author: PER CURIAM. Mr. Chief Justice Brantly:

text:
    STATE ex rel. STATE BOARD OF EQUALIZATION, Relator, v. FORTUNE, Respondent.
    [No. 1,488.]
    [Submitted April 5, 1900.
    Decided May 7, 1900.]

      Taxation — State Board of Equalization — Powers—Constitution — Adoption of Provision from. Constitution of Another State — Interpretation.
    1. Under Constitution, Art. XII., Section 15, the state board of equalization is without power to increase or decrease the total valuation oí the property in the state as shown by the'abstracts transmitted to it by the county boards. (State ex rel. Wallace v. State Board of Equalization, 18 Mont. 473. Affirmed.)

    2. Under Constitution, Art. XII., Section 15, the state board of equalization is without power to increase or decrease the valuation of any specific class or classes of property above or below that fixed by the county boards as shown by the abstracts transmitted to the state board, — its authority being limited to raising or lowering the entire assessment of a county.

      3. Where, in construing a provision of the state constitution, it appears it was adopted from the constitution of another state, and that previous to such adoption the court of last resort of the parent state had placed on the provision an interpretation not clearly erroneous, the presumption is that the convention adopting the provision was conversant with, and designed to adopt, the interpretation given.
    Action by the State of Montana, on the relation of the State Board of Equalization, against Vincent Fortune, County Clerk and Recorder of Cascade County.
    Demurrer sustained.

      Mr. C. B. Nolan, Attorney General, for Relator.

      Mr. A. O. Gormley and Messrs. Carpenter <& Ca/rpenter, for Respondent.
   PER CURIAM.

— This is an original proceeding in mandamos by the state board of equalization as relator. The affidavit upon which the alternative writ was issued discloses these facts: The relator, at its annual meeting in July and August, 1899, inspected the duplicate statements of the assessments of the several counties of Montana transmitted by the county clerks in accordance with the provisions of Section 3842 of the Political Code; and, after an examination had been made by the members of the board for the purpose of ascertaining the true value of certain classes of personal property, increased the assessed valuation of such property by $745,629. The increased valuation of beef cattle was $36,191, of stock cattle $196,833, and of stock sheep $467,087. The values fixed by the relator were $40 for beef cattle, $22.50 for stock cattle, and $2.75 for stock sheep per head. In Cascade county beef cattle had been assessed at $30, stock cattle at $20, and stock sheep at $2.50 per head. The increase in this county made by the relator was $25,290 for beef cattle, $69,992.50 for stock cattle, and $41,871 for stock sheep. The increase was made without notice to the county clerk or any taxpayer. The county clerk of Cascade county refused to enter in the assessment book of that county the changes made by the relator, and the object of this proceeding is to compel him to do so. The defendant tests by demurrer the sufficiency of the facts stated.

The learned attorney general frankly states that the present proceeding practically amounts to a motion for a rehearing of the case of State ex rel. Wallace v. State Board of Equalization, which was decided on September 28, 1896, and is reported in 18 Mont, at page 473, 46 Pac. 266. The question submitted in that case was whether the state board of equalization possesses the power to increase the total of the assessed valuations of the counties of the state. That question is now again presented, together with the question of whether such board has the power to increase or decrease the valuation of any specific class or classes of property above or below that fixed by the county boards as shown by the abstracts and statements transmitted to the state board. In the Wallace Case this Court held that the state board of equalization has not authority to increase or decrease the total valuation of the property in the state as shown by the abstracts transmitted to it by the county boards. The attorney general earnestly and with ability argues that the former decision is erroneous. He insists that in the Wallace Case the constitutional provisions only were considered, the statutory provisions touching the board of equalization not having been called to the Court’s attention. It is apparent, however, that the decision was based upon the limitations ordained by Sections 9 and 15 of Article XII of the Constitution of Montana in respect of powers of the state board of equalization. Commenting upon Section 15, and comparing it with Section 15 of Article X of the Colorado constitution, the Court said: “We have been unable to find a constitutional provision exactly like ours in any of the states. The constitution of the state of Colorado contains provisions upon this subject so nearly like ours that it may be fairly claimed that they are substantially the same. In fact, it seems from their substantial similarity that our state may be said to have adopted the Colorado constitution upon this subject.” The opinion sets out- also Section 11 of Article X of the Colorado constitution, which, as to the subject then and now under consideration differs not at all from Section 9 of Article XII of our Constitution. The Court quoted liberally from the opinion of the Supreme Court of Colorado in People ex rel. Crawford, v. Lothrop, 3 Colo. 428, which interpreted said sections of the constitution of that state, and adopted the reasoning and the decision therein announced, saying: “These comments by the Colorado court upon the constitutional restrictions placed upon the powers of the state board of equalization of that state apply with exactness and force to our Constitution and the powers of the respondent board thereunder. We think the authority quoted above is absolutely decisive of the case at bar. We therefore are of the opinion that the respondent board, in increasing the total valuation of the property of the state as disclosed and fixed by the abstracts and statements transmitted to it by the assessors and county boards of equalization, acted without authority, and that its action in this respect was and is wholly void.5 ’

The Colorado decision was made in 1877, and Montana became a state in 1889; Section 15 of Article XII of our Constitution was adopted from the Colorado constitution after an interpretation thereof by the court of last resort in the parent state. That interpretation is not clearly erroneous. The presumption is, therefore, that the convention which framed the Montana Constitution was ‘ ‘conversant with and designed to adopt also’ ’ the interpretation previously given to the section in Colorado. (Am. & Eng. Ency. Law (2d Ed.), 935; Stadler v. First National Bank, 22 Mont. 203, 56 Pac. 111.) Nor has the supreme court of that state, in Ames v. People (Colo. Sup.), 56 Pac. 656, modified or recededfrom Peoples. Lothrop, and as late as January 17th of the present year the last-named case is reaffirmed in People v. Ames (Colo. Sup.), 60 Pac. 346.

The learned attorney general cites Sections 3690, 3800— 3802 of the Political Code as conferring upon the state board of equalization authority to do that which it attempted to accomplish; but statutes cannot clothe the state board with power denied to it by the fundamental law.

After a careful examination and consideration of the reasons advanced and the authorities cited, we are of the opinion that the conclusion announced in the Wallace Case should not now be disturbed or overruled. Since it was decided, two general elections and two sessions of the legislative assembly have been held, thereby affording opportunity for the people, if dissatisfied with the interpretation, to change the Constitution so as to cure the evils of which complaint is made; but no such amendment has been proposed. This remedy is yet available to them.

In the Wallace Case the court was inclined (as we are) to think that by the weight of authority the state board of equalization is without power to change the valuation of any class of property, its authority being limited to raising or lowering the entire assessment of a county. In the proceeding at bar it appears that the state board increased the valuation of three classes of personal property. Determination of the questions thus suggested, and of the further question whether the state board can raise or lower assessments without first giving notice of its contemplated action, is unnecessary to a decision, and an opinion thereon is reserved.

The demurrer is sustained, and a judgment will be entered dismissing the proceeding.

Dismissed.

Mr. Chief Justice Brantly:

I concur in the foregoing opinion solely on the ground of stare decisis. If the question involved were a new one in this state, I should be in favor of disregarding the construction given to the section of the constitution by the Supreme Court of Colorado in People v. Lothrop, 3 Colo. 428, and followed by this Court in State ex rel. Wallace v. State Board of Equalization, 18 Mont. 473, 46 Pac. 266, as demonstrably wrong.


source: Caselaw Access Project

author:
MR. CHIEF JUSTICE BRANTLY,
      Mr. Justice Hunt:

license: Public Domain

text:
    WASTL, Respondent, v. MONTANA UNION RAILWAY CO., Appellant.
    [No. 1,139.]
    [Submitted January 27, 1900.
    Decided May 14, 1900.]

      Second Appeal — Former Decision — Law of the Case — Statute —Repeal—Effect—Rights Accrued — Master and Servant— Personal Injuries — Negligence — Nonsuit — Questions for Jury— Yerdict— Conclusiveness — Limitation of Actions — • Review — Record—Presumptions—Lnstructions.
    1. On a second appeal the appellate court is bound by a former decision on points necessarily determined, but on matters not essential, or questions not considered, it is not bound.
    2. Compiled Statutes 1887, Sec. 697, giving to one employee injured by the negligence of a superior a right of action against the master, was repealed by Constitution, Art. XV, Sec. 11. Constitution Schedule, Sec. 9, provides that all causes of action, claims and rights existing at the time of the admission of the state into the Union shall be enforced and protected under the laws of the state. Held, that rights which had accrued under Section 697 prior to its repeal were preserved by the saving clause of the constitution to be enforced under the laws of the state.
    3. The evidence in an action for personal injuries showed that plaintiff was employed at defendant’s roundhouse as nighd helper, to do work required by his superior, the hostler in the yard. The hostler, desiring to move an engine to the roundhouse, directed plaintiff to turn the switch. Plaintiff had no torch (having been forbidden to use one), and it was so dark he could not tell, when he got off the engine to turn the switch, whether he was between the rails or not. While plaintiff was stooping to find the switch lever, without looking to see if the engine was coming, the hostler, without any signal, started the engine, to avoid a collision with an approaching train, and plaintiff was run down and injured. It was customary for the helper to signal the hostler by hallooing when the switch was turnéd, and plaintiff knew that it was defendant’s custom to run engines about the yard at night without signals or lights. Held, it was for the jury to say whether, under all the circumstances, defendant’s hostler was negligent, and whether plaintiff was guilty of contributory negligence, and that, therefore, a motion for nonsuit was properly denied.
    4. A verdict on conflicting evidence will not be disturbed on appeal where there is sufficient evidence to sustain it.
    5. An alleged error in admitting evidence in support of a cause of action to which the defense of the limitations has been properly interposed cannot be reviewed in the absence of a request for instructions directing the jury to disregard it.
    6. Code of Civil Procedure, Sec. 1080, Subds. 7. 8, provide that all instructions given must be filed together with those refused, and that the instructions given, and the modifications thereof, and the refusal to give instructions shall be deemed excepted to, and no bill of exceptions is required. Sections 1151,1176 and 1196 provide that instructions are deemed to have been excepted to, and no bill of exceptions is required, and that the judgment roll, containing among other papers “all orders, matters and proceedings deemed to have been excepted to without a bill of exceptions.” constitutes the record on appeal. Held, that instructions were properly in the record for review when made a part of the judgment roll, and that it was unnecessary to include them in the bill of exceptions.

      7. Under Code of Civil Procedure, Sec. 3266, SuM. 15, declaring that the prima facie presumption is “that official duty has been regularly performed,” it will be presumed, in the absence of a showing to the contrary, that instructions found in the proper place in a record on appeal, with proper indorsements thereon, were put there by the trial court and its officers.
    8. Instructions given or refused are properly in the record on appeal when identified by the trial judge, and made a-part of the judgment roll, though they are not signed by the party asking them, as required by Code of Civil Procedure, Sec. 1080.
    9. An instruction in an action by an employee for personal injuries that, although the plaintiff was negligent, he is not precluded from a recovery unless his negligence was “the” proximate cause of the injury, is erroneous, since the jury can infer from the use of the definitive “the” that the plaintiff, though guilty of negligence which could be called “a” proximate cause of the injury, should not be barred unless his negligence was the sole cause of the injury.
    Me. Jtjstioe Hcjet dissenting.

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

    Action by Peter Wastl against the Montana Union Railway Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.
    Reversed.
    Statement op the Case.
    This is an action for damages for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendant. A judgment for the plaintiff was reversed on a former appeal, and the cause was remanded for a new trial. (17 Mont. 213, 42 Pac. 772.) Before the second trial in the district court the complaint was amended so as to make more specific the allegations of negligence on the part of defendant. It is alleged.by plaintiff that on April 15, 1889, the defendant, a corporation organized under the laws of Montana, was engaged in operating its railroad in Silver Bow county, using in connection therewith, at the city of Butte, its depot, tracks, switches, switch yard, engines, and other necessary appliances; that the plaintiff was in its employ as a laborer, his ordinary duties requiring him to wipe and coal engines, and to perform such other tasks as might be directed by the boss in the roundhouse or the hostler in the yard; that it was also plaintiff’s duty, in the absence of the regular helper, and when "ordered by the hostler, to aid the hostler in the movement of engines about the yard by opening and closing the necessary switches; that plaintiff had no experience whatever in turning switches, — a fact well known to dclenúant,— and that defendant had wholly failed to instruct him how to perform this task by the promulgation of suitable rules, or by other means, so that he might avoid the danger incident thereto; that about 9 o’clock p. m. on April 15, 1889, the regular helper being absent, the hostler, as the superior of plaintiff, directed the plaintiff to get upon an engine which was standing on a side track in the yard, and assist in taking the engine to the roundhouse by getting off and turning the switches whenever the engine stopped; that the night was dark; that the yard was not lighted; that the plaintiff was not permitted to take a light; that the engine went west to a point near the first switch, where it stopped; that thereupon the plaintiff, getting off, went eastward, walking between the rails, to turn the switch, and, giving his attention entirely to his task, was stooping down in the darkness, looking for the switch lever; that while he was in this position the hostler, without giving any signal with the bell or whistle, or by other means, reversed the engine, and ran it back towards the east upon and over the plaintiff, inflicting upon him serious add permanent injuries, with the result that he has since that time been unable to perform manual labor and to earn a living for himself and family; and that the said injuries were wholly without his fault.
    The answer denies all the material allegations of the complaint; alleges that the injuries of plaintiff were due to his own negligence; and sets up a special affirmative defense that, in so far as the plaintiff seeks to recover of defendant upon the ground that defendant had failed to instruct him how to turn switches, and to promulgate suitable rules to guide him in the performance of this duty, the plaintiff’s cause of action is barred by the provisions of Section 47 of the Code of Civil Procedure of the Compiled Statutes.
    The jury found for the plaintiff, assessing his damages at §10,000, and judgment was entered for that amount. From this judgment, and an order denying a new trial, defendant prosecutes this appeal.

      Mr. John F. Forbis, Mr. G-. JB. Winston, and Mr. William Wallace, Jr., for Appellant.
    The plaintiff’s contributory negligence bars recovery. (Aerhfetz v. Humphries, 145 U. S. p. 418; Osborn v. Goal Co., 71 N. W. 814; Sherman & Red. on Negl. (5th Ed.) Sec. 476, p. 822, cases in notes 16 and 18, Sec. 61, p. 87, note 2; Clark v. By. Co., 11 Pac. 134; Sherman & Red. on Negl., Sec. 185, foot.) The giving of Instruction No. 3 was error. {By. Co. v. Massig, 50 Ills. App. 666; Ice <& Storage Co. v. Scully, 63 Ills. App. 150; Buchinsky v. French, 46 N. E. 417, 418; Byan v. Armour, 47 N. E. 60, 61; Henion v. By. Co., 79 Eed. 90.3, 908; Osborn v. Coal Co., 71 N. W. 814, 815; Fishes'v. By. Co., 43 N. W. 926; Paysie v. By. Co., 31 S. W. 885, 888, left middle; Sherman & Red. on Negl., Sec. 96, p. 146, Sec. 94, p. 144, note 2, Sec. 61, p. 88, note 6; By. Co. v. Swisher, 61 111. App. 311.) There was error in .charging the jury that plaintiff might recover for hostler’s negligence. (Knox r. Southern By. Co., 47 S. W. 491; Clay v. Chicago, B. ds Q. By. Co., 56 Ills. App. 235; By. Co. v. Massig, 50 Ills. App. 666; By. Co. v. Whitaker, 33 S. W. 716, 717; By. Co. v. Hyde, 56 Eed. 188, 193, 194; Watty. Hart, 34 Pac. 423, 426; Adams v. Iron Cliff Co., 44 N. W. 270, 276; Coodwelly. M. C. By., 45 Pac. 210; Hastings v. M. U. By. Co., 46 Pac. 264, 265.) The acts of negligence alleged, other than the hostler’s acts, are barred by limitation. (Chicago By. Co. v. Scanlon, 48 N. E. 826; Benton v. C. By. Co., 41 Fed. 744-750; Wingert v. Carpenter, 59 ,N. W. 662. (Personal injury cause based on statute of one state, amended to cause on statute of another state.) Alabama G. S. B. Co., v. Smith, 1 So. Rep. 723. (Personal injury, forcible ejection of passenger; amendment, voluntarily leaving train, misled by porter calling wrong station.) Buntin v. By. Co., 41 Fed. 744. (Damages, flooding land by embankment; amendment, embankment threw water.against a bridge afterwards built, so as to collect drift and flood.) Hester v. Mullen, 12 S. E. Rep. 447. (Slander; new words in amendment.) Sicard v. Davis, 6 Peters, 124. (Ejectment; different demise in amendment.) Barker v. By. Co., 8 So. Rep. 466: (Personal injury, husband joined by amendment, necessary should join under statute.) Anniston da A. B. Co. v. Ledbetter, 9 So. Rep. 73. (Loss of goods as common carrier; amended to warehouseman.) This question was presented properly by pleading the statute in the answer to the amended matters. (Sec. 749, Code of Civil Procedure, Montana; Jeffersonville B. Co. v. Hendricks, 41 Ind. 48; Pennsylvania Co. v. Sloan, 125 Ills. 72.) It was error to allow the jury to return a verdict on either of the amended grounds of negligence. (McDermott v. Bailroad Co., 43 Pac. 248, 249; Buchinsky v. French, 46 N. E. 417, 418.) See also: Byan v. Armour da Co., 47 N. E. 60, 61. (Where party injured had worked only one and one-half days.) Berrigan v. By. Co., 30 N. E. 57; Morgan v. Iron Co., 31 N. E. 234; D. L. da W. B. B. Co. v. Voss, 41 Atl. 225; C. da W. B. Co. v. Massig, 50 Ills. App. 666; Ice Co. v. Scully, 63 Ills. App. 150.) The verdict was excessive. (Kennon v. Cilmer, 5 Pac. 855: 8 Am. & Eng. Enc. of Law, 2nd Ed., pp. 632, 633.)

      Mr. T. J. Walsh, Mr. John A. Shelton, and Mr. James M. Hinkle, for Respondent.
   MR. CHIEF JUSTICE BRANTLY,

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

The appellant asks for a reversal of the judgment and order upon the following grounds: That the trial' court erred in

refusing to direct a nonsuit; that the evidence is insufficient to justify the verdict; that the trial court admitted improper evidence; that it erred in submitting certain instructions to the jury and in refusing to submit others requested; and that the verdict is excessive.

This suit was brought under Section 697, Fifth Division, Compiled Statutes 1887. This section was construed and applied in Criswell v. Montana Central Railway Co., 17 Mont. 189, 42 Pac. 767. The judgment in that case was afterwards reversed on rehearing upon a constitutional question which was not urged on the first hearing (18 Mont. 167, 44 Pac. 525, 33 L. R. A. 554), but the opinion of the Court there expressed as to the proper interpretation of this section was in no wise changed or modified. As already noted in the foregoing statement, a judgment for the plaintiff in this"cause was reversed upon a former appeal, and a new trial granted. The contention is now made by counsel for respondent that all the questions presented upon this appeal, except the one raised by the assignment last mentioned and some arising upon the correctness of particular instructions, presently to be noted, were involved in the former appeal, and, therefore, that the conclusions reached by the Court at that time are the law of the case, and binding upon us on this appeal. Counsel even go so far as to insist that this principle extends to all matters that the Court should, or might have, properly considered and determined on the former appeal, whether an opinion was expressed thereon or not. As we understand it, however, this Court has never gone further in the application of the rule than to hold that it is bound by a former decision upon all points necessary to a determination of the cause as it was then presented. On matters not essential, or questions incidental or not'considered, the court is not conclusively bound upon the second appeal. In Palmer v. Murray, 8 Mont. 174, 19 Pac. 553, referring to a former appeal in the same case (6 Mont. 125, 9 Pac. 896), the Territorial Supreme Court said: ‘That decision has now become the law of the case in all of its stages, and cannot be departed from, so far as the questions of law or fact are concerned which were therein' presented for review or decision. ’ ’ The rule has been repeatedly invoked and applied in this jurisdiction, both before and since the decision in the case cited. (Creighton v. Hershfield, 2 Mont. 170; Daniels v. Andes Insurance Go., Id. 500; Kelley v. Gable Go., 8 Mont. 440, 20 Pac. 669; Davenport v. Kleinschmidt, 8 Mont. 467, 20 Pac. 823; Priest v. Eide, 19 Mont. 53, 47 Pac. 206, 958; Maddox v. Teague, 18 Mont. 512, 46 Pac. 535; Murray v. Polglase, 23 Mont. 401, 59 Pac. 439.) But, though the rule may be invoked even in support of an erroneous ruling upon the former appeal (Davenport v. Kleinsohmidt, supra), its application will be strictly limited to th'e points necessary to the determination of the cause. It cannot be successfully invoked to estop the appellate court in a.case where a different state of facts is shown, or questions of law are presented, a decision of which was not necessary or germane to the former opinion. (Priest v. Eide, supra; Klauber v. San Diego Car Co., 98 Cal. 105, 32 Pac. 876; Barney v. Winona, etc. Railroad Co., 117 U. S. 228, 6 Sup. Ct. 654, 29 L. Ed. 858.) So that, while we recognize the rule as well established in this jurisdiction, we are not disposed to extend it beyond the exigencies which demand its application.

Looking into the record as presented upon the former appeal, and to what was said by this Court in that decision, we find that a majority of the justices agreed to a reversal of the case upon two paragraphs of the charge of the trial court, designated as instructions 7 and 15. Mr. Justice DeWitt was disqualified, and took no part in the decision. The Chief Justice wrote the opinion, but Mr. Justice Hunt concurred therein specially, and upon the sole ground that the charge was erroneous in the particulars mentioned. From an examination of these parts of the charge, it appears that the trial court misstated the rule of law by which the jury should be guided in determining the preponderance of the evidence^ and invaded the province of the jury by calling attention to certain of defendant’s witnesses by name, and, to this extent, improperly commenting on the weight of the evidence. The sufficiency of the evidence to withstand a motion for nonsuit, or to sustain the verdict, cannot be held to have been within the purview of the concurring opinion, and was, therefore, a matter upon which no opinion was expressed. This fact, however, is to be noted: The case of Criswell v. Montana Central Railway Co., supra, was under advisement by the court during the time this case was considered. As stated already, it involved the construction and application of Section 697, Fifth, Division of tbe Compiled Statutes of 1887, — the fundamental question involved in this case, and presented by the record in the former appeal. The two opinions were handed down tbe same day. As the decision in the. former was by all the justices, and as the two cases may be looked upon as one, in so far as this section of the statute was involved, a construction of the statute being necessary to this case also, the decision in the former case on this point may fairly be treated as the law of this case. In fact, the construction given to the statute in tbe Criswell Case was referred to and adopted as applicable to tbe present case, tbe court deeming it unnecessary to repeat the discussion and decision in the Criswell Case. Therefore, though it subsequently appeared that a construction of the statute as applied to the facts in the Criswell Case was entirely unnecessary, yet tbe two cases were so connected that tbe law as declared in that case became the law in this one, and we feel bound to recognize and apply it as such. And we are the more willing to follow the construction given to the statute in that case because we regard it as entirely just. The constitutional question upon which the Criswell Case was reversed has no application to this case, as that case arose after the constitution was adopted, while tbe present one arose prior to that time. Counsel for appellant contends now that, as tbe Constitution abrogated the statute, it necessarily resulted that the plaintiff’s right of action under it was thus entirely destroyed. Respondent insists that this question was also disposed of on the former appeal, and that a consideration of it at this time is thus foreclosed. This position is not tenable, however, for the question was not then brought to tbe attention of tbe court, nor was it considered. In short, tbe only point in tbe case which is not open for consideration on this appeal is the construction of the section of the statute above referred to. All the other questions properly presented upqn this record and urged in his brief, counsel for appellant is entitled to have determined. We have given .respondent’s contention as to the law of the case more attention than it, perhaps deserves; but, owing to the peculiar situation of the case because of its association with the Criswell Case, we have deemed it proper to give it more than a passing notice.

At the close of plaintiff’s proof, the defendant moved for a nonsuit on the several grounds: That plaintiff had failed to show negligence on the part of defendant; that the proof showed affirmatively that the injury to plaintiff was the result of unavoidable accident, and the plaintiff contributed thereto by his own negligence at the time of the accident; and that the accident was caused by the negligence of plaintiff’s fellow servant.

The evidence tended to show the following: Plaintiff had been in the employ of the defendant in the yard in the city of Butte about seven months. His business was to wipe and coal engines, give them water and sand, clean out the ashes, and to do such other work as was directed by the boss in the roundhouse and the hostler in the yard. The duty of turning switches also fell to him in the absence of the regular helper. The duties of the hostler were to receive engines as they came into the yard, to see that they were properly cleaned, supplied with coal and sand, and put away, and to deliver them again to the proper engineer. He had authority to discharge, but not to employ, laborers. On the evening of April 15, 1889, the regular helper was absent. A switch engine which had been coaled by plaintiff and others was standing on a side track at the coal bins on the north side of the yard. The hostler desired to move it to the roundhouse, which was on the south side. To do this it was necessary to run to the west in order to shift it to the track running to the roundhouse, and then to run east on that track. The hostler directed the plaintiff to go with him, and turn the switches. It was customary for those performing this duty for the hostler to ride upon the footboard of the engine. When it stopped, they would get off, and, after turning the switch, signal the engineer by hollowing. While in the yard, the engines did not usually carry a headlight. This was the case only when an engine was brought in after dark. It was not customary to use the bell or whistle for a signal. On the evening in question the engine had no headlight. The plaintiff rode on the east end of the engine. The engine backed west, and when it stopped he got down, and went eastward to look for the switch. It was dark, and there was so much smoke from the engine that plaintiff could not tell whether he was between the rails. He stooped in the darkness to look for the switch. He had no light. The boss of the roundhouse had forbidden him to take his torch. While he was in this stooping position, the hostler, without warning, shifted the engine towards the east, in order to get it out of the way of a freight train which was approaching on the main track from the west. This was done in obedience to a signal received from towards the west. If the engine had remained standing where it was, there would have been a collision with the approaching train. Plaintiff did not look back to see if the engine was coming. He was caught by the engine, and thrown over, suffering the loss of a toe and two fingers, besides other injuries upon the head, resulting in a permanent tremor in his right hand, and frequent headaches and general weakness. The plaintiff, until about 15 days before the accident, had worked in the daytime. For these 15 days he had been doing night work. He had never turned a switch before. No one had given him any instructions about how to do this, but he had seen others do it. The switch levers were outside the rails. The plaintiff could not speak or understand English very well. He was, at the time of the accident, about 48 years old. There were no rules regulating the running of engines in the yard. The laborers about the yard and roundhouse were subject to the direction of the hostler after he came on duty at night.

The fundamental question raised by this motion is the effect, if any, wrought upon plaintiff’s right of action by the repeal of Section 697, supra, by Section 11 of Article XV of the Constitution, as was held in Criswell v. Montana Central Railway Co., 18 Mont. 167, 44 Pac. 525, 33 L. R. A. 554; for, as stated before, plaintiff is endeavoring to establish in this case a right founded upon the statute, and this right does not exist unless it survived the repeal of the statute. The effect of the statute, so far as domestic railroad corporations were concerned, was to abrogate the common-law rule governing the liability of a master for an injury to his employee by the negligence of a fellow employee engaged in a common employment for a common purpose. It established in the territory the superior servant doctrine, and gave to one employee injured by the negligence of a superior a right of action therefor against the master when the injured employee was himself without fault or negligence. (Criswell v. Montana Central Railway Co., supra.) This right did not exist at the common law, and, under the facts in this case and the rule as recognized and repeatedly réaffirmed in this state since the adoption of the constitution, the plaintiff could not recover; for it is clear that under this rule plaintiff and the hostler were fellow servants engaged in a common employment for a common purpose, and that the injury complained of, if not caused by plaintiff’s own act, was due to the negligence of the hostler. (Goodwell v. Montana Central Railway Co., 18 Mont. 293, 45 Pac. 210; Hastings v. Montana Union Railway Co., 18 Mont. 493, 46 Pac. 264; Mulligan v. Montana Union Railway Co., 19 Mont. 135, 47 Pac. 795.) We think, however, that a complete answer is found to the question raised and the contention of the appellant in the provision contained in Section 9 of the Schedule of the Constitution. This provision is: “All writs, processes, prosecutions, actions, causes of action, defenses, claims and rights of individuals, associations and bodies corporate existing at the time the state shall be admitted into the Union, shall continue and be respectively executed, proceeded with, determined, enforced and protected under the laws of the state. ’ ’ Here is an express provision that all causes of action, defenses, claims and rights, without exception, of all classes of individuals, shall continue and be enforced and protected under the laws of the state. No distinction is made between statutory rights and those existing at common law, nor between those arising out of torts and those founded upon contract. The section seems to have been inserted in the schedule — which is, so to speak, a general saving clause to the Constitution — ex industria, to meet just such cases as the present, and to preserve all rights already accrued, and either in action or capable of being enforced by the ordinary remedies provided for this purpose. The framers of that instrument evidently intended that the territorial government should be succeeded by that of the state with the least possible friction and disturbance. While realizing that many of the statutes of the territory were not suitable to the changed conditions under the Constitution, and would be abrogated thereby (Constitution Schedule, Sec. 1), they intended also that the rights of the individual citizen should be preserved and enforced just as effectively as if the Constitution had not been adopted. There is nothing in the section showing any intention to make any exception. The language is general, and includes all rights and claims, whatever be their character. Therefore the contention of counsel that the repeal of the statute destroyed also the right already accrued thereunder cannot be sustained. The Constitution operated upon the statute so as to prevent other rights from accruing thereunder; but under its saving clause, as expressed in the section of the Schedule quoted, the right already accrued was preserved to be enforce ‘ ‘under the laws of the state, ’ ’ whatever they might be; for, after the right became fixed, its enforcement no longer depended upon the statute, but was to be governed by the general provisions of the Code suitable to the enforcement of all rights, without regard to their origin. This being our conclusion, it is not necessary to discuss what would have been the effect upon plaintiff’s right in the absence of this section of the Schedule. An inquiry upon this subject would necessarily lead to an examination of the question whether the right asserted by the plaintiff under the statute is ‘ ‘property’ ’ within the meaning of the fourteenth amendment of the Constitution of the United States, and whether the section of our Constitution (Section 11, Art. XY), which repealed the statute, is within the malediction of the first section of that amendment. We are content to omit this inquiry.

Upon the other points made by the motion, we think the motion was properly denied. Under the law of this case (Criswell v. Montana Central Railway Co., supra) it is clear that there is a sufficient showing as to the negligence of the hostler to go to the jury. He was bound to exercise the same' degree of care towards the plaintiff as towards a passenger, and it cannot be doubted that, if the plaintiff had been a passenger, the hostler would have been bound to give some sort of signal before starting the engine. The plaintiff had a ] right to expect the engine to remain where he left it until he should give a signal for the start in the usual way of hollowing. Nor does the evidence show that a collision was so im- [ minent that the hostler could not have given a signal. His act in starting the engine as he did was a departure from the ordinary course, and he should have taken extraordinary care. And though it may well be said that the plaintiff, knowing that the defendant was accustomed to run its engines about the yard at night without signals and lights, assumed all the risks incident to the ordinary conditions, it cannot be claimed that this assumption on his part contemplated also the dangers arising from conditions which could not reasonably have been foreseen by him. Nor do we think it is clear from all the circumstances of the case that the plaintiff was guilty of such negligence in getting between the rails that he is precluded from a recovery. It was dark, and the vision was obscured by the smoke emitted by the engine. He states that he could not tell whether he was without or within the rails. Besides, as we have stated, ordinarily he justly had a right to suppose that the engine would not move until he. had signaled the hostler. We think it was for the jury to say whether, under all the circumstances, the hostler used that degree of care called for by the circumstances, and whether the plaintiff was sufficiently circumspect. (Prosser v. Montana Central Railway Co., 17 Mont. 372, 13 Pac. 81, 30 L. R. A. 811; Pyle v. Clark, 25 C. C. A. 190, 79 Fed. 717.) This case is clearly distinguishable from Aerkfertz v. Humphreys, 115 U. S. 118, 12 Sup. Ct. 835, 36 L. Ed. 758, in which the injury complained of was due to a clear disregard on the part of the plaintiff of the most ordinary precautions under usual conditions.

What has just been said touching the sufficiency of the evidence to go to the jury renders it unnecessary to remark upon the assignment that the evidence is not sufficient to sustain the verdict. Viewed in the light most favorable to the defendant, it presents a case proper to be submitted to the jury upon conflicting evidence, and the finding of the jury thereon should not be disturbed.

The next contention made by the appellant is that the allegations in the third amended complaint upon which the last trial was had, setting up a failure on the part of the defendant to promulgate suitable rules to guide the plaintiff in the. discharge of his duties, and to instruct him therein, as culpable negligence, constitute separate and distinct grounds of recovery; and that plaintiff’s right of recovery as to them is barred by the provisions of Section 47 of the Code of Civil Procedure (Comp. St. 1887). This contention is based upon the fact that these matters are alleged for the first time in the last amended complaint, long after the limitation of the statute had run. But, whatever may be its merits, appellant is not in position to have this question considered here. In this state the defense of the statute of limitations can be made available only by answer or reply. (Code of Civil Procedure, Section 558; Laws of 1899, p. 142.) The defense was interposed in the proper way in this case, but the only attempt to present the question thus raised was by an objection to the evidence tending to show that no rules had been promulgated by the defendant regulating the running of engines and trains in the yard, the ground of the objection being that the action, so far as based upon this negligence of the defendant, “is barred by limitation, and not proper matter to introduce in evidence at this time.” This objection, not being made upon any lawful ground, was properly overruled. The proper mode to present the question was to request an instruction to the jury directing them to disregard the evidence on this point. No such request was made. In the absence of it, the defendant cannot complain of the trial court for its failure to submit the question to the jury. Indeed, upon the record presented here, we are justified in the conclusion that this defense was abandoned, and hence that no reference was made to it in the instructions.

Another contention made by the appellant is that the court misdirected the jury to its prejudice, and failed to give correct instructions requested. A question of practice is presented here by objection to the consideration of the instructions, either given or refused, on the ground that they are not properly in the record, in that they are not included in a bill of exceptions, and are not properly identified. We find them in the record as a part of the judgment roll, and in this condition: Those requested by the plaintiff are together, following each other consecutively, properly numbered, under the general heading ‘Instructions on the Part of Plaintiff. ’ ’ Each one is marked ‘ ‘Given. ’ ’ At the end of the last one appear the words: “(Indorsed.) Filed Apr. 8, 1897. Clinton C. Clark, Clerk, by T. E. Booth, Deputy Clerk. ’ ’ April 8, 1897, was the date of the trial. In the same way followed those requested by the defendant under the heading ‘ ‘Instructions on the Part of Defendant. ’ ’ They are marked and endorsed just as are those requested by the plaintiff, except that in two instances additions were made at the end, which are noted. Then follow “Refused Instructions Offered by Defendant.” These are marked “Refused,” and indorsed “Filed,” as are the others. Subdivision 7 of Section 1080' of the Code of Civil Procedure provides that ‘ ‘the court shall either give each instruction as requested, or positively refuse to do so, or give the instruction with a modification, and shall mark or indorse upon each instruction so offered in such manner so that it shall distinctly appear what instructions were given in whole or in part, and, in like manner, those refused. All instructions given by the court must be filed, together with those refused, as a part of the record. ’ ’ In the following subdivision (Subdivision 8) it is further provided that the charge of the court, the instructions given, and the modifications thereof, and the refusal to give instructions shall be deemed excepted to, and no bill of exceptions is required. Further, Section 1151, Id., provides that the instructions and charge of the court are deemed to have been excepted to, and no bill of exceptions is required. Section 1196 Id., directs what papers the judgment roll shall contain, and, among others, are enumerated “all orders, matters and proceedings deemed excepted to without bill of exceptions.” The judgment roll, with other papers named, constitutes the record on appeal. (Id. Sec. 1176.) These provisions of the statutes set at rest any question as to the proper method to pursue to bring the instructions before this court for review. Indeed, after they pass into the hands of the trial court, the duty of preserving them and making them a part of the record devolves upon the court and its officers, and nothing further is required by the parties. The parties may, if they choose, include them in a bill of exceptions, and present them in this way, but this course is entirely unnecessary, and involves useless labor. The cases cited by counsel in support of his claim that the instructions must be contained in a bill of exceptions formally settled are founded upon different statutes from ours, and are not in point.

Neither do we think there is any force in the argument that the instructions are not properly identified as those actually given as requested, or as modified, or as actually requested and refused. We find them in the record, with certain indorsements and notations'upon them. They are in the place where they should be found. These indorsements and notations upon them indicate that they are what they purport to be. There is nothing before us to show the contrary. The statute declares that the prima facie presumption is “that official duty has been regularly performed. ’ ’ (Code of Civil Procedure, Sec. 3266, Subd. 15.) Indulging this presumption, we must conclude that the instructions in the record were put there by the trial court and its officers.

But counsel insists that they are not signed by the .'attorneys who requested them, in obedience to the requirement of the first part of Section 1080, supra. We take it that this requirement is made for the benefit of the judge of the trial court tu aid him in the discharge of his duties. He could not be put in error for refusing to give instructions requested unless the party requesting them should do so in conformity with the statute; but, if he chooses not to require a strict compliance, and proceeds to identify the instructions given and refused, as well as the modification made of any of those given, as is required of him by Section 1080, supra, and to make them a part of the judgment roll, as in this case, his duties have been fully discharged, and the record is properly made.

The conclusion already reached that the statutory and not the common-law rule of liability applies to this case, and that the evidence warranted a submission of it to the jury upon the question of the hostler’s negligence and the contributory negligence of the plaintiff, disposes of all the questions raised upon the instructions save one. This arises upon instruction 3, given at plaintiff’s request, which reads as follows: “You are instructed that if from all the evidence, you believe that plaintiff was working under the orders and directions of the hostler, and that it was his duty to obey such orders, and that at said time the defendant, by its hostler, might have avoided said injury by the use of proper signals or warning, or by having a headlight on its engine, and if, from the evidence, you further believe that at the said time defendant neglected to have said headlight, or give such warning, then you have the right to determine whether or not said neglect caused the accident; and if you believe from the evidence that it did, and that the plaintiff was without negligence, or, if negligent, that his negligence was not the proximate cause of the injury, then you should return a verdict for the plaintiff. ” Appellant complains that this instruction does not state correctly the law of contributory negligence, and that the vice of it consists in its telling the jury that, though plaintiff might be barred of his recovery by his own negligence, yet such negligence, to be a bar, must be the sole proximate cause of the injury for •which he was seeking compensation. Mr. Beach defines contributory negligence as follows: “Contributory negligence, in its legal signification, is such an act or omission on the par. of a plaintiff amounting to a want of ordinary care, as, concurring or co-operating with the negligent act of the defendant, is a proximate cause or occasion of the inj ury complained of.” (Beach, Contrib. Neg. Sec. 7.) Mr. Thompson defines the phrase thus: “In order to constitute such negligence as will bar a recovery of damages, these two elements must in every case concur: (1) A want of ordinary care on the part of the plaintiff, or, where the action is for damages resulting in death, a want of ordinary care on the part of the person killed; (2) A proximate connection between this want of ordinary care and the injury complained of.” (Thomp. Neg. Sec. 3, p. 1148.) The principle embodied in these definitions is that, in order that there may be any contributory negligence on plaintiff’s part, there must be negligence also on the part of the defendant having a direct and proximate causal relation to the. injury. Negligence proximately causing the injury is necessary to render the defendant liable. Negligence on plaintiff’ s part, which is a proximate cause, is necessary to bar a recovery on the ground of contributory negligence. If defendant’s negligence is the sole proximate cause, there is no contributory negligence. If the plaintiff’s negligence is the sole proximate cause, then no negligence is attributable to the defendant. Obviously, therefore, the negligent acts of plaintiff and defendant must concur and operate together, each contributing proximately to cause the injury complained of. If this condition does not exist, then there is no question of contributory negligence. (7 Am. &Eng. Ency. Law (2d Ed.) 373, 374; Payne v. Chicago &. Alton Railroad Co., 129 Mo. 405, 31 S. W. 885; Thomp. Neg. pp. 1148-1153.)

Applying these principles to test the instruction complained of, we must conclude that appellant’s position is correct. The jury are told that, though the plaintiff was negligent, he was not precluded from a recovery unless his negligence was the proximate cause of the inj ury. The use of the article ‘ ‘thu’ ’ with its specifying and particularizing force, as opposed to the indefinite article “a,” which should have been used, excludes the idea of any other concurring cause. The article ‘ ‘the, ’ ’ in the sense in which it is here employed, designates one particular from a class or number, disassociating it from others of the same class. Attention is thus called to the particular object singled out of the class, and thus individualized. The indefinite “a, ’ ’ used in place of it, would have meant ‘ ‘one’ ’ or ‘ ‘one of’ ’ the class, or, in this instance, one of the two contributing causes. From the particular phrase in which the definitive “the” is used, the jury could, and perhaps did, infer that the plaintiff, though guilty of negligence which could be called an approximate cause of the injury, should nevertheless be held not barred, unless the proof showed that his negligence was the sole causal agency in producing the injury. The rule thus stated for the guidance of the jury omits one of the essential elements in the definition of contributory negligence. It appearing from the proof that it was proper to submit the question to the jury, the defendant was entitled to have it submitted under a correct statement oí the law. The error complained of in this instruction might possibly have been disregarded as an inadvertence, and without prejudice, had the law on this point been generally correctly stated elsewhere through the instructions; but such was not the case. Wherever this principle was referred to in the instructions, the same error was committed. We cannot say that the appellant was not prejudiced by it. (Parrin v. Montana Central Railway Co., 22 Mont. 290, 56 Pac. 315.) It is regrettable that this case must be reversed upon a ground apparently so technical. Our only course, however, is to declare the law as we find it, without regard to any hardship that may result in this particular instance.

Let the judgment and order be reversed, and the cause be remanded for a new trial.

Reversed and rema/nded.

Me. Justice Pigott: I concur.

Mr. Justice Hunt:

I dissent; not, however, without appreciation of the difficulty of the point on which reversal is ordered, and I agree that there is carelessness in the use of words employed in the instruction deemed prejudicial. I think, though, that the definite article ‘ ‘the, ’ as used in the instruction held bad, particularized the subject of proximate cause which was being spoken of by the court, without going to the extent of limiting the jury to the consideration of one, and only one, proximate cause within the several proximate causes embraced in the general subject so particularized — that is to say, while I believe the jury were directed to the subject of proximate causes by the instruction, still there was no one special limitation within the bounds of that subject by which they were exclusively concluded. This opinion is strengthened by the statement that elsewhere in the charge a correct definition of proximate cause was given. I believe, therefore, that the inference of a “sole causal agency,” spoken of by the'Chief Justice as perhaps having been drawn by the jury, could not reasonably have been drawn, and that it involves too technical a construction of the language embraced in the instruction. I do not approve the language of the instruction, yet I cannot think its fault was calculated to mislead or did mislead. I think the judgment should be affirmed.


author: PER CURIAM.

text:
    CONRAD NATIONAL BANK, Respondent, v. GREAT NORTHERN RAILWAY CO., Appellant.
    [No. 1,208.]
    [Submitted April 13, 1900.
    Decided May 14, 1900.]

      Assumpsit — P leading.

    l. A plaintiff, in assumpsit to recover an unpaid balance, alleged in his complaint that Ins assignor had '‘performed certain labor for and on behalf of tlie defendant, and furnished to the employes of the defendant, at defendant's special instance and request, certain board, food, and lodging, and goods, wares, and merchandise, to the value of, and in the amount of $5,825.60, no part of which has ever been paid.” Held, that as a statement of a cause of action for labor performed, the complaint was insufficient in that it failed to allege that the labor was performed at defendant’s request; andas a statement oí a cause of action for food, board, and lodging, and goods, wares, and merchandise furnished^ to defendant’s employes, the complaint was insufficient in that it failed to allege an express promise on the part of the defendant to pay, or the facts from which it might be implied.
    2. Although Sections 740, 778 of the Code of Civil Procedure have abolished the rigorous rules of the common law requiring the pleading to be construed most unfavorably to the pleader, still they do not require such a liberal construction as will read into the pleading a substantial allegation which has been omitted therefrom.
    3. Mere matters of form or defective statement, not affecting the substance, will not be held fatal if the pleading,'as a whole, shows its general intent and purpose.
    4. Where a seasonable attack is made upon the complaint for want of substantive allegations, the court should indulge, as against the pleader, the presumption that he has stated his cause of action as strongly as he can.

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

    Assumpsit by Conrad National Bank of Kalispell against the Great Northern Railway Company to recover a balance on account of labor performed for defendant, and for board, food, and lodging, and goods, wares, and merchandise, furnished by plaintiff’s assignor to employes of defendant at its special instance and request. Defendant’s demurrer to the complaint was overruled, and judgment entered in favor of plaintiff, and defendant appeals.
    Reversed.

      Mr. A. J. Shores, for Appellant,

      Messrs. Sanford dé Grubb, for Respondent.
   PER CURIAM.

This is an action by plaintiff, as assignee of M. C. Doran and wife, to recover a balance on account of labor performed for defendant, and for board, food, and lodging, and goods, wares, and merchandise, furnished to employes of defendant at its special instance and request. Demurrers were interposed to the original and first amended complaints, and were sustained. To the second amended complaint the defendant again demurred generally. This was overruled, and, defendant declining to plead, judgment was entered against it under the prayer of the complaint for the balance alleged to be due, with interest at 10 per cent, per annum, amounting to $2,604, with costs of suit. The appeal is from this judgment.

The question presented for our consideration is whether the complaint states a cause of action. .

The paragraph of the complaint to which the demurrer is directed is the following: “That between the 1st day of December, 1891, and the 1st day of November, 1893, M. C. Doran and Mrs. M. C. Doran performed certain labor for and on behalf of the defendant, and furnished to the employes of the defendant, at defendant’s special instance and request, certain board, food, and lodging, and goods, wares, and merchandise, to the value of and in the amount of $5,825.60, no part of which has ever been paid.” The complaint then proceeds to allege, further, that on or about the 1st day of November, 1891, the said M. C. Doran and his wife, for .a valuable consideration, executed and delivered to the Kalispell Meat Company, a co-partnership, certain orders and assignments in writing, which conveyed and transferred to the said Kalispell Meat Company all the moneys then due, or to become due, from the defendant to the said Doran and wife during the months of September, October, and November, 1891, on said accounts hereinbefore set out; that thereafter, and on. or about the 1st day of November, 1891, the said company presented said orders and assignments to the defendant, and that defendant then and there duly accepted the same, and promised to pay the amounts due upon said accounts to the said company; that on or about the 30th day of November, 1891, there was due and became due from the defendant to the said company, by reason of said orders and assignments, the sum of $5,825.60; that the defendant has wholly failed and refused, and still fails and refuses, to pay any part of said sum, except the sum of $3,778.70, which the defendant paid to the said company on or about the 5th day of September, 1895; that thereafter, and on or about the 15th day of February, 1896, the said company,' for a valuable consideration, sold and assigned to the plaintiff herein the said above-described orders and assignments, together with the amounts due thereon; and that the plaintiff is now the lawful owner thereof, and the balance due thereon, amounting to the sum ■of $2,046.90, with interest thereon from the 1st day of December, 1894, at the rate of ten per cent per annum.

It is clear, from an examination of the complaint, that the allegations touching the giving of the orders and assignments by Doran and his wife to the Kalispell Meat Company, in legal effect, mean nothing more than that by this arrangement the meat company became the assignee from Doran and his wife on or about November 1, 1894, of whatever amount had become due upon the account, and what was still to become due during the month of November. No specific sum was named in these orders; a part of the thing, assigned being still unearned, and therefore not in esse. The acceptance, as made by defendant under these circumstances, amounted to nothing more than a promise on its part to pay the amount of the accounts to the meat company, whatever it might be, whenever it should be ascertained. This amount could not be ascertained in any other way than by reference to the accounts at the end of the month of November. The arrangement was therefore not equivalent to an agreement on the part of the ■defendant to pay the meat company any specific sum upon a stated account or upon an express agreement in writing. The subsequent transaction between the meat company and the plaintiff, on February 15, 1896, was a transfer to the plaintiff of any balance due the company still unliquidated; for there is no allegation that there was ever any settlement with defendant after the delivery of th'e orders to the meat company by which the amount, if any, which became due at the ■end of November, was ascertained. The balance claimed by the plaintiff to be due after the payment on September 5, 1895, so far as any allegation to the contrary in this connection shows, may have been disputed by the defendant. Through the assignments, therefore, the nature of the obligation on the part of defendant was not changed, but retained its original status of an open, unliquidated account. This being true, the question raised by the demurrer is whether the complaint states a cause of action in assumpsit for work and labor performed, for board, food, and lodging, and for goods, wares, and merchandise furnished-

As a statement of a cause of action for labor performed, the complaint is clearly insufficient, in that it fails to allege that the labor was performed at defendant’s request. It may have been the pleader’s intention to apply the clause, “at defendant’s special instance and request,” to the clause containing the allegation of labor performed, as well as. to the charge for board, food, lodging, etc.; but this intention is not manifested by the position which this clause occupies in the sentence. There is therefore not sufficient of substantive allegation to support the complaint in this respect. (Chitty on Pleading, p. 359; Boone, Code Pl. Sec. 195; Wilkins v. Stidger, 22 Cal. 232; Bassford v. Swift (Sup.) 39 N. Y. Supp. 337.) Section 740 of the Code of Civil Procedure provides that pleadings must be given a liberal construction, with a view to substantial justice. It is also provided, in section 778, that the Court must in every stage of the action disregard an error or defect in pleading which does not affect the substantial rights of the parties, and that no judgment shall be reversed or affected by reason of such error or defect. These provisions were construed in Daniels v. Andes Insurance Co., 2 Mont. 78, and it was there held that the effect of them is to abolish the rigorous rule of the common law requiring the pleading to be construed most unfavorably to the pleader. This case was approved in United States v. Williams, 6 Mont. 386, 12 Pac. 851. But the rule does not require such a liberal construction as will read into the pleading a substantive allegation which has been omitted therefrom. Substance is just as essential under the Code as at the common law. (Miller v. Van Tassel, 24 Cal. 458; Glide v. Dwyer, 83 Cal. 477, 23 Pac. 706; Clark v. Dillon, 97 N. Y. 370.) The Court will not adhere to strict rules of grammar under any circumstances, and will in a measure disregard them; particularly so where no seasonable attack has been made upon the pleading. Mere matters of form or defective statement, not affecting the substance, will not be held fatal, if the pleading as a whole shows its general intent and purpose. (Bliss, Code Pl. 314.) Where, however, s.uch an attack is made upon the complaint for want of substantial allegations, the Court should indulge, as against the pleader, the presumption that he has stated his cause of action as strongly as he can, and construe it accordingly. (Becker v. Commissioners, 11 Mont. 490, 28 Pac. 1116.)

Nor are the allegations sufficient to support a judgment for food, board, and lodging, and goods, wares, and merchandise, furnished to defendant’s employes at its request. It is not necessary to allege a promise to pay where • the facts as alleged imply a promise, as where the board, ■ food, lodging, etc., are furnished to defendant upon request; but where the furnishing or delivery is to a third person, upon defendant’s request, then, nothing further appearing, no promise on the part of the defendant to pay is implied; for a furnishing or delivery to a third party, though upon defendant’s request, does not, as a matter of law, imply an undertaking by defendant to pay. The fact of delivery upon defendant’s request is consistent with the idea that credit was extended to the person receiving the goods. The relation of employer and employe does not carry.with it any obligation upon the employer from which the law implies a promise to pay for the benefits enjoyed by the employe only. Either the express promise should be alleged, or the facts from which it may be implied, as that the credit was extended to the employer, and not to the employe (Chitty on Pleading pp. 308, 356); or the allegation should have been made, generally, that the food, board, lodging, and merchandise, were furnished to the employer at its request. (Porter v. McClure, 15 Wend. 187).

Let the judgment be reversed, and the cause be remanded, with directions to the District Court to sustain the demurrer.

Reversed and remanded.


text:
    A. M. HOLTER HARDWARE CO., Appellant, v. ONTARIO MINING CO., et al., Defendants. Newton, Appellant. Caird & Hawksworth, Appellants. Merchants National Bank, Respondent.
    [No. 1176.]
    [Submitted April 9, 1900.
    Decided May 14, 1900.

      Mechanic's Lien — Mining Supplies — Liens—Running Account — Separate Contracts — Pleading — Amendment—Filing — Attachment Lien.

    1. Code Civil Procedure, Sec. 773, authorizing the amendment of any pleading of course, once, by filing the same as amended, and serving a copy on the adverse party, does not apply to amendments made by order of Court; and where leave is given to amend an answer, and the amendment, rather than the answer as amended, is filed and served, the original answer is not superseded by the amendment, except as .thereby changed. Obiter, the better practice is to file the pleading as amended.
    2. Where an attachment issued by the Court in one county was levied on real estate in another, it was not essential to the establishment of a lien to file a transcript of the judgment in the other county, as provided by Code Civil Procedure, Sec. 1200.
    3. The fact that the sheriff’s return to the writ of execution issued on the judgment was not filed within 60 days did not destroy the lien created by a levy of an attachment.
    4. Where the plaintiff sold mining supplies to defendant from time to time, and monthly bills were rendered therefor, and interest charged thereon, with the understanding that defendant was to be carried till lie could make payment by shipping ore, such purchase did not constitute a continuing running account, but each was made under a separate contract, payment for which was due at the end of the month, from which time the 90 days required by Code Civil Procedure, Sec. 2131, for filing of a statement of a lien began to run.
    5. A written agreement for the purchase of certain machinery at a certain price, and also all castings required, in addition, at a certain figure, had reference only to the castings required for the machinery mentioned, and no mechanic’s lien based on such an agreement could be enforced for other purchases.

      Appeal from, District Court, Deer Lodge County; Theo. Rrantly, Judge.

    Action by the A. M. Holter Hardware Company against the Ontario Mining Company and others to enforce a mechanic’s lien. From a judgment establishing a lien for part only of plaintiff’s claim, and of the claims of certain defendants, plaintiff and defendants J. P. Newton and Caird & Hawks-worth appeal.
    Affirmed.

      Messrs.■ 8tranahan c& Stranahan, Messrs. Walsh ds Newman, and Mr. N. Scharnikow, for Appellants.
    Cited: Alvord v. Hendrie, 2 Mont. 122; Fra/nkovisy. Smith, 34 Minn. 405; Merchand Go. v. Cook, 4 Iowa 116; Kiser Lumber Co. y. Mosley, 56 Ark. 548; Helena S. H. db S. Co. v. INZZs, 16 Montana 65; Craddock v. Dwight, 85 Mich. 587; AZaZe Affis/i. cé Door Co. v. A7! A. A. A. Seminary, 45 Minn. 254; Jones on Liens, Yol. II., Sec. 1435 and Sec. 1443; Phillips on Mechanics’ Liens, Sec. 325; AZme y. Austin, 9 Mo. 554; Skyrme v. Occidental FLUI Co., 8 Nevada 219; Lamb y. Hannemam, 40 Iowa 41; Schmeiding v. Ewimg, 57 Mo. 78; O'Leary y. Burns, 53 Miss. 171; Central Trust Co. y. Railroad Co., 23 Fed. 673; Jones v. Swan, 21 Iowa 181; Iowa Mortgage Co. v. Shanquest, 70 Iowa 124; Fulton Lron Works y. North Center Mininq db Smelting Co., 80 Mo. 265; Bruce v. Berg, 8 Mo. Appeals, 204; Jodd v. Duncan, 9 Mo. Appeals, 417; Kick v. Doerste, 45 Mo. Appeals, 134; Kearney y. Wardeman, 33 Mo. Appeals, 447; Hofer’s Appeal, 116 Pa. St. 360; Trustees German Luther am, Churchy. Heise, 44 Md. 454; Newell y. Wyendorff, 9 Montana 254; Gettings v. Buchanan, 17 Montana 585; Mainy. Tappener, 32 Cal. 206; Wheaton y. Neville, 19 Cal. 42; Watty. Wright, 66 Cal. 202; Sharp y. Baird, 43 Cal. 206; Schwarts v. Conel, 7] Cal. 306; Bruise y. Gates, 80 Cal. 467; Porter v. Pico, 55 Cal. 105; Capron y. Strout, 11 Nev. 304; Wortman y. Kleinschmidt, 12 Montana 316; Sheppard v. Wilkins, 1 Ala. 64; Purvis v. Kroner, 18 Ore. 416; Dicker v. Quimby, 37 Iowa 17; Ringy. Jamieson, 2 Mo. App. 589; Am. & Eng. Ency. Law, Yol. I, p. 109, New Ed. p. 435; Matthews y. Waggenhaeuser, 83 Tex. 604; Pickett y. Merchants Bank, 32 Ark. 347; Osborne v. Collier Co., 30 S. E. 449; Smithy. Newbauer, 144 Ind. 97; Premier Steel Co. v. M. R. Co., 144 End. 621; Patton v. Matter, 52 N. E. 173; Albrightv. Smith, 51 N. W. 592; Miller y.Batcheler, 117 Mass. 180; Jones v. Murphy, 64Iowa, 165; Rushy. Able, 90 Pa. St. 158; Hardware Co. v. McCarty, 10 Colo. App. 201; Mellor v. Valentine, 3 Colo. 258; Fitch v. Baker, 23 Conn. 565; Elders v. Elder, 51 Miss. 498; Maryland Brick Co. v. Spilman, 76 Md. 345.

      Messrs. McConnell & McConnell, for Respondent.
   PER CURIAM.

Action to foreclose a material man’s lien for merchandise sold and delivered to the defendant, the Ontario Mining Company, between November 2, 1895, and July 20, 1896. The articles furnished by the plaintiff to the mining company were received by the latter, and ' used in and about its mines. On August 1, 1896, the plaintiff hardware company filed its lien to secure the payment of a balance due on the account of the said • mining company amounting to $4,430.79, and began suit on October 16, 1896. On July 29, 1896, the Merchants’ National Bank, defendant and respondent herein, also brought suit against the Ontario Mining Company, defendant, for debts due by that company to the bank, and attached the property of the mining company. The Ontario Mining Company did not answer the hardware company’s complaint, and its default was duly entered; but the defendant bank answered and contested the right of the plaintiff to a lien, and the right of certain other lienholders to liens upon the property, — -the bank claiming an interest in the property charged, by virtue of its attachment, a judgment, execution, and sale. The case was tried, to the court without a jury. Plaintiff obtained judgment against the mining company for the sum of $4,430.79; but the court adjudged that plaintiff’s lien could only be enforced against the property of the mining company to secure the payment of $749.71, which was the value of such articles only as were sold by the plaintiff corporation to the mining company after May 1, and up to August 1, 1896. For goods sold and delivered prior to May 1, 1896, the court decided there was no lien. The plaintiff appeals from the order refusing a new trial, and from so much of the judgment as failed to allow it a lien for the whole debt.

Upon the trial it appeared that the amount of plaintiff’s claim was correct, and that the merchandise included in the account of the sales was delivered to the defendant mining company. Nor was any objection interposed to the form of the plaintiff’s lien. But the defendant bank objected to the introduction of any testimony to establish the lien, for the reason that the account, on its face, showed such an intermingling of lienable and non-lienable articles that the entire account failed to show any lien on its face, and that therefore plaintiff failed to state any cause of action. The court overruled this objection, and the following material evidence was adduced:

D. P. Patenaude testified that he was the manager of the plaintiff company; that his company had furnished the Ontario Mining Company supplies for about five years; that some of the officers of the mining company would bring an order for goods, and that he would O. K. it, have the goods forwarded according to shipment instructions, and charge the amount up to the account of the mining company; that the account was not straightened between the plaintiff and the defendant companies upon the furnishing of each order, and that at the time the materials were supplied his company considered the mining property ample security for the goods sold; that the mining company made partial payments, and that no interest was charged against them, although, on the bills rendered, these words appeared in print: “All accounts are due on the first of the month following purchase. Interest will be charged after thirty days;” that the goods were sold on the faith of the lien that plaintiff had for them against the mine, and that they were not sold on the credit of the company; that the account between the two companies was open and continuous; that witness’ idea was that a lien could be placed upon the property of the mining company, and plaintiff get its money by doing so; that' there was no agreement between plaintiff company and the mining company, in furnishing the articles, that the amounts were to be due at the end of each month, and that the heading on its bills, referred to, is a printed form on all of the plaintiff’s statements; that different terms were often made as the circumstances required; and that, as each shipment of goods was made, bills were sent, but payment was not required immediately upon shipment.

Norman B. Holter, vice president of the plaintiff company, testified that about 1893, when the Ontario Mining Company first opened its account, its officers wanted to make an arrangement for a line of credit that would meet their circumstances;. that they wanted mining supplies to operate their mine near Elliston; that the arrangements were that inasmuch as they could not pay for what they received every month or so, according to the usual line of credit, they could buy the supplies and pay for them when they were in position to do so, after their plant was completed; that at . the time these arrangements were made the mill was not in operation, but was being built; that it was understood that plaintiff “would simply carry them (the mining company) from month to month, and charge them interest on their account, on their balances;” that when the arrangements were completed the account was opened, and the mining company purchased from time to time; that the account continued until it amounted to. several thous- and dollars, when, in November, 1895, they paid up to a certain time, and still kept on buying; that the account was opened under the arrangements just stated, and continued under them; that it was an unpaid, open account; and that the plaintiff relied upon the mining property solely as security for its debt. On cross-examination this witness testified that there was no arrangement by which the mining company was to buy all of its supplies from the plaintiff company, but that it could buy where it pleased; that the goods ordered were to be paid for when the mining company realized on its shipments of ore; that the plaintiffs did not consider the bills due at the time, — not until the completion of the mill, when the company would be in shape to pay them; that the mill was completed in September, 1895; that, at the time the hardware company made the original contract, the Ontario Mining Company had in contemplation the erection of the mill, or making an addition to it; that at the end of each month a statement from the ledger account was mailed to the mining company, and these statements contained interest accounts; that, according to the agreement, the bills so rendered were not due, but that they were due at the time of the completion of the work; that when the company commenced to' ship ore it was to pay the plaintiff; that, if the mining company wanted to pay its account, it could, but that it was satisfactory to both sides to let the account continue as it was.

P. G\ Schroeder, the bookkeeper for the plaintiff, testified that the business relations between the plaintiff and the defendant companies had existed since 1893; that there was an account during that time between the parties, — a current, open account; that there was a settlement between them during the existence of the account; that this settlement was in November, 1895, and that at that time the accounts were settled up to November 1, 1895; that between November 1, 1895, and the date of the payment, which was November 13, 1895, there were other charges made upon the account between the parties; that these charges were upon open account, as formerly; that the date of the last charge was July 20, .1896; and that the balance unpaid upom the account was §1,130.79. On cross-examination, witness stated that the mining company could purchase elsewhere if it saw fit.

O. A. Southmayd, the secretary of the Ontario Mining Company, testified that the account between the plaintiff and the defendant mining company ran along indefinitely from the time the mining company started until it closed down its work, and that articles were ordered from time to time as his company needed them. This same witness was called for the defense, and testified that he did not know of any agreement between plaintiff and the mining company, except for the purchase of a considerable lot of machinery originally bought at the beginning of operations, and that, if there was any agreement at that time that his company was to have credit for any limited amount, he knew nothing of it; that the Ontario Mining Company had paid various sums of money at different times to the plaintiff, and on November 13, 1895, the sum of §6,855.47 to pay balance due November 1, 1895; that he had no knowledge of any such agreement as was testified to by plaintiff’s witnessess; that he understood that bills for materials were due at the end of the month; that the supplies were furnished under separate orders from time to time as they were needed. On cross-examination, witness said: He knew there was an account between the parties, but that he remembered no specific talk in relation to an account. That £ fit was construed that there was an arrangement between the two companies by which they were to have a line of credit there, and they (the hardware company) would furnish things as we needed them. But I knew nothing definite. If I had not so understood it, I would hardly have ordered material without making some arrangement about a line of credit. As I understood it, as secretary of the company, there was an arrangement between the Ontario Company and the hardware company by which the Ontario Company was to have a line of credit for the materials they wanted for their use for the mine. We used it, anyhow;” that the bills were not paid on the 1st of every month, and that no demand was made for payment every month.

Cornelius Hedges testified for the defendant that he was president of the mining company; that it had had a special arrangement with the plaintiff when the company made the principle purchase of machinery in its early days; that his company settled in full in November, 1895, upon the accounts due prior to that time; that the amount of credit obtained the first time was agreed upon; that that was a specific trade about certain machinery,- — a special purchase; that there was no special agreement with the plaintiff company at that time, or at any subsequent time, looking to a general line of credit running up to the time the mine closed; that “when we got goods there, and did not pay for them at the time they were delivered, the agreement or understanding as to when they were payable was that we were to pay as soon as we could realize from the resources of the mine.” On cross-examination witness stated that when his company bought the bulk of the machinery, engine and boiler, there was a special understanding between it and the plaintiff; that they had negotiations, and that it was a special arrangement by which the mining company was to pay for the things it got as soon as it could get the money; that he presumed his company continued trading under that arrangement; that íd 1895 there was a general settlement; that everything the company owed up to that time was paid to November 1st; that between November 1st and 13th the account continued as a running account, as far as he knew; and that the mining company continued purchasing on the same account, and under the same arrangement.

The specifications of error relied on are: (1) That the court erred in finding as a fact that the account was fully settled up to and including the 1st day of November, 1895, and during November was fully paid off and discharged. (3) Error is specified, also, in the finding that from and after November 3, 1895, up to and including July 30, 1896, the plaintiff at various times furnished materials to the said mining company, to be consumed in said mine, including many other articles for other purposes, to the amount of 84,430.79, and that these articles were all furnished on credit on account, but in separate bills, and due and payable at the end of each month, with interest for any payment delayed after each bill became due. (3) It is said the court erred in finding that the account contains many articles not used in the mine or mill or concentrator, besides many, the use of which the proof left doubtful, and upon which the court could make no findings as to their use.

Counsel for the hardware company also state that the court erroneously made a conclusion of law to the effect that the account set out in the plaintiff’s statement of lien was made upon a series of independent contracts, and that the monthly bills rendered at the end of each month for • the purchases during the month constituted a separate and independent account and contract from the bills purchased during other months, and that the court erred in concluding that the separate bills of purchase did not constitute a continuous and running account, and that all the materials included in the statement of account for materials purchased and delivered prior to May 1, 1896, were not the subjects of a lien upon, the property of the mining company. Error is likewise predicated upon the finding that certain articles were not lienable, and that the bank has a lien upon all the property involved in this action.

During the trial, and on April 7, 1897, leave was granted to amend the answer, and an amendment was filed on April 14th, but was never actually incorporated into an amended answer. The plaintiff argues that this amendment is not a pleading allowed by law or the rules of practice, and that it can be considered only as an amended answer which superseded the original. Such being the case, and the amendment failing to deny any of the allegations of the complaint, the plaintiff insists that it is entitled to a judgment upon the pleadings. This contention is without merit. Section 773 of the Code of Civil Procedure seems to apply to amendments which may be made as of right, and not those which are permissable only by virtue of an order of court. Under this section a pleading is amended by filing and serving the same as amended. Where, however, leave is granted to amend, the court may require either a copy of the amendment, or the pleading as amended, to be filed and served. Such is the provision declared by section 683 of the Code of Civil Procedure in respect of complaints, and we think the same rule is, by analogy, to be considered as applicable to answers. In the case at bar the court allowed the bank to amend its answer, without specifying which of the two courses mentioned should be followed. The defendant chose, as was its privilege, to follow one method, and not the other. We remark, in passing, that, while eitfier method is proper, the better practice is to file the pleading as amended. The original answer, therefore, was not superceded by the amendment, except in so far as the former is changed by the latter.

The complaint is also made that the defendant bank had no lien upon the real property sold to it and upon which the plaintiff is endeavoring to enforce its supposed lien for materials furnished. The action in which the bank recovered the judgment was commenced in the district court of Lewis and Clarke county. A writ of attachment was duly issued to the sheriff of Deer Lodge county, the situs of the real property. The writ was executed by attaching such real estate. Thereafter the judgment in question was obtained in the district court of Lewis and Clarke county, but a transcript thereof was never filed in Deer Lodge county, nor did the sheriff of that county levy upon or attach the property under the writ of execution issued upon the judgment. It is insisted by the plaintiff that the judgment was not a lien upon the property, because of the omission to file a transcript thereof in Deer Lodge county (section 1200 of the Code of Civil Procedure), and that there was no lien under the execution and sale, because the writ of execution was not returned within 60 days after it was issued, and because the writ of execution was not levied upon the property (sections 1218 and 1224 of the Code of Civil Procedure.) These contentions, also, are without merit. The levy of the writ of attachment created the lien. The property was thereby seized and held, and there was no necessity for filing a transcript of the judgment. The only effect of filing a transcript, it seems, would have been the merger of the lien by attachment into the lien by judgment. (See Porter v. Pico, 55 Cal. 165; Sharp v. Baird, 43 Cal. 577.) An attachment having been levied within the life of the writ, a lien is created, which may be enforced by execution sale without further levy. The fact that the return of the sheriff was not filed within 60 days after the test of the writ cannot have the effect of destroying the lien created by the levy of attachment. (Brusie v. Gates, 80 Cal. 468, 22 Pac. 284; Bloods. Light, 38 Cal. 652, 99 Am. Dec. 441.) When the property has been attached under a writ of attachment, there is no occasion for levying thereon a writ of execution. The lien acquired by the attachment is sufficient. Suggestion was made on the argument that the validity of the title acquired by the purchaser at an execution sale is not impaired or affected by the failure of the sheriff to attach or levy upon the property sold. As to this question we express no opinion.

The original agreement for a line of credit was specially made with relation to the erection of a mill about to be constructed by the company in undertaking its mining operations, but ran along after the completion of the mill. Under the evidence, we think, however, that it was terminated by the payment on November 13, 1895, when all accounts previous to November 1st were satisfied. From the November settlement on, the credit seems to have been extended upon the supposed value of the property, and the somewhat vague understanding originally had was lost sight of by all parties. Monthly accounts were rendered, — one on December 2d for $592.51, for the month of November. Such monthly accounts were always thereafter rendered until July, during which month the mill was closed down. These accounts were acquiesced in. Doubtless, the hardware company believed it might enforce a lien, and at the same time considered itself perfectly secured by the supposed solvency of the mining corporation, and the value of any concentrates it might produce; but the indulgence of not enforcing collection every month as “a matter of grace” on the part of the hardware company, for the accounts were due and payable at the end of each month.

Transactions such as were had between the plaintiff and the Ontario Mining Company are distinguishable from those wherein supplies are to be furnished for the construction of a building or other structure, where a reasonably, if not perfectly, definite amount of material can be counted upon to be furnished from'time to time under one general contract. But purchases for a mining enterprise, made under no special agreement, cannot be considered as constituting a continuing running account. (Big Blackfoot Milling Co. v. Bluebird Mining Co., 19 Mont. 456, 48 Pac. 778.) The law will regard each delivery made in such case as a separate and inde-' pendent contract, — with due regard, however, to the principle that where the agreement is regarded as a current one for each month, and a statement is rendered monthly, the account will be deemed due each month; so that the time for bringing suit does not arise until the end of the month. (Boisot, Mech. Liens, Sec. 724.) Within this principle are the plaintiff’s monthly accounts. As this case is presented, the last item of materials furnished in each month attracted to it all the other items of that month, so that the 90 days within which the statement of lien was required to be filed began to run, as to the accounts for the month, from the day when the last material was delivered. In this sense, the transactions of the month may fairly be regarded as constituting one continuing contract.

Newton’s Case.

Appellant T. P. Newton filed a cross complaint in foreclosure, in which he set forth a copy of a lien he had filed to secure payment for sums due for machinery and supplies furnished to and used by the Ontario company in its mining-operations. The Merchants’ National Bank, by answer, questioned the validity of the Newton lien, and, as against him, also set up its claim to the property by virtue of the purchase at execution sale. Newton relied upon a written contract dated October 31, 1896, which was as follows:

“Helena, Montana, Oct. 31, 1895.

We hereby agree to furnish the Ontario Mining Co., f. o. b. Elliston, all machinery, etc., contained in list marked ‘Exhibit A, ’ for the sum of six thousand two hundred and nine dollars ($6,209), and will have the said material ready to ship by the first of November. We will also furnish all castings required, in addition, at the rate of $3.15 per 100 pounds, f. o. b. Butte.

[Signed] Montana Iron Works, T. P. Newton.

The Ontario Mining Co. of Montana,

by Cornelius Hedges, President. ’ ’

The court awarded Newton a judgment against the mining company for the sum of $6,287.50 and interest, but found that of this amount he was only entitled to a lien for the sum $29.22, with interest, for the reason that the account set out in the statement of lien by Newton was made up of a series of independent contracts, and that no lien could be enforced for any of the merchandise included in the account which was purchased and delivered prior to June 2, 1896; there having been no materials furnished between April 22d and June 2d. Newton appeals from the judgment rendered in accordance with the findings of the court against him, and from an order denying his motion for a new trial. The question presented by Newton’s appeal is whether all of the items set forth in account attached to Newton’s lien were furnished under one contract, or whether the sale and delivery of the various items were under separate and independent contracts.

In the statement of lien filed by Newton on August 1, 1896, there is this entry: “Feb. 12, Concentrator machinery, per contract, $6,209.00.” Then follow items, under dates of February 13th and 15th, amounting to $10. The next item is of March 12th, at which date one Longmaid became manager of the mine. Longmaid testified that when he went to the mine the concentrator furnished by Newton was being-built, and was in running order on April 6th or 7th. The statement shows that in June, 1896, three pairs of eccentrics, with bolts therefor, charged at $30.15, were delivered to the mining company; but Longmaid testified that these eccentrics had no connection with the concentrator Newton furnished, but were used in repairing an old concentrator which was added to. Newton charged interest for the $6,209 item for the concentrator he sold in February, but did not include interest on the other items contained in his statement of lien. Fledges, the president of the company, gave the following testimony as to the clause of the contract concerning castings: ‘ ‘As to what we had in contemplation when the contract was drawn and when I put that into it, my recollection is that there was some part of the castings — just the amount could not be determined, — and the price was stated to apply to all that we needed in connection with that bill of work. We had specifications. There were some things that we could not definitely determine what we did need. That is my understanding. And that was intended to cover them. I had no idea, in connection with the contract, of his furnishing castings necessary for all time that we might run the mine at that price, — simply to complete the contract; to furnish what was necessary in connection with it.5 ’

It is to be observed that the contract with Newton bears date October 31, 1895. The first items on the statement of lien are of November 16, 1895, and there are two other items before the item of February 12, 1896. All these articles went into the concentrator machinery, and are within the special contract. But the items of June, which are the only ones brought within the limit of 90 days, were for repairing old machinery, and wholly independent of the machinery included in the first part of the contract. The last clause of the Newton contract was apparently meant to cover all castings which the company might have to buy to complete the concentrator; such castings to be in addition to the machinery, including castings and supplies, covered by the first clause of the contract. The evidence adduced on the trial tended to support this construction as the one put upon the agreement by the parties themselves. Castings bought in June were charged for at the rate of $4 per 100, instead of $3.15. The explanation that this was a bookkeeper’s error, not discovered by Newton until he was preparing to try the present case, was not accepted by the trial court, and we cannot disturb the finding that the account was made up of a series of independent transactions or accounts.

Caire’ & Hawksworth’s Case.

Caird & Hawksworth also filed a cross complaint, praying for judgment against the mining company for $422.75 and interest, for material sold and delivered to the mining company between March 1, 1896, and July 7, 1896. Judgment was entered for the full amount of their claim against the defendant company, together with interest, but the court decreed that they were entitled to enforce a lien to recover the sum of $313.47 only. They also appeal from the.judgment and an order denying their motion for a new trial.

These claimants filed their statement of lien upon August 1, 1896. The court held that for mining supplies sold and delivered to the Ontario Company prior to May 1st they were not entitled to a lien, inasmuch as the purchases made each month constituted separate and independent contracts. For the purposes of the enforcement of a material man’s lien, we affirm this ruling, as in accord with the decision of Big Blackfoot Milling Co. v. Bluebird Min. Co., 19 Mont. 456, 48 Pac. 778.

The questions presented by these appeals are very close. They have received our repeated and most careful examination; but, the of tener we have consulted, the more we find ourselves drawn to the conclusion that the proper result, under the statutes, "rests in the affirmance of the judgment, and the several parts thereof appealed from, and of the orders of the district court.

It is therefore ordered that the judgment in all respects and the several orders appealed from be affirmed.

Affirmed.

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