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 taken from active service for any sufficient reason and placed upon the waiting list of eligibles, when occasion arises to increase the active force, he must be given the preference over one who has never served, and that when several policemen are relieved from active service they must be restored to duty, when the necessities of the city demand increased police protection, in the order in which they were taken off the active list. Counsel in their brief say: "Nowhere does the metropolitan police law authorize the mayor to relegate patrolmen to the eligible list on the score of economy." The allegation that the testimony in the mandamus proceeding showed that Mayor Nevin, during his incumbency of office and prior to the discharge of relators, had appointed an equal number of new policemen, who should, as relators now claim, have been relieved from active service instead of themselves, does not change the situation. The question of the mayor's right to do that was not properly determinable in the mandamus proceedings; neither is it raised by the pleadings in this court. It is a new question, which should be presented to the district court in a new proceeding, as should 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 reto 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 mandamus proceedings, for the reason that the relators were not temporarily relieved from duty in the first instance; but the right was claimed to discharge them permanently from the force, and the only question before the court was whether any such power was lodged in the mayor. The court properly held that no such power existed, and ordered that they be restored to their places as members of the force. It could not arise in the contempt proceedings, because the only question for determination there was whether the mayor had actually and in good faith obeyed its order by restoring the relators to their original status. The record shows that he complied literally with the order. But he now claims that, conceding he had ference of bad faith on his part is predicated in the petition upon the allegation that prior to the discharge of relators he had appointed thirteen other policemen. We are not to be understood as holding that in the contempt proceedings the district court would not have been warranted in determining the question of fact whether the action of the mayor under all the circumstances was not a mere subterfuge to evade the law and avoid actual compliance with the order of the court. That question might properly have been determined. But no such issue appears to have been made in that court, and in this court, as hereinbefore stated, counsel for relators announced that they were content to submit for determination the questions of law alone arising upon the pleadings. We think the district court properly discharged the order to show cause. The proceedings are dismissed. Dismissed. the buyer's refusal to accept, sold the property as his own in the market at the best available price, the measure of damages was, as provided by that section, the difference between the price fixed in the contract and the value of the property to the seller, determined pursuant to seetion 6081, together with the excess of the expense incurred in marketing the property over had the buyer accepted. BRANTLY, C. J., and HOLLOWAY, J., and above what such expense would have been concur. If an order granting defendant a new trial, but not indicating the grounds of the court's action, can be justified on any ground properly laid in the petition, it must be affirmed on appeal. [Ed. Note.-For other cases, see Appeal and Error,. Cent. Dig. § 3427; Dec. Dig. § 854.*] 2. APPEAL AND ERROR (§ 856*)-REVIEW OF ORDER FOR NEW TRIAL-CONFLICTING EVIDENCE. Though it may appear on an appeal from an order granting a new trial that the moving party was not entitled thereto as of right on alleged error of law, the court's action will be sustained, if the evidence substantially conflicts. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3406; Dec. Dig. § 856.*] 3. APPEAL ANd Error (§ 933*)—Review—PRESUMPTIONS-NEW TRIAL. Unless an order for a new trial, in a case where the evidence conflicts, and the moving party was not entitled thereto on error of law, expressly excludes the ground of insufficiency of evidence, it will be presumed the court in exercise of its discretionary power granted the motion because it was of opinion that the evidence was insufficient to justify the jury's finding. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3775; Dec. Dig. § 933.*] 4. NEW TRIAL (§ 70*)-INSUFFICIENCY OF EVIDENCE AS GROUNDS. A new trial, in an action at law, should not be granted for insufficiency of the evidence, except for cogent and convincing reasons, be cause all questions of fact are primarily to be solved by the jury. [Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 142, 143; Dec. Dig. § 70.*] 5. APPEAL AND ERROR (§ 979*) - DISCRETION OF COURT-INSUFFICIENCY OF EVIDENCE. Where the ground of a motion is insufficiency of the evidence, it is as to this ground addressed to the court's discretion, and unless that was manifestly abused, its action will not be disturbed. [Ed. Note.-For other cases, see Appeal and Error. Cent. Dig. §§ 3871-3873; Dec. Dig. § 979.*] 6. NEW TRIAL (§ 71*)-DISCRETION OF COURT -CONFLICTING EVIDENCE. It is entirely within the court's discretion to say that an issue shall be tried again, where there is an irreconcilable conflict in the evidence. [Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 144, 145; Dec. Dig. § 71.*] 7. SALES (§ 384*)-BREACH OF CONTRACT BY BUYER-MEASURE OF DAMAGES. Where, on a breach by the buyer of an executory contract, under which, pursuant to Rev. Codes, § 4633. the title did not pass, the seller in exercise of his option under section 6059, on Mattison, Cavanaugh, & Poore, for appellants. C. M. Parr, for respondent. BRANTLY, C. J. This action was brought to recover damages for a breach of contract of sale by plaintiffs to defendants of 5,000 shares of the capital stock of the Butte-Montana Mining Company. It is alleged that on November 13, 1908, the plaintiffs, as copartners doing business as brokers, sold to the defendants, also brokers, upon the floor of the Butte Exchange and under its rules, 4,300 shares at 55 cents, and 700 shares at 54 cents; that according to the terms of the contract the defendants had the option to demand, pay for, and receive the stock at any time within 10 days from the date of sale, Sundays and holidays excluded, but were bound to receive and pay for it within that time; that at the time the sale was made the plaintiffs informed the defendants that the stock was in Pittsburg, Pa., and could not be delivered until the expiration of four or five days thereafter, and that defendants consented to accept delivery after the expiration of that time; that afterwards the stock did arrive, and thereupon the plaintiffs offered to deposit it as an escrow in bank or in the hands of a third party, as provided by the rules of the Exchange, but that defendants stated that this would not be necessary; that by declining to have the deposit made, the defendants waived the requirement of the rules in this regard; that defendants failed to demand or receive or pay for the stock within the period of 10 days, although plaintiffs were ready and willing to deliver the same under the terms of the contract; and that on September 25, 1908, at the expiration of the time within which delivery might be made, plaintiffs offered to deliver the stock and tendered the same to defendants, but that the defendants refused to accept or pay for the same; that thereupon plaintiffs offered for sale, and sold, the stock on the floor of the Exchange 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 stipulated price, the plaintiffs suffered damage in the sum of $993. The answer denies that the defendant Sarah Nichols was ever associated with W. H. Nichols in business. It alleges that W. H. Nichols was a member of the Exchange; that on November 13, 1908, he bought from plaintiffs on the floor of the Exchange 4,300 shares of the stock of the Butte-Montana Mining Company, at 55 cents, and 400 shares at 54 cents; that he had the option of taking the shares at any time within 10 days from the date of purchase, upon payment of the price; that he was entitled, upon demand and payment of 20 per cent. of the price, to have plaintiffs deposit the shares together with said payment in a bank in the city of Butte to be agreed upon, as a guaranty for the fulfillment of the contract; that on November 14th and 16th he demanded of the plaintiffs a delivery of the stock according to the terms of the contract, but that they failed to produce and deliver it as required by the rules of the Exchange, or to tender it to him either at that time or thereafter; that in order to fill orders for the shares which he had so purchased from plaintiffs, he was compelled to buy other shares and use them in their stead. It con cludes with a denial of all allegations in the complaint not specifically admitted. The reply joins issue upon the affirmative allega tions in the answer. It then alleges that the defendants at the time of the sale agreed not to require a deposit of the stock as provided by the rules of the Exchange, and hence waived the requirement of the rules in this regard. At the trial no evidence was introduced tending to connect the defendant Sarah E. Nichols with the transaction. The action seems to have been abandoned entirely as to her. In any event, the trial resulted in a verdict and judgment for plaintiffs against W. H. Nichols alone, for $936, the difference between the purchase price of 4,700 shares which he alleges he purchased, and the amount which these shares brought at sale on the Exchange at 35 cents. The appeal is by the plaintiffs from an order granting this defendant a new trial. The grounds of the motion were insufficiency of the evidence to justify the verdict, and errors of law occurring at the trial and excepted to by the defendant. tial conflict; for in such case, unless the order expressly excludes the ground of insufficiency of the evidence, it will be presumed that the court, in the exercise of its discretionary power, granted the motion, because it was of the opinion that the evidence was insufficient to justify the finding of the jury. Menard v. Montana Central Ry. Co., 22 Mont. 340, 56 Pac. 592; Butte & Boston Min. Co. v. Société Des Mines de Lexington, 23 Mont. 177, 58 Pac. 111, 75 Am. St. Rep. 505. As counsel for plaintiffs contend, the trial court should not grant a new trial, except for reasons appearing to it cogent and convincing, because all questions of fact presented by the evidence are primarily to be solved by the jury (Sutton v. Lowry, 39 Mont. 462, 104 Pac. 545); yet it has been uniformly held by this court that when a ground of the motion is insufficiency of the evidence, it is as to this ground addressed to the discretion of the trial court, and its action thereon will not be disturbed, unless it is manifest that this discretion has been abused. Mattock v. Goughnour, 13 Mont. 300, 34 Pac. 36; Haggin v. Saile, 14 Mont. 79, 35 Pac. 514; Murray v. Heinze, 17 Mont. 356, 42 Pac. 1057, 43 Pac. 714; Ray v. Cowan, 18 Mont. 259, 44 Pac. 821. The contract was what is termed a “buyerten" contract. By the rules of the Exchange, the seller under such a contract has the priv ilege of requiring the buyer to deposit the fillment of his engagement, and the buyer entire purchase price as security for the fulmay require delivery at any time upon ten-. der of the price or a deposit of the certifi cates in the hands of a bank or some other third person, for delivery to the buyer upon payment. If either party fails to meet ei. ther of these requirements after notice, the transaction may be closed, by purchase or sale, through the secretary of the Exchange on account of the delinquent, and the latter is responsible for any loss. The controversy in the evidence was upon the question whether at the time of the sale it was understood by the parties that the plaintiffs should have four or five days' time to obtain the certificates of stock from Pittsburg, Pa., before they could be required to make delivery or deposit, and there was a waiver by the defendants of their right to demand a com pliance with the rules until the expiration of 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 party was not upon any alleged error of law entitled to have his motion granted as a mat versy is. Such being the condition, it was entirely within the discretion of the court to 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. It appears that, on November 25, the plaintiffs, having in the meantime received the stock, after failure of defendant to demand and pay for it, sold it at auction upon the floor of the Exchange, at 35 cents. As to the measure of damages, the court instructed the jury as follows: "You are instructed that if you find for the plaintiffs in estimating damages, the value of the property to the seller thereof is deemed to be the price which he could have obtained for it in the market nearest to the place at which it should have been accepted by the buyer and at such time after the breach of the contract as would have sufficed, with reasonable diligence, for the seller to effect a resale. The damage is the difference between the price above mentioned and the contract price." The contention is made by counsel that the defendant Nichols was entitled to a new trial as a matter of right, on the ground that this instruction is erroneous in declaring the measure of damages. It is argued that the correct measure is the difference between the purchase price fixed in the contract, and the net price which the plaintiffs should have received at a sale of the stock as a pledge to enforce their lien, as provided in sections 5803, 6059, and 6828 of the Revised Codes. The contract was executory, and the title did not pass. Rev. Codes, § 4633. Under section 6059, supra, upon a refusal of the buyer to accept the property sold, the seller may exercise one of two options. He may sell the property as a pledge at auction, as is provided in sections 5803 and 6828. In that case the measure of damages is, as provided in subdivision 1 of section 6059, the difference between the contract price and the net proceeds of the sale, He is not bound to pursue this course, however. He may sell the property as his own, in the market at the best available price. In such case the measure of damages is the difference between the price fixed in the contract and its value to the seller, together with the excess of the amount of expense incurred in getting the property to market over and above what such expense would have been, had the buyer accepted it. The value to the seller is to be determined as provided in section 6081, which declares: "In estimating damages the value of property to the seller thereof is deemed to be the price which he could have obtained therefor in the market nearest to the place at which it should have been accepted by the buyer and at such time after the breach of the contract as would have sufficed, with reasonable diligence, for the seller to effect a resale." Provisions of the Civil Code of California, identical with the foregoing provisions of our Code, supra, were construed and applied in Hill v. McKay, 94 Fruit Co., 106 Cal. 441, 39 Pac. 853. It was held that the provision contained in section 6081 (Cal. Civ. Code, § 3353), prescribes the measure of damages applicable to cases like the one before us. We think this the correct construction and adopt it. The evidence is silent as to whether any expense was incurred in effecting the resale. Except as to this element of the measure, the instruction embodies substantially the provisions of section 6081, supra, and is correct. The other contentions made by counsel we do not deem of sufficient importance to merit special notice. The order is affirmed. Affirmed. SMITH and HOLLOWAY, JJ., concur. (83 Kan. 212) COOPER v. CROSSAN. (Supreme Court of Kansas. July 9, 1910.) 1. FRAUD (8 58*)-EVIDENCE-SUFFICIENCY. That a corporation had valuable holdings and its charter had favorable provisions does not disprove a fraudulent sale of stock in it, so as to defeat an action for deceit against the corporate officers. [Ed. Note.-For other cases, see Fraud, Cent. Dig. §§ 55-59; Dec. Dig. § 58.*] 2. APPEAL AND Error (§ 695*)-RECORD-SUF FICIENCY. sustain a finding of fraud in selling stock is An assignment that the evidence does not insufficient to be reviewed, where the evidence is not abstracted, Supreme Court rule 9 (104 all the evidence to support a claim that it does Pac. viii) providing that one need not abstract not show "a certain fact," applying to the sufficiency of evidence to sustain particular facts and not general findings. Error, Cent. Dig. §§ 2911-2915; Dec. Dig. [Ed. Note.-For other cases, see Appeal and 695.*1 3. APPEAL AND ERROR ($ 987*)-REVIEWWEIGHT OF EVIDENCE. The Supreme Court cannot pass upon the weight of conflicting evidence. Error, Cent. Dig. § 3893-3896; Dec. Dig. [Ed. Note.-For other cases, see Appeal and 987.*] 4. APPEAL AND ERROR (§ 580*) — RECORD SUFFICIENCY. Objection to the admission of a deposition cannot be reviewed, where the proceedings concerning it are not abstracted. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2574; Dec. Dig. § 580.*] 5. APPEAL AND Error (§ 580*)—RECORD-SUF Appeal from District Court, Miami Coun- it is claimed, for example, that evidence of a ty; W. H. Sheldon, Judge. Action by William Cooper against W. B. Crossan. From a judgment for plaintiff, defendant appeals. Affirmed. Alpheus Lane, for appellant. Frank M. Sheridan, for appellee. PER CURIAM. This action was to recover damages for fraud in the sale of shares in the capital stock of the Paola Canal & Industrial Company. The findings and judgment were for the plaintiff, Cooper. The defendant, Crossan, appeals. demand or of a notice is wanting. If, how a demurrer to the evidence or a motion for The abstract does not enable us to determine that there was no evidence to sustain the findings. We cannot pass upon the weight of conflicting evidence. The defendant's abstract does not state the nature of the fraud alleged in the petition; therefore the bearing of the evidence abstracted does not appear. It is stated in the abstract that the witnesses for the defendant "show that the holdings of this company is 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 which dividends of 7 per cent. per annum are to be paid out of net earnings, and that in winding up the affairs of the company the preferred stock is made a first lien on all its property. All this may be true, and yet the defendant may have made a fraudulent sale of the stock. dence was given tending to show their falsity, or that only the evidence abstracted was given affecting that matter, then it would have devolved upon the other party to abstract any evidence, or additional evidence, claimed to show such falsity. The appellant's brief alleges error in the admission of a deposition, and of other i mony, but there is no abstract of any proceeding concerning the deposition. Neither is the testimony objected to abstracted. No other evidence than that above referred to was abstracted, except the testimony given by the defendant himself, and there is 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-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 COM'RS OF SHAWdence in order to support a claim on his part that it does not show or tend to show a certain fact, but when such a question is pre.sented the adverse party shall print so much of the evidence as he claims to have that ef- 1. STATUTES (§ 51*)—EXTENSION TO NEW SUB fect." NEE COUNTY. (83 Kan. 199) (Supreme Court of Kansas. July 9, 1910.) (Syllabus by the Court.) JECT-LEGISLATIVE POWER. In this state the Legislature may, without violating the Constitution, extend the provisions of an existing statute to a new subject by an appropriate reference to such statute in the new act. This rule was commented on and its application illustrated in Railway Co. v. Conlon, 77 Kan. 324, 329, 94 Pac. 148, 150, but the court said: "It will be observed that the portion of the rule quoted speaks of 'a certain fact.' Its application is obvious where For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes [Ed. Note.-For other cases, see Statutes, Cent. Dig. § 48; Dec. Dig. § 51.*] |
