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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 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 predeces

V.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. 281. 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. 461; 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 when first presented, and have never been evidence, and the pleadings, and the princi- out of plaintiffs' possession, except when sent ples of law applicable thereto, we are of for collection to Helena. Plaintiffs, in disopinion that there was no unreasonable use counting the notes, knew nothing of the inof the streets by the city, and no substantial solvency of Jurgens & Price, the assignors. interference with any of the rights of plain- The note of May, 1885, had a payment intiff. A court of equity will not, therefore, dorsed thereon of $25, in 1890. Jurgens & interfere. The judgment of the district court Price made an assignment for the benefit of is reversed, and the cause remanded, with their creditors to S. E. Atkinson, June 7, direction to dissolve the injunction hereto. 1889. The notes were indorsed by Price, in fore granted.

the name of the firm, in August, 1891, in

Chicago, and were sold by Bennett Price to DE WITT, J., concurs.

R. P. Price, his brother, for $500. The notes were never delivered to the assignee, Atkin

son, in person, although they were in the (15 Mont. 544)

safe of Jurgens & Price just about the time MEADOWCRAFT et al. v. WALSH. of the assignment. Bennett Price testified (Supreme Court of Montana. April 1, 1895.)

for defendant that Casey, his attorney, he NOTE TO PARTNERSHIP-ASSIGNMENT_TITLE OF

thought, delivered these notes in suit to Dave TRANSFEkEE-STATUTE OF FRAUDS.

Price, a nephew of witness, to keep safely. 1. Tie maker of a note to a firm cannot The notes were in the safe of Jurgens & complain of its transfer by a member thereof

Price on the day of the assignment, and the after an assignment for benefit of creditors by the firm, though the proceeds are applied to the

safe was in charge of Dave Price, who had individual debts of such partner, where the been in the firm's employ, and who continother partner ratifies such acts.

ued in the assignee's service. The notes 2. The holder of a note is presumptively the owner, and is the real party in interest,

were in one drawer, where witness had bis with a right to sue thereon.

papers. Witness claimed that he always had 3. An assignment of a firm for benefit of had the notes in his possession, and that creditors does not affect a bona fide purchaser these notes were his individual property, and of a note from a member of the firm, which had never been in the possession of the assignee,

not the property of the firm of Jurgens & as required under Comp. St. div. 5, $ 226, Price. They were left with Dave Price for though such sale was not made until after the safe-keeping, and witness took them from assignment.

the safe himself on the evening of the asAppeal from district court, Lewis and signment. They may have been with other Clarke couaty; Horace R. Buck, Judge. notes that belonged to the firm. Witness

Action by Robert Meadowcraft and others had the keys and combination of the safe, against Lawrence Walsh upon promissory and did not deliver the keys to the assignee. notes. From an overruling of a motion for No entry was ever made on the books of a new trial, and a judgment in favor of plain- | Jurgens & Price concerning these notes. On tiffs, defendant appeals. Affirmed.

rebuttal, witness testified that he took these Action by plaintiffs to recover amounts due notes out of the safe of Jurgens & Price beon four promissory notes made by defend- fore the assignment was completed, considant. One note, for $110, and interest, was ering them his individual property, and demade and delivered May 1, 1885, to the firm livered them to his attorney that evening. of Jurgens & Price. To escape the statute The attorney delivered them to Dave Price of limitations, plaintiff's plead the payment for safe-keeping. J. H. Jurgens, called by on said note of $25, made December 8, 1890. the defendant, testified that what was found Another note, made February 8, 1888, was of the partnership effects and property after delivered to one Dennis Hayes, who trans- the execution of the assignment was turned ferred it to Jurgens & Price. The third and over to the assignee with the papers of the fourth notes sued on were delivered to Jur- assignment. There was no understanding gens & Price.

All the notes were indorsed that one partner was to bind the other after by Jurgens & Price, after maturity, in blank, that, and no formal notice of dissolution. before suit, and transferred to plaintiffs, who Witness knew but little of the Walsh notes. are the actual holders thereof. Defendant Hlad seen them. Did not know of the notes denied the transfer of the May, 1885, note, being turned over to the assignee, or where denied the indorsement thereon, and pleads they were. The firm notes were kept in the the statute of limitations as a bar to a re- safe. Dave Price, a nephew of Bennett, repcovery. He denied that any of the other resented the assignee after the assignment. notes were transferred by Jurgens & Price Had the keys to the safe, although there to plaintiffs before suit, or that plaintiffs were other keys. On cross-examination he ever owned the said notes. By replication testified that neither of them ever did any act plaintiffs denied the bar of limitations as to with the intention of dissolving the firm. the first note. Plaintiffs, bankers in Chicago, In response to questions by the court, Jurbecame the holders of the notes by discount. gens said: "I did not know of the transfer ing them for one R. P. Price, a brother of of these notes. I think I knew of these Bennett Price, of the firm of Jurgens & Price, notes being withheld from the assignee, and on August 26, 1891. They were discounted that Price had such papers. I have never received any benefit from the notes. The brought suit in trover to recover them from firm is not now in existence. Mr. Price had him. The appellant's authorities sustain this more in the firm than I had. I never ob- proposition. Cooper v. Perdue (Ind. Sup.) jected to Price assigning these notes. I was 16 N. E. 140; Burrows v. Keays, 37 Mich. perfectly willing he should. I first learned 430. But, as the case is presented, the asabout these notes when they were sent out signee never received the notes, and never here for collection. Walsh told me. That made demand upon either member of the was the first knowledge I had that Price had firm of Jurgens & Price for them. Ben transferred the notes. It might be that Price Price retained them in his possession until told me that he had transferred them, but I 1891, when they passed into the hands of paid no attention to it, because he and Walsh these plaintiffs as innocent purchasers for a had dealings together. I was perfectly sat- valuable consideration. Whether Price's conisfied with whatever Price did in the matter. duct in failing to deliver the notes to AtkinHe sacrificed some individual property by the son, assignee of the firm of Jurgens & Price, assignment." There was testimony on be- was intentionally wrong, is a close question, half of defendant denying his consent to the but, as its determination depended upon the credit of $25 on the May, 1885, note; and credibility of the witnesses, we cannot say evidence proving that the indorsement made that bad faith characterized his conduct. allowing said credit, and the indorsements The apparent acquiescence of the assignee on the said notes of the firm name of Jurgens in Price's claim to the notes for so long a & Price were all in violet ink, and that in time, and the fact that he has not interventhe lifetime of Casey, attorney for Price, ed in this suit, tend to prove that the as. violet ink was used in the office of Casey & signee neither asserted title to the notes Smith, attorneys; but Bennett Price denied

nor claimed any legal ownership of them. that the indorsements were made at the same These facts also tend to sustain the bona time, or that there was any wrongful act fides of Price. But appellant argues Ben done by him. Special issues were submitted Price could not transfer the notes, because, to the jury, wherein they found that the in- by virtue of the assignment of Jurgens & dorsement of $25 was made in obedience to Pr in 1889, the firm of Jurgens & Price the agreement between Walsh and Price; was dissolved. To support this contention that the notes in suit were not in the Jur- appellant cites several cases which hold that gens & Price safe at the time the assignee of a general assignment by a firm for the benJurgens & Price took possession thereof; that efit of creditors by itself works a dissoluthe notes were never in the possession of tion of the copartnership. Williston v. Camp, the assignee in person or by agent after the 9 Mont. 89, 22 Pac. 501, did not positively assignment. A general verdict was also ren- decide the point, but, as we construe the dered for plaintiffs. The defendant moved opinion of Justice De Wolfe in that case, the to set aside the verdict and findings and for court lean to the doctrine that an assigna new trial. This motion was overruled. ment by a firm does not necessarily dissolve Judgment was entered for plaintiffs.

De- the copartnership, but is only prima facie fendant appeals from the judgment and from evidence of a dissolution. A discussion of the order denying the motion for new trial. the question is unnecessary, however, in this

case, for we are of the opinion that whether Alex. C. Botkin and Theo. Shea, for appel

the firm was entirely dissolved or not is lant. Henry C. Smith, for respondents.

quite unimportant in view of the positive ev

idence of Jurgens, who, on the witness HUNT, J. (after stating the facts). An at- stand, ratified every act of Price, not only in tentive examination of the testimony in this indorsing the firm's name, but also in transrecord fails to satisfy us that the findings of ferring the notes, and applying their profact are against the weight of evidence. By ceeds in payment of Price's individual debts. the authority of this court they must there- Under such a state of facts the defendant fore stand as approved by the trial judge. herein cannot complain of the transfer of the The issue of the statute of limitations is at notes by Price, for he is amply protected once disposed of by the fact that on Decem

against any possible subsequent claim the ber 20, 1890, defendant was given a credit firm or Jurgens may have against him. of $25, with his consent, on the note of May, Cony v. Wheelock, 33 Me. 366; Bank v. Par. 1885. The assignment for the benefit of sons, 19 Minn. 289 (Gil. 246); Major v. creditors made by Jurgens & Price on June Hawkes, 12 Ill. 298; Bates, Partn. § 698; 7, 1889, included “*

promissory notes, Graves V. Merry, 6 Cow. 701. Defendant debts, choses in action, etc., belonging to finally contends that the notes became the said parties of the first part (Jurgens & property of the assignee by virtue of the asPrice), or either of them,

now due

signment. This is substantially a plea that or payable or to become payable." Under its plaintiffs are not the real parties in interest, provisions it was the duty of Price, as a but that the notes belong to, and are the member of the insolvent firm, to deliver to property of, the assignee. But, as against the assignee, for the benefit of creditors, the the defendant, the maker, the argument is notes involved in this action, and, failing to not tenable. The holders of the notes are do so, doubtless the assignee could have presumptively the owners, and their posses

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sion is presumptive evidence of their title, thorn, supra, is approved. And the decided until rebutted by the defendant. Whiteford weight of authority is that a note indorsed v. Burckmyer, 1 Gill. 127; Pom. Code Rem. merely for collection passes such title as § 128 et seq.; Palmer v. Bank, 78 Ill. 380; enables the indorsee to sue in his own name, Banking Co. v. Bailey, 18 La. Ann. 676; 2 as the real party in interest. Roberts ' y. Rand. Com. Paper, & 707; Daniel, Neg. Inst. Parrish, 17 Or. 583, 22 Pac. 136; Cummings $8 1191, 1192b; Story, Prom. Notes, $ 381. v. Cohn, 12 Mo. App. 585; Roberts v. Snow And until this presumption is overcome, (Neb.) 43 N. W. 241; Winterwrite v. Torplaintiffs are bona fide purchasers for value, rent (Mich.) 47 N. W. 359; Wilson v. Tolson, have a right to sue, and are the real par- 79 Ga. 137, 3 S. E. 900; Daniel, Neg. Inst. ties in interest. Klein v. Buckner, 30 La. 8 698d, and cases cited; Moore v. Hall, 48 Ann. 680; Robertson v. Dunn, 87 N. C. 191; Mich. 143, 11 N. W. 814; Cettle v. Cole, 20 Hesser v. Doran, 41 Iowa, 468; Herrick v. Iowa, 481; Freeman v. Falconer, 45 N. Y. Swomley, 56 Md. 439; McCann v. Lewis, 9 Super. Ct. 383; Maxw. Code Pl. $ 48. PlainCal. 246. We adopt the construction placed tiffs having bought the notes after maturity, upon section 4 of our Code of Civil Proce- they were, of course, transferred without dure by the court of appeals of New York in prejudice to any set-off or other defense erHays v. Hathorn, 74 N. Y. 486, where the isting at the time of or before notice of the question of who is the real “party in inter- assignment. But no such set-offs or defens. est," as applied to promissory notes, is ably es are claimed, other than that the plaintiffs discussed by Judge Hand. The action was are not the lawful holders of the notes, with on a promissory note made by Hathorn et a right to sue. Accordingly it is of no imal., payable to the order of defendant, and portance to defendant who own the notes, by him indorsed and transferred to plaintiff. provided he is not liable to a second suit The answer denied the transfer to plaintiff, founded on the same claim. As was said in or that he was the legal owner or holder Gage v. Kendall, 15 Wend. 640: “Why should thereof, or that he was the real party in in- the defendant give himself the trouble to interest. The court review the earlier New vestigate the plaintiff's title? He owes the York cases, and conclude as follows: "From money to some one." Woodbury v. Hinck. this glance at the cases it appears that it is ley, 3 Colo. App. 210, 32 Pac. 860; Rohrer v. ordinarily no defense to the party sued up- Turrill, 4 Minn. 407 (Gil. 309); Caldwell v. on commercial paper to show that the trans- Lawrence, 81 Ill. 161; 1 Pars. Notes & B. $ fer under which the plaintiff holds it is with- 262; Bliss, Code Pl. $ 51. It was decided in out consideration, or subject to equities be- Fultz v. Walters, 2 Mont. 165, that promistween him and his assignor, or colorable, sory notes are to be regarded themselves as and merely for the purpose of collection, or only personal chattels, collectible by and in to secure a debt contracted by an agent the name of the holders and owners thereof. without sufficient authority. It is sufficient The possession, therefore, of the notes into make the plaintiff the real party in inter- volved in this suit being in plaintiffs, who est, if he have the legal title, either by writ- became purchasers in good faith, subsequent ten transfer or delivery, whatever may be to the assignment of Jurgens & Price, by the equities between him and his assignor. section 226, div. 5, Comp. St., any assignBut to be entitled to sue he must now have ment of them as chattels, to be valid as the right of possession, and ordinarily be the against these plaintiffs, must have been aclegal owner. Such ownership may be as companied by the immediate delivery, and equitable trustee. It may have been acquir- | by an actual and continued change of posed without adequate consideration, but must session. The facts being that the notes nevbe sufficient to protect the defendant upon a er were delivered to the assignee, but did recovery against him from a subsequent ac- pass to the plaintiffs in good faith, and withtion by the assignor. As we understand the out knowledge of the assignment, plaintiff's scope of the offer in the present case, it are the real parties in interest. went to entirely disprove any ownership or Our conclusions are that defendant owes interest whatever, or even right to posses- the notes; that he is thoroughly protected sion as owner in the plaintiff. It should, against any further liability upon them, that therefore, have been admitted. It may be there is no merit in his defense, and that he true that the plaintiff, if this note had been must be held to his obligations. The judge delivered to him with the intent to transfer ment is affirmed. title, might have lawfully overwritten the blank indorsement with a transfer to him- DE WITT, J., concurs. self. 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

(16 Mont. 16) payee, and that he had title to it; but the

KEEFE v. DORELAND et al. defendants' offer was precisely to rebut this

(Supreme Court of Montana. April 8, 1895.) very presumption, and, for aught that we can know, the evidence under it would have

EJECTMENT-CONTRACT-PAROL EVIDENCE-JUDGdone so." In Lockwood v. Underwood. 16

1. A provision, in a bond for title to an nnHun, 592, the rule laid down in Hays v. Ha- divided interest in a mining claim, that the

MENT.

thie

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. Browpell 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 agreenient 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.

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