author: ME. CHIEF JUSTICE BEANTLY

text:
    STANFORD, Respondent, v. CORAM, Appellant.

    (No. 1,373.)
    (Submitted November 15, 1901.
    Decided February 24, 1902.

      lianhs and Bunking- — Bills and Notes — Guaranty—Persons Bound ■ — • Construction — Validity — Compound Interest— Discharge of Guarantor — Payment by Principal Debtor— Change in Principal Debtor — Demand—Waiver.
    1. where, in an action on a contract whereby the record stockholders of a bank guarantied the payment of notes, the ledger of the bank showed defendant’s name as a stockholder, and it appeared that he and another executed the contract of guaranty on behalf of themselves and other stockholders, the court was justified in finding that defendant was a record stockholder; for the ledger itself was prima- facie evidence of that fact, requiring defendant to rebut the same.
    2. A contract guarantying the payment of notes, not calling for compound interest, which provides that the holder may renew the notes without the consent or knowledge of the guarantors, though contemplating that at the renewal of the’ notes the accrued interest, if not paid, shall either become a part of the principal or an independent obligation drawing interest, is not void as an antecedent agreement for the payment of compound interest.
    3. Though an antecedent agreement to pay interest on interest to become due is void, parties may substitute a new note for an old one which is due, and incorporate in the new one accrued interest remaining unpaid; and hence a guarantor of a note and renewals will be required to pay interest on the accrued interest unpaid at the time of the renewal and made a part of its principal.
    4. Civil Code, Sec. 23S7, providing that parties may contract in writing that unpaid interest shall become a part of the principal and draw interest, does not affect notes or agreements made before its adoption in 1803.
    5. A party guarantying a note and renewals cannot be relieved of his obligation to pay interest and attorney’s fees, as provided by a renewal note, on the ground that his burden has been increased, when the evidence does not show that die original note did not contain such provisions; for it will lie presumed that the original and renewal notes contain the same provisions.
    6. A company executed its note to a bank, its creditor, and deposited a note from an individual debtor as collateral, who was also a debtor on a note to the bank. The company’s note was assigned to plaintiff under a guaranty of payment by the stockholders of the bank. The collateral was not delivered to the plaintiff, and its existence was unknown to him. A stockholder of the bank, while acting as agent of other stockholders and as cashier of plaintiff, received a payment from the individual debtor on the collateral note and on the note payable to the bank. The money so received was first applied on the note to the. bank, and the remainder was endorsed on the collateral; but no credit was made on the company’s note assigned to- plaintiff. Held, that plaintiff was not bound by the knowledge of its cashier, nor responsible for the misappropriation of the collateral note ; he having no knowledge of its existence, except through the knowledge of his cashier, which could not be imputed to him in a transaction in which the cashier was not acting as his agent, but antagonistic to him.
    7. A finding that a demand has been made upon a guarantor to pay a note guarantied by him, though not supported by plaintiff’s evidence that the guarantor stated that suit would have to be brought before he would pay, is harmless error; for the evidence warrants a finding that the guarantor-waived a demand.
    8. The law does not require a useless thing, hence, when one unqualifiedly refuses to perform his obligation he thereby waives the necessity of a demand before bringing suit.
    9. A principal debtor executed his note to his creditor, a bank, and the latter assigned the same to plaintiff bank, under a guaranty by the stockholders of the payee to pay it. The note was thereafter renewed and made payable to the cashier of plaintiff, and indorsed to plaintiff, and carried as bills receivable. The original note was secured by real estate and chattel mortgages. The renewal note was secured by a real estate mortgage executed to plaintiff’s cashier. Plaintiff’s records did not disclose the existence of the mortgage. The cashier accepted as payment of the note a conveyance to him of the mortgaged property, and canceled the note and delivered it to the principal debtor. The cashier executed his own note to plaintiff for the amount of the debt, which note was credited against the* debtor’s note as payment, and was treated as an asset of plaintiff. The cashier informed plaintiff’s vice president that he was going to take the debtor’s property in payment of the note. The vice president knew'of the cashier’s note, though he claimed to have no knowledge of the mortgages securing the principal debtor’s note. Plaintiff did not object to, nor repudiate the cashier’s acts. The original payee went out of business, and plaintiff’s cashier had charge of the settlement of its affairs, but was not authorized to act in any capacity for its individual stockholders. Plaintiff did not offer to return to the cashier his note. No demand was made upon the debtor for the payment of the note after its surrender to him. Held, that the evidence showed that the debtor’s note was paid and discharged by the conveyance of the real estate to plaintiff’s cashier, and hence the guarantying stockholders were discharged from liability.
    10. Under Civil Code, Sec. 3G50, providing that a guarantor is exonerated, if by an act of the creditor without his consent the original obligation of the principal is altered, or the remedies or rights of the creditor against the principa^ are impaired, a guarantor of the payment of a note is relieved from liability when the holder’s cashier, with the holder’s knowledge, accepts as payment from the principal debtor a conveyance of land, and cancels the note, and himself executes a note to the holder for the amount of the debt of the principal debtor.

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

    ActioN by James T. Stanford, as receiver of tlie Northwestern National Dank of Great Falls, Mont., against Joseph A. Coram and another. Judgment for plaintiff, and defendant Joseph A. Coram appeals.
    Affirmed in part and reversed in part.

      Messrs. Clayberg & Gunn-, for Appellant.

      Mr. M. M. Lyter and Mr. A. G. Gormley, for [Respondent.
   ME. CHIEF JUSTICE BEANTLY

delivered the opinion, of the court.

In the spring of 1894 the Globe National Bank, theretofore-doing business at Kalispell, Mont., went into liquidation. At that time it held certain, promissory notes, which, it seems,, were not then due, viz.: One made by the Libby Townsite & Lumber Company for $9,006.02; one made by Oullette & Tlier-riault, copartners, for $3,742.82; and a third, made by one John Weitman and Kate Weitman, his wife, for $6,522.24. Wishing to obtain in cash the amounts called for by these notes,, the authorities of the bank, through their agent, B. D. Hatcher,, who had charge of the business of the bank, assigned them to the Northwestern National Bank of Great Falls, Mont., which thereupon advanced the full amount of them in cash. To protect the Northwestern National Bank against possible loss by reason of the accommodation thus extended to the directors and agents in charge of the affairs of the Globe National Bank, the defendants, for and on behalf of the persons whose names-then appeared of record as stockholders of the latter, executed, and delivered to the former the following writing:

■ “Whereas, the Globe National Bank of Kalispell, Montana,, and the Northwestern National Bank of Great Falls, Montana, have arranged to consolidate and do business in the name of the Northwestern National Bank of Great Falls, Montana,, the Globe National Bank of Kalispell having decided to dis-incorporate; and
“Whereas, the said Globe National Bank, through its agents, and directors, is desirous of transferring to said Northwestern. National Bank certain of its assets consisting of notes and obligations owing it by the Libby Townsite & Lumber Company, the Kalispell Water & Electric Company, John Weitman,. and Oullette & Therriault, each being separate obligations, and’, amounting in the aggregate to a sum exceeding twenty-two thousand dollars, and is desirous of having said Northwestern. National Bank accept eacb and all of said notes and obligations at their face value, and credit the said Globe National Bank and its owners with same as so much cash; and
“Whereas, the officers and directors of the said Northwestern National Bank demand that said notes and obligations be further secured before they are willing to accept same under the conditions named:
“Now, therefore, in consideration of the said Northwestern National Bank, through its officers and trustees., accepting said notes and obligations as so much cash, and at their face value, the persons whose names appear of record as the stockholders of the said Globe National Bank on June 24, 1894, do hereby, through their agents and attorneys in fact lawfully authorized so to do, guaranty the payment of each and all of said notes and obligations, and further expressly agree that said notes, or any one or more of them, may be renewed or extended at such times, under such conditions, and as often and for such time or times as the officers or agents of said Northwestern National Bank may deem proper or choose, and all without the further consent or knowledge of the guarantors or their agents; or any of them; and it is further expressly agreed that this guaranty shall extend to such renewals as long as any one of said obligations, or any part thereof, remain unpaid.
“This agreement is meant to be a full guaranty on the part of said stockholders of said Globe National Bank that the debts above specified will be paid in full, and the guarantors herein, through their agents or attorneys in fact, J. A. Coram and B. D. Hatcher, promise and agree that if said notes, or any of them, are not paid when payment thereof is demanded of the princip.als therein by the said Northwestern National Bank, then upon demand by said bank the guarantors herein will pay each and all of the same.
“Bor the faithful performance of the conditions of this guaranty, said guarantors, through their said agents and attorneys in fact, bind themselves severally and jointly, their heirs, executors, administrators, and assigns, firmly by these presents.
“Dated this 27111 day of June, 1894.
“[Signed]
“J. A. Co Ram, Agent and Attorney in Fact.
“13. D. Hatcher, Agent and Attorney in Fact.”

At the time the Globe National Bank went out of business, B. D. Hatcher, one of the defendants, was its cashier, and thereafter acted as the agent of the directors and stockholders in settling up its affairs. While engaged in this business he was also employed as cashier of the Northwestern National Bank, and continued to1 act for it in this capacity until February 5, 1897, when it also closed its doors and went into the hands of a receiver. The plaintiff was appointed its receiver on May 5, 1897. Meantime the three promissory notes heretofore mentioned had been renewed from time to time; in each instance the interest’ due and not paid being added to the principal, and the renewal note including both interest and principal. All these renewal notes were made payable to the Northwestern National Bank, and contained a provision for reasonable attorney’s fees. This action was brought against the defendants upon the written guaranty quoted above, the complaint alleging previous demand upon both the makers and the defendants as guarantors.

Each of tire notes is the basis of a separate cause of action. The defendant Hatcher suffered judgment by default. The defendant Coram appeared and filed his answer, in which various defenses are interposed, some of which apply to all of the demands, while others apply to some particular one of them. Their nature will be apparent from a, discussion of the contentions made by appellant. The cause was tried by the court without a jury, and from the evidence adduced the court found all the issues in favor of the plaintiff, and caused to be entered a judgment in his favor for the principal sums specified in the notes, with interest and costs, including attorney’s fees. From tbe judgment, and an order denying bim a new trial, defendant Coram has prosecuted bis appeals to tbis court.

1. One of tbe issues presented by tbe pleadings is whether tbe defendant was a record stockholder of tbe Globe National Bank on June 24, 1894. Contention is made that tbe evidence does not support a finding in favor of plaintiff on tbis issue. It appears that when tbe bank closed its doors, in tbe spring of 1894, Hatcher, .who bad been its cashier from tbe time at which it began business in 1892, retained all its books of account and other records as agent, of tbe directors and stockholders to wind up tbe business. In. May of that year be became tbe cashier of tbe Northwestern National Bank. He thereupon employed one Wininger, an attorney residing at Kalispell, to close up tbe business, and delivered to bim tbe books and records. He retained them for some months, and sent them to Hatcher at Great Balls. They were found among tbe records of tbe Northwestern National Bank when plaintiff became its receiver. They were in tbe same condition at tbe trial as when they came into tbe possession of Wininger. Among them was tbe stock ledger, all tbe " entries in which were in tbe bandwriting of Hatcher. Tbe list of stockholders in tbis book included tbe name of tbe defendant Coram. It is admitted in tbe pleadings that be was a stockholder, and Hatcher, who was examined as a witness, testified that be and defendant Coram guarantied tbe payment of tbe notes mentioned in tbe complaint on behalf of themselves and other record stockholders of tbe bank. These facts are amply sufficient to sustain tbe finding. When it was made to appear from tbe ledger, which was identified as tbe record of tbe bank, that tbe defendant’s name was in tbe list of stockholders referred to in the contract of guaranty, tbe burden was cast upon bim to rebut tbe prima, fade, case thus made against bim. This be did not attempt to do. Though be gave bis deposition, which was read at tbe trial, be did not refer to the matter at all.

2. Tbe contention is made that no recovery can be bad upon tbe notes in this action, for the reason that they embody a promise to pay compound, interest, and are therefore void. It is also said that, even if they are not void, no recovery may be had upon them for any amount in excess of the principal sums named in the original notes payable to the Globe National Bank, with simple interest at the rate specified therein up to the date of judgment. This contention proceeds upon the theory that it is the rule in this state that contracts to- pay compound interest are void, as being against public policy and good conscience. The notes themselves, which are copied in the record, do not provide upon their face for the payment of compound interest; nor does the evidence show that any of the renewal notes executed from time to time after the assignment of the original notes contained any stipulation on this subject1. They are, therefore, not obnoxious to the objection urged against them.

Coram agreed that, if the Northwestern National Bank would accept the original notes as cash, he would upon demand pay them, in case they were not paid upon demand upon the makers. He also agreed that they might be renewed “at sirch times, under such conditions, and for such time or times as the officers or agents of the said Northwestern National Bank might deem proper, and all without further consent or knowledge of the guarantors,” etc. This stipulation in the contract contemplated conditions under which the makers might obtain such accommodations from the assignee as they might have obtained from it, had it been named as payee in the first instance, hinder these circumstances it was fairly within the contemplation of the parties that at each renewal the interest should be paid, and the note renewed for the amount of the principal, or that the interest should, when due and the parties should so agree, be converted into principal and be incorporated in the new note. Otherwise, the only purpose to> be served by the stipulation for renewal would seem to be to avoid the bar of the statute of limitations in case the notes were not paid within the prescribed limit. If the purpose of this stipulation was to substitute the Northwestern National Bank in place of the Globe National Bank as payee — which we think was the ease— then we are to understand that the parties to the contract intended that the Northwestern National Bank, as between itself and the makers, should treat the loans as if made by itself in the first instance. The contract of guaranty does not upon its face specifically provide for the payment of compound interest by way of an antecedent agreement. The question, therefore, for decision, arises upon the second branch of the contention, and is: After interest is due, may it lawfully be treated as a debt, and be converted into interest-bearing principal, either in the form of a separate obligation or by addition to the original principal? In either case the result is the same; for if the interest due may not lawfully be added to the principal, and the whole be incorporated in the new obligation, then it would be equally unlawful to convert it into a separate interest-bearing obligation. The defendant insists that either is unlawful under the rule declared in the decisions in this state, and cites Wilson v. Davis, 1 Mont. 183; Curtis v. Valiton, 3 Mont. 153, and Palmer v. Murray, 8 Mont. 174, 19 Pac. 553. In Wilson v. Davis the territorial supreme court had under consideration a promissory note which provided on its face for the payment of compound interest, and it was held that, though the contract was not void, yet the stipulation in advance for the payment of compound interest would not be enforced. This is an authority, therefore, for the position that neither in equity nor at law will an antecedent agreement to pay interest on interest to fall due in tire future be enforced; but it is not held therein that it is against public policy for the parties to substitute a new obligation for the old one when it has fallen due, and incorporate in the new one by an agreement then made any unpaid interest, or to convert such interest into a separate interest-bearing obligation. The case of Curtis v. Valiton is founded upon Wilson v. Davis, but seems to go> further and declare generally that an agreement to pay interest on interest will not be enforced in any case; no matter whether the agreement be an antecedent one or not. A careful examination of it, however, shows that the territorial supreme court was of the opinion tliat the question involved in the case was tbe same as the one decided in Wilson v. Davis, and that it was concluded by the decision in the earlier case; for in Curtis v. Valiton the court proceeded upon the theory that the oral agreement for the payment of compound interest, being made at the time the original obligations were executed, was void, because it fell within the rule declared in Wilson v. Davis. The question presented here seems not to have been the subject of serious consideration. The ease is therefore to be distinguished from the present case, and is not an authority in point. Both these cases are authority for the proposition that a contract for the payment of compound interest is not void in toto, but will be enforced to tho extent of requiring payment of the principal and simple interest at the legal or stipulated rate. The case of Palmer v. Murray was an action for conversion. TJpon a trial the jury rendered a verdict for the value of the property involved at the time of the conversion, with interest to the date of the judgment. Judgment was thereupon entered for the full amount of recovery, with interest. Inasmuch as the judgment itself would thereafter bear 10 per cent, interest, this court upon appeal held that the judgment was erroneous, in that it provided for compound interest, and struck out that portion of the verdict made up of interest on the original value of the property. On a rehearing (8 Mont. 312, 21 Pac. 126), while adhering to the former ruling that the interest allowed by the jury should be stricken out, the court expressly overruled its former decision in so far as it held that the interest properly recoverable in any case could not be capitalized in the judgment. Since the decision in that case it has been.the invariable mile in this state that, whenever interest is properly recoverable in any action, it may be capitalized in the judgment, so as to draw interest from the date of the judgment.

The foregoing cases show the condition of the law in the territory and state until the adoption of the Code of 1895, which overturns the rule established by these cases by a specific provision that parties may contract in writing for the payment of compound, interest. (Civil Code, Sec. 2587.) Previous to 1895 there was no provision in tbe statutes upon tbe subject of usury, and parties were at liberty to fix tbe rate of interest by convention. If no rate was tbus fixed, tbe statute fixed it for all cases in wbicb interest was recoverable. Since tbe contract under consideration was made prior to tbe adoption of tbe Code of 1895, tbe provision cited is not applicable, and its validity must be governed by tbe principles wbicb we find recognized and applied in the decisions of other states.

There is nothing in such a contract inherently wrong, or in violation of any principle of public policy or good conscience. IVben interest falls due, it becomes a debt, just as tbe principal is a debt. Tbe debtor may pay tbe vhole debt, or, if be choose and bis creditor is willing to grant it, obtain forbearance. In this case tbe transaction is equivalent to a new loan, whether tbe interest be capitalized in a new obligation for tbe whole amount or a separate obligation be given for tbe interest. If a separate obligation be given for it, embodying a provision for interest, the forbearance obtained is a good consideration for such interest, just as an agreement to pay interest upon any other character of indebtedness is supported by an agreement on the part of tbe creditor to forbear. So, if tbe interest be capitalized with tbe original principal, tbe resixlt is exactly tbe same. Tbe transaction is so deary lawful, in tbe absence of a statutory prohibition, that it scarcely admits of disucssion. It is supported by tbe overwhelming weight of authority. (Porter v. Price, 80 Fed. 655, 26 C. C. A. 70; Eslava v. Lepretre, 21 Ala. 530, 56 Am. Dec. 266; Camp v. Bates, 11 Conn. 487; Meeker v. Hill, 23 Conn. 577 ; Ellard v. Mortgage Co., 97 Ga. 329, 22 S. E. 893 ; Thayer v. Mining Co., 105 Ill. 540; Niles v. Commissioners, 8 Blackf. 158 ; Otis v. Lindsey, 10 Me. 315 ; Wilcox v. Howland, 23 Pick. 167; Hoyle v. Page, 41 Mich. 533, 2 N. W. 665; Mason v. Callender, 2 Minn. 350 (Gil. 302), 72 Am. Dec. 102; Perkins v. Coleman, 51 Miss. 298; Young v. Hill, 67 N. Y. 162, 23 Am. Rep. 99.) From neither point of view, therefore, can the contention of the defendant be sustained.

3. Defendant insists that he is not liable to pay the notes in suit, for the reason that, by the incorporation of the interest in them and the provision therein for attorney’s fees, a change has been effected in them without his consent, thereby increasing the extent of his burden under his contract beyond what is fairly contemplated by its terms. As we have already seen, however, it was contemplated by the parties that the notes should be renewed upon such terms and conditions as could be mutually agreed upon by the makers and the assignee. The terms of the renewals were both lawful and reasonable. Furthermore, the evidence does not tend to show that the original notes did not contain a provision for attorney’s fees. In the absence of such evidence^ the presumption must be indulged that they did, even though we concede the position of counsel that the guaranty did not contemplate the addition of such a condition to the new notes. The court could not presume that the bank exacted conditions from the makers which were not authorized by the guaranty. There is no merit in the contention.

4. The note of the Libby T'ownsite & Lumber Company grew out of the following transaction: In 1893 one Mumbrue obtained a contract from the United States to> survey certain public lands in the vicinity of Libby, Flathead county. It was agreed between him and the company, through one Leonard, its secretary, that the company would furnish' funds to- pay the expenses of the survey, and that Mumbrue would reimburse the company out of the funds paid him by the United States upon completion of the contract. The company was also1 to share in the profits, if any, made under the contract. Leonard then arranged with the Globe National Bank for a loan of funds to the company from time to time as they were needed. This arrangement was carried out until the indebtedness of the company to the bank on this account amounted to something over $2,000. The bank authorities, not desiring to- furnish any more funds to tbe company, thereupon arranged with Mumbrue to furnish directly to him such assistance as he required; he agreeing' to secure the bank by turning' over to it his claim against the United States. Thereupon the company executed its. note to the bank foi the funds already advanced upon the contract, and included therein other indebtedness due from the company, making the amount of the note, which, after renewal from time to time, was assigned to the Northwestern National Bank. At the same time Mumbrue executed his note to the company for the amount of the advancements made to him under the first arrangement. This note was assigned to the bank by the company as collateral to secure its own note. When the assignment of the latter was made to the Northwestern National Bank, the collateral was retained by Hatcher, as agent of the directors and stockholders of the Globe National Bank, and its existence was not actually known to the officers of the Northwestern National Bank. In 'the latter part of 1894, Hatcher then being the cashier of the Northwestern National Bank, and still acting as the agent of the stockholders of the Globe National Bank, received from Mumbrue a draft for $•8,200. This he applied, first, to the payment of the debt due from Mumbrue for advancements, and then to this note, assigned by the Libby Townsite & Lumber Company as collateral security. No credit for the amount of the Mumbrue note was made upon the note of the company, but all the funds derived from Mumbrue’s payments went into the assets of the Globe National Bank and were used in liquidating its other indebtedness. It is argued by counsel that as Hatcher was the cashier of the Northwestern National Bank at the. time the contract of guaranty was made, and had knowledge of the existence of the collateral security, as well as of the subsequent payment of it by Mumbrue, this knowledge should be imputed to the bank, his principal, and that it should be held responsible for the misappropriation of the collateral, resulting in. detriment to the defendant. Bor this reason, the defendant insists, a credit for the amount of the Mumbrue note must be allowed him on the note of the corporation as of tbe date of the'misappropriation by Hatcher.

Counsel relies npon the general rule that notice to the agent is notice to his principal of all matters connected with the business of the principal which fall within the scope of the agent’s authority. Without pausing to inquire whether the general rule should be extended to cases where the knowledge of the agent has been acquired prior to his employment, but reserving this question, we think that, under well-established principles of the law of agency, the knowledge possessed by Hatcher should not be imputed to the bank. The presumption that the agent has imparted his knowledge to his principal does not prevail where the agent is acting in his own or another’s interest, and adversely to that of his principal, particularly when the agent is acting, not as agent, but openly and avowedly for himself. In such case, by reason of his antagonistic attitude toward the interests of his principal, the presumption does not arise that he has communicated his knowledge to his principal, but that, on the contrary, he has refrained from so doing from motives of self-interest. (Mechem on Agency, Sec. 723; 1 Am. & Eng. Enc. Law (2d Ed.), 1145 ; Frenkel v. Hudson, 82 Ala. 158, 2 South. 758, 60 Am. Rep. 736; Wickercham v. Zinc Co., 18 Kan. 481, 26 Am. Rep. 784; Allen v. Railroad Co., 150 Mass. 200, 22 N. E. 917, 5 L. R. A. 716, 15 Am. St. Rep. 185; Innerarity v. Bank, 139 Mass. 332, 1 N. E. 282, 52 Am. Rep. 710; In re Plankinton Bank, 87 Wis. 378, 58 N. W. 784; Hickman v. Green, 123 Mo. 165, 22 S. W. 455, 27 S. W. 440, 29 L. R. A. 39; Third National Bank v. Harrison (C. C.), 10 Fed. 243.)

The facts detailed above show that Hatcher in making the contract was acting for himself and the other record stockholders of the Globe National Bank, and adversely to the NorthWestern National Bank. When he went into- the employment of the latter, the affairs of the other bank and its stockholders were mere private matters, about which his employer was not in any way interested; and, when he came to deal with his em-plo-yer, be was for tbe time being acting, not as its alter ego, but as a third party, and it could not then, or afterwards, so long as be was acting, in tbe same capacity, be affected by any knowledge possessed by him. Tbe subsequent misappropriation of tbe money be obtained from Mfimbrue was but a part •of tbe original transaction, in which, for whatever reason, be retained tbe security, intending, no doubt, to appropriate tbe proceeds of it as be actually did. Whatever may have been bis intention, the bank, bis principal, cannot be held to have bad •constructive notice of tbe existence of tbe security, nor be held for its misappropriation.

5. It is said that the trial court erred in finding that demand was made upon appellant for tbe payment of tbe Libby ‘Townsite & Lumber Company and tbe Oullette & Therriault notes before this action was brought, for that there was no evidence tending to support such a finding. The plaintiff was examined as'a witness, and, among other things, testified: “I m acquainted with Joseph A. Coram, tbe defendant in this ■case. I met him over in Butte, Mont, along in tbe month of May, 1897, and bad a conversation with him at that time relating to these notes. ” As to paying them, or any part of them; be said that suit would have to be brought, so that be could collect from tbe ,-toekholders of tbe Globe National Bank, — tbe •other stockholders. I don’t remember bis exact language, but be said suit would have to be brought before be would pay them,' — words to that effect.” Tbe defendant also testified, but failed to admit or deny tbe statement of plaintiff. This evidence was sufficient to warrant a finding that demand was waived, and that any demand short of suit would be of m> avail. Tbe purpose of demand in such cases is. to enable tbe party upon whom, under tbe terms of tbe contract, it must be made, to discharge bis liability without a suit. When be unqualifiedly refuses to perform bis obligation, a demand is useless, and therefore unnecessary. Tbe law does not require a useless thing. (9 Am. & Eng. Enc. Law (2d Ed.), 209 ; Bennett Bros. Co. v. Fitchett, 24 Mont. 457, 62 Pac. 780.) While tbe trial •court should have found, according to the facts, that demand was waived, the defendant has no just cause to complain of the finding as made. .

6. The next contention made by appellant is that the district court erred in finding in favor of plaintiff upon the issues made upon the payment of the Weitman note, which is the basis •of the third cause of action.

On March 8, 1895, the original Weitman note was renewed; the new note being made payable to “Benton D. Hatcher’’ 12 months after date, and negotiable and payable at the Northwestern National Bank. It was thereupon indorsed in blank by Hatcher, and thereafter carried upon the account of bills receivable by the bank. The original note was secured by real and chattel mortgages. Upon the renewal of it on March 8, 1895, a new mortgage upon three lots in Kalispell was executed to Hatcher by Weitman and wife. The records of the bank did not at any time disclose the existence of this mortgage, nor, apart from the note itself, that it was payable to Hatcher. During all of this time, and, in fact, up to the time the bank closed its doors, Hatcher had general control of the affairs of the bank, and the books were kept under his direction. So the matter stood until January Y, 1896, when Hatcher agreed with Weitman that, if the mortgaged property should be conveyed to himself by Weitman and wife, he would accept it as 'payment of the note. The conveyance was made to “B. D. Hatcher, agent,” and the note was accordingly canceled and delivered to Weitman. On August 13, 1896, Hatcher executed to the bank his note for the full amount of the Weitman note, signing it “B. D. Hatcher, Agent.” This note does not on its face show upon whose behalf it was executed. The books of the bank show that it was credited against the Weitman note and interest as payment thereof, and from its date it was treated, and still is treated, as an asset of the bank. The uncontradicted statement of Hatcher is to the effect that at the time of the transaction with Weitman he told the plaintiff, who was vice president of the bank, that he was going to take the property from Weit-man in payment of tbe note as the best thing to do-. The vice president knew of the “Hatcher, Agent,” note from the time of its appearance among the assets of the bank in August, 1896, though he testified that he had no personal knowledge of the mortgages securing the Weitman note at the time it was assigned to his bank. There is ho word of testimony that Hatch-er’s course in the matter was objected to, and it affirmatively appears that it was never at any time repudiated by the bank authorities.

During his connection with the Northwestern National Bank, Hatcher appears to have acted as agent in several capacities, and made use of several different signatures. When acting for the bank, he used the signature, “B. D. Hatcher, Cashier.” When acting for the stockholders of the Globe National Bank, he signed, “B. D. Hatcher, Agent.” When acting in other capacities he signed, “B. D. Hatcher,” or “Benton D. Hatcher.” During his negotiations looking to a settlement of the Weit-man note, considerable correspondence was had-between him and Weitman and Wininger, his agent at Kalispell, and in each instance, save twOj he signed his letters, “B. D. Hatcher, Cashier.” In one of these instances he signed, “Hatcher/’ and in the other, “B. D. Hatcher.” For his services in this and other matters connected with the business of liquidation, Wininger was paid by Hatcher out of the assets of the Globe National Bank, though Wininger understood that in the transaction he was acting for Hatcher as cashier. After the execution of the written guaranty by Coram, he was absent from Montana, residing at Lowell, Mass. Further than that Hatcher had charge generally of the settlement of the affairs of the Globe National Bank, he was never expressly authorized to act for Coram in any capacity whatever. When the Northwestern National Bank closed its doors, Hatcher being under arrest, Coram hastened to Montana, took over all the assets of the Globe National Bank, and paid Wininger a balance due him for services to- Hatcher in connection with his previous employment, but took no conveyance of the Weitman lots. Thereafter he acted for the stockholders. On February 6, 1897, Hatcher wrote Wininger, stating that the Weitman property, standing in his name as agent, should be deeded to the Northwestern National Bank. After the national bank examiner took charge on February 7, Hatcher offered to deed the property to the bank; but his offer was not accepted. At no time did the bank, or the receiver afterwards, return to Hatcher his note of August 13, 1896. Except the knowledge they may be presumed to have obtained from the condition! of the books and the information possessed by the vice president, the other officers and the board of directors of the Northwestern National Bank were not informed of the Weitman transaction. Hatcher stated that, at the time he acted, he did the best he could for all parties, without reference to which of his principals would be responsible. No demand was ever made upon Weitman for the payment of his note after its surrender to him. Some time before the trial of this cause one cf the directors of the Northwestern National Bank borrowed it from him, assuring him that no use would be made of it against him. This director handed it to the receiver, and it was introduced in evidence at the trial.

The trial court found upon these facts that, in taking the deed from Weitman and canceling his note, Hatcher acted without the scope of his authority as cashier, and that he acted for and on behalf of Coram and the other stockholders of the Globe National Bank. Hence the conclusion that the transaction did not amount to a payment of the note, so as to' discharge Coram from his guaranty. Do the facts properly warrant this inference ? It must not be overlooked that the defendant sustained two distinct relations to the affairs of the Globe National Bank. He was one of its record stockholders. As such he was interested in the settlement of its affairs. He, with others who sustained a like relation to it, was bound by the contract of guaranty individually to pay the debts in.controversy upon the1 happening of the contingencies stated therein. His liabilities growing out of the former relation were imposed by law by virtue of his connection with the bank, and existed in favor of the creditors of the bank only. Under his contract his obligation was to the Northwestern National Bank, and was personal and voluntary. Hatcher, having charge of the; affairs of the Globe National Bank, was the agent of the corporation, and. also Coram’s agent, for all purposes connected with the trust between him and the creditors of the bank, with all authority necessarily implied by that employment. No authority thus conferred upon him, however, enabled him to act as the agent of the defendant in any of his relations as debtor of the Northwestern National Bank. If he had such authority, it must have been specially given, or must be implied from his and Hatcher’s joint and several liability on the contract, or from their conduct with reference to the matters growing out of the contract. There is nothing in the facts stated tending to show that he had such express authority. Nor does the fact that he and Hatcher were jointly and severally liable with the other stockholders on the contract of guaranty imply an authority in Hatcher to act as agent for him, so as to hold him for anything done affecting his personal liability under the contract. Hatcher, by virtue of his relation, could not in any way change the conditions of the contract, or enlarge Coram’s liability thereunder, without his consent, Nor does’ the evidence tend to show that Coram, by any thing he did, impliedly authorized Hatcher to do otherwise in the premises than any other of the joint and several guarantors could have done.

So it appears that Hatcher did not, in his dealings with the Whitman note and the mortgage security, represent Coram in any capacity whatever. It is apparent, also, that no authority, obtained directly or impliedly from the stockholders, empowered him to direct the mode by which payment of the note could or should be made. The control of the note had passed from them by the assignment to the Northwestern National Bank, and they had no authority to interfere with it. His action in the premises v’as either a gratuitous intermeddling on his individual account, or must be deemed to have been authorized by the bank. But for the fact that he occupied the position of cashier, be would have bad no access to tbe securities belonging to tbe bank, and could bave done nothing. When we come- to examine his relations to tbe bank, we find that be practically controlled its affairs. It is somewhat significant that, upon a renewal of the particular note in March, 1895, he had it made payable to himself and then indorsed it to- the bank. He at that time undoubtedly acted for the bank. Mr. Stanford, the vice-president, stated that it was customary, when the bank took real estate security for loans, to have the notes and mortgages payable to some officer of the bank, and thus to- evade the instructions of the comptroller of the currency prohibiting loans upon real estate security. This last statement makes clear the significance of Hatcher’s behavior at that time, and in the light of the other facts surrounding the transactions connected with the subsequent dealings of Hatcher, — -the length of time covered by them, his apparent exclusive control of the business, the condition of the books, etc., — the only legitimate inference to be-drawn from them is that the bank authorities must have known of them, and, at least tacitly, approved them. In any event, they must be presumed to- have known of them, and be held to the legitimate . consequences, of such knowledge. It malees no difference, therefore., whether Hatcher acted by consent of the bank authorities in the first instance, or without such consent and beyond the scope-of his authority as cashier. His action in the premises must be held to have been that of the bank. The Weitman note must,, therefore, so far as Weitman is concerned, be held to have been paid off and discharged. ■ It necessarily follows, also, that Co-ram’s liability under his contract was discharged. (14 Am. & Eng. Enc. Law (2d Ed.), 1162.) There is no force, then, in the argument of the plaintiff that the debt of Weitman has not actually been paid in money. .True-, as the plaintiff contends, Hatcher was not, by virtue of the fact that he was cashier,, authorized to take land in payment of a debt due the bank;but he in fact did so under circumstances which implied the consent and approval of the directors of the corporation, thus constituting bimself a trustee of tbe legal title thereto for its benefit. IJncler all'tbe circumstances, it'is of no moment that be bad tbe conveyance made to bim as “agent,” instead of “cashier.”

Upon tbe facts stated, we think tbe defendant not liable upon tbe third cause of action for another reason. Conceding that tbe note has not been paid as was contemplated by tbe contract, tbe original note has been canceled and delivered up as paid. Whitman cannot now be held liable thereon. Tbe debt guarantied by Coram has been substituted by another and a different one, due from a different person, namely, Hatcher. If Coram should be held to pay, bis only recourse would be against Hatcher, — a contingency not contemplated by his undertaking. Tbe bank, in dealing with tbe original debtor through Hatcher, has permitted a material change in the situation of the debt guarantied, by substituting another as the principal debtor. It has also put the security, which otherwise might have been available to the guarantor, beyond his reach. Under the principles of law applicable, Coram is entitled to claim his release. (Civil Code, Sec. 3650.)

We find no error in the action of the district court upon tbe first and second causes of action. As to these the judgment and order are affirmed. The defendant is entitled to a new trial upon the third cause of action. As fir this, therefore, the judgment and order are reversed, and the cause is remanded, with directions to grant a new trial. Defendant may recover his costs.

Mr. Justice MidburN, not having participated in the consultations had upon this cause, takes no part in this decision.


source: Caselaw Access Project

author: MB. JUSTICE PIG-OTT

license: Public Domain

text:
    STATE, Respondent, v. DOTSON, Appellant.
    (No. 1,736.)
    (Submitted January 21, 1902.
    Decided February 24, 1902.)

      Criminal Law — Murder — Principals ■ — ■ Accessories — Evidence — Admissibility—Testimony of Defendant — Weight— Instructions — Statutory Construction.

    1. where a witness in a homicide case, who is impeachable as an accomplice, details certain incriminating statements made by the defendant before the commission of the crime, and states that he repeated the conversations to others, his testimony as to when he did so is relevant and admissible on behalf of the state as introductory of evidence which may be adduced to show whether the witness was an accomplice.
    2. where evidence objected to as irrelevant is held on appeal to be relevant for a certain purpose, it is unnecessary to determine its relevancy for other purposes.
    3. The distinction recognized by the common law between principals and accessories before the fact is, by Penal Code, Sec. 41, abolished in Montana.
    4. Evidence reviewed and Held sufficient to establish the fact that defendant— though not in person present when deceased was murdered — advised and encouraged the commission of the murder, and hence sufficient to render the defendant a principal under Penal Code, Sec. 41.
    5. Evidence of the act or declaration of a conspirator which relates to the conspiracy may, after proof of the conspiracy, be given against his co-conspirator.
    6. An instruction requested by defendant, that, to warrant a verdict on a criminal charge on circumstantial evidence alone, the circumstances must be such as to produce “nearly” the same degree of certainty as that which arises from direct testimony, and sufficient to exclude all reasonable doubt of guilt, is bad, in being qualified by the word “nearly,” and. is properly refused.
    7. A refusal of requested instructions presenting correct propositions of law is not erroneous, when the substance thereof is embraced in ‘ the general charge.
    8. Section 2442 of the Penal Code provides that the jury in judging of the defendant’s credibility and the weight to be given to his testimony may take into consideration the fact that he is the defendant, and the nature and enormity of the crime of which he is accused. Held, that an instruction giving Section 2442, but which uses the word “must” in place of the statutory word “may,” is not erroneous, even though Section' 2442 of the Penal Code of 1895 changed the word “shall” of the theretofore existing law to “may.”
    9. A mere change in the words of a revision will not be deemed a change in the law unless it manifestly appears that such was the intention of the legislature.

      Appeal from District Court, Powell County; J. M. Clements, Judge.

      CliNtoN DotsoN was convicted of murder of tbe first degree, and lie appeals.
    Affirmed.

      Mr. J oseph G. Smith and Mr. G. J. W alsh, for Appellant.

      Mr. James Donovan, Attorney General,'for tbe State.
   MB. JUSTICE PIG-OTT

delivered tbe opinion of tbe court.

Clinton Dotson was convicted of tbe deliberate murder of one Oliver Dotson and was condemned to death. He bas appealed from tbe judgment and tbe order denying bis motion for a new trial.

Tbe evidence tended to prove tbe following facts: In October, 1899, tbe defendant, one Benson, and one Persinger were adjudged guilty of tbe murder of one Cullinane, tbe defendant being sentenced to imprisonment for ninety-nine years, and Benson and Persinger to shorter terms. Tbe three men were then taken- to the state prison at Deer Lodge. Oliver Dotson was tbe defendant’s father and Benson’s grandfather; the defendant is Benson’s uncle-. While -in the state prison tbe defendant became intimate with one McArthur, otherwise known as Fleming, and occasionally calling himself Murphy or Murray, a convict whose term expired on December 30, 1900. In the early part of September, 1900, tbe defendant told Per-singer that be bad hired McArthur to murder Oliver Dotson; that be bad promised to pay McArthur $Y,600 for committing the crime, and that be bad tbe money buried in Wyoming; that when McArthur got out of prison be would kill Oliver Dotson in such a way as to make it seem a case of suicide, leaving on the body a confession that .Oliver Dotson and bis son-in-law (a man named Cachline) bad killed Cullinane and exonerating tbe defendant, Benson and Persinger; and that tbe three would then be released because of tbe confession. This conversation Persinger, on December 31, 1900, on January 12, and on February 21, 1901, repeated to other persons. Soon after tbe defendant and Benson were taken to tbe state prison for tbe murder of Cullinane, tlie defendant told Benson that they would get out in a year or two and that Benson must remain quiet. On Christmas day, 1900, five days before McArthur was discharged, the defendant told Benson to deny the truth of a confession made by Benson at the trial for the murder of Culli-nane and to say that he had been forced to make it. On the same day McArthur informed another convict that within three months after his release he would get the defendant out of prison. At the time McArthur was released, the defendant assured Benson that they would be out of prison in two or three months thereafter, but did not inform him how McArthur would accomplish that result. McArthur was discharged on the evening of December 30, 1900. He immediately sought Oliver Dotson, who lived alone in a cabin in Washington Gulch, an unfrequented and isolated region of Powell county. The next day but one after his discharge he was found at the cabin with Dotson. On the loth day of February, McArthur murdered him and attempted to arrange the body so as to produce the impression that the decedent had committed suicide. He wrote and left near the body a confession purporting to be signed by Oliver Dotson, to the effect that Oliver Dotson and Cachline had murdered Cullinane, and that defendant and Benson and Persinger were innocent of that crime; that he was tired of living and was about to kill himself, and hoped the defendant would forgive the wrong done to- him by his father. McArthur also wrote and placed near the body the pretended will of Oliver Dotson, giving to the defendant whom he had ‘‘wronged and put in prison” his property, except five dollars to each of his other six children. On February 16, 1901, the defendant received a letter from McArthur which he destroyed. Between the 16th and the 20th of that month the defendant informed Persinger that he had received a letter from McArthur “and that everything was working just as he expected.” On February 20 the body of Oliver Dotson was found. Some time after February 20 one of the contractors of the prison induced the defendant to tell him where McArthur was. and McArllmr was apprehended at the place mentioned by the defendant. On February 24 the defendant told Persinger that they would be out in a short time, that McArthur “has done it just as I expected him to do it; I have sacrificed the life of my own father to get you fellows out of here and myself too, and if you give me away I will turn state’s evidence; I have not done anything to turn state’s evidence on.’’ During the trial of the defendant, McArthur asked him to mahe a confession, which the defendant promised he would do, but on the next day he informed the officer in whose custody he was that upon the advice of his counsel he refused to say anything about the matter until -after the trial. About April 1 the defendant told Persinger that he had remarked to Benson that what McArthur had done showed McArthur to be a true friend.

1. The witness Persinger, after stating the conversation between- himself and the defendant in which the latter said that he had hired McArthur to murder Oliver Dotson and that Mc-Arthur would do so upon his release from prison, testified, without objection, that he had told others about the conversation. He was then asked to state when he repeated the conversation, to which question the defendant objected as irrelevant and immaterial. The objection having been overruled, the witness answered that he told of the conversation on December 31, 1900, on January 12, and on February 21, 1901. This action of the court was excepted to and is specified as the first error. Counsel suggests, rather than argues, that the evidence was irrelevant. When offered the testimony was admissible as introductory to evidence that might thereafter be adduced upon the question whether Persinger was a conspirator with, and hence an accomplice of, the defendant and McArthur in the murder of Oliver Dotson. It was therefore deemed to be relevant. Since this reason is sufficient to sustain the ruling of the court, we need not inquire whether upon other grounds the testimony was relevant evidence.

2. The distinction recognized by the common law between principals and accessories before the fact is abolished in this state, and all persons concerned in the commission of a crime, whether they directly commit the- act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, are principals. (Penal Code, Sec. 41.) The defendant was not physically present when Oliver Dotson was murdered by McArthur, and his counsel argue that the evidence was insufficient to' justify the verdict. That the evidence was ample to prove the guilt of Mc-Arthur is not controverted. With his own hands he deliberately murdered the decedent. The contention is that there was not enough evidence to prove the existence of a conspiracy between the defendant and McArthur to commit the crime. But we are of the opinion that the evidence was sufficient to establish the fact that the defendant advised and encouraged Mc-Arthur to murder Oliver Dotson. The jurors were'the exclusive judges of the credibility of the witnesses and of the weight to be given to the evidence.

3. To the introduction in evidence of declarations made by McArthur in January, 1901, that he Avas going to Washington Gulch “on a matter of business to do a job there for friends that are going to stake me and it is a matter of secrecy bet-Aveen me and them,” and that he intended to kill Oliver Dotson and thereby bring about the release of the defendant, objection on the ground of incompetency, immateriality and hearsay, was interposed and overruled. The learned judge aaTlo so ably and fairly tried the cause did not err. Suffice it to say that, these declarations tended to shoAV McArthur’s intention to accomplish the purposes of the conspiracy then in existence between the defendant and himself, and to prove his guilt of the murder subsequently done. EAddence of the act or declaration of a conspirator AA'hieli relates to- the conspiracy may, after proof of the conspiracy, be given against his co-conspirator. (Code of Civil Procedure, Sec. 3146, Subdivision 6; Penal Code, Sec. 2078; State v. Byers, 16 Mont. 565, 41 Pac. 708; Harrington v. B. & B. M. Co., 19 Mont. 411, 48 Pac. 758; Pincus v. Reynolds, 19 Mont. 564, 49 Pac. 145.)

4. The defendant -prayed, and it is assumed the court refused to give, the following instruction: “The rule of law is, that to warrant a conviction on a criminal charge upon circumstantial evidence alone, the circumstances should be such as to produce nearly the same degree of certainty as that which arises from direct testimony, and sufficient to exclude all reasonable do-uht of the defendant’s guilt. The circumstances ought to be of such a nature as not to be reasonably accounted for on the supposition of the defendant’s innocence, but be perfectly reconcilable with the supposition of his guilt. The court instructs the jury, that it is an invariable rule of law, that to warrant a conviction for a criminal offense upon circumstantial evidence alone, such a state of facts and circumstances must be shown, as that they are all consistent with guilt of the party charged, and such that they cannot, upon any reasonable theory, be true and the party charged be innocent.” The word “nearly” made the instruction prayed for bad, and it was properly refused. (State v. Ryan, 12 Mont. 297, 30 Pac. 78.) The unobjectionable parts of it were given in the charge of the court. Other specifications of error in respect of refused instruction's asked for upon the subject of circumstantial, or indirect, evidence are disposed of by the observation that the substance of them Avas embraced in the general charge.

5. Among die instructions given Avere the following: “A Avitness is presumed to speak the truth, this presumption, however, may he repelled by the manner in Avhich he or she testifies, by the character of his or her testimony, or by his or her motives, or hy contradictory evidence. You are instructed that your poAver of judging of the effect of evidence is not arbitrary, but to- be exercised Avith legal discretion and in subordination to the rules of evidence. The jury are ’the exclusive judges of the credibility of the witnesses and the Aveight to be given their testimony.” (No. 19.) “A defendant in a criminal case may be SAVorn and may testify in his oaa'ii behalf. In such a case the jury in judging of the credibility and Aveight to be given .liis testimony must take into consideration the fact that he is the defendant and the nature and- enormity of the crime of which he is accused. You are instructed that you have no right to disregard the testimony of the defendant on the ground alone that he is the defendant and stands charged with the commission of a crime. The law presumes the defendant to be innocent until he is proved guilty, by the evidence beyond a reasonable doubt, and the law allows him to testify in his own behalf, and the jury should fairly and impartially consider his testimony, under' the instructions above given, together with all the other evidence in the case, and if from all the evidence the jury have a reasonable doubt as to the guilt of the defendant it is your duty to acquit him.” (No. 21.) Section 2442 of the Penal Code provides that a “defendant in a criminal action or proceeding cannot be compelled to be a witness against himself ; but he may be sworn, and may testify in his own behalf, and the jury in judging of his credibility and the weight to be given to his testimony, may take into consideration the fact that he is the defendant, and the nature and enormity of the crime of which he is accused. If the defendant does not claim the right to be sworn, or does not testify, it must not be used to his prejudice, and the attorney prosecuting must not comment to the court or jury on the same.’’ Complaint is made of the word “must” in instruction numbered 21, counsel for the defendant contending that the use of this word instead of the statutory word “may” was prejudicial error. We think it was not. Jurors are in duty bound to consider all the evidence; they must, in obedience to their oaths, consider whatever tends to shed light upon the credibility of witnesses and the weight of evidence. They are not at liberty to withhold their consideration from any evidence; they must impartially consider it, and then give to it such weight as they believe it deserves, or if, after fairly considering it, they are satisfied that it is not entitled to any weight, they should in their subsequent deliberations disregard it. Counsel say that under the plain terms of the, statute the jury, in judging of the defendant’s credibility and the weight to be given to his testimony, are at liberty— that is, have permission.' — to take into consideration the fact that he is the defendant and the nature and enormity of the crime of which he is accused, but are under no obligation to do so. If this position be tenable the following' supposed instruction would correctly state the law: ■ “A defendant in a criminal action cannot be compelled to be a witness against himself, but he may under oath voluntarily testify in his own behalf. The defendant has availed himself of this privilege, and in judging of his credibility and the weight to be given to 'his testimony you may, or may not, as you see fit, take into consideration the fact that he is the defendant and the nature and enormity of the crime charged. These matters you are at liberty to exclude from any consideration whatever. The court has already charged that you must consider all the evidence, and such is the general rule of law, subject to but one exception: When you judge of the defendant’s credibility and the weight of his testimony, you are under no obligation to consider, think upon, or regard, the fact that he is the defendant on trial for murder of the first degree and therefore vitally interested in the result. Such facts you may utterly eliminate and refuse to consider in judging of the. credibility of the defendant as a witness and the weight to be given to his testimony.” Surely the legislative assembly by the word “may” did not intend that jurors might refuse to consider matters lawfully laid before them. Upon the general principles stated in Montana Ore Purchasing Company v. Lindsay, Judge, 25 Montana Reports, 24, 66 Pacific Reporter, 715, and to avoid absurdity, we think “may’’ should be interpreted to mean “shall” or “must”; and such seems to have been the opinion of this court in State v. McClellan, 23 Montana Reports, 532 (59 Pac. 924, 75 Am. St. Rep. 558), where an instruction that the jury in judging of the credibility of the defendant as of a witness and of the weight to be given to his testimony should take into consideration the fact that he is the defendant and the nature and enormity of the crime of which he is accused, was approved. If “may” had been used instead of “must” in the instruction of which complaint is made, we think the ordinary juror would, in the light of the other instructions, certainly have understood it to be the equivalent of “shall” or “must.” Although counsel have not called attention to it, we note that from 1872 until the first day of July, 1895, when the Penal Code was adopted, the statutes of the Territory and State of Montana provided that the jury in judging of the credibility of the defendant and of the weight to be given to his testimony “shall take into consideration the fact that he is the defendant and the nature and enormity of the crime of which he is accused.” (Sec. 15 of Chapter III, Criminal Laws, Codified Statutes of 1871-2, page 271; Sec. 15, Fourth Division, Criminal Laws, Compiled Statutes of 1887.) We do not think the change from “shall” to “may” made by the Code of 1895 is significant of a legislative intent to allow jurors the liberty of refusing to consider evidence or matter properly adduced .before them. “Every change of phraseology, however, does not indicate a change of substance and intent. * * * The changes of phraseology may result from the act being the production of many minds, and from being compiled from different sources. Hence the presumption of a change of intention from a change of language is of no great weight, and must mainly depend on the intrinsic difference as resulting from the modification. A mere change in the words of a revision will not be deemed a change in the law unless it appears that such was the intention. The intent to change the law must be evident and certain; there must be such substantial change as to import such intention, or it must otherwise be manifest from other guides of interpretation, or the differences of phraseology will not be deemed expressive of a different intention.” (Sutherland on Statutory Construction, Sec. 256.) That the legislative design was not to change the law so that “may,” as permissive only, should supplant the imperative “shall,” is clear.

Several questions of practice have been argued by the attorney general; but as the views expressed dispose of the appeals adversely to the defendant, we prefer to reserve them.

Let the judgment and the order refusing a new trial be affirmed. Affirmed.


author: MP. JUSTICE PIGOTT

text:
    CRAVER, Appellant, v. STAPP, Respondent.
    (No. 1,700.)
    (Submitted January 27, 1902.
    Decided February 24, 1902.)

      Interlocutory Injunction — Dissolution — Appeal — Evidence— Sufficiency.

    Evidence on which a temporary injunction is dissolved will be held sufficient to sustain the order of dissolution on appeal, where no abuse of discretion is shown, even though it would not authorize a denial on final hearing of the relief demanded in the bill.

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

    INJUNCTION by Plora E. Craver against I. B. Stapp'. Prom an order dissolving an interlocutory injunction, tbe plaintiff appeals.
    Affirmed.

      Mr. John Q. Willis and Mr. Edwin. Morris, for Appellant.
    Subdivision II, Sec. 871, Code of Civil Procedure, provides for tbe granting and issuance of an injunction where great or irreparable injury would result. It might be argued that the-acts of tbe respondent were only trespasses and an action at law7 would be tbe proper remedy. Trespasses, where frequent, wanton or continued, will be restrained where the injury is great or irreparable, or tbe defendant is insolvent. (Lee v. Watson, 15 Mont. 228; Derry v. Boss, 5 Colo. 295; West v. Smith, 52 Cal. 322; Long v. Casebeer, 28 Kan. 226.)
    Injunction will lie to restrain tbe removal of tbe plaintiff’s crop by an insolvent defendant. (Lee v. Watson, supra; Ilicks v. Compton, 18 Cal. 206; West v. Smith, 52 Cal. 322, supra; Bohrer v. Babcock, 114 Cal. 126.)
    Some of tbe 'older decisions go to tbe extent of bolding that so long as a plaintiff has any remedy at law whatever, no recourse can be bad to equity. Such is not tbe effect of tbe later decisions. {Staples v. Rossi et al., 65 Pac. Pep. 67; King v. Stewart, 84 F'ed. 546; King v. Campbell, 85 Fed. 814; Watson v. Sutherland, 5 Wall. 74.)
    Where the injury to the defendant from the temporary injunction would be less than the injury to the plaintiff, should the plaintiff succeed, the injunction should be granted. (Gil-pin v. Mining Co., 23 Pac. Pep-. 547; Staples v. Rossi, supra-.')

      Mr. W. S. Barbour and Messrs. Pemberton & Maury, for Pespondent.
    Where there is a conflict of evidence, the granting or dissolving of an injunction, being so much in the discretion of the lower court, the supreme court will never disturb its action. {Ileinze v. B. & M. Company, 20 Mont. 531; Red Mountain M. Co. v. Ester, 18 Mont. 176; Anaconda C. M. Company v. B. & B. M. Company, 17 Mont. 521; Cotter v. Cotter, 16 Mont. 63; Boyd v. Desrozier, 20 Mont. 449; Combers v. Lowry, 21 Mont. 481, and numberless other cases of the supreme court of Montana.)
    The granting or dissolving of an injunction is so largely within the discretion of the lower court, that the supreme court will never disturb its action, unless there has been a manifest-abuse of discretion. {Ileinze v. B. & M. Company, 20 Mont. 531, and cases there cited.)
   MP. JUSTICE PIGOTT

delivered the opinion of the court.

On June 12, 1901, upon the verified complaint on file in the action, the judge at chambers made an interlocutory injunction order restraining the defendant from interfering with land upon which the plaintiff alleged she had entered under the Desert- Land Act of Congress, and from occupying or using it, and requiring the'defendant to remain away from the land. On the 27th day of June the defendant moved the court to- dissolve the injunction. The hearing was had on the complaint, answer, and affidavits. On July 9 the judge below ordered the injunction dissolved, and tbe plaintiff bas appealed from tbe order of dissolution.

It is argued by tbe defendant that tbe complaint does not state facts sufficient to warrant tbe granting of tbe injunction, but that if it does, tbe evidence received upon tbe bearing was sufficient to justify tbe order of dissolution. We shall not consider the question of the sufficiency of tbe complaint to support the interposition of equity by way of injunction process, for on tire present appeal we need go- no further than to inquire whether, upon tbe evidence received at tbe bearing, tbe judge manifestly abused bis discretion in dissolving tbe order of June 12. It does not so appear, and upon tbe authority of the numerous cases to that effect decided by this court, tbe order appealed from must be affirmed.

We do'not decide whether tbe evidence would, if received on a trial of tbe merits, be sufficient to support a perpetual injunction or to defeat tbe plaintiff. No opinion is intimated upon this question. That which suffices to sustain an interlocutory' injunction or to justify its dissolution, does not always suffice upon a final trial of tbe issues. (Maloney v. King, 25 Mont. 188, 64 Pac. Rep. 351.)

The order is affirmed.

Affirmed.