author: MR. CHIEE JUSTICE PRANTLY,

text:
    HARRIS, Administrator, Appellant, v. ROOT et al., Respondents.
    (No. 1,925.)
    (Submitted April 27, 1903.
    Decided May 11, 1903.)

      Attorneys — Contingent Fees — Contract — Abandonment— Compensation — Compromise of Litigation — Receivers—Discharge — Appeal.
    1. A contract for tbe professional services of an attorney in contesting a will provided tbat “your fee, in case tbe will is defeated and our clients get their shares, shall be one hundred thousand dollars,” etc. Afterwards a compromise was effected — the attorney taking part therein — and the contest was dismissed. Held, that by the terms of the contract the attorney was only entitled to the stipulated fee in the event the will was actually defeated, and in compromising the case the contract was abandoned, and recovery by the attorney, if at all, must be on a quantum meruit.

    2. OWter: An attorney, as such, has no authority to compromise a controversy for his client, — a general retainer in a case does’ not imply such authority ; there must be special authority delegated for that purpose ,or a ratification by the client, otherwise the compromise agreement, as well as any judgment entered in pursuance thereof, is void at the option of the client.

      3. where a contract is for a stipulated fee contingent upon the performance of specific services by an attorney, and said services are not performed, the measure of recovery by the attorney is the value of the services actually rendered, and not the amount of the stipulated fee, notwithstanding the .rendering of the specific services was prevented by the client, or by circumstances over which he had no control.
    4. In an action to recover for professional services rendered by an attorney 1n contesting a will, the court, prior to the trial, appointed a receiver to receipt to the administrator of the decedent’s estate for the defendants’ shares therein, and to preserve them pending a termination of the action. Afterwards Judgment went .for defendants. Reid, proper to discharge the receiver pending an appeal.

      Appeal from, District Court, Silver Bow Cov/nty; B. W. Hor-ney, Judge.

    Action by John S'. Harris, as administrator of the estate of Eobert G. Ingersoll, deceased, against Henry, A. Eoot and others. From a judgment for defendants, and from two certain orders made after judgment, plaintiff appeals.
    Affirmed.
    STATEMENT OE THE GaSE.
    In this action the plaintiff seeks to recover a judgment against the defendants Eoot and C'orami for $06,000, a balance alleged to be due for legal services rendered as attorney to> the said der fendants by Eobert G. Ingersoll, plaintiff’s intestate, with interest thereon from August 24, 1897. The right of recovery is based upon the following written agreement entered into between th« parties:
    “Butte City, Mont, August 17, 1891.
    “E. G. Ingersoll, Esq., Butte City, Montana — Sir: We agree that for your services in the contest of Maria Gunpnings and Henry A. Eoot against the probatei of the alleged will of A. J. Davis, deceased, rendered and to be rendered, that your fee, in ease the will is defeated and our clients get their shares, shall be one hundred (100,000) thousand dollars, and that your expenses and disbursements shall be paid in any event.
    “There is to be no personal obligation against J. A. Corara in the, event that the interests represented by Henry A. Eoot are unsuccessful, and in noi event is the said T. A Coram obligated except to pay such fee out of the funds secured from the estate of A. J. Da,vis, deceased, by Maria Cummings, Lizzie S. Ladd, M. Louise Dunbar and Mrs. Ellen S. C'omue and Henry Rjoot.
    “HeNry A. Root.
    “J. A. CoraaiA
    Tbe claim is made tba,t, while the services were rendered for Root and Maria Cummings, it was intended by the parties that they should also inure to the benefit of the defendants Elizabeth S. Ladd, Marie Louise Dunbar, and Ellen S. Oomue, who, in case the will should be defeated, would share in the distribution of the estate.
    It appears from the allegations, of the complaint that previous to the ’institution of the contest, and in order to provide means to prosecute the contest, the defendants Cummings, Ladd, Dunbar, and Cornuei assigned to the defendants Root and Wells onerthird of the interests claimed hy them in the estate, in trust, to reimburse Root for the outlay necessary to procure counsel and to pay other expenses. It is further alleged that the defendant Coram, acquired by assignment some interest in these shares,, and also in the share of Root, the extent of which does not distinctly appear. Wells and the defendants other than those named are made parties in order that the amount received by Cummings, Ladd, Dunbar, Cornue, and Root, and the balance due them upon final distribution, may be ascertained, and the judgment recovered be declared a lien thereon in the hands of Leyson, the administrator with the will annexed, to secure the payment of the judgment. Andrew J. Davis died in 1890, and his estate has since that time been, and is now, in the course of administration by the district court of Silver Bow county. An account-of the proceedings therein will be found by reference to the opinions of this court, published under the title “In re Davis1 Estante/1 27 Mont. 235, 70' Pac. 721, and 27 Mont. 490, 71 Pac. 757. The complaint herein sets them out with particularity, but they need not be repeated here. The allegations necessary to an understanding of this'controversy are, in substance, the following: That the first contest of the probate of the will was instituted by Root and Oummings in the year 1890; that these contestants were aided and assisted by their codefendants Ladd, Dunbár and Cornue; that, in order to «prosecute the contest successfully, the services of Robert G-. Inger-soll, an attorney at law of Dobbs Ferry., N. Y., were secured by the said Corara and Root; that the contest was tried in 1891, but without result, because the jury disagreed; that pending the trial the contract wias entered into by Root and Coram, the latter becoming a party to it, because he had theretofore become entitled by. assignment to certain interests in the shares of the contestants and their associates; that thereafter, on April 28, 1893, while the contest was still pending and undetermined, the contestants, with their associates, compromised the controversy with the proponent of the will by an agreement under the terms of which the contest was to be dismissed and the will admitted to probate; that the compromise was carried into effect by procuring a decree to be entered by. the court in March, 1895, under the provisions of which’ the contest was dismissed, the will was admitted to probate, and Root, Cummings, Ladd, Dunbar, and Cornue were declared entitled to certain distributive shares in the estate; that therafter other contests were instituted by other next of kin of the deceased, which were' settled by a compromise similar to that of April 28, 1893, to which all persons claiming an interest in the estate were parties, and in pursuance of which a decree was entered hy the court on August 24, 1897, dismissing the contests; and finally settling and determining all controversies between the' proponent and the rival claimants, and declaring the shares to1 which each was entitled; that the said decree became the basis of the distribution of the estate, and that the contestants Root and Oummings became thereunder entitled to greater interests -than they would have received had the will been finally defeated; “that hy virtue and as a result of the prosecution of said objections and contests1 of the validity of said writing so propounded for admission to probate as the last will and testament of said Andrew. J. Davis, deceased,” the said compromise contract and decree were procured, and became effectual to defeat tbe will, and to' secure to tbe contestants and tbeir associates all tbeir rights- as next of kin of A. J. D’aviSj deceased; that tbe plaintiff’s intestate, by procuring tbe contract and decree, fully discharged bis obligations under bis contract, and kept and performed all tbe conditions thereof to be by him kept and performed; that thereby there became due and be was entitled to° have paid to* him tbe full sum of $100,000 and bis expenses as stipulated therein, but that no part thereof has been paid, excep¡t tbe sum of $5,-000, wherefore judgment is demanded for that amount, with interest from tbe date of tbe decree.
    Upon tbe issues made by tbe answers of the defendants, tbe cause came on for trial in tbe district court, sitting with a jury, on December 11, 1902. Evidence was offered by plaintiff in support of bis allegations. This was objected to by tbe defendants Coram and Hoot, and tbe objection sustained by tbe court, on tbe ground that tbe complaint did not state a cause of action against them. Tbe plaintiff having failed to amend, tbe jury was discharged, and judgment ordered entered for tbe defendants. From tbe judgment tbe plaintiff has appealed. He has also appealed from an order, made after judgment, vacating an order made prior to tbe trial by which a receiver was appointed to receipt to' tbe administrator of tbe Davis estate for tbe shares of Hoot and bis associates, and to preserve them pending a termination of this action, and also from an order subsequently made refusing, to set aside tbe order just mentioned, and to retain tbe receiver pending tbe appeal from tbe judgment.

      Mr. E. N. Harwood, and Mr. John, Lindsay, for Appellant.
    Did plaintiff’s amended complaint state facts sufficient to constitute a cause of action? Tbe determination of this question requires an interpretation of tbe contract in tbe light of .the facts and circumstances surrounding tbe subject and purpose thereof. Tbe facts alleged in tbe complaint should be liberally viewed to ascertain tbe intention of tbe parties.' Tbe court should have allowed plaintiff to prove all tbe facts and circumstances surrounding. and inhering in the transaction, which may properly be proved in support of the allegations of the complaint, for as so illuminated the contract is to be viewed, interpreted, and the intention of the parties ascertained and given effect. (Heldebrand v. Fogle, 20 Ohio, 147; 1 Green-leaf on Evidence, Sees. 277, 286; Donnell v. Humphreys, 1 Mont. 526; Bhreve• v. Oopper Bell Mining Co., 11 Mont 824; Trueii v. Adams, 66 Oal. 221; Addison on Contracts1, 846; Shore v. Wilson, 9 Clark & Ein. 569; Barreda v. BUshee, 21 How. 161; Nash v. Towne, 5 Wall. 689; Anderson’s Dictionary, “Interpretation,” 564; Anderson’s Dictionary, “Construction,” 240 ; Lawrence v. McCa/lmont, 21 How. 447; Compiled Statutes, 1887, Code Civ. Proe. Sec. 632; Century Dictionary, “Defeat;” 2 C'oke upon Lit, Harg. Ed. 236, Seo. 384; Bou-vier’s Law Diet, “Defeasance;” Oomyn’s Dig., “Defeasance;” 2 Blaekstone, Com. 327; Simmons v. West Va. Ins. Co., 8 W. Va. 486; In r& Demis’ Estate, 71 Pae. 757; Qoad v. Hart,.128 Oal. 197, 60 Pae. 761; Chester v. Jumel et al., 5 N. V. Supp'. 809; Id., 26 N. E. 297; Marsh v. Holbrook (N. T. Appeals), 3 Abbt. 176; Fairbanks v. Scurgent, 104 N. Y. 108, 9 N. E. 870; Mahoney v. Bergin, 41 Oal. 423; Ballard v. Carr, 48 Cal. 74; Howard, v. Throckmorton, 48 Oal. 482; Mathewson v. Fitch, 22 Oal. 86; Thwrber v. Meves, 119 Cal. 35; Topeka Water Co. v. Boot, 42 Pac. 715; Moyer v. Cantiewy, 41 Minn. 242, 42 N. W. 1060'; Kersey v. Carton, 77 Mo. 645 •,Alcorn v. Butler, 9 Tes. 56; Myers v. Crockett, 14 Tes. 257; Lamed, v. Dubuque, 86 la. 166; Potter v. Ajax Mining Co., 19 Htah, 421, 57 Pae. 270; Majors v. Hickman, 2. Bibb (Ky.), 217; Mackall v. Willoughby, 167 H. SI 681, 42 L. Ed. 323; Stanton v. Embry, 93'H. S:. 548, 23 L. Ed. 983; Taylor v. Bemis, 110 TJ. S. 42, 28' L. Ed.' 64; Anderson’s Lawi Diet., “Oomppomise,” 218; 25 Am). Bepts. 546, note; Frank v. Murray, 7 Mont. 4.)
    - Want of mutuality is no defense where the contract has been ■performed by one party thereto. (Willard v. Jordan,, 76 Mich. •131, 42 N. W. 1085; Storm v. U. 8'., 94 H. S. 76, 24 L. Ed. ¡42; Bobson v.-Miss. Bwer Log Co., 61 Fed. 983 (affirmed on appeal) ; Robson v. Miss. River Log Co., 16 O. C. A. 400; Hathewson v. Fitch, 22 Cal. 86; Jones v. Snow, 64 Cal. 456; Bloom, v. Hazzard, 104 Cal. 310; Des Moines Valley R. R. v. Graft, 27 la. 99, 1’Am. Rep>. 256; Fount ame y. Baxley, 90 Ga. 416, 17 S'.' El 1015; Marie v. Garrison, 83 N. Y. 14; Lancing y. Wheel Co., 94 Micb. 272, 34 Am. St. Rep>. 341; Mackall y. Willoughby, 167 TJ. S. 681; Harland v. Territory, 13 Pac. 457; Ballard y. Carr, 48 Cal. 74; Howard v. Throckmorton, 48 Cal. 482; Thwrber y. Meves, 119 Cal. 35; Porter v. Ajax Min. Co., 19 Utah, 421, 57 Pac. 270; Scotty. Jackson, 89 Cal. 258; Swain y. Seamens, 9 Wall. 254.)
    This action is founded upon a promise in writing, which states the consideration, as fully so as an action based upon a promissory note, or letter of guaranty, given for labor, or credit, or things delivered, or to be delivered. (Walker v. Brown, 165 U. S. 654, 41 L. Ed. 865.)
    Even though in the adjudication of a case founded upon a contract, after one or more trials thereof, the court in the light of all the facts and circumstances, should hold that only a quantum meruit should be recovered the court would not then do what was done in this case. (Cox y. McLaughlin, 76 Cal. 63; Walsh v. McXeen, 75 Cal. 521.)

      Mr. Charles R. Leonard, and Mr. M. S. Gunn, for Respondents (except John H. Leyson, Administrator).
   MR. CHIEE JUSTICE PRANTLY,

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

1. The action of the court in sustaining the defendants’ objection to the evidence presents for decision the question whether the allegations in the complaint which we have stated in substance warrant recovery by the plaintiff. The complaint declares upon the contract, and unless it appears therefrom that the plaintiff’s intestate fully performed the contract on his part, or facts and circumstances are alleged justifying a failure in any particular, a recovery cannot be had. The contract is clear and explicit in its terms', and its construction involves no1 difficulty. To its language alone, therefore, must we look in order to find the intention of the parties. (Civil Code, Section 2203.) Taking it by its four corners; and giving to its words tbeir ordinary and popular sense (Civil Code, Section 2209), we find that Root and Coram undertook on tbeir part to1 pay tbe expenses of Mr. Ingersoll in any event, provided, of course, be performed tbe services stipulated for. Root was to pay tbe full amount of $100,000, in addition toi expense money, in case tbe will should be defeated, and be and bis clients should get tbeir shares. Coram ivas bound by tbe same undertaking, except that tbe amount be was to be personally liable for was in no event to exceed tbe amount received by bis clients, including. Root; that is, if they did not get anything, be was not to' pay anything beyond expenses. It is therefore clear that as to him tbe intention was that be should not be bound except upon tbe happening of two contingencies, to-wit, that tbe will be defeated, and bis clients actually get tbeir shares. In other words, tbe contest was to result in success, and tbe funds out of which only payment could be exacted were to be secured from tbe esp-íate of Andrew, I. Davis. Tbe duty to pay devolved upon him only upon tbe happening of these contingencies. There was included, also, tbe duty to devote tbe funds secured to¡ that purpose. If be should not secure them, be was not compelled to pay from bis own means. Tbe obligation of Root was exactly tbe same, except that, if tbe funds secured from tbe estate should not be sufficient, be became personally liable, for any balance. Tbe explanation why tbe contract was so made is manifest. Tbe will bad been offered to probate, and a contest bad been instituted by Root and Cummings which, if successful, would 'inure to tbe benefit of tbeir associates. If it should prove a failure, they would get nothing, because, under tbe terms of tbe will, tbe proponent would get tbe whole estate, except'the amount required to pay two1 or three small legacies. Coram was not "interested in tbe estate. He was willing, however, to become a party to the contract, provided be' could share in tbe result of a successful contest, and not be beld in case of failure. Mr. Ingersoll was willing to contribute to tbe enterprise his experience and ability, upon a contingency, provided his share was made proportionately larger; and he was willing to embody in the contract the provision that neither Hoot nor Goram should be liable, except upon a complete success- of the enterprise through a contest, and the actual receipt by the contestants and their associates of the shares to which they would thus become entitled. A judgment sustaining the contest would not be sufficient. The shares must be received.

Counsel for the defendants contended in the court below, and contend here, that this is the only construction of which the contract is susceptible, and that as the complaint itself shows that the contestants- and their associates succeeded by means of a compromise of the litigation, in negotiating which Mr. In-gersoll took part, instead of by-means of a contest, which Mr. Ingersoll did not conduct to- successful termination, the contract for the contingent fee was abandoned by the parties, and that a recovery against the defendants, if any may be had at all, must be upon a quantum, memit, for services other than those provided for by the contract. Counsel for plaintiff contends, however, that the compromise of the litigation by which the contestants obtained certain shares- was pro tanto a defeat of the will; that under the decree the defendants have received and will receive amounts largely in excess of - the sum due the estate of Mr. Ingersoll, and that in any event the procurement of a final decree settling the contest, and ascertaining the shares to which the contestants are entitled, though such decree was brought about by a compromise, was a complete discharge by Mr. Ingersoll of his obligations under the contract; and that his estate is entitled to recover on the contract

We agree with the contention of the defendants. An attorney, as such', has no authority to- compromise a controversy of his client, no- matter what may be'the difficulties involved, nor however advantageous the result may be to the client. A general retainer in a case does not imply such authority, and, if a compromise of the controversy be made, it must be made under special authority delegated for that purpose. Otherwise, and in the absence of a ratification by the client, the compromise agreement, as well as any judgment entered in pursuance of it, is void, at the option of the client. (Holker v. Parker, 7 Cranch, 436, 3 L. Ed. 396; Preston v. Hill, 50 Cal. 43, 19 Am. Rep. 647; 3 Am. & Eng. Ency. of Law, 2d Ed., 358; Jubilee Placer M’ng. Co. v. Hossfeld, 20 Mont. 234, 50 Pac. 716.) Nor is this rule, which is sustained’by the current of authority,' changed or modified in any respect by Section 398 of the Code of Civil Procedure. (Preston v. Hill, supra.) Mr. Ingersoll could not, therefore, under the contract, assume the authority to make any compromise of the contest. His duty required him to prosecute it, and he could not be held entitled to recover under his contract, short of a successful result of the controversy, followed by actual distribution to his clients. Additional authority was therefore necessary to this end, and, when this was conferred by his clients and accepted by him, there was a mutual abandonment of the contract; for the negotiations, were not included among his duties under the contract, and -when the compromise was consummated the contract could not be performed. This impossibility of performance was the result of the subsequent mutual arrangement between him and his clients under and by virtue of which the compromise was made. The services stipulated for under the contract were therefore never performed, and the contingent fee fi} be paid for them could not be recovered. The contract was entire, and nothing short of entire performance would authorize a recovery upon it. Nor would the. case have been different, had the compromise been effected without the aid or consent of Mr. Ingersoll, for, where the stipulation is for a contingent fee, no matter whether the rendering of the services is prevented by the client, or by circumstances over which he has no control, the measure of recovery by the attorney is the-value of the services actually rendered, and not the amount of the stipulated fee. These views, we think, are correct upon principle, and are sustained by the Weight of authority. (Tenney v. Berger, 93 N. Y. 524, 45 Am. Rep. 263; French v. Cunningham, 149 Ind. 632, 49 N. E. 797; Western Union Tel. Co. v. Semmes, 73 Md. 9, 20 Atl. 127: Polsley & Son v. Anderson, 7 W. Va. 202, 23 Am. Rep. 613; Agnew v. Walden, 84 Ala. 502, 4 South. 672; Pemberton v. Lockett, 21 How. 257, 16 L. Ed. 137; 3 Am. & Eng. Ency. Law, 2d Ed., 427, 431, and notes.) The allegations of the complaint fall very far short of showing an entire performance of the contract. The action of the court, therefore, was. correct in sustaining the objections to the introduction of evidence under the complaint, and in directing judgment upon the plaintiff’s failure to amend.

Motion to modify opinion denied May 18, 1903.

2. The first order made after entry of judgment, though in form an order vacating the appointment of a receiver, was equivalent to an order discharging, the receiver, and was properly made. The court had entered a final judgment. It had lost jurisdiction of the case, “except for the purpose of entertaining a motion for a new trial, or such other proceedings as might properly and lawfully be had, looking to' a revision or correction of its action, or to enforce the decree as rendered. It had no authority, inherently or by statute, or by any rule of this court, to retain jurisdiction for any purpose pending the appeal.” (Finlen v. Heinze, 27 Mont. 107, 69 Pac. 829.) It was therefore the duty of the court to discharge the receiver, who, after entry of judgment, had no other functions to. perform. It necessarily follows that the court was also right in refusing to set aside the order just mentioned, and to retain the receiver pending appeal from the judgment.

The judgment and orders are affirmed.

Affirmed.


source: Caselaw Access Project

author: MR. COMMISSIONER CLAYBERG-

license: Public Domain

text:
    REYNOLDS, Respondent, v. FITZPATRICK et al., Appellants.
    (No. 1,553.)
    (Submitted April 29, 1903.
    Decided May 11, 1903.)

      Chattel Mortgage — Conversion of Mortgaged Property — Defenses — Title in Third Person — Evidence—Hearsay — Appeal — Decision—Estoppel.
    1. Testimony, by a mortgagee of personalty, that the one who it was claimed had purchased it told him that the owners said the sale could be made if he, the mortgagee, was willing, was inadmissible as hearsay.
    2. where on appeal, it appears that there was sufficient competent testimony to sustain the verdict, under proper instructions, and the record does not contain the instructions, it will be presumed that the court properly instructed the jury.
    3. To warrant the introduction of the testimony of an absent witness, given upon a former trial, the party seeking to introduce such testimony must preliminarily prove the fact of departure or absence of such witness ■ by positive testimony, or by the existence of circumstances from which departure or absence can be reasonably inferred.
    4. A party offering the testimony of a witness on a former trial showed that a subpoena was issued, which was returned with the sheriff’s indorsement that he could not find the witness, and the party testified that he heard that the witness lived at a certain place, and he had written his (the party’s) daughter about it, who said she had' not heard of him in two years; that he inquired of a man in another place, who said that the witness had gone to the Klondike, and inquired of other parties, who said they did not know where he was. Iield error to admit the testimony on the former trial, as the proof failed to show that the witness was out of the state, or, if so, it did not show that he might not have started a few dayh before trial.
    5. Testimony that a third person told plaintiff, who was seeking to introduce the testimony of a witness given at a former trial, that said witness had gone to the Klondike, was hearsay.
    6. On a motion to introduce the testimony of a witness given on a former trial, the stenographer who officiated at the former trial was sworn, but did not testify that the transcript presented was a correct copy of' the testimony as actually given. Held error to admit the testimony.
    7. Quaere: Whether the test:mony of a witness given at a former trial can be proven by the notes of the official stenographer who Rook it, or by a transcript of such notes.
    8. In an action for conversion the burden is upon plaintiff to show either title or right of possession in himself. Proof on the part' of defendant of title and possession .in a third person would constitute an absolute defense to.the action.
    9. In an action for conversion, plaintiff did not claim to be the owner of the property converted, but claimed the right to the immediate possession thereof by reason of an alleged default in the terms of a verbal mortgage claimed by linn to cover the property. Held error to exclude testimony that, prior to any assertion by plaintiff of his rights under the mortgage, the mortgagor, who then had possession of the property, ha4 sold the same to.a third person, who had no notice of plaintiff’s rights, as this evidence tended to show title in the third person, and therefore to defeat the action.
    10. A party is estopped from claiming that he is not bound by a decision procured by his own appeal and solicitation.

      Apppal from District Gourt, Deer Lodge Countyj Welling Naptoni, Judge.

    ActioN by J. B. Reynolds against John Fitzpatrick and John Conley, as sheriff and deputy sheriff. From a judgment for plaintiff and from an order overruling', a motion for a new trial, defendants appeal.
    Reversed.

      Mr. W. H. Trippet, for Appellants.

      Mr. H. R. Whitehill, for Respondent.
   MR. COMMISSIONER CLAYBERG-

prepared the opinion for the court.

This ease has heretofore been before the supreme court on appeal from a judgment of nonsuit, and was reversed and remanded. (Reynolds v. Fitzpatrick, 23 Mont. 52, 57 Pac. 452.)

A trial of the case was then had in the court below, resulting in a verdict and judgment for the plaintiff. From this judgment, and from an order overruling a motion for a new trial, the defendant prosecutes this appeal. No new or amended pleadings were filed after reversal by this court,’

A very full ’and complete statement of plaintiff’s case, and the testimony adduced in his behalf upon the first trial, is found in the opinion of the court (23 Mont. 52, 57 Pac. 452),’ which we adopt and refer to as a portion of. the statement herein. It seems only necessary to add thereto the fact that, upon the retrial -of the case, the plaintiff introduced additional testimony as to the value of the property, and the defendants introduced witnesses who also testified as to such value, and a witness who claimed to have been a bona fide- purchaser of the property in question from one John A. Hall, wbo was in possession thereof at the time of the levy of the attachments in question, claiming its ownership^

The appellants assign four errors in their brief, as follows: (1) Refusal to strike out hearsay testimony. (2) Allowing plaintiff’s witnesses to testify as to' the value of the property, without proper qualification therefor. (3) Permitting the testimony of John A. Hall, who testified upon the former trial, to be read in evidence and considered by the jury. (4) Refusing to allow defendants to introduce proof of a sale of all the prop1-erty in question by Hall to J. Y. Cbllins, after the levy of the attachments in question. We shall consider these several assignments of error seriatim.

1. As to the first error assigned. The testimony, a part of which was sought to. be stricken out, is as follows: “Mr. Hall met me down here on the street, and said he was about to buy it out only if I was satisfied. Clark told himi that if I was saticr fied they could make the trade. * * * I did not hear the conversation, but he told me this.” What Clark told Hall was undoubtedly the clearest kind of hearsay testimony, and, a seasonable objection having been made, should have been stricken out on motion.

2. As to- the second error assigned. There was sufficient competent testimony introduced before the jury upon which they might have rendered their verdict for the plaintiff, under pjroper instructions of the court. The record does not contain these instructions, and we must presume that the court below properly directed the jury as to the consideration of the testimony adduced upon the different issues in the case. There was therefore no error upon these rulings.

3. As to the third error assigned. It is claimed that this testimony was admissible under Section 3146 of the Cbde of Civil Procedure, which provides:' “In conformity with the preceding provisions^ evidence may be given upon a trial of the following factsu * * * (8) The testimony of a witness deceased, or out of tbe jurisdiction, or unable to testify, given in a former action between tbe same parties, relating to tbe same matter.”

It is very apparent tbat, before sucb testimony became competent and could bave been introduced, tbe burden of proof was upon tbe plaintiff to sbow tbe existence of one of tbe conditions of Subdivision 8, supra,, viz: (1) Tbat tbe witness was dead; (2) tbat be was out of tbe jurisdiction; or (3) tbat be was unable to testify. Tbe only preliminary proof offered was: First, a subpoena issued on September 19, 1899, to tbe sheriff of Deer Lodge county, requiring tbe witness’ presence in court on Sep1-tember 23, 1899, wbicb was returned by tbe sheriff to' tbe effect tbat be bad failed to' find tbe witness; and, second, tbe testimony. of plaintiff, which is as follows: “I will state what efforts I bave made in endeavoring to discover tbe whereabouts of Mr. John A. Hall, who> was a witness in tbe case the last time it was tried. I wrote to my daughter at Twin Bridges; she knew him; I wrote to Twin Bridges because I beard be lived there; that was bis former residence, between there and Sheridan. She said she bad not beard of him in two years. I also inquired of a man in Butte who said be knew him, and be told me tbat Hall bad gone to' the Klondike. I also inquired here of McKinnon & McKay; they were acquainted with him; they said they would know where be was; they bad not beard of him for a couple of years. I beard be bad worked for them, in tbe store formerly; they said they bad not heard of him for a couple of yeai’s, and could not tell where be was.”

This statute is but declaratory of tbe common law as announced by tbe decisions of tbe highest courts of several of tbe states, and therefore we must be guided in its application by tbe same rules as those applied by 'the common law in similár instances. We find, upon examination of tbe decisions, tbat a party seeking to' introduce tbe testimony of a witness given upon a former trial is required to introduce preliminary evidence of tbe existence of tbe reasons for its introduction, and. tbat, if it is sought to' be introduced because of tbe absence of tbe witness from tbé jurisdiction of the court, the party seeking its introduction is required; to show the fact of departure or absence by positive testimony, or by the existence of such circumstances as would warrant the inference of departure or absence. In Baldwin v. St. Louis, K. & N. Ry. Co., 68 Iowa, 37, 25 N. W. 918, the supreme court of Iowa uses the following language: “The fact that the witness had left the state should have been established by the testimony of some one who knew: the fact, or could testify to circumstances within hia knowledge which would justify the inference of such fact.” (See, also, Augusta, & S. R. Co. v. Randall, 85 Ga. 297, 11 S. E. 706 ; Mawich v. Elsey, 47 Mich. 10, 8 N. W. 587, 10 N. W. 57; Slusser, Taylor & Co. v. City of Burlington, 47 Iowa, 300; Wilder v. City of St. Paul, 12 Minn. 192.)

The state of California has- a statute similar to the above, under which the courts of that state have held that the witness mtust be out of the state, and if he is withiin its borders, although at a point more than thirty miles distant from the place of trial, his testimony given at a former trial is; not admissible. (Meyer v. Roth, 51 Cal. 582; Butcher v. Vaca Valley Ry. Co., 56 Cal. 598.)

In our opinion the record fails to disclose any positive testimony that the witness had departed from or was out of the state at the time of the trial, or the existence of any circumstances from' which such departure or' absence could be reasonable inferred. The only testimony even tending to show this fact is that of Reynolds, who says, “I also inquired of a man in Butte, who said he kneiw. him, and he told me that Hall had gone to the Klondike.” Plaintiff did not call this man as a witness, so that he could be cross-examined and the source of his information ascertained. The testimony given was not direct or positive, but pure hearsay. No circumstances were detailed from which the inference of the fact of departure or absence could be safely drawn. What the man said may have been mere rumor. Agáin, plaintiff does1 not disclose the date of said inquiries. It might have transpired, if Hall had gone to the Klondike, that lie only started a feiw days before the trial, and that ample opportunity1 might might have existed to subpoena him or to have taken his testimony anew, or that the time of such inquiry was so remote that he might have returned. All the other testimony offered was to the effect that his whereabouts was unknown, and is entirely consistent with the fact that he was within the state. Plaintiff did not show that he made any effort to communicate with the witness at his last known residence1. We are therefore satisfied that ¡plaintiff did not make such showing as to warrant the introduction of Hall’s testimony given on the former trial of the ease.

But again, even if proper proof had been presented to' warrant the introduction of this1 testimony, it could not have been introduced without proof that it was actually given on the former trial. The stenographer who* officiated at the former trial was sworn. He did not testify that the transcript of the testimony presented and read in evidence was- a correct copy of the testimony as actually given. So that the testimony as introduced was simply a copy of the evidence given upon the former trial, without proof of its correctness. Thera is also a serious question as to whether the testimony of a witness given at a former trial can be proven by the notes of the official stenographer who took it, or by a transcript of such notes. (Reid v. Reid, 73 Cal. 206, 14 Pac. 781; Lipscomb v. Lyon, 19 Neb. 511, 27 N. W. 731.) But inasmuch as objection was not made on that ground, we do not decide its availability.

4. As to the fourth error assigned. It must be remembered that this action was for an alleged conversion of certain personal property. The burden was upon the plaintiff to show either title or right of possession to the property resting in himself. The right of possession was alleged and denied. Proof of -title and possession of the property in a third person could be introduced, and, if satisfactory to the jury, would constitute an absolute defense to the action. (Gallick v. Bordeaux, 22 Mont. 476, 56 Pac. 961, and cases cited.) Plaintiff did not claim' tó be the legal owner of the properly, but claimed the right to the immediate possession thereof because of an alleged default iu the terms and conditions of a mortgage which he claimed to hold covering the property.

A brief reference to the facts is necessary to understand the exact situation in regard to’ this question. Reynolds had theretofore sold a part of the property in question to’ Maddox and Clark, and had taken a chattel mortgage from -them to secure the payment of a note given by them for a portion of the purchase price. Hall, with the consent of Reynolds, purchased the property from Clark, the successor of Maddox and Clark. The supreme court, on the former appeal, held that by this purchase Hall became the owner of the property; that by the agreement between Hall and Reynolds a new, verbal mortgage was given by Hall to Reynolds, which superseded the Maddox and Clark mortgage by novation, and that the liability of Maddox and Clark was extinguished; that, after this new arrangement was completed and Hall had taken possession of the property, the same was levied upon by creditors of Maddox and Clark; that the mortgage from Maddox and Clark was void as to' their creditors. Therefore the following situation existed: Hall was the owner and in possession of the property in question, subject, as between himself and Reynolds, to a parol mortgage, given by himself to Reynolds. This mortgage, under the terms of Section 3861 of the Civil Code, was void as against any subsequent purchaser of the property: in good faith for value. Defendants sought to show that Hall sold this property to one Collins for a valuable consideration, without notice or knowledge on the part of Collins of the existence of the verbal mortgage from Hall to Reynolds, and without notice of the claim of Reynolds, and therefore to a tona, fide purchaser. This purchase was claimed to have been made prior to the commencement of this suit, or to .the assertion by Reynolds of hiis right under this parol mortgage by any action or process, and prior to any attempt on his p-art to take' possession of any of the property under the terms of the alleged mortgage. In our opinion such testimony was competent, and, 'if established to the satisfaction of the jury, would have been an. absolute defense to plaintiff’s alleged cause of action.

Counsel for appellants insist tlxat the decision of tlie supreme court on the former appeal was erroneous, and that it is not the law of the case. While there may be serious doubt as to the correctness of either of these propositions, we do not deem it necessary to consider or decide the question upon this appeal. So far as plaintiff is concerned, he is estopped from asserting or claiming that he is not bound by that decision. It was procured by his own appeal and solicitation, and he is now estopped to question it. (Newell v. Meyendorff, 9 Mont, 254, 23 Pac. 333, 8 L. R. A. 440, 18 Am. St. Rep. 738.) We can therefore see no good reason why appellants should contend that the former ruling of the supreme court was erroneous or is not the law of the case, at least upon this appeal; but by this language we do1 not desire to be understood that under proper circumstances we would or would not consider these or like questions.

We are therefore of the opinion that the decision of the court below should be reversed, and a new trial be granted.

Fes, Gueiam. — For the reasons stated in the foregoing opinion, the judgment of the court below is reversed, and a new trial granted.

Ms. C-hiee Justice BbaNtly was disqualified, and took no part in the decision.


author: MR. COMMISSIONER GLAYBERG

text:
    McGLAUFLIN, Respondent, v. WORMSER, Appellant.
    (No. 1,550.)
    (Submitted April 28, 1903.
    Decided May 11, 1903.)

      Mechanics’ Liens — Statutory Requirements — Compliance-Burden of Proof — Pleading — Complaint — Sufficiency-C osts — Witn esses — Mileage—Appeal—R eview — S cope„
    1. A building contract provided that all payments should be made on the certificate of the architect that payments had become due, and that final payment should be due when the work was completed and accepted. Heldj that presentation of a certificate of the architect was a condition precedent to final payment.
    2. A complaint in an action to enforce a mechanic’s lien must state that the necessary architect’s certificate was gien or demanded, and, if refused, the reasons why it should have been given, or, if waived, a statement of that fact.
    3. Code of Civil Procedure, Section 2131, relative to mechanics’ .liens, provides the statutory steps which must be taken for its assertion. Held that, in an action to enforce a mechanics’ lien, allegations showing com-plianace with Section 2131 are jurisdictional, and when denied must be proven as alleged, in order to authorize decree of foreclosure.
    4. Where, in a suit to enforce a mechanic’s lien, no proof is made showing the existence of any lien, questions raised on appeal as to the extent or validity of the lien are not open to consideration.
    5. Political Code, Section 4648, provides that witnesses “attending” a trial are entitled to 10 cents a mile each way from their place of residence to the place of trial; and Section 1S66 provides that the party to whom costs are awarded is entitled to the mileage of witnesses, etc. Held, that a party to whom costs were awarded was entitled to mileage for witnesses who appeared and testified, irrespective of whether they were legally subpoenaed.
    6. Quaere: Whether Section 3304, Code of Civil Procedure, Is constitutional?
    7. An order, made after judgment, refusing to sign a bill of exceptions, cannot be considered on appeal from the judgment and from an order denying a new trial.

      Appeal from District Court, Street Crass Countyj Frank Henry, Judge.

    Suit by J. P. Mcfflauflin against Andrew Wormser to enforce a meebanic’s lien. From a judgment for (plaintiff, and from an order overruling a motion for a new trial, defendant appeals.
    ^Reversed.

      Mr. Eugene B. Hoffman, for Appellant.
    The court erred in overruling the defendant’s motion to re-tax the costs.' (Sections 3360, 3342, 1866, Code of Civil Procedure; Myli/ns v. St. L. F. S. & V. R. Co. (Kan,), 1 Pac. 619.)
    No attorney fee can be allowed as a part of the costs in a case of this bind, and if permitted by our Code, the section permitting it is unconstitutional and void in that it violates Section 6, Article III, Constitution of Montana, and Section 1, Article XTV, Amendments to the Constitution of the United' States. This question was before this court in Wortman v. Klein-

      schmidt, 12 Mont. 316, and while tbe majority of tbe court held tbe statute constitutional, Judge DeWitt filed a strong opinion urging that tbe provision was unconstitutional. Since tbe decision in tbe Wortman Case, tbe question has come squarely before tbe Supreme Court of tbe United States in Gulf G. & 8. F. B. Go. v. Filis, 165 U. S. 150; see, also, Los Angelos G. M. Go. v. Campbell (Oolo.), 56 Pac. 246; Bru-bal-erx. Bennett (Utah), 57 Pae. 170.
    Tbe procuring and presenting of tbe certificate of tbe architect were conditions precedent to payments, and waiver of such condition precedent must be shown by proofs of tbe most satisfactory kind, and will not be inferred from contradictory statements of tbe jp(arties. And tbe making of payments' from time to time on tbe contract price will not constitute a waiver of such condition precedent. (Brown v. Winehill (Wash.), 28 Pac. 1037; Wortman v. Kleinschmidt, 12 Mont. 316.)
    Tbe supreme court of Missouri in construing a statute quite similar to our own, bas held that descriptions of the land, such as that employed by the respondent here, were too indefinite and were not a complance with tbe statute, and that therefore tber’e was no lien created. (Maitlack v. Bare, 32 Mo. 262; Williams v. Porter, 51 Mo«. 441; Wright v. Beardsley, 69 Mo. 548; Ransom v. Sheehan, 78 Mo. 668.)

      Mr. D. H. Kehoe, and Mr. Sidney Fox, for Respondent.
   MR. COMMISSIONER GLAYBERG

prepared tbe opinion for tbe court.

This is an action brought to foreclose a mechanics lien. At tbe trial of tbe case, after plaintiff bad introduced bis evidence, defendant moved for a nonsuit, which tbe court overruled. Judgment followed for plaintiff. Defendant made a motion for a new trial, which was overruled. He then appealed from this judgment and tbe order overruling tbe motion for a new trial.

1. Tbe action is based upon a written contract entered into between tbe parties for tbe construction of a dwelling bouse. It provides tbat “all payments shall be made upon tbe written certificates of tbe architect to tbe effect tbat such payments have become due.” It also provides tbat tbe different payments shall be made when ceifain work about tbe building is completed, and tbat tbe final payment shall be due “when tbe entire work is completed and accepted.” By the terms of this contract, under tbe law, tbe obtaining and presentation of a certificate of tbe architect was a condition precedent to tbe final payment on tbe contract becoming due. Therefore tbe complaint must state tbat such certificate was given or demanded, and, if refused, tbe reasons why it should have been given, or, if waived, a' statement of tbat fact. We find no allegation in tbe complaint to tbat effect. This being true, it is not sufficient to> support the judgment given by the court below. Tbe motion for non-suit made by tbe defendant should, have been sustained upon this ground. (Michaelis v. Wolf, 136 Ill. 68, 26 N. E. 384; Hudson v. McCartney, 33 Wis. 331; Hanley v. Walker, 79 Mich. 607, 8 L. R. A. 207; Byrne v. Sisters of St. Elizabeth, 45 N. J. Law, 213; Beharrell v. Quimby, 162 Mass. 571, 39 N. E. 407; Cox v. McLaughlin, 63 Cal. 196; Schmidt v. City of North Yakima, 12 Wash. 121, 40 Pac. 790.)

2. But again, under tbe statutes of this state the plaintiff was bound to allege in bis complaint, and show to tbe satisfaction of tbe court or jury, tbat be bad complied with tbe provisions of Section 2131,. Code of Civil Procedure. He makes tbe following allegation in bis complaint: “E'ourth. Tbat on tbe 8th day of October, 1898, and within ninety days from tbe furnishing of such material and labor, tbe plaintiff, in order to secure and perfect a mechanic’s lien for tbe money so due him as aforesaid, duly filed with the county clerk and recorder of Sweet Grass county, Montana, an affidavit containing an itemized account of tbe amount and value of such labor and materials, with all credits and offsets, and a description of tbe land on which such bouse-was built, which was duly recorded in said county clerk and recorder’s office, a copy of which lien, affidavit and account is hereto attached, and made a part of this complaint.” The complaint also alleges that the property on which the house was constructed was situated in Sweet Grass county, Montana. T'o these allegations defendant interposed a general denial. Me also interposed a specific denial as to the'sufficiency of the description of the property against which the lien was claimed. These allegations and denials raised an issue necessary to be submitted to the jury and passed upon by the court or jury before any decree or judgment could be entered in the suit.

'The manner of perfecting a mechanic’s lien consists of various steps, which are purely statutory, and, while the statute is in some respects remedial in its nature, and thus far should be construed liberally, it creates a new right, and the statutory proceedings by which this new right is perfected and enforced must be strictly followed. (Yerrick v. Higgins, 22 Mont. 502-510, 57 Pac. 95.) Section 2130, Code of Civil Procedure, specifies the instances in which a lien may be claimed. Section 2131 provides the method by which it may be asserted, and specifies what constitutes a lien. If no lien is thus created, nono can bo enforced. Allegations of compliance with the terms of Section 2131 are, therefore, jurisdictional in an action to enforce a lien; and such allegations, when denied, must be proven as alleged, in order to authorize a, decree of foreclosure of the lien. We have carefully searched the record, and fail to find any testimony even tending to prove the above allegations. There was, therefore, a failure to prove the existence of such facts as to give the court below jurisdiction to enter the decree appealed from. It must, therefore, be reversed.

No proof having been made of the existence of any lien, other questions raised by appellant as to the extent or validity of the lien claimed are not properly before us for consideration.

3. Inasmuch as the case must be remanded for a new trial, and as the costs of the former mistrial will abide the final result of the suit, we deem it proper to consider the error assigned upon tbe action of tbe court below in refusing appellant’s motion to retax costs.

Tbe only items to wbicb appellant objects are tbe items of mileage paid witnesses from Great Falls and Butte. Tbe record does not disclose wbetber these witnesses were subpoenaed, but it is clearly shown that they were present and testified at tbe trial. Appellant insists that tbe amounts paid for their mileage was not an item of costs “necessarily incurred in said action,” or properly chargeable against him. His counsel insists that under Section 3304, Code of Civil Procedure, a witness cannot be comjp.elled to attend a. court out of tbe county in wbicb be resides, unless the distance be less than thirty miles from bis residence to tbe place of trial. He also insists that the depositions of such witnesses should, have been taken under Section 3342, Code of Civil Procedure. Section 4648 of the Political Code provides that witnesses “attending” a trial are entitled to ten cents per mile each way from their place of residence to the place of trial. Section 1866, Code of Civil Procedure, provides: “A party to whom costs are awarded in an action is entitled to include in bis bill of costs bis necessary disbursements as follows: Tbe legal fees of witnesses, including mileage,” etc. These witnesses attended court, and testified on tbe trial, and we think plaintiff was entitled to1 include their mileage in bis statement of costs and disbursements, and that tbe court did not err in overruling tbe motion to retax tbe costs.

There may be a somewhat serious question as to tbe constitutionality of Section 3304, supra. Section 11, Article VIII, of our Constitution, provides that tbe process of district courts “shall extend to all parts of tbe state.” Section 3300, Code of Civil Procedure, provides, “Tbe process by which the attendance of a witness is required is by subpoena.” If the process of tbe court through a sub|p)oena extends to all parts of tbe state, it is difficult to understand bow a witness could justify refusal to obey it, even though be resided out of tbe county, and more than thirty miles from tbe place of trial. We do not, however, desire to be understood as deciding this question, because it was not argued before tbe court, and its decision is not necessary to tbe decision of tbis case.

4. One other error assigned in tbe brief is based upon tbe refusal of tbe court to settle and sign a certain bill of exceptions wbicb appellant bad prepared, served, and tendered to tbe court.. Tbe action of tbe court in refusing to sign tbe same was an order made after judgment, and to bring it to tbis court for review an appeal must be taken from sueli order. Tbe appeal in tbis case is only from tbe judgment and tbe order overruling tbe motion for a new trial.

We are of tbe opinion that tbe judgment and order appealed from should be reversed, tbe case remanded and a new trial order ed.

Pee, Curiam. — For tbe reasons stated in the foregoing opinion’, tbe judgment and order appealed from are reversed, the case remanded and a new trial ordered.

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


author: .MR COMMISSIONER CALLAWAY

text:
    YODER, Appellant, v. REYNOLDS, Respondent.
    (No. 1,544.)
    (Submitted April 11, 1903.
    Decided May 11, 1903.)

      Fraudulent Conveyances — Admissibility of Evidence — tions to Evidence — Motion to Slrihe Out Evidence — Waiver35 —Instructions.

    1. Civil Code, Section 1372, provides that tbe good will of a business is property, transferable like any other. A debtor transferred Ms stock of goods by an itemized bill of sale, which did not include the good will of the business. Held, on an issue of fraud towards creditors in the conveyance, that evidence as to the value of the good will was inadmissible.

      2. Where a question asked a witness calls for evidence which is wholly inadmissible for any purpose, it is not error for the court to sustain a mere general objection to it.
    3. Where an offer of testimony includes that which is admissible with that which is not, and the competent and incompetent are blended together, it is not error for the court to sustain a mere general objection to its admission.
    4. A party who permits incompetent testimony to go in without objection waives his right to object, and cannot move to strike it out.
    5. Where testimony is offered which may be competent upon the showing made, and therefore no objection is made to it, and its incompetency is after-wards developed; or when incompetent testimony is volunteered by a witness in response to a proper question, such testimony should be stricken out on motion.
    6. On an issue of fraud towards creditors in a debtor’s conveyance, the court instructed that if a prior transfer from his partner to the debtor was made without consideration or secretly, or for any fraudulent purpose, or to allow the debtor to make the transfer in question with intent to defraud creditors of the partnership, then the conveyance in issue would be invalid. Held error, as permitting the conveyance to be invalidated though the grantee was an innocent purchaser for value.
    7. The court further instructed that if the grantee was not at the time of the conveyance the legal or real owner of notes given by the debtor, the cancellation of which was the consideration for the conveyance, but the facts concerning the true ownership were concealed for the purpose of defeating partnership creditors, the conveyance would be void. It appeared that the notes were signed by the grantee, and given to a payee who after-wards became his wife. Heldj that both instructions were, as a whole, erroneous, as telling the jury, in effect, that the grantee did not have the right to secure himself by purchasing,the property in good faith, even though he was liable on th'e notes.
    8. The latter instruction was also erroneous, as it was immaterial to the creditors of the partnership whether the ownership of the notes was in the grantee or his wife.
    9. The court instructed that if the prior transfer to the debtor from his partner was not made for value or in good faith, and was not disclosed to creditors, then it would not vest the title in the debtor alone, but, if the partnership or the debtor continued to carry on the business under the partnership name, then the conveyance would be void towards, creditors of the firm. Held error, as whether the transfer between the partners was fraudulent or not, it gave to the debtor the legal title, so as to enable him to give an absolutely good title to a tona -fide purchaser.
    10. Instructions must be warranted oy the pleadings and evidence.
    11. Instructions should not be argumentative in form.
    12. It is error for the court in an instruction to comment on the weight to be given the evidence of the parties to the action.
    13. It is error for the court to 'give conflicting instructions.
    14. In a suit for the conversion of personalty, and also damages for a trespass on realty possessed by plaintiff as a tenant, it is error to instruct that the burden is on the plaintiff to show his right to the possession of “the property in controversy,” since, though the leasehold was in controversy, plaintiff was — under the proofs adduced — entitled to nominal damages for the defendant’s trespass thereon.
    15. ‘Where a sheriff levies on personalty in defendant’s warehouse, and remains in possession of the premises, defendant is entitled to nominal damages, even though no special damage is shown.
    It is error for the court in an instruction to incorrectly state the initials of a party’s name. 16.

      17. A court, in its instructions, should be brief and clear, it should not indulge in needless repetition and legal verbiage, nor should it attempt to give all the law extant upon the subject under consideration.

      Appeal from District Court, Silver Bow County; William Clancy, Judge.

    ActioN for conversion of personalty and for trespass on realty by A. N. Yoder against S. J. Reynolds. From an order refusing a new trial after judgment for defendant, plaintiff appeals.
    Reversed.

      Messrs. McBride & McBride, for Appellant.
    Under the law, as it existed in 1896, the first in time wras first in right; -and plaintiff, by his diligence; obtained a preference which it was the duty of the court to protect. (Civil Code, Secs. 4483, 4513;-Bump on Fraudulent Conveyances, 183; Greene v. Tanner, 49 Mass. 411; Hubbard v. Taylor, 5 Mich. 155.)
    In March, 1896, a creditor violated no rule of law when he took payment of his demand in good faith, although others were thereby deprived of all means of obtaining satisfaction of equally meritorious claims. (Gray v. St. John, 35 Ill. 222; Hill v. Boivman, 35 Mich. 191; Ames & Frost v. Heslet, 19 Mont. 188.)
    An instruction not based upon evidence in the case, is erroneous. (Brownell v. McCormicIe, I Mont. 12, II; Kelley v. Gable Co., 7 Mont 20 ; Walsh v. Mueller, 16 Mont. 180 ; Good-hind v. Gilliam, 19 Mont. 385-388.)
    Instructions 5 and 6 are erroneous in that they are argument ative, 3-nd purport to express the opinion of the court upon the evidence in the case; moreover, instruction 6 ignores entirely the rights of the plaintiff as a bona, fide purchaser. (Wastl v. Montana Union By, Co., 17 Mont. 213; Knowles v, Nixon, 17 Mont. 4Y3; State v. Gay, 18 Mont. 61-62.)
    Conflicting instructions will not be sustained. (Kelley v. Cable Co., 7 Mont. Y0; Walsh v. Mueller, 16 Mont. 180.)

      As to tbe rule applicable to a case where partnership prop*-erty has been applied to the payment of the individual debt of one of the partners, see, Huiskamp v. Moline Wagon Go., 121 TJ. S. 310-323; Case v. Beauregard, 99 IT. S.. 119-125; Howe v. Lawrence, 9 Cush. 553, 57 Ana. Dec. 68, and cases there cited; Locks v. Lewis, 121 Mass. 1.
    The right of a simple contract creditor of a partnership to have the assets of the firm first applied to the payment of the firm debts does not amount to' a lien upon the property, but is á mere equity, which vanishes when the partners part with their interest in the property. (Stahl v. Osmérs, 31 Oregon, 199, 49 Pac. 958.)
    Instruction No. 11 does not correctly state the law applicable to this case, for the reason that there was no evidence of any bad faith on the part of either the seller or purchaser. (Curtis v. Valiton, 3 Mont. 156.)
    A partner, as such, may, when his copartner has wholly abandoned the business to him, dispose of the whole partnership property at once to a creditor. (Steinhart v. Fyhrie, 5 Mont. 413, and cases cited; Code of Civil Procedure, Sec. 3232.)

      Messrs. Forbis £ Mattison, and Mr. M. J. Cavanaugh, for Respondent.
    Where there is evidence to support a finding or verdict it will not be disturbed by the appellate court although it may be claimed that it appears to be against the weight of evidence. (Merchants’ Bank v. Greenhood, 16 Mont. 430, 41 Pac. 250; Orr v. Haskell, 2 Mont. 228.)
    The contention of the appellant that the verdict is not sustained by the evidence, cannot be considered on this appeal, for the reasons that his specifications as to. the particulars in which the evidence fails to support the verdict are too* vague and indefinite ; and besides the verdict might still stand if the lack of evidence he mentions was a fact. (Zickler v. Deegan, 16 Mont. 200; Gristuold v. Boley, 1 Mont. 553; Froman, v. Fatterson, 10 Mont. 107; Bass v. Buker, 6 Mont. 442; Stafford v. Horn-

      buckle, 3 Mont. 493; First Nafl Bank v. Roberts, 9 Mont. 333; Strasburger v. Beecher, 20 Mont. 145-49, p. 740.)
    This court will not set aside the order refusing to grant a new trial unless the lower court could have directed a verdict for plaintiff at the close of the ease; this cannot be done where there is a question as to the credibility of the evidence; whether the facts be disputed or undisputed if different minds may honestly draw different conclusions, the case should be left with the jury. (Stephens v. 'Pendleton, 85 Mich. 137; Frankenthall v. Gold-stein, 44 Mo. App. 189; Avary v. Perry Stove Mfg. Go., 96 Ala. 406.)
    If the trial court could not have justly directed a verdict in favor of plaintiff at the close of this case, this court should not disturb the order for lack of evidence; it devolved upon the plaintiff to prove his title to the property; the jury had the exclusive right to weigh and pass upon the credibility of his testimony ; therefore the jury could not have been properly deprived of this function by a direction for plaintiff. (Picket v. Is-grigg, 6 Fed. 676; Goodman v. Ford, 23 Miss. 592; Maus v. Montgomery, 11 S. & E. (Pa.), 329; Fritz v. Glark, 80 Ind. 591; Penn-. Mining Go. v. Brady, 16 Mich. 332; Roberts v. Field, 27 Mich. 337.)
    Error in refusing or giving instructions will not authorize a reversal of the judgment where the verdict is manifestly right upon the whole case. (Mann v. Higgins, 83 Cal. 66 ; O’Calla.-hanv. Bodie, 84 Cal. 489; Gasiagno v. Carpenter, 14 Oohx 524; Wyman v. Filker, 18 Colo. 382.)
    It must have prejudiced some substantial right of appellant. (Low v. Woerlin, 77 Cal. 94; Fredericks v. Judah, 73 Cal. 604; Quinn v. Quinn, 81 Cal. 14; Goddy v. Chicago, 5 Dak. 97.)
    ' Where it appears that the jury were not misled the order will not be disturbed. (Chalmers v. Chalmers, 81 Cal. 81; Murray V. White, 82 Cal. 119.)
    Error in a detached phrase, sentence or section is not reversible where it is so qualified by the remainder of the charge that, regarded as a whole, the law is stated with substantial correctness. (Monnahan v. Pac. Boll. Mill, 81 Cal. 190-; People v. Ciarle, 84 Cal. 573; Bosenbuck v. Baymer, 13 Cal. 451.)
    As to motives of parties to transfer, see, Power v. Alston, 93 Ill. 587; Phelps v. Curts, 80' Ill. 112; Morrison y. Bemis, 69 Ill. 537; Moore v. Wood, 100 Ill. 454; Skow’n Bank v. Cutler, 49 Me. 318.
    The doctrine of reputed ownership would entirely justify the jury in ignoring the transfer as claimed to' have been made from, Lorenzo Graehl to Ilyrum; G-raehl. (Ex parte flare, 1 Deac. 16, 2 Mont. & A., 478, per Ersldne, Ch. J.; Ex parte Neivton, 1. M. D. & D. 252; Ex parte Hunter, 2 Rose, 382; Hogard v. McKvnzie, 25 Beau. 493; Whitman v. Leonard, 3 Pick. 177.)
    Lien of creditors on firm property is paramount to that of individual creditors though the latter attach first. (Todd v. Lorah, 75 Pa. St. 156; Chase v. Steel, 9 Cal. 64; Conroy v, Woods, 13 Gal. 626; Bindley v. Davis, 6 Mont. 453.)
    Neither the court in its charge nor counsel in his request for instructions has any right to assume that the matter is proved merely because there is no conflict of testimony in íegard to it; as there may be a question as to the weight and credit which should be given to the testimony. (People v. Webster, 111 Cal. 381; Barry v. Hoffman, 6 Md. 86; Saar v. Fuller, 71 Iowa, 427; Bhodes v. Lowry, 54 Ala. 4.)
    If the order of the court can be supported upon any theory it will not be disturbed. (State v. Schnepel, 23 Mont. 523.)
    Appellant claims that many of the instructions given at the request of the respondent were not warranted by evidence1. This fact, if it were a fact, is not necessarily reversible error. Except it appear that the jury were misled by such instructions to the injury of appellant, the order will not be reversed. (People v. Divine, 95 Cal. 227; Bara Avis Miming Coi v. Bouscher, 9 Colo. 385; People v. Cochran, 61 Cal. 548; Berry v. Missouri Pac., 124 Mo. 223.)

      An instruction cannot be deemed erroneous if there be any evidence, however slight, upon which to base it. (Goodell v. Bluff City Lwn. Co57 Ark. 203; Sawyers v. Brahe, 34 Mo. App. 472.)
    The mistake in the initials of the plaintiff, in instruction No. 17, is not ground for reversal. (Salina M. <& B. Co. v. Hoyne, (Kan. App.) 63 Pac. 660.)
   .MR COMMISSIONER CALLAWAY

prepared the opinion for the court.

In order to arrive at an understanding of the issues involved in this appeal, it is necessary to- state the case somewhat in detail.

It appears from the record that one Jacobson and Hyrum Graehl were engaged in the grocery business in Butte for some years prior to 1894 under the name of Jacobson & Graehl, and that Lorenzo Graehl bought Jacobson out, probably in 1894, and the firm then became Graehl & Graehl. On August 19. 1890, H. Graehl and A. N. Yoder executed to- Hattie 0. Libby a note for $300, due in six months after date, and bearing interest a.t one per cent per month. On August. 22, 1893, II. Graehl and A. N. Yoder executed to. Hattie O. Libby a note for $350, due in one year after date, and bearing interest at one -and one-half per cent, per month. On January 22, Í896, Graehl & Graehl and A. N. Yoder executed to W. A. Clark & Broi. a note for $300, due in sixly days after date-, and bearing, interest at one- per cent, per month. At the time of the trial, Hattie C. Libby had become the wife of the plaintiff, Yoder. A bill of sale was introduced in evidence, which purports to have been executed by Lorenzo to Hyrum Graehl on March 6, 1896, and which conveys to Hy-rum all of Lorenzo’s right, title and interest in the firm and business of Graehl & Graehl for a consideration of $500. After executing this bill of sale, Lorenzo went prospecting in Madison county, where he remained some six or seven months. On March. 17, 1896, Hyrum Graehl executed and delivered to1 the plaintiff, Yoder, a bill of sale, whereby he conveyed all his “right, title, and interest in and to the following described personal property,” describing it in detail — such as “2,000 lbs. flour, 300 lbs. corn meal, 300 lbs. bacon, 4 chests tea,” etc. No mention is made in this bill of sale of the good will of the business. The plaintiff testified: “On the 17th day of March I bought- this stock of goodsi at 101 South Main street. I found H. Graehl in possession there. The consideration that I paid for that stock of goods was $1,100. I paid it by those notes and other money that he had borrowed up> to- that time.” The Libby notes are indorsed as follows: “March 17, ’96. Received payment in full to date from A. N. Yoder. Hattie C. Libby.” The W. A. Clark & Bro. note bears this writing on its fact: “Canceled. Paid for stock. A. N. Yoder.” It is indorsed: “Pay to A. N. Yoder or order without recourse, W. A. Clark & Bro., per Alex. J. Johnston, Cash.” When the bill of sale from Hy-rum Graehl to plaintiff was executed, one Joseph Graehl, a brother of Lorenzo and Hyrum,, was present, and at the same time Hyrum sold and transferred to said Joseph Graehl all of the book accounts of the firm of Graehl & Graehl. When these legal documents were completed, plaintiff testified that he took possession immediately — it was then eleven o’clock at night— and placed Joseph Graehl in charge as his agent. On the next day the defendant, who was then sheriff of Silver Bow county, acting under a writ of attachment issued in an action wherein A. P. Bray was plaintiff and the firm of Graehl & Graehl were defendants, took possession of the stock of goods described in the bill of sale from Hyrum Graehl to- plaintiff, and also- took possession of plaintiff’s storeroom. He demanded the keys of plaintiff, and, upon receiving them, put the plaintiff out, locked' the doors, and kept possession of the storeroom for about forty-five days. In due time Bray recovered judgment against the Graehls, had execution issued thereon, and the defendant, as such sheriff, sold the goods claimed by plaintiff in pursuance thereof. The plaintiff then began this suit.

Plaintiff states his cause of action in two. counts. The first is in the usual form of an action for damages for the wrongful conversion of personal property, the plaintiff praying for judgment against the defendant in the sum of $1,150. In the second cause of action the plaintiff alleges “that on the 18th day of March, 1896, he was the owner and in possession, and entitled to the possession, of all the following described property, to-wit.” Then follows a description of the personal property as shown in his bill of sale, and then this allegation: “That on the said 18th day of March, 1896, plaintiff was then and there the owner of said stock of goods* and of a leasehold estate in and to the said storeroom and premises, and was'engaged in a profitable business in selling and dealing in groceries at retail at No. 101 South Main street, Butte, Montana.” Then, “that on the said 18th day of March, 1896, the defendant wrongfully and without the consent'of plaintiff entered upon the said premises, and ousted and ejected plaintiff therefrom, and took possession of the said stock of goods, and wholly deprived plaintiff of his said stock of goods and of his said storeroom and place of business, and wholly destroyed plaintiff’s said business, to the damage of plaintiff in the sum of one thousand dollars.”

The defendant denies generally the allegations of both counts of plaintiff’s .complaint, and pleads justification as to each. He alleges that, as the sheriff of Silver Bow county, he took the personal property described in plaintiff’s complaint under and by virtue of a writ of attachment issued out of the district court of his county in an action wherein A. H Bray was plaintiff and the firm of Graehl & Graehl were defendants, and that all of the property so attached was the property of Graehl & Graehl at the time of the attachment; “that the plaintiff herein, A. N. Yoder, claims to have been entitled to the possession, and to have been the owner of all the said property attached as aforesaid, and described in the complaint herein, on said March 18, 1896, by virtue of a pretended bill of sale of said property executed on said day to said A. N. Yoder by said Hy rum Graehl, but defendant alleges that the said pretended bill of »ale was a covinous and fraudulent transfer, made without valid consideration in law, not accompanied by immediate actual and continued change of possession, and not an absolute transfer of said property as it pretended to be, but a transfer in trust to secure said A. N. Yoder for an individual indebtedness of Hyrum Graehl, contracted long prior to his partnership with Lorenzo Graehl as Graehl & Graehl, and with a secret understanding with said Yoder that, whatever of said property or its proceeds remained after .paying such individual indebtedness, such balance should be paid to- Graehl & Graehl, or revert to them as their property; that said transfer was made with intent to hinder, delay, and defraud the creditors of said firm of Graehl & Graehl, and prevent the enforcement of their demands against Graehl & Graehl, and was such a conveyance as would hinder, delay, and defraud the creditors of the said Graehl & Graehl.” In this affirmative defense no justification is attempted to be made by defendant for his possession of plaintiff’s storeroom.

The plaintiff, by replication, denies all the affirmative matter asserted in the answer.

It is proper to suggest that the pleadings of the respective parties were treated by them as sufficient in the court below. Upon the trial the jury found for the defendant. From an order denying plaintiff’s motion for a new trial, he prosecutes this appeal.

1. At the trial the plaintiff was asked: “Q. Do you know anything relative to the value of the good will of the business which you had purchased there on the 17th day of March ? A. Yes; I think I do. Q. What was the good will of that business worth?” This latter question was objected to “for the reason that it calls for a speculation and is too remote.” The court sustained the objection, and plaintiff assigns error. The court’s ruling was correct, but for other reasons than those urged. No foundation was laid for any suck evidence either in the pleadings* or in the previous testimony of the plaintiff. Tke good will 'of a business is property, transferable like any other (Section 1372, Civil Code), but it does not appear that the plaintiff ever purchased the good will of the firm of Gfraehl 6 Graehl. On the contrary, the plaintiff received from Hyrum Graekl an itemized bill of sale, particularly specifying the property sold, and evidence could not be received to add to the terms of this writing, so as to show that the good will formed a pai’t of the act of sale. (Hebert v. Dupaty, 42 La. Ann. 343, 7 South. 580.)

The question asked called for evidence which was wholly inadmissible for any purpose and it was therefore subject to a mere general objection, which that urged was, in effect

2. The plaintiff was asked the following question: “Taking into consideration the fact that you had a leasehold interest in that storeroom, and that you were deprived of the possession of the storeroom, and that you were deprived of a building to carry on'the business, by reason-of the sheriff of Silver-Bow county, Montana, taking possession of that storeroom, what amount of damage did you suffer by reason of the taking of the building and good will of the business and storeroom by the sheriff?” This was objected to “for the reason that such damage is -merely speculative or prospective damage, and does not relate to the actual damage, and there has been no evidence offered tending to show that the business was carried on there at any profit, but, rather, at a loss.” The court sustained the objection, to which plaintiff takes exception.

In this ruling the court did not err. The objection amounted to a mere general one. When an “offer of testimony includes that which is admissible with that which is not, and the competent and incompetent are blended together, it is not the duty of the court to separate the legal from the illegal, but the whole may be rejected when objection is made,” and the party against whom tbe ruling is made cannot complain because tbe objection is too general. (Jones on Evidence, See. 897.)

3. The plaintiff complains because tbe court refused to strike out certain incompetent testimony of tbe witnéss Bray. An inspection of tbe record discloses tbe fact that tbe plaintiff sat by and allowed it to go to tbe jury without objection, and aftei'ward moved to strike it out. If tbe testimony bad been favorable to plaintiff, presumably ba would bave been satisfied to allow it to remain. In permitting it to be adduced without objection, be took tbe chance of being injured, should it prove unfavorable. It is tbe settled law that one must object to improper testimony when it is offered, or abide tbe result. Tbe failure to object at tbe proper time waives tbe error. (Jones on Evidence, See. 898; Hughes v. Ward, 38 Kan. 452, 16 Pac. 810; Cleveland C., C. & I. Ry. Co. v. Wynant, 134 Ind. 681, 34 N. E. 569; Dallmeyer v. Dallmeyer (Pa.), 16 Atl. 72; Chicago, St. L. & P. R. R. Co. v. Champion, 9 Ind. App. 510, 36 N. E. 221; Perkins v. Brainerd Quarry Co. (Com. Pl.), 32 N. Y. Supp, 230; Haverly v. Elliott, 39 Neb. 201, 57 N. W. 1010; Vermillion Artesian Well, etc. Co., v. City of Vermillion, 6 S. Dak. 466, 61 N. W. 802.) An exception toThis ruléis that when testimony is offered which may be competent upon tbe showing made, and its incompetency is afterwards developed, either by tbe subsequent testimony of tbe witness, or upon bis cross-examination, or when incompetent testimony is volunteered by tbe witness in response to a proper question, it should be stricken out on motion.

4. Tbe court gave tbe jury the following instruction at the request of tbe defendant: (No. 1) “If you believe from tbe evidence that tbe alleged transfer of bis interest in tbe partnership from Lorenzo Graehl to Hyrum Graehl was made without consideration or secretly, or for any fraudulent purpose, or to allow said Hyrum Graehl to make a transfer, of tbe partnership property to Yoder upon the notes given in evidence, and with intent to binder, delay, and defraud creditors of tbe partnership in that way, then you must find that the bill of sale or transfer from Hyrum Graehl to A. N. Yoder of the stock of goods afterwards attached was not a legal or valid conveyance, and did not prevent the levy of the attachment by the creditors. And if you find that the plaintiff, Yoder, was not the legal or real owner of the notes introduced in evidence, at the time of the said transfer of the stock of "goods, but the facts concerning the true ownership of said notes were concealed for the purpose or with the designed effect of defrauding or defeating creditors of said partnership^ or that the indebtedness evidenced by the said notes, or any of them, was the individual indebtedness of said Hyrum G-raehl, and not of the partnership, and that the partnershipi still existed as to the creditors up to the time of such alleged sale, then you must disregard such’ transfer, as the same would not be supported, in law, under such facts, but would be void, as to the rights of the creditors of said partnership.” This was error. This instruction practically told the jury that if Lorenzo Graehl had transferred his interest in the partnership to Hyrum without consideration or secretly, or for any fraudulent purpose, or to enable Hyrum to commit a fraud, then it should find against the plaintiff, even though he be an innocent purchaser in good faith, and for a valuable consideration. The bill of sale might have been fraudulent between the Graehls, but how could that have prejudiced the rights of one who knew nothing of such fraud ? This instruction also erroneously told the jury, in effect, that the plaintiff did not have the right to secure himself by a bona -fide purchase of the property, even though he was liable for the payment of the three notes introduced in evidence.

Another ground of criticism of this instruction is that there was no evidence adduced by either plaintiff or defendant as to whether the ownership of the notes was concealed by any one. Instructions must be warranted by the pleadings and evidence. (Brownell v. McCormick, 1 Mont. 12, 14 Pac. 651; Kelley v. Cable Co., 1 Mont. 70, 14 Pac. 633; Walsh v. Mueller, 16 Mont. 180, 40 Pac. 292; Goodkind v. Gilliam, 19 Mont. 385, 48 Pac. 548.) But we fail to. see what difference it could malee to the creditors of the firm of Graehl & Graehl whether the ownership of the notes was in the plaintiff or Hattie 0. Libby, so long as the firm was liable for the payment thereof.

5. Instruction No. 2 is erroneous because not warranted by the evidence. The alleged sale to plaintiff was made by Hyrum Graehl, and not by the firm of Graehl & Graehl. This is one of the undisputed facts in the case.

6. We cannot approve of instruction No. 5. It is argumentative in form, and likely to prejudice the jury.’ The principles of law treated by it may be easily stated to the jury without resort to innuendo.

I. In instruction No. 6 the court commented on the weight to be given the evidence of the parties 1» the action This was error. “The jury being the sole judges, of the weight to be given to the testimony, the court should not tell them what particular weight to give to any portion thereof.” (State v. Gleim, 17 Mont. 17, 41 Pac. 998, 31 L. R. A. 294, 52 Am. St. Rep. 655; Wastl v. Montana Union R. R. Co., 17 Mont. 213, 42 Pac. 772; Knowles v. Nixon, 17 Mont. 473, 43 Pac. 628; State v. Gay, 18 Mont. 51, 44 Pac. 411.) And while the court gave the true rule at the end of this somewhat lengthy instrnotion, that did not remove or overcome the objectionable feature mentioned ; as completed, different portions of the instruction are conflicting, and it is therefore misleading.

8. Instruction No. 8 is as follows: “If you find from the evidence that the alleged sale fromi Lorenzo Graehl to Hyrum Graehl about March 6, 1896, was not made for valuable consideration, or in good faith as to the creditors, and was not'published or given notice of to the creditors, but remained secret, then you will not consider such transfer as vesting the- title to said property in Hyriim Graehl alone; but if you find that the Graehls or Hyrum Graehl continued to carry on business at the same place in the same manner as before, under the name and style of Graebl & Graebl, tben a transfer from bim alone to tbe plaintiff, Yoder, would not be valid as against tbe creditors of said firm.” Tbis is erroneous. Whether tbe bill of sale from Lorenzo to Hyrum was fraudulent or not, it conveyed to Hyrum tbe legal title to tbe property, so far as Lorenzo1 was concerned, and placed Hyrum in a position to give an absolutely good title to one purchasing in good faith, for a valuable consideration, and without notice of existing defects. Ln order.to vitiate tbe sale from Hyrum Graebl to plaintiff, it was incumbent uppn tbe defendant to affirmatively connect tbe plaintiff with tbe fraud, if any there was.

9. Instruction No. 9 is incorrect because not warranted by the evidence. That Lorenzo Graebl conveyed bis interest in tbe partnership to Hyrum by bill of sale dated March 6, 1896, was conceded. Therefore tbis instruction is erroneous for tbe same reasons given as to instruction 8.

10. Instruction No. 16 reads,, in part, as follows: “Tbe. jury is instructed that tbe burden of proof is on tbe plaintiff to show by the preponderance or greater weight of tbe evidence bis right to tbe possession of tbe property in controversy.” In tbis instruction tbe court should not have used the words “tbe property in controversy.” Tbe plaintiff’s leasehold interest in tbe storeroom was a part of tbe property in controversy, and tbis tbe defendant did not levy upon. So1 far as tbe record is concerned, tbe defendant was a trespasser in tbe storeroom, of which be retained possession for about forty-five days. While there was no proof as to any special damage sustained by plaintiff upon tbis branch of tbe case, be was, under tbe proofs adduced, entitled to nominal damages for tbe defendant’s trespass.

11. Defendant’s instruction II is erroneous for tbe sáme reason assigned as to instruction No. 16. It should also have correctly stated tbe initials of plaintiff’s name.

12. Tbe court instructed the jury at great length. Eighteen pages of the record are taken up. by tbe instructions. Wbetber they are all in tbe record, we do not know, but it appears to1 contain over thirty of them.. Those before us were not numbered by the court, and we have been obliged to designate them by the numbers given in appellant’s brief.

How the jury'could have been aided in its labors by this mass of reading is conjectural. Aside from being of such great length, the instructions are replete with repetition and legal verbiage. Instructions are given to a jury to enlighten, not to confuse, it. The court should not attempt to' instruct á jury as to all the law extant upon the particular subject under consideration. In the case at bar a few brief and clear instructions would have been ample to aid the jury in its investigations.

For the reasons given, we are of the opinion that the order should be reversed, and the cause remanded for a newr trial.

Pee Cueiam. — For the reasons given in the foregoing opinion, the order is reversed, and the cause is remanded for a new trial.


author: MR. CHIEF JUSTICE BRANTLY

text:
    FOLEY, Administrator, Appellant, v. KLEINSCHMIDT et al., Respondents.
    (No. 1,570.)
    (Submitted May 12, 1903.
    Decided May 13, 1903.)

      A ttorney — Compensation — Conditional Contract — Client’a Dismissal of Appeal — Effect.
    Where an attorney contracts to perform services in pending suits for a certain sum, a portion of which is to be paid in installments upon their favorable termination, and sues upon the contract, the fact that adverse judgments were rendered will defeat his recovery, though the client, on the advice of another attorney, dismissed appeals therefrom; the proper remedy being to sue on a quantum meruit.

      Appeal from District Court, Letuis and Clarice County; 8. Mclntire, Judge.

      ActioN by B. H. Foley, as administrator of the estate of Rollin P. Blanchard, against Albert Kleinsciimidt and others. From a judgment for defendants, entered on a nonsuit, and from an order denying a new trial, .plaintiff appeals.
    Affirmed.

      Mr. Charles J. Geier, for Appellant.

      Mr. Massena Bullard-, for Respondents.
   MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the court.

This action was brought to recover of the defendants a judgment for a balance alleged to be due plaintiff’s intestate for legal services rendered by him for the defendants. The complaint contains two causes of action. The first declares upon a contract in writing, under the terms of which the deceased undertook to prepare briefs in two certain causes, in which the defendants herein were defendants, for the stipulated sum of $750, $200 of which ivas to be paid down, and the balance in installments of $250 each, upon the determination of the two causes, respectively, and entry of final judgments therein in favor of the defendants. The breach of the contract upon which recovery is claimed is alleged as follows: “That plaintiff well, promptly, and to defendants’ entire satisfaction, prepared and furnished said briefs,” and “that defendants, though often thereto requested, have not paid said sum, or any part thereof, exceeding about $250.” There is no' allegation that said causes have been determined in favor of the defendants, or at all. The second cause of action is upon a quantum meruit for services rendered in the same causes at the request of the defendants, of the alleged value of $1,000, no part of which has been paid by the defendants. Judgment is demanded for the sum of $1,500.

At the hearing the second cause of action was abandoned, evidence being offered in support of the first only. This evidence established without contradiction — though it was made to appear tliat the briefs had been prepared and furnished to the defendants in accordance with the terms of the contract. — that both of the causes mentioned in the contract had resulted in final judgments against the defendants; that appeals had been takers therefrom to this court; and that subsequently the appeals were dismissed by the defendants under the advice of other counsel regularly employed in the causes. . At the close of plaintiff’s evidence, and upon motion of the defendants, a nonsuit was granted, and judgment entered in favor of the defendants for costs. From this judgment, and an, order denying a new trial, plaintiff appealed. The plaintiff having died pending his appeals, the present plaintiff, Bernard IT. Foley, administrator, was substituted in his stead.

. Complaint is made that the district - court erred in granting the motion for nonsuit and directing judgment for defendants. One of the grounds of the motion was that, under the terms of the contract, nothing was to be paid, besides the cash payment, except upon the entry of final judgment in onei or both of the causes mentioned therein in favor of defendants, and that the evidence showed affirmatively that adverse judgments had been entered in both. The action of the district court was therefore correct. The contract was air entire contract, and payment thereunder was due' upon a contingency. No recovery could be had thereon without allegation and proof that the contingency provided for therein had happened; nor was the situation aided in any way by the fact that the appeals to this court were dismissed by the defendants themselves under the advice of other counsel in the causes, thus preventing the possibility of a favorable judgment upon the determination of the appeals. If plaintiff had any right to recover on. the ground that the happening of the contingency was prevented by the act of the defendants, he could still not recover upon the contract, but must be relegated to his action upon a quanium meruit for the value of the services actually rendered. This case falls entirely within the principle declared in Harris v. Root (decided by this court at the present term), 28 Mont. —, 72 Pac. 429.

There being no other error assigned which shows any merit, the judgment and order must be affirmed.

Affirmed.


author: Pee Oubiaj,c.

text:
    BOE, Appellant v. HAWES et al., Respondents.
    (No. 1,571.)

      Appeal — Implied Finding — Record on Appeal — Preservation of Evidence — Review.
    In an action tried to the court, defendants denied all the allegations of the complaint and specially pleaded the statute of limitations. On appeal by plaintiff from the judgment, the only assigned error was that “the court erred in giving judgment against appellant, for in so doing he evidently held the statute of limitations had run against the action.” Held> that as chere was nothing in the record disclosing the reason why the court found and entered judgment in favor of defendants, it would be presumed— under the doctrine of implied findings — that the court found that the plaintiff failed to make out a prima, facie case on the merits, hence, the evidence not being in thek record, the judgment must be affirmed.

      Appeal from District Court, Flathead County; D. F. Smith, ■Judge.

    Action by Christ Boe against Ira Hawes and others. Erom a judgment in favor of defendants, plaintiff appeals.
    Affirmed.

      Mr. David Ross, and Mr. F. Joe Rice, for Appellant.
   Pee Oubiaj,c.

This action was brought against the defendants as sureties on the official bond of one Eugene M. McCarthy, constable. In the answer to the plaintiff’s complaint, defendants denied all the allegations thereof, and specially pleaded the statute of limitations. The cause was tried to the court without a'jury, and witnesses were sworn for the plaintiff. The court found for and entered judgment in favor of the defendants and against tbe plaintiff. The evidence is not in the record. Plaintiff appeals from the judgment.

The only assigned error is that “the court erred in giving judgment against appellant, for in so* doing he evidently held the statute of limitations had run against the action.” Them is not anything in the record disclosing the reason why the court found for and entered judgment in favor of the defendants. While not passing upon the question whether the court erred in its decision upon the point as to the statute of limitations— if it made onei — we may and do- say that, even if it erroneously found that the statute had run, it would not follow that the j udgment should be reversed, for the reason that the court may have found that the evidence of the plaintiff did not make out a prima facie case on the merits.

Under the doctrine of implied findings which prevails in this state, it must be presumed that the court correctly found in favor of the defendants.

There not being any of the evidence in the record, we cannot say that the court erred in finding for the defendants.

Affirmed.