(15 Mont. 511) WILLMAN MERCANTILE CO. v. FUSSY. (Supreme Court of Montana. March 18, 1895.) SALE-WHEN TITLE PASSES-EVIDence.

In an action for the price of goods sold, the evidence showed that defendant ordered goods from plaintiff on board cars at plaintiff's place of business. Plaintiff shipped the goods, taking the bill of lading in his own name, which he sent to a bank in defendant's town, attached to a sight draft on defendant for collection. Defendant refused to accept the goods. Held, that the evidence was insufficient to overcome the presumption that plaintiff retained title to the goods after shipment, arising from his taking the bill of lading in his own name.

Appeal from district court, Missoula county; Theo. Brantley, Judge.

Action by Willman Mercantile Company against James H. Fussy. From a judgment of nonsuit, plaintiff appeals. Affirmed.

Plaintiff sues the defendant for the balance due on a carload of apples, sold and delivered by plaintiff to defendant about October, 1891. Defendant denies the sale and delivery, or any balance due to plaintiff, and sets up that about November, 1891, the apples, as property of plaintiff, were delivered to defendant, to be sold on commission for plaintiff. The defendant sold the same, and, after deducting expenses, remitted $50.58 due to plaintiff. The replication denies the affirmative answer. There was a trial to the court without a jury. Defendant's motion for nonsuit was granted. From the judgment of nonsuit, plaintiff appeals.

T. H. Carter and Douis & Crouch, for appellant. Bickford, Stiff & Hershey, for respondent.

HUNT, J. The question to decide is whether or not, under the facts, the district court correctly held that the title to the apples, and the control over them, remained in the plaintiff, vendor, or passed to the defendant, as vendee. From the statement settled by the judge, and the evidence in the record, it appears that about October 31, 1891, at St. Joseph, Mo., through one Brown, a broker, acting for defendant at Missoula, Mont., plaintiff received an order for a car load of apples, of a designated kind. Brown offered a price, which plaintiff accepted, "free on board cars at St. Joseph, Mo., sight draft, with bill of lad ing attached." The apples were shipped in good order, but froze en route. The plaintiff took a bill of lading for the consign. ment in its own name, which bill of lading, with sight draft attached, was sent through a bank at Missoula, and presented to Fussy, who refused to honor the draft, or. to receive the apples, because they were frozen. There is no proof that defendant ever received the bill of lading taken by plaintiff at the time of the original shipment, or that the defendant ever received the apples as consignee, or that he ever exercised any control over them as owner thereof. On

the contrary, the testimony showed that the carrier notified plaintiff that it would sell the apples for freight charges, if plaintiff did not turn them over to Fussy without the bill of lading, and that Fussy refused to receive the apples, because they were frozen in transit, and were in transit too long. The motion for a nonsuit was upon the ground that the evidence failed to sustain the allegations of the complaint of a sale and delivery of the apples by plaintiff to defendant. By the established rules of commercial law, where goods are shipped at the risk of the purchaser and by his order, or if by other evidence the intention of the shipper is made apparent to part with his title, the carrier is held to be the agent of the consignee, and not the agent of the consignor. But, if the seller does not intend to part with his title to and control over the property when he makes the consignment, the authorities regard the carrier as the consignor's agent, and not the consignee's. To get at the intention of the parties to such commercial transactions, the bills of lading are resorted to. If the vendor, when shipping, takes the bill of lading in his own name, this fact, when not rebutted by evidence to the contrary, is very strong proof of the intention of the vendor to reserve title in himself, and is almost decisive to prove the vendor's intention to retain the jus disponendi of the property, and to prevent the delivery of same to the vendee. Dows v. Bank, 91 U. S. 618; Emery v. Bank, 25 Ohio St. 360; Seeligson v. Philbrick, 30 Fed. 600; Chandler v. Sprague, 38 Am. Dec. 404, and note; McCormick v. Joseph, 77 Ala. 236; Forcheimer v. Stewart, 65 Iowa, 594, 22 N. W. 886; Sohn v. Jervis, 101 Ind. 578, 1 N. E. 73; Jones v. Brewer, 79 Ala. 545; Moors v. Kidder, 106 N. Y. 32, 12 N. E. 818; Bank v. McAndrews, 5 Mont. 325, 5 Pac. 879. The plaintiff, the vendor in this case, dealt with the bill of lading with the manifest purpose of securing the payment for the apples; and the defendant, by his refusal to pay the draft, acquired no right to the bill of lading, or to the goods which it represented. Benj. Sales, $ 567; Bank v. Logan, 74 N. Y. 568. When the bill of lading was taken in the shipper's name, the presumption arose that he intended to retain the title in himself. This presumption must stand as conclusive until it is rebutted by affirmative proof on the plaintiff's part. We find nothing in the testimony to overcome the presumption, and considerable to strengthen it. The failure of plaintiff to notify defendant of any reason why the bill of lading was taken as it was, and the failure of defendant to receive a bill of lading when the goods were shipped, coupled with the fact that it was sent with the draft for collection, leave no doubt in our minds that the vendor intended to hold the title to the property until the defendant paid for the same. The case, therefore, is

in no way excepted from the application of the general principles which must govern. The judgment is affirmed.

DE WITT, J., concurs.

(15 Mont, 506)

STATE v. MALISH.

(Supreme Court of Montana. March 18, 1895.) FORGERY-SUFFICIENCY OF INDICTMENT-WAIVER OF DEFECTS-VERDICT.

1. Under Cr Prac. Act, § 217, providing that defendant, by failure to demur to an indictment, waives all defects therein, except that the court has no jurisdiction of the offense, and that the indictment does not state facts constituting an offense, an objection to an indictment on the latter ground cannot be raised for the first time on appeal.

2. Where the uttering of a forged check is forgery (Comp. St. div. 4, § 96), a verdict finding defendant guilty of "uttering a forged check" as charged in the indictment is sufficient to sustain a conviction for forgery.

Appeal from district court, Gallatin county; F. K. Armstrong, Judge.

Oscar M. Malish, convicted of a criminal offense, appeals. Affirmed.

This is an appeal by the defendant from a judgment sentencing him to a term of 15 months in the penitentiary. The record on appeal contains simply the information, the verdict, and the judgment. There was no demurrer to the information, or motion to quash the same. There was no motion for new trial, and no motion in arrest of judg

ment.

Sutton & Thresher, for appellant. Henri J. Haskell, Ella L. Knowles, and W. L. Holloway, for the State

DE WITT, J. Upon this appeal defendant's counsel argue that the information does not state facts sufficient to constitute an offense. The defects which he urges exist in the information are such as appear upon the face thereof, if at all.. It was said in Territory v. Carland, 6 Mont. 18, 9 Pac. 578, as follows: "Our criminal laws provide as follows: 'A defendant who has failed to demur to an indictment for any of the defects appearing upon its face shall be deemed to have waived the same, except the defects that the court has no jurisdiction over the same, or that the indictment does not state facts sufficient to constitute an offense; these he may take advantage of on the trial, or on motion to arrest judgment.' Cr. Prac. Act, § 217. The statute having provided the method of procedure to take advantage of such a defect, that method must be pursued. The objection that the facts stated in the indictment do not constitute a public offense cannot be presented in this court for the first time." That decision is decisive of the same point in this case. The ruling in the Carland Case, in upholding the statute cited, does not hold that a judgment will be sustained upon an information which does

not state an offense, nor that such judgment will be sustained upon an information where it appears that the court had no jurisdiction of the offense. The decision simply recognized that the statute provides, as it has a right to do, in what court these objections should be maue, and that they must be first made in the district court rather than in the supreme court. Appeals are a matter of statutory regulation. Territory V. Hanna, 5 Mont. 247, 5 Pac. 250; State v. Gibbs, 10 Mont. 210; 25 Pac. 288; State v. Northrup, 13 Mont. 534, 35 Pac. 228.

The matter of the information, therefore, being out of consideration, the appellant still contends that the verdict does not sustain the judgment, because the verdict does not find the defendant guilty of any offense known to the law. Without deciding whether, as a matter of practice, this verdict is before us for consideration (as the question is not raised), we think that the verdict does find an offense. The jury found the defendant guilty of uttering a forged check, in manner and form as charged in the information. To utter a forged check is one of the methods of committing forgery under our statute. Comp. St. div. 4, § 96. In California, under a similar statute, the supreme court said, in the case of People v. Ah Woo, 28 Cal. 206, as follows: "Nor is the objection that the defendant could not be found guilty of forgery, because the charge was for ‘uttering and passing a forged instrument,' tenable. By the statute, the uttering and passing, as well as the making, etc., of a forged instrument, is declared to be forgery." See, also, People v. Tomlinson, 35 Cal. 503. As to the form of this verdict, we observe that Mr. Bishop says, in the first volume of his Criminal Procedure (section 1005a). that, "the verdict being 'the finding of lay people,' need not be framed under the strict rules of pleading or after any technical form. Any words which convey the idea to the common understanding will be adequate; and all fair intendments will be made to support it." We think that it may be said of this verdict, as was remarked in the case of State v. Ryan, 13 Minn. 374 (Gil. 343): "As to the verdict, its form is not to be approved; but there is no set form of words in which a verdict is required to be rendered, and therefore, the only rational general rule that can be adopted by which to measure its sufficiency is, does it show clearly, and without any doubt, the intention of the jury, and their finding on the issues presented to them? If it does, it cannot be declared bad without sacrificing substance and justice to form. No error that is not a violation of some positive rule of law, or which may not possibly prejudice the defendant, can be a ground for reversal on appeal. I think the language of the verdict leaves no doubt as to its meaning or as to the intention of the jury. Its informality does not tend to render it obscure or ambiguous, or to prejudice

the rights of the defendant, and therefore does not affect the judgment." We also note the following language by Dixon, C. J., in Benedict v. State, 14 Wis. 464: "The verdict is sufficient in form. It cannot be that the law is so excessively exact in such matters that it makes a particular word so indispensable that another equally expressive cannot be used in its stead. The word 'find' is more commonly used, but the word 'agree' where employed with reference to the verdict of a jury, particularly in criminal cases, means precisely the same thing. Both signify that the jury, upon consideration of the evidence, have determined that the accused is guilty or not guilty of the crime charged.” See, also, other cases cited in Bishop on Criminal Procedure, quoted above, and also the recent case of State v. Preston (Idaho) 38 Pac. 694.

We are of opinion that the verdict in the case at bar clearly expresses the finding of the jury that the defendant was guilty of forgery, committed in one of the ways by which that offense may be committed under our statute, to wit, by uttering a forged check. Comp. St. div. 4, § 96. As the case of State v. Hudson, 13 Mont. 112, 32 Pac. 413, has been mentioned in the briefs in this case, it may be well to remark, in passing, that in that case the language of the information was not under consideration, nor the manner of charging a forgery committed by uttering, publishing, passing, etc. That case was decided wholly upon the question of jurisdiction. We are of opinion that the judgment in the case at bar should be affirmed, and it is so ordered. Judgment affirmed.

HUNT, J., concurs.

(15 Mont. 515)

LAVELLE et al. v. GORDON. (Supreme Court of Montana. March 18, 1895.) CONTRACTS-ASSIGNMENT OF HALF INTEREST- LIABILITY OF ASSIGNEE.

An assignee of a half interest in a contract to purchase land, not expressly assuming liability for the payments therein provided for, incurs no personal liability to the vendor of the land, and therefore the owner of the other half interest in the contract cannot recover from the assignee any proportion of the payments made by him after the assignment, without the assignee's request.

Appeal from district court, Yellowstone county; George R. Milburn, Judge.

Action by Pat Lavelle and others against George A. Gordon. From a judgment for plaintiffs, defendant appeals. Reversed.

The defendant in this action appeals from a judgment entered in favor of plaintiffs upon the overruling of defendant's demurrer to the complaint. The demurrer was upon the ground that the complaint did not state facts sufficient to constitute a cause of action. That pleading states the following facts: On November 20, 1891, the plaintiff's, with Rudolph Schultz and Charles D. Fox, entered

into a written agreement with the Northern Pacific Railroad Company for the purchase of certain land described. The consideration for the purchase of the said land was $2,780.90. $514.95 were payable, and in fact were paid, at the execution of the contract. The remainder of the consideration was payable, with interest, by installments, on the 20th days of November, 1892, 1893, 1894, 1895, and 1896. After the first payment, in November, 1891, and prior to the time for the second payment, to wit, on the 8th of June, 1892, Schultz and Fox, two of the parties to the agreement, for a valuable consideration, assigned and transferred, in writing upon the back of said contract, their right and title in the contract, and also the land described therein, to George A. Gordon, the defendant in this action. Schultz and Fox together owned an undivided one-half interest in the contract and the land. The assignment was acknowledged, and it, together with the contract, recorded in the county where the land was situated. After the recording of the contract and the assignment, the same were delivered to the defendant, who has retained them ever since, and refuses to deliver them to the plaintiffs. The terms of the contract gave to the second parties the right of immediate possession of the land. Ever since the defendant took the assignment, he, with the plaintiffs, has been in possession, and holding in common, the said land. The second installment of $611.79 on said contract became due November 20, 1892. Prior to this time, plaintiff's requested defendant to contribute his proportionate share of this payment, so that the whole payment might be remitted to the railroad company at St. Paul. This the defendant refused to do. Thereupon the plaintiffs paid the whole installment to the railroad company. They have demanded from defendant a sum equal to one-half of what they so paid to the railroad company. Plaintiffs ask for judgment for said amount.

Campbell & Stark, for appellants. O. F. Goddard, for respondent.

DE WITT, J. (after stating the facts). It is claimed by the plaintiffs in this action that one-half of the installment which they paid to the railroad company on November 20, 1892, was paid for and on behalf of defendant, who was their co-owner in the land and the contract; and that they, having paid said money in behalf of defendant, are entitled to recover the same from him. A kindred subject was very recently before this court in the case of Lloyd v. Board of Com'rs (decided March 4, 1895, 39 Pac. 457. In that case this court said: "In order to entitle a person to recover money paid for another, a request, express or implied, must be established, or an express promise to pay it; and it may be said that in all cases where there is a legal obligation on the part of the person paying to pay the money, the primary obli

gation resting upon the person for whose benefit it was paid, the law implies a request and a consequent promise that will uphold an action to recover it back." Applying these principles to the case at bar, we observe that the plaintiffs claim that they paid this money for the defendant. This payment was not made at the express request of defendant, nor was it on his implied request, unless there is an implication arising from the facts of the case, and an obligation resting upon the defendant, to pay the Northern Pacific Railroad Company. It is to be noted that we said in the case of Lloyd v. Board of Com'rs: "In a case where there is a legal obligation on the part of the person paying to pay the money, the primary obligation resting upon the person for whose benefit it was paid, then the law implies a request," etc. Thus, in order to ascertain whether there was a constructive request in law on the part of the defendant to pay the money (having seen that there was no express request, and none implied from his conduct) the first inquiry is whether there was an obligation resting on defendant Gordon to pay this installment of money, or any part of it, to the Northern Pacific Railroad Company; for, if there were a primary obligation resting upon Gordon to pay the railroad company, and then if there were also a legal obligation on the part of his associates to pay it, then, if they did so pay it, they could recover from Gordon, under the doctrine in the case quoted. We will therefore endeavor to ascertain whether Gordon was under obligations to pay the railroad company.

Defendant, Gordon, never contracted with the Northern Pacific Railroad Company. He never promised to pay to the railroad company the installment due November 20, 1892, on the Lavelle contract, or any other sum. He never dealt with the railroad company at all. If there were any obligation upon Gordon to pay the 1892 installment, or a part thereof, it arose, and was implied, from his acts. He took to himself, for a valuable consideration, an assignment of a one-half interest in the contract, and in the land which was the subject thereof. Does this imply a promise on his part to pay to the railroad company the deferred installments? We think not. The analogy is very close, if not complete, to a person buying real estate incumbered with a mortgage. If the buyer does not assume the mortgage, he is not personally liable therefor; and the mere fact of his buying the land subject to the mortgage is not such a personal assumption of the mortgage, or an agreement to pay the same. We said, through the learned chief justice, in Pendleton v. Cowling, 11 Mont. 49, 27 Pac. 386: "The authorities hold that the above words of the declaration of trust, if inserted in a deed, do not make the grantee liable for the payment of such an incumbrance upon the land. Mr. Jones, the learned author of the work on Mortgages, says: 'A deed which is

merely made subject to a mortgage specified, does not alone render the grantee personally liable for the mortgage debt. To create such liability, there must be such words as will clearly import that the grantee assumed the obligation of paying the debt. It is not necessary that any particular formal words should be used, but that the intention to impose upon the grantee this obligation should clearly appear. A purchaser of land accepting a deed expressly conveying it subject to a mortgage, and excepting it from the covenants, is not himself personally liable to pay it, unless he covenants to do so.' Volume 1 (1st Ed.) § 748, and cases cited. Elliott v. Sackett, 108 U. S. 132, 2 Sup. Ct. 375; Shepherd v. May, 115 U. S. 505, 6 Sup. Ct. 119. The litigation in these cases had its origin in the sales of property under a trust deed. The court held in Fiske v. Tolman, 124 Mass. 254, that a promise to pay the mortgage debt cannot be inferred from the acceptance of a deed containing this clause: 'Subject, however, to a mortgage * of $7,000, which

is part of the above consideration.' Wiltsie, Mortg. Forec. §§ 608, 610, 613, and cases cited. Mr. Wiltsie says: 'Whether a personal liability is assumed in any case is always dependent on the intention of the parties. Unless the parties have declared this intention in express words, no liability will be incurred. If the deed merely recites that the land is taken subject to a certain mortgage, there will be no personal liability. Neither will the words "under and subject" to a mortgage, which is specified, import a promise to pay, nor create a personal liability.' Section 615. We have consulted numerous cases, and do not hesitate to assert this to be the general rule." In the case at bar the defendant took by assignment the contract and the land which was the subject thereof. It may be conceded, for the purposes of this case, that Gordon accepted this assignment, although some question is raised as to this point in the argument of counsel. Gordon did not assume the payment of the deferred installments. He did nothing more than receive the assignment. The contract between the Northern Pacific Railroad Company and its proposed purchasers of the land had, in many respects, the practical results and effect of a deed with a mortgage back. Lavelle and his associates wished to purchase the land. They paid a certain sum in cash. They were given the immediate possession of the land. They were to pay all taxes and assessments, and the further installments to the railroad company, and interest on the purchase price, as they became due. In all these respects they were, for practical purposes, in the same position as if they had taken a deed from the Northern Pacific Railroad Company, paying part of the consideration, and giving a mortgage for the balance. If the situation had been one of a deed and mortgage back, and one of the grantees in the deed had assigned his interest in the land to Gordon, the