Herbert v. King

Citation1 Mont. 475
PartiesHERBERT, appellant, v. KING et al., respondents.
Decision Date31 August 1872
CourtUnited States State Supreme Court of Montana


Appeal from the First District, Jefferson County.

IN October, 1871, the court, MURPHY, J., sustained the motion of King et al. for a nonsuit.

SHOBER & LOWRY and G. G. SYMES, for appellant.

Granting a nonsuit on the facts is a question of law, and may be reviewed on appeal from the judgment roll, and statement of the evidence on appeal. 3 Estee's Pl. 496; Cravens v. Dewey, 13 Cal. 42;Darst v. Rush, 14 Id. 82;Pratt v. Hull, 13 Johns. 335.

A nonsuit cannot be granted when there is any evidence tending to prove plaintiff's case. McKee v. Green, 31 Cal. 418;Kelley v. Kelley, 43 Barb. 419; Cravens v. Dewey, 13 Cal. 42.

In considering the ruling on the nonsuit, this court will consider as proven every fact which the evidence tended to prove. Dow v. Gould & C. M. Co., 31 Cal. 650;Dero v. Cordes, 4 Id. 117;Labar v. Koplin, 4 N. Y. 547.

The answer admits that appellant was the legal owner of the mining claims in controversy. Appellant testified directly that respondents had possession of the claims at the time of the commencement of the suit and afterward. It was error for the court to grant the nonsuit, because we cannot go into the question of the contradiction of this testimony. If contradicted, the province of the court ends and that of the jury begins.

The declarations of O'Brien were made when he was the agent of respondents and acting within the scope of his authority. They should have been admitted. 1 Greenl., § 113; Story on Agency, §§ 134-137; 1 Phil. on Ev. 381; Thalhimer v. Brinkerhoff, 4 Wend. 394.

If an agent, when acting within the scope of his authority, perpetrates a fraud or wrong on another, or occasions a consequential injury, the principal is liable. Story on Agency, §§ 452, 453, 308; 2 Greenl. on Ev., § 68; Foster v. Essex Bank, 17 Mass. 479;Williams v. Mitchell, Id. 98; 1 Pars. on Cont. 73, 74; Jeffrey v. Bigelow, 13 Wend. 518;Schieffelin v. Harvey, 6 Johns. 170.

The credibility of witnesses is with the jury. The court cannot grant a nonsuit because it thinks, from other circumstances in the case, that the witness did not tell the truth. Merritt v. Lyon, 3 Barb. 110. A conflict of evidence between the plaintiff's witnesses prevents a nonsuit.

CHUMASERO & CHADWICK and E. W. TOOLE, for respondents.

Appellant cannot recover in this action unless he proves two facts. 1. Title in himself or the right to the immediate possession at the time of the institution of the suit. 2. That possession was unlawfully withheld by respondents at that time. The appellant failed to establish either proposition and the nonsuit was properly granted.

Appellant failed to show that respondents had given O'Brien authority to act for them in the matters sought to be proved. The agency must be fully established before the principal is liable for the declarations of the agent. The extent of an agent's power is a question of law for the court to determine. The declarations of O'Brien were properly excluded. Counsel cited the following cases in addition to those of appellant: Garfield v. Knights F. W. Co., 14 Cal. 37;Gerke v. California N. Co., 9 Id. 258.

A nonsuit should be granted if the court could not sustain a verdict on the testimony. Stuart v. Simpson, 1 Wend. 376;Pratt v. Hull, 13 Johns. 334;Ringgold v. Haven, 1 Cal. 115;Ensminger v. McIntire, 23 Id. 593.


This is an appeal from a judgment of nonsuit in the court below, and the question herein presented is whether or not the nonsuit was properly entered.

The action is a suit in ejectment to recover possession of certain mining claims in Baker district, Confederate gulch, in the county of Meagher, embracing three hundred and ninety linear feet of said gulch.

The complaint sets up title in the plaintiff, the right to immediate possession, and the possession of the defendants at the commencement of the suit. The answer denies the title of the plaintiff, denies his possession and the right thereof, and denies possession of defendants, and disclaims all right, title and possession by defendants to the grounds in dispute.

The case was argued upon the hypothesis that the pleadings admitted the ownership of the plaintiff, but such is not the case. The amended answer denies that plaintiff is entitled to the possession, and avers that whatever right the plaintiff had in the ground had been abandoned and forfeited by him, and lost under and by virtue of the usages and customs of the district where the ground was situated, so that no presumption can arise upon the supposed fact that plaintiff was and is the owner of the ground. By the pleadings, title is one of the questions in issue by virtue of the averment of forfeiture.

In order to maintain the action of ejectment, the plaintiff must prove, first, title in himself, or the right to the immediate possession at the time of instituting the suit. This right must exist at the time the suit is brought. A right prior or subsequent to that time will not avail, and second, he must prove that possession was unlawfully withheld by defendant at the time. A failure to prove either of these essential elements will defeat the action of ejectment, and if there is no proof to support a necessary and vital averment of the complaint, a nonsuit would be properly granted.

It seems by the pleadings and proofs in this case, that on the 9th day of March, 1868, the plaintiff was the owner of and in the possession of the mining ground in dispute, and on that day the plaintiff, and defendants King and Gillette, entered into a contract in writing concerning said ground, whereby said plaintiff agreed to deliver possession of the ground to said defendants for the purpose of having the same drained and the gold extracted therefrom, the plaintiff to receive one-half the gold so extracted. King and Gillette were at that time constructing a flume for mining purposes, and the agreement so made between the parties was to be null and void providing said flume did not strike bed-rock at the lower end of said ground, and it was further agreed that King and Gillette should represent the ground until the fulfillment of the contract.

In pursuance of this agreement, King and Gillette entered into possession of said ground and continued to construct their flume until sometime in the summer of 1868, they had reached the lower end of said ground with the flume, and it is admitted that it did not strike bed-rock at that point.

Immediately after it was found that the flume failed to strike bed-rock the plaintiff was notified of the fact, for we find that in September, 1868, he made arrangements with one Leonard to represent the ground, the contract of King and Gillette to represent it having expired upon the failure to reach bed-rock, and they having ceased to represent the ground at that time. It further appears from the testimony that for a month or two after King and Gillette ceased to represent the ground by reason of having failed to strike bed-rock with their flume, the ground was unrepresented, and thereby became subject to relocation by any party who desired to take it up and occupy it. This failure to represent the ground, the testimony shows, forfeited the plaintiff's right to it, and it became subject to relocation like any other parcel of the public domain. If this alleged forfeiture was caused by any wrongful act of King and Gillette, undoubtedly they would be liable in damages therefor, but we have nothing to determine now as to that question.

It further appears by the proof, that this ground being vacant and subject to relocation and entry, was taken up and located by Harwood, Simms and Clarke on the 16th of November, 1868, and was subsequently mined and worked out by them.

The ground could not be worked except through the flume of defendants, and the parties who relocated the ground purchased the right to work two hundred and twenty feet thereof through this flume by selling to King and Gillette, through their agent O'Brien, one hundred and seventy feet of said ground. At the time the ground was relocated by Harwood, Simms and Clarke, the defendants King, Gillette and O'Brien had no interest therein, but subsequently acquired title to one hundred and seventy feet from the relocators. It is further shown that the plaintiff was on the ground and worked there to a certain extent in November, 1868.

Thus far the proof produced by plaintiff tends directly to defeat his case, and to show that he had neither the title or the right to the possession of the ground in controversy, but plaintiff testifies in his own behalf and says that defendants, King and Gillette, and others, had possession of the ground at...

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10 cases
  • McCabe v. Montana Cent. Ry. Co.
    • United States
    • Montana Supreme Court
    • 6 Mayo 1904
    ...every fact will be deemed proved which the evidence tends to prove. Such has always been the rule of practice in this court. Herbert v. King, 1 Mont. 475; Gans v. Woolfolk, 2 Mont. McKay v. Montana Union Ry. Co., 13 Mont. 15, 31 P. 999; Greek v. McManus, 13 Mont. 152, 32 P. 675; State v. Be......
  • Cowan v. Browne
    • United States
    • Montana Supreme Court
    • 5 Abril 1922
    ...much." It is a well-settled rule that on a motion for a nonsuit everything is deemed proved which the evidence tends to prove. Herbert v. King, 1 Mont. 475; Cain v. Gold Min. Co., 27 Mont. 529, 71 P. 1004; McCabe v. Montana Central Ry. Co., 30 Mont. 323, 76 P. 701; Stewart v. Stone & Webste......
  • Bank of Commerce v. Baird Min. Co.
    • United States
    • New Mexico Supreme Court
    • 2 Marzo 1906
    ...Rep. 458, says: “Some of the principles, which are applicable to these questions have been announced by this court in the case of Herbert v. King, 1 Mont. 475. It was held that the principal is responsible for the acts of his agent, when they have been done within the scope of his authority......
  • Miner v. Cook
    • United States
    • Montana Supreme Court
    • 11 Junio 1930
    ...ouster and ejectment by the defendants. Proof of both of these vital allegations is necessary in order to make out a case. Herbert v. King, 1 Mont. 475. 9018, Revised Codes 1921, declares that "in every action for the recovery of real property, or the possession thereof, the person establis......
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