Huntoon v. Lloyd , 8 Mont. 283 ( 1889 )

Liddell, J.

This is a suit upon a verbal contract, as positively denied by the defendant as it is affirmed by the plaintiff. The latter alleges that he was employed by the defendant on the 15th of December, 1885, to procure for him the titles of his co-owners in the Pennsylvania Quartz Lode Mining Claim. He was limited in price to the sum of thirty-five thousand dollars, and the plaintiff’s commission was to be the difference between that sum and whatever figures under that at which he succeeded in purchasing; that he purchased the interests alluded to at the sum of thirty-four thousand dollars, and so informed the defendant, who promised, on the thirteenth day of January, 1886, to pay him one thousand dollars for his services. The defendant denies the contract, and sets out that at the time of the employment alluded to by plaintiff, he was then negotiating for the sale of the mine with parties in San Francisco, and so informed the plaintiff; that in order to facilitate the sale it was desirable to have the titles to the mine secured, which was to be done by the plaintiff for the consideration as stated in the complaint, with the understanding, however, that if no sale was effected the plaintiff should have nothing for his services; that the negotiations having failed, he afterward, informed the plaintiff thereof, and except in this conditional way, he never promised to pay him anything. There was a judgment rejecting the plaintiff’s demands, and the case is before us on a bill of exceptions, properly settled and signed. The record contains the following specifications of error, which we will consider in the order in which they appear: —

1st. The court erred in refusing to allow the plaintiff to ask his own witness, Warren, the following question: “ What did you say to Huntoon about your understanding with Lloyd before he went to see Lloyd ? ”

2d. The court erred in refusing to allow the same witness to state that he had a contract with plaintiff in reference to the sale of the same mine, and the terms of his agreement, and that the plaintiff was sent to Lloyd to take his, witness’ place, in reference to said sale.

3d. The court erred in allowing the defendant to introduce in evidence the document marked “ Exhibit No. 3.”

4th. The court erred in giving the third and fourth instructions. By referring to the testimony of the witness, Warren, it will be seen that he denies any knowledge of the contract or conversation between the plaintiff and defendant. What conversation he may have had with the plaintiff before the latter had ever seen Lloyd was irrelevant, and calculated to mislead the jury in deciding what was the contract between .the plaintiff and defendant. No pretense is made that Warren was the agent of Lloyd in making the contract with Huntoon, that he was the bearer of any messages from the defendant to the plaintiff, or that Lloyd was present during the particular conversation mentioned. There was certainly no ground for the admission of such a conversation. It was clearly hearsay evi- . donee; but as this objection was not made, our remarks are confined to its objectionable character on account of its irrelevancy.

We see no error in the ruling complained of in the second specification of error. Any previous contract which the witness, Warren, may have had with Lloyd concerning the sale of the mine can throw no light upon the subsequent contract made with a different person. They were two separate and distinct contracts, and Warren’s contract was to all intents and purposes hearsay evidence. The plaintiff to recover must establish the terms of his own contract, and not that of the defendant with some third person, neither a party to the suit nor to the contract ■in controversy. Such a statement was properly withheld from .the jury. The third objection is to the introduction of “Exhibit 3,” which on examination we find to be an instrument in .writing, bearing date the 20th of February, 1886, and signed by the plaintiff only, in which he recites that he has leased for six months the interests of certain owners in the Pennsylvania and .other mines, and that he had the -option of buying them at any time within the six months, and an obligation on his part to sell the same property to Lloyd for the sum of thirty-four thousand .dollars, to be paid to the credit of 'his grantors, and the further' sum of one thousand dollars to be paid the'plaintiff at the same time. This instrument was admitted over the objection of the plaintiff, that it was irrelevant and immaterial, and calculated to mislead the jury. When this case was before the Supreme Court upon a former appeal, we find the following expression in the opinion reported in 7 Mont, page 372, in reference to this particular instrument: “This may be an evidential fact in the nature of an admission going to support the theory of the defendant, and may be admissible in evidence for that purpose alone.” So that in admitting the document in evidence the judge a quo only carried out the previous opinion of the Supreme Court, which, so far as this matter is concerned, is final.

This brings us to the fourth specification of error, that is, the propriety of the third and fourth instructions. An analysis of the third instruction will show that the court" charged the jury, that the burden of proof was on the plaintiff to establish his case by a preponderance of proof, and that if the juiy found that the defendant was only to pay plaintiff one thousand dollars upon certain conditions and contingencies, which had not happened, then to find for the defendant. In this there was no error, for the instruction contains nothing but plain and elementary propositions, too well established for comment. In considering the fourth instruction it must be borne in mind that by a previous decision of this court, “ Exhibit No. 3” had been held 'admissible in evidence as being “in the nature of an admission going to support the theory of the defendant.” The instruction complained of contained these words, that while it was not a contract, “ yet it is such a writing as you may have in evidence, and may consider for the purposes of arriving at a conclusion in consideration with ’ other evidence as to what were the terms of the contract between the parties.” This instruction appears to have been carefully worded with a view to keep in line with the expression, in the former opinion in this case, upon the- character and admissibility of the instrument. If it was proper to be admitted in evidence, it was the duty of the court to instruct the jury as to its nature and the weight to be given it. The Supreme Court having said it was not a contract, there was no impropriety in the trial judge so stating to the jury, and directing them to consider it in connection with the other evidence in the case in endeavoring to arrive at their verdict. There is nothing in the instruction which varies the rule, that the jury are the exclusive judges of the credibility of the witness, and the weight to be given the evidence introduced. The instruction that the document was to be considered in connection with the oilier evidence, and accompanied by the reservation that it was not a contract, is as favorable to the plaintiff as could be under the circumstances; it merely left the effect and weight of the instrument to be explained, controlled, and construed by and with the other evidence in the case. In conclusion, it is difficult to see how the plaintiff has been prejudiced by the instruction, or how it could have been modified to suit his views. There is no error in the judgment appealed from, which is hereby affirmed at cost of appellant.

Judgment affirmed.

McConnell, C. J., and Bach, J., concur.