Murray v. Hauser

• Citation: 53 P. 99,21 Mont. 120
• Parties: MURRAY v. HAUSER.
• Decision Date: 09 May 1898
• Court: United States State Supreme Court of Montana

53 P. 99

21 Mont. 120

MURRAY v. HAUSER.

Supreme Court of Montana

May 9, 1898

Appeal from district court, Lewis and Clarke county; H. N. Blake Judge.

Action by John Murray against S. T. Hauser, impleaded with Howard Oviatt and F. D. Spratt. From a judgment for defendant Hauser, plaintiff appeals. Reversed.

Shober & Rasch and E. H. Goodman, for appellant.

Toole & Wallace, for respondent.

PIGOTT J.

John Murray brought this action against Howard Oviatt, F. D Spratt, and S. T. Hauser, to recover $16,083, besides interest, as damages for breaches of certain contracts entered into on December 19, 1891. Defendant Hauser alone appeared. He is sued as the guarantor of performance by Oviatt of the terms of the contract between Murray and Oviatt with respect to the Murray Placer-Mining Company, a corporation, its property, and shares of its capital stock. The contract of guaranty is as follows: "The said Samuel T. Hauser, for and in the interest of the Murray Mining Company, hereby guaranties the complete fulfillment of the above memorandum of agreement on the part of the said Howard Oviatt, to purchase said shares above mentioned of said John Murray at the price thereupon agreed and stipulated to be paid, and the full compliance of said Oviatt with the terms of this memorandum of agreement in every particular. Witness my hand and seal this 19th day of December, A. D. 1891. S. T Hauser. [Seal.]" In the opinion of the trial court issues of fact were made by the pleadings, by which, among other things, plaintiff alleged that the guaranty was understood and intended as a contract binding upon Hauser personally, and that Hauser was not authorized to execute a guaranty in behalf of the Murray Placer-Mining Company, and that the Murray Mining Company mentioned in the guaranty was not the Murray Placer-Mining Company named in the contract between Murray and Oviatt, while defendant Hauser pleaded, among other things, that the guaranty was executed by him as agent for the Murray Placer-Mining Company, and that it was expressly understood and agreed between plaintiff and defendant that the guaranty was made for and on behalf of the company, and that it was not in any way to bind Hauser personally or individually. A jury were sworn to try the case. Each party introduced evidence, which the court submitted to the jury, with instructions to find upon certain special issues; refusing to direct the jury to return a general or special verdict. The jury disagreed and were discharged, and thereupon, on motion of defendant, and over the objection and exception of plaintiff, the court made the following findings and conclusions:

"The court,--as its findings of fact in the above action,--from the evidence introduced in the case, determines: (1) That the words 'Murray Mining Company,' used in the guaranty sued on, attached to Exhibit B in the complaint, were intended by the parties to mean the 'Murray Placer-Mining Company,' the corporation of that name referred to in the complaint, answer, and replication." (2) That, in executing the above guaranty for and in the interest of the Murray Placer-Mining Company, the defendant S. T. Hauser executed the same, not as his personal act, but as the act of the Murray Placer-Mining Company, and that the guaranty was intended by the parties at the time, and executed, as the guaranty of the Murray Placer-Mining Company, through its representative, Hauser. (3) That this condition was fully understood and known by the plaintiff, John Murray, and that, in and about the whole transaction in connection with which the guaranty was executed, it was known and understood that the defendant Hauser acted in a representative capacity for the company aforesaid, and not personally."

"And, as conclusions of law on the foregoing, the court finds that the contract sued on created no obligation to the plaintiff on the part of the defendant Hauser personally, and that no judgment against Hauser personally could be rendered thereon, and that, therefore, judgment in this action should be ordered for the said defendant Hauser."

Judgment was entered for defendant Hauser, and a new trial refused. Plaintiff appeals.

1. Defendant insists that the statement on motion for a new trial must be disregarded, for the reason that it was never served, and service was not waived. The record does not expressly disclose service, or a waiver thereof; but the judge below has settled the statement, and certified that it is correct. Subdivision 3, § 1173, Code Civ. Proc., requires the party moving for a new trial to serve a draft of the proposed statement upon the adverse party, as a prerequisite to its settlement. Settlement without such service, or a waiver thereof, would have been, at the least, an irregularity. In the absence of evidence to the contrary, the presumption of regularity and due performance attends official acts. When, therefore, the judge or court has allowed and settled a statement on motion for a new trial, the presumption arises that service was made, and that all steps prescribed for settlement were taken. Young v. Rosenbaum, 39 Cal. 646; Sullivan v. Wallace, 73 Cal. 307, 14 P. 789. Of course, this presumption is inconclusive, and may be rebutted by proof in the record to the contrary. No such proof appearing in this case, the presumption prevails that the statement was served in proper time, and was settled upon due notice. Nothing in Walsh v. Mueller, 14 Mont. 76, 35 P. 226, or in Woodard v. Webster, 20 Mont. 279, 50 P. 791, supports the contention of defendant.

2. This is an action for money claimed as damages for breach of a contract. Prior to the introduction of the so-called reformed procedure, it would have been called an action at law, as distinguished from a suit in equity; and for convenience it may be now so designated, since it is based upon a legal wrong, and seeks the remedy of a money judgment only. At the common law, as well as under the provisions of section 250 of the Code of Civil Procedure (Comp. St. 1887), then in force the parties were entitled to trial by jury of the issues of fact in such an action. If the evidence conflicts, the jury, and not the court, may weigh and decide. If, upon trial, there should be no substantial conflict in the evidence, and the inferences to be drawn from it were such that reasonable men could come to but one conclusion thereon, the case is stripped of questions of fact, and a mere question of law remains for the decision of the court (Helena Nat. Bank v. Rocky Mountain Tel. Co., 20 Mont. 379, 51 P. 829); and in that event, if defendant were entitled to prevail, under our practice the court might, upon trial, instruct the jury to find a verdict for defendant, which would be equivalent to nonsuiting plaintiff (McKay v. Railway Co., 13 Mont. 15, 31 P. 999), or might dismiss the complaint by ordering a direct nonsuit; or it might, perhaps, withdraw the case from the jury, and itself decide the question of law, without resorting to...