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(34 Mont. 503)

against her creditors, the mortgagor being enBORDEN v. LYNCH.

titled to pledge her property to obtain loans (Supreme Court of Montana. Nov. 26. 1906.)

or to secure an antecedent debt, provided the

creditor acted in good faith. 1. JUDGMENT - TRIAL OF ISSUES – JUDGMENT | Ed. Vote-For cases in point, see Cent. Dig. ROLL-CONTENTS.

vol. 24, Fraudulent Conveyances, $ 138.] An order permitting an amendment of a

9. SAME-IXSTRUCTIONS. complaint and refusing a continuance is properly a part of the judgment roll as provided

Where, in an action by a chattel mortgagee

against an officer for conversion of mortgaged by Code Civ. Proc. $S 1151, 1196.

property by a levy thereon, defendant contended (Ed. Yote. For cases in point, see ('ent. Dig.

that the mortgage was a fraud on creditors, an rol. 30, Judgment, $$ 118, 550, 551.]

instruction this the note imported a considera2. APPEAL--RECORD-AFFIDAVITS FOR COXTIX tion, that th: burden was on defendant to LANCI.

show lack of consideration by a preponderance Affidavits filed in support of an application of the evidence, and that, if there was a valuto :mend a complaint or of a motion for a con

able consideration for the note and mortgage, tinuare can be made a part of the record only then they were valid, notwithstanding the mortby bill of exceptions.

gagor may have been indebted to other persons Ed. Yote. For cases in point, see Cent. Dig.

or may have been insolvent at the time, was vol. 3, Appeal and Error, $ 2:374.1

not objectionable as excluding from the jury's

consideration the fact that the debtor was in3. SAVE - RuliXGS Oy EVIDENCE – EXCEP solvent when the mortgage was executed. TIONS--NECESSITY.

The reservation of an exception to the ex Appeal from District Court, Deer Lodge clusion of pridence as provided by Code Civ.

County : Geo. B. Winston, Judge. Prok'. $ 11.30, is necessary to a reriew of the ruling..

Action by Kate Borden against D. Lynch. Ed. Note.-For cases in point, see Cent. Dig. From a judgment for plaintiff, defendant apvol. 2. Appeal and Error, $$ 1303, 1504.]


T. O'Leary, for appellant. J. II. Duffy, Where, in an action by a mortgagee to recover the mortgaged property from an officer

for respon lent. who had levied thereon as the property of the mortgagor, plaintiff, as a witness, was asked only as to whether she was the owner of the I

BRANTLY, C. J. Action for damages note and mortgage in question, defendant was for the conversion of certain personal propnot entitled to cross-examine her as to the erty by the defendant as constable of Anconconsideration or the circumstances connected with the execution of the mortgage, either on : da township. Deer Lodge county. Plaintiff the theory that such matters were part of the states her cause of action in two counts. Aftres gestae, or were connected with the matters er alleging the official capacity of the defendtestified to in chief and therefore constitute

ant, the complaint sets out in the first cause proper cross-examination, as provided by Code Ciri Proc. $ 3:376.

of artion, in substance, that on July 10, 190.5, TEI. Voto.-For cases in point. see Cent. Dig.

one Elizabeth Nichols executed a promissory vol. 30. Witnesses, SS 949, 930, 931.)

note to the plaintiff for the sum of $850, 5. APPEAL – PREJUDICE RULINGS Oy Evi payable one year after date with interest at DESC".

the rate of 1 per cent. per month, payable Where a question had already been an

monthly; that, on the same day, to secure the swered, defendant was not prejudiced by the court's refusal on objection to permit the wit

payment of the same according to its terins, ness to repeat the answer.

said Nichols executed and delivered to plain[Erl. Note.-For cases in point, see Cent. Dig. tiff il chattel inortgage upon certain personal vol. 3. Appeal and Error, $ 41.5.1

property which was filed for record with the 6. TRIAL-EVIDENCE-OFFER OF PROOF-SCOPE. clerk and recorder of Deer Lodge county:

In an action by a chattel mortgagee to recover for the conversion of the property by

that the plaintiff is the owner and holder of an officer who had levied thereon, defendant of

the note and mortgage, and that no part of fered to prove by the attaching (reditor that said note has been paid; that, by the terms the mortgagor had told him shortly before the

of the mortgage and note, the sum of $8.51.81 execution of the mortgage that she intended to execute it to prevent her other creditors from

became and was due from the said Nichols levying on her property. Held, that such offer to plaintiff on January 27. 1.905; that on was properly rejected for failure to include

that date. in an action brought in the jusan offer to show that plaintiff was cognizant of

tice's (ourt of Anaconda township, wherein the mortgagor's intent or aided her in its accomplishment.

one Barich was plaintiff and the said Nichols 7. FRAUDULENT CONVEYANCE-WANT OF ('oy defendant, a writ of attachment was issueil SIDERITION-BURDEN OF Proor.

and placed in the hands of the defendant, Where plaintiff claimed certain property

who seized thereunder the property described under a note secured by a chattel mortgage thereon the note and mortgage imported a con

in the mortgage and took it into his possessideration as provided by Civ. Code, $ 2169, and sion; and that he neither paid nor tendered the burden of proof to show want of considera to plaintiff the amount of her note with intion to support the instrument was on the party seeking to invalidate or avoid it, as provided

terest, nor deposited the amount thereof with by section 2170, though the mortgage was given the county treasurer, nor did he himself pay to secure an antecedent debt.

the amount thereof though requested so to TEd. Note. For cases in point, see Cent. Dig. do, and further refused upon demand to rerol. 24. Fraudulent Conveyances, $ 809.)

lease the property from the attachment. The 8. SAME-INSOLVENCY.

second cause of action, in addition to these The fact that a chattel mortgagor was insolvent at the time she made the mortgage did

facts, alleges that it was provided by the not of itself render the transaction void as terms of said mortgage that, if the said Nich

87 P. 39

ols defaulted in the payment of the principal | by bill of exceptions, properly settled. Carrof said note or any interest thereon accord- Ryder & Adams Co. v. Closser et al., 27 Mont. ing to its terms, or if, prior to its maturity, 94, 69 Pac. 560. the property described in the mortgage or 2. Contention is made that the evidence is ang part thereof should be seized under at insufficient to justify the verdict. The amount tachment or execution at the instance of any of the damages found by the jury was $350. creditor of said Nichols, then, in either event, While the evidence is conflicting on this isthe plaintiff should be entitled to the imme sue, the jury would have been warranted in diate possession of all of the property ; that, finding a much larger sum. Touching the on July 27, 1905, the property was seized and issue of fraud and want of consideration to attached at the instance of one Barich, credi support the note and mortgage, it is sufficient tor of said Nichols; that by reason of the to say that there is no substantial evidence seizure the plaintiff became and was entitled tending to show that the mortgage and note to the possession thereof; that before the had their inception in fraud, and that, while commencement of this action the plaintiff de there are some inconsistencies in the statemanded possession of the defendant, and ments of the plaintiff and Elizabeth Nichols that he refused to deliver the same. Both as to the amount of money advanced to the causes of action allege that the property was, latter to secure the payment of which the at the date of the seizure, of the value of mortgage was given, the evidence is sufficient $881. Judgment is demanded for damages to justify a finding that the note was given in that amount.

for the amount which was actually advanced The answer admits the execution of the before it and the mortgage were executed. note and mortgage with the stipulations and We may not, under this condition of the eviconditions therein contained, and the seizure dence, disturb the finding of the jury. of the property by defendant at the instance 3. Error is alleged upon many rulings of Barich, but denies every other material al made in excluding evidence offered by the legation in both causes of action. It alleges defendant. In most instances counsel failed affirmatively that the note and mortgage were to reserve an exception to the particular rulexecuted without consideration and for the as provided by section 1150 of the Code purpose of hindering, delaying, and defraud of Civil Procedure. For this reason such aling the creditors of said Nichols. There is leged errors may not be considered. We issue by reply. The trial resulted in a ver have examined all of those to which excepdict and judgment for the plaintiff. The tions were properly reserved. In none of defendant has appealed from the judgment | them do we find that the defendant suffered and an order denying a new trial.

prejudice. For illustration: The plaintiff, 1. Contention is made that the court erred

being sworn as a witness, identified the mortin permitting the plaintiff to amend her com

gage and note, stated that she was the owner plaint after the jury were sworn, by adding of them and that the defendant had not dean allegation, by interlineation, of the value

posited the amount of the note with the counof the property, and in refusing the defend

ty treasurer for her nor paid the same to her. ant a continuance on the ground of surprise.

On cross-examination she was asked for what There is nothing in the record to indicate

consideration the note and mortgage had upon what ground the defendant made his ap

been given. Upon objection of her counsel, plication for a continuance. We find in the

on the ground that it was not proper crossrecord the order permitting the amendment

examination, she was not permitted to anand refusing the continuance. This is a part

swer. Being a party and having offered herof the judgment roll. Code Civ. Proc. $S 1151,

self as a witness, the defendant insisted that 1196. But the affidavits embodying facts

he had a right to cross-examine her as to necessary to move the discretion of the court,

all the circumstances connected with the exif such were presented and considered in sup

ecution of the note and mortgage, including port either of the amendment or of the mo

the consideration. The general rule in this tion for a continuance, are not incorporated

country is that a witness may be cross-examin the record. Both applications were ad

ined as to anything testified to by him in dressed to the discretion of the court, and,

chief or connected therewith, but not as to since there is nothing before us to enable us

other matters. Code Civ. Proc. $ 3376; 3 to say whether the court abused its discre

Jones on Evidence, $ 820; Kipp v. Silverman, tion in either case, and the order is such as

2. Mont. 296, 64 Pac. 884; Braly v. Henry, the court might have made, we cannot ar

77 Cal. 324, 19 Pac. 529; McFadden v. Mitchbitrarily say that either ruling was erroneous. Among the papers constituting the rec

ell, 61 Cal. 148; Youmans v. Carney, 62 Wis. ord we find an affidavit to which appellant

580, 23 N. W. 20; Bell v. Prewitt, 62 Ill. 361; refers as the showing upon which the appli

Houghton v. Jones, 68 U. S. 702. 17 L. Ed. cation for a continuance was made. But it

503. While the rule should be extended rathis not identified by bill of exceptions and

er than restricted in its application, it may thus properly brought into the record as not be extended to include matters clearly should have been done. It, therefore, may

not connected with the subject-matter upon not be looked to for any purpose. Such mat which examination in chief was had. The ters can be made a part of the record only plaintiff having been asked only as to wheth.

er she was the owner of the note and mort- | introduced in the case on that issue, and, if gage, it was not proper on cross-examination there was a valuable consideration for the to go into questions of consideration or other note and mortgage, then the note and mortcircumstances connected with the transaction gage in that respect are valid, at least to the which resulted in their execution, either on extent of the amount of the consideration, the ground that such matters were part of notwithstanding Mrs. Nichols may at the the res gestae, or that they were connected time of their execution have been indebted with matters deposed to in chief. Youmans to other persons or may have been insolV. Carney, Bell v. Prewitt, Braly v. Henry, vent.” It is said that this instruction emMcFadden v. Mitchell, supra. The rule ap bodies an erroneous statement of the law, plies as well to parties as to other witnesses. in that it casts upon the defendant the bur· Hansen v. Miller, 145 Ill. 538, 32 N. E. 548; den of showing that the note and mortgage State v. Schnepel, 23 Mont. 523, 59 Pac. 927. were without consideration. There is no The plaintiff was asked during her examina merit in this contention. The writings themtion by defendant, whether, when the mort selves imported a consideration (Civil Code, gage and note were made, she did not know $ 2169) and "the burden of showing a want that an attachment had theretofore been of consideration sufficient to support an inlevied upon the property by another creditor strument lies with the party seeking to inof Nichols. She answered that she did not. validate or avoid it" (Civil Code, $ 2170). The question being repeated, she was not But it is said that Nichols, the mortgagor. permitted to answer, counsel objecting that and the plaintiff having admitted that ne the matter sought to be brought out was im money actually passed between them at the material. There was no error in this ruling. time of the execution of the mortgage, a case If the question was proper, it had already was presented that relieved the defendant of been answered. No advantage was to be this burden, and that, under the facts of this obtained by a repetition.

case, the burden rested upon the plaintiff to Barich, the attaching creditor, introduced show a valid consideration. The proof tendby the defendant, was asked if Nichols had ed to show that, for some time prior to the not told him, a short time prior to the execu execution of the mortgage, the plaintiff had tion of the mortgage, that she intended to been advancing money to Nichols; that durexecute such mortgage for the purpose of ing March, 1905, Nichols secured additional preventing her other creditors from levying loans amounting to $410 from the plaintiff on her property. Upon objection this evi in order to enable her to purchase the propdence was excluded. Thereupon defendant erty involved in this controversy from Barich offered to prove, in substance, by this wit and to make a payment of rent, and that, at ness, that just before the mortgage and note the time she obtained the last sums, she were given, Nichols had told him that she agreed to execute the note and mortgage was about to give the mortgage to prevent upon the property, to secure, not only the other parties from levying upon her property, sums then advanced, but the sums theretobut that it was not her intention to defeat fore advanced, but that the execution of any claim he might have against her. The them had been delayed by an unexpected offered evidence was excluded and exception absence from the state, so that the mortgage reserved. The offer was not broad enough. was in fact executed to secure the payment While the declarations of Nichols were com of an antecedent debt. The statute, however, petent to show her fraudulent intent in in declares the rule and must govern. cumbering her property (Wigmore on Evi defendant obtained the required proof from dence, $ 1086, par. 5), they could not affect the plaintiff or her witnesses, to this extent the rights of plaintiff in the absence of proof he was fortunate in that he was relieved from that plaintiff was cognizant of her intent or the necessity of calling witnesses, but, neveraided her in its accomplishment. There was theless, the burden rested upon him to estab. no proof of such knowledge on the part of lish this affirmative allegation from some the plaintiff, and, since the offer did not in source. So far as concerns this portion of clude a tender of such proof, the exclusion the instruction, we think it a correct state of the evidence was not prejudicial to the ment of the law applicable, and that defenddefendant. The right of the plaintiff could ant has no cause to complain. But it is said not be affected by any fraudulent intent en that the latter part of the instruction excludtertained by Nichols, unless it appeared that ed from the jury's consideration the fact she had knowledge of that fraudulent intent

that, at the time the note and mortgage were or aided the defendant in its accomplishment. executed, the mortgagor, Nichols, was insol

4. Among other instructions to the jury, vent. This contention has no merit. The the court submitted the following: “No. 5. fact that she was insolvent, if such were the The note set out in the complaint and intro case, did not, in itself, render the transaction duced in evidence imports a valuable con fraudulent and void as to the attaching sideration, and it devolves upon the defend creditor. An insolvent person may lawfully ant in order to overthrow the note or mort pledge his property to obtain loans or to segage for the lack of a consideration to show cure an antecedent debt, and, if the creditor that fact by a preponderance of the evidence | acts in good faith, he may not be deprived

of the preference thus given him orer other session of the property and on the same creditors, on the ground that his debtor was day made this indorsement on the bill of insolvent at the time. The effect of the in sale and then delivered it to A. Pincus, viz.: struction is not to exclude from the consider "Butte, Jany. 3, 1898. I hereby transfer the ation of the jury the fact that the mortgagor within bill of sale to A. Pincus and guarwas at the time of the execution of the mort antee delivery of same. Henry Muntzer." gage insolvent, but rather, in view of the Soon after Pincus had taken the bill of sale other instructions submitted, to tell them with this indorsement on it, he discovered that, if they found that the mortgage was that Mr. Fred. Orton had owned the pianos supported by a valid consideration and given mentioned and had sold them to Maloney in good faith to secure a debt actually due, and IIannan upon a conditional sale, the the fact that the mortgagor was insolvent installment plan or such other arrangement, at the time was not presumptive proof that that in fact Orton had an outstanding claiin it was fraudulent. We think the instruction against the pianos for something like $85. states the law correctly in this respect. This claim Orton reduced to judgment on

There being no error in the record, the October 11, 1899, and this judgment Pincus judgment and order must be affirmed. It is was obliged to satisfy in order to retain the so ordered.

pianos. After satisfying the Orton judgAffirmed.

ment, Pincus brought this action on July 5,

1904, against Muntzer for damages by reaHOLLOWAY, J.. concurs.

son of the failure of Muntzer to deliver to

Pincus the two pianos, and by reason of the MILBURN, J., not having heard the argu failure of title in Muntzer. The complaint ment, takes no part in the foregoing decision. I alleges that the sale of the property from

Muntzer to Pincus was evidenced by an in

strument in writing. The answer denies (31 Mont. 498)

every allegation of the complaint and pleads PIXCUS V. MUNTZER.

the bar of the statute of limitations. The (Supreme Court of Montana. Nov. 20, 1906.)

trial in the district court resulted in a ver1. SALES -- DELIVERY - SUFFICIENCY OF EVI dict and judgment in favor of the plaintiff, DESCE.

and from this judgment and an order denyEridence in an action by a buyer against a seller held insufficient to show a breach of

ing his motion for a new trial. the defendan agreement guarantying delivery of the goods ant appeals. sold.

It is argued by counsel for appellant, that 2. SAME-WARRANTIES.

the indorsement on the bill of sale does not An inciorsement on a bill of sale by the buyer in reselling chattels guarantying their de

constitute a guaranty of title of any of the livery was not a warranty of title.

property mentioned in the bill of sale. The [Ed. Yote.-For cases in point, see Cent. Dig. complaint seems to be drawn in such manvol. 13, Sales, & 727.]

ner as to justify recovery either for a breach 3. LIMITATION OF ACTIONS — WRITTEN OBLI of a warranty to deliver possession, or for GATIONS-SALES-WARRANTIES. Where there was no express warranty of

a breach of a warranty of title. We may title, the fact that the sale of chattels was

assume, without deciding, that the legal efevidenced in writing, and that Civ. Code. $ 2:37:2. fect of the indorsement on the bill of sale creates an implied warranty of title by the seller of personal property, did not create a warranty

is to guaranty delivery of possession of the in writing within the meaning of Code Civ.

property to Pincus, but the evidence is Proc. $ 512, limiting the bringing of an action

wholly insufficient to sustain the charge that on a written obligation to eight years, the rule there was any violation of that agreement being that, where an action is founded on a written instrument, the agreement alleged to be

or breach of that guaranty. The testimony broken must appear by express terms in the

shows that, when the indorsement was made, instrument itself.

Muntzer was in possession of the property.

Pincus took the bill of sale with the indorseAppeal from District Court, Silver Bow

ment and immediately resold the property County; John B. McClernan, Judge.

to one Hanson. The record wholly fails to Action by A. Pincus against Henry Munt

show whether Pincus took possession of the zer. From a judgment for plaintiff, defend

property, whether he attempted to do so, ant appeals. Reversed and a new trial or

or whether, if he made such attempt, he was clered.

in any manner prevented from accomplishKirk and Clinton and Chas. A. Wallace, | ing his purpose. He states that he was infor appellant. J. L. Wines, for respondent. formed that Orton had a claim on the pianos;

that he notified Hanson of this claim; that HIOLLOWAY, J. In January, 1898, Mor he told Hanson to keep the pianos, and that ris Maloney and War IIannan sold to Henry he would stand between him and any one Muntzer certain personal property and evi- claiming them; and, finally, that he had to denced the transaction by a bill of sale in pay the amount of the Orton judgmentwhich there is an itemized list of the prop about $95, with the costs included. The only erty sold. Among the items two pianos are reasonable inference to be drawn from this mentioned. Muntzer took immediate pos- | testimony is that Pincus actually secured

MILBURY, J., not having heard the argument, takes no part in the foregoing decision.

(34 Mont. 494) WILLARD v. SMITH. (Supreme Court of Montana. Nov. 26, 1906.) 1. VENDOR AND PURCHASER-BREACII OF CONTRA(TT-DAMAGES.

Under ('iv. Code, $ 4306, providing that the detriment caused by the breach of an agreement to convey real property is the price paid and the expenses incurred in examining the title and preparing the necessary papers, with interest, but adding thereto, in cases of bad faith, the difference between the price agreed to be paid and the value of the property at the time of the breachi, and expenses properly incurred in preparing to enter upon the land, recovery in an action for breach of contract to convey title cannot be had for the amount expended in securing title, in the absence of bad faith on the part of the vendor.

Appeal from District Court, Silver Bow County; Jolin B. McClernan, Judge.

Action by David Willard against E. G. Smith. From

From a judgment for defendant, plaintiff appeals. Affirmed.

John X. Kirk and Chas. A. Wallace, for appellant. L'arr & Langford, for respondents.

possession of the property, or, at least, that his grantee, Hanson, did so. In any event, there is absolutely nothing to show a failure on Muntzer's part to make delivery.

The other theory of the action is, that it seeks to recover damages for a breach of a warranty of title to the two pianos, But there is not any such warranty contained in the indorsement. As stated before, at most it can be said to amount to nothing more than a guaranty that possession of the property would be delivered by Muntzer to Pincus; and this is a wholly different matter from a warranty of title in Muntzer. If plaintiff must rely upon an oral agreement or an implied guaranty, his cause of action was barred long before this action was commenced.

But it may be said that the action proceeds upon the theory that the sale from Muntzer to Pincus was evidenced by an instrument in writing, and, although it does not contain any express warranty of title, the statute (Civil Code, $ 2372) leads into it a warranty of title to the same extent as if the language of the statute had been writ. ten into the indorsement in full, and therefore the statute of limitations applicable is section 512 of the Code of Civil Procedure, and the period of eight years therein mentioned had not elapsed either from the date of the sale from Juntzer to Pincus, or from the date of the Orton judgment to the date of the commencement of this action. But section 512 above cannot be given a meaning to cover such a supposed case. The statute says that an action upon a contract, obligation, or liability founded upon an instrument in writing must be commenced within eight years. But the instrument in writing referred to must he one which, in itself, contains a contract to do the particular thing for the nonperformance of which the action is brought: in other words, that statute has no reference to an implied warranty. He who seeks to found his action upon an instrument in writing must show by express terms in the writing itself the very agreement the violation of which gives rise to his cause of action. Patterson v. Doe, 130 Cal. 333, 62 Pac. 369; McCarthy v. Mt. Tecarte L. & W. Co., 111 Cal. 328, 43 Pac. 956; Thomas v. Pacific Beach Co., 115 Cal. 136, 16 Pac. 899; 19 Ency. of Law (201. Ed.) 272.

As there is not any express warranty of title in the indorsement, plaintiff's cause of action was barred, so far as this theory of the case is concerned. We are not prepared, however, to say that, upon the other theory, a different showing might not be made upon another trial.

The judgment and order are reversed, and the (ause is remanded for a new trial.

Reversed and remanded.

BRANTLY, C. J. This action was brought to recover damages for a breach of a contract entered into between plaintiff and defendant, under the terms of which the latter agreed to convey to the former lot 20, block 4, in the Boulevard addition to the city of Butte. At the trial the defendant objected to the introduction of any evidence by plaintiff, for the reason that the complaint does not state a cause of action. The objection was sustained, and judgment entered for the defendant for costs. The appeal is from the judgment. The question submitted for decision is whether the ruling of the district (ourt was correct.

The complaint, omitting formal parts, alleges: "That on or about the 2d day of October, 1901, plaintiff entered into an agreement, in writing, with the defendant for the purchase of lot 20, in block four (1) of the Boulevard addition of Butte, Mont., for the consideration of one hundred fifty dollars ($1.50); a copy of which agreement is attached to and made a part of this complaint and markedl Exhibit A.' That the plaintiff paid the defendant said sum of one hundred and fifty dollars ($150), as provided for in said agreement, and fully complied with every part of said agreement to be by him kept and performed. That thereafter, and relying on the conditions of said agreement, plaintiff entered into possession of the said described premises and made improvements thereon of the value of twelve hundred dollars ($1,200.00). That after making said improvements, plaintiff learned for the first time that the defendant was unable to convey a good title to the said described property and was not the own

BRAXTLY, C. J., concurs.

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