Maddox v. Teague , 18 Mont. 512 ( 1896 )

De Witt, J. —

-The gist of appellants’ contention is that the decision of the United States supreme court was the law of the case for the district court and now for this court, and that the law of the case, as they understand it, was disregarded by the district court in various rulings, to which they duly excepted and which they have reserved for review on this appeal.

We will start more clearly if we first define what is our understanding of the decision by the supreme court of the United States as the law of the case. On the first trial all the testimony offered by the defendants was excluded from consideration, and judgment was rendered by the court in favor of plaintiff and intervenor. (9 Mont, at page 134.) In this condition the case came before the United States supreme court. That court said that therefore it would be assumed by them that the facts were as this excluded testimony tended to prove they were. (150 U. S. at page 130.) There was, therefore, no rebutting testimony by plaintiff or intervenor to be considered by the supreme court. But upon this second trial there was rebutting testimony. The proffered testimony of the defendants was not taken to be the facts. All the testimony went to the jury. They passed upon all the facts. Furthermore, this testimony thus before the district court, and before us now, discloses facts, or evidence tending to prove facts, that were not before the court on the other appeal. As to a new state of facts, or a state of material facts newly in evidence, the former decision of the court is not the law of the case. (Creighton v. Hershfield, 2 Mont. 169 ; Daniels v. Insurance Co., 2 Mont. 500 ; Palmer v. Murray, 8 Mont. 174 ; Kelley v. Cable Co., 8 Mont. 440 ; Davenport v. Kleinschmidt, 8 Mont. 467 ; Hayne on New Trial and Appeal, § 291.)

The United States supreme court did not hold in its opinion that there was no completed sale made by Rader to Kier. It is said in the opinion that no completed sale was made, but this is obiter, for the court after making this remark leaves the subject with this language : “But it is unnecessary to pursue any inquiry in this direction, for upon a very clear rule of law the mortgagees are estopped from maintaining this action.” (150 U. S. at p. 130.) . The decision of the supreme court was in fact based upon the.opinion of that tribunal that the receipt by Maddox of $1,752.15 was a ratification by him of the alleged acts of his agent Smith, and that Maddox was estopped to deny the authority of Smith. But even this view was hedged by the supreme court when they say in the opinion : £ £It may be that this case turns somewhat on whether the. sheriff and plaintiffs understood and intended that the payment of this money was in fact a transfer by him to them of the deposit, or merely a payment on account ; but even if this be so, the question was one of fact to be settled by the jury, and should not have been disposed of by striking out all the testimony, and withdrawing the case from the jury. ” (150 U. S. 131.)

This, as the supreme court says, was a question of fact for the jury to determine. It was taken from the jury by the action of the court on the first trial. It was not taken from the jury on the second trial, but was submitted with appropriate instructions.

Therefore, by the opinion of the supreme court of the United States, three questions seem to us to have been left open for the second trial, viz :

First, whether Rader treated the transaction as a completed sale ;

Second, whether Maddox received the deposit of said $1,752.15, he and the sheriff understanding that it was intended that the payment of this money was in fact a transfer to him of the deposit or merely a payment on account ;. and

Third, whether Maddox received this $1,752.15 along with the other money paid to him by Rader with knowledge of an agreement between his agent, Smith, and Rader and Kier, such as is set out in defendants’ answer, that is to say the alleged agreement that Kier’s deposit on the horses, bid in by him, and the horses, should be forfeited to the mortgagees in case full payment were not made.

These questions were submitted to the jury by appropriate instructions. .

In treating these questions left open by the'decision of the United States supreme court, it is necessary to first inquire whether the defendants made out their defense set up in their answer, and to understand clearly just what that alleged defense was. As it appears by the answer it was this, namely: that the agreement made at the time of. the sale between Eader, sheriff, Kier, bidder, and Smith, mortgagee’s agent, was that, in the event of Kier’s failure to pay the balance on his bid, the $1,752.15 already paid in by him to the sheriff, should be forfeited to the mortgagees and that the horses should be retained by Eader on account of the mortgagees. They then further contend that as Eader paid the $1,752.15 to Maddox and tendered to Maddox the horses, and that as Maddox accepted the money, although he refused the horses, this was a ratification by Maddox of the agreement pleaded in the answer and claimed to have been proven, and that, therefore, under the law of the case as decided by the United States supreme court, the ratification by Maddox and his estoppel are established. Appellants state in their brief that this, their affirmative defense, was fully established. They do not recite the testimony which they claim establishes that defense, but they refer to the pages of the transcript at which they claim is found such testimony. But an examination of this testimony referred to, and the other testimony in the case does not, in our opinion, sustain the appellants’ contention. This testimony does not fully establish their position. Indeed, if there is not a preponderance of the testimony against them, as it seems to us there is, there is at least a wholly substantial conflict in the evidence on this point. The respondents claim that the evidence, instead of proving an agreement between Eader, Kier and Smith as set up in the answer, does in fact prove another agreement to wit: that instead of the $1,752.15 and the horses knocked off to Kier to be forfeited to the mortgagees, the agreement was that the money should be forfeited to the sheriff, and that the sheriff should retain the horses himself, and that the money was so taken by the sheriff to cover the expenses of a re-sale of the horses, and that the horses were to be retained for the purpose of reselling them. Wo think there is ample testimony, and indeed probably a preponderance of it, to the effect that the agreement was as claimed by the respondents.

There being at least a substantial conflict of testimony upon this point, the finding of the jury cannot be disturbed on this' ground.

And it is, therefore, for the purposes of this review, not true that the defense set up by the appellants was fully established. We have examined the evidence upon this point with care, and, while some of it is indefinite and while, perhaps, there are some contradictions, there is ample evidence to the effect that Smith, the agent of Maddox, did not agree that the money should be forfeited to Maddox, or that the horses should be held by the sheriff for him, but on the contrary, the most that Smith ever did as the agent of Maddox was to consent that the sheriff should receive the money to cover the expenses of a re-sale and should himself hold the horses for that purpose.

We stop to note here that Rader himself treated the transaction with Kier as a completed sale, for he proceeded to accept from Kinyon, the mortgagor, a sum of money which, together with the amounts already bid on the horses, made an amount sufficient to pay the whole mortgage debt. Upon receiving this money from Kinyon he released to Kinyon all the horses unsold, and paid to Maddox the amount of money which he had collected less the costs and expenses of making the sale. Rader’s construction of that transaction seems to us perfectly clear.

We then come to the question of what, if anything, Maddox ratified by receiving from the sheriff a part payment in the sum of $3,192.93. Maddox did not commit any act of ratification by receiving any of the horses which had been struck off to Kier, for he refused to.accept them. We must bear in mind that appellants contend that Maddox thus ratified what they claim in their answers were the acts of his agent Smith, but, as observed above, the testimony did not establish that the acts of the agent Smith were those which appellants contend they were, that is to say, there was not an agreement between Rader, Smith and Kinyon that the money paid by Kier should be forfeited to Maddox, and the horses retained on account of Maddox. It is then claimed by respondents that Maddox in receiving the money could not ratify an agreement which was not made by his agent. It is not established by the evidence that Maddox received the money with the understanding that he received it under the agreement set up in appellants’ answer. The intention and understanding with which he received this money was a material fact in the case, as said in the United States supreme court in its decision, and that question was submitted, as we think properly, to the jury. We do not say that the evidence was all with the respondents on these matters, but it is certainly the fact that there was substantial testimony to sustain the verdict of the jury in these respects. It is not necessary to trace this question in its various phases as it was raised upon the trial. This statement of our conclusion is sufficient to cover the point wherever it appears in the record

There is another matter as to the law of the case upon this appeal. It is the law of the case as declared by this court, 9 Mont. 126, that by the delivery of the mortgage to the sheriff, for the purposes of selling the property, he had authority to sell only for cash. This law of the case is not disturbed -by tne decision of the United States supreme court. Therefore, whatever Smith as Maddox’s agent may have done in agreeing, or attempting to agree, to any kind of a sale other than for cash was beyond his authority as agent. The appellants rely upon Maddox’s ratification, that is to say, a ratification of that which they claim was the nature of Smith’s acts. But Smith’s acts in the premises, as shown by the evidence sufficient to sustain the verdict, were materially other than appellants claim they were. Therefore, if Smith agreed to that which he had no authority to agree to, he did not in any event agree to that which appellants claim .he did, and therefore Maddox did not ratify such claimed agreement, because he could not ratify that which Smith had not performed. Maddox is, therefore, not estopped.' This disposes of the gist and main contention in the case. '

The appellants contend that there was a departure in the pleading between the complaint and the replication. We are not of the opinion that there was any departure. But the manner in which this question was raised was by a motion to strike out a portion of the replication for the alleged reason that it was a departure from the complaint; but the motion does not pretend to point out in what the departure consisted. Under the general principles applicable to motions and the pointing out the grounds of the same, we are of opinion that the^ district court was justified in ignoring the motion which did not in any wáy indicate the grounds of the same.

There were a very great many objections to testimony. In overruling these objections appellants contend that the court erred. Almost all of the objections can be considered as properly overruled, because they do not point out the grounds upon which appellants objected. (State v. Black, 15 Mont. 148, with cases there cited.) It may be that some immaterial testimony was allowed in the case, and possibly some testimony that was incompetent, but as to all of it we are of opinion either that the objection was not sufficiently made, or, in the cases where it may have been sufficiently made, there was no error which was sufficiently prejudicial to justify us in reversing the judgment.

. Much of the argument in the brief is made upon the instructions of the court. We are of opinion' that the instructions fairly presented to the jury the issues set up in the pleadings and brought before the jury by evidence. The court instructed upon these issues consistently with the view that we have above expressed as to what was the real gist of the action.

We have discussed this appeal from the point of view of the plaintiff only. It is sufficient to say that, as appellants themselves remark, the case of the intervenor must go with that of the plaintiff. It is therefore ordered that both as to intervenor and plaintiff the judgment and order denying a new trial are affirmed.

Affirmed.

Pemberton, C. J. concurs. Hunt, J., being disqualified takes no part in the foregoing opinion or decision.