in issue by a further answer on the part of 1904, J. R. Davenport sold and assigned to E. Estella Conroy. The cause was tried to the district court of Silver Bow county sitting without the aid of a jury. The following findings of fact were made: "(1) That on the 14th day of May, 1904, the plaintiff, F. P. Alywin, and the defendants E. A. Morley and Mrs. Minnie Bornholdt, entered into an agreement to operate a precipitating copper plant at the tailings of the Parrot smelter and to divide the net profits, if any, arising from such operation equally amongst them. "(2) That immediately thereafter the three persons named began the erection of said precipitating plant, and completed it on or before May 25, 1904. "(3) That on the 25th day of May, 1904, the plaintiff, F. P. Alywin, and the defendants E. A. Morley, Mrs. Minnie Bornholdt, and J. R. Davenport, entered into a contract, whereby it was agreed that the said Davenport should furnish sufficient money to build a new precipitating planer plant at the tailings of the Parrot smelter, and should be reimbursed from the first net proceeds of the precipitating business. That the said Alywin, Morley, and Bornholdt had expended the sum of about $500 in the erection of the old plant, and should also be reimbursed from the first net proceeds of the said precipitating business, and that each of the four persons named should have a one-fourth interest therein. "(4) That the said Davenport furnished the money, to wit, the sum of $2,000, with which to build the new plant, and the same was built at and near the site of the old plant between the 25th day of May, 1904, and the 15th day of June, 1904, and was operated continuously from its completion to the 29th day of May, 1906. "(5) That the plaintiff was placed in charge of the said plant as foreman, and continued so in charge until on or about the 10th day of September, 1904, when he was discharged by the defendants Morley and Bornholdt for want of attention to the duties of his position. "(6) That on the 1st day of June, 1904, the plaintiff mortgaged to the defendant Davenport his interest in said business to secure loans made in the past and to be made in the future by the latter to the former. "(7) That on or about the 10th day of September, 1904, the plaintiff abandoned said business, left the state of Montana, and ever since has resided outside the state of Montana, and during the continuance of said business thereafter took no interest in or paid any attention to it. *(8) That from the 25th day of May, 1904, to on or about the 10th day of September, 1904, the said business did not pay, and no profits were derived from the operation of said plant. 9) That on the 23d day of November, A. Morley all his title and interest in and to "(10) That on the 15th day of September, 1905, J. R. Davenport sold to the defendant Estella Conroy, with the consent of the said Morley and Bornholdt, his interest in said business and plant, and thereafter the said Conroy held said interest upon the same terms and [as?] the said Davenport had held it. "(11) That on or about the 29th day of May, 1906, the said plant was sold for the sum of $4,000, and thereafter, so far as the parties hereto are concerned, the business of producing copper from precipitation ceased. "(12) That the gross receipts of said business from the 25th day of May, 1904, to the 29th day of May, 1906, amounted to the sum of $48,664.40, and the total expenses to the sum of $30,556.90. "(13) That the net profits of said business, amounting to the sum of $18,107.50, were from time to time divided equally among E. A. Morley, Mrs. Minnie Bornholdt, J. R. Davenport, or his successor in interest, Estella Conroy, and one John W. Thomas. That the sum derived from the sale of said plant was divided between E. A. Morley and Mrs. Minnie Bornholdt, and that Estella Conroy received no part thereof." The court also drew the following conclusions of law: "(1) That the plaintiff, F. P. Alywin, and the defendants E. A. Morley and Mrs. Minnie Bornholdt, were copartners from the 14th to the 25th day of May, 1904. "(2) That the plaintiff, F. P. Alywin, and the defendants E. A. Morley, Mrs. Minnie Bornholdt, and J. R. Davenport, became copartners on the 25th day of May, 1904, and continued to be such until on or about the 10th day of September, 1904. "(3) That on or about the 10th day of September, 1904, the partnership as to F. P. Alywin was dissolved. "(4) That, as to E. A. Morley, Mrs. Minnie Bornholdt, and J. R. Davenport, the partnership continued until the 15th day of September, 1905, when Estella Conroy took the place of J. R. Davenport therein. "(5) That E. A. Morley, Mrs. Minnie Bornholdt, and Estella Conroy continued to be copartners until the 29th day of May, 1906, when the partnership was dissolved. "(6) That the plaintiff is not entitled to an accounting from the defendants or either of them. "(7) That the defendant Estella Conroy is entitled to an accounting from the defendants E. A. Morley and Mrs. Minnie Bornholdt to receive from them one-fourth of the selling price of said plant, to wit, the sum of $1,000, and to have judgment against them for said sum. "(8) That the appearing defendants are entitled to a judgment of dismissal against the plaintiff and for their costs expended." And afterwards the court made and filed | is ambiguous and uncertain; that its meanthe following decree: "It is ordered and ad- ing is not clear. This being the case, it was judged that as to the plaintiff, F. P. Alywin, the duty of the district court to construe it the complaint be dismissed upon the merits in the light of all the surrounding facts and of the suit, and that the defendant Estella circumstances bearing upon the transaction. Conroy do have and recover from the defend- In other words, it became the duty of the ants E. A. Morley and Minnie Bornholdt the court to place itself, as near as might be, in sum of $1,000." From this decree and an or- the situation occupied by the parties at the der denying them a new trial, the defendants time they entered into the agreement. Morley and Bornholdt have appealed to this There is positive testimony on the part of court. Morley and Bornholdt that the agreement with Davenport was as set forth in their separate answer; that is to say, that they gave him his option to allow his money to be permanently invested, and receive as consideration therefor a one-fourth interest in the whole enterprise, or to withdraw the amount advanced by him from the first proceeds of the sale of precipitates, and take simply a one-fourth interest in the net profits of the concern. This testimony, if uncontradicted, would have fully warranted the court in believing that the words "net proceeds of the proposition," as found in the written agreement, were intended to mean net profits. The testimony is clear, explicit, and reasonable. However, J. R. Davenport, the other party to the agreement, declared that there was no such arrangement between the parties, that no such option was ever given, and that the understanding was that he was acquiring a one-fourth interest in the entire venture. The district court evidently credited the story told by Davenport, and discredited that of the appealing defendants. This is manifested by the findings of fact made by the court. Under these circumstances, there being substantial testimony to warrant the findings, this court cannot interfere with the result. Watkins v. Watkins, 39 Mont. 367, 102 Pac. 860; White v. Barling, 41 Mont. 108 Pac. 654; Quirk v. Rich, 41 Mont. 107 Pac. 821. 2. The record appears to disclose the fact that Mrs. Conroy was not present at the trial, either personally or by counsel. No evidence was offered in her behalf. It is significant that in her answer she claims the sum of $1,000 and other sums, not as a part of the proceeds of the sale of the plant, but "by virtue of the profits accruing from the partnership business." The plaintiff does not appear to have been personally at the trial. All of the testimony relating to the conditions under which the Morley-Bornholdt-Davenport contract was executed was introduced by counsel for the plaintiff, and by the defendants Morley and Bornholdt without objection. No objection could have been successfully interposed thereto, for the reason that the evidence was relevant to the controversy between those parties. So far as the record discloses, no demand was ever made for an accounting by the respondent, and no claim can now be made, in view of the findings of the trial court, that she is entitled to more than a share of the $4.000 1. It is contended on the part of the appellants that the language employed by the parties in the agreement, which is denominated by the plaintiff and by the defendant Conroy, a partnership agreement, is plain and free from ambiguity, and that its clear meaning is that Davenport was to have simply a one-fourth interest in the net profits of the enterprise, and therefore defendant Conroy had no interest whatsoever in the sum of $4,000, realized by Morley from a sale of the plant to the Parrot Company. So far as the record discloses, there is no controversy between the parties to this appeal over any of the profits of the business as such, but the sole question is whether Conroy, through Davenport, acquired a one-fourth interest in the proceeds of the sale of the plant. The district court held that she did, and this is the main point in controversy between the parties. It is argued on the part of the appellants that, when the parties agreed that Davenport was to have a voice in matters pertaining to the operation of the plant according to his holdings, he tacitly acknowledged that without such provision he would not have any voice in the operation of the plant, on account of the fact that his interest pertained solely to the profits; and it is further argued that if, as is now claimed by the defendant Conroy, Davenport secured at that time a one-fourth interest in the entire enterprise, it would have been wholly unnecessary to provide that he should have a voice in the matter of the operation, because of the fact that his partnership interest would give him such voice without special agreement. On the other hand, it is maintained by the respondent Conroy that the phrase "net proceeds of the proposition" includes not only net profits, but also includes a one-fourth interest in whatever sums were derived from the venture, either in the way of profits or upon a final sale of the property. We have given this clause of the contract a great deal of thought and consideration. The language employed is somewhat peculiar. On the one hand it may be argued that, if the intention was to give Davenport simply a one-fourth interest in the profits, it would have been very easy to have said so; on the other hand, if he was to become equally interested with his associates in the entire venture, including the plant, there would have been no difficulty whatever in simply declaring that fact. We cannot avoid testimony shows conclusively, and the court It seems that an accounting may also be diby implication found, that all of the profits rected as between codefendants and a decree derived from the enterprise had been fully entered settling their rights inter se without accounted for by Morley, and divided be- the necessity of a cross-bill. In such cases tween the parties prior to the commence- accountings are only directed where a case ment of Alywin's action. Upon this state is made out between the codefendants and is of facts, had the defendant Conroy con- supported by the evidence." They also cite menced the action, she would undoubted- Downes v. Worch, 28 R. I. 99, 65 Atl. 603, 13 ly have failed of relief in a court of equi-Am. & Eng. Ann. Cas. 647, and note. ty for two reasons: (1) That she had nev- In this state there is no such pleading as er given Morley and Bornholdt an opportunity to account (see Ayotte v. Nadeau, 32 Mont. 498, 81 Pac. 145); and (2) that she knew exactly the amount claimed to be due her, to wit, a certain percentage of $4,000, and therefore she had no occasion to invoke the aid of a court of equity. See Wetzstein v. Boston & Mont. C. C. & S. Min. Co., 28 Mont. 451, 72 Pac. 865. The phrase, "and to other moneys," found in her answer, is meaningless in the light of the findings. She made no effort to show that any other moneys were due her, and the findings disclose the fact that the only claim she could have was for a share of this $4,000. record shows affirmatively that no accounting was necessary between these defendants. As the defendant Conroy failed to substantiate her allegation that she had demanded an accounting with her codefendants, and she alleged no necessity for an accounting, her answer, in the light of the findings, discloses simply a claim against them at law for $1,000. See 15 Ency. Pl. & Pr. 1031. The a cross-bill. The only fact pleading allowed on the part of the defendant is an answer (Rev. Codes, § 6530), which must contain: (1) A general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief, or a specific admission or de nial of some of the allegations of the complaint, and also a general denial of all the allegations of the complaint not specifically admitted or denied in the answer; (2) a statement of any new matter constituting a defense or counterclaim. Rev. Codes, § 6540. Section 6541, Rev. Codes, defines a counterclaim. No mention is made of a claim against a codefendant. Without deciding whether under our Code practice a defendant may obtain affirmative relief in an action for an accounting by filing a pleading in the nature of a counterclaim against a codefendant, we will assume that neither a crossbill nor an answer containing a counterclaim is a necessary pleading on the part of a defendant against a codefendant in a case where the plaintiff has and states a cause of action. Relying upon this assumption, it may be said that the defendant Conroy's case was properly before the court for complete adjudication and relief against all other parties to the action at the beginning of the trial. It will, however, be conceded that the judgment in her favor must rest upon some proper pleading, either her own or that of the plaintiff. A judgment without a pleading to support it cannot stand; and this is the reason why the question whether a complaint states facts sufficient to constitute a cause of action is never waived and can be raised in this court for the first time. Counsel for respondent freely concede in their brief that the bill or complaint for an accounting should contain the particular allegations contended for by the appellants; but they maintain that the real question is: "Does the plaintiff's complaint state a good cause of action for an accounting?" and not: "Is the defendant's answer sufficient to support a judgment?" They contend that, as the complaint is undoubtedly sufficient, it was the duty of a court of equity, after having once obtained jurisdiction, to do complete justice by determining the whole controversy so as to prevent future litigation and multiplicity of suits. They cite Raymond v. Came, 45 N. H. 201, Vierra v. Fontes, 135 Cal. 126, 66 Pac. 241, section 20, Street's Fed. Equity Practice, and section 6498, Rev. Codes, in support of their position. They also say in their brief: "We concede that as a general rule a cross-bill is necessary to entitle a defendant to affirmative relief, but opposing counsel fail to note that a suit for an accounting is an exception to the rule:" And they cite 1 Am. & Eng. Ency. of Law & Practice, p. 755, to this effect: "As a general rule, to entitle a delegations of his complaint which he failed fendant to affirmative relief, it is necessary that he file a cross-bill. But in suits for an accounting, in order to entitle the defendant to credits for items in his favor in the accounting and a decree in his favor in case the balance on the accounting is in his favor, a cross-bill is not necessary. The complaint of Alywin is, on its face, sufficient; but the facts therein stated are untrue in point of fact. The court so found. Therefore, if Alywin had, in his complaint, stated the facts as they actually existed, his complaint would not have set forth a cause of action. It has been judicially determined that he was not entitled to an accounting, and therefore the aid of a court of equity' was improperly invoked by him. Those al to substantiate became so much surplusage; and, the answer of the respondent being insufficient to state an affirmative cause of action for an accounting against the appellants, the decree has no pleading to sustain it. The respondent relied upon the ability of the plaintiff to make out a cause of action. at her peril. She should either have filed a proper pleading in her own behalf, if that can be done in an action like this-one upon which she could rely in case the plaintiff failed to make out a case-or she should have taken part in the trial and assisted Alywin in proving the allegations of his complaint. She did neither. The result is that, so far as the record discloses, she has a judgment against Morley and Bornholdt, without a pleading to support it, founded upon an alleged cause of action at law, in the final determination of the merits of which the appellants have a right to a trial by jury. | This right could not be taken from them by an assertion on the part of the plaintiff, a third party, that he had a cause of action which he in fact did not have. If Alywin was not entitled to an accounting on the facts, and Mrs. Conroy was not entitled to any on either her pleadings or the facts, then the cause should have been dismissed as to both. In the case of Schulz v. Schulz, 138 Ill. 665, 28 N. E. 808, a father brought an action against his son to declare and enforce a resulting trust, for an account, and for a decree against defendant for any balance of money found due upon the accounting. At the hearing the complainant abandoned all claims for moneys due on an accounting, and asked for a decree respecting the real estate only. After a decree in favor of the complainant, the defendant in the Supreme Court contended that the cause should have been sent to the master to take and report an account. It was held that, as the defendant had filed no cross-bill, he was not entitled to any affirmative relief. In the case of Brewer v. Norcross, 17 N. J. Eq. 219, which was an action for an accounting between partners, the defendant asked to have the affairs of another and different partnership between the same parties examined and settled. The court said: "If the balance upon the settlement of the account, in respect to which the bill is filed, should prove to be in favor of the complainant, but, upon the settlement of both accounts, the balance should be in favor of the defendant, what remedy could he have, or what decree could be pronounced upon the pleadings as they stand? If, in this aspect of the case, the defendant has any equity, he can have relief only by way of cross-bill." In the case of Wilcoxon v. Wilcoxon, 199 Ill. 244, 65 N. E. 229, it was held, in effect, that the general rule that affirmative relief will not be granted a defendant unless he files a cross-bill applies to a bill for dissolution of a partnership and an accounting, where one of the partners desires affirmative relief upon grounds other than that of an adjustment of the accounts of the partners. The Supreme Court of Arkansas, in Trapnall v. Byrd, 22 Ark. 10, said: "The law is well settled that a court of chancery will ing to the equity of the case as founded upon the pleadings and proof between the complainants and defendants, but will not make a decree between them as to a matter outside of the pleadings and proof between the complainants and defendants, unless by crossbill." We understand the rule to be in jurisdictions where the cross-bill is an appropriate pleading that one may be filed whenever the defendants, or either of them, have equities arising out of the subject-matter of the original suit, which entitle them to affirmative relief which they cannot obtain in that suit (Whittemore v. Patten [C. C.] 84 Fed. 51); also, that in suits for an accounting a crossbill is unnecessary in order to enable the defendant to recover the amount found due him upon the accounting, if the subject-matter upon which he bases his claim for affirmative relief is the same as that set forth in the complaint or bill; but that whenever a defendant seeks affirmative relief, not based upon a case embodied within the issues tendered by the plaintiff, either by his pleadings or evidence, he must show his right thereto by appropriate pleadings in his own behalf. In this case the plaintiff failed to make out any cause of action. Therefore his entire case failed. His pleadings could no longer be considered. He was out of court. There was nothing in the case presented by him upon which to predicate a cause of action in favor of the respondent. Therefore her cause of action was necessarily beyond the scope of his case. It related to an independent matter, and must have had a pleading to support it in order to warrant the court in entering judgment in her favor. He de manded an accounting to which he was not entitled. She made no demand. The de fendants were within their rights in refusing his demand. It seems, therefore, to follow that she may not predicate a right of recovery in this action upon the unwarranted demand made by him. A cross-demand cannot be germane to an alleged cause of action which has no existence in fact. Whatever has been said in this opinion to the effect that the respondent's sole claim against the appellants was for a share of the moneys derived from the sale of the plant is not to be construed as a determination that such could have been her only claim. It is suggested in the brief of her counsel that she may have been entitled to a larger sum. But she is not an appellant, and no excep tions on her part are found in the record. The district court seems to have found that the profits were properly divided. As she does not complain of these findings, we must assume that she is satisfied therewith. Hence the statement heretofore made that the amoun✶ allowed her is the full extent of her claim. 3. It is contended that the respondent's answer is insufficient for the reason that APPROPRIATION RIGHTS OF OWNERS. facts attempted to be set forth. There is ap-| 3. WATERS AND WATER COURSES (8 143*)— IRRIGATING DITCHES parently some warrant for the suggestion, but, in view of what has already been said, it becomes unnecessary to decide the question. 4. It is also suggested by counsel for the respondent that the association formed under the contract of May 25, 1904, was rather a "joint adventure" than a "copartnership." We do not decide the exact nature of the relation because it seems unnecessary to do so. 5. We are of opinion that neither Alywin nor Davenport was a necessary party to the appeal. The judgment and order appealed from are reversed, and the cause is remanded to the district court of Silver Bow county. Reversed and remanded. So long as the required volume of water is maintained at the heads of irrigating ditches of parties entitled to water, other parties damming sources of the supply need not permit any flow from their reservoirs, whether it consists of the natural outflow or of the conserved flood water. [Ed. Note.-For other cases, see Waters and Water Courses, Dec. Dig. § 143.*] 4. WATERS AND WATER COURSES (§ 143*)APPROPRIATION IRRIGATING DITCHES RIGHTS OF OWNERS. The most that ditch owners are entitled to claim at any time is that the amounts to which they are respectively entitled shall flow to the head gates of their ditches. [Ed. Note.-For other cases, see Waters and Water Courses, Dec. Dig. § 143.*] Appeal from District Court, Granite Coun BRANTLY, C. J., and HOLLOWAY, J., ty; Geo. B. Winston, Judge. concur. (41 Mont. 1) KELLY v. HYNES et al. Action by Sidney A. Kelly against Annie M. Hynes and others. There was a decree in favor of plaintiff, and defendants, Annie M. Hynes, Thomas F. Hynes, and R. R. McLeod and the defendants Granite Bi-Metallic (Supreme Court of Montana. March 26, 1910. Consolidated Mining Company and Fred Burr On Motion for Rehearing, May 3, 1910.) 1. APPEAL AND ERROR (§ 1011*) FINDINGS ON CONFLICTING EVIDENCE. REVIEW Where the evidence is conflicting, but does not clearly preponderate against conclusions reached by the trial court, findings will not be disregarded or set aside. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. 8 1011.*] 2. APPEAL AND ERROR (8 760*) - BRIEFS FAILURE TO REFER TO EVIDENCE. & Granite Ditch Company appeal. Modified and affirmed. W. E. Moore and Word & Word, for appellants. Rodgers & Rodgers and Wingfield L. Brown, for respondent. BRANTLY, C. J. This action was brought to determine the rights of the plaintiff and the defendants Hynes and wife and McLeod to the use of the water flowing in Fred Burr In absence of definite reference in appellants' brief to evidence as to a particular sub-creek, in Granite county, and to adjust the ject in support of their contentions, the Supreme Court cannot undertake to examine the record to ascertain what the evidence is, and must presume there was no evidence on the subject. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. & 3095; Dec. Dig. § 760.*] relative priorities and amounts of their respective appropriations. As indicated by the annexed outline map, the stream has its sources on the west slope of the mountains, and flows into the valley toward the north west. FLUMEL For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes 108 P.-50 |