Evidence-Witnesses-Administering of Oath-Presumptions.

6. Where it appeared that a witness in a justice's court, in an action subsequently appealed to the district court, had been examined and cross-examined at length, the presumption attaches that the justice regularly performed his official duties and administered the oath to the witness before permitting him to testify.

Verdict Contrary to Law-Instructions.

7. A verdict cannot be said to be contrary to the law as declared by the court, where under its instructions the jury could have found the issue for either party.

Sales-Action for Price-General Denial-Evidence Admissible.

8. In an action for the price of goods to be shipped on order, proof that the plaintiff failed to ship goods of the quality ordered is admissible under a general denial.

Same-Appeal-Theory of Case.

9.

Where a cause was tried on a theory adopted by plaintiff's counsel, he will not be heard to complain on appeal that such theory was wrong.

Appeal from District Court, Silver Bow County; Jeremiah J. Lynch, Judge.

ACTION by the Mette & Kanne Distilling Company against Thomas M. Lowrey and another. From a judgment for defendants, plaintiff appeals. Affirmed.

Messrs. Binnard & Rodgers, for Appellant.

The delivery of goods to a common carrier for transportation passes the title in the property to the consignee, and any subsequent change in the quality of said goods which entails damage or loss must be borne by the consignee. (22 Cyc. 1631; United States v. Orene Parker Co., 121 Fed. 596; United States v. Adams Express Co., 119 Fed. 240; 1 Mechem on Sales, 739; Brockway v. Maloney, 102 Mass. 308; Krulder v. Ellison, 47 N.. Y. 36, 7 Am. Rep. 402; Willman Merc. Co. v. Fussy, 15 Mont. 511, 48 Am. St. Rep. 698, 39 Pac. 738.)

The court erred in permitting the stenographer to read the testimony of the absent witness Juescke had in the justice's court. The showing as to the efforts of defendants to procure his attendance was insufficient. (Kirchner v. Laughlin, 5 N. M. 365, 23 Pac. 175; Wilbur v. Selden, 6 Cow. 164; Gerhauser v. North British etc. Ins. Co., 7 Nev. 174; Berney v. Mitchell, 34 N. J. L. 341; Le Baron v. Crombie, 14 Mass. 234; Lipscomb v.

Lyon, 19 Neb. 511, 27 N. W. 731; Weeks v. Lowerre, 8 Barb. 530; Mutual Life Ins. Co. v. Anthony, 50 Hun, 101, 4 N. Y. Supp. 501; Gastrell v. Phillips, 64 Miss. 473, 1 South. 729; Reynolds v. Fitzpatrick, 28 Mont. 170, 72 Pac. 510.)

The answer of defendants having been a general denial, it was insufficient to admit evidence tending to show that plaintiff had not performed the contract by shipping the goods ordered. New matter constituting a defense or counterclaim must be specially pleaded. (4 Current Law, 1049; Hogen v. Klabo, 13 N. D. 319, 100 N. W. 847; Rucker v. Bolles, 133 Fed. 858, 67 C. C. A. 30; McKyring v. Bull, 16 N. Y. 297, 69 Am. Dec. 696; Mauldin v. Ball, 5 Mont. 96, 1 Pac. 409; Iba v. Central Assn. etc., 5 Wyo. 355, 40 Pac. 527, 42 Pac. 20; Penn Mutual Life Ins. Co. v. Ornauer, 39 Colo. 498, 90 Pac. 846; Taxier v. Gouin, 5 Duer (N. Y.), 392; Winkeer v. Roeder, 23 Neb. 706, 8 Am. St. Rep. 155, 37 N. W. 607; Northrup v. Mississippi Valley Ins. Co., 47 Mʊ. 435, 4 Am. Rep. 337.)

Mr. James E. Murray, for Respondents.

Where a seller relies on the contract in an action for the price, he must prove that he performed it by delivering goods of the quantity and quality of the article ordered. (Ruiz v. Norton, 4 Cal. 355, 60 Am. Dec. 618; Flint v. Lyon, 4 Cal. 21; Haase v. Nonnemacher, 21 Minn. 486; Wolf v. Dietzsch, 75 Ill. 205; Woods v. Miller, 55 Iowa, 168, 39 Am. Rep. 170, 7 N. W. 484; Maxwell v. Kellogg, 55 Mich. 606, 22 N. W. 60; Bruce v. Pearson, 3 Johns. 534; Bryant v. Thesing, 46 Neb. 244, 64 N. W. 967; Viall v. Hubbard, 37 Vt. 114.) Where goods ordered by a particular description are sent by common carrier, the buyer may receive them to see if they answer the order, and there can be no acceptance as long as the buyer consistently refuses to accept them as not answering the description of the goods ordered. (Elliot v. Howison, 146 Ala. 568, 40 South. 1018; Catlin v. Jones, 48 Or. 158, 85 Pac. 515.) If the goods are different from the goods ordered, the buyer may refuse to accept them. (Hutchinson Co. v. Dickerson, 127 Ga. 328, 56 S. E. 491;

Parkins v. Missouri Pac., 76 Neb. 242, 107 N. W. 260; Armstrong v. Columbia Co. (Del.), 66 Atl. 366; Ward Furniture Co. v. Isbell Co., 81 Ark. 549, 99 S. W. 845; Jones v. Blomgarten, 143 Mich. 326, 106 N. W. 891; Tiedeman on Sales, sec. 197.) The common carrier is not the agent for the purpose of acceptance, but merely for delivery. (Pierson v. Crooks, 115 N. Y. 539, 12 Am. St. Rep. 831, 22 N. E. 349; Pope v. Allis, 115 U. S. 363, 6 Sup. Ct. 69, 29 L. Ed. 393.) The seller must prove not only delivery, but acceptance in order to show an executed sale. (Greenleaf v. Gallagher, 93 Me. 549, 74 Am. St. Rep. 374, 45 Atl. 829; Brown v. Foster, 113 Mass. 136, 18 Am. Rep. 463; Rider v. Kelley, 32 Vt. 268, 76 Am. Dec. 176.)

Under a general denial, any matter may be given in evidence which shows that the plaintiff never had any cause of action. This would not constitute new matter. Ultimate facts only should be pleaded. The appellant pleaded ultimate facts and the denial throws upon the plaintiff the burden of proof. (See Helena Bank v. Rocky Mt. Tel. Co., 20 Mont. 379, 63 Am. St. Rep. 628, 51 Pac. 831; Cook & Woldson v. Gallatin Co., 28 Mont. 509, 73 Pac. 131.)

MR. CHIEF JUSTICE BRANTLY delivered the opinion of the court.

This action originated in a justice's court of Silver Bow county, and was brought to recover from King & Lowrey, copartners, $182.18, balance alleged to be due on account. The complaint alleges: That the plaintiff, at Butte, Montana, on the day of October, 1905, sold to defendants, and thereafter delivered to them, at their request, f. o. b. St. Louis, Mo., two barrels of Meadeville rye whisky, one barrel of California sherry, and one barrel of port wine; that defendants agreed to pay for the same the sum of $258.31 on or about January 9, 1906, but that they have not paid any part of said sum, except $76.13, leaving the said balance unpaid. The answer denies generally all the allegations of the complaint. In the justice's court plaintiff

had judgment. The defendants appealed to the district court. Pending the appeal the defendant King died. Defendant Lowrey, having been appointed executor of his will, was by an order of substitution by the district court made defendant in his representative capacity also. The trial in that court resulted in a verdict and judgment for defendants. Plaintiff has appealed from the judgment and an order denying it a new trial. The goods in controversy were ordered on October 5, 1905, by defendant Lowrey for the firm of King & Lowrey, who were conducting a saloon in Butte, through one Ambs, a traveling salesman in the employ of plaintiff. They were to be shipped at once, and, as the parties understood, f. o. b. at St. Louis, the plaintiff delivering the bill of lading to the defendants. There is no dispute but that goods, including the items named in the order and ostensibly of the brand and quality specified, were shipped by plaintiff on October 9, 1905, and were received by King & Lowrey, apparently in good order, on October 18 and properly stored in their cellar. The barrels were then all apparently in the same condition as when shipped. Nor is there any controversy touching the quality of the wines. They were paid for at the time the bill fell due and are not involved in this case. Some time after the whisky was received, and after it had been allowed to settle so as to be fit for use, no one in the meantime having had access to the cellar but Lowrey and the employees of the place, the barrels were opened, whereupon the barkeepers discovered that the whisky was of an inferior quality. Lowrey thereupon, on December 6, wrote the plaintiff as follows: "Your invoice of October 9 came all O. K. and the rye whisky is very unsatisfactory, seems to be a little musty, and cannot use it. Please advise us what to do with it." Considerable correspondence thereafter took place between the parties; the plaintiff insisting that it had filled the order properly by shipping Meadeville rye whisky, and that, if there was anything wrong with it, this condition was due to tampering by some one, probably the employees of King & Lowrey, after it had been received. Lowrey insisted that the whisky was not

Meadeville rye whisky, and finally notified the plaintiff that the firm would not pay for it and that it was held subject to plaintiff's order. The issue made in the evidence at the trial was whether the whisky shipped by plaintiff was of the brand and quality ordered, and this was the only question submitted to the jury. The trial was had upon the theory that the contract was an entirety for the sale of the whisky only.

The assignment is made in appellant's brief that the evidence is insufficient to sustain the verdict, but in the portion of it devoted to the argument no reference is made to the assignment. We assume, therefore, that this assignment was abandoned, and notice those only upon which appellant relies.

1. Assuming that the evidence conclusively shows that goods of the kind and quality ordered were delivered to the common carrier at St. Louis, appellant insists that the title then passed to King & Lowrey, and that any loss or damage due to subsequent change in their condition must be borne by the latter. The rule contended for by appellant is elementary. "The effect of the delivery to the carrier under proper circumstances is thus not only to transfer the title, but also to fix ordinarily the time and place at which the title passes. With the title go the risk and liability, and the seller may recover the price though the goods never arrived, or, without his fault, are injured on the way." (1 Mechem on Sales, sec. 739.) In Wheelhouse v. Parr, 141 Mass. 593, 6 N. E. 787, the rule is stated thus: "When goods ordered and contracted for are not directly delivered to the purchaser, but are to be sent to him by the vendor, and the vendor delivers them to the carrier, to be transported in the mode agreed on by the parties or directed by the purchaser, or when no agreement is made or direction given, to be transported in the usual mode, or when the purchaser, being informed of the mode of transportation, assents to it, or when there have been previous sales of other goods, to the transportation of which in a similar manner the purchaser has not objected, the goods, when delivered to the carrier, are at the risk of the purchaser, and the property is deemed to be vested in

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