Volume 60 — Montana Reports

C. Hurley, Judge. Action by A. E. Aiken and others to enjoin the city of Glendive and its council from creating a special improvement district. Judgment for plaintiffs. Defendants appeal.

Action by Charles Krug and another against the City of Glendive and its council, to enjoin defendants from creating a certain special improvement district. From a judgment for plaintiffs, defendants appeal.

Appeals from District Court, Silver Bow County; Edwin M. Lanib, Judge. Action by Elmer Jackson, by his guardian ad litem. W. M. Jackson, against C. T. Lomas. Judgment for plaintiff. Defendant appeals from it and from the order denying his motion for a new trial. A person is liable only for acts of negligence which proximately cause the injury alleged. If the violation of the ordinance pleaded was not the proximate cause of the injury, then defendant is not liable.

Appeals from District Court, Silver Bow County; J. J. Lynch, Judge. Action by Socrates Zanos against the Great Northern Rail, way Company. From a judgment for plaintiff and an ordei denying its motion for a new trial, defendant appeals.

Appeals from District Court, Musselshell County; Charles L. Crum, Judge. Action by J. W. Newton against the City of Roundup. From a judgment for plaintiff, and .from an order overruling its motion for a new trial, defendant appeals. The complaint is insufficient.

- Appeal from District Court, Missoula Countyj Asa L. Dun-cm, Judge. Action by Dwigbt N. Mason against John Swee. Judgment for plaintiff. Defendant appeals from it and from an order denying him a new trial.

II. Poornum, Judge. Action by Joseph Mares against Emma Mares, as executrix of the last will and testament of Frank Mares, deceased, and another. Held: “An action at law lies by one partner against the executor of a deceased copartner to recover firm assets.” In Hawkins v. Capron, 17 R. I. 679, 24 Atl. 466, it was held: “Trover lies by a surviving partner to recover possession of the firm assets against the representatives of the deceased partners.” (See, also, 1 Woerner on…

Law, Judge. Action by Wiliam B. Casey against tbe Northern Pacific Railway Company. Judgment for plaintiff, and defendant appeals from the judgment and from an order denying its motion for new trial. The only. testimony that even tends to justify the verdict is that of the plaintiff himself.

Harvey Schrack and George Rogers were convicted of larceny, and appeal from the judgment of conviction, and from the orders denying their motion' for a new trial.

<p>Chattel Mortgages — Conditional Sale Contracts — Recordation— Assignment — Record on Appeal.</p> <p>Record on Appeal — Defects—Duty of Counsel.</p> <p>1. It is incumbent upon counsel to so prepare tbe record on appeal as to present tbe full merits of their contentions and thus enable the court- to review them with intelligence without having to indulge in speculations, and to this end avoid endless repetition in pleadings, clerical inaccuracies and errors in the evidence, or the incorporation of testimony referring to exhibits not in the record, and of exhibits referred to in neither pleadings nor proof.</p> <p>Chattel Mortgages — Conditional Sale Contracts — Recordation—Assignment —Rights of Assignee of Bona Fide Mortgagee.</p> <p>2. Where a chattel mortgage, executed by the purchaser of the property under a conditional sale contract, was filed for record prior to the recordation of the contract, it was as valid in the hands of the assignee of the mortgage as it was in those of the bona fide mortgagee for value and without notice, even though the assignee may have had actual notice of the existence of the conditional contract of sale at the time of the assignment.</p> <p>Same — Conditional Sales — Eight of Purchaser to Mortgage Property.</p> <p>3. The purchaser of personal property under a conditional sale contract whereby title was reserved in the seller until full payment made had a mortgageable interest in it (section 57S7, Rev. Codes, as amended, Laws 1913, Chap. 86).</p>

Duncan, Judge. Action by D. S. Terry against Allen Stephens and another. From a judgment for plaintiff, and from an order denying his motion for new trial, Stephens appeals.

Jones, Judge. Action by J. J. Donovan against the Bull Mountain Trading Company. Held: “However, after services or materials have been furnished and accepted, the fact that no price had been agreed upon, or that the compensation mentioned in the contract is too indefinite, does not prevent the recovery of a reasonable compensation.” (Page 649.) The authorities cited by counsel all refer to cases in which the contract…

<p>Mines and Mining Claims — Adverse Claim — Location—Relocation — Abandonment—Annual Assessment Work.</p> <p>Mines and Mining Claims — Adverse Claim — Complaint.</p> <p>1. In an action to determine an adverse claim to a lode mining claim, the complaint is sufficient if plaintiff by appropriate allegations shows his right to the ground covered by his location, without alleging the nature of defendant’s elaim, the duty of doing so devolving upon defendant.</p> <p>Same — Complaint — Location — Defect in Beeorded Certificate — Immaterial Allegation.</p> <p>2. In view of the provision of section 2293, Eevised Codes, that defects in a recorded certificate of location of a mining elaim shall not be deemed material where the person relying on the defects made his location with notice thereof, allegations in his complaint, in an action to determine an adverse claim, relating to such defects are immaterial.</p> <p>Same — When Land not Subject to Location.</p> <p>3. Mining ground covered by valid and subsisting locations is not public domain and therefore not open to exploration and purchase under the federal statute.</p> <p>Same — Location Within Subsisting Claim Void.</p> <p>4. An attempted location of a mining claim, based upon a discovery within a then valid and subsisting claim, is void for the purpose of laying the foundation for an adverse elaim, and does not attach upon the subsequent failure of the first locator to do the required annual assessment work.</p> <p>Same — Failure to Do Assessment Work — Effeet.</p> <p>5. A location of a mining claim upon ground covered by a valid and subsisting elaim, at a time when the senior locator is not in default under state or federal laws, is subordinate to a relocation by a stranger made after the rights of the first locator lapsed because of failure to do the annual assessment work.</p> <p>Same — Eelocation by Owner — When Valid.</p> <p>6. Under section 2289, Eevised Codes, the locator or claimant may at any time relocate his own claim for any purpose other than to avoid the doing of the annual assessment work, provided he complies in all respects with the requirements of sections 2283, 2284 and 2286, Eevised Codes.</p> <p>Same — Abandonment—Rights of Noneonsenting Cotenant.</p> <p>7. Where three of four cotenants of mining claims abandonéd them by relocating other claims covering the same ground, the rights of the fourth remained unaffected by their abandonment and, therefore, as to the latter the claims thus abandoned remained valid and subsisting claims until forfeited.</p> <p>Same — Assessment Work — Preserves Claimant’s Right, Until When.</p> <p>8. Representation work done on a mining claim during any one year is sufficient to preserve the claimant's right until the 31st of December of the next year.</p> <p>Same — Relocation by Owner — When Ineffectual.</p> <p>9. Where relocators of their own claims did not do the excavation work required to be done, under section 2289, Revised Codes, before another had located the same ground, their attempted relocations were nugatory.</p> <p>9. On respective rights of one who relocates mining ground before, and one who relocates it after, the abandonment or forfeiture of a senior location, see notes in 68 L. R, A. 842; 16 L. B. A. (n. s.) 162.</p>

Appeals from District Court, Silver Bow County; Edwin M. Lamb, Judge. Action by 'John Hassan against the Northern Pacific Eailway Company. Nonsuit entered, and from the judgment and a denial of a new trial, plaintiff appeals.

Lamb, Judge. Action by Joseph C. Stettheimer and others against the City of Butte. Verdict and judgment for the defendant. From an order denying motion for new trial, the plaintiffs appeal. Continued user by the public for the statutory period of limitation is not sufficient to vest rights. As in all other cases of title acquired by prescription, the user must be adverse. A permissive user will never ripen into a right by prescription.

Appeals from District Court, Richland Coimty; C. C. Hurley, Judge. Action by G. B. Hawley against H. N. Richardson. From a judgment for plaintiff, and from an order denying Ms mo- tion for new trial, defendant appeals. The court would not allow the county attorney to testify as to whether attorney Brattin had authority to draw the complaint and was acting as deputy county attorney after the complaint had been admitted.

Appeals from District Court, Cascade County; 3. 3, Ewing, Judge, Action by tbe United States Gypsum Company, a eorporation, against the Mackey Wall Plaster Company, a corporation, and others. From a judgment for defendants, and an order overruling motion for new trial, plaintiff appeals.

Lamb, Judge. Action by Annie Currey against the Butte Electric Bailway Company. Verdict for defendant, and from an order setting aside the verdict and striking from the files the judgment, defendant appeals. An affidavit by a juror seeking to impeach a verdict cannot be considered.

Duncan, Judge. Action by Donald Buckhouse against Harry H. Parsons. From an order granting defendant’s motion for new trial after verdict directed for plaintiff, he appeals.

Matthews, Judge. Action by B. C. Price against the Northern Pacific Bail-way Company. Judgment for defendant. From an order granting a new trial, defendant appeals. Plaintiff’s notice, served on defendant almost a year after the verdict was rendered and the notice of intention to move for a new trial was made, states that it will be heard upon the records and files in said action.

Appeals from District Court, BavalU County; B. Lee Mc-Culloch, Judge. Action by Paul Whitelaw against John B. Yallance and another. From a judgment for plaintiff and from the order denying defendants’ motion for new trial, defendants appeal. The complaint fails to state the time of performance, or that the alleged contract was to have been performed within a reasonable time or upon request, and that such reasonable time had elapsed or such request had been made.

Lee Mc-Culloch, Judge. Search-warrant proceeding by the State of Montana, on the relation of C. E. Hogue, Sheriff, against W. P. 0 ’Brien and certain intoxicating liquors. From a judgment declaring forfeited a quantity of whisky, and ordering it destroyed, defendant appeals.

Winston, Judge. Action by D. A. Batchoff, as administrator of the estate of Dimitre Stoyeoff Gancheff, deceased, against the Butte Pacific Copper Company and another. Judgment by default for plaintiff, and the defendants, after denial of motion to set aside the default and the judgment, appeal from the judgment.

Appeals from, District Court, Silver Bow County; Edwin M, Lamb, Judge. Action by Victor Osterholm, as administrator of the estate of Edus B. Lund, against the Butte Electric Railway Company and others. From a judgment for plaintiff for an alleged insufficient amount, and from an order denying a motion for new trial, plaintiff appeals.

Appeals from District Court, Powell County, in the Third Judicial District; Jeremiah J. Lynch, a Judge of the Second District, presiding. Action by Joseph. Briggeman against Anna C. Corrigan, executrix of the estate of Mary Corrigan, deceased. Defendant’s motion for nonsuit was granted, and from the judgment and order' denying a new trial, plaintiff appeals. Under sections 2085 and 2086, Bevised Codes, plaintiff made a prima facie case.

H. Poorman, Judge. Action by Jabez Doney against tbe Northern Pacific Railway Company and the Bntte, Anaconda & Pacific Railway Company. Judgment for defendants, and plaintiff appeals. The controlling, if not the only, question presented is whether an action for damages, like the present, or in latter-day parlance, an action for “reparation,” may be maintained without showing a prior determination by the Railroad Commission.

C. Spencer, Judge. Action by Sturm & Drake, a corporation, against the Roberts Elevator Company. Judgment for tbe plaintiff and defendant appeals from the judgment and from an order overruling its motion for a new trial. There is no evidence sufficient to support the verdict for the following reasons: 1. There is no evidence of any market price of hay on January 1, 1917; 2. There is no evidence to support the particular amount which the jury returned in their verdict; 3.

Appeals from District Court, Fergus County; Boy E. Ayers, 'Judge. Action by Elmer Sankey against tbe Chicago, Milwaukee & St. Paul Railway Company. Verdict for the plaintiff. Prom an order granting defendant a new trial, plaintiff appeals. Citing: 10 C. J. 284, 299; 4 R. C. L. 738, 745; McCray v. Baltimore & Ohio B. B. Co., 18 W. Va. 361, 41 Am. Rep. 696; Wall v. Northern Pac. By. Co., 50 Mont. 122; Machie on Carriers, sec. 933; Wichita Falls & N. W. By.

Appeals from District Court, Fergus County; Boy E. Ayers, Judge. Action by C. M. Clary, as administrator of tbe estate of Margaret Wolf, deceased, against A. L. Fleming. From a judgment for defendant, and from an order overruling his motion for new trial, plaintiff appeals.

Appeals from District Court, Beaverhead County; Joseph C. Smith, Judge. Action by tbe Pioneer Mining Company against the Bannack Gold Mining Company. From a judgment for defendant and from order denying a motion for a new trial, plaintiff appeals. At the time appellant’s title was conveyed from the ancestor, the ancestor owned all the realty of appellant and respondent, but not the mill or its' machinery or appurtenances.

Appeals from District Court, Silver Bow County; Edwin M. Lamb, Judge. Action by Fred M. Humber against John W. Marshall. Judgment for plaintiff, and defendant appeals from the judgment and from an order refusing a new trial.

Appeals from, District Court, Fergus County; Jack Briscoe, Judge. Action by Susie S. and Joseph B. McKeever against the Oregon Mortgage Company. Judgment for plaintiffs, and defendant appeals from the judgment and from an order denying a new trial. That the action brought by plaintiff may be maintained is established law in this jurisdiction. (Sec. 4970, Rev. Code; McDonald v. American Nat.

„ Appeal from District Court, Meagher County; John A, Matthews, Judge, In the Matter of the estate of John M. Smith', deceased. Prom an order dismissing the contest of J. Stanley Smith against a claim of William Smith, Gertrude Mayn Smith, as the executrix of the estate of J. Stanley Smith, deceased, appeals.

Ayers, Judge. Action by James L. Martin and another, as guardians of Joseph Miller, an incompetent person, against Herbert A. Hover and others. From an order appointing a receiver, without notice, defendants appeal.

Appeals from District Court, Lewis and Clark County; R. Lee Word, Judge. Arthur D. Prouty was convicted of an attempt to commit rape. From the judgment and from an order denying his motion for a new trial, he appeals. The court erred in overruling defendant’s objection to the introduction in evidence of the clothing worn by the prosecuting witness at the time of the assault.

Appeals from District Court, Silver Bow County; Jeremiah J. Lynch, Judge. Steve Byrne was found guilty of murder in the first degree, and from the judgment of conviction and from an order denying a new trial, he appeals. There was error in admitting the upper portion of the skull of the deceased in evidence.

Appeals from District Court, Silver Bow County; J. J. Lynch, Judge. Theodore Chronopoulos was found guilty of murder. From the judgment and the order overruling his motion for a new trial, defendant appeals.

Appeals from District Court, Rosebud County; George P. Jones, Judge. W. J. Wallin was convicted of grand larceny and appeals from the judgment and order denying a new trial. -Taking the property of another, with intent to pledge the same, amounts to taking animo furand/i, if there be no reasonable likelihood of ability to redeem, or if the intention to redeem be only a vague and indefinite one.

Taylor, Judge. Action by the United States National Bank of Eed Lodge against the Great Western Sugar Company. Judgment for plaintiff, and defendant appeals. “Agreed statements of fact are solemn admissions, resembling special verdicts, and (as with the latter) the meaning of the language in which they reach us cannot be enlarged beyond its express scope.” (Ozark Plateau Land Co. v. Hays, 105 Mo. 143, 16 S. W. 957; Koppel v. Mass.

Appeals from District Court, Musselshell County; George P. Jones, Judge. Vaughn Q. Bennett was convicted of arson, and from the judgment, and an order denying a new trial, he appeals. Prejudicial error was committed in admitting the testimony of the witness Hafiner. The testimony of the witness Hafner consisted of excerpts read from a written statement, and it was error to permit any part of the said statement to be introduced in evidence.

Appeals from District Court, Beaverhead County; Jos. C. Smith, Judge. William T. Bonning was convicted of receiving stolen property, and from the judgment of conviction and an order denying-Mm a new trial, he appeals.

Charles Evans was convicted of grand larceny, and he appeals-. In State v. Trosper, 41 Mont. 442, 109 Pae. 858, this court held that where the state is endeavoring to convict - largely by showing possession of recently stolen property it must establish (1) that the property was stolen by someone, and (2) that the defendant was recently in possession of it.

Appeals from District Court, Stillwater County; Albert P. Stark, Judge. August H. Berndt was convicted of white slavery and he appeals from the judgment and order denying a new trial.

<p> Appeal from District Court, Lewis and Clark County; Wm. E. Poorman, Judge. </p> <p>Action by the J. I. Case Threshing Machine Company against Charles T. Stewart, as Secretary of State of the State of Montana. From a judgment for plaintiff, defendant appeals.</p>

<p> Appeal from District Court, Lewis cmd Clark County; W. E. Doorman, Judge. </p> <p>Action by the General Electric Company against Charles T. Stewart, as Secretary of State of the State of Montana. From a judgment for plaintiff, defendant appeals.</p>

Appeals from District Court, Lewis and Clarh County; B. Lee Word, Judge. Charles Stevens was convicted of grand larceny, and appeals from the judgment and an order refusing a new trial. The testimony of the witness Patrick Keys was improperly admitted. It could not have and did not have the remotest relation to or bearing upon the question of whether the defendant was guilty as charged in the information.

Appeals from District Court, Hill County, in the Eighteenth Judicial District; T. A. Thompson, Judge of the Eleventh District, presiding. Action for divorce, by Eleanor Marie Boles against Charles Boles. From a judgment for plaintiff and an order denying her motion for new trial she appeals.

<p>Criminal Law — Sedition—Information—Conclusions — Insufficiency,</p> <p>Sedition — Information — Conclusions — Inferences — Innuendoes — Insufficiency.</p> <p>1. Since ultimate facts constituting the crime charged, and not conclusions drawn by the pleader from the faets, must be stated in an information, clauses following each of several alleged seditious utterances explaining and interpreting what defendant meant by the language used, held improper in an information charging sedition under Chapter 11,- Extra. Session 1918.</p> <p>Same — Information—Insufficiency.</p> <p>2. An information charging defendant with saying that the injuries to Belgian children exhibited in the United States were sustained in factories, and were not tiie result of German atrocities; that the murder of the Armenians was nothing; that the Armenians were heathens; that it was a mean trick for Germans to mutilate and mangle American prisoners of war, held not to eharge sedition as defined in Chapter 11, Laws Extra. Session 1918.</p> <p>Same — Information—Certainty.</p> <p>3. In view of the provision of section 9149, Revised Codes, requiring that the information must be direct and certain, inter alia, as to the particular circumstances of the offense charged when- they are necessary to constitute a complete offense, an information charging one with seditious utterances should set forth the fact whether the words were uttered in private conversation with a single person or from a public platform, or were disseminated through the medium of printed articles.</p>

Appeals from District Court, Silver Bow County; Jeremiah J. Lynch, Judge. Charles Tripp was convicted of an attempt to obtain money by false pretenses, and appeals from the judgment of conviction and from an order overruling his motion for a new trial. Citing: State v. Rains, 53 Mont. 424; People v. Youngs, 122 Mich. 292, 47 L. R. A. 108, 81 N. W. 114; Cornwall v. Fraternal Accident Assn., 6 N. D. 201, 66 Am.

Appeals from District Court, Beaverhead County; Jos. C. Smith, Judge. E. C. Davis was convicted of murder in the first degree, and appeals from the judgment and an order denying him a new trial. The affidavits and testimony offered in support of the motion for change of venue show that the feeling in Beaverhead county was such that defendant could not there obtain an impartial trial. The application was heard immediately before the trial began.

<p>Criminal Law — Intoxicating Liquors — New Trial — Newly Discovered Evidence — Verdicts — Impeachment by Jurors — * Witnesses — Credibility—Impeachment—Former Conviction of Misdemeanor.</p> <p>Criminal Law — Witnesses—Former Conviction of Misdemeanor — Improper Cross-examination.</p> <p>1. Held, that the provision of section 8907, Revised Codes, to the effect that the conviction of a person of any offense may be proved for the purpose of affecting the weight of his testimony, refers to conviction for a felony, and that therefore refusal to permit cross-examination of a witness for the state as to his former conviction of a misdemeanor was proper.</p> <p>Same — Misconduct of Jury — Verdict—Impeachment by Affidavit.</p> <p>2. Since a juror may not impeach his verdict directly by affidavit, impeachment thereof is not permissible by the affidavit of another detailing admissions and declarations made by the juror after trial showing that he was prejudiced while acting as such.</p> <p>1. What constitutes “crime” for conviction of which witness may be impeached, see note in Ann. Cas. 1916A, 274, 279.</p> <p>On the question as to whether- cross-examination is proper mode of proving conviction of crime for purpose of impeachment, see notes in 30 L. R. A. (n. s.) 846} 6 A. L. R. 1608.</p> <p>Trial — Pleadings—Motions—Nature of — How to be Determined.</p> <p>3. In determining tbe character of pleadings, motions and other papers filed in an action, the' object sought to be attained is controlling.</p> <p>Criminal Law — New Trial — Newly Discovered Evidence — Buie.</p> <p>4. Where alleged newly discovered evidence is merely cumulative and designed to impeach the credibility of a witness further than it had already been impeaehed, a new trial cannot be granted.</p> <p>Same — New Trial — Motion Based on Documentary Evidence — Beview on Appeal.</p> <p>5. As a rule the supreme court is more reluctant to set aside an order granting than one refusing a new trial, but where the motion’ was based entirely upon documentary evidence, it is in as advantageous a position to pass upon its merits as was the trial court, and will set aside the order if from the reeord it is unable to ascertain upon what theory the motion could have been granted.</p>

O’PLern, Judge. - J. Gk Drum was convicted in the police court of violating an ordinance of Miles City, and appealed to the district court, where the complaint was dismissed. The city appeals.

Duncan, Judge. Action by Catherine Boyle against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for defendant. From an order denying her a new trial, plaintiff appeals.

B. Rhoades, Judge. Action by Michael O’Neil and another against T. L. Christian and another. Judgment for plaintiffs, and defendants appeal from an order denying them a new trial. To state a cause of action for damages resulting from negligence, it is necessary that the complaint disclose the duty, the breach and the resulting damages. (Fusselman v. Yellowstone Valley L. é I. Co., 53 Mont. 254, Ann.

Appeals from District Cotort, Yellowstone County; Charles A. Taylor, Judge. Action by W. R. Hogsed against Frank H. Gillett, as executor of the estate of Joseph Spragg, deceased, and another. Judgment for defendants, and plaintiff appeals from it and from the order overruling his motion for a new trial.

Haeley S ho wen was convicted of selling intoxicating liquors, and appeals from the judgment and an order denying his motion for a new trial.

Taylor, Judge. Action by Lydia Belle Bode against Adolph Rollwitz and another.

C. Smith, a Judge of the Fifth District, presiding. Action by the International Harvester Company against Myra Day Merry and others. Judgment for plaintiff. From an order granting new trial, plaintiff appeals.

'Appeal from District Court, Lewis and Cla/rk County; B. Lee Word, Judge. • Action by Forrest E. Keith against the Great Northern Railway Company. Judgment for plaintiff. Defendant appeals. It was contended on the trial that the opinions of this court in the Mason Case (Mason v. Northern Pac.

Appeals from District Court, Powell County; George B. Winston, Judge. Action bry C. N. Mannix against Powell County. From a judgment dismissing the complaint, and from an order denying a new trial, plaintiff appeals. Citing: Castro v. Barry, 79 Cal. 443, 21 Pac. 946; Kittle v. Bellegarde, 86 Cal. 556, 25 Pac. 55.

C. Spencer, Judge. Certiorari by the State, on relation of Robert Baird and another, against Ray Anderson, Justice of the Peace of Billings Township, Yellowstone County, to review a judgment for plaintiff in an action by J. S. Haley against relators. Judgment for relators and respondent appeals.

Appeals from District Court, Gallatin County; B. B. Law, Judge. Action by Riley Le Munyon against tbe Gallatin Valley Railway Company. Judgment for plaintiff, and defendant appeals from the judgment and from tbe order denying its motion for a new trial. There is no responsibility for obstruction of tbe flow of surface waters.

C. Spencer, Judge. Proceeding by J. B. Arnold and another, executors, for partial distribution of the estate of Kate Fratt, deceased. From an order granting insufficient relief, Marguerite Morrissey and another appeal. The bequests made Annie Morrissey did not lapse.

Action by the Blaekfoot Land Development Company, a corporation, against W. C. Burks. Judgment for plaintiff and defendant appeals. The case at bar is in ejectment, purely a law aetion and the issues made by the pleadings are purely legal issues, and no equitable principles are invoked and none are shown by the record to exist.

<p> Appeal from District Court, Silver Bow County; Edwin M. Lamb, Judge. </p> <p>Action by Erick Wick against tbe Western Life & Casualty Company. Judgment for plaintiff and defendant appeals.</p>

Appeals from District Court, Stillwater County; Albert P. Starh, Judge. Elijah Bess was convicted of murder in tbe first degree, and appeals from the judgment and order denying a new trial. The petition of the defendant for a change of venue should have been granted and the cause transferred to some county where prejudice did not exist and where a fair and impartial trial could have been had.

‘Appeal from District Court, Lewis, and Clark County; A. J. Mor sky, Judge. 'Action by Bertba M. Evans and others against the city of Helena and… Held: with reasonable strictness, to the observance of the rule against material changes or departures in plans and in the nature of the work. Otherwise, owners would ofttimes be left helpless. Improvements made must correspond substantially with those set forth in the resolution of intention, and no material change can be made.

Appeals from District Court of Meagher County; E. E. Goodman, Judge. Arthur Ducolon, charged with knowingly receiving stolen property, was convicted and appeals from the judgment and from an order denying his motion for a new trial.

District Court, Biwine County; Frank E. Cwrleton, Judge. Robert James McIlwain was convicted of the crime of rape, and appeals from an order denying his motion for a new trial.

Disbarment Proceeding against John Jacob Jewell. Accused suspended for ninety days, with privilege of reinstatement upon showing of satisfactory proof of good moral character.

<p>Beal Property — Contracts — Rescission — Waiver — Election of Remedies.</p> <p>Laud Contracts — Fraud—Rescission—Election of Remedies.</p> <p>1. Where a contract for the purchase of land was procured through false representations whereby the vendee has been deceived and defrauded, he has an election of remedies: he may stand upon the contract and sue for damages, or rescind the contract, but cannot pursue both.</p> <p>Same — Duty of Party Desiring to Rescind.</p> <p>2. Under section 5065, Revised Codes, one desiring to rescind a contract must act promptly upon discovery of the facts which entitle him to rescind and he is aware of his right to rescind, and restore or offer to restore, to the other party everything of value which he has received from him under the contract.</p> <p>Same — Rescission—W aiver.</p> <p>3. Plaintiff brought action to rescind a land contract on the ground of fraud, and recover damages resulting from defendant’s breach. He alleged that defendant had fraudulently represented to him, in the late fall when the contract was made, that the land was free from fan weed, 'and testified that in the spring he discovered that the land was overrun with the weed. Four months thereafter he served notice upon defendant that he desired to rescind and tendered back a deed to the premises, but continued to occupy them until the date of the trial, about a year from the date when he first became' aware of the alleged fraud, and harvested and sold a crop of wheat therefrom. Held, that plaintiff, by his conduct in retaining possession of the land, exercising aets of ownership of it, and retaining the benefits therefrom, waived his right to rescind.</p> <p>2. How, and within what time, right of rescission must be .exercised, see note in 50 Am. Dec. 672.</p> <p>Limitations on right to rescind a fraudulent contract, see note in 1 Ann. Cas. 910.</p>

Lee Word, Judge. Action by Edward J. Majors; against Lewis and Clark County, and another. Judgment for defendants. Plaintiff appeals. Under the statutes of Montana, the sheriffs of the various counties, and not the 'boards of county commissioners, are the “manager or proper authorities” having control of federal prisoners in county jails within the meaning of section 5547, United States Revised Statutes.

<p>Original action for injunction to restrain defendant from carrying out the provisions of House Bill No. 115 of the Seventeenth Legislative Assembly (Chap. 266, Laws 1921).</p>

<p> Appeal from Musselshell County; Geo. P. Jones, Judge. </p>

<p> Appeal from District Cou/rt, Silver Bow County; Edwin M. Lamb, Judge. </p>