author: MR. JUSTICE MILBURN

text:
    FARLIN, Appellant, v. HILL, Respondent.
    (No. 1,396.)
    (Submitted January 29, 1902.
    Decided June 13, 1902.)

      Municipal Corporations — Additions—Reserved Portions — Intention of Parties — Special Assessments — Persons Liable.

    1. Political Code, See. 4724, provides that whenever territory adjoining a city or town is surveyed and laid off into streets or blocks as an addition thereto, it may become a part of such city or town on filing the plat thereof. Section ' ' 5000 declares that an accurate survey and plat of the land must be recorded. Section 5001 provides that the plat must show all streets, alleys, etc., and the width thereof, all grounds reserved for public uses, and give the dimensions of each lot and block. Sections 5004 and 5005 provide that the surveyor and the owner must attach their certificates to such plat. An owrier surveyed certain land, and recorded his plat, showing lots and streets-designated in colors, and a portion, not colored, marked “Reserved,” which addition was accepted hy the city. His certificate stated that he had surveyed the lots and streets shown in colors, and dedicated to the public the streets and alleys thereof. The surveyor's certificate stated that the colored shadings represented the lots, blocks, streets, and alleys. Held, that it was the intention of the owner in giving and the city in accepting the addition that the pieces of land not colored on the plat were to be excepted, and such pieces therefore did not become a part of the corporate territory.

      2. where a certain tract of land was not a part of a city, and the owner was not entitled to the privileges of an owner of city lots, he was under no obligation to pay special assessments for a sewer constructed by the city in the street in front of such land.

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

    INJUNCTION bj William L. Farlin against William L. Hill, county treasurer of Silver Bow county, to restrain the selling •of property for a sewer assessment. From an order dissolving a restraining order and refusing an injunction, plaintiff appeals.
    Reversed.

      Messrs. McBride £ McBride, and Mr. Charles O'Donnell, for Appellant.

      Mr. Bdrain M. Lamb, and Mr. II. A. Bolinger, for Respondent.
   MR. JUSTICE MILBURN

delivered the opinion of the •court.

In 1891 plaintiff and appellant, being then the owner of the Columbia lode claim, in Silver Bow county, outside of the "boundaries of the city of Butte, — that is, entirely without the limits and beyond the dominion of the city, — 'caused to be surveyed and platted a certain part of the said lode claim, as appears from the agreed statement of facts, the part of which •material to this opinion being as follow®:

“It is stipulated by and between the parties to the above-■entitled action that the same may be submitted to the court upon tlie following agreed statement of facts, which embraces all the evidence to be used on the tidal thereof, in granting or refusing to grant an injunction:
“First. That the plaintiff herein, William L. Farlin, in the year 1891, caused to be surveyed and platted a part of the Columbia lode claim, patented, and by suitable proceedings for that purpose the same was annexed to the city of Butte as an addition to said city known as and called, the 'Columbia Addition,’ which said addition was duly accepted by the city council of the said city as the same had been platted and presented by said Farlin. That the exhibit hereto attached, marked 'Exhibit A,’ contains a true and correct plat and, survey of said addition as the same w;as annexed to said city, and said exhibit is hereby made a part- of this statement of facts.
“Second. That the tract of land described in plaintiff’s complaint lies within the exterior boundaries of said addition, but was at all times mentioned in plaintiff’s complaint reserved by said Farlin for mining purposes.
“Third. That after the platting and acceptance by the city of Butte of said addition, an ordinance was passed by the city council of the city of Butte for the construction of a sewer along and under West Park street, in the said city, and immediately opposite the tract of land so reserved, lying directly west of Block No. 1 of said addition; said tract being 179 feet from east to west and 103 feet, in depth from north to south. That afterwards the city council of the city of Butte by a resolution ordered the last above mentioned tract to pay a part of the expense of constructing said sewer, proportioned to its area; the amount of the said assessment, tax and' interest, penalties and charges, claimjed thereon by said city, being the sum of $762.25. That at the time said assessment was made the said tract of ground remained unimproved, not divided into lots, and not used or occupied by any person whomsoever for any other'or different purpose, if at all, than for mining purposes; the said tract being a portion of the surface ground of the said Columbia lode claim, patented, as set out in the plat hereto annexed.”

The said Exhibit A, mentioned in. the foregoing statement of facts, is as follows:

“I, William L. Farlin, an unmarried man of Butte, Silver Bow county, Montana, do hereby certify that I have caused to be surveyed, subdivided and platted into lots, blocks, streets and alleys, as shown by the plat and certificate of survey hereto attached, the following described tract of land, to-wit: All of such portions of the Columbia lode mining claim, Lot No. 541, T. 3 N., R. 8 W>, and the Saturn lode mining claim, Lot No. 367, T. 3 N., R. 8 W., shown in colors upon said plat, said tract of land taken together to be known as the Columbia Addition to-Butte city, Montana, and the streets and alleys thereof as shown on the said plat are hereby granted and donated to the use of the public forever.
“Wm. L. FaRLIN.
“Acknowledged January 8, 1891, before Win. B. Scott, notary public, Silver Bow county, Montana. (Notarial Seal.) [Regular.
“Malcolm McDonald, being first duly sworn according to law, deposes and says: That he is a surveyor, and) that as such surveyor he executed the survey of the Columbia Addition to Butte city, Montana, as showta. by the accompanying plat, between the 1st and 15th days of November, A. D. 1890, in accordance with an Act of the Legislative Assembly of Montana, approved March 14, 1889; that the blue shading represents the lots and blocks, the yellow shading the streets, and alleys, and that the dimensions of all lots and blocks and the width of all streets and alleys are correctly shown on said plat.
“Malcolm McDoNald.
' “Subscribed and sworn to before me this 8th day of January, A. D. 1891.
(Notarial Seal.) “Wm. B. Scott, Notary Public.
“OkKICE OK THE ClTY CLERK OK THE ClTY OK BuTTE. “County of Silver Bow, State of Montana | ss.
“I hereby certify that the plat of the Columbia Addition to Butte city, Montana, was duly and regularly approved by the city council of said city on the 4th day of February, A. D. 1891.
“In witness whereof, I have hereunto set my hand and affixed the corporate seal of said city this 4th. day of February, A. D. 1891.
“P. J. GtlligaN, City Clerk.
“I, Joseph Harper, city engineer of the city of Butte, county of Silver Bow, state of Montana, do hereby certify that the Columbia Addition to Butte city, Montana, conforms with adjoining additions and parts of said city as already platted as near as the configuration of the ground will admit.
“Jos. H. HaRPeev City Engineer.
“Butte, Montana, February 4, 1891.
“This plat is approved hereby this 4th. day of February, 1891.
“JoiiN H. ÜIcQueeNey, Chairman B. C. C.
“JoiiN Caplice, County Commissioner.
“Attest: C. F. Booth, County Clerk.”

The district court, having granted a restraining order, upon a hearing dissolved it and refused an injunction prayed for, to prevent the treasurer from selling the property in dispute to recoyer the amount of the. assessment for special city improvements.

Upon appeal the plaintiff, and appellant, raises three questions, to-wit:

“(1) That the city of Butte, under an ordinance providing* for the making of improvements within a so-called improvement district, and assessing the cost of such improvements upon the land within said district, cannot properly include within such district a mining claim, or ground not used) or occupied for lot purposes and which is not'a part of the city or of any addition to the city; and further:
“(2) That the city of Butte cannot properly levy an assessment upon, or sell for such assessment, land used and occupied solely for mining purposes and which is not a part of the city or of any addition to the city; that before ground can be taxed or assessed for city purposes, it must bo by somie proper proceeding brought within tire city limits and made a part of the city; and
“(3) That even when ground is properly a part of the city and subject to assessment, it can only be assessed upon the basis of benefits received.”

The only question necessary to. be considered is, as raised in points 1 and 2, swpm, to-wit: Is the land iru dispute in the city of Butte and under its dominion and control ? That is, did the appellant in and by his instrument of dedication and addition put the land into the city of Butte? We think that he did not. We are of the opinion that it is dear from the said instrument and acts of the parties, to-wit, the owner1 and the city, that the owner did not intend to ntake the land part of the city, and that the city so understood.

Sections 4724, 5000, 5001, 5004 and 5005 of the Political Code are as follows:

“Sec. 4724. > Whenever territory adjoining any incorporated city or town is surveyed, and laid off into' streets or blocks as an addition thereto, upon filing the map. or plat thereof in the office of the county clerk, said territory may become a part of such city or town, upon the approval of the mayor and a majority of the council indorsed thereon.”
“Sec. 5000. Any person who may lay out any city, town or addition to any city or town, must cause to be made an accurate survey and plat thereof, and cause the same to1 be recorded in the office of the county clerk.”
“Sec. 5001. The plat must show as follows: (1) All streets, alleys, avenues and highways, and the width thereof. (2) All parks, squares and all other grounds reserved for public uses, with the boundaries and dimensions thereof. (3) All lots and blocks, with their boundaries, designating such lots and blocks by numbers, and giving the dimensions of every lot and block. (4) The angles of intersection of all boundáry lines of the lots and blocks, whenever the angle of intersection is not a right angle. (5) The location of all stone or iron monuments set to establish street lines. (6) The exterior boundaries of the piece of land SO' platted, giving such boundaries by true courses and distances. (7) The location of all section comers, or legal subdivision corners of sections within the limits of said plat. (8) The adjoining block corners of all surveyed and adjoining additions'. In case no such section or subdivision comers are within the limits of the plat, it must show a connection line to some corner or initial point of the government surveys, if there be any within one mile of such townsite. All distances marked on the plat must be in feet and decimals of a foot.”
“Sec. 5004. The surveyor must make and subscribe in the plat a certificate that such survey was. mlade according to the provisions of this chapter, stating the date of survey, and verify the same by his oath.”
“Sec. 5005. Tlie owner of tbe land so platted, or Ms duly-authorized attorney, must make on such plat a certificate, to be known as ‘The Certificate of Dedication/ which may be in the following form: -, do hereby certify that-have caused to be surveyed, subdivided and platted into lots, blocks, streets and alleys, as shown by the plat and certificate of survey hereunto annexed, the following described tract of land, to-wit: (Here describe land included in plat) to be known and designated (here give full name of city, town or addition), and the lands included in all streets, avenues and alleys', and parks or public squares shown on said plat, are hereby granted and donated to the use of the public forever. Dated this-day of —■—, A. D. —■—■; wMch must be signed by all the owners and .acknowledged in the same manner as a deed.”

From Exhibit A and the statement of facts it is apparent that the owner only intended to add to the city, and have the ■control of the city extended over, the streets, alleys, lots' and blocks mentioned and depicted in the exhibit, and as colored yellow and blue, respectively; the parts marked “Reserved” not being colored at all. It appears alsoi that he complied with the provisions of the law in manner and form for the making and filing of the plat and instrunrent of dedication and addition. A tract of ground within the exterior boundaries of a city is not necessarily “within the limits of the city.” The District of Columbia might have been located entirely within the outside-boundaries of the state of Maryland, but no one would then have described it as within the limits of Maryland.

The respondent declares that the property assessed, to-wit, one of the uncolored portions appearing on the plat marked “Reserved,” is a part of the city and of the said addition, and that appellant’s contention that it is not is in the face of the following clause contained in the agreed statement .of facts, to-wit, “That the tract of land described in plaintiff’s complaint lies within the exterior boundaries of said addition,” and is opposed to the fact that “the plat shows the property to be surrounded by streets and alleys dedicated to the city, and also within the line marked thereon “City limits.’ ”

Tbe question is did the donor intend to except from the addition the pieces of land not “colored/’ and did the city, understanding such exception to be made, accept the addition as intended by the owner to be made ? We cannot see how there could have been any other understanding. “The tract of land * * * lies within the exterior boundaries'of said addition, hut was at all times mentioned in plaintiff’s complaint reserved by said Farlin for mining purposes.” (Agreed statement of facts.) The mining claim was' a lode claim. The tract was not colored on the plat. Only those portions colored yellow were to be streets or alleys, and only those parts colored blue were to be lots or blocks, as shown' by the plat and its appended certificates, which are part of the statement of facts.

It is apparent to us that the intention, of the donor was to donate part of the surface of the lode claim to the use of the city for streets and alleys, and to plat as lots certain other parts, all very clearly marked and designated by the use of lines and colors. He also, from abundance of caution, put the word “Reserved” upon each of these uncolored tracts which were not within the description of those parts added to the city, to-wit, the yellow and blue sections1. If the colors had not been used and particularly mentioned as they were, then the use of the word “Reserved” on the plat might be ambiguous, and might mean that the tracts so marked were not platted into lots, but, being dedicated! to the public, were reserved for parks or some other public use than alleys or streets; but when used in connection with the other description, and not being colored, it is simply, and very apparently, a fact that the tract assessed was “at all times mentioned in plaintiff’s complaint reserved by said Farlin for mining purposes,” — that is, for the single purpose of a lode claim), — and was not intended to be included within the limits -of the addition, or to be added to the territory of the city; and it is equally clear that the city must have accepted the addition with such understanding. To say that the city, by putting in a sewer in the new! street, would benefit the tract assessed, and that the donor of the addition knew this when he filed the plat, and that this is a fact tending, to prove that he intended toi ad!d the assessed tract to the city, is not sound. It would not benefit the tract any more than a sewer .laid in an outside boundary street would benefit a farm across the road from the city. The sewers of a city are of no use to' those who do not live in the city, whether within the exterior boundaries of the city or not. The territory of a city does not need to be in a compact body. As we have intimated, the District of Columbia might have been located entirely within the exterior boundaries of the state of Maryland, if it had been so ceded and accepted.

From the way that the lots are numbered, it is further somewhat apparent that the owner platted the ground in such a way that if he or any other owner ever cared to add the rest of the lode claim surface to the territory of the city, it might conveniently be done.

The tract is not part of the city, and the owner has no mlore right to privileges, such as am owner of city lots would have, than a lode claim owner has whose property is opposite to the city, and binding on an outside boundary street. Thus, having no such privileges, he is under no obligation to pay taxes or special assessments to the city.

The city having accepted the plat with its eyes open to see and read what the plat and certificates plainly showed and declared, all of which it solemnly accepted, it cannot now exercise dominion over what ivas not turned over to the control of the city.

All that the books disclose in text of writers or in opinions of courts, in regard to the intent of the party making such additions, is devoted to the matter of streets, alleys and parks; but the principles announced by the books, as to such dedication, largely apply to the subject under consideration.

As is said in Mayor, etc. of Baltimore v. Fear, 82 Md. 256, 33 Atl. 638, citing numerous cases: “It has been decided by this court in a number of cases that, in order to make out a dedication, an intent on the part of the owtner to' dedicate his land to the particular use alleged is absolutely essential, and, unless such intention is clearly proved by the facts and circumstances of the particular case, no dedication exists.”

To conclude: It being the desire of Mr. Farlin to1 add the land depicted in yellow and blue to the territory of the city, he could not possibly do so without making a plat, and he could not draw the plat without having the uncolored tracts within the outside boundaries. To make his intention clearly apparent, he used colors and the wtord “Reserved,” and carefully called attention to them in his deed making the addition and donation. If the city thought that the ternfe of the donation and addition were not favorable to the city, and were too favorable to the donor, it could have refused to accept the addition. It acted and must abide by its act of acceptance.

The tract assessed is not part of the city territory which is under the dominion and control of the city.

We have discussed somewhat the fact that in the statement of facts it is agreed that the assessed tract was reserved for mining purposes. We do not, however, consider that it is material for what purpose it w!as reserved if it was not added to the territory of the city. Reversed and remanded.

Reversed and remanded.


source: Caselaw Access Project

author: NR. CHIEF JUSTICE BRANTLY

license: Public Domain

text:
    CAMPBELL, Respondent, v. CITY OF GREAT FALLS Appellant.
    (No. 1,426.)
    (Submitted March 7, 1902.
    Decided June 13, 1902.)

      Appeal from Order Denying a New Trial — Review—Sufficiency of Pleading to Support Judgment — Discretion.
    1. The review on appeal from an order denying a new trial, being limited to the consideration of such matters as may be presented to the trial court as grounds for- a new trial under the provisions of Section 1171 of the Code of Civil Procedure, among which are “errors of law occurring at the erial and excepted to by tbe party making the application,” the question whether the complaint states a cause of action cannot be considered on such an appeal where from the record it does not appear that its sufficiency was questioned during the trial.
    2. Refusal to grant a new trial cannot be held on appeal to be an abuse of discretion, where there is a substantial conflict in the evidence.

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

      ■ ActioN by John T. Campbell against the city of Great Falls. Thure was a judgment for plaintiff, and from an order denying a new trial defendant appeals.
    Affirmed.
    ilír. II. II. Ewing, and Mr. James IF. Freeman, for Appellant.

      Mr. John A. Largeni, and Mr. J. A. McDonough> for Respondent.
   NR. CHIEF JUSTICE BRANTLY

delivered the opinion of the court.

The purpose of this action is the recovery of damages suffered by plaintiff from a flow of water upon his premises caused by the negligent construction by the defendant city of certain drains and ditches to- draw off surface water collected upon the streets and alleys of the defendant and private property abutting thereon. The premises of plaintiff consist of his dwelling and outhouses in the- city, and it is alleged in the complaint that but for the negligence of the defendant in the construction of the said drains and ditches, the injury would not have been suffered. The answer puts in issue the material averments of the complaint, and alleges affirmative defenses. The verdict and judgment were for plaintiff. Defendant has appealed from an order denying it a new trial.

The principal contention made in this court is that the complaint does not state a cause of action. This question cannot be agitated upon this appeal. The appeal being from the order only, our review is limited to the consideration of such matters as may be presented to the trial court as grounds for a new trial under the provisions of Section llll of the Code of Civil Procedure. Among these are “errors in law occurring- at the trial and excepted to by the party making the: application.” (Charles Schatzlein Paint Co. v. Passmore, 26 Mont. 500, 68 Pac. 1113.) The record does not disclose to us, that the sufficiency of die pleading was questioned during the trial by objection to the introduction of evidence on the ground of a lack of material allegations therein, or otherwise. It is only when the sufficiency of a pleading has in some appropriate way been questioned during the trial, and a ruling obtained thereon, with exceptions, reserved, that the question raised, upon it may be examined on a motion for a new trial, or upon appeal from an order denying it. Otherwise (except, of course, upon appeals from interlocutory orders granting or refusing injunctions and the like) the question of its sufficiency may be examined only on appeal from! the judgment.

It. is, argued that the court misdirected the jury to the prejudice of defendant, and that the evidence is insufficient to sustain the verdict. AVc have given the record a careful examination. Our conclusion is that the instructions, taken together, fully and fairly state the law applicable, to the case. The evidence «hows a 'substantial conflict. AATe are therefore not authorized to say that the court abused its discretion in refusing to grant a new trial.

Let the order be affirmed.

Affirmed.


author: MR. CHIEF JUSTICE BRANTLY

text:
    STATE ex rel. HURLEY, Relator, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT et al., Defendants.
    (No. 1,827.)
    (Submitted June 16, 1902.
    Decided June 23, 1902.)

      Appeal — Costs—Necessity for Formal Judgment — 1Memoran-dum of Costs — Filing—Service on Adverse Party — Execution — Authority of Trial Court — Errors in Memorandum— W aiver.

    1. under Supreme Court Rule XVII, providing that in all cases the cost of appeal shall be taxed against the unsuccessful party, no formal entry of judgment for such costs is necessary, but the rule itself disposes of such costs as effectually as though a formal judgment therefor were entered.
    2. Code of Civil Procedure, Sec. 1869, provides that if a party to whom an appellate court has awarded costs wishes to claim them, he must, within thirty days after the remitUtur is filed with the cleric below, deliver to such cleric a memorandum of his costs, verified as prescribed by Section 1867, and that thereafter he may have an execution therefor as upon a judgment. Held, that when a party to whom such costs are awarded has complied with the statute, the cleric must issue execution for his costs whenevér he demands it.
    3. Though the statute (Code of Civil Procedure) does not require service of the memorandum on the adverse party, by analogy such service should be made, and disputes settled as provided by Section 1867.
    4. Subject to a motion to strike out disputed items, the filing of the memorandum has the same effect as a formal entry of judgment, and the trial court has no further function to perform after execution thereon than it has in case of an execution on a final judgment.
    D. where a party to whom the costs of an appeal were awarded erroneously included in the memorandum thereof, filed and served pursuant to Code of Civil Procedure, Sec. 1869, items of costs on the trial below, the adverse party, by failing to make a seasonable motion to strike out such items, and by moving to quash on other grounds the execution issued on such memorandum, waived objection to the erroneous items.

      Certiorari by tbe state, on tbe relation of Mary Ann Hurley, for tbe annulment of an order entered by E. W. Hamey, judge, quashing an execution in relator’s favor for tbe costs of an appeal.
    Order annulled.

      Messrs. Sinclair & Dygeri, for Relator.

      Mr. Thomas A. Morrin, for Defendants.
   MR. CHIEF JUSTICE BRANTLY

delivered tbe opinion of tbe court.

Application for w|rit of certiorari. On appeal to tbis court in a cause entitled “Hurley v. O’Neill” tbe judgment rendered by the district court in favor of the defendant was reversed, and the cause remanded for a new trial. (Hurley v. O’Neill, 26 Mont. 269, 67 Pac. 626.) Within thirty days after the remit-titur from this court was filed in the office of the clerk of the district court, and on March 26, 1902, the plaintiff delivered to the clerk her memorandum of costs incurred upon her appeal, and served a copy of the same upon the defendant. The memorandum contained also' certain items of costsi incurred by the plaintiff upon the trial in the district court prior to the appeal. It was properly verified as required by Section 1867 of the Code of Civil Procedure. Thereafter, on April 24th, the plaintiff, for the purpose of enforcing the payment of the amount so claimed, caused an execution to be issued by the clerk, and placed it in the hands of the sheriff of Silver Bow county. Under it the sheriff levied upon certain real property situate in that county, and belonging to the defendant, and was pxo1-ceeding to advertise and sell it. On May 21st the defendant filed in the district court his motion asking for an order recalling and quashing the execution upon the following grounds: (1) That the execution had been issued by the clerk improvidently and without direction of the proper authority; (2) that the execution was unauthorized, and not issued upon any judgment, or by any authority of court; and (3) that the supreme-court had not awarded the costs of the appeal to the plaintiff, and had made no order whatsoever concerning them. This mjotion was heard by the court, E. W. Hamey, judge, presiding, on May 24th, and an order entered sustaining it. The present proceeding has been instituted to annul this order as in excess of jurisdiction.

There has been no appearance in this court by counsel for the defendants. Counsel for relator contends that, having complied with the requirements of the statute and the rules and practice of tins court, she is entitled, ■ as a matter of course, to an execution for her costs accrued upon the appeal, and therefore that the district, court had no jurisdiction to recall and quash her execution.

Section 1869 of the Code of Civil Procedure provides: “Whenever costs are awarded to a party by an appellate court, if he claims such costs, he must within thirty days after the remUliiur is filed with the cleric below, deliver to such clerk a memorandum of his costs, verified as prescribed by Section 1867, and thereafter he may have an execution therefor as upon a judgment.” Rule XVII of this court, directs that “in all eases the costs of appeal shall be taxed against the unsuccessful party, unless otherwise ordered by this court; and the remittitur shall be accompanied by an itemized statement or such costs as are paid to the cleric of this court.” The order of reversal made at the time the opinion in Hurley v. O'Neill was delivered contained no form'al direction as to the disposition of the costs incurred upon the appeal. The plaintiff, having been successful, however, is entitled under the rule, as a matter of course, to have her costs upon the appeal taxed against, and to recover them from, the defendant. The design of the rule is to adjust the costs on appeal without a"formal order. Its effect is to award the costs, to the successful party, just the same as if a formal order were made in each case. I he items of costs incurred upon appeal neither this court nor its cleric has anything to do with, except such as are paid to the cleric, and these are disposed of when they have been certified in the remittitur to the cleric of the district court. These and all other items claimed must he included in the memorandum required by the statute supra, and filed with the cleric of the district court. When this has been done, the. successful appellant is entitled to an execution for the amount of the bill, and the cleric must, under the direction of the statute, issue it when demland is made for it.

The statute contains no direction for the service of the memo ■ randum upon the adverse party; nor is there, any provision directing how questions arising” upon disputed items may be settled. Since, however, the memorandum must be filed with the clerk of the district court, we think that by analogy service' of it should be made and disputes settled under the provisions of Section 186Y, referred to in Section 1869, supra-. If there is no dispute, then the district court has no other function to perform in the matter than it has in case of an execution upon a final judgment. Indeed, under the statute, the filing’ of the memorandum with the clerk, subject to a, motion to strike out disputed items, but without anything further, has the same effect as a formal entry of judgment.

In this case the court evidently proceeded upon the idea that some formal order disposing of the costs, either by this court or by the district court, was necessary to support the execution. This idea is erroneous. The rule of this court, of which that court is bound to take notice, disposes of the cost as effectively as Avould a formal order. This being true, and there being no dispute as to the amount of the bill, its office was not to obstruct the relator, but rather, to aid her in collecting her costs as awarded by the rale of this court.

As already stated, the memorandum, of relator contained some items of costs incurred upon the trial in the court below. This should not have been done, since Section 1869, supra, has reference to costs of the appeal only. If seasonable complaint had been made of them, they should have been stricken out. No such complaint was. made, nor Avas the order now complained of based in Avhole or in part upon this mistake of relator. Under the circumstances the defendant in that case must, be deemed to have waived it.

The order complained of cannot be supported upon either one of the grounds assigned in the, motion in the court below. It Avas Avholly an excess of jurisdiction, and must be annulled. It is so ordered.

Ammlled.

MR. Justice Pigott : I concur. f

Me. Justice Milburx, not having heard the cause, takes no part in the foregoing opinion.


author: MB. JUSTICE PIGOTT

text:
    RIDDELL et al., Respondents, v. PECK-WILLIAMSON HEATING AND VENTILATING CO., Appellants.
    (No. 1,419.)
    (Submitted March 6, 1902.
    Decided June 23, 1902.)

      Contracts — Express Agreement — Evidence—Parol Agreement —Altering Contract ■— Breach — Partial Performance— Quantum Meruit.

    1. By the terms of a written contract, plaintiffs agreed to furnish all labor and materials necessary for placing a heating plant in a building, the materials and labor to be paid for according to a certain schedule of prices,- . but no time was fixed for payment. Held, that substantial performance of the whole contract was a condition precedent to liability for the whole or any part of the consideration, — the fixing of the prices on the different articles not amounting to a severance; held further, error to admit evidence that at the time the written contract was made an oral agreement was entered into that payments should be made in conformity with a usage and custom, as the work was done and the material furnished.
    2. Held, that where plaintiffs agreed with defendant for a certain sum to put a heating plant into a building, defendant having contracted to put it in, and plaintiffs abandoned the work without good cause after a part of the plant had been put in, there being no severance of the contract nor apportionment of tne consideration, they might not recover on a quomtmm meruit for the value of the work done and materials furnished.
    3. That after the action was commenced plaintiffs finished the work for the owner, who charged the cost to defendant, was of no moment.

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

    Action by J. A. Riddell and another against the Peck-Williamson Heating & Ventilating Company. Erom a judgment for plaintiffs, defendant appeals.
    Reversed.

      Messrs. Luce & Luce, and Mr. C. B. Matthews of the Ohio Bar, for Appellant.
    The covenants went to the whole consideration on both sides. They were mutual conditions the one precedent to the other. (Lowier v. Bangs, 2 Wallace, 128, Opin. 736; Hutchimson v.
      Wetmore, 2 Cal. 310-312; Ernst v. Currújtvtngs et al., 55 Cal. 179.) The consideration is single and entire, although the subject of the contract may consist of several distinct and wholly independent items. (Miner v. Bradley, 22 Pick. 457; McMillan v. Vanderlip, 12 Johns. 165 ; Isaacs v. McAndreius, 1 Mont 437; 7th Am. & .Eng. Enc. (2d Ed.), pages 95, 96 and 97, and cases cited; Baker v. Higgins, 21 N. Y. 397, Opin. 398-399; Kein v. Tupper, 52 N. Y. 550; Ilusted v. Craig, 36 N. Y. 221; Noms v. Harris, 15 Cal. 226; Moore v. Bonnet, 40 Cal. '251-254.) The contract being entire by the very nature of the agreement, before a recovery could be had upon the contract, it was necessary for the plaintiffs to allege the completion of the contract upon their part or to show some good excuse for the non-performance. (4th Enc. Plead. & Prac. 627, 628, 629, 630, 631 and 632, and numerous cases cited therein; Lester v. Jewett, 11 N. Y. 453; Dunham v. Mann, 8 N. Y. 508.) The first cause of action therefore did not state facts sufficient to constitute a cause of action. “If the performance of the condition precedent is essential to the right of action, an omission to allege performance is a defect that can be taken advantage of at any stage of the action.” (4th Enc. Plead. & Prac. 660 and 661, and cases cited; Bermare v. Bine Valley, 53 Wis. 527; Webber v. Greenfield, 74 Wis. 236.) Having refused to proceed with the work under the contract, plaintiffs could not recover in this action. (Isaacs v. McAndrews, 1 Mont. 437; Franklin v. Schultz, 23 Monk 165; McMillan v. Vanderlip, 12 Johns: 165; Jones v. United States, 96 IJ. S. 24; Smith’s Leading Cases, Yol. 2, page 1; Ernst v. Cummings et al., 55 Cal. 179; Clarke v. Collier, 34 Pac. 677; Krumb v. Campbell, 102 Cal. 370 ; Mount v. Lyons, 49 N. Y. 552; 7 Am. & Eng. Enc. of Law (2d Ed.), page 97;.Moore v. Campbell, 12 N. E. (Ind.) 495; McGonigle v. Klein, 40 Plac. 465; Cox v. W. P. R. R. Co., 44 Cal. 18; Cox v. McLaughlin, 54 Cal. 605; Palm et al. v. Railroad Ca., 18 Ill. 219.)
    The mere failure to pay the money due upon the contract, before the completion of the work, did not constitute such a “prevention” as justified a recovery in the present action.
      (Mount v. Lyons, 49 N. Y. 552-553; Gox v. McLaughlm, 63 Cal. 196; Bogardus v. N. Y. Life Insurance Go., 101 N. Y. 328, 4 N. E. 522; Alabama Gold Life Insurance Go. v. Gar-mary, 74 Ga. 51; Archer v. McDonald, 36 Ilun. (N. Y.) 194.) Partial failure to perform will not entitle one party to rescind tbe contract unless it is destructive to the1 contract. (2 Parson on Contract, 679, 680 and 681.) Tbe contract being-clear and unambiguous, and tbe law itself fixing tbe time for payment under sucb contracts, no custom or usage could be invoked to put a different construction upon tbe contract or to alter or vary its terms. “Tbe language of a contract is to govern its interpretation if tbe language is clear and explicit and does not involve an absurdity.” (Sec. 2203, Civil Code of Montana; Hawley v. Brumagin, 33 Cal. 394; Norton v. Wood-ruff, 2 N. Y. 153; Sec. 2202 of tbe Civil Code; Sedgwick on Construction of St at. and Const. Laws (2d Ed.), page 195; United States v. Fisher et al., 2 Crancb, -pages 385 Opin. bottom 399.) It is clear tbat tbe court should have stricken out all of tbe allegations relating to the alleged custom and usage as to time of payment. (Sec. '3146, Code of Civil Procedure.)
    Custom or usage can not control tbe legal rules applicable to tbe construction of a contract and evidence tbat by a custom a contract means something different from what its terms clearly import is-inadmissible. This is tbe invariable rule. (Barnard v. Kellogg, 10 Wallace on pi 391; Shell v. Hall, 107 Mass, page 134; Wilson v. Smith, 111 Ala. 170; Partridge v. Phoenix Mwt. L. Ins. Go., 15 Wall. 572; Randolph v. Halden, 44 Iowa, 327; .Land v. Henderson, 63 Mich. 302; Barnard v. Kellogg, 10 Wall. 383, 391, 394; Sweeney v. Thompson, 9 Lea (T'enn.), 359; Chambers v. U. S., 24 Ct. of Cl. 387; Fitzgerald v. Hanson, 16 Mont. 474.) Nor can custom and usage be invoked to vary tbe legal import of a contract. And where by judicial construction a contract has a certain meaning, tbat meaning can not be valued by evidence of usage'. (27 Am. & Eng. Enc. page 862; see pages 863 to 866, and cases cited, particularly Groate v. Gile, 51 N. Y. 431; Rice, on Evidence, Yol. 2, See. 351, particularly pages 908-909; Wilson v. Knott, 3 Humph. (Tenn.) 473 ; Ripley v. Grooher, 42 Me. 370 to 374; Moran v. Prather, 23 Wall, 492 to 499 and 500; Baltimore Baseball and Exhibition Go. v. Piclcet, 22 L. R. A. 690 to 692; Fairley v. Wappoo Mills, 29 L. R. A. 215.)
    It has been beld that usage and custom cannot be proved to show that services under an entire contract are payable pro rata, as that would vary the contract itself. (Petty v. Gayle, 25 Ala. 422; West v. Ball, 12 Ala. 340.) “Expressions of the court are perhaps unanimous to- the effect that the operations of settled rules of law cannot be changed by proof of the usage having a contrary effect. If on a given state of facts the right and liabilities of the parties to a contract are fixed by the general principles of the comiinon law, they can not be changed by any local custom.”. (27 Am. & Eng. Ehc. of Law, pages 782’ and 783, and cases cited; Dwight v. Boston, 12 Allan, 316; Thompson v. Riggs, 5 Wall. 663-667; Ilinton v. Loche, 5 Hill, 437; Schooner Reeside, 2 Sumner, 567; Thompson v. Ashton, 14 Johns. 316;'Sec. 2186, Civil Code; Sec. 3132, Code of Civil Procedure; Fisher v. Briscoe, 10 Mont. 124.) It is the universal rule that where the words of the contract are not uncertain in themselves that proof of a different meaning or an oral agreement different than the writing contemporaneous with it can not be introduced. (Goldman v. Davis, 23 Cal. page 256; Guy v. Bibend, 41 Cal. page 322-325; Ward v. Macnaughton, 43 Cal. page 159; Baker v. Higgins, 21 N. Y. page 397; Gray v. Harper, 1 Story, 574; Yol. 1, Greenleaf on Evidence, Sec. 277, and see Sees. 278-280 and 281; Jingerman v. Bovee, 19 Cal. page 355, Op-in. 364.) It is the universal rule that where a party has an election between one of two inconsistent remedies he is confined to that which he first chooses, and it has been held that where a choice- has once been made the right to- follow the other is forever gone. (Morris v. Rexford, 18 N. Y. .552; Rodermund v. Cla/rh, 46 N. Y. 354; Bowen v. Manderville, 95 N. Y. 237; Hanly v. Kelly, 62 Cal. 155, Opin. 159, and eases cited; Moiler et al. v. Tusha, 87 N. Y. 166; 7 E'nc. Plead. & Prac. pages 361-364.)
    If a special written contract is subsisting, a party may not abandon it and sue in assumpsit at bis option. Tbe action muse, be on a special contract. (Glarke v. Smith, 14 Johns. 326; Dermott v. Jones, 2 Wall, page 1; Gutter v. Powell, 2d Smith’s Treading Cases, page 1, and see Wall, note, page 48;Gatlin- v. T&bias, 26 N. T. 217; Greenleaf on Evidence, Yol. 2, Sec. 104; Jennings v. Camp, 13 Johns. 95; Faxon v. Mansfield, 2 Mass* 147; Whiting v. Sullivan, 7 Mass. 109; Miller v. Watson, 5 Wend. 67; Bradley v. Levy, 5 Wis. 400: 4th Enc._ Plead. & Prac. pages'923 to 925, where numerous cases are cited ; O’Con-nor v. Dingley, 26 Cal. 13; Beadle v. Graham, 66 Ala. 99; Johnson & Sloan v. Glan'h, 22 Ga. 541; Alabama Gold L. las. Go. v. Gannary, 74 Ga. 51, Opin. pages 58 and 61, and cases cited; Barden v. James, 48 Ala. 33, 37 and 38; Swift v. Williams, 2 Ind. 365, Opin. 368, and cases cited.)
    In Olmstead v. Beale, 19 Pickering, 528, Justice Morton said: “The plaintiff can not recover on his express contract because he has not executed: it on his. part, and the performance is a condition precedent to- the payment. He can not recover on a quantum meruit because an express contract always excludes an implied one in relation to the same matter. (Wooten v. Read, 2 Sm[edes & Marshall-Rep. (10 Miss.) 585; Cobb v. West, 11 N. Y. Superior Court (4 Duer, 38) ; Mack v. Bragg, 30 Yt. 571; Gatlin v. Gunter, 1 Neman, 328; McGonigle v. Klein, 40 Pac. 465.) It can not be claimed that this is a case where assumpsit will lie because the work and: labor performed was a benefit to the plaintiff. If flues and ducts> stone work, etc., went up as the agricultural college was constructed, the defendant could not tear out what had been already done. This case comes within the rulo laid down in Franklin v. Schultz, 23 Mont., above cited. See Faulkner v. Purl, Smith’s Rep. 275, (Ind.) This case could not even come within the exception, for it is only where work is: done in nonconformity with the contract that assumpsit will lie, unless the contract has been fully completed. The plaintiffs’ claim that the work was done in strict conformity with the contract.
    The second cause of action was in no sense an amendment to the cause of action upon the written contract, but it introduced an entirely new cause of action. It did not correct the name of a party or a mistake or imperfection, in tbe original complaint. Suck amendments aré forbidden at common law and under tbe Codes. (1st Enc. Plead. & Prae. 541-557, and notes; Whalen v. Gordon et al., 95 Eed. 305; Gillis et al. v. Oohe et al., 59 N. E. 455.)
    The court should have compelled the plaintiffs to elect upon which cause of action they would proceed to trial. (Bice v. King, 1 Johns. 20; Bowen v. Mandevüle, 95 N. Y. 237-241; Boone, Code Pleading, Vol. 1, Sec. 36; Scofield v. Miltimore, 14: Wis. 194; Deweyi v. Fifield, 2 Wis. 73; Estee’s Pleading (4th Ed.), 319 A.)

      Messrs. Hartman & Hartman, for Respondents.
    Respondents' contended in the court below and still contend for the following propositions :
    1. Respondents conferred upon appellant a benefit to the amount of $9,312.96 through the partial or imperfect performance of their contract, which benefit appellant accepted, retained and enjoyed. They then abandoned their contract through poverty and other forces with which they could not contend, but they may nevertheless maintain an action against appellant to recover the value of the benefit so conferred, less the amount, if any, which appellant ivas damaged by reason of the abandonment of the contract. Under the contract in question appellant having agreed to pay for all material and labor furnished to it, respondent could at any time sue for and compel the payment for material and labor furnished in accordance with the contract up to such time, the contract being silent otherwise as to the time of payment. Assuming that appellant’s contention that the contract in question is an entire contract is correct, the fact that the labor and material valued at $9,312.96 was furnished to and retained by appellant for its use and benefit after respondents abandoned their contract, constitutes a severance of the entirety of the contract, and appellants are liable to respondents for the value of such labor and material so furnished and retained, subject only to reduction for such damages as appellant may have sustained by respondents’ failure to fulfill their contract. (Bishop on Contracts (Enlarged Ed.), Secs. 1442, 1444 and 1445; 2 Parsons on Contracts (6th Ed.), page 523.) We concede that formerly this was not generally the rule declared by the courts; yet even in the earlier period of the law’s growth some courts established this wise and salutary rule. However, even yet some of the courts state the rule to the contrary, notably those of New- York, Wisconsin, Michigan, Alabama and Kentucky. Pennsylvania has stated the rule both ways, so has Kentucky, but the courts generally, aside from these, and especially in the later decisions, state the' rule as above contended for. Even where the case is one of personal employment and themnploye abandons his contract without full performance and without cause, the tendency of the later cases is toward állowing him to recover for the service rendered where the employer actually receives benefit from the labor performed which benefit' is in excess of the damages accruing to him by reason of the abandonment of the contract. (Jordan, v. Fitz, 63 N. H. 227; Britton v. Turner,' 6 N. H. 492, 26 Am. D'ee. 713; Elliott v. Heath, 14 N. H. 131; Clough v. Clough, 26 N. H. 24; Parcell v. McComber, 11 Nieb. 209; McMillan v. Mallory, 10 Neb. 228, 39 Am. Rep-. 471; Duncan v. Baker, 21 Kan. 99; Byerlee v. Mendel, 39 Iowa, 382; Biggs v. Horde, 25 Tex. Supp. 456, 78 Am. Dec. 384; Byrdv. Boyd, 17 Am. Dec. 740; McDonough v. Evans Marble Co., 112 Eed. 637; Saunders v. Short et al., 86 Fed. 229-230.) Some courts hold this on the ground that the wages áre payable in installments. (Matthews v. Jenkins, 80 Ya. 463; Chamblee v. Baker, 93 N. C. 98 ; Davis v. Preston, 6 Ala. 83; Ricks v. Tates, 5 Ind. 115), and this is held to be the rule even where the contract is entire. (Wal-worth v. Vinnegan, 33 Ark. 751; Smith v. Keith & Perry Coal Co., 36 Mo. App-. 567.)' In many eases the courts hold that the acceptance formally or substantially by using thé materials furnished o-r labor performed constitutes in itself a severance of the entire contract and the defendant cannot be heard to- say that it is entire. (White v. Qillman, 43 Ill. 502; Tessler v:

      Love, 43 Pa. St. 313; Sullivan v. Mining & Milling Co., 77 Cal. 418;: Walicer v. Millard, 29-N. T. 375; Maloney v. Rwsi, 42 Conn. 236; Freeman v. Cammell, 22 Ga. 184; Allen y. Willis, 4 La. Ann. 97;Thompson v. Percell, 92 Mass. 426; Austin v; Keating, 21 Mo. App*. 30; Fleischman v. Miller, 38 Mo. App*. 177; Linnenkohl v. Winkelmeyer, 54 Mo. App. 570; He-man r. Compton Hill Imp. Coi, 58 Mo. App*. 480 ;6romer v. McPhee (Colo.), 31 Pac. Pep. page 119.) Tbe following cases are also in support of tbe principle contended for-: Greene y. Haley, 5 R. I. 260; Elliott v. Haycock', 25 Pa. St. (1 Casey) 382; McLaughlin v. Hess, 164 Pa. St. 570; ‘Spear v. Snyder, 29 Minn. 463; Cleary v. Sohier, 120 Mass. 210; Butterfield y. Byron, 153 Mass. 517, 27 N. E. 667; Richardson y. Shaw, 1 Mo. App. 234; Haynes y. St. L. Baptist Church, 12 Mo. App 536; Haynes v. Second Baptist Church, 88 Mo: 285'; Wilson y. Knott, 22 T'enn. (3 Ilumpb.) 473; Hollis y. Chapman, 36 Tex. 1; Weis v. Devlin, 67 Tex. 507, 3 S. W. 726; Hindrey y. Williams, 12 Pac. 436; BrackettY. Morse, 23 Vt. 554; Lee v. New Haven M. & IT. R. Co., Eed. Case No. 8,197; Porter v. Arrowhead Res. Co., 100 Cal. 500; Strington, etc. Co. v. Riley, 8 ICy. Law Rep*. 267; Bean v. Miller, 69 Mo. 384; Mugan v. Regan, 48 Mo. App. 461; Bennett v. 'Shaughnessy, 6 TJtab, 273, 22 Pac. 156; Hill v. Hovey, 26 Vt. 109; CargainY. Everett, 62 Hun. 620; Avery et al. v. Willson, 81 N. Y. 341; Eerrel y. Wilson, 19 N. Y. Supp. 209. Tbe case of Isaacs v. McAn-drews, 1 Mont. 437, is relied upon by appellant While we do not tbink tbe facts in that case are so similar to’ tbe facts in this that tbe doctrine therein laid down could be applied, yet we submit that tbe authorities cited in support of it on page 4-51 are very old and tbe courts of all tbe states; except New York, there cited subsequently laid down tbe better rule which we contend for. Even in Mississippi, where the- courts have carried tbe -doctrine contended for by appellant to tbe extreme, tbe court there bolds in one case that where a railroad contractor is, by the terms of bis contract, to be paid in installments as tbe work- advances, the contract is not entire and be is entitled to recover for tbe work don© if defendant refuses to pay "the installments ás provided. ( Wright v. Peine, i Smedes & M. Cb: (Miss.), 282.) Of course in such cifcumstánces tbe amount of the recovery is limited to dr rather determined by the price fixed in the contract. (Brigham v. Hawley, 17 Ill. 38; Mc-Clelland v. Snider, 18 Ill. 58; Follioii v. Hurd, 21 Ill. 654; Chicago V. Sextorv, 115 Ill. 230; McClure v. King, 15 La. Ann. 220; Tautholl v. Ness, 35 Minn. 310; Ibers v. O’Donnell, 25 Mo. App. 120; Austin v. Austin, 47 Vt. 311; Western v. Sharp, 53 Ky. 177; Carpenter v. Gay, 12 R. Í. 306.)
    2. The contract being silent as to time of payment, such payment would be made according to' any custom, of usage which prevailed where the contract wlas to be performed. If a custom or usages with reference to paynients existed, it was competent for the parties to agree outsidé of and contemporaneous with the written contract that such custom or usage should control the question of payments in the absence of any provision in the written contract. Irrespective of whether any usage or custom prevailed with reference to payments, it was competent fof the parties to enter into1 a contemporaneous oral or written agreement as to the time of payment, for no time for such payments was specifically fixed by the contract, and such agreement did not contradict or vary the terms of the contract. (Civil Code, Secs. 2211, 2209, 2210, 2212, 2220, 2221; Code of Civil Procedure, Sees. 3132, 3136, 3137, 3139, 3140, 3Í46, Subdivision 12; Clark on Contracts, pages 580-581, 576, 574; Hulbert v. Dusenbery, 57 Pac. 860; Swers v. Swers, 97 Cal. 518; Bradford Inv. Co. v. Boost, 48 Pae. 1081, on page 1083; Walters v. McCart (Wash.), 63 Pac. 1121; Weehs v. Medler, 20 Kan. 57; 1 Gtreenl. Ev. 303.)
    3. In this case respondents might have sued upon the quantum meruit without reference to the contract, simply alleging that the material and’labor was furnished and performed for and accepted and retained by appellant, in which case the contract price would be the quantum meruit or measure of the value of respondents’ recovery. It was also competent for respondents to declare in one count upon the contract together with the usage or custom controlling the payments and the oral contemporaneous contract as to tbe time of payments, and allege the amount due for labor and material furnished untjer the contract in accordance with the contract price, and in another count to set up the same facts1 in the form of the quantum, meruit so that their pleading might respond to every possible state of the proofs. Having plead the facts both ways, it would have been error for the court to1 have compelled respondents to elect upon which cause of action or account they would rely at the trial, as respondents would thereby have been deprived of the very advantage which the rule permitting, the same cause of action to be stated in different forms so as to meet every possible state of the proofs confers upon the pleader; and under the pleading in question appellant could not have been at any possible disadvantage as both counts of the second amended complaint informed it in detail that respondents were seeking to recover for the same material furnished and labor performed in each count. (Bliss, Code Pleading (3d Ed.), Sec. 120; Estrella, Vineyard Co. v. Buttlor (Cal.), 57 Pac. 981; Cowan v. Abbott, 92 Cal- 100; Benvy v. Olds, 88 Cal. 537, pages 540 and 541, and 34 Pae. 217, and cases there cited; Cridley v. Qridley, 24 N. Y. 130; Bucher v. Hall, 105 Cal. 425 and 429; Manders v. Croft (Colo.), 32 Pae. 836; Wordman v. Davis (Kan.), 4 Pac. 263; Abbott’s Trial Brief Civ. pages 83, 84 and 87; Waggy v. Scott, 29 Ore. 386, 45 Pac. 774; Clarh y. Byon,, 95 Ala. 406; 1Vare v. Beese, 59 Ga. 588; Chiles v. Griichfield, 2 Mo. App. 1351; Waterman, v. Waterman, 81 Wis. 17; Manning v. Dallias, 73 Cal. 420; Brmgham v. Knox, (Cal.), 59 Pac. 198; Leehe v. Hancock, 76 Cal. 127; Code of Civil Procedure, Secs. 672, 773; Burgess v. Helm, 51 Pac. 1025.)
   MB. JUSTICE PIGOTT

delivered the opinion of the court.

• This action was brought on a contract to recover judgment for $9,312.96, besides interest. The plaintiffs recovered a judgment for $9,743.67, with costs. From it and an order refusing a new trial, the defendant prosecutes these appeals.

■Riddell and Suiter were eo-partners. Suiter, in bis own name, but for tbe benefit of the firm, on August 5, 1895, entered into a contract with the executive board of the state agricultural college for the erection by him of ceidain buildings. Thereafter the defendant (a corporation) and the executive board miada a contract by which the defendant agreed to install a heating and ventilating plant in the buildings. Subsequently, and on August 15-, 1896, Suiter, in his own namej but for the partnership', entered into a contract, which was reduced-to writing, and subscribed by the parties as follows:

“Bozeman, Mont., August 15th, 1896. Agreement entered into this date by and between Charles Suiter, of Helena, Montana, general contractor for furnishing the material and building the buildings for the Montana State Agricultural College, Bozeman, Montana, the party of the first part, and the Peck-Williamson Heating and Ventilating Company, Cincinnati, Ohio, party of the second part. - The party of the first part agrees to furnish all the extra material and do all the extra labor that is now not contracted for in general contract for buildings that is necessary toi install the heating, ventilating, and sanitary apparatus of the party of the second part in the Montana State Agricultural College Buildings, Bozeman, Montana. All material and labor party of the first part furnishes party of the second' part to be paid for by party of the second part according to the following schedule of prices:” the remainder of the instrument being devoted to the rules for measi-uring the work, the description of the material to be used, and the schedule of prices. The contract does not expressly provide when payment shall be made.

Prior to June 22, 1897, the plaintiffs had performed labor and furnished material under the terms of the contract, which, according to the schedule of prices, amounted to $9,312.96, and which entered into and became parts of the buildings, and cannot be removed. Prom that day they ceased work, and have never done anything further under .the contract. They abandoned it because the defendant refused to> pay for the labor and material already performed and furnished, and were unable to proceed for lack of funds. They left undone work amounting to- $2,227.67. Their second amended complaint purports to state two causes of action. The first cause of action is based upon the written contract. They allege performance thereunder to- the extent of $0,312.96, and refusal by the defendant to pay, and .aver that at the time the written contract was signed there was an oral agreement that payments should be made as the labor and material were done and furnished and measured in the buildings and approved by the architect or by.the defendant; that a local.usage or custom to that effect was in existence, and that the written contract was made with reference thereto, and with the intention that the usage and custom ivere to control its interpretation. In the second cause of action the plaintiffs counted upon the furnishing of the material and upon the doing of the labor mentioned at the request of the defendant, and alleged the value thereof to be $9,312.96; in short, a quantum meruit and valebat count.

1. Can the action be maintained upon the special contract ? The defendant contends that it was prematurely brought. Upon its face the contract is entire, and the consideration single. The intention of the parties, as disclosed and evidenced by the terms of their engagement reduced to writing, ivas that the defendant should not become indebted to Suiter unless and until he furnished all the material and did all the labor specified in the contract. There was in the contract no time expressly appointed for payment, but the law made the price due and payable upon complete performance by Suiter or his firm. Substantial performance by Suiter of his promises ivas a condition precedent to the company’s liability under the express contract to pay the whole or any part of the consideration. (Franklin v. Schultz, 23 Mont. 165, 57 Pac. 1037.) The fixing of prices upon the different items did not operate as a severance (Isaacs v. McAndrew, 1 Mont. 437) ; it ivas a mere means of ascertaining the total compensation to be paid in the event Suiter executed the undertaking.

The plaintiffs alleged that at the time the written contract was made an oral agreement was entered into that payments should be made, in conformity with a usage and custom, as the work was done and the material furnished and measured to the approval of the architect or of the defendant, and that the contract was made with reference to such usage and custom, and with the intention that the interpretation of the contract should be controlled thereby. We doubt whether the evidence was sufficient to establish either such alleged oral agreement or such alleged usage or custom. For the purposes of these appeals, let the sufficiency of the evidence be assumed; let it be assumed that the oral agreement accompanied the making of the written contract,' and that such a custom as the one pleaded then existed; and let it further be assumed that, the customj and oral agreement being proved, payments as the work progressed was a condition precedent to plaintiffs’ obligation to complete the terms of the written contract This evidence tended to prove a severance sub modo or an apportionment; and, if payments were to be made according to- custom or as orally agreed, then a cause of action accrued as soon as the defendant failed to make a payment when it should have been made. Default in making such payment would have entitled the plaintiffs, if they continued to perform under the contract, to recover judgment for the price of the Work already done; or such default would have warranted them; in treating the special contract as at an end, and authorized them to maintain an action on the implied promise of the defendant to pay the reasonable worth of the labor done and material furnished. They could, at their option, have pursued either course. Was the evidence admissible over the objections interposed by the defendant? Its competency was seasonably challenged by objections and motions to strike on the ground that the plaintiffs- sought thereby to alter or contradict the terms of the written contract; to the overruling of these the defendant reserved exceptions. Section 3132 of the Code of Civil Procedure, which declares a common-law rule (Gaffney Mercantile Co. v. Hophins, 21 Mont. 13, 52 Pac. 561), provides that: “When the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms, and therefore there pan be between the parties and their representatives, or successors in interest, no; evidence of the terms of the agreement other than the contents of the writing, except in the following cases: (1) Where a-mistake or imjperfection of the writing is put in issue by the pleadings. (2) Where the validity of the agreement is the fact in dispute. But this section does not exclude other evidence of the circumstances under which the agreement Avas made, or to Avhich it relates, as defined in Section 3136, or to explain an extrinsic ambiguity, or to establish illegality or fraud. The term ‘agreement’ includes deeds and wills, as Avell as contracts between parties.” Section 2204 of the Civil Code declares the familiar principle that “when a contract is reduced to Avriting, the intention of the parties is to be ascertained from the Avriting alone, if possible; subject, however, to the other provisions of this title.” Section 2186 of the CNil Code provides: “The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument.” Section 3146 of the Code of Civil Procedure announces no new rule Avhen it prescribes that eAddence may be given upon a trial of “usage, to explain the true character of an act, contract or instrument, Avhere such true character is not otherwise plain; but usage is never admissible, except as an instrument of interpretation.”

It is perfectly clear that the evidence was erroneously received. The rule which prohibits the reception of evidence of oral promises or agreements made prior to or contemporaneously Avith the execution of a Avritten contract purporting to' embrace all its terms, Avhich contradict, change, add to, or subtract from the express terms, is declared and interpreted by the decisions of this court, as Avell as prescribed by statute: Knox v. Gerhauser, 3 Montana Reports, 278; Fisher v. Briscoe, 10 Montana Reports, 124, (25 Pac. 30); Anderson v. Perkins, 10 Montana Reports, 154, (25 Pac. 92); Gaffner Mercantile. Co. v. Hopkins, 21 Montana Reports, 13, (52 Pac. 561); Sanford v. Gates, Townsend & Co., 21 Montana Reports, 277, 289, (53 Pac. 749); Armington v. Stelle, ante, p. 13, (69 Pac. 115). This rule is applicable to oral negotiations and agreements which vary the legal construction and import of a written contract, although they do not contradict its express terms. (Cliver v. Heil, 95 Wis. 364, 70 N. W. 346, and cases there cited; 27 Am. & Eng. Enc. Law) (1st Ed.), p. 862.) As to evidence of usage and custom, a similar rule prevails (Fitzgerald v. Hanson, 16 Mont. 474, 41 Pac. 230); it is never admissible when inconsistent .with' any necessary implication from the express terms of a written agreement, nor to vary, or contradict the legal import or effect of the contract: The testimony concerning the alleged oral agreement and supposed usage and custom in respect of the times when payments were to be made varied the legal import and effect of the written contract, and should have been excluded. It added an incident which is inconsistent with the legal interpretation of the express terms of the contract. . • ■ .

-The action cannot be maintained upon the special contract in writing.

2. Under the circumstances, can the action be maintained upon the quantum meruit and valebai count?

This is not an action where, in an attempt in good faith to perform a contract, there have been comparatively unimportant deviations from, or omissions to conform to; its terms. On the contrary, it is a case where the plaintiffs, after partly performing an indivisible contract, without legal cause voluntarily abandoned and refused to complete it, leaving the work unfinished in important and substantial particulars. They insist that they may disregard the express contract which they have refused to perform, and recover the value of the labor and material in an action upon a new contract which they say has arisen from the retention by the defendant of the benefits conferred by part performance of the express contract.

The question involved has been the occasion of decisions almost innumerable. The greatest contrariety of opinion exists. Britton v. Turner, 6 New Hampshire Reports, 481 (26 Am. Dec. 713), is perhaps the leading case in the United States, for tbe view tbat tbe wrongful refusal to perform and willful abandonment of a special contract does not preclude tbe violator from maintaining an action upon tbe eommon counts for tbe reasonable value of tbe services rendered and material furnished. It wasi an action in assumpsit upon tbe quantum meruit for personal services rendered by tbe plaintiff 'as a laborer under an entire contract abandoned by bim after part performance. - Although tbe soundness of that decision was doubted by tbe same court in Davis v. Barrington, 30 New Hampshire Reports, at page 529, it still remains tbe best evidence of -tbe law for the state where it was made.. Several other jurisdictions follow it. Some of the- courts which approve Britton v. Turner decline to apply its rule -to tbe part performance of a building contract, making a distinction which does not seem to rest upon any real difference between tbe two sorts of contracts. Of tbe decisions to tbe contrary, Lantry v. Parks, 8 Cowen, 63; Smith v. Brady, 17 New York Reports, 173, (72 Am. Dec. 442); Eldridge v. Rowe, 2 Gilman, 91, (43 Am. Dec. 41); Brown v. Fitch, 33 New Jersey Law Reports, 422; Serber v. McLaughlin, 97 Illinois Appellate Court Reports, 104; Gill v. Vogler, 52 Maryland Reports, 663; Timberlake v. Thayer, 71 Mississippi Reports, 279, (14 South. 446, 24 L. R. A. 231); Widman v. Gay, 104 Wisconsin Reports, 277, (80 N. W. 450), and Cochran v. Balfe, 12 Colorado Appeal Reports, 75, (54 Pac. 399)—are typical. In Franklin v. Schultz, 23 Montana Reports, 165, (57 Pac. 1037), tbe question was reserved.

We think the rule of Britton v. Turner, supra, is opposed to the -weight- of authority, and in conflict with fundamental principles of law. The opinion in that case vigorously and plausibly presents the reasons which moved the court to its conclusions, but it impresses us as proceeding upon a false premise. Judicial tribunals should not assume power to compel tbe discharge of mere ethical duties arising from imperfect or moral obligations. Without a wrong there is no cause of action. A wrong is tbe breach of a legal duty. A legal duty is an obligation arising either from tbe contract of tbe parties or tbe operation of law. (Sections 1920, 1921,* Civil Code.) Unless A. fails to discharge -a legal duty which he owes to B., the latter’s rights are not invaded, by the former. He has not been wronged, and consequently a cause of action in his favor has not accrued. According to the dictates of morality, it may well be that A., having received a benefit, which he must keep1 and cannot return, from the part performance of an entire contract by B., who wilfully and without valid excuse refused to perform fully, should be willing to do unto B. as he would have B. do unto him were their relative positions reversed, namely, pay a sum equal to the, net value of the benefit But the law, as we understand it, will not compel him to this. He agreed to pay when B. had performed the conditions, and not before. He has the legal right to stand uppn the contract as made. Unless there is a severance, a new contract (express or implied), a waiver, or some other valid excuse for nonperformance, B. cannot maintain an action either upon the original contract for the price or upon the common counts for the reasonable value of the work done in part performance. An attorney at law is employed to attend to a suit at a stipulated fee to be paid after its determination, and partly performs the services contracted for. He then abandons the matter without sufficient reason. Is it possible that the laws wfill permit him to recover in any form of action whatever? If so, then he can obtain a money judgment, on which execution may presently issue, even though the contract provided that he should not be paid until he had fully performed, or until a year, or some other period, had elapsed after-the final adjudication of the suit in which he was employed. Illustrations without number might be given. We regard the rule announced in Britton v. Turner, Supra,, as tending to encourage parties in violating their agreements, and as enforcing purported contracts which were not intended to be made, and which the law does not create.

. In the case at bar the fact that the defendant received the benefit of labor and material of the stipulated price of $9,-312.96 does not raise an implied promise to pay for them. There was no severance of the original contract, nor apportionment of the consideration.» The labor and material necessarily went into and became constituent parts of the buildings, and could not be returned. The defendant having no privilege or power to return them, the benefit therefrom was not voluntarily-retained. It was not the intention that they should be returned if Suiter failed or refused fully to- execute the contract on his part. If, by one contract, A. agrees to sell and deliver to 33. two horses at $100 each, and delivers but one to R, who retains and refuses to return it, there would seem to be a severance; B.’s retention and refusal being doubtless equivalent to a promise to pay for it the price agreed, less his damage occasioned by the nondelivery of the other horse. He has the privilege of keeping or returning the horse received, and when he elects to keep it there is a severance sub modo, and A. may recover judgment for the price, less whatever loss B. suffered by reason of the breach. So, where chattels1 are sold without agreement as to price, and some only are delivered, -the buyer, by keeping them as his own instead of returning, them, becomes liable to the seller for their reasonable value, and the seller to the buyer for damages. But where there is no alternative, the rule is ordinarily different; as, for example, if A. agrees to paint B.’s house at a fixed price for each square yard of surface, or for each of several coats, or agrees to paint it without stipulation as to price, and after painting a part abandons the work without lawful cause, or valid excuse, here, manifestly, B. is not indebted to A., for the contract is entire, the consideration is single, the labor and material are impossible of return, and neither intended that part performance should effect a severance of the contract or apportionment of the consideration, nor that the retention of the benefit should evince a waiver of complete performance. In such case B. has no- alternative, no choice, and A. cannot recover either upon the special contract- or upon the common counts. Under such a state of facts there is no implied promise by B. to pay, nor does the law create one. In the case at bar the plaintiffs admit that they did not fully comply with the contract, but left unperformed and unfurnished labor and material of the stipulated price of $2,227.67. At the time the action was commenced the plaintiffs still refused to proceed witb tbe work. There was no waiver by 'the defendant of full performance, no severance or apportionment, and no sufficient reason or, excuse for nonperformance. We do not think that the views expressed are in conflict with Section 2004 of the Civil Code, which provides that a partial performance of an indivisible obligation extinguishes a corresponding proportion thereof, if the benefit of such performance is voluntarily retained by the creditor, but not otherwise. If such partial performance is of such a.nature that the creditor cannot avoid retaining it without injuring his own- property, his retention thereof is not presumed to be voluntary.” That the plaintiffs; after the action was begun-, completed the work at the request of the executive board of the. college, which charged- the cost thereof ($2,227.67) to the defendant, is a fact of no moment in the .present state -of the case. • • . . ■ ■ ■

Under the.facts disclosed by the evidence on the part of the plaintiffs, they were not entitled to -recover either upon the special contract pleaded in the statement of the first cause of action or upon-the quantum ■m&t'uit and- valebat count-, constituting the second cause of action.

Counsel on each side have ably argued many interesting ques1-tions, which we-need not consider. The points decided will dispose of the appeals upon their merits. The judgment and order are reversed, and the cause is remanded, with direction to grant the motion for a new trial.

Reversed and remanded,


author: MB. JUSTICE PIGOTT:

text:
    STATE, Respondent, v. BROADBENT et al., Appellants.
    (No. 1,832.)
    At Chambers.
    In the matter of the petition of William Broadbent and John Donaldson for a certificate of probable canse for their appeals.
    (Submitted June 30, 1902.
    Decided July 2, 1902.)

      Criminal Law — Appeal ■— Stay of Judgment — Certificate of Probable Cause — Issuance by Supreme Court Justice — Statutes.

    1. Held, that on tbe bearing of an application, under Penal Code, Section 2278, to a justice of tbe supreme court, for a certificate of probable cause, where tbe state contended that Section 2278 was unconstitutional, on tbe ground that the grant by Section 3 of Article VIII of tbe Constitution of jurisdiction to a justice amounted to tbe withholding of other authority, tbe constitutionality would not be determined, but the statute would be presumed valid.
    2. A petition to a justice of tbe supreme court for a certificate of probable cause stated that tbe certificate was refused by tbe district judge, as appeared by the record in tbe transcript. Tbe petition was not verified by oath. Held, that a contention that tbe petition failed to show refusal of tbe district judge was of no avail, since, while tbe recital as to refusal was no part of the record on appeal, it might be considered because a certified order containing a recital of such refusal was presented.
    3. Petitions to a justice of tbe supreme court for certificates of probable cause must hereafter be verified by the oath of the petitioner, or of some person in his behalf.
    4. No appeal lies from a refusal of a district judge to grant a certificate of probable cause.
    E. When the transcript discloses a fairly debatable question the solution of which in defendant’s favor by the supreme court would necessitate a reversal, a certificate of probable cause will be granted.
    William Beoadbbnt and.James McDonald were convicted of the crime of grand larceny in the district court of Dawson county. Erom the judgment of conviction and an order refusing them a new trial, they appealed. Application for a certificate of probable cause presented to Me. Justice Pigott at chambers.
    Certificate granted.

      Mr. 0. F. Goddard, Mr. Sydney Banner, and Mr. William Wallace, Jr., for Appellants.

      Mr. James Donovan, Attorney General, for tbe State.
   MeMOBANDum OPINION.

MB. JUSTICE PIGOTT:

Broadbent and Donaldson were convicted of tbe crimle of grand larceny in tbe district court of tbe county of Dawson. Judgment of conviction was entered on tbe third day of March, 1902, from which, and an order refusing them a new trial, they have appealed to tbe supreme court. By tbe judgment each of them was sentenced to the term of eight years at bard labor in tbe state prison, and they are now in that prison. Tbe transcript on tbe appeals is on file in tbe office of the clerk of tbe supreme court.

On the 14th day of June, 1902, through their counsel, they presented to me a petition for a certificate of probable cause for their appeals^ which I directed to be served by copy upon counsel for tbe state, and set tbe bearing for the 23d day of June. Tbe petition and a copy of tbe order were duly served upon tbe attorney general who, on tbe day set for tbe bearing, asked that it be postponed to tbe 30th day of June. This was acceded to, and on that day tbe petition was submitted on briefs.

1. Tbe attorney general challenges tbe jurisdiction of justices of the supreme court to entertain tbe petition. He suggests that tbe jurisdiction granted by Section 3 of Article VIII of tbe Constitution of Montana does not confer upon "a justice tbe power which tbe applicants ask me to exercise: His contention is that tbe grant by Section 3 of jurisdiction to a justice is,- or amounts to, a withholding of other authority, and that such an application as tbe one now made is cognizable only by tbe court as distinguished from its justices. He therefore suggests that Section 2278 of tbe Penal Code, which provides that a justice of tbe supreme court may issue a certificate of probable cause, conflicts with Section 3, supra, of tbe Constitution. Since tbe submission of tbe application I have not bad tbe time or the opportunity to consider the point save in a somewhat cursory way. I am not impressed with tbe suggestion of the attorney general that the section is obnoxious to- the constitution; but even if I were so impressed, it would be necessary that I should be satisfied of its unconstitutionality before I could be justified in declaring it void. A mere doubt of validity, or an inclination of opinion towards the view that it is violative of the organic law, is not enough to warrant the annulment of a solemn act of the legislative assembly. TJpon a summary application of this sort I am not disposed to investigate and decide the question, but prefer to assume the validity of the statute. The matter may be agitated at another time and in some other proceeding.

2. To the petition further objection is m|ade by the attorney general on the ground that it does not appear therefrom that the judge of the district court where the conviction was had, refused a certificate of probable cause. The petition states that the petitioners applied to the district judge for such certificate, pusuant to' Section 2278 of the Penal Code; and that it was by the district judge refused “as appears of record in the transcript filed in this court.” The petition is not verified by the oath of any one; but by reference to the transcript on appeal the fact that such certificate was refused lamely and informally appears. True, the recital concerning the refusal of such certificate is not part of the record on the appeals and should not have been inserted in the transcript; but as a certied copy of the order containing, it is before me, I may, doubtless, without impropriety consider the recital as evidence of the refusal of the judge.

Hereafter applications to a justice for certificate of probable cause must be verified by the oath of the petitioner or of some person in his behalf.

3. Another reason advanced by the attorney general for the denial of the petition is that, under Section 2272 of the Penal Code, an appeal lies from the refusal of the district judge to grant the certificate. Suffice it to say that such refusal is not appealable. The application for a certificate of probable cause must first be made to the district judge; when refused by him, it may be made to a justice of the supreme court.

' 4. Of tbe questions which, as the transcript shows, the petitioners seek to present on their appeals, one at least is fairly debatable; by this I mean that to the unprejudiced judicial mind a solution of the question against the appellants is not so easy that, upon mere inspection, the question itself may be characterized as frivolous and their contention as plainly untenable. I am not prepared, therefore, to say that the appeals are palpably devoid of merit. The certificate prayed for will be granted.


author: ME. CHIEF JUSTICE, BEANTLT:

text:
    STATE, Respondent, v. McDONALD, Appellant.
    (No. 1,842.)
    At Chambers.
    In the matter of the petition of G-eorge A. McDonald for a stay of proceedings.
    (Submitted July 9, 1902.
    Decided July 9, 1902.)

      Crimmal Law. — Application for Certifícale of Probable Cause ' —Bail—Stay of Proceedings — Supreme Court.

    1. Application to the supreme court ior an order admitting defendant in a criminal appeal to bail will be denied where there is presented with the application no record on appeal containing defendant’s bill of exceptions.-
    2. A defendant in a criminal appeal is entitled to a stay of proceedings from the district court pending settlement of his bill of exceptions where the business of the court prevented an immediate preparation of such bill and the court had extended the time therefor.
    3. A temporary stay of proceedings will be granted by the supreme court, or a justice thereof, to enable the defendant in a criminal appeal to prepare his bill of exceptions and his record on appeal, in order that he may apply to the supreme court for a certificate of probable cause and for bail pending his appeal, where tne trial court has refused his applications therefor.
    GeoRge A. McDonald was convicted of the crime of grand larceny in the district court of Silver Bow county. Erom the judgment of conviction be bas appealed. Application for a stay of proceedings under tbe judgment pending settlement of bill of exceptions presented to Mb. Chieb Justice Beantly at chambers.
    Application granted.

      Mr. L. J. Hamilton, and Mr. B. 8. Thresher, for Appellant.

      Mr. James Donovan, Attorney General, for tbe State.
   MeMORANDuM OPINION.

ME. CHIEF JUSTICE, BEANTLT:

Tbe defendant in this cause was convicted of tbe crime of grand larceny, and, on June 26, 1902, was sentenced to serve at bard labor in tbe state prison for a term of one year. Thereupon be appealed to this court. He then ¿pplied to tbe judge of tbe district court for a certificate of probable cause (Penal Code, Sec. 2278). This application was denied. Application was then made to the same judge for bail pending the appeal. This was also denied. A like disposition was made of an application to tbe district court for a temporary stay of proceedings to enable tbe defendant to prepare bis bill of exceptions and bis record on appeal, in order that he might apply to this court, or one of its justices, for a certificate of probable cause and for bail pending bis appeal. Thereupon, and on June 27, tbe defendant applied to tbe supreme court for an order admitting him to bail. Tbe court, after consideration, denied this application for tbe reason that there was presented with it no record on appeal containing tbe defendant’s bill of exceptions. Tbe order was made without prejudice, however, to, another application to tbe court, or to one of its justices, for bail or for a certificate of probable cause, when tbe bill could be presented in support of tbe application. I am now asked for an order staying proceedings under tbe judgment until tbe record upon appeal may be properly prepared. It appears that tbe business of tbe district court is in such condition that defendant’s bill of exceptions cannot be prepared and certified to this court before tbe 25th of tbe pres-exit month, and that that court, for good cause, has enlarged the time for preparing it until that date.

The district court should have granted the stay ashed for until the bill could be prepared. (People v. Lane, 96 Cal. 596, 31 Pac. 580.) As the defendant is now situated, unless a stay is granted, the judgment of the district court will be in process of execution during the time required for the preparation of his bill of exceptions and the presentation of his record on appeal. No possible harm can result from a stay during this time. The effect will be simply to delay the execution of the judgment in the meantime, and until it can be determined whether the defendant' is entitled to the relief which he seeks pending his appeal. I have therefore concluded to' make the following order:

It is ordered that all proceedings against the defendant be stayed pending a settlement of his bill of exceptions and his application to' this court, or to one of its justices, for bail, or for a certificate of probable cause; but such stay shall not extend beyond Saturday, August 2, 1902. The defendant shall give at least three days’ notice to the attorney general of any application made in pursuance of this order.


author: THE HONORABLE JAMES M. CLEMENTS,

text:
    RADUE, Appellant, v. PAUWELYN, Respondent.
    (No. 1,441.)
    (Submitted April 15, 1902.
    Decided July 14, 1902.)

      Executors — Rejection of Glam — Suit on Note — Waiver.
    1. The iact that an executor rejects a note presented as a claim against the estate does not authorize suit on the note before its maturity.
    2. The consent by defendant in an action on a note, commenced before its maturity, to the filing of a substituted complaint after the maturity of the note and the filing of an answer does not estop him from relying on the premature bringing of the action as a defense.

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

    ActioN on a note by Frederic Radue against Cyril Pauwe-lyn, as executor of James Tuoby, deceased. Prom a judgment for defendant, plaintiff appeals.
    Affirmed.

      Mr. G. W. Stapleton, and Mr. Oliver M. Hall, for Appellant.

      Mr. John W. Cotter, for Respondent.
   THE HONORABLE JAMES M. CLEMENTS,

one of tbe district judges of tbe First judicial district, sitting in tbe place of Mr. Justice MilbueN, delivered tbe opinion of tbe court.

Tbis is an action by the appellant against tbe respondent, as executor of tbe last will of James Tuoby, deceased, upon a promissory note executed March 24, 1893, payable two years after date. James Tuoby, tbe maker of tbe note, died October 2, 1893, and on November 2, 1893, respondent was duly appointed executor of bis will.

After respondent qualified as executor, and bad given notice, to tbe creditors of tbe deceased, appellant presented bis claim to tbe executor, and tbe same was. disallowed and rejected on December 26, 1893. On December 28, 1893, tbis suit ivas commenced. On October 31, 1898, by consent of parties, appellant filed a substituted complaint, setting forth tbe same cause of action alleged in tbe original complaint. On November 14, 1898, respondent filed an amended answer setting up tbe fact that tbe suit was commenced prior to. tbe maturity of tbe note. On March 13, 1899, appellant filed a replication to tbe amended answer, admitting that tbe suit was commenced December 28, 1893, and that tbe note sued on matured March 24, 1895. At tbe time of tbe filing of tbe replication, respondent moved for judgment on tbe pleadings, which motion was granted. • ■

It is admitted by tbe pleadings that suit was commenced prior to tbe maturity of the note, but appellant insists that tbe cause of action accrued, not upon the maturity of the note, but upon the’rejection of his claim by the executor; that such rejection constituted such a breach of the contract as that an action would lie;, and also that respondent is estopped from invoking the premature bringing of the suit as a defense, by consenting to the filing of the substituted complaint after the action accrued, and by answering the same.

■ The authorities cited do not support the views urged by appellant, and the record in the case discloses nothing which can aid the appellant in the way of entitling him to recover upon an action prematurely brought, or make inapplicable the general rule of law.that the right,of action must be complete when suit is brought. ' .

The judgment of the district court is affirmed. Remittitur forthwith.

Me. Ciiiee Justice Bbantly : I concur.

Me. Justice Pigott : I concur.

Me. Justice Milbuen, being disqualified, did not hear the argument and takes no part in the foregoing decision.