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variance are now seldom applied in all their strictness. The departure from them is due to the more liberal and enlightened decisions of the courts and the provisions of statutes. A variance between a pleading and the proofs is not now considered to be fatal unless it be of a character to mislead the opposite party in maintaining his action or defense on the merits. Nash v. Towne, 5 Wall. 689, 698, 18 L. Ed. 527; Grayson v. Lynch, 163 U. S. 468, 477, 16 Sup. Ct. 1064, 41 L. Ed. 230; Railroad v. Hickey, 166 U. S. 521, 531, 17 Sup. Ct. 661, 41 L. Ed. 1101; Moses v. United States, 166 U. S. 571, 578, 17 Sup. Ct. 682, 41 L. Ed. 1119. This doctrine conforms to the letter and spirit of section 954 of the Revised Statutes [U. S. Comp. St. 1901, p. 696], declaring that judgment shall be given according to the right of the cause, without regard to defect or want of form. It also finds explicit recognition in the Colorado Code (section 78, Mills' Ann. Code), which declares that in every stage of an action the court shall disregard any error or defect in the pleadings or proceedings which shall not affect the rights of the parties, and that if a variance between the allegations of the pleadings and the evidence develops upon the trial of an action the court may authorize an amendment if either party is surprised thereby. In this connection see Pope v. Allis, 115 U. S. 363, 367, 6 Sup. Ct. 69, 29 L. Ed. 393. The defendants were not misled by the averment in the complaint that H. Schiffer was a member of their firm, nor were they surprised when it developed through their own showing that he was not. Doubtless, the trial court considered the complaint as having been duly amended, and we should likewise so consider it on appeal.
The third count of the complaint upon which the plaintiff elected to stand states facts sufficient to constitute a cause of action. After the averments of diverse citizenship, amount in controversy, and the partnership of the defendants, it proceeds to say that the plaintiff and McInturff, his associate, were informed that one Mrs. Nelson was the owner of 2,000 acres of land in Conejos county, Colo.; that they deposited with the defendants doing business as the Bank of Alamosa the sum of $4,200 as earnest money, to convince Mrs. Nelson that they were acting in good faith in negotiations for the purchase of the property, carried on between them and the defendants and one Ambler as the reputed agents of Mrs. Nelson; that the money was to be paid to Mrs. Nelson when she made conveyance of the property to the plaintiff and McInturff by good and merchantable title, subject to a mortgage for $1,200 on each quarter section of the land, and one for $600 on the odd 80 acres, the gross amount of the mortgages being $15,000; that in fact Mrs. Nelson did not own the land, and was unable to convey it by good and merchantable title, and was unable to convey it with the mortgages distributed according to the agreement; that the plaintiff and McInturff thereupon demanded of defendants the return of their money, and the latter refused to return it; that prior to the commencement of the action McInturff, who was a citizen of Iowa, transferred to the plaintiff all of his rights to the money.
The undisputed evidence conclusively established this cause of action. Although Ambler held himself out to be the agent of Mrs.
Nelson, he did not represent her, but in fact secretly represented the defendants Abe and I. W. Schiffer. He stated to the plaintiff and McInturff that Mrs. Nelson owned the property, that her price was $15 per acre, or $30,000 for the entire tract, and that no one else was making any commission or profit out of it, whereas the fact was that some months before the commencement of the negotiations between Ambler and the plaintiff and McInturff, the defendants, by the payment of $100, secured from Mrs. Nelson a written agreement to sell them the property for $12 per acre, and a renewal of that agreement was in force while the negotiations were going on. Ambler and the defendants were endeavoring to make the difference of $3 per acre, or $6,000, by having Ambler represent that he was acting for Mrs. Nelson, and that $15 per acre was her lowest net price. Both the plaintiff and McInturff testified that the agreement with Ambler was that the $4,200 paid by them should be deposited with and held by the defendants' Bank of Alamosa until they (the plaintiff and McInturff) secured a deed from Mrs. Nelson, and that the balance of the purchase price when the transaction was closed was to be represented by an existing blanket mortgage for $15,000, and a second mortgage given by them, both of which should be divided and distributed among the quarter sections of land and an odd 80 acres, so that the land could be advantageously resold in parcels, and the mortgages released as the sales were made. This testimony was not disputed by Ambler, and there was no one else who was competent to dispute it. The real connection of the defendants with the transaction was carefully concealed, and this was according to the agreement between them and Ambler. When the $4,200, with $800 additional furnished by Ambler, was deposited in the Bank of Alamosa, it was applied by the defendants upon their own purchase from Mrs. Nelson. In other words, notwithstanding Ambler's agreement with the plaintiff and McInturff that their money should be held until they got a deed from Mrs. Nelson and until the blanket mortgage upon the property was split up and distributed, their money was paid out and disbursed. They never got a deed, the blanket mortgage upon the property was never arranged according to agreement, and their money was misappropriated by the defendants. Demand was made upon the defendants for a return of their money, and it was refused. It was admitted that Ambler was the agent of the defendants to sell the land and that the agency was concealed. It was also admitted that the defendants received the $4,200.
In view of the foregoing facts, there is no theory of the case that could have defeated the plaintiff's recovery, and the trial court should have directed a verdict for the plaintiff. The contention of the defendants that they did not know of or authorize the agreements and representations of their agent Ambler is not entitled to consideration. Even had he admitted that he was acting for the defendants instead of for Mrs. Nelson, what he did would have been within the apparent scope of his authority. But whether so or not, the defendants would not be permitted to deny his authority, and yet to hold onto the money paid them upon the faith thereof.
Some of the assignments of error are directed to the competency
of the testimony of the plaintiff and McInturff as to their conversations with Ambler. In view of the fact that Ambler was the secret but accredited representative of the defendants, evidence of what he did and said while in the performance of his duties as agent was admissible against them. There are 71 assignments of error, but there is nothing in any of them that affects the necessary conclusion that, in view of the admitted facts and those that were indisputably estab lished by lawful evidence, the plaintiff was entitled to a verdict and to a judgment. Whatever of error there was in the proceedings of the trial court did not prejudice the defendants. The judgment is affirmed.
MARTIN et al. v. WHITE.
(Circuit Court of Appeals, Ninth Circuit. June 20, 1906.)
1. COURT COMMISSIONERS-JURISDICTION-APPOINTMENT OF GUARDIAN. The jurisdiction of a United States commissioner as ex officio probate judge to appoint guardians for insane and incompetent persons is wholly statutory, and in order to obtain such jurisdiction it must affirmatively appear that the essential provisions of the statute have been complied with.
Code Alaska, § 723, declaring that when jurisdiction is conferred on a court or judicial officer all the means to carry it into effect are also given, and in the exercise of the jurisdiction, if the course of proceeding be not specially pointed out by the Code, any suitable process or mode of proceeding may be adopted most conformable to the spirit of the Code, refers only to the regulation of proceedings had in courts after jurisdiction has been regularly acquired, and applies only where the course of proceedings is not specially provided.
8. GUARDIAN AND WARD-APPOINTMENT OF GUARDIAN-STATUTES.
Code Alaska, § 911, declares that when any person likely to be put under guardianship shall reside without the district, and shall have any estate therein, any friend or any one interested in his estate may apply to the commissioner of any precinct in which any such estate may be, and that a guardian may be appointed by the commissioner after notice. Section 912 declares that every guardian appointed under the provisions of the preceding section shall have the same powers and duties with respect to any estate of the ward that may be found within the district, etc., as are given to any other guardian duly appointed, etc. Held, that such sections were only applicable to guardians appointed for persons who reside without the district, having estates within the district where the proceedings are instituted.
4. INSANE PERSONS-APPOINTMENT OF GUARDIAN-STATUTES-PROCESS-SERVICE.
Code Alaska, § 896, declaring that when the relatives or friends of any insane person shall apply to have a guardian appointed for him, the commissioner shall cause notice to be given to the supposed insane person of the time and place of the hearing, etc., contemplates the personal service of such notice on the person affected thereby.
In Error to the District Court of the United States for the Third Division of the District of Alaska.
This is an action of ejectment brought by the plaintiff (defendant in error) Andrew White, by his guardian, H. M. Badger, against the defendants (plaintiffs in error) to recover possession of the premises described in the complaint, being two lots adjoining, end to end, comprising one plot of ground, together with improvements thereon. The complaint alleged that on May 9, 1905, H. M. Badger was duly appointed by the commissioner and ex officio probate judge of the Fairbanks Precinct, in the district of Alaska, as the guardian of the person and property of the said Andrew White, the said Andrew White having been found at the same time by the court to be an insane person, and owning real property in said precinct, and that said Andrew White occupied the same as his residence, and had been in possession at all times since, except as such possession has been interfered with by the unlawful conduct of the plaintiffs in error, and that he is now entitled to the possession of the property; that prior to the bringing of this action the plaintiffs in error wrongfully entered within the inclosure, and broke into the houses, and ousted him from the possession of the property, and have since retained the possession of the property. A demurrer was interposed to the complaint upon the ground that the plaintiff had no legal capacity to bring the suit, and that the complaint does not state facts sufficient to constitute a cause of action against the plaintiffs in error, or any of them. This demurrer was overruled, and the plaintiffs in error filed an answer denying any legal appointment of Badger as the guardian of said White, and denied the right of White to the possession of said real property. They further affirmatively answered that they were in the lawful and peaceable possession of the premises described in the complaint; that the petition for the appointment of Badger as guardian of White was insufficient to warrant his appointment as guardian; that no notice was given of the pendency of the proceedings of his appointment as guardian either to White or any other person; that without such notice the commissioner of Fairbanks Precinct, without authority of law, held a hearing in such proceedings, wherein it was disclosed that White was not a resident of Fairbanks Precinct, and the commissioner was without jurisdiction to entertain the application; that the said White never occupied the premises described, and had wholly abandoned the whole of said premises. Divers objections and exceptions were taken to certain rulings of the court as to the admission of evidence and instructions to the jury. The jury found a verdict in favor of the defendant in error, and upon that verdict judgment was rendered by the court. At the trial the proceedings had before the United States Commissioner were admitted in evidence, and it appears therefrom that on April 27, 1905, one John A. Long, a friend and acquaintance of Andrew White, presented a petition before said commissioner, showing the following state of facts: "(1) That prior to July, 1904, the said Andrew White came to Fairbanks, and became a permanent resident of the town, and in pursuance thereof took up lot No. 1, block No. 2 [the property and premises described in the complaint]; that the improvements put upon the said lot by said Andrew White were of the value of at least fifteen hundred dollars, and the said ground is now worth at least one thousand dollars. (2) That this petitioner in the year of 1904 owned a parcel of ground in the immediate neighborhood of the lot of the said White which he cultivated as a garden during the summer of that year, and in that way became personally acquainted with the said White, and somewhat with his business affairs, and especially with his mental peculiarities. (3) Your petitioner further shows that the said White was a skillful carpenter, and although there was plenty of work for carpenters at Fairbanks, complained that there was none, and expressed his purpose of building a boat, and going down the river to find work, which he did in the latter part of July, 1904, leaving his cabins locked up, with his extra clothing and household utensils therein (presumably, at least), leaving no one in charge of such property, or with any authority in connection therewith. That the said White has never communicated with any one in Fairbanks, as far as petitioner is aware, nor has any word come back from him, direct or indirect, except, perhaps, a vague rumor that he had been drowned at sea. That from petitioner's conversation and acquaintance with said White, from his actions, and from what could be learned of
him from others, petitioner is of the opinion that said White was insane when he left Fairbanks in July, 1904, and is in that condition of mind at this time." It is further alleged in this petition that since the disappearance of the said White the plaintiffs in error had taken possession of the property, and were occupying and making preparations to improve the same, and prayed "the court to order a hearing after such notice as may be deemed sufficient, and after such hearing that the court appoint some suitable person as guardian of the said Andrew White, if it finds that he be indeed insane, to the end that his property may be looked after and his interests conserved."
On reading the petition, the commissioner, on April 28, 1905, "ordered that May 9, 1905, at 10 o'clock a. m., be fixed as the time, and the courthouse in Fairbanks, as the place, for the hearing of said petition, and the said petitioner is ordered to give public notice of the time and place thereof by a notice published in the Fairbanks Semiweekly News once in its issue of April 29, 1905, and by posting a similar notice in three public places in the town of Fairbanks." On May 9, 1905, upon proof that such notice had been published and posted as directed by said order, it was "ordered, adjudged, and decreed that H. M. Badger be, and he is hereby, appointed guardian of the person and property of the said Andrew White to the extent as to property that the said Andrew White may own property in the Fairbanks recording district," and be required to give bonds.
The following provisions of the Code of Alaska have been cited by counsel, and are referred to in the opinion of the court.
Under the miscellaneous provisions respecting the courts and judicial officers, in chapter 71:
"Sec. 723. When jurisdiction is by any law of the United States conferred on a court or judicial officer, all the means to carry it into effect are also given; and in the exercise of the jurisdiction, if the course of proceeding be not specially pointed out by this Code, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code."
Under chapter 88 of "Guardians and Wards":
"Sec. 888. The commissioner for each precinct, when it shall appear to him necessary or convenient, may appoint guardians to minors and others being inhabitants or residents in such precinct, and also such as shall reside without the district and have any estate within the same."
"Sec. 895. Commissioners in their respective precincts shall have power to appoint guardians to take care, custody, and management of the estates, real and personal, of all insane persons, idiots, and all who are incapable of conducting their own affairs, and the maintenance of their families and the education of their children.
"Sec. 896. When the relatives or friends of any insane person, or any other persons inhabitants of the precinct in which such insane person resides, shall apply to the commissioner by petition in writing to have a guardian appointed for him, the commissioner shall cause notice to be given to the supposed insane person of the time and place appointed for hearing the case, not less than ten days before the time so appointed; and if, after a full hearing, it shall appear to the commissioner that the person in question is incapable of taking care of himself, the commissioner shall appoint a guardian of his person and estate, with the powers and duties hereinafter specified."
"Sec. 911. When any minor or other person likely to be put under guardianship according to the provisions of this chapter shall reside without the district and shall have any estate therein, any friend of such person, or any one interested in his estate, in expectancy or otherwise, may apply to the commissioner of any precinct in which there may be any estate of such absent person, and after notice to all persons interested, to be given in such manner as the commissioner shall order, and after a full hearing and examination, if it shall appear proper the commissioner may appoint a guardian for such absent person.
"Sec. 912. Every guardian appointed according to the provisions of the preceding section shall have the same powers and duties with respect to