The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1897-10-05
IN THE SUPREME COURT
Decisions in Three Important Ap-
peals Handed Down.
THE WEAVER DAMAGE SUIT
Judgment OF the Lower Court Is Re-
versed Prosecution Was Not Mali
cious-Judgment Affirmed In the
Case of Frank vs. Cobban.
Special Dispatch 10 The STANDARD.

Helena, Oct. i.-The supreme court
to-day disposed of three appeals. one
from Silver Bow county. another from
Lewis and Clarke county and the third
from Madison.
The more important OF the actions
finally settled WAS the celebrated dam
age suit brought by Elmer +. Weaver
against the Montana Central Railway
company. In which the judgment of the
lower court 'is reversed. Weaver. who
was a locomotive fireman In the en-
ploy of the company, brought the ac-
tion against the company 10 recover
damages for malicious prosecution.
Goods had frequently been stolen from
the train On which Weaver ran be-
tween Butte and Great Falls. and the
company set about To apprehend the
thieves. with the result that Weaver
and other members OF the train crew
were arrested Oct. 6, 1893. on a charge
of grand larceny. Plaintiff ON the pre-
liminary hearing was discharged. ON
Nov. Z he was again arrested for petit
larceny for having stolen seven quilts
from defendants train. No one ap-
pearng ON the day set for trial the
case against him was again dismissed.
ON the day prior tn his dismissal from
Jail in Helena complaint against him
was filed i'm jefferson county on the
charge of burglary for having robbed
a car at a station In that county. and
Immediately on his discharge from Jail
he was rearrested and taken to Boul-
der and bound over for trial In the dis
frict court. This case was subsequently
also dismissed. Thereupon Weaver
brought this suit. A trial was had i'm
the district court of Lewis a. Clarke
county before Judge Blake. and ver-
diet rendered in his favor for 5000. A
motion for "A new trial was made by the
railroad company. and the court an
nounced that unless Plaintiff Weaver
Iemitted the sum of Sl.5O0 a retrial of
the case would be granted. Plaintiff
elected to remit The railroad COM
pany appealed from an order denying
a new trial and from the judgment.
The court, in an opinion by Justice
Buck. reverses the judgment ON the
ground that there had been probable
cause for the prosecution. which was
not. therefore. malicious, and orders
judgment entered for the railroad COM
pany.
Other cases disposed Of were:
IL. l.. Frank VS.. George Cobban ct al.
This was an action commenced by III.
l.. Frank i'm the district court Of Silver
Si,s.S5 from the defendants. the same
being the amount Of taxes paid on GER
tain property by plaintiff. Defendant
Cobban and others in August, 1894. in
consideration of $4,000 executed a
warranty deed To plaintiff Frank for
certain property I'm the city of Butte.
In this deed the grantors covenanted
and agreed that the premises sold were
free. clear and unincumbered Of all
taxes. assessments and liens whatso-
ever. ON the same day Of the execution
Of this warranty deed. but afterwards.
the plaintiff executed mortgage To
the defendants ON these same premises
Ia secure the payment of IL prOmis-
sorry notes Of $1,000 BY the terms Of
this mortgage plaintin Frank agreed
that he would pay all taxes and as
sessments then subsisting against the
property. shortly afterwards demand
Was made upon plaintiff for taxes
amounting to A1s.35 due on the prop
eriy bought by him. He requested
defendants Ia pay them. and on their
refusal brought suit. The defendants
had judgment below and plaintiff APP
pealed.
The Judgment Is affirmed in al opin-
ion by Justice Hunt and II Is held that
although the covenant OF the defend
plantin had been broken by reason
of the fact that at the time Of the ex-
ccution II the deed the promises were
not free from all charges. taxes and
asse ssmcnts but the plaintiff In the
mortgage contract-which was made
after the conveyance of the property
having agreed To pay all taxes then
subsisiing. and no fraud or mistake
having been pleaded. the terms of the
later contract are deemed implicitly To
discharge the terms Of the prior one
Inconsistent with the new.
j. l.. Nyhart and J. \. Nyhart vs..
j. Pennington and T. J. Bird. This
Was an action commenced I'm the dis"
trict court Of Madison county by the
plaintiffs Nyhart against the defend
ants IL recover s.. 900. alleged tn he due
them ON a contract entered into be-
tween the two parties To sell certain
mining property, located In Madison
county. The plaintiffs claimed that
Pennington and Bird engaged them ~
find purchaser for certain mines
owned by them and agreed To pay them
in case purchaser would he found AT A
figure satisfactory 10 the defendants.
reasonable commission for making the
safe. A purchaser was found by them
in the person of Mr.. Freed from Dill
Ion. and the mines were sold for
So, ,O0l. After the sale was ,ompleted
the plaintiffs asked payment for their
services In the sum Of s. 900. this being
claimed by them 10 he a reasonable
commission for the services rendered.
The defendants refused to pay. deny
ing any employment by them Of the
plaintiffs or any agreement as to any
commission. aud also denying that tht
Nyharts Were the procuring cause Of
IN. sal- uf the mines. The lower court
found for plaintiffs for s2ooo. Defend
ants alpealed.
Justice Hunt. for the court. aiilrms
The judgment and holds that the pvi-
dcncc sufficiently shows that an agree
ment between the parties was ent' ed
into whereby plaintiffs were 10 sccur'
a purchaser for The mines. that S2.Hli
was z reasonable commission Tor the
services rendered, and that the SOY
ersi Instructions by the court to the
jury complained of wore not rcVersi-
BILE error Judgment affirmed.