#### YANK, Respondent, *v.*BORDEAUX, Appellant.

(No. 1,668.)

(Submitted October 12, 1903.

Decided November 4, 1903.)

*Constables*— *Levies*— *Bala of Property*— *Proceeds*— Actions *—Pleadings—Denials*■— *Evidence*— Introduction—Estoppel *to Object.*

1. Where, in an action to recover money from a constable, tlie complaint alleged that defendant refused to pay plaintiff the money, and wrongfully retains and still holds the possession thereof, and the answer merely contained a denial “that defendant wrongfully retains or holds possession” of the sum, or any part thereof, such denial operated to deny the “wrongful” possession, only, and constituted an admission of possession.

2. Where, in an action against a constable to recover money received as the proceeds of the sale of property levied on, alleged to belong to plaintiff, defendant, in his answer, admitted possession of the money when the demand was made, evidence that at the time of such demand defendant had, paid over the money on the executions was properly refused.

3. Language used by the supreme court in its opinion on a former appeal which was not necessary to the decision, and was mere dictum, is not the law of the case.

4. Where plaintiff claimed title to one-half of the proceeds of all the ore in certain bins, under a bill of sale purporting to convey one-half of the ore in the bins at the time the bill was executed, evidence that, after such execution, additional ore was placed in the bins, was admissible to defeat plaintiff’s claim to one-half of the proceeds of all the ore in the bins.

5. Where plaintiff introduced evidence on a particular issue without objection, he should not.be allowed thereafter to object to the introduction of evidence by the defendant on the same issue.

*Appeal from District Court, Silver Bow Countyj John Lindsay, Judge.*

AotioN by John Yank against Thomas Bordeaux, constable. From a judgment in favor of plaintiff, and from an order overruling’ a motion for a new trial, defendant appeals.

Reversed.

*Messrs. McIIation & Cotter,*for Appellants.

*Mr. E. B. Howell,*for Respondent.

MR. COMMISSIONER OLAYBERG

prepared the opinion for the court.

*75There bare been two trials of tliis case in the1 court below. The first- resulted in a judgment and verdict for defendant, which was reversed by this court, and a new trial ordered. *(Yank*v. *Bordeaux,*23 Mont. 207, 58 Pac. 42, 75 Am. St. Rep. 522.) The second trial resulted in a judgment- and verdict for plaintiff, from which, and from an order overruling' a motion for a new trial, this appeal is prosecuted.

The facts upon which this action is based are about as follows, viz.: Some ten men entered into a written contract under date of March 11, 1896, to. work the West Elba mine under lease. Seven of the men were parties of the first part under this contract, and agreed to perform, all labor necessarily required in the working- of the mine. The other three, Pliondorf, Pearson and Thompson, were parties of the second part under this contract, and agreed to furnish all supplies necessarily required for such working. The net proceeds were to be divided between the parties of the first and second part equally, each to- receive one-half thereof. About the 29th day of April, 1896, the three parties of the second part transferred, by written bill of sale, their undivided one:half interest in and to about twenty tons of ore then in the orehouse and bins at the mine, or the proceeds thereof, if the ore should afterwards be shipped and treated. The ore Avas shipped to the Parrot Smelting Company, and treated by that company. The net proceeds, of the shipment amounted to $868.76, of which plaintiff claimed to. be the owner of one,-half, or $434.38. After the ore had been treated, the defendant, as constable, levied upon that part of the proceeds claimed by the plaintiff, under writs directed against plaintiff’s grantors, collected the money, and had the same in his possession Avlien this suit Avas brought, as admitted in defendant’s answer. The plaintiff then demanded of defendant the release of his portion of the proceeds of the ore from the levy, and the payment- to him of $434.38, AA'hich Avas refused, and .thereupon plaintiff instituted this suit. A complaint Avas filed containing allegations of which the following is' a brief summary, viz.: (1) That defendant was a duly elected and qualified constable *76in Silver Bow county. (2) That plaintiff was owner of one-half of the- net proceeds of a certain shipment of ore “worked” by the Parrot Smelting Company, amounting to the sum of $434.38. (3) That the defendant wrongfully levied upon such proceeds under a certain execution. (4) That plaintiff made the demand upon defendant as above stated!, which was refused by defendant, and that defendant “wrongfully retains and still holds possession of the said sum, to plaintiff’s damage in the sum of $434.38.” Then follows the prayer, in the following language: “Wherefore plaintiff demands judgment against the defendant in the sum of $434.38, and costs of this action.” To this complaint the defendant filed an answer, which is briefly as follows: (1) Admits that he is constable. (2) Denies the allegations of ownership. (3) Denies that he wrongfully levied upon plaintiff’s interest. (4) Admits the demand and refusal alleged. .(5) Denies that he “wrongfully retains or holds possession of said sum, or any part thereof, to plaintiff’s damage.”

No question concerning the sufficiency of these pleadings seems to have been raised by either party upon either trial or appeal, but both parties have always treated them as sufficient to raise all the issues in the case. Some very interesting and troublesome questions suggest themselves to usi, as to the character and sufficiency of the complaint, viz.: (1) What is the character of this action — conversion, trespass, or assumpsit? (2) Are the allegations sufficient to maintain either action ? (3) If in assumpsit, could'a recovery be had in such action under the decision of this court in *Merchants’ & Miners’ Nat’l Bank*v. Barnes, 18 Mont. 335, 45 Pac. 218, 47 L. R. A. 737, 56 Am. St. Rep. 586 ? None of these questions seem ever to have been raised, or even suggested, and wie will therefore not consider or decide any of them; but, inasmuch as'the case must be reversed, we have thought proper to suggest them for the consideration of the respective attorneys. We also suggest the question as to whether the denials in the answer are sufficient to raise any issue save that of plaintiff’s ownership.

We shall only consider two of the numerous errors assigned, *77as all O'tbei* errors argued were, if errors at all, without prejudice to the defendant.

1. Defendant offered testimony for the purpose of showing that, at the time plaintiff made demand on him. for the funds in controversy, he no longer had possession of the same, but had paid the amount upon the execution in his hands, above referred to. This the court refused to allow, and defendant assigns such ruling as error. This ruling is correct. It will be noticed that the allegation of the complaint is that the defendant refused to pay plaintiff the money, “and wrongfully retains and still holds possession of said sum/’ and that the denial in the answer is as follows: “Denies, upon his information and belief, that the defendant wrongfully retains or holds possession of said sum, or any part thereof.” This denial is only as to the wrongful possession, and is no> denial of actual possession. *(McCauley*v. Gilmer, 2 Mont. 202; *Harris*v. Shontz, 1 Mont. 212; *Toombs*v. *Hornbuckle,*1 Mont. 286; *Proctor*v. Irvin, 22 Mont. 547, 57 Pac. 183.) It thus appears that by the answer of de fendant he admitted that he was in possession of the money in question at the time the demand was made upon him. He cannot be allowed to introduce proof in contradiction of this admission in his answer. True, this court, on the former hearing of the case, used the following language, which is relied upon by the defendant: “Had the defendant prior to notice of plaintiff’s claim paid over the money collected under the levy the plaintiff would doubtless be without remedy against him.” This language of the supreme court was not necessary to the decision of the former appeal, is therefore mere *dictum,*and is not the law of the case. No doubt, had: the attention of the court been called to the fact that defendant had admitted' in his answer that he was in possession of the money when demand was made, the court would not have used such language. Therefore we conclude there was no error in refusing to allow the defendant to show that he had paid the money over on the executions at the time the demand was made by plaintiff.

2. Appellant complains that the court refused to permit him to prove that, subsequent to the execution and delivery of the *78bill of sale, about four tons of ore, “of equal or greater value” than that theretofore hoisted, had been hoisted from the mine, mixed with the ores in the orehouse (which plaintiff had bought), and1 shipped to the smelter, and were a part of the ores smelted, the net proceeds of which were attached by the defendant and claimed by plaintiff.

The bill of salo under which plaintiff claims describes the property in the following language : “All of our right, title and interest in and to about twenty tons of silver and gold ore now contained in the orehouse and orebina of the1 West Elba mine, lot 243, T. 3, N. R. 7 W., Silver Bow county, Montana, the said ore having been extracted by the said parties and: others.”

The first witness for plaintiff testified: “When I received this bill of sale for Mr. Yank I went over to the mine with Mr. Phondorf and told Mr. Hughes, about it. Tie was in charge there at the time. I saw the shipment of ore. It was in the house there. Mr. Hughes showed it to me.”

A. P. Phondorf, a witness on behalf of plaintiff, also testified: “Mr. Yank was. not there, and I gave the bill of sale to Mr. Lingley, and we together went out to the mine, and Mr. Hughes, the engineer, who was on top', and Mr. Lingley, showed him the bill of sale; and Mr. Hughes showed Mr. Lingley where the ore was, of which the bill of sale was a transfer.” On cross-examination, Phondorf testified as follows: “As far as I remember, there was something like nineteen or twenty tons of ore in the bin when we made the sale. I know that because I remember something about the size of the pile. This is an estimate. I did not know the exact weight. * * * The ore we sold Mr. Yank at the time we gave this bill of sale was in the orehouse.”

It is clear from the foregoing testimony that the ore intended by Phondorf and Pearson and James to be transferred to plaintiff by the bill of sale was in the orehouse at the mine when, the bill of sale was made. On cross-examination of Phondorf, he .further testified as follows: “I did not know whether there was any more ore taken out of the mine, but the mine ran for *79a while, because we bad to take out the pumps. If you consider that, the mine ran for perhaps, four or five days after. The ore we sold Mr. Yank at the time we gave this, bill of sale was in the orehouse, and the other was ore hoisted out of the mine after that. I could not tell you how much. It may have been half a ton — something like that. It was not over a ton. Q. Did you not state on cross-examination that there was some ore hoisted out of the mine and put in these bins ? A. I thought there had been. I did not know there had been. I could not say there had not been.”

Counsel made the following offer of proof as to ores being-raised from the mine and placed in the orehouse with the ore in question: “We offer to prove- by this witness and the other witness, Mr. Oleson, that after the date of tire alleged bill of sale, and before they had any knowledge of it, or notice of its existence, they hoisted about four tons of ore of equal or greater value than the ore that had theretofore been placed in the bins, and placed it in the bins, at the West Elba mine, and that this ore was part of the shipment of April 30th, for which plaintiff received the proceeds, and for which this action was commenced.” The court excluded this offer, and the defendant alleges .error. There is no doubt but that defendant had a perfect right to show that ore had been hoisted and placed in the same bin with the ore in question, and shipped and reduced with the ore in question, after the bill of sale had been given. The bill of sale only purported to convey to plaintiff an undivided one-half of the ore in the orehouse at the date thereof. If more ore was. placed therein after that date, and shipped to the smelter, and treated at the smelter, plaintiff certainly could not, under his bill of sale, claim that he was- entitled to one-half of the net proceeds of such ore. lie did not buy it; it was not conveyed to him; he had no interest in it; yet he seeks in this action to obtain a judgment for an undivided one-half of the proceeds of all the ore shipped to the smelter and reduced at that time.

An examination of the record discloses the further fact that plaintiff called one E. N. Hughes as a witness, who gave testi*80mony on plaintiff’s examination tbat no ore was hoisted from tbe mine after tbe execution of tbe bill of sale; tbus demonstrating tbat plaintiff appreciated- tbe importance of tbe question, and deemed evidence necessary to be introduced on bis side of tbat issue. After having introduced evidence upon an issue without objection, be should not be allowed to object to the introduction of evidence by tbe defendant upon the same issue. The offered testimony was- very important upon tbe issue of plaintiff’s ownership-, which was properly raised by tbe pleadings, and its exclusion was error.

We advise tbat tbe judgment and order appealed from, be reversed, and a new trial granted.

Pee Oueiam.

Por tbe reasons, stated in the foregoing opinion, tbe judgment and order appealed from are reversed, and tbe cause remanded for a new trial.