In re Nelson

• Decision Date: 23 July 1936
• Docket Number: 7558.
• Parties: In re NELSON et al.
• Court: Montana Supreme Court

60 P.2d 365

103 Mont. 43

In re NELSON et al.

No. 7558.

Supreme Court of Montana

July 23, 1936

Original proceeding seeking to hold the Western Progressive Publishing Company of Helena, a corporation, and John W. Nelson, the president, editor, and general manager of the newspaper published by the corporation and known as "The Western Progressive" in contempt of court.

Order in accordance with opinion.

SANDS C.J., dissenting.

Raymond T. Nagle, Atty. Gen., and Jeremiah J. Lynch, Asst. Atty Gen., for plaintiff.

Wellington D. Rankin and S. C. Ford, both of Helena, for defendant.

PER CURIAM.

This is an original proceeding seeking to hold the Western Progressive Publishing Company, a corporation, and John W Nelson, the president, editor, and general manager of the newspaper published by the corporation and known as the Western Progressive, in contempt of court.

Following the publication of an article appearing in the Western Progressive published on March 13, 1936, this court submitted the publication in question, together with the opinion of this court in the case of Doyle v. Union Bank & Trust Company, 59 P.2d 1171 theretofore promulgated on March 4, 1936, and to which the published article referred, to the office of the Attorney General, with a request for investigation to determine whether the article so published was in contempt of this court. On receiving an opinion from that office holding that the article was contemptuous, this court directed the Attorney General to file proceedings against these parties for contempt. Thereupon, a sworn affidavit was filed by the Attorney General, and a citation was ordered issued out of this court directing the defendants to show cause, after notice given, if any they had, why they should not be punished for contempt of this court.

The defendants appeared in obedience to this citation, and filed their separate written returns admitting most of the allegations found in the affidavit filed by the Attorney General. A hearing was had before this court, at which the defendant John W. Nelson was present in person and represented by counsel who also represented the other defendant. Witnesses were called by the Attorney General and examined by him and cross-examined by counsel for the defendants. Certain documents were also offered in evidence and by the court received as such. The Attorney General sought to call the defendant John W. Nelson as a witness, but on objection being made by the defendant Nelson himself and by his counsel, claiming his constitutional privilege according to him the right not to be compelled to testify against himself, this court denied the request of the Attorney General to have this defendant sworn or examined as a witness. At the close of the hearing counsel for the defendants, and also the Attorney General, declined to argue the case unless the court so requested, and no request being made by the court, the cause was submitted for judgment and decision without oral argument or briefs.

The Attorney General in his affidavit alleged his official capacity, and the incorporation of the Western Progressive Publishing Company in the month of January, 1932, under the laws of the state of Montana. He further alleged that the Western Progressive since the 11th day of January, 1932, had been a newspaper printed and published on Friday of each week in Helena, and that weekly, and particularly on the 13th day of March, 1936, it had a circulation in Lewis and Clark county and throughout the state of Montana in excess of 5,000 copies; that the Western Progressive Publishing Company owned and published the paper known as and called the Western Progressive; that on the 13th day of March, 1936, and for a year prior thereto, John W. Nelson was the president of the defendant corporation, and the editor and manager of the newspaper published by it; that on the 10th day of August, 1934, Julia Doyle, plaintiff, filed a complaint in the district court of Lewis and Clark county against the Union Bank & Trust Company, a corporation, wherein she prayed for judgment for the sum of $910 and costs; that the defendant answered in that action, and that the cause came on for trial on June 10, 1935, before the district court of Lewis and Clark county sitting with a jury; that on June 13, 1935, a judgment was rendered in that action in favor of Julia Doyle and against the defendant therein, for the sum of $910, with interest and costs, amounting in all to $1,093; that on September 9, 1935, the defendant bank appealed to this court from the judgment, and that on February 10, 1936, that cause was argued before this court, and thereafter on March 4 the court rendered its opinion. All of the foregoing allegations are admitted in the separate returns made by the defendants. No affirmative pleading is made in either return to any of the foregoing allegations, with the exception that it is alleged that the Western Progressive on March 13, 1936, had a circulation between 12,000 and 13,000 copies.

Before proceeding to a review of the allegations with reference to the opinion in the case of Doyle v. Union Bank & Trust Company, it is well to observe that it is altogether improper at this time to enter into a discussion of the merits of that cause or the soundness of the opinion of the court there rendered, since the cause is now pending before this court on a petition for rehearing. It is only proper to make such reference thereto as is necessary to demonstrate the falsity and gross inaccuracy of the publication assuming to report the proceedings of this court.

The affidavit of the Attorney General then contains an exact copy of the majority opinion of this court. It is disclosed from the opinion that the action of Doyle v. Union Bank & Trust Company was brought to recover damages alleged to have been suffered by the plaintiff therein, and to have resulted from the purchase by her from the defendant bank of a debenture for the sum of $910 in the month of November, 1929. Her action was grounded upon alleged false and fraudulent representations in the sale of this debenture. The precise question for decision in that case was whether there was any evidence in the record as to the actual value of the debenture at the time of the sale by the bank to Mrs. Doyle.

We said in that opinion, in declaring the measure of damages there applicable, as follows: "This court, in the case of Healy v. Ginoff, 69 Mont. 116, 220 P. 539, said that the measure of damages for fraud inducing the purchase of property is 'the difference between the actual value of the property at the date of sale and the contract price.' In the case of Rickards v. Aultman & Taylor Machinery Co., 64 Mont. 394, 210 P. 82, it was said that the measure of damages for breach of a warranty in the sale of personal property was the difference between the value of the thing sold if it had been as warranted, and its actual value at the time of the sale. The trial court instructed the jury that the measure of damages was the difference between the value of the debenture which plaintiff obtained and the value of that debenture would have been had it been as represented." It appears from the opinion in that case that the price paid for the debenture was the then market value, and that the market value of the debenture after the purchase continued to be the price paid, or slightly above that price, for a considerable period of time. We there held, in accordance with the contention of the plaintiff in that case, that since the plaintiff had bought this debenture for investment, the market value at the time of its purchase was not controlling. In the opinion we then made the following comment upon the market value of the debenture as evidence of the actual value at the time of its purchase: "If the market value at the time of the sale is an unsafe guide as to the actual value of corporate security, it must logically follow that the market value some three years or more later is likewise no evidence of the actual value at the time of the sale. If an optimistic market value is unsound, then a depressed market value is no better." The opinion then contains, on the last page near the conclusion, the following: "As we view the situation here, there was no proof before the court as to what the actual value of the debenture might have been at the time of the sale. It is argued on behalf of the plaintiff that to compel her to offer some proof as to the actual value of the thing sold at the time of the sale is tantamount to denying to her the right of recovery. The question of the actual value of the debenture was something on which expert witnesses could have expressed an opinion. However, plaintiff's remedy by way of an action for damages was not the only remedy available to plaintiff, if she was defrauded. On discovering the alleged fraud, by offering to restore the property purchased, she would have been entitled, if she could have maintained her allegations as to fraud, to a return of the consideration for the purchase, without any proof as to the actual value of the debenture at the time of the sale; however, she elected to retain the debenture and sue for damages."

The returns admit the promulgation of the opinion as set forth in the affidavit of the Attorney General, and allege that the Chief Justice filed a dissenting opinion to the majority opinion of the court.

The affidavit of the Attorney General then alleges that on March 13, 1936, while that cause was still pending in this court and while the decision was still under the control of this court and subject to revision, the defendants printed and published a certain article, a copy of which, omitting the dissenting opinion of Chief Justice SANDS, is attached as an exhibit; the pertinent part of...