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was due him pleaded and produced a certainings of fact are made. We shall treat this note, but the court found that no partnership "decision" as findings of fact, which doubtexisted, and that the note was given as evi: less it was intended to be. Therein the dence of an indebtedness arising out of a contract of employment, defendant could not there court speaks of the circumstance that a after urge that plaintiff could not try the ques- note for $12,000 was given, and says he is tion whether anything was due under the con- "persuaded this was done with O'Meara's tract of employment.

[Ed. Note. For other cases, see Election of and Kerrigan's full knowledge and consent Remedies, Cent. Dig. $ 14; Dec. Dig. $ 11.*] as settlement for whatever services and in4. ELECTION OF REMEDIES (8 11*)-MISTAKE formation they gave McDermott in the sale AS TO REMEDY.

of the claims." This language negatives the One who prosecutes a suit based on a re- idea that the court decided that O'Meara medial right which he erroneously supposes he has, and is defeated because of the error, has had no claim of any kind against McDermott. not made a conclusive election, and is not pre- At the second trial the court told the jury cluded from prosecuting an action based on an that on the former trial it was determined inconsistent remedial right.

"that there never was any agreement of part[Ed. Note:-For other cases, see Election of nership between the parties hereto in relaRemedies, Cent. Dig. $ 14; Dec. Dig. $ 11.*] 5. TRIAL (% 106*)-ARGUMENT OF COUNSEL- not a partner with defendant in such enter

tion to such matter, and that plaintiff was DISCRETION OF COURT.

Allowing attorneys to apply epithets to op- prise." We think this language fairly and posing counsel or litigants is a matter resting in fully construes the judgment, and that the the discretion of the trial court. [Ed. Note. -For other cases, see Trial, Cent. the second trial correctly held, in effect,

court in submitting the issues to the jury at Dig. $ 268; Dec. Dig. $ 106.*)

that the plaintiff was not estopped by the Appeal from District Court, Silver Bow first judgment. County; Jeremiah J. Lynch, Judge.

[2] 2. The court also instructed the jury Action by John H. O'Meara against Peter as follows: "In order to make a note or T. McDermott. From a judgment for plain other written obligation binding upon the tiff and from an order denying a new trial, party signing the same, it must not only be defendant appeals. Affirmed.

delivered to the payee or obligee, or to some Walsh & Nolan and Roote & Murray, for one for him, but it must be accepted by him; appellant. M. F. Canning and Maury & Tem- that is, he must receive it into his possession pleman, for respondent.

intending to hold and enforce it against the

payor or obligor pursuant to some preceSMITH, J. After this case was remanded dent agreement in accordance with which it for a new trial (see O'Meara v. McDermott, is delivered. If, accordingly, you find that 40 Mont. 38, 104 Pac. 1049), the defendant the plaintiff on receiving from the defendant amended his answer by pleading a former the instrument sued on, and acquainting himadjudication, predicated upon the judgment self with its contents, declined to accept it, entered in favor of the defendants in the and offered to return it to the defendant, and action brought by O'Meara and Kerrigan did not thereafter, and prior to bringing suit against McDermott and wife for an account- upon it, in some way signify to the defending of the profits resulting from the sale of ant his acceptance of it pursuant to the the mining claims mentioned in the former agreement in accordance with which it was opinion of this court, as alleged partners of given to him, he cannot recover on it, and McDermott. The amended answer also con- your verdict must be for the defendant.” tains the allegation that by the commence. It is now asserted in appellant's brief that ment and prosecution of the so-called part- “the evidence clearly shows that the plaintiff nership action for an accounting, O'Meara abandoned the instrument in writing sued elected to rely on his claim that he was a on in this action.” At the second trial the partner and to pursue such remedies as were stenographers who reported the testimony open to him for the enforcement of that at the first trial were placed upon the stand, claim, and that, by reason of so electing, he and they testified as to certain alleged stateis now estopped from prosecuting this ac- ments made by the plaintiff during the course tion. The second trial resulted in another of his examination. The substance of the verdict against the defendant in the sum of testimony was that O'Meara then testified $12,000. Judgment was entered accordingly, that he offered to return the note, but Mcand appeals were taken from the judgment, Dermott refused to take it back. O'Meara and from an order denying a new trial. denied that he so testified, and said, among

[1] 1. Appellant's contention that the judg- other things: "I didn't offer it to him, to ment in the former action is a bar to the have him take it back. I didn't hand it prosecution of this cause is untenable. The back to him either. I know positively that I judgment and findings of fact made by the never tried to force the note back on him. court disclose that the sole question decided I know that particularly, because I never ofwas that the alleged agreement of partnership fered it to him." O'Meara gave other testiwas never entered into between the parties. mony which tends greatly to lessen the effect The court filed a "decision” wherein the find- l of that just quoted, but in all the circum*For other cases see, same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

115 P.-58

stances of the case we think the court prop- | lied on by the appellant. It will be found on erly submitted the question to the jury for examination, however, that each decision is decision.

predicated upon a situation wherein the [3] 3. It is contended that in electing to plaintiff had choice of remedies for the same bring an action for an accounting as an al- act or omission of the defendant, as, for inleged partner O'Meara estopped himself from stance, where he ratified a fraudulent sale afterwards asserting that the note was given of his goods by bringing action for their in payment for services rendered in any value, or where he elected to sue in tresother capacity; and incidentally the claim is pass rather than in assumpsit, and like made that he abandoned and repudiated the cases. note and violated the agreement under which The case principally relied on by the apit was given, when he elected to sue as a pellant, however, is Sacker v. Marcus, 43 partner. The first contention is thought to Misc. Rep. 8, 86 N. Y. Supp. 83. In that be established as a matter of law from an in- case an action was brought to recover a sum spection of the record, and the second is of money for breach of a contract of emdeemed to be disclosed by the testimony as ployment and the wrongful discharge of a fact; complaint being made in this con- plaintiff from the employ of the defendant. nection that the court below refused to give The answer, besides a general denial, concertain instructions to the jury on that tained an allegation that the plaintiff had subject.

begun another action, which was still pendIn the case of Thompson v. Howard, 31 ing upon the same contract, declaring that Mich. 309, the court said: "A man may not it was a contract of partnership, and praytake contradictory positions, and when he ing for an accounting. The court said: “It has a right to choose one of two modes of is to be observed from its language that redress, and the two are so inconsistent this defense is not a plea of the pendency that the assertion of one involves the nega- of another action for the same cause. The tion or repudiation of the other, his delib- action at bar is for damages for breach of erate and settled choice of one, with knowl. a contract for employment. The action reedge, or the means of knowledge, of such ferred to in this defense is an action in eqfacts as would authorize a resort to each, uity for the dissolution of a copartnership will preclude him thereafter from going and an accounting. It is true that the plainback and electing again.” In that case the tiff bases his two suits on the same conplaintiff's son was enticed away by a neigh- tract, thus taking two views of the legal bor, and the father brought suit for the value effect of that contract; but the views are of his services on the basis of an implied absolutely inconsistent with each other. contract. The jury disagreed, and he there. Both theories cannot be correct. It folupon discontinued that suit and began an lows, therefore, that the plaintiff, having action in tort for enticing the boy away. elected to bring his action on this contract The court held that the latter action could in the Supreme Court on the theory that not be maintained, for the reason that in it created a partnership, elected and resortbringing the first suit the father had im- ed to that remedy, and is bound by that elecpliedly admitted that the services were per- tion, and cannot afterwards, and during the formed with his assent.

pendency of the former action, bring an acIn Warren v. Landry, 74 Wis. 144, 42 N. tion upon the theory that the same contract W. 247, Mr. Chief Justice Cassoday said: was one of employment.” It will be noted “The rule is universal that where a party that, after expressly stating that the defense has a choice between two inconsistent reme- was not a plea of another action pending dies or causes of action, and he deliberately for the same cause, the court says that the adopts the one, such election becomes con- plaintiff may not prosecute the instant case clusive upon him and precludes him from during the pendency of the former action. subsequently adopting the other." See, also, We do not know what importance the learnRowley v. Towsley, 53 Mich. 329, 19 N. W. ed judge who wrote the opinion attached to 20; Bradley v. Brigham, 149 Mass. 141, 21 the fact that the action in equity was still N. E. 301, 3 L. R. A. 507; Lamar v. Pearre, pending. Certainly, if the decision is given 90 Ga. 377, 17 S. E. 92; Bryan-Brown Shoe the effect claimed for it by the appellant Co. v. Block, 52 Ark. 458, 12 S. W. 1073; here, the result would be that even the disBank of Beloit v. Beale, 34 N. Y. 473; San- missal of the former action would not place ger v. Wood, 3 Johns. Ch. (N. Y.) 416; Mor- the plaintiff in a situation to prosecute the ris v. Rexford, 18 N. Y. 552; Johnson-Brink- latter. That such is not the law in this man C. Co. v. M. P. Ry. Co., 52 Mo. App. state will presently be shown. The New 407; Nanson v. Jacob, 93 Mo. 331, 6 S. W. York case is somewhat different from this 246, 3 Am. St. Rep. 531; Long v. Long, 111 in its facts also, as in that case the plaintiff Mo. 12, 19 S. W. 537; Baunan v. Jaffray, 6 was alleging at the same moment of time Tex. Civ. App. 489, 26 S. W. 260; Welch v. that the contract between himself and his Seligman, 72 Hun, 138, 25 N. Y. Supp. 363. opponent was one of employment and also The foregoing cases are all more or less in of partnership. point as illustrative of the rule above quoted The facts in this case are somewhat pe partnership agree.nent, the complaint con- , election '"is not inconsistent with the practained the following averment: “That he tice of bringing a second and different ac[McDermott] has refused to make any ac- tion where it appears that the plaintiff nevcount, though he has acknowledged in writ- er had a right of action as first brought, ing and agreed to pay the plaintiff O'Meara and therefore could not have elected. There the sum of $12,000, when the payments shall is a difference between an election of remebe made by Galiger & Clymo, but he has not dies and a mistake of remedy, and the law agreed to pay Kerrigan anything." Either has not gone so far as to deprive parties of one party or the other produced the note meritorious claims merely because of atnow in suit at the trial of action for an tempts to collect them by inappropriate acaccounting, and O'Meara was examined with tions, upon which recovery could not be reference to the circumstances under which had.” McLaughlin v. Austin, 104 Mich. 489, it was given. The court in its decision said: 62 N. W. 719. See, also, Agar v. Winslow, "Later McDermott gives a note for $12,000 123 Cal. 587, 56 Pac. 422, 69 Am. St. Rep. to O'Meara, who is to give and does give 84. And so in this case the plaintiff first his note for $2,000 to Kerrigan. I am per- brought his action for an accounting, allegsuaded by the evidence that this was done, ing that he was a partner of the defendand with O'Meara's and Kerrigan's full ant. As evidence that some amount was knowledge and consent as a settlement for due him, he pleaded and produced the note whatever services and information they gave now in suit. The court found that no partMcDermott in the sale of the claims." In nership existed, but that the note was givthis case O'Meara testified: "I did not bring en as evidence of an indebtedness arising suit upon this note afterwards, instead of out of a contract of employment. Having bringing an action for partnership profits, be- prevailed in that case solely on account of cause that note was not due at the time the fact that plaintiff mistook his remedy, that suit was instituted.” And again: “Q. the defendant is not now in a position to Were you satisfied with it when you read urge that the plaintiff has no right to have it? A. No; not satisfied with the amount.” a competent court try the question whether McDermott testified: “When I delivered the anything is due under the contract of emnote, I certainly intended to pay it,

*ployment. This court, in Kaufman v. Coopif I got my commission out of the Burke er, 39 Mont. 146, 101 Pac. 969, said: “There & Balaklava deal. I am the one who first is a rule of law well established which is suggested raising it from $10,000 to $12,000.” that if a person prosecute an action based From the testimony of O'Meara above quot- upon a remedial right which he erroneously ed and the excerpt from his complaint, it supposed he had, but which in fact he did is at once apparent that he did not intend not have, and he is defeated because of his to abandon the note or rescind the contract error, he will not be held to have made an therein expressed. On the contrary, it is election of remedies, and will not be preclear that he considered the note as evidence cluded from asserting one which he has, of a subsisting indebtedness on the part of even though it be inconsistent with that McDermott either growing out of a part- which he supposed he had but did not have. nership arrangement or a contract of em- A review of the history of the first case ployment. In Kyle v. Chester, 42 Mont. —, (Kaufman v. Cooper, 38 Mont. 6, 98 Pac. 113 Pac. 749, this court said: "Ordinarily, 504, 1135) convinces us that in that instance when the conduct of a person is such as to Kaufman merely made a mistake as to the raise a clear presumption that he does not remedy available to him, and it ought not intend to do a certain thing, he will not to be said that by making such mistake the thereafter be charged with such intention admitted indebtedness of Cooper and Archiby implication." See, also, State Bank v. bald to him was thereby satisfied. The law Forsyth, 41 Mont. 249, 108 Pac. 914, 28 L. does not recognize that method of dischargR. A. (N. S.) 501. The doctrine of election ing one's liabilities." We think the district of remedies is conceived to be founded in court was correct in holding that O'Meara the very just idea that a party ought not was not estopped as a matter of law. to be needlessly harassed with litigation. 4. But it is said that the court erred in

[4] But a person who prosecutes an ac- refusing to charge the jury that if the note tion or suit based upon a remedial right was given pursuant to an agreement between which he erroneously supposes he has, and the parties, whereby they sought to adjust is defeated because of the error, has not and settle any and all claims which O'Meara made a conclusive election, and is not pre- might have against McDermott, either as a cluded from prosecuting an action or suit partner or otherwise, and thus avoid litibased upon an inconsistent remedial right. gation, and the plaintiff violated that agree15 Cyc. 262. In the case of Sullivan v. ment by beginning his action for an accountRoss' Estate, 113 Mich. 311, 319, 71 N. W. | ing, he could not recover on the note. We 634, 76 N. W. 309, on rehearing it is said: | have carefully examined the evidence, and "If, in choosing his remedy, the plaintiff has fail to find any testimony on the part of made a mistake, and for that reason failed, either O'Meara or McDermott that would he is not cut off from pursuing the right have justified the court in giving these inremedy.” The rule as to conclusiveness of structions. McDermott testified: "I could

see trouble was brewing. I said to him: transaction specifically negatives the idea 'I have never been in trouble before, and that such was the understanding of the parI don't want to have any. If you and ties. Kerrigan will give me a written satisfac 5. Contention is made that the court err. tion in full of all demands, I will give you ed in refusing to give the following instruca note for $12,000. The character of trou- tion: "(8) It was determined and adjudged ble that I was expecting to get into in view in the action referred to that no agree of these demands that they were making, ment of partnership was ever entered into and the kind of talk that they put up, between the parties hereto in reference to the was after I saw their attitude and lan- Burke and Balaklava claims, or in connecguage, and I thought that they would start tion with the effort to procure a purchaser a suit of some character, and it might pre- for the same, and that no sum was ever due vent the company from completing their from the defendant to the plaintiff upon any payments, and completing their contract, and agreement of partnership in such enterprise. so rather than have any trouble-as I told If you find accordingly that the note in suit them at the time I never was in court-at had no consideration other than a part or the time I was willing to give this note for the whole of what was supposed to be due to a written satisfaction.

I asked the plaintiff as a partner on the transaction him then for a written satisfaction, and he referred to, it is wanting in any legal considsaid he would make it out and hand it to eration and your verdict must be for the deme. I subsequently had a talk with him fendant.” This instruction was properly reabout getting the written satisfaction.” Aft- fused. The court did charge the jury: "Hower the note was given he says he told ever firmly you may believe that the plainO'Meara that he understood he was going tiff is entitled to have something from the to bring suit against him and Bishop Car- defendant either as a partner or for services, roll, and O'Meara replied that he did not your verdict must be for the latter, unless intend to bring suit. Again he testified: you find that plaintiff is entitled to recover "I never made any proposition except this, on the note.” There never was any quesand this was given for full satisfaction. tion that the note was given in payment for The proposition that I have told about the whatever services O'Meara had performed in clause, the matter had of the terms specified connection with the sale of the Burke and in this note to be given in exchange for Balaklava mining claims. He at first conthe satisfaction, was the only proposition tended that he was a partner, and, in fact, that I made him.” It is to be observed that he still so claims, notwithstanding the decithe testimony of the defendant is to this sion against him. But it is immaterial in specific effect; that he stipulated for a writ- this case how the relationship of the parten satisfaction of all claims against him; ties is characterized. Appellant will not be that plaintiff agreed to give it and after heard to say that the consideration for the wards violated the agreement. Plaintiff, in note was services performed as a partner. effect, denied that any such agreement was

That payments were made on the Gali. made. The court fairly submitted to the ger & Clymo lease and option, substantially jury the question whether there was such as agreed upon, is the law of the case. See an agreement, and they found for the plain- former opinion cited, supra. tiff. It may be that McDermott had in mind

[5] 7. We find nothing in the affidavits on a desire to avoid litigation, or “trouble," as motion for a new trial which would warrant he expressed it, and, if he did, he might well the court in reversing the judgment and orhave stipulated that no suit growing out der on account of misconduct of counsel durof previous transactions between himself and O'Meara should be commenced in case the ing the argument to the jury. The ques

tion of the propriety of applying epithets to note was given, but he claims no such agree. litigants or opposing counsel is one which ment, and the general verdict against him each attorney has the right to decide for determined that the note was given uncon- himself, in accordance with his own ideas ditionally.

Again, it is claimed that the motion for on the subject, and the facts in the case. nonsuit should have been sustained on the discretion in controlling such matters. We

The trial court will exercise a wise legal ground that the respondent's testimony in chief disclosed the fact that such an under- find no prejudicial error in that regard in

this record. standing as we have been discussing was bad between the parties and that he violated it;

The judgment and order are affirmed.

Affirmed. but, as heretofore stated, we do not think his testimony, confused and unsatisfactory as it is in many respects, will bear that con BRANTLY, C. J., and HOLLOWAY, J, struction, and appellant's version of the concur.

(43 Mont. 178)

against interest, and hence a declaration not WASHOE COPPER CO. v. JUNILA et al. shown to have been made by the adverse par(HALL et al., Interveners).

ty's grantor is hearsay, and not admissible un

der the statute. (Supreme Court of Montana. April 17, 1911.)

[Ed. Note.-For other cases, see Evidence, 1. MINES AND MINERALS (8 43*)-LOCATION- Dec. Dig. $ 230.*] PLACER PATENT-LANDS PASSING.

9. EVIDENCE ( 230*)-DECLARATIONS AGAINST If at the time a placer patent was issued INTEREST-TITLE OF DECLARANT. the existence of a vein or lode in the placer property was known, the patent does not cover under both a placer patent and a quartz loca

Where one person claimed the same land that vein or lode, but it remains public property tion, a declaration that the lode upon which the of the United States, and the placer patentee quartz location had been made was known when cannot object to persons carrying on mining op- the placer patent was issued is not admissible erations on it.

against a grantee of the placer patent, for it was [Ed. Note.-For other cases, see. Mines and not against interest, but merely tended to show Minerals, Cent. Dig. $ 129; Dec. Dig. $ 43.*] the title by which the former owner held the en2. MINES AND MINERALS ($ 38*)_LOCATION- tire property. CHARACTER OF VEIN-EVIDENCE.

[Ed. Note.--For other cases, see Evidence, Where defendants claimed that a lode with Dec. Dig. $ 230.*] in the limits of a placer patent was exempted 10. MINES AND MINERALS (8 44*)-LOCATIONfrom that patent, evidence of the condition of

PATENT-CONCLUSIVENESS. the ground and the extent and character of the

Evidence that no placer mining operations vein disclosed by development made since the

were ever carried on in a placer claim is inadplacer application is admissible.

missible to show that the land was not placer [Ed. Note.-For other cases, see Mines and land, for the patent as a placer claim is conMinerals, Dec. Dig. § 38.*]

clusive. 3. MINES AND MINERALS ($ 21*)-LOCATION [Ed. Note. For other cases, see Mines and DECLARATORY STATEMENT-REQUISITES. Minerals, Cent. Dig. $ 130; Dec. Dig. $ 44.*]

A declaratory statement of location of a 11. STIPULATIONS (8 14*)–CONSTRUCTION. mine which does not contain the required affi Where the defendants in an action involvdavit is void.

ing the title to mining property claimed under [Ed. Note.--For other cases, see Mines and quartz locations, a stipulation that they have Minerals, Cent. Dig. $ 46; Dec. Dig. $ 21.*] acquired whatever right was obtained by the 4. MINES AND MINERALS ($ 21*)–CONSTRUC-location of two different claims does not relieve TIVE NOTICE OF NATURE GROUND.

them of the necessity of proving a valid locaA void instrument cannot impart construction; the effect of the stipulation being that tive notice, and hence a declaratory statement they are relieved of the necessity of showing void because not containing the required affi- that they acquired whatever title was secured davit is not sufficient to give constructive notice under the two locations. of the nature of the ground contained in a cer

[Ed. Note.--For other cases, see Stipulations, tain location.

Dec. Dig. $ 14.*] [Ed. Note.-For other cases, see Mines and Appeal from District Court, Silver Bow Minerals, Dec. Dig. $ 21.*)

County; John B. McClernan, Judge. 5. MINES AND MINERALS (8 43*)—LOCATION

Action by the Washoe Copper Company PLACER GROUNDS-EXCLUSION OF LODES.

For a lode to be excluded from a placer against John Junila and others, in which w. patent, it must have been known at the time the H. Hall and others intervene. From a judgapplication for the placer patent was made, ment for defendants and interveners, plainthough actual knowledge on the part of the plac- tiff appeals. Reversed and remanded. er applicant is not absolutely essential.

[Ed. Note.--For other cases, see Mines and C. F. Kelley, D. Gay Stivers, and L. 0. Minerals, Cent. Dig. $ 129; Dec. Dig. $ 43.*] Evans, for appellant. John J. McHatton, for 6. EVIDENCE ($ 174*)---BEST AND SECONDARY respondents. EVIDENCE-CERTIFIED COPIES.

A certified copy of a declaratory statement is not admissible in evidence, because not the

HOLLOWAY, J. This action was brought best evidence.

by the Washoe Copper Company against Ju[Ed. Note.--For other cases, see Evidence, nila and others to recover damages for ores Cent. Dig. $8 561-569; Dec. Dig. $ 174.*] extracted from ground claimed by the plain7. MINES AND MINERALS (8 38*)-LOCATION- tiff, and for an injunction to restrain furACTIONS-EVIDENCE. Where defendants claimed that a lode em

ther trespasses. braced in a placer patent did not pass under

The plaintiff alleges its ownership in and that patent, a declaratory statement of the lo- to an irregularly shaped piece of ground in cation of that lode is immaterial where neither the N. E. 14 of the S. W. 14 of section 18, of the parties claim title under it.

township 3 N., of range 7 W., in Silver Bow [Ed. Note.-For other cases, see Mines and Minerals, Dec. Dig. § 38.*]

county. The defendants answered, admitting 8. EVIDENCE ($ 230*)--ADMISSIBILITY-DEC

that they had mined in a portion of the LARATIONS AGAINST INTEREST.

ground claimed by plaintiff, denied plaintiff's Rey. Codes, $ 7866, providing that, where ownership of such portion, alleged that they one derives title to real property from another, were merely lessees of others who claim to the declaration, act, or omission of the latter be the owners, and pleaded affirmatively that while holding title is evidence against the for. mer, merely declares the common-law rule, and, plaintiff's only claim of ownership to the for a declaration to be admissible as one against ground described in the complaint is by virinterest, it must be shown that it was made tue of mesne conveyances from the original while the declarant was holding title to the property, that he was the grantor against whom patentees of placer 765; that, when applicathe declaration was offered, and that it was I tion for patent to such placer was made, *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Ręp'r Indexes

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