the plaintiff in error, defendant below, requested the court to instruct the jury in writing, and thereupon the court refused to so instruct in writing, using the following language: "The court refuses to instruct the jury in writing, upon request of the defendant-First, because under our rule this request is to be made at the commencement of the trial; and we also overrule it because the request is made only a few minutes before the conclusion of all the evidence in the case, and because the request might just as well have been made yesterday, at the conclusion of the day's business, and the court could then have had opportunity to prepare the instructions during the adjournment, and not have delayed and detained the business of the court; and the court refuses, lastly and finally, because the request, coming at this time, would necessarily detain the business of the court while the instructions were being prepared and reduced to writing." Counsel for the plaintiff in error urges that the statute makes it mandatory upon the trial court to instruct the jury in writing whenever requested so to do by either party, and cites the case of Rich v. Lappin, 43 Kan. 666, 23 Pac. 1038, in support of his position; but in that case it does not appear that the question of the time when such request was made became a material factor either in the refusal of the trial court to give written instructions or the decision of the supreme court reversing the judgment for the failure of the trial court so to do. The record in that case disclosed that the court delivered his instructions orally to the stenographer, who wrote them out after the jury had retired, and the supreme court held that this did not comply with the statute requiring written instructions to be given upon request of either party. After careful investigation, we have failed to find any case upon the point raised decided by our supreme court since the adoption of our present statute in regard to the order of procedure of trials in civil cases; but in the case of Railway Co. v. Franklin, 23 Kan. 75, the question as to whether a request for written instructions was submitted in time was passed upon in an opinion written by Valentine, J. After citing a number of cases decided by the supreme court of Indiana, from which state the statute of Kansas of 1868, with reference to giving and refusing instructions in civil cases and reducing the same to writing, was copied, and announcing the rule laid down by such decisions, the court say: "The rule also seems reasonable to us, for, while it imposes no hardship upon either of the parties or the counsel, a different rule might impose great hardship or great inconvenience upon both the court and parties in other cases waiting for their cases to be heard. If counsel may wait until the close of the argument before making the request, it would necessarily cause great delay in the proceedings of the court, and

materially increase costs and expenses. Generally it would require an adjournment of the court to enable the judge to prepare his written instructions." Under our statute as it then existed, the argument of the counsel preceded the giving of the instructions by the court, while now the instructions are given at the close of the evidence and before the argument of the counsel, and it would seem that the rule, as laid down in the case last cited, ought to apply with the same force now to a request made just at the close of the evidence as it did under the former statute in the case of a request that was made just at the close of the argument. The business of the court under the order of procedure laid down by the present statute would be delayed to the same extent, and an adjournment would be necessary in nearly every case, unless the request for written instructions is made at a reasonable period of time before the close of the evidence. In the case at bar we cannot hold that a rule requiring this request to be made at the commencement of the trial is a reasonable one, for in many cases it is impossible for counsel to determine at the commencement of the trial whether written instructions will be desired or not; and, while it would impose no hardship upon the counsel to make a request for written instructions at the commencement of the trial, yet we could not hold that, if not then made, the request would be too late. But it further appears from the record. that the request in this case was made only a few minutes before the conclusion of all the evidence in the case, and at a time when a compliance therewith would necessarily delay the business of the court while the instructions were being prepared and reduced to writing. Impressed as we are with the soundness of the reasoning in the case above quoted, we are forced to the conclusion that the request for written instructions was made too late, and was therefore properly refused.

Plaintiff in error further complains of a remark made by the court in the presence of the jury during the trial of the cause, and alleges that said remark was prejudicial to the rights of the plaintiff in error, and should cause a reversal of the judgment. The record shows that D. M. Carlton was examined by both plaintiff and defendant at different times, and his testimony introduced in the form of depositions at the trial. The statements of the witness in the two depositions were very conflicting, and would impress even a casual observer with the idea that the witness was far from reliable. When the second deposition given by Carlton was offered at the trial, the court asked the question, "Whose deposition is that?" and, upon being informed that it was the deposition of the witness Carlton, made use of the following expression: "He must be an awful liar." There can be no doubt that a remark of this character was extremely reprehensible, and

tended to detract from the dignity of the court and the entire proceeding. No court can expect either litigants, the bar, or the public to retain respect for its proceedings when the court itself is lacking in the dignity which should attend the trial of causes; but it is not every expression of the court, however reprehensible it may be, that will work the reversal of a judgment. The remark made by the court in this case applies as fully to the testimony of the witness offered by the plaintiff below as it did to the testimony of the same witness when offered by the defendant below. In the case of State v. Burwell, 52 Kan. 686, 35 Pac. 780, a witness was personally giving testimony before the jury, and, in response to an objection made to an inquiry, the trial court remarked, "It seems to me that the state could just let this witness go right on with his romance." This was a remark touching the testimony of a witness introduced by the defendant alone, and upon trial of a felony case; and while the supreme court, in passing upon the remark of the trial court, criticised its action quite severely, yet they declined to reverse the judgment on account of such a remark. In this case, then, had the remark not been made which was made by the trial court, the jury must have been impressed with the fact that the witness Carlton did, either in the one deposition or the other, testify falsely upon the material facts at issue, and we apprehend they could have given neither deposition much weight in the determination of the case. We cannot see that the plaintiff in error was prejudiced by the remark of the court, and therefore the judgment will not be reversed on account of such remark.

The seventh and last reason urged for a reversal of the judgment is that the verdict is not sustained by sufficient evidence, and the counsel for the plaintiff in error reiterates his argument in regard to the question of special or general ownership claimed by the plaintiff below, and refers particularly in his brief to the affidavit in replevin made by the plaintiff below. A careful examination of this affidavit shows to us that practically the same claim was made therein as was made in the amended petition upon which this case was tried, and while the affidavit makes use of the expression "special ownership," yet it also alleges that the hogs were bought with the moneys of plaintiff, under a contract with Carlton by which plaintiff was to furnish the money, and the hogs purchased with such money were to be shipped and sold in plaintiff's name, and that of the proceeds of the sales Carlton was to have no part excepting what arose from the profits. These specific statements are consistent with general ownership, and with the whole theory upon which the case was tried by both parties. There being no material error, the judgment of the district court is affirmed. All the justices concurring.

(16 Mont. 331)

KEYSER v. REHBERG. (Supreme Court of Montana. July 22, 1895.) QUANTUM MERUIT-SERVICES RENDERED.

Plaintiff, who was employed by defendant to superintend a ranch at a fixed sum for a year, to be paid from the proceeds of the ranch, was forced, through the threats and orders of defendant, and without fault on his own part, to abandon the work before the end of the year. Held, that he could recover on a quantum meruit for the services performed.

Appeal from district court, Lewis and Clarke county; W. H. Hunt, Judge.

Action by Eugene Keyser against Edward Rehberg. There was a judgment for plaintiff, and defendant appeals. Affirmed.

G. W. Fleischer and Sidney Sanner, for appellant. C. B. Nolan, for respondent.

answer

PER CURIAM. This is an action for work, labor, and services alleged by plaintiff to have been rendered to the defendant as a superintendent or foreman upon the ranch of the defendant. The defense set up in the was that plaintiff and defendant made a contract by which the plaintiff should conduct the affairs of the ranch for a year, and that defendant should receive $1,000 from the products of the ranch for that year, and that all over that sum should belong to the plaintiff. The replication of plaintiff admits that the contract between the parties was substantially similar to that alleged in the answer, and pleads further that before the completion of the contract the defendant ordered the plaintiff to leave the ranch, and drove him away by the use of dangerous weapons. It appeared by the evidence that a serious altercation took place between the parties before the termination of the year. The defendant, in his testimony, endeavored to make it appear that he was not greatly in fault, while the plaintiff's testimony was that defendant ordered him absolutely away from the premises, and assaulted him with a plowshare, and threatened to run him through with a pitchfork, and also threatened an attack with an iron rod. The testimony of the plaintiff was that he was compelled to leave the ranch by reason of the conduct of the defendant. There is ample evidence in the record to sustain the plaintiff's position,-that he was driven from the ranch by the assaults, threats, violence, and orders of the defendant, and that he did not leave through any fault of his own. If the defendant, by his own conduct, made it clearly impossible for the plaintiff to complete the contract which had been made between the parties, the plaintiff may recover upon quantum meruit for the services which he had performed up to the time when the defendant made it impossible for plaintiff to continue work under the contract. The trial was before the court without a jury, and the court evidently believed the testimony of

the plaintiff, and found for plaintiff in the value of his services as a laborer upon the ranch. The court also allowed a counterclaim of $171 in favor of the defendant.

The evidence is ample to sustain the judgment and the decision. The appeal is from

75

& Brand assigned said contract and agreement to the plaintiff, Bach, Cory & Co. The defendant assented to the assignment by the following written contract: "The Boston & Montana Company, above named, hereby assents to the assignment of the above forego

1. In an action on a contract, brought by the assignee thereof, who, by the terms of the assignment, had expressly agreed to carry out all the conditions of the contract, "for and in the place and stead of" the assignor, the defendants set up a claim for certain goods delivered by them under the contract, and offered in evidence an itemized list of such goods, together with proof that the goods were delivered to the assignor's predecessor under the same contract sued on. Held admissible.

2. Where the terms of an assignment of a contract bound the assignee to perform all the conditions of the contract for and in the place of the assignor, the liability of the assignee related back to the date of the contract, and not merely to the date of the assignment.

Appeal from district court, Cascade county; C. H. Benton, Judge.

Action by Bach, Cory & Company, Limited, against the Boston & Montana Consolidated Copper & Silver Mining Company, for breach of contract. Judgment for plaintiff, and defendant appeals. Reversed.

Cooper & Piggott, for appellant. Leslie & Downing, for respondent.

PER CURIAM. Action in contract. On January 28, 1892, McDonald & Brand, as a firm, executed a contract with defendant. By the terms of the agreement McDonald & Brand were to carry on a boarding and mess house for the defendant for the period of one year, or until January 28, 1893. The defendant furnished McDonald & Brand certain buildings, and a large amount of such personal property as would ordinarily be connected with the business of a boarding or mess house. It was agreed by McDonald & Brand, in the contract, that they would keep the buildings in repair, and replace any breakage, and repair any damage, that might occur through their neglect, or through the neglect of any of their employés, during the life of the agreement, and to replace and repair fixtures that might be broken. The defendant was to protect McDonald & Brand in their board collections, deducting the same from the monthly pay roll of its employés. Afterwards, on February 26, 1892, McDonald

tion that said Bach, Cory & Co. hereby agree to faithfully perform all the terms and conditions of said contract for and in the place and stead of McDonald & Brand, and on the further condition that the price of the board of the men boarding at the general boarding house and rooming at the bunk house be reduced to $5.50 per week, and in all other respects the foregoing contract shall be and remain the same. Witness our hands and seals the 26th day of February, A. D. 1892. Boston & Montana Con. C. & S. Mg. Co., Per F. Klepetko, Supt., Bach, Cory & Co." Plaintiff pleads performance of the contract in place of McDonald & Brand, but alleges that defendant has not protected it in deducting board collections, as provided, and in other respects has violated the contract. Judgment is asked for $2,936.93. Defendant, after denying that it had failed to comply with the conditions of the contract, denied the indebtedness sued for, or that plaintiff had carried out the contract. By way of separate defense, defendant alleges that McDonald & Brand had received certain personal property, dishes, etc., from defendant, under and by virtue of their contract, to enable them to run the boarding and mess house, and that it was the duty of said McDonald & Brand, under said contract, to return all said goods and chattels so used to defendant, at the end of the time mentioned in the contract; but MeDonald & Brand did not return the same, or any part thereof. That Bach, Cory & Co., under and by virtue of its contract with the defendant company, became, and still is, under obligations to carry out and perform the terms and conditions of said contract made by and between defendant and said McDonald & Brand, but that plaintiff has not performed said contract in the place and stead of McDonald & Brand, as agreed, and plaintiff neglects and refuses to return the goods and chattels described in Schedule A, or any part thereof, as was its duty to do. That said goods are worth $418.23, and that defendant is entitled to have said value of said goods set off against the claim and demand of plaintiff. The list appended to the answer is an itemized statement of the articles alleged to be missing. The replication denies that McDonald & Brand received the articles mentioned in the said schedule, or any of them; denies that plaintiff is indebted for such materials in any sum, or that defendant is entitled to have said account set off as a credit on plaintiff's demand, or that plaintiff is entitled to any credit whatever, except as stated in the complaint. The case was tried to a jury, and verdict rendered for the plaintiff for $458.30. Judgment was entered on the verdict. A motion for a new trial was

made, upon the ground of errors of law in the instructions, and exclusion of certain testimony. From the order overruling the motion for new trial, and the judgment, the defendant appeals.

The case seems to have been tried by counsel on both sides upon the theory that for any goods not returned there was a liability under the contract. This proposition being therefore accepted as correct, it is plain that from and after the date of the execution of the contract, to wit, January 28, 1892, McDonald & Brand assumed such liability, until Bach, Cory & Co., with the consent of the defendant, agreed to faithfully perform all the terms and conditions of said contract, for and in the place and stead of said McDonald & Brand. One of these conditions and requirements was to replace all the goods delivered under the contract to McDonald & Brand, at the time of the execution of the contract, January 28, 1892. The replication having denied that the goods claimed to have been missing ever went into the possession of McDonald & Brand, the defendant assumed to prove just what property was delivered to McDonald & Brand, under the contract. The defendant offered an itemized list of goods for the purpose of showing that the goods and chattels described therein came into the possession of McDonald & Brand, under the contract. The plaintiff objected to the introduction of this evidence, upon the ground that it was immaterial and irrelevant. Defendant further offered to show that J. H. Brand ran this same boarding house, under a contract like the one sued on, up to January 28, 1892, and that this contract and said Brand were succeeded by the contract of McDonald & Brand, under which Bach, Cory & Co., claim, and that the goods mentioned in Schedule A, attached to defendant's answer, passed from the possession of Brand to McDonald & Brand, and that Bach, Cory & Co. are liable for the return of said goods. The court sustained the objection. Clearly this was error. It was a most essential feature of the case, and the ruling prevented defendant from interposing a main defense. The offer was direct, and made to sustain issues made by the pleadings. Our view of the law applicable to the case is that when Bach, Cory & Co. accepted the assignment of the contract, and entered upon the performance of it, they not only assumed the performance of all acts to be performed by McDonald & Brand, had they remained parties to the contract, but that they expressly agreed to carry out the terms and conditions of the agreement "for and in the place and stead of McDonald & Brand." By this assumption they agreed to replace all property which had been turned over to McDonald & Brand by defendant, and for which McDonald & Brand could have been held liable at the expiration of the life of the contract. The defendant offered evidence tending to show that Brand had run the

mess before, and that he had had possession of these various goods, and had delivered them to his successor. If there were a more expeditious way of arriving at exactly what goods were delivered to McDonald & Brand, or were in their possession at the date of their contract in January, 1892, we should say that that testimony became immaterial, but as a matter of inducement, and leading up to the material point just mentioned, it was appropriate and ought to have been admitted.

By instruction No. 5 the jury were charged as follows: "The plaintiff, being assignee of the contract of McDonald & Brand, was under the same obligation (after such assignment) that McDonald & Brand were under to carry out and fully perform the terms and conditions of said contract, and unless plaintiff shall prove, by a fair preponderance of evidence, that it has in all material things kept and performed the terms and conditions of said contract to the same extent that McDonald & Brand were required to keep and perform the same, it cannot recover." If the instruction had omitted the parenthetical modification, we think it would have been proper as a succinct statement of the law; but, by limiting the liability or obligations of Bach, Cory & Co. to the period after they agreed to fulfill the contract of McDonald & Brand, we think the court erroneously construed the legal attitude of plaintiff towards the defendant, it being our opinion that plaintiff's liability related to the date of the instrument, January, 1892. It did not extend further back, but commenced at that time.

The judgment must be reversed, and the cause remanded, with instructions to the district court to grant a new trial.

(16 Mont. 376)

QUAINTANCE ▼. GOODROW et al. (Supreme Court of Montana. July 15, 1895.) PROMISSORY NOTE-WAIVER OF DEMAND AND NOTICE.

One who, on indorsing a note, tells the payee to look to him alone for payment, and on the last day of grace and subsequently promises to pay the note, and asks not to be pressed, waives notice of demand and nonpayment by the maker.

Appeal from district court, Jefferson county; Frank Showers, Judge.

Action by A. C. Quaintance against Moses Goodrow, W. J. King, and others. From a judgment against him for the full amount, and an order denying a new trial, defendant King appeals. Affirmed.

W. L. Hay and Walsh & Newman, for appellant. Cowan & Parker, for respondent.

PEMBERTON, C. J. This is an action on a promissory note. On the 17th day of June, 1892, Moses Goodrow executed his promissory note to plaintiff for the sum of $750, with interest payable six months after date.

Defendant King indorsed the note at the date of its execution. The note was not paid at maturity, and this suit was brought for its collection. The defendant King alleges as a defense that the plaintiff did not demand the payment of the note, at maturity, of the maker; that the note was not protested for nonpayment; and that he was not in any manner notified of the nonpayment thereof. The complaint alleges, in effect, that defendant King, by divers promises made to pay the note, before, at, and subsequent to the maturity thereof, waived protest, presentation, and notice of nonpayment. The case was tried to the court without a jury. The court found, as questions of fact, that defendant King, at the time he indorsed the note, stated to plaintiff that he was to look to him (King), and no one else, to pay the note, and that he would pay it promptly; that, on the third day of grace, the agent of plaintiff demanded of King payment of said note, and that he promised then, and at various times thereafter, to pay the same. The court rendered judgment against King for the full amount of the note. King appeals from the judgment, and also from the order denying a new trial. The testimony of the witnesses is to the effect that the defendant King, at divers times after the maturity of the note, promised to pay it. He asked not to be pressed, and promised that, as soon as he could get the money, or arrange it, he would pay the note. He promised to pay it on the last day of grace, and asked not to be pressed. We think the evidence amply supports the findings of the court in respect to this contention. Daniel, in his work on Negotiable Instruments (4th Ed. § 1090) says: "When presentment of the bill or note at maturity has been dispensed with by prior agreement between the parties, or, in other words, has been waived by the party entitled to require it, the holder is excused for his failure to make it. It would be fraud upon the holder to permit him to suffer by acting upon the assurance of the party to whom he looks as security upon the paper; and, as a prompt presentment is a requirement solely for the benefit of the drawer and indorsers, they are themselves the sole judges to determine whether or not they will enforce it. The waiver may be either verbally or in writing. It may be expressed in totidem verbis, or inferred from the words or acts of the parties. And it matters not what particular language may be used, so that it conveys the idea that the presentment at maturity is dispensed with. The like observations apply to the protest and notice." It is not necessary that the waiver should be direct and positive. Daniel, Neg. Inst. § 1091. See sections 1090-1108, inclusive, for a general discussion of the doctrine of waiver. In Yaeger v., Farwell, 13 Wall. 6, a case involving the question of waiver, the court say: "The indorser can, by his own conduct, place himself in such a position that he is estopped

from alleging want of demand and notice of nonpayment. Although, accurately speaking, there can only be a waiver of demand and notice by the indorser before the note is due, yet, after it is due, he can waive proof of them, or, what is more to the purpose, he can so act towards the holder of the note as to render the fact that demand was not made or notice given wholly immaterial.” In Gove v. Vining, 7 Metc. (Mass.) 212, a case almost identical in its facts with the case at bar, Mr. Chief Justice Shaw says: "And the court are of opinion that when an indorser, at or shortly before the time when the note becomes due, says to the holder that an arrangement for its payment is about being made, and in direct terms, or by reasonable implication, requests the holder to wait, or give time, it amounts to an assurance that the note will be paid,-that the promisor or indorser will pay it,-and is a waiver of demand and notice. It tends to put the holder off his guard, and induces him to forego making a demand at the proper time and place; and it would be contrary to good faith to set up such demand and notice-caused perhaps by such forbearance-as a ground of defense." See, also, authorities cited. Markland v. McDaniel (Kan. Sup.) 32 Pac. 1114; Sheldon v. Horton, 53 Barb. 23. We are of the opinion that the defendant King, by his conduct and frequent promises to pay the note, waived demand and notice of nonpayment thereof. The judgment and order appealed from are affirmed.

DE WITT and HUNT, JJ., concur.

(16 Mont. 390) FIRST, NAT. BANK OF BUTTE v. PARDEE et al.

(Supreme Court of Montana. July 22, 1895.) TRIAL-GENERAL AND SPECIAL VERDICT-FORECLOSURE OF MORTGAGES-DEFICIENCY

JUDGMENT.

1. Where, in an action on a note by a bank as assignee, it appears that limitations are a good defense if, as defendant claims, the price of stock sold to a member of the assignor bank was paid and credited on the note on August 30, 1883, as agreed, instead of December 21, 1883, as indorsed on the note, a general verdict for plaintiff is not inconsistent with special findings that the vendee purchased the stock of the defendant in August, 1883, and that the credit on the note should have been made in that month, but that plaintiff did not receive the money till December 21, 1883.

2. Under Code Civ. Proc. § 358, authorizing the court, in an action for foreclosure of a mortgage, to enter a deficiency judgment for the balance due against the defendants liable for the debt, a deficiency judgment may be entered, against a grantor in a deed of trust given to secure a debt, independent of any provision in the deed.

Appeal from district court, Silver Bow county; J. J. McHatton, Judge.

Action by the First National Bank of Butte against James K. Pardee and others. From