author: MB. COMMISSIONER CLAYBERG Per Cubiam.

text:
    WILSON et al., Appellants, v. FREEMAN, Respondent.

    (No. 1,762.)
    (Submitted January 12, 1904.
    Decided February 1, 1904.)

      Mining Claims — Location—Declaratory Statements — Description of Claim — Markings — Amendment — What Law Governs — Improvements — Representation Work — Objections— Right to Urge.

    1. Political Code, Section 3611, provides that the equivalent of a discovery shaft in a mining location shall be “a cut, a cross-cut or a tunnel which cuts a lode at the depth of ten feet below the surface, or an open cut of at least ten feet in length along the lode from the point where the lode may be in any manner discovered,” and Section 3612 requires the declaratory statement to set forth the dimensions and location of the discovery shaft, or its equivalent sunk on lode or placer claims. Reid, that where a recorded declaratory statement merely recited that the claim was a relocation of the M. lode claim, on which the discovery was a shaft 10 feet in depth and 4% feet in size, but failed to state that such were the dimensions at the date of the relocation, and it contained no reference to a discovery shaft or its equivalent, except the recitals, “from the center of discovery shaft, which is an open cut ten feet deep,” and “beginning at an open cut which is the point of discovery,” it was insufficient.
    2. Political'Code, Section 363 5, declares that the relocation of an abandoned lode or placer claim must be made by sinking a new discovery shaft and fixing new boundaries in the same manner as if an original location had been made, or the relocator may sink the original discovery shaft ten feet deeper, in which case the declaratory statement shall give the depth and dimensions of the original discovery shaft at the date of the relocation. Reid that, where the claim was based on a relocation of an abandoned claim, a declaratory statement, failing to show the dimensions and locations of the shaft on the abandoned claim at the date of such location, and that it was sunk ten feet deeper, was invalid.
    3. In a suit to establish an adverse claim filed against an application for a patent to a mining claim, the United States is a quasi party, and if, upon a trial, neither plaintiff nor defendant is entitled to a patent to the ground in controversy, the court must so find.

      4. Tiie validity of a mining location, in an action to determine an adverse claim before patent issued, must be determined by tbe law in force at the time the location was made.
    5. Under Laws 1901, p. 56, authorizing the filing of an amendatory declaratory statement of the location of a mining claim where the original was defective or erroneous, where a locator misdescribed his claim as running easterly and westerly, he was entitled to file an amended declaratory statement that the claim ran in the northerly and southerly direction, to correspond to the staking of the claim on the ground.
    6. In an action in support of an adverse claim in an application for a patent to a mining claim, an objection that the claimant had not placed on the claim sought to be patented $500 worth of work or improvements could not be considered,' such question being within the exclusive jurisdiction of the land office.
    7. Where an adverse claimant to a mining location had no right or title thereto, he could not object that the claimant was not entitled to a patent for failure to do the annual representation work thereon.

      Appeal from District Court, Parle County; Pranlc Henry, Judge.

    ActioN by A. B. Wilson and others against George’0. Freeman in support of an adverse claim to a mining location. From a judgment in favor of defendant, plaintiffs appeal.
    Affirmed.

      Mr. W. J. Beecher, and Mr. George F. Shelton, for Appellants.

      Mr. II. G. Mclntire, and Mr. 8. II. Mclntire, for Respondent.
   MB. COMMISSIONER CLAYBERG

prepare the opinion for the court.

This is an action brought in support of an adverse claim filed against an application for patent to a mining claim. The contentions of the respective parties, as we gather them from the record, are briefly as follows: Respondent asserts that his predecessors had located the W. W. Dixon lode claim on January 1, 1891, which, according to the declaratory statement duly recorded, ran 1,400 feet easterly- and 100 feet westerly from the discovery shaft. Appellants base their rights upon a location of the Snowstorm lode claim, made September 5, 1898, which, according to the declaratory statement, extends along the vein 1,150 feet in a northerly direction and 300 feet in a southerly direction from discovery.

Appellants’ declaratory statement of the Snowstorm location is as follows:

“Quartz Location. Notice is hereby given that the undersigned' citizens of the United States, did, on the 5th day of Sept., 1898, discover a quartz lode or vein, bearing gold, silver, iron and other valuable metals, with at least one well-defined wall, to be known as the Snowstorm quartz lode mining claim, and did on said day locate and claim, by virtue of chapter six, of title XXXII, of the [Revised Statutes of the United States, and the laws of the state of Montana, 1150 feet in a northerly direction.and 350. feet in a southerly direction from the center of the discovery shaft, which is an open cut ten feet deep (at which cut this notice of location is posted), and 300 feet on each side from the middle or center of said lode or vein at the surface, comprising in all 1,500 feet in length, along said vein or. lode, and 600 feet in width. This lode is situated in the Sheepeater unorganized mining district, in the county of Park and state of Montana (the adjoining claims are the New York mining claim on the north and the Sunshine lode mining claim on the west), and is a relocation of the Monarch lode claim, on which the discovery was a shaft which was ten feet in depth, 4%, feet in size, and-- feet in-, has been extended in-by the undersigned-feet —'—. The exterior boundaries of this location are distinctly marked by posts or monuments at each corner of the claim, so- that the boundaries can be readily traced, viz.: Beginning at open cut which is the point of discovery, thence running in a northerly direction 1,150 feet to the northeast corner stake, marked No. 1; thence 600 feet west to- the northwest corner stakes marked No. 2; thence 1,500 feet in a southerly direction to- the southwest corner stake, marked No. 3; thence 600 feet in an easterly direction to- southeast corner stake, marked No-. 4; thence 1,500 feet in a northerly direction to- stake No. 1 a,t N. El corner. A. B. Wilson, Thomas Lenaghan, Paul Kigler, John Viditz, Locator — and Claimant — .”

This declaratory statement, when offered in evidence, was objected to by respondent, on the ground that “it does not meet the requirements of the statute.” Its validity must therefore be determined; because, if it be invalid, appellants’ location fails, and they could not maintain this character of action, and were not entitled to a judgment.

Section 3611 of the Political Code, among other things, provides that: “The locator or locators must define the boundaries of his or their claim by marking a tree or rock in place, or by setting a post or stong at éach corner or angle of the claim. When a post is used, it must be at least four inches square by four feet six inches in length, set one foot in the ground, with a mound of earth or stone four feet in diameter by two feet in height around the post. When a stone is used, not a rock in place, it must be at least six inches square and eighteen inches in length, set two thirds of its length in the ground, which trees, stakes or monuments must be so marked as to designate the corners.”

Section 3612 provides what the declaratory statement which is recorded shall contain, and among the other things-required are “(6) The dimensions and location of the discovery shaft, or its equivalent, sunk upon lode or placer claims. (I) The location and description of each corner, with the markings thereon.”

An examination of the recorded declaratory statement discloses. that the boundary stakes were simply marked “No. 1,” “No. 2,” “No. 3,” and “No. 4.” It must be remembered that under Section 3611 the stakes “must be so marked as to designate the corners,” and under Section 3612 the recorded declaratory statement must contain “a. description of each corner, with the markings thereon.”

We doubt whether this declaratory statement shows that the stakes were “so marked as to designate the corners,” or that it contains “a description of each corner with the markings thereon,” within the purview of the following decisions: Purdum v. Laddin, 23 Mont. 387, 59 Pac. 153; Walker v. Pennington, 27 Mont. 369, 71 Pac. 156; Halm v. James, 29 Mont. 1, 73 Pac. 965; but, inasmuch as it is clearly insufficient for other reasons, we do not express any definite opinion thereon.

Section 3612, as. above seen, requires the declaratory statement to set forth the dimensions and location of the discovery shaft, or its equivalent, sunk upon lode or placer claims. The equivalent of a discovery shaft is defined by the statute in the following language: “A cut, a cross-cut or a,tunnel which cuis a lode at the depth of ten feet below the surface, or an open cut of at least ten feet in length along the lode from the point where the lode may be in any manner discovered, is equivalent to a discovery shaft.” (Section 3611, Political Code.) The recorded declaratory statement does not satisfy the requirements of these provisions. The only reference to a discovery shaft, for the purpose of giving its dimensions, is as follows: The Snowstorm “is a relocation of the Monarch lode claim, on which the discovery was a. shaft which was ten feet in depth and four and one-half feet in size,” not that these were its dimensions “at the date of such relocation.” No reference is made to a discovery shaft or its equivalent upon which the location is based, except the recitals, “from the center of discovery shaft which is an open cut ten feet deep/’ and “beginning at an open cut which is the point of discovery,” neither of which is sufficient to< give, as a. fact, the dimensions and location of the discovery shaft or its equivalent.

Again, Section 3615 provides: “The relocation of an abandoned lode or placer claim must be made by sinking a new discovery shaft and fixing new boundaries in the same manner as if it were an original location made under this chapter; or the relocator may sink the original discovery shaft ten feet deeper, in which case the declaratory statement must give the depth and dimension of the original discovery shaft at the date of such relocation.” Now, under this section, if the Snowstorm was a relocation of the Monarch, the locators were required, either to sink a new discovery shaft or its equivalent, tire same as if it were an original location, in which case they, would be bound to' set forth, in their declaratory statement the dimensions and location of such discovery shaft or its equivalent, or sink the original discovery shaft ten feet deeper, in which case the declaratory statement would be required to give, first, the depth and dimensions of the original discovery shaft “at the date of relocation,” and, second> the dimensions and location of the discovery shaft or its equivalent upon which the location was based (which in such instance must be the original discovery shaft sunk ten feet deeper). There is nothing in the declaratory statement above quoted showing the dimensions and location of the discovery shaft, or its equivalent, if a new shaft was sunk as a basis of location; or showing the depth and dimensions of the discovery shaft upon the abandoned claim “at the date of such location,” and that it was sunk ten feet deeper, if the location was based upon such facts. Therefore we are satisfied that the declaratory statement introduced in evidence by the plaintiffs and appellants was absolutely void, and gave the plaintiffs and appellants no right to maintain the suit in controversy, or have judgment entered in their favor upon such suit.

Of course, in suits of this character the United States is a quasi party, and if the court is satisfied, upon a trial of the case, that neither plaintiff nor defendant is entitled to a patent of the ground in controversy, it must so- find and decide. (Jackson v. Roby, 109 U. S. 440, 3 Sup. Ct. 301, 27 L. Ed. 990.)

It therefore becomes necessary to1 investigate the validity of respondent’s alleged title. As was stated before, respondent claims under a location made on the 1st day of January, 1891. This location, having been made prior to the Code of 1895, must be tested by the law in force at the time it was made. We have no doubt that it was prima facie a valid location under the laws of Montana and the United States existing at the time it was made. Respondent claims that there was a mistake in the recorded certificate of location as to the direction of the vein located and of the claim, and a discrepancy between such certificate and the staking of the claim on the ground; that while in the notice the claim was described as running easterly and westerly,-in truth and in fact, by the staking of'the claim on the ground, it ran in a northerly and southerly direction. Therefore, for the purpose of correcting this mistake, an amended declaratory statement was recorded in 1899. This amended statement recites fully the facts in regard to the making of the original location, and states that it was “for the purpose of' more fully and perfectly describing the -said claim, and with no intention or design to waive any rights accrued or accruing under and by virtue of the said notice of location so filed as aforesaid.” It is therefore not-a new location or a relocation, but simply an amendment of the declaratory statement of the old location, made solely for the purpose of correcting a mistake therein in the description of the claim as to its staking.

The legislature in 1901 (Laws 1901, p¡. 56) enacted a law allowing the filing of an additional or amendatory declaratory statement in cases where the original was defective or erroneous. Section 2 of this Act provides as follows: “Any amended or additional declaratory statement which may have heretofore been filed by a locator, or his successors or assigns, shall have the same force and effect and be subject to the same terms and conditions as though the same had been filed under the provisions of Section 1 of this Act.” In our opinion, under this law, the original location and the amended declaratory statement, construed together, constituted a valid location of the W. W. Dixon in a northerly and southerly direction, and that the respondent, as against plaintiffs and the United States, was entitled to a patent- for the W. W. Dixon, upon making the proper proof before the court and land office. Respondent did not change the location on the ground by the amended declaratory statement, but simply conformed the description as stated in the original declaratory statement, as recorded, with the actual staking on the ground as made at the time the original location was made. Respondent had a perfect right to do this, and, inasmuch as plaintiffs’ location has been held to be'absolutely void, they were not interested in any of the ground in controversy, and. therefore have no right to object to the action of respondent in that regard.

Appellants also contend that respondent has not placed upon said lode claim, so sought to1 be patented, $600 work or improvements. This was a matter which could not he in controversy in the trial of a suit of this character. The court has nothing to do with the question as to whether the work was done or not. It is a question exclusively for the land office, and the respondent might have, if he had not already done so, completed such work and improvements at any time before actually making his final entry in the land office.

Appellants further allege that the W. W. Dixon lode was forfeited because of the failure of respondent to do the necessary annual work upon the claim for the years 1897 and 1898. The purpose of annual representation is to enable the locator to hold his claim as against all persons. It is not required for any purpose which affects the general government. (2 Lind, on Mines (2d Ed.) Sec. 624, and cases.) The government cannot forfeit the claim if the annual representation has not been placed upon it. In order to make the want of annual representation effective, the ground must be entered and located by another person. We have seen that the pretended entry and location by the appellants was absolutely void and of no effect, and therefore- they cannot raise the question as to the sufficiency of representation work. Besides, the proof in the record discloses that representation work was done for both these years on claims which are a part of a group of contiguous claims owned by the respondent, of which the W. W. Dixon was one, and that the work done upon the other claims “had a tendency to develop the W. W. Dixon claim.”

Counsel for respondent raised and argued the proposition that the plaintiffs’ location was void because of its great excess, being 806 feet wide at one end and over 1,800 feet in length, one side line being 1,858 1-10 feet long, and the other 1,951 5-10 feet long (as disclosed by’the complaint on file in the action). The point is a very important one, and its consideration is not necessary to a decision of tbe case, inasmuch as appellants’ location is void for other reasons.

We are therefore of the opinion that the judgment of the court below was correct, and should be affirmed.

Per Cubiam.

For the reasons stated in the foregoing opinion the judgment is affirmed.


source: Caselaw Access Project

author: MR. COMMISSIONER OLATBERO Pee, Cueiam:.

license: Public Domain

text:
    BORDEAUX, Appellant, v. BORDEAUX, Respondent.
    (No. 1,770.)
    (Submitted January 14, 1904.
    Decided February 1, 1904.)

      Divorce — Alimony—Counsel Fees — Past Services — 'Necessity of Allowance — Sufficiency of Showing — Prospective Services —Securing Neiv Trial — Appeal.
    1. Civil Code, Section 391, empowers the court during the “pendency” of an action for divorce to allow a wife alimony or money “to prosecute or defend the action.” Section 1893 provides that an action is “pending” from _ its commencement to its final determination on appeal or the expiration of the time for appeal. Section 1730 provides that an appeal shall stay proceedings in the court below on the judgment, but allows that court to proceed in any matter not affected by the order appealed from. Held, that the district court has jurisdiction, notwithstanding a judgment in favor of the husband for divorce, at any time prior to the determination of the appeal from the judgment or prior to the expiration of the time for appeal to require the husband to pay any money necessary to enable the wife to support herself, or to further prosecute or defend the action.
    2. Under Civil Code, Section 191, empowering the court to allow a wife money “to prosecute or defend” a divorce suit, the court has no power, after trial and judgment, to compel the husband to pay for past services of'attorneys, or for expenses incurred in the trial, except when such payment is necessary to enable the wife to continue her prosecution or defense.
    3. In order to empower the court to allow a wife money to pay for past services of attorneys, it must be shown that such allowance is necessary to enable her to continue her prosecution or defense; and the fact that the court refused to allow such money during the trial, and reserved the right to allow it until after the trial, does not show a necessity for the allowance.
    4. Although judgment for divorce has passed against a wife, the court may allow her, on a proper showing, reasonable costs, expenses and attorney’s fees for services to be rendered in the preparation and presentation of a motion for a new trial, notice of which had been given.
    5. While the district court may allow a wife against whom judgment of divorce has been rendered costs and expenses incident to the preparation ana presentation of an appeal, such allowance cannot be made while a motion for a new trial is pending, and before the appeal has been taken.
    6. while the district court may allow a wife against whom a judgment for divorce has been rendered money necessary to enable her to prepare her statement or bill of exceptions on motion for a new trial, a necessity for such allowance must be shown.

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

    ActioN for divorce by John B. Bordeaux against Ella E. Bordeaux. From an order allowing defendant counsel fees, plaintiff appeals.
    [Reversed.

      Messrs. Stapleton & Stapleton, Mr. B. S. Thresher, and Messrs. Breen & Mackel, for Appellant.

      Mr. John J. Mcliatton, Mr. Jesse B. Boots, and Mr. William A. Ciarle, Jr., for [Respondent.
   MR. COMMISSIONER OLATBERO

prepared the opinion for the court.

On January 28, 1899, plaintiff brought an action against defendant for a divorce. The trial was had in August, 1901, and resulted in a decree in favor of the plaintiff.

Pending the action, and upon application filed by the defendant on the 28th day of February, 1899, the court ordered the plaintiff to pay the defendant certain alimony and expenses of the suit and $600 for her attorneys “as a retainer. ” The order further provided: “And the matter of requiring the plaintiff to pay additional sums to the defendant for counsel fees during the pendency of the action is reserved for the further action and order of the court herein. And it is further ordered that the defendant shall have leave to hereafter apply to the court for an order against the plaintiff requiring him to pay an additional sum or sums of money to the defendant for her support and to defray the expenses of defending said action and prosecuting a cross-bill therein, and for attorneys’ fees. And the court hereby reserves unto itself the right at any future time to make any further or additional 'order with reference toi tbe support of tbe defendant and to tbe payment of money for counsel fees and to‘ defray the expenses of defendant in said action.” On August 1Í, 1901, which was prior to the completion of the trial, defendant made a further application for attorney’s fees and certain expenses. The court allowed the expenses, but denied the application for attorney’s fees, and made the following recital in the order: “Reserving- the right to allow attorney’s fees after the trial.” After the entry of the decree, and on or about September 28, 1901, defendant made a further application for an allowance sufficient to pay costs, of the trial remaining unpaid; the cost of preparing and presenting motion, for a new trial; to pay attorney’s fees “for services rendered in the case including the trial thereof, and to pay them for services to be rendered in preparing, presenting and serving a motion for a new trialand to pay sufficient to support the defendant during the pendency of the action. The ápplication then recited: “This motion is made and based upon the affidavit of the defendant and the affidavits of John J. McHatton, and petition heretofore filed on behalf of the defendant herein with reference to the matter of alimony and counsel fees, and an allowance to the defendant for the defense of this action and the prosecution of her counterclaim; also upon the-former order of the court made herein and defendant’s bill of exceptions filed- September 24, 1901, and upon the affidavits filed herewith, copies of which are herewith served upon the plaintiff; and will be heard upon the same and such other affidavits or oral testimony as may be introduced upon the hearing of the same.” This motion came on for hearing on November 9, 1901. The defendant offered proof as to1 the reasonable value of attorney’s fees for the; trial of the case and for the preparar tion and presentation of a motion for a new trial, and also' offered'proof that the cost of the transcript of the testimony for use in the preparation of a statement on motion for a new trial or bill of exceptions would be $325. Proof was also offered that defendant’s counsel had given notice of motion for a new trial. Ilie court made an order upon bearing this application, allowing the $.325 for a transcript of the testimony, and as to the attorney’s fees ordered as follows.: “That the defendant be, and she is hereby, allowed the additional sum of one thousand dollars for services of her counsel, MeHatton & Cotter, performed from the time of their appearance as counsel herein and for services by them in preparing and presenting motion for a new trial in this court and upon appeal in said cause in the supreme court of this state.” Flora this order plaintiff appeals.

It will be noticed: that attorney’s fees were allowed by this order for three purposes, viz.: (1) For past services in conducting the trial of the case; (2) for services to be rendered in preparing and presenting the motion for a new trial; and (3) for services to be rendered in the preparation and presentation of an appeal from, the judgment.

It seems necessary to a final,decision of this appeal that the court first decide under what circumstances and for what purpose a district court might make an order allowing costs, expenses and attorney’s fees after the entry of final judgment.

Section 191 of the Civil Code provides, among other things: “While an action for divorce is pending the court or judge may, in its or his discretion, require the husband to pay as alimony any money necessary to enable the wife to support herself or her children, or to prosecute or defend the action.” This is the only statutory authority giving power to a court to grant-alimony and expenses to a wife.

Section 1895 of the Code of Civil Procedure provides: “An action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment is. sooner satisfied.”

Section 1130 of the Code of Civil Procedure provides that: “Whenever an appeal is perfected, as provided in the preceding sections of this chapter, it stays all further proceedings in the court below upon the judgment or order appealed from, or upon tbe matters embraced therein, * * ■ * but the court below may proceed upon any other matter embraced in the action and not affected by the order appealed from.”

All the sections above quoted are referred to in the opinion of this court on an original application made by defendant to this court to compel plaintiff to pay attorney’s fees, on the appeal, costs for preparing transcript and printing brief in the supreme courts and maintenance pending the appeal. (Bordeaux v. Bordeaux, 26 Mont. 533, 69 Pac. 103.) This court said: “Whether the district court or judge has power, pending appeal, to' require the husband to pay’ to the wife money necessary to. prosecute or defend against an appeal in a divorce case is a question reserved as unnecessary to be decided.” The court then decided that in the exercise of appellate jurisdiction it had no such power. Mr. Justice Pigott discusses the power of the courts of Montana in divorce cases, and in this discussion uses the following language when speaking of the appellate jurisdiction of this court in such cases: “The action — the entire case — is not transferred by appeal. Questions of law only are presented on appeal, even where the relief sought is equitable in character. The action itself is still pending in the lower court. On an appeal only questions of law are tried; neither the mere weight of evidence in substantial conflict nor the credibility of the witnesses is re-examined, nor is evidence adduced. Except in so far as affected by the appeal, the cause remains, in the district court, the primary forum.”

We are of the opinion that under the above-quoted provisions of the statute the district court had jurisdiction and power, notwithstanding the judgment, at any time prior to the determination of the action on appeal from the judgment, or prior to the expiration of the time of appeal, to require the husband to pay any money necessary to enable the wife to. support herself and to further prosecute or defend the action. (BE parte Winter, 70 Cal. 291, 11 Pac. 630; Larkin v. Larkin, 71 Cal. 330, 12 Pac. 227; Bohnert v. Bohnert, 91 Cal. 428, 27 Pac. 732; McCarthy v. McCarthy, 137 N. Y. 500, 33 N. E. 550; McBride v. McBride, 119 N. Y. 519, 23 N. E. 1065; Watkins v. Watkins, 66 Mo. App. 468; State ex rel. Clarkson v. St. Louis Ct. of App., 88 Mo. 135; State ex rel. Gercke v. Seddon, 93 Mo. 520, 6 S. W. 342.)

It is well settled that the court below has no power, after trial and judgment in the case, to compel the husband to provide the wife with money to pay for past services of attorneys, or for expenses incurred in the trial of the case; that the necessity mentioned in the statute refers to prosecuting and defending the action in the future. Therefore, after the case has been tried, and the judgment has been entered, no such necessity can exist. (Lacey v. Lacey, 108 Cal. 45, 40 Pac. 1056; Loveren v. Loveren, 100 Cal. 493, 35 Pac. 87; McCarthy v. McCarthy, 137 N. Y. 500, 33 N. E. 550; Newman v. Newman, 69 Ill. 167.)

There is one apparent exception to the principle announced by the last decisions cited, and that is that the district court may allow the wife money with which to pay such past expenses, when it becomes necessary to make such payment in order to enable her to1 continue her prosecution or defense. (McCarthy v. McCarthy, 137 N. Y. 500, 33 N. E. 550; Loveren v. Loveren, 100 Cal. 493, 35 Pac. 87; Beadleston v. Bea dleston, 103 N. Y. 402, 8 N. E. 735.) But, in order to apply the doctrine announced in the the cases last cited, there must always be a showing of this necessity. The only attempted showing, as disclosed by the record, is that upon the applications made to the court pending the trial for allowance of attorney’s fees the court refused to allow them, and reserved the right to allow them after the trial. We do not believe that this was a showing of a necessity for their allowance, under the above authorities, but only an excuse for not insisting upon their allowance before final judgment was entered. The court below evidently refused to make the allowance, further than the retainer above mentioned, on the theory that he was unable to tell what the reasonable value of such fees would be until after the trial of the case, and that he would reserve the right to grant sucb fees until that time. But, if the law did not allow him to1 order their payment after the trial and entry of judgment, he could not make the reservation effective.

Under the above authorities we are clearly of the opinion that the defendant, by her showing, did not bring her application within the exception recognized, and that the court below therefore erred- in allowing attorney’s, fees, for past services, after the judgment had. been entered.

There is. no doubt that the court below had full authority and power to- allow reasonable attorney’s fees for services to be rendered in the preparation and presentation of a motion for a new trial, the proof disclosing that notice of intention toi move for a- new trial had been given. The mere fact that judgment passed against defendant upon a hearing of the case did not prevent her from making the motion for a new trial. Nor did it prevent the court from' allowing her the costs, expenses and attorney’s fees necessary to the making of said motion, if a proper showing had been made to the court for that purpose. We do not deem it necessary to state what that showing must be, but it is sufficient for the purposes of this opinion to say that the showing made before the court in that regard was, in our judgment, not sufficient.

Neither is there any doubt under the above authorities that the court below, after an appeal had been taken, had full jurisdiction to make an order compelling the plaintiff to pay to the defendant the necessary costs and expenses incident to the preparation and presentation of such appieal; but the court below had no power to make such order until after the appeal w'as. taken. A motion for a new trial was pending. The court could not tell in advance whether this motion would be overruled or granted. If granted, there would be no occasion for an appeal. The court therefore was in error in making the order complained of, because included in that order was an aJlow|ance for attorney’s fees for services to be performed in the preparation and presentation of an appeal.

The only further allowance complained of is that of $325 for obtaining a copy of the testimony given at the trial for use in me preparation, of a statement on motion for a. new trial or bill of exceptions. Of course, under tbe above authorities, the defendant would have a right to whatever allowance might be necessary to enable her to prepare her statement on motion for a new trial or bill of exceptions, but it was incumbent upon defendant to show the necessity for such allowance. Thus, motion for a new trial might have been based upon bills of exceptions, settled during the trial, in which case there would be no necessity of obtaining a transcript of the entire testimony taken at the trial. We do not believe that the showing made in the court below upon this application was sufficient to authorize the court to. make the allowance of $325 for this purpose.

We are therefore of the opinion that the order appealed from should be reversed, and remanded to the lower court, with permission to- the defendant to make such further showing as she may be advised, not in conflict with this opinion.

Pee, Cueiam:.

Por the reasons stated in the foregoing opinion, the order appealed from is reversed and remanded, and the lower court is hereby directed to permit the defendant to make such further showing as she may: be advised is proper, not in conflict with the foregoing opinion.


author: MR. COMMISSIONER CALLAWAY Pee, Cueiam:.'

text:
    HOGAN, Appellant, v. KELLY et al., Respondents.
    (No. 1,767.)
    (Submitted January 13, 1904.
    Decided February 1, 1904.)

      Action to Recover Possession of Property — Bill of Sale — Parol Evidence — Agent’s Declarations — Irrelevant and Incompetent Evidence.

    1. In an action to recover possession of certain property, tbe bill of sale under which plaintiff claimed certain buildings, described the property as “one store building and dwelling house attached (new) ; one warehouse (new) ; one barn (new) ; and all fixtures and attachments thereunto belonging,” etc. The defendants denied plaintiff’s ownership or right of possession, denied their wrongful detention or that the buildings could be removed from the land, and alleged tnat they themselves were the owners and in possession of the property. Held> that parol evidence that the parties did not intend to include the buildings in the bill of sale was inadmissible.
    2. On an issue as to the title »to property under a bill of sale, written declarations of the vendee's agent representing her in the purchase, made several months after the- bill was executed, but before the property was resold, to the effect that the vendee did not claim the property, and that it was not included in the bill, are hearsay and inadmissible, the uncontradicted evidence showing that the agent had no authority to sell or dispose of the property in any way.
    3. The written declaration of the agent of plaintiff’s vendor to defendants, wholly disconnected with the matter in controversy, and of an acrimonious character, tending to prejudice the jury against plaintiff, is erroneously admitted in evidence.

      Appeal from District Court, Deer Lodge County; Welling Nap ton, Judge.

    ActioN by Dave Hogan against T. L. Kelly and another. From a, judgment for defendants, and from an order denying a new trial, plaintiff appeals.
    [Reversed.

      Mr. J. H. Duffy, and Mr. Bernard Noon, for Appellant.

      Mr. George B. Winston, for Respondents.
   MR. COMMISSIONER CALLAWAY

prepared the opinion for the court.

Defendants bad judgment below. Plaintiff moved for a new trial, wbieb was denied. From the judgment and order denying his motion for a new trial, he has appealed.

It is stated in the amended complaint, in substance, that plaintiff is the owner and entitled to- the possession of certain frame building’s of the value of $¡800, situated on land belonging to the Northern Pacific Railway Company, in Deer Lodge county, and in which land neither jdaintiff nor defendant have any interest; that the buildings are not affixed or permanently attached to the land, and can be removéd without injury; that the defendants unlawfully and wrongfully withhold and detain the possession of the said buildings from the plaintiff; that prior to tbe commencement of -the action tbe plaintiff demanded of tbe defendants, tbe possession of tbe same, but tbe defendants refused, and still refuse, to deliver them to plaintiff.

In tbeir answer defendants deny that plaintiff is tbe owner or entitled to tbe possession of tbe buildings, and deny that the defendants, or either of them, unlawfully or wrongfully withhold or detain tbe possession of said property or any part thereof; deny that tbe buildings can be removed from said land without injury. And defendants, for further and separate answer to tbe complaint of plaintiff, allege “that they are now and were at all times mentioned in plaintiff’s complaint and for a long time prior thereto the owners of and in possession of tbe property and every part therfeof mentioned in plaintiff’s complaint.”

Tbe case was tried to a jury. Plaintiff introduced evidence showing that tbe defendants and one James McGovern, who were partners doing business under tbe firm name of M. E. Kelly & Co., on April 26, 1900, executed a bill of sale to one Lulu E. Largey. Tbe consideration named in tbe bill of sale is $15,000 and tbe cancellation of all indebtedness due and owing to Lulu E. Largey from the vendors. Tbe property conveyed is described as follows: “One store building and dwelling bouse attached (new); one warehouse (new) ; one barn (new); and all fixtures and attachments thereunto belonging. All of said buildings being situated at Gold Creek station, Deer Lodge county, Montana. Also all goods, wares and merchandise now in and around said buildings (except tbe household furniture in said dwelling bouse attached to said store building), belonging to the said first parties, consisting of a stock of general merchandise, including all counters, scales, cash register, stove, safe, all other goods and property used in and around said store and useful in connection with said business. This bill of sale is intended to cover all goods, wares and merchandise of every kind, character and description belonging to said above named first parties, belonging to> and connected with tbe general store and mercantile business of tbe firm of M. E. Kelly & Co.”

On December 7, 1900, Lulu F'. Largey conveyed said buildings to the plaintiff, wbo demanded possession of tbem from tbe defendants, which was refused.

The defendants sought to defeat plaintiff’s action by showing that the contracting parties did not intend to include the buildings in the bill of sale. The evidence discloses that one Bernard Noon was Mrs. Largey’s business agent, and acted for her in the transaction which culminated in the bill of sale being executed to her. The court permitted defendant T. L. Kelly to recount conversations ,and understandings had between himself and Noon prior to* the signing of the bill of sale, and thereafter concerning what property was intended to be included therein.

It will be observed that the defendants did not plead any mistake or imperfection in the writing; neither was the validity of the bill of sale in dispute; nor was* there* any attempt to explain an extrinsic ambiguity, nor any attempt to establish illegality or fraud. There Avas no question concerning the construction of the instrument. Under the pleadings* in this case, such proof was inadmissible. (Sections 3132, 3136, Code of Civil Procedure, and Section 4430, Civil Code; Gaffney Mer. Co. v. Hopkins, 21 Mont. 13, 52 Pac. 561; Sanford v. Gates, Townsend & Co., 21 Mont. 277, 53 Pac. 749; York v. Steward, 21 Mont. 515, 55 Pac. 29, 43 L. R. A. 125; Ming v. Pratt, 22 Mont. 262, 56 Pac. 279; Armington v. Stelle, 27 Mont. 13, 69 Pac. 115, 94 Am. St. Rep. 811; Riddell v. Peck-Williamson H. & V. Co., 27 Mont. 44, 69 Pac. 241.)

Over plaintiff’s, objection defendants Avere permitted to introduce in evidence two letters and a so-called certificate written by Noon to T. L. Kelly several months after the bill of sale was executed and delivered, and before the* property was sold to plaintiff. The letters and certificate were to the effect that Noon did not claim the buildings for Mrs. Largey; that she was not the owner of them, and did not claim any interest, right or title in them; that"the buildings w:ere not included in the bill of sale, but Avere expressly reserved therefrom. The bill of sale was thus directly contradicted. In explanation of these letters and the certificate Noon testified that he had put the bill of sale 'away for safe keeping and had forg’otten its contents ; was misled by Kelly as to what was included in it. Both Mrs. Largey and Noon testified that the latter had no authority to sell or dispose of the buildings in toy way, and this testimony was uncontradicted.

To bind the principal, the declarations of an agent must be made within the scope of his authority, at the time of the transaction, and be a part of the res gestae. If made after the transaction is completed, they are in the nature of hearsay, and are mere narrations of a past transaction. (Moore v. Bettis, 11 Humph. 67, 53 Am. Dec. 771, and note; Garfield v. Knight’s F. & T. M. W. Co., 14 Cal. 36; Clunie v. Sacramento Lumber Co., 67 Cal. 313, 7 Pac. 708; Beasley v. San Jose Fruit-Packing Co., 92 Cal. 388, 28 Pac. 485; Birch v. Hale, 99 Cal. 299, 33 Pac. 1088; Luby al Hudson River Railroad Co., 17 N. Y. 131; Herbert v. King, 1 Mont. 475; Mechem on Agency, Sec. 714.)

It is apparent that the letters and certificate were nothing more than mere declarations made by the agent several months after the transaction to which they related occurred, and their reception in evidence was error.

Over plaintiff’s objection the court also permitted the defendants to- introduce in evidence an acrimonious letter written by Noon to T. L. Kelly on December 3, 1900. Under the rules above announced, it was inadmissible for any .purpose as being the mere declaration of an agent; but, in addition to that-, it was objectionable because it did not even remotely refer to any matter in controversy, so far as can be ascertained from its terms. Besides being wholly irrelevant and incompetent for any purpose, it- probably tended to prejudice the jury to plaintiff’s injury under the testimony already in evidence.

What we have said renders a discussion of the instructions unnecessary.

No question bas been raised by counsel as to1 whether the buildings in suit are real or personal property.

For the foregoing reasons;, we are of the opinion that the judgment and order should be reversed, and the case remanded for a new trial.

Pee, Cueiam:.'

For the reasons given in the foregoing opinion, the judgment and order are reversed, and the case is remanded for a new trial.


author: ME. COMMISSIONER POOEMAN Pee. CukiaM.

text:
    STATE, Appellant, v. MJELDE, Respondent.
    (No. 1,978.)
    (Submitted January 8, 1904.
    Decided February 1, 1904.)

      Criminal Law — Indictment — Duplicity — Mode of Raising Question — Larceny—Property of Different Owners — Single Act of Taking — Appeal by State — Reversal—Remand.
    1. An objection to an information for grand larceny that it joins several distinct offenses, each of which alone would constitute petit larceny, is addressed to the jurisdiction of the court, rather than to the form of the information, and therefore may be raised by an objection to the introduction of any evidence and a motion to compel an election.
    2. Three persons placed at the same time individual sums, less than $50, on the table of an agent, who by one act collected them, placed them in his pocket, and afterwards appropriated them to his own use. Held, to constitute a single offense of grand larceny, so that an information charging chat he, as the agent of such three persons, had money in his possession in the aggregate of the sums belonging to each, the specific ownership being alleged, and appropriated it to his own use, was not bad for duplicity.
    3. Where on appeal by the state — in a criminal ease — from an order of the trial court directing a verdict for the defendant, the supreme court reverses such order, the case will be remanded for a new trial.

      Appeal from District Court, Sweet Grass County; Frank Henry, Judge.

    B. M. Mjelde was informed against for grand larceny, and from a directed verdict of acquittal the state appeals.
    Reversed.

      Mr. James DonovanAttorney General, for the State.
   ME. COMMISSIONER POOEMAN

prepared the opinion for the court.

This is an appeal by the state from an order directing the jury to find for the defendant. The defendant was informed against and tried for grand larceny. The information charges the offense as follows: “That at the county of Siweet Grass, in the state of Montana, on or about the 18th day of February, A. D. 1903, and before the filing of this information, the said B. M. Mjelde was the agent of Olaus Mydland, Syvert Myd-land and Lars Grosfield, and then and there had in his possession, custody and control; as such agent of the said Olaus Myd-land, Syvert Mydland and Lars Grosfield, money to a large amount, to-wit, to the amount of one hundred and two' dollars, and of the value of one hundred and two dollars, a'more particular description thereof being to informant unknown, forty dollars of the above-described money being the property of and belonging to said Olaus Mydland, and forty dollars of the above-described money being the property of and belonging .to said Syvert Mydland, and twenty-two dollars of the above-described money being the property and belonging to Lars Grosfield, the the aggregate of said sums of money, to-wit, the said amount of one hundred and two dollars, being then and there received by the said defendant, B. M. Mjelde, as such agen,t aforesaid, at one and the same time, from the said Olaus Mydland, Syvert Mydland and Lars Grosfield, and then and there he, the said B. M. Mjelde, as such agent aforesaid, did willfully, unlawfully and feloniously appropriate to his own use and steal said money to the amount of one hundred and two dollars, with the intent then and there to deprive and defraud,” etc.

At the trial the defendant objected to the introduction of any evidence, “for the reason that said information states three separate and distinct offenses.” The court overruled this objection at the time, reserving final ruling thereon until the conclusion of the state’s case: The defendant then moved the court to compel tbe state toi elect wbicb one of tbe three distinct offenses stated in tbe information it would proceed upon. This motion was also overruled.

Tbe evidence introduced by tbe state was to tbe effect that Olaus1 Mydland, Syvert Mydland and Lars Grosfield went- into tbe office of tbe defendant, and each paid to bim tbe separate sum of money named in tbe information, wbicb was to be sent by tbe defendant to tbe land office as filing fees on three distinct pieces of land; that sucb payment was made by all of tbe said parties placing their money on tbe table in tbe office of defendant at tbe same time, and that when tbe whole sum was laid on tbe table tbe defendant took tbe same at one time, “put a string on it, and put it in a paper,” and “put it in bis pocket;” that defendant did not remit the same, but appropriated it to bis own use. It was shown that no one of tbe parties who made tbe joayment bad any interest whatsoever either in tbe money paid by either of tbe other parties or in tbe land for which tbe money was paid. At tbe close of tbe state’s evidence tbe court directed a verdict for tbe defendant, and tbe jury thereupon returned a verdict of not guilty.

No appearance is made in this court by or on behalf of the respondent. The- state insists that defendant was properly charged with grand larceny; that objections for duplicity, where tbe same appear on tbe face of the information, must be raised by demurrer; and that, if tbe information does not allege facts sufficient to constitute grand larceny, tbe district court bad no jurisdiction, and should have dismissed tbe case without trial. Sections 1922, 1930 and 2200 of tbe P'enal Code, State v. Mahoney, 24 Mont. 281, 61 Pac. 647, and State v. Lee, 33 Oregon, 506, 56 Pac. 415, are cited by tbe state as supporting tbe contention that a demurrer should have been filed. Tbe objection made, however, is addressed to tbe jurisdiction of the court, rather than to> tbe form of the information, and tbe law cited does not apply. The objection made is sufficient to raise tbe question as to whether tbe offense of grand larceny is stated in tbe information.

Section 880 et seq. of the Penal Code contains the definition of larceny, which is, in substance, that every person who, with the intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker, or of any other person, takes property from the possession of another, or, having in his-possession property of another, appropriates the same to his own use, or that of any other person other than the one entitled to it> is guilty of larceny. When the property taken is of a value exceeding’ $60, or when, it is taken from the person of another, it is termed grand larceny; otherwise, petit larceny. Under this section what at common law constituted the offenses of larceny and embezzlement are merged in the one offense of larceny, and thereby the distinction formerly recognized between cases where the taking was unlawful and those where the possession had been lawfully obtained is abolished.

Property must have an owner before it is the subject of larceny, but this statute does not define the character of that ownership — whether it is general or special, joint or several, absolute or qualified, arises from title or from possession. The particular ownershipi of the property stolen does not fall within the definition, and is not of the essence of the crime. Neither the legal nor moral quality of the act is affected by the fact that the property stolen, instead of being owned by one, or by two or more jointly, is the several property of different owners. The gist of the offense is the felonious taking or appropriation. The grade of the offense is determined by the value of the property taken. The time and place of the taking and the ownership, of the thing taken must be alleged in the information, not to give character to the act of taking or appropriation, but merely by way of description. The fraud is against the owner; but the crime, of which the fraud is one ingredient is against the state, and not against the owner, owners or ownership. The prosecution is conducted in the name and by the authority of the state. The owner of the property stolen is not a party thereto.

Tbe great weight of authority sustains the principle that, where several articles of property belonging either to one or several owners are taken at the same time and place, the act is a single transaction, and constitutes but one larceny. Although the information may charge the taking of a particular article or all the articles stolen, a trial for-stealing a part is a bar to any subsequent action for the stealing of the remainder. This very question was once presented.to this court in State v. English, 14 Mont. 399, 36 Pac. 815, but was not directly decided. The defendant in that case was convicted of stealing a cow belonging to Lars Waldeland. Prior to that time he had been arrested and tried for stealing a steer belonging to Charles Carthrae. The facts appeared to be that defendant and one other first cut out the steer from Carthrae’s herd, drove it some distance, and left it, and in about half an hour afterward they went to; the herd of Waldeland, about half a mile distant, and took the cow. The court held that the taking of these two animals. was at different times and places, under different circumstances, and from different owners, and that under the circumstances each was in itself an absolute^ complete and independent offense.

In Hoiles v. United States, 3 MacArthur, 370, 36 Am. Rep. 106, the court, in discussing, this very principle, quotes with approval 2 Puss, on Or. 177: “Put it seems that if the property of several persons, lying together in one bundle, or chest, upon the same table, or even in the same house, be stolen together at one time, the value of the whole may be put together, for such stealing is one entire felony.” The court also quotes 1 Hale’s P. C. 531: “But it seems to me that if, at the same time, he steals goods of A. to the value of sixpence, goods of B. to. the value of sixpence, and goods, of C. to the value of sixpence, being perchance-in one bundle, ■ or upon a table, or in one shop-, this is grand larceny, because it is one entire felony, done at the saane time, though the persons had several properties ; and therefore in one indictment they make grand larceny.”

In Lorton v. State, 7 Mo. 55, 37 Am. Dec. 179, the court says: “The stealing of several articles of property at the same time and place constitutes but one offense against the laws, and the circumstance of several ownerships cannot increase of mitigate the nature of the offense.” This decision is approved in State v. Morphin, 37 Mo. 373. See, also, State v. Wagner, 118 Mo. 626, 24 S. W. 219.

In State v. Larson, 85 Iowa, 659, 52 N. W. 539, it is said that an indictment charging the larceny on a certain day of thirty-two bushels of flaxseed in sacks, the properly of one L., and forty-eight bushels of flaxseed, the property of one P., is not objectionable upon the ground of duplicity.

In State v. Mickel et al., 23 Utah, 507, 65 Pac. 484, the defendant was indicted, in one count for stealing twenty mares and three horses, the property of several owners, stating the names of the' several owners, and specifying the number of animals belonging to each. The court held that the indictment was not bad for duplicity. To'the same effect are the following: United Staies v. Scott (C. C.), 74 Ped. 213; State v. Douglas, 26 Nev. 196, 65 Pac. 802; State v. Colgate, 31 Kan. 511, 3 Pac. 346, 47 Am. Rep. 507; Furnace v. State, 153 Ind. 93, 54 N. E. 441; People v. Johnson, 81 Mich. 573, 45 N. W. 1119; Haywood v. Territory (Wash.), 2 Pac. 189; State v. Hennessey, 23 Ohio St. 339, 13 Am. Rep. 253; State v. Nelson, 29 Me. 329; Fulmer v. Commonwealth, 97 Pa. St. 503; State v. Newton, 42 Vt. 537; Alexander v. Commonwealth, 90 Va. 809, 20 S. E. 782; State v. Merrill, 44 N. H. 624; State v. Cooper, 13 N. J. Law, 361, 25 Am. Dec. 490; Roberts v. State, 14 Ga. 8, 58 Am. Dec. 528; Nichols v. Commonwealth, 78 Ky. 180; Bushman v. Commonwealth, 138 Mass. 507; Gravatt v. State, 25 Ohio St. 162; Lowe v. State, 57 Ga. 171; State v. Warren, 77 Md. 121, 26 Atl. 500, 39 Am. St. Pep. 401; Waters v. People, 104 Ill. 544; Kelly v. State, 7 Baxt. 323; Wilson v. State, 45 Texas, 76, 23 Am. Rep. 602; Papalje on Larceny, par. 117.

In State v. Reinhart, 26 Oregon, 466, 38 Pac. 822, it is said that, where confidential relations exist, the aggregate amount-taken by the defendant, though at different times and in different amounts, may be considered as one act, and as constituting one offense.

Whether, under the provisions of the Penal Code, the acquittal of the defendant on the former trial is a bar to a second trial, is a question not now before the court; but the procedure heretofore observed by this court where the contentions of the state on appeal from a similar order were sustained has been to remand the case for a new trial. (State v. Herron, 12 Mont. 230, 29 Pac. 819, 33 Am. St. Rep. 576, opinion on rehearing page 300, 12 Mont., 30 Pac. 140. See, also, Section 2324, Penal Code.)

We recommend that the order appealed from be reversed, and the case remanded for a new trial.

Pee. CukiaM.

Por the reasons stated in the foregoing opinion, the order is reversed, and the case remanded for a new trial.


author: MR. COMMISSIONER POORMAN Per CuriaM.

text:
    EASTERLY, Respondent, v. JACKSON, Appellant.
    (No. 1,758.)
    (Submitted January 12, 1904.
    Decided February 1, 1904.)

      Beal Estate — Vendor and Purchaser — Oral Agreement— Validity — Merger in Written Contract ■ — ■ Consideration— Partial Payment.

    1. Where one who purchased land from joint owners thereof agreed to pay one of them a sum in addition to that named in the written contract of sale, to induce him to execute the contract, such agreement, being nullified by the written contract, does not constitute any consideration for a subsequent written agreement whereby the purchaser agreed to pay such sum.
    2. Where joint owners of land entered into a contract for its sale, agreeing to execute deeds in escrow on the first payment being made, the refusal of one of them to sign the deeds on such xiayment was not a valid consideration for the purchaser’s promise to pay him an additional sum.
    3. Where joint owners of land made a contract to sell and deed it to the purchaser or persons whom he might designate, an oral agreement by the purchaser to pay an additional sum to one of the vendors cannot be made the basis of a recovery against the purchaser as an agreement for sharing the profits of a resale of the land, unless it is resold for a higher price than that which was to be paid under the original contract.
    4. where a written instrument is sued on as an original and complete contract, not as an admission of a balance due on any other contract, and the complaint alleges that no part of the sum due under it has been paid, a payment which the plaintiff admits "the defendant has made is no part of the amount expressed in the contract sued on, and hence it cannot be relied on to support a previous oral agreement as the basis and consideration of the written contract.

      Appeal from District Court, Broadwater County; W. L. Holloway, Judge.

    ActioN by Allen M. Easterly against James E:. Jackson. Erom a judgment in favor of plaintiff and an order denying a new trial, defendant appeals.
    Reversed.

      Messrs Walsh <& Newman, and Mr. Milton 8. Gunn, for Appellant.
    At the request of the defendant, the court gave the jury instruction No. 7. In this instruction, so given by request, the jury was told that the money must be actually paid, or something else of value received by the creditors, under an express agreement to accept it as payment, and if a person gave his note, check or draft, it did not constitute payment unless there was an express agreement that it should be received as payment and in satisfaction of the dqbt; and that the burden of proof was upon the plaintiff to show, by a preponderance of evidence, that the $12,500 was paid, and that if not paid in money, the check or draft received was received under an express agreement to accept the same as payment in satisfaction of the debt. This instruction correctly states the law, and is supported by innumerable authorities. (Millbury v. Hutzborg, 55 N. Y. S. 743; Starling v. Wyatt, 27 S. 526; Atlas S. S. Co. v. Columbia Land Co., 102 Eed. 358; Cushman v. I. L. & B. A. S. L. N., 32 S. E. 259; Woodward v. Holmes, 41 Atl. 72; Dellapiazza v. Foley, 44 Pac. 727; People's Bank v. Gifford, 79 N. W. 63; Good v. Singleton, 40 N. W. 359; Bibb v. Snodgrass, 11 S. 880; Nash v. Meggett, 61 N. W. 283; Washington Slate Co.
      v. Burdick, 62 N. W. 285; Barton v. Hunter, 59 Mo. App. 610; Johnsons. Barills, 41 Pac. 656; Hamill v. Bank, 22 Pac. 438; Comtoir Dep. v. Dresbach, 20 Pac. 28 ; Joycelyn v. Giese, 36 Atl. 680; Collins v. Bush, 43 Atl. 378; Estey v. Burbam, 68 N. W. 290; Estey v. United States, 71 Fed. 228; Tyner v. Stoops, 71 Am. Dec. 341; Stenhart v. Bank, 29 Pac. 717.)
    It matters not whether the plaintiff refused to deposit the deed in escrow, or sign the escrow agreement, until the contract set forth in the complaint was delivered to him. He was legally bound to execute the deed, and deposit it in escrow, according to the contract of December 14th. Refusing to do that which he was legally bound to do does not constitute a consideration and will not support a contract. (Easterly Harvesting Mach. Go. v. Pringle, 59 N. W. 804; Wharton on Contracts, Sec. 500-; Clark on Contracts, p. 184; Jones v. Bisley, 32 &. W. 1027; Spencer v. McLean, 50 N. E. 769; Arend v. Smith, 45 N. Ev 872; Weymer v. Overseers, 104 Pa. 317; Widmen v. Brown, 83 Mich. 241; Keffer v. Grayson, 76 Va. 517; Tucker v. Bartlett, 85 Mo. 114; Smith v. Phillips, 77 Va. 548; Phoenix v. Rink, 110 HI. 538 ; Gobb v. Cowdrey, 94 Am. Dee. 370.) The alleged oral agreement to pay the $3,000 was superseded hy the written agreement, which alone remains as the agreement of the parties. (Civil Code, Secs. 2186, 2204, 2281, 2185, 2342; Jungerman v. Bovee, 19 Cal. 355; Goldman v. Davis, 23 Cal. 256; Nicholson v. Tarpey, 89 Cal. 617; Beal v. Fisher, 95 Cal. 568; Bradford Mott Go. v. Joost, 117 Cal. 211, 48 Pac. 1083; Fisher v. Briscoe, 101 Mont. 124.)
    The contract is not to pay a certain sum upon a certain date, or upon the happening of a certain event; but to pay a certain sum out of and from another sum when received, and to be received fromi another person. All the authorities hold that, unless the money is actually received from the' source mentioned in the contract, the contract cannot be enforced. (Glyddon v. McKinstry, 28 Ala. 408; Wadlington v. Govert, 51 Miss. 631; Growell v. Plant et al., 53 Mo. 145; Kelley v. Bronson, 26 Minn. 359'; Bagby v. Gohen et al., 50' Pac. 4;
      Mercantile Company v. Chapman, 78 Mo. App. 616; Pettus County v. Kingsbury, 17 Mo. 479; Snell v. Cheney, 88 Ill. 258.)

      Messrs. Shober & Basch, fox* Respondent.
    Cited: Civil Code, Secs. 2003, 2169, 2170; Code of Civil Procedure, Sec. 1080; 16 Ehcy. of PL & Pr. pages 208, 209; Loring v. Allen, 50 N. T. Supp'. 312; Brew. Co. v. Fromme, 54 N. T. Supp. 833; Gregory v. Hitchcock, 63 N. T. Supp. 975; Boley v. Griswold,, 1 Mont. 558, 554; Ming v. Truett, 1 Mont. 327; Knox v. Bossi, 48 L. R. A. 305.
   MR. COMMISSIONER POORMAN

prepared the opinion for the court.

This is an appeal by defendant from a judgment entered on a vei’dict in favor of plaintiff and from an order overruling defendant’s motion for a new trial.

The facts appearing in the record are, substantially: That on the 14th day of December, 1899, Allen M. Easteidy (this plaintiff), James J. Mayne and Allen Easterly, Jr., agreed with James E. Jackson (this defendant) that for the sum of $75,000 they would sell and convey to Jackson, “or to such person or persons as he may designate,” certain mining property. $7,500 of the purchase price was to be paid on or before December 31, 1899, $12,500 on or before August 15, 1900, and the remaining $55,000 on or befoi’e February 15, 1901. That upon the making of the first payment the defendant should have the possession of the property, with the privilege of working the same, except one tunnel. That he should deposit 25 per cent, of the smelter returns from all ore exti’acted as fast as the same was realized, for the benefit of grantors, which sums were to be deducted from the final payment. Deeds were to be deposited in escrow with the Union Rank & Trust Company of Helena. Time was made the essence of the contract, and forfeiture was to be the result of any violation of its terms. . It further appears that the real consideration wbicb the owners were to receive for the property was $<60,000, and that the remaining $<15,000‘ was a profit to Jaelcson for his expenses and compensation ' in making the sale of the property. J ackson was to receive $.2,500 from the first payment made, and all of the $12,500 payment due August 15, 1900. On December 29, 1899, the first payment of $7,500’ was made, and $2,500 of the amount was turned over to J ackson, and deeds to the property were executed, and placed in the bank. The grantors then gave an order, addressed to the Union Bank & Trust Company, authorizing and requesting the bank “to pa.y to James E. Jackson, Agent, the sum of twelve thousand five hundred (12,500) dollars, being the second payment provided for (to be paid on or before August 15, 1900).” Thereafter, on August 8, 1900, Jackson gave his personal check for $12,500 to the cashier, payable to the bank, and presented the order of the said grantors for the payment to him of this amount. The bank accepted this check, with the sanction of Mayne> who was then present, indorsed it, “Pay to the order of James E. Jackson, Agent, without recourse,” and handed it back to Jackson, who receipted on the order as follows, after the same had been acknowledged by Mayne: “Pull receipt acknowledged. James E'. Jackson, Agent.” The bank then indorsed on the escrow agreement: “8-r — 8, 1900. Rec’d $12,500. U. B. & T. Co. G. L. R.” It further appears that this check was never presented for payment. These are substantially all of the facts, so far as they relate to the transactions, necessary to be considered at this time.

Plaintiff claims, however, that the instrument sued upon grew out of and is connected with these transactions. • This instrument is as follows: “Helena, Mont., Dec. 29, 1899. Allen M. Easterly, Helena, Mont. — Dear Sir: I hereby agree and promise to pay you Twenty-five hundred dollars out of &- from the sum of Twelve thousand five hundred (12,500) dollars for which yourself, James J. Mayne & A. Allen Easterly, Jr. have given me this day an order on the Union Bank & Trust Co. Said sum to be paid on or before August 15th 1900 in accordance with terms of agreement made & entered into on Dec. 14 1899 between above named parties & myself. In case said payment of $12,500 is not made then this agreement is null and void. [50’ cent Internal Bev. Stamp, Cancelled.] Tours truly, J. E'. Jackson.”

This instrument is attacked by defendant as being without consideration. To repel this attack, plaintiff testified that the actual consideration to' be paid to the owners for the property was $60,000, which was to be divided between plaintiff, his two sons, and James J. Mayne — $15,000 each — but that plaintiff had a verbal agreement with defendant, entered into prior to the execution of the agreement to convey, to the effect that plaintiff was to receive $3,000’ additional; that $500 of this amount was to be paid when the first payment was made on the contract of conveyance, and $2,500 when the second or August payment was made; that defendant did pay the $500, and that plaintiff refused to sign the escrow agreement and deeds until defendant executed and delivered to him the instrument sued upon. With reference to this verbal agreement the plaintiff testifies: “The conversation between Mr. Jackson and myself in regard to entering into this agreement of December 14th was that I would not part with my interest unless I got $3,000 more; that I had the largest interest, and I would not let it go for less than $18,000; and that I would sign no papers, the escrow agreement or deed, transferring that property, until I was secured by this contract.”

The contract to convey was exected in a room at Blacker’® Hotel at Badersburg. All the parties were present. The verbal contract, plaintiff says, was entered into on the same day, and immediately prior to the signing of the written contract to convey. Plaintiff says: “There was nothing said about that $3,000 in that room that day in the presence of Mr. Mayne.” Again, plaintiff says, “My co-tenants did not know anything about this side deal I was making with Jackson.” This $500 was paid to Easterly on December 29th, and, though Mayne was present, be was not permitted to know anything about it; and Mayne says in bis testimony that he did not know anything about this “side deal” until some time in August, 1900, and he further refers to it as “rake-off” and “boodling.”

It appears from the undisputed testimony and the admissions of all the parties that Jackson was the common agent of all the owners for the purpose of effecting a sale of the property, although he was at the same time given the option to purchase it himself. This verbal contract between the plaintiff and this common agent, secretly entered into and purposely concealed, by which the plaintiff seeks to obtain an advantage over his partners with reference to the consideration to be paid for this mining property, trenches dangerously near to the forbidden ground of fraud, and of being void as against public policy.

This verbal contract, if ¿ contract at all, under the provisions of Subdivision 5, Section 2185, of the Civil' Code, related to the sale of land, and was superseded by the subsequent written agreement relating to the same matter, under Section 2186, Civil Code. (Armington v. Stelle, 27 Mont. 13, 69 Pac. 115, 94 Am. St. Rep. 811.) And this written agreement, when once entered into, could be altered by a contract in writing or by an executed oral agreement, and not otherwise. (Sections 2281, 2204, Civil Code; Bradford Investment Co. v. Joost, 117 Cal. 211, 48 Pac. 1083.) This oral agreement, being thus nullified by the subsequent written agreement, does' not constitute any' consideration whatever for the written instrument described in plaintiff’s complaint. (Fisher v. Briscoe, 10 Mont. 124, 25 Pac. 30.) The contract to convey entered into on the 14th day of December, 1899, made it the duty of the plaintiff, as well as of all the other grantors thereto, to sign the deed to the property therein described, and to deposit the same in the bank in escrow. The refusal, therefore, of the plaintiff to sign this deed or escrow agreement until the defendant had executed the instrument described in the complaint, was not a valid consideration for any contract, for the reason that plaintiff was already bound by Ms former agreement to execute these instruments. (Abbott v. Doane, Jr., 34 L. R. A. 33, note.)

If this yerbal agreement was only to the effect that the agent, Jackson, should share with the plaintiff, Easterly, the profits which Jackson made on the sale of the property,' then it would be necessary for the plaintiff, in order to recover, to show that there was a sale of the property for some amount exceeding the $60,000; and no such evidence appears in the record.

There is no contention in this case that this agreement to convey, dated December 14, 1899, fails to state the actual intention of the parties, and that instrument was introduced in evidence by the plaintiff to- sustain his case. The instrument set out in the complaint is sued upon as. an original and complete contract, and is not presented as an admission by the defendant of a balance due on any other contract, either verbal or written. It was explained by evidence referring to the'circumstances under which it was made and the matter to which it relates. Plaintiff insists that it was executed prior to the payment of the $500. The complaint contains a copy of the instrument, and then follows the allegation: “But defendant has not paid the same, nor any part thereof.” The $500 was therefore not a part of the amount expressed in the contract sued upon, for plaintiff, in his testimony, admits this payment, and judgment is demanded for the full amount expressed in the instrument.

There is a conflict in the evidence as to whether this verbal contract for the $3,000 was made prior or subsequent to the execution of the written agreement to convey on December 14, 1899; also as to whether the $500 was paid prior or subsequent to the execution of the instrument described in the complaint. The order in which these agreements were made, or the time of this payment with reference thereto, however, makes no difference in the legal question involved as to the consideration for the instrument constituting the basis of plaintiff’s cause of action. In considering this question we have taken only the admissions of the plaintiff as the same appear in his evidence.

It appearing from the record that there was no consideration whatever to support the instrument on which the action is based, we recommend that the judgment and order appealed from be reversed, and the case remanded for a new trial.

Per CuriaM.

For the reasons stated in the foregoing opinion, the judgment and order appealed from are reversed, and the case is remanded for a new trial.

Mr. Justice Holloway, being disqualified, takes no part in this decision.


author: ME. COMMISSIONER CLAYEEEG Per Curiam.

text:
    HENDRICKSON, Respondent, v. WALLACE, Appellant.
    (No. 1,771.)
    (Submitted January 15, 1904.
    Decided February 1, 1904.)

      Appeal — Equity—Instructions—New Trial.

    1. Appellant having at all stages of the suit insisted that it is an equity case, it will be treated as such; there being no ground for reversal.
    2. Instructions to the jury may not be complained of on appeal in an equity case.
    3* Denial of a new trial for insufficiency of the evidence will not be disturbed, there being a substantial conflict of evidence.

      Appeal from District Court, Deer Lodge County; Welling Napton, Judge.

    ActioN bj Louis J. Hendrickson against William Wallace. From an order denying a new trial, defendant appeals.
    Affirmed.

      Messrs. Napton & Napton, and Mr. George B. Winston, for Appellant

      Messrs. Rodgers & Rodgers, for Respondent.
    The appellant has proceeded in this case upon the theory that it is a case in equity, wherein the court had the right to disregard the verdict of' the jury. In this we think he is clearly mistaken. The parties were entitled to a trial by jury of .the question of damages set out in respondent’s second cause of action. The issues made upon this cause of action were the ownership of the land by plaintiff and respondent, the ownership of the water by plaintiff’ and respondent, the unlawful diversion of said water by the defendant and appellant, the damage to the real estate of the plaintiff and respondent thereby, and the amount of said damage. Every issue which was passed upon by the jury in determining this question, and every issue which was made by the pleadings upon this second cause of action, became immediately res adjudicaba between the parties, as soon as the verdict of the jury was returned, and those issues could only be retried after a new trial granted in accordance with the procedure in law cases. (Woolman v. Qarringer, 1 Mont. 539; Basey v. Gallagher, 20 Wall. 680; Ophir Mining Go. v. Carpenter, 4 Nevada, 949; Hughes v. Dunlap•, 91 Cal. 385; Constitution, Art. Ill, Sec. 23; Code of Civil Procedure, Sec. 1034; Yan Meet on Former Adjudication, Vol. 1, p. 512; 21 Am. & Eng. Ency. of Law, pp. 185, 193, 196; King v. Chase, 41 Am. Dec. 615.; Caperton v. Schmidt, 26 Cal. 495; Clem-mens v. Clemmens, 31 N. Y. 59; Marsh v. Morgan, 18 Mont. 19; Pomeroy, Eq. Jur. Sec. 116; Gates v. Kieff, Y Cal. 124; Mining Go. v. Blarhton, 14 Cal. 543; More v. Massini, 32 Cal. 594; Quigley v. Birdseye, 11 Mont. 3YY; Miles v. Dubay, 15 Mont. 340.)
   ME. COMMISSIONER CLAYEEEG

prepared the opinion for the court.

This is an appeal from an order overruling a motion for a new trial. The action was instituted by the filing of a complaint on November 10, 1898, for an injunction against the diversion of certain waters which the plaintiff claimed he had appropriated, and which he was entitled to use and enjoy, and for damages for the unlawful interference with his ditches and his right to the use of the waters. The prayer of the complaint was for a judgment for damages and a permanent injunetion.-Defendant answered this complaint, practically denying all the-material allegations of each cause of action, and, for further defense, set up an adverse use for twenty-one years, and the statute of limitations. To this answer, plaintiff replied.

' The issues thus joined were tried before the court with a jury in 1899, and on June 3d of that year the jury returned a general verdict in favor of plaintiff for $250 damages, and twelve special findings, covering all the issues in the case. A motion was made by the plaintiff for judgment upon this verdict and findings immediately after they were returned. The defendant made a motion to set aside the verdict and findings, and asked the court to make findings in lieu thereof,, and enter judgment in his favor. The court on May 20; 1900, adopted substantially all of the special findings, and the general verdict of the' jury, except the part allowing $250 damages, and 'substituted in the place thereof a finding that plaintiff was only entitled to $1 damages. On May 29, 1900, defendant gave notice of intention to move for a new trial.

Counsel for defendant has treated the action as one in equity. Counsel for plaintiff, on the other hand, has treated it as one at-law. If the action was one in equity, counsel for defendant was-required to give notice of his intention to move for a new trial within ten days “after notice of the decision of the court/’ (Section 1173, Code of Civil Procedure; Power v. Lenoir, 22 Mont. 169, 56 Pac. 106.) If the action was an action at law, counsel for defendant was required to give his notice of intention within ten days after rendition of the verdict. (Section 1173, Code of Civil Procedure.) If one of the two causes of action was in equity, and one at law, the notice of intention to move for a new trial could only apply to the equitable cause of-action, because, concededly, it was not given for more than a year from the rendition of the, verdict.

Pespofident still insists that the action is one at law, either in whole or in’part, and that the injunction is merely incidental to' the relief sought in the cause of action stated for damages, or that, at least, the cause of action stated for damages is clearly an action at law, and, as to that particular branch of the action, plaintiff below was entitled to a jury trial, and that the court could not modify the verdict for damages, except upon motion for a new trial; that notice of intention to move for a new trial was not given within ten days after rendition of the verdict, and therefore that there is no motion for a new trial upon the law side of the action; that, this being true, the verdict and judgment upon that cause of action are res adjudicate as to all the rights of the parties; and that this court cannot reverse the order of the court below made on defendant’s motion for a new-trial in the equitable proceeding.

Inasmuch as the appellant insists that the case was solely one of equitable jurisdiction, and has insisted so from the commencement of the suit, as disclosed by the record, he cannot complain if this court considers this appeal upon his own theory. We shall therefore not pass upon the important question as to the character of the suit brought — whether legal or equitable in whole or in part — but proceed to consider the case upon the theory advanced by the appellant.

Appellant only suggests to this court two errors as grounds for the reversal of the order overruling his motion for a new trial, and these are: First, insufficiency of the evidence to justify the findings 'and decision of the court, and the verdict and findings of the jury; second, errors at law occurring at the trial in giving of certain instructions. We will consider these alleged errors in the inverse order from that above stated.

If this was a suit in equity, the appellant cannot be heard to allege in this court that the court below^ erred in instructing the jury. This matter has been too often settled by the decisions of this court to be now questioned. (Lawlor v. Kemper, 20 Mont. 13, 49 Pac. 398; Wetzstein v. Largey, 27 Mont. 212, 70 Pac. 717.)

Counsel allege insufficiency of the evidence to support findings Nos. 1, 4, 5, 8, 6, 7, 10 and 12 of the jury, and findings Nos. 2, 4, 5, 6, 7, 8, 9 and 10 of the court. It is sufficient to say in regard to tbis alleged error that a careful perusal of the testimony included in the record discloses that it was very conflicting, and that the record contains evidence introduced on the part of the plaintiff, which, if uncontradicted, would clearly support the findings both of the jury and of the court. The rule of this court is well settled that, in cases, upon an appeal to this court from an order overruling a motion for a new trial, if the record discloses a substantial conflict of the evidence, it will not reverse the order appealed from. (Montana Ore Purchasing Co. v. Boston & Montana Consol. C. & S. Mining Co., 27 Mont. 288, 70 Pac. 1114; Stevens v. Curran, 28 Mont. 366, 72 Pac. 753 ; Nelson v. Great Northern Ry., 28 Mont. 297, 72 Pac. 642, and cases.)

We are of the opinion that the order appealed from should0 be affirmed, and so' advise.

Per Curiam.

Por the reasons stated in the foregoing opinion, the order appealed from is affirmed.