Cobban v. Hecklen , 27 Mont. 245 ( 1902 )

MR. JUSTICE PIGOTT,

after stating the case, delivered 1he opinion of the court.

1. Some contention is made by the defendant to the effect that the findings cannot be reviewed here, because the plaintiff did not challenge them as defective; and he invokes Sections 1114, 1115, and 1116 of the Code of Civil Procedure. These sections are not applicable. They have to' do- only with findings which are defective; that is, which omit matters necessary or proper to- be stated. Exceptions thus provided for lie on account of deficiencies or omissions and not for what is contained in the findings. Such is the clear meaning of the sections. This interpretation was recognized and approved in Yellowstone National Bank v. Gagnon, 25 Montana Reports, on page 271, (64 Pac. 664). In Currie v. Montana Central Railway Co., 24 Montana Reports, 123, (60 Pac. 989), the last paragraph but one may be misunderstood unless it is considered with the opinion as a whole. To state the law accurately, the paragraph, if standing alone, should read thus: “Under the prevalent doctrine of implied findings, the judgment appealed from will not be reversed for defective findings, unless requests and exceptions were made and saved in accordance with Sections 1114, 1115, and 1116 of the. Code of Civil Procedure.”

The notice of intention to move for a new trial is attacked because one of the grounds stated therein is that the evidence was insufficient “to justify the findings and judgment and that the same are against law.” Subdivision 6 of Section 1171 of the Code of Civil Procedure provides that a new trial may be had upon the ground of “insufficiency of the evidence to- justify the verdict or other decision, or that it is against law.” Counsel’s point is that the notice is directed to the findings and judgment, instead of the decision. But the words “and judgment,” since they serve no- purpose, may be rejected. A somewhat similar objection, as appears from the brief of the respondent in that case, was made in Arnold v. Sinclair, 12 Montana Reports, 248, (29 Pac. 1124), hut the court disregarded the objection, and reversed the order upon the ground that the evidence was insufficient to justify the findings. The court was doubtless of opinion that the objection was a refinement of technicality. So far as the question of the insufficiency of the evidence to justify the decision is ground for a new trial, the word “findings” is equivalent to the word “decision,” for a new trial is the reexamination of an issue of fact after trial and decision. Under some circumstances a decision may consist of findings of fact and copclnsions of law drawn therefrom; but a new trial may not be granted because the evidence does not justify such conclusions, nor because they do not follow from the facts found. To warrant a new trial upon the ground of insufficiency of the evidence, the findings of fact (express or implied) or the verdict must, in the opinion of the trial court, be against the weight of the evidence, or must be unsupported by any substantial evidence.

There is no merit in either objection.

2. The plaintiff specifies as error the ruling of the court admitting evidence tending to prove that Cobban had oral am thority from him to make an agreement for the sale of the land to the defendant. lie argues that authority in an agent to make such an agreement must be in writing, and cites Sections 2185 and 3085 of the Civil Code and Section 3276 of the Code of Civil Procedure. These sections became law on July 1, 1895. Cobban made the agreement in August, 1894, — nearly a year theretofore, — at which time written authority was not necessary to the validity of an agent’s contract of sale. So far as we are advised, nothing in the statute of frauds then in force with respect to real property (Sections 217, 219, 220, 228, Fifth Division, General Laws, Compiled Statutes of 1887), nor in the common law, required the agent to be clothed with authority in writing to contract to sell and convey land. Prior to July 1, 1895, the agency might have been established by direct oral evidence of the appointment, or by infei’ence from the acts, letters, or conduct of the parties, or from their relations, the one to the other, or from all combined; in short, from any evidence legitimately raising the inference of agency. (Fry on Specific Performance of Contracts (3d Am. Ed.), Sec. 509, and cases there cited; Coles v. Trecothick, 9 Ves. 250; Johnson v. Dodge, 17 Ill. 433; McWhorter v. McMahan, 10 Paige, 386; Rutenberg v. Main, 47 Cal. 219; Worrall v. Munn, 5 N. Y. 234, 55 Am. Dec. 330; Dykers v. Townsend, 24 N. Y. 57; Moody v. Smith, 70 N. Y. 599; 1 Reed on Statute of Frauds, Sec. 379, and cases there cited.) Tbe court was, therefore, right in admitting the evidence. This disposes also of the point that under Section 3086 of the Civil Code the authority of Cobban to bind the plaintiff by a contract to convey must have been ratified by him, in writing.

3. When Cobban and the defendant entered into the oral agreement of 1894, Sections 219 and 220 of the Fifth Division, General Laws, Compiled Statutes of 1887, were in effect. These declare that every contract for the leasing for a term longer than one year, and every contract for the sale of land, or of any interest therein, shall be void unless the contract* or some note or memorandum thereof, expressing the consideration, be in writing, and subscribed by the party by whom the lease or sale is to be made, or by his agent lawfully authorized. As has been said, the contract was oral, and we may concede that a ratification of the oral contract could be made only in writing. (Section 3086, Civil Code.) But, while a mere ratification of such contract must be evidenced by a writing, the ancient rule that equitable estoppel need not be so evidenced is too well established and generally known to require argument or citation of oases in its support. So with part performance of an oral contract for the sale of land. Nothing contained in the statute of frauds abridges the power of courts to compel the specific performance of such oral contracts. (Section 221, Fifth Division, General Laws, Compiled Statutes of 1887; Section 3275, Code of Civil Procedure.)

4. The plaintiff contends that the contract, in its terms, was not definite, certain, or reasonable, and that its obligation was not mutual or reciprocal. The testimony of the defendant, his wife, his brother, and Hammer tended to show that the contract was definite, certain, and complete. From the evidence adduced, the court found that the contract was one for the sale of an acre of land out of a larger tract. This was reduced to- a certainty by the election and choice of the defendant. “If a man grants twenty acres, parcel of his manor, without any other description of them, yet the grant is not void, for an acre is a thing certain, and the situation may be reduced to a certainty by the election of the grantee.” (3 Bacon’s Abridgement, 807.) It was reasonable, for the price for which it was to- be sold was not disproportionate to its value. It was mutual, for both were reciprocally bound, the one to convey, the other to pay the purchase price, as soon as the defendant so far partly performed as to take the case out of the statute. True, the oral agreement was originally invalid, — it was unenforceable, — -but the part performance vitalized it, and by relation made its terms obligatory from the beginning. If all the owners empowered Cobban to contract, they could have enforced the agreement against the defendant by compelling him to pay the purchase price upon tender of a deed conveying full title. After the partition of July 22, 1897, the plaintiff, holding the entire legal title, might then have done so. Even if the other owners did not authorize Cobban to contract to sell, the plaintiff would not be without obligation, for there was ample evidence that he had clothed Cobban with power to act for him in that behalf, and when the legal title vested in him it was held for the benefit of the defendant. The plaintiff could then have enforced performance by the defendant.

5. The case was tried upon the theory that the plaintiff was estopped to assert title as against the defendant, and that he held the legal title in trust for the defendant. The court found: “That on or about the 15th day of August, 1894, said W. E. Cobban, for himself, as co-owner in said claim, and as agent for the other co-owners therein, entered into an agreement with the defendant, whereby he sold to the defendant the premises described in defendant’s cross-complaint for the sum of $100, which the defendant agreed to pay upon the delivery of the deed; and that said deed was to be delivered when a patent was obtained for said placer claim from the United States government. That said W. F. Cobban, as such co-owner and agent, aforesaid, took the defendant to the premises, and pointed the same out to him, and authorized him to enter into the possession thereof, and to occupy and improve the same; and that defendant had no possession of said premises prior to said time. That at said time the defendant desired to purchase said premises for tbe purpose of building a borne for bimself and family, and that immediately after said agreement was made he entered and took possession thereof, and inclosed the same with a substantial fence, and has ever since occupied the same. That the defendant was induced to enter upon said premises by reason of the contract and agreement with said W. F. Cobban aforesaid, and in reliance thereon; and that, had it not been for said agreement and contract, he would not have entered thereon, or made any improvements on said premises. That, in reliance on said contract, he did enter upon said premises, and inclosed the same as aforesaid, and made permanent and valuable improvements upon the same.” It also found that in July, 1895, the plaintiff was advised by Cobban of the agreement with the defendant, and that the plaintiff then assured the defendant that the agreement would be carried out, and a deed executed, and informed the defendant that he could proceed to make such improvements as he desired, and rely upon obtaining a deed; that, in reliance upon the assurances and representations of the plaintiff, the defendant made large additional, permanent, and valuable improvements upon the land, which he would otherwise not have made; that ever since July, 1895, the plaintiff had full knowledge of the defendant’s possession and claim of right and title to the land, and that defendant was improving the same under such claim of right and title from the plaintiff, who never objected until September, 1891, but, on the contrary, consented thereto, and agreed with the defendant that the contract made with Cobban would be performed, and that he would give a deed; that on July 22, 1S97, the owners partitioned the placer claim, and that the part assigned to the plaintiff included the land so occupied and improved by the defendant; that, if the defendant were deprived of the property by the plaintiff, he could not be compensated in damages, for the improvements made or for the loss of the property. The evidence was sufficient to justify the substance of these findings, and to take the case without the provisions of Section 219, supra,. Subdivision 3 of Section 3265 of the Code of Civil Procedure declares a very old doctrine, and a most just: “Whenever a party has, by bis own declaration, act or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it.” This doctrine is applicable to the facts as found by the court. The conclusions of law that the plaintiff is estopped from asserting any interest in the real estate occupied by the defendant, that he holds the legal title in trust for the defendant, and that the defendant is entitled to a decree requiring the plaintiff to execute and deliver to the defendant a deed conveying the legal title, inevitably follow.

6. The overruling of the plaintiff’s objection to' the reception of certain evidence is specified as error. We are inclined to the opinion that this evidence tended (perhaps very slightly) to establish, inferentially, from the conduct of the plaintiff and of Cobban, and their relations the one wdth the other, implied authority in Cobban to agree with the defendant for the sale. If, however, the evidence was inadmissible, it was, as compared with the evidence, properly received and considered in behalf of the defendant, so trifling and unimportant that we think it was not of sufficient moment to affect the result. Under these circumstances, — -the trial having been by the court without a jury, — the error, if any, was presumptively harmless. (Merchants' Nat'l Bank v. Greenhood, 16 Mont. 395, 41 Pac. 250; Anaconda Coffer Mining Co. v. Heinze, 27 Mont. 161, 69 Pac. 909.) The presumption will be indulged that the trial court disregarded such evidence. A different rule is applicable when proper evidence has been excluded, for in such case the error must be deemed to be prejudicial, unless it shall clearly appear that the admission of the evidence would not have affected the result, or justified a different decision.

7. On the defendant’s cross-examination he was asked the following question: “Is it not a fact that since you have gone upon that ground you have contributed to a fund for the purpose of 'breaking’ the patent under which the Summit Valley placer is held ?” The court excluded the question as not cross-examination, and as irrelevant and immaterial. The question was not subject to- any one of tbe three objections-. It was proper cross-examination; it was relevant-; it was material. Tbe defendant bad testified to tbe making of tbe alleged contract witb Cobban, to bis entry into possession and making of improvements, and tbat tbe occupancy and betterments were induced solely by tbe contract-. He bad testified to a conversation witb tbe plaintiff in July, 1895, wherein be informed tbe plaintiff of tbe contract, and of its terms, and tbat be desired a deed so tbat be could make other improvements-; tbat tbe plaintiff promised to carry out tbe terms of tbe contract, told tbe defendant to make tbe improvements, and. tbat tbe plaintiff would soon make tbe deed; and tbat tbe defendant placed improvements upon tbe land in reliance upon tbe assurances and representations of tbe plaintiff. Whatever tended to contradict, either directly or inferentially, this testimony, was- cross-examination, and relevant and material evidence. If tbe defendant, after making tbe alleged contract witb Cobban, and before tbe conversation witb tbe plaintiff in 1895, sought to- prevent tbe issuance of a patent to tbe Summit Valley placer claim, proof of tbat fact was admissible because of its tendency to contradict bis testimony as to tbe terms of such supposed contract and as to bis reliance upon its terms in taking possession and making improvements. If be so contributed after tbe supposed conversation witb tbe plaintiff of July, 1895, to which be testified, and which tbe plaintiff denied, tbe fact of tbe contribution was admissible in evidence upon tbe grounds just stated, and also because of its tendency inferentially to- contradict bis version of tbe conversation, and to show tbat be did not make further improvements in reliance upon plaintiff’s representations and assurances. An answer in tbe affirmative would have thrown light upon bis statements tbat be bad a contract of sale, and tbat be relied upon such contract,- and upon bis and bis wife’s- version of the talk witb tbe plaintiff in 1895. An attempt to- prevent tbe issuance of tbe patent, or to cause its annulment, would, if successful, have deprived him of tbe full benefit of tbe alleged agreement, by tbe terms of which be was to- obtain title through tbe patent, Tbe evidence sought to be elicited would have been pertinent in respect of tbe probability of tbe truth of bis statements, and sbonld have been admitted. Its weight, of course, would be for tbe trial court. Tbe error was never cured, and we cannot see that it was without prejudice. Presumptively, it was harmful to tbe plaintiff, for tbe defendant might have answered the question affirmatively, in which case it would be for tbe court to consider bow far, if to any extent, tbe act of tbe defendant was inconsistent with bis claim of part performance under the supposed contract, and with his assertion of estoppel against tbe plaintiff. Tbe rejection of proper evidence will require a new trial, unless we are satisfied that tbe result would not have been different if tbe evidence had been received.

We observe a tendency in district courts unduly to restrict cross-examination. This should not be indulged or encouraged. Tbe purpose of trials of issues of fact is to bring out the whole truth, and to that end the right of cross-examination must be liberally interpreted and freely exercised. Doubt respecting tbe limits to which cross-examination may go ought usually, if not always, to be resolved against the objection. Although Section 3376 of the Code of Civil Procedure radically changes the common-law rule in respect, of cross-examination, it “permits a wide range for cross-examination, and the courts should be inclined to extend, rather than to restrict the right. Properly understood, the right extends, not only to .all facts stated by the witness in his original examination, but to' all other facts connected'with them, wdrether directly or indirectly, which tend to enlighten a jury on a question in controversy.” (Kipp v. Silverman,, 25 Mont. 296, 64 Pac. 884.) These remarks are general in their application, and have no special reference to the able and learned judge who tried the case at bar.

We find but one error which is prejudicial to- the plaintiff. Because of it the judgment and order refusing a new trial are reversed, and the cause is remanded.

Reversed and remanded.