Leggat v. Palmer

• Decision Date: 22 June 1909
• Citation: 102 P. 327,39 Mont. 302
• Parties: LEGGAT v. PALMER et al.
• Court: Montana Supreme Court

102 P. 327

39 Mont. 302

LEGGAT v. PALMER et al.

Supreme Court of Montana

June 22, 1909

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

Action by Alexander Leggat, administrator of John A. Leggat deceased, against C. H. Palmer and another. From a judgment for plaintiff, defendant C. H. Palmer appeals. Modified and affirmed.

Charles R. Leonard, for appellant.

Kirk Bourquin & Kirk, for respondent.

BRANTLY C.J.

This action was brought by plaintiff, as administrator of the estate of John A. Leggat, deceased, to recover moneys alleged to have been received by defendants as interest upon the sum of $4,000, deposited with them by the said Leggat during his lifetime, to indemnify them against loss as his sureties upon a supersedeas bond. The purpose of the bond was to secure a stay of execution upon a judgment for the plaintiff on the first of the several appeals in the case of Harrington v Butte & Boston Min. Co. et al., upon the last of which a judgment in favor of plaintiff was affirmed by this court on June 24, 1907. 35 Mont. 530, 90 P. 748. This judgment was afterwards paid by the plaintiff herein. An understanding of the controversy involved in that case may be had by reference to the statement preceding the opinion reported in 19 Mont. 411, 48 P. 758. The first appeal in the case was taken on December 12, 1895. At that time the Butte & Boston Mining Company was indebted to its codefendant, John A. Leggat, on account of ores sold and delivered to it by him, to an amount in excess of $4,000. The defendants herein, being officers of the company, became sureties on the supersedeas bond. In order that they might be secured against loss in case the judgment should be affirmed, and also that the company might be secured against any contingent liability on any judgment finally recovered in the action, it was agreed by Leggat that $4,000 of the amount due him from the company should be deposited by it in the State Savings Bank, at Butte, to the credit of the defendants, and be held by them until the termination of the controversy. The arrangement was completed by a deposit of the amount in the bank, and the issuance by it of a certificate to the defendants jointly, bearing interest at the rate of 4 per cent. per annum. There was no stipulation in the agreement requiring the defendants to put the money at interest, or as to what disposition should be made of any interest received. The amount due from the company to Leggat, in excess of $4,000, was then paid to him by the company, and his account upon its books was closed. Though the judgment was reversed on April 26, 1897, and the defendants were exonerated from liability, they retained the deposit intact under the original arrangement, until March 10, 1898. On that date, by consent of the receiver of the company, the defendants paid to Leggat $400, retaining the balance on deposit as before. Leggat died on October 12, 1903. By consent of the receiver of the company, the plaintiff having furnished him other satisfactory indemnity, the defendants made payments to plaintiff, as follows: On November 28, 1903, $500, on January 27, 1904, $1,850, and on May 3, 1904, $1,250. A demand was made upon the defendants for the interest, but the demand was refused. Hence this action.

The complaint alleges that the defendants held the money on deposit from July 27, 1897, and continued to receive interest thereon at the rate of 4 per cent. per annum from that date until March 10, 1898, when the payment of $400 was made to Leggat, and that from that date until November 28, 1903, they continued to receive interest at the same rate upon the balance of $3,600, and judgment is demanded for $924.30. The cause was submitted to the court without a jury. Judgment was rendered for plaintiff for $1,209.17. Defendant Palmer has appealed from the judgment and an order denying his motion for a new trial.

1. Though a considerable portion of appellant's brief is devoted to a discussion of rulings of the court upon the admissibility of certain items of evidence, we do not think any of the contentions in this behalf of sufficient merit to demand special notice. We find no error in any of them. For illustration: The witness Forbis, who was attorney for the company at the time the deposit was made, and afterwards its receiver, and who had personal knowledge of the account of Leggat and the arrangement for indemnity against loss on the bond, was permitted to state, in substance, that neither the company, nor he as its receiver, ever made any claim to interest accruing on the deposit. It is said that it was wholly immaterial whether any such claim was made or not. While the evidence was not of a great substantial value, yet, in view of the testimony already given by the witness, tending clearly to establish the fact that the deposit was regarded by all the parties as a payment to Leggat of the balance due on his account, subject only to the lien of the company and the defendants for their indemnity, the omission of any such claim by the company or the receiver was confirmatory of Leggat's title to the amount of the deposit, and hence to the interest accruing thereon.

2. The plaintiff was permitted to testify that he had learned during the course of the trial, that the defendants had received interest on the deposit from December 12, 1895, instead of July 27, 1897, as alleged in the complaint, and that upon a calculation of the interest from the former date he had found that the amount received by them was $1,209.17. This evidence was objected to as immaterial and irrelevant, because it had reference to a claim without the issues made by the pleadings. The objection was overruled. Thereupon counsel for plaintiff asked leave to amend the prayer of the complaint by inserting therein this latter amount, instead of $924.30. Counsel stated: "We are willing that this application should be submitted to the court when we submit the case." Objection was made by the defendants that nothing appeared to justify the amendment, and that, in any event, the evidence having been admitted over...