Murray v. Hauser, 53 P. 99

Murray v. Hauser

53 P. 99

Mont.

1898

Check Treatment

Pigott, J.

Jоhn Murray brought this action against Howard Oviatt, F. D. Spratt and S. T. Hauser, to recover $16,083, besides interest, as damages for breaches of certain contracts entered into on December 19, 1891. Defendant Hauser alone appeared. He is sued as the guarantor of performance by Oviatt of the terms of the contract between Murray and Oviatt with respect to the Murray Placer Mining Company, a corporation, its property, and shares of its capital stock.

The contract of guaranty is as follows; “The said Samuel T. Hauser, for and in the interest of the Murray Mining Cоmpany, hereby guarantees the complete fulfillment of the above memorandum of agreement on the part of the said Howard Oviatt, to purchase said shares above mentioned of said John Murray at the price thereupon agreed and stipulated to be paid, and the full compliance of said Oviatt with the terms of this memorandum of agreement in every particular. Witness my hand and seal this 19th day of December, A.. D. 1891. S. T. Hauser. [Seal.]”

In the opinion of the trial court, issues of fact were made by the pleadings, by which, among other things, plaintiff alleged that the guaranty was understood and intended as a contract binding upon Hauser personally, and that Hauser was *124not authorized to execute a guaranty in behalf of the Murray Placer Mining Company,, and that the Murray Mining Company mentioned in the guaranty was not the Murray Placer Mining Company named in the cоntract between Murray and Oviatt, while defendant Hauser pleaded, among other things, that the guaranty was executed by him as agent for the Murray Placer Mining Company, and that it was expressly understood and agreed between plaintiff and defendant that the guaranty was made for and on behalf of the company, and that it was not in any way to bind Hauser personally or individually. A jury were sworn to try the case. Each party introduced evidence, which the court submitted to the jury, with instructions to find upon certain special issues; refusing-to direct the jury to return a general or special vеrdict. The jury disagreed and were discharged, and thereupon, on motion of defendant, and over the objection and exception of plaintiff, the court made the following findings and conclusions:

“The court — as its findings of fact in the above action— from the evidence introduced in thе case, determines: (1) That the words ‘Murray Mining Company, ’ used in the guaranty sued on, attached ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to Exhibit B in the complaint, -were intended by the parties to mean the ‘Murray Placer Mining Company,5 the corporation of that name referred to in the complaint, answer and replication.

“(2) Thаt, in executing the above guaranty for and in the interest of the Murray Placer Mining Company, the defendant S. T. Hauser executed the same, not as his personal act, but as the act of the Murray Placer Mining Company, and that the guaranty was intended' by the parties at the time, and executed, as the guaranty of the Murray Placer Mining Company, through its representative, Hauser.

“(i>) That this condition was fully understood and known bv the plaintiff, John Murray, and that, in and about the whole transaction in connection with which the guaranty was executed, it was known and understood that the defendant Hauser acted in a representative capacity for the company aforesaid, and not personally.

*125“And, as conclusions of law on. the foregoing, the court finds that the contract sued on created no obligation to the plaintiff on the part of the defendant Hauser рersonally, and that no judgment against Hauser personally could be rendered thereon, and that, therefore, judgment in this action should be ordered for the said defendant Hauser. ’ ’

Judgment was entered for defendant Hauser, and a new trial refused. Plaintiff appeals.

1. Defendant insists that the statеment on motion for a new trial must be disregarded, for the reason that it was never served, and service was not waived. The.record does not expressly disclose service, or a waiver thereof; but the judge-below has settled the statement, and certified that it is correct. Subdivision 3, Section 1173, Code of Civil Procedure, requires-the. party moving for a new trial to serve a draft of the proposed statement upon the adverse party, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍as á prerequisite to-its settlement. Settlement without such service, or a waiver thereof, would have been, at the least, an irregulаrity. In the absence of evidence to the contrary, the presumption of regularity and due performance attends official acts. When, therefore, the judge or court has allowed and settled a statement on motion for a new trial, the presumption arises that service was made, and that all steps prescribed for settlement were taken. (Young v. Rosenbaum, 39 Cal. 646; Sullivan v. Wallace, 73 Cal. 307, 14 Pac. 789.) Of course, this presumption is inconclusive, and may be rebutted by proof in the record to the contrary. No such proof appearing-in this case, the presumption prevails that the statement was served in proper time, and was settled upon due notice. Nothing in Walsh v. Mueller, 14 Mont. 76, 35 Pac. 226, or in Woodward v. Webster, 20 Mont. 279, 50 Pac. 791, supports the contention of defendant.

2. This is an action for money claimed as damages for breach of a contract. Prior to the introduction of the so-called reformed procedure, it would have been called an action at law, as distinguished frоm a suit in equity; and for convenience it may be now so designated, since it is based upon a *126legal wrong, and seeks the remedy of a money judgment only. At the common law, as well as under the provisions of Section 250 of the Code of Civil Procedure (Comp. St. 1887), then in force, the parties were entitled to trial by jury of the issues of fact in such an action. If the evidence conflicts, the jury, and not the court, may weigh and decide. If, upon trial, there should be no substantial conflict in the evidence, and the inferences to be drawn from it were such that reasonable men could come to but one conclusion thereon, the case is stripped of questions of fact, and a mere question of law remains for the decision of the court (Helena National Bank v. Rocky Mountain Tel. Co., 20 Mont. 379, 51 Pac. 829.); and in that event, if defendant were entitled to prevail, under our prac: tice the court might, upon trial, instruct the jury to find a verdict for defendant, which would be equivalent to nonsuiting plaintiff, (McKay v. Montana Union Ry. Co., 13 Mont. 15, 31 Pac. 999), or might dismiss the-complaint'by ordering a direct nonsuit; or it might, perhaps, withdraw the casefrom the jury, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and itself decide the question of law, without resorting to nonsuit, or the formality of a verdict by the jury (Emerson v. Eldorado Ditch Co., 18 Mont. 247, 44 Pac. 969); or, lastly, it might submit the case to the jury, with instructions to find for defendant if they believed the evidence adduced. No other method, however, of disposing of such a case, is sanctioned by established practice. The court did not adopt any of these methods. The case was first submitted to the jury to find upon three special issues only, although Section 275 of the Code of Civil Procedure (Comp. St. 1887) expressly authorized them to render either a general or ■ a special verdict, in addition to finding 'upon the special issues submitted by the. court. The disagreement of the jury, and their discharge, resulted in a mistrial. There was no trial by jury. That which would have been a trial, had the jury rendered a verdict, became a nullity. The parties were therefore restored to the same position they occupied before the trial was essayed, and the case thus resumed its former status. What had been received in evidence upon1 a proceeding that-*127had terminated, and had resulted in nothing, could no longer be considered as evidence. Immediately upon the discharge of the jury, the evidence adduced ceased to be before the court; nor was it in the breast of the judge. It-was, for the purpose of such trial, fundus officio. Section 269 of the Code of Civil Procedure (Comp. St. 1887), which provides that, where a jury are discharged after the cause is submitted to them, the action may be again tried, immediately or at a future time, as the court shall direct, indicates with precision the general rule to be fоllowed in such case; and we think that course should be pursued in all actions at law, falling within the provisions of said section 250, in which a mistrial occurs. (See Montgomery v. Sayre, 91 Cal. 206, 27 Pac. 648.) If the evidence were reduced to the form of an agreed statement of facts, it would be, in effect, a special verdict, and,, as such, part of the judgment roll, (Hartman v. Smith, 7 Mont. 19, 14 Pac. 648), and, of course, the intervention of a jury would be useless, since a question of law, only, would theieby be presented for determination; and where the evidence adduced on the trial is without ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍contradiction, and necessarily establishes the facts in favоr of one party, it is, for the purpose of that trial, tantamount to an agreed statement of facts; and this court has so held in Emerson v. Eldorado Ditch Co., supra. But such uncontradicted evidence has the effect of an agreed statement only for the purposes of the trial at which it is received, and cannоt be so treated in a subsequent trial. Its effect as a special verdict or finding must be limited to the trial at which the evidence is adduced, and' may not be used thereafter to prevent either party from availing himself of other evidence; and this is true when the evidence is uncontradictеd, as well as when there is a dispute as to the facts, unless the right to trial by jury be waived, and the cause submitted to the court upon the evidence received upon the mistrial. The court may not substitute itself in place of a jury, and pass upon the effect of evidence which, because of a mistrial, is no longer before it. If, immediately alter a mistrial, the court may, without consent of parties, try and determine *128the cause upon the evidence produced upon the mistrial, no reason is apparent why the court could not properly exercise its supрosed authority in that behalf at any time, however long, thereafter. Through' the lapse of years, or until the court decided the case, the evidence would remain in the breast of the judge. We do not think this theory is in harmony with the right of trial by jury.

In the case of Baylis v. Travellers Insurance Co., 113 U. S. 316, 5 Sup. Ct. 494, the court said: “If, after the plaintiff’s case had been closed, the court had directed a verdict for the defendant on the ground that the evidence, with all inferences that the jury could justifiably draw from it, was insufficient to support a verdict for the plaintiff, so that such a verdict, if returned, must be set aside, it would have followed a practicе sanctioned by repeated decisions of this court — and in that event the plaintiff having duly' excepted to the ruling in a bill of exceptions setting out all the evidence upon a writ of error, would have been entitled to the judgment of this court whether, as a matter of law, the ruling against him was erroneous. Or if, in the present case, a verdict having been taken for the plaintiff by direction of the court, subject to its opinion whether the evidence was sufficient to sustain it, the court had subsequently granted a motion on behalf of the defendant for a new trial, and set aside the verdiсt, on the ground of the insufficiency of the evidence, it would have followed a common practice, in respect to which error could not have been alleged; or it might, with propriety, have reserved the question what judgment should be rendered, and in favor of what party, upon an agreed statement of facts, and after-wards rendered judgment upon its conclusions of law. But without a waiver of the right of trial by jury, by consent of parties, the court errs if it substitutes itself for the jury, and, passing upon the effect of the evidence, finds the facts involved in the issue, and renders judgment thereon. This is what was done in the present case. It may be that the conclusions of iact reached and stated by the court are correct, and, when properly ascertained, that they require such a judgment as *129was rendered. That is a question not before us. The plaintiff in error comрlains that he was entitled to have the evidence submitted to the jury, and to the benefit of such conclusions of fact as it might justifiably have drawn — a right he demanded, and did not waive — and that he had been deprived of it by the act of the court in entering a judgment against him on its own view of the evidence, without the intervention of a jury. In this particular we think error has been well assigned. The right of trial by jury in the courts of the United States is expressly secured by the Seventh Article of Amendment to the Constitution, and Congress has, by statute, provided for the trial of issues of fact in civil c'ases by the court without the intervention of a jury only when the parties waive their right to a jury by stipulation in writing. * * * This constitutional" right this court has always guarded with jealousy.”

As has already been indicated, the practice in this state touching the methods by which the court- may, upon trial, dispose of an action at law, is somewhat more liberal than the practice prevailing in the federal courts. We are, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍however, of the opinion that in this state the court must act while the evidence in an action at law is before it, and is without right to decide, the case upon the evidence after the disagreement and disсharge of the jury.

It is neither necessary nor proper to consider the other assignments of error. The court below was without right to decide the case as. if the evidence were before it. No trial, such as is contemplated by the statute, was had. Plaintiff is entitled to a trial upon whаtever issues of law or fact are presented. Our investigation has been confined to the mode of procedure adopted by the trial court in this case. All other questions are reserved.

The transcript filed in this court is not one which should be followed as a model. Some exhibits are incorporated more than once, and much unnecessary matter has been included; for example, all instructions prayed by the plaintiff, and the charge of the court to the jury. We note, also, that a copy *130of tHe undertaking on appeal is inserted, although it is not оne of the papers required to be furnished. (Code of Civil Procedure 1895, §§ 1736-1739.) Such unnecessary matter imposes useless expense, sheds no light upon any question presented by the appeal,' and tends to impede the court in its investigation of the case. The judgment and order appealed from are reversed, and the cause is remanded, with direction' to the district court to grant a new trial.

Reversed and remanded.

Pemberton, C. J., and Hunt, J., concur.