Volume 66 — Montana Reports

Appeals from. District Court, Chouteau- County; John W. Tattan, Judge. Action by Eda Keller against Merritt Flanagan, Sheriff, and George Brundage, Deputy Sheriff, in and for the County of Chouteau, State of Montana, From a judgment for the plaintiff and an order denying a new trial, defendants appeal.

Appeals from District Court, Powell County; Geo. B. Winston, Judge. Action by Arthur Thomas and another against James B. Ball, David J. Price, and another to determine water rights. From the judgment and a denial of a new trial, defendant last named appeals.

Jachson, Judge. Mandamus by tbe State of Montana on tbe relation of Daniel F. Sbea against James G-. Cocking, as mayor of tbe City of Bntte, and others. From a judgment for relator, defendants appeal. Where the law bolds that no person except an elector shall be eligible to office, this does not mean that the converse is true, that any elector whether qualified or not is entitled to hold office. Such reasoning would be very fallacious.

<p> Appeal from District Court, Powell County; Geo. B. Winston, Judge. </p> <p>Action by George Dryer against the Director-General of Railroads. Judgment for defendant, and plaintiff appeals.</p>

Appeals from District Court, Mineral County; Asa L, Duncan, Judge. Action by B. E. Vaill against tbe Northern Pacific Railway Company. From the judgment for plaintiff, and from an. order denying a new trial, defendant appeals.

Stong, Judge. Action by David Badboy and another against Ed W. Brown, Sheriff of Big Horn County. From an order granting a new trial unless plaintiffs consented to a reduction of damages, plaintiffs appeal. Cause submitted on briefs of Counsel.

Appeals from District Court, Wheatland County; E. H. Goodman, Judge. Suit for injunction by Williams F. Jacobs against the City of Harlowton. From the judgment for defendant and an order denying plaintiff’s motion for new trial, he appeals. The right of an appropriator to have the waters appropriated come to him undiminished in quantity and undeteriorated in quality has been vindicated by the courts of this state from the earliest times. (Caruthers v.Pemberton, 1 Mont.

E. Comer, Judge. Action by the First National Bank of Brockton against H. M. Cosier and others. From a judgment for plaintiff, and an order refusing a new trial, defendants appeal. The case at bar was commenced on the twenty-ninth day of July, 1919. According to the complaint, the debt matured to the twentieth day of April, 1919, and subsequent to the first day of March, 1919, pleaded as the last day of default in filing a report.

<p> Statute of Frauds—Sales—Oral Contract—Gomplete Performance—Effect. </p> <p>1. Where an oral contract of sale of timber exceeding in value $200 had been fully performed at the time the action was commenced, the contention that the transaction was void under .the statute of frauds is without merit, complete performance taking the ease out of the statute.</p> <p>Contract for timber to be sawed as a sale within the statute of frauds, see notes in 19 Ann. Cas. 1301;’ 14 L. JR. A. 233; 30 L. JR. A. (n. s.) 324.</p>

Smith, Judge. Action by Walter Ellinghouse against the Hansen Packing Company. Judgment for plaintiff, and from it and a denial of a new trial, defendant appeals. Cause submitted on briefs of Counsel.

H. Poorman, Judge. Action by Lydia C. Winkelmann against the Minnesota Mutual Life Insurance Company, in which action the. Savage Hardware Company was substituted as defendant.

Bose, Judge. Action by William W. Stevens against the Equity Mutual Fire Insurance Company. Judgment for plaintiff, and defendant appeals. The defendant was entitled to a jury on the issues of fact raised by the legal defenses. (Chessman v. Hale, 31 Mont. 577, 3 Ann.

<p> Appeal from District Court, Big Horn County; Bdbert C. Stong, Judge. </p> <p>Action by the J. M. Broat Lumber Company against J. W. Yan Houten. Judgment for plaintiff, and defendant appeals.</p>

<p>New Trial—Excessive Verdict—Jury—Passion and Prejudice— Voluntary Remission of Damages Toy Successful Party— Effect,</p> <p>New Trial.—Excessive Verdict—Passion and Prejudice in Jury.</p> <p>1. "Where plaintiff sought to recover a balance of $570.80 due upon a building contract, defendant interposing a counterclaim for $429.21, and the jury returned a verdiet in favor of the defendant in the exact amount asked for by plaintiff, and $141.60 more than defendant claimed was due him, the verdict could only be accounted for on the theory of passion and prejudice on the part of the jury, entitling plaintiff to a new trial as a matter of right.</p> <p>Same—Voluntary Remission of Damages by Successful Party—Effect on Right of Defeated Party to New Trial.</p> <p>2. While, under section 9397, Revised Codes of 1921, the trial court may remit a portion of a verdict on condition that unless the remission be accepted by the successful party a new trial would be granted, such practice is unwarranted where the verdict was influenced by passion and prejudice; the same rule being applicable, under like circumstances, where the- successful party makes voluntary remission of all damages awarded him.</p>

E. Carroll, Judge. Action by Paul A. Gow against the Cascade Silver Mines & Mills Co. and others. From a judgment for defendants, plaintiff appeals. Held: that even though it would be a saving to the estate of a large sum of interest annually, the special administrator had no authority to relieve the estate of the burden, and that any attempt to relieve the estate of the obligation would be null and void. (See, also, Long v. Burnett, 13 Iowa, 28, 81 Am.