The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1892-07-26
Legal Fifteen Puzzle Presented
to the State Supreme
Court
Promissory Note Plays a Very
Important Part In the
Case.
.FH. K~ieinscllmldt Got . Verdict on the
Trial In the DistriOt E
.& rEa.H.z Court, eas-E

sComOof, 1861, Albert kletn1chnnldt. Win
others, had a contract for the construc-
bn Of thirty miles OF the Helena, Boulder
IaAlley b Butte railroad. which was then In
4urse Of construction. Doc. 3 Albert
In einachmidt and Henry Klein, n Of the
t'lntractora. purchased from John W. Bus
1lAtt certain shares of stock of the Boulder
Mining and Reduction company. and in
l~knsideration of the shares q contract was
I'Ade whereby they agreed to pay 10 Bus
VT on~e-siRhth Of the net prohta realised
II them ont of tho railroad contract, which
sre to be paid to Buskstt Immediately
aiter the receipt of their respective
larsa Of tho net proceeds. About Jan. 3.
I'A87, Buskett obtained of Albert Klein
ghmidt $1.350 in order to enable him
n purchase additional stock in the
builder Mining and Reduction company,
nd agreed with Albeit Kleinschmidt that
A confederation of the loan that Klein
|hhmidt should retain out of Buskett's
hsre of the net proceeds. whom the money
hould oome into Kleinsohmidt's hands, suf-
Client to pay back the loan OF $1,3bO and
aterest at n per cent. per month until
laid. In other .worda, IL appeared that
Alsinschmidt had advanced to Buskstt that
mount of money out of his share Of the
~ltrofts, if any, when thcy should be paid,
md to secure Kleinschmidt for such ad-
lance in case there should be no profits
bminR to Buskett out Of tho enterprise,
3uskett further hypothecated the stock,
yhich no had purchased with the money, AZ
additional security.
The advance or loan Of money to Buskstt,
'he purchase by him Of stock Herewith.
ind the date Of the transaction were ad-
nitted in the court below. About April
NJ, 1887, Buskett, in tho language Of tho
complaint. "for a valuable consideration
old. assigned and transferred and deliv-
bed to r. H. K~leinschmidt. the plaintiff
Aerein. all of his right. title and interest In
and to his share of the profits therein mem
lioned. The final settlement was had be-
tween the members OF the syndicate, the
proportionate share Of each in the net
paid over Oct. 10. 1883. It appeared that
'buskett CAV to Albert Kleinsohmidt on
pan. 5, 1887, his promissory note to evidence
this indebtedness to him OF $1,35O. Renewal
notes had been given from time to time
but the indebtedness of Buskett
TO Albert Kleinschmidt had never been
paid, unless the giving of the note was pay
! l. OlhjLlGNs al MAJ
that the debt from Buskett ia
ALBERT Kleinschmidt was paid by this
Promissory note, n denied the agreement,
bet up in the answer, between Buskett and
KleinscLmidt.
!. An estoppel is also attempted to be
pleaded by r. H: K~leinschmidt in replica.
zion, but no evidence was offered to sustain
the allegations thereof. The issues in The
tpleadings upon which Albert Klein.
!schmidt's lawyers contend the case should
tbeen tried were: First-As to the amount OF
'one- eighth of his share OF the net profits
% to whether it was $2.947.76 or $2,997. Is,
the promissory note taken
and received by Albert Kleinschmidt as q
indebtedness2 Third-Was there an agree.
ment between Albert Kleinsohmidt and
Buakett. as set forth in the formers an
.swer.
On the trial of the case the court ignored
the pleadin9s. and held that the only tissue
for the determination of the jury wal
II. Kleinschmidt was S2,947. 76 with inter
est. or $2,997.78 with interest, and thai
the promissory note given by Buskett tc
evidence his indebtedness must be taken Al
conclusive evidence of payment Of the in
debtedness as against T. H. Kleinsohmidt
and that Albert Kleinsohmidt could not bt
permitted to show that a payment of The
indebtedness was never contemplated BY
the execution and delivery of the note. Al
given above such is the contention of Cul
len, Sanders d shelton and H. G. Smith
who represent Albert Kleinschmidt. II. H
Kle%inschmidt got a verdict in the court be.
low. He is represented by Toole & Wallace,
The supreme court handed down an opin'
ion yesterday affirming the Judgment of the
lower court in the case of the state against
Samuel Smith who attempted to prevent
the laying out Of q public highway over his
premises IN Yellowstone county. He 70
sisted the sheriff with a gun and was sem
to Deer Lodge.