Morse v. Commissioners of Granite County

Pemberton, C. J. Notwithstanding the record shows that the case has been litigated with a great deal of zeal, and discloses ill feeling between the parties that has no place in a trial in the courts, still, when we strip the record of its rubbish and immaterial questions and contentions, we think the real issue involved is a simple one, and easy of solution. It is conceded that Morse sold the property to the county; that the property was necessary for furnishing the courthouse and offices of the county; that the prices charged and the sum allowed Morse by the county commissioners were reasonable; that the property sold was reasonably worth the sum agreed to be paid and allowed. Brown’s principal, if not the only, objection on his appeal from the allowance of Morse’s account by the commissioners, was that Cain, from whom Morse bought the property, had sold the same property to the county,- and had his claim therefor allowed, long before he sold the property to Morse, and that, on an appeal by Brown to the district court, Cain’s claim had been held and adjudicated to be null and void and illegal, for the reason that, under the statute, Cain, who was at the time a county commissioner, could not contract with the county. (Compiled Statutes. 1887, Fifth Division, § 1110.) Now, without commenting on this statute, let us inquire what was the effect of the judgment of the district court in holding and adjudicating Cain’s claims against, the county for this property “illegal, and void.” Counsel for. respondent say that, by such adjudication, the property. became .the property [453] of the county, and that thereafter Cain had no authority to sell it to Morse or any one else. The district court held the contract of sale of the property between Cain .and the county to be void, because prohibited by statute. This left the title to the property still in Cain. The court did not and could not, by such adjudication, confiscate. Cain’s property. If, after such adjudication by the district court, the county kept possession of the property, and appropriated it to its use, it could not avoid paying the reasonable value thereof, because the contract by which it obtained it was ultra vires, illegal, and void. This question is fully discussed by this court in State ex rel. etc. v. Dickerman, 16 Mont. 278, 40 Pac. 698. And besides the admissions and concessions shown by the record, and set out in the statement of the case, Morse and Cain both swear that the sale of the property in litigation was made in good faith, and for a valuable consideration. On a motion for non-suit, as this court has frequently Said, whatever the evidence tends to prove will be regarded as proved. (Soyer v. Water Co., 15 Mont. 1, 37 Pac. 838; McKay v. Railway Co., 13 Mont. 15, 31 Pac. 999; Creek v. McManus, 13 Mont. 152, 32 Pac. 675; Mayer v. Carothers, 14 Mont. 274, 36 Pac. 182; Jensen v. Barbour, 15 Mont. 582, 39 Pac. 906.) We think it cannot be disputed that Morse’s evidence tended at least to prove his cause of action. The judgment and order appealed from are reversed, and the cause remanded for new trial in accordance with the views herein expressed. Reversed a/nd Remanded. Hunt and Buck, JJ., concur.