The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1899-11-27
DECISION IS REVERSED
The First National Bank Versus
Sigmund T. Weidenbeck.
UNITED STATES COURT
Sued as Trustee OF the Twin City Min
ing Company Judge Caldwelrs
Opinion Rendered on Appeal
From District Court.

| A copy of the opinion of Judge Cald-
| we'll of the United States circuit court
! Of appeals reversing the circuit court
| of the United States for the district OF
| Minnesota in the case of the First Ma
| tional bank of Butte against Sigmund
| T. Weidenbeck and Gustave j. Helm
| rich who were sued as trustees OF the
Twin City-Butte Mining company, was
received yesterday by John A. Shelton,
attorney for the bank. In the district
court of Minnesota the case was decld-
ed against the bank on demurrer Inc
case, on appeal, was heard by Judges
| Caldwell, Sanborn and Thayer and their
4 decision settles several interesting and
important law questions.
| The case is one in which the FIRST
National bank sued the two defend
| ants named to recover from them the
sum of $4,000 on note executed by the
| Twin City-Butte Mining company,
1 corporation existing under the laws Or
! the state of Montana, of which the de-
PENDANTS We're trustees. The complaint
| alleges that the mining company Dor
rowed from the plaintiff the $4,000 and
executed therefor its note; that after
the execution and delivery of the note
the bank entered into an agreement
| with George H. Tong, whereby the lat
| ter, for a valuable consideration, UNDER
took and promised to guarantee the
| payment Of the note, and in pursuance
of such agreement and in evidence
thereof, wrote his name upon the note
intending thereby to guarantee the
4 payment of the Indebtedness, and by
inadvertence placed his name upon the
face of the note; that at the time 1T
was expressly understood and agreed
between the bank and Tong that he
did not sign the note as maker or sure
ty, but only as a guarantor; that this
contract of guarantee was made solely
between the bank and Tong, the mining
company not being a party or privy
thereto; that after maturity of the
note the bank and Tong entered into an
agreement whereby Tong was discharg-
ed from his contract or guarantee Of
the payment of the note and thereupon
| his name on the face of the note was
erased and the note left in the same
condition it was when delivered by the
mining company to the bank; that The
agreement of guarantee between the
bank and Tong, as well as the discharge
from the guarantee, We're innocently
made and done, and entirely independ-
| ent of any contract of the bank and the
mining company; that with the excep-
ton of some small payments which
were Endorsed as credit on the note, it
still remains unpaid, although frequent
demand has been made upon the min
\ ing company for payment thereof; that
the mining company is wholly insolVent
| and has no property out of which the
note could be paid; that by. the prpvis-
! ions of the statutes of the state of
Montana. under Z which the mining
\ company was created, it is the duty OF
the officers of every corporation to make
a report annually within 20 days OF
Sept /, of its financial condition, which
is to be published in some newspaper
published in the city in which 1T is To-
Gated and filed in the office of the
county clerk of the county where the
I | business of the company is carried on.
! This report is to be verified by the
4 president or secretary of the company
and signed by the president and ma
| jority of the trustees, and upon failure
of the company to comply with these
requirements of the law, all the trus-
tees of the company shall be, Jointly
1 and severally, liable for all debts of the
4 company then existing, and for all that
4 shall be contracted before such report
4 shall be made; that the defendants
y were at the time the debt was con-
Il now, trustees of the mining company.
h that the business of the mining COM
pany is carried on in the county CT
n Silver Bow, in the state of Montana,
\ and has it's principal office and place of
business in the city of Butte, in that
Il county and state: that the mining
\ company failed and neglected to pub
u lish such report or file it in the office
II of the clerk of Silver Bow county, OF
Il any county of the state of Montana
a within 20 days from Sept. /, 1894, by
Il reason whereof the defendants are liza.
4 BILE, Jointly and severally, for the in
\ debtedness of the mining company
and it prays for judgment on the note
q A demurrer to the complaint was sus
tanned and final judgment rendered fol
| DEFENDANTS WhPrennnn
n sued out the writ of error.
Judge Caldwell. in the course of tn:
opinion of the court of appeals, says:
Formerly it was held that any alter
N alton OF a contract, whether material o
immaterial, by party claiming under
n 1t, avoided the contract. But the mod
4 ern doctrine is that an mmaterial al
II iteration of contract by the party
n claiming under 1t does not avoid thu
& contract. The principal and most i'm
II portant question in this case is: Die
II the addition of longs name to tn,
N note as guarantor and it's subsequen
NJ erasure therefrom, in the manner ant
II under the circumstance stated in thu
n complaint, constitute a material altera
"A ton of the note which avoids it? TIL,
n learned counsel for the plaintiff in er
"A ror and the defendant in error respec
"A lively. have furnished us with full
II citation and exhaustive discussion o
the authorities on both sides of this IN
NJ terestng subject. But in view of III
n decision of the supreme court of tn
= United States in the case of Mersma,
q VS.. Werges, 112 U. s., 139, we do no
feel called upon to indulge in any gen
q eral discussion of the question w
think all that is there said by the cour
III was fairly called for by the facts of III
N case and that this court would not b
N justified in treating it as obiter dicta
III Treating the opinion in the case a
n authoritative, as the courts and lay
N writer's who have had occasion to lis
n cuss this question have very general,