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(34 Mont. 503)

BORDEN v. LYNCH.

(Supreme Court of Montana. Nov. 26, 1906.) 1. JUDGMENT-TRIAL OF ISSUES JUDGMENT ROLL-CONTENTS.

An order permitting an amendment of a complaint and refusing a continuance is properly a part of the judgment roll as provided by Code Civ. Proc. $$ 1151, 1196.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 30. Judgment, $$ 548. 550, 551.]

2. APPEAL--RECORD-AFFIDAVITS FOR CONTIN

UANCE.

Affidavits filed in support of an application to amend a complaint or of a motion for a continuance can be made a part of the record only by bill of exceptions.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3. Appeal and Error, § 2374.]

3. SAME RULINGS ON EVIDENCE EXCEPTIONS NECESSITY.

The reservation of an exception to the exclusion of evidence as provided by Code Civ. Proc. $1150, is necessary to a review of the ruling.

[Ed. Note. For cases in point, see Cent. Dig. vol. 2. Appeal and Error, §§ 1503, 1504.] 4. WITNESSES-CROSS-EXAMINATION.

Where, in an action by a mortgagee to recover the mortgaged property from an officer 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 note and mortgage in question, defendant was not entitled to cross-examine her as to the consideration or the circumstances connected

with the execution of the mortgage, either on the theory that such matters were part of the res gestæ, or were connected with the matters testified to in chief and therefore constituted proper cross-examination, as provided by Code Civ. Proc. § 3376.

[Ed. Note. For cases in point. see Cent. Dig. vol. 50. Witnesses, $$ 949, 950, 954.]

5. APPEAL, PREJUDICE RULINGS ON EVIDENCY.

Where a question had already been answered. defendant was not prejudiced by the court's refusal on objection to permit the witness to repeat the answer.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3. Appeal and Error, § 4195.1

6. TRIAL EVIDENCE-OFFER OF PROOF-SCOPE.

In an action by a chattel mortgagee to recover for the conversion of the property by an officer who had levied thereon, defendant offered to prove by the attaching creditor that the mortgagor had told him shortly before the execution of the mortgage that she intended to execute it to prevent her other creditors from levying on her property. Held. that such offer was properly rejected for failure to include an offer to show that plaintiff was cognizant of the mortgagor's intent or aided her in its accomplishment.

7. FRAUDULENT CONVEYANCE WANT OF C'ONSIDERATION-BURDEN OF PROOF.

Where plaintiff claimed certain property under a note secured by a chattel mortgage thereon the note and mortgage imported a consideration as provided by Civ. Code, § 2169, and the burden of proof to show want of consideration to support the instrument was on the party seeking to invalidate or avoid it, as provided by section 2170, though the mortgage was given to secure an antecedent debt.

[Ed. Note. For cases in point. see Cent. Dig. vol. 24, Fraudulent Conveyances, § 809.] 8. SAME-INSOLVENCY.

The fact that a chattel mortgagor was insolvent at the time she made the mortgage did not of itself render the transaction void as 87 P.-39

against her creditors, the mortgagor being entitled to pledge her property to obtain loans or to secure an antecedent debt, provided the creditor acted in good faith.

[Ed. Note. For cases in point, see Cent. Dig. vol. 24, Fraudulent Conveyances, § 138.] 9. SAME-INSTRUCTIONS.

against an officer for conversion of mortgaged Where, in an action by a chattel mortgagee property by a levy thereon, defendant contended that the mortgage was a fraud on creditors, an instruction tht the note imported a consideration, that the burden was on defendant to show lack of consideration by a preponderance of the evidence, and that, if there was a valuable consideration for the note and mortgage, then they were valid, notwithstanding the mortgagor may have been indebted to other persons or may have been insolvent at the time, was not objectionable as excluding from the jury's consideration the fact that the debtor was insolvent when the mortgage was executed.

Appeal from District Court, Deer Lodge County: Geo. B. Winston, Judge.

Action by Kate Borden against D. Lynch. From a judgment for plaintiff, defendant appeals. Affirmed.

T. O'Leary, for appellant. J. II. Duffy, for respondent.

BRANTLY, C. J. Action for damages for the conversion of certain personal property by the defendant as constable of Anaconda township, Deer Lodge county. Plaintiff states her cause of action in two counts. After alleging the official capacity of the defendant. the complaint sets out in the first cause of action, in substance, that on July 10, 1905, one Elizabeth Nichols executed a promissory note to the plaintiff for the sum of $850, payable one year after date with interest at the rate of 1 per cent. per month, payable monthly that, on the same day, to secure the payment of the same according to its terms, said Nichols executed and delivered to plaintiff a chattel mortgage upon certain personal property which was filed for record with the clerk and recorder of Deer Lodge county; that the plaintiff is the owner and holder of the note and mortgage, and that no part of said note has been paid: that, by the terms of the mortgage and note, the sum of $854.81 became and was due from the said Nichols to plaintiff on January 27. 1905; that on that date. in an action brought in the justice's court of Anaconda township, wherein one Barich was plaintiff and the said Nichols defendant, a writ of attachment was issued and placed in the hands of the defendant. who seized thereunder the property described in the mortgage and took it into his possession and that he neither paid nor tendered to plaintiff the amount of her note with interest, nor deposited the amount thereof with the county treasurer, nor did he himself pay the amount thereof though requested so to do. and further refused upon demand to release the property from the attachment. The second cause of action, in addition to these facts, alleges that it was provided by the terms of said mortgage that, if the said Nich

ols defaulted in the payment of the principal | by bill of exceptions, properly settled. Carr

of said note or any interest thereon according to its terms, or if, prior to its maturity, the property described in the mortgage or any part thereof should be seized under attachment or execution at the instance of any creditor of said Nichols, then, in either event, the plaintiff should be entitled to the immediate possession of all of the property; that, on July 27, 1905, the property was seized and attached at the instance of one Barich, creditor of said Nichols; that by reason of the seizure the plaintiff became and was entitled to the possession thereof; that before the commencement of this action the plaintiff demanded possession of the defendant, and that he refused to deliver the same. Both causes of action allege that the property was, at the date of the seizure, of the value of $884. Judgment is demanded for damages in that amount.

The answer admits the execution of the note and mortgage with the stipulations and conditions therein contained, and the seizure of the property by defendant at the instance of Barich, but denies every other material allegation in both causes of action. It alleges affirmatively that the note and mortgage were executed without consideration and for the purpose of hindering, delaying, and defrauding the creditors of said Nichols. There is issue by reply. The trial resulted in a verdict and judgment for the plaintiff. The defendant has appealed from the judgment and an order denying a new trial.

1. Contention is made that the court erred in permitting the plaintiff to amend her complaint after the jury were sworn, by adding an allegation, by interlineation, of the value of the property, and in refusing the defendant a continuance on the ground of surprise. There is nothing in the record to indicate upon what ground the defendant made his application for a continuance. We find in the record the order permitting the amendment and refusing the continuance. This is a part of the judgment roll. Code Civ. Proc. §§ 1151, 1196. But the But the affidavits embodying facts necessary to move the discretion of the court, if such were presented and considered in support either of the amendment or of the motion for a continuance, are not incorporated in the record. Both applications were addressed to the discretion of the court, and, since there is nothing before us to enable us to say whether the court abused its discretion in either case, and the order is such as the court might have made, we cannot arbitrarily say that either ruling was errone

Among the papers constituting the record we find an affidavit to which appellant refers as the showing upon which the application for a continuance was made. But it is not identified by bill of exceptions and thus properly brought into the record as should have been done. It, therefore, may not be looked to for any purpose. Such matters can be made a part of the record only

Ryder & Adams Co. v. Closser et al., 27 Mont. 94, 69 Pac. 560.

2. Contention is made that the evidence is insufficient to justify the verdict. The amount of the damages found by the jury was $350. While the evidence is conflicting on this issue, the jury would have been warranted in finding a much larger sum. Touching the issue of fraud and want of consideration to support the note and mortgage, it is sufficient to say that there is no substantial evidence tending to show that the mortgage and note had their inception in fraud, and that, while there are some inconsistencies in the statements of the plaintiff and Elizabeth Nichols as to the amount of money advanced to the latter to secure the payment of which the mortgage was given, the evidence is sufficient to justify a finding that the note was given for the amount which was actually advanced before it and the mortgage were executed. We may not, under this condition of the evidence, disturb the finding of the jury.

3. Error is alleged upon many rulings made in excluding evidence offered by the defendant. defendant. In most instances counsel failed to reserve an exception to the particular ruling, as provided by section 1150 of the Code of Civil Procedure. For this reason such alleged errors may not be considered. We have examined all of those to which exceptions were properly reserved. In none of them do we find that the defendant suffered prejudice. For illustration: The plaintiff, being sworn as a witness, identified the mortgage and note, stated that she was the owner of them and that the defendant had not deposited the amount of the note with the county treasurer for her nor paid the same to her. On cross-examination she was asked for what consideration the note and mortgage had been given. Upon objection of her counsel, on the ground that it was not proper crossexamination, she was not permitted to answer. Being a party and having offered herself as a witness, the defendant insisted that he had a right to cross-examine her as to all the circumstances connected with the execution of the note and mortgage, including the consideration. The general rule in this country is that a witness may be cross-examined as to anything testified to by him in chief or connected therewith, but not as to other matters. Code Civ. Proc. § 3376; 3 Jones on Evidence, § 820; Kipp v. Silverman, 25 Mont. 296, 64 Pac. 884; Braly v. Henry, 77 Cal. 324, 19 Pac. 529; McFadden v. Mitchell, 61 Cal. 148: Youmans v. Carney, 62 Wis. 580, 23 N. W. 20; Bell v. Prewitt, 62 Ill. 361; Houghton v. Jones, 68 U. S. 702. 17 L. Ed. 503. While the rule should be extended rather than restricted in its application, it may not be extended to include matters clearly not connected with the subject-matter upon which examination in chief was had. The plaintiff having been asked only as to wheth

er she was the owner of the note and mortgage, it was not proper on cross-examination to go into questions of consideration or other circumstances connected with the transaction which resulted in their execution, either on the ground that such matters were part of the res gestæ, or that they were connected with matters deposed to in chief. Youmans v. Carney, Bell v. Prewitt, Braly v. Henry, McFadden v. Mitchell, supra. The rule applies as well to parties as to other witnesses. · Hansen v. Miller, 145 Ill. 538, 32 N. E. 548; State v. Schnepel, 23 Mont. 523, 59 Pac. 927. The plaintiff was asked during her examination by defendant, whether, when the mortgage and note were made, she did not know that an attachment had theretofore been levied upon the property by another creditor of Nichols. She answered that she did not. The question being repeated, she was not permitted to answer, counsel objecting that the matter sought to be brought out was immaterial. There was no error in this ruling. If the question was proper, it had already been answered. No advantage was to be obtained by a repetition.

Barich, the attaching creditor, introduced by the defendant, was asked if Nichols had not told him, a short time prior to the execution of the mortgage, that she intended to execute such mortgage for the purpose of preventing her other creditors from levying on her property. Upon objection this evidence was excluded. Thereupon defendant offered to prove, in substance, by this witness, that just before the mortgage and note were given, Nichols had told him that she was about to give the mortgage to prevent other parties from levying upon her property, but that it was not her intention to defeat any claim he might have against her. The offered evidence was excluded and exception reserved. The offer was not broad enough. While the declarations of Nichols were competent to show her fraudulent intent in incumbering her property (Wigmore on Evidence, 1086, par. 5), they could not affect the rights of plaintiff in the absence of proof that plaintiff was cognizant of her intent or aided her in its accomplishment. There was no proof of such knowledge on the part of the plaintiff, and, since the offer did not include a tender of such proof, the exclusion of the evidence was not prejudicial to the defendant. The right of the plaintiff could not be affected by any fraudulent intent entertained by Nichols, unless it appeared that she had knowledge of that fraudulent intent or aided the defendant in its accomplishment.

4. Among other instructions to the jury, the court submitted the following: "No. 5. The note set out in the complaint and introduced in evidence imports a valuable consideration, and it devolves upon the defendant in order to overthrow the note or mortgage for the lack of a consideration to show that fact by a preponderance of the evidence

introduced in the case on that issue, and, if there was a valuable consideration for the note and mortgage, then the note and mortgage in that respect are valid, at least to the extent of the amount of the consideration, notwithstanding Mrs. Nichols may at the time of their execution have been indebted to other persons or may have been insolvent." It is said that this instruction embodies an erroneous statement of the law, in that it casts upon the defendant the burden of showing that the note and mortgage were without consideration. There is no merit in this contention. The writings themselves imported a consideration (Civil Code, § 2169) and "the burden of showing a want of consideration sufficient to support an instrument lies with the party seeking to invalidate or avoid it" (Civil Code, § 2170). But it is said that Nichols, the mortgagor. and the plaintiff having admitted that ne money actually passed between them at the time of the execution of the mortgage, a case was presented that relieved the defendant of this burden, and that, under the facts of this case, the burden rested upon the plaintiff to show a valid consideration. The proof tended to show that, for some time prior to the execution of the mortgage, the plaintiff had been advancing money to Nichols; that during March, 1905, Nichols secured additional loans amounting to $410 from the plaintiff in order to enable her to purchase the property involved in this controversy from Barich and to make a payment of rent, and that, at the time she obtained the last sums, she agreed to execute the note and mortgage upon the property, to secure, not only the sums then advanced, but the sums theretofore advanced, but that the execution of them had been delayed by an unexpected absence from the state, so that the mortgage was in fact executed to secure the payment of an antecedent debt. The statute, however, declares the rule and must govern. If the defendant obtained the required proof from the plaintiff or her witnesses, to this extent he was fortunate in that he was relieved from the necessity of calling witnesses, but, nevertheless, the burden rested upon him to estab lish this affirmative allegation from some source. So far as concerns this portion of the instruction, we think it a correct statement of the law applicable, and that defendant has no cause to complain. But it is said that the latter part of the instruction excluded from the jury's consideration the fact that, at the time the note and mortgage were executed, the mortgagor, Nichols, was insolvent. This contention has no merit. The fact that she was insolvent, if such were the case, did not, in itself, render the transaction fraudulent and void as to the attaching creditor. An insolvent person may lawfully pledge his property to obtain loans or to secure an antecedent debt, and, if the creditor acts in good faith, he may not be deprived

of the preference thus given him over other creditors, on the ground that his debtor was insolvent at the time. The effect of the instruction is not to exclude from the consideration of the jury the fact that the mortgagor was at the time of the execution of the mortgage insolvent, but rather, in view of the other instructions submitted, to tell them that, if they found that the mortgage was supported by a valid consideration and given in good faith to secure a debt actually due, the fact that the mortgagor was insolvent at the time was not presumptive proof that it was fraudulent. We think the instruction states the law correctly in this respect.

There being no error in the record, the judgment and order must be affirmed. It is so ordered.

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An indorsement on a bill of sale by the buyer in reselling chattels guarantying their delivery was not a warranty of title.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 43, Sales, § 727.]

3. LIMITATION OF ACTIONS WRITTEN OBLIGATIONS SALES-WARRANTIES.

Where there was no express warranty of title, the fact that the sale of chattels was evidenced in writing, and that Civ. Code, § 2372. creates an implied warranty of title by the seller of personal property, did not create a warranty in writing within the meaning of Code Civ. Proc. $512, limiting the bringing of an action. on a written obligation to eight years; the rule being that, where an action is founded on a written instrument, the agreement alleged to be broken must appear by express terms in the instrument itself.

Appeal from District Court, Silver Bow County: John B. McClernan, Judge.

Action by A. Pincus against Henry Muntzer. From a judgment for plaintiff, defendant appeals. Reversed and a new trial ordered.

Kirk and Clinton and Chas. A. Wallace, for appellant. J. L. Wines, for respondent.

HOLLOWAY, J. In January, 1898, Morris Maloney and May Hannan sold to Henry Muntzer certain personal property and evidenced the transaction by a bill of sale in which there is an itemized list of the property sold. Among the items two pianos are mentioned. Muntzer took immediate pos

session of the property and on the same day made this indorsement on the bill of sale and then delivered it to A. Pincus, viz.: "Butte, Jany. 3, 1898. I hereby transfer the within bill of sale to A. Pincus and guarantee delivery of same. Henry Muntzer.” Soon after Pincus had taken the bill of sale with this indorsement on it, he discovered that Mr. Fred. Orton had owned the pianos mentioned and had sold them to Maloney and Hannan upon a conditional sale, the installment plan or such other arrangement, that in fact Orton had an outstanding claim against the pianos for something like $85. This claim Orton reduced to judgment on October 11, 1899, and this judgment Pincus was obliged to satisfy in order to retain the pianos. After satisfying the Orton judg ment, Pincus brought this action on July 5, 1904, against Muntzer for damages by reason of the failure of Muntzer to deliver to Pincus the two pianos, and by reason of the failure of title in Muntzer. The complaint alleges that the sale of the property from Muntzer to Pincus was evidenced by an instrument in writing. The answer denies every allegation of the complaint and pleads the bar of the statute of limitations. The trial in the district court resulted in a verdict and judgment in favor of the plaintiff, and from this judgment and an order denying his motion for a new trial, the defendant appeals.

It is argued by counsel for appellant, that the indorsement on the bill of sale does not constitute a guaranty of title of any of the property mentioned in the bill of sale. The complaint seems to be drawn in such manner as to justify recovery either for a breach of a warranty to deliver possession, or for a breach of a warranty of title. We may assume, without deciding, that the legal effect of the indorsement on the bill of sale is to guaranty delivery of possession of the property to Pincus, but the evidence is wholly insufficient to sustain the charge that there was any violation of that agreement or breach of that guaranty. The testimony shows that, when the indorsement was made, Muntzer was in possession of the property. Pincus took the bill of sale with the indorsement and immediately resold the property to one Hanson. The record wholly fails to show whether Pincus took possession of the property, whether he attempted to do so, or whether, if he made such attempt, he was in any manner prevented from accomplishing his purpose. He states that he was informed that Orton had a claim on the pianos; that he notified Hanson of this claim; that he told Hanson to keep the pianos, and that he would stand between him and any one claiming them; and, finally, that he had to pay the amount of the Orton judgmentabout $95, with the costs included. The only reasonable inference to be drawn from this testimony is that Pincus actually secured

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. plaintiff must rely upon an oral agreement or an implied guaranty, his cause of action. was barred long before this action was commenced.

If

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) reads into it a warranty of title to the same extent as if the language of the statute had been written 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 Muntzer 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 But the instrument in writing referred to must be 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. 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. 569; McCarthy v. Mt. Tecarte L. & W. Co., 111 Cal. 328, 43 Pac. 956: Thomas v. Pacific Beach Co., 115 Cal. 136, 46 Pac. 899: 19 Ency, of Law (2d. 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 are reversed, and the cause is remanded for a new trial. Reversed and remanded.

BRANTLY, C. J., concurs.

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(Supreme Court of Montana. Nov. 26, 1906.) 1. VENDOR AND PURCHASER-BREACH OF CONTRACT DAMAGES.

Under Civ. 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 breach, 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; John B. McClernan, Judge.

Action by David Willard against E. G. Smith. From a judgment for defendant, plaintiff appeals. Affirmed.

John N. Kirk and Chas. A. Wallace, for appellant. Parr & Langford, for respondents.

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 court 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 (4) of the Boulevard addition of Butte, Mont., for the consideration of one hundred fifty dollars ($150); a copy of which agreement is attached to and made a part of this complaint and marked 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

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