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(15 Mont. 511)

the contrary, the testimony showed that WILLMAN MERCANTILE CO. v. FUSSY. the carrier notified plaintiff that it would (Supreme Court of Montana. March 18, 1895.)

sell the apples for freight charges, if plainSALE-WHEN TITLE PASSES--EVIDENCE.

tiff did not turn them over to Fussy without In an action for the price of goods sold,

the bill of lading, and that Fussy refused the evidence showed that defendant ordered to receive the apples, because they were goods from plaintiff on board cars at plaintiff's frozen in transit, and were in transit too place of business. Plaintiff shipped the goods,

long. The motion for a nonsuit was upon taking the bill of lading in his own name, which he sent to a bank in defendant's town, attach- the ground that the evidence failed to sused to a sight draft on defendant for collection. tain the allegations of the complaint of a Defendant refused to accept the goods. Held,

sale and delivery of the apples by plaintiff that the evidence was insufficient to overcome the presumption that plaintiff retained title to

to defendant. By the established rules of the goods after shipment, arising from his tak- commercial law, where goods are shipped ing the bill of lading in his own name.

at the risk of the purchaser and by his orAppeal from district court, Missoula coun- der, or if by other evidence the intention ty; Theo. Brantley, Judge.

of the shipper is made apparent to part Action by Willman Mercantile Company with his title, the carrier is held to be the against James H. Fussy. From a judgment agent of the consignee, and not the agent of nonsuit, plaintiff appeals. Affirmed. of the consignor. But, if the seller does not

Plaintiff sues the defendant for the bal- intend to part with his title to and control ance due on a carload of apples, sold and over the property when he makes the con. delivered by plaintiff to defendant about signment, the authorities regard the carrier October, 1891. Defendant denies the sale as the consignor's agent, and not the conand delivery, or any balance due to plain- signee's. To get at the intention of the partiff, and sets up that about November, 1891, ties to such commercial transactions, the the apples, as property of plaintiff', were bills of lading are resorted to. If the vendelivered to defendant, to be sold on com- dor, when shipping, takes the bill of lading mission for plaintiff. The defendant sold in his own name, this fact, when not rebutthe same, and, after deducting expenses, ted by evidence to the contrary, is very remitted $50.58 due to plaintiff. The repli- strong proof of the intention of the vendor cation denies the affirmative answer. There to reserve title in himself, and is almost was a trial to the court without a jury. decisive to prove the vendor's intention to Defendant's motion for nonsuit was grant- retain the jus disponendi of the property, ed. From the judgment of nonsuit, plain and to prevent the delivery of same to the tiff appeals.

vendee. Dows v. Bank, 91 U. S. 618; EmT. H. Carter and Douis & Crouch, for ap

ery v. Bank, 25 Ohio St. 360; Seeligson v. pellant. Bickford, Stiff & Hershey, for re

Philbrick, 30 Fed. 600; Chandler v. Sprague, spondent.

38 Am. Dec. 404, and note; McCormick v.

Joseph, 77 Ala. 236; Forcheimer v. Stewart, HUNT, J. The question to decide is 65 Iowa, 594, 22 N. W. 886; Sohn v. Jerwhether or not, under the facts, the district vis, 101 Ind. 578, 1 N. E. 73; Jones v. Brewcourt correctly held that the title to the ap- er, 79 Ala. 515; Moors v. Kidder, 106 N. Y. ples, and the control over them, remained 32, 12 N. E. 818; Bank V. McAndrews, 5 in the plaintiff, vendor, or passed to the de- Mont. 325, 5 Pac. 879. The plaintiff, the fendant, as vendee. From the statement vendor in this case, dealt with the bill of settled by the judge, and the evidence in lading with the manifest purpose of securthe record, it appears that about October ing the payment for the apples; and the de31, 1891, at St. Joseph, Mo., through one fendant, by his refusal to pay the draft, acBrown, a broker, acting for defendant at quired no right to the bill of lading, or to Missoula, Mont., plaintiff received an order the goods which it represented. Benj. Sales, for a car load of apples, of a designated $ 567; Bank v. Logan, 74 N. Y. 568. When kind. Brown offered a price, which plain- the bill of lading was taken in the shipper's tiff accepted, "free on board cars at St. name, the presumption arose that he inJoseph, Mo., sight draft, with bill of ladl. tended to retain the title in himself. This ing attached." The apples were shipped in presumption must stand as conclusive until good order, but froze en route. The plain- it is rebutted by affirmative proof on the tiff took a bill of lading for the consign. plaintiff's part. We find nothing in the tesment in its own name, which bill of lading, timony to overcome the presumption, and with sight draft attached, was sent through considerable to strengthen it. The failure a bank at Missoula, and presented to Fussy, of plaintiff to notify defendant of any reawho refused to honor the draft, or. to re- son why the bill of lading was taken as it ceive the apples, because they were frozen. was, and the failure of defendant to receive a There is no proof that defendant ever re- bill of lading when the goods were shipped, ceived the bill of lading taken by plaintiff coupled with the fact that it was sent with at the time of the original shipment, or that the draft for collection, leave no doubt in the defendant ever received the apples as our minds that the vendor intended to hold consignee, or that he ever exercised any the title to the property until the defendant control over them as owner thereof. On paid for the same. The case, therefore, is

in no way excepted from the application of not state an offense, nor that such judgment the general principles which must govern. will be sustained upon an information where The judgment is affirmed.

it appears that the court had no jurisdiction

of the offense. The decision simply recognize DE WITT, J., concurs.

ed 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 (15 Mont. 506)

in the district court rather than in the suSTATE V. MALISH.

preme court. Appeals are a matter of stat(Supreme Court of Montana. March 18, 1895.)

utory regulation Territory v. Hanna, 5

Mont. 247, 5 Pac. 250; State v. Gibbs, 10 FORGERY-SUFFICIENCY OF INDICTMENT-WAIVER OF DEFECTS-VERDICT.

Mont. 210; 25 Pac. 288; State v. Northrup, 1. Under Cr Prac. Act, $ 217, providing 13 Mont. 534, 35 Pac. 228. that defendant, by failure to demur to an in- The matter of the information, therefore, dictment, waives all defects therein, except that the court has no jurisdiction of the offense, and

being out of consideration, the appellant still that the indictment does not state facts con

contends that the verdict does not sustain stituting an offense, an objection to an indict. the judgment, because the verdict does not ment on the latter ground cannot be raised for

find the defendant guilty of any offense the first time on appeal. 2. Where the uttering of a forged check is

known to the law. Without deciding whethforgery (Comp. St. div. 4, § 96), a verdict find- er, as a matter of practice, this verdict is ing defendant guilty of “uttering a forged before us for consideration (as the question is check” as charged in the indictment is sufficient to sustain a conviction for forgery.

not raised), we think that the verdict does

find an offense. The jury found the defendAppeal from district court, Gallatin coun

ant guilty of uttering a forged check, in ty; F. K. Armstrong, Judge.

manner and form as charged in the informaOscar M. Malish, convicted of a criminal

tion. To utter a forged check is one of the offense, appeals. Affirmed.

methods of committing forgery under our This is an appeal by the defendant from a

statute. Comp. St. div. 4, § 96. In California, judgment sentencing him to a term of 15

under a similar statute, the supreme court months in the penitentiary. The record on

said, in the case of People v. Ah Woo, 28 Cal. appeal contains simply the information, the

206, as follows: "Nor is the objection that verdict, and the judgment. There was no

the defendant could not be found guilty of demurrer to the information, or motion to

forgery, because the charge was for ‘utterquash the same. There was no motion for

ing and passing a forged instrument,' tenanew trial, and no motion in arrest of judg

ble. By the statute, the uttering and passment.

ing, as well as the making, etc., of a forged Sutton & Thresher, for appellant. Henri instrument, is declared to be forgery." See, J. Haskell, Ella L. Knowles, and W. L. Hol- also, People v. Tomlinson, 35 Cal. 503.

As loway, for the State

to the form of this verdict, we observe that

Mr. Bishop says, in the first volume of his DE WITT, J. Upon this appeal defend- Criminal Procedure (section 1005a), that, ant's counsel argue that the information does "the verdict being the finding of lay peonot state facts sufficient to constitute an of- ple,' need not be framed under the strict fense. The defects which he urges exist in rules of pleading or after any technical the information are such as appear upon the form. Ary words which convey the idea face thereof, if at all.. It was said in Terri- to the common understanding will be adtory v. Carland, 6 Mont. 18, 9 Pac. 578, as equate; and all fair intendments will be follows: “Our criminal laws provide as fol- made to support it.” We think that it may lows: 'A defendant who has failed to demur be said of this verdict, as was remarked in to an indictment for any of the defects ap- the case of State v. Ryan, 13 Minn, 374 (Gil. pearing upon its face shall be deemed to 343): “As to the verdict, its form is not to be have waived the same, except the defects approved; but there is no set form of words that the court has no jurisdiction over the in which a verdict is required to be rendersame, or that the indictment does not state ed, and therefore, the only rational general facts sufficient to constitute an offense; these rule that can be adopted by which to measure he may take advantage of on the trial, or on its sufficiency is, does it show clearly, and motion to arrest judgment.' Cr. Prac. Act, 8 without any doubt, the intention of the jury, 217.

The statute having provided and their finding on the issues presented to the method of procedure to take advantage them? If it does, it cannot be declared bad of such a defect, that method must be pur- without sacrificing substance and justice to sued. The objection that the facts stated in form. No error that is not a violation of the indictment do not constitute a public of- some positive rule of law, or which may not fense cannot be presented in this court for possibly prejudice the defendant, can be a the first time." That decision is decisive of ground for reversal on appeal. I think the the same point in this case. The ruling in language of the verdict leaves no doubt as the Carland Case, in upholding the statute to its meaning or as to the intention of the cited, does not hold that a judgment will be jury. Its informality does not tend to rensustained upon an information which does der it obscure or ambiguous, or to prejudice

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the rights of the defendant, and therefore | into a written agreement with the Northern does not affect the judgment." We also note Pacific Railroad Company for the purchase the following language by Dixon, C. J., in of certain land described. The consideration Benedict v. State, 14 Wis. 464: "The verdict for the purchase of the said land was $2,is sufficient in form. It cannot be that the 780.90. $514.95 were payable, and in fact law is so excessively exact in such matters were paid, at the execution of the contract. that it makes a particular word so indis- The remainder of the consideration was paypensable that another equally expressive can- able, with interest, by installments, on the not be used in its stead. The word 'find' is 20th days of November, 1892, 1893, 1894, more commonly used, but the word 'agree' 1895, and 1896. After the first payment, in where employed with reference to the ver- November, 1891, and prior to the time for dict of a jury, particularly in criminal cases, the second payment, to wit, on the 8th of means precisely the same thing. Both sig- June, 1892, Schultz and Fox, two of the parnify that the jury, upon consideration of the ties to the agreement, for a valuable considevidence, have deterinined that the accused eration, assigned and transferred, in writing is guilty or not guilty of the crime charged." upon the back of said contract, their right See, also, other cases cited in Bishop on and title in the contract, and also the land deCriminal Procedure, quoted above, and also scribed therein, to George A. Gordon, the the recent case of State v. Preston (Idaho) defendant in this action. Schultz and Fox 38 Pac. 691.

together owned an undivided one-half interWe are of opinion that the verdict in the est in the contract and the land. The ascase at bar clearly expresses the finding of signment was acknowledged, and it, together the jury that the defendant was guilty of with the contract, recorded in the county forgery, committed in one of the ways by where the land was situated. After the rewhich that offense may be committed under cording of the contract and the assignment, our statute, to wit, by uttering a forged the same were delivered to the defendant, check. Comp. St. div. 4, § 96. As the case of who has retained them ever since, and reState v. Hudson, 13 Mont. 112, 32 Pac. 413, fuses to deliver them to the plaintiffs. The has been mentioned in the brief's in this case, terms of the contract gave to the second parit may be well to remark, in passing, that ties the right of immediate possession of the in that case the language of the informa- land. Ever since the defendant took the astion was not under consideration, nor the signment, he, with the plaintiffs, has been in manner of charging a forgery committed by possession, and holding in common, the said uttering, publishing, passing, etc. That case land. The second installment of $611.79 on was decided wholly upon the question of ju- said contract became due November 20, 1892. risdiction. We are of opinion that the judg

Prior to this time, plaintiffs requested dement in the case at bar should be affirmed, fendant to contribute his proportionate share and it is so ordered. Judgment affirmed. of this payment, so that the whole payment

might be remitted to the railroad company at HUNT, J., concurs.

St. Paul. This the defendant refused to do.
Thereupon the plaintiffs paid the whole in-

stallment to the railroad company. They (15 Mont. 515)

have demanded from defendant a sum equal LAVELLE et al. v. GORDON.

to one-half of what they so paid to the rail(Supreme Court of Montana. March 18, 1895.) road company.

Plaintiffs ask for judgment CONTRACTS-ASSIGNMENT OF HALF INTEREST-- LI. for said amount. ABILITY OF ASSIGNEE.

Campbell & Stark, for appellants. O. F. An assignee of a half interest in a contract to purchase land, not expressly assuming Goddard, for respondent. liability for the payments therein provided for, incurs no personal liability to the vendor of the DE WITT, J. (after stating the facts). It land, and therefore the owner of the other half interest in the contract cannot recover from the

is claimed by the plaintiffs in this action that assignee any proportion of the payments made

one-half of the installment which they paid by him after the assignment, without the as- to the railroad company on November 20, signee's request.

1892, was paid for and on behalf of defendAppeal from district court, Yellowstone ant, who was their co-owner in the land and county; George R. Milburn, Judge.

the contract; and that they, having paid said Action by Pat Lavelle and others against money in behalf of defendant, are entitled to George A. Gordon. From a judgment for recover the same from him. A kindred subplaintiff's, defendant appeals. . Reversed. ject was very recently before this court in

The defendant in this action appeals from the case of Lloyd v. Board of Com’rs (decida judgment entered in favor of plaintiffs up- ed March 4, 1895, 39 Pac. 457. In that case on the overruling of defendant's demurrer to this court said: “In order to entitle a perthe complaint. The demurrer was upon the son to recover money paid for another, a reground that the complaint did not state facts quest, express or implied, must be establishsufficient to constitute a cause of action.ed, or an express promise to pay it; and it That pleading states the following facts: On may be said that in all cases where there is November 20, 1891, the plaintiffs, with Ru- a legal obligation on the part of the person dolph Schultz and Charles D. Fox, entered paying to pay the money, the primary obligation resting upon the person for whose ben- merely made subject to a mortgage specified, efit it was paid, the law implies a request and does not alone render the grantee personally a consequent promise that will uphold an ac- liable for the mortgage debt. To create such tion to recover it back." Applying these liability, there must be such words as will principles to the case at bar, we observe that clearly import that the grantee assumed the the plaintiffs claim that they paid this money obligation of paying the debt. It is not necfor the defendant. This payment was not essary that any particular formal words made at the express request of defendant, nor should be used, but that the intention to im. was it on his implied request, unless there is pose upon the grantee this obligation should an implication arising from the facts of the clearly appear. A purchaser of land acceptcase, and an obligation resting upon the de- | ing a deed expressly conveying it subject to a fendant, to pay the Northern Pacific Rail- mortgage, and excepting it from the coveroad Company. It is to be noted that we nants, is not himself personally liable to pay said in the case of Lloyd v. Board of Com’rs: it, unless he covenants to do so. Volume 1 "In a case where there is a legal obligation (1st Ed.) § 748, and cases cited.

Elliott v. on the part of the person paying to pay the Sackett, 108 U. S. 132, 2 Sup. Ct. 375; Shepmoney, the primary obligation resting upon herd v. May, 115 U. S. 505, 6 Sup. Ct. 119. the person for whose benefit it was paid, then The litigation in these cases had its origin the law implies a request,”: etc. Thus, in or- in the sales of property under a trust deed. der to ascertain whether there was a con- The court held in Fiske v. Tolman, 124 Mass. structive request in law on the part of the 254, that a promise to pay the mortgage debt defendant to pay the money (having seen that cannot be inferred from the acceptance of a there was no express request, and none im- deed containing this clause: "Subject, howplied from his conduct) the first inquiry is ever, to a mortgage * * of $7,000, which whether there was an obligation resting on is part of the above consideration. Wiltsie, defendant Gordon to pay this installment of Mortg. Forec. $$ 608, 610, 613, and cases cited. money, or any part of it, to the Northern Mr. Wiltsie says: 'Whether a personal liaPacific Railroad Company; for, if there were bility is assumed in any case is always dea primary obligation resting upon Gordon to pendent on the intention of the parties. Unpay the railroad company, and then if there less the parties have declared this intention were also a legal obligation on the part of in express words, no liability will be incurred. his associates to pay it, then, if they did so If the deed merely recites that the land is pay it, they could recover from Gordon, un- taken subject to a certain mortgage, there der the doctrine in the case quoted. We will will be no personal liability. Neither will therefore endeavor to ascertain whether Gor- the words “under and subject” to a mortgage, don was under obligations to pay the railroad which is specified, import a promise to pay, company.

nor create a personal liability.' Section 615. Defendant, Gordon, never contracted with We have consulted numerous cases, and do the Northern Pacific Railroad Company. He not hesitate to assert this to be the general never promised to pay to the railroad com- rule.” In the case at bar the defendant took pany the installment due November 20, 1892, by assigpment the contract and the land on the Lavelle contract, or any other sum. which was the subject thereof. It may be He never dealt with the railroad company at conceded, for the purposes of this case, that all. If there were any obligation upon Gor: Gordon accepted this assignment, although don to pay the 1892 installment, or a part some question is raised as to this point in the thereof, it arose, and was implied, from his argument of counsel. Gordon did not asacts. He took to himself, for a valuable con- sume the payment of the deferred installsideration, an assignment of a one-half inter- ments. He did nothing more than receive est in the contract, and in the land which was the assignment. The contract between the the subject thereof. Does this imply a prom- Northern Pacific Railroad Company and its ise on his part to pay to the railroad company proposed purchasers of the land had, in many the deferred installments? We think not. respects, the practical results and effect of a The analogy is very close, if not complete, deed with a mortgage back. Lavelle and his to a person buying real estate incumbered associates wished to purchase the land. They with a mortgage. If the buyer does not as- paid a certain sum in cash. They were givsume the mortgage, he is not personally lia- en the immediate possession of the land. ble therefor; and the mere fact of his buying They were to pay all taxes and assessments, the land subject to the mortgage is not such and the further installments to the railroad a personal assumption of the mortgage, or company, and interest on the purchase price, an agreement to pay the same. We said, as they became due. In all these respects through the learned chief justice, in Pendle- they were, for practical purposes, in the same ton v. Cowling, 11 Mont. 49, 27 Pac. 386: position as if they had taken a deed from “The authorities hold that the above words the Northern Pacitic Railroad Company, payof the declaration of trust, if inserted in a ing part of the consideration, and giving a deed, do not make the grantee liable for the mortgage for the balance. If the situation payment of such an incumbrance upon the had been one of a deed and mortgage back, land. Mr. Jones, the learned author of the and one of the grantees in the deed had aswork on Mortgages, says: *A deed which is signed his interest in the land to Gordon, the

are

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defendant herein, the assignment and trans- amined. None of them, however, are cases fer would have been subject to the mortgage, where the person for whose benefit the pay. whether the assignment and transfer so stat- ment is alleged to have been made was himed or not. Pendleton v. Cowling, supra. self under no primary obligation to make the But this would have cast no personal liabil- payment. Illustrations of the alleged bene ity upon Gordon to pay any balance due on ficiary being under the primary obligation, the mortgage. Id. These principles are found in cases cited in Lloyd v. Board of equally applicable to the facts in the case at Com’rs, supra. We are therefore of opinion bar. Gordon took the half interest in the that the complaint does not state facts suffi. land subject to the payment of the future in- cient to constitute a cause of action. The stallments on the purchase price. The deed judgment is therefore reversed, and the case by the railroad company would not issue to is remanded to the district court, with inits proposed purchasers until all the install- structions to sustain the demurrer. Demurments were paid. The land was firmly beld rer sustained. for these picyments, for the railroad company retained the fee in itself as security for the HUNT, J., concurs. payments. But the fact of Gordon taking the land subject to the deferred payments should not, in principle, make him personally

(15 Mont. 522) liable for such payments, any more than it SULLIVAN v. GERMANIA LIFE INS. CO. the transaction had been a deed with a mort- (Supreme Court of Montana. March 18, 1895.) gage back, as above illustrated. We are of INSURANCE AGENT AUTHORITY PAYMENT OF opinion that the same principles apply to PREMIUMS-RATIFICATION OF AGREEMENT either nature of transaction.

BY COMPANY. It is to be observed that Gordon obtained

1. The local agent and manager of a fire in

surance company bas no power to agree that the something by taking this assignment of the

premiums on a policy issued by him shall be contract and the land, even if he never got so credited on account of rents due by him to the far as to obtain the fee in the lands by pay

policy holder for offices rented for the company

and rooms rented for himself. ing the deferred installments and obtaining

2. After a policy of insurance, containing a the railroad company to accept them and is- clause denying authority to agents to waive forsue a deed. He took the assignment June 8, feitures, had been by the company declared for1892. This gave him possession of the land,

feited for nonpayment of premiums, the intogether with the plaintiffs berein, at least

sured tendered the vice president and manager

the balance due on such premiums, which he until November 20, 1892, when the second in- refused, referring the insured to the agent who stallment became due. For all that appears,

issued the policy, stating that whatever the latthis is all that Gordon wanted. The consid.

ter might do would be accepted by the com

pany. The agent promised to "fix it up" in aceration which he paid for the assignment cordance with a contract between himself and may have been sufficient for this possession the insured, made when the policy was issued, for five months, and for no more. Nothing

whereby the permiums were to be offset by rents

due the insured from the agent. Held, that such appears to the contrary. There can be no

acts and statements by the company did not conimplication from these facts that Gordon stitute an affirmance of the contract as to rents, promised to pay the Northern Pacific Rail- nor a waiver of the forfeiture. road Company the deferred installments, and Appeal from district court, Lewis and there was no express promise on his part to Clarke county; H. R. Buck, Judge. do so, and no assumption of these payments. Action by James Sullivan against the Ger. Therefore, returning to the doctrine of the mania Life Insurance Company on a life in. case of Lloyd v. Board of Com’rs, as quoted surance policy. From a judgment for de above, we find the plaintiffs herein paid out | fendant, plaintiff appeals. Affirmed. money which they claimed was for the bene The defendant pleads that it conducted its fit of the defendant, Gordon. They wished insurance business in Montana in 1989, 1890, to recover this money from Gordon. But the and 1891, one Fred S. Doremus being the payment was not at the request of Gordon, manager in Montana. About November 20, express or implied. Nor did the plaintiff pay 1889, the plaintiff and defendant entered into the money to the railroad company under an an agreement by which the plaintiff insured obligation so to do, when the primary obliga- his life with defendant for $5,000. The policy tion was upon Gordon; for, as we have seen, was delivered November 30, 1889, and the there was no obligation on Gordon, primary premium for 1889, amounting to $263.15, was or otherwise, to pay the deferred ínstall- duly paid. The complaint alleges payment ments, or any part of them, to the railroad for the premium due November 30, 1890; and company. Therefore plaintiffs paid the one that of the premium due November 30, 1891, half of this November installment, in effect, plaintiff paid $111.85 before November 1, as far as Gordon was concerned, voluntarily. | 1891, and on November 6, 1891, offered and

Counsel for respondent argue that when an tendered to defendant the remainder of the estate is charged with a judgment, mortgage, premium due for 1891, to wit, $151.30; but lien, or other incumbrance, and one of the defendant refused to accept the same, and owners discharges such incumbrance, he is bas not given the plaintiff the receipt for the entitled to contribution from his co-owners. premium due and paid on November 30, Counsel cites authorities, which we have ex- 1890, but with holds the same, and refuses to

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