Volume 47 — Montana Reports

<p> Appeal from District Court, Silver Bow County; Jno. B McClernan, Judge. </p> <p>Action by Thomas Melville and ethers against the ButteBalaklava Copper Company. Judgment for defendant; plaintiffs appeal.</p>

<p>Oral Contracts — Beal Property — Statute of Frauds — Evidence— Admissibility — Breach by Pladntiff — Part Payments — Recovery Bach.</p> <p>Oral Contracts — Real Property — Statute of Frauds — Evidence—Admissibility.</p> <p>1. Where plaintiif sought to recover money on a demand loan, defendant was properly allowed to introduce testimony tending to show that the money paid him by the former was not a loan, but a partial payment upon the purchase price of real property sold under an oral contract, even though such contract of purchase was invalid, and therefore unenforceable, under the statute of frauds.</p> <p>Same — Breach by Plaintiff — Part Payments — Recovery Baek.</p> <p>2. A purchaser of real property under an oral agreement, who has made a partial payment on the purchase price and then voluntarily terminates the agreement, eannot recover back such payment in the absence of a showing that defendant is unable or unwilling to carry out the contract.</p>

Appeal from District Court, Lewis and Clark County; J. Miller Smith, Judge. Action by Quong Wing against Thomas B. Kirkendall, as treasurer of the county of Lewis and Clark. Judgment for plaintiff, and defendant appeals.

Miller Smith, Judge. Action by the Helena Light and Railway Company against the city of Helena. Decree for defendant, and plaintiff appeals. The intention of the legislature that only the steam railroads of commerce were meant to be covered by subdivision 12 of section 3259, Revised Codes, is clearly shown.

Callaway, a Judge of the Fifth Judicial District, presiding. Will Contest by Mary Murphy against Anna E. Nett. From an order denying a motion for new trial, defendant appeals. The allegations of the contest, contained in paragraph 5 thereof, were not sufficient to warrant the introduction of any evidence of undue influence.

Miller Smith, Judge. Action by A. J. Hulse against tbe Northern Pacific Railway Company and another. From an order granting plaintiff a new trial defendants appeal.

Appeal from District Court, Ravalli County; R. Lee McCulloch, Judge. Action by Andrew Lowery and another against Mary Cole and George See, sheriff. From an order refusing to dissolve an injunction defendants appeal.

C. Webster, Judge. Action by Henry E. Brandt and others against Robert G. McIntosh and others. From an order granting an injunction pendente Uie, defendants Curtis, Huller and W. L. Kelley, sheriff, appeal.

Action by B. L. Monahan against F. W. Allen. Judgment for defendant and plaintiff appeals from it and an order denying him a new trial.

C. Webster, Judge. Action by tbe Missoula Street Eailway Company against tbe City of Missoula. Judgment for defendant and plaintiff appeals. Can a municipal corporation make a binding contract to pay the actual costs of taking up and relaying a street-ear track, when such taking up and relaying of the track is caused by the municipality’s own act in building a sewer, and when the city is bound by the franchise previously granted appellant to remove and relay the same?

K. Cheadle, Judge, Action by Frank E. Wright against John Brooks and another. From a judgment for plaintiff and an order denying a new trial, defendants appeal. Respondent’s case resolves itself into this proposition: He demands a decree against appellant John Brooks for a conveyance of the entire interest in the lots, without having any agreement whatever with said appellant for a sale or conveyance of his undivided half interest, and without any ratification of such sale.

<p>Contracts — Performance—Sufficiency of Pleading — Waiver of Defect, When — Mechanic’s Lien — Foreclosure—Defective Description of Lands Affected, When Fatal — When Plaintiff Entitled to Personal Judgment.</p> <p>Pleading — Substitution of “Defendant” for “Plaintiff” — Waiver of Defect, How.</p> <p>1. An inadvertent substitution of the word “defendant” for “plaintiff” in the complaint does not render the pleading insufficient, but subject to special demurrer on the ground of uncertainty, which defect is waived by answering to the merits.</p> <p>Contracts — Performance—Sufficiency of Pleading.</p> <p>2. Under section 6572, Revised Codes, performance by plaintiff of his contract was sufficiently alleged by his statement that “defendant (inadvertently substituted for “plaintiff”) actually completed all of the work and labor to be by him performed under said contract and did all of the things in said contract of him required to be done.”</p> <p>Mechanic’s Lien — Complaint—Erroneous Description of Land — When Fatal.</p> <p>3: One of the prerequisites prescribed by section 7291, Revised Codes, to make valid a lien on land for labor performed in clearing it was a notice containing a description thereof sufficiently accurate to enable identification of the property affected; henee, where in a suit to foreclose such a lien the description in the decree differed from that found in the complaint as well as that contained in the notice, so that identification of the lands sought to be charged was impossible, the decree ordering them to be sold must be reversed.</p> <p>Same — -Failure to Establish — Personal Judgment.</p> <p>4. Where one to whom money is due for labor performed fails to establish a lien on the property on which it was done, because of nonobservance of the statutory provisions relative to perfecting it, he is nevertheless entitled to a personal judgment for the amount found due from defendant.</p>

Miller Smith, Judge. Action by the Chicago, Milwaukee aud St. Paul Eailway Company against T. M. Swindlehurst, secretary of state of the state of Montana. From a judgment for plaintiff, defendant appeals. The provisions of section 165, Eevised Codes, fix fees which the secretary of state “must charge and collect” for receiving and filing articles of incorporation.

B. Leslie, Judge. Action by J. A. Raiche against J. R. Morrison. Judgment for plaintiff. Defendant appeals from it and an order denying his motion for a new trial.

E. Erickson, Judge of the Eleventh Judicial District, presiding. Action by P. H. Hersey against Ever Neilson and others, county commissioners, and J. A. Rose, county treasurer, of Hill county, Montana. Judgment for plaintiff and defendants appeal.

C. Webster, Judge. Suit by John S. Miller against F. L. Miller and the Chicago, Milwaukee and Puget Sound Railway Company. Judgment for plaintiff and defendants appeal. In behalf of Respondent, Messrs. B. G. <& S. B. Mclntire submitted a brief; oral argument by Mr. S. B. Mclntire.

Lynch, Judge. Action by the City of Butte against Phil. C. Goodwin and the sureties on his bond as city treasurer, to recover interest alleged to have been received by him on public funds and which he failed to turn over to the eity. From a judgment of nonsuit, plaintiff appeals. Mr. Justice Sanner dissenting in part.

McClernan, Judge. Action by Luis Previsich against the Butte Electric Railway Company. From a judgment for plaintiff, and an order denying it a new trial, defendant appeals. When plaintiff alleges a specific ground of negligence upon which he bases his right of recovery, he is absolutely bound to maintain that ground, or he must fail of h'is recovery. (Pierce v. Great Falls etc. Co., 22 Mont. 448, 56 Pac. 867; Hoskins v. Northern Pacific By.

<p>Criminal Law — Gaming—Information—Surplusage—Waiver of Objection —Detectives —Cross-examination —Evidence —Competency — Oral Instructions — Record—Review.</p> <p>Criminal Law — Gaming—Information—Surplusage.</p> <p>1. Reid, under section 8416, Revised Codes, which makes gaming carried on or conducted by one as “principal, agent or employee” a crime, that an information charging defendant with a violation of said section “as owner and proprietor” of the game was not defective, the words last quoted being surplusage, neither restricting nor enlarging the meaning of the information.</p> <p>Same — Information—Demurrer—Waiver of Objection.</p> <p>2. A demurrer to an information on the general ground that the facts therein were not stated in ordinary and concise language, in such manner as to enable a person of common understanding to know what was intended, was equivalent to a waiver of the objection, in the absence of a distinct specification of the particular ground thereof, as required by section 9201, Revised Codes.</p> <p>Same — Rulings on Evidence — Error—Brief—Duty of Appellant.</p> <p>3. Counsel alleging error in rulings on evidence sought to be elicited on cross-examination, must in his brief point out wherein they were prejudicial .to the substantial rights of his client, charged with crime, it not being incumbent upon the supreme court, in the absence of such assistance, to make a critical examination of them in an effort to ascertain whether they in fact wrought prejudice.</p> <p>Same — Detectives—Evidence—Cross-examination—Exclusion of Evidence— Harmless Error.</p> <p>4. Where, though technical error was committed in the exclusion of testimony sought to be elicited by defendant from detectives on cross-examination, substantially all the pertinent facts relative to their character and credibility — the only purpose for which the evidence was material — were brought to the knowledge of the jury, the action of the court held nonprejudieial.</p> <p>Same — -Detectives—Evidence—Competency.</p> <p>5. Testimony of detectives who acted- as decoys and took part in a gambling game, for the unlawful carrying on of which defendant was on trial, held competent.</p> <p>Same — -Instructions—To be Given in Writing.</p> <p>6. In the absence of a waiver by the parties to a criminal prosecution, the instructions to the jury must, under section 9271, Revised Codes, be delivered in writing.</p> <p>Same — Oral Instructions — Absence of Objection — Record—Review.</p> <p>7. Where, in a criminal cause, the only showing in the record on appeal that the instructions had been delivered orally instead of in writing as required by section 9271, Revised Codes, was the heading to the charge: “Oral Instructions of the Court to the Jury,” and in the absence of anv objection and exception to the alleged erroneous course pursued by the trial court, the assignment of error in counsel’s brief in tnis respect held not to merit consideration.</p>

<p>Election Contests — Record on Appeal — Statement—Verification —District Judges — Disqualification — Trial—Continuances— Jurisdiction.</p> <p>Election Contests — Record on Appeal — Sufficiency.</p> <p>1. While section 7248, Revised Codes, confers the right of appeal on either party to an election contest, no provision is made for a record by which the appeal can be presented to the supreme court. Contestant in such a proceeding filed a record appropriate in an ordinary civil action. Mode of procedure held proper, under section 6329, which provides that where the course of procedure in any matter of which á court has jurisdiction is not specifically pointed out by the Code or statutes, any suitable process most conformable to the spirit of the Code may be adopted.</p> <p>District Judges — Disqualification—Power of Court to Call Other Judges.</p> <p>2. A district judge who deems himself disqualified in a matter pending in his court may call one trial judge after another until he can secure the services of one able to preside at the trial of the cause.</p> <p>Election Contests — Statements—-Verification—Sufficiency.</p> <p>3. A verification attached to the statement of contest of an election in form substantially the same as that required for a pleading in a civil action was 'sufficient.</p> <p>District Judges — Disqualification—Manner of Calling in Other Judges.</p> <p>4. Unless the disqualification of a trial judge to preside in a cause pending before him is brought about by the filing of the affidavit mentioned in section 6315, Revised Codes, as amended (Laws 1909, p. 161), he is not required to first call upon the other judge or judges of his own district before he can invite a judge of another district to act in his stead.</p> <p>District Courts — Jurisdiction.</p> <p>5. Where the jurisdiction of a court is exclusive and has once lawfully attached, it cannot be ousted by subsequent events or facts arising in the cause; jurisdiction remains in it until final judgment, unless devested thereof through constitutional provision.</p> <p>Election Contests — Limit of Special Term or Session.</p> <p>6. Held, that the special session or term of the district court authorized by section 7241, Revised Codes, to be held for the determination of ^an election contest, is not limited to twenty days, or to any period of time, by either Constitution or statute.</p> <p>District Courts — Continuances.</p> <p>7. A court of record has authority of its own motion and in the absence of statute, to adjourn the hearing of a matter pending before it.</p> <p>Election Contests — Continuances—District Courts — Jurisdiction.</p> <p>8. Held, that the district court erred in dismissing an election contest on the ground that it lost jurisdiction because of an adjournment taken by it on its own motion (before actual commencement of trial) for a period of time exceeding twenty days from the day originally set for the hearing; the statute (see. 7244, Rev. Codes) not containing any restriction upon the power of the court relative to the subject of continuances, other than that neither party shall have a continuance, before commencement of trial, for more than twenty days, and that after commencement of trial adjournment shall be had from day to day only.</p>

Miller Smith, a Judge of the First Judicial District, presiding. Action by Max and Rosa Blaustein against Adolph Pincus. From a judgment for plaintiffs and an order denying his motion for a new trial, defendant appeals. Tbe covenant of quiet enjoyment protects the tenant only as against the successful assertion of a paramount right.

Appeal from District Court, Silver Bow County; Jeremiah J. Lynch, Judge. Action by Patrick J. Moore against the Butte Electric Railway Company and another. From an order granting plaintiff a new trial, defendants appeal.

C. Webster, Judge. Action by George Singer against the Missoula Street Railway Company and one of its motormen. From a judgment for plaintiff, defendants appeal. Respondent was guilty of gross initial negligence in the following respects: (1) In attempting to ride his horse across the bridge knowing the likelihood of meeting street-cars thereon, without adequate equipment with which to control him.

<p>New Counties — County Seat — Unincorporated Towns — Eligibility.</p> <p>1. Held, that an unincorporated town was eligible to become a candidate for county seat of a county proposed to be created under Chapter 112, Laws of 1911.</p>

<p>Mandamus, by the state on the relation of George L. Ryerson against J. W. Dale, county clerk and recorder of Valley county.</p>

McClernan, Judge. Action by Lee Mantle against W. McC. White. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Assuming, under Montana practice, the complaint in an action to enforce an express trust in lands need not show an instrument in writing, either creating or declaring the trust, may an express trust in lands be proven by oral testimony in Montana ?

B. Winston, Judge. Action by 'James H. Bennett against H. J. Quinlan. From a judgment for plaintiff and an order denying Mm a new trial, defendant appeals. A matter will not be considered as res adjudicada unless it appears from the judgment or from the judgment-roll to have been adjudicated.

W. Pierson, Judge. Action by P. B. Moss against Richard W. Goodhart. From a judgment for plaintiff and an order denying him a new trial, the defendant appeals. It is an elementary principle of the law that a neglect of duty, where no loss occurs, cannot give rise to a right of action.

Lynch, Judge. Action by Joseph F. Conway, Jr., a minor, by Joseph F. Conway, Sr., his guardian ad litem, against the Monidah Trust and others. Judgment for plaintiff. Defendants appeal from the judgment and an order denying their motion for a new trial. The plaintiff’s right to recover damages depends solely on the question whether or not defendants have been guilty of actionable negligence. Actionable negligence is the breach of a legal duty owing to the party injured.

Original application for writ of prohibition by the state, on relation of Bartholomew A. Scollard, against the district court of the second judicial'district, in and for Silver Bow County, and one of its judges.

McClernan, Judge. Action by Martin Simonich against Dominick Quilici. Judgment for plaintiff, and defendant appeals from it and an order denying him a new trial.

K. Cheadle, Judge. Action by the Cook-Reynolds Company against L. H. Chipman. Judgment for plaintiff. Defendant appeals from the judgment and an order denying his motion for a new trial. Held: however, that the forfeiture clause, despite the statutes, was originally in effect, the respondent waived it by the frequent extensions of the payment due February 1, 1911.

Action by Ben Clifton, against Preston H. Willson. Judgment for plaintiff, and defendant appeals from it and from an order denying him a new trial.

Action by Oscar Kallio against the Northwestern Improvement Company and another. Judgment for defendants, and plaintiff appeals. The common-law rule requires the master to exercise reasonable care in providing for the servant a reasonably safe place, and requires the master to exercise reasonable care in the way of inspection to see that the place is kept reasonably safe.

McClernan, Judge. Application by A. B. Melzner, administrator de bonis non of Henry Williams, for the settlement of his final account, to which Andrew J. Davis and others filed objections. From an order allowing the account, objectors appeal.

McClernan, Judge. Action by tbe American Bonding Company of Baltimore against the State Savings Bank. Judgment for defendant. Plaintiff appeals. Held: an affirmative defense. The judgment so entered was affirmed, the principles upon which the case was decided in the first instance, as set out in the opinion above referred to at length, being adhered to.

N. Utter, Judge. Claim and delivery by W. H. Taylor against the Malta Mercantile Company. Judgment for defendant, and plaintiff appeals. The question for this court to determine is whether there is any testimony tending to show delivery or change of possession. The property as shown by the bill of sale consisted of houses and machinery. Where goods sold or mortgaged are incapable of actual manual delivery, a symbolic delivery is sufficient to transfer possession.

Lynch, Judge. Action by A. B. Melzner, administrator of the estate of J. W. Martin, deceased, against the Raven Copper Company. From a judgment for plaintiff, and an order denying it a new trial, defendant appeals. Under section 6711, Revised Codes, a verdict may be returned against one only of several defendants, but it must be in favor of the other defendants.

E. Cheadle, Judge of the Tenth Judicial District, presiding. Action by Leonard) Bailey against Frank J. Edwards. Held: in granting the motion for judgment in favor of defendant, that the identical matter in controversy in this action was involved in the four actions referred to in the testimony and in the judgment-rolls which were offered in evidence, being proceedings in the nature of mandamus proceedtings, wherein the plaintiff and his assignors…

C. Webster, J uclge. Action by John R. Daily against Thomas C. Marshall, Thomas N. Marlowe and' W. P. Mills. Judgment for plaintiffs and defendant Mills appeals from it and an order denying his motion for a new trial.

W. Pierson, Judge. Action by Matthew Callahan against the Chicago, Burlington & Quincy Railroad Company. From a judgment of nonsuit plaintiff appeals. Were the declarations of the conductor and the roadmaster admissible? Any attempt to set exact limitations to the rule of res gestae is futile.

E. Erickson, Judge. Action by C. N. Nilson against tbe city of Kalispell. Judgment for plaintiff. Defendant .appeals from the judgment and an order denying its motion for a new trial. Where plaintiff’s own act is the proximate cause of Ms injury, he must allege and prove facts showing that he was free from negligence. Under this rule, the trial court should have sustained defendant’s demurrer herein. (Kennon v. Gilmer, 4 Mont. 433, 2 Pac. 21; Badovinac v. Northern Pac. Ry.

M. Clements, Judge. Walter Whitworth, convicted of murder in the second degree, appeals from the judgment of conviction and from an order denying him a new trial. The court’s announcement of the law as to threats, a previous assault, etc., were wholly erroneous.

Miller Smith, a Judge of the First Judicial District, presiding. Action by William Wallace against James P. Weaver, Peter Noid, and C. E. Goldberg. From a judgment in favor of defendants and an order denying him a new trial, plaintiff appehls.

J. Lynch, Judge. Application for writ of mandate commanding defendant, Lewis J. Duncan, as mayor of the city of Butte, to reinstate plaintiff in the office of policeman. From a judgment awarding to plaintiff the relief asked, defendant appeals. Under the state of the record herein, laches of the relator, precluding a recovery, appear.

<p>Justices of the Peace — Defcmlt Judgment — Order Setting Aside —Not Appealable.</p> <p>1. An appeal does not lie from an order of a justice of the peace sustaining a motion to set aside a default judgment, open the default and permit an answer to be filed, or from any order, the only appeal permitted from such a court being from a judgment.</p>

McClernan, Judge. Action by Mary E. O’Rourke, as. executrix of the estate of John O’Rourke, deceased, against the Grand Opera House Company. Judgment for plaintiff. Defendant appeals from an order denying its motion for a new trial. Was the board of directors legally assembled?

J. Lynch, Judge. Action by Sarah Jane Downs against Charlotte Cassidy for slander. Plaintiff had judgment. Held: constitutes an entirely different cause $£ action. (25 Cyc. 470, 471, and cases cited.) In one of the set of words which witness stated the defendant used was “a son-of-a-biteh.” This was the use of a mere epithet. The slander alleged is the utterance-of words imputing a want of chastity and the commission of the crime of larceny.

<p> Appeal from District Court, Valley County; J. Miller Smith, a Judge of the First Judicial District, presiding. </p> <p>Action by James R. Stephens against Patrick Nacey. From a judgment of dismissal of an election contest, contestant appeals.</p>

Pierson, Judge. Action by David Fratt and wife against the Daniel-Jones Company and another. From a judgment on the pleadings, defendant company appeals. The complaint does not state facts sufficient to constitute a cause of action. There is no allegation to the effect that respondents repaid or offered to repay to appellant the money paid by the latter to the former at the time the contract was executed, and, in other respects, that they placed appellant in statu quo.

J. Lynch, Judge. Action by Charles Walters against the Chicago, Milwaukee & Puget Sound Railway Company and another. Judgment for plaintiff. Defendants appeal from the judgment and from an order overruling a motion for new trial. Since the introduction of automobiles, the various courts which have had under consideration crossing accidents have adopted a most rigid rule in fixing the degree of care necessary to be exercised by drivers of automobiles.

J. Lynch, Judge. Action by Matthew Cullen against the Western Mortgage & Warranty Title Company. Defendant appeals from the judgment and from an order denying it a new trial. The certificate of tax sale to Silver Bow county should not have been admitted in evidence. The attempted tax sale to that county was void. The county treasurer sought to sell to it at one time and in lump all the property upon which taxes for the time recited in the tax certificate had not been paid.

Original application for writ of certiorari to review the actions of the board of county commissioners of Teton county looking to the creation of Toole county.

Original application by R. C. Rasmussen to review certain actions taken by the board of county commissioners of Teton county with reference to the proposed creation of Pondera county.

Duncan, Judge. Action by John R. Latimer and others against Frank Nel-. son, Daniel L. McQuarrie and John J. Flynn, as the board of commissioners of Missoula county. From an order refusing to issue an injunction pendente lite,, plaintiffs appeal.

Original application for writ of mandate to compel the District Court of Silver Bow County and Hon. Michael Donlan, one of its judges, to correct a certain judgment.

McClernan, Judge. Proceedings in mandate by the state, on the relation of John D. Wilson, to compel W. A. Willis, as clerk of the city of Bntte, and others, to perform certain duties. Eelator had judgment, and respondents appeal.

Lee McCullough, Judge. Action by J. A. Andree against the Anaconda Copper Mining Company. Judgment for plaintiff, and defendant appeals from it and an order denying its motion for a new trial. There is no direct or positive evidence in the record to sustain the allegation of a defective toggle. The theory upon which counsel for respondent apparently tried the case was, that as the toggle became unfastened, it must of necessity have been defective.

Miller Smith, Judge. Application by tbe state on tbe relation of Mary M. Danaher for writ of mandate to compel F. H. Ray, register of state lands, to issue a certificate of sale of certain lands. From a judgment in favor of defendant, relatrix appeals.

Lynch, Judge. Action by Frank E. Farwell against Mabel Farwell for divorce. Judgment for plaintiff. Defendant appeals from the judgment and from an order denying her a new trial.

Lee McCullough, Judge. Action by Ezra D. Titus against tbe Anaconda Copper Mining Company. From a judgment for plaintiff and from an order denying it a new trial, defendant appeals.

<p>' Appeal from District Court, Silver Bow County; J. M. Clements, a Judge of the First Judicial District, presiding.</p>

<p> Appeal from District Court, Silver Bow County; J. M. Clements, a Judge of the First Judicial District, presiding. </p>