Leggat v. Leggat , 13 Mont. 190 ( 1893 )

De Witt, J.

The appellant contends that his challenge for cause to juror Heilig should have been sustained. But, if this were error, it is not now material, because the findings were advisory, and were adopted by the court, and are not now attacked.

Appellant claims that it was error to allow the introduction in evidence of the notice of lis pendens filed by plaintiff. The notice was objected to as immaterial and irrelevant. But we are of opinion that, as counsel said when offering the notice, it was material for the purpose of framing the decree if judgment should, as it did, go for plaintiff. There were many lots sold by defendant between the date of the deed by plaintiff to him and the date of the commencement of this action.

The appellant also contends that the court erred in allowing witness Cobban to testify that more could have been realized by selling the lots separately than by selling them altogether. But the defendant was the attorney in fact of plaintiff, and was in a fiduciary relation to her. He was under a duty to do the best he could for plaintiff. The testimony of Cobban simply tended to the effect that the trustee could have done better than he did for his cestui que trust. We are opinion that there was no error in admitting this testimony. This evidence was pointed at the value of the property. Even if such admission should be considered error, it would not be error upon which the case could be reversed, for it is conceded, by virtue of the facts, that appellant does not attack the findings that the property was of a greater value than that paid by appellant to respondent, and that the price that he paid was not a fair and just price.

The appellant claims that it was error to exclude the following question asked by him of witness Cobban: “Is it a fact that no money can be borrowed on any of the property in the Leggat and Foster addition outside of what is in the Belmont? That the banks won’t loan a dollar on it, and men won’t loan money on it, for the reason that the title is in conflict”? This case was tried on the 10th of July 1891. The defendant received his deed from plaintiff March 19, 1888. Therefore the question before the court was not the salable value of the property at the time of the trial, some two years after the time the defendant obtained the deed of the property. It is observed that the question excluded was as to the value of the property at the time of the trial, and that evidence was properly excluded.

It was also objected that the testimony of J. H. Harper was improper, in that he testified as to the purchase of lots in the Leggat and Foster addition in 1881, and the value of the lots. But the witness also testified that there had been no depreciation in the value since 1881. His testimony was therefore to the effect that the value at the time of the transaction between plaintiff and defendant was at least as great as it was in 1881.

Charles F. Booth, county clerk and recorder, was a witness. He was testifying from the county records as to the deeds made by defendant for lots which he had sold after he had acquired the title, in March, 1888. As the witness testified from the records as to these lots by their description, and dates, he also mentioned the considerations named in the deeds. The defendant objected to the prices of the lots being given, in that the prices mentioned in the deeds were not the measure of damages. It is quite true that the considerations named in the deeds are not at all conclusive. But such consideration was a statement over the signature of defendant, and, we are of opinion, was at least prima facie evidence, with some slight tendency to show what was the consideration. Whatever prima facie tendency there was in this testimony could easily have been rebutted if the facts were otherwise.

Charles S. Warren was a witness. In rebuttal he was testifying in regard to some lots in the addition which had been sold to Sargeant. It was not objected that this testimony was incompetent, but that it was not proper to be given in rebuttal. But the Sargeant sale had been mentioned by defendant, and we are of opinion that the matter of allowing plaintiff in rebuttal to introduce what Warren said as to the value of the premises was a matter of discretion with the lower court, and no injury suggests itself as resulting from the action of the court.

The foregoing are the alleged errors which appellant has presented for our consideration. We are of opinion that none of these points are well taken, and that the judgment must therefore be affirmed.

Affirmed.

Pemberton, C. J., and Harwood, J., concur.