source: Caselaw Access Project

author: HUNT, J.

license: Public Domain

text:
    STATE ex rel. BOSTON & MONTANA CONSOL. C. & S. MINING CO. et al. v. SECOND JUDICIAL DISTRICT COURT et al. , Respondents.
    [Mo. 1343.]
    [Submitted January 13, 1899.
    Decided February 20, 1899.]
    Prohibition— Courts — Jurisdiction— Discretion — Presumptions— Corporations — Rights of Shareholders — Receivers— Dissolution— Constitutional Law — Rules of Supreme Court —Briefs.

    1. Code o£ Civil Procedure, Section 1980, making a writ of prohibition “the counterpart of a writ of mandate,” does not enlarge the class of cases in which the writ may be resorted to in view of the clause providing that the writ is to arrest the proceedings of any tribunal which are without, or in excess of, jurisdiction.

      Obiter. — To find out whether a necessity exists for granting a writ of prohibition, a superior court is not precluded from ascertaining by all that appears upon the face of ' the proceedings, and in rare cases even by evidence aliunde the record, whether it is clearly apparent that the inferior court is about to exceed its jurisdiction.
    2. On an application for a writ of prohibition to arrest the proceedings of a district court in a pending suit in equity, it will be presumed, in the absence of a showing to the contrary, that the court will not exceed the limitations of its jurisdiction, though it has no jurisdiction to grant a part of the relief asked for.
    3. A shareholder of a corporation may procure the appointment of a receiver pending an investigation of charges of fraud and mismanagement against the trustees.
    4. The appointment of a receiver of a corporation pendente lite does not necessarily mean its dissolution.
    5. A district court is not ousted from jurisdiction to appoint a receiver in a pending suit by the fact that the judge does not like the attorney for one of the litigants, and is on friendly terms with the other, and liasidecided several cases against the former.
    3. The Constitution giving the Supreme Court supervisory control over inferior courts does not authorize it to grant a writ of prohibition, prohibiting a district court from appointing a receiver of a corporation merely to avert probable injury to the applicants for the writ, in view of Constitution Article VIII, Section 2, vesting power in the Supreme Court under such limitations as may be provided by law, and Code of Civil Procedure, Section 1980, authorizing the issuance of a writ of prohibition to arrest proceedings in which the court is without jurisdiction.

      7. Relators asked for a writ of prohibition to arrest proceedings wherein a stockholder of a corporation sued to have thé corporation reinvested with property which it had transferred, and for the appointment of a receiver, and for the removal of the trustees. The question whether the court had jurisdiction to remove the trustees was not fully argued by relators, and not at all by defendant. Held, that the court would not be prohibited from removing the trustees, though its power to so act is very doubtful, where unusual harm was not apt to ensue if it was not so prohibited; the writ of prohibition being largely a discretionary one.
    .8. Counsel should conform their briefs to the requirements of the Rules of the Supreme Court.
    Application for a writ of prohibition on the relation of the Boston & Montana Consolidated Copper & Silver Mining Company and others against the District Court of Silver Bow County and others.
    Denied.
    Statement of the case by the Justice delivering the opinion.
    The relators have applied by original proceedings in this Court for a writ of prohibition against the District Court of Silver Bow County and the Honorable William Clancy, judge thereof, and Burdett O’Connor, from taking any further proceedings in an action brought in said court by the defendant O’Connor against the relators, and from making or procuring to be made any order therein, or from taking any action on the order to show cause, granted therein, or from making any further or other application in said cause for the relief designated in said order to show cause therein, and for such further relief as this Court may see fit to grant, in the exercise of its general supervisory control over the aforesaid District Court and the J udge thereof.
    Relators base their claim upon the facts set forth in an affidavit of John F. Forbis, Esq., an attorney and counselor for the Boston & Montana Consolidated Copper & Silver Mining Company, a corporation of Montana, and the Boston & Montana Consolidated Copper & Silver Mining Company, a corporation of the State of New York, A. S. Bigelow, L. Lewishon, Chas. Yan Brunt, William J. Ladd, J. S. Bigelow and J. Gr. Ray, all of which relators are nonresidents of Montana, except the Boston & Montana Consolidated Copper & Silver Mining Company, which is a corporation organized under the laws of the Territory of Montana. Mr. Forbis sets forth in his affidavit what he appropriately terms ‘ ‘a history of the litigation’ ’ with respect to which the writ of prohibition is sought. He swears that the Boston & Montana Consolidated Copper & Silver Mining Company, which we shall hereafter call the £ ‘Montana Company, ’ ’ was organized and doing business all as is particularly stated in the statement of facts preceding the opinion of this Court recently rendered in the case of Forrester <& Mae Ginniss v. Bos

      ton do Montana Consol. Copper do Silver Mmi/ng Co., 21 Mont. 544, 55 Pac. 229. This statement is referred to and made part of the statement of the case under consideration. Mr. Forbis’ affidavit also recites the inconveniences occasioned by the necessity of attending stockholders’ and directors’ meetings in the State of Montana, inasmuch as a very large majority of the stock is held in Boston, New York and other eastern cities. He then sets up the initiation of the proceedings by which the directors and stockholders reincorporated the Montana Company under the laws of New York; he recites that counsel were consulted in relation to the power of the Montana Company to transfer and dispose of all its property to a foreign corporation under the Compiled Statutes of 1887 of Montana, and who advised the officers of the Montana Company that such transfer could lawfully be made; then he states the history of the transfer, which is succinctly set forth in the statement of facts preceding the opinion in Forrester do Mac Ginniss v. Boston do Montana Consol. Copper do Silver Miming Co., supra. The affidavit further sets forth that James Forrester, one of the plaintiffs in the suit just referred to, commenced an action in the Superior Court of Massachusetts against the Montana Company to enjoin it from holding the stockholders’ meeting referred to in the statement in the above mentioned case, but that the application was denied. Mr. Forbis then sets up the institution of the suit by Forrester and MacGrinniss against the Montana Company and others, last above referred to and to which we here advert. He also recites that the Montana Company and the Montana Ore Purchasing Company have been engaged in a series of closely contested lawsuits in the courts of the State of Montana and in the United States Circuit Court for the District of Montana, growing out of controversies between them as to the ownership of veins of ore, water rights and other questions, many of which actions are still pending; that the rivalry in business between the companies is intense; that Forrester and MaeGinniss acquired their stock through the Montana Ore Purchasing Company, whose purpose is to harass and annoy the Montana Company and its stockholders and to interfere with the successful operation of its business, and for no other purpose and motive whatsoever. The affidavit recites the decision of this Court, and the application for a rehearing and the decision thereon, which was made December 21, 1898. Mr. Forbis also refers to the answer which was interposed by the defendants in that action, wherein they set up the good faith of the conveyance and transfer from the Montana Company to the New York Company, and the willingness on the part of the defendants to abide by the final judgment that may be entered in that action and to reconvey and retransfer the property to the Montana Company, and to fully account therefor in case it be adjudged that the conveyance by the Montana Company to the New York Company was unlawful; but that the Supreme Court, in its opinion in that case, refrained from deciding whether or not the said Forrester and MacGinniss had the right to maintain this action in equity by reason of the bad faith and improper motives charged against them in the answer interposed in that action. It is further stated that a deed of reconveyance was ordered by the New York Company to the Montana Company on December 13, 1898, and that the said deed is in the possession of deponent Forbis, who stands ready and willing to produce it in court, and to deliver the same to this Court, or to any other in the State, pending the final decision in the case referred to.
    It is next said that on December 15, 1898, without notice, Forrester and MacGinniss applied to the Honorable William Clancy, one of the judges of the District Court for Silver Bow County, for the appointment of a receiver for the Montana Company, and an order directing the New York Company to deliver possession of all its property to such receiver; that this application was granted, and one Thomas R. Hinds of Butte was appointed receiver, and the New York Company was directed to deliver to him all of its property, which was of a value of $10,000,000, as based upon the market value of the stock; that the undertaking on behalf of the plaintiffs in that suit was $5,000, and the amount of the receiver’s bond was fixed at $100,000; that Hinds is a man of limited responsibility, without experience in the management of mining properties, is identified with the Montana Ore Purchasing Company, and is a ‘ ‘partisan’ ’ of the said company as against the relators; that an application for a writ of review was made to the Supreme Court on December 17, 1898, which was granted, and an order was issued requiring the Judge of the District Court and Thomas E. Hinds to desist from further proceedings until the further order of the Supreme Court. It then appears that on December 30, 1898, Forrester transferred to one Burdett O’Connor 50 shares of the stock, and it is alleged in the affidavit that O’Connor is a representative of the Montana Ore Purchasing Company, and holds the stock in the interest of that company; and that on December 31, 1898, O’Connor brought an action against the Montana Company, the New York Company and the directors of the former; that his counsel was Charles E. Leonard, nominally, but that the action is prosecuted by the Montana Ore Purchasing Company and its attorneys; that Judge Clancy in that action issued an order to show cause why a receiver-should not be appointed to take charge of the property of the Montana Company, and take possession thereof from the New York Company, and manage and control its business and affairs under the direction of the court, and why the persons acting as directors of the Montana Company should not be suspended in the exercise of their powers as directors, and removed. Deponent alleges that the charges of fraud and misappropriation of moneys contained in the complaint of O’Connor against the defendants are false and untrue; that the final judgment in .the suit of Forrester and MacGrinniss against the New York Company and others has never been rendered, and no proceedings have been taken therein towards the trial or determination thereof since the appeal to the Supreme Court. It is then alleged on information and belief that on December 10, 1898, F. A. Heinze, an officer of the Montana Ore Purchasing Company, stated that within a few days a receiver would be appointed for the Montana Company; and that the relations of said Heinze and MacGinniss are friendly and intimate with the Honorable William Clancy, and that said Judge Clancy has a prejudice against the Montana Company and against deponent For bis; that said judge has had before him a great many matters involving applications by the Montana Ore Purchasing Company for injunctions against the Montana Company, and has invariably granted the same to the fullest extent urged by the Montana Ore Purchasing Company and its agents. Particular instances are then set forth by Mr. Forbis in his affidavit wherein Judge Clancy has enjoined the Montana Company from doing certain acts. Deponent then says' that on January 3, 1899, the relators herein applied to Judge Clancy, asking him to vacate the order to show cause in the case wherein O’Con-nor is plaintiff, on the ground that in said action he had no jurisdiction to grant the relief demanded; but Judge Clancy denied the application, and proposes to go on with the hearing, and, unless prohibited by this Court, he will grant the relief applied for by O’Connor. The enormous scale of the mining operations of the New York Company is then set forth, and the injury that would ensue if the operation of the mines should be enjoined. The affidavit further states that, if Hinds is appointed as receiver, it will practically put the entire property and business of the relators under the control and management of the Montana Ore Purchasing Company, and great wrong would be done; that there is no plain, speedy and adequate remedy at law, and that, unless this Court interferes, irreparable injury and damage will follow. It is also charged that Judge Clancy is disqualified by reason of prejudice; that he has no jurisdiction, and that the relators are entitled to the writ prayed for.
    The complaint of O’Connor against the Montana and New York Companies and others sets forth that the plaintiff is a stockholder, and alleges all essential matters in relation to the deed of conveyance referred to and described by this Court in the case of Forrester & MacGinniss v. Boston <& Montana Consolidated Copper and Silver Mi/ning Co., heretofore referred to; that the conveyances by the Montana Company to the New York Company are void by reason of the decision of the Supreme Court in the case referred to; that neither he nor, the person who owned the stock which he now holds previous to his ownership ever consented to the execution and delivery of any deeds of conveyance by the defendant Montana Company to the New York Company, but that the individual defendants whom he sues, by conspiring together for the purpose of terminating and destroying the existence of the Montana Company, and putting its property in the possession of the New York Company, had obtained and hold the control over the majority of the stock of the Montana Company, and have entered into an agreement whereby the control and management of a large majority of the stock of the Montana Company is possessed by the defendants, and that it is their purpose to have the stock voted to continue themselves in office as trustees, and to carry out their schemes of depriving the Montana Company of all its property, and bringing about the termination of its existence; and that it is the purpose of the defendants to dispute the rights of the plaintiff O’Connor and other stockholders who have not assented to their conduct, and who will not assent to devesting the Montana Company of its property; that the defendants directors or trustees of the Montana Company have made no effort to procure the restitution of the property belonging to the Montana Company, and that no áccount of the dealings with the property has been made by the New York Company; that defendants refuse to make any effort to have the Montana Company reinvested with the possession of its property; that the New York Company has disposed of a large number of shares of its capital stock to various persons, and that it cannot make reconveyance of the property which it now holds belonging to the Montana Company which will be sufficient in law to fully reinvest the Montana Company with the title thereto without the consent of all the stockholders of the said New York Company, and that there is a large number of stockholders who will not consent thereto; that the directors of the Montana Company have abdicated their positions, and have failed to perform any duties as trustees of the Montana Company, and that there is not any officer of the said company in the State of Montana; that the books of the company have been removed to the State of Massachusetts or the State of New York, and that there are no books of the company kept in the State of Montana, as required by law; that there is no means of examining or inspecting the record of said company in Montana; that the New York Company is in the possession of the property of the Montana Company, and has been engaged in mining and extracting large quantities of valuable ores from the property of the Montana Company, and has smelted and converted the same to its own use, and is now doing such acts, and that, unless the court appoints a receiver to take charge of the property and assets of the Montana Company, and issues an injunction against the New York Company enjoining it from further mining or using the property of the Montana Company, it will continue to mine and extract large quantities of valuable ores from the property of the Montana Company, and to operate its smelter, and remove the said ores from Montana to New York, and convert the proceeds of such ores to its own use, and unlawfully dispose of the same, and that the same will be entirely lost to the Montana Company, and to this plaintiff, and the stockholders who may join with him; that the plaintiff has no means of ascertaining the amount or value of the ores which the New York Company has heretofore extracted or will extract, and cannot ascertain the damage which will be done to the property of the Montana Company by the New York Company; that the said acts of the New York Company daily decrease the value of the Montana Company’s mines and property, and constitute an irreparable injury and damage to the Montana Company and to this plaintiff; that the New York Company has no property or assets of its own, but is entirely insolvent, and without property or assets; that ever since the New York Company took possession of the Montana Company’s property it has diverted the proceeds of the mining operations carried on by it, and has delivered large amounts to persons not stockholders of the Montana Company, and has charged against said proceeds large sums of money as expenses; and that it will continue to dissipate the proceeds from the sale of the Montana Company’s property unless a receiver is appointed; that the New York Company is a trespasser upon the rights of the Montana Company, and that the plaintiff is entitled to have the New York Company account for arid pay over to the Montana Company and its stockholders the gross amount of all ores mined or extracted from the Montana Company’s property; that the New York Company has converted to its own use valuable ores amounting to more than'$5,000,'000, and is removing the proceeds of said ores from Montana to New York, to the great damage of the plaintiff and other stockholders; that the directors and officers of the New York Company are using the proceeds acquired from the mining and reduction of the ores from the property of the Montana Company to purchase shares of the capital stock in the Montana Company to increase the price of the shares of stock on the Boston Exchange, and to make large profits to themselves therefrom, and to otherwise use the same for their own benefit; and that the directors of the Montana Company have full knowledge thereof, and are acquiescing therein; that the use of said proceeds is being made by said persons without any record being kept in the books of the New York or Montana Companies; and plaintiff alleges that the only means by which a reconveyance of the Montana Company’s property can be secured to it, and an accounting had, is by the appointment of a receiver to act under the direction of the court; and that, unless such receiver is appointed, it will be impossible for the plaintiff and other stockholders in the Montana Company who do not assent to the conveyance mentioned to ascertain the amount or value of the ores which the New York Company has extracted from the mines of the Montana Company; and that it will altogether rest with the New York Company as to what, if any, property shall be returned to the Montana Company, or paid to its stockholders. Plaintiff’s complaint then alleges that the directors of the Montana Company, by allowing all these acts to be done in the way of removing and converting the ores and in refusing to retransfer the property or to account, are not fit or proper persons to have charge of the Montana Company, and they should be removed, and other suitable persons appointed; and a receiver should be appointed who should act under the direction of the court during the pendency of this action, and that the New York Company should be enjoined from any further use of the property. O’Connor’s prayer is for the appointment of a receiver with full power to take possession of the property of the Montana Company, and carry on and manage the business during the pendency of this action; that the New York Company be required to deliver the possession of all the property to the receiver, and to account to him for the use thereof while the same has been in its possession; that the New York Company be restrained from the further use of the property, or from mining the same; that the defendant directors or trustees be removed from their offices, and enjoined from doing any act as directors or trustees; that the deeds from the Montana Company to the New York Company heretofore given by the former to the latter be declared null and void, and the title of the Montana Company quieted against all claims of the New York Company; that upon the final hearing the Montana Company be dissolved, and all of its property sold by the receiver, and, after the payment of its debts and liabilities, that the proceeds be distributed to its stockholders, or, if dissolution be not decreed, that the court appoint trustees for the Montana Company, and, after the settlement of the affairs of- the receivership, that all of its property and assets be delivered to said trustees for the Montana Company. Such other and further relief as may be just and proper was also prayed for by O’Connor.
    The defentants moved the Supreme Court to set aside and dismiss the writ of prohibition, after this Court had issued a writ and an order to show cause. Dismissal of the writ was asked upon the ground that the Court had no jurisdiction to issue the same and because the petition, affidavit and record upon which the writ was issued do not state facts sufficient to give this Court jurisdiction, or to show that the District Court or the Judge thereof was about to exceed its or his jurisdiction; that the plaintiffs have a plain, speedy and adequate remedy at law in case the receiver should be appointed; and that it does not appear that the District Court, unless prohibited, would appoint a receiver.

      John L. JJorbis, Wm. LL. De Witt and Louis Marshall for Eelators.

      Chas. B. Leonard for Defendants.
   HUNT, J.

The statement of the case made in ihe brief of relators’ counsel in this proceeding does not wholly conform to the rules of Court requiring the brief, among other matters, to contain “a concise abstract or statement of the case, presenting succinctly the questions involved and the manner in which they are raised, which abstract shall refer to the page numbers in the transcript in such manner that pleadings, evidence, order's and judgment may be easily found.” By an abstract or statement of the case presenting succinctly the questions involved is meant a plain and fair statement from the record, free from argumentative recitals and deductions of counsel reflecting contemptuously upon the attitude, motives or ulterior purposes of the opposite side. No matter how acrimonious may be the litigation between parties themselves, nothing should be permitted to interfere with the presentation of a perfectly impartial statement in the briefs of counsel of all that is necessary and fit to enable the Supreme Court to approach the legal questions raised in full reliance upon the correctness and sufficiency of the statement furnished. Compliance with the rule in this respect materially lightens the labors of this Court, while it is worse than having no statement at all to be met with a brief that, instead of setting forth the real substance of the issues in the record, presents only one side fully and skims over those portions of the transcript which are essential to state the position of the other. The argument and the statement have separate positions assigned to them in the brief and we hope that in the future counsel will be careful to observe the appropriate and distinct office of each.

The foregoing suggestions become very pertinent in this proceeding because of the omission on the part of relators’ counsel to put before us in their brief the facts pleaded by O’Connor in his complaint, as it is upon them that we are constrained to hold that the District Court does not appear to be acting, and about to act, in excess of its jurisdiction and power in the premises, at least so far as the appointment of a receiver pendente lite goes.

The writ of prohibition is to arrest the proceedings of any tribunal when such proceedings are without or in excess of the jurisdiction of such tribunal. (Code of Civil Procedure, Section 1980.) It is a process by which our Court, or any Superior Court, prevents a district court, or any inferior tribunal, from exercising jurisdiction with which it has not been vested by law. (Spell. Extr. Rel., Section 1716.) Negative in its manner of operation, its command is, “You stop doing,” while mandamus positively says, “You shall do. ” It is designated by the statute as ‘ ‘the counterpart of the writ of mandamus, ’ ’ but this provision of the Code, considered with the clause which says the writ arrests the proceedings of an inferior tribunal when such proceedings are without, or in excess of jurisdiction, does not enlarge the class of cases in which the writ could have been resorted to before the statute. “Counterpart” of mandamus is held not to be the exact reverse or opposite, inasmuch as the limitation of- the second clause of the statute, confining the office of the writ to specific uses, shows that the word was used in a sense designed to illustrate the operation of the writ, and not to £ ‘add to the class of cases in which it may be resorted to. ’ ’ (Maurer v. Mitchell, 63 Cal. 291.) The character of the writ is therefore not changed by the Code; nor can any question be inquired into except that of jurisdiction in the proceeding inaugurated by it. It is preventive, rather than remedial, and cannot take the place of an appeal. (Thomson v. Tracy, 60 N. Y. 31.)

S.ection 579 of the Code of Civil Procedure (Comp. St. 1887) defined the writ substantially as the new Code does, except that the present Code expressly authorizes the writ to issue to persons or boards exercising ministerial as well as judicial functions, while the former Code omitted express enumeration of those to whom it might issue. But the scope of the writ has not 'been changed. In State v. Benton, 12 Mont. 66, 29 Pac. 425, the court adopted the rule laid down by the Supreme Court of the United States in Smith v. Whitney, 116 U. S. 167, 6 Sup. Ct. 570, restricting the issuance of the writ to proceedings wherein it clearly appears that the inferior court is about to exceed its jurisdiction, and approves of the common doctrine that, unless it appears on the face of the proceedings that the court had no jurisdiction of any part of the subject matter of the complaint, prohibition will not lie. Cases may arise, however, where evidence aliunde the record is admissible to show no jurisdiction, as was held in Bullard v. Thorpe, 66 Vt. 599, 30 Atl. 36, cited by relators; but they are rare, and do not affect the general rule adopted in State v. Benton, supra. Moreover, the writ may issue in Vermont if “necessary to the furtherance of justice and the regular execution of the laws;” and, besides this, such evidence is allowed, and was permitted in the Vermont case, upon the principle that, where jurisdiction is positively excluded, no one shall be allowed to create a jurisdiction by voluntarily changing the real position of the parties into an assumed one. That would .be a fraud. (Hutson v. Lowry, 2 Va. Cas. 42.) Thus, after all, the question resolves itself solely into an inquiry by which the jurisdiction may be determined. (Bodley v. Archibald, 33 W. Va. 229, 10 S. E. 392.)

To ascertain what is the power of the court involves inquiry into all that properly appears on the face of the proceedings. It may extend to the investigation of facts appearing as part of the proceedings in order that the court which is asked to issue the writ may correctly say whether the whole proceedings upon their face show that the lower court had not enough before it to set in motion its power to do the act or acts it is doing and is about to do. It must be remembered, though, that the sufficiency of the cause of action as set out in the proceedings is to be tried in the inferior court, as are all questions of law, by regular procedure, and that, if there be error in the rulings thereon, remedies by appeal are prescribed; hence, ordinarily, prohibition will not lie; but, on the other hand, if upon the face of the proceedings there has been a radical departure from the authority vested in the court, and remedy by appeal is entirely inadequate to afford redress, the writ may go, even though jurisdiction of the nature of the action was in the inferior court. We do not hold, by any means, that if the facts alleged fail to state a cause of action, or if a cause of action is stated, yet the evidence fails to sustain the complaint, that there is ground for issuing a writ of prohibition; but we believe it may issue where the showing made discloses a wholly unwarranted assumption of power by the inferior court, and where appeal either does not lie at all or is wholly inadequate to afford redress. “It is quite clear,” says Works on Jurisdiction (page 634), “that where the power to act with respect to the particular cause or matter in controversy is entirely wanting, and no discretion rests in the inferior tribunal with reference to the question whether it shall act or not, the writ is the proper remedy;” and in Sweet v. Hulbert, 51 Barb. 312, the Supreme Court of New York held that the writ would lie “io prevent the exercise of unauthorized power by an inferior tribunal in cases where it has jurisdiction as well as where it has not jurisdiction,” following the decision in Quimbo Appo v. People, 20 N. Y. 531, where Judge Selden held that originally in England the writ was never governed by any narrow or technical rules, “but was resorted to as a convenient mode of exercising a wholesome control over inferior tribunals.” The last case was affirmed in People ex rel. Mayor v. Nichols, 18 Hun. 530, and in People ex rel. Cooper v. Special Terms, 57 How. Prac. 467.

High, in Section 762 of his work on Extraordinary Legal Remedies, treats the writ of prohibition as a remedy afforded by the common law to correct encroachments of jurisdiction by inferior courts and says it is used to keep such courts within the limits ‘and bounds prescribed for them by law. “The object of the writ being to restrain subordinate judicial tribunals of every kind from exceeding their jurisdiction, its use in all proper cases should be upheld and encouraged, since it is of vital importance to the due administration of justice that every tribunal vested with judicial functions should be confined strictly to the exercise of those powers with which it has been by law intrusted. ’ ’

Extreme necessity should usually be apparent before this extraordinary remedy will be granted. (State v. Judge of New Orleans Commercial Court, 4 Rob. (La.) 48; People ex rel. Adams v. Westbrook, 89 N. Y. 152.) But, to find out whether such a necessity exists, it is not beyond the power of the Superior Court to ascertain if any evidence was before the inferior court upon which it assumed the power to act, to the end that it may say not whether the power was discreetly or wisely exercised, but to determine whether the power existed at all. We may illustrate in this way: Ordinarily, a receiver in an action before judgment therein cannot be appointed by a court without notice of the application for such an appointment to the adverse party, unless it shall appear to the court that there is immediate danger that the property or fund will be removed beyond the jurisdiction of the court, or lost or materially injured, destroyed or unlawfully disposed of. Suppose a plaintiff applies for a receiver in his action for equitable relief, gives no notice and relies upon the ground that there is the immediate danger mentioned in the statute; suppose, though, oral testimony is heard to support the averments of his complaint at an intermediate stage of the case and in support of his application for a receiver, but the proof offered fails entirely to show immediate or any danger; yet the lower court has gone ahead and has said that it does satisfactorily appear that immediate danger does exist, and is about to act by the appointment of a receiver. What then is the position of the lower court? It had jurisdiction of the subject matter of the action and the nature thereof and of the parties to it. Furthermore, it had the power under the law, apparently, to appoint a receiver pendente lite in such a suit, under the averments of the complaint, but not under the evidence. Must the Superior Court decline, under such extraordinary circumstances, to issue the writ of prohibition, because there was jurisdiction and apparent power in the lower court? To determine jurisdiction, will it not inquire whether there was any evidence from which it appeared to the lower court that immediate danger existed? It cannot be that, where there is no appeal from an order appointing a receiver pendente lite, this Court will refuse to order the lower court to desist from proceedings which are without any evidence to support an exercise of power by that court in an appointment of a receiver. The indispensable prerequisite to the existence of the power to appoint is that it shall appear that there is immediate danger. If this does not appear, the condition does not arise; it cannot arise where the power may be exercised at all. The Court has not put itself in a position where it can act by appointing a receiver, hence it' seems to us the power to act is wanting, and action by appointment is in excess of the bounds prescribed by the court by law, and is beyond its jurisdiction. (Gould v. Gapper, 5 East 345).

Spelling on Extraordinary Relief (Section 1730) refers to the California decisions in Havemeyer v. Superior Court, 84 Cal. 327, 24 Pac. 121, and Bruner v. Superior Court, 28 Pac. 341, as establishing a doctrine that the adequacy of the remedy by appeal in any given case is an open question, and says: ‘ ‘The doctrine is quite reasonable and in consonance with general principles governing the employment of extraordinary remedies; for if it is a general principle that if an ordinary remedy, or such remedy as is available ‘in the ordinary course of law, ’ does not afford a party the specific relief to which he is entitled, or does not meet the emergencies of his case, it is no bar to injunction, mandamus or other remedies of an extraordinary character; why, then, should such fruitless resort stand in the way of prohibition?” This reasoning impresses us as sound, and reverts to the propositions- laid down by Seldon, J., in the leading case of Quimbo Appo v. People, supra, to the effect that the writ will issue where a court goes ‘ ‘beyond its legitimate powers, ’ ’ even in a matter where such tribunal has jurisdiction. The English decisions are referred to by Judge Selden as proving “that the writ lies to prevent the exercise of any unauthorized power in a cause or proceeding of which the subordinate tribunal has jurisdiction, no less than when the entire cause is without its jurisdiction.” We are thus led back to the doctrine approved of in State v. Benton, supra, which does not preclude the .Superior Court, within the limitations discussed, from ascertaining by all that appears upon the face of the proceedings whether it is clearly apparent that the inferior court is about to exceed its jurisdiction.

In the discussion of this point we have digressed from what is necessary to a decision herein. Our views may, therefore, be a subject for argument at some other time, but we have thought it none the less proper to indicate them now. They are not material in this case, because we need look no further than to the averments of O’Connor’s complaint, which are to be taken as true upon this hearing. The substance of them is set forth in the statement preceding this opinion and we shall not take the space to recapitulate them-. They show that O’Connor, as a shareholder in the Montana corporation, has been grievously wronged and the Montana corporation greatly injured by the illegal transfer of the property of that corporation to a foreign corporation. They show that he and other bona fide shareholders in the Montana Company never assented to any such transfer. They show that certain defendants whom he sues have conspired to continue themselves as directors of the corporation in order to carry out a scheme of. depriving the Montana Company of its property and terminating its existence. They show that, notwithstanding this Court has decided that by the law of this State a domestic corporation cannot exchange its property and stock for the stock of a foreign corporation without the consent of all its stockholders, the defendants have refused to reinvest the Montana Company with its own property illegally held by the New York corporation. They show that the Montana Company has no officer in Montana, and that the books of the Montana Company are in other states, and without the jurisdiction of the courts of this State. They show that the property of the Montana Company is largely in valuable mines, and that the proceeds from the sale of ores have been removed by the defendants and converted to their own use. They show that, unless injunction issues, and a receiver is appointed, the New York Company will continue to extract, ores and unlawfully dispose of the same, to the great detriment and injury of the Montana Company and its-shareholders. They show that the New York Company is insolvent, and has dissipated large sums of money, and will continue to do so unless a receiver is appointed. They show that plaintiff is entitled to have an accounting by the New York Company to the Montana Company, and that already §5,000,000 worch of ore has been converted by defendants. They show that the directors of the New York corporation are using the proceeds of the sale of ores to speculate in the stock of the Montana Company to their own gain; and, finally, that, unless a receiver is appointed, it will be impossible to ascertain the amount or value of the ores already extracted, or to bring about a retransfer of the property belonging to the Montana Company. O’Con-nor’s prayer is for a receiver to take charge pending the litigation; but he asks that the New York Company he reguired to deliver possession to the receiver, and account for the use of the property while it has been in its possession; that the directors be removed; that the deeds heretofore given by the Montana corporation be declared null and void; that the title of the Montana Company be quieted; and that upon final hearing the Montana corporation be dissolved, and its property sold, or, if dissolution be not decreed, that trustees be appointed for the Montana Company, and its affairs settled,' and for general relief.

Kelators err in assuming that the ultimate purpose of O’Connor’s action is simply to bring about a dissolution of the Montana Company, and so to destroy it. It is upon this erroneous assumption they have formulated many of the propositions of law advanced in their brief. The action, though, seeks other and different relief as well. The expressions of the complaint do not allow us to confine its objects exclusively to the obtaining of a dissolution of the' Montana Company. On the contrary, full equitable relief is asked, the principal feature of which is that the Montana Company be reinvested with the millions of dollars’ worth of its property which has been illegally transferred by the trustees thereof to a foreign corporation of no solvency, and beyond the jurisdiction of our courts and the reach of the shareholders who dissent from the transfer by the Montana Company, and to secure an accounting for the vast sums of money claimed to be due to the Montana Company for ores sold since the time of. the illegal transfer alleged. If in asking for a dissolution of the Montana corporation, or, in lieu thereof, for the appointment of trustees, he has asked more than the law- will give him, it is nevertheless beyond our power to say in this proceeding that the District Court has no jurisdiction to proceed with his case, and to grant him such relief as he may be entitled to under his bill. No presumption is permissible which would sustain a holding that, where a plaintiff in an equity suit, showing himself entitled to a measure of relief, asks for more than the law should give him, the District Court having j urisdiction of the subject-matter of his bill will exceed its jurisdiction, and-extend its relief beyond the limits of its power. In the absence of a very clear showing to the contrary, we are obliged to act upon the theory that the lower court will confine itself within its proper limits, and go no further than it legally may. The appointment of a receiver is asked as ancillary to the main suit, and pendente lite only. He is to take possession and manage the affairs of the corporation under the direction of the court while the charges made by O’Connor against the trustees of the Montana Company are being investigated upon a trial. As a shareholder, O’Connor has a right to ask this relief, and in doing so he has brought himself squarely within the doctrine of State v. Second Judicial Dist. Court, 15 Mont. 324, 39 Pac. 316, the reasoning of which we must approve, and here apply. It does not necessarily follow that the appointment of a receiver pendente lite means the dissolution of the corporation, or its destruction. (Decker v. Gardner, 124 N. Y. 334, 26 N. E. 814; Beach, Rec. Sec. 335.) It means that the District Court, if it acts, will, in the best interests of all concerned, appoint some one, to be regarded as its officer, to take charge of the property in litigation; but the corporation’s existence need not be destroyed. The person to be appointed is, in law, an indifferent one, to be clothed with the power to receive and preserve the property and assets of the corporation and its shareholders for the benefit of whoever may finally be declared to be entitled to them. The principle upon which the court may act is that, in order to secure the property — the subject-matter of the litigation — to its owners, the court itself, by an order appointing a receiver, may say that it is inequitable that any party to the litigation should have possession of the property of the Montana Company, and the 'issues and profits thereof, pending the litigation in which O’Connor, as a shareholder, asks equitable relief.

We cannot grant the writ upon the showing made of Judge Clancy’s prejudice or enmity. That argument must be dismissed as without any foundation of record. The facts that Judge Clancy does not like Mr. For bis, one of several counsel for relators, that he has decided various cases against relators, and is on friendly terms with the officers of the Montana Ore Purchasing Company, and may not select a fit person as receiver, if he appoints one, are far from sufficient to oust the lower court of jurisdiction.

It is also said that the Supreme Court, by virtue of its constitutional power to exercise general supervisory control over all inferior courts, has the power to grant these relators relief from the danger which they say surrounds them. The power of this Court is not unlimited, but expressly authorized and vested ‘ ‘under such regulations and limitations as may be provided by law. ’ ’ (Art. VIII, Sec. 2, of the Constitution of Montana.) In the matter of granting writs of prohibition there are statutory regulations and limitations, as discussed in the former part of this opinion. Therefore power to go outside of them does not exist.

If the lower court shall issue the injunction prayed for by O’Connor enjoining the individual defendants sued from exercising functions as trustees of the Montana Company, or enjoin the New York corporation in respect to the matters mentioned in the order to show cause, its action can be reviewed by appeal from such order; or if any action may be taken suspending the powers of the defendants as directors, or removing them from their positions as trustees of the Montana corporation, remedy may be sought by appropriate proceedings. The power- of a court of equity to suspend or remove trustees of a corporation is a very doubtful one. Whether it exists, or to what extent it goes if it exists, has not been argued very fully by relators’ counsel, and is not discussed at all by defendants. Under such conditions, considering the great importance of the question, we prefer to refrain from expressing an opinion upon it, particularly where no unusual harm is apt to ensue by not doing so at this time. The writ of prohibition being largely a discretionary one, we have concluded not to issue it to prohibit the court from acting in this respect. In the other respects hereinbefore discussed relators have not made a case to entitle them to its issuance.

Writ denied,, and petition dismissed.

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


author: PIGOTT, J.

text:
    STATE ex rel. BOSTON & MONTANA CONSOLIDATED C. & S. MINING CO. et al., v. SECOND JUDICIAL DISTRICT COURT, et al., Defendants.
    [No. 1336.]
    [Submitted January 13, 1899.
    Decided February 27, 1899.]

      Receivers — Appointment — Jurisdiction — Appeal — Effect— Certiorari-T — Review.
    1. Under the Code of Civil Procedure, S eetion 951, a showing that there was imminent danger that property in the possession of defendant would be removed beyond the jurisdiction of the court, and unlawfully disposed of, unless a receiver was appointed ex parte, is sufficient to give the court jurisdiction to appoint such receiver without notice of the application therefor.
    2. Where an appeal is taken from an order granting an interlocutory injunction, it does not thereafter prevent the court from appointing a receiver in the same action, under the Code of Civil Procedure, Section 1730, providing that an appeal shall stay all pro-c eedings on the order appealed from, but the court may proceed on any other matter embraced in the action, and not affected by such order.
    3. On certiorari to determine the propriety of the appointment of a receiver, the court cannot consider the weight of the evidence and the propriety of such appointment, but the review is limited to determining whether the court has regularly pursued its authority.
    Certiorari by the State, on the relation of the Boston & Montana Consolidated Copper & Silver Mining Company and another, to the District Court of the Second Judicial District of the State of Montana in and for Silver Bow county, and William Clancy, Judge thereof, and Thomas R. Hinds.
    Affirmed.

      Forbis & Evans, Louis Marshall and William H. De Witt, for Relators.

      John J. Mediation and Cullen, Day & Cullen, for Defendants.
   PIGOTT, J.

This is an original proceeding in certiorari to review the action of the District Court of Silver Bow county and William Clancy, its judge, in appointing a receiver for the property of the Boston & Montana Consolidated Copper & Silver Mining Company of Montana, made on December 15, 1898, in the suit of Forrester and MacGinniss against that company and others, one phase of which suit was before this court in Forrester et al. v. Boston & Montana Consolidated Copper & Silver Mining Co., 21 Mont. 544, 55 Pac. 229.

From the proceedings certified to us it clearly appears that the showing made in the District Court for the appointment of a receiver was, m substance and effect, that recited in the opinion of this court in State ex rel. Boston & Montana Consolidated Copper & Silver Mining Co. v. Second Judicial District Court et al., 22 Mont. 220, 56 Pac. 219. The facts stated in the complaint, in Forrester v. Boston & Montana Consolidated Copper & Silver Mining Co., when considered with the answer and the proofs on the hearing, were sufficient to confer upon the District Court jurisdiction to appoint a receiver. When that suit was commenced, the defendants were served with an order to show cause why a receiver should not be appointed, and a hearing thereon was had July 2, 1898, at the same time that the lower court granted the order of interlocutory injunction appealed from in the Forrester Case. Upon that hearing,' July 2, 1898, the District Court refused to appoint a receiver, upon the ground that such officer was not necessary in view of the promise of the defendants in the suit mentioned that they would cause a reconveyance by the .New York company to the Montana company of the property in the event the court decided that the deed theretofore made by the Montana company to the New York company was not authorized. There was, however, at that time a showing sufficient to confer upon the District Court power to appoint" a receiver. Thereafter, on December 15, 1898, and subsequently to the decision by this Court in the Forrester Case, Forrester and MacGinniss petitioned the District Court to appoint a receiver, and in their petition alleged all the proceedings theretofore had in the action, and averred the same matters, substantially, as those set out in the affidavit of O’ Connor in the prohibition proceedings' determined by this Court on February 20, 1899, and herein referred to. On the same day, December 15, 1898, the District Court, upon said petition, appointed a receiver for the Montana company. This was done without notice other than that referred to, the court below declaring that it appeared to the court that, ‘ ‘unless a receiver is appointed ex parte herein, and without notice to the defendants, there is imminent danger that the property and funds in question will be removed beyond the jurisdiction of this court, and unlawfully disposed of and lost, and that the mining property in question will be irreparably damaged. ’ ’

As we have said, the averments of the petition are similar to those made by O’Connor in his application for the writ of prohibition in the case to which reference has been made. The showing upon which the court below based its action in appointing a receiver was .sufficient to confer upon the court jurisdiction to take the action it did take without giving-notice of the application, for the facts which were presented tended to show that there was then imminent danger that the property ordered to be taken charge of by the receiver would be removed beyond the jurisdiction of the court, and unlawfully disposed of, and brought the case within the provisions of Section 951, Code of Civil Procedure.

It is contended, however, by the petitioners, that at the time the order of December 15th was granted the District Court had no power to make any order whatsoever in that case, this Court having then exclusive jurisdiction over the action, because on December 15th the case of Forrester et al. v. Boston & Montana Consolidated Copper & Silver Mining Co. et al. was pending here on motion for a rehearing. The appeal in that case was from an order granting an interlocutory injunction. No other part of the action was affected by the order appealed from. Section 1730, Code of Civil Procedure, provides: “Whenever an appeal is perfected, as provided in the preceding Sections of this chapter, it stays all further proceedings in the court below upon the judgment or order appealed from, dr upon the matters embraced therein, and releases from levy property which has been levied upon under execution issued upon such judgment; but the court below may proceed upon any other matter embraced in the action, and not affected by the order appealed from. * * *” It is perfectly clear that the interlocutory order did not affect any other matter embraced in the action, and it is equally clear that it did not interfere with, lessen, or oust the authority of the court below to proceed with the appointment of a receiver.

This Court, .on the present application, may not consider the weight of the evidence, or the strength of the showing, if sufficient was presented to the court below to warrant the exercise of its jurisdiction. Certiorari will not perform the office of an appeal, and bring before this Court the question whether an error was committed within the jurisdiction of the lower court. The District Court had jurisdiction of the nature of the action and over the subject-matter thereof. The showing with respect to the specific order of which complaint is made was sufficient to support the exercise of jurisdiction. As was said in State ex rel. Buck v. Ravalli Co. Com’rs, 21 Mont. 169, 51 Pac. 939, the power to decide at all gives the power to decide wrong as well as right. The writ of certiorari may be granted when the inferior court or judge has exceeded its or his jurisdiction, and there is no appeal, nor any plain, speedy and adequate remedy; but the review must not extend further than to ascertain and determine whether such court or judge has regularly pursued its or his authority. (Sections 1911, 1917, Code of Civil Procedure; State v. District Court of Ninth, Judicial District, 17 Mont. 329, 42 Pac. 285.) Whatever errors may have occurred were committed within the authority and jurisdiction of respondents, and therefore this Court may not, upon certiorari, entertain or consider them. ...

Petitioners complain that an unfit man has been appointed receiver by the District Court; that he has been required- to give a bond, which is merely nominal, as compared with the immense interests involved; and that Forrester and MacGrinniss are endeavoring to secure to a rival corporation tbe control of the property of the Montana Company. . These are matters impertinent to the question raised by the writ, and with which this Court has nothing to do at this time. We have heretofore held, upon the facts in the controversy as presented to us upon the appeal from the interlocutory injunction order, that petitioners have failed to observe the law in their futile attempts to devest the Montana Company of its property. In so far as this Court is advised, they stand in such attitude at the present time. So long as they remain in that position, they may not be heard, on certiorari, to complain of the danger to their property consequent upon the appointment of a receiver. When they shall have made suitable restitution, and are willing to obey the law, then a different condition will be presented, and a court of equity would not hesitate to exert its power to the end that they suffer no wrong.

The facts here presented with respect to their operation upon jurisdiction are not distinguishable from those involved in the prohibition case referred to, and to them must be applied the principles there announced. It is therefore adjudged that the order of December 15, 1898, appointing a receiver, be, and is hereby, affirmed upon the sole ground that in making said order the respondents have not exceeded their jurisdiction in the premises.

Brantly, C. J., and Hunt, J., concur.


author: PER CURIAM.

text:
    McCLEARY, Respondent, v. CROWLEY, Appellant.
    No. 1,031.]
    [Submitted February 15, 1899.
    Decided February 27, 1899.]

      Forcible Detainer — Demand— Verdict— Judgment— Rules of Supreme Court — Briefs. '

    1. Under Code of Civil Procedure, Sec. 2081, Subd. 1, making one guilty of forcible de „ tainer who, by force or threats, unlawfully holds possession of any realty, whether the same was acquired peaceably or otherwise, a demand for possession is not essential to be alleged in a complaint which charges that the possession was peaceably acquired but is withheld unlawfully and by force.
    2. In fprcibie detainer a verdict is defective which fails to find that defendant detained the property,
    s. A money judgment in forcible detainer is not sustained by a verdict which fails to find that defendant detained the property, since under Code of Civil Procedure, Sec. 2094, damages may be assessed only when occasioned by forcible detainer.
    4. The Rules of the Supreme Court are made to'be obeyed, not to be honored chiefly in their breach.

      Appeal from District Court, Madison County/ ’ Frank Showers, Judge.

    Action by P. J. McCleary against J. J. Crowley. From a judgment for plaintiff and an order denying a new trial, defendant appeals.
    Reversed.

      W. L. Holloway, for Appellant.

      R. B. Smith, W. A. Clark and J. A. Knight, for Respondent.
   PER CURIAM.

McCleary brought this action of forcible detainer against Crowley in a justice’s court in October, 1895. His complaint alleged that on September 8, Í895, he was in the actual peaceable possession, and entitled to the possession, of the Pay Rock Mining Claim, situated in Madison county, on which day, and during the temporary absence of plaintiff, defendant peaceably, but without right so to do, entered upon and took possession of the claim, and since that day has, by force and threats, unlawfully held and kept possession thereof, contrary to the form of the statute; and that, after entering, defendant willfully and maliciously demolished and destroyed a shaft house of the plaintiff on the property, to plaintiff’s damage of $100; and that plaintiff has been injured in the further sum of $200 by reason of the forcible detention and loss of rents and profits. These allegations were denied by the answer. After trial in the justice’s court, appeal was taken to the District Court, where a verdict was returned and judgment entered for plaintiff. Defendant appeals from the judgment and from the order refusing a new trial.

Rale Y of this Court requires, among other things, that “the brief shall contain, in the order here stated: (1) A concise abstract or statement of the case, presenting succinctly the questions involved and the manner in which they are raised, which abstract shall refer to the page numbers in the transcript in such manner that pleadings, evidence, orders and judgment may be easily found.” The transcript contains some 62 pages of evidence, and 9 pages of instructions given and refused. There are 7 specifications of particulars in which it is claimed the evidence is insufficient to justify the verdict, and 3 of particulars in which the verdict is against the law; there are also 26 errors of law assigned. Appellant’s statement or abstract recites the contents of the pleadings; says that a trial was had, verdict returned, and judgment entered for §150 in favor of plaintiff; and that the appeal is taken from the judgment and order. Although subsequent portions of the brief discuss somewhat elaborately the various points, the abstract or statement fails to present the (juestions involved or manner in which they are raised; it fails to state the evidence, the objections, the rulings of the court, or the exceptions, and even omits to refer to pages where the-matters of which complaint is made can be found. Respondent does not attempt to state the case, as he may do under Subdivision 4 of Rule Y. We again call attention to the rule, which was made to be obeyed, not to be honored chiefly in its breach. The statement does, perhaps, contain enough to present the question whether the complaint states a cause of action, and also the question whether the verdict is responsive to the issues and supports the judgment. We shall therefore consider these questions which are raised by the appeal from the judgment, and shall not examine into the various errors relied upon in support of the motion for a new trial further than to say that the evidence was sufficient to go to the jury on all the issues; that much hearsay and irrelevant matter was admitted; and that the instructions are not wholly consistent. If a reasonable degree of care is exercised, it is not likely that the more serious of these errors will occur at another trial.

The action is based upon Subdivision 1 of Section 2081 of the Code of Civil Procedure,' which reads: “Every- person is guilty of a forcible detainer who either: (1) By force’or by menaces and threats of violence, unlawfully holds and keeps the possession of any real property or mining claim, whether the same was acquired peaceably or otherwise. * * *” The complaint alleges that the defendant, having acquired peaceable possession, unlawfully and by force held and kept the possession from plaintiff. A demand is not necessary to be averred as an element of plaintiff’s cause of action. The only objection made to the' complaint is that it fails to state a cause of action' because a demand is not alleged, and as against this objection the complaint is good.

The verdict is as follows: “We, the jury in the above-entitled cause, find that, at the date of commencement of this suit, the plaintiff was entitled to the possession of the Pay Kock mine, and we assess his damages at §150.” The judgment is that plaintiff recover such sum. A verdict must always be responsive to, and find upon, every issue necessary to a recovery, and must support the judgment. The grava•men of the action is the forcible detainer, without the existence of which the defendant must prevail. That the verdict in this case does not decide that defendant forcibly detained the property is too clear to permit of argument; indeed, it does not even declare that the plaintiff was entitled to the possession on September 8th. Had the jury found, also, that plaintiff was entitled to possession on that day and when' the action was commenced, non constat that defendant then or any time held and kept possession by force as well as unlawfully. Eor aught that appears, the jury believed that defendant was occupying without right, but not by means of force. It is such a verdict as would be proper, in the ordinary action of ejectment, to try the right of possession; where the only wrong complained of is the unlawful occupancy by defendant. Under Section 2094 of the Code of Civil Procedure, a general or special verdict, as defined by Section 1Í00 of the same Code, would doubtless be proper. But in this case the jury did not find either generally or specially upon the vital issue, the determination of which in favor of the plaintiff was absolutely indispensable to his recovéry. Nor is the judgment, which is for money only, supported by the verdict; for in such an action as the one at bar damages may be assessed only when occasioned by forcible detainer. (Section 2094, supra.) Damages are merely incidental to the detainer.

The judgment is reversed, and the cause remanded.


author: BRANTLY, C. J.

text:
    MITCHELL, Respondent, v. McCORMICK, Appellant.
    No. 1,045.]
    [Submitted February 16, 1899.
    Decided February 27, 1899.]

      Quieting Title — Pleading — Homestead — Excessive Yalue— Lien.

    1. A denial, in an answer to a bill to quiet title, that the property in controversy is plaintiff’s homestead, and that a sale made under defendant’s judgment is void or a cloud on title, raises issues of law. and not of fact.
    2. Under an admission that property in controversy is a homestead, and has been set apart as provided by law, it cannot be objected that the homesteader did not allege its statutory value in the declaration of homestead.
    3. Under the statutory limitation that a homestead shall not exceed $2,500 in value, the debtor will be protected to that amount, though it exceeds such yalue.
    4. An allegation, in a complaint to quiet title, that “during all the times mentioned in the complaint, and for a long time prior thereto, plaintiff has been residing with her husband in and upon, and in the actual possession” of, the property in controversy, is a sufficient allegation of residence in the State at the dates mentioned in the complaint.
    5. A money judgment cannot be impressed as a lien on a homestead without a showing that tlie money was borrowed for the purpose of buying the homestead, it not being sufficient that the money did buy the homestead.

      Appeal from District Court, Silver Bow County; W. O. Speer, Judge.

    Bill' by Malvina B. Mitchell against John McCormick. There was a decree for plaintiff, and defendant appeals.
    Affirmed.
    Statement of the case by the Justice delivering the opinion.

      This action was brought by plaintiff to quiet title to lot 6, block 18, in the original townsite of Butte, county of Silver Bow, Montana.
    The plaintiff alleges that during all the times mentioned in the complaint, and for a long time prior thereto, she has been residing, with her husband, J. E. Mitchell, in and upon, and in the actual possession of, this property; that she claims the title thereto in fee simple, and that the same constitutes the homestead of herself and her husband; that on October 12,
    1895, she made and executed a declaration of homestead thereon, and filed the same in the office of the clerk and recorder of Silver Bow county, Montana; that on January 22, 1896, she made and executed an amended declaration upon the same property, and filed it in the same office; that on January 21, 1896, in the District Court of the Second Judicial District of the State of Montana, in and for' the County of Silver Bow, a judgment was entered in favor of John McCormick, the defendant herein, and against the plaintiff herein, for the sum of $1,000 and costs of action; that on March 3, 1896, an execution was issued thereon, and placed in the hands of Sam'J. Reynolds, the sheriff of Silver Bow county, to -be executed; that under this execution the said sheriff, levied upon, and afterwards, on March 27, 1896, sold, the premises at sheriff’s sale to the defendant, and delivered to him a certificate of sale; and that said sale is void and constitutes a cloud upon plaintiff’s title.
    The declaration and amended declaration are made part of the complaint, as Exhibits ‘ ‘A’ ’ and “B. ” Both contain the statements required by law to be contained in them, and are properly acknowledged.
    The answer denies that the property constitutes the plaintiff’s homestead, as against defendant’s judgment, and that the sale is void and a cloud on plaintiff’s title. Then, after formally admitting all the other allegations of the complaint, it alleges affirmatively the recovery of the judgment, the sale by the sheriff of Silver Bow county to the defendant, and then proceeds: “That the said sum of one thousand dollars, for which judgment was by the defendant herein obtained against the plaintiff as aforesaid, was and is for money loaned by the defendant to the plaintiff at the instance and request of the plaintiff, and that the said sum, and the whole thereof, was used by her in the purchase of said lot numbered six in block numbered eighteen of the original townsite of Butte, and in the erection and construction of the improvements thereon. ’ ’
    To this answer a general demurrer was interposed. This was sustained. The defendant having elected to stand on his answer, judgment was entered for plaintiff, declaring the sale of the property by the sheriff void, and that defendant obtained no interest therein by his purchase. From this judgment defendant appeals.

      John W. Cotter, for Appellant.
   BRANTLY, C. J.

No issue of fact is raised by the answer. The denial that the property in controversy is the homestead of plaintiff and her husband, as against the judgment of defendant, is equivalent to an allegation that it is their homestead, but that it is yet subject to sale in satisfaction of his judgment. The formal admission is also made that the homestead was selected as the law provides. It then appears that the property in controversy was at the time the judgment was recovered already impressed with the homestead character. The question presented by the denial, therefore, is whether a simple money judgment is a lien upon a homestead, — a pure 'question of law, and not an issue of fact.

The same may be said as to the other .denial. The issue raised is a difference of opinion between the parties as to whether the proceedings set out in the complaint have created a cloud upon plaintiff’s title to her homestead property. The substance of the answer is an admission of all the plaintiff claims, and an effort to avoid the consequences of this admission by attempting to bring defendant’s judgment within the class of cases enumerated in Section 1674, Civil Code, in which the homestead is not exempt.

The fact that the property in controversy is plaintiff’s homestead, and' that it has been set apart as provided by law, all of which is admitted in the answer, relieves the plaintiff from the necessity of alleging the statutory value. We do not understand that a piece of property must be of the value of $2, - 500, or less,-before it can be impressed with ■ the homestead character. The statute provides that the declaration shall contain a statement showing (1) that the person making it is the head of a family; (2) that he is residing on the premises, and claiming them as his homestead;- (3) a description of the premises; and- (4) an estimate of their actual value. (Civil Code, Sec. 1701.) “From and after the time the declaration is filed for record, the premises therein described constitute a homestead.” (Civil Code, Sec. 1703.) It is to be understood, however, that the statements contained in the declaration must be true. It does not follow that, if the property selected for a homestead is of greater value than $2,500, the law will not protect the claimant to the extent of his rights as the head of a family. If this were true, then the head of a family owning a “dwelling house in which he resides and the land on which the same is situated” (Civil Code, Sec. 1670), of greater value than the statutory amount, could not select a homestead from it at all. If he should make his selection of property which at the time conformed in value to the statutory limit, yet, if afterwards it should appreciate in value beyond this limit, the selection would be of no avail against the attacks of importunate creditors. The declaration must contain the estimated value, .not the statutory value* (Civil Code, Sec. 1701.) This having been made as provided by law, the premises become impressed with the homestead character, and the claimant will be protected in his rights. The purpose of our statutes (Civil Code, Secs. 1670-1701) is to carry out the mandate of the Constitution (Section 4, Art. XIX), 1 ‘that the legislative assembly shall enact liberal homestead'and exemption laws.” There' is no limitation in the statute providing the mode of selection, either as to the area or value of the property to be selected. If the area is exceeded, the amount of excess can be ascertained by measurement, and thus reached by the creditor. If the value is exceeded, the excess may also' be reached, as provided in Sections 1670 to-1692, inclusive. We do not see any conflict in the provisions of Sections 1693 and 1701. The chapter of which the first is a part makes provision as to persons entitled to homesteads, the property from which they may be carved, the mode by which they may be alienated, incumbered or abandoned, and the remedies by which they may be subjected to the claims of execution creditors. On the other hand, the chapter to which the latter belongs has reference to the mode of selecting the homestead, its recordation, and the tenure by which it is held. For a full discussion of similar statutory provisions, see Ham v. Santa Rosa Bank, 62 Cal. 125.

Another criticism made upon the complaint is that it does not allege that the plaintiff is a Iona fide resident of Montana. The allegation of the complaint is that “during all the times mentioned in the complaint, and for a long time prior thereto, she (plaintiff) has been residing, with her husband, in and upon, and in the actual possession’ ’ of, the property in controversy. This clearly means residence in Montana at the dates mentioned in the complaint, and is sufficient.

Turning now to notice the last paragraph of the answer, we observe that it does not allege that the money for which the judgment was rendered was loaned to plaintiff for the purpose of purchasing the homestead. Conceding that, if one person borrows money from another with which to purchase property, this latter has a vendor’s lien upon the property for the money so loaned, the allegations in this paragraph are not sufficient. They do not show that the money was borrowed by the plaintiff for the purpose of purchasing the homestead property. She may have borrowed it, so far as the facts alleged show, for some other purpose, exclusively upon her personal credit.

Defendant, in support of his contention that his judgment is a lien upon the property by reason of the fact that the money for which it was obtained was used in the purchase and improvement of the property, cites a long list of authorities,— among them, Blaisdell v. McDowell, 91 Cal. 287, 27 Pac. 656; 1 Freem. Ex’ns, Sec. 249f; Carr v. Caldwell, 10 Cal. 384; Pratt v. Topeka Bank, 12 Kan. 570; Magee v. Magee, 51 Ill. 500; Coleman's Adm'r v. Parrot (Ky.) 32 S. W. 679; but these, without exception, are cases where the money was furnished by the claimant for the purpose of purchasing the property upon which the lien was sought to be fixed.

The demurrer to the answer was properly sustained. Let the judgment be affirmed.

Affirmed.

Hunt and Pigott, JJ., concur.


author: HUNT, J.-

text:
    BORDEAUX, Appellant, v. GREENE, Respondent.
    [No. 1,046]
    [Submitted February 17, 1899.
    Decided February 27, 1899.]
    Easements— Obstruction of light and Air- — Moiive of Malice —Pleading— Conclusions.

    1. The right of one to shut off air and light from his neighbor’s windows by building on his own lots is unaffected by his motive, and it makes no difference whether his motive is a “purely malicious one.”
    2. An averment of the complaint in an action to abate, as a nuisance, a fence on defendant’s lots, adjoining plaintiff’s buildings that it is liable to be blown over on the buildings, and may injure them, is an allegation of conclusions insufficient to withstand a general demurrer. .

      Appeal from District Court, Silver Bow County; J. J. McEattan, Judge.

    Action by John R. Bordeaux against Flora E. Greene. From a judgment for defendant entered on sustaining a demurrer to the complaint, plaintiff appeals.
    Affirmed.
    Statement of the case by the Justice delivering the opinion
    Action to abate a nuisance. Plaintiff was the owner of certain lots, and a building thereon, in Butte. Defendant owned an adjoining lot, upon the front part of which she erected a brick building. . In the rear of her lot were outbuildings. In August, 1896, defendant (so plaintiff alleged, “wrongfully and maliciously and unnecessarily, and for the purpose of inj uring plaintiff and,plaintiff’s property,” built a high board fence (40 feet high) within 2-]- or 3 feet from the rear of plaintiff’s building — so close to his building as to cut off light, air and view therefrom.
    The complaint also contained the following averment: ‘ ‘Plaintiff further alleges, that the manner in which the said fence is constructed, in the event of a heavy wind occurring and blowing from the northeast to the southwest, that the said fence is liable to be blown over and upon his said buildings, and may result in injuring the same by the reason thereof.”
    General demurrer was sustained. Plaintiff declined to amend, and judgment went against him for costs. He appeals.

      John W. Cotter, for Appellant.

      John JB. Wellcome and Clayberg db Corbett, for Respondent.
   HUNT, J.-

Defendant built the fence upon her own property. That being true we know of no statute of the State, or ordinance of the city of Butte, which, in the exercise of a police power, prevented her from putting up the structure. Nor will the law generally prevent it. The owner of a piece of property has a right to shut off air and light from his neighbors’ windows by building on his own lots. This doctrine is too well settled in this country to require authorities. He cannot-annoy his neighbor with the smell of his privy vaults, or with percolating sewer water, or other inconveniences which the law recognizes as injurious; but the free use of light and air by an owner of the soil are his, to any extent he pleases, without regard to his neighbor’s convenience or inconvenience. (Picard v. Collins, 23 Barb. 444; Letts v. Kessler, 54 Ohio St. 73, 42 N. E. 765; Judge Campbell’s opinion in Burke v. Smith, 69 Mich. 380, 37 N. W. 838.) It makes no difference whether defendant’s motive in building the fence was one of malice towards her neighbor, or a desire to improve or ornament her property. She could, with a purely malicious motive, shut out her neighbor’s light and air by a magnificent building; and why not, though prompted by a like mbtive, by a fence 40 feet high ? (Rideout v. Knox, 148 Mass. 368, 19 N. E. 390.) Either method would be equally inconvenient and damaging to plaintiff, but the motive would have no' more effect in the one case than in the other.

A person having a legal right can enforce the enjoyment of it without having his motive inquired into. (Phelps v. Nowlen, 72 N. Y. 39.)

The allegation that the fence is liable to be blown over upon plaintiff’s building, and may result in injuring the same, is very bad. It is not stated directly that the construction of the fence is defective or poor, or how it is dangerous to plaintiff’s property, or that it is on account of any weak or negligent construction that plaintiff’s property is endangered. The allegation is one of conclusions, and insufficient to withstand a general demurrer.

Judgment affirmed. Affirmed.

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


text:
    KING, Respondent, v. BENSON, Appellant.
    [No. 1,047.]
    [Submitted February 21, 1899.
    Decided March 6, 1899.]
    Brokers— Commissions — Contract for Services.

    1. Where a broker was told by the principal that he must look to the intending purchasers for his compensation for making the sale, and nothing else was ever said about compensation, he cannot recover his commissions from the principal.
    2. No recovery can be had for services in effecting a sale of realty rendered by plaintiff " and accepted by defendant, unless there is a note or memorandum in writing of a contract for such services, as required by Civil Code, Sec, 2185.

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

    Action by Walter J. King against N. E. Benson. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.
    Reversed.

      N. B. Smith, A. C. Gormley and M. M. Dyter, for Appellant.

      Max Waterman and C. A. Spcmlding, for Respondent.
   PER CURIAM.

Action by plaintiff as assignee of an account for commissions for services as real estate broker in tbe sale of an interest in certain mines. The complaint contains allegations of employment by defendant of S. W. Langhorne to effect the sale, of a promise on the part of defendant to pay for his services, of a negotiation of a sale by S. W. Langhorne, and of an assignment of the account for the services to plaintiff.

The answer denies all these allegations. At the close of plaintiff’s proof the defendant moved the court to direct a nonsuit on two grounds: that the evidence failed to show that there was any note or memorandum in writing of the alleged contract of employment between defendant and S. W. Langhorne, and that the evidence failed to show any contract of employment.

From a careful reading of the evidence we are of the opinion that the motion should have been sustained. No proof offered by plaintiff tends to show that defendant ever employed S. W. Langhorne. It tends to show the contrary. The proof offered in support of the contract consists of á series of letters and telegrams between S. W. Langhorne, of Helena, Montana, and the defendant, who was, at the time the negotiations were opened, in Excelsior Springs, Missouri. In one of his letters to S. W. Langhorne, about the time negotiations were opened, the defendant distinctly tells him that he must look for his compensation for making the sale to the parties for whom he was negotiating. Thereafter the defendant came to Helena, and the sale was completed there. Nothing was ever said between defendant and Langhorne, after the statement was made in the letter referred to, about any compensation to be paid by defendant. No matter what services were rendered to defendant by Langhorne, and accepted by defendant, no recovery can be had for them, under the proof in this record, because there was no note or memorandum of any contract for such services in writing. (Civil Code, Sec. 2185.)

There was a verdict' below for plaintiff. This appeal is from the judgment and an order overruling a motion for a new trial. Let the judgment be reversed, and the cause remanded,' with directions to grant a new trial.

Reversejd and remanded.


text:
    JOHN CAPLICE CO., Appellant, v. BEAUCHAMP et al., Respondents.
    [No. 1,048.]
    [Submitted February 23, 1899.
    Decided March 6, 1899.]

      Chattel Mortgages — Bona Fide Pwrchasers.

    A bona flde subpurchaser of chattels takes free from the lien of an unrecorded mortgage, though the first purchaser had notice.

      Appeal from District Court, Jefferson Cou/nty; Frank Showers, Judge.

    Action by the John Caplice Company against M. Beau-champ and another. From a judgment for defendants, plaintiff appeals.
    Affirmed.

      F. W. Bacorn, for Appellant.

      W. L. Hap and Ceo. F. Cowam, for Respondents.
   HUNT, J.

Claim and delivery for six carloads of wood, of the alleged value of $200. By stipulation, defendant the Northern Pacific Railroad Company did not appear. Defendant Beauchamp, after denying plaintiff’s ownership and right of possession, alleged ownership and right of possession in himself. Yerdict and judgment for defendant. Plaintiff’s motion for new trial denied. Plaintiff appeals.

Plaintiff and one Hiram Nelson had a contract, under date of December 10, 1894, by which plaintiff leased to Nelson certain property, consisting of cabins, wood flumes, teams, etc., in Jefferson county. In consideration of this lease, Nelson agreed to bank certain cord wood for the Caplice Company, and to deliver to it not less than 10,000 cords of wood, at not less than $2.25 per cord, and that the Caplice Company should have a lien on all wood cut. That agreement was to continue for 12 months after date thereof. It was sworn to and acknowledged as required by the chattel mortgage statutes then in force. On April 6, 1896, another agreement was made between the same parties, incorporating the aforementioned contract in the new agreement, and providing that the Caplice Company should do the hauling and fluming of cord wood cut by Nelson, and load the same on the cars, allowing Nelson $2.25 per cord; and after deducting costs of hauling, fluming, loading, and any moneys due to the Caplice Company by Nelson, the balance, if any, was to be paid to Nelson. This agreement was signed by the parties, but not verified or acknowledged.

Plaintiff’s evidence was that Nelson cut a quantity of wood under the first contract, but that plaintiff took possession of the same when the second contract referred to was made, and that plaintiff’s agent was in charge when defendant Beauchamp took the particular wood in controversy; that the agent of plaintiff took charge by personally going to where the wood was; and that he had notified several persons (other than defendant, however,) not to touch the wood, telling them whose property it was.

Defendant’s evidence was that Hiram Nelson cut the wood, but that defendant bought it from Mrs. Nelson, Hiram’s wife, and'paid her $114;, on May 18th, by-taking the wood for.a. pre-existing debt, in part, and payment to the men for the balance due for it; that Nelson had left that vicinity in the spring; that Mrs. Nelson was in continual possession of the wood after Nelson left, and that plaintiff’s agent had nothing to do with it; -that the defendant had been employed by Mrs. Nelson to load and watch the wood, and had worked for her for some time previous; that defendant was given a bill of sale for the wood, executed and delivered by Mrs. Nelson to him on May 18th; that Mrs. Nelson bought the wood from her husband on account of money loaned to him and .labor performed for him for six years before her marriage; that her husband had delivered the wood to her on May 7th, and had given her a bill of sale for it dated April 28, 1896; and that she knew of the contracts between her husband and the plaintiff, but that defendant Beauchamp did not.

Plaintiff says that this evidence was insufficient to sustain the verdict in defendant’s favor, because: (1) it does not show that Mrs. Nelson had any right or title to the wood in controversy, or was in possession thereof, or (2) that defendant was a bona fide purchaser for value, and (3) because it conclusively appears that plaintiff was the owner of the wood, and actually took and retained the possession to which it was entitled, until unlawfully deprived thereof. Plaintiff errs in its contention. There is evidence to show that Mrs. Nelson bought the wood from her husband, taking it in payment of an account for money loaned to him by her and for wages due her, all before her marriage. There is also evidence to show that she had the actual, exclusive possession and control of the wood after her husband left that vicinity, and subsequent to his sale to her, and that she kept such exclusive possession until she sold to Beauchamp, this defendant. Regarding the contracts between plaintiff and Nelson as chattel mortgages, with the mortgagor, Nelson, remaining in possession until he sold to his wife, doubtless Mrs. Nelson, knowing of the lien of the Cap-lice Company, took the property included in the mortgage, made after the Code of 1895 took effect, subject to the lien of the Caplice Company; but whether she did or not is immaterial in the consideration of appellant’s first point, for she •could acquire, and by her evidence she did acquire, all the right and' title her husband had, and took actual possession from him. This disposes of appellant’s first point.

As to the second point: Beauchamp knew nothing of the •contracts between Nelson and plaintiff. They were not of record; nor was the company in possession of the wood. He was an innocent purchaser in good faith for value, under the •evidence, and must be protected. As a stranger to the unrecorded mortgage of Nelson to the Caplice Company, he took free from any lien upon the property in favor of the plaintiff •company, — indeed, before the new Codes of 1895 went into ■effect, he would have,been protected, even if he had had the knowledge that Nelson had mortgaged the property, because the mortgage had not been filed as required by law. (Milburn Manufacturing Co. v. Johnson, 9 Mont. 537, 24 Pac. 17.) That rule would not obtain now, though, for under Civil Code 1895, Sec. 3861, good faith is essential on the part of a subsequent purchaser and incumbrancer of personal property mortgaged, who assails the validity of a prior mortgage as against his rights. Beauchamp established his good faith .and lack of knowledge, actual or constructive; and having purchased for value from Mrs. Nelson, the general owner in possession, he took the wood discharged of any prior liens. .(Andrews v. Jenkins, 39 Wis. 476; Ping. Chat. Mortg. Sec. 753; Cobbey, Chat. Mortg. Sec. 611.) The case falls, too, within the principles stated in Hull v. Diehl, 21 Mont. 71, 52 Pac. 782.

As to the third point: It does not conclusively appear that the Caplice Company owned the wood, or was entitled to possession of it, or actually took possession. Nelson owned the wood under the contracts, and gave liens thereon. If the Caplice Company had taken actual possession before Nelson .sold, different rules might apply. But the issue of possession was tried, and found against the company; and, there being substantial evidence to support the verdict, we cannot now disturb it.

Plaintiff’s appeal is without merit. Judgment affirmed.

Affirmed.

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


text:
    MING, Executrix, Respondent, v. Pratt, Appellant.
    [No. 1,050.]
    [Submitted March 2, 1899.
    Decided March 6, 1899.]
    Contract— Construction — Authority of Agent — Evidence—Interpretation.

    1. A contract between an owner of an opera house and amanager of an opera company,, providing that the opera company should receive a fixed sum and 85 per cent, of all moneys received in the sale of seats, does not mean that the percentage should be-computed only on the amount of the receipts in excess of the fixed sum, but entitles-the company to such sura and a percentage of the gross receipts.
    2. A contract entirely reduced to writing cannot be orally contradicted.
    3. Where the intent of the parties to a contract is explicitly declared on the face of the-writing, resort cannot be had to the surroundings of the parties, the subject-matter, and prior negotiations to determine its construction.
    4. A principal is not bound by a promise of his agent, where there is no evidence that the agent acted within the scope of his agency, or attempted to bind any other persom than himself.
    5. Resort to interpretation is never to be had where the meaning is free from doubt. It. is to be availed of only when, without its aid, the meaning or effect of the contract would be doubtful or uncertain.

      Appeal from District Court, Lewis and Cla/rke County;Henry N. Blake, Judge.

    Action by Katherine L. Ming against Charles H. Pratt. J udgment for plaintiff. Defendant appeals.
    Reversed.

      C. B. Nolan, for Appellant.

      J. W. Kinsley and II. J. Burleigh, for Respondent.
    The rule is settled that a written contract shall be so inter preted as, if possible, to carry out what the parties meant. (Bishop on Contracts, Sec. 380; Collins v. Lavelle, 44 Yt. 230; Wolfe v. Scarborough,, 2 Ohio St. 361; Higgins v. Wasgatt, 34 Maine 305.) Contracts will always be construed reasonably, and in accordance with what the evidence shows the subject-matter to be, and the consequent object of the parties to it. (Chamberlain v." Baltimore da Ohio B. Co., 6 Cent. Rep. (Md.) 471; Hildebrand v. Bloodsworth, 12 Oregon 75; Mobile do Mont. B. Co. v. Jurey, 111 U. S. 584; Coleman v. Commins, 77 Cal. 548.) Interpretation will lean to the rendering which will make the contract reasonable and just. (Bishop on Contracts, Sec.-400; Dedericlc v. Wolfe, 24 Am. St. Rep. 283.) The court was bound to put itself, as near as may be, in the situation of the parties to this contract, and from a consideration of the surrounding circumstances and the occasion, and apparent object of the parties, determine the meaning and intent of the language used by them in their agreement. (United States v. Power, 6 Mont. 274; Smith v. Kerr, 2 Am. St. Rep. 362; Chisms. Schipper, 14 Am. St. Rep. 668.)
   PER CURIAM.

Plaintiff, as executrix of the will of John H. Ming, deceased, owned and conducted an opera house in Helena during the year 1894; defendant was the proprietor and manager of the Marie Tavery Grand English Opera Company. On December 12, 1894, plaintiff and defendant entered into a written contract, by which it was agreed that the Tavery Company should give one performance at plaintiff’s opera house on the 22nd of that month. The only provision of the contract pertinent to the matters considered in this Court is the following:

“It is agreed that Charles H. Pratt, manager of the said Marie Tavery Opera Company, is guaranteed to receive as his share not less than eight hundred and fifty (850) dollars and eighty-five (85) per cent, on all moneys received in the sale of seats for sáid engagement. * * * Settlements pro rata to the above division to be made ‘during the first act of said performance. ’ ’

Plaintiff sued to recover damages for an alleged breach of the contract, the complaint stating the failure of the troupe to occupy the house oh December' 22nd,'to her damage $150, and that plaintiff was obliged to send her agent twice to Butte for the purpose of meeting and conferring with defendant in respect of the engagement, at an expense of $32, which, by the breach alleged, was lost to her. The trial court found for plaintiff, and judgment against defendant for $127.50 damages was entered. From an order refusing' a new trial, and from the judgment, defendant appeals.

The sum allowed as damages consists of two items: (1) For loss of sale of tickets, $106;* (2) for expenses of trip to Butte at defendant’s request, $21.50. The allowance of the $21.50 is not-justified by the evidence. It appears that one Hirsch, who was agent for defendant in certain matters, offered to pay the expenses of plaintiff’s representative if the latter would go to Butte and talk with defendant about the expected performance concerning which a controversy had arisen; but there is no proof tending to show that in making the offer or promise Hirsch acted within the scope of his agency, or that he even attempted to bind any person other than himself, or that defendant ratified or adopted the promise. This item should have been rejected.

As to the first item, the court found that the profit which plaintiff would have received from performance of the contract by defendant was $106; and arrived at the result by interpreting the contract as meaning that the percentage to which defendant would be entitled should be computed only on the amount of the receipts in excess of $850. In this there was error. The contract expressly provides that defendant shall have not less than $850 and 85 per cent, of all moneys received from the sale of seats. The language is clear, unambiguous, and free from any uncertainty; its obvious meaning is that defendant was to receive $850, and also 85 percent, of the gross receipts. There is nothing in the contract touching the price of the seats, and, for aught that appears, plaintiff might have fixed such prices as she desired. The contract is not so unjust and unconscionable that courts of law will refuse to give it effect. By the evidence it was shown that the total receipts would not have exceeded $1,558.50 had the performance taken place,' in which event defendant would have been ■entitled, under the contract, to $2,174,72, or $616.22 more than the total receipts. No effort was made to reform the ■contract so that the intention of the parties, if different from the one so clearly expressed, might appear. Except where, in equity, it is sought to be, or is treated as, reformed, a contract entirely reduced to writing may not be orally contradicted. (See Gaffney Mercantile Co. v. Hopkins, 21 Mont. 13, 52 Pac. 561.) As aids to an-understanding of a written ■contract, but not to alter its terms, the surroundings of the parties, the subject-matter, and even prior and contemporaneous oral negotiations and promises illumining the design and intent, may perhaps be proved; but resort to such evidence is proper only when necessary, and is not permissible where the intention and understanding are explicitly declared upon the face of the writing itself. (See Sanford v. Gates, 21 Mont. 277, 53 Pac. 749.) ‘‘Interpretation is the act of making intelligible what was before not understood,, ambiguous, dr not obvious. It is the method by which the meaning of language is ascertained.” (11 Am. and Eng. Ency. Law, 507.) Resort to interpretation is never to be had where the meaning is free from doubt; it is to be availed of only when, without its aid, the meaning or effect of the contract would be doubtful or uncertain. It is manifest upon the record presented that, if defendant violated the contract as written, plaintiff was .entitled to no more than nominal damages, which would not carry costs-Determination of other questions arising upon the errors assigned is therefore unnecessary at this time.

The judgment and order are reversed, and the cause is remanded, with direction to the District Court to grant a new trial.

Reversed and remanded.