cumstances under which the parties conduct-, inference that the plaintiff refused to accept ed and concluded their negotiations, not to delivery, not because the crop was not equal contradict, enlarge or, vary the terms of the in quality to the sample exhibited and left written instrument, but to enable the jury to with him, but because he had concluded that ascertain the mutual intention of the par- he could not make profitable use of that ties, and hence whether the plaintiff or the quality of barley. The evidence properly defendant was guilty of a breach of the con- presented a question for the jury, under the tract. The evidence did not leave any doubt instructions, as to whether the parties used that 'among brewers and malsters the ex-the expression in its technical sense or to pression "good brewing barley" means barley mean barley of the quality represented by of the best quality. It also showed, however, the sample.

"A verdict is not to be technically construed, but is to be given such a reasonable construction as will carry out the obvious intention of the jury. In arriving at this intention, reference may be had to the issues made by the pleadings, the instructions submitted by the court, and the evidence introduced at the trial; and, if by a fair and reasonable construction of it, in view of the whole record, the intention of the jury is manifest, it should be allowed to stand."

without dispute, as is alleged in the answer, [9] 4. Finally it is contended that the court that the plaintiff agreed to purchase defend-erred in denying plaintiff's motion for judgant's crop after inspecting a sample exhibit- ment upon the verdict for the full amount ed to him by the defendant and left with of the cash payment, in addition to the him, upon condition that the 2,500 bushels amount found by the jury. Counsel insists would be of the same quality as the sample, that, since it appears from the verdict that the and that the contract was thereupon execut- jury resolved all the issues in favor of the ed in duplicate, after it had been prepared plaintiff, he was entitled to judgment for by Henry Lehrkind, plaintiff's agent. It al- the amount of the cash payment. This conso appeared without dispute that a short tention involves some difficulty. Looking time after the contract was executed Walter at the verdict alone, one would conclude that Lehrkind went out to the farm of the defend- the jury purposed to find for the plaintiff on ant and inspected and sampled the crop of all the issues, but inadvertently omitted to barley in defendant's granary, and that he fix correctly the amount they must have indid not then claim that it was not good brew-tended to award him. It was said by this ing barley as represented by the sample. court in Consolidated Min. Co. v. Struthers, His only statement at that time was that it 41 Mont. 565, 111 Pac. 152: was not quite as good as he had expected. It further appears without serious dispute that the defendant was not notified that plaintiff would not accept delivery of the barley until he brought to the brewery and offered to deliver the 11,805 pounds, when he was told that plaintiff would not accept that or any further delivery. There is a direct conflict as to the reason assigned for the refusal to accept, the plaintiff asserting that he refused because upon examination he found the barley was not of as good quality as the sample, inasmuch as it showed evidence of frost, and was therefore unfit for malting, and the defendant asserting that plaintiff did not assign any reason, but merely refused to accept. The main controversy was upon the question whether the crop, as a whole, was fairly represented by the sample, and whether it was fit for malting purposes. The defendant contradicted the statement of the plaintiff and his witnesses that the sample identified by Henry Lehrkind was the one left with plaintiff at the brewery. Several witnesses who had seen defendant's sample corroborated the defendant on this point, and also in his statement that a sample which he exhibited to the jury was the same in quality and appearance as the one left with plaintiff. On these points the evidence was in hopeless conflict. It was conceded on both sides that "good brewing barley," as this expression is understood by brewers, was so scarce by reason of an early frost in Gallatin county that very little was obtainable in the market at Bozeman. There was evidence tending to show that such barley as that offered by the defendant could be and was used for malting purposes. Besides this, there is some basis in the evidence for the

The verdict in this case, standing alone. is ambiguous, in that it finds the issues generally for the plaintiff and fixes the award to him in an amount inconsistent with the general finding. When we examine the evidence and the instructions, however, we are justified in concluding that the purpose of the jury was to award to the plaintiff, out of the cash payment, only a sum in excess of the amount tendered to the plaintiff because they did not think defendant damaged in the amount claimed, and otherwise to find for the defendant. There were definitely instructed that, if they found the defendant at fault, they should award to plaintiff the amount of the cash payment in full, and, in addition thereto, such damages in the way of lost profits as the evidence showed he had suffered. Evidently, if the intention had been to find. for the plaintiff on all the issues, the jury would have followed this explicit instruction. There is no presumption, however, that they deliberately on the contrary, the fact disregarded it; that they made the award as they did raises a strong presumption that they thought this to be the full amount to which the plaintiff was entitled, inadvertently couching their verdict in terms not accurately expressing their conclusion. The evidence justifies this view, because it preponderates in favor

of the defendant upon the issue as to what
the understanding of the parties really was,
and therefore upon the issue as to who vio-
lated the contract. The trial judge should
have ordered the jury to reform the verdict
so that there would be no doubt left as to
their meaning. That he did not do so is no
reason why he should not have construed
it in the light of the record to ascertain the
intention of the jury and render judgment
accordingly.

The judgment and order are affirmed.
Affirmed.

and honestly believes his vendor has a right to sell, and has no notice to the contrary. Purchaser, Cent. Dig. 88 461-465, 720; Dec. [Ed. Note.-For other cases, see Vendor and Dig. 220.

For other definitions, see Words and Phrases, First and Second Series, Bona Fide Purchaser.ĺ 7. CORPORATIONS 428-NOTICE KNOWLEDGE OF OFFICER.

chinery attached was not part of it is notice to Notice to a purchaser of a mine that mathe corporation organized by him, of which he was chief stockholder and a principal officer, to which he turned over the mine.

[Ed. Note.-For other cases, see Corporations, Cent. Dig. 88 1748-1761; Dec. Dig. 428.]

SANNER and HOLLOWAY, JJ., concur. 8. FIXTURES 7-HOIST IN MINE.

(51 Mont. 266)

MONTANA ELECTRIC CO. v. NORTHERN
VALLEY MINING CO. (No. 3575.)

(Supreme Court of Montana. Oct. 11, 1915.)

1. FIXTURES 1-CODE PROVISION.

The purpose of Rev. Codes, §§ 4424, 4425, 4427, 4428, classifying all property as real or personal, including in real property that which is affixed to land, specifying the manner, in which a thing may be affixed to land, and declaring that certain things are to be deemed affixed to a mine, was not to introduce new rules or definitions into the law, but rather to reduce to concise form the rules of law as then recognized and applied by the court.

1.]

[Ed. Note.-For other cases, see Fixtures, Cent. Dig. §§ 1, 6; Dec. Dig. 2. FIXTURES 4-INTENT.

Whether what would otherwise be personal property has become a fixture by reason of attachment to the soil is primarily a question of the intention of the person attaching it.

[Ed. Note. For other cases, see Fixtures, Cent. Dig. §§ 3, 6; Dec. Dig. 4.] 3. FIXTURES 35-PRESUMPTION.

Attachment of personalty to land in the manner indicated by Rev. Codes, §§ 4425, 4427, 4428, raises a presumption that the one who made the attachment intended the thing attached to become a part of the realty; but this is a disputable presumption.

[Ed. Note.-For other cases, see Fixtures, Cent. Dig. §§ 67-79; Dec. Dig. 35.] 4. FIXTURES 1-ELEMENTS.

As a general rule, the manner of attachment, the adaptability of the thing attached to the use to which the realty is applied, and the intention of the one making the attachment determine whether the thing attached is realty or personalty.

[Ed. Note.-For other cases, see Fixtures, Cent. Dig. §§ 1, 6; Dec. Dig. 1.]

5. VENDOR AND PURCHASER 229 FIDE PURCHASER-NOTICE.

-

BONA

The manner in which a hoist is attached to a mine is immaterial, as regards it being a fixture, it being removable without material injury to the realty, and without injury to it. [Ed. Note.-For other cases, see Fixtures,

Cent. Dig. §§ 7-13; Dec. Dig.

9. FIXTURES 4-INTENT.

7.]

The element of intention to make a hoist in

stalled in a mine a part of it is wanting, A., who installed it, having hired it for temporary use, to be returned to the owner on expiration of the term of hiring.

[Ed. Note. For other cases, see Fixtures, Cent. Dig. §§ 3, 6; Dec. Dig. 4.1 10. RECORDS 6-LEASE OF PERSONALTY. No statute requires one who lets personalty for hire to file or record the contract. [Ed. Note.-For other cases, see Records, Cent. Dig. §7; Dec. Dig. 6.]

Appeal from District Court, Jefferson County; J. B. Poindexter, Judge.

Action by the Montana Electric Company, a corporation, against the Northern Valley Mining Company, a corporation. From an adverse judgment and order, defendant appeals. Affirmed.

James A. Walsh, of Helena, for appellant. Maury, Templeman & Davies, of Butte, for respondent.

HOLLOWAY, J. In November, 1909, the Amazon-Montana Development Company held the Silver Star quartz lode mining claim. an option to purchase from Samuel Myhre It hired an electric hoist from the Montana Electric Company at a rental of $50 per month, and agreed to return it to the owner in Butte at the expiration of the term of hiring. The hoist was shipped to Amazon, placed upon a substantial foundation on the Silver Star claim, an engine house or shed was placed over it, and it was thereafter used in the prospecting operations carried on. The Amazon Company failed to make the payments as prescribed in the option contract, and some time in 1911 ceased its activities. In October, 1911, Myhre sold the Silver Star claim to Mallette for the use and benefit of the Northern Valley Mining Company which was organized about the same time. Early in 1912, when the Montana Electric Company undertook to regain possession of A "bona fide purchaser" is one who at the the hoist, it was made aware of the mining time of purchase advances a new consideration, company's claim of ownership, and this ac

Relative to a purchaser of a mine being a bona fide purchaser, entitled to claim, as part of the realty, machinery, then attached thereto, hired by A. from M., statement to him at the time by the vendor that A., while operating under an option, had installed the machinery, and that he was merely holding it as security for a debt of A., put him on inquiry, and so was notice.

[Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 477-494; Dec. Dig. 229.]

6. VENDOR AND PURCHASER

FIDE PURCHASER."

220-"BONA

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

tion followed. The trial of the cause resulted in favor of plaintiff, and the defendant has appealed from the judgment and from an order denying its motion for a new trial.

[1-4] The question before us is: Did the hoist become a fixture and pass by deed from Myhre to Mallette, and from Mallette to the mining company? Section 4424, Revised Codes, classifies all property as real or personal. Section 4425 defines "real property" as consisting of land, that which is affixed to land, that which is incidental or appurtenant to land, and that which is immovable by law. Section 4427 specifies the manner in which a thing may be affixed to land, within the meaning of section 4425; and section 4428

pears to be recognized generally (19 Cyc. 1033; 13 Am. & Eng. Ency. Law [2d_Ed.] 594).

That the mere attachment in the manner indicated by the statute will not always determine the character of the thing attached is apparent. A. cannot, by wrongfully attaching B.'s personal property to his (A.'s) realty, thereby acquire B.'s property, if it can be removed without destroying it. senhauer v. Quinn, 36 Mont. 368, 93 Pac. 38, 14 L. R. A. (N. S.) 435, 122 Am. St. Rep. 370 In that case we said:

Ei

"The question, When does a chattel become a part of realty so that it passes as a part of such realty? is one most difficult of solution. It depends upon such a variety of considerations that every case must necessarily depend upon its own state of facts."

In Mattison v. Connerly, 46 Mont. 103, 126 Pac. 851, we gave recognition to the element of intention in the following language: "The intention with which the fixture is attached or affixed to realty is always a pertinent inquiry in determining the status of what seems to be realty or personalty, as the case may be."

Be

[5-7] The relation of the parties to the property may affect the application of the rule stated above. The innocent purchaser or mortgagee who acquires an interest in the realty after the thing has been attached may be entitled to consideration not accorded to others. In the present instance, however, we are relieved of any difficulty which such a condition might present. Upon the evidence before it, the court was warranted in finding that Myhre, the owner of the Silver Star, did not assume to own the hoist. fore he disposed of the claim he explained to Mallette fully the conditions under which the Amazon Company had been operating at the Silver Star claim, that the Amazon Company had installed the machinery, and that he (Myhre) was merely holding the hoist as security for money which he deemed to be owing to him from the Amazon Company. These findings are sufficient to strip the mining company of the claim that it was an innocent purchaser without notice. A bona fide purchaser is defined to be:

These provisions are identical with like provisions found in the Civil Code of California since 1872, and, with the exception of section 4428, were copied from the proposed draft of a Civil Code prepared for the state of New York by David Dudley Field and his collaborators. The purpose of the Code was not to introduce new rules or definitions into the law, but rather to reduce to concise form the rules of law as they were then rec ognized and applied by the courts. Reference to New York and California decisions aids in determining the scope which the provisions of our Code above, were intended to have, and from those decisions we deduce the following: (1) Whether what would otherwise be personal property has become a fixture by reason of its attachment to the soil is primarily a question of intention on the part of the person attaching it; (2) the attachment in the manner indicated in our Code sections above raises a presumption that the one who made the attachment intended the thing affixed to become a part of the realty; this presumption, however, is a disputable one; (3) as a general rule, the manner in which the attachment is made, the adaptability of the thing attached to the use to which the realty is applied, and the intention of the one making the attachment determine whether the thing attached is realty or personalty. Ford v. Cobb, 20 N. Y. 344; Voorhees v. MacGinnis, 48 N. Y. 278; Tifft v. Horton, 53 N. Y. 377, 13 Am. Rep. 537. The California courts have quite uniformly followed the New York decisions. Hendy v. Dinkerhoff, 57 Cal. 3, 40 Am. Rep. 107; Lavenson v. Standard Soap Co., 80 Cal. 245, 22 Pac. 184, 13 Am. St. Rep. 147; Miller v. Waddingham, 91 Cal. 377, 27 Pac. 750, 13 L. R. A. 680; Jordan v. Myres, 126 Cal. 565, The facts disclosed by Myhre were suffi58 Pac. 1061. The same test has also been cient to put Mallette on inquiry, and the applied in Oregon (Alberson v. Elk Creek knowledge which Mallette possessed will be G. M. Co., 39 Or. 552, 65 Pac. 978), and in imputed to the Northern Valley Mining ComWashington (Gasaway v. Thomas, 56 Wash. pany, which was organized by him who own77, 105 Pac. 168, 20 Ann. Cas. 1337), and ap-ed the entire capital stock until a portion

"One who at the time of his purchase advances a new consideration, surrenders some security, or does some other act which leaves him in a worse position if his purchase should be set aside, and purchases in the honest belief that his vendor had a right to sell, without notice, actual or constructive, of any adverse rights, claims, interest, or equities of others in and to the property sold." Foster v. Winstanley, 39 Mont. 314, 102 Pac. 574.

"It is a general rule that whatever puts a party on inquiry amounts in judgment of law and would lead to a knowledge of the facts by to notice, provided the inquiry becomes a duty, the exercise of ordinary intelligence and understanding." 29 Cyc. 1114.

was transferred to Myhre in part payment of the property purchased by Mallette to be turned over to the mining company. Mallette was one of the principal officers of the newly formed company, and his knowledge, under the circumstances, was the knowledge of the company. State Bank v. Forsyth, 41 Mont. 249, 108 Pac. 914, 28 L. R. A. (N. S.) 501; 10 Cyc. 1059; Hoffman Steam C. Co. v. Cumberland C. & I. Co., 16 Md. 456, 77 Am. Dec. 311. As between the original owner of the hoist and a subsequent purchaser with notice, the former was rightfully awarded the property.

Proceeding by the State, on the relation of W. D. Smotherman, against the District Court of the Twelfth Judicial District of the County of Blaine, and John W. Tattan, Judge thereof, to annul an order granting a motion to set aside a default judgment. Order annulled.

See, also, 50 Mont. 119, 145 Pac. 724.
W. B. Sands, of Chinook, for appellant.

HOLLOWAY, J. On February 3, 1915, Charles Christiansen moved the district court in and for Blaine county to set aside his default which had been entered on March 27, 1914, in an action pending in that court, wherein W. D. Smotherman was plaintiff, and Charles Christiansen, defendant. Relief

resulted from inadvertence and excusable neglect. The motion was granted on April 13th, and this proceeding was instituted to have the order annulled.

[8, 9] The manner in which the hoist was attached to the mining claim is not of consequence. Section 4428, above. It could be removed without material injury to the real-was sought upon the ground that the default ty and without injury to the hoist itself. Applying to our Code sections above the rule of construction adopted in New York and California, the correctness of the court's conclusion cannot be questioned. The element of intention to cause the hoist to become a part of the mining claim is altogether want-* ing. The agreement between the electric company and the Amazon Company is susceptible of but one construction-that it was not the intention of either that the hoist should become a part of the mining claim. It belonged to the electric company, which was not interested in the mining claim. It was hired by the Amazon Company for temporary use, to be returned to the owner upon the expiration of the term of hiring.

[10] Some contention is made by appellant that the electric company is estopped to assert a claim of ownership. The finding that the defendant knew, or was chargeable with knowledge of, plaintiff's outstanding claim of ownership disposes of this contention. We do not know of any statute which requires one who lets personal property for hire to file or record the instrument which evidences the contract of hiring.

The judgment and order are affirmed.

Section 6589, Revised Codes, provides: "The court may, in furtherance of justice * upon such terms as may be just, relieve a party or his legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect; provided, that application therefor be made within reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken."

This statute has received consideration

from this court in many cases, but in no other instance has there been a more succinct exposition of its meaning than in State ex rel. Happel v.. District Court, 38 Mont. 166, 99 Pac. 291, 35 L. R. A. (N. S.) 1098, 129 Am. St. Rep. 636, where it is said:

"Under the statute (Revised Codes, § 6589), the motion in such cases must be made within a reasonable time after the date of the entry of judgment, but in no case exceeding six months, and the statute is the limit of the court's power limit fixed therein, the power of the court over in such cases. After the expiration of the time the judgment absolutely ceases, and it is without jurisdiction to vacate or modify it."

Because the motion to set aside the default was not made until more than 10

BRANTLY, C. J., and SANNER, J., con- months after the default was entered, the

(51 Mont. 487) MELZNER v. CHICAGO, M. & ST. P. RY. CO. et al. (No. 3580.) Dec. 22, 1915.) (Supreme Court of Montana.

Under Rev. Codes, § 6589, providing that in furtherance of justice the court may relieve a party from a default judgment on application made within reasonable time, in no case exceed- 1. TRIAL 419-CURING ERKOR- DENYING ing six months after such judgment was taken, NONSUIT. the district court of a county was without power to set aside a default judgment against defendant on his motion made more than ten months after the default was entered.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 668-671; Dec. Dig. 342.]

Error in denying motion for nonsuit at close of plaintiff's case in chief was cured by defendant then eliciting testimony supplying the deficiencies in a prima facie case for plaintiff. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 982; Dec. Dig. 419.]

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

INAPPLICABILITY.

The inapplicable instruction announcing the rule of the master's duty to furnish a safe place to work, in an action for a servant's death while running in front of a train far from his working place, is confusing, if not misleading. [Ed. Note.-For other cases, see Trial, Cent. Dig. 8 505, 596-612; Dec. Dig. 252.] 5. NEGLIGENCE 138-CONTRIBUTORY NEG

LIGENCE-PLEADING. The allegation of the answer that deceased came to his death through his own carelessness and negligence is not a plea of contributory negligence, and so does not authorize instructions thereon.

[Ed. Note. For other cases, see Negligence, Cent. Dig. 88 354-370; Dec. Dig. 138.]

6. TRIAL 255-INSTRUCTIONS - NECESSITY OF REQUESTS.

That the court's outline of the case may be complained of, it was necessary to submit and request an instruction succinctly stating the is

sues.

[Ed. Note. For other cases, see Trial, Cent. Dig. 88 627-641; Dec. Dig. 255.]

SISTENT STATEMENTS-ABSENT DEPOSITION.

and maintenance, and that for a time before he entered defendant's employ he was unemployed. [Ed. Note. For other cases, see Death, Cent. Dig. § 96; Dec. Dig. 77.]

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

Action by A. B. Melzner, administrator of Albert Page, deceased, against the Chicago, Milwaukee & St. Paul Railway Company and another. From an adverse judgment and order, defendants appeal. Reversed and remanded for new trial.

Shelton & Furman and A. J. Verheyen, all of Butte, for appellants. Mackel & Tyvand, of Butte, for respondent.

HOLLOWAY, J. In November, 1912, Albert Page was employed by the Chicago, Milwaukee & St. Paul Railway Company as a car repairer in the shops of Harlowtown. He was killed by an incoming east-bound freight train, and this action by the administrator of his estate was brought to recover damages. The railway company, Homer Ganon, the engineer in charge of the locomotive at the time of the accident, and Hugh Spencer, superintendent, were joined as defendants. Spencer was dismissed on motion for nonsuit, and the trial proceeded upon the issues made by the complaint, the answer of the other defendants, and the reply thereto. A verdict was returned in favor of the plaintiff for $20,000 and from the judgment entered thereon and from an order denying a new trial, these appeals are prosecuted.

The main line of the railway extends substantially east and west, south of the town of Harlowtown and immediately south of the passenger depot. South of the main line 7. WITNESSES 388-IMPEACHMENT-INCON- are six side tracks, and south of these tracks Rev. Codes, § 8025, authorizing impeach- and southeast of the depot, 600 or 700 feet ment of witness by evidence of prior statements distant, are the roundhouse and shops. Cominconsistent with his testimony, but providing pany employés who live in the town reach that before this can be done the statements must be related to him, and if in writing must their places of employment at the shops by be shown to him, is violated by allowing cross-crossing the tracks from or near the depot. examination of witness as to substance of his Page was killed early in the morning of Nodeposition, which was not present, and the ab-vember 15, 1912, while he was attempting to sence of which was not accounted for.

9. DEATH 77-DAMAGES AMOUNT - Loss TO BENEFICIARIES-EVIDENCE.

cross the tracks from a point west of the depot to his place of work.

[1] At the conclusion of plaintiff's case in chief, the defendants moved for a nonsuit, which was denied as to the railway company In this ruling the trial court and Ganon. erred. The plaintiff had failed altogether to make out a prima facie case of actionable negligence. About all that can be said is that he established that Page was run over and killed in a race with the train for the crossing. But when the defendants elected to proceed with their evidence they assumed the burden of supplying the deficiencies in the plaintiff's case, by testimony elicited from their own witnesses, and to whatever extent this was done, the error in the ruling was Cain v. Gold Mt. Min. Co., 27 Mont.

A verdict of $20,000 for death, under instruction authorizing allowance only for the pecuniary benefits which the wife and children would probably have received during the expectancy of his life, is not sustained, the only evidence being that during two years prior to cured. his death he contributed $50 to their support 529, 71 Pac. 1004; Yergy v. Helena L. & Ry.