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his estate thereafter. Respondent claims , ceeds, held unwarranted under pleadings and that the complaint fails to state a cause of evidence in action to recover amount received action under the terms of the contract, or in by defendant from proceeds. consonance with the law of guaranty, since 2. Contracts Om 143 – Courts Interpret conthe contract, being one of conditional, as tracts, but cannvi make them. distinguished from absolute, guaranty, it was It is beyond power of courts to make agreevitally incumbent upon plaintiff to plead as ments for parties, or to alter or amend those a condition precedent that he had made a which parties themselves have made, court's reasonable effort to collect the amount from duty being to interpret. Carpenter before resorting to the guaran. 3. Appeal and error 1011(1)-Findings on tor's liability.

conflicting evidence not disturbed, where evi[3, 4] The contract is undoubtedly one of dence does not preponderate against finding. conditional guaranty, and respondent's con Where evidence was conflicting, and it cantention must prevail. 4 Enc. P. & P. 627; not be said to preponderate against court's find13 Cal. Jur. 126; Ohio Electric Co. v. Le ings, findings will not be disturbed. Sage, 182 Cal. 450, 188 P, 982. Some cases even hold that the creditor guaranteed must Appeal from District Court, Silver Bow plead exhaustion of his remedy against the County; Wm. E. Carroll, Judge. principal. Clay V. Edgerton, 19 Ohio St.

Action by D. A. Batchoff against A. B. 549, 2 Am. Rep. 422; Lent v. Padelford, 10 Melzner. Judgment for defendant, and plainMass. 230, 6 Am. Dec. 119. Unless the party tiff appeals. Affirmed in part;

reversed guaranteed prosecutes the principal, after and remanded in part. maturity and failure to pay, with reasonable diligence, the guarantor's liability is

Lamb & Malloy, of Butte, for appellant. discharged, and the creditor has no cause

Canning & Geagan and Wheeler & Baldof action against him. Brandt on Suretyship

win, all of Butte, for respondent. & Guaranty (3d Ed.) vol. 1, § 114; note, 64 Am. St. Rep. 399. It might be urged that STARK, J. This case was tried to the the failure to plead reasonable effort to court without a jury. At the close of the collect has been cured by the allegation that testimony, plaintiff and defendant each rethe debtor died insolvent and left no estate quested the court to make findings, and out of which the debt could be paid or made. submitted such as he desired adopted. The This, however, falls far short of excusing the court did not, in terms, adopt either, but failure to attempt collection. A man may be made findings and conclusions of its own unable to pay his debts in full, and yet and entered a judgment in favor of the debring joy to his creditors by liquidating at fendant. From this judgment the plaintițr 99 cents on the dollar. So far as the com- has appealed. plaint advises, Carpenter may have passed,

Two causes of action are set forth in the leaving an altogether incontemptible store of complaint, the first of which alleges that “siller and gear,” in the which plaintiff, with on or about the 7th day of January, 1919, small diligence, might have shared.

the plaintiff became the owner of an option The complaint does not state a cause of for the purchase of 8,600 shares of the stock action, and the judgment of dismissal should of the Cascade Silver Mines and Mills Combe atlirmed.

pany, 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.,

share, payable on or before May 1, 1919;

2,150 shares at 50 cents per share, payable PER CURIAM. The foregoing is hereby on or before July 1, 1919; and 2,150 shares adopted as the opinion of the court, and the at 60 cents per share, payable on or before judgment is affirmed. Costs awarded to August 1, 1919-and continued to be the respondent.

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 deBATCHOFF v. MELZNER. (No. 5533.)

fendant stated and represented to him that

inasmuch as he (defendant) and H. L. Maury (Supreme Court of Montana. Oct. 20, 1924.) were partners engaged in, and contemplat

ing engaging in, mining deals and similar 1. Trial w396(1)-Findings held unwarranted transactions, and were going to make large under pleadings and evidence.

amounts of money in such transactions, Findings that, after plaintiff acquired option on stock, agreement was made that plain- / "that, if the plaintiff would split the said tiff and defendant should buy the stock, and option belonging to plaintiff with the detha: each was to receive one-half profits, that fendant fifty-fifty, the defendant would see defendant was to finance deal and attend to de- | that the plaintiff should and would receive tails regarding disposal and account for pro a share equivalent to the amount of money

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concur.

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(230 P.) 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 paid to the company therefor and all exproposition so made the plaintiff, the plain-penses of sale, $11,910 remained, which was tiff then and there accepted, and thereafter, divided between them, each taking one-half. in accordance with said agreement between So that the primary inquiry arising under plaintiff and defendant, the plaintiff and this cause of action is: Was the option in defendant exercised their rights under said question given to the plaintiff for his sole option and took up the stock described" benefit, or was it issued in plaintiff's name therein, and during the months of May, June, for the joint benefit of himself and defendand July of said year sold said stock, and, ant? after paying the option price therefor, there The testimony introduced to sustain the remained the sum of $11,910, which sum first cause of action tended to show that of money the plaintiff and defendant divided, the plaintiff for several years had occupied giving them $5,955 each.

an office with the firm of Maury & Melzner It is further alleged that the defendant and had rendered sundry services for them; and Maury, subsequent to that time, engaged that said firm, in addition to being engaged in mining deals and similar transactions, in the practice of law, was interested in a which resulted in profits to them in a sum certain mining corporation known as the exceeding $40,000, the exact amount of which Cascade Silver Mines & Mills Company, and was unknown to the plaintiff ; that the that during the year 1918 the plaintiff had defendant, “since the receipt of said $5,955/ rendered services for the company in the in trust for the uses and purposes described sale of stocks and bonds under an oral agreein paragraph 2 of this complaint, has not ment with its vice president, that he should in any manner accounted to the plaintiff be compensated therefor by being given an therefor"; that prior to the commencement option for the purchase of certain shares of the action the plaintiff requested of the of its stock, and in fulfillment of this oral defendant an accounting of said sum of agreement, at a meeting of the board of $5,955; that the defendant had refused to directors of this. corporation, on January account therefor, and had disavowed any 7, 1919, a resolution was duly passed and liability to the plaintiff under said agreement adopted giving to the plaintiff the option or otherwise, and has always refused and set out in the complaint. neglected to account to the plaintiff for any The plaintiff testified that these 8,600 part of said money ; that the plaintiff has shares of stock were issued and placed in elected to require the defendant to return the safe in the office of Maury & Melzner, the said sum, together with interest, and to be delivered as paid for, and subsequent that it has never been paid, and that by thereto, along about the 1st of May, the dereason thereof the defendant is indebted to fendant came to him and suggested that they the plaintiff in the sum of $5,955, with in- enter into an agreement for a division of the terest.

option; his testimony in that respect being To this first cause of action the defendant. that the defendant said to him: filed an answer, in which he denied that

"You realize, Batchoff, Maury is a very brilthe plaintiff became the owner of the option liant man and capable of promoting mining mentioned therein, but alleged that said deals. This is not going to be the only thing option was given to the defendant and the that is going to be promoted and carried to sucplaintiff; that it was taken and held in the cess in the office. There are other things comname of the plaintiff, and that thereafter ing up. You also realize that you are not recit was exercised by plaintiff and defendant, ognized as a partner in those kinds of dealings, the stock mentioned therein sold, and the and how would you like to share in the future

with us in any mining venture that we have?" proceeds, after paying the option price as set out in the complaint and answer, divided To which the plaintiff replied that such between the plaintiff and defendant; ad- an arrangement would be agreeable to him; mitted that the defendant and Maury were whereupon the defendant said: engaged in mining deals or mining enterprises subsequent to the 7th day of January, and I will let you in on any kind of a promo

"Well, if you do, split that option with me 1919, and denied all of the other allegations tion that we may have in the future, that you of the first cause of action.

may share with us on the ground floor." Under the pleadings, it is admitted that the option was given; that it was exercised To which suggestion the plaintiff agreed, according to its terms; that the stock was and says that thereupon, in pursuance of sold; that, after paying the option price the agreement, he indorsed and turned over for the stock out of the proceeds of the sale, to the defendant the 8,600 shares of stock. the balance was divided between plaintiff The testimony also shows that soon after and defendant. In passing, it may be ob- this conversation the stock mentioned was served that there is no dispute in the evi- placed on the market and all disposed of dence over the amount received from the during a period of three or four weeks, and sale of the stock. Both plaintiff and defend that the net amount received therefor was

230 P.-4

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

the sum of $2,000 paid to Wheeler, Batchoff The plaintiff also testified that no consid- had the right to purchase the 35,000 shares eration passed to him from the defendant of Cascade stock for an additional sum of for an assignment of a half interest in this | $2,250, at any time within 15 days, and, option, except the agreement above men- further, that the stock should be deposited tioned; that about 1, 1923, he demand- in the First National Bank of Butte in ed an accounting from the defendant for escrow, and upon payment of the balance this money, or its proceeds, and the defend- should be delivered to Batchoff";

that, in ant denied any liability to him whatever the discussion of the method of raising the on account of this transaction. There was money had between Brabrook, Batchoff, no dispute as to the method of payment for Maury, and himself, Maury and Brabrook the stock. The defendant testified:

stated to him that Batchoff had previously "Q. Did you pay for it, or did Batchoff pay sold some bonds of the Cascade Company, for it? A. Oh, Batchoff paid for it in this and that as officers and directors of the way, that sales were made. * I would company they were in position to give him handle the thing as agent for Batchoff and an option on some stock, and that if he Melzner, We paid the company for the stock, (defendant) would furnish the balance of the and it would be taken out. Batchoff paid for funds to finance this deal they would issue the option just as much as I did.”

this option to Batchoff, and that he and The plaintiff introduced other testimony defendant could divide it equally for their tending to sustain the allegations of the services in securing the Wheeler option. first cause of action, to which it is not nec

Defendant completed the loan, which gave essary to make reference, The testimony him $2,000 additional to put in the deal. showed that prior to November, 1918, B. K. The remaining $250 was raised by sale of Wheeler was associated with Maury & Melz- 1,000 shares of Wheeler stock. The balance ner in the practice of law, under the firm of the purchase price was then paid, and the name of Maury, Wheeler & Melzner, and in certificate for 35,000 shares turned over to connection with that business Maury and the defendant; whereupon a written agreeWheeler had become possessed of certainment was entered into concerning it, which shares of stock in the Cascade Silver Mines recited the conditions of its purchase; that & Mills Company.

Melzner had paid $3,000 thereon, and proIn support of his defense to the first cause vided that Batchoff and Maury should pay of action, the defendant testified that about the amount due on the note to Simon Bank; the 1st of November, 1918, the firm of Maury, that Melzner should hold the certificate for Wheeler & Melzner was dissolved and was 35,000 shares until Maury, Batchoff, and succeeded by the firm of Maury & Melzner. Brabrook should pay to him the sum of At the time of the dissolution of the Maury, $2,000, and that the interest of each of the Wheeler & Melzner partnership, Wheeler parties to the agreement should be onewas given 35,000 shares as his portion of the fourth of the 35,000. The witness continued, stock that had been received by the firm “Immediately upon the securing of that from the Cascade Silver Mines & Mills Com- stock, I took charge of the entire matter," pany. Shortly after the Maury and Melzner and proceeded to sell off sufficient of the partnership was formed, Maury suggested stock to repay the purchase price thereof, that they, together with plaintiff and one and thereafter the balance of the stock reBrabrook, attempt to secure this stock from maining was split up and divided between Wheeler. At that time neither defendant, the parties to the agreement, in accordance Maury, Batchoff, nor Brabrook had any with its terms. money, and a plan was devised to secure the Other testimony was introduced tending stock, which consisted of Batchoff making to support the defendant's contention. In the actual negotiations with Wheeler, which rebuttal, the plaintiff and H. L. Maury both he did, and reported that they could get testified that there was no connection beit for $4,250. To raise the money, a note tween the Batchoff option for 8,600 shares signed by Batchoff, Maury, and defendant, and the Wheeler option for 35,000; that was given to one Simon Bank who advanced there was no discussion whatever, as testi$1,000 to the parties; and finally defendant fied to by defendant, that he was to have a proposed that he might be able to raise half interest in the Batchoff option, in con$3,000 of the money by placing a mortgage sideration of his furnishing the funds to on his home. Some time in December de finance the Wheeler deal. fendant did arrange for a loan of that Upon this record the court made its findamount, which was not completed until the ings as to the first cause of action. Respond3d of January, 1919, but he obtained an ad- ing to the primary inquiry with which our vance of $1,000 of the amount on December discussion began, namely, whether the Batch21, 1918, which he gave to Batchoff, who off option was given to the plaintiff for his already had the $1,000 secured from Bank. sole benefit, or whether it was issued in his Batchoff then went to Wheeler and received name for the joint benefit of himself and the from him a written agreement, which pro- defendant, finding No. 8 recites the granting

The

(230 P.) of this option to the plaintiff and concludes Plaintiff's counsel, however, assert that indas follows:

ing No. 10 is unwarranted by either plead"This option ran to Batchoff personally and ing or proof in the case. This contention was, as the evidence shows, extended to him in must be sustained. consideration and recognition of services previ The foregoing summary of the pleadings ously rendered by him in the sale and disposal demonstrates that no contract such as the of certain bonds of the Cascade Silver Mines

one referred to in finding No. 10 was & Mills Company.

mentioned in either the complaint or answer;

and a study of the entire record has failed Finding No. 9 negatives defendant's con- to disclose that such a contract was referred tention that this option was given to plain-| to at any place. Counsel for respondent tiff and defendant in connection with the bas not directed attention to any evidence Wheeler transaction, and is as follows: which tends, in the least, to indicate that

“(9) That this transaction of 8,600 shares such an agreement as that referred to was was not at the time involved in, connected with,

ever made. It thus appears that the court founded upon, or agreed to be divided as an

found that a contract existed, in reference adjunct to, the Wheeler stock above mentioned, to which there was neither pleading nor but, as stated, ran to Batchoff personally, and proof, and which is wholly at variance with to no one else, and is the stock ibvolved in the claim of either plaintiff or defendant; the first cause of action stated in the com

and that this contract was made the basis plaint.”

of this judgment upon the first cause of

action. The court's finding No. 10 is as follows:

[2] No rule of law is better established "That thereafter, the exact date not being than that which declares that it is beyond disclosed by the testimony, but at some time the power of a court to make agreements during the period from January 7, 1919, until for parties, or to alter or amend those which the 8th day of April, 1919, and during the time the parties themselves have made. defendant Melzner was engaged in handling the Wheeler stock, the plaintiff and the defendant duty of the court is to interpret contracts entered into an agreement as to the 8,600 which are open to interpretation and to enshares referred to, and agreed that said stock force them. State Bank of Darby v. Pew, should be bought and paid for and dealt with 59 Mont. 144, 195 P. 852; General F. E. Co. in the market, and that each was to receive one

v. Northwestern Auto Supply Co., 65 Mont. half of any and all profits from their dealings 371, 211 P. 308; McConnell v. Blackley, 66 in the market; that said defendant Melzner

Mont. 510, 214 P. 84. was to finance the deal and attend to the details regarding the sale and disposal of the

Since the judgment of the court upon the same in the stock market, and to account to first cause of action is based on the errothe plaintiff for a one-half part of any and neous assumption that the plaintiff and all profits made in the handling of the 8,600 | defendant entered into a contract such as shares."

is set out in finding No. 10, it follows that

it cannot be sustained. Based on the contract set out in the last

The second cause of action set out in the quoted finding, the court's findings 11 to 14 complaint alleges that during the years declare in effect that Melzner took over the 1919, 1920, 1921, and 1922 the defendant Batchoff option stock and the Wheeler stock, and H. L. Maury were engaged in business disposed of enough Wheeler stock to repay at Butte and elsewhere under the firm the purchase price thereof, divided the bal- name of Maury & Melzner, and that during ance amongst the parties entitled thereto, said time the plaintiff performed services and also took over the Batchoff option stock, for this firm without any agreement as to sold it on the market, divided the net pro- the amount of compensation which he was ceeds between himself and Batchoff, thus to receive therefor; that about April 1, 1922, closing the deal, and concludes that the it was agreed between said Maury & Melze plaintiff is not entitled to recover on the ner and plaintiff that, as payment for such first cause of action.

services, said firm should and would transBy 12 specifications of error the plaintiff fer and deliver to plaintiff 1,611 shares of challenges findings 11 to 14 and the con- the capital stock of the Silver Dyke Mining clusions of law based thereon, upon the Company, and in accordance with this agreeground that they are inconsistent with find- ment said firm delivered to the defendant ings 8 and 9. The correctness of findings 805 shares of said stock, to be turned over Nos. 8 and 9 is not questioned on this appeal. to plaintiff on demand, and that the de Unless the conditions determined by these fendant received and accepted said 805 two findings were changed, then the court's shares of stock under said agreement; that findings 11 to 14 were clearly inconsistent prior to the commencement of this suit the with them and entirely without justification plaintiff made demand upon the defendant upon the record.

for the delivery to him of said stock, which (1) In its finding No. 10 the court deter- demand was refused. The prayer asks that mined that these conditions were changed the defendant be required to deliver said by a subsequent agreement which it recites. | 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.

tablish. The answer admits the partnership be

3. Appeal and error 989-In reviewing ortween Maury and Melzner, alleges that it

der directing verdict for. defendant, Supreme was a partnership only for the practice of

Court considers only "plaintiff's evidence." law, and admits that plaintiff performed

In reviewing order directing verdiet for deservices for said firm as alleged in the sec. fendant, under Rev. Codes 1921, § 9361, Suond cause of action, but asserts that he had preme Court considers only plaintiff's evidence, been fully paid therefor.

and, if it tends to establish his case, order will [3] The testimony upon the second cause be reversed; “plaintiff's evidence” excluding of action covers several hundred printed bare scintilla, but including every fair inference pages. To epitomize it would unduly extend from facts proved, as well as defendant's evithis opinion. It has all been read and con

dence supporting plaintiff's case. sidered. At most it presents substantial differences upon the theories contended for 4. Master and servant 286(4)-Evidence

that pick was not in reasonably safe condiby the opposing parties.

tion for use held to raise jury question. After hearing the testimony of the witnesses, both for plaintiff and defendant, the hand was not in reasonably safe condition for

Evidence, that dulled pick used by section court found as a matter of fact that the firm

use and increased hazard of employment, held of Maury & Melzner never delivered to the to raise jury question, and it was error to didefendant Melzner any shares of stock in rect verdict for defendant. the Silver Dyke Company for plaintiff's benefit, that defendant never received or accept- 5. Master and servant 285(5)-Evidence ed any such shares of stock for the plaintiff,

held to make question for jury as to proxi. and that the plaintiff was not entitled to

mate cause of injury. recover on his second cause of action. The Evidence held to make question for jury as evidence as to the second cause of action to whether dull pick which slipped off cross

tie and struck substance, which dislodged and is in perplexing conflict. It cannot be said hit section hand in eye, was proximate cause that it preponderates against the court's of his injury. findings, and for this reason they will not be disturbed upon appeal. Nolan v. Benning. 6. Negligence 134(2)-Proximate cause of hoff, 64 Mont. 68, 208 P. 905; Thomas v. injury provable by indirect evidence. Standard Dev. Co., 69 Mont. 224 P. Proximate cause of injury may be proved 870.

by indirect evidence. For the reasons herein indicated, the judg.. 7. Master and servant em 288(15)-Whether ment of the trial court upon the second

section hand assumed risk from defective pick cause of action set forth in the complaint

after complaint to foreman held under eviof plaintiff is affirmed, and the judgment dence for jury. entered on the first cause of action is re Whether section hand continued use of deversed, and the cause remanded to the dis- fective pick after complaint to foreman that it trict court for further proceedings. Each was dangerous to work with, in reliance on party will pay one-half the costs of this promise to repair, held under evidence propappeal.

erly for jury.

8. Master and servant On288(15)-Whether CALLAWAY, C. J., and RANKIN, GA section hand worked for unreasonable time LEN, and HOLLOWAY, JJ., concur.

after promise to supply new pick held for jury.

Whether section hand worked with defec

tive 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.)

der evidence for jury. (Supreme Court of Montana. Oct, 20, 1924.) 9. Master and servant om 221(6)-After prom.

ise that repair of defective tool shall be made 1. Trial Emo 178–On defendant's motion for on happening of event, master assumes risk

verdict, plaintiff's evidence is construed in till event happens. most favorable light.

When promise to repair defective tool is On defendant's motion for directed verdict, that repair shall be made on happening of cerunder Rev. Codes 1921, § 9364, plaintiff's evi- tain event, master assumes risk until event has dence is construed in light most favorable to happened, and for reasonable time thereafter. him, and as proving whatever it tends to prove.

10. Master and servant om 101, 102(8)-Mas2. Trial em 142-Cause never withdrawn from ter must exercise ordinary care to provide

jury, unless recovery cannot be had under reasonably safe tools and appliances. any view from facts.

Master has duty to exercise ordinary care A cause should never be withdrawn from to provide servant with reasonably safe tools jury, under Rev. Codes 1921, § 9364, unless re and appliances, and see that they are kept in covery cannot be bad on any view reasonably reasonable safe and suitable condition for use.

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