fendant says that the pole would have been sunk six feet in the ground but for the injunction, and, if it had been placed as contemplated, it would not have touched the plaintiff's building. The court made the injunction permanent, and in the order used the following words: It appearing

64 **

to the satisfaction of the said court that the said electric light pole referred to in said application is now situate and in process of erection and construction upon the premises of said plaintiff, and that, if the said pole be allowed to remain and be constructed and erected upon the said premises, it will endanger said premises and the passers-by," etc., "therefore, it is hereby ordered, adjudged, and decreed that you, the said defendants, are restrained and enjoined from erecting

* any pole or poles for the purpose of carrying or containing any wires or electric wires * * * for any other purpose whatsoever, or in any manner interfering with or endangering or damaging or injuring said property or business of said plaintiff, or of passers-by, and from obstructing or interfering with the free passage of the general public in and to or upon or about the said premises and property described in the said complaint, and belonging to the said plaintiff, or the sidewalk or entrances thereupon or surrounding the same."

Forbis & Forbis, for appellant.

HUNT, J. (after stating the facts). By the admission of plaintiff, lots 13 and 14 were included in the town site of Butte originally filed in the office of the county clerk and recorder of Deer Lodge county, Mont. It was also admitted that the town site was entered for patent, and patented to the probate judge of Deer Lodge county, Mont., in 1877, under provision of the act of congress entitled "An act for the relief of the inhabitants of cities and towns upon the public lands," approved March 2, 1867, and the acts of the legislative assembly of the territory of Montana, January 12, 1872, and July 22, 1879. It was further admitted that the town site was surveyed, and that the alley in question in this action, and lying east of the lots upon which were situated plaintiff's buildings, was embraced and included in the original plat of the town site, and that the said alley has always been used as a public alley, and that the plaintiff derived title of the lots through the probate judge under the patent of said town site, and according to the plat thereof. The fee in the alley was therefore originally in the United States. The United States granted it to the trustee of the town site. The trustee was required by law to see that a survey of the plat was made and filed in the proper office, showing the blocks, lots, streets, and alleys. The streets and alleys therefore became dedicated to the public use before the conveyance of the lots to plaintiff or his predecesv.39p.no.9-58

sors. Hershfield v. Telephone Co., 14 Mont. 102, 29 Pac. 883. The plaintiff, therefore, is not the owner in fee of the alley in which the defendant erected its poles. Nor can he complain in this action, if the city of Butte had the power to permit the defendant to erect electric light poles wherewith to light the city, unless by erecting such poles an additional or unusual servitude was imposed upon the easement granted by the city. But we think that a pole used for electric light purposes is within an urban servitude where it appears that the pole in question is intended to serve public interests. Rand. Em. Dom. § 401; Keasby, Electric Wires, § 91; McCormick v. District of Columbia, 54 Am. Rep. 284. In considering the use of streets where electric railroad poles are erected,and a use for electric light poles should be similarly regarded,-the courts sustain, generally, the principle recognized in Hershfield v. Telephone Co., supra, that "any use of a street which is limited to an exercise of the right of public passage, and which is confined to the mere use of the public easement, whether it be by old methods or new, and which does not tend in any substantial respect to destroy the street as a means of free passage, common to all the people, is perfectly legitimate." By such uses the rights of the abutting owners are not invaded. It is simply a user of a right already vested in the public. Halsey v. Railway Co., 47 N. J. Eq. 380, 20 Atl. 859; Gay v. Telegraph Co., 12 Mo. App. 485. We fail to see how a pole 12 or 15 inches in diameter, 20 feet distant from the doorway, can impede free ingress to the rear entrance of plaintiff's beer hall. The power to light the streets of the city of Butte has been delegated to the municipality by the legislature. Comp. St. Mont. p. 674. By ordinance of the city council the defendant was authorized to erect poles throughout the city, and only on one side of the street. Under the authority and permission of the city the defendant, therefore, properly erected, or was about to erect, the particular pole complained of, in the alley in the rear of plaintiff's lots. The testimony establishes the fact that there is no serious interference with the air or light to plaintiff's property, or access thereto. The use of the street for the contemplated purpose is in no wise repugnant to the general use to which streets of cities may be appropriately put in yielding to the necessities for the convenience and comfort of the inhabitants thereof. Tuttle v. Illuminating Co., 50 N. Y. Super. Ct. Rep. 464; Hershfield v. Telephone Co., supra. The pole was being erected at the most convenient and suitable place. It was necessary to the successful conduct of defendant's business in lighting the streets of the city. Considering all these facts, the plaintiff cannot complain. Johnson v. Electric Co. (Sup.) 7 N. Y. Supp. 716; Keasby, Electric Wires, § 89; Construction Co. v. Heffernan (Sup.) 12 N. Y. Supp.

336; Lewis, Em. Dom. § 130. From all the evidence, and the pleadings, and the principles of law applicable thereto, we are of opinion that there was no unreasonable use of the streets by the city, and no substantial interference with any of the rights of plaintiff. A court of equity will not, therefore, interfere. The judgment of the district court is reversed, and the cause remanded, with direction to dissolve the injunction heretofore granted.

DE WITT, J., concurs.

(15 Mont. 544)

MEADOWCRAFT et al. v. WALSH. (Supreme Court of Montana. April 1, 1895.) NOTE TO PARTNERSHIP-ASSIGNMENT-TITLE OF TRANSFEKEE-STATUTE OF Frauds.

1. The maker of a note to a firm cannot complain of its transfer by a member thereof after an assignment for benefit of creditors by the firm, though the proceeds are applied to the individual debts of such partner, where the other partner ratifies such acts.

2. The holder of a note is presumptively the owner, and is the real party in interest, with a right to sue thereon.

3. An assignment of a firm for benefit of creditors does not affect a bona fide purchaser of a note from a member of the firm, which had never been in the possession of the assignee, as required under Comp. St. div. 5, § 226, though such sale was not made until after the assignment.

Appeal from district court, Lewis and Clarke county; Horace R. Buck, Judge.

Action by Robert Meadowcraft and others against Lawrence Walsh upon promissory notes. From an overruling of a motion for a new trial, and a judgment in favor of plaintiffs, defendant appeals. Affirmed.

Action by plaintiffs to recover amounts due on four promissory notes made by defendant. One note, for $110, and interest, was made and delivered May 1, 1885, to the firm of Jurgens & Price. To escape the statute of limitations, plaintiffs plead the payment on said note of $25, made December 8, 1890. Another note, made February 8, 1888, was delivered to one Dennis Hayes, who transferred it to Jurgens & Price. The third and fourth notes sued on were delivered to Jurgens & Price. All the notes were indorsed by Jurgens & Price, after maturity, in blank, before suit, and transferred to plaintiffs, who are the actual holders thereof. Defendant denied the transfer of the May, 1885, note, denied the indorsement thereon, and pleads the statute of limitations as a bar to a recovery. He denied that any of the other notes were transferred by Jurgens & Price to plaintiffs before suit, or that plaintiffs ever owned the said notes. By replication plaintiffs denied the bar of limitations as to the first note. Plaintiffs, bankers in Chicago, became the holders of the notes by discounting them for one R. P. Price, a brother of Bennett Price, of the firm of Jurgens & Price, on August 26, 1891. They were discounted

when first presented, and have never been out of plaintiffs' possession, except when sent for collection to Helena. Plaintiffs, in discounting the notes, knew nothing of the insolvency of Jurgens & Price, the assignors. The note of May, 1885, had a payment indorsed thereon of $25, in 1890. Jurgens & Price made an assignment for the benefit of their creditors to S. E. Atkinson, June 7, 1889. The notes were indorsed by Price, in the name of the firm, in August, 1891, in Chicago, and were sold by Bennett Price to R. P. Price, his brother, for $500. The notes were never delivered to the assignee, Atkinson, in person, although they were in the safe of Jurgens & Price just about the time of the assignment. Bennett Price testified for defendant that Casey, his attorney, he thought, delivered these notes in suit to Dave Price, a nephew of witness, to keep safely. The notes were in the safe of Jurgens & Price on the day of the assignment, and the safe was in charge of Dave Price, who had been in the firm's employ, and who continued in the assignee's service. The notes were in one drawer, where witness had his papers. Witness claimed that he always had had the notes in his possession, and that these notes were his individual property, and not the property of the firm of Jurgens & Price. They were left with Dave Price for safe-keeping, and witness took them from the safe himself on the evening of the assignment. They may have been with other notes that belonged to the firm. Witness had the keys and combination of the safe, and did not deliver the keys to the assignee. No entry was ever made on the books of Jurgens & Price concerning these notes. On rebuttal, witness testified that he took these notes out of the safe of Jurgens & Price before the assignment was completed, considering them his individual property, and delivered them to his attorney that evening. The attorney delivered them to Dave Price for safe-keeping. J. H. Jurgens, called by the defendant, testified that what was found of the partnership effects and property after the execution of the assignment was turned over to the assignee with the papers of the assignment. There was no understanding that one partner was to bind the other after that, and no formal notice of dissolution. Witness knew but little of the Walsh notes. Had seen them. Did not know of the notes being turned over to the assignee, or where they were. The firm notes were kept in the safe. Dave Price, a nephew of Bennett, represented the assignee after the assignment. Had the keys to the safe, although there were other keys. On cross-examination he testified that neither of them ever did any act with the intention of dissolving the firm. In response to questions by the court, Jurgens said: "I did not know of the transfer of these notes. I think I knew of these notes being withheld from the assignee, and that Price had such papers. I have never

received any benefit from the notes. The firm is not now in existence. Mr. Price had more in the firm than I had. I never objected to Price assigning these notes. I was perfectly willing he should. I first learned about these notes when they were sent out here for collection. Walsh told me. That was the first knowledge I had that Price had transferred the notes. It might be that Price told me that he had transferred them, but I paid no attention to it, because he and Walsh had dealings together. I was perfectly satisfied with whatever Price did in the matter. He sacrificed some individual property by the assignment." There was testimony on behalf of defendant denying his consent to the credit of $25 on the May, 1885, note; and evidence proving that the indorsement made allowing said credit, and the indorsements on the said notes of the firm name of Jurgens & Price were all in violet ink, and that in the lifetime of Casey, attorney for Price, violet ink was used in the office of Casey & Smith, attorneys; but Bennett Price denied that the indorsements were made at the same time, or that there was any wrongful act done by him. Special issues were submitted to the jury, wherein they found that the indorsement of $25 was made in obedience to the agreement between Walsh and Price; that the notes in suit were not in the Jurgens & Price safe at the time the assignee of Jurgens & Price took possession thereof; that the notes were never in the possession of the assignee in person or by agent after the assignment. A general verdict was also rendered for plaintiffs. The defendant moved to set aside the verdict and findings and for a new trial. This motion was overruled. Judgment was entered for plaintiffs. Defendant appeals from the judgment and from the order denying the motion for new trial.

Alex. C. Botkin and Theo. Shea, for appellant. Henry C. Smith, for respondents.

HUNT, J. (after stating the facts). An attentive examination of the testimony in thiş record fails to satisfy us that the findings of fact are against the weight of evidence. By the authority of this court they must therefore stand as approved by the trial judge. The issue of the statute of limitations is at once disposed of by the fact that on December 20, 1890, defendant was given a credit of $25, with his consent, on the note of May, 1885. The assignment for the benefit of creditors made by Jurgens & Price on June

7, 1889, included "* * promissory notes,

* *

debts, choses in action, etc., belonging to said parties of the first part (Jurgens & Price), or either of them, now due or payable or to become payable." Under its provisions it was the duty of Price, as a member of the insolvent firm, to deliver to the assignee, for the benefit of creditors, the notes involved in this action, and, failing to do so, doubtless the assignee could have

brought suit in trover to recover them from him. The appellant's authorities sustain this proposition. Cooper v. Perdue (Ind. Sup.) 16 N. E. 140; Burrows v. Keays, 37 Mich. 430. But, as the case is presented, the assignee never received the notes, and never made demand upon either member of the firm of Jurgens & Price for them. Ben Price retained them in his possession until 1891, when they passed into the hands of these plaintiffs as innocent purchasers for a valuable consideration. Whether Price's conduct in failing to deliver the notes to Atkinson, assignee of the firm of Jurgens & Price, was intentionally wrong, is a close question, but, as its determination depended upon the credibility of the witnesses, we cannot say that bad faith characterized his conduct. The apparent acquiescence of the assignee in Price's claim to the notes for so long a time, and the fact that he has not intervened in this suit, tend to prove that the assignee neither asserted title to the notes nor claimed any legal ownership of them. These facts also tend to sustain the bona fides of Price. But appellant argues Ben Price could not transfer the notes, because, by virtue of the assignment of Jurgens & Price in 1889, the firm of Jurgens & Price was dissolved. To support this contention appellant cites several cases which hold that a general assignment by a firm for the benefit of creditors by itself works a dissolution of the copartnership. Williston v. Camp, 9 Mont. 89, 22 Pac. 501, did not positively decide the point, but, as we construe the opinion of Justice De Wolfe in that case, the court lean to the doctrine that an assignment by a firm does not necessarily dissolve the copartnership, but is only prima facie evidence of a dissolution. A discussion of the question is unnecessary, however, in this case, for we are of the opinion that whether the firm was entirely dissolved or not is quite unimportant in view of the positive evidence of Jurgens, who, on the witness stand, ratified every act of Price, not only in indorsing the firm's name, but also in transferring the notes, and applying their proceeds in payment of Price's individual debts. Under such a state of facts the defendant herein cannot complain of the transfer of the notes by Price, for he is amply protected against any possible subsequent claim the firm or Jurgens may have against him. Cony v. Wheelock, 33 Me. 366; Bank v. Parsons, 19 Minn. 289 (Gil. 246); Major v. Hawkes, 12 Ill. 298; Bates, Partn. § 698; Graves v. Merry, 6 Cow. 701. Defendant finally contends that the notes became the property of the assignee by virtue of the assignment. This is substantially a plea that plaintiffs are not the real parties in interest, but that the notes belong to, and are the property of, the assignee. But, as against the defendant, the maker, the argument is not tenable. The holders of the notes are presumptively the owners, and their posses

ston is presumptive evidence of their title, until rebutted by the defendant. Whiteford v. Burckmyer, 1 Gill. 127; Pom. Code Rem. § 128 et seq.; Palmer v. Bank, 78 III. 380; Banking Co. v. Bailey, 18 La. Ann. 676; 2 Rand. Com. Paper, § 707; Daniel, Neg. Inst. §§ 1191, 1192b; Story, Prom. Notes, § 381. And until this presumption is overcome, plaintiffs are bona fide purchasers for value, have a right to sue, and are the real parties in interest. Klein v. Buckner, 30 La. Ann. 680; Robertson v. Dunn, 87 N. C. 191; Hesser v. Doran, 41 Iowa, 468; Herrick v. Swomley, 56 Md. 439; McCann v. Lewis, 9 Cal. 246. We adopt the construction placed upon section 4 of our Code of Civil Procedure by the court of appeals of New York in Hays v. Hathorn, 74 N. Y. 486, where the question of who is the real "party in interest," as applied to promissory notes, is ably discussed by Judge Hand. The action was on a promissory note made by Hathorn et al., payable to the order of defendant, and by him indorsed and transferred to plaintiff. The answer denied the transfer to plaintiff, or that he was the legal owner or holder thereof, or that he was the real party in interest. The court review the earlier New York cases, and conclude as follows: "From this glance at the cases it appears that it is ordinarily no defense to the party sued upon commercial paper to show that the transfer under which the plaintiff holds it is without consideration, or subject to equities between him and his assignor, or colorable, and merely for the purpose of collection, or to secure a debt contracted by an agent without sufficient authority. It is sufficient to make the plaintiff the real party in interest, if he have the legal title, either by written transfer or delivery, whatever may be the equities between him and his assignor. But to be entitled to sue he must now have the right of possession, and ordinarily be the legal owner. Such ownership may be as equitable trustee. It may have been acquired without adequate consideration, but must be sufficient to protect the defendant upon a recovery against him from a subsequent action by the assignor. As we understand the scope of the offer in the present case, it went to entirely disprove any ownership or interest whatever, or even right to possession as owner in the plaintiff. It should, therefore, have been admitted. It may be true that the plaintiff, if this note had been delivered to him with the intent to transfer title, might have lawfully overwritten the blank indorsement with a transfer to himself. It is also true that the production of the paper by him was prima facie evidence that it had been delivered to him by the payee, and that he had title to it; but the defendants' offer was precisely to rebut this very presumption, and, for aught that we can know, the evidence under it would have done so." In Lockwood v. Underwood, 16 Hun, 592, the rule laid down in Hays v. Ha

thorn, supra, is approved. And the decided weight of authority is that a note indorsed merely for collection passes such title as enables the indorsee to sue in his own name, as the real party in interest. Roberts v. Parrish, 17 Or. 583, 22 Pac. 136; Cummings v. Cohn, 12 Mo. App. 585; Roberts v. Snow (Neb.) 43 N. W. 241; Winterwrite v. Torrent (Mich.) 47 N. W. 359; Wilson v. Tolson, 79 Ga. 137, 3 S. E. 900; Daniel, Neg. Inst. § 698d, and cases cited; Moore v. Hall, 48 Mich. 143, 11 N. W. 844; Cottle v. Cole, 20 Iowa, 481; Freeman v. Falconer, 45 N. Y. Super. Ct. 383; Maxw. Code Pl. § 48. Plaintiffs having bought the notes after maturity, they were, of course, transferred without prejudice to any set-off or other defense existing at the time of or before notice of the assignment. But no such set-offs or defenses are claimed, other than that the plaintiffs are not the lawful holders of the notes, with a right to sue. Accordingly it is of no importance to defendant who own the notes, provided he is not liable to a second suit founded on the same claim. As was said in Gage v. Kendall, 15 Wend. 640: "Why should the defendant give himself the trouble to investigate the plaintiff's title? He owes the money to some one." Woodbury v. Hinckley, 3 Colo. App. 210, 32 Pac. 860; Rohrer v. Turrill, 4 Minn. 407 (Gil. 309); Caldwell v. Lawrence, 84 Ill. 161; 1 Pars. Notes & B. § 262; Bliss, Code Pl. § 51. It was decided in Fultz v. Walters, 2 Mont. 165, that promissory notes are to be regarded themselves as only personal chattels, collectible by and in the name of the holders and owners thereof. The possession, therefore, of the notes involved in this suit being in plaintiffs, who became purchasers in good faith, subsequent to the assignment of Jurgens & Price, by section 226, div. 5, Comp. St., any assignment of them as chattels, to be valid as against these plaintiffs, must have been accompanied by the immediate delivery, and by an actual and continued change of possession. The facts being that the notes never were delivered to the assignee, but did pass to the plaintiffs in good faith, and without knowledge of the assignment, plaintiffs are the real parties in interest.

Our conclusions are that defendant owes the notes; that he is thoroughly protected against any further liability upon them, that there is no merit in his defense, and that he must be held to his obligations. The judgment is affirmed.

DE WITT, J., concurs.

(16 Mont. 16)

KEEFE v. DORELAND et al. (Supreme Court of Montana. April 8, 1895.) EJECTMENT-CONTRACT-PAROL EVIDENCE-JUDG

MENT.

1. A provision, in a bond for title to an undivided interest in a mining claim, that the

vendees are to pay the vendor one-sixth of the net proceeds of all shipments of ore, to be applied on the agreed price, is unambiguous; and parol evidence is inadmissible to prove that, according to a custom of miners, the expenses of mining as well as of shipping the ore should be deducted before such payments.

2. In ejectment to recover an undivided interest in a mining claim, a judgment in favor of plaintiff for the possession of the whole claim is

erroneous.

Appeal from district court, Deer Lodge county; D. M. Durfee, Judge.

Ejectment by James B. Keefe against G. W. Doreland and others to recover possession of a mining claim. From a judgment for plaintiff for the possession, and damages for the wrongful withholding thereof, defendants appeal. Affirmed and modified.

This is an action of ejectment brought to recover possession of the George mining claim, in Deer Lodge county, and for damages for rents and the wrongful withholding of the possession thereof. The answer denies the allegations of the complaint, except that it admits the plaintiff to be the owner of the undivided one-third of the mining claim in controversy, as a tenant in common therein with one G. W. Brownell and one Charles Jaeckel. In the answer it is alleged, as an affirmative defense, that on the 13th day of October, 1890, plaintiff executed and delivered to defendants G. W., E. A., and J. F. Doreland, and W. M. Foley, his agreement in writing for the sale to them of his undivided interest in the said mining claim, under which agreement said defendants were to enter upon and occupy said mining claim until the 13th day of October, 1892, upon which last date they were to become the owners of plaintiff's said interest therein, provided they complied with the conditions of purchase therein named; that said defendants entered upon said mining claim under and in pursuance of the terms of said agreement; that on the 13th day of April, 1891, defendants J. F. Doreland and Foley sold and assigned their interest in said agreement to defendant D. C. Fisher; that on the 4th day of August, 1891, defendant G. W. Doreland assigned his interest in said agreement to defendant J. C. English; and that since these transfers defendants English and Fisher have been in possession of said interest in said mining claim. And it is further alleged in said answer that on the 13th day of October, 1890, defendant G. W. Doreland entered into a like agreement with Charles Jaeckel, one of the co-owners of plaintiff in said mining claim, for the purchase of his undivided one-third interest therein; that said Doreland took possession of the onethird interest of said Jaeckel in said mining claim, under said agreement with him; that on the 22d day of September, 1891, said Doreland assigned an interest in his said agreement with Jaeckel to defendant J. C. English, and since said date said defendants Doreland and English have been in possession of the interest of said Jaeckel in said

mining claim, under said agreement with him. A copy of the agreement entered into between plaintiff and Doreland and others is attached to the answer, as a part thereof. This agreement is a bond for title to the undivided one-third interest of the plaintiff in and to said George mining claim, upon condition that the obligees pay to plaintiff $20,000 on or before the 13th day of October, 1892. It also authorizes the obligees to enter upon and take possession of plaintiff's one-third interest in said mining claim, and hold and mine the same until the 13th day of October, 1892, upon certain conditions, among which it is only necessary to mention the following: "All shipments of ore from said mine shall be made in the names of the parties hereto, and all remittances for such ore, made by the person, persons, or company to whom such shipments are made, shall be made to the First National Bank of Anaconda, Montana, to be placed to the credit of the parties hereto, and one-sixth of the net proceeds of all such shipments of ore to be paid by said bank on demand to the said first party, and to be applied by said first party upon the price, $20,000, agreed by said second parties to be paid for said mine as aforesaid, in the event of the purchase of the same by said second parties; and, should said second parties fail to pay said sum of $20,000 at the time and in the manner aforesaid, then such one-sixth interest of the net proceeds of such shipments to remain the property of the said first party, as consideration of the bond and lease. Should said second party make failure or default in any of the covenants contained herein, then said first party may, at his option, demand possession of said premises, and may enter thereon and remove said second parties, or any person or persons under them, from such premises, without suit or process of law, and resume possession thereof." In his 'replication, plaintiff alleges that the defendants wholly failed to comply with the above conditions of said agreement; that they have taken out ore of great value from said mine, and have failed to pay to him the one-sixth of the net proceeds of each shipment thereof; that they have converted the amount due plaintiff to their own use; that they refuse to pay the same; that by reason thereof the right of defendants to the possession of said mining claim has become forfeited; that plaintiff has demanded that the possession of said mining claim be delivered to him by said defendants; and that said defendants have refused to deliver the possession thereof to plaintiff. The case was tried with a jury. The verdict was for the plaintiff, for possession of the premises and $900 damages. The judgment of the court is in accordance with the verdict. From this judgment, and an order denying a new trial, this appeal is prosecuted.

Brazelton & Scharnikow, for appellants. F. W. Cole, for respondent.