The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1898-07-06
IS S~TUBBORNLY FOUGHT
The Case of A. A. Mcmillan
Against II. l.. Frank.
BRlSTLES WITH POINTS
A Small Amount Involved but Many
Fine Legal Questions Are Brought
Up for Discussion-A Night
Session Held.

One Of the hardest fought cases tried
hat OF A. A. Mcmillan and others
against II. l.. Frank. which has been
on trial In Judge Lindsay's depart
ment OF the district court for five days.
Although the amoun involved in the
suit is only about $1,000. the case bris-
tles with fine legal questions and is
~stubbornly fought.
The plaintiffs were leasers Of the
Clark mine about seven years or more
ago. when IL was the property of II.
l.. Frank. and uncovered a large ore
body, but they were ~enjoined from
working 1t because IL belonged to the
Anaconda company's Mountain Con
vein. They allege that Frank prom
ised to demonstrate that the apex Of
the vein was in his ground and IL he
did not, but made a settlement with
the Anaconda company, he would re-
imburse them for all their expenditures.
but he did not, and they sued for the
amount they were out. The plaintiffs
filed and swore to -four different COM
plants In the action, each n setting
up a somewhat different agreement al
legged to nave been la with Frank,
the different amendments being mad
to meet the rulings of the court in sus-
tanning demurrers and motions.
During the plaintiffs testimony Mr..
Scallon questioned the witnesses about
the different statements sworn to by
them in regard to the agreement. The
plaintiffs attorneys made strong obtec-
lions to the questions, holding that the
different complaints spoke for them
selves and that the attorney and not
the plaintiffs were responsible for the
lgG NJ
Harwood suggested that four apostles
give different accounts of the gospel.
but that fact did not discredit either
recount. That led Mr.. Stapleton to re-
mark that while -four apostles might
have given four different accounts Of
the gospel, one OF them did not give
-four different versions.
John Gillie, a civil engineer, was on
the stand yesterday morning for the
defense, and he was asked IL he had
made a survey of the workings of the
Clark mine. This brought out another
objection from the plaintiffs attorneys
on the ground that the matter was ir-
relevant under the p~leadings, as there
was no question raised that o
! make competent any testimony regard
ing a survey OF the Mountain Con. The
question evidently aimed to bring out
testimony relative to the apex ana
there was no reference TO IL in the
~pleadings. ANY question of the apex
would not alter the relations between
the ~lessees and Mr.. Frank. as Frank
had agreed to demonstrate that the
apex was in the Clark or settle with
the lessees for all of their expenditures
in case il should develop that the apex
WAS outside the Clark. The arguments
on the objection took up the entire
forenoon session of court, and Judge
q sustained the objection. The
defense then asked and received per
mission to file an amended answer. 10
which the plaintiffs objected because
they had introduced all the evidence
when they had no knowledge tina Mr..
Frank would set up a defense such as
he now proposed. The objection was
overruled. The amended answer, with
out admitting that Frank had any
agreement with the plaintiffs at all,
alleges that IL there was an agreement
IL was on the express condition that
the vein in question should be shown
to be a part OF the Clark claim. and
It was not intended that the defend
ant should pay anything to the plain
TINS or assure n liability If the apex
should be found to be outside the Clark
claim. as IL developed to be. After the
1 objections had been disposed of the
testimony was resumed, n Gillie tes-
tilted that he made a survey OF the
Clark for Frank for the purpose OF
demonstrating tht the vein was in the
ground. but he found out that IL
apexed in the Mountain con ground.
James MacFarlane, former engineer
for the Anaconda company. testified
that he had made surveys OF the
Mountain Con and hat the vein
found in the Clark unquestionably had
its apex in the Mountain Con. James
Keegan, superintendent OF the Noun
tain Con. also said he had followed the
Clark ore body to within four feet OF
the surface in the Mountain Con-. John
Haskins said he had worked under the
Clark leasers when they uncovered the
rich ore body and that during thelr
development work they ran into sew
I eral OF the old Mountain Con work
ings.
4 night session Of court was held and
several additional witnesses were ex'
amined for the defense, The latter also
offered in evidence portions of certain
depositlons made by several OF the
plaintiffs. and an objection was made
10 the ofer unless the entire deposl'
tious were introduced. Another Ions
argument followed, at the conclusion
OF which the court overruled the OBJ
lection and the portions OF the deposi'
tions offered will be read TO the jury
his morning.