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the evidence and argument in the cause shall | her consent was controverted by the defendnot have requested findings in writing and ant, who testified, in effect, that he had sent had such request entered in the minutes of her from home in opposition to her wishes, the court.

Even so, the duty to and that the separation had begun without make findings becomes imperative when time her acquiescence and continued so until he ly request is made, as was done by plain- had brought an action against her for di. tiff's counsel. Estill v. Irvine, 10 Mont. 509, vorce in 1899. Counsel for plaintiff then of26 Pac. 1005; Quinlan v. Calvert, 31 Mont. fered in evidence several letters written by 115, 77 Pac. 428. A party failing to make her to plaintiff from Salt Lake City during such request cannot allege error because of the four months immediately following the the omission to obey the command of the separation; the purpose being to impeach her statute. Every finding necessary to support testimony and also to corroborate the plainthe judgment will then be implied. Morse v. tiff's statement that the separation had been Swan, 2 Mont. 306; Ingalls v. Austin, 8 Mont. by mutual consent. These letters are all 333, 20 Pac. 637; Forrester v. Boston & Mont. incorporated in the record. We shall not enC. C. & S. Min. Co., 21 Mont. 544, 55 Pac. 229, ter into an examination of them in detail. 353; Vreeland v. Edens, 35 Mont. 413, 89 Pac. Suffice it to say, that they are all expressive 735. Nevertheless its plain mandate should 'of friendly regard, a full understanding on be obeyed in every case, by the making of defendant's part of the cause of the separaspecific findings upon all material issues of tion, and that it was to be of indefinite dufact made by the pleadings, followed by the ration. There is not in any of them an exappropriate conclusion or conclusions of law, pression of the least dissatisfaction with indicating the judgment to be entered there anything done by plaintiff looking to a sepaon. Section 6761. The court having failed ration, nor of any desire on her part to reto pursue the statute, the plaintiff is enti- sume the old relations. They enter into the tled to have the decree reversed.

details of her daily life. They refer fre[6] Counsel has assigned many errors up- quently to articles of household furniture on rulings made in the admission and exclu- which she would have him send her, and sion of evidence. The evidence admitted some of them contain minute directions as over objection was in some instances incom- to what disposition should be made by him petent or immaterial. The presumption may of the other furniture, books, toilet articles, be indulged that in reaching the final conclu- and bric-a-brac which she had left in the sion the court disregarded it. We find no home, when he concluded, as he afterwards prejudicial error in this regard; nor, except did, to break up housekeeping and rent the in one instance, was any of the excluded evi- family residence. dence of substantial value. In some in- "A consent need not be expressed in words. stances the evidence offered had already been It may be implied from the failure of the admitted or subsequently found its way into parties to make overtures after a quarrel ; the record without objection. [7] For illus- from acquiescence in the separation; from tration: Upon his direct examination the a positive refusal to renew cohabitation aftplaintiff was asked what his intention was er a separation; from a deed of separation ; with reference to the manner of living he from a desire of plaintiff that her husband proposed to furnish to defendant if she had should occupy separate apartments; or from returned to live with him. He had thereto- other circumstances which show the plainfore testified, substantially, that he had in- tiff's consent, or that the separation was not vited her by letter to return to him, offering against her will. The consent need not be and intending at the same time to provide express; it may be tacit, as where the plain. a home for her, and to furnish her such style tiff is willing and had made no objection. of living as his means would justify. The When a separation has taken place under court, upon defendant's objection, would not circumstances from which the plaintiff's conpermit him to answer. The evidence called sent can be inferred, such separation is not for was material to show plaintiff's good faith wrongful, and will not become so until he in his effort to bring about a reconciliation, has made some efforts to seek the return of and it was clearly competent for him to the defendant." 1 Nelson on Divorce & state what his real purpose was. Finch v. Separation, 67. In the absence of express Kent, 24 Mont. 268, 61 Pac. 653; 1 Jones on consent, it is the province of the court to Evidence, $$ 145, 167; Greenleaf on Evidence, take into consideration all the facts and cir$ 328c; 1 Wigmore on Evidence, $ 581. [8] cumstances occurring at the time the sepThe statement previously made by him, how- aration is initiated, together with the subever, had already supplied the fact sought to sequent acts and admissions of the parties, be brought out. The error was without prej- and from them to determine whether there udice.

was such mutual consent as to relieve the [9] Plaintiff had testified that he and de- one party from the charge of desertion by fendant had separated by mutual consent at the other. McMullin v. McMullin, 140 Cal. the beginning of the year 1898; that the de- 112, 73 Pac. 808. [10] Once the relation has fendant had since that time been living in been established by mutual agreement, exSalt Lake City, Utah, and other places, as it press or implied, it will be presumed to consuited her convenience. His statement as to | tinue until one or the other party revokes consent and in good faith seeks reconcilia-, exchanged frequently. The plaintiff sometion and restoration. When this shall have times remitted money. Suddenly, in April been done by one party, and the other re- 1898, the exchange of letters ceased. There jects the overtures thus made, the latter is is nothing in the evidence to explain this guilty of desertion. Rev. Codes, $ 3650 ; | fact; but in none of the 14 letters written Howard v. Howard, 134 Cal. 346, 66 Pac. by defendant during that time, was anything 367. The theory of the statute is that, where said by way of objection to the separation, both parties have consented, neither can al- and so far as she referred to the condition lege that the act of the other is wrongful, of affairs then existing, she was entirely sat. until consent has been revoked, though each isfied with it. She never expressed, directly may at the time of the separation have in- or indirectly, any desire to return, and, as tended to abandon the other. Benkert v. has already been stated, advised the plaintiff Benkert, 32 Cal. 468; Herold v. Herold, 47 as to the disposition of household effects N. J. Eq. 210, 20 Atl. 375, 9 L. R. A. 696. when he came to rent the house. While de[11] In view of the conflict in the state- nying that she did acquiesce in the arrangements of the parties, these letters, written ment for separation, the defendant explained almost immediately after the separation, fur- that by the term “acquiesce” she meant that nished convincing evidence that they were she and plaintiff did not enter into any exliving apart by mutual consent. The exclu- press agreement that they would separate sion of them was prejudicial error.

In January, 1899, the plaintiff began an ac. [12] Having reached the conclusion that tion in Silver Bow county against defendant the decree must be reversed because of the for divorce on the ground of desertion and errors noted, it becomes our duty under

also adultery. She filed her counterclaim for the statute (Rev. Codes, & 6253) to determine the questions of law and fact presented by divorce, alleging cruelty and desertion. The the record, upon the whole case, and to make of the adulteries alleged against her, and en

district court found that she had been guilty such disposition of it as the circumstances tered a decree for the plaintiff. Upon aprequire.

[13] As we have pointed out, the court ex- peal this court reversed the decree on the cluded evidence which we deem substantially ground that, assuming that the adulteries material to a determination of the question doned them. It ordered the action to be dis

were fully established, the plaintiff had conhow the separation of the parties was initiated. If this were in the record merely in missed, because it was of the opinion that

Borthe form of an offer to prove by the oral neither party was entitled to relief. statements of witnesses, we should feel im-deaux v. Bordeaux, 30 Mont. 36, 75 Pac. 524, pelled to order a new trial or to remand the on rehearing. 32 Mont. 159, 80 Pac. 6. This case, with direction to the district court to litigation ended in April, 1905. No exchange admit the evidence and consider it in making view or by letter, occurred between the par

of communications, either by personal interits findings; for it is the exclusive prerogative of that court to determine the credi- ties after this date, until March 19, 1906. bility of witnesses, and this court may not On that date the plaintiff wrote to defendinvade its province. But here the evidence ant as follows: "Dear Ella: It has been in question is in writing. This being the some time since I have sent you any money condition, no question of its credibility arises to your support, and for all of the difficulties and this court may as well interpret it and that there have been between us, I have alattach to it the import it ought to have as

ways intended to fulfill my duty which I the trial court. We shall therefore regard may be under towards you. You will find it as properly before us and consider the inclosed in this letter a draft for one huncase upon the merits.

dred dollars, which I hope you will accept The plaintiff and defendant were the and make use of. I wish further to say only witnesses. As already stated, their tes that as the past trouble has not resulted in timony was in direct conflict, though neither gain to either one of us, should you at any stated definitely what was said and done at time wish to return to Butte to live I will the time the agreement was reached to sep- provide you with a suitable home. Yours arate. The letters themselves, however, point truly, Jno. R. Bordeaux.” to one conclusion only, viz., that they sepa

The defendant made no reply. On March rated by mutual consent. What the impel. 13, 1907, she wrote plaintiff as follows: "Mr. ling cause was it is not now important to John R. Bordeaux: I am here in Butte. I inquire; but it appears that scandalous ru- am now, as I have been for the past several mors touching the conduct of defendant in years, without any means of support. You accepting attentions from other men had have contributed nothing for two years, excome to the knowledge of plaintiff, that he cept the small sum of $100. I desire to rewas displeased on account of them, and that main in Butte. It will be necessary for me both thought that a separation would be ex- to have at least the sum of $500 per month pedient. These rumors we assume were the hereafter from you for my support. This moving cause. Accordingly the defendant will be a meager allowance and one which went to Salt Lake City, Utah, to live with you can well afford to pay. I expect to be at her parents. For four months letters were large expense in obtaining and fitting up living quarters and consequently must require her husband, saying that, judging by his past you to pay me at once the sum of $2,500 for conduct, she preferred to take the judgment this purpose, together with the sum of $500 of the court upon that subject. The letter for the first month's support. In case you concludes: "I shall, therefore, be forced to refuse to comply I shall undertake to force reserve all my rights, which I hereby notify compliance by legal proceedings. You have you I do, and to insist upon the discharge of neglected the obligation of support long your obligation under the law-not as you enough. Kindly notify John J. McHatton, believe it, or think it, or are willing to sugmy attorney, and pay the money to him. gest it to be—but as it really is. The fault Ella F. Bordeaux."

is now, and it always has been, with you. To this plaintiff replied: “Butte, Montana, Since you are not willing to accord me my March 15, 1907. Dear Ella: I am in receipt rights I must rely upon the law and its jusof your letter of date March 13, 1907, and in tice for that purpose.” reply to same, I desire to call your atten- It was admitted by plaintiff that he had tion to my letter of date March 15, 1906, įp contributed nothing towards the support of which I invited you to return to Butte, to defendant after the institution of his aclive with me, and stating that I would pro- tion in 1899, except the sum of $100 sent to vide you with a suitable home. I have heard her on March 19, 1906. It appears that he nothing from you since that time until to- has during the time since the separation day, when I received your letter. In view of been receiving a gross income of about $500 which silence I have long ago made up my per month. There is no direct evidence on the mind that you did not intend to return to subject; but that the defendant has never been Butte to live with me, and that you had evi- in want is a just inference from the fact that dently found quarters more to your liking. she has been living in Salt Lake City, Utah, However, if you desire to return to live with Seattle, Wash., Portland, Or., or at Butte, me, I will provide you with such living quar- as it has suited her convenience, with funds ters as my means will warrant. I am not sufficient to meet her personal expenses. The willing, however, to accede to the unreason- source of these funds is not definitely disclosable demand contained in your, letter, but ed, but circumstances appearing in the eviam always willing to perform my duty as a dence indicate that she has obtained them, husband, as I understand it, and as requireither from her parents or from the income ed by the laws of this state. I shall do ev- from property inherited by her froin them erything which the laws of this state require since the date of the separation. It was not me to do, and I will discharge every obli- controverted that out of the income received gation which the laws of this state require by plaintiff he has been required to pay his of me because of the relation I sustain to taxes and bear the expense of insurance and you. And in accordance therewith, I am pre- necessary repairs upon the property from pared to provide you with a suitable home which it is derived, besides his current perand to furnish you with maintenance and sonal expenses, and that he was required to support. I am now residing at No. 320 West meet the expenses of the litigation attendant Broadway, in this city, which is a suitable upon the action for divorce instituted in home for us both, and I will welcome you 1899, including counsel fees for both himself there, if you choose to return and resume our and the defendant. It appears that he conmarital relations, and will provide you with tracted on this account a considerable indebt. all necessary and proper support and main-edness, and that for that purpose he put an tenance. Otherwise, I shall consider myself incumbrance upon some of his property, under no further obligation to contribute to which still remains. Nor is it controverted your support. Trusting that you will see that the place designated in his letter of fit to return home, I remain your affectionate March 15, 1907, as his home, is in a very dehusband. John R. Bordeaux."

sirable part of the city of Butte and is such In reply to this letter defendant wrote a as he can reasonably afford. As a reason long communication in which she stated that why he did not in his letter designate the in his letter of March, 1906, plaintiff had home where they were living at the time of failed to ask her to return to Butte to live the separation, he stated that it was then with him, and charged him with bad faith under a lease for a term of years and was in writing the one of March 15, 1907, saying not available. The only objection made by that he did it merely for the purpose of pro- defendant to the home to which he invited tecting himself against his obligation to dis- her appears to be that, being a suite of rooms charge the duty ke owed her under the law in a rooming house, she could not keep seryto furnish her with support. She also charg- ants and live in the sumptuous style that she ed him with malignant cruelty toward her, desired. and with desertion, because he had failed to [14] There is nothing in any of this evifurnish her any support subsequent to March dence upon which a conclusion can be based 26, 1898. She stated that the place designat- that either of the parties did anything to ed by him as the home to which he invited change the agreement to separate, in 1898, her was neither desirable nor suitable. She prior to March 15, 1907. It does not appear refused to accept his judgment as to what that the plaintiff agreed in 1898 to support would be a discharge of his legal duties as defendant. Though it be conceded that he did, when his remittances ceased she made been living apart, it is not to be expected in no complaint; nor did she upon the cessation all cases that, when reconciliation is sought, of them, or at any time afterwards, revoke the overtures will be couched in the most afher consent to remain away or express any fectionate and apologetic terms. Plaintiff desire to return home. Nor did the bringing | did not seek a personal interview with deof the action for divorce, in 1899, work a fendant, but certainly no inducement was change in the status quo. His effort to dis- held out to him to do so in defendant's letsolve the marriage, met by a countereffort ter. This letter not only was a distinct reon her part to do the same, only emphasized jection of his overtures, but was tantamount the willingness of both to remain apart per- to a declaration of hostility. He was not manently. The original separation by con- bound to go further and seek a personal insent was therefore not converted into a de- terview or concede the extravagant demand sertion by either one by any act of revoca- made by her that he should put at her tion by the other, under the provisions of disposal his entire income, besides paying the statute (Rev. Codes, § 3650), until the over in cash a large sum of money to furletter of March 15, 1907, was written by the nish a home other than the one which he, as plaintiff.

the head of the family, had a right to choose, [15] It is insisted that this was not in good and which, so far as the evidence shows, was faith, but was induced by her threat to in- reasonably suitable and within the compass stitute legal proceedings against him. Wheth- of his income. Upon the face of it, his ofer it was written in good faith was a ques- fer of reconciliation was made in good faith. tion of fact. Wagner v. Wagner, 104 Cal. Upon the whole case the district court 295, 37 Pac.-935; McMullin v. McMullin, 123 | should have found that the original separaCal. 653, 56 Pac. 554; Olcott v. Olcott (N. tion was by consent; that the offer of recJ.) 26 Atl. 469; Musgrave v. Musgrave, 185 onciliation was in good faith; that it was Pa. 260, 39 Atl. 961; Porter v. Porter, 162 capriciously rejected by the defendant; and, Ill. 398, 44 N. E. 740. It may be true that as a conclusion of law, that the plaintiff is the threat of the defendant in her letter of entitled to the relief demanded. March 13th was the immediate, moving cause Counsel in their briefs discussed many of his writing this letter; and it may be al- questions not at all pertinent to the issues so true that he had in his mind the addition- involved in this case. We shall not notice al purpose of laying the foundation for a any of them. charge of desertion against her in case she The order denying a new trial is affirmed. refused his overtures; but, while these con- The cause is remanded to the district court, siderations might reflect upon the question with directions to set aside the decree, to of his good faith, they may not be regarded | find in accordance with the conclusions statas conclusive that his motive was sinister. ed above, and to enter a decree in favor of

[16] There is nothing in the evidence reflect the plaintiff. ing upon the real motive, other than plaintiff's declaration that he extended the invitation SMITH and HOLLOWAY, JJ., concur. with the intention that defendant should accept it, and her declaration that she did not accept it, because she did not regard it as

(43 Mont. 126) made in good faith. It contains no apology

ALBERTINI V. LINDEN. for his conduct in charging her with adultery in his former action for divorce; nor is there (Supreme Court of Montana. March 27, 1911.) in it any express plea for forgiveness. But 1. MASTER AND SERVANT ($ 80*)—ACTION FOR

WAGES-AMOUNT OF COMPENSATION-Evihe expressed a willingness for a reconciliation, offered to furnish her a home, to re- In an action for services in driving desume cohabitation, and to discharge his du- fendant's ice wagon rendered from September ties under the law. If it were necessary that he was to receive $2.50 per day and his

22, 1908, to December 6, 1999, plaintiff claimed that he ask condonation for the past, this board, except during the time it was necessary was clearly implied. She could easily have for defendant to instruct him, when he was to tested his sincerity by accepting his over receive $2 a day and board, and that defendant tures, and had he then refused to receive claimed that he agreed to pay plaintiff $60 a

accompanied him for 12 days only. Defendant her or thereafter proved derelict, her rigbts month and board, and accompanied him for inas his lawful wife would not have been struction for 18 days. On plaintiff's theory of prejudiced. But she could not capriciously him while under defendant's claim only $197.50

the contract there was a balance of $324 due refuse to accept his offer, because it was not is due. Held, that evidence was admissible for couched in the terms which she would have defendant that the entire amount received for dictated or preferred. As regrettable as may lowing September 22, 1908, was only $115, and

ice delivered by plaintiff during the month folbe the fact, the marriage status is in many that both knew, when the contract was made, cases preserved for no higher motive than that the gross receipts for the winter months that of convenience, and where the parties, would not exceed $120 a month; it being peralienated by friction in the home due to in- dered under a special agreement, in which the

missible to prove in actions for services rencompatibility of temper or other cause, havel terms of the agreement are controverted, the *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes


value of the services in order to show what the defendant's statement be accepted as true, agreement probably was.

the balance due is $197.50. It is admitted [Ed. Note. For other cases, see Master and that defendant tendered this latter amount Servant, Cent. Dig. $ 117; Dec. Dig. $ 80.*) as payment in full before the action was 2. APPEAL AND Error ($ 1056*)-HARMLESS commenced, and deposited it with the clerk ERROR-EXCLUSION OF EVIDENCE.

Error in excluding such evidence was prej- of the district court upon his appearance in udicial to defendant.

the action. The jury found for the plaintiff [Ed. Note.-For other cases, see Appeal and for the full amount claimed by him.

The Error, Dec. Dig. § 1056.*]

defendant has appealed from the judgment. 3. TRIAL (8 46*)-RECEPTION OF EVIDENCE

On December 22, 1908, the defendant paid SHOWING PURPOSE OF ADMISSION.

In an action for wages for driving defend- plaintiff $180, the full amount then due ať ant's ice wagon, in which the amount plaintiff the rate of $60 per month. During the folwas to receive was controverted, it was so ap- lowing two months, he paid the plaintiff at parent that the purpose of proffered evidence as to the amount received by defendant for the the same rate. The payments were accepted sale of ice and of the knowledge of the parties without objection. The acceptance of these of the probable gross receipts of the business amounts and some other circumstances provduring the months plaintiff was to work was

en tended to corroborate the defendant's to show the probabilities as to whether the agreement for wages was as claimd by plaintiff statement as to the terms of the contract. or defendant that the offer need not state that it [1] To corroborate him further, his counsel was for such purpose.

offered to show by plaintiff on cross-examina[Ed. Note.-For other cases, see Trial, Cent. | tion that the entire amount received for ice Dig. 88 115-117; Dec. Dig. 8 46.*]

delivered by the wagon driven by plaintiff Appeal from District Court, Silver Bow during the month following September 22, County; Jeremiah J. Lynch, Judge.

1908, was only $114.90, and that it was Action by Celeste Albertini against Peter known to both parties at the time the conLinden, doing business as the Oro Fino Icetract was made that the gross receipts durCompany. From a judgment for plaintiff, | ing all the winter months would not exceed defendant appeals. Reversed and remanded $120 per month. Upon objection, this offor a new trial.

fered evidence was excluded, and this ruling Maury & Templeman and J. 0. Davies, for is the ground of defendant's first assignappellant. Kremer, Sanders & Kremer, for ment of error. The evidence was clearly respondent.

competent. The rule is generally recognized

that where the plaintiff seeks to recover the BRANTLY, C. J. This action was brought price of property sold to the defendant, or to recover a balance alleged to be due the the value of services rendered to him, upon a plaintiff for services rendered to defendant special agreement as to the price or value, from September 22, 1908, to December 6, and there is a controversy as to what the 1909, in driving defendant's ice wagon and agreement was, it is proper for either party delivering ice to his customers. There was to prove the price of the article or the value no controversy as to the rendition or the of the services, as corroborative of his tesduration of the services. The dispute was timony, and to show the probability that the as to the terms of the contract. The evi- one or the other agreement was made. Bardence was confined to the testimony of the ney v. Fuller, 133 N. Y. 605, 30 N. E. 1007; parties. The plaintiff testified that it was Saunders v. Gallagher, 53 Minn. 422, 55 N. agreed when he entered defendant's em- W. 600; McGawley V. Gannon, 11 Rob. ployment that he was to receive $2.50 per (La.) 164; Rauch v. Scholl, 68 Pa. 234; day and his board, except that during such Buckingham v. Harris, 10 Colo. 455, 15 Pac. time as it was necessary for the defendant 817 ; 1 Wigmore on Evidence, $ 392. Upon an to accompany him for the purpose of in- analogous principle, there is no reason why structing him in the business he was to re- evidence showing the condition of a busiceive $2 per day only and his board. He ness or the amount of the income derived testified that defendant accompanied him from it would not have substantial bearing for the 12 days immediately following the upon the question whether the owner of it date of his employment, and thereafter re- had agreed to pay for services the price quired him to go alone. The defendant tes claimed by one employed by him in that tified that he hired the plaintiff at a fixed business. If the rate of compensation alrate of $60 per month, besides his board, leged as stipulated for in the contract is and accompanied him for the purpose of in- large enough to absorb substantially the structing him during the first 18 days of gross income derived from the business, it is his employment. It was agreed by both surely competent to show this fact as bearthat during the months of June, July, and ing upon the truth of the statement of the August, 1909, the defendant voluntarily in- parties as to what the agreed rate was, and creased the plaintiff's wages $10 per month as tending to show that the owner probably for extra work. Assuming that the plain- did not make the contract as alleged by tiff's statement of the terms of the contract the employé. If the condition of defendant's is true, the balance due him is $324. If I business during the winter months was such *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

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