showing malice or want of probable cause in bringing the action for the appointment of the receiver, and the appellants adhere to the theory in this court. At this point in the trial no oral testimony had been offered, and the evidence comprising the above-named records was introductory. It is apparent that both parties were then of the opinion that the plaintiff must prove malice or want of probable cause in the commencement of the receivership case, and the ruling was correct. Irrespective of this view, the exception should be further examined. We have enumerated the papers which were received in evidence without objection, and the writ of certiorari was an essential part of the records, and constituted with said return and opinion "Plaintiffs' Exhibit 11." The objection to a series of documents as a whole is not well taken if some of them are admissible. Board of Education v. Keenan, 55 Cal. 648; Shatto v. Crocker, 87 Cal. 631, 25 Pac. 921. See, also, Farleigh v. Kelley, 28 Mont. 421, 72 Pac. 756; Yoder v. Reynolds, 28 Mont. 183, 72 Pac. 417; Bair v. Struck, 29 Mont. 45, 74 Pac. 69. The judgment will not be reversed if the court permits testimony to be offered on matters that are admitted in the pleadings. Wells v. McPike, 21 Cal. 215; West C. L. Co. v. Newkirk, 80 Cal. 275, 22 Pac. 231. No instruction was requested by defendants defining the effect of this opinion as evidence. Our conclusion is that the court did not err in allowing said records to be admitted.

Three exceptions were saved to the ruling of the court regarding a so-called "blacklist" embracing accounts of customers due to plaintiff, in arrears, but not necessarily bad. The bookkeeper of the company prepared reports of such accounts for the Grocers' Protective Association. The questions involved in these rulings are settled by the following paragraph of the bill of exceptions: "Said original blacklist, so called, was then and there present in court among the books and papers identified by witness Fraser as the books and papers of the company, and was offered and admitted in evidence by the court without objection at the same time that said other books and papers were offered and admitted, and said original blacklist, of which Exhibit H purported to be a partial copy, was then and there before the court and jury." Witness Lutey testified that he was talking to Fraser about the grocery business, and an objection was sustained to what Fraser had said as incompetent and not binding upon the plaintiff. The transcript does not throw any light upon this exception. The appellants did not make any offer of proof of the conversation between Fraser and the witness, or that anything was said while Fraser was acting as the agent of the company, within the scope of his authority. In Randall v. Greenhood, 3 Mont. 506, the court said: "The purpose of the inquiry is not disclosed in the record.

We have no means of knowing what the appellants proposed to prove by making the inquiry. The answer to the question might have been competent or it might not. The appellants ought to have stated and placed in the record what they proposed to prove." D. P. O'Connor, an expert bookkeeper, testified: "I find upon the books of the * company the account of Mrs. L. A. Thornton." The following question was then put to the witness: "You may state what the amount of that account was." The defendants interposed an objection that this was "incompetent, irrelevant, and immaterial." After an explanation had been made to the court of the object of the testimony, counsel for defendants said: "Objected to further for the reason that the element of damages which he is attempting to prove is not a proper element of damages to be considered by the jury, and is too remote, and the evidence is speculative, and is incompetent, irrelevant, and immaterial." Counsel for plaintiff then said: "We will show that this lady (Mrs. Thornton) was perfectly solvent, and that the amount of this account, $3,069, was collectible, and was perfectly good, and that by reason of the appointment of this receiver the account was lost." The court then ruled: "If the conditions are as you say, that it was collectible, you may show that." The witness answered: "Yes, I have such an account. The account is $3,069.65, Mrs. L. A. Thornton." There is no dispute about the amount of this indebtedness, and under the offer of proof the objections to the testimony were without merit. James W. Forbis testified in chief that said account of Mrs. Thornton was good and collectible in October, 1897. On cross-examination the witness testified, "I have acted as the attorney for Mrs. Thornton. Question by Defendants: Have you not made an arrangement, either with the officers or the attorneys of W. A. Clark & Brother, that, if the account of Mrs. Thornton can be proved, so that it is shown that that amount is owing by her, that she would still pay the judgment, and not claim the statute of limitations? Answer: There is absolutely no such an agreement; never was. On the contrary, W. A. Clark & Brother have been trying to collect said bill and was [sic] beaten on the claim of the statute of limitations. Question by Defendants: Has there ever been a trial on that? Answer: No, sir. Counsel for Defendants: I move to strike out the testimony of the witness on this point as incompetent, irrelevant, and immaterial. The Court: It was brought out on cross-examination. will overrule the objection." It is apparent that appellants sought to prove that an arrangement had been made under which Mrs. Thornton would "not claim the statute of limitation." The witness, however, testified that Mrs. Thornton beat W. A. Clark & Bro. "by the claim of the statute." The bare fact that there had not been a trial in the

I

courts did not affect the right of the debtor to avail herself of the protection of this statute by "bluff," according to counsel for appellants, or any other mode, and the motion to strike out the testimony on this point was justly refused.

In Lockhart v. Gee, 3 Tenn. Ch. 332, the complainant had a receiver appointed to take charge of all of certain property and collect the rents, but the Supreme Court of Tennessee decided that the appointment was illegal. The chancellor said: "Having no right to a receiver, the complainant is, of course, liable to the defendants for all the consequences of having had one appointed." In Terrell v. Ingersoll, 10 Lea, 77, the complainant obtained an injunction to restrain the defendants from receiving moneys on notes and accounts belonging to the partnership, and asked for the appointment of a receiver to take possession of and collect the assets. The chancellor granted the prayer and appointed a receiver, and afterwards dissolved the injunction, and ordered a reference to a master to hear proof and ascertain what damages, if any, had been sustained by the defendants by reason of the wrongful suing out of the injunction. Judge Cooper, for the court, said: "The plaintiff in an action who wrongfully sues out a writ of injunction is liable for all the injury which proximately results from it, and must be held to active diligence in the conduct of all proceedings under it. It is his duty to see that a receiver is appointed to take charge of property and effects impounded by the writ, and to secure them by proper legal proceedings which his adversary is prevented by the writ from instituting. Prima facie the complainant is liable for all losses occasioned by the neglect of the receiver to perform his duty, whether it be in realizing the asset or in accounting for it after it is realized." This case was affirmed in Downs v. Allen, 10 Lea, 652. In O'Mahoney v. Belmont, 62 N. Y. 133, the court said: "The appointment of the receiver in this action, and the subsequent proceedings had in regard to the same, was an invasion of the rights of the parties, calculated to waste and deplete the alleged fund, and not demanded by the nature of the action or the circumstances of the case.

*

** It is sufficiently apparent that the entry of the order under the circumstances, by the attorney employed by and with the concurrence of the receiver, was an abuse of the proceedings, which cannot be disregarded, and for which he should be held responsible. It constituted him an intruder, and a trespasser upon the rights of the parties." In Day v. Bach, 87 N. Y. 56, the court said: "The authorities seem to establish these propositions: First. That a void writ or process furnishes no justification to a party, and he is liable to an action for what has been done under it at any time, and it is not necessary that it should be set aside before bringing the action. Brooks

v. Hodgkinson, 4 Hurlst. & N. 712. Where, however, property has been taken, the party against whom the writ issued is entitled to restitution from the party who sued out the writ of any property or money of the defendant in his hands." In Dynes v. Hoover, 20 How. (U. S.) 65, 15 L. Ed. 838, the court said: "Such is the law in either case in respect to the court which acts without having jurisdiction over the subject-matter, or which, having jurisdiction, disregards the rules of proceeding enjoined by the law for its exercise, so as to render the case coram non judice. In both cases the law is that an officer executing the process of a court which has acted without jurisdiction over the subject-matter becomes a trespasser, it being better for the peace of society and its interests of every kind that the responsibility of determining whether the court has or has not jurisdiction should be upon the officer than that a void writ should be executed." Mr. Sutherland, in his work on Damages (3d Ed.), says: "If a defendant is a trespasser from the beginning, his defense wholly fails, and he is liable for the same sum in damages which he would be compelled to pay if he had gone on without any precept or pretense of authority and done all the acts proved upon him. The facts and circumstances attending the trespass, as has already been stated, may always be proved that the jury may understand its intrinsic character, to enable the plaintiff to show aggravations and bad motive, and to enable the defendant to controvert these, but the defendant, if guilty of the trespass, is bound to make reparation for the actual injury. Absence of bad motive and of all aggravations cannot relieve him from making full compensation for property taken, destroyed, or injured. An admission of counsel on the trial of an action of trespass that the defendant acted without malice will preclude the plaintiff from claiming vindictive damages, and therefore evidence on the part of the defendant in the nature of justification of his tortious act is inadmissible by way of mitigation." Section 3251.

***

Under the authorities, John D. Thomas, Bretherton, and the receiver were trespassers ab initio, and their acts particularly described in the complaint cannot be justified. The plaintiff does not demand as damages interest, prospective profits, or exemplary damages, and the allegations of the complaint concerning the extent of the business of the company, or the conduct of said trespassers tending to show fraud, oppression, or malice, must be treated as surplusage. The defendants did not plead any facts in mitigation of damages, and the jury were required to find the market value of said stock of goods, property used in said business, and accounts and bills receivable at the time said receiver took possession thereof, and also the costs and expenses incurred. in the certiorari proceedings.

The measure of damages is defined by the provisions of the Civil Code:

"Sec. 4270. Every person who suffers detriment from the unlawful act or omission of another may recover from the person in fault, a compensation therefor in money, which is called damages."

"Sec. 4330. For the breach of an obligation not arising from contract the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not."

"Sec. 4333. The detriment caused by the wrongful conversion of personal property is presumed to be: (1) The value of the property at the time of its conversion, with the interest from that time; or, where the action has been prosecuted with reasonable diligence, the highest market value of the property at any time between the conversion and the verdict, without interest, at the option of the injured party; and, (2) a fair compensation for the time and money properly expended in pursuit of the property.

"Sec. 4334. The presumption declared by the last section cannot be repelled, in favor of one whose possession was wrongful from the beginning, by his subsequent application of the property to the benefit of the owner, without his consent."

The instructions given and refused are numerous, covering 40 pages of the transcript, and will not be quoted fully. The first instruction is a prolix statement of all the issues set forth in the pleadings, regardless of their materiality, but the criticism of appellants that the court displayed therein partiality for the respondent is not well founded.

The third and fifth instructions are attacked because they ignore the questions of malice and want of probable cause. The appellants maintain that the plaintiff must prove the allegations of the complaint touching these matters in order to recover any sum as damages. According to our view of the law, these issues were rightfully eliminated from the consideration of the jury.

It is claimed that the instructions numbered 6 and 17, requested by plaintiff, are inconsistent and contradictory. The sixth instruction embodies sections of the Civil Code, supra, and states that the damage suffered by plaintiff "is the market value of the property at the time of such seizure, or the highest market value of the property at any time between the conversion by said Hubbard and the verdict, less the sum which was returned to plaintiff after said seizure." In this connection we are called upon to read the following part of the seventeenth instruction: "The market value of the property at the time of the conversion by the receiver is the amount recoverable by the plaintiff, less any amount returned to it or applied to its benefit,

and you

are instructed that the value of the goods is the reasonable market value of the same at the time and place when they were so unlawfully converted." The appellants are right in their contention that section 4333, Civ. Code, gives to the injured party one of two options; but he must elect one, and cannot rely upon both in the same case. Under the evidence the seventeenth instruction is correct, and the court erred in declaring in the sixth instruction the measure of the damages to be "the highest market value of the property at any time between the conversion by said Hubbard and the verdict." There is no evidence to which this part of the sixth instruction could apply, and the allegations of the complaint do not permit the assessment of damages in accordance therewith. The instructions must be warranted by the pleadings and evidence. Yoder v. Reynolds, 28 Mont. 195, 72 Pac. 417, and cases cited.

Was this error prejudicial to the appellants? The decision of this court in Robinson v. Mills, 25 Mont. 391, 65 Pac. 114, is directly in point. There was a conflict in the instructions, and Mr. Chief Justice Brantly, for the court, said: "That the conflict exists is clear, and it is impossible to reconcile it; but it does not therefore follow that the defendant is entitled to a new trial. The rule is recognized by this court that, where the instructions are upon a material point, and are in conflict, a new trial will be granted, unless it also appears that the defendant has suffered no prejudice. State v. Rolla, 21 Mont. 582, 55 Pac. 525; Heilbronner v. Lloyd, 17 Mont. 299, 42 Pac. 853. If, however, the conflicting instructions are upon an immaterial point, and it is not reasonably apparent that the jury have been misled, a new trial will not be granted." In Chicago Co. v. Taylor Co. (Kan.) 78 Pac. 808, the jury were erroneously instructed that the defendant would be entitled to credit for "the deepening of the well and its connection" with a plant, and the court said: "There is, however, no evidence in the record that any damages were claimed for deepening the well, and no proof was offered as to the cost of deepening the creamery well. Hence the verdict could not have been affected in any sum by the feature of the instruction to which objection is made." It should be remembered that the appellants have not moved for a new trial on the ground that the amount of the verdict is excessive, or that the evidence is insufficient to justify the verdict, and, in our opinion, the appellants could not have been injured.

There is no force in the argument of appellants relating to the sixteenth instruction, and we think the question of the responsibility of the receiver for the failure to collect the account from Mrs. Thornton was correctly submitted to the jury.

We are unable to perceive any inconsistency between the instruction numbered 1,

given by the court of its own motion, and instruction numbered 13, given at the request of respondent. The said instruction numbered 1 recites the allegations of the complaint respecting the elements of the damages claimed in this action, and limits the respective amounts which can be recovered, making a total sum of $22,050. The thirteenth instruction is based upon the evidence with reference to the accounts in the books and the good or collectible notes of the company. The appellants contend that the following sentence in said thirteenth instruction is not law: "You are instructed that accounts having once been shown to be good and collectible are presumed to have continued so, and that the fact that the accounts appear upon the books of the company and are testified to have been good and collectible is evidence for your consideration of the value of those accounts." This presumption is recognized in the Code of Civil Procedure: "All other presumptions are satisfactory, if uncontradicted. They are denominated disputable presumptions, and may be controverted by other evidence. The following are of that kind: That a thing once proved to exist continues as long as is usual with things of that nature." Section 3266, cl. 32. Mr. Abbott, in his Trial Brief (2d Ed.), p. 433, says: "In the absence of evidence, solvency is presumed. Solvency or insolvency at a given time having been shown, it is presumed to continue within reasonable limits of time." It is also asserted that the instruction does not inform the jury that some of said accounts and bills receivable were taken possession of under a writ of attachment in the suit of W. A. Clark & Bro. against the company to satisfy its indebtedness. Section 4334, Civ. Code, covers this objection.

*

The twenty-second instruction mentions the judgment rolls in five actions commenced against the company, in which some of the property in the possession of the receiver was levied on under execution and sold, and tells the jury that defendants are entitled to credit for the proceeds of the sales which were applied upon the payment of said judgments. Under the circumstances surrounding this entire transaction, the instruction allowing these amounts to be applied in this manner was favorable to the defendants.

All the instructions requested by the parties bear the names of the respective attorneys, and this is claimed to be error prejudicial to the appellants. The question has been disposed of by this court. State v. McDonald, 27 Mont. 230, 70 Pac. 724; State v. Martin, 29 Mont. 273, 74 Pac. 725.

The instructions requested by the defendants and refused by the court, viewed as a whole, are contrary to the principles of law upheld in this opinion, and, if given, must have resulted in a verdict for the defendants upon every proposition.

All the exceptions presented in the tran

script have been examined, and we do not find any error of law entitling the appellants to a new trial.

We recommend that the judgment and order appealed from be affirmed.

POORMAN, C., concurs.

PER CURIAM. For the reasons stated in the foregoing opinion, the judgment and order are affirmed.

(71 Kan. 43) WESTERN SASH & DOOR CO. v. HEIMAN et al. (Supreme Court of Kansas.

March 11, 1905.) MATERIALMAN'S LIEN-STATEMENT-SUFFI

CIENCY.

In furnishing lumber for the construction of a building, a materialman stood in the relation of a subcontractor to the owner of the property. The lien statement and notice recited that one Buckner, a contractor, assisted the owner in the purchase of the material. The name of the contractor was not mentioned, except incidentally, as above stated. The prayer of the petition in a suit to foreclose the lien asked for a personal judgment against the owner of the property, as well as Buckner. Held, that the statement was insufficient to give the claimant a subcontractor's lien.

(Syllabus by the Court.)

Error from District Court, Leavenworth County; J. H. Gillpatrick, Judge.

Action by the Western Sash & Door Company against J. C. Heiman and others. Judgment for defendants, and plaintiff brings error. Affirmed.

This was an action to foreclose a mechanic's lien, brought by the Western Sash & Door Company against J. C. Heiman and others, trustees of the John Saylor Memorial Methodist Episcopal Church of Linwood, and J. L. Buckner. The petition contained the following allegations: "Said trustees, acting by and through a contractor, J. L. Buckner, between whom and said trustees some arrangement or agreement had been made by which said Buckner was to assist in the purchase of the material here. inafter described, the exact nature of which arrangement is unknown to this plaintiff. That in pursuance of said agreement there was sold and delivered to said Buckner, for said trustees, merchandise to the amount of $320.98, consisting of various kinds of lumber and woodwork supplies, all of which, together with the prices and values thereof, and the dates upon which the same were furnished, will more fully appear by itemized statement of account which is attached to and made part of the mechanic's lien statement, which is attached to and made a part of this petition, and marked 'Exhibit A.' That said itemized statement of account is a true, accurate statement of the account existing between this plaintiff, Buckner, and said trustees. That all goods named werefurnished on the dates therein specifically

named. That the price set opposite each item of goods is the price thereof, and the fair value of the same, the same being reasonably worth said amounts. That all of said goods were delivered to said trustees, and by them received, and were placed in and upon the premises described in said Exhibit A, to wit lots 11 and 12 in block numbered 17 in the town of Linwood, Leavenworth county, state of Kansas, and that the same are now part of the lasting and valuable improvements upon said premises by said trustees. That the last goods furnished as aforesaid were furnished on December 2, 1895. That on the 20th day of December, 1895, a statement for mechanic's lien was filed with the clerk of the district court of said county, a copy of which is attached hereto as Exhibit A, and on the 24th day of December, 1895, a notice of the filing of such lien was served upon said trustees, a copy of which notice is bereto attached and made part hereof, and marked 'Exhibit B,' and that attached to said notice was a correct copy of the statement for mechanic's lien, with all the exhibits thereto attached. That none of said amounts have been paid, and there is now due and owing from said Buckner and the said trustees to this plaintiff, because of the matters and things aforesaid, the sum of $320.98." Judgment was prayed for against Buckner and the trustees; that the lien of plaintiff be declared the first and superior lien upon the premises; and that the property be sold to pay the same.

The lien statement referred to in the petition, with the bill of items omitted, and the notice served on the owners of the property, are as follows:

Statement: "And now comes The Western Sash & Door Company, a corporation duly organized and existing by virtue of law, and makes its statement for mechanic's and materialman's lien on lots Nos. 11 and 12, block 17, in the town of Linwood, county of Leaver worth state of Kansas, for goods, wares and merchandise, lumber and material furnished and supplied to the owner of said premises, to wit: The trustees of the John Saylor Memorial Methodist Episcopal Church of Linwood, Kansas; that such material was furnished for the erection, alteration and repairs of certain improvements, buildings and structures situate upon said premises; that the amount claimed by this claimant is $320.98 for material furnished as aforesaid under a contract made by and between this claimant on the one part and the owner of said premises and a contractor, J. L. Buckner, between whom and the owner of said premises some arrangement had been made by which said Buckner was to assist in the purchase of the material aforesaid, the exact nature of which arrangement is unknown to this claimant; that the items constituting said amount, as nearly as practicable, are set forth in an itemized statement of account hereto attached and made part hereof, and 80 P.-2

marked Exhibit 'A,' and that all of said material was used in and all of said lumber furnished entered into the buildings on said premises; that the names of the owners of said premises are J. C. Heiman, Theodore Zimmerlei, Elbert Bales, Carry Warring and Jacob Barker, trustees for the John Saylor Memorial Methodist Episcopal Church of Linwood, Kansas, the name of the claimant is as already stated, The Western Sash & Door Company, the description of the property is as above set forth; the last of said material furnished was furnished on December 2nd, 1895, no promissory note has been given for the whole or any part of said claim and said claimant, The Western Sash & Door Company claims a lien upon said premises for the amount aforesaid to wit $320.98. Western Sash & Door Company, By W. Huttig, Pres., Claimant."

Notice: "To J. C. Heiman, Theodore Zimmerlei, Elbert Bales, Carry Warring and Jacob Barker, trustees of the John Saylor Memorial Methodist Episcopal Church of Linwood, Kansas, you are hereby notified that a statement for mechanic's lien a copy of which is attached to this notice, was filed in the office of the clerk of the district court of Leavenworth county, state of Kansas; this statement is filed for a lien against the property owned by you, to wit lots Nos. 11 and 12, block 17, in the town of Linwood, county of Leavenworth, state of Kansas. Western Sash & Door Company, By Louie Freyermuth."

The testimony showed that Heiman and the other church trustees bought the lumber and material for the price of which a lien was claimed from one J. L. Buckner, a broker in Kansas City. Plaintiff below refused to sell to the trustees directly for the reason that it would interfere with the business of a local dealer at Linwood. They sold directly to Buckner, knowing, however, that the material furnished to him was to be used in the erection of a church building at Linwood. At the conclusion of the testimony the court below directed a verdict against plaintiff below, who is plaintiff in error here.

Atwood & Hooper, for plaintiff in error. Bremermann & Heidelberger, for defendants in error.

WM. R. SMITH, J. (after stating the facts). The difficulty in the way of a recovery by plaintiff below lies in the lien statement and notice. The Western Sash & Door Company stood in the relation of a subcontractor to the church trustees. It sold the material to Buckner. Its president so testified, and its counsel here concede the fact. To establish a valid lien, it was required by law to bring itself squarely within the statute. That part of section 5119, Gen. St. 1901, relating to subcontractors' liens which is applicable to the case in hand, reads: "Any person who shall furnish any such material under a subcontract with the contractor,