considered pertinent. These supposed errors of law appear far more technical than substantial, and would under no circumstances warrant a reversal.

The most of the argument of appellant's counsel questions the correctness of the finding of certain facts. We think the court fortunate in being able to arrive at any conclusion on many of the questions. Admitting

the honesty of the parties, the evidence shows such loose business habits, and sloven. ly and incompetent bookkeeping, that, taken in connection with contradictions in regard to facts, it would seem almost impossible to arrive at any result, except as a guess. The judgment will be affirmed. Affirmed.

(17 Mont. 575)

WIGGIN v. FINE.

(Supreme Court of Montana. March 9, 1896.) PARTNERSHIP-EVIDENCE-ACCOUNTING-WAIVER OF OBJECTIONS.

1. A statement to plaintiff, by one not a party to the suit, that he was not a partner of the parties, is incompetent to bind defendant, who was not present when the statement was made.

2. A party who negligently fails to attend a referee's hearing on a partnership accounting cannot thereafter dispute the correctness of the items of account.

Appeal from district court, Silver Bow county; J. J. McHatton, Judge.

Action by John Y. Wiggin against B. J. Fine for an accounting and dissolution of partnership. From a judgment for plaintiff, defendant appeals. Reversed.

The principal relief sought in the action was an accounting and dissolution of a partnership alleged to have existed between plaintiff and B. J. Fine, defendant, for the purpose of working, leasing, and bonding the Shonbar and Mary Ann mining claims. Plaintiff alleged that, since the commencement of the partnership, defendant had, from time to time, applied to his own use, from the receipts and profits of the said partnership mines, large sums of money, greatly exceeding the proportions thereof to which he was justly entitled, to wit, about $8,000. The defendant admitted a partnership in the Shonbar and Mary Ann mining enterprises, but denied that he had applied to his own use any moneys in excess of what he was entitled to. He further averred that there was a partnership existing, not alone between plaintiff and himself, but between plaintiff and defendant and one Pankey, Lowrey, and Hamilton, in the Shonbar mining claim enterprise, for the organization of a company and the division of the capital stock therein, and that said parties not defendants are necessary parties to the suit. Defendant pleads his willingness to account to all members of such partnership, and that he had accounted to plaintiff. He also pleads that, by various items set forth, the plaintiff owes the partnership. In relation to the Mary Ann claim, defendant says that the agreement with plaintiff

was that defendant should be entitled to one-half of all the profits arising from the exploitation of said claim and the lease thereof, but was not to be liable for any of the expenses connected with the same, or the working thereof. Defendant prayed for an accounting and dissolution. The replication denies all the new matter in the answer. The case was tried to the court without a jury. The court found the issues for the plaintiff, and made special findings to the ef fect that plaintiff and defendant were partners, and that Hamilton, Lowrey, and Pankey were not partners in any mining operations between plaintiff and defendant. An accounting was ordered taken by the court. To take this accounting, Charles R. Leonard, Esq., was appointed referee. The record shows that, by agreement of the parties to the suit, the hearing before the referee was set for December 14, 1892. On that day the hearing proceeded, in the absence of the appellant. At the request of the appellant's attorneys, the hearing was postponed from time to time in order to give defendant time in which to come to Butte from Virginia City. On December 26th the defendant was not present, whereupon, without objection from the defendant or his counsel, the referee closed the case. No excuse was then made for the absence of the defendant, other than the exhibition of a telegram to the effect that he could not be in Butte on that day. The defendant did not appear before the referee at any time, although he was in Virginia City, and was fully aware of the fact that his suit was going on. The referee filed his report, to the effect that there was due from the defendant to plaintiff $5,017.40, and that the plaintiff was entitled to an interest in certain promissory notes. The court adopted the report of the referee, and judgment was entered. The defendant moved for a new trial. One ground of his motion was that the account rendered by the plaintiff, and so found by the referee, was false in a number of important items, amounting to several thousand dollars. Another ground of

motion for a new trial was error of law committed upon the trial of the case. The court made an order that, unless plaintiff consented to a deduction of $1,990.20 from the judgment, the motion for a new trial should be granted. The plaintiff thereafter consented to this deduction, and the judgment was modified accordingly. The motion for a new trial was then overruled. Defendant appeals.

Wm. Scallon and F. T. McBride, for appellant. Forbis & Forbis, for respondent.

HUNT, J. (after. stating the facts). The ruling of the district court in admitting certain evidence upon the trial before that court, and to which exception was duly taken, brings up the main point for determination. The plaintiff offered evidence to prove the partnership alleged between himself and

the defendant in the Mary Ann and the Shonbar mining ventures. On cross-examination, plaintiff was asked concerning an interest that Hamilton and Lowrey, who were alleged by defendant to be partners in the Shonbar, had in the Shonbar lease, and in the stock of a mining corporation to be formed with the Shonbar claim, as the property of the corporation, and if he (plaintiff) did not know that, for a loan of $2,000 made by Hamilton and Lowrey to Fine, the said Hamilton and Lowrey were to be given stock in the Shonbar corporation, out of the interests of both plaintiff and defendant. Thereafter, on redirect examination, the plaintiff said he had conversed with Hamilton with reference to his being interested in the matter of the Shonbar claim and corporation. Counsel for plaintiff then asked what Hamilton said about it. Defendant's counsel objected to the question as immaterial and irrelevant; also, as calling for hearsay. The plaintiff was allowed to answer, and an exception was saved. The answer of the witness stated, substantially, that Hamilton had told him that he (Hamilton) and Lowrey had loaned Mr. Fine $2,000, and he had deeded them an interest in the lease and bond, and had promised them some stock in the company, if it went through; that he expected no money, but understood it was between Fine and plaintiff; that plaintiff and defendant were to have any money to come, but that Fine agreed to give him (Hamilton) some stock for loaning the money, and was to pay him back the $2,000. The defendant's evidence tended to prove, in part, that at one time the plaintiff had assigned his entire interest in the Shonbar bond to the defendant, and that $1,000 had been paid by the purchasers to the plaintiff on account of the sale, which was for $2,500; that thereafter the purchasers failed to make the further payments, and an incorporation was talked of between plaintiff and defendant; that in November it was necessary to meet the unexpected expenses of the mine, whereupon the defendant went to Hamilton and Lowrey, who, he alleges, were partners, and they loaned to the defendant $2,000, and that, by way of appreciation of the assistance of Hamilton and Lowrey, defendant gave them one-sixteenth interest out of his interest in the Shonbar and Mary Ann; that at that time the entire title of the Shonbar was in the defendant, the plaintiff having assigned his interest in the Shonbar to the defendant at the time of the supposed purchase, some time before; that thereafter incorporation of the Shonbar was talked of, and it was understood and agreed between Hamilton and Lowrey and defendant-and this agreement was known to plaintiff, and assented to by him-that the interest of Hamilton and Lowrey would remain just the same in the organized company as it appeared in the bond and lease, and that said Hamilton and Lowrey should have a one-six

teenth of the entire stock in the incorporated company. By the pleadings and the evidence, the question, therefore, of the existence of any partnership relation between plaintiff and defendant and Hamilton and Lowrey in the Shonbar, became a material issue. Upon its correct determination necessarily depended the amount of any share of money due by any one partner to his fellow partners, but especially any amount that might be due from this defendant to plaintiff in the accounting ordered before the referee. But, to establish defendant's liability, it was error to permit Hamilton's declarations made to plaintiff without the hearing of the defendant, to the effect that he did not claim to be a partner. Such declarations, when made by one not a party to the suit, and offered to disprove the alleged fact of a partnership, are inadmissible to bind the defendant or disprove the existence of the partnership alleged. Teller v. Patten, 20 How. 125; Lindl. Partn. 86; Flournoy v. Williams, 68 Ga. 707; Converse v. Shambaugh, 4 Neb. 376; Sankey v. Iron Works, 44 Ga. 229; Brown v. Rains, 53 Iowa, S1, 4 N. W. 867; 2 Greenl. Ev. § 484. For this error the case must be remanded. Pankey, who, it is alleged, was one of the partners, testified. The court found he was not a partner. Upon Pankey's rights in the accounting, no further order need be made, as we accept the finding excluding him from the partnership.

As the testimony of the declarations of Hamilton clearly went to the matter of the Shonbar incorporation only, and not to the Mary Ann accounts, no new trial need be had concerning the latter branch of the case. It is likewise unnecessary to order a reexamination of the various items which enter into the Shonbar account between Wiggin and Fine. Fine had full opportunity to dispute their correctness, but negligently omitted to be present at the referee's hearing. He makes no sufficient showing to reopen the accounts themselves. The only question left to be retried is, were Hamilton and Lowrey partners with Wiggin and Fine in the Shonbar venture, and, if so, what interest had they? If not, the judgment of the court will remain. If they were partners, then let such deductions be made in the amounts found due by Fine to Wiggin as will reduce the amount of Wiggin's judg ment to his actual interest in the firm, with relation to all partners. It appears that the referee reported Fine as indebted to Wiggin in the sum of $1,481.59 on the Mary Ann account. This amount was afterwards corrected by the court's finding that Wiggin omitted to include in the Mary Ann account $3,980.40 received by him from two sources. The plaintiff accepted this correction. Fine is therefore entitled to an application of this Mary Ann credit on the Shonbar matter, without regard to the rights of others, as it is found, without error, that there were no

partners besides Wiggin and Fine in the Mary Ann. The judgment is reversed, and the cause is remanded, with directions to grant a new trial upon the issue of partnership in the Shonbar matter, and thereafter to proceed in accordance with the views herein expressed; costs of this appeal to be taxed to respondent. Reversed.

PEMBERTON, C. J., and DE WITT, J.,

concur.

(17 Mont. 581)

GETTINGS v. BUCHANAN. (Supreme Court of Montana. March 9, 1896.) AMENDED COMPLAINT-ELECTION TO ANSWER DEFAULT.

Where plaintiff amended his complaint after answer filed, and it appeared from the court journal that defendant, being represented by counsel, was, in open court, granted certain time in which to plead to said complaint, having failed to do so within the time allowed, he cannot assert that the original answer was a sufficient answer to the amended complaint, so as to prevent a default.

Appeal from district court, Deer Lodge county; Theodore Brantley, Judge.

Action by J. H. Gettings against J. F. Buchanan. From a judgment rendered against him by default, defendant appeals. Affirmed.

W. H. Trippet, Ed. Scharnikow, and T. O'Leary, for appellant. Geo. B. Winston and Rodgers & Rodgers, for respondent.

DE WITT, J. The defendant appeals from a judgment entered against him by default, and also from an order of the district court refusing to open the default. The first ground set up for opening the default was alleged inadvertence and excusable neglect. This point was not urged with much force by the appellant, and we will state, without reviewing the facts, that it is our opinion that there was no abuse of discretion in this respect by the district court.

Another point which the appellant urges with much zeal is as follows: A complaint and answer in the case being on file, the plaintiff, on the 2d of April, 1894, amended the complaint, and on that day served a copy of the same, as amended, upon defendant's attorneys. Afterwards, on the 9th of April, proceedings took place, as set out in the record, as follows: "That afterwards, on the 9th day of Apr., 1894, there took place in said action the following proceedings by said court, as copied from the journal of said court, T. O'Leary, Esq., of counsel for defendant, being present in open court, and participating in said proceedings, to wit [title of court and cause]: 'Defendant granted 15 days from this day to plead to amended complaint here....'” Defendant did not plead to the amended complaint, and, after the 15 days had expired, plaintiff took default, and entered judgment. Defendant moved to set aside the default, and be allowed to file an

answer to the amended complaint. Appellant's contention now is that the answer to the original complaint was a sufficient answer to the amended complaint, and that its allegations formed an issue, and therefore he was not in default. On the point that the original answer should stand as against an amended complaint and prevent a default, he cites the following cases: Stevens v. Thompson, 5 Kan. 307-311; Yates v. French, 25 Wis. 661; Power v. Ivie, 7 Leigh, 147; Butler v. Thompson, 2 Fla. 9-16; Robinson v. Williamson, 7 Bush, 604; Cohen v. Hamill, 8 Kan. 621; Knips v. Stefan, 50 Wis. 286, 6 N. W. 877; Kelly v. Bliss, 54 Wis. 187, 11 N. W. 488; Bank v. Fairbank, 54 Ill. App. 296; Bank v. Umrath, 55 Mo. App. 43; McAllister v. Ball, 28 Ill. 210; Machine Co. v. Redfield, 18 Kan. 555. We have examined these cases, and find that in their facts they are divisible, perhaps, into three classes: (1) Where the parties went to trial on the old answer; (2) where the defendant elected to stand on the old answer; (3) where it did not appear that the defendant had elected to file a new answer. It is to be observed, however, that in this case the defendant was not in the position set forth in either of the above classifications. On the contrary, he himself elected to file a new answer. As appears from the record, after a portion of the time had run in which he could answer, 15 days were granted him in which to plead to the amended complaint, and he participated in this proceeding of the court. That he elected to file a new answer is further manifested by his motion to open the default, upon which motion he asked to be allowed to file an answer to the amended complaint, and not to be allowed to stand upon his old answer. We are therefore of opinion that the facts in this case distinguish it from those relied upon by the appellant. As good a case as we have seen, discussing this question of practice, is Yates v. French, 25 Wis. 661, in which the court, by Dixon, C. J., says: "The single question is whether the defendants were required to answer de novo after amendment of the complaint, or were at liberty, if they saw fit, to let their answer to the original complaint stand as their answer to the amended one. The complaint was amended, as of course, under section 36, c. 125, Rev. St., after the answer was put in; but the matters in issue remained unchanged. Nothing new was set up by the amendment requiring a new or different answer from the one made to the original complaint. The amendment consisted only in changing the ad damnum clause. The amount of damages claimed was increased, but the cause of action was the same in both complaints, and the bill of particulars attached to each identical. The practice in the English courts is thus stated by Mr. Tidd: 'On amending the declaration in the king's bench after plea pleaded, the defendant is at liberty to plead de novo, if his case require it, and has two

* * *

days allowed him for that purpose after the amendment made and payment of costs. But in the common pleas we have seen the defendant is entitled in all cases, on amending the declaration, to a new fourdays rule to plead. And in that court, after an amendment of a declaration, the defendant is at liberty to plead de novo,—that is, he may do so if he has occasion or thinks proper, but he is not obliged to vary his first defense.' 1 Tidd, Prac. 708. And the practice in New York, prior to the enactment of the Code, was very much the same, though it would seem from Barstow v. Randall, 5 Hill, 556, to have been somewhat unsettled. The practice in the English courts is correctly stated in the latter case to be to allow a plea de novo in all cases, at the election of the defendant; but the dictum of Judge Cowen, which immediately follows, that upon filing the amended declaration all subsequent pleadings are considered as in effect stricken out, is wholly unsustained by the text of Mr. Tidd, referred to by him. The right of the defendant to plead de novo or not, at his election, implies, if he chooses not to do so, that his plea to the declaration before it is amended shall stand as his plea thereto after amendment, as the above extracts from Mr. Tidd very clearly show the English practice to be. And the learned judge seems also to have mistaken the earlier decisions in his own state upon the subject. In Saltus v. Bayard, 12 Wend. 228, the English practice was precisely followed. The plaintiffs there were allowed to amend upon payment only of the costs of the motion, unless the pleas were withdrawn, or a new defense became necessary in cousequence of the amendment, in which case the costs of the pleas were also to be paid. This indicates very plainly that a new plea was not, in all cases, required, nor in any case, except as the defendant found it necessary or proper, by reason of new matter introduced by the amendment, which he wished to controvert or put in issue by his plea. He might, in any case, refuse to plead anew, and in that event his plea already filed was considered as a plea to the amended declaration. His neglect or refusal to plead anew within the time prescribed was an election on his part to have it so considered. On the other hand, his election to plead de novo, which was manifested by the filing and service of a new plea, was an abandonment of the former plea. The former plea or pleas were thenceforth regarded as, in effect, stricken out. They would be stricken from the case on motion. Brown v. Railroad Co., 18 N. Y. 495."

If the defendant had followed the ruling in the Wisconsin case, he might have refused to plead anew. If he had done so, the Wisconsin case says that his plea already filed would be considered a plea to the amended complaint. But he did not refuse to plead anew. He elected to do so, and obtained

time in which to file the plea. If he had simply stood by, and neglected or refused to plead anew within the time allowed by law, the Wisconsin case says that this would be an election on his part to have the old plea stand. But, as noted, he did not do that. He expressly and in open court elected to plead over. A case in point is Machine Co. v. Redfield, 18 Kan. 555. That was an appeal from a justice's court to the district court. The law was that such appeals were to be tried on the original papers, unless the court allowed amended pleadings to be made, or new pleadings to be filed. The case coming up at the September term, the following journal entry was made: "[Title.] By consent of parties, defendant to answer in twenty days from the rising of this term of court, and plaintiff five days to reply. This action is continued until next term." At the following term of court, in December, the defendant had filed no pleading, and the 20 days had expired. Plaintiff asked for judgment as upon a default. The defendant objected. The court sustained his objection. This ruling was predicated as error upon the appeal to the supreme court. Upon this Brewer, J., delivering the opinion of the court, said: "Was there error in the rulings of the court at the trial? We are inclined to think there was, and that the error was one of sufficient importance to compel a reversal. At the time of these proceedings, cases on appeal from a justice's court to the district court were to be tried upon the original papers, unless the latter court in furtherance of justice, allow amended pleadings to be made or new pleadings to be filed.' Laws 1870, p. 184, § 7. The court then had power to require an answer to be filed, for, though the language of the statute is 'allow,' yet we think this grants something more than mere authority to consent. But, even if not, the order in this case was by consent of parties, and the court certainly had the power to enforce compliance with an order to the entry of which the parties had consented. It seems to us also that it was the duty of the court to enforce the order, and that the plaintiff had a right to rely upon compliance, or take advantage of the default." By the filing of the amended complaint, the original complaint became functus officio. Newell v. Meyendorff, 9 Mont. 254, 23 Pac. 333. We are of opinion that the defendant in this case clearly elected to consider his original answer as also functus officio, and that, by his conduct, a new answer became due, and that, for want of the same, default was properly entered. Code Civ. Proc. 1887, §§ 87, 115.

The appellant furthermore complains that the judgment in this case is for $700, and that the prayer of the complaint is for only $250 damages. But the value of the property taken by the defendant is alleged in the complaint to be $862.80, and judgment is demanded for that sum, and also $250. We do

The case

The plaintiff brought this action in quantum meruit for wages which he alleged to be due to him from the defendant for services performed by him as its superintendent, and also for the sum of $235, money expended by plaintiff for defendant. was tried to a jury. The court granted a motion for a nonsuit, and entered judgment in favor of the defendant. It appeared that the plaintiff was a director of the corporation defendant, and its vice president, and a large stockholder. The motion for a nonsuit was granted upon the ground that one occupying the relations towards the corporation above mentioned, could not recover compensation for his services as superintendent without an express contract of employment authorizing the performance of the particular service and the expenditures of moneys described. The plaintiff moved for a new trial. This motion was granted. From that order the defendant appeals.

H. R. Whitehill, for appellant. Rodgers & Rodgers, for respondent.

DE WITT, J. (after stating the facts). No question of practice is raised by the briefs of either party in this case, and we will therefore take up and consider the appeal as It is presented by the record. All the testimony which was introduced is brought up in the transcript. This we have read, and from it we find that testimony was introduced which tended to prove that the plaintiff, while he was trustee and vice president and shareholder of the defendant, performed services for the defendant as its superintendent, and that the services were of some val

ue.

There was also evidence which tended to prove that these services were clearly outside of the ordinary duties of the plaintiff as director or stockholder; also that before the performance of the services the officers of the corporation well understood that plaintiff was to perform them, and that they were services outside of his duties as director and vice president, and were services that some one must perform. The evidence also tended to show that it was understood by the corporate officers that these were services which should be paid for by the corporation as those of a superintendent. These facts, in our opinion, bring the case within the decision of Felton v. Iron Mountain Co., 16 Mont. 81, 40 Pac. 70. The court, therefore, erred in granting the nonsuit, as there was evidence tending to prove all the material allegations of the complaint, and the order of the court in setting aside the order for a nonsuit and the judgment and granting the new trial was correct.

As noted above, the question of practice in this respect is not noticed by counsel. It may be conceded that the doctrine is correct as announced in the many cases cited by the appellant that a director, trustee, or officer of a corporation cannot recover for services which he renders as such when there is no express contract to that effect. We are of opinion also that when such officer of a corporation seeks to recover for services rendered to the corporation without an express contract it should very clearly appear that such services were wholly apart from his office and duties as trustee, director, or officer of the corporation. This principle is thoroughly recognized in the instructions given in Felton v. Iron Mountain Co., supra. But when the services rendered by such corporate officer are clearly distinguishable, and separated from his ordinary duties as an officer of the corporation, we are of opinion that he may recover upon quantum meruit, under the facts and circumstances as shown in Felton v. Iron Mountain Co., supra, and in the case at bar as well. Most of the cases which appellant cites are upon the general principle above set forth. They do not treat the case of a corporate officer rendering services, as under the circumstances of this case. In the case of Gill v. Cab Co., 48 Hun, 524, 1 N. Y. Supp. 202, upon which appellant chiefly relies, the court said: "An examination of this evidence, however, fails to show that there was any understanding or idea upon the part of the directors of this corporation, certainly as a body, that the plaintiff was to receive any compensation for his services except his salary as vice president. The evidence upon the part of the plaintiff himself tends to confirm this view, in that the only claim that he ever made to the corporation during the time that these services were rendered was that his salary as vice president should be raised." It is observed that these facts differ materially from those