(58 Mont. 236) BANK OF COMMERCE, FORSYTH, v. UNITED STATES FIDELITY & GUARANTY CO. (No. 4115.) here, the complaint alleged that certain payments were made, and that a balance, principal and interest, still remained due upon the promissory notes sued upon, but there was no allegation that the plaintiff was the owner and holder. Each of the notes was (Supreme Court of Montana. July 6, 1920. made payable to "J. I. Case Threshing Machine Co. (Incorporated), or bearer." phasizing the rule announced in the former 1. Trial 177-Delivery of attached propercase, Mr. Justice Holloway uses this lanty to plaintiff, for court where both parties asked directed verdict. guage: Em "Assuming that the payee and plaintiff are the identical corporation, the complaint still fails to disclose that this action is prosecuted in the name of the real party in interest, as required by section 6477, Revised Codes. The complaint does not allege that the notes were made, executed, or delivered to the plaintiff, or that plaintiff is the owner or holder thereof, or that the amount due upon the indebtedness is due to the plaintiff. Section 6573, Rev. Codes. ✶ ✶ * A holder of a negotiable instrument may maintain an action for its collection (section 5899, Rev. Codes); but, to state a cause of action in favor of plaintiff, it was necessary to disclose some right in it by virtue of which it maintains the action and upon the faith of which defendant, by paying the judgment, may be fully discharged of his obligation and relieved of the annoyance of further litigation at the hands of some one else who may hereafter appear in possession of the notes." The allegation of the complaint here merely is "that the plaintiff is and has been during all the times hereinafter mentioned entitled to the immediate possession" of a stock of goods which the defendants seized and have wrongfully detained since the 2d day of March, 1914. This may be true in point of fact; but the substantial defect pointed out is neither aided by the pleadings of the opposite party nor was it remedied in the proof upon the trial. Whether the absence of that essential averment was due to oversight or design makes no difference. We should not be obliged to resort to far-fetched legal inferences to supply matters indispensable to the adjustment of a controversy between the parties to it. The defendants were entitled to be so confronted with the issue as to whether the plaintiff was the real party in interest or not that, if the question again became the subject of dispute between them, the judgment itself would be a complete answer thereto. In this case that requirement has not been met. The judgment is reversed. Rehearing Denied.) Where the court denied the motion of defendant, surety for a sheriff, to direct verdict for it on the ground there was no substantial issue of fact touching immediate delivery, followed by actual and continued change of possession, of property subjected to attachment after having been sold to plaintiff by defendant in attachment, but granted the motion of plaintiff and directed verdict for it, defendant not requesting the court to submit the issue to the jury, the question of fact involving the delivery of the property to the plaintiff and its continued retention by plaintiff was for the court. (Per Cooper and Matthews, JJ.) 2. Sheriffs and constables 127-Sheriff may be sued for wrongful seizure of property in any appropriate action. Sheriff, wrongfully seizing on attachment property of a stranger to the writ, may be sued therefor in any appropriate form of action, the aggrieved party may elect to pursue. (Per Cooper and Matthews, JJ.) 3. Appeal and error 1011(1)—Judgment on conflicting evidence will not be disturbed. ment of the lower court will not be disturbed Where the evidence is conflicting, the judgon appeal, unless manifestly the discretion of the court has been abused. (Per Cooper and Matthews, JJ.) 4. Appeal and error 977 (5)-Order overruling motion will not be disturbed, in absence of showing of abuse of discretion. Order of trial court, overruling motion for new trial, will not be disturbed, in the absence of a showing of abuse of discretion. (Per Cooper and Matthews, JJ.) 5. Appeal and error 1015(3)-Duty of trial court to say whether evidence justified verdict. It was the duty of the trial court on defendant's motion for new trial to say whether the evidence in weight justified the verdict. (Per Cooper and Matthews, JJ.) Brantly, C. J., and Hurly, J., dissenting. Appeal from District Court, Rosebud County; Charles L. Crum, Judge. Action by the Bank of Commerce, Forsyth, Mont., against the United States Fidelity & BRANTLY, C. J., and HOLLOWAY and Guaranty Company. From a judgment for MATTHEWS, JJ., concur. HURLY, J., deeming himself disqualified, takes no part in the foregoing decision. plaintiff, and an order denying its motion for new trial, defendant appeals. Judgment and order affirmed. Mont.) BANK OF COMMERCE v. UNITED STATES FIDELITY & GUARANTY CO. 159 (194 P.) Gunn, Rasch & Hall, of Helena, for appel- ['sumption of the office of sheriff; that he lant. was conversant with the transaction attendCollins, Campbell & Wood, of Forsyth, for ing the seizure of the property under attachrespondent. COOPER, J. The respondent bank, plaintiff below, recovered a judgment against appellant as surety upon the official bond of the sheriff of Rosebud county for the sum of $1,557.43, upon a cause of action growing out of the following state of facts: In November, 1913, one E. S. Haskell commenced an action against the firm of Woolston & Holland, a copartnership conducting a garage and automobile business in the town of Forsyth, in said county, to recover a balance of about $5,000 alleged to be due him from said firm for goods sold and delivered to them. On the same day a writ of attachment was issued out of the district court of that county, and by the sheriff thereof levied on property supposed to belong to the firm. The respondent bank filed and served upon the sheriff a third-party claim for the property so attached. On November 25th the plaintiff in the attachment suit delivered to the then sheriff (William E. Moses) a bond securing the sheriff in the retention of the attached property. In the following January the sheriff was killed, and John Van der Pauwert, who had theretofore, during the incumbency of said Moses, served as undersheriff, was on February 4th appointed and duly qualified as the successor of Moses On June 30th, and while the suit in attach ment was still pending, the respondent bank commenced an action in claim and delivery against Van der Pauwert alone. Failing to appear, in due course a default was taken against him, and a judgment rendered and entered, determining that the possession and ownership of the property was in the respondent bank at the time of the levy of the attachment upon the property in question, and that defendant therein was in possession thereof and wrongfully withholding the same from the plaintiff. The judgment also provided for a return of the property to the bank, or for its value in case delivery could not be had. On January 28, 1916, a writ of execution was issued in the claim and delivery action for the return of the property to the bank. Upon service of the writ on Van der Pauwert, he responded that he was unable to return any of the property. No return appears to have been made on the writ of execution. On February 18, 1916, this action was commenced against appellant on the official bond of Van der Pauwert for his neglect and refusal to return the property so attached, or its value in money. It appears in evidence that the defendant Van der Pauwert was acting as undersheriff for Moses during the time of the occurrences in question; that he had full knowledge of the business, both before and after his as ment proceedings at the suit of E. S. Haskell v. Woolston et al.; that while undersheriff he subjected some of the articles under attachment to his own personal use, and, as sheriff, took actual possession of it all, retained it during the pendency of all the proceedings now before us, and never did deliver the property to the plaintiff in response to its demand upon him. At the close of all the testimony both the plaintiff and defendant moved the court to direct a verdict in its favor, upon the ground that in the then state of the evidence there was no substantial issue of fact touching the immediate delivery, followed by an actual and continued change of possession, of the property subjected to attachment at the suit of Haskell v. Woolston et al. The court denied the motion of the defendant, granted the motion of plaintiff, and directed a verdict in plaintiff's favor. The defendant, after the ruling against it, did not request the court to submit that issue to the jury. [1] In this condition of the case, the question of fact involving the delivery of the property by Woolston to the plaintiff and the continued retention of it by plaintiff was for determination by the court, as held in the recent decision of this court in the case of Fifty Associates Co. v. Quigley, 56 Mont. 348, 185 Pac. 155. The district court having found that issue in favor of the plaintiff and rendered judgment in its favor, it is now left for us to say whether there was in the case below a substantial issue of fact upon which the judgment can legally rest. [2] The pleadings put in issue the possession and ownership of the property at the time of the attachment. If that issue is to stand determined in favor of plaintiff, the other questions discussed are so far subordinate to it as to require no consideration. Plainly the sheriff could not justify the seizure of the property of a stranger to the writ. Having wrongfully seized the property, he may be sued therefor in any appropriate form of action the bank, whose rights have been invaded, may elect to pursue. 2 Freeman on Executions, § 272, and authorities cited. [3, 4] Where the evidence is conflicting, the judgment of the lower court will not be disturbed on appeal. Mattock v. Goughnour, 13 Mont. 300, 34 Pac. 36; Welch v. Nichols, 41 Mont. 435, 110 Pac. 89. The trial court had the witnesses before it, heard the testimony, had an opportunity to observe their demeanor upon the stand, and, having found for the plaintiff upon what we deem a substantial conflict in the testimony, "its action thereon will not be disturbed, unless it is manifest that this discretion has been abused." Welch v. Nichols, supra. The district court again passed upon the sufficiency of the evidence are his creditors while he remains in poson the motion for a new trial, and its order session," etc. As we view it, the evidence overruling the motion will not be disturbed, shows that, at the time of the transfer to the in the absence of a showing of abuse of dis- bank, Woolston was the owner and in excretion. Ball v. Gussenhoven, 29 Mont. 321, clusive possession of the garage and its con74 Pac. 871; White v. Barling, 41 Mont. 138, tents; that Holland had then retired from 108 Pac. 654; Cohen v. Clark, 44 Mont. 151, the firm, having turned over his interest to 119 Pac. 775. In Chestnut v. Sales, 44 Mont. Woolston; that, when the transfer was com534, 121 Pac, 481, this language was used: pleted, the bank authorities arranged with "As the cause was decided for the plaintiff, Woolston to resume possession of the garage it must be presumed that he established those and its contents, and to continue the busifacts which the evidence on his part fairly ness under the name of Woolston & Co. for tended to prove, and that every disputed ques- the benefit of the bank; that he did so, and tion of fact was resolved in his favor." that no notice was given of this arrangement, either by Woolston or the bank, until after the attachment was levied. To a stranger, not cognizant of what had taken place, there was nothing to show any change of possession. In our opinion, this did not meet must not only have been accompanied by an the requirement that the sale, to be valid, immediate delivery, but also followed by an actual and continued change. of possession. [5] It was the duty of the trial court, upon defendant's motion for a new trial, to say whether the evidence in weight justified the verdict. Harrington v. City of Butte, 27 Mont. 1, 69 Pac. 102. Whether Woolston & Holland had in good faith sold the property before its sequestration by attachment, and accompanied the sale by an immediate delivery and continued change of possession, was the vital question before the court. This fact the district court determined in favor of the plaintiff. After a careful review of all the testimony, we are not prepared to differ with that court in its conclusion that the testimony was sufficient to establish that fact. (58 Mont. 617) EMERSON-BRANTINGHAM IMPLEMENT stated. Under Rev. Codes, § 4978, defining actual fraud, it must appear to make a case for relief on the ground of fraud that the party against whom the fraud is alleged made a representation of a material fact, with intent to induce the other party to act upon it, and that the latter believed and relied and acted uponit to his damage. "As between the parties to a sale of person-1. Fraud 3-Matters essential to relief al property, it is wholly immaterial whether there is any delivery of the thing sold. It is equally true that a mere creditor, as such, does not have any interest whatever in his debtor's property. If the Shackleton & Whiteway Construction Company had in good faith sold all this property to Farnham and others on June 26th, and had accompanied the sale by an immediate delivery, Parr could not complain, even though such sale might operate to defeat him in the collection of his debt." Western Min. Supply Co. v. Quinn, 40 Mont. 156, 105 Pac. 732, 28 L. R. A. (N. S.) 214, 135 Am. St. Rep. 612, 20 Ann. Cas. 173. The judgment and order appeal from are affirmed. Affirmed. MATTHEWS, J., concurs. HOLLOWAY, J., concurs in the result only. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Fraud. I 2. Fraud 10-Representation as to law not fraudulent. A representation or opinion expressed by one of the parties to the other as to the law relative to their respective rights in the matter, which is the subject of negotiations, is not a fraudulent misrepresentation. 3. Fraud 10-Misrepresentation as to law by one occupying relation of trust and confidence fraudulent. If a relation of trust and confidence exists between parties, a misrepresentation or opinion by the party in whom the trust and confidence is reposed as to what the law is, if made for the purpose of deceiving the other or gaining an unconscionable advantage over him, constitutes a ground for relief. BRANTLY, C. J., and HURLY, J. We do not concur in the result reached by our Associates. Section 6128 of the Revised Codes declares that every transfer of personal property, such as the one in question here, "is conclusively presumed, if made by a person having at the time the possession or control of the property, and not accompanied by an immediate delivery, and followed by other by misrepresenting it to him and knowing an actual and continued change of posses-him to be ignorant of it, takes advantage of sion of the things transferred, to be fraudu- him by reason of his ignorance, this is a mislent, and therefore void, against those who representation justifying relief. 4. Fraud 10-Misrepresentation as to law by one knowing other's ignorance fraudulent. If one who knows the law deceives the (194 P.) 5. Fraud 12-Statement of intention not erally true, and not a fraudulent representation. misrepresentation. fluence" stated. A statement merely as to what the party making it intends to do is not a misrepresen- II. Contracts 96-Elements of "undue intation, since it is not an affirmation of a fact, but only an assertion of a present mental condition or opinion. 6. Mortgages 78-Chattel mortgagee's representation that it would foreclose and take other property, unless given additional security, not representation of fact. A representation by a chattel mortgagee's representative to the mortgagor's executrix that if not given some security it would foreclose and take other property to pay any balance due was merely the statement of an intention, and not the affirmation of a fact, invalidating a mortgage given by the executrix, though the mortgagee's representative must have known that it could not entirely carry out such expressed intention. 7. Chattel mortgages 249-Mortgagee entitled to foreclose, though term has expired and mortgagor is dead. Though the term covered by a chattel mortgage had expired and the mortgagor was dead, the mortgagee had a right, as against the executrix, to foreclose under Rev. Codes, §§ 7525 and 7532. 8. Mortgages 78-Statement that chattel mortgagee would foreclose and take other property not fraudulent if expression of opinion as to legal rights. A statement by a chattel mortgagee's representative to the mortgagor's executrix that if not given security, the mortgagee would foreclose and take enough other property to pay any balance left due, if considered as an expression of an opinion as to the extent of the mortgagee's legal rights, was not fraudulent so as to invalidate a mortgage given by the executrix, where no fiduciary relationship existed, advantage was not taken of her ignorance of the law, and the representative went away avowedly to give her an opportunity to consider the proposition and consult an attor ney. 9. Mortgages 78-Statement by one attempting to obtain mortgage held mere expression of opinion as to defendant's business capacity. Under Rev. Codes, § 4981, defining undue influence, one party to the negotiations must occupy a superior position with reference to the other by reason of a real or apparent authority over him arising out of pre-existing relations, or assumed at the time because of the weakness of mind, or distress or necessities of the other, by reason of which he knowingly gains an unconscionable advantage. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Undue Influence.] 12. Contracts 99(1)-Presumed valid, and burden on party asserting undue influence to establish it. A contract fair on its face is presumed valid and the result of the voluntary act of both parties, and the burden is on him who seeks release from an obligation apparently voluntarily assumed to show by a preponderance of the evidence that it was induced by such predominating influence exerted over him as to preclude the presumption that he acted from free choice. 13. Contracts 99(1)—When confidential relation shown, burden of disproving undue influence is on party relying on contract. When antecedent confidential relations are shown so as to create a presumption of undue influence, the burden shifts to the adverse party to show that the negotiations resulting in the contract were conducted at arm's length, uninfluenced by the superior position held by him. 14. Mortgages 80-Not result of undue influence because obtained shortly after death of mortgagor's husband. Where a chattel mortgagee's representative and the mortgagor's executrix were strangers, and no fiduciary relationship existed, and the executrix was not affected by any weakness of mind or laboring under any pressing necessity, a mortgage, executed by her on her own property upon apparently due consideration, was not invalid for undue influence merely because it was given about two months after the death of her husband, when her grief had not entirely subsided. A statement by a chattel mortgagee's representative to the mortgagor's executrix in attempting to obtain real estate security that he could not see why defendant, who appeared to be capable of taking care of her own busi- 15. Mortgages ness, needed anybody's advice, was expression of his opinion as to her business capacity. a mere 25(2)-Forbearance held sufficient "consideration" for mortgage by executrix to secure debt of decedent. Under Rev. Codes, § 5001, defining consid 10.. Mortgages 78-Representation to exec-eration, where the widow and executrix of a utrix as to power of disposal made in securing mortgage held true. chattel mortgagor securing a debt which was overdue renewed the mortgage and gave her own notes and a mortgage on her own land as additional security, the forbearance accorded to her was sufficient consideration to sustain the mortgage. Under a will giving the testator's widow and executrix full power to sell and dispose of the property for any purpose without order of court, a representation by one obtaining a real estate mortgage from the executrix that she could dispose of the property as she pleased without intervention of any court was lit-eration.] [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Consid For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Appeal from District Court, Cascade Coun-[ she was not able to consult him; that the ty; J. B. Leslie, Judge. Action by the Emerson-Brantingham Implement Company against Nellie Anderson. Judgment for defendant, and plaintiff appeals. Remanded, with directions. McKenzie & McKenzie, of Great Falls, for appellant. Burton R. Cole and E. K. Cheadle, both of Lewistown, for respondent. BRANTLY, C. J. This action was brought on July 21, 1916, to foreclose a mortgage upon a lot situate in Great Falls, Cascade county, belonging to the defendant. The mortgage was given to secure the payment of two promissory notes executed by defendant to plaintiff on October 31, 1913, due and payable, respectively, on December 1, 1913, and November 1, 1914, with interest at 8 per cent. per annum, together with attorney's fees in case it should become necessary to bring action of foreclosure. Recovery is also sought for the sum of $15 expended by plaintiff for an abstract of title of the mortgaged property, which it is alleged is also secured by the mortgage. said agents did then and there represent to her that it was not necessary for her to consult an attorney; that they were men of large business affairs; that defendant was wholly unused to transacting business; that at that time she had been recently bereaved by the death of her husband; that she was in an overwrought, abnormal, and depressed condition of mind because of the death of her husband, and was unable to withstand the arguments and representations of the plaintiff's agents; that relying upon their false and fraudulent representations, and believing the same to be true, she yielded to their demands, and by reason of them made, executed, and delivered to the plaintiff the notes and mortgage; that defendant discovered the falsity of the representations so made to her, on or about December 27, 1913; that she thereupon, through her attorney, made demand upon the plaintiff for the return to her of the promissory notes and for the satisfaction of the mortgage; that the plaintiff wholly failed and refused to comply with her request; and that the defendant received no consideration or thing of value of any kind, nature, or character for the execution and delivery by her to the plaintiff of the notes and mortgage. The reply put in issue these allegations. The court found the facts to be as alleged in the counterclaim, and concluded that the notes and mortgage were void for the reasons: (1) That the defendant was induced to execute them by reason of the false and agents; (2) that the plaintiff's agents se cured the execution of them by means of undue influence exerted over the defendant;' and (3) that she, not theretofore being indebted to the plaintiff, received no consideration for them whatever. Accordingly it rendered judgment, directing the plaintiff to cancel the notes and to satisfy the mortgage of record. Plaintiff has appealed from the judgment, and presents the question whether the findings and decision are justified by the evidence. In her answer defendant seeks affirmative relief by way of counterclaim, demanding cancellation of the notes and mortgage on the ground that they were obtained by fraud, undue influence, and without consideration. The allegations of the answer, in so far as they are material, are substantially the following: That defendant is the widow of Stephen A. Douglas Anderson, deceased, who | fraudulent representations of plaintiff's in his lifetime was indebted to plaintiff; that she is the executrix of his will; that the estate is insolvent; that one Weston Houghton and one G. A. McFarlane, plaintiff's authorized agents and representatives, on or about October 31, 1913, demanded of defendant that she execute to plaintiff the notes described in the complaint and the mortgage to secure them, in settlement of the indebtedness of the deceased; that she was not personally liable for any of the debts of the deceased; that to induce her to execute the notes and mortgage, plaintiff's said agents falsely and fraudulently represented to her At the time of his death, on September 4, that she was personally liable for the in- 1917, Anderson was indebted to the plaintiff, debtedness due from the deceased to the evidenced by promissory notes, for the purplaintiff; that unless she should execute and chase price of a traction engine, to secure deliver the notes and mortgage the plaintiff which he had executed upon it to plaintiff a would enforce the payment of the indebted- chattel mortgage. This had been renewed ness against her, and would seize and sell her from time to time up to July 1, 1913. It had separate property to satisfy it; that these been overdue since that time. By his will, representations were each and all of them | Anderson bequeathed to defendant the resfalse and fraudulent, as plaintiff's agents idue of his estate after the debts had been well knew, and that they were made for the paid, and conferred upon her "full and unpurpose of defrauding defendant; that she limited power to sell, convey, transfer and endeavored to consult her attorney and as- dispose of any or all of the property certain whether the representations were for the purpose of paying my debts or for true; that on said day her attorney was ab- any other purpose at any time after my sent from bis office in Lewistown, Fergus death without obtaining an order of any court |