McMillan v. Frank , 30 Mont. 61 ( 1904 )

MR. COMMISSIONER CALLAWAY

prepared the statement of the case and the opinion for the court.

1. Appellants insist that the court erred in permitting respondent to amend his answer during the progress of the trial, and say the amendment whs inconsistent with the original answer, and that it raised a new issue after appellants had put in their case in chief. We think the amendment simply accentuated the defense alleged in the original answer. Respondent leased the Clark claim with a covenant that the lessee should have the quiet and peaceable possession of the same, with the right to extract the ores and minerals therefrom. If the vein of which the ore body was a portion had its apex in the Mountain claim, and not in the Clark claim, then the ore body was not a part of the Clark, and was not included in appellants’ lease. That the Mountain claim has extralateral rights is not controverted by appellants. The controversy between appellants and respondent, as shown by the complaint and answer, both before and after amendment, arose upon the hypothesis that the apex of the vein or ore body was within the Clark claim. We fail to see how the inconsistency alleged to exist in the answer after amendment prejudiced appellants’ case in any way. We do not think any new issue was injected by the amendment. The testimony necessary to support the amendment would have been admissible without it.

2. Appellants contend that the court erred in not striking out at their instance a statement made by respondent to the effect that he sold his interest in the Clark lode, together with an eighth interest in the Nettie lode, for $2,500. We see no error in the court’s ruling. The appellants based their action upon an alleged promise made by respondent to pay them over $8,000' in case he should compromise the suit or sell the Clárk claim. He testified that he actually did sell the Clark claim, together with an interest in another, for $2,500. This was a circumstance for the jury to consider in arriving at its verdict.

3. Appellants showed by a journal entt'y of the district court dated May 16, 1894, that the suit brought by the Anaconda Mining Company had been ordered dismissed as settled. Respondent testified that he did not know anything about a compromise of the suit, and did not know it was dismissed as settled. Appellants moved to strike out this testimony as incompetent, on the ground that the action of a person in court through his attorney is his action, and the client is bound by it. The court overruled the objection. Its action in so doing was not wrong. The journal entry in question does not show that respondent or his attorney had anything to do with it. If respondent had not interposed an answer asking for affirmative relief — and there is no showing that, any answer was filed — the Anaconda Mining Company had the right to dismiss the action, even against respondent’s consent.

4. After respondent had closed his case, appellants called the witness McG-overn to the stand, and asked him this question: “State whether or not Mr. Frank made the promises which you have testified to as to reimbursement of lessees for the labor and expenditures they made on the Clark lode, dependent upon the fact of his afterward discovering the apex of the ore body which the lessees discovered upon the Clark claim?”- This was objected to as not rebuttal testimony, for the reason that what took place between tbe appellants and respondent had been fully gone into1 in tbe examination in chief of the same witness. Tbe evidence offered was a mere repetition. This witness, as shown by tbe statement of facts; testified that be bad given tbe exact language of respondent as to tbe promise of reimbursement. All of appellants’ witnesses who testified concerning tbe conversations with Frank were examined minutely as to such conversations, both upon direct and cross-examination, and assumed to give all of tbe testimony which they remembered, in detail. Tbe offered proof, therefore, was properly excluded.

5. Appellants urge that tbe court erred in giving instruction No. 9, in which tbe jury was told that respondent was under no legal obligation to protect appellants against tbe suit of tbe Anaconda Mining Company'; that a promise on tbe part of respondent to protect tbe appellants or to pay them could not be binding unless based upon some consideration other than tbe covenants contained in tbe lease. This instruction was given upon tbe assumption that tbe apex of the ore body was within tbe Mountain claim. Had there been any controversy upon that point, it would have been error to SO' instruct the jury. That tbe apex was within tbe Mountain claim is undisputed. Appellants did not deny that such was the' fact, either in their case in chief or in rebuttal. Respondent, on tbe other band, produced much testimony to' prove it. If, as we have suggested above, tbe ore body was not a part of tbe Clark claim, but was a part of the Mountain claim, neither respondent nor bis lessees were entitled to it, and respondent was under no obligation to defend tbe suit brougb by tbe Anaconda Mining Company. This matter was fully covered by instruction No. 16, which appellants have not attacked in their argument.

6. Appellants urge that it was error for tbe court to .tell tbe jury, in instruction No. 20, that tbe minute order dismissing tbe action brought by tbe Anaconda. Mining Company was not conclusive and did not amount to a final or absolute dismissal of tbe suit, because it was not followed by any other order or judgment. We regard this instruction as immaterial and barmless. Appellants had shown that the respondent sold the property in question to one Haggin on January 25, 1894, some months prior to the time the minute entry of dismissal was made, and that Haggin thereafter transferred it to the Anaconda Mining Company. Respondent himself testified that he sold it to Haggin. Whether the snit was technically dismissed did not matter. The facts were before the jury. Upon appellants’ theory of the case, respondent was liable if he sold the Clark lode to any one.

1. Appellants take exception to a number of other instructions given to the jury, but, after giving due attention to their argument pertinent thereto, we do not find that they have pointed out any error therein.

8. On the question whether there was a contract or agreement between appellants and respondent- with respect to the subject-matter of this action there was a substantial conflict of testimony. The jury found for respondent, and, under the settled rule, its finding thereon is conclusive.

For the foregoing reasons, we are of the opinion that the judgment and order should be affirmed.

Per Curtam.

For the reasons given in the foregoing opinion, the judgment and order are affirmed.