8 Mont. 208 | Mont. | 1888
This is an action for claim and delivery of a horse. The following facts are not controverted, so far as we can see, from the transcript, to wit: That the plaintiff, through an agent, one William J. Palmer, purchased the horse from defendant; that the plaintiff was an undisclosed principal in the transaction; that defendant dealt with Palmer alone as principal, and never recognized plaintiff as his principal; that Palmer bought another horse from defendant at the same
It is conceded by counsel for appellant that, the sale being for cash, the plaintiff is not entitled to the horse unless it has been fully paid for. It is also conceded that, inasmuch as the defendant dealt with Palmer in ignorance of his agency, he is entitled to all the rights, as against plaintiff, that he would have had as against Palmer, if he had in fact been the principal in the transaction. Whether the check of three hundred and fifty dollars paid for the horse in dispute, depends upon the application of the payments made. The plaintiff offered in evidence upon the trial the deposition of Palmer, to prove, among other things, that he paid for the horse in dispute with said check. The deposition was excluded upon objection, upon the ground
“ Be it known that on this eighteenth day of the month of February, in the year of our Lord one thousand eight hundred and eighty-five, by virtue of and pursuant to a commission directed to me from the Second Judicial District Court of the Territory of Montana, in and for the county of Deer Lodge, I, Omer Villere, a notary public, duly commissioned and qualified in and for the parish of Orleans, State of Louisiana, have caused to appear before me Mr. William J. Palmer, a resident of the city of New Orleans, who, after having been by me, notary, duly sworn to answer truthfully the interrogatories and cross-interrogatories propounded to him in the above-entitled cause, doth depose and say. [Then follow the interrogatories and answers, with the following conclusion, to-wit:]
(Signed) “W. J. Palmer.
“Sworn to and subscribed before me this eighteenth day of February, 1885.
(Signed) “ Omer Villere, Not. Pub.”
[Omer Villere, Notarial Seal.]
The caption contains all that the statute requires to be certified to, but the notary nowhere certifies to it. We do not think it material whether the certificate should appear in the caption, or at the close of the deposition; but the simple statement at the end of the deposition of, “sworn to and subscribed before me,” is no certificate to anything, except that the witness swore to and subscribed his name to the deposition. The certificate, then,
The defendant in his deposition, after stating the terms of the sale of the horses, says: “With the further agreement that if the latter horse [referring to the horse in dispute] should win the Derby race in Helena, I was to get an extra hundred and fifty dollars.” The evidence shows that the races in Helena were to take place in the fall of 1884. We should not deem it necessary to notice this point but for the guidance of the court below upon another trial. From the facts proven on the trial,
Judgment reversed.