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at said time it was made to appear that, no such power as that first asserted by him, one of the appointees to fill a vacancy, as he yet has the authority to reduce the force, aforesaid, at the time of his appointment because it is unnecessarily large, or for ecoresided a short distance without the city nomical reasons, and that he has in good limits, but in this connection the respond faith exercised the power by relieving the ents allege that said appointment was made relators from active duty. Assuredly this prior to December 15, 1909, and there was power rests somewhere. Whether in the no testimony showing that the said Charles mayor or the council is a question to be P. Nevin, as mayor of the city of Butte, had determined. But the district court, as we any knowledge of that fact."

read the pleadings, has had no opportunity Upon the cause being called for argument to decide it. No such issue could properly in this court, it was stated by counsel that have been presented to that court upon mothe pleadings appeared to raise certain is- tion to punish as for a contempt for failsues of fact; but it was finally agreed to ure to restore the relators to their places as submit the matter upon the petition and the policemen. The act now complained of is return thereto, without further pleading or an entirely different one from that to which other proceeding. It is contended by coun- exception was taken in the mandamus prosel for the relators (1) that the mayor has ceedings, which the court held to have been no authority under the law to reduce the unauthorized; and unless it can be construed active police force for any reason, econom- to be a mere device to evade the order of ical or otherwise; (2) that the power to re- the court, and accomplish by indirection the duce the active force is vested in the city same result as that originally sought, then council alone; and (3) that, if the mayor's it cannot be said to have been an act power be conceded, it must be exercised in demanding punishment as for a contempt good faith, and not with a view of putting of court. The right to exercise the duties his own appointees in the places of those of an office cannot be tried summarily in policemen who are retired from active serv- contempt proceedings. ice. They argue that, if a policeman is The allegation that the testimony in the taken from active service for any sufficient mandamus proceeding showed that Mayor reason and placed upon the waiting list of Nevin, during his incumbency of office and eligibles, when occasion arises to increase prior to the discharge of relators, had apthe active force, he must be given the pref- pointed an equal number of new policemen, erence over one who has never served, and who should, as relators now claim, bave that when several policemen are relieved been relieved from active service instead of from active service they must be restored themselves, does not change the situation. to duty, when the necessities of the city de- The question of the mayor's right to do that mand increased police protection, in the or- was not properly determinable in the mander in which they were taken off the active damus proceedings; neither is it raised by list. Counsel in their brief say: "Nowhere the pleadings in this court. It is a new does the metropolitan police law authorize question, which should be presented to the the mayor to relegate patrolmen to the eli- district court in a new proceeding, as should gible list on the score of economy.”

also the question as to where the power to But the sole question for determination reduce the force resides. If these questions is: Was the district court correct in hold- should be resolved against the mayor, and ing that the mayor had fully complied with he then refuses to restore the petitioners its original mandate, and was therefore not to active service, he would be in contempt. in contempt? The question of his power It was admitted in argument that in re to relieve policemen from active duty for lieving relators from active duty the mayor reasons of economy was not before the court acted in good faith in exercise of an authorin either the mandamus or contempt pro- ity which he claimed to have, and no inceedings. It could not have arisen in the ference of bad faith on his part is predmandamus proceedings, for the reason that icated in the petition upon the allegation the relators were not temporarily relieved that prior to the discharge of relators le from duty in the first instance; but the right had appointed thirteen other policemen. was claimed to discharge them permanent- We are not to be understood as holding ly from the force, and the only question be that in the contempt proceedings the district fore the court was whether any such power court would not have been warranted in was lodged in the mayor. The court prop- determining the question of fact whether erly held that no such power existed, and the action of the mayor under all the cirordered that they be restored to their places cumstances was not a mere subterfuge to as members of the force. It could not arise evade the law and avoid actual compliance in the contempt proceedings, because the only with the order of the court. That question question for determination there was wheth- might properly have been determined. But er the mayor had actually and in good faith no such issue appears to have been made obeyed its order by restoring the relators in that court, and in this court, as hereinto their original status. The record shows before stated, counsel for relators announced zhat he complied literally with the order. that they were content to submit for deterBut be now claims that, conceding he had mination the questions of law alone arisiug upon the pleadings. We think the district, the buyer's refusal to accept, sold the property court properly discharged the order to show as his own in the market at the best available

price, the measure of damages was, as provided cause.

by that section, the difference between the price The proceedings are dismissed.

fixed in the contract and the value of the propDismissed.

erty to the seller, determined pursuant to see

tion 6081, together with the excess of the exBRANTLY, C. J., and HOLLOWAY, J., and above what such expense would have been

pense incurred in marketing the property over concur.

had the buyer accepted.

(Ed. Note.-For other cases, see Sales, Cent.

Dig. $$ 1098-1107; Dec. Dig. § 384.*] (41 Mont. 435) WELCH et al. v. NICHOLS et al.

Appeal from District Court, Silver Bow

County; Jeremiah J. Lynch, Judge. (Supreme Court of Montana. June 30, 1910.)

Action by Howard K. Welch and another 1. APPEAL AND ERROR (8 854*)-REVIEW OF

as OBDER FOR NEW TRIAL-FAILURE TO INDI

doing business Welch & Harrington, CATE GROUNDS.

against W. H. Nichols and another. There If an order granting defendant a new trial, was a verdict and judgment for plaintiffs but not indicating the grounds of the court's against defendant W. H. Nichols, and from action, can be justified on any ground properly an order granting him a new trial, plaintiffs laid in the petition, it must be affirmed on appeal.

appeal. Affirmed. (Ed. Note.-For other cases, see Appeal and

Mattison, Cavanaugh, & Poore, for appelError, Cent. Dig. & 3427; Dec. Dig. $ 854.*]

lants. C. M. Parr, for respondent. 2. APPEAL AND ERROR (8 856*)-REVIEW OF

ORDER FOR NEW TRIAL-CONFLICTING Evi-
DENCE.

BRANTLY, C. J. This action was brought Though it may appear on an appeal from to recover damages for a breach of contract an order granting a new trial that the moving of sale by plaintiff's to defendants of 5,000 party was not entitled thereto as of right on shares of the capital stock of the Butte-Monalleged error of law, the court's action will be sustained, if the evidence substantially conflicts. tana Mining Company. It is alleged that on

[Ed. Note.--For other cases, see Appeal and November 13, 1908, the plaintiffs, as copartError, Cent. Dig. $ 3406; Dec. Dig. 856.*] ners doing business as brokers, sold to the 3. APPEAL AND ERROR (8 933*)-REVIEW--PRE- defendants, also brokers, upon the floor of SUMPTIONS-New TRIAL. Unless an order for a new trial, in a case 4,300 shares at 55 cents, and 700 shares at

the Butte Exchange and under its rules, where the evidence conflicts, and the moving party was not entitled thereto on error of law, 54 cents; that according to the terms of the expressly excludes the ground of insufficiency of contract the defendants had the option to evidence, it will be presumed the court in exer- demand, pay for, and receive the stock at cise of its discretionary power granted the motion because it was of opinion that the evidence any time within 10 days from the date of was insufficient to justify the jury's finding. sale, Sundays and holidays excluded, but

[Ed. Note.-For other cases, see Appeal and were bound to receive and pay for it within Error, Cent. Dig. $ 3775; Dec. Dig. $ 933.*] that time; that at the time the sale was 4. New TRIAL ($ 70*)-INSUFFICIENCY OF Evi- made the plaintiffs informed the defendants DENCE AS GROUNDS. A new trial, in an action at law, should could not be delivered until the expiration

that the stock was in Pittsburg, Pa., and not be granted for insufficiency of the evidence, except for cogent and convincing reasons, be of four or five days thereafter, and that decause all questions of fact are primarily to be fendants consented to accept delivery after solved by the jury.

the expiration of that time; that afterwards [Ed. Note.-For other cases, see New Trial, the stock did arrive, and thereupon the Cent. Dig. 88 142, 143; Dec. Dig. $ 70.*] 5. APPEAL AND Error ($ 979*) – DISCRETION in bank or in the hands of a third party,

plaintiffs offered to deposit it as an escrow OF COURT-INSUFFICIENCY OF EVIDENCE. Where the ground of a motion is insuffi

as provided by the rules of the Exchange, ciency of the evidence, it is as to this ground but that defendants stated that this would addressed to the court's discretion, and unless be necessary; that by declining to have that was manifestly abused, its action will not the deposit made, the defendants waived the be disturbed.

[Fd. Note.-For other cases, see Appeal and requirement of the rules in this regard; that Error, Cent. Dig. $8 3871-3873; Dec. Dig. & defendants failed to demand or receive or 979.* ]

pay for the stock within the period of 10 6. NEW TRIAL ($ 71*)-DISCRETION OF Court days, although plaintiffs were ready and - CONFLICTING EVIDENCE.

willing to deliver the same under the terms It is entirely within the court's discretion to say that an issue shall be tried again, where of the contract; and that on September 25, there is an irreconcilable conflict in the evidence. 1908, at the expiration of the time within

[Ed. Note. For other cases, see New Trial, which delivery might be made, plaintiffs Cent. Dig. $$ 144, 145; Dec. Dig. $ 71.*]

offered to deliver the stock and tendered the 7. SALES (8 384*)-BREACII OF CONTRACT BY same to defendants, but that the defendants BUYER-MEASURE OF DAMAGES.

refused to accept or pay for the same; that Where, on a breach by the buyer of an ex- thereupon plaintiffs offered for sale, and ecutory contract, under which, pursuant to Rev. Codes, $ 4633, the title did not pass, the seller sold, the stock on the floor of the Exchange in exercise of his option under section 6059, on in due course of business at public auction, for the best price obtainable, to wit, 35 cents ter of right, the action of the court will be per share, and that by reason of defendants' sustained if the evidence presents a substanrefusal to accept and pay for it at the stipu- tial conflict; for in such case, unless the orlated price, the plaintiffs suffered damage der expressly excludes the ground of insufin the sum of $993.

ficiency of the evidence, it will be presumed The answer denies that the defendant that the court, in the exercise of its discreSarah Nichols was ever associated with W. tionary power, granted the motion, because H. Nichols in business. It alleges that W. H. it was of the opinion that the evidence was Nichols was a member of the Exchange; insufficient to justify the finding of the jury. that on November 13, 1908, he bought from Menard v. Montana Central Ry. Co., 22 plaintiffs on the floor of the Exchange 4,300 Mont. 340, 56 Pac. 592; Butte & Boston Min. shares of the stock of the Butte-Montana Co. v. Société Des Mines de Lexington, 23 Mining Company, at 55 cents, and 400 shares Mont. 177, 58 Pac. 111, 75 Am. St. Rep. 505. at 54 cents; that he had the option of tak- As counsel for plaintiffs contend, the trial ing the shares at any time within 10 days court should not grant a new trial, except for from the date of purchase, upon payment of reasons appearing to it cogent and convinthe price; that he was entitled, upon de cing, because all questions of fact presented mand and payment of 20 per cent. of the by the evidence are primarily to be solved price, to have plaintiffs deposit the shares by the jury (Sutton v. Lowry, 39 Mont. 462, together with said payment in a bank in 104 Pac. 545); yet it has been uniformly held the city of Butte to be agreed upon, as a by this court that when a ground of the moguaranty for the fulfillment of the contract; tion is insufficiency of the evidence, it is as that on November 14th and 16th he demand to this ground addressed to the discretion of ed of the plaintiffs a delivery of the stock the trial court, and its action thereon will according to the terms of the contract, but not be disturbed, unless it is manifest that that they failed to produce and deliver it as

this discretion has been abused. Mattock v. required by the rules of the Exchange, or Goughnour, 13 Mont. 300, 34 Pac. 36; Hag. to tender it to him either at that time or gin v. Saile, 14 Mont. 79, 35 Pac. 514; Murthereafter; that in order to fill orders for the

ay v. Heinze, 17 Mont. 356, 42 Pac. 1057, 43 shares which he had so purchased from Pac. 714; Ray v. Cowan, 18 Mont. 259, 44 plaintiffs, he was compelled to buy other

Pac. 821. shares and use them in their stead. It concludes with a denial of all allegations in the ten” contract. By the rules of the Exchange,

The contract was what is termed a “buyercomplaint not specifically admitted. The reply joins issue upon the affirmative allega- the seller under such a contract has the priv. tions in the answer. It then alleges that the entire purchase price as security for the ful.

ilege of requiring the buyer to deposit the defendants at the time of the sale agreed fillment of his engagement, and the buyer not to require a deposit of the stock as provided by the rules of the Exchange, and may require delivery at any time upon ten.. hence waived the requirement of the rules in der of the price or a deposit of the certifi.

cates in the hands of a bank or some other this regard.

At the trial no evidence was introduced third person, for delivery to the buyer upon tending to connect the defendant Sarah E. payment. If either party fails to meet ei. Nichols with the transaction.

The action ther of these requirements after notice, the seems to have been abandoned entirely as to transaction may be closed, by purchase or her. In any event, the trial resulted in a sale, through the secretary of the Exchange verdict and judgment for plaintiffs against on account of the delinquent, and the latter W. H. Nichols alone, for $936, the difference is responsible for any loss. The controverbetween the purchase price of 4,700 shares sy in the evidence was upon the question which he alleges he purchased, and the whether at the time of the sale it was under. amount which these shares brought at sale stood by the parties that the plaintiffs should on the Exchange at 35 cents. The appeal is have four or five days' time to obtain the by the plaintiffs from an order granting this certificates of stock from Pittsburg, Pa., be defendant a new trial. The grounds of the fore they could be required to make delivery motion were insufficiency of the evidence to or deposit, and there was a waiver by the justify the verdict, and errors of law occur-defendants of their right to demand a com. ring at the trial and excepted to by the de- pliance with the rules until the expiration of fendant.

this time, or whether the transaction was The order granting the motion does not strictly a' "buyer-ten” contract under the indicate the particular ground upon which rules. The statements of the witnesses, exthe court based its action. If, therefore, it cept as to the fact that a sale was made, can be justified upon any of the grounds were in irreconcilable conflict; so much so properly laid in the motion, it is incumbent that upon the printed record before us, it upon this court to affirm it. State v. Schnep-would be difficult to arrive at any just conel, 23 Mont. 523, 59 Pac. 927. And though inclusion as to where the right of the controa given case it may appear that the moving versy is. Such being the condition, it was party was not upon any alleged error of law entirely within the discretion of the court to entitled to have his motion granted as a mat- say that the issue should be tried again, and,

under the rule declared in the cases cited, Cal. 5, 29 Pac. 406, and Hewes v. Germain we may not interfere.

Fruit Co., 106 Cal. 441, 39 Pac. 833. It was It appears that, on November 25, the plain- held that the provision contained in section tiffs, having in the meantime received the 6081 (Cal. Civ. Code, $ 3353), prescribes the stock, after failure of defendant to demand measure of damages applicable to cases like and pay for it, sold it at auction upon the the one before us. We think this the corfloor of the Exchange, at 35 cents. As to rect construction and adopt it. The evithe measure of damages, the court instructed dence is silent as to whether any expense the jury as follows: “You are instructed that was incurred in effecting the resale. Except if you find for the plaintiffs in estimating as to this element of the measure, the indamages, the value of the property to the struction embodies substantially the provi. seller thereof is deemed to be the price which sions of section 6081, supra, and is correct. he could have obtained for it in the market The other contentions made by counsel we nearest to the place at which it should have do not deem of sufficient importance to merit been accepted by the buyer and at such time special notice. after the breach of the contract as would The order is affirmed have sufficed, with reasonable diligence, for Affirmed. the seller to effect a resale. The damage is the difference between the price above men SMITH and HOLLOWAY, JJ., concur. tioned and the contract price."

The contention is made by counsel that the defendant Nichols was entitled to a new trial

(83 Kan. 212) as a matter of right, on the ground that this

COOPER V. CROSSAN. instruction is erroneous in declaring the

(Supreme Court of Kansas. July 9, 1910.) measure of damages. It is argued that the

1. FRAUD (8 58*)-EVIDENCE-SUFFICIENCY. correct measure is the difference between the

That a corporation bad valuable holdings purchase price fixed in the contract, and the and its charter had favorable provisions does net price which the plaintiffs should have re- not disprove a fraudulent sale of stock in it, so

as to defeat an action for deceit against the ceived at a sale of the stock as a pledge to

corporate officers. enforce their lien, as provided in sections

(Ed. Note.-For other cases, see Fraud, Cent. 5803, 6059, and 6828 of the Revised Codes. Dig. 88 55-59; Dec. Dig. § 58.*] The contract was executory, and the title did 2. APPEAL AND ERROB (8 695*)-RECORD-SUFnot pass. Rev. Codes, & 4633. Under section

FICIENCY. 6059, supra, upon a refusal of the buyer to sustain a finding of fraud in selling stock is

An assignment that the evidence does not accept the property sold, the seller may exer- insufficient to be reviewed, where the evidence cise one of two options. He may sell the is not abstracted, Supreme Court rule 9 (104 property as a pledge at auction, as is pro- all the evidence to support a claim that it does

Pac. viii) providing that one need not abstract vided in sections 5803 and 6828. In that case not show “a certain fact," applying to the suffithe measure of damages is, as provided in ciency of evidence to sustain particular facts subdivision 1 of section 6059, the difference and not general findings. between the contract price and the net pro- Error, Cent Dig. $$ 2911–29'15; Dec. Dig. I

(Ed. Note.-For other cases, see Appeal and ceeds of the sale. He is not bound to pur. 695.*) sue this course, however. He may sell the

3. APPEAL AND ERROR (8 987*)_REVIEWproperty as his own, in the market at the WEIGHT OF EVIDENCE. best available price. In such case the meas The Supreme Court cannot pass upon the ure of damages is the difference between the weight of conflicting evidence. price fixed in the contract and its value to Error, Cent. Dig. 88 3893–3896; Dec. Dig.

[Ed. Note.-For other cases, see Appeal and the seller, together with the excess of the 987. *) amount of expense incurred in getting the 4. APPEAL AND ERBOB ( 580*) - RECORD property to market over and above what SUFFICIENCY. such expense would have been, had the buy Objection to the admission of a deposition er accepted it. The value to the seller is to cannot be reviewed, where the proceedings con

cerning it are not abstracted. be determined as provided in section 6081,

[Ed. Note.--For other cases, see Appeal and which declares: “In estimating damages the Error, Cent. Dig. $ 2574; Dec. Dig. 8 580.*) value of property to the seller thereof is 5. APPEAL AND ERBOB (8 580*)—RecoBD-SUFdeemed to be the price which he could have obtained therefor in the market nearest to Objection to testimony admitted cannot be the place at which it should have been ac reviewed, where the testimony is not abstracted.

(Ed. Note.-For other cases, see Appeal and cepted by the buyer and at such time after Error, Cent. Dig. 8 2574; Dec. Dig. § 580.*] the breach of the contract as would have suf- 6. APPEAL

AND ERBOR (8 907*)-REVIEWficed, with reasonable diligence, for the seller PRESUMPTIONS. to effect a resale." Provisions of the Civil A finding will be presumed to have been Code of California, identical with the fore supported by evidence, unless the abstracts show

the contrary. going provisions of our Code, supra, were [Ed. Note. For other cases, see Appeal and construed and applied in Hill v. McKay, 94 Error, Cent. Dig. 8 3673; Dec. Dig. 8 907.*)

FICIENCY.

Appeal from District Court, Miami Coun- , it is claimed, for example, that evidence of a ty; W. H. Sheldon, Judge.

demand or of a notice is wanting. If, how. Action by William Cooper against W. B. ever, the general claim be made that a verCrossan. From a judgment for plaintiff, de- dict or decision is unsupported by the evifendant appeals. Affirmed.

dence, and a consideration of the evidence is Alpheus Lane, for appellant. Frank m. necessary to determine the question, the evi

dence must be abstracted by the party makSheridan, for appellee.

ing the claim. * * * If, in consequence of

a demurrer to the evidence or a motion for PER CURIAM. This action was to recov- a peremptory instruction, it be necessary to er damages for fraud in the sale of shares in consider the evidence generally in order to the capital stock of the Paola Canal & In- determine its legal sufficiency, the party asdustrial Company. The findings and judg- serting its insufficiency must abstract it. ment were for the plaintiff, Cooper. The de But if the claimed defect lie in the failure to fendant, Crossan, appeals.

prove some certain fact essential to recovery, The defendant's abstract does not state the the application of the rule made in the presnature of the fraud alleged in the petition; ent controversy will govern." therefore the bearing of the evidence ab The abstract does not enable us to deterstracted does not appear. It is stated in the mine that there was no evidence to sustain abstract that the witnesses for the defendant the findings. We cannot pass upon the weight "show that the holdings of this company is of conflicting evidence. and was one of the best propositions in the It is not meant that a copy of the evidence country"—then follow the statements of a should have been set out, but an abstract is witness that he would consider the plant one required as stated in the Conlon Case. If it of the best in the country, that it could wa- had been stated that the claim of the plainter 8,000 or 9,000 acres, and that the average tiff was based on false representations and yield of rice is 7 or 8 sacks per acre, worth what the representations were, and an abon an average $3.50 per sack, one-fifth of stract of the testimony relating to the reprewhich goes to the water company. The state-sentations and their falsity had been made, ment of another witness that the property it would have been sufficient. Or, if, after of the company was worth $65,000 is given, abstracting the evidence concerning the repand also an excerpt from its charter author- resentations, it had been stated that no eviizing the issuance of preferred stock upon dence was given tending to show their falsiwhich dividends of 7 per cent. per annum ty, or that only the evidence abstracted was are to be paid out of net earnings, and that given affecting that matter, then it would in winding up the affairs of the company the have devolved upon the other party to abpreferred stock is made a first lien on all its stract any evidence, or additional evidence, property. All this may be true, and yet the claimed to show such falsity. defendant may have made a fraudulent sale The appellant's brief alleges error in the of the stock.

admission of a deposition, and of other ; No other evidence than that above refer- mony, but there is no abstract of any prored to was abstracted, except the testimony ceeding concerning the deposition. Veither given by the defendant himself, and there is is the testimony objected to abstracted. no statement that all the evidence upon the The principal contention of the defendant issue, or upon any issue, is abstracted. Nor is that the evidence does not support the findis it stated what the issues were, except the ing made against him, but as this does not general statement that the petition charged appear from his own abstract, nor from the that the defendant had committed a fraud in counterabstract filed by the plaintiff, it must selling the stock. The abstract says that be presumed that such evidence was receiv. “there is no evidence to sustain such an al- i ed, and the judgment must be affirmed. legation," i. e., allegation of fraud in the sale of the stock. This is insufficient. Rule 9 (104 Pac. viii) of this court provides: “A party need not include in his abstract all the evi- STATE V. BOARD OF COU'RS OF SHAWdence in order to support a claim on his part

NEE COUNTY. that it does not show or tend to show a cer

(Supreme Court of Kansas. July 9, 1910.) tain fact, but when such a question is pre. sented the adverse party shall print so much

(Syllabus by the Court.) of the evidence as he claims to have that ef- 1. STATUTES ($ 51*)—EXTENSION TO New SUBfect."

JECT-LEGISLATIVE POWER. This rule was commented on and its appli In this state the Legislature may, without cation illustrated in Railway Co. v. Conlon, violating the Constitution, extend the provisions 77 Kan. 324, 329, 94 Pac. 148, 150, but the of an existing statute to a new subject by an

appropriate reference to such statute in the new court said: "It will be observed that the act. portion of the rule quoted speaks of 'a cer [Ed. Note.-For other cases, see Statutes, tain fact.' Its application is obvious wherel Cent. Dig. $ 48; Dec. Dig. $ 51.*] *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. 3eries & Rep': Indexes

(83 Kan. 199)

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