Tague v. John Caplice Co.

• Decision Date: 27 April 1903
• Citation: 72 P. 297,28 Mont. 51
• Parties: TAGUE v. JOHN CAPLICE CO.
• Court: Montana Supreme Court

72 P. 297

28 Mont. 51

TAGUE v. JOHN CAPLICE CO.

Supreme Court of Montana

April 27, 1903

Appeal from District Court, Silver Bow County; John Lindsay, Judge.

Action by Thomas Tague against the John Caplice Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This action was commenced in the district court by the plaintiff Tague, against the John Caplice Company, a corporation, to recover a balance of $10,842.32, alleged to be due the plaintiff for moneys loaned by him to the defendant company. The answer denies the material allegations of the complaint and sets up these affirmative defenses: First. That the plaintiff, Tague, and John Caplice had been engaged in the wood business at Bernice, Jefferson county, Mont., and that all moneys mentioned in plaintiff's complaint were by the plaintiff, Tague, delivered "to this defendant, to be by this defendant used for the benefit of said plaintiff and of the said John Caplice in carrying on the said wood business and in paying the expenses thereof." Second. That Tague and Caplice entered into negotiations with one Hiram Nelson to conduct the wood business for them, and that Nelson, to secure the necessary means to carry on such business borrowed this money and executed his promissory notes therefor; that such notes were transmitted to this defendant company, by it delivered to the plaintiff, and by the plaintiff accepted and received as payment and settlement in full for all moneys so advanced by him. When the cause came on for trial, the defendant company made a motion for continuance upon the ground of the absence of two witnesses J. Ross Clark and J. K. Heslet. The application was made upon an affidavit setting forth the facts to which those witnesses would testify if present in court. Thereupon the plaintiff admitted that, if the witnesses were present, the evidence would be offered as set forth in the affidavit, but to certain portions of such evidence the plaintiff reserved the right to object when it was offered. Thereupon the court overruled the motion for continuance, and the cause proceeded to trial. The court, after defining the issues raised by the pleadings, instructed the jury that no evidence had been offered to establish the fact that any association had ever existed between the plaintiff and John Caplice in the wood business, or that any of the moneys loaned by the plaintiff had ever been paid by the notes of Hiram Nelson, or otherwise, and directed the jury to disregard those defenses set forth in the defendant's answer, and that the only question before them for determination was whether the money was loaned to the defendant, John Caplice Company, and that the burden of proof was upon the plaintiff to establish this fact. The jury returned a verdict in favor of the plaintiff for the full amount claimed, and from the judgment entered thereon, and from an order denying its motion for a new trial, the defendant has appealed.

Jesse B. Roote and W. A. Clark, Jr., for appellant.

McHatton & Cotter and W. W. Dixon, for respondent.

HOLLOWAY, J. (after stating the facts).

Upon the trial the plaintiff offered in evidence a complaint in an action commenced by the defendant herein, the John Caplice Company, against Fannie Nelson, in the district court of Silver Bow County, on May 18, 1896, in which complaint the John Caplice Company claimed to be the owner of the wood business at Bernice, Jefferson county, Mont., which complaint contains copies of two contracts purporting to have been executed between the John Caplice Company and Hiram Nelson with reference to the wood business at Bernice. The complaint further claimed that the defendant, Fannie Nelson, was attempting to assert ownership to the wood and to dispose of it, and asked that by a decree of the district court the John Caplice Company be declared to be the owner and entitled to the possession of such wood. This complaint was verified by the secretary of the company. This evidence was objected to as immaterial and incompetent, and upon the ground that the contracts set out in the complaint show that their execution by the officers of this defendant company were acts ultra vires. The objection was overruled, and error is now assigned.

We think the evidence was properly admitted. It is a well-settled rule that declarations or admissions of a party made in pleadings are admissible against him in another action in behalf of a stranger to the action in which such pleadings were filed, if they were verified by the party or prepared under his instructions. Pope v. Allis, 115 U.S. 363, 6 S.Ct. 69, 29 L.Ed. 393; Hyman v. Wheeler (C. C.) 29 F. 347; St. Louis M. L. L. Co. v. Cravens, 69 Mo. 72; Elliott v. Hayden, 104 Mass. 180. The contracts referred to in the complaint were made with reference to the wood business at Bernice, one dated December 10, 1894, and the other dated April 6, 1895, which referred to the same subject-matter, and purported to modify somewhat the terms of the prior contract. The order of proof may have been somewhat irregular, but in view of the fact that plaintiff immediately offered in evidence the articles of incorporation of the John Caplice Company, which, among other things, provided that the objects for which the corporation was organized were "to buy and sell wood and lumber and building material of whatever kind, to establish, conduct, and carry on the business of cutting, buying, and selling and manufacturing cord wood," etc., and further offered in evidence the minutes of the meeting of the stockholders of such corporation showing the election of officers, and which minutes contain this recital: "It was moved by John Branagan that the contract dated the 10th day of December, 1894, made between the John Caplice Company, a corporation, party of the first part, and Hiram Nelson, party of the second part, be approved and ratified. The motion was seconded by Arthur H. Wethey, and was carried unanimously" -- which minutes were signed and attested by the president and secretary of the corporation -- we cannot say that the district court erred in its ruling.

The plaintiff also offered in evidence a contract between the John Caplice Company and Hiram and Fannie Nelson, dated July 8, 1896, which provided for the compromising of certain lawsuits, and which contract further contained the provision that the John Caplice Company was at that date the owner of the wood business at Bernice, and further provided for the disposition of the wood. This contract recited that the John Caplice Company made the contract, and caused it to be executed by its president and secretary, by whom it was signed, and to which the corporate seal was attached. To this offer the defendant company objected on the ground "that it does not appear that the party executing...