21 Mont. 120 | Mont. | 1898
John 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 Company, 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
“The court — as its findings of fact in the above action— from the evidence introduced in the 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) That, 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.
Judgment was entered for defendant Hauser, and a new trial refused. Plaintiff appeals.
1. Defendant insists that the statement 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 irregularity. 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 from a suit in equity; and for convenience it may be now so designated, since it is based upon a
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 practice 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 verdict, 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
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 discharge 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 whatever 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
Reversed and remanded.