*1 is court the district judgment of tbe reasons stated For affirmed. BOT- JUSTICES ADAIR, and MR.
MR. CHIEF JUSTICE ANDERSON, concur. TOMRY, ANGSTMAN Respondent. PETERS, Appellant, McDonald, No. 9235. May 19, January 1954. Decided 1954. Submitted Rehearing July 30, 1954. Denied (2d) *2 Lloyd Murrills, McDonald, Mr. Bank, A. Cut W. Mr. R. Browning appellant. for Bank, Moore, Moore,
Messrs. Frisbee and Mr. John P. Cut respondent. for Murrills argued orally.
Mr. and Mr. Moore MR. JUSTICE FREEBOURN: money
This is an action jury for loaned in which the found its respondent verdict for judg- defendant and Peters. From a plaintiff ment in favor of the appellant Peters and McDonald appeals. “ alleged complaint: Plaintiff in his That the amended from day first of day June 1951 30th October 1951 the to the of plaintiff special loaned to the defendants at their instance and request times, money amounting at total different sums of sum of seventeen thousand hundred four three and no/100 ($17,304.00) repay promised dollars which the defendants plaintiff, demand,” to the have and “that the defendants repaid money aforesaid, all of the them the except loaned to eight eight sum of four thousand hundred and and no/100 ($4,808.00) the pay dollars and that the defendants refuse to $4,808.00, plaintiff said although balance of has demanded pay balance.” defendants said allegations the
Such were denied defendants Peters Peters, wife, his and the Rose action as to Rose Peters during the trial. dismissed
Appellant’s following: brief the contains $12,150 theory case is that he “The loaned purchase of to the defendants for the mature cows and that all repaid except $4,807.76. of loans these theory case plaintiff “The of the defendants’ is that did cows, any purchase not loan tbe defendants Peters given by to Jim but that all the checks de- purchase ranchers to were for the contracts with Indian liver in the fall.” calves instructions, informed the appropriate
The judge, trial parties adopted theories. such allegations complaint and under Under the prove upon theory, burden own rested loaned that he had preponderance of the evidence ato question before was entitled to defendant against verdict defendant. pro must holding issue party
“The affirmative of the proof prove it; the burden of duce the therefore evidence party no evidence lies Avho if on the Avould defeated burden 93-1501-1. R. C. M. sec. on either side.” of an issue. throughout him has the is on who affirmative 226, 136 Light Co., & DeSandro Missoula Water right in asserting party section Pac. 711. Under this *3 allegations material proving1 case each of the has the burden of Light Co., & R. of his cause of action. Tucker v. Missoula 91, 11. Mont.
This determine, under jury being case, it for the a Avas laAV whether not instruction,
the trial or court’s a verdict proof was entitled burden of sustained the jury It Avhat to determine province herein. Avas the of the also giA7en be should were and to Avhichwitnesses credence the facts determining in facts. such ‘1 by a is trial cases], in where the question All of fact [ laAV * * * ®* 1947, M. jury R. C. by the jury are to be decided 601, Mulvihill, Gilmore v. 93-2501-1. See sec. the effect or judges (2d) jury “The Pac * * M. R. C. addressed to them value of evidence 93-2001-1. sec. court, as done 93-2001-1,supra, the trial section
Under case, instruct proper occasions should on the instant jury that: They conformity are not bound to decide with “2. witnesses,
declarations of produce nmnber of which not do minds, against number, against conviction in their a less or presumption satisfying minds; or other evidence their
“3. That a witness false part testimony in one of his is to be others; distrusted in * * * “4. That evidence of the oral admissions of party be caution; [should viewed]
“5. That civil cases the affirmative of the issue must proved, contradictory and when the evidence is the decision must according be made to the evi- preponderance of the ** dence only proved
Plaintiff was entitled to loans, a verdict if alleged only by pre in his amended not ponderance evidence, by satisfactory but evidence. satisfactory ordinarily pro-
“The evidence is deemed which certainty duces unprejudiced moral or conviction in an mind. ” justify Such evidence will alone a verdict. C. M. R. sec. 93-301-13. testimony, given
Plaintiff’s own on direct and cross-examina- tion, unprejudiced would tend to create the mind of an person justice a doubt as Certainly, his cause. after one all the reads evidence and the instructions judge, trial one must properly conclude that could reach other no verdict but one in favor of defendant. alleges de- loaned amounting
fendant “sums of to a total sum seventeen ($17,- three thousand hundred and four and dollars no/100 304.00).” Yet shows: “Q. you any your possession Have other checks in other represent than to 10 which monies loaned *4 you to J. Peters? A. to him? D. Loaned
“Q. No, A. I Yes. haven’t.
“Q. in plaintiff’s Just the total of the amount set out ex- $12,150.00, hibits 1 to 10? A. I believe. A. I don’t
“Q. Mr. Peters? You no other loans to made think so.
“Q. happen your complaint apparently How does it — complaint. there is no first is not verified. The Court: Just a minute. It
“The attorneys but verifi- complaint signed by the is not signed. cation is
“Q. happen you loaned him you Plow it stated does being' me $17,304.00? 'Well, up A. wrote this without there. around That’s sure. “Q. you Your seventeen thou- complaint states loaned him I loaned it ? It is not. correct, dollars. That is not is A. sand $19,200.00 money which $12,150.00on he on calf cows and has was to him. “Q. you bringing This this lawsuit are now impression true, is not is A. under the we had it? was ’’ brought cow deal on start and in calf deal. Questioned complaint which intro- original as to the alleged which duced evidence as defendant’s exhibit No. plaintiffs and that “Joe McDonald and Charles Hodson” were ‘‘ this been now and times mentioned in have are live- co-partners buying selling engaged in business of and plaintiffs in stock” and are indebted to that “defendants eight eight the sum of four thousand hundred no/100 defendants to dollars for had and received ’’ testimony shows: defendants, use of 12 which “Q. You exhibit No. signed the defendant’s jointly as the Hodson named Joe McDonald and Charles Mr. Hodson yet your is here now that plaintiffs and right; That A. is had interest the deal? never never did.
“Q. happen his name was that first How it does complaint stating that? you signed verfied complaint and attorneys] made a A. Mr. McDonald [one ** *. wrote that mistake when he *5 ‘' * * * Q. you complaint signed you Did read before it ? I probably A. never.
“Q. signed You a statement the effect [the verification] you that complaint have read the within and know the contents except thereof and that the same is true as matters stated signed information and belief. You statement without that reading complaint? probably A. I did.” making
In out his case in chief testified: think, I dealing was, The first I ever had Jim “A. calves, in June I con- bought either some [sometime 1951]. calves, bought yearling tracted I him. some or five steers from “Q. paid You for these in full? A. Yes, sir.
“Q. you have transaction ivith him? And did some other Right bought yearling A. after I think I cows that two from him. * * * Well,
“Q. you pay Yes, Did for those in full? A. sir. got he shipped some from Butte or cattle that he either had Great Falls —I am which held not sure town —and money for him on these brands. * * * Q. you re- Now, I ask the first transaction about * * lating to this lawsuit A. He the house *. came down to up and shipped and the he brands was tied cattle —the I money So loaned was held on brands. account of the the check —gave him two whenever thousand dollars give came in it me. he would endorse check and “Q. I him No, he ask ? A. told Did for a loan at this time buying them as far as what I have he could make money.” cows was his. I let him use this being (checks totalling $12,150), called to Exhibits to 10 represent attention, “Well, his he testified: * * buy gave Mr. Peters —* cattle with.” checks, plaintiff placed plaintiff’s In in evidence rebuttal $17,500 which claimed 162, amounting with defendant. covered the calf deals No. which ob- court, however, instruction no purpose checks, and jection made, of such limited you jury “You instructed instructed the as follows: through plaintiff’s exhibits 148 cannot consider purpose establishing any set out in indebtedness reaching any amount purpose or for alleges having been loaned which defendant, him to the D. Peters.” J. given, right wrong, constitute Instructions whether or Metcalf law must follow them. of the case and the Co., (2d) 263. 120 Mont. Barnard-Curtiss *6 n Although upon proof plaintiff, the burden was neverthe- proof less could have found the defendant offered and by money plain- fact, given such to be that the defendant money use, was personal tiff was a loan for but not defendant’s buy calves, for fu- to be used and was defendant used was delivery, buying that in such calves defendant ture and plaintiff. money acting using such and for referred calves Peters shows that the Rose Blackfeet Indian Browning to are “the Indian on the calves * * * let going ‘I am guess I says, Reservation. and Jim ‘Thirty- said have these Indian calves.’ He Charlie [Hodson] straight up’ weighed pound cents a for them and three —that * * * for taken off. then weighed means without shrink contracting kept on couple weeks after that he [Peters] went he and on his own then the calves from different Indians * * * calves. he wanted the and called Hodson if Charlie McDonald. Charlie Hodson told [*] head [*] * down on these calves gave Jim a check to [Peters him on the did for Charlie Hodson. get cover phone in touch payment get with] in touch Joe McDonald. twenty dollars with Joe Then we every time Jim contracting calves and just kept went and on sign a con- would of calves then he get would a hundred head Joe McDonald McDonald and himself tract between and Joe twenty on head down dollars a give him a check for would those calves.” “* ** copies of carbon exhibits were Defendant’s Peters and Jim signed between that were the contracts Blackfeet Indians calves checks, and also the the cancelled checks of Jim Peters paid that were on those contracts.”
As to defendant’s exhibits No. “These are carbon copies signed of contracts that were Jim Peters and between Joe McDonald”and refer "to the that self-same calves contracted from upon the Indians Jim Peters ’’ Browning Reservation. Referring 10, covering money ‘‘ defendant, said They he loaned Mrs. Peters testified: checks part to Jim from Joe McDonald ’’ twenty of that dollars paid a head that he out his calves.
According money to Mrs. Peters the advanced to the Indians on the calves $18,522.96; "$5,015.21 money amounted to put $13,507.75 Jim Peters in on own and Hod- was Charlie money.” son and Speaking money Joe McDonald’s of how this McDonald, Avas "Well, to be returned to Mrs. testified: Peters Jim Peters and an Charlie Hodson and Joe had McDonald agreement that when the calves came Mr. McDonald money regard- would take all the advance paid, that had been his, less of whether it AvasMr. Peters’ or Charlie’s or he would collect all the advance until calves were all delivered the contracts been all filled *7 Indians; they get then were to together, course, of a and have settling up paid and find hoAVmuch extra Jim had calves, get and Avas those this commission and 2% the deal. shrinkage shrink is —2% tAvodollars It shrink was to be [Jim’s commission] hundred paid * * Avas *.” to him at the end of a cent a pound. * * [*] The evidence would indicate that all calves of the contracted upon for and Avhich been had advanced Indian oAAmers delivered, in, testified, were not which resulted Mrs. as Peters " saying: McDonald ‘These cattle better all come in or some- body going get is sued.’ Joe McDonald at that said t'me, yet. ‘Well haven’t all come in will We another set ’ shipping keep trying get date until Ave and them all in. Next thing knew Ave our checks both up started bounce BroAvn- at * * * ing up and our bank accounts us. were tied of —both Charlie Iiodson and attached both of them Joe McDonald far were thing as we knew. last knew The we of the deal going get set balance shipping try another and date * * * these calves. the bank accounts tied and an put attachment on our bank were never—he accounts and we was never final get able to finish the deal to to the end—the up.” hundred, settling were, Eight calves contracted for I think, upon paid down, which $20.00 head was actually calves 641; something that.” delivered like Appellant complains nal origi of the admission of his objection. original in evidence over his Such com plaint plaintiff’s position showed therein be inconsistent position taken in allegations the amended original complaint parts such oral tended to contradict of his testimony. permitted original complaint Such properly was Superior Copper Co., evidence. Johnson v. Butte & Evidence, 938; S., S., 48 L. 31 C. J. A., Pac. R. N. 303(c), p. sec. assignments
We have examined the other of error and find no merit in them. foregoing judgment
For the reasons the of the district court is affirmed.
MR. CHIEF JUSTICE ADAIR and MR. JUSTICE BOT- TOMLY concur. (dissenting):
MR. JUSTICE ANGSTMAN agree, course, proving the burden I think his cause of action before he entitled to verdict. convincing evidence. In he sustained that burden clear and fact, disputed by He the evidence was not credible evidence. showing amount loan produced checks the cancelled produced him that defendant Peters made and he evidence plaintiff the Peters owed and his wife admitted that defendant claimed. amount
250 support
In proof showing lie case submitted $12,150 that he loaned purchase for defendant of cows. Ten cancelled checks were introduced in evidence as exhibits 1 10, payable numbered made to Jim Peters and executed by plaintiff 23, dates and amounts July as follows: 1951, $2,000; July 25, $2,500; July 27, $1,000; $1,000; July 28, August 24, August September 27, $1,000; 7, $650; Sep- $1,000(cid:127) tember 16, $500; September $1,000; $1,500. 19, August 6, The ten $12,150. checks total On the face of six of these checks were written the words “for cows.”
Plaintiff also introduced of several witnesses who present meeting at a in Browning meeting at which Jim Peters and his wife plaintiff admitted Peters owed the sum $4,807.76.
Defendant Peters denied that him loaned purchase for the cows, but testified that cheeks given by plaintiff him purchase were for the of contracts with Indian ranchers deliver in the calves fall. He intro- 139, duced in exhibits 134 evidence each of which is called “Live Stock Bill of Sale and Contract.” These showed sale purchase per Peters and the at cwt. of 33^ a stated number of calves delivered on or before a fixed per shrinkage. time with two cent Each states the amount of part payment. dates, received as number of calves part payment and amounts stated as are as follows: July 27, $6,600 Exhibit 134 1951 300 calves 2, $2,200 Exhibit 135 1951 100 July calves 7, Exhibit 136 1951 July $1,100 100 calves 10, $2,200 July Exhibit 137 100 calves July 19, $2,200 Exhibit 138 100 calves August $3,200 Exhibit 139 100 calves ..........................................................................$17,500 Total checks, Defendant testified in substance offered plaintiff, being payment to were in con- these purchase tracts for the of calves. *9 con- plaintiff purchased
In that he the rebuttal admitted 134 checks tracts, 139, inclusive, exhibits but that the to denied represented 1 these represented payment 10 exhibits to 148 to calf He in evidence exhibits contracts. then introduced given payment 162 which he said were checks in given calf 148 162 contracts. Exhibits to checks being 1951, Peters in dates and amounts to Jim as follows: $2,442.00
Exhibit 148 June 22 23 Exhibit 149 June $1,000.00 150 25 Exhibit June $1,000.00 151 27 Exhibit $1,000.00 June 152 27 $ Exhibit June 758.00 29 153 Exhibit June $1,000.00 Exhibit 154 30 June $1,200.00 July 155 7 Exhibit $1,100.00 July 9 Exhibit 156 $2,200.00 July 157 19 Exhibit $2,200.00 July 158 30 Exhibit $1,200.00 159 3 August Exhibit $1,000.00 Exhibit 160 19 August $1,000.00 $ 161 31 400.00 August Exhibit September 162 5 600.00 $ Exhibit ................................................$18,100.00 Total controversy pur- The that defendant record shows without that in sold cows as well as calves. Peters admitted chased and of cows to cases he endorsed checks received sale some effect testimony was to the McDonald. McDonald’s by the exhibits payments represented checks, loan that thus 10, this manner and the indebtedness to made in $4,807.76. $12,150 reduced from n explaining the testified wife, in conversation Peters and Peters they admitted that witnesses which $4,807.76 plaintiff, it was tied in the calves said owed not deliver. that the Indians did explanation cheeks,
Peters offered no 148 to exhibits explanation 162. Plaintiff’s furnished considera- directly tion for the disputed calf contracts is not is the explanation only reasonable The total considera- record. tion bills 134 to calves, for the of sale contracts for the exhibits inclusive, $17,500. checks, 139, was sum total of the This is the inclusive, exhibits 148 to 161 cheeks whereas the involved plaintiff’s complaint, inclusive, 10, exhibits amount $12,150. check, being by plain- explained $600 exhibit
tiff being payment bought a down on some cattle from Harvey Like- and not included in exhibits Monroe respective cheeks, wise the date of the and the pay- amounts indicate not checks *10 cheeks, ment for the calf contracts. of Whereas the dates the quite closely 148 with 161, inclusive, correspond exhibits to do exactly in the calf the dates and with the amounts contained contracts, 134 139, exhibits to inclusive. represented the cheeks
Defendant’s to effect that by payment 1 10 were calf contracts was exhibits to in (exhibits documentary 148 completely by so overcome evidence opin- inclusive) to 161 of as to leave no room for difference by men, here, ion there was ex- reasonable where as no other planation stands uncontradicted that offered and the record represented 161, inclusive, 148 were by the checks exhibits they repre- given payment in the where of calf contracts and There were sent amount incurred calf contracts. exactly the on apply. 1 10 no other calf contracts which exhibits could 1 10 Likewise six the in exhibits show of checks embraced they “for cows” and on their face that represented loans to defendant for evidence shows that purpose buying cows. opinion majority Court’s in instruction No. 7 referred to ques- opinion, and made the basis of that not affect the does rely tion before us and learned counsel for defendant did not upon argument it either in simply oral or the brief. It told
253 jury permitted that 148 not to consider exhibits through alleged in establishing 162 the indebtedness in the reaching by inor the amount of the loan relied plaintiff. relying upon any
Plaintiff is not embraced amounts through 148 162 establishing exhibits his claim. relies He 1 through regard- exhibits purpose. 10 for that He testified ing 162 148 through rebut the claim of defendant money that 1 from calf cheeks to 10 went for the contracts. simply
Plaintiff showed calf that contract came from other checks this not involved in action and numbered 162, inclusive. Instruction No. 7 did not furnish an jury for the excuse find for for defendant nor the trial uphold court nor jury’s this court to verdict.
I think this case application calls for made the statement by Supreme Court of California Driscoll v. St. Market Ry. Co., 553, 591, Rep. Cable 203, Cal. Pac. Am. St. quoted approval in Casey this court Northern Pac. “ Co.,
R. 145, as follows: ‘When pretense catches at a semblance or of evidence purpose taking equalizing of somewhat financial conditions money away party giving from it other one to the without legal judge cause, should, hesitation, the trial without set the aside; doing so, verdict and in the event of his not this court grant will newa trial’.” deprived
Nor I do think should of his because of the difficulties encountered his counsel in draft- ing complaint properly setting agree forth the facts. *11 proper original complaint
it was admit evidence the filed agree plaintiff’s position do not that it showed case. position therein inconsistent with the taken in the majority opinion. it amended as stated But differing did those in the contain statements from against and was admissible as declarations interest Eclipse Grocery Co., v. within the rule stated Gardiner Pac. 490. judgment re- I think should be set aside and the verdict versed.
MR. JUSTICE ANDERSON: dissenting JUS- foregoing opinion
I concur in MR. TICE ANGSTMAN. BROWN,
TURNBULL, al., et et al., Appellants, Respondents. No. 9320. July 30, May 20, 1954. 1954.
Submitted Decided (2d)