DocketNumber： No. 2,714
Citation Numbers： 40 Mont. 38, 104 P. 1049
Judges： Brantly, Holloway, Smith
Filed Date： 11/22/1909
Status： Precedential
Modified Date： 9/9/2022
delivered the opinion of the court.
This case originated in Silver Bow county, and involves appeals from a judgment in favor of the plaintiff for the sum of $12,000, and an order of the district court denying defendant’s motion for a new trial. The cause was tried to the court sitting with a jury, and the verdict was for the sum just mentioned.
The complaint sets forth three separate causes of action. The first is founded upon the following written instrument:
“Butte, Mont., March 27, 1907.
“For value received, I, the undersigned, promise to pay John O’Meara or his heirs the sum of twelve thousand ($12,000) dollars, under the following terms and conditions, to-wit:
“Payments shall be made subject to the conditions and agreements of the existing lease and bond held by Messrs. Galiger and Olymo, from the undersigned, acting as agent for Rt: Rev. John P. Carroll, in the sale of the Burke and Balaklava mining claims, Silver Bow county, Montana.
“Six thousand ($6,000) dollars shall be paid upon completion of second payment on said lease and bond, less whateyer portion of said six thousand ($6,000) dollars shall have been paid before that time. The balance, six thousand ($6,000) dollars, to be paid not later than ten (10) days after the completion of the terms of said lease and bond and the fulfillment thereof.
“Failure to meet payments as specified in said lease and bond agreement nullifies this note.
“Peter T. McDermott.”
For his second cause of action the plaintiff alleges that between the first day of October, 1906, and the first day of April, 1907, he performed services in and about procuring purchasers for the Burke and Balaklava lode' claims for which the defendant agreed to pay him a reasonable price; that a reasonable price and value for the services so performed is the sum of $12,700, no part of which has been paid, except the sum of $700.
For a third cause of action the plaintiff alleges that he performed services for the defendant at his special instance and
For answer to the first cause of action the defendant avers, that O ’Meara and one Kerrigan were making claims against him on account of an alleged liability to them, growing out of the sale of the Burke and Balaklava mining claims, as agent for the Roman Catholic Bishop of Helena, they claiming that he was; indebted to them for labor and services performed in connection therewith, and threatening him with trouble on account thereof; that he denied ah liability to them, but finally agreed that he would make and deliver the instrument in question, if they would execute and deliver to him a release a ad full acquittance of all claims and demands whatsoever; that plaintiff and Kerrigan agreed to this, and defendant executed the instrument set forth in the complaint and delivered the same upon that express condition; 'that O’Meara and Kerrigan thereafter refused to execute and deliver the release and acquittance stipulated for, and, on that account, he alleges the consideration for the written instrument failed. We shall hereafter for convenience refer to the written instrument as the note. Defendant further alleges in answer to the first cause of action that the plaintiff failed and refused to accept the note, and has ever since failed, refused, and declined to accept the same. He also alleges, in substance, that the conditions of the lease and bond mentioned in the note were not performed, and payments were not made as provided therein -r that the agreement for the sale of the property wras changed, and Galiger and Clymo never made the payments; that the lease and bond agreement was nullified and became of no force or effect, and both plaintiff and defendant thereafter held the same for naught. For a further defense, he alleges that plaintiff and Kerrigan began an action in the district court of Silver Bow county against him and his wife, in which action they sought
The reply alleges that, if the agreement with Galiger and Clymo was not met, the defendant caused the same not to be met, and consented to the same not being met, for the express purpose of defeating the contract with plaintiff. It admits the bringing of the action mentioned in the answer to the first cause of action, and admits the allegations in the answer to the second and third causes of action to the effect that judgment was entered for the defendants in that action, admits that plaintiff refused to execute and deliver any release or acquittance, and denies generally every other allegation of the answer.
It appeared from the testimony that the Burke and Balaklava quartz lode mining claims belonged to the Roman Catholic Bishop of Helena, and that the Bishop of Helena was Rt. Rev. John P. Carroll. Plaintiff testified, in substance: That on or about the sixth day of April, 1906, he first met the defendant in Butte. He had worked in the Burke and Balaklava ground as a miner, and had some knowledge of the workings there. At the time he met the defendant he was in the livery-stable business, and
"Helena, Montana, Oct. 1, 1906.
"Mr. P. T. McDermott, Butte, Montana.
"Dear Sir: I will give you this option on the Burke and Balaklava mining claims in the Butte district to run sixty (60) days, cash price for above claims two hundred and fifty thousand ($250,000) dollars; on a lease and bond for one year for three hundred thousand ($300,000) dollars, payable in four installments, as follows: The first payment seventy-five thousand ($75,-000) dollars, at beginning of lease, and seventy-five thousand ($75,000) dollars each four months thereafter until paid.
"John P. Carroll.
"Bishop of Helena, Montana.”
"This option is hereby extended to Jan. 1, 1906.
"John P. Carroll.
“Bishop of Helena.”
Soon after his return from Huntley, plaintiff saw McDermott, who informed him that he was going to Salt Lake City to see a man named Keith. At that time O’Meara gave defendant $25 in money for expenses of the trip,, at the latter’s request, and also delivered to him, at his request, a rough sketch of the Burke and Balaklava ground, to be used by him in his negotiations with Keith. On October 19, 1906, defendant wrote to plaintiff from Salt Lake City that he had seen Keith, who would probably send an expert to examine the ground. The letter concludes: "Will let you know when, but in the mean time get busy and clean up bottom of shaft and drift so as to be accessible when man gets there. No more news now, but the horizon looks bright.”
“Bishop’s House, Helena, Montana, Feb. 1. 1907.
“Mr. P. T. McDermott, Butte Montana.
“Dear Sir: I hereby authorize you to act as my agent in the transfer and sale of the Burke Balaklava mining claims, situated in the Butte district, Silver Bow county, for a period of sixty (60) days from date.
“Roman Catholic Bishop op Helena, Montana,
By John P. Carroll, Bishop.”
On March 27, 1907, there was placed in escrow in the First National Bank of Butte a deed conveying the Burke and Balaklava quartz lode mining claims from the Roman Catholic Bishop of Helena to Carle Galiger, trustee. Said deed was deposited upon the following conditions: (1) $85,000 was paid into the bank to the credit of the grantor at the time of the agreement; (2) $157,500 was to be paid on or before June 14, 1907, by Carle Galiger and W. O. Clymo; and (3) the further sum of $157,500 was to be paid on or before September 15, 1907. This escrow agreement and the negotiations leading thereto are referred to in the testimony as “the Galiger and Clymo deal,” and we shall for brevity adopt that expression. This deal was consummated .and resulted in the transfer of the properties. Regarding it, the plaintiff was asked this question: “What did you do with reference to promoting the sale to Messrs. Galiger and Clymo, and was it at the request of McDermott?” He answered: “He said that Galiger and Clymo would call at the house that afternoon nnd for me to go home as quick as possible, for they would be there to see me, and for me to take them on the ground and show it to them, and I would have to make it as strong as I possibly •could, ‘by all means make it as strong as possible,’ regardless of what I knew, whether it was right or not. By reason of that ■request I took Galiger and Clymo on the ground. I was on the ground with Galiger several times afterward. I showed these .gentlemen all; that is, explained where the leads were, and explained the cross-cuts underneath from the adjoining properties,
. Cross-examination: “I was a witness in the case of myself and Kerrigan against McDermott and his wife. I was suing Mc-Dermott in that case to recover money for the partnership. I considered that my services were worth what McDermott offered me, 25,000 shares of stock and $10,000; that would be $35,000. I did not know at that time that he was acting as agent for the bishop. I did not know what the contract with Galiger and Clymo was. I learned that he was acting as agent for the bishop when we came to trial the last time, but I knew the note read that way. I read the note the same day I received it. I knew at that time he was agent for the bishop. I am suing for $12,000. I sued for one-third of'what he made over the bishop’s price. 1 am not claiming for any services in connection with this lease and bond, excepting for services in connection with this lease and bond to Galiger and Clymo in this suit. I am not suing for any other services. We rendered him services to different parties and Galiger and Clymo. I understood I was suing for the services rendered in the Burke and Balaklava deal. I know the agreement with Galiger and Clymo was entered into on February 2, 1907; but I do not know the exact date when Galiger and Clymo came to the house after me—whether it was February 2 or later. I acknowledge that there was no compensation or agreement mentioned between McDermott and me. But, when we went into the agreement, we entered as partners in the Burke and Balaklava mining claim. The suit which you have referred to heretofore, being O’Meara and Kerrigan against McDermott, was upon that basis. I went in with him on that work as a partner. Aside from the note, he did not promise to pay me because I was not looking for promises of payment. I was looking for a partnership. With reference to all of this work which I have, testified to, I did it all as a partner. I fixed the purchase price of the property—I named it. I do not know the eastern parties that came and had dealings with Clymo and Galiger af
Plaintiff was asked by his counsel, on redirect examination, how much of the money realized under the Galiger-Clymo contract was to go to McDermott. Over the defendant’s objection he answered that $125,000 was to go to McDermott, and $275,000 to the bishop. He continued: ‘‘I first saw the option of October 1 after I brought my first suit against McDermott. I did not know that the agency agreement of February 1, 1907, existed until I saw it.”
E. B. Weirick, cashier of the First National Bank of Butte, testified as to the dates when the different installments going to make up the sum of $400,000 were paid to the plaintiff as agent and attorney in fact for the bishop. These payments were not made upon the exact dates mentioned in the contract, but they were all finally made substantially as stipulated for.
Dan Shields testified that in March, 1907, McDermott told him that O’Meara and Kerrigan were “still in with him and helped him all the way.”
Margaret O’Meara, wife of the plaintiff, testified that about October 2, 1906, defendant came to her house and told her that the bishop had given “us” an option and bond on the Burke and Balaklava, that the price was to be $250,000 if it was a cash proposition, and $275,000 outside of six months, and asked her to write her husband and tell him all that McDermott had told her and request him to return to Butte ‘ ‘ as quick as possible. ’ ’
John Kerrigan testified:- “About the 10th of October McDermott told me: ‘We have got the Burke and Balaklava.’ I know whom he meant by ‘we.’ He meant Peter T. McDermott, John H. O’Meara, and John Kerrigan.” The witness was asked this question: “Q. Can you recall anything that McDermott said as to how much of the purchase price was going to the Boman Catholic Bishop'?” Defendant’s counsel objected to the question, and the court inquired: “"What is the purpose of it?” Plaintiff’s counsel replied: “The purpose is to show the value of the services rendered by O ’Meara to McDermott and the profits realized out of this service.” The objection was overruled, and witness answered: “The amount was $275,000. McDermott said that the balance $125,000 was his.” Kerrigan’s testimony substantiated that of O ’Meara in many other respects.
At the close of plaintiff’s case, the defendant interposed a motion for a nonsuit as to all causes of action. The court sustained the motion as to the third cause of action, and overruled it as to the first and second. Appellant contends that this latter action was error. The following discussion will disclose the principal grounds of the motion. We are satisfied that the court was correct in sustaining the motion as to the third cause of action, and are of opinion that it should have been sustained as
Returning, now, to the motion for a nonsuit as to the first cause of action. As heretofore intimated, we think the evidence shows that the contract with Galiger and Clymo was substantially performed. The plaintiff’s case in chief does not disclose that the note was given upon any condition, or that it was not accepted. Neither does it disclose that he is estopped by any prior judgment. Counsel for the defendant have apparently assumed that the testimony of the plaintiff in the other action referred to was a part of his case in chief in this action, and therefore could be considered by this court. But such is not the fact. Upon the assumption referred to, the question was suggested in argument, and is raised by the answer and by an offered instruction, whether the minds of the parties met at the time of the delivery of the note. But we must take the record as we find it. When the motion for a nonsuit was interposed, there was nothing before the district court showing any partnership agreement between the parties, except plaintiff’s bald statement that he considered himself a partner. Neither was there any substantive testimony that he ever offered to return the note to Me
Before taking up the consideration of other questions, it may be well to dispose of certain alleged errors of the court in the admission of testimony, as indicated by the statement heretofore made. It is contended that the court erred in allowing the plaintiff to give his opinion as to the value of his services. We think the question at the time it was asked was a proper one. Plaintiff could well testify, in substantiation of his second cause of action, what the services actually performed by him were reasonably worth. The difficulty arises, not over the question, but in regard to the answer. The latter shows, as heretofore suggested, that it is based upon considerations which he was not warranted in taking into account. It is altogether unreasonable to suppose that the services rendered by him to McDermott, in the absence of any agreement or any actual participation in promoting the Galiger and Clymo. deal, were worth $25,000 or any considerable portion of that amount. As relating to the first cause of action alone, the question was incompetent and immaterial. The only defenses interposed to the note itself were (1) that it was given -upon condition that an acquittance should be delivered to Mc-Dermott; and (2) that it was never actually accepted by, ■O’Meara. If the note was delivered and accepted unconditionally, it became immaterial to inquire' what O’Meara’s services were reasonably worth. What has just been said applies equally as well to the action of the court in allowing plaintiff to testify to the amount received by defendant as agent for the bishop. This testimony could only have served to impress the jury with the notion that as defendant had received so large a sum he
Taking up now the matters of defense interposed and attempted to be interposed: (a) Whether the note was delivered upon the conditions testified to by the defendant, or accepted by the plaintiff, so as to constitute a binding contract between the parties, were questions for the jury to decide under proper instructions from the court. There can be no question of this as regards the first contention of the defendant. And we make the statement advisedly as to the second, for the following reason: The stenographer who took the plaintiff’s testimony in the other case testified that he then swore: “I offered him the note and he would not accept it, and I would not accept it. * # * And I said, ‘You can have your note’; and he said, ‘I don’t want it. It is no good to me.’ ” We have searched the record in vain for any testimony on the part of McDermott going to show that this conversation was had. So that we say it was a question for the jury to decide whether it did or did not take place; and it was the privilege of the defendant to request the court to instruct them as to its legal effect, in ease they found that it did.
(b) Defendant offered in evidence the judgment-roll in the former ease of O’Meara and Kerrigan against McDermott and wife, and the same was, upon objection, excluded by the court. It is contended that this was error. We find in the transcript a «specification to that effect. In the answer the judgment is pleaded as “a determination of all questions with reference to the right of the plaintiff to recover anything from the defendant”; but this contention is not argued in the defendant’s brief. It is contended, however, that the judgment-roll discloses an election of remedies on plaintiff’s part, which would estop him from maintaining this action. But this ground of estoppel is not sufficiently pleaded. (See 15 Cyc. 261.) It is clear that the pleader did not have it in mind at the time the answer was drawn. There was an opportunity to plead it, but defendant neglected to do so. Therefore it cannot avail him. (8 Eney. PI. & Pr. 9; 16 Cyc.
(c) Defendant attempted to introduce the testimony of W. 0. Clymo given in the former action heretofore referred to. Plaintiff interposed an objection, and the court excluded the evidence. It was shown that Mr. Clymo was in the state of California. The testimony was competent, and should have been received, if properly offered. (Revised Codes, see. 7887.) It related to the same matter which was being investigated. This is shown by the testimony itself, taken in connection with the evidence given by the plaintiff. It related directly to the question of what services had been performed by him, and whether he had performed any services in connection with the Galiger and Clymo deal other than such as could have been performed by any miner. Clymo directly contradicted the the plaintiff’s testimony on that subject, and the latter’s counsel cross-examined him at great length. The parties were the-same; that is, the plaintiff and defendant here were, respectively, a plaintiff and a defendant in that action. Precise nominal identity of all the parties is not necessary in order to make-
(d) Again, it is urged upon this court that the district court ■abused its discretion in refusing to submit special interrogatories to the jury. Section 6758; Eevised Codes, provides that in all eases the court may direct the jury to find a special ver-dict in writing upon any or all of the issues. "We are not prepared to say that the district court abused its discretion; but we do venture the opinion that this case was peculiarly adapted to the exercise of the power mentioned in the statute. We are •inclined to think that, if the district courts would more frequently instruct juries to find upon particular questions of fact, the necessity for granting new trials would be grea.tly ■diminished and much unnecessary expense and delay thereby ■avoided; and we recommend the practice. It is very often the ■case that findings upon particular issues would disclose the fact that instructions, palpably erroneous, were not prejudicial.
It is believed that the foregoing disposes, in effect, of all questions involved, and that it is unnecessary to examine the instructions given.
The judgment and order appealed from are reversed, and the ■cause is remanded for a new trial.
Reversed and remanded.