Volume 45 — Montana Reports

K. Cheadle, Judge. ACTION by Chester and Menus Post against Joseph Liberty. Held: “A purchaser of real estate is entitled to rely on the representations of an agent for the sale thereof, as to its location and is not bound by the doctrine of ‘caveat emptor’ to make further inquiries as to its boundaries.” (Roberts v. Holliday, 10 S. D. 576, 74 N. W. 1034.) False representations by a vendor to the purchaser as to…

<p>Taxation — Insurance—Excess of Premiums — Statutes—Repeal—■ Effect.</p> <p>Taxation. — Insurance—Excess of Premiums — Statutes—Repeal.</p> <p>1. Section 2510, Revised Codes, provides that property shall bo assessed, for 'purposes of taxation, to the person by whom it is owned or claimed at 12 o’clock noon on the first Monday of March of each year. Section 4073, making the excess of premiums collected by insurance companies, over losses and expenses, assessable, was repealed by Act approved March 2, 1911 (Laws 1911, Chap. 67), which Act became operative upon approval. The first Monday of March fell on the 6th of the month. Held, that a tax assessed under section. 4073, supra, on exeess of premiums for the year 1911 was void.</p> <p>Statutes — Repeal—Effect.</p> <p>2. The repeal of a statute has the effect of blotting it out as completely as though it never existed.</p>

'Appeal from District Court, Broadwater County; W. B. G. Stewart, Judge. ACTION by G. F. Ferris and another against M. J. McNally and another. From an order denying a new trial, and from an order overruling a motion to tax costs included in the judgment, plaintiffs appeal. Cause submitted on briefs of counsel.

B. Winston, Judge. Action by Ella F. Lyon against the Chicago, Milwaukee and St. Paul Eailway Company of Montana and others. From a judgment for plaintiff and an order denying a new trial, defendants appeal. argued the cause orally. It is our contention that the law laid down by the trial court is not the law which governs eases involving the original right to construct works with its attendant anticipatory degree of care, such as would arise in the ease at bar.

Mc-Clernan, Judge. Action by Henrietta Pullen against tbe City of Butte. From a judgment for plaintiff and from an order denying a new trial, defendant appeals. argued tbe cause orally. It was error to admit evidence showing that changes or repairs in tbe walk had been made after tbe accident. (See 26 Cyc. 616; Helling v. Schindler, 145 Cal. 303, 78 Pae. 710; Wigmore on Evidence, sec. 283; Elliott on Roads and Streets, 3d ed., see. 1160; Morse v. Memphis etc. Ry.

James Matkins and Claude Gatliff were convicted of grand larceny, and appeal. submitted a brief. We submit that the newly discovered evidence is not cumulative and that the court in deciding the motion was mistaken in the law when it says that it is.

'Appeal from District Court, Silver Bow County; Jeremiah J. Lynch, Judge. ActioN by James Ivey against tbe La France Copper Company and others. From a judgment for plaintiff and an order denying a motion for a new trial, defendants appeal. submitted a brief; argued the cause orally.

!Appeal from District Court, Gallatin Countyj W. R. C. Stewart, Judge. Action by R. J. Pasha against S. E. Bohart. From a judgment for plaintiff and an order denying a new trial, defendant appeals. and argued the cause orally. The burden was upon the plaintiff to allege and show that the defendant had not complied with the terms of sale.

In the Matter of tbe receivership of tbe First Trust & Savings Bank of Billings. From an order granting a motion of tbe Gazette Printing Company and others to set aside a sale by the receiver to O. W. McConnell, tbe latter appeals. submitted a brief; argued the cause orally. submitted a brief and argued tbe cause orally. argued the cause orally.

McClernan, Judge. ACTION by Frank Knuckey against the Butte Electric Railway Company and another. From a judgment for plaintiff and an order denying a new trial defendants appeal. submitted a brief; argued the cause orally.

W. Pierson, Judge. Notion by William Dallas against George F. Douglas and others. From judgment for defendants, plaintiff appeals. argued the cause orally. There is much said in this case about fraud and collusion and conspiracy. These are vocables which give rise to feelings of revulsion, but in a pleading they are meaningless. An averment that an act is fraudulent is not the statement of a fact. (Butte Hardware Co. v. Knox, 28 Mont. 119, 72 Pac. 301; State v. Minn.Mont.

(Submitted February 14, 1912. Appeal from District Court, Silver Bow County; John B. McClernan, Judge. Action by Jenny Kelly, administratrix, against the Independent Publishing Company. From a judgment for plaintiff and an order denying its motion for a new trial, defendant appeals. submitted .a brief; argued the cause orally. The cause of action accrued on the date of the publication, and the statute of limitations began to run as of that date.

Lynch, Judge. Action by Julia B. Tong, executrix of the last will and testament of George H. Tong, deceased, against James Maher, county treasurer of Silver Bow county, Montana. From a judgment for defendant, plaintiff appeals. Cause submitted on briefs of counsel.

R. C. Steioart, Judge. Action by tbe Custer Consolidated Mines Company against tbe City of Helena. From an order directing tbe issuance of an injunction pendente lite against tbe plaintiff, it appeals. argued tbe cause orally. Tbe wrong alleged by defendant is tbe diversion of these leased waters by plaintiff.

‘Appeal from District Court, Sweet Grass County; Sydney Sanner, Judge. Held: “The bona fide intention which is required of the appropriator to apply the water to some useful purpose may comprehend a use to be made by or through another person, and upon lands and possessions other than those of the appropriator.” (See, also, Nevada Ditch Co. v. Canyon etc. Co., 58 Or. 517, 114 Pac. 86.) A most clear and…

M. Clements, Judge. Action by Charles Zvanovich against Gagnon & Co. From a judgment of nonsuit, plaintiff appeals. argued the cause orally. argued the cause orally.

H. Ewing, Judge. Writ op review, at the relation of David J. Ryan, against the Board of Aldermen of the town, of Conrad. From an adverse judgment, relator appeals. Cause submitted on briefs of counsel. The charges preferred against the appellant amount to charges of improper conduct in accepting employment incompatible to, or conflicting with, that of a councilman.

Miller Smith, Judge. Action by Leonard Bailey against the Examining and Trial Board of the Police Department of the city of Helena, and the members of such board. Judgment for plaintiff. Defendants appeal. argued the cause orally. submitted a brief and argued the cause orally.

<p>Mandamus — Officers—Police Judges — Collection of Illegal Fees —Removal from Office;</p> <p>Poliee Judges — Fees—City Ordinance Cases;.</p> <p>1. Held, tbat a police judge is not entitled to collect fees in eases arising out of violations of city ordinances, either from the city or from the defendant.</p> <p>Same — Illegal Fees — Removal from Office.</p> <p>2. Under section 9006, Revised Codes, the district court may remove a police judge from office for illegally collecting a fee from a defendant for approving a bond filed in. support of an appeal from a judgment of conviction for a violation of a city ordinance.</p> <p>Original application by the state, on the relation of James EL Rowe, for a writ of mandamus directed against the district court of the second judicial district and Michael Donlan, judge thereof. On motion to quash, motion denied, and writ issued.</p>

Appeal from District Court, Silver Bow County; Michael Donlan, Judge. Demubbeb to indictment against William Gemmell was sustained, and tbe state appeals. Cause submitted on briefs of counsel.

<p>Appeal and Error — Burden of Showing Error — Presumptions— Evidence — Record.</p> <p>Appeal and Error — Presumptions—Burden of Showing Error.</p> <p>1. Appellant has the burden of showing reversible error, all presumptions being in favor of the judgment.</p> <p>Same — Record—Evidence—Presumptions.</p> <p>2. Where the record shows that it does not contain all the evidence, the supreme eourt will presume that the evidence omitted sustains the judgment.</p> <p>Judgment — Failure of Proof.</p> <p>1. A judgment in favor of plaintiff in an action to- recover for services performed at defendant’s special instance and request entirely unsupported by the evidence, -will be reversed on appeal.</p>

E. Erickson, Judge. Action by tbe City of Kalispell against School District No. 5 of Flathead county. From a, judgment for defendant, plaintiff appeals. Cause submitted on briefs of counsel. An exemption from taxation in favor of school property does not extend to a special assessment for the payment of local improvements specially benefiting such property. (In re Harding Street Sewer, 31 Pittsb. L. J., n. s., 147; In re Howard Ave., North, 44 Wash. 62, 120 Am.

lynch, Judge. Action by the First National Bank of Butte against J. R. Silver. From a judgment for plaintiff on the pleadings, defendant appeals. submitted a brief and argued the cause orally. In an action for the breach of a contract it is necessary to allege that the contract has been broken; and there is no difference in this respect between a promissory note and other contracts. The failure to pay constitutes the breach, and must be alleged.

Mc-Clernan, Judge. Action by *May Winterscheid against August E. Reicble. From a judgment for plaintiff and an order denying him a new trial, defendant appeals.

B. Poin-dexter, a Judge of the Fifth Judicial District, presiding. Action by C. J. Kenck and another against Ross E. Deegan, guardian of Valentine Staubach, an incompetent person, and others. From the judgment and an order denying them a new trial, plaintiffs appeal. and argued the cause orally. argued the cause orally.

R. C. Stewart, Judge. ActioN by Frank L. Nash against D. E. Treat and another. From an order setting aside a default judgment, plaintiff appeals. Cause submitted on briefs of counsel.

W. Pierson, Judge. Aotion by the Willoburn Ranch Company against Christian and Peter Yegen. From a judgment by default against Peter Yegen and an order refusing to set aside the default, he appeals. submitted a brief and argued the cause orally.

R. C. Stewart, Judge. Aotion by Isabel Dolenty, -as executrix of tbe will of W. B. Dolenty, deceased, against Broadwater county. From a judgment for defendant, rendered on sustaining a general demurrer to the complaint, plaintiff appeals. submitted a brief; Mr. Pew argued the cause orally.

Lynch, Judge. Action by Robert Riebter and another, doing business as the Crystal Ice Company, against Peter Linden and wife, doing business as the Oro Fino Ice Company. From a judgment against Peter Linden and an order denying Mm a new trial, be appeals. submitted a brief and made oral argument.

ACTION by C. E. Sandeen against the Russell Lumber Company. From a judgment for plaintiff and an order denying its motion for new trial, defendant appeals. submitted a brief; argued the cause orally.

Miller Smith, Judge. ActioN by G-. W. Smith against Henry Zimmer, road supervisor, and Joseph J. Hindson et at., commissioners of Lewis and Clark county. From a judgment in favor of defendants, plaintiff appeals. Statement of the Case by the Justice Delivering the Opinion. Action for damages for a personal injury.

Application by Harry Hosoda for habeas corpus, directed against the sheriff of Powell county. submitted a brief and argued the cause orally. submitted a brief and argued the cause orally; also argued orally.

C. Webster, Judge. Aotion by Anton Lereh and another against the Missoula Brick and Tile Company.

B. Winston, Judge. Action by Charles Hahn and E. L. Turner against G. W. Shaubut. From a judgment for plaintiff, defendant appeals. submitted a brief; argued the cause orally. The defendant was called into court to answer a complaint, the ordinary construction of which would indicate to him that he was required to defend an action to enjoin him from breaking down plaintiffs’ fence. By a common-sense reading of the complaint no other intendment can be gathered from it.

C. Webster, Judge. F. W. Morris was convicted of practicing medicine and surgery without a certificate from the State Board of Medical Examiners, and appeals. submitted a brief, and argued the cause orally.

Original application by H. N. Gilmore, as administrator of the estate of Samuel Gilmore, deceased, for certiorari to the District-Court of Custer County to review an order fixing the amount of an inheritance tax. Cause submitted on brief of counsel for relator.

McClernan, Judge. Action by tbe state against the Hammond Packing Company. Judgment for plaintiff, and defendant appeals. argued the cause orally. Where a license tax is imposed, and there is no provision of law for any supervision, control or regulation of the business, unless the business is of such a nature that it can be restricted or prohibited, the tax will be considered as having been imposed in the exercise of the taxing power of the state.

R. C. Steiv-art, Judge. Aotion by Francis Merges against Henry Altenbrand. Jr., and others. From a judgment of dismissal, rendered on sus-taming a general demurrer to the complaint, plaintiff appeals. submitted a brief; argued the cause orally. At the expiration of the period named in its charter, a corporation dies absolutely, unless its life has been renewed. (Rome Bldg.

<p>Estoppel in Pais — Who may Invoice — Contracts — Benefit of Third Party — Enforcement.</p> <p>Estoppel in Pais — Who may Invoke.</p> <p>1. Since the doctrine of estoppel in pais operates only in favor of the party (and his privies) who, in reliance upon declarations and statements made to him, has changed his condition with reference to the subject matter of such representations, a mining company which was not a party to an alleged arrangement between the seller of certain pooled stock and the purchasers thereof, whereby the proceeds of sale were to be loaned to the company and payment enforced only out of prospective profits, was not in a position to invoke the doctrine.</p> <p>Contracts — Benefit of Third Party — Enforcement.</p> <p>2. To entitle a third person to take advantage of a contract under section 4970, Revised Codes, which provides that “a contract, made expressly for the benefit of a third person, may be enforced by him at any time before the parties thereto rescind it,” there must have been a consideration passing from him, or the relationship between him and the contracting parties must have been such as that a consideration may be deemed to have passed from him.</p> <p>Same — Case at Bar.</p> <p>3. The owners of a large block of mining stock pooled their interests and sold part of it through their trustee, with the alleged understanding that the proceeds should be loaned to the company for the purpose of developing the mine, and that such loans should be repaid by it from the earnings and proceeds of the mine. Held, under the rule declared in paragraph 2 above, in an action against the company to recover on the notes evidencing the loans, that the purchasers of such stock (appearing as interveners to defend on behalf of the company as minority stockholders) were not entitled to interpose the alleged agreement as a defense to the collection of the notes, since the contract was not made expressly for the benefit of the defendant company, and no consideration passed, or could be deemed to have passed, from it to plaintiff trustee; the fact that incidentally the contract might have inured to its benefit being insufficient to enable it to take advantage of it.</p>

Prohibition by the state, on relation of Herman Streit, against the Justice Court of Chinook Township, Chouteau County, and H. B. Brooks, justice of the peace. From a judgment awarding a peremptory writ, defendants appeal. submitted a brief, and argued the cause orally. The issuance of a search-warrant to search for and seize liquors unlawfully kept for sale is well within the intendment of the law, and the proceeding is not a novel one.

McClernan, Judge. Action by James Reid against the Hennessy Mercantile Company. -From a judgment for defendant and an order denying him a new trial, plaintiff appeals. and argued the cause orally. submitted a brief; argued the cause orally.

District Court, Custer County; Sydney Sanner, Judge. Action by the Berlin Machine Works against the Midland Coal and Lumber Company.

Lynch, Judge. Action by Celeste Albertini against Peter Linden, doing business as the Oro Fino lee Company. From a judgment for plaintiff, defendant appeals. Cause submitted on briefs of counsel.

William Biggs was convicted of grand larceny, and appeals from the judgment and an order denying his motion for a new trial. Cause submitted on briefs of counsel.

Miller Smith, Judge. Action by Louis Heitman against the Chicago, Milwaukee and St. Paul Railway Company. Judgment for plaintiff, and defendant appeals. submitted a brief; argued the cause orally. In an action for damages for stock shipments, the pleader should be more certain and definite than as required by the general rule stated above.

McClernan, Judge. ActioN by E. W. Wynne against tbe city of Butte. From a judgment for plaintiff, defendant appeals. submitted a brief; argued the cause orally.

Mc-Clernan, Judge. Action by the Monidah Trust against Michael J. Sheehan, Treasurer of Silver Bow County, and another. From an order granting an injunction pendente lite, defendants appeal. submitted a brief; argued tbe cause orally. A state bas power to tax a foreign corporation upon solvent credits owned by it and arising out of business done witbin tbe state. (Liverpool, London & Globe Ins. Co. v. Board of Commissioners, 221 U. S. 346, 55 L. Ed. 762, 31 Sup. Ct.

'Appeal from District Court, Carbon County; Sydney Fox, Judge. Action by Janies H. McAllister against tbe Bocky Fork Coal Company of Montana. From a judgment upon an order sustaining defendant’s motion for nonsuit, plaintiff appeals. submitted a brief; argued the cause orally. submitted a brief; argued the cause orally.

K. Cheadle, Judge. Action by Philip Laux and another against John C. Hogl. From a judgment for plaintiffs, and from an order denying a new trial, defendant appeals. submitted a brief; argued the canse orally.

R. C. Stewart, Judge. Action by James S. Tudor against the Northern Pacific Railroad Company.

M. Clements, Judge. Action by Conrad Kohrs and John Bielenberg against Clyde C. Smith to enforce payment of promissory notes. J. M. Boardman, made codefendant on motion of defendant Smith, as well as plaintiffs, appeal from that part of the judgment, holding Boardman as primary debtor and defendant Smith as secondary debtor. Statement op the Case by the Judge Delivering the Opinion.

:Appeal from District Court, Yellowstone Countyj George W. Pierson, Judge. Action by Myrta F. Mason, by Joseph E. Mason, her guardian ad litem, against the Northern Pacific Railway Company and another. Judgment for plaintiff. From an order granting defendants’ motion for a new trial she appeals. submitted a brief and argued the cause orally.

C. H. Blaine, convicted of grand larceny, appeals from tbe judgment of conviction and an order denying him a new trial. Cause submitted on briefs of counsel. There is no evidence of any character in the record showing when, where or under what circumstances the animal in question was stolen, if at all.

Lynch, Judge. Action by the Brophy Grocery Company against G. H. Wilson to enforce payment of a promissory note. Plaintiff had judgment, and from an order denying his motion for a new trial, defendant appeals. submitted a brief and argued the cause orally. submitted a brief and argued the cause orally.

Lee McCul-loch, Judge. Action by tbe Ben Kress Nursery Company against 'the Oregon Nursery Company. From a default judgment and an order refusing to vacate it, defendant appeals. submitted a brief; argued the cause orally. argued the cause orally.

Sam; A. Hall, convicted of larceny as bailee, appeals from tbe judgment of conviction, and from an order denying his motion for a new trial. submitted a brief, and argued the cause orally.

B. C. Stewart, Judge of the Ninth Judicial District, presiding. Aotion by Jeremiah Ryan against John Quinlan and others. Judgment for defendants, and plaintiff appeals. argued the cause orally.

B. C. Stewart, Judge of the Ninth Judicial District, presiding. Action by William J. Smith against Mary M. Smith, as executrix of the last will and testament of John M. Smith, deceased, and others. From a judgment in favor of defendants and an order denying his motion for a new trial, plaintiff appeals. submitted an original as well as a reply brief; argued the cause orally.

G. W. BARRY was charged with crime, and, from an order directing a verdict for him on the ground of the insufficiency of the information, the state appeals.

E. Erickson, Judge. Aotion by C. M. Mansur and others against the City of Poison and others from entering into a contract or accepting any bid for the construction of certain street improvements. From an order dissolving a temporary restraining order plaintiffs appeal. submitted a brief and argued the cause orally.

G. W. Barry was charged with assault in the first degree, and, from an order directing a verdict of not guilty, 'the state appeals. Cause submitted on briefs of counsel. The general rule of law always has been that the pointing of a firearm at another constitutes an assault, and that, if the firearm was not loaded, or was harmless as such, it is a matter of defense to be introduced by the defendant. (See State v. Her-ron, 12 Mont. 230, 33 Am.

<p>Application for order to settle and certify bill of exceptions.</p>

<p>Proceeding instituted by John Perkins to disbar John H. Duffy, Esq., a member of the bar of Montana, for alleged unprofessional conduct.</p>

<p> Appeal from District Court, Lewis and Clark County. </p>