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his estate thereafter. Respondent claims that the complaint fails to state a cause of action under the terms of the contract, or in consonance with the law of guaranty, since the contract, being one of conditional, as distinguished from absolute, guaranty, it was vitally incumbent upon plaintiff to plead as a condition precedent that he had made a reasonable effort to collect the amount from Carpenter before resorting to the guarantor's liability.

[3, 4] The contract is undoubtedly one of conditional guaranty, and respondent's contention must prevail. 4 Enc. P. & P. 627; 13 Cal. Jur. 126; Ohio Electric Co. v. Le Sage, 182 Cal. 450, 188 P. 982. Some cases even hold that the creditor guaranteed must plead exhaustion of his remedy against the principal. Clay v. Edgerton, 19 Ohio St. 549, 2 Am. Rep. 422; Lent v. Padelford, 10 Mass. 230, 6 Am. Dec. 119. Unless the party guaranteed prosecutes the principal, after maturity and failure to pay, with reasonable diligence, the guarantor's liability is discharged, and the creditor has no cause

of action against him.

Brandt on Suretyship & Guaranty (3d Ed.) vol. 1, § 114; note, 64 Am. St. Rep. 399. It might be urged that the failure to plead reasonable effort to collect has been cured by the allegation that the debtor died insolvent and left no estate out of which the debt could be paid or made. This, however, falls far short of excusing the failure to attempt collection. A man may be unable to pay his debts in full, and yet bring joy to his creditors by liquidating at 99 cents on the dollar. So far as the complaint advises, Carpenter may have passed, leaving an altogether incontemptible store of "siller and gear," in the which plaintiff, with small diligence, might have shared.

The complaint does not state a cause of action, and the judgment of dismissal should be affirmed.

ceeds, held unwarranted under pleadings and evidence in action to recover amount received by defendant from proceeds.

2. Contracts 143-Courts Interpret contracts, but cannot make them.

It is beyond power of courts to make agreements for parties, or to alter or amend those which parties themselves have made, court's duty being to interpret.

3. Appeal and error 1011(1)-Findings on conflicting evidence not disturbed, where evidence does not preponderate against finding.

Where evidence was conflicting, and it cannot be said to preponderate against court's findings, findings will not be disturbed.

Appeal from District Court, Silver Bow County; Wm. E. Carroll, Judge.

Action by D. A. Batchoff against A. B. Melzner. Judgment for defendant, and plaintiff appeals. Affirmed in part; reversed and remanded in part.

Lamb & Malloy, of Butte, for appellant. Canning & Geagan and Wheeler & Baldwin, all of Butte, for respondent.

STARK, J. This case was tried to the court without a jury. At the close of the testimony, plaintiff and defendant each requested the court to make findings, and submitted such as he desired adopted. The court did not, in terms, adopt either, but made findings and conclusions of its own and entered a judgment in favor of the defendant. From this judgment the plaintiff has appealed.

Two causes of action are set forth in the complaint, the first of which alleges that on or about the 7th day of January, 1919, the plaintiff became the owner of an option for the purchase of 8,600 shares of the stock of the Cascade Silver Mines and Mills Company, upon the following terms: 2,150 shares at 30 cents per share, payable on or before

McCARTHY, C. J., and BUDGE, DUNN, May 1, 1919; 2,150 shares at 40 cents per and WM. E. LEE, JJ., concur.

PER CURIAM. The foregoing is hereby adopted as the opinion of the court, and the judgment is affirmed. Costs awarded to respondent.

BATCHOFF v. MELZNER. (No. 5533.) (Supreme Court of Montana. Oct. 20, 1924.)

1. Trial 396(1)—Findings held unwarranted under pleadings and evidence.

Findings that, after plaintiff acquired option on stock, agreement was made that plaintiff and defendant should buy the stock, and that each was to receive one-half profits, that defendant was to finance deal and attend to details regarding disposal and account for pro

share, payable on or before May 1, 1919; 2,150 shares at 50 cents per share, payable on or before July 1, 1919; and 2,150 shares at 60 cents per share, payable on or before August 1, 1919-and continued to be the owner of the option until it was exercised and disposed of as set forth in paragraph 2 of the complaint, which alleges that on or about the 1st day of May, 1919, the defendant stated and represented to him that inasmuch as he (defendant) and H. L. Maury were partners engaged in, and contemplattransactions, and were going to make large ing engaging in, mining deals and similar amounts of money in such transactions, "that, if the plaintiff would split the said option belonging to plaintiff with the defendant fifty-fifty, the defendant would see that the plaintiff should and would receive a share equivalent to the amount of money

(230 P.)

paid to the company therefor and all expenses of sale, $11,910 remained, which was divided between them, each taking one-half. So that the primary inquiry arising under this cause of action is: Was the option in question given to the plaintiff for his sole benefit, or was it issued in plaintiff's name for the joint benefit of himself and defendant?

the plaintiff gave the defendant, in any fu- [ ant testified that, after deducting from the ture mining or other venture that the de- total selling price of the stock the amount fendant and said Maury may have, which proposition so made the plaintiff, the plaintiff then and there accepted, and thereafter, in accordance with said agreement between plaintiff and defendant, the plaintiff and defendant exercised their rights under said option and took up the stock described" therein, and during the months of May, June, and July of said year sold said stock, and, after paying the option price therefor, there remained the sum of $11,910, which sum of money the plaintiff and defendant divided, giving them $5,955 each.

It is further alleged that the defendant and Maury, subsequent to that time, engaged in mining deals and similar transactions, which resulted in profits to them in a sum exceeding $40,000, the exact amount of which was unknown to the plaintiff; that the defendant, "since the receipt of said $5,955 | in trust for the uses and purposes described in paragraph 2 of this complaint, has not in any manner accounted to the plaintiff therefor"; that prior to the commencement of the action the plaintiff requested of the defendant an accounting of said sum of $5,955; that the defendant had refused to account therefor, and had disavowed any liability to the plaintiff under said agreement or otherwise, and has always refused and neglected to account to the plaintiff for any part of said money; that the plaintiff has elected to require the defendant to return the said sum, together with interest, and that it has never been paid, and that by reason thereof the defendant is indebted to the plaintiff in the sum of $5,955, with interest.

To this first cause of action the defendant filed an answer, in which he denied that the plaintiff became the owner of the option mentioned therein, but alleged that said option was given to the defendant and the plaintiff; that it was taken and held in the name of the plaintiff, and that thereafter it was exercised by plaintiff and defendant, the stock mentioned therein sold, and the proceeds, after paying the option price as set out in the complaint and answer, divided between the plaintiff and defendant; admitted that the defendant and Maury were engaged in mining deals or mining enterprises subsequent to the 7th day of January, 1919, and denied all of the other allegations of the first cause of action.

Under the pleadings, it is admitted that the option was given; that it was exercised according to its terms; that the stock was sold; that, after paying the option price for the stock out of the proceeds of the sale, the balance was divided between plaintiff and defendant. In passing, it may be observed that there is no dispute in the evidence over the amount received from the sale of the stock. Both plaintiff and defend230 P.-4

The testimony introduced to sustain the first cause of action tended to show that the plaintiff for several years had occupied an office with the firm of Maury & Melzner and had rendered sundry services for them; that said firm, in addition to being engaged in the practice of law, was interested in a certain mining corporation known as the Cascade Silver Mines & Mills Company, and that during the year 1918 the plaintiff had rendered services for the company in the sale of stocks and bonds under an oral agreement with its vice president, that he should be compensated therefor by being given an option for the purchase of certain shares of its stock, and in fulfillment of this oral agreement, at a meeting of the board of directors of this. corporation, on January 7, 1919, a resolution was duly passed and adopted giving to the plaintiff the option set out in the complaint.

The plaintiff testified that these 8,600 shares of stock were issued and placed in the safe in the office of Maury & Melzner, to be delivered as paid for, and subsequent thereto, along about the 1st of May, the defendant came to him and suggested that they enter into an agreement for a division of the option; his testimony in that respect being that the defendant said to him:

"You realize, Batchoff, Maury is a very brilliant man and capable of promoting mining deals. This is not going to be the only thing that is going to be promoted and carried to success in the office. There are other things coming up. You also realize that you are not recognized as a partner in those kinds of dealings, and how would you like to share in the future with us in any mining venture that we have?"

To which the plaintiff replied that such an arrangement would be agreeable to him; whereupon the defendant said:

and I will let you in on any kind of a promo"Well, if you do, split that option with me tion that we may have in the future, that you may share with us on the ground floor."

To which suggestion the plaintiff agreed, and says that thereupon, in pursuance of the agreement, he indorsed and turned over to the defendant the 8,600 shares of stock. The testimony also shows that soon after this conversation the stock mentioned was placed on the market and all disposed of during a period of three or four weeks, and that the net amount received therefor was

divided between the plaintiff and the de- vided, in substance, that, in consideration of fendant.

The plaintiff also testified that no consideration passed to him from the defendant for an assignment of a half interest in this option, except the agreement above mentioned; that about June 1, 1923, he demanded an accounting from the defendant for this money, or its proceeds, and the defendant denied any liability to him whatever on account of this transaction. There was no dispute as to the method of payment for the stock. The defendant testified:

"Q. Did you pay for it, or did Batchoff pay for it? A. Oh, Batchoff paid for it in this way, that sales were made. * * * I would handle the thing as agent for Batchoff and Melzner. We paid the company for the stock, and it would be taken out. Batchoff paid for the option just as much as I did."

The plaintiff introduced other testimony tending to sustain the allegations of the first cause of action, to which it is not necessary to make reference. The testimony showed that prior to November, 1918, B. K. Wheeler was associated with Maury & Melzner in the practice of law, under the firm name of Maury, Wheeler & Melzner, and in connection with that business Maury and Wheeler had become possessed of certain shares of stock in the Cascade Silver Mines & Mills Company.

In support of his defense to the first cause of action, the defendant testified that about the 1st of November, 1918, the firm of Maury, Wheeler & Melzner was dissolved and was succeeded by the firm of Maury & Melzner. At the time of the dissolution of the Maury, Wheeler & Melzner partnership, Wheeler was given 35,000 shares as his portion of the stock that had been received by the firm from the Cascade Silver Mines & Mills Company. Shortly after the Maury and Melzner partnership was formed, Maury suggested that they, together with plaintiff and one Brabrook, attempt to secure this stock from Wheeler. At that time neither defendant, Maury, Batchoff, nor Brabrook had any money, and a plan was devised to secure the stock, which consisted of Batchoff making the actual negotiations with Wheeler, which he did, and reported that they could get it for $4,250. To raise the money, a note signed by Batchoff, Maury, and defendant, was given to one Simon Bank who advanced $1,000 to the parties; and finally defendant proposed that he might be able to raise $3,000 of the money by placing a mortgage on his home. Some time in December defendant did arrange for a loan of that amount, which was not completed until the 3d of January, 1919, but he obtained an advance of $1,000 of the amount on December 21, 1918, which he gave to Batchoff, who already had the $1,000 secured from Bank. Batchoff then went to Wheeler and received

that, in

the sum of $2,000 paid to Wheeler, Batchoff had the right to purchase the 35,000 shares of Cascade stock for an additional sum of $2,250, at any time within 15 days, and, further, that the stock should be deposited in the First National Bank of Butte in escrow, and upon payment of the balance should be delivered to Batchoff; the discussion of the method of raising the money had between Brabrook, Batchoff, Maury, and himself, Maury and Brabrook stated to him that Batchoff had previously sold some bonds of the Cascade Company, and that as officers and directors of the company they were in position to give him an option on some stock, and that if he (defendant) would furnish the balance of the funds to finance this deal they would issue this option to Batchoff, and that he and defendant could divide it equally for their services in securing the Wheeler option.

Defendant completed the loan, which gave him $2,000 additional to put in the deal. The remaining $250 was raised by sale of 1,000 shares of Wheeler stock. The balance of the purchase price was then paid, and the certificate for 35,000 shares turned over to the defendant; whereupon a written agreement was entered into concerning it, which recited the conditions of its purchase; that Melzner had paid $3,000 thereon, and provided that Batchoff and Maury should pay the amount due on the note to Simon Bank; that Melzner should hold the certificate for 35,000 shares until Maury, Batchoff, and Brabrook should pay to him the sum of $2,000, and that the interest of each of the parties to the agreement should be onefourth of the 35,000. The witness continued, "Immediately upon the securing of that stock, I took charge of the entire matter," and proceeded to sell off sufficient of the stock to repay the purchase price thereof, and thereafter the balance of the stock remaining was split up and divided between the parties to the agreement, in accordance with its terms.

Other testimony was introduced tending to support the defendant's contention. In rebuttal, the plaintiff and H. L. Maury both testified that there was no connection between the Batchoff option for 8,600 shares and the Wheeler option for 35,000; that there was no discussion whatever, as testified to by defendant, that he was to have a half interest in the Batchoff option, in consideration of his furnishing the funds to finance the Wheeler deal.

Upon this record the court made its findings as to the first cause of action. Responding to the primary inquiry with which our discussion began, namely, whether the Batchoff option was given to the plaintiff for his sole benefit, or whether it was issued in his name for the joint benefit of himself and the

(230 P.)

of this option to the plaintiff and concludes | Plaintiff's counsel, however, assert that findas follows: ing No. 10 is unwarranted by either pleading or proof in the case. This contention must be sustained.

"This option ran to Batchoff personally and was, as the evidence shows, extended to him in consideration and recognition of services previously rendered by him in the sale and disposal of certain bonds of the Cascade Silver Mines & Mills Company. * *

Finding No. 9 negatives defendant's contention that this option was given to plaintiff and defendant in connection with the Wheeler transaction, and is as follows:

"(9) That this transaction of 8,600 shares was not at the time involved in, connected with, founded upon, or agreed to be divided as an adjunct to, the Wheeler stock above mentioned, but, as stated, ran to Batchoff personally, and to no one else, and is the stock involved in the first cause of action stated in the complaint."

The court's finding No. 10 is as follows: "That thereafter, the exact date not being disclosed by the testimony, but at some time during the period from January 7, 1919, until the 8th day of April, 1919, and during the time defendant Melzner was engaged in handling the Wheeler stock, the plaintiff and the defendant entered into an agreement as to the 8,600 shares referred to, and agreed that said stock should be bought and paid for and dealt with in the market, and that each was to receive onehalf of any and all profits from their dealings in the market; that said defendant Melzner was to finance the deal and attend to the details regarding the sale and disposal of the same in the stock market, and to account to the plaintiff for a one-half part of any and all profits made in the handling of the 8,600 | shares."

Based on the contract set out in the lastquoted finding, the court's findings 11 to 14 declare in effect that Melzner took over the Batchoff option stock and the Wheeler stock, disposed of enough Wheeler stock to repay the purchase price thereof, divided the balance amongst the parties entitled thereto, and also took over the Batchoff option stock, sold it on the market, divided the net proceeds between himself and Batchoff, thus closing the deal, and concludes that the plaintiff is not entitled to recover on the first cause of action.

By 12 specifications of error the plaintiff challenges findings 11 to 14 and the conclusions of law based thereon, upon the ground that they are inconsistent with findings 8 and 9. The correctness of findings Nos. 8 and 9 is not questioned on this appeal. Unless the conditions determined by these two findings were changed, then the court's findings 11 to 14 were clearly inconsistent with them and entirely without justification upon the record.

[1] In its finding No. 10 the court determined that these conditions were changed by a subsequent agreement which it recites.

The foregoing summary of the pleadings demonstrates that no contract such as the one referred to in finding No. 10 was mentioned in either the complaint or answer; and a study of the entire record has failed to disclose that such a contract was referred to at any place. Counsel for respondent has not directed attention to any evidence which tends, in the least, to indicate that such an agreement as that referred to was ever made. It thus appears that the court found that a contract existed, in reference to which there was neither pleading nor proof, and which is wholly at variance with the claim of either plaintiff or defendant; and that this contract was made the basis of this judgment upon the first cause of action.

The

[2] No rule of law is better established than that which declares that it is beyond the power of a court to make agreements for parties, or to alter or amend those which the parties themselves have made. duty of the court is to interpret contracts which are open to interpretation and to enforce them. State Bank of Darby v. Pew, 59 Mont. 144, 195 P. 852; General F. E. Co. v. Northwestern Auto Supply Co., 65 Mont. 371, 211 P. 308; McConnell v. Blackley, 66 Mont. 510, 214 P. 84.

Since the judgment of the court upon the first cause of action is based on the erroneous assumption that the plaintiff and defendant entered into a contract such as is set out in finding No. 10, it follows that it cannot be sustained.

The second cause of action set out in the

complaint alleges that during the years 1919, 1920, 1921, and 1922 the defendant and H. L. Maury were engaged in business at Butte and elsewhere under the firm name of Maury & Melzner, and that during said time the plaintiff performed services for this firm without any agreement as to the amount of compensation which he was to receive therefor; that about April 1, 1922, it was agreed between said Maury & Melzner and plaintiff that, as payment for such services, said firm should and would transfer and deliver to plaintiff 1,611 shares of the capital stock of the Silver Dyke Mining Company, and in accordance with this agreement said firm delivered to the defendant 805 shares of said stock, to be turned over to plaintiff on demand, and that the defendant received and accepted said 805 shares of stock under said agreement; that prior to the commencement of this suit the plaintiff made demand upon the defendant for the delivery to him of said stock, which demand was refused. The prayer asks that the defendant be required to deliver said 805 shares of stock to the plaintiff, or for

such other relief as plaintiff may equitably drawn from facts which evidence tends to esbe entitled to.

The answer admits the partnership between Maury and Melzner, alleges that it was a partnership only for the practice of law, and admits that plaintiff performed services for said firm as alleged in the second cause of action, but asserts that he had been fully paid therefor.

[3] The testimony upon the second cause of action covers several hundred printed pages. To epitomize it would unduly extend this opinion. It has all been read and considered. At most it presents substantial differences upon the theories contended for by the opposing parties.

After hearing the testimony of the witnesses, both for plaintiff and defendant, the

court found as a matter of fact that the firm of Maury & Melzner never delivered to the defendant Melzner any shares of stock in the Silver Dyke Company for plaintiff's benefit, that defendant never received or accepted any such shares of stock for the plaintiff, and that the plaintiff was not entitled to recover on his second cause of action. The evidence as to the second cause of action is in perplexing conflict. It cannot be said that it preponderates against the court's findings, and for this reason they will not be disturbed upon appeal. Nolan v. Benninghoff, 64 Mont. 68, 208 P. 905; Thomas v. Standard Dev. Co., 69 Mont. 224 P. 870.

For the reasons herein indicated, the judgment of the trial court upon the second' cause of action set forth in the complaint of plaintiff is affirmed, and the judgment entered on the first cause of action is reversed, and the cause remanded to the district court for further proceedings. Each party will pay one-half the costs of this appeal.

CALLAWAY, C. J., and RANKIN, GALEN, and HOLLOWAY, JJ., concur.

tablish.

3. Appeal and error 989-In reviewing order directing verdict for, defendant, Supreme Court considers only "plaintiff's evidence." fendant, under Rev. Codes 1921, § 9364, SuIn reviewing order directing verdict for depreme Court considers only plaintiff's evidence, and, if it tends to establish his case, order will be reversed; "plaintiff's evidence" excluding bare scintilla, but including every fair inference from facts proved, as well as defendant's evidence supporting plaintiff's case.

4. Master and servant 286(4)-Evidence that pick was not in reasonably safe condition for use held to raise jury question.

hand was not in reasonably safe condition for Evidence, that dulled pick used by section use and increased hazard of employment, held to raise jury question, and it was error to direct verdict for defendant.

5. Master and servant 285 (5)-Evidence held to make question for jury as to proximate cause of injury.

to

Evidence held to make question for jury as whether dull pick which slipped off crosshit section hand in eye, was proximate cause tie and struck substance, which dislodged and of his injury.

6. Negligence 134 (2)-Proximate cause of injury provable by indirect evidence.

Proximate cause of injury may be proved by indirect evidence.

7. Master and servant

288(15)-Whether

section hand assumed risk from defective pick after complaint to foreman held under evidence for jury.

Whether section hand continued use of defective pick after complaint to foreman that it was dangerous to work with, in reliance on promise to repair, held under evidence properly for jury.

8. Master and servant 288(15)-Whether section hand worked for unreasonable time after promise to supply new pick held for jury.

Whether section hand worked with defective pick for unreasonable length of time after JOHNSON v. CHICAGO, M. & ST. P. R. Co. foreman's promise to supply new pick held un

(No. 5521.)

(Supreme Court of Montana. Oct. 20, 1924.)

1. Trial 178-On defendant's motion for verdict, plaintiff's evidence is construed in most favorable light.

On defendant's motion for directed verdict, under Rev. Codes 1921, § 9364, plaintiff's evidence is construed in light most favorable to him, and as proving whatever it tends to prove. 2. Trial 142-Cause never withdrawn from jury, unless recovery cannot be had under any view from facts.

A cause should never be withdrawn from jury, under Rev. Codes 1921, § 9364, unless recovery cannot be had on any view reasonably

der evidence for jury.

9. Master and servant 221 (6)—After promise that repair of defective tool shall be made on happening of event, master assumes risk till event happens,

When promise to repair defective tool is that repair shall be made on happening of certain event, master assumes risk until event has happened, and for reasonable time thereafter. 10. Master and servant 101, 102(8)-Master must exercise ordinary care to provide reasonably safe tools and appliances.

Master has duty to exercise ordinary care to provide servant with reasonably safe tools and appliances, and see that they are kept in reasonable safe and suitable condition for use.

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