ing that it had been "entered for collection." | take up the matter of the loan with Mr. In fact, appellants' checking account had been credited with the amount of the certificate as cash. Of this appellants knew nothing until they received a letter from Mr. Trumbo on March 22d, in which he wrote them as follows:

Tebbs upon his return home and inform Mr. Trumbo by telephone later what the appellants would do, but nothing further was done before the bank closed. The appellants did not know until after the bank had closed that the amount of the certificate had not "We are in receipt of advice from our cor- been charged back to their account, nor did respondent that certificate for $3,000 payment they know that the certificate had been diswas refused on as not being due, and your accounted by the Helena bank. When the recount has been charged with that amount. We could give you credit on your note for the amount of the certificate. Awaiting your early reply regarding this matter, we remain," etc.

On March 13th Mr. Trumbo had forwarded the certificate for collection to the Union Bank & Trust Company, at Helena (hereafter referred to as the Helena bank). On March 20th the Helena bank wrote Mr. Trumbo as follows:

ceiver took charge of the bank, he found cash on hand and on deposit in correspondent banks amounting to between $3,000 and $3,600. The amount in the bank was $1,200. There was on deposit in the Helena bank a balance of about $900. The balance of the total was on deposit in other correspondent banks. What the exact amount of this balance was cannot be stated, because the ac"We received from you the other day a cer- counts of the bank with the Helena bank tificate of $3,000, issued by the Central State were in confusion, and at the time of the Bank of White Sulphur Springs, dated March hearing of the petition the receiver had not 6th and due four months after date. This has now been returned to us from White Sulphur been able to reach a final adjustment of Springs, as they refuse to pay it until maturity them. When the Helena bank discounted and we have accordingly charged the amount the certificate, it gave the bank credit for back to your account. It occurs to us that possibly you would prefer to have us carry this the proceeds, $2,965. The bank was at that for you on an 8 per cent. basis and if so, we time indebted to the Helena bank. This acwill be glad to do this, otherwise will return it counts for the comparatively small balance to you." due it from the Helena bank. There were

In response to this letter, Mr. Trumbo no other transactions between the two banks wrote on March 22d:

"We are in receipt of yours of March 20th relative to certificate of deposit for $3,000. We will be glad to let you have this at the rate of 8 per cent. mentioned in your letter. Trusting

to receive immediate credit for same, we remain," etc.

before the receiver took charge.

[1] It is the rule, recognized by the courts generally, that the owner of property intrusted to one who occupies a fiduciary relation with him, such as his agent, may follow and retake it from the agent or any one

On the following day the Helena bank in privity with him, not a bona fide holder

wrote to Mr. Trumbo:

"As requested in yours of the 22d, we have credited your account $3,000 for the White Sulphur Springs certificate and have charged your account for the discount on same at 4 per cent. for three months and a half, $35.00."

The record does not disclose the fact, but we may presume from the form in which the offer by the Helena bank was made, and the result of the negotiations, that the certificate bore interest at the rate of 4 per cent. On March 24th, after the appellants had received from Mr. Trumbo the letter of March 22d Mr. Taggart went to Bridger intending to obtain the certificate. He was told by Mr. Trumbo that the bank's correspondent, at Helena, had kept it there until it should be advised by the bank what disposition to make of it. There was some conversation between them in regard to a loan by the bank to appellants, and also a proposal by the bank to credit appellants' note then held by it; but this conversation resulted in nothing definite. The note referred to was in the sum of $2,000. At the time this conversation occurred, it had been negotiated by the bank and was in the hands of the Helena bank. This the appellants did not ascertain until they were called upon by the Helena bank to make payment. Mr. Taggart at that time signified his intention to

for value, whether it remains in its original form or in a different or substituted form. provided it can be identified as the same property or the product or proceeds of it. The rule extends to and includes moneys as well as other property, even though it appears prima facie that they have been mingled with the private moneys of the agent, or his privy, who has knowledge of the source from which they have been obtained. In such cases the entire fund in the hands of the agent, or his privy, is impressed with a trust in favor of the owner to the extent to which the moneys have become a part of it; and the burden is upon the agent, or the privy, to rebut the prima facie case made by the owner, or to separate and distinguish his own moneys from those composing the entire fund. Yellowstone County v. First T. & S. Bank, 46 Mont. 439, 128 Pac. 596. This court has heretofore declared the right of a creditor of an insolvent bank in the hands of a receiver, to have preference over the general creditors in the payment of his claim; the facts disclosing that the bank bore to him the relation of agent or bailee in the transaction out of which the claim grew. Guignon v. First Natl. Bank, 22 Mont. 140, 55 Pac. 1051, 1097; Yellowstone County v. First T. & S. Bank, supra.

[2, 3] Looking to the instructious which

SANNER and HOLLOWAY, JJ., concur.

(54 Mont. 538)

HERZIG v. SANDBERG et ux. (No. 3889.) (Supreme Court of Montana. April 6, 1918.) 1. HIGHWAYS 173(2)—INJURIES TO PEDES

TRIANS-WARNING-NECESSITY.

were transmitted by appellants to the bank | ceiver to recognize appellants' right to prefwith the certificate, the bank became, in the erential payment to the amount of the balfirst instance, merely their agent to collect, ance received by him from the Helena bank. with the authority to change this relation Reversed and remanded. to that of debtor on the express condition, however, that collection should be made of the amount called for by it. Since the certificate was not due, they could not expect, nor did they intend, to be credited with its value as cash until it had been paid. Hence the authority to credit them was made conditional until payment should be made. It could not have occupied any other relation to appellants than as their agent until the condition was fulfilled. Upon its failure to collect, its conditional authority lapsed and it became a bailee of the appellants, without any authority other than to return the certificate to them. The entry of the credit upon the books of the bank without the authority or assent of the appellants could not make them its creditors; nor could the omission to charge the account after failure to collect, so as to wipe out the apparent credit,

have a like result. The bank therefore had no authority to discount the certificate to the Helena bank. In doing so it became guilty of a willful conversion of it to its own use. It is clear, then, that the appellants, never having become creditors of the bank, were entitled to follow and retake the certificate or its proceeds, so long as they could find the one or identify the other. Instead of pursuing the certificate and recovering it or its full value from the Helena bank by appropriate action, which, upon the facts disclosed in this record, they had a perfect right to do, they chose to pursue and take the proceeds. They must, therefore, in this proceeding, be limited in their preferential right to the amount of the proceeds shown to have found its way into the hands of the respondent. Upon the question whether they may still bring their action against the Helena bank, we express no opinion, because it does not arise in this proceeding. The balance in the Helena bank was undoubtedly a part of the proceeds of the certificate, for, since it does not appear that any other transactions took place between the bank and the Helena bank after March 22d, and the credit given to the bank on that date by the Helena bank was for the proceeds of the certificate only, the balance is fully identified as a part of these proceeds. Appellants are entitled to preferential payment in this amount. They are not entitled to preferential payment, however, out of the other balances, as they do not appear to have been derived in any measure from the proceeds of the certificate. They belong to the general assets of the bank, to be distributed among the general creditors.

The orders appealed from are set aside, and the proceeding is remanded to the district court, with directions to order the re

Where a pedestrian saw an approaching automobile 10 or 15 minutes before it struck him and knew that it was continuously approaching, failure to give warning was not the proximate 2. EVIDENCE 502-INTOXICATION. cause of his injury.

In action for injuries to a pedestrian when struck by an automobile, evidence that he was intoxicated was admissible in cross-examination after he had testified as to the speed of the automobile, since intoxication reflects on capacity for accurate observation, such cross-examination being admissible under Rev. Codes, § 8021, which must be liberally construed.

3. WITNESSES 327-INTOXICATION.

In action for injuries to pedestrian when struck by automobile on a highway, evidence that he was then intoxicated was admissible under the general denials of the answer, as challenging the credibility of his testimony as to the speed of the automobile.

4. HIGHWAYS 184(2)-INJURIES TO PEDESTRIANS-EVIDENCE-CONTRIBUTORY NEGLIGENCE INTOXICATION.

In action for injuries to pedestrian on highway when struck by automobile, evidence that he was intoxicated was admissible in support of · the defense of contributory negligence, although intoxication alone does not necessarily bar recovery.

5. TRIAL

PROOF.

45(3)

The rule requiring an offer of proof does not

apply to cross-examination, nor to direct examination where the questions themselves indicate clearly the evidence intended to be elicited.

Appeal from District Court, Silver Bow County; Jno. B. McClernan, Judge.

Action by A. J. Herzig against A. C. Sandberg and wife. From judgment for plaintiff and order denying new trial, defendants appeal. Reversed and remanded.

James M. Brinson, of Butte, for appellants. Jos. H. Griffin, of Butte, for respondent.

HOLLOWAY, J. Plaintiff was injured by being struck by an automobile. He charges the defendants with negligence in the following particulars: (A) Failing to keep a lookout; (B) running the car at unreasonable speed; (C) violating the law of the road; (D) failing to give warning of the approach of the car. Issues were joined, and the cause tried, resulting in a judgment for plaintiff. Defendants appealed from the judgment and from an order denying them a new trial.

[1] The charges of negligence A and D should have been withdrawn from the jury's consideration, as there was not any evidence to support either; that is to say, the evi

dence is uncontradicted that defendants, [3] 2. The evidence was admissible under their driver and two other occupants of the the general denials of the answer. If it car, all saw plaintiff when the car was 100 could have been shown that at the time of feet or more from him, while the testimony the accident plaintiff was intoxicated to such of the plaintiff himself is that he saw the a degree that his opinion as to the rate the car approaching 10 or 15 minutes before he car was running was worthless, and that his was struck, and during that time appreciated condition was such that he could not have the fact that it was drawing nearer and known or appreciated what actually ocnearer. He had all the notice that any curred, the prima facie case made out by his warning could give, and if there was a fail- direct testimony, would have been overcome. ure to give warning, it could not have been It would be a singular rule of law which a proximate cause of his injury. would deny to defendants the right to chal

lustrate: If at the time of the accident plaintiff was asleep or unconscious, and therefore unable to know the facts to which

[2] In support of the other charges plain-enge the credibility of the plaintiff. To iltiff testified that in his opinion the car was driven at the rate of 40 miles per hour at the time of the accident; that he was walking near the right-hand side of the road, go- | he testified, it would certainly be competent ing north; that the driver of the car undertook to pass to his right instead of to his left; that the intervening space was not sufficiently wide for the purpose; and that by reason of this violation of the law of the road the collision occurred. On cross-examination counsel for defendants sought to show that at the time of the accident plaintiff was intoxicated. Upon objection the court refused to permit the investigation, and when defendants attempted to prove the same fact in their case in chief, they were met by the same ruling. In each instance the court erred.

to show it, and for the same reason it was proper to show that he was intoxicated, if such was the fact. 2 Wigmore on Evidence, $ 933; Joyce v. Parkhurst, 150 Mass. 243, 22 N. E. 899; Schneider v. Great N. Ry. Co., 47 Wash. 45, 91 Pac. 565; Green v. State, 53 Tex. Cr. R. 490, 110 S. W. 920, 22 L. R. A. (N. S.) 706; Pollock v. State, 136 Wis. 136, 116 N. W. 851; Railroad Co. v. O'Connor, 171 Ind. 686, 85 N. E. 969.

[4] 3. The evidence was also admissible in support of the defense of contributory negligence pleaded in the answer. If the plaintiff was intoxicated, that fact did not operate to relieve him from the necessity of exercising the ordinary care for his own safety which the law imposes upon a sober man, While his intoxication alone would not neces

cumstance to be considered in determining whether he was guilty of contributory neg ligence. 29 Cyc. 534, 620.

1. The evidence was proper as a part of plaintiff's cross-examination. It is always permissible on cross-examination of a witness to test the accuracy of his knowledge or the completeness or distinctness of his recol-sarily bar his right of recovery, it was a cirlection; to ascertain the source of his information, his opportunity for accurate observation, and his general acquaintanceship with the subject to which his direct examination relates. If he has made an estimate or given an opinion, he may be cross-examined for the purpose of shedding light upon the reasonableness of his estimate or the basis of his opinion. 1 Greenleaf on Evidence, § 446. These rules are elementary (40 Cyc. 2675) are fully comprehended within the terms of section 8021, Revised Codes, and should be invoked liberally, rather than restricted. Kipp v. Silverman, 25 Mont. 296, 64 Pac. 884; State v. Biggs, 45 Mont. 400, 123 Pac. 410; Cuerth v. Arbogast, 48 Mont. 209, 136 Pac. 383.

It is too well settled to be open to contro

[5] It is insisted, however, that defendants may not avail themselves of these erroneous rulings, because they failed to make an offer of proof. The rule which requires that an offer of proof be made has no application to State V. cross-examination. Wakely, 43 Mont. 427, 117 Pac. 95; Cunningham v. Railway Co., 88 Tex. 534, 31 S. W. 629; Martin v. Elden, 32 Ohio St. 282. Neither has it any application to direct examination where the questions themselves indicate clearly the eviBank v. Carroll, 35 Mont. 302, 88 Pac. 1012; dence intended to be elicited. First Nat. Buckstaff v. Russell, 151 U. S. 626, 14 Sup. Ct. 448, 38 L. Ed. 292.

This case emphasizes the distinction between an erroneous ruling admitting incom

might be able to say that the error was competent evidence. In the first instance we harmless, but no one can say what effect material evidence excluded might have had if before the jury for consideration.

versy that intoxication deadens the sensibilities, and therefore evidence that a witness was intoxicated at the time to which his tes-petent evidence and a like error excluding timony relates reflects upon his capacity for accurate observation, correct memory, and unbiased judgment. 17 Cyc. 787; 40 Cyc. 2574. It is no objection to say that the evidence, if produced, would have tended to make out defendants' special defense. If the question was within the legitimate range of cross-examination, it was none the less so that it was also proper in support of defendants' case.

The judgment and order are reversed, and the cause is remanded for a new trial. Reversed and remanded.

BRANTLY, C. J., and SANNER, J., con

cur.

of professional services relative to a note held In an action by an attorney for the value by defendant, whether defendant acted for himself, or as agent of the apparent owner of the note, held for the jury.

Appeal from District Court, Custer County; D. S. O'Hern, Judge.

ment of fine therefor. It is not for us to | 3. PRINCIPAL AND AGENT 193 ACTION say that, upon the evidence disclosed, this FOR PRINCIPAL-QUESTION FOR JURY. could have been regarded as a peccadillo; the fact is established, and its quality as well as its consequences were for the board. So, too, it is unquestioned that he had for over three years failed and neglected to file his official bond, thus displaying, if the board so chose to regard his action, a neglect of duty and an indifference to the provisions of the law in that behalf. Finally, he did purchase and realize upon the city warrant referred to in the charge, and this, because it is a crime punishable by disqualification from holding office (Rev. Codes, §§ 371, 372), is a manifestation almost conclusive of that negligence and indifference to official pro

Action by George W. Farr against Henry Stein. From a judgment for plaintiff and an order denying new trial, defendant appeals. Affirmed.

Henry Stein, pro se. Geo. W. Farr, of Miles City, for respondent.

BRANTLY, C. J. This action was brought

priety which the examining and trial board by plaintiff in a justice's court of Miles City was in duty bound to notice. The contention township, in Custer county, to recover the is made that O'Brien was not an officer with- reasonable value of professional services perin the meaning of these sections, and that the circumstances of his act removed it from any purpose which the sections were intended to serve; but neither position is tenable. O'Brien was an officer (State ex rel. Quintin v. Edwards, 38 Mont. 250, 99 Pac. 940; Peterson v. City of Butte, 44 Mont. 401, 409, 120 Pac. 483, Ann. Cas. 1913B, 538); and application of the sections cannot be avoided by any plea of accommodation to a brother officer, particularly where the accommodator did not disdain to accept the interest accrued when the warrant was collected.

Of the other specifications we say nothing, because the record affords room for divergence of opinion. We should hesitate to impute immorality or cowardice to Mr. O'Brien upon what is before us; but there is nothing to show that the board did so, and as the evidence suffices in other respects, we think the district court was correct in its refusal to interfere. The judgment appealed from is affirmed. Affirmed.

formed by him for defendant as an attorney at law. The complaint alleges, in substance, that the plaintiff at the special instance and request of defendant rendered him professional services and gave him professional advice relative to the payment of interest on a promissory note for the sum of $70, executed by Mrs. Cora Hoppe to one Sol Miness and the foreclosure of a chattel mortgage given by the former to the latter to secure the payment of the note. For his defense the defendant relied on a general denial. Plaintiff recovered judgment in the justice's court. A trial on appeal in the district court also resulted in a judgment for the plaintiff. Defendant has appealed from the judgment and an order denying his motion for a new trial. He appeared in this court and filed a brief in his own behalf.

[1, 2] His principal contention is that the court erred in denying his motion for a new trial on the ground that the evidence is insufficient to justify the verdict. While tacitly admitting that services of the value alleged were rendered by plaintiff at his spe

BRANTLY, C. J., and HOLLOWAY, J., cial instance and request, he argues that the

FOR PRINCIPAL-QUESTION FOR JURY.
When the evidence of what was said and

evidence discloses that in employing plaintiff he was acting, not for himself, but in a representative capacity as agent of Miness, the apparent owner of the note and mortgage, and hence that he did not become personally liable to plaintiff. To fortify his argument he cites many cases which declare the rule that an agent is not personally liable on a contract entered into by him on behalf of his principal if it appears, in point of fact, that he disclosed the identity of his principal and made the engagement for him. There is no doubt as to the correctness of this rule. Though expressed in varying

done at the time of a particular transaction by terms, it is recognized by the courts and an agent in the light of attendant circumstanc-text-writers generally. Anderson v. Timberes is equivocal and furnishes the basis for dif- lake, 114 Ala. 377, 22 South. 431, 62 Am. St. ferent inferences as to what the intention of Rep. 105; Hewitt v. Wheeler, 22 Conn. 557; the parties was, the question whether the agent acted for himself or for his principal is for Wheeler v. Reed, 36 Ill. 81; Murphy v. determination by the jury. Helmrich, 66 Cal. 69, 4 Pac. 958; Argersing

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