(202 P.) rule of general application that it is the sub- [sonal property in trust upon a contract, exstance of the agreement rather than the press or implied, that the trust shall be exeform-the spirit rather than the letter-cuted faithfully on the part of the bailee. which must control its interpretation. Liquid 2 Bl. Com. 451; 2 Kent's Com. 558; Story Carbonic Co. v. Quick, 182 Fed. 603, 105 C. C. A. 141. Applying these principles to the instrument before us, there does not appear to be room for a difference of opinion as to the intention of the parties or the character of their transaction. The letter declares that it was the intention that defendant should raise the crop of beans for the plaintiff, and every other provision but adds emphasis to that purpose. It is argued by counsel for defendant that the provision that plaintiff might refuse to accept the crop, or part of it, is altogether inconsistent with the theory that title was in the plaintiff, but not so. The letter declares that— "The stock seed and seed crop produced from it is and shall remain your property except as otherwise stated in this contract." [3] The exception is that plaintiff might refuse to accept the crop if less than 85 per cent. of the beans should prove to be vital, or if the crop should be otherwise unfit for seedsman's use. In other words, title was in the plaintiff until it rejected the crop for either of the reasons mentioned, and then, and not until then, should title vest in the defendant. The defendant wrote: "In case you refuse to accept the crop, its title shall vest in me." The term "vest" as therein employed, means to descend; to take effect; and the parties intended clearly that upon the happening of the contingency indicated, defendant would acquire something which he did not have before. Again, counsel urge that the provision that plaintiff should pay for the crop in any event is at war with the notion that plaintiff was the owner. The fallacy of this argument lies in the assumption that plaintiff was to pay for the crop. The contract does not so provide. The only reference to compensation in the contract is found in the provision for compensation for the services rendered by the defendant, the amount thereof to be computed upon the amount of the crop produced. There were not present any of the elements of a sale so far as the seed beans were concerned, not the slightest indication that the title was to be transferred or that defendant should pay for such seed. Sections 5079, 5080, Rev. Codes. Neither was the transaction a loan of the seed for use within the meaning of section 5188, Revised Codes, for defendant was to be rewarded for the use to be made of the seed and, furthermore, a loan for use does not transfer title. Section 5189, Rev. Codes. [4] The contract is one of bailment, and title to the seed and the crop produced was in the bailor. A bailment is a delivery of per on Bailments, § 2. Some of the early definitions apparently contemplated that the thing bailed should be returned in specie, but the preponderant authority and better reasoning support the rule that upon the termination of the bailment, the identical thing bailed, or the product of or substitute for that thing, together with the increments, earnings, and gains which may have accrued to it during the period of the bailment, must be redelivered, delivered over, or accounted for by the bailee in accordance with the terms of the contract. 6 C. J. 1139. The principles of the law of bailments were borrowed from the civil law, and were first tersely explained in the early English case of Coggs v. Bernard, 2 Ld. Raym. 909, 92 Reprint, 107. In that case Chief Justice Holt classified the different kinds of bailments, and, among other things, said: "The fifth sort is where goods or chattels are delivered to be carried or something is to be done about them for a reward to be paid by the person who delivers them to the bailee who is to do the thing about them." It may be granted that Chief Justice Holt, in thus expounding the common law, did not have in contemplation a seed contract of the character of the one before us, but it is the malleability of the common law, its adaptability to changed conditions, that is its distinguishing characteristic and greatest virtue, and it may be asserted with confidence that the modern law of bailments finds justification in the rules announced in Coggs v. Bernard in whatever varied form they may be promulgated. In principle, the transaction between the parties to the present action is not different from that involved where the owner of leather delivers it to a manufacturer to be made into shoes (Mansfield v. Converse, 8 Allen [Mass.] 182); or where the owner of logs delivers them to a miller to be sawed into lumber (Gleason v. Beers, 59 Vt. 581, 10 Atl. 86, 59 Am. Rep. 757); or where the owner of milk delivers it to a factory to be made into butter or cheese (Bank v. Schween, 127 Ill. 573, 20 N. E. 681, 11 Am. St. Rep. 174); or where the owner of live animals delivers them to another to be kept for compensation (Edgar v. Parsell, 184 Mich. 522, 151 N. W. 714, Ann. Cas. 1917A, 1160; Robinson v. Haas, 40 Cal. 474; Sim mons v. Schaft, 91 Kan. 553, 138 Pac. 614). In any of these cases the transaction is a bailment, and it is altogether immaterial whether the compensation of the bailee is fixed at a definite sum in money or is a share of the product itself, a share of the net proceeds of the adventure, a share of the increase, or is computed upon the product of the undertaking. 6 C. J. 1096. But it is urged by the defendant that the | Nebraska case authority opposed to the views contract in question contemplates that he we have expressed. should do more than merely apply his labor to the property furnished by the plaintiff; that he was required to provide the land, and that the elements in the soil entered into the crop to be grown. This may be conceded, but it does not change the rule. So far as the elements which entered into the growing crop are concerned, aside from the defendant's labor, it may be said in all fairness that the plaintiff furnished the principal part-the seed-and that the elements in the soil were merely accessories. In this respect the case is not distinguishable in principle from that which arises when the owner of a damaged or worn-out vehicle de livers it to a blacksmith to be repaired by the labor and material of the latter (Gregory v. Stryker, 2 Denio [N. Y.] 628); or when the owner of cloth delivers it to a tailor to be made into a garment, the tailor to furnish the buttons and twist to complete it (Story on Bailments [8th Ed.] § 423); or when a railway company, the owner of old or wornout rails, delivers them to a rolling mill to be made into new rails by the labor and added material of the mill company (Arnott v. K. P. Railway Co., 19 Kan. 95); or where the owner of rough castings delivers them to be manufactured into shears, the factory to furnish the blades and do the work (Mack v. Snell, 140 N. Y. 193, 35 N. E. 493, 37 Am. St. Rep. 534). A seed contract, in substantially identical terms with the one before us, was considered by the Queen's Bench Division of the High Court of Justice of Ontario in Stewart v. Sculthorp, 25 Ont. 544, and the transaction held to constitute a bailment of the fifth class enumerated by Chief Justice Holt, in Coggs v. Bernard, above. And the same result was reached under like circumstances, in Gilbert v. Copeland, 22 Ga. App. 753, 97 S. E. 251. Counsel for defendant cite and rely upon the decision in Robinson v. Stricklin, 73 Neb. 242, 102 N. W. 479, but, though the contract there involved is similar to the one before us, it is apparent that the real character of the transaction was not considered or determined. The court assumed that the contract evidenced a sale or was an agreement for sale and, as between the two, it held that it was of the latter class. The subject "bailments" is not mentioned in the opinion, and apparently was not brought to the attention of the court. In a controversy arising upon a contract like the one here involved, the character of the transaction, whether a bailment, a sale, or a contract for sale, must be determined, and to assume that it belongs to one of two of the classes, excluding the other, is to beg the question. We do not deem the The judgment and order are affirmed. Affirmed. BRANTLY, C. J., and COOPER and GA LEN, JJ., concur. REYNOLDS, J., being disqualified, takes no part in the foregoing decision. (61 Mont. 301) NELSON v. GOUGH et al. (No. 4497.) (Supreme Court of Montana. Nov. 14, 1921.) I. Evidence -579-Amended complaint held not to affect right to introduce former testimony of deceased witness. Where the issue in the first trial was the relative rights of the parties to the use of the waters of a certain creek, an amended complaint on new trial alleging a written agreement as to such water rights did not change the issues; hence evidence of the former testimony of a witness since deceased was ad missible. 2. Evidence 178(9)-Document In possession of absentee held lost within evidence rule. Where property owners made a water rights agreement, and in 1891 one of them sold his property and went abroad and could not be located, the copy of the agreement in his possession was lost within Rev. Codes, & 7872, authorizing evidence of the contents of a writing lost or destroyed. 3. Evidence 186(2)-Evidence of contents of writing held not to be excluded as insufficient as to its terms. Where plaintiff claimed that a written his testimony that it was that "each one agreement settling water rights had been lost, should have water; that I should have twothirds of the water and that he should have one-third of the water, and we were to live up to the agreement, respectively; that we were to put a box in the ditch and take our share of the water and divide it that way; that he had a copy but lost it; that one S. signed it as a witness, and there was nothing else said," was properly admitted as against the objection that witness did not state the terms of the agreement. Appeal from District Court, Missoula County; R. Lee McCulloch, Judge. Action by Frank Nelson against William R. Gough and another. Judgment for plaintiff, and from an order denying new trial, defendants appeal. Judgment and order affirmed. A. Besancon, of Missoula, for appellants. Patterson & Heyfron, of Missoula, for respondent. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (202 P.) HOLLOWAY, J. This suit was instituted [ been directed to the same material points to have determined the relative rights of the of investigation, and therefore could not parties to the use of the waters of Nelson have been an adequate test for exposing increek-sometimes called Brock creek-in Mis- accuracies and falsehoods." 2 Wigmore on soula county. The cause was tried first in Evidence, § 1386. "Conversely it is sufficient 1915 and retried in 1918, resulting in a judg- if the issue was the same or substantially so ment in favor of the plaintiff, from which with reference to the likelihood of adequate judgment and an order denying a new trial de- cross-examination, because the opponent has fendants appealed. thus already had the full benefit of the se curity intended by the law." Id. § 1387. The matter in dispute throughout this controversy-the issue to be determined-was the relative rights of the parties to the use of the waters of Nelson creek. The amended The second trial was had upon an amended complaint filed after the first trial, the answer thereto, and a cross-complaint by the defendants, and the plaintiff's reply. In the amended complaint it is set forth, among other things, that in 1885 the plaintiff complaint did not change the issue or introthrough his immediate predecessor, George duce any new or different element. It did W. Lish, appropriated two-thirds of the wa- violate an elementary rule of pleading in ters of Nelson creek; that the predecessor that it incorporated a material portion of of defendants, one August Gustine, about the plaintiff's evidence. If we assume the exsame time made an appropriation of water istence of the agreement between Lish and from the same creek; that a controversy Gustine, it amounted to a declaration by arose between these original appropriators each of them relating to his property while respecting their rights, and, for the purpose he was holding title. With the necessary of adjusting their differences, they entered preliminary proof made, the agreement was into an agreement by the terms of which Gustine acknowledged the right of Lish to the use of two-thirds of the waters of Nelson creek, and Lish acknowledged, the right of Gustine to the use of one-third, each of the rights to be regarded as of even date; that thereafter and until about the time this action was commenced the agreement was recognized and carried into effect by the original appropriators and their respective successors in interest. The answer is substantially a general denial of the allegations of the amended complaint. By way of cross-complaint the defendants claim a prior appropriation by Gustine of one-half of the waters of Nelson creek and an exclusive appropriation of the waters of certain springs. All the allegations of the cross-complaint were put in issue by the reply. [1] George W. Lish, a principal witness for the plaintiff at the first trial, died before the second trial, and his testimony given at the first trial was introduced at the second trial over the objections of the defendants. The amended complaint did not effect any change of parties, and confessedly the evidence produced by the witness was relevant and material; but it is contended that the issues were changed by the amendment, and for this reason the evidence should have been excluded. If the premise be granted, the conclusion might follow; but the only foundation for the premise is laid in the fact that the original complaint did not make reference to the settlement agreement which is pleaded in the amended complaint. admissible under the original complaint. Section 7866, Rev. Codes; Phillips v. Coburn, 28 Mont. 45, 72 Pac. 291. Furthermore, it appears from the record that the witness was cross-examined at great length respecting every circumstance touching the origin and execution of the agreement as well as its terms and conditions. It [2] The agreement was made in 1885 and reduced to writing in duplicate, one copy delivered to Lish and the other to Gustine. appears that Lish lost his copy within four or five years thereafter, and that Gustine sold out his property interests in 1891, and, as stated in appellants' brief, "returned to Sweden. He could not be located there and was not available as a witness." Section 7872, Revised Codes, provides, among other things: "There can be no evidence of the contents of a writing other than the writing itself except in the following cases: Where the original has been lost or destroyed, in which case the proof of the loss or destruction must first be made," and oral evidence may thereafter be given. It is insisted that there is not any proof of the loss or destruction of the original writing delivered to Gustine, and therefore secondary evidence was not admissible. The instrument was a private writing, the personal property of Gustine, and, in the absence of any showing to the contrary, we think it is a fair presumption that he took his copy with him when he returned to Sweden, and this sufficiently accounts for its nonproduction. The reason for the rule which requires Section 1855, Code of Civil Procedure of substantial identity of issues is apparent at California, adopted in 1872, is identical in once. If the issues presented on the former its provisions with section 7872, above, first occasion were materially different, the cross-adopted in Montana in 1895. In Zellerbach examination of the witness "would not have v. Allenberg, 99 Cal. 57, 33 Pac. 786, decided in 1893, the section of the California Code that he could be expected to remember was was construed. The court concluded: "A letter that is beyond the territory of the state is, within the meaning of the statute, 'lost,' so as to allow secondary proof of its contents." that he and Gustine entered into the agreement, giving approximately the date and stating the circumstances, the subject-matter, and disposition made of their respective contentions. To require more would defeat the very purpose of the rule. 2 Jones' Commentaries on Evidence, § 227. In support of its position the court cited Gordon v. Searing, 8 Cal. 49, Burton v. Driggs, 20 Wall, 125, 22 L. Ed. 299, and Man-box was placed in the stream and so conThe record discloses that the measuring ning v. Maroney, 87 Ala. 563, 6 South. 343, structed wth a partition that one-third of 13 Am. St. Rep. 67. We think it is apparent the water was diverted into Gustine's ditch, that it was the intention to incorporate in and two-thirds permitted to flow down to the statute a rule of evidence which had the Lish ditch; that this box was so conbeen in force generally for many years before structed and placed by direction of Gustine; the statute was adopted, and, while there has been some diversity of judicial opinion as to the proper application of the rule, the view expressed by the California court meets with our approval. [3] Again it is insisted that the evidence relating to the contract should have been excluded because the witness did not state fully the terms of the agreement. Omitting the preliminaries, the witness testified: "Why, it was something of an agreement that each one should have water; that I should have two-thirds of the water and that he should have one-third of the water, and we were to live up to the agreement, respectively; that we were to put a box in the ditch and take our share of the water and divide it that way. I got one of these and took it home and had it there for two or three years. Judge Stephens signed it as a witness. Well, that was the contents of the contract, that was in dividing the water, and nothing else, and that was what we came to settle, and we settled it in that way. There was nothing else said." We think this meets the requirements of the law. It is true that in Capell v. Fagan, 30 Mont. 507, 77 Pac. 55, 2 Ann. Cas. 37, this court used the following language: "Proof of such contents requires a practical reproduction of the instrument in all of its substantial parts." rule of division for about 25 years and until the present defendants succeeded to the Gus that Gustine and his successors observed that tine interest. The other assignments do not require special consideration. There is some conflict in the testimony, but it cannot be said that The judgment and order are affirmed. BRANTLY, C. J., and COOPER, REY- (61 Mont. 263) GREAT NORTHERN RY. CO. v. FLATHEAD Snowsheds erected by a railroad company on the right of way from concrete, steel, and timber, and permanent in their construction, State Board of Equalization under Const. art. are part of the roadbed and assessable by the 12, § 16, and not by the county assessor under Rev. Codes, § 2511, subd. 7; the "roadbed" constituting any and all parts of the right of way especially prepared under the tracks, over the tracks, and coterminous with the limits of the right of way if required for the emplacement of necessary structures forming an integral part of the continuous railroad property. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Roadbed.] 2. Taxation 317(5)-Cooking utensils on railroad boarding car assessable as part of "rolling stock." But, when the language is read in the light of the facts of that particular case, no different rule is announced from that approved by the authorities generally, viz. the substance of the agreement must be proved by a fair preponderance of the evidence. It is enough if an intelligent witness has read the document and can state substantially its contents and import with reasonable accuracy. The witness cannot be expected to repeat the language of the instrument verbatim, and in this instance, in view of the fact that the witness Lish was more than 80 years old when he gave his testimony and was testifying concerning a transaction had 30 years previously, if he had essayed to re-zation. peat the very terms of the agreement, that [Ed. Note.-For other definitions, see Words fact alone would have been so suspicious as and Phrases, First and Second Series, Rolling to reflect seriously upon his integrity. All Stock.] Cooking utensils used by a railroad on its boarding cars are a necessary and usual acof the "rolling stock" and subject to no assesscompaniment of the boarding car and are a part ment save that by the State Board of Equali For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Commissioners' Opinion. (202 P.) four feet wide at the bottom. This trench Appeal from District Court, Flathead Coun- is then filled with reinforced concrete and ty; T. A. Thompson, Judge. the concrete formation is continued vertically above the trench and into the face of the mountain wall for a distance of 33 feet and laterally to the natural wall of the mountain. As the result, in place of the old irregular Separate actions by the Great Northern Railway Company against Flathead County and another, tried together by stipulation. Judgment for plaintiff, and defendants appeal. Affirmed. natural wall of the mountain which has been cut away, man has faced the irregular natu T. H. MacDonald, of Kalispell, for appel- ral wall with concrete, so that it now conlants. I. Parker Veazey, Jr., of Great Falls, and Noff singer & Walchli, of Kalispell, for respondent. sists of a smooth, perpendicular, artificial wall, extending 33 feet above the rail and 4 feet or deeper below the rail; the concrete face varying in thickness and being flush with the mountain and being embedded in the mountain with mushroom anchors at 20foot intervals. This is the mountain side supporting wall. JACKSON, C. Great Northern Railway Company instituted two actions against Flathead county and J. W. Walker, county treasThe outer wall consists of pillars beyond urer, to recover taxes paid under protest, which were assessed by the county assessor the outer rail. Sometimes a series of piers, against certain snowsheds over its tracks in especially where there is a double track, runs Flathead county, and certain cooking uten- halfway between the two tracks. These piers sils used on boarding cars to serve its con- "are embedded in a hole in the ground, one struction crews. One action was for the tax-between the tracks and the other outside the es so paid in 1917, and the other for those paid in 1918. The two actions, by stipulation, were tried together, come to this court to gether on appeal, and will both be disposed of in this opinion. Plaintiff contends that the snowsheds are part and parcel of the roadbed and as such cannot be subject to local county assessment, but that they must be assessed by the State Board of Equalization. With respect to the cooking utensils, plaintiff holds that they are included in the term "rolling stock" and are subject to assessment in the same manner by the State Board. Plaintiff also avers that, since both the roadbed and rolling stock had already been assessed by the State Board and the taxes paid, the assessment and taxes sought thereon by the county assessor double the taxes on the same property. The defendants argue that the snowsheds are not included in the word "roadbed," but are to be considered as structures erected on the right of way and therefore subject to local assessment, and that cooking utensils on the boarding cars come under the head of property properly assessable by the county assessor. The issues were tried to the court, without a jury, and judgment was had for the plaintiff in both cases. Defendants appeal from the judgments. The record shows that the Great Northern Railway on its main line, along the mountain side between Summit, Mont., and Essex, Mont., constructed snowsheds made of concrete, steel, and timber, to guard against slides of snow and débris coming on the tracks. From Summit to Java, a station more than halfway to Essex, the tracks are double. The sheds are built by excavating a trench on the mountain side of the track, 4 feet deep, or deeper, and cutting out the mountain wall tracks, and they vary in depth from a foot to as much as 12 feet deep. A hole has to be excavated for them to find solid ground in order that they will carry the weight of the roof. This is in the roadbed." Over these two walls a timber roof is constructed and supported by them. The sheds are necessary, permanent, and their removal means their destruction. Article 12, § 16, of the state Constitution, reads, in part: "All property shall be assessed in the manner prescribed by law except as is otherwise provided in this Constitution. The franchise, roadway, roadbed, rails and rolling stock of all railroads operated in more than one county in this state shall be assessed by the State Board of Equalization." This method of assessment is also contained in section 2508, Rev. Codes. Under subdivision 7 of section 2511, Rev. Codes, the county assessor is directed to require a statement under oath of "all depots, * stations, buildings and other structures erected on the space covered by the right of way and all other property owned by any person, corporation or association of persons owning or operating any railroad within the county." The taxing of the snowsheds, therefore, comes either under subdivision 7, § 2511, Rev. Codes, or under the exception set forth in the Constitution. Great Northern Railway operates in many counties of the state of Montana, and, if these snowsheds are included in the meaning of the word "roadbed," they are clearly to be subject to assessment and taxation under the exception to the rule, set forth in the Constitution. Fortunately, the word "roadbed" has been defined by this court as follows: |