitute liquidated damages, and plaintiffs are entitled to recover whatever damages they actually suffered. ([Pengra v. Wheeler, 34 Pac. 354; O'Keefe v. Dyer, 20 Mont. 477; C. S. N. Co. v. Wright, 6 Cal. 258; Potter v. Ahrens, 110 Cal. 681; Pacific Factory v. Adler, 90 Cal. 110.)
    In order to sustain the demurrer as to the third ground, the complaint must be both ambiguous and uncertain. (Kroner v. Halsey, 82 Cal. 209, 22 Pac. 1137; Wilhoit v. Cunningham, 87 Cal. 453, 25 Pac. 675; Greenbaum v. Taylor, 102 Cal. 624, 36 Pac. 957.)

      Messrs. Hartman & Hartman, for Eespondent.
    Appellants must recover upon this contract if at all, and tliev are limited in their recovery by, the terms of the contract. Appellants insist in their brief that the contract is one for liquidated! damages and hence void within the purview of Section 2243 of the Civil Code. Eespondent insists, first, that it is not such a contract, but that it is simply a contract reciting the probable inability of respondent to furnish water for irrigating purposes to appellants, and that in the event of such probable failure respondent is to return the money — $258—which has been paid, and appellants are to hold harmless the said company for any loss or damage arising from its failure or inability to furnish said water or any part thereof as aforesaid; and, second, that if the contract should be construed to be one for liquidated damages that it comes within the purview of Section 2244 of the Civil Code, in that it would be “impracticable or extremely difficult to fix the actual damages” which would accrue to appellants by reason of the failure of respondents to comply with such contract.
    A complaint must proceed upon some definite theory, and on tliat theory the plaintiff must succeed, or not succeed at all. The complaint cannot be made elastic so as to take form with the varying views of counsel. (Mescall v. Tully, 91 Ind: 96, p. 99; State v. Fowlkes, 94 Ind. 493, p. 498; M. S. & N. T. B. B. Go. v. McDonald, 21 Mich. 165, 4 Am. Eep. 466, p. 481-2; Salisbury v. Hoto, 87 N. T. 128, p>. 131; Elliott’s Gen. Prac. Vol. 1, par. 87.)
   ME. COMMISSIONER CLAYBEEG

prepared the opinion for the court.

This is an action upon a written contract, by which it is claimed that respondent agreed to furnish certain water to D. EL Ueuninck for the purpose of irrigating 129 acres of his land. The complaint sets forth the contract, and then alleges that, in reliance upon its terms, plaintiffs prepared their land for cultivation, and planted crops; that l’espondent failed to furnish, the water contracted for, and that because thereof plaintiffs were damaged in the sum of $1,981.28. The respondent demurred to this complaint- on three distinct and separate grounds, but abandoned two of them upon the argument, and only insisted on the remaining one, which was “that the complaint does not state facts sufficient to constitute a cause of action.” The demurrer was sustined by the court below1. Plaintiffs stood upon .their complaint, and judgment was entered in favor of defendant for its costs. Prom such judgment this appeal is taken.

The contract sued upon'is somewhat peculiar in its provisions, and for a better understanding of all its terms we quote it in full:

“Bozeman, Montana, June, 20th, 1899. This is to certify: That the West Gallatin Irrigation Company has this day received from Bev. D. El Deuninck the sum of Two Hundred and Pifty-Eight Dollars ($258.00) upon the following conditions, to-wit: Said West Gallatin Irrigation Company agrees to furnish to said D. El Deuninck 129 inches of water for the irrigation of 129 acres of the land of said D. El Deuninck, or any part of the same situate convenient for delivery for service from the ditch of the West Gallatin Irrigation Company, in the East y¿ of Sec. 24, T. 1 S., B. 8 East, said water to be furnished and delivered during the irrigating season of 1899. If, however, said company shall for any reason fail or be unable to deliver said water to said D. E. Deuninck, according to the terms hereof, it agrees and binds itself to return to said D. E. Deuninck — $258.00—the amount of money so paid, and- said D. El Deuninck agrees to accept the same and! to release and hold harmless the said company for any loss or damage arising from its failure or inability to furnish said water or any part thereof as aforesaid. It being specifically understood and agreed between the parties hereto- that the said West Gallatin Irrigation Company is liable, for various causes, to be unable to' furnish the said water as herein set forth, and that in the event of such failure or inability to furnish the same and of damage accruing to said D. E. Deuninek by reason of suck failure the said Two Hundred and! Fifty-Eight Dollars ($258.00) constitute liquidated damages therefor and the payment thereof to the said D.. E. Deuninek shall constitute payment and settlement in full of such damages. In witness whereof the said D. El Deuninek has hereunto set his hand and seal, and the West Gallatin Irrigation Company has caused its corporate name to be affixed by its manager, the day and year first above written. Executed in duplicate. Eev. D. E. Deuninek. [Seal.] (Signed) By El C. Kinney, General Manager.”

The questions argued all arise upon the construction of this contract, and the appropriateness and sufficiency of the allegations of the complaint as applied to the contract when construed. Counsel for appellants contend: First, that this contract is void under the provision of Section 2243, Civil Cbde, to the extent that it attempts to fix the amount of damages for a breach thereof in anticipation of such breach; and, second, if not void, the provisions for the return of the money in case of a breach of -its terms do not constitute legal liquidated damages, as provided in Section 2244, Civil Code, and claim that appellants are therefore entitled to> recover whatever actual damage they have suffered because of the alleged breach thereof by respondent. Counsel for respondent contend to the contrary upon both of these propositions. The two sections above referred to are as follows:

“Sec. 2243. Every contract by which the amount of damage to be paid, or other compensation, to be made, for a breach of an obligation,- is determined in anticipation thereof, is to that extent void, except as expressly provided in the next section.
“Sec. 2244. The parties to a contract may agree therein u pun an amount which shall be presumed to be the amount of damage sustained by a breach thereof, when, from the nature of the ease, it would be impracticable 'or extremely difficult to fix the actual damage.”

It first becomes important to determine the character of the contract, and’ascertain whether it is one attempting to provide for liquidated damages in case of a breach of its terms by respondent in anticipation thereof. It first recites the receipt of $258 by respondent from appellant Deuninck upon condition that respondent agrees to furnish him with 129 inches of water during the irrigating season of 1899 for the purpose of irrigating 129 acres of land. Thus far it is plain, and needs no construction, and amounts to an absolute promise upon the part of the respondent, in consideration of $258 thus paid by Deuninck, to furnish the water specified at the time stated. This comprises the entire contract in so- far as the furnishing of the water is concerned, for a breach of which the' complaint was filed. It then attempts to provide for damages upon a breach thereof in the following language: “If, however, said company shall for any reason fail or b¿ unable to- deliver said water to said- D. E. Deuninck, according to the terms hereof, it agrees and binds itself to return to said D. E. Deuninck — -$258.0(>—the amount of money so paid, and said D. E. Deuninck agrees to accept the same and to release and hold harmless the said company for any loss or damage arising from its failure or inability to furnish said water or any part thereof as aforesaid.” Then, as if necessary to make the above quoted clause more definite and certain, and to surely limit the. liability of the respondent for a breach to-the repayment of the consideration received therefor, we find the following clause: “It being specifically understood and agreed between the parties hereto that the said West Gallatin Irrigation Company is liable, for various causes, to be unable to- furnish the said water as herein set forth, and that in the event of such failure or inability to furnish the same and of damage accruing to said D. E-. Deuninck by reason of such failure the said TWo Hundred and Eifty-Eight Dollars ($258.00) constitute liquidated damages therefor and the payment thereof to the said D. E. Deuninck shall constitute payment and settlement in full of such damages.” We see no legal distinction-between the two clauses above quoted as to their purpose and effect. Both were evidently intended! to accomplish the same purpose and produce the' same result, viz., determining and fixing the amount of damages to be paid in case of a breach of the contract occurred. It seems that it was contemplated that a breach would probably occur, and respondent, in anticipation of such breach, desired that the amount of damages which might accrue therefrom should be limited to the amount of- the consideration pai.d to it for such contract. It will be no-ticedl that the contract is not one to furnish tire water if the respondent is able so to do, and, if unable or prevented by any cause, to be excused therefrom, but it is one whereby respondent agrees to furnish the amount of water specified absolutely, and at all events, with a provision that, if it -fails so to do for any reason, it is only to be liable to-the other contracting party for damages in an amount equal to the sum paid by him as a consideration for the contract.

It seems to us, from a careful consideration of the contract,' that it falls clearly within the provisions of Section 2243, swpra, and is, therefore void to the extent of the liquidated damages agreedl upon in ease of a breach. If the contract is void in law tci this extent, it is of the same legal effect as though such 'provisions had been entirely omitted from its terms. It therefore was, in legal effect, a contract to furnish 129 inches of water during the irrigating season of 1899 for the purpose of irrigating 129 acres of land. The complaint .was evidently framed upon this theory, and is clearly sufficient: ■ ■

As to the next contention, counsel for respondent claim that,; even if it is- a contract 'attempting to provide for liquidated damages for a breach, and is void to- that 'extent-, under the provisions of Section 2243, supra, it is a good contract for liquidated damages under Section 2244, supra; that the suit- should have been brought to recover such liquidated damages; and, inasmuch as the complaint is not framed on that theory, the demurrer was properly sustained. Counsel seem to overlook the effect of Section 2243, supra, by which all contracts for liquidated damages are to that extent void, “except as provided in the next section.” Therefore, if a suit be brought on the contract for the actual, and not the liquidated, damages, defendant must show to the court as a matter of defense that it is erroneously instituted. It must be shown to the court by proper pleadings and competent proof that the contract falls within the provisions of Section 2244, sufra,. This does not depend entirely upon the contract itself. Pacts must be pleaded and proven from which the court can say as a matter of lawi that the contract for liquidated damages is valid because “from the nature of the ca»e it would be impracticable or. extremely difficult to fix the actual damages.” The mere stipulations of the contract axe insufficient for that purpose. (Patent Brick Co. v. Moore, 75 Cal. 205, 16 Pac. 890; Pacific Factor Co. v. Adler, 90 Cal. 110, 27 Pac. 36, 25 Am. St. Rep. 102; Jack v. Sinsheimer, 125 Cal. 563, 58 Pac. 130 ; Long Beach, etc. v. Dodge, 135 Cal. 401, 67 Pac. 499.) It is therefore clear that a legal contract for stipulated damages, urged as a defense to a suit brought upon the contract to recover actual damages, cannot be presented to the-court by demurrer to such complaint, but must be raised by answer alleging the existence of such facts as bring it clearly within Section 2244, supra.

We are of the opinion that the court below erred in overruling said demurrer and entering judgment for defendant, and that the same should be reversed.

Pee C'ubiam. — Por the reasons stated in the foregoing opinion, the judgment of the court below is reversed.

Me. Justice Holloway was disqualified, and took no part in this decision.


author: MR. COMMISSIONER OLAYBERG

text:
    FREDERICK et al., Appellants, v. McMAHON, Respondent.
    (No. 1,583.)
    (Submitted May 15, 1903.
    Decided May 25, 1903.)

      Appeal — Rules of Supreme Court — Defective Record — Defective Brief — Affirmance.
    Judgment below will be affirmed where the record and appellant’s brief fail completely to comply with the requirements of the statutes and the Rules of the Supreme Court.

      Appeal from' District Court, Cascade County; Dudley Du-Bose, Judge.

    Action by W. EL Frederick and Thomas A. Ray, partners doing business as Frederick & Ray, against Thomas McMahon. From a judgment in favor of defendant, and from an order overruling a motion for a new, trial, plaintiffs appeal.
    Affirmed.

      Mr. William Q. Downing, and Messrs. Toole & Bach, for Appellants.

      “Mr. Bcmsom Cooper, for Respondent.
   MR. COMMISSIONER OLAYBERG

prepared the opinion for the court.

The record and appellants’ brief in this case so completely fail to comply with the requirements of the statutes and the rules of this court, that, under the cases of Cornish v. Floyd-Jones, 26 Mont. 153, 66 Pac. 838, Knobb v. Reed, 28 Mont. 42, 72 Pac. 304, and other numerous former dtecisions of this court, none of the questions sought to be raised can be considered.

We therefore advise that the judgment he affirmed.

Per Curiam. — For the reasons stated in the .foregoing opinion, the judgment in this case is affirmed.


author: ME. JUSTICE MILBUEN

text:
    In re WEED.
    (No. 1,744.)
    (Submitted May 20, 1903.
    Decided May 25, 1903.)

      AMoniey — -Suspension from Practice — Reinstatement — Sufficiency of Petition.

    An attorney who has been suspended for two years for malpractice and criminal deceit, whereby he obtained money from a client, will not be reinstated at the end of one year on a petition, signed by lawyers and citizens, reciting that he was suspended because he was indebted to the client, and which does not express any regret for his culpable acts, or contain any assurance from him or the other petitioners that his future conduct will be upright.
    ObigiNal proceeding for tba reinstatement of Elbert D. Weed as a member of the bar of the supreme court-.
    Eeinstatement refused.
    ' Mr. Jas. Donovan, Attorney General, presented petition to court.
   ME. JUSTICE MILBUEN

delivered the opinion of the court.

This matter is before us on the petition of Elbert D. Weed, and of others in his behalf, for his reinstatement as a member of the bar of this court.

The court ordered on May 26, 1902, that Mr. Weed be suspended from his office of attorney and counselor and deprived of the right to practice as such in the courts of Montana until the 26th day of May, 1904, at the expiration of which time he might, under the terms of the order, upon proper petition, sup^ ported by satisfactory evidence of good conduct meantime, be restored to the privileges of an attorney and counselor. Many persons join in praying that the petition of the applicant be granted. Many of these are lawyers of high standing, and others are persons of importance and prominence in the public service and in private life. It will-not serve any useful purpose, to- state herein at length the reasons why Mr. Weed was subjected to discipline. It will be sufficient to refer those who should know them to the opinions in In re Weed, 26 Mont. 241, 507, 67 Pac. 308, 68 Pac. 1115.

Referring to In re Newton, 27 Mont. 182, 70 Pac. 982, we find that a disbarred attorney was restored to the office of attorney and counselor upon it having been made to appear satisfactorily to the court that the petitioner had, “since the order of disbarment, * * * lived an upright, honorable life; that in the estimation of his fellow citizens in the community in which he resides, and also of reputable members of the bar of this state, he is a fit person to be permitted to practice law in the state, and that he expresses the utmost contrition for his said offense.” It is necessary that the applicant show much more than appears in the petition before us. He states that the order of suspension was made “by reason of a petition. * * * and evidence given in support thereof by one Theodore Mayer, showing that the petitioner herein was indebted to said Mayer in a certain sum of money.” Reading the opinion (26 Mont. 507, 68 Pac. 1115), any one will see that the court did not punish Mr. Weed for being indebted to Mr. Mayer. There has not been any such precedent ever established by this court, or by any other, so far as we are advised. If the very numerous signers of the petition in support of the application for reinstatement understood that the applicant was deprived of his office as attorney and counselor because he was indebted to Mayer, such understanding perhaps will account for the fact that so many recommended that the court permit him now to resume the practice of the profession of the law.

The applicant does not mention or refer to any one of the charges upon which he was found guilty; he does not express any regret for any of his culpable acts; and we have, not any assurance .from him' or- the other petitioners that his conduct hereafter will be as it should be, or in anywise different from what it was before his suspension. We affirm the reasons stated in tbe opinion reported heretofore (26 Mont. 507, 68 Pac. 1315) when the order of suspension was made.

Because the petition of the applicant does not state anything which shows that the applicant has a just conception of the serious nature of the several charges made and proven against him, or that he in any wise regrets having done any of the things which he did, and because those who' have joined in his petition dc not indicate in the slightest way that they understand why the order was made, or that the applicant for reinstatement has repented of his errors1, and further because we are of the opinion tli at the petition and the papers in support thereof would not be sufficient to induce favorable consideration even if the period of two years had expired, the application of Mr. Weed, made at the end of one year, is denied.


author: ME. CHIEF JUSTICE BEANTLY

text:
    HEGAAS, Appellant, v. HEGAAS, Respondent.
    (No. 1,587.)
    (Submitted May 26, 1903.
    Decided June 1, 1903.)

      Betting Aside Default Judgment — Discretion of Tidal Court— Appeal — Review.
    Since, under Code of Civil Procedure, Section 774, applications to set aside default judgments are addressed to the discretion of the trial court, its action thereon will not be interfered with unless a manifest abuse of discretion is shown.

      Appeal from District Court, Missoula County; F. II. Woody, Judge.

    Action by Hans H. - IIegaas against Emana Hegaas. Erom an order setting aside a default and judgment, and permitting defendant to appear and defend, plaintiff appeals.
    Affirmed.

      Messrs. Marshall & Stiff, for Appellant.
   ME. CHIEF JUSTICE BEANTLY

delivered the opinion of tbe court.

Appeal from an order setting aside a default and judgment, entered upon tbe failure of tbe defendant to appear and make defense. Tbe service of summons was constructive, tbe defendant being a resident of tbe state of Washington at tbe time tbe action was brought. Tbe application was made upon affidavits tending to show that tbe default and judgment were entered against tbe defendant through her excusable neglect in failing to interpose her defense within tbe time allowed by tbe statute. Under Section 774 of the Code of Civil Procedure such applications are addressed to' tbe discretion of tbe district court, and, in tbe absence of a manifest abuse of such discretion, this court will not interfere. We have examined tbe affidavits filed by tbe defendant in support of her motion, and we are not able to say that tbe district court manifestly abused tbe discretion lodged in it by tbe statute. Tbe order complained of is affirmed.

Affirmed.


author: Pee Oubiam.

text:
    STANTON, Appellant, v. LEWIS, Respondent.
    (No. 1,586.)
    (Submitted May 26, 1903.
    Decided June 1, 1903.)

      Appeal — Transcript—Judgment Boll.

    Under Code of Civil Procedure, Section 1736, providing that on an appeal from a final judgment tbe appellant must furnish the court with a copy of the judgment roll, the court, on appeal from a final judgment, acquires no jurisdiction where the transcript contains no copy of any summons, proof of service, complaint, or other pleadings, constituting a part of the judgment roll, within Section 1196.
    . Appeal from District Gourt, Gallatin CountyF. K. Armstrong, Judge.

      ActioN by Et E. Stanton against E!d. Lewis. From a judgment of the district court dismissing an appeal from a justice of the peace, plaintiff appeals.
    Appeal dismissed.

      Mr. F. F. Stanton, in ‘pro per.

      Mr. John A. Luce, for Respondent
   Pee Oubiam.

This is an appeal from a final judgment made and entered in the district court of G-allatin county upon the dismissal of an appeal to that court from the justice of the peace' court.. Section 1196 of the .Code of Civil Procedure specifies the papers which constitute the judgment roll. Section 1736 of the same Cbde provides that on an appeal from a final judgment the appellant must furnish the court with a copy of the notice of appeal, of the judgment roll, and of any bill of except tions or statement in the ease upon which the appellant relies. The transcript on appeal in this case contains no copy of any’ complaint, summons, proof of service, or of any other pleadings in the cause. There is therefore no judgment roll, within the meaning of Section 1196, supra. The provisions of Section 1736 are mandatory, and without the judgment roll this court has no jurisdiction to consider an appeal from a final judgment.

The appeal is therefore dismissed.

Dismissed.


author: MR COMMISSIONER, CLAYRERG-

text:
    STATE, Appellant, v. KING, Respondent.
    (No. 1,944.)
    (Submitted May 25, 1903.
    Decided June 1, 1903.)

      Police Officer — Failure, to Make Arrest — Criminal Prosecwtion —Information — Constitutional Question — When. Determined. .

      1. Laws of 1903, Chapter CXI, Section 1, declares that it shall he the duty of every policeman or other peace officer, upon being informed by a citizen that any offense is being or is about to be committed within such officer's jurisdiction, to immediately proceed .to the place where the alleged offender is to be found, with the informant, if he so requests, and to arrest such offender, etc. " Held, that an information against a policeman, alleging that he refused to proceed to the place where alleged offenders were to be found, was insufficient, the statute enjoining but one duty, which was to mate ah arrest, failure to perform which was the gist of the officer’s offense.
    2 A court will not pass upon the constitutionality of a statute unless it is absolutely necessary to a decision of the ease.

      Appeal from District Court> Lewis and Clarice County; II. C. Smith, Judge.

    S. R. KiNG was informed against for a violation, of official duty as a policeman in failing to make an arrest, and on demurrer to tbe information was discharged, from which action of the court the state appeals.
    Affirmed.

      Mr. James Donovan, Attorney Qen-eralj for the State.
    There are three duties which may be imposed upon a peace officer by House Bill 345 by any citizen of the state, and for failure to- perform any one or more of them he is guilty of a violation of said law, as follows: (1) TJpon receipt of the requisite information to immediately and expeditiously proceed to the place where the alleged offender or offenders are to be found. (2) To proceed- in company with the informant, if he so requests. (3) To arrest the alleged offender or offenders wherever they may be found. In the present information, the defendant is charged with a neglect to perform' the first of these duties only, and that offense is clearly and without ambiguity stated in the information. It cannot be urged that the information is bad for failure to charge that the defendant refused to make an arrest, for, as a matter of fact, he did not refuse to make an arrest, except by refusing to go to'the place where the arrest might be made. By refusing to go to such place he clearly violated his duty as an officer, and under the provisions of said House Bill 345 liable to the penalty prescribed in Section 2 thereof.

      Constitutional provisions bave not tbe slightest bearing upon the information in this- case, although they might have if the information charged' the officer with a refusal to make an arrest, or if the question were raised by a person who might have been arrested by such officer, as, for instance, in habeas corpus proceedings. (Nelson v. People, 33 Ill. 397.)
    The question of the constitutionality of a law; cannot be raised by anyone not having an interest in the matter, or not being in point of fact affected by the act. (Cooley on Const. Lim., 196, and cases cited in note 3; 6 Am. & Eng. Ency. Law, p. 1090.)
    A question involving the constitutionality of a statute should be determined only when it is impossible to dispose of the case on its merits otherwise, and a court will be especially reluctant to investigate or determine the constitutionality of a statute on-preliminary motions * * (6 Am. & Eng. E'ncy Law, p, 1084, and cases cited in note 5; see, also, Cooley on Const. Lim., pi 196; Nelson v. People, 33 Ill. 390; Stale■ v. Curler, 67 Pac. 1075 (Nev.); MacGinnis v. Dams, 65 Pac. 364 (Ida.)
    On the prosecution of an officer for accepting a bribe for omitting to seize gambling devices, the officer cannot question the constitutionality of the statute authorizing the destruction of the property. (Newman v. People, 23 Co-lo. 300, 47 Pac. 278.) .¡i.-''
    But assuming that the question can be raised by the defendant in this case by demurrer to the information, and conceding, for the sake of argument, that House Bill 345 is in conflict with the constitutional provisions invoked, in so* far as- said bill makes it the duty of the officer “to arrest such offender or offenders wherever they may be found,” still we maintain that the bill is unconstitutional only to the extent that it is repugnant to the constitution.
    Where part only of a statute or section is unconstitutional that part only is void, unless the other provisions are so dependent or connected that it cannot be presumed the legislature would have passed one without the other. (Sedgwick, Constr. St. & Const. Law, p'. 413, and oases cited; Sutherland, St. Constr. See. 169; People v. Hill, 7 Cal. 97; Nelson v. People, 83 Ill. 390; Commonwealth v. Hitchmgs, 5 Gray, 482; Mayor v. Dechart, 32 Md. 369; Mobile, etc. B. B. y. State, 29 Ala. 573; Lynch y. Steamer Economy, 27 Wis. 69; v. TFAueZer, 25 Conn. 290; 6 Am. & Eng. Ency. Law, 1088.)
    “With the wisdom or expediency of a law- the judiciary has nothing to do; such questions address themselves solely to the law-making department of the government.” (6 Am. & Eng. Ency. Law, p. 1086.)
    When the statute is otherwise free from objections on constitutional grounds, the courts cannot avoid its application and enforcement because it is absurd or unreasonable, nor because, in their judgment, it is an unwise enactment. (Ibid., citing: Flint Biver Steamboat Co. v. Foster, 48 Am. Dec. 248; Merchants' Union Barb Wire Co. v. Brown, 18 Hep: 591; see, also, Cooley, Const. Lim. p. 220.)
    It is not within the province of the judiciary to inquire into the motives actuating the law-making body. (Cooley, Const. Lim. p. 220; 6 Am. & Eng. Ency. Law, p-. 1087, and eases cited in note 5; Ex parte Newman, 9 Cal. 502; McCulloch v. State, 11 Ind. 424; Stoclcton, etc. B.,B. Co. v. Stocldon, 41 Cal. 147.)
    If it be argued that it would be a vain thing to require an officer to proceed to the place where the offense was being committed without making it his duty to arrest the offenders if he should find them, and that the legislature would never have imposed that duty upon the officer without also requiring him, to make an arrest, and that, therefore, the act in question is not separable, then the reply is that when the officer reaches the point where the breach of the peace is alleged to' be occurring, if he finds that his information is true and that the offense is being committed at that time, or is about to be committed, it is then his duty,-under Section 1632, to arrest the offenders without a warrant; and for a failure to- make an arrest under each circumstance he is punishable, under Section 270, Penal Code, (3 Cyc. Law, p. 883, and eases cited in note 78.)

      By tbe use of tbe word “arrest” tbe legislature undoubtedly intended it in its legal significance. Tbe constitutional pro-ylsions cited do not contain tbe word “arrest,” but use tbe words “unreasonable searches and seizures.” Tbe word “arrest” is defined by Section. 1630, Penal Code, as “taking a person into custody in tbe case and in tbe manner authorized by law.” That section further provides that “an arrest may be made by a peace officer or by a private person.” Substituting for tbe word “arrest,” as used in tbe statute under consideration, tbe definition of that term, we find that by House Bill 345 it is made tbe duty of tbe peace officer “to take into custody in tbe manner authorized by law such offender or offenders wherever they may be found.” Tbe law in question 'does not pretend to define either tbe case or tbe manner in which tbe arrest shall be made. It does not authorize, or pretend to authorize, tbe officer to arrest for an offense which has been committed, unless, of course, such offense is a felony and be has reasonable grounds for suspecting tbe person arrested to be tbe offender. There is no intent apparent on tbe part of tbe legislature to authorize or require tbe officer to arrest a person who may be pointed out by tbe informant because tbe informant may not accompany tbe officer, and if be does accompany tbe officer it is only for tbe purpose of guiding him to tbe place where tbe offense is. being committed or about to be committed.
    Tbe presumption of a legislative intent to violate the constitution is never to be assumed if tbe language of tbe statute can be satisfied by a contrary construction. Tbe application of this rule requires that wherever a statute is susceptible of two constructions, of which one would' make it unconstitutional and tbe other constitutional, tbe latter is to be adopted. (Endlicb, Constr. St, 178, and cases cited.)
    Laws are presumed to be passed with deliberation and with' knowledge of all existing laws on tbe subject. (Sutherland, St Const., Sections 137 and 333.)
    In interpreting any clause of a statute it should be construed in connection with existing laws and should be interpreted in tbe light of tbe objects and purposes that tbe legislature bad in view in its enactment. (Ter. v. Gommfrs Cascade Co., 8 Mont. 407; see, also, Section 15, Political Code.)
    It will be presumed in construing’ a statute that tbe legislature did not intend it to bave an effect which would have rendered it unconstitutional. (Gillette v. Hibbard, 2 Mont. 415.)
    Every presumption is in favor of tbe constitutionality of a legislative enactment, and tbe judicial department will be justified in pronouncing it unconstitutional only when it becomes a manifest usurpation of power. (6 Am. & Eng. Ency. Law, p. 1086, and cases in note 1; Cooley, Const. Lira., p. 218.)
    Tbe power of tbe judiciary to declare a statute unconstitutional should never be exerted except where tbe conflict between it and tbe constitution is palpable andi incapable of reconciliation. (Stockton, etc. B. B. Co. v. City of Stockton, 41 Cal. 147.)
    Tbe unconstitutionality of a statute must be clear and manifest before a court should declare it, soi that where any reasonable doubt exists as to its constitutionality it should be upheld. (6 Am. & Eng. Ency. Law, p-. 1085; People v. Van Gaskin, 5 Mont. 352; People v. By. Go., 35 Cal. 606; (Ex parte Newman, 9 Cal. 502.)
    “An intention to take away or destroy individual rights is never presumed, and to give effect to a design so unjust and so unreasonable would require the support of tbe most direct and explicit affirmation declarative of such intent.” (6 Am & Eng. Ene. Law, p. 924.)

      Messrs. Nolan & Loeb, for Respondent.
    At common law, as a general rule, an arrest could not be made, without warrant, for an offense less than felony, except for breach of tbe peace. (3 Cyc., 880, citing: Bobertson v. State, 29 So. 535; Commonwealth v. "Wright, 158 Mass. 149, 33 N. E. 82, 35 Am-. St. Rep. 475, 19'L. R A. 206; Scott v. (Eldridge, 154 Mass. 25, 27 N. E. 677, 12 L. R A. 379 ; Com

      monwealth v. O'Connor, 7 Allen, 583; Matter of Way, 41 Micb. 299, 1 N. W. 1021; Quinn v. Heizelj 40 Micb. .576; Butolph v„ Blust, 5 Lansing, 84; King y. Poe, 15 L. T. Rep. N. S. 37; 3 Cyc., 881, and cases cited.)
    A peace officer, in tbe light of tbe constitutional provisions (Article IV of tbe Amendments to tbe IT. S. Constitution; Section 7, Article III, Constitution of Montana), bas no right to make an arrest without a warrant upon information or mere suspicion that a misdemeanor bas been committed, and a statute which directs this to be done by a peace officer and provides penalties for bis failure so to do, is unconstitutional and cannot bo upheld. (In re Kellam, 55 Kansas, 700, 41 Pac. 960; Pvn-Tcerton v. Verberg, 78 Micb. 573, 18 Am. St. Rep. 473; Staten-burg v. Frazer, 16 Appeal Oases (D. C1.), 229 ; People v. Clenr non,, 74 N. Y. Supp. 79; Pickett v. State, 25 S. E. 608; Black’s Const. Law, pp. 435, 440; Cooley’s Const. Lim. (6th Ed.), 364.)
   MR COMMISSIONER, CLAYRERG-

prepared tbe opinion for tbe court.

Information was filed against tbe respondent in tbe district ci urt of Lewis and Clarke county, by which it was attempted to charge him with a violation of official duty, in tbe following language: “[Title of court and cause.] In tbe district court of tbe Eirst judicial district of tbe state of Montana, in and for tbe county of Lewis and Clarke, on this., tbe 7th day of April, A. D. 1903, in tbe name and on behalf and by tbe authority of tbe state of Montana, S. R. King is accused by tbe county attorney of Lewis and Clarke county, Montana, by this information, of tbe crime of neglect of duty as peace officer, committed as follows: That at tbe county of Lewis and Clarke, in tbe state of Montana, on or about the 26th day of March, A. D. 1903, and before tbe filing of this information, tbe said S. R. King, who was then and there a peace officer, to-wit, a special policeman of tbe city of Helena, said county and state,' and while tbe said Si R. King was on duty as snob peace officer, was informed by one R. A. Barret, wbo was then and there a citizen of tbe state of Montana, that an offense against tbe laws of the state of Montana, to-wit, tbe crime of conducting a gambling game, was being committed within tbe.limits of such officer’s jurisdiction, to-wit, at that certain public place known as tbe Capital Music Hall, in tbe said city, county, and state; that tbe said S. R. Ring did, then and there, willfully and wrongfully fail, neglect, and refuse to immediately and expeditiously, or at all, proceed to tbe said Capital Music Hall, or to tbe place where said alleged offender or. offenders were to be found; all of which is contrary to tbe form, force, and effect of tbe statute in such case made and provided, and against tbe peace and dignity of tbe state of Montana. Lincoln Working, County Attorney of Lewis and Clarke County, Montana.”

Respondent interposed a demurrer to such information upon three separate grounds, viz.: (1) That tbe facts stated do not constitute a public offense; (2) that tbe Act of the Legislature under which tbe information was filed violated tbe Constitution of tbe Hnited States; (3) that such Act violated tbe Constitution of tbe state. This demurrer, after argument, was sustained generally, tbe respondent discharged, and bis bond exonerated. From this action of tbe court tbe state appeals.

It was conceded by counsel for both parties, in their briefs and in tbe argument, that tbe information was filed under tbe provisions of House Bill 345, enacted by tbe last legislative assembly (Laws of 1903, Chapter CXI), and its sufficiency must therefore be tested by tbe provisions of that Act, and none other. So much of this Act as is important to tbe consideration of tbe questions involved in this appeal is as follows:

“Section 1. It shall be tbe duty of every sheriff, under-sheriff, deputy sheriff, constable, city marshal, chief of police, city detective, policeman, or other peace officer, upon being-informed by any citizen of this state that any offense against tbe laws of this state is being committed, or is about to be committed, by any person or persons, within the limits of such officer’s jurisdiction, to immediately and expeditiously proceed to the place where the alleged offender or offenders are to be found, in company with the informant, if he so> requests, and to arrest such offender or offenders wherever they may be found.”

The first question is whether the information states a public offense, under the terms of the above Act. We find upon examination of the Act that it attempts to impose an official duty on the part of peace officers, and provides a punishment for neglect or violation of the same. What is the duty thus imposed, and is a violation of such duty: alleged in the information ?

A careful reading discloses that the Act seeks to impose the duty upon peace officers^ when “informed by any citizen of this state that any offense against the laws of this state is being committed or is about to be committed, * * to immediately and expeditiously proceed to the place where the alleged offenders are to be found,” and to arrest them.

It is perceived that the duty is not alone to proceed “immediately and expeditiously to the place where the alleged offenders are to be found,” but also to arrest them. Were it not for the insertion of the words “immediately, and expeditiously” the only duty imposed would be the arrest, because of.-the impossibility of making an arrest without going to the place where the offenders are to be found. These words evidently were inserted only for the purpose of compelling prompt action on the part of the officer.

Counsel for the state argues that this Act imposes three several and distinct duties upon peace officers, as follows: “(1) Upon receipt of the requisite information, to immediately and expeditiously proceed to the place where the alleged offender or offenders are to be found; (2) to proceed in company with the informant, if he so requests; (3) to arrest the alleged offender or offenders wherever they may be found.” We cannot agree with counsel’s contention. We are firmly of the opinion that the purpose of the statute is to provide for the arrest of the offender, and the making of such arrest is the ultimate duty imposed. Tbis duty consists of several steps or acts, and these steps or acts are each and all parts and portions of this ultimate duty. None of them are separate or distinct duties in themselves, and therefore a violation of one or more of them, except possibly the final one, can be punished only upon an alleged violation of the duty to arrest. The public offense declared by the statute is the violation of this ultimate duty.

It appears from the information that the violation of duty charged is “that the said S. E. King did then and there willfully and wrongfully fail, neglect, and refuse to immediately and expeditiously, of at all, proceed to- the Capital Music Hall, or to the place where said alleged offender or offenders were to be found.” This is not sufficient, because it only charges a violation of one of the steps preliminary to the ultimate duty.We are therefore clearly of the opinion that the facts stated in the information do not constitute a public offense, and that the demurrer was properly sustained.

We shall not consider the questions raised as to the constitutionality of the Act. It is well-settled law that a court will not pass upon the constitutionality of any Act of the legislature unless it is absolutely necessary to a decision of the case. It is not necessary here, and we do not even intimate an opinion upon this question.

We are of the opinion that the demurrer was properly sustained, and that the judgment of the court below should be affirmed.

Pee Cubiam. — For the reasons stated in the foregoing opinion, the judgment of the lower court is hereby affirmed.