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(193 P.)

the sole option and right to purchase"? Such an agreement is not within the rule forbidding a broker buying from or selling to an employer because defendants, with full knowledge of all the facts, signed the agreement and must have known that the contract provided for purchase by the plaintiff himself and selling by him to purchasers.

In Burt v. Stringfellow, 45 Utah, 207, 143 Pac. 234, Mr. Justice Frick said:

"It is also a well-established doctrine that one and the same person may enjoy the privilege of purchasing, and at the same time have the right of selling on commission either personal or real property. See cases referred to in the case of Neighbor v. Realty Ass'n, 40 Utah, 619, 124 Pac. 523."

[5] The remaining question is whether plaintiff was entitled to a commission when he himself became the purchaser. If he had procured a customer who had purchased, plaintiff would have been entitled to a commission, and defendants would have received the $3,000, less the commission. They are in exactly the position financially that they would have occupied in case of any other sale made for them by plaintiff, and that thought may explain why the agreement provided for a commission in the event of either purchase or sale. What was said on this subject in Burt v. Stringfellow, supra, is applicable here;

"It seems to us that it was the intention of all the parties to the contract in question to grant the appellant a fixed time within which he had the exclusive right either to purchase or sell the property at the price stipulated in the contract, and if he did either he was to receive 5 per cent. of the selling price as a commis

sion."

(57 Utah, 243)

BOZO v. CENTRAL COAL & COKE CO. (No. 3509.)

(Supreme Court of Utah. Dec. 2, 1920.) Courts 95 (2)-Supreme Court will not hold law of other state unconstitutional, where it has been upheld by Supreme Court of such state.

In view of the holding of the Supreme Court of the state of Wyoming upholding constitutionality of the Wyoming Workmen's Compensation Act, claimed to violate the federal Constitution, and in view of the right to test such holding by an appeal to the Supreme Court of the United States, the Supreme Court of Utah will not hold such law to be unconstitutional.

Appeal from District Court, Weber County; A. W. Agee, Judge.

Action by Dan B. Bozo against the Central Coal & Coke Company. Judgment for defendant, and plaintiff appeals. Affirmed.

C. R. Hollingsworth and Joseph E. Evans, both of Ogden, for appellant.

M. E. Wilson, of Salt Lake City, and T. S. Taliaferro, Jr., of Rock Springs, Wyo., for respondent.

FRICK, J. This is the second appeal in this case. The first appeal was from a judgment in favor of the plaintiff. Bozo v. Central Coal & Coke Co., 180 Pac. 432. The former judgment was reversed by this court upon the ground that the district court had erred in holding that the Wyoming Workmen's Compensation Act (Laws Wyo. 1915, c. 124) was unconstitutional and void, and for that reason sustained the demurrer to defendant's answer, in which said chapter 124 was pleaded as a defense in bar to the action. Chapter 124 aforesaid was adopted pursuant to an amendment of the Constitution by the people of Wyoming in November, 1914. In said chapter it is provided that the relief, if any is sought, for personal injuries in the cases covered by said chapter, must be obtained under the provisions of said chapter, and cannot be obtained in a common-law action like the one commenced by the plaintiff. The district court, on the first hearing, however, held chapter 124 unconstitutional, and ruled that the answer in which it was pleaded as a defense in bar was of no avail, and hence that the answer set up no defense to the action. The defendant appealed from that ruling (Bozo v. Central Coal & Coke Co., supra), and this court reversed the judgment and remanded the cause to the district court, with directions to overrule the demurrer, for the reason that said chapter 124 was constitutional. See Zancanelli v. Central CORFMAN, C. J., and FRICK, GIDEON, Coal & Coke Co., 25 Wyo. 511, 173 Pac. 981, and THURMAN, JJ., concur. where the Supreme Court of Wyoming held

[6] It will be observed that plaintiff deducts all of his commission from the purchase price. It seems that the fair thing to do would be to deduct the commission as payments were made, but in the complaint it is alleged that the total amount to be paid defendants is $2,790, being equivalent to an allegation that the commission was first to be deducted from the purchase price. For the purpose of disposing of the demurrer, the allegations of the complaint must be accepted as true, and the complaint is therefore not vulnerable to the objection last mentioned.

Our conclusion is that the complaint states a cause of action, and that the district court erred in sustaining the demurrer. The judgment is therefore reversed, with costs, and the cause is remanded to the trial court for further proceedings.

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

The apparent authority of an agent to act as a representative of his principal is to be gathered from all the facts and circumstances tion of fact for the determination of the court, in the evidence, and ordinarily that is a quesor the jury, as the case may be.

said chapter to be constitutional. The cause | 2. Principal and agent 99-Apparent auwas accordingly remanded to the district thority deduced from facts and circumcourt, and that court, in accordance with the stances. order of this court, overruled the demurrer to the answer, held that chapter 124 aforesaid was a complete bar to the action, and entered judgment in favor of the defendant, from which ruling the plaintiff now appeals. The assignments of error all relate to the court's ruling on the demurrer to the answer as aforesaid. The position of plaintiff's counsel is perhaps best stated in their own language, as it is found in their brief in the following words:

"The appellant says that the Compensation Law of Wyoming is violative of the federal Constitution, because it does not furnish the equal protection of the laws, as required by the Fourteenth Amendment, and our point is this: That the compensation allowed under the law is so extremely low and palpably unfair that it places those employés coming under the provisions of the statute in a far worse position than those who are not included therein. And this is so apparent that the court can say it is true as a matter of law; that the court can say that the Legislature, in the exercise of police power, has passed a statute which is unreasonable and in effect confiscatory."

In view of the decision of the Supreme Court of Wyoming holding said chapter 124 constitutional, and further holding that it affords plaintiff the only remedy to which he is entitled, we shall not attempt to enlarge upon the reasons why we follow that decision. Moreover, we are constrained to so hold for the further reason that the plaintiff, if he so desires, may test the question raised by him by appeal to the Supreme Court of the United States. The question raised by him necessarily involves a federal question, and hence we refrain from pursuing the subject

further.

In view of what has been said, it follows that the judgment of the district court of Weber county should be, and it accordingly is, affirmed, with costs to plaintiff.

(58 Mont. 520)

3. Corporations 406 (1)-Local agent has authority to enter into contracts necessary to business.

ment of its local affairs may bind the company
An agent to whom is intrusted 'the manage-
by a contract necessary and proper to be
made in the prosecution of its business.
Brantly, C. J., dissenting.

Clark County; J. M. Clements, Judge.
Appeal from District Court, Lewis and

Action by P. H. Campbell against the Oriental Trading Company. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Affirmed.

Wm. Wallace, Jr., John G. Brown, and
T. B. Weir, all of Helena, for appellant.
H. Sol. Hepner, of Helena, for respondent.

COOPER, J. This is an action to recover and delivered to the defendant. for merchandise alleged to have been sold

The plaintiff testified that on the morning of December 6, 1917, H. Tarada, accompanied by one N. Goto, came to his place of business in the city of Helena, presented a card upon which was printed his name and the words the “Oriental Trading Company," introduced himself, represented himself to be the agent of the defendant, and stated that a gang of Japanese laborers employed by defendant were working in and about the tracks, yards, and roundhouses of the Northern Pacific Railway in the city of Helena, and that groceries and other supplies would be needed for their subsistence. Addressing the plaintiff, he said:

"You let this man Goto, who is foreman of the gang, have goods and charge to him, Goto, extra gang No. 6, and send the bill to us not later than the 25th of the month, and we will pay for the goods."

The plaintiff, relying upon the statement of CAMPBELL v. ORIENTAL TRADING CO. Tarada, delivered to Goto goods of the value

(No. 3861.)

for which this suit is brought. On December 25, obeying the directions of Tarada, plaintiff (Supreme Court of Montana. Nov. 19, 1920.) mailed to defendant at Livingston, “in care of H. Tarada, account Oriental Trading Co.," 1. Principal and agent 123 (7) Evidence sufficient to sustain finding that purchaser a bill therefor. A period of several weeks was defendant's agent.

In an action to recover the purchase price of merchandise sold to a crew of workmen, evidence held to sustain a finding that the person ordering such goods in the name of the defendant had authority as agent to do so.

having elapsed and no reply thereto having been received, the plaintiff, through a Helena bank, drew a draft directed to "H. Tarada, account Oriental Trading Co., Livingston, Montana," for the amount of the bill, which draft was later returned to the bank unpaid.

(193 P.)

From a careful review of all the evidence, we are convinced that the trial court correctly estimated the credibility of the witnesses, the weight to be given to their testimony, and the authority actually delegated to Tarada. We have carefully considered all the other questions of law urged in the brief of counsel, and find no merit in any of them.

[1] The authority of Tarada to speak | wise, agency would be impossible of proof for the defendant, and to fix liability upon it by anything less than a direct admission of for the goods sold and delivered to Goto, is the fact-something the adverse party may be the vital question upon which this appeal very reluctant to make. The case falls withmust be determined. There is no dispute con- in the well-settled principle that an agent cerning the sale and delivery of the goods. to whom is intrusted the management of its The president of the defendant company was local affairs may bind the company by a sworn as a witness on the plaintiff's case, contract necessary and proper to be made in and testified that he knew Tarada; that Ta- the prosecution of its business. Trent v. rada stayed at Livingston, and at times in- Sherlock, 24 Mont. 255, 61 Pac. 650; Spelman terpreted between the foreman of the gangs v. Gold Coin M. & M. Co., 26 Mont. 76, 66 and the men; that at the time in question de Pac. 597, 55 L. R. A. 640, 91 Am. St. Rep. fendant maintained a branch office in the 402; General Hospital Society v. New Haven, city of Livingston, in this state, but that the etc., Co., 79 Conn. 581, 65 Atl. 1065, 118 Am. main office of the company was at Seattle, St. Rep. 173, 9 Ann. Cas. 168. in the state of Washington; that defendant was under contract with the Northern Pacific Railway Company to furnish to it gangs of Japanese laborers to work upon its tracks and elsewhere, for which the railway company paid it in one check; and that for supplies purchased upon the credit of his company for the use of the gangs, deductions were made and the balance paid to each of the Japanese laborers upon signing the pay roll. This, coupled with the other testimony in the record, justified the district court in assuming that the success of the enterprise in which the defendant was engaged depended upon its ability to keep its gangs of workmen up to a given standard in numbers and efficiency by insuring them an adequate sup- | JJ., concur. ply of food and clothing; and that the authority exercised by Tarada in pledging the credit of the defendant to that end was essential and indispensable to the carrying out of its contract with the railway company. 21 Ruling Case Law, par. 33, p. 854. True, the witness did not specifically admit that Tarada was clothed with authority to answer for the defendant; but in reaching its ultimate conclusion that Tarada actually had

authority to bind the defendant to pay for the goods delivered to Goto, the trial court had the right to assume that the statements of the witness that it was Tarada's duty "to arrange for the needs of the gangs," and "to get things in shape so that the men will be taken care of and the Oriental Trading Company protected," taken with all the other evidence before it, fairly implied that fact.

[2, 3] In view of all the evidence in the record, and the inferences properly to be drawn from it, including the failure of the defendant to disclaim the authority exercised by Tarada, the court had a right to determine that the defendant had authorized Tarada to make his assurance its own. The apparent authority of an agent to act as the representative of his principal is to be gathered from all the facts and circumstances in evidence, and, ordinarily, that is a question of fact for the determination of the court, or the jury, as the case may be. 21 Ruling Case Law, par. 34, pp. 856, 857.

Our conclusion is that the substantive evidence in the record is amply sufficient to uphold the judgment and the order denying defendant a new trial. They are therefore affirmed.

HOLLOWAY, HURLY, and MATTHEWS,

BRANTLY, C. J. I dissent for the reason that I do not think there is sufficient proof of agency.

(58 Mont. 524)

MONTANA MEAT CO. v. ORIENTAL TRAD.
ING CO. (No. 3862.)

(Supreme Court of Montana. Nov. 19, 1920.)
Principal and agent 123 (7)-Purchaser held
sufficiently shown to be agent for defendant.

In an action to recover for meat sold to a gang of workmen employed by defendant, evidence held to sustain a finding that the person ordering the goods had authority to do so from the defendant.

Brantly, C. J., dissenting.

Appeal from District Court, Lewis and Clark County; J. M. Clements, Judge.

Action by the Montana Meat Company against the Oriental Trading Company. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Af

firmed.

Wm. Wallace, Jr., John G. Brown, and T. B. Weir, all of Helena, for appellant.

H. Sol. Hepner, of Helena, for respondent. COOPER, J. By stipulation of the parties Were the rule other- it was agreed that all the evidence presented For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

in case No. 3861, Campbell v. Oriental Trad-order from which an appeal may be taken, and, ing Co., 193 Pac. 1112, should be admitted and if justice court is without jurisdiction, none is considered by the court in the present case, acquired by the appellate court on an attemptand, subject to the objections there made, ed appeal. the issues of both law and fact should be determined thereon.

3. Justices of the peace ~54 (4)—Jurisdiction held lost by failure to comply with statute as to time of trial and postponements.

Where issue was joined in civil action in justice court in March, 1918, and on April 1, 1919, and the justice set the cause for April 5, but on that day made an entry continuing fixed as the day of trial, on which day the justhe case "for the present," June 2 being later tice was absent from the city and the cause was then set for trial on June 16, when default judgment was entered for plaintiff, the justice lost jurisdiction by failing to comply with Rev. Code, §§ 7033-7037, relating to time of trial and postponements in justices' courts.

Appeal from District Court, Custer County; Daniel L. O'Hern, Judge.

It appears in the testimony that Tarada, the reputed agent of the defendant, accompanied by N. Goto, foreman of extra gang No. 6, went into the place of business of the plaintiff and made representations similar to those made to P. H. Campbell, the plaintiff in the preceding case, viz. that he was the agent of the Oriental Trading Company, and that he desired plaintiff to sell and deliver to Goto supplies for the gang under his charge, to charge them to him (Goto), and send the bill to "us" not later than the 25th of the month, and "we" would pay the bill; that after some discussion, plaintiff delivered the goods required to Goto, and, apprehending that difficulty might arise if the account were not presented before December 25, pay day, on December 15 plaintiff forwarded that account, addressed to "H. Tarada, agent of the Oriental Trading Company, at Livingston, Mont." In addition to the evidence considered in the preceding case, it appeared that after some conversation over long distance telephone with some person in the office of the defendant at Livingston a check was forwarded from that place in payment for the goods sold to Goto. The account here involv-justice court at Miles City; nothing further ed covers merchandise sold and delivered by plaintiff to defendant between December 15, 1914, to February 3, 1915. For these reasons and those given in the opinion in case No. 3861, Campbell v. Oriental Trading Co., 193 Pac. 1112, the judgment and order denying a new trial are affirmed. Affirmed.

Certiorari by the State, on relation of the Chicago, Milwaukee & St. Paul Railway Company, against John Gibb, Justice of the Peace in and for Miles City Township, Custer County. From a judgment setting aside a judgment of the justice court, defendant appeals. Affirmed.

P. F. Leonard, of Miles City, for appellant.

MATTHEWS, J. Certiorari. In March, 1918, issue was joined in a civil action in the

was done in the case until April 1, 1919, when the justice of the peace set the cause for April 5, but on that date made an entry continuing the case "for the present." Later June 2, 1919, was fixed as the day of trial, but on that day the justice of the peace was absent from the city. The cause was then set for trial on June 16, 1919, and counsel given

HOLLOWAY, HURLY, and MATTHEWS, written notice thereof. JJ., concur.

BRANTLY, C. J. I dissent for the reason that I do not think there is sufficient proof of agency.

(58 Mont. 518)

STATE ex rel. CHICAGO, M. & ST. P. RY.
CO. v. GIBB, Justice of the Peace.
(No. 4468.)

(Supreme Court of Montana. Nov. 19, 1920.)
1. Justices of the peace194 (1)—Certiorari
does not lie if appeal lies, though inadequate.
If an appeal lies from a justice of the
peace, certiorari does not lie, and it is imma-
terial under the statute whether appeal af-
fords an adequate remedy or not.

On June 16, the defendant not appearing within one hour, judgment was entered for the plaintiff. Thereupon a writ of certiorari was issued out of the district court of Custer county, return thereto made, and a hearing had, resulting in a judgment vacating and setting aside the judgment of the justice court. This appeal is from the judgment.

[1, 2] 1. Appellant contends that—

"The court erred in assuming jurisdiction of this cause by certiorari proceedings, as the relator had adequate remedy by appeal."

If an appeal lies, certiorari does not lie, and it is immaterial, under our statute, whether appeal affords an "adequate remedy" or not. State ex rel. King v. District Court, 24 Mont. 494, 62 Pac. 820, overruling former decisions to the contrary. However, the right of ap2. Justices of the peace 141 (2)-Appellate peal presupposes jurisdiction in the lower court cannot acquire jurisdiction if lower court to enter a judgment or order from court did not have it. which an appeal may be taken. If the lower The right of appeal presupposes jurisdic- court is without jurisdiction, none is acquired tlon in the lower court to enter a judgment or by the appellate court on an attempted ap

(193 P.)

bate courts of limited jurisdiction cannot attack decree of distribution made in foreign state.

peal. Chadwick v. Chadwick, 6 Mont. 566, 6. Executors and administrators 523-Pro13 Pac. 385; In re Searles, 46 Mont. 322, 127 Pac. 902. All appeals from a justice court to the district court are tried anew (Rev. Codes, 7122); the district court then "sits as a justice of the peace in that case, and with no greater jurisdiction" (State ex rel. Grissom v. Justice Court, 31 Mont. 258, 78 Pac. 498).

Where a decree of distribution was made in a foreign state under a foreign statute, it cannot be attacked in the probate courts of Montana; they being courts of limited jurisdiction. 7. Judgment 818(4)-California decree conclusive in that state also conclusive as to same matters in Montana.

It will be assumed that a court in Cali

[3] 2. The remaining assignments challenge the correctness of the judgment. The district court found that the justice court lost jurisdiction by failing to comply with the provi-fornia acted within its jurisdiction, and that its sions of chapter 6, tit. 11, pt. 2, of the Revised Code, and in this was clearly correct. This question was settled in State ex rel. Akin v. Williams, 50 Mont. 584, 148 Pac. 333, and requires no further discussion.

The judgment is affirmed.
Affirmed.

BRANTLY, C. J., and HOLLOWAY, HURLY, and COOPER, JJ., concur.

(58 Mont. 526)

In re BRUHNS' ESTATE. BRUHNS v. BRUHNS et al. (No. 4231.)

Dec. 6, 1920.)

(Supreme Court of Montana.
1. Courts 18-Jurisdiction of probate courts
confined solely to property within state.

Jurisdiction of the courts in Montana in probate matters pertaining to real estate is confined solely to property situated in that state, and any order or decree affecting realty in another state is a nullity.

2. Courts 18-California probate courts can make no binding order as to real estate in Montana.

The California probate courts may make no binding orders pertaining to real property in Montana, in view of Rev. Codes, § 7919. 3. Courts 18- Probate courts of state where decedent was resident authorized to make orders as to property there situated. Where decedent was resident of California at time of his death, the probate courts of that state had authority to make orders within their jurisdictional powers relating to property there. 4. Evidence 43 (4)-Courts will not judicially notice that foreign decree was made under certain foreign statute.

The courts of Montana cannot take judicial notice that a decree of a probate court in California was made under Code Civ. Proc. Cal. 1469.

5. Statutes 281-Foreign statutes must be sufficiently pleaded and proved to sustain rights based thereon.

Where rights are based upon the statutes of a sister state, there must be a sufficient pleading and proof thereof.

decree was in accordance with the law of that state, so that such decree is conclusive in Montana in every matter in which it is conclusive in California, in view of the full faith and credit clause of the federal Constitution. 8. Executors and administrators 523-Decree of distribution disregarding foreign decree held not erroneous.

Where one died in California leaving property in such state and also in Montana, and the probate court of California distributed all of the property there situated to the widow, a decree in Montana distributing the property in accordance, with statutes of Montana, disregarding the distribution of the California property as conclusive on all the heirs, and giving the widow one-third of the property in Montana and two-thirds to the children, held not

erroneous.

Appeal from District Court, Custer County; C. C. Hurley, Judge.

Proceedings to administer the estate of Henry Bruhns, deceased, wherein Aline Bruhns filed objections to the administrator's report and from an order of distribution, Paul E. Bruhns and others appeal. Modi

fied and affirmed.

Nichols & Wilson, of Billings, for appellants.

George W. Farr, of Miles City, for respondent.

HURLY, J. Henry Bruhns, a resident of California, died in that state intestate in the year 1914, leaving surviving a widow, this respondent, a daughter, and four sons, appellants herein. At the time of his death he owned property in California, probated in that state and of the net value for distribution, in the sum of $1,280.82, which, by the probate court of the county of his residence, was awarded to the widow. He also owned real property in this state, which was sold in the course of probate proceedings in Custer county, the net value of which is $1,929.84. The administrator appointed in Montana, in making his final report and petition for distribution, alleged that under the laws of California and of the state of Montana one-third of all the property of the deceased, after the payment of the indebtedness of the deceased and the expenses of

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