author: PER CURIAM. Hunt, J.,

text:
    STATE ex rel. BOSTON & MONTANA CONSOL. COPPER & SILVER MINING CO. v. SECOND JUDICIAL DISTRICT COURT et al., Defendants.
    [No. 1,374.]
    [Filed April 17, 1899.]

      Judges — Duty to Hear Motion — Mandamus.
    Motions noticed for hearing March 6th were postponed by the judge, at his own instance, to March 15th, when they, with another motion returnable on that day, were postponed to March 18th. On the 18th the judge again postponed them to March 30th. To an alternative writ of mandate issued March 21st, directing him to show cause why he should not hear the motions, he answered that on March 15th he had designated the 18th as the time for hearing them, but that thereafter he had been served with a writ of prohibition from the Supreme Court; that on the 18th he was engaged in a jury trial, and therefore postponed the hearing until March Both, intending to hear them at that time, but in the meantime the alternative writ was served on him, and on the 80th he was engaged in the trial of another cause, and tliat, considering the application for the mandamus unjustifiable and premature, he determined to move to have It set aside, and therefore postponed the hearing of the motions to April 7th; that on March 3lst he was informed that the writ of prohibition prohibiting him from proceeding with the cause had been denied, and he thereupon vacated the order setting the motions for April 7th, and set them for hearing on April 1st; that, in any event, he intended to have the hearing on April 3d. and would not refuse to hear and determine said motions until required to do so by order of the Supreme Court; and that no order of the Supreme Court ever was or is necessary to compel him to hear and determine said motions. Held, that the answer was, and was designed to be, evasive; that nothing appeared in the answer justifying said judge in postponing the hearing upon said motion so often and for such length of time; that said judge’s treatment of said applications by relator for relief was unjustifiable, unfair and oppressive; and that a peremptory writ should issue.
    Aprlication by the State, on the relation of the Boston & Montana Consolidated Copper & Silver Mining Company, for a writ of mandate to the Second Judicial District Court, and to the Honorable William Clancy, judge thereof, requiring the defendants to determine certain motions pending in said court.
    Peremptory writ issued.

      Wm. II. De Witt, Wm. Scallon, W. W. Dixon, Wm. Wallace, Jr., Carpenter dé Carpenter, and It. Cooper, for Relator.

      J. J. McIIatton, It. B. Smith, and Cullen, Day ds Cullen, for Defendants.
   PER CURIAM.

Application for a peremptory writ of mandate to compel the Second Judicial District Court of Silver Bow County to proceed to hear and determine three several motions in the case of James Forrester and John MacGinniss against the Boston & Montana Consolidated Copper & Silver Mining Company and others, pending in said court.

The affidavit sets forth the history of the litigation in the various phases of this case, giving in detail all the facts contained in the several statements, both in the original case (21 Mont. 544, 55 Pac. 229), and in State ex rel. Boston & Montana Consol. C. & S. Mining Co. v. Second Judicial District Court et al., 22 Mont. 220, 56 Pac. 219; Id., 22 Mont. 241, 56 Pac. 281; Id. 22 Mont. 376, 56 Pac. 687, — the last decided by this Court March 31st. The several motions upon which a hearing is sought to be had by this application are: A motion to vacate and' set aside an order made on December 15, 1898, appointing Thomas R. Hinds receiver for the property of relator; a motion to require the receiver to give an additional bond; and a motion to stay proceedings and restrain the receiver from taking possession of the property until the other motions could be determined. The first-mentioned motion is the same as the one mentioned in State ex rel. Boston & Montana Consol. C. & S. Mining Co. v. Second Judicial District Court et al., as the motion “to discharge the receiver.” The dates upon which these various motions were made and called to the attention of the District Court, and their history down to March 21st, the date of this application, will be found in the statement preceding the opinion in State ex rel. Boston & Montana Consol. C. & S. Mining Co. v. Second Judicial District Court et al., 22 Mont. 376, 56 Pac. 687. To make the statement here intelligible, we set them out again. The first and second of them were made on February 28th, and noticed for March 6, 1899. The last of them was made in open court on March 15th, when counsel for both sides, and also for the receiver, were present. It further appears from that statement that the hearing of all these motions was postponed from time to time by the court until March 18th. From the affidavit of relator it appears that these various postponements of the hearing were upon the court’s own motion, no cause appearing therefor at any time, though upon each of the dates set for the hearing the relator was present with counsel ready to be heard. ' On each of these occasions counsel for Forrester & MacGrinniss and the receiver were also present. On March 18th the court again postponed the hearing, as at other times, until March 30th. At the time of these various postponements, up to and including the one ordered on the 18th, the Honorable William Clancy, the judge of the said court, gave as his reason for his action in the premises that the relator had original applications pending in the Supreme Court, and that he could not hear the motions, and would not do so, until these had been disposed of. At none of the times when a postponement was made was there any press of business in the court preventing the said judge from hearing any or all of the motions, except that on March 18th a jury erial was in progress, when the postponement until the 30th was ordered. This order was not made for the reason that a trial was in progress, but for the reason that the judge was not willing to proceed with the hearing until the Supreme Court had decided the motions before it. From the affidavit it appears, further, that the matters pending in this Court to which the Honorable William Clancy referred were the application for a writ of prohibition filed in this Court early in January, in State ex rel. Boston & Montana Consol. C. & S. Mining Co. v. Second Judicial District Court et al., and decided on February 27th, the remittitur being retained by this Court until March 15th, and the application for the same sort of a writ filed in this Court in State ex rel. Boston & Montana Consol. C. & S. Mining Co. v. Second Judicial District Court et al., on March 15th, and decided on March 31st. To the affidavit are attached, as exhibits, and as parts thereof, stenographic notes of all the proceedings at each of the postponements after March 6th, giving the arguments of counsel, when argument was permitted, and the statements of the judge of the said court, showing that the said judge ordered all the postponements without any other cause or reason than that he would hear and dispose of the motions when the relator had ceased to apply to the Supreme Court for extraordinary writs. Postponements were had of the first and second of these motions on March 6th and 9th, and, after the third motion was made, on the 15th, and all three were called up on that date, and again on the 18th.

After setting out all these facts, the affidavit then charges that the said court had refused to grant the relator any relief whatever in the premises, and was proceeding to put the receiver in charge of relator’s property wrongfully and unjustifiably, under a bond of only §100,000, whereas the property is worth many millions of dollars, and yields an income of §30,000 per'day; that the receiver was appointed in the first place without notice, at the instance of the plaintiffs, for the purpose, not of protecting any of the stockholders of the relator, but to aid the Montana Ore Purchasing Company, a rival corporation, and F. Augustus Heinze, the president and principal stockholder therein, to accomplish their own private and selfish ends; that the purpose of the judge of the said court in thus postponing the hearing from time to time without cause was to put the receiver in charge of the property of the rela tor, well knowing that the necessity for the receiver did not exist; that this action on the part of the said court was op pressive, and designed to aid the rival corporation; and that the said court did not intend to hear, and would not hear, the relator’s applications, thus denying relator any redress what ever.

The alternative writ was issued by this Court on March 21st, directing the said District Court and the Honorable William Clancy, the judge thereof, to proceed to hear- and determine the said motions, or to show cause in this Court, on March 31st, why this had not been done. On March 31st the judge of the said court filed in this Court his motion to quash the alternative writ and dismiss the application, setting forth various grounds. After argument, the motion was overruled, the grounds stated in the motion not being deemed sufficient, and the Honorable William Clancy was required to file his answer on April 1st. This answer was filed. It alleges that the motions mentioned in the affidavit had been set for hearing by him, as the judge of said court, for March 30th; that they had been set for this time with the intention on his part to hear them; that on March 15th he had designated the 18th as the time for hearing them, but that, after such designation had been made, he had been served with a writ of prohibition from this Court; that on the 18th, at the time set for the hearing, the court was engaged in the hearing of a cause with a jury; that he had therefore made an order postponing the hearing again until the 30th; that he intended to hear the motions at that time; that on March 22d the alternative Avrit of mandate herein had been issued and served upon him at the instance of relator; that on March 30th he was engaged in the trial of a cause entitled “Annie Hanley v. The City of Butte;” that said cause was concluded during the forenoon; that there were other causes on the calendar regularly set for trial for the days succeeding March 30th; that after considering the affidavit of relator herein, and believing the application not justified and premature, because the motions had already been set for hearing on the 30th, he deemed it proper to move this Court to set aside the alternative writ, and dismiss the application, and that he had determined on this account to postpone the hearing to some future day; that he therefore entered an order postponing it until April 7th; that on March 31st, when it came to his knowledge that this Court had denied the writ of prohibition, the application for which had theretofore been pending herein, and had refused to set aside the alternative writ of mandate, he had vacated the order setting the hearing for April 7th, and, after notice to counsel, set it for April 1st, intending to hear all the motions, if the business in his court would permit him to do so; that, in any event, he intended to have the hearing on April 3d, without regard to whether this Court should issue a peremptory writ or not; that he will not refuse to hear and determine the said motions until required by the order of this Court todo so; that no order of this Court ever was or is necessary to compel him to hear and determine said motions; and that as to the allegations in the affidavit, reflecting upon him personally and as judge of the said court, he does not think it necessary to deny them, as they are immaterial, but that they are not, therefore, to be taken by this Court as admitted.

Immediately upon the filing of this answer, the Court proceeded with the hearing, and, after consideration, concluded that nothing appeared in the answer justifying the said Clancy, as the judge of the said court, in postponing the hearing upon the said motions so often and for such length of time; that the said answer was, and was designed to be, evasive; that the course of the said Clancy, and his treatment of said applications by relator for relief, were unjustifiable and unfair and oppressive; that the said judge well, knew that he was not prevented from hearing said motions, and determining them, at any time, by any writ or other process from this Court; and that he well knew that the matters involved in said motions were of great import to the relator and the other parties. interested in the said cause, and that the parties thereto were entitled to .a speedy hearing thereon.

It was thereupon ordered and adjudged that a peremptory writ issue directing the said Clancy, as the judge of said court, on or before April 3d, at the opening of court on that day, to proceed to hear and determine all of said motions, and that he make due return to this Court on April 7th, at the hour of 10 o’clock a. m., of his actions and doings in the premises.

On April 7th the Honorable William Clancy made his return to this Court, from which it appeared that on April' 1st, at the opening of court, he proceeded to hear all of the said motions, and continued therein on every judicial day thereafter until April 6th, when the hearing was completed, except that relator withdrew its motion for stay of proceedings, and this motion was not heard. Request was made of this Court that the time for a final return under the writ be extended until April 10th. A motion was thereupon made by the relator that this Court impose a fine upon the said William Clancy, because it appeared from his return that he had failed to comply with the command of the writ. ■ This motion was denied, and the request for delay of the final return until April 10th was granted, except that, as to the motion that the receiver be required to give additional bond, an order was made that it be determined forthwith, and that return in that regard be made on April 8th. A supplemental return was made on April 8th,- showing that this motion had been determined. On April 10th final return was made; showing that the writ had been fully complied with and obeyed.

Hunt, J.,

was absent on April 1st, and took no part in the proceedings on that day. With this exception, the hearings were had, and orders made herein, by the whole Court.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    PIERCE, Appellant, v. GREAT FALLS & CANADA RAILWAY CO., Respondent.
    [No. 1,056.]
    [Submitted March 6, 1899.
    Decided April 17, 1899.]

      Railroads — Specific Acts of Negligence — Pleading—Review— Verdict.

    1. "Where, in an action against a railroad company, plaintiff alleges that his damage was the result of specific acts of negligence, he cannot recover for negligence outside such acts, since he must stand on the cause of action stated.
    2. A judgment for defendant in an action against a railway company for damages for negligently running its train through a windstorm, resulting in its derailment, is proper, where the evidence of such negligence, aside from the fact of derailment, is so slight as to be wholly insufficient to go to the jury, and the mere prima facie inference of negligence arising from the fact of derailment is rebutted and overcome by proof.

      Obiter.- There must be more than a mere scintilla of evidence to justify a verdict, or it will not be permitted to stand.

      Appeal from, District Court, Cascade County; C. II. Benton, Judge.

    Action by Mary Pierce against the Great Falls & Canada Railway Company. From a judgment for defendant, and an order refusing a new trial, plaintiff appeals.
    Affirmed.

      J. C. Euntoon and J. A. Lar gent, for Appellant.

      Thos. E. Brady, for Respondent.
   PER CURIAM.

Having' suffered personal injuries by the derailment of a car in which, as a passenger, she was being carried by the Great Falls & Canada Railway Company, Mary Pierce brought this action to recover $20,000 as damages therefor. ,)

The complaint contains the following allegations of negligence: “That while said plaintiff was such passenger on said car, at or near a station or place known as ‘Sweet Grass, ’ in Teton county, Montana, on the said defendant’s railway in the said state of Montana, the said car was derailed, thrown from the track of the said railway, overturned and burned; that said defendant wholly neglected to furnish a good and safe and properly equipped car in which to convey plaintiff, but had on said train a passenger coach that was improperly •equipped, and had in charge of and on said train of cars, and in charge of the locomotive attached thereto, employes that were unfit and incompetent to discharge their duties as such employes, and did not furnish a proper and safe roadbed, ties, rails, and track, and did not inspect the said train of cars, and did not inspect, or keep in a good state of repair, the roadbed of the said railroad, but failed to discharge their duties in that behalf; all of which acts of negligence and omissions as herein alleged were well known to the defendant company and its employes in charge of said train and in charge of said roadbed and track, but were not known to this plaintiff. And while said plaintiff was such passenger on said car, being conveyed from the town of Lethbridge, Canada, to the city of Great Falls, Montana, near a station at the place known as ‘Sweet Grass, ’ in Teton county, state of Montana, on said defendant’s said railway in said state of Montana, the said car, by reason of the said negligence of the company and its employes as aforesaid, was derailed, thrown from the track of the said railway, overturned, and burned, which said derailment, overturning, and burning were caused by the carelessness and negligence of the said defendant and its servants, ’ ’ whereby the plaintiff was injured. The answer contains denials of the foregoing averments of the complaint with respect to negligence, and alleges that the derailment and burning of the car were •caused by the act of God, and that it was beyond the power •of human agency to prevent said accident; that at the time of the accident a great and unusual windstorm was raging, which blew the car from the track; and it was beyond the power of •defendant to prevent the accident. The reply denies that at the time of the accident, or at any other” time, the car was derailed by the windstorm, or otherwise or in any other way than as alleged in the complaint, or that the derailment or burning was on account of the act of God, or of any other reason except as alleged in the complaint, and states that the derailment and burning were caused by reason of the defective condition of the roadbed, rails, ties, track, cars, locomotive, and the alleged negligence and failure to properly inspect and equip, as alleged in the complaint, and by the recklessness, negligence, and incompetency of the defendant and its employes, as alleged in the complaint. The plaintiff further denies that there was a great or unusual, or any, windstorm raging, and alleges that the derailment and destruction were due wholly to the recklessness, inefficiency, and negligence of said employes of the defendant, and failure and neglect of defendant, as alleged in the complaint. The jury returned a general verdict for defendant, and also found specially that the car was overturned by the wind alone. Judgment was thereupon entered in favor of defendant. Plaintiff appeals from the judgment, and from an order refusing a new trial.

1. No contention is made in this Court that defendant failed to furnish a safe and properly equipped car; nor does plaintiff claim that the employes of defendant were incompetent or unfit, nor that the roadbed, ties, rails, and track were unsafe, nor that the train of cars was not inspected. As to all these matters, the concession is made that defendant was free from negligence. There is but one question involved in this appeal, and necessary to its determination. It is conceded by the plaintiff, in her brief and on the oral argument, that, if the defendant is liable, it is so only because it was guilty of negligence in running the train through a severe windstorm from a station called “Sweet Grass” to the point where the accident occurred; and every assignment of error is based upon the supposed misdirection, and refusal to charge as prayed, upon that question.

Proof of the derailment of a car, in consequence of which a passenger therein was injured, being ordinarily prima, jade evidence of negligence on the part of the common carrier (Ryan v. Gilmer, 2 Mont. 517; Patterson’s Ry. Acc. Law, p. 438, Chapter VI; 5 Am. and Eng. Ency. Law (2d Ed.) p. 627, and notes), no necessity exists for the passenger to allege the particular cause of the accident. (Thompson on Carriers of Passengers, p. 547, Sec. 9; Clark v. Chicago, etc., Railway Co., 15 Fed. 588.) In the case at bar, however, the plaintiff, instead of stating generally the failure of the defendant to exercise care in the discharge of its duties, alleged in her pleadings the particulars in which the negligence of defendant consisted. She could not recover for negligence in any other respect, for a plaintiff must stand upon the cause of action stated in the complaint. (Price v. St. Louis, etc., Railway Co., 72 Mo. 414; Schneider v. Mo. Pac. Railway Co., 75 Mo. 295; Atchison v. Chicago, etc., Railway Co., 80 Mo. 213; Straight v. Odell, 13 Ill. App. 232; Toledo, etc., Railway Co. v. Beggs, 85 Ill. 80.) True, the recital, “which derailment, overturning, and burning were caused by the carelessness and negligence of said defendant and its servants, ’ ’ is made in the complaint; but this must, we think, be construed in connection with, and as controlled by, the other allegations of the complaint and reply, charging the negligence to have consisted in the omission to discharge certain specified duties. Although a reply was not required (Babcock v. Maxwell, 21 Mont. 507, 54 Pac. 943), still any admissions or averments of the reply are to be taken against the plaintiff, as a limitation of the issues. Plaintiff “cannot assert a right to go without the lines within which he voluntarily confined himself in the District Court.” (Aikens v. Frank, 21 Mont. 198, 53 Pac. 538.)

2. In any aspect of the case, the appeal is without merit. W e have carefully examined all the evidence contained in the record. That the car was derailed by the force of a great and unprecedented wind was conclusively proved, and is not controverted. If the concession be made that the pleadings are sufficient to raise the question of whether or not the defendant was guilty of negligence in running through the storm, a verdict for plaintiff would not be permitted to stand; for there must'be more than a mere scintilla of evidence to justify a verdict. The evidence of negligence in the regard last mentioned (if, indeed, there is any, aside from the fact of derailment), is so slight as to be wholly insufficient to go to the jury; and the mere prima facie inference of negligence arising from the fact of derailment was met, rebutted, and overcome by the proof. The district court would not have erred in granting the nonsuit for which defendant moved at the close of the testimony. (See Garver v. Lynde, 7 Mont. 112, 14 Pac. 697; Wilson v. S. P. Railroad Co., 62 Cal. 172; McQuilken v. C. P. Railroad Co., 50 Cal. 8.)

The verdict and the judgment are clearly right, and will not be disturbed. Let the judgment and the order denying the motion for a new trial be affirmed.

Affirmed.


author: HUNT, J. PER CURIAM

text:
    STATE ex rel. REINS et al. v. SIXTH JUDICIAL DISTRICT COURT, Defendant.
    [No. 1,342.]
    [Submitted April 3, 1899.
    Decided April 24, 1899.]

      Appeal — Stay Bond — Justification of Sureties — Release of Sureties— Certiorari.

    1. Civil Code, Sections 3681. 3682, provide that a surety cannot be held beyond the express terms of his contract, in the interpretation of which the same rules shall govern as in other contracts. Code of Civil Procedure, Sections} 1726,1730, provide that an appeal does not stay execution unless an undertaking be executed by appellant, with sureties, conditioned for payment of the judgment as affirmed, which appeal, thus perfected, shall stay all further proceedings in the court below. Id. Section 1732, provides that, where sureties fail to justify when excepted to, execution on the judgment shall be no longer stayed. Held, that sureties on such a bond were not liable, though they failed to justify as required, where respondent, before determination of the appeal, issued execution against appellant.
    2. The statute requiring a justification of sureties on a stay bond, is directory, and meant to be for respondent’s, not appellant’s, benefit, and may be waived by respondent.
    3. Stay of execution being a consideration of great value, sureties who execute an undertaking therefore have a right to rely upon the letter of their bond, and to stand upon the entirety of the expressed consideration.
    4. A respondent, who, in total disregard of the contract expressed in terms in the bond of the sureties, proceeds with a levy and sale under an execution before the determination of the appeal in the Supreme Court, elects to abandon the security of the stay bond, and thereby waives his right to a judgment against the sureties.
    5. Where sureties on a bond given to obtain stay of execution on appeal fail to justify when excepted to, as required by statute, and respondent thereafter, and before the appeal is determined, obtains an order authorizing execution against appellant, and levies on and sells the latter’s property, thereby releasing the sureties, the entry of judgment against them by the lower court, after affirmance, on motion of respondent, is in excess of jurisdiction, and reviewable by certiorari.

      On Rehearing. — Any action of the judgment debtor in proceedings to which the sureties on a stay bond were not parties, and with which they had nothing to do, cannot modify the contract of, or impose any liability upon, the sureties not included in the bond itself.
    Certiorari by the State, on relation of John P. Reins and others, against the District Court of the Sixth Judicial District in and for Carbon County, to review a judgment.
    Judgment set aside as to relators.
    Statement of the case by the Justice delivering the opinion.

      Certiorari to review a judgment of the District Court of the Sixth Judicial District entered November 21, 1898, against the relators, for $3,456.47, as sureties on an undertaking to stay execution on appeal to this Court from a judgment of said district court in the case of BecJc v. O’ Connor et al., reported in 21 Mont. 109, 53 Pac. 94.
    The return shows that on July 23, 1896, judgment was entered in the aforesaid court in favor of Walter Cooper and William O’Connor, against William Beck, for the sum of $4,203.50 and costs; that on March 20, 1897, said Beck appealed from said judgment to this Courtj and attempted to procure a stay of execution by filing an undertaking on appeal, signed by relators as sureties. The undertaking recites that, whereas William Beck is about to appeal to the Supreme Court from the judgment made and entered against him in the aforesaid action of BecJc v. O' Connor, etc., and continues substantially as follows: Now, therefore, in consideration of the premises, and of such appeals, we, the undersigned (naming the sureties, who are relators in this application), “do hereby jointly and severally undertake and promise, on the part of the appellant, William Beck, that the said appellant will pay all damages and costs which may be awarded against him on the said appeals, not exceeding three hundred dollars, to which amount we acknowledge ourselves jointly and severally bound.
    ‘ ‘And whereas the appellant is desirous of staying execution of the said judgment so appealed from, we do further, in consideration thereof and of the premises, jointly undertake and promise, and do acknowledge ourselves further jointly and severally bound in the further sum of eight thousand four hundred and thirty-six ($8,436.00) dollars, being double the amount named in said judgment, that if "said judgment appealed from, or any part thereof, be affirmed, or the appeal be dismissed, the said appellant shall pay respondents the amount directed to be paid thereby, or the part of such amount as to which the same shall be affirmed, if affirmed only in part, and all damages and costs which shall be awarded against the appellant upon the appeal; and that if the appellant does not make such payment within thirty days after the filing of the remittitur from the said Supreme Court in the court from which the appeals are taken, judgment may be entered, on motion of the respondents, in their favor, against the sureties for such amount, together with interest, that may be due thereon, and the damages and costs which may be awarded against the appellant, upon the said appeals herein; provided, however, that the judgment to be entered, as aforesaid, against the said sureties shall be for such amounts only as in their affidavits of justification, accompanying this undertaking, each of the said sureties states that he is severally worth.5 5
    It further appears that, upon the filing of said undertaking, and within the time prescribed by law therefor, respondents in said appeal served and filed their exceptions to the sufficiency of the sureties to the above undertaking. This was done under Section 17 32, Code of Civil Procedure. It then appears that the sureties on said undertaking did not justify, as required by law, and that thereafter, on the 17th day of May, 1897, respondents in said appeal, by petition to said district court, set forth the fact of the service of the notice to the sureties to justify as required by law, and their failure to do so, and asked the said court to order the Clerk of the Court in and for Carbon county in said Sixth judicial district to issue an execution to satisfy the judgment theretofore rendered in said cause; and that, if judgment could not be made out of the property of Beck in Carbon county, the clerk be directed to issue alias executions to the sheriffs of Gallatin and Silver Bow counties, respectively. This petition was heard, and on May 17th an order made in accordance with the prayer thereof.
    The return shows that the sheriff of Gallatin county levied upon and sold certain real property belonging to William Beck, but the amount realized was insufficient by a large sum to satisfy the judgment.
    It also appears that, on the appeal .to this Court from the judgment referred to, in Beck v. O' Connor, supra, the judgment of the District Court was affirmed on May 9, 1898. The remBtilur of this Court was filed in the district court on July 11, 1898.
    Thereafter, and on November 21, 1898, counsel for defendants and respondents in the suit of Beck v. O' Connor, supra, moved the district court that judgment be entered against the several bondsmen of Beck on the appeal bond filed March 20, 1897. It appears this motion was not served upon or contested by these relators, bondsmen in the bond on appeal. The motion was granted, and on the same day (November 21, 1898) judgment was rendered in favor of Cooper and O’Connor, and against the sureties, for $3,456 47, balance due on the judgment against Beck, together with interest.
    Thereafter Cooper and O’Connor had execution issued against these relators, and placed the san e in the hands of the sheriff of Silver Bow county; and, under command of the execution, the sheriff was about to levy upon and sell the property of relators, when writ herein was issued commanding the said district court to certify to this Court a transcript of the record and proceedings in the action of Beck v. O' Connor etal., to be reviewed by this Court; and in the meantime the district court was directed to desist from further proceedings, and execution was stayed.

      K JST. Harwood and Bobt. McBride, for Relators,

      A. J. Campbell and Sydney Fox, for Defendant,.
   HUNT, J.

The consideration of the undertaking of these delators was a stay of execution pending the determination of the appeal from the District to the Supreme Court in the case of Beck v. O'Connor et al., 21 Mont. 109, 53 Pac. 94. If ho stay c'oú'ld have been had until the judgment of this Court has rendered, the sureties might never have executed the bond. Certain present conditions often exist under which a man will assume a liability upon an appeal and stay bond which under other circumstances he would not. The suspension of a levy under an execution against a judgment debtor until his appeal can be heard by the Supreme Court may operate so advantageously to such an appellant as to impose upon the sureties on the stay bond comparatively slight risk of eventually having to pay the judgment appealed from should the same be affirmed; while a levy before the appeal is heard and determined might have the effect of ruining the appellant, and removing every opportunity, otherwise close at hand, to prepare himself to pay the judgment, if affirmed, and to protect his sureties against payment on their part. Stay of execution being a consideration of great value, sureties who execute an undertaking therefor have a right to rely upon the letter of their bond, and to stand upon the entirety of the expressed consideration therein, and their liability cannot be extended by implication. (Smith v. Lovell, 2 Mont. 332.) This principle is formulated in Sections 3680 and 3681 of the Civil Code, which provide that a surety cannot be held beyond the express terms of his contract, and that, in the interpretation of the terms of a contract of suretyship, the same rules are to be observed as in the case of other contracts. In the application of these general rules it is necessary that relators be secured the consideration, and the entire consideration, named in the express terms of their bond or undertaking, unless they have done that which has excluded them from the benefits of the rules. Let us see if they have. The record shows that they agreed that, in consideration of a stay of execution of the judgment appealed from, they became bound in the sum named in the undertaking that if said judgment appealed from, or any part thereof, was affirmed, or the appeal was dismissed, by the Supreme Court, appellant Beck would pay respondents Cooper and O’Connor the amount directed to be paid, and all damages and costs awarded against appellant on the appeal. They did not agree to pay if any stay was given, but did if a stay was given until the appeal was affirmed or dismissed by the Supreme Court.

But what occurred ? Nearly a whole year before this Court handed down its opinion in the appealed suit of Beck v. O'Connor et al., supra, affirming the judgment of the lower court, execution on the judgment appealed from had been issued by an order of the district court, made at the instance of respondents Cooperand O’Connor, the property of the appellant Beck had been levied upon and sold, and the proceeds of such sale had been applied on the judgment appealed from. So far, this action of respondents was in total disregard of the contract of the sureties, and put the respondents in an attitude of announcing to the sureties that, as respondents, they would no longer rely upon the undertaking for a stay, but had abandoned the same, and had resorted to their execution by levying upon the appellant’s property.

Now, we inquire whether the bondsmen can avail themselves of this action of respondents to claim exoneration from liability on the stay bond. Counsel say the sureties cannot, even though their contract is express in its terms, because of their omission to justify on the stay bond, as required by Section 1732 of the Code of Civil Procedure, after exception to their sufficiency was made in due form by O’Connor and Cooper. This omission, it is argued, was the sureties’ own act, and, because of it, execution was no longer stayed; wherefore it is concluded that O’Connor and Cooper, respondents in the appealed suit, had a right to proceed under the execution, and, if the judgment was not satisfied by the execution against Beck, they could still hold the sureties should the judgment be affirmed on appeal to this Court. This argument has an unsound basis, for it necessarily involves the proposition that a justification to an undertaking, if required of the sureties after they have been excepted to, becomes so blended with the undertaking itself that nonobservánce of the statute requiring the justification not only fails to longer stay the execution, but reaches to the letter of the undertaking itself,' by importing into its terms an agreement to pay the judgment appealed from, if affirmed or dismissed, notwithstanding the fact that the express consideration of a stay pending the determination of the appeal by this Court has failed. The exact fault of this reasoning seems to us to lie in a confusion of the consequences of a failure on the part of sureties to justify with those following the levy of an execution by respondents before the appeal is determined by this Court. Mere failure to justify does not relieve the sureties guilty of the omission, and constitutes no defense against their liability. (Blair v. Hamilton, 32 Cal. 50; Murdock v. Brooks, 38 Cal. 596.) Their contract to pay the judgment appealed from, upon affirmance or dismissal thereof, is not at all affected (People v. Shirley, 18 Cal. 121; Lee v. Watson, 15 Mont. 228, 38 Pac. 1077), nor is their obligation in the least lessened, by neglect to prove their solvency, provided the consideration of a stay is not taken away from them by the voluntary act of the respondents. The statute requiring a justification is directory, and meant to be for respondents’, not appellant’s, benefit. Respondents here could have waived the statutory provisions entirely by never moving to have the sureties justify; yet the sureties’ undertaking would have stood as of full force and effect so long as its consideration was not impaired, until the determination of the appeal or the dismissal thereof by this Court. We do not question the correctness of the doctrine recognized in Moffat v. Greenwalt, 90 Cal. 371, 27 Pac. 296, which will not allow sureties on a stay bond to claim release where, through their own omissions, they have failed to justify under a statute like Section 1732, requiring them to do so if their sufficiency is excepted to. Unquestionably, that is the law. But that rule does not conflict at all with the right of sureties to have the stay of execution granted and named as the consideration of their undertaking, if they are to be called upon to pa/y thejudg ment when affirmed; and it is this right that these sureties have never waived. It was not, therefore, the nonobservance of the statute which relieved the sureties of liability at all, for it did not; but it was the act of the respondents in levying the execution against the property of the judgment debtor, and selling the same when they need not have done so, and should not, if they meant to rely upon the sureties’ undertaking for a stay, executed for their benefit. Respondents had a right, under Section 1732, supra, to proceed with the execution after the time had elapsed in which the sureties should have justified, no matter whether the appeal had been heard or not; for execution was no longer stayed, and, under such circumstances, the sureties could have interposed no obstacle to the levy upon the appellant’s property; but, in pursuing that course, they destroyed the consideration named in the sureties’ contract, deprived them of the benefit of it, and, having done so, they cannot now fix the sureties’ liability under contingencies not embraced in their undertaking, or the several statutes, including Sections 1726 and 1730 of the Code of Civil Procedure, with relation to which the undertaking was given. Having made their election to proceed with the levy and sale thereunder, we think they chose to treat the stay bond as ineffectual, and we hold that they have waived their right to a judgment against the sureties. As bearing more or less upon the case, we cice Columbia & P. S. Railroad Co. v. Braillard, 12 Wash. 22, 40 Pac. 382, and Powers v. Chabot, 93 Cal. 266, 28 Pac. 1070.

It is hardly necessary to add that, in discussing the liability of the sureties on the stay bond, we do not mean to imply that the bond is not good to perfect the appeal itself. We believe it is. (Schacht v. Odell, 52 Cal. 447; Hill v. Finnigan, 54 Cal. 311; Hayne, New Trials and App. p. 678. ) Our opinion only goes to the effectiveness of the obligation to secure the ancillary relief of staying execution on the judgment from which the appeal is prosecuted.

2. As to remedy by certiorari: Was the action of the district court in entering judgment in favor of the respondents Beck and O’Connor, against the sureties on the stay bond, in excess of the jurisdiction of that court ? We believe it was. As hereinbefore decided, when the respondents proceeded with the levy and sale, they elected to abandon the security of the stay bond, and released the sureties upon their undertaking to pay the judgment affirmed by this Court. Respondents’ position became analogous to that of a plaintiff who dismisses one of two causes of action against a defendant. This he may do according to the provisions of the Code (Code of Civil Procedure, Sec. 1004); and if he so acts defendant is no longer bound to pay attention to that cause which plaintiff has dismissed (Loeb v. Willis, 100 N. Y. 235, 3 N. E. 177). Relator’s case is stronger, however; for, until the judgment appealed from was affirmed by this Court, and until the remittitur was filed with the Clerk of the District Court, and until appellant had failed for thirty days thereafter to pay the judgment, no judgment could have been rendered against the sureties, for until then the court acquired no jurisdiction over their persons, under the stipulations of their contract or otherwise. Furthermore, at that time they were under no obligation to go into the district court, for the reason that the records of that court showed the prior order authorizing execution and levy, together with the fact of levy and sale, which (always considering the bond for a stay only) operated as a complete release to the sureties, and put them beyond the jurisdiction of the court in subsequent ex parte proceedings attempted to be had against them under the terms of the stay bond and the statute under which the bond was given. (Watts v. Overstreet, 78 Tex. 571, 14 S. W. 704.) The contingencies necessary to happen before the sureties’ liability was fixed had not only failed to happen, but, by respondents’ prior action, they had been prevented from happening; and, in our judgment, the court had lost jurisdiction over these relators.

The case is one, therefore, where the action of the court in entering judgment against the sureties, and authorizing execution thereunder to be issued, was more than a mere irregularity or error of law occurring in the course of proceedings which the court was authorized to conduct, and amounted to an excess of the power of the court, and became subject to be reviewed by this writ.

It is therefore ordered that the judgment and order of, the district court in and for Carbon county, made and entered on November 21, 1898, against these relators as sureties upon the stay bond in the case of Beck v. O’Connor, in so far as it affects said relators as sureties on the stay bond, be, and the same is hereby, set aside and annulled.

Brantly, C. J., and Pigott, J., concur.

ON PETITION FOR RE-HEARING.

[Submitted May 5, 1899. Decided May 15, 1899.]

PER CURIAM

Defendant’s counsel pray for a re-hearing, calling our attention to the fact that it appears by the record in the case of Beck v. O’Connor et al. cited in tbe opinion, that on May 18th, 1897, execution was issued directed to the sheriff of Gallatin county, who levied upon and advertised for sale certain real estate of Beck, but that about July 1st, 1897, Beck caused a writ of injunction to be issued out of the district court of Gallatin county restraining the sheriff from making a sale ; whereupon the sheriff returned said execution without making such sale or the sale of any property under the execution. The district court dissolved the injunction but continued it in force pending an appeal to this Court. On appeal the order of the lower court dissolving the temporary injunction order was affirmed on May 9th, 1898. (Beck v. Fransham, 21 Mont. 117.) It therefore appears that no property was ever sold under the execution issued to the sheriff of Gallatin county,' nor was any other execution issued until after the judgment in the case of Beck v. O’Connor et al., was affirmed by this Court on May 9th, 1898.

These dates and facts disclose that the petition of relators for the writ of certiorari erred in its allegation that the “property of said plaintiff and appellant William Beck was-seized and sold thereunder during the pendency of said appeal. ’ ’ In their brief, also, relators made the same mistake, and, as no correction of the statements was made by defendant before the submission of the case,- we took the averment of the petition to be in exact accord with the record,, and relied thereon as an admitted fact. It is conceded that the mistake was inadvertently made and overlooked, by the-respective counsel, but now that it is brought to our attention-we are pleased to rectify it.

However, after consideration of the facts as modified, we are unable to change our opinion as to the legal principles applicable to the case. It matters not that the judgment debtor Beck insisted in Beck v. Fransham,, supra, that the execution, of the bond operated as a stay, notwithstanding the fact that the sureties failed to justify, for his contention could not modify the contract of, or impose any liability upon, the-sureties on the stay bond not included in the bond itself, — and. it is the sureties’ rights which are here involved. O’Connor and Cooper having caused the execution to issue and the property of Beck to be levied upon pending the appeal, must be-regarded as having elected to release the sureties, and as having waived their rights to thereafter insist upon the sureties’ liability; and it matters not that an actual sale was prevented, the intervention through which the sale was stopped having-been a proceeding to which the sureties were not parties and with which they had nothing to do.

O’Connor and Cooper cannot play fast and loose by suing-out and levying execution, thus violating the contract, yet afterwards have it enforced for the reason that execution was stayed the stay not having been procured at their instance: If: the property of Beck turned out to be insufficient to pay the-judgment, the sureties ought not to be responsible for the deficiency, for they had long before been released by the acts of. O’Connor and Cooper. The motion must be denied.

Motion denied..


author: PER CURIAM

text:
    BABCOCK, Respondent, v. CALDWELL, Sheriff, Appellant.
    [No. 1092.]
    [Submitted. April 19, 1899.
    Decided April 24, 1899.]

      Conversion• — •Pleading—Allegations of Ownership — Appeal— Matters not in Record — Rules of Supreme Court — Briefs—• Assignment of Errors.

    1. In conversion, where damages only are recoverable, it is sufficient to allege plaint-, ill’s ownership and possession on the date the property was converted, as distinguished from on the date of the commencement of the action.

      Obiter. — In an action to recover the possession of chattels, the rule is different.
    2. Where the amendment allowed to an amended answer is not in the record, nor its character or substance revealed by the transcript, it will not be considered.
    3. The distinct and separate setting out of the specifications of errors in appellant’s brief, as required by Subdivision 3 of Rule V of the Supreme Court, is as essential to the determination of the appeal as was an assignment of errors at the common law.
    4. A substantial compliance with the Rules of the Supreme Court is a condition precedent to the determination of an appeal upon the merits.

      Appeal from District Court, Gallatin County¡ Fra/nk Henry, Judge.

    AcTi&Nby W. EL Babcock against White Caldwell, Sheriff of Gallatin County. From a judgment for plaintiff and from an order refusing a new trial, defendant appeals.
    Affirmed.

      J. L. Staats and Luce dé Dace, for Appellant.

      B. S. Thresher and C. E. Sutton, for Respondent.
   PER CURIAM

This was an action to recover damages for the alleged conversion of a certain sawmill and appliances. ■Yerdict and judgment for plaintiff. Defendant appeals from the judgment and from an order refusing a new trial.

1. Defendant attacks the complaint upon the ground that it fails to state a cause of action by reason of the omission therefrom of an allegation that the plaintiff was the owner and entitled to possession at the commencement of the action. The complaint avers, among other things, that “on the 24th day of September, 1895, the plaintiff was the owner and in possession of’ ’ the property, and that on said day the defendant took possession of the same and converted it to his own use. It is not necessary 'in a case of this kind, where damages only are recoverable, that plaintiff’s ownership and right of possession, or either, should have existed when the action was begun. (Barton v. Dunning, 6 Blackf. 209; Baals v. Stewart, 109 Ind. 371, 9 N. E. 403; Cooley on Torts, Sec. 443; Estee on Pl. & Prac. Secs. 2098-2100; Sawyer v. Robertson, 11 Mont. 421, 28 Pac. 456.) In an action to recover the possession of chattels, the rule is different. The complaint is sufficient.

2. The record contains a copy of an amended answer. It further appears that “on the trial of said cause the said amended answer was further amended by leave of court, which said amended answer as so amended was in the words and figures following, to-wit: (Here insert said amended answer as amended.)” But neither the amendment nor the amended answer as amended is inserted. Nothing is contained in the transcript by which the character or substance of the amendment is revealed. The effect of the amendment was to supersede the amended answer, which thereupon ceased to perform any office as a pleading. What issues, if any, were made by the amended answer as amended, we cannot determine. The defendant’s attention was invited on the.oral argument to this condition of the record; but he has not suggested a diminution, nor asked to have the seeming error corrected.

3. The brief of defendant is not conformable to Subdivision 3 of Rule Y of this Court, in that there is no proper specification of errors relied upon. The several specifications must be sought for, and may be discovered, in that portion of the brief devoted to the argument, and consisting of some 24 pages. They are distributed here and there throughout these pages. The specification of errors required by the rule is designed to serve the purpose which an assignment of errors accomplished at the common law, and the specification is now as •essential as the assignment was formerly. The rule contemplates that the specification of errors shall be distinct and •separate from the other parts of the brief, constituting a division by itself. This serious defect of the brief was adverted to on argument, but no effort has been made to cure it. Substantial compliance with the rules of this court is a condition precedent to the determination of an appeal upon the merits. (McCleary v. Crowley, 22 Mont. 245, 56 Pac. 227. See, also, Beck v. O'Connor, 21 Mont. 109, 53 Pac. 94; Courtney v. Missoula Co., 21 Mont. 591, 55 Pac. 359.)

Let the judgment and order appealed from be affirmed.

Affirmed.


text:
    RICHARDSON-ROBERTS-BYRNE DRY GOODS CO., Respondent, v., GOODKIND, Appellant.
    [No. 1072.]
    [Submitted April 4, 1899.
    Decided April 24, 1899.]

      Sales — Rescisión by Seiler — False Representations as to Fina/neial Ability — Statements to Commercial Agency — Negligence — Presumptions—Instructions—Harmless Error.

    1. A seller .applied to a commercial agency for tlie buyer’s rating, and was furnished with,a report based on false statements made to the agency by the buyer. Two months later the seller delivered the goods without malting further inquiry, which, if made, would have disclosed the buyer’s condition. Meld, that whether or not the .seller was negligent, so as to preclude him from rescinding the sale, as against the buyer’s assignee for the benefit of creditors, was a question for the jury to determine.
    2. Wilfully false representations by the buyer as to his financial condition, by which he induced the seller to part with property, entitle the seller to rescind though the buyer intended to pay for the goods, and was solvent when such representations were made.
    3. Where, in an action to rescind a sale for the buyer’s false financial statements to a commercial agency, the proof shows that the report of such statements was the only one ever communicated to the seller, an instruction that, if the seller subsequently obtained other information, changing or affecting the buyer’s standing, there was no such reliance on the statement made by the buyer to the agency as would authorize a rescission, was properly refused.
    4. ' The fact that a seller, after receiving a report from a commercial agency concerning a buyer’s financial responsibility, based on statements of the buyer to the agency, received other information affecting the standing of the buyer, raises no presumption of law that, in afterwards shipping the goods, the seller did not rely on the commercial agency’s report.

      5. An instruction stating that if, by additional inquiry at the office of the commercial agency, prior to the shipments, the seller (plaintiff) could have learned of the changed financial rating of the buyer, the verdict must be for defendant, is rightly refused.
    6. A complaint in replevin by a seller was predicated onyalse representations of the buyer, and on an alleged conditional sale, evidenced by a statement in the invoice that the goods were merely consigned “subject to replevy.” The jury found that the seller was entitled to a rescission for the buyer’s fraud. Held, that refusal to instruct that the statement in the invoice was insufficient to make the shipment a mere consignment was harmless.

      Appeal from District Court, Lewis (& Clarke County / Horace D. Buck, Judge.

    Statement of the case.
    Action by the Eichardson-Eoberts-Byrne Dry Goods Company against Edward I. Goodkind, assignee for the benefit of the creditors of one Israel, to recover certain goods purchased from plaintiff by Israel, and by him delivered to the assignee. For several years immediately preceding August 19, 1895, Israel was engaged in the business of selling liquors and cigars at wholesale, and clothing at retail, at Helena, Mont. In May, 1895, Israel purchased of plaintiff, a trading corporation doing business at St. Joseph, Mo., the goods in question, which were to be delivered on the succeeding 1st of August, and were to be paid for in 60 and 90 days after November 1, 1895. The goods were shipped from St. Joseph on August 1st and 5th, were received by Israel on August 15th, and were turned over to the defendant on August 19th. The complaint states, in substance, these additional facts: Plaintiff was a subscriber to the Bradstreet Company, a commercial agent engaged in the business of obtaining and furnishing to its subscribers information in respect of the financial condition of traders. In February, 1895, Israel made a statement to the Bradstreet Company at Helena, showing that his net assets were $128,700, well knowing that the statement so made by him would be communicated to plaintiff and other persons dealing with Israel, and that his financial reputation, standing and ability to procure credits would be rated accordingly among dealers, which statement was made for the purpose of obtaining credit from plaintiff, and procuring from it on credit the goods in question. The statement so made by-Israel was false to his knowledge; the statement showing that his assets were of the value of §165,000, while he owed only §36,300, whereas, at that time, his debts were in excess of §75,000, and his assets were many thousand dollars less than as stated by him. Israel owed many thousand dollars in excess of the value of his assets, and was, and ever since February, 1895, had" been, insolvent. The statement made by Israel to the Bradstreet Company was by the company communicated to plaintiff, which relied thereon, and believed it to be true, and in such reliance and belief shipped and delivered to him the said goods upon credit, and did not receive, and had not received, the price thereof. Israel obtained possession of the goods by reason of his false and fraudulent representations, knowing Ms inability to pay for the same when the price became due, and without any intention to pay therefor. On August 19, 1895, Israel made to defendant an assignment for the benefit of his creditors, and delivered to him the possession of the goods so obtained from plaintiff, which goods defendant still retains. When plaintiff discovered the falsity of the statements made by Israel concerning his financial condition, it rescinded the sale, and made demand upon defendant for the possession of the goods, with which demand defendant refused to comply; and by reason of the fraudulent representations by which Israel obtained the goods, and an agreement that the goods were to be held on consignment only until November 1st, the title thereto never passed from plaintiff, which is now the owner and entitled to possession of the whole thereof. The defendant, by answer, denied generally all the allegations of the complaint, except those with respect to the character of business carried on by the Bradstreet Company, the making of the assignment on August 19th, and the demand upon defendant for the goods mentioned. Trial was had by jury. The jury found specially that Israel knowingly and intentionally'made to the Bradstreet Company the said false and fraudulent statement concerning his financial condition for the purpose of obtaining credit, that plaintiff relied upon such statement when it shipped the goods, that Israel was solvent on February 16, 1895, and that when he ordered the goods in May he intended to pay for them. The jury returned, also, a general verdict for the plaintiff. Judgment m favor of plaintiff was entered upon the special findings and general verdict, from which, as well as from an order refusing a new trial, the defendant appeals.

      H. G. McIntire and Chad. Spaulding, for Appellant.
    At the conclusion of the testimony defendant moved the court to peremptorily instruct the jury to find in his favor, which request was by the court denied. It is elementary that to entitle a vendor of goods to rescind a contract of sale and recover.possession of the goods sold he must not only show fraudulent representations on the part of the vendee and his reliance thereon in extending the credit and parting with the goods, but also that he was justified in so doing. (2 Pomeroy’s Equity Juris. (2d Ed.) Secs. 891, 892, 893; Farr v. Peterson, 64 N. W. 863; Slaughter’s Administrators v. Ger-son, 13 Wall. 379; Tootle v. Petrie, 65 N. W. 43; Starr v. Bennett, 5 Hill. 302; Crocker v. Manley, 45 N. E. 577; Moore v. Recek, 44 N. E. 868.) And the law is well settled that unless plaintiff was led by the statement to do that which it otherwise would not have done, it cannot recover. (Dingle v. Trask (Colo.) 42 Pac. 186; Elopenstein v. Mulcahy, 4Nev. 296; Griswold v. Hazels, 71 N. W. 972; 2 Pomeroy’s Equity Juris. (2d Ed.) Sec. 890.) The gravamen of the charge is the intent to defraud, and without proof of that intent there can be no recovery. The jury having found on this issue against the plaintiff, judgment should have been entered upon the special findings in favor of the defendant. (Brackett v. Gris-wold, 20 N. E. 376; Hennequin v. Naylor, 24 N. Y. 139; Armstrong v. Lewis, 38 111. App. 164; Zucker v. Ear Del as, 50 N. W. 373; Wessels v. Weiss, 27 Atl. 535; Darby v. Eoe 92 Ala. 607.) “The intent not to pay must exist when property is purchased, and without proof of such an intent a judgment for the plaintiff cannot be sustained. ” (Iiotchkin v. Third Nadi Bank, 127 N. Y. 329; s. c. 27 N. E. Eep. 1054.) “Before the plaintiff can recover in an action to rescind a contract for the sale of chattels on the ground of fraud, he must prove, as a present fact, that the defendant did not intend to pay for the goods .when he bought them. ’ ’ (Swarthout v. Merchant, 47 Hun. 106; Talcott v. Henderson, 31 Ohio St. 162; s. c. 27 Am. Eep. 501; Willmot v. Lyon, 34 N. E. 720.)

      Walsh & Newman, for Respondent.
   PER CURIAM.

1. At the conclusion of the evidence defendant prayed the court for an instruction directing the jury to return a verdict for the defendant, and the denial of this request is the first error assigned. It is insisted that the peremptory direction should have been given, for the reason that plaintiff was negligent in permitting the goods to pass from its control. It appears that on May 23, 1895, plaintiff applied to Bradstreet’s, at St. Joseph, for a report on the financial condition of Israel, and that on May 27th Bradstreet’s furnished plaintiff with such report, containing the statement made by Israel on February 16, 1895, and referred to in the complaint. It further appears that on June 28, 1895, Bradstreet’s agency at Plelena sent out another report concerning Israel financial standing, in which his capital rating given in the report of February 16th was taken away, and his credit rating reduced to a grade next above the lowest reported by the agency, a copy of which report was sent to the office of the Bradstreet Company in St. Joseph. This report was not based upon any statement of Israel, nor did he know it was made. Without making inquiry other than that of May 23d, plaintiff forwarded the goods to -Israel on August 1 and 5, 1895. The report of June 28th was never communicated to plaintiff. Defendant argues that by the exercise of reasonable diligence plaintiff might have learned from the Bradstreet Company the true condition of affairs, and withheld the goods from shipment, and that therefore its failure to make such inquiry was, as a matter of law, such negligence as will prevent a recovery in this action. We are satisfied that the court was right in refusing to instruct the jury as requested. Conceding, without deciding, that the evidence just mentioned tends to establish negligence, it is perfectly apparent that the question whether or not the plaintiff exercised prudence was for the jury to determine. (Handy v. Waldron, 19 R. I. 618, 35 Atl. 884.)

2. The next contention is that the special findings of the jury are in conflict with the general verdict, and that the court should have rendered judgment in defendant’s favor upon the special findings. As appears by the statement preceding this opinion, the jury returned a general verdict for plaintiff, and in addition thereto found specially that Israel was solvent on February 16th, and that he intended to pay for the goods at the time he ordered them in May, and, further, that he knowingly and intentionally made the false and fraudulent statement set out in the complaint concerning his financial condition for the purpose of obtaining credit, and that plaintiff relied upon such statement when it shipped the goods. The position which the defendant takes is that, for the plaintiff to recover in this action, it is necessary to prove, not only that Israel knowingly made the false representations for the purpose of obtaining credit and that the plaintiff relied upon them, but also that Israel either intended at the time not to pay for the goods or was then insolvent. Such is not the law. Although the purchaser at the time of the sale was solvent and intended to pay for the goods, yet if, by willfully false representations in respect to his financial condition, the purchaser induces the seller to part with property which, but for such representations, the seller would not have done, the sale may be avoided as to all but Iona fide purchasers for value. (Klopenstein v. Mulcahy, 4 Nev. 296; Whitaker Iron Co. v. Preston Nat. Bank of Detroit, 101 Mich. 146, 59 N. W. 395; Schweizer v. Tracy, 76 Ill. 345; Reed v. Pinney, 35 Ill App. 610; Collins v. Cooley (N. J. Ch.) 14 Atl. 574. See, also, Bank v. Bamberger, 77 Tex. 48, 13 S. W. 959; Mooney v. Davis, 75 Mich. 188, 42 N. W. 802; Hoffman v. Noble, 6 Metc. (Mass.) 68, 39 Am. Dec. 711; Lowdon v. Fisk (Tex. Civ. App.) 27 S. W. 180; Cox Shoe Co. v. Adams, 105 Iowa, 402, 75 N. W. 316; Schram v. Strouse (Tex. Civ. App.) 28 S. W. 264; Newell v. Randall, 32 Minn. 171, 19 N W. 972; Farwell Co. v. Boyce, 17 Mont. 83, 42 Pac. 98; Hinchman v. Weeks, 85 Mich. 535, 48 N. W. 790; Emerson v. Detroit Steel & Spring Co., 100 Mich. 127, 58 N W. 659; Silberman v. Munroe, 104 Mich. 352, 62 N. W. 555; Reid v. Cowduroy, 79 Iowa, 169, 44 N. W. 351; Wilson v. Carpenter's Adm'r, 91 Va. 183, 21 S. E. 243; Judd v. Weber, 55 Conn. 267, 11 Atl. 40; Stephenson v. Weathersby (Ark.) 45 S. W. 987; Gough v. St. John, 16 Wend. 646; Bugg v. Wertheimer Shoe Co., 64 Ark. 12, 40 S. W. 134.)

3. Defendant complains of the refusal of the court to give certain instructions prayed by him concerning the reliance by plaintiff upon the statement made by Israel to the agency. Instruction 2, prayed by defendant and refused, advised the jury that, “if the plaintiff had any other information subsequently to the report received by the plaintiff in May, 1895, which in any way changed or affected the said standing of Israel, then there was not such a reliance upon the said report as would enable the plaintiff to recover in this action. ” There was no evidence tending to show that plaintiff received any information respecting Israel, before shipping the goods, other than the statement of May 27th; on the other hand, the proof was that the May statement was the only report on Israel ever communicated to plaintiff until after his assignment. Moreover, such information, if received, would not necessarily have the effect attributed to it by the instruction. In other words, nonreliance upon the February statement of Israel, communicated to plaintiff in May, would not be the presumption of law arising from the receipt by plaintiff of such subsequent information.

By the third prayer defendant asked the court to charge that if, by the exercise of additional inquiry at the office of the Bradstreet Agency, prior to the shipments, plaintiff could have learned of the changed report and rating on Israel of June 28th, the verdict must be for defendant. The court rightly refused so to instruct. If, from the omission to seek further information from Bradstreet’s, the inference of negligence may be drawn in this case (which we are inclined to doubt), the jury, not the court, must draw it. Such omission, it is manifest, does not give rise to the legal presumption that plaintiff failed to exercise reasonable care; nor will the law, by reason of the omission, impute to plaintiff notice of Israel’s changed financial condition. The charge of the court upon the questions mentioned was certainly as favorable to defendant as he could reasonably ask.

Instruction No. 4, as prayed by defendant, is probably a correct statement of the law with respect to the effect of certain printed matter upon the invoices sent by plaintiff to Israel at the time the goods were shipped, to the effect that the goods were merely consigned “subject to replevin” at any time prior to November 1st. (Brittain Dry Goods Co. v. Birkenfeld, 20 Mont. 347, 51 Pac. 263.) Whether or not the court erred in not giving this instruction is immaterial, since proof of the allegation in the complaint that the goods were only consigned was not necessary to plaintiff’s recovery. The error, if any, was not prejudicial, for the special findings are justified by the evidence, and are sufficient to entitle plaintiff to recover, even if the jury had declared that the goods were not consigned. Were there a general verdict only, it might be difficult, if not impossible, to determine the particular ground upon which the j ury decided that plaintiff ought to prevail in the case at bar, — whether the defeasible title in Israel was divested by the plaintiff’s election to rescind the voidable sale for fraudulent representations inducing it, or whether the general property in the goods never passed to Israel because they were merely consigned. The special findings, however, aid the general verdict, and reveal the unimportance of determining the issue with respect to the alleged consignment.

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