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we are of the opinion that the judgment tends that it is an action at law, to recover and order should be affirmed. It is so a money judgment, fixed in amount, as set orderca.

forth and demanded in the complaint. The Aflirmed.

first cause of action pleaded is to recover

the sum of $1,748.31, being a balance of HOLLOWAY and SMITH, JJ., concur. moneys colleited by the defendant, while

acting as plaintiff's agent, which defendant

has failed to pay over, after plaintiff had (36 Mont. 25)

"demanded from the defendant the payJUDITH ISLAND TRANSP. CO. V. WIL ment of all money's belonging to this plainLIAMS.

tiff." By its second cause of action plain(Supreme Court of Montana. Oct. 21, 1907.)

tiff seeks to recover the sum of $105, being 1. ACTION-XATURE-ACCOUNTING.

the amount collected on several C. 0. D. An action was one at law for the recovery packages by defendant, which amount he of money, ard not a suit for accounting, where failed to forward to certain express complaintiff sued to recover a balance collected by

panies, as was his duty, and which amount defendant as its agent and retained after plaintiff's demand for the "payment of all moneys

of $100 plaintiff was compelled to and did belonging to" it, and to recover money defend pay to the said express companies. Defendant collected for, but failed to remit to, others,

ant by his answer avers that he has paid which plaintiff was compelled to pay, and where the answer did not allege that an accounting over to the plaintiff all moneys collected by was necessary, and none was asked; full pay him, except the sum of $96.38, which is still ment of plaintiff's claim being pleaded, and in his hands; and by way of counterclaim judgment in a fixed amount demanded by way

alleges that plaintiff is indebted to him in of counterclaim.

the sum of $922.81, balance due him as com[Ed. Note.--For cases in point, see Cent. Dig. vol. 1, Action, $$ 124, 125.]

missions on the business transacted by him

for plaintiff, and demands judgment for that 2. PRINCIPAL AND AGENT-RECOVERY OF MONEY FROM AGENT-PLEADING-DEMAND.

sum. The allegations of this counterclaim A complaint, in an action to recover from are all put in issue by the reply. Plaintiff plaintiff's agent a balance collected by him

had a verdiet for $1,853.31, with interest, and and retained after plaintiff "demanded from the defendant the payment of all moneys be

from a judgment entered thereon, and an longing to this plaintiff," and to recover mon order overruling his motion for a new trial, ey collected for, but not paid to, others, which defendant appeals. plaintiff was compelled to pay, and which defendant has not paid to plaintiff, "though fre

We have carefully examined these pleadquently requested by plaintiff so to do,” suffi

ings. The cause was tried to the court ciently alleges a demand for payment before sitting with a jury, to which all the issues suit.

were submitted. Defendant's counsel pro[Ed. Note.--For cases in point, see Cent. Dig.. posed certain instructions to the court to be vol. 40, Principal and Agent, $ 169.]

given to the jury, and took exception to the 3. SAME-NECESSITY FOR DEMAND.

action of the court in refusing them. There Where an agent claimed he had fully paid his principal all moneys collected for it by him,

is no allegation in the answer that an acand that, instead of being indebted to it, it was counting was necessary in order to arrive at indebted to him, no demand upon him was the amount due the plaintiff, nor to ascernecessary before suit by the principal to re

tain how the accounts between the parties cover the sums due it. [Ed. Note.--For cases in point, see Cent. Dig.

stood, and no accounting was asked for in vol. 40, Principal and Agent, $ 169.)

the answer. Full payment of plaintiff's claim 4. TRIAL-INSTRUCTIONS-EVIDENCE TO SUP

was pleaded, and judgment in a fixed amount PORT.

demanded by way of counterclaim. We are An instruction not supported by evidence is clearly of opinion that this is an action at properly refused. [Ed. Note.--For cases in point, see Cent. Dig.

law to recover a money judgment, ascertainvol. 46, Trial, SS 596-612.]

ed and certain in amount, clearly set forth in

the complaint, and that the same was so reAppeal from District Court, Fergus County;

garded at the trial by counsel for the deE. K. Cheadle, Judge. Action by Judith Inland Transportation

fendant, notwithstanding a remark of the

learned trial judge, as shown in the record, Company against C. H. Williams. From a

that this is a suit for an accounting. judgment for plaintiff, and an order over

At the close of plaintiff's case, the defendruling a motion for a new trial, defendant

ant interposed a motion for a nonsuit, as appeals. Affirmed.

follows: "If the court please, at this time H. L. De Kalb, E. W. Mettler, and 0. W. the defendant moves for a nousuit on the Belden, for appellant. J. C. Huntoon and ground that the plaintiff fails to allege in E. G. Worden, for respondent.

his complaint any suflicient demand having

been made, and he fails wholly to allege that SMITH, J. The nature of this action is a refusal to pay has been entered up by Mr. put in issue in this court, although there Williams, and for the further reason that scems to have been no such question raised the evidence in the case fails to cure this by counsel in the court below. The defend in this particular. There has been no definite ant now claims that this is an equitable ac amount mentioned by Mr. Mears demanderi tion for an accounting, while plaintiff con of Mr. Williams. Now, we take it that in a

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case of this kind those things are essential | maining in his hands of moneys collected by —are essential and necessary."

By the

him. Williams' agency terminated about the phraseology of this motion the defendant's middle of April, 1902, and this action was counsel shows that he regarded this as an ac begun on March 25, 1903. It clearly aption at law. . In his brief the defendant pears from the testimony of the defendant argues that this motion should have been himself that he has always claimed that he granted, because "there was no allegation of had fully paid plaintiff all money's collected demand for a general accounting, and be for it by him, and that, instead of being cause no proof was introduced of any demand indebted to plaintiff, the plaintiff was indebtfor a general accounting, or, indeed, proof ed to him. IIe pleaded this in his answer, of any sufficient demand to support a cause and attempted to prove the same at the of action for a money judgment, by a prin trial. Under these circumstances, no formal cipal against an agent.” It will be readily demand ujen him was necessary. seen from the wording of the motion that In the case of Walradt r. Jaynard, 3 Barb). it contains no reference to a general ac (N. Y.) 584, the court said: “The legitimate counting. And, in so far as it relates to object of a demand is to enable the party to a demand for money, it is only necessary to discharge the liability agreeably to the nasay that the motion for a nonsuit refers gen ture of it, without a suit at law. If he deerally to both causes of action, and in its nies the liability, or the right of the other second cause of action plaintiff alleges “that to call upon him, a demand must be as unthe defendant has not paid said sum of $105, necessary as it would be useless." In the or any part thereof, to this plaintiff, al case of Wiley v. Logan, 9J X. C. 564, thie though frequently requested by plaintiff so court said: “A demand previous to bringing to do." We think the complaint sufficiently an action for money collected by an agent is alleges a demand in each cause of action. to enable the latter to pay it over without An examination of the testimony offered by incurring the cost of suit, for the principal the plaintiff discloses that there was some must seek him, and not he the principal. But evidence of a demand under each cause of a demand is not required where the agency action, before suit brought. This disposes of is denied, or a claim set up exceeding the the motion for a nonsuit.

amount collected, or the agent's responsibiliBut was a demand necessary? This brings ty is disputed in the answer." See, also, Ayer us to a consideration of the instructions re v. Ayer, 16 Pick (Mass.) 327, and Jechem on fused by the court. They are as follows: Agency, $ 331. Our own court has passed upInstruction No. 4, requested by the defend on the principle herein involved. In the case ant: "The jury are instructed that it is a of Christiansen v. Aldrich et al., 30 Mont. material allegation of the complaint that the 416, 76 Pac. 1007, the court uses this lanplaintiff demanded the amount sued for of guage, in a case involving the specific perthe defendant before the institution of this formance of a contract: "It is said that the action, and, unless you find by a preponder complaint is defective for failing to show a ance of all the evidence that the plaintiff : tender of the balance of the purchase money did make a demand of the defendant and before the action was brought. It is unapprise him of the amount due at the time doubtedly the general rule that, if a part of of making such demand, then it will be your the purchase price is still due and payable, duty to find for the defendant." Instruc the plaintiff seeking to have the conveyance tion No. 3, refused by the court: "You are compelled must allege and prove a tender of further instructed, if you find from all the it, and bring it into court. But the rule is evidence that the plaintiff made such demand, not invariable. An exception to it is where then you are instructed that it was incum it is apparent from the pleading that a tenbent upon him to specify substantially the der would be useless. “Where the vendor correct amount due at the time of making claims to have rescinded, repudiates, and such demand, and that a demand from him of denies the obligation of the contract, placing a materially greater amount than he claims himself in suih a position that it appears to be due in its complaint in this action that, if the tender were made, its acceptance would vitiate such demand." The testimony would be refused, then no tender neeil be shows that the plaintiff company was engaged

made by the rendee.'" The appellant has diin the express and passenger business be rected our attention to the case of Anderson tween Lewistown and Harlowtown, and that 1. Hulme, 5 Mont. 29.7. .; Pac. S0.7, in which it defendant was its agent at Lewistown. John was held, in effect. that, in an action for L. Mears was the general manager of the money had and received by an agent or atplaintiff, and one Frank McKechnie was torney for the use of the plaintiff, it is nextan employé of the defendant, Williams, and essary to allege a demand and refusal to ji:ly seems to have had general charge, as such before recovery can be had, and sneh deman employé, of the transportation company's will not be presumed. The question in that business, with the knowledre and consent of case did not arise upon the evidence, which Mears. McKeolie kept the books of the was not in the record; but the defendant agency. There is testimony tending to show contended that the complaint did not state a that, when Willians 14 TV follinated, he (Hisp of action because of the absence of all failed to pay over tu plaintill the balance re allegation of demand before suit brought.

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It appears from the report of that case that we real it, shows that an examination of the
the question as to the necessity of pleading accounts disclosed that (lefendant bad fail.cl
à deinand, in view of the allegations of ihe to turn over to plaintiff all money's receiver
anster, was not called to the attention of hip him, and that he himself was so ignorant
the court. In the case at bar, however, the of the re:il state of the accounts that he was
question before the trial court was not i unable to know whether he was in lebted to
whether the complaint stated a cause of ac plaintiff or not.
tion, but whether, in view of the issues made The judgment of the court below is af-
by the pleadings and the testimony as porta firm1.
sented to the jury, any demand was neces Aflirmed.
sary. We are of opinion that the trial court
was clearly corruet in refusing to give to the BRAXTLY, C. J., and IIOLLOWAY, J.,
jury any instructions on the question of le conc'ur'.
mand.
The only other point urged by appellant is

(36 Mont. 20) that the court erred in refusing the following

WALTER F. COX. instruction requested by him: "You are in

Supreme Court of Jontana. Oct. 21, 1907.) structed that if you find, from all the evi

JUSTICES OF THE PEACE-CIVIL JURISDICTION dence in the case, that Jr. JcKechnie Was;

--('OCXTERCLAIMS, employed by the defendant, Williams, as sul

Code (iv. l'rue. § 691, providing that a gent, with the express or implied assent counterclaim muust ton to diminish plaintiff's thereto of the Judith Inland Transportation

rrrorory and be a cause of action arising out Company, through its managing agent. J. L.

of the contract or transiction set forth in the

| complaint, or be connected with the subject of Mears, then if you further final from all the the action, or in an action on contract any other evidence in the case that the accounts and cause of action on contract existing at the comcollections testified to were handled and at

mencement of the action, has no application

in determining whether a cause of action may tender to in a negligent manner, or the af properly be pleased as a counterclaim in an fairs of the business were by him improperly action in a justice's court; but section 1.721, conducted, and the amount sued for was lost

providing that an answir, in an action in il

justice's court, may contain a general denial, to the plaintiff occasioneel by surli negligence

and also a statement of any other facts conor miscondurt of Jokechnie as such subagent, stituting a defense or counterclaim, on which after such assent being expressly or implied- ; an action might be brought by defendant against

plaintiff in a justice's court, and section 1.725, ly given, then you are instructed that the de

providing that if defendant, in an action in fendant is not liable to the plaintiff for such

a justice's court, omit to set up a counterclaimi, acts of vokalnie as his subagent. The die (annot afforward maintain an action against assent of such appointment may be given

plaintiff thereon, are exclusive, and plaintiff,

having failed in an action in a justice's court either expressly, by word of mouth, or by im

against him by defendant, to set up as a counplication. Assent may be implied by conduct terclaim a cause of action of which a justice's of the plaintiff, the usage of trade, or the court had jurisdiction, he could not thereafter

maintain an action thereon against defendant. nature of the business to be conducted." The court, in lieu thereof, instructed the jury upeal from District ('ourt, Flathead as follows: "You are instructed that the County; J. E. Erickson. Judge. agent is responsible for the acts of his sub Action hs James S. Walter, Jr., agilinst L. agent connected with the carrying out of the A. Fos. in justice's court, and brought to agency, and the court instructs you further the district court by appeal. From a judgthat, if you beliere from the evidence that | ment for defendant and an order denying the moneys belonging to the plaintiff were a noir trial, plaintiff :ppeals. Affirmed. collected by the defendant or his subagent, McIntire & Kendall, for appellant. C. H. McKechnie, and were not turned over to the Foot, for respondent. plaintiff, the Judith Inland Transportation | Company, through the fault or negligence of BRIXTLY, C. J. This action originatel the subagent. McKechnie, that fact, if you in a justice of the peace rourt, and was find it to be true. does not in any Wily re brought into the district court by appeal. lieve the defendant from his liability to prav | It was brought to recover damages illleri such monog so cullerted to the plaintiff, ani to have resultel to the plaintift from the you will. (07:lingly, find for the plaintif burning of certain grutin und straw of the for any such món y so collecteil and not turn plaintiff, through the negligenre of life?:cled over or pitid out for the plaintiff within ant while threshing for plaintiff'. It is illthe sampe of the defendant's acer." It le smil that thie nerligence of clofendant Crusell is sutlicient answer to this contention to si al luss to the plaintiff of 1071) bushes of in, that there is no evidence in the record 0 of the value of $147.30), all of straw of the show that aus One lits suffered any loss liv Villue of $1.). J!!!nt is simile for 10*!son of the fillit that t!! "Olints in la $12)... The ill-Wel, anong other telesa lections were handled or attended to in a contains the following: “(1) That at the negligent manner, or that the mount sulit time of the commencement of still action for was last to platinti by I'!:41 of negli anothriction will leading in still court, in or mism:!: goment on the part of - Whemin this defendant Wits politintill it! sail Kechnie, or anybudy else. The evidence, is, plaintiff Wils detenlaut,' wherein the detenil

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ant herein sought to recover of said plain- | existing between the parties and falling withtiff as defendant a judgment for the sum of in the limited jurisdiction of justices' courts, $100.28. (2) That thereafter and on the 2d as declared in section 66 of the same Code, day of January, 1906, a judgment was duly should be adjusted in one action. Section given and made in said action, wherein this 1.324 declares what defenses may be made. defendant was plaintiff and said plaintiff These are:

These are: (1) A general denial of plaintiff's was defendant, against said plaintiff and in cause of action, and (2) "a statement, in favor of this defendant. (3) That at the plain and direct manner, of any other facts time of the commencement of the above-containing a defense or counterclaim, upon entitled action the pretended cause of action which an action might be brought by the deset forth in plaintiff's complaint herein ex fendant against the plaintiff in a justice's isted against this defendant, if it existed at court.” It will be noted that the only limitaall, and if the plaintiff had a cause of action tion upon the defense of counterclaim is that against this defendant it was a counterclaim it must be one upon which an action might against the cause of action set forth by this be brought in a justice's court. It makes no defendant in his complaint against said difference whether it meets the requirements plaintiff, and as such should have been set of section 691, supra, or not. If the defendup as a counterclaim in said action. (+) ant fails to set it up and have it adjudicated, That plaintiff wholly failed, neglected, and neither he nor his assignee can thereafter refused to set up such counterclaim in said maintain an action thereon. Section 1.12.5. action of this defendant against said plain- That this is the purpose and effect of these tiff, and that therefore under sections 1524 | provisions is clear from the fact that it is and 1525 of the Code of Civid Procedure of no ground of objection to the answer that the state of Montana said plaintiff cannot counterclaims have been improperly joined maintain an action against this defendant therein. Section 1526. for the amount, or any part thereof, or upon Since this point is conclusive of the case, the cause of action, or any part thereof, set it is not necessary to consider other matters forth in plaintiff's complaint herein." Dur argued in the brief's of counsel. ing the hearing of plaintiff's evidence, the Let the judgment and order be affirmed. facts set forth in this special defense were

Affirmed. admitted by the plaintiff and his counsel. When the plaintiff rested, the defendant in HOLLOWAY and SMITII, JJ., concur. terposed a motion for nonsuit on two grounds: First, that the evidence submitteil did not sustain the allegations of plaintiff's

(36 Mont. 7) complaint; and, second, that it appeared

MACKEL V. BARTLETT. therefrom that the action was barred by (Supreme Court of Montana. Oct. 21, 1907.) reason of the fact that the plaintiff, having 1. BANKRUPTCY-ActioxS BY TRUSTEE-Evia cause of action against the defendant of

DENCE-SUFFICIENCY.

Evidence held to show that a surety on a which the justice's court had jurisdiction

note of a bankrupt, in making payment of the at the time the defendant had brought his note with funds furnished by bankrupt, was action, as set forth in the answer, had failed

without reasonable cause to believe that by such to set it up as counterclaim. The court sus

payment the bankrupt intended to give him a

preference over other creditors. tained the motion and directed judgment for

[Ed. Yote.-For cases in point, see Cent. Dig. the defendant. The plaintiff has appealed vol. 6, Bankruptcy, $8 253, 256.] from the judgment and an order denying his 2. SAME-FRAUDULENT TRANSFERS. motion for a new trial.

Mere grounds of suspicion on the part of We are of the opinion that the motion was

the creditor that the debtor is in failing cirproperly granted on the second ground. It

cumstances or is insolvent is insufficient to

avoid a payment to such creditor, though it is admitted by plaintiff's counsel that, if the gave him a preference over other creditors; cause of action stated in the complaint was

but the creditor must have known, or had reasuch that it might have been set up as a

sonable ground to believe, that the debtor was

insolvent and that he intended to prefer him. counterclaim in the former action between

[Ed. Note.-For cases in point, see Cent. Dig. the parties, it should have been so alleged vol. 6, Bankruptcy, $8 255-236.) and settled in that action. He insists, how- | 3. SAVE-INSOLVENCY_WHAT CONSTITUTESever, that this course could not have been -I'REVIOUS DECISIONS. pursued, because it is apparent that the

Though insolvency, as used in Bankr. Act

July 1, 1898, c. 541, 30 Stat. 514 (U. S. Comp. cause of action as stated could not properly

St. 1901, p. 3418), has a meaning different froin have been pleaded as a counterclaim, under what the same term had in the act of 1807 the rule declared by section 691 of the Code (Act March 2, 1867, C. 176, 14 Stat. 517). of Civil Procedure. The provisions of this

yet decisions by the courts on questions arising

under the act of 1867 are applicable, in so far section have no application. The rules gov

as they announce a rule of law for determinerning actions in justices' courts in this par- ing whether a creditor receiving a preference ticular are found in sections 1324 and 1.523 had reasonable cause to believe that his debtor of this Code, and are exclusive. They are

was insolvent. clear and explicit, and demonstrate that it Appeal from District Court, Silver Bow was the policy and purpose of the Legisla- County'; Geo. J. Brurquin, Judge. ture in enacting them that all petty claims Action by Alexander Mackel, as trustee

in bankruptcy of the estate of Frederick A. ment in favor of the defendant, from which Bartlett, against Henry R. Bartlett, to re judgment, and an order denying his motion cover as to an alleged preference made to for a new trial, the plaintiff appeals. defendant by bankrupt. From a judgment Appellant's specifications of error raise only for defendant, and an order denying a new the question of the sufficiency of the evidence trial, plaintiff appeals. Affirmed.

to justify the finding and the conclusion of

the court. There is some conflict in the eriJohn A. Shelton, for appellant. John J. McHatton, for respondent.

dence; but appellant insists that the testimony discloses facts and circumstances suffi

cient to have put Henry R. Bartlett upon inHOLLOWAY, J. On February 4, 1899, quiry, which, if pursued, would have led him and for some time prior thereto, Frederick to but one conclusion, viz., that it was inA. Bartlett was engaged in the mercantile tended to give him a preference over the business in Butte. On February 4th he sold other creditors of Frederick A. Bartlett. And his entire stock of goods to Ras Rochester. it is true that some facts are disclosed by At that time he was indebted to the First

the testimony which, if standing alone, would National Bank of Butte in the sum of $1,500, seem to justify appellant's contention; but, which indebtedness was evidenced by a prom when the testimony is considered as a whole, issory note upon which his brother, Henry R. the conclusion of the district court seems Bartlett, this defendant and respondent, was to be fully sustained. The liabilities of Fredsurety. Immediately after the sale Freder erick A. Bartlett listed in his petition in bankick A. Bartlett gave Henry R. Bartlett a ruptcy, exclusive of the Joseph A. Hyde check, signed by Rochester, for something claim, which the bankrupt testified he did over $1,530, with directions to pay the in not owe, amounted to $4,734.48, and, includdebtedness to the bank, and such payment ing his indebtedness to the bank, his liawas made on February 6th, and the balance bilities did not exceed $6,264.48, while the received from the check, over and above the bill of sale from Frederick A. Bartlett to amount of the indebtedness to the bank, was

Rochester, offered in evidence by the plaindeposited in the name of Frederick A. Bart

tiff upon this trial, recites that the conlett or his wife. For the purposes of this sideration for the sale was $6,314.25; and. appeal it may be said that this payment to

in another action by this plaintiff against the bank was made at the instance and re

Rochester, plaintiff himself alleged that the quest of Henry R. Bartlett, though there

stock of goods sold by Frederick A. Bartlett seems to be some controversy as to this fact. to Rochester exceeded in value the sum of On February Sth Frederick A. Bartlett filed

$8,563. In view of what appears to have a petition asking that he be adjudged a bank

been a studied effort on the part of counsel rupt, and upon such adjudication the plain

for plaintiff to avoid asking Frederick A. tiff herein was selected as trustee, quali: Bartlett, while on the witness stand as a fied as such, demanded of Henry R. Bartlett

witness for plaintiff, what amount in fact that he turn over to the plaintiff an amount

he actually received from the sale of his equal to the amount paid to the bank, and,

stock of goods to Rochester, and the tesupon his refusal to do so, this action was

timony of the defendant that he considered commenced. The complaint alleges that the the stock of goods of a value greater than payment made to the bank was made with the amount of his brother's liabilities, that the intent to prefer Henry R. Bartlett over he advised bis brother to sell, pay his debts, the other creditors of Frederick A. Bartlett,

and start in business anew, that he did not and that the defendant had reasonable cause

know that his brother was in failing cirto believe that such preference was intend cumstances, that he believed he had money ed. These allegations were denied in the

sufficient from the sale to pay his debts, and answer. Upon the first trial the district

knew nothing of his contemplating bankruptcourt excluded certain evidence offered by cy proceedings until after the petition was the plaintiff, and then granted defendant's mo filed, the finding and conclusion of the court tion for a nonsuit, and entered judgment in attacked upon this appeal seem fully warhis favor. Upon appeal this court held that ranted. the ruling of the trial court in excluding the Mere grounds of suspicion on the part of offered evidence was erroneous, and remand the creditor that the debtor is in failing cired the cause for a new trial. Mackel v. Bart

cumstances, or is insolvent, is not sufficient lett, 33 Mont. 123, 82 Pac. 795. Upon retrial to avoid a payment to such creditor, even the district court found that on February though it has the effect of giving him a pref6th Frederick A. Bartlett was insolvent, but erence over other creditors. In order to that Henry R. Bartlett was "without rea succeed in his action, it was incumbent upon sonable cause to believe * * that by the plaintiff to prove that the defendant payment of said note as aforesaid Frederick had reasonable cause to believe that his brothA. Bartlett intended to give to him, Henry er intended to give him a preference over other R. Bartlett, a preference over other creditors creditors, and this necessarily involves proof of said Frederick A. Bartlett.” As a conclu upon the part of plaintiff that defendant knew, sion of law the court held that plaintiff was or had reasonable cause to believe, that Fredenot entitled to recover, and entered judg rick A. Bartlett was in fact insolvent when

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