SMITH, J. This is an appeal by the plaintiff from a judgment in favor of the defendant Thomas J. Bennetts and an order denying a motion for a new trial. The plaintiff, after stating the corporate character of the Greenwood Mining & Milling Company and the Hecla Mercantile & Banking Company, alleged as follows: "(3) That on the 7th day of December, A. D. 1900, the said defendants, at the county of Silver Bow, in said state of Montana, for and in consideration of the sum of $11,000 to them loaned and paid by the said Hecla Mercantile & Banking Company, made, executed, signed, and delivered to said Hecla Mercantile & Banking Company their promissory note for the sum of $11,000, payable to said Hecla Mercantile & Banking Company or order, on or before one year after date, with interest thereon at the rate of 8 per cent. per annum, with attorney's fees of 10 per cent. of the amount of said note in case suit should be commenced for the collection of said note, which note is in figures and words as follows, to wit: '$11,000.00. Melrose, Montana, December 7, 1900. On or before one year after date, we promise to pay to the Hecla Mercantile and Banking Co., of Melrose, Montana, or order, eleven thousand dollars, for value received, negotiable and payable at Bank in Glendale, in gold coin of the United States of America, of the present standard of weight and fineness, with interest thereon from date until paid, both before and after maturity, at the rate of eight per cent. per annum, and ten per cent. for attorney's fees if suit shall be instituted on this note for collection. The drawers and endorsers severally waive all exceptions of personal property allowed by the laws of the state, also waive presentment for payment, protest and notice of protest and nonpayment of this note, and all defenses on the ground of any extension of the time of its payment that may be given by the holder or holders, to them or either of them. Greenwood Mining & Milling Co., per D. T. Haskett, President; Elmer L. Kern, Secty. Thomas J. Bennetts, Chas. A. Harvey, D. T. Haskett, Trustees. [$2.20 in revenue stamps affixed thereon.]' "(4) That afterwards on the day of December, 1900, for value received, said Hecla Mercantile & Banking Company, by its said vice president, duly indorsed, sold, and transferred to said plaintiff, Henry Knippenberg, said promissory note, no part of which has been paid, and said plaintiff is now the owner and holder thereof, and the whole thereof is now due, owing, and payable from said defendants to plaintiff. "(5) That plaintiff duly notified defendants of said indorsement, sale, and transfer of said note, and that plaintiff was the owner 'Pay words and figures as follows, to wit: The respondent answered, in effect, by denying that he made, executed, or delivered the note as set forth in the complaint, and denying that the copy or pretended copy of the note therein set forth was a true or correct copy of any note or instrument executed by him at the time alleged therein or at any other time or at all. The cause went to trial before the court sitting without a jury, and during the course of the trial the court, over plaintiff's objection, allowed defendant Bennetts to file the following amended answer: "As to paragraph 3 denies that this de fendant made, executed, or delivered the note set forth by copy in said paragraph 3 of plaintiff's complaint, and denies that the said copy or pretended copy or correct copy of any note or instrument as executed by this defendant at the time alleged therein, or at any time, or at all. * is a true "(6) Denies that this defendant received any consideration for executing the said pretended note, but alleges the fact to be that the said note was executed by the defendant as trustee for said Greenwood Mining & Milling Company, and not otherwise, and that all the consideration expressed in said note was received, had, and enjoyed solely and exclusively by the said Greenwood Mining & Milling Company, and that this defendant at the time of the execution and delivery of said note was the duly elected, qualified, and acting trustee of the said Greenwood Mining & Milling Company and as such trustee, and not otherwise, made and delivered said note, and that in making and delivering said note this defendant acted only as such trustee for said Greenwood Mining & Milling Company in the execution and delivery thereof, and that this defendant did not execute or deliver said note as his individual note, and that it was understood and agreed by and between this defendant and payee of said promissory note at the time of the execution and delivery of same that said note was made, executed, and delivered by this defendant as the trustee of said Greenwood Mining & Milling Company, and not otherwise." Plaintiff objected to the introduction of any testimony in support of the affirmative allegations of the amended answer, but the court overruled the objection, and the ruling is assigned as error. And afterwards the court made the following findings of fact: "In this action, heretofore tried by the court, the court finds for defendant Bennetts, and concludes therefrom that plaintiff is not entitled to recover against him. In view of the fact the note involved was in form a joint and several note, was changed (and uselessly if still intended to bind all signers personally) to a joint form only, 'we,' the was signed with the defendant's corporate | of extrinsic evidence (Scanlan v. Keith, 102 name, and that Bennetts signed with the Ill. 634, 40 Am. Rep. 624). Mechem in his suffix "Trustee,' I am of the opinion the note work on Agency, § 443, says: "To extract is so far ambiguous on its face that Ben- general principles from these cases whose netts could allege and prove by parol that conflict is so great as to amount, in the lanthe parties knew and intended it was not guage of a recent case, almost to anarchy, his note, but the company's only, so signed is manifestly difficult. It will be obvious by Bennetts as trustee out of abundant cau- that the question is of importance in two tion to make it so appear. * * The evi- classes of cases: (1) Those involving the dence is conclusive it was not intended by rights of the immediate parties to the instruthe parties to the note that Bennetts should ment only. (2) Those involving the rights be bound personally and that it was intend- of third persons. Respecting this question, ed as only the company's note, and that however, these general rules may be evolvKnippenberg procured this to be done." ed: (1) Where the paper on its face is the Judgment was entered in accordance with undertaking of the agent only, no reference said findings in favor of respondent Ben- being made on its face to representative canetts, and the plaintiff appeals as aforesaid. pacity, and where the paper on its face is In said judgment the court incorporated the unmistakably the principal's, parol evidence following additional findings and conclu- will not be received in the one case to exonsions: "And the court finds in favor of the erate, and in the other to charge the agent. defendant Thomas J. Bennetts, and against (2) But where the paper bears on its face the plaintiff, Henry Knippenberg, that the some reference to a principal, or some apevidence is conclusive; that it was not in- pellation indicating representative character, tended by the parties to the note that the while it is undoubtedly true that the mere said Thomas J. Bennetts should be bound addition of the word 'agent,' 'trustee,' 'treaspersonally; that it was intended only as the urer,' and the like, or the mere recital in note of the defendant company the Green- the body of the instrument that the person wood Mining & Milling Company, and that signing is such agent, treasurer, or trustee the said promissory note mentioned in said of a principal named or unnamed, is, as has complaint was signed by the said Thomas J. been seen, to be regarded prima facie as deBennetts as trustee to bind the defendant scriptio persona merely, and not as charcompany, and that the parties to this suit acterizing the act as one done in a repreknew and intended that it was not the note sentative capacity; and, while it is also true of the said Thomas J. Bennetts, but the note as a general rule that parol evidence is not of the Greenwood Mining & Milling Compa- admissible to exonerate an agent from a conny only; and that the plaintiff is not en- tract into which he has personally entered, titled to recover against the defendant yet it is believed that the preponderance of Thomas J. Bennetts." It is contended that authority will warrant the statement of the the affirmative allegations of the amended rule that: (1) Between the immediate paranswer are not sufficient to constitute a de- ties to a bill or note parol evidence is admisfense, and that no parol testimony was ad- sible to show (a) that, by a course of dealmissible in support thereof. Counsel for the ing between the parties, that form of execuappellant, after calling attention to the con- tion has become to be the recognized and fusion created by the different holdings of adopted form by which the obligation of the the courts on the subject in controversy, say principal is entered into; or (b) that the inin their brief: "Unless each case can be strument was to the knowledge of the parjustified upon a true application of some rec- ties intended to be the obligation of the prinognized rule of law, then the books are full cipal and not of the agent, and that it was of opinions too irreconcilable to be of as- given and accepted as such; (c) that an insistance in any given case." We quite agree strument which is so ambiguous upon its with counsel. An examination of the au- face as to render it uncertain who was inthorities discloses several well-defined class- tended to be bound was known to be intendes of cases, and the confusion has doubtless ed to be the obligation of the principal. (2) arisen where it has become necessary to ap- Between one of the original parties and a ply the law to cases which, in the facts, third party such evidence is admissible to bear some relation to the different classes. make either of the lines of proof mentioned While counsel for the appellant who tried above: (a) Where the third person is not a the cause in the district court was not able bona fide holder; or. (b) where the instruto be present at the argument, he has filed ment bears sufficient evidence upon its face, a brief which bears evidence of a most ex- or is so ambiguous, as to fairly put a reahaustive and painstaking research of the au- sonably prudent man upon inquiry. As to thorities. One line of cases gives emphasis this last subdivision it may be said that the to the question whether the promise is made mere addition of the word 'agent,' 'trustee,' in the body of the note in the principal's etc., without disclosing the principal, is not name (see 7 Cyc. 551), while the principle ap- sufficient to make third persons chargeable plied in other jurisdictions is that instru- with notice of any representative relation of ments of this nature will always be constru- the signer; but the form of executing may ed as the parties made them without the aid be such as to well awaken the suspicion of * * "The bank was requcsted by two persons who sign themselves as officers, one as vice president and the other as secretary, to pay a certain sum. Whether they made this re * * third persons." Prof. Wigmore in his work on Evidence, § 2444, p. 3449, says: "The question whether one who signs as 'agent' or 'president' or 'guardian' is personally liable seems to be mainly a question of inter-quest as officers or as individuals is ambigupretation. The question thus be-ous, to say the least. It is evident that an comes one of the construction of the docu- inquiry into the circumstances of the case ment." might render it certain which was intended. There are several matters advanced in * Where a person acts merely as the brief of counsel for the appellant which agent of another, and signs papers in that are not pertinent to the main question in- capacity—that is, signs them as agent, and volved. Considerable space is devoted to a the party with whom he deals has full discussion of an agent's authority to bind knowledge of his agency and of the principal his principal, but no such question is involved for whom he acts-an express disclosure of here. No claim is made that the Greenwood the principal's name on the face of the paMining & Milling Company was not bound. pers, or in the signature, is not essential to In fact, it was made a party defendant in protect the agent from personal responsibilithis action and suffered default. Neither is ty." See, also, Mechanics' Bank v. Bank, any question of undisclosed principal or un- etc., 5 Wheat. 326, 5 L. Ed. 109. In the case authorized assumption of authority by an of Kean v. Davis, 21 N. J. Law, 683, 47 Am.` agent involved. The court found the evidence Dec. 182, it was held that "a bill of exchange to be conclusive that it was not intended by signed John Kean, President Elizabethtown the parties that Bennetts should be bound & Somerville R. R. Co., leaves it ambiguous. personally, that the note was intended to be on the face of it, whether John Kean, indithat of the company only, and that Knippen-vidually, or the company is the drawer," that berg procured its execution in the manner without any explanatory proof Kean individindicated. No significance attaches to the ually would be considered the drawer of the fact that mistake in execution is not pleaded bill, but that evidence might be introduced or shown. The defense does not rest on that to explain which of the two doubtful conground. The court having found that Knip- structions was the intention of the parties. penberg procured the arrangement to be made See, also, Hicks v. Hinde, 9 Barb. 528. as claimed by Bennetts (and there is ample Means v. Swormstedt, 32 Ind. 87, 2 Am. Rep. testimony to support it), he cannot now be 330, the court said: "We know that to hold heard to say that, unless Bennetts had au- the letters 'Sec'y' as intended to be 'a descripthority to bind the company, he became per- tion of the person' would be simply a legal sonally liable. The question here is: Is the fiction, false in fact. It would simply note sufficiently uncertain on its face as to amount to rejecting the words as surpluswho was intended to be bound thereby to age." The Supreme Court of Mississippi in warrant the court in receiving parol evidence Hardy v. Pilcher, 57 Miss. 18, 34 Am. Rep. of the circumstances surrounding its execu- 432, said: "Ordinarily no extrinsic testition? We think an affirmative answer must mony of any kind is admissible to vary or be given. explain negotiable instruments. Such paper speaks its own language, and the meaning which the law affixes to it cannot be changed by any evidence aliunde. One of the few exceptions to this rule is where anything on the face of the paper suggests a doubt as to the party bound, or the character in which any of the signers has acted in affixing his name, in which case testimony may be admitted between the original parties to show the true intent." In Carpenter v. Farnsworth, 106 Mass. 561, 8 Am. Rep. 360, it was said: "The court has always laid hold of any indication on the face of the paper, however informally expressed, to enable it to carry out the intentions of the parties." See, also, Haile v. Peirce, 32 Md. 327, 3 Am. Rep. 139; McClellan v. Reynolds, 49 Mo. 312. This court in Gerber v. Stuart, 1 Mont. 172, laid down the rule thus: "While it appears on examination of the authorities, especially the older ones, that the addition to a signature of 'agent,' 'president,' 'superintendent,' and similar words has been held to be mere description of the person, and not of the capacity in which the party acted, the modern rule seems to be that, if from the whole instrument it appears that the party intended to act for and bind his principal, the principal and not the agent will be bound, and that, where the addition or description is so inartificially expressed as to leave it in doubt or ambiguous from the face of the instrument, evidence aliunde will be admitted to explain and show the actual intention of the parties." Some claim was made in the Gerber Case that the defendant by mistake failed to sign "as" manager "for" the company; but the basis of the decision, as we read it, is that there was enough on the face of the note to raise the question, and make it uncertain, who was intended to be bound. In the case of Metcalf v. Williams, In The point is made by appellant that there is no allegation in the amended answer that he, Knippenberg, knew of the understanding between the parties at the time the note was executed. This is true; but no such objection was urged at the trial, and the testimony conclusively shows that plaintiff, who was president of the Hecla Mercantile & Banking eral demurrer to the complaint, and, the defendant having declined to plead further, rendered and caused to be entered a judgment enjoining it and its officers from proceeding further in the premises. Thereupon defendant appealed. supervised and directed the entire transac-| are alleged why the proposed bonds will be tion; that "the reason the note was signed invalid. The district court overruled a genby Bennetts, Harvey, and Haskett on the lower left-hand corner was because it was the wish of Mr. Knippenberg that the trustees should sign the note to make it a legal note on the part of the Greenwood Mining & Milling Company." The record shows that the sole question presented to the district court was whether parol evidence was admissible to show the understanding and agreement between the parties at the time of the execution of the note. We think that Gerber v. Stuart, supra, was decided according to principles which are sound in law and equitable in their application, and we therefore have no hesitancy in following it. Under the facts disclosed by the record, it would be unconscionable to allow the plaintiff to collect the amount of this note from Bennetts. We are therefore of opinion that the district court correctly decided the case, and the judgment and order are affirmed. Affirmed. When the record was filed in this court, counsel for the defendant filed a motion in writing asking that the cause be advanced upon the calendar for a speedy hearing and determination, to the end that, if the bonds be adjudged to be lawful, the defendant and its officers may proceed with the sale of them, notice of which, it is alleged, has already been given, fixing May 1st as the date of sale. On the day this motion was filed Messrs. Gunn & Rasch, members of the bar, asked leave to appear as amici curiæ, and submit a motion to dismiss the appeal on the ground that the action is "sham and fictitious and colorably and collusively instituted between the said plaintiff and respondent, Oscar Carlson, and the said defendant and appellant, the city of Helena, without inten BRANTLY, C. J., and HOLLOWAY, J., tion of determining in good faith any dis concur. (38 Mont. 581) CARLSON v. CITY OF HELENA. pute or litigating any question, or ever having any adversary tria', but simply for the purpose of obtaining the judgment and decision of the courts upon a feigned issue, in order to affect and control the determination (Supreme Court of Montana. April 12. 1909.) of another case of great importance now APPEAL AND ERROR (§ 781*)-DISMISSAL-pending in the United States courts, in which COLLUSIVE ACTION. Appeal from judgment overruling a demur- the said city, of Helena is defendant and the rer to the complaint in an action by a taxpayer Helena Waterworks Company, a corporation to enjoin a city from issuing bonds for in-organized and existing under and by virtue stalling a water system will not be dismissed on of the laws of the state of New Jersey, the ground that the action is collusive or merely colorable; it not appearing that plaintiff is complainant, and which involves large did not bring the action, as he testified, without amounts of money and very important and any agreement or understanding with any one serious questions as to the right and authorelse to have a long existing controversy over issuance of bonds for such purpose finally set-ity of said appellant, the said city of Helena, tled, though the inference is clear that he would to incur any indebtedness and issue any prefer to have the bond declared legal, and bonds of the said city of Helena for the purthough, without his knowledge, his counsel was assisted by counsel for defendant in preparing the complaint. [Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 781.*] Appeal from District Court, Lewis and Clark County; J. M. Clements, Judge. Action by Oscar Carlson against the City of Helena. Judgment for plaintiff, and defendant appealed. Motion to dismiss denied. pose of procuring a water supply and constructing a water system for said city; that the said plaintiff and respondent and the said defendant and appellant in said aboveentitled cause were in instituting said action, and they are by said appeal seeking to secure such a final judgment to be entered in said cause as might result to the advantage of the said defendant and appellant with reference to the validity of the said bonds of the said city of Helena to the amount of $600,000, proposed to be issued and sold by it for the procurement of a water supply and the construction of a water plant and water system mentioned in said complaint, and BRANTLY, C. J. This action was brought adversely to the interest of the said Helena by the plaintiff to enjoin the city of Helena Waterworks Company and other parties who from issuing bonds to the amount of $670,- are property owners and taxpayers in said 000 to provide funds to enable it to procure city, and who had no knowledge of this a water supply and install a system of action, and no opportunity to be heard, and mains, pipes, etc., for its distribution, and have any interest they might have in the to extend its sewer system. Various reasons' subject-matter of said action properly de Edward Horsky and T. J. Walsh, for appellant. C. W. Wiley, for respondent. Gunn & Rasch, amici curiæ. Walsh & Newman, for certain taxpayers. termined." cases fall within the rule, viz., moot cases, or those in which there is no real controversy, or in which, though there has been a real controversy, it has been adjusted; collusive cases which fall within the definition: "In law a deceitful agreement or compact between two or more persons for the one party to bring an action against the other for some evil purpose as to defraud a third person of his right; a secret understanding between two parties who plead or proceed This motion was accompanied | 51, 79 Pac. 554; State ex rel. Brass v. Horn, by an affidavit alleging facts furnishing suf- 36 Mont. 418, 93 Pac. 351. Two classes of ficient ground to justify the court in making inquiry touching the charges made. The motion and affidavit were ordered filed, and counsel in the case were required to appear on the 27th day of March, 1909, and make a presentation of the facts. On the day of the hearing additional affidavits were filed, both by the movants and counsel in the case; Messrs. Walsh & Newman, members of the bar, being also allowed, upon application for leave of court to do so, to appear in aid of the movants and as representatives of tax-fraudulently against each other to the prejupayers other than the waterworks company. The original files in this action and also in the action pending in the Circuit Court of the United States were also submitted. Counsel for the city and for the plaintiff were examined orally, as was also the plaintiff himself. Were we to conclude that the charges laid in the motion are supported by the evidence, we should feel constrained not only to dismiss the appeal, but also to proceed against both clients and counsel for contempt. "It is the office of courts of justice to decide the rights of persons and property when the persons interested cannot adjust them by agreement between themselves, and to do this upon the full hearing of both parties. And any attempt by a mere colorable dispute to obtain the opinion of the court upon a question of law which a party desires to know for his own interest or his own purposes, when there is no real or substantial controversy between those who appear as adverse parties to the suit, is an abuse which courts of justice have always reprehended, and treated as a punishable contempt of court." Lord v. Veazie, 8 How. 251, 12 L. Ed. 1067. And this view has frequently been announced by the courts. Gardner v. Goodyear Dental Vulcanite Co., 131 U. S. ciii, 21 L. Ed. 141; Hatfield v. King, 184 U. S. 163, 22 Sup. Ct. 477, 46 L. Ed. 481; Fesler v. Brayton, 145 Ind. 71, 44 N. E. 37, 32 L. R. A. 578; Haley v. Eureka County Bank, 21 Nev. 127, 26 Pac. 64, 12 L. R. A. 805; Ward v. Alsup, 100 Tenn. 619, 46 S. W. 573; McAdam v. People ex rel. Joslyn, 179 Ill. 316, 53 N. E. 1102; Cleveland v. Chamberlain, 1 Black. 419, 17 L. Ed. 93; Van Horn v. Kittitas County (C. C.) 112 Fed. 1; Connoly v. Cunningham, 2 Wash. Ter. 242, 5 Pac. 473; State ex rel. Hahn v. City of Westport, 135 Mo. 120, 36 S. W. 663; Berks County v. Jones, 21 Pa. 413; Mecker v. Straat, 38 Mo. App. 239. This court has in several cases held that even when, pending an appeal, the parties settle their controversies, and the fact is made to appear, the appeal will be dismissed; for under such circumstances there is no controversy left to be determined. State ex rel. Begeman v. Napton, 10 Mont. 369, 25 Pac. 1045; Snell v. Welch, 28 Mont. 482, dice of a third person; a secret arrangement between two or more persons, whose interests are apparently conflicting, to make use of the forms and proceedings of law in order to defraud a third person, or to obtain that which justice would not give them by deceiving a court or its officers." 7 Cyc. 398. To the first class may be assigned those cited from the decisions of this court supra; while Lord v. Veazie and Haley v. Eureka County Bank, supra, are types of the second class. One of the first class may be brought within the definition of the second class and become collusive, when, after the parties have adjusted their rights, one of them by agreement becomes dominus litis, by assuming to pay the expenses of the litigation and counsel fees in order to have the case conducted to a final hearing and judgment to effect some ulterior purpose. Gardner v. Goodyear Dental Vulcanite Co., supra, is a type of this class. But the rule announced in these cases does not preclude amicable actions instituted and conducted by the use of the ordinary forms of procedure, or by the submission of agreed cases. Indeed, our statute provides for the institution of actions by the latter method, and thus may be said to encourage them, provided always they involve a real controversy. Rev. Codes, § 7254. Tne submission of such cases is of frequent occurrence. Hauswirth v. Mueller, 25 Mont. 157, 64 Pac. 324; State v. Northern Pac. Express Co., 27 Mont. 420, 71 Pac. 404, 94 Am. St. Rep. 824; Hogan v. Cascade County, 36 Mont. 183, 92 Pac. 529; Northwestern Mutual Life Ins. Co. v. Lewis and Clark County, 28 Mont. 484, 72 Pac. 982, 98 Am. St. Rep. 572. On this subject Chief Justice Taney, in Lord v. Veazie, supra, said: “And in a case of that kind it sometimes happens that, for the purpose of obtaining a decision of the controversy, without incurring needless expense and trouble, they [the parties] agree to conduct the suit in an amicable manner; that is to say, that they will not embarrass each other with unnecessary forms or technicalities, and will mutually admit facts which they know to be true, and without requiring proof, and will bring the point in dispute before the court for decision without subjecting each other to unnecessary ex |