out ore. This leaves for our consideration but two items of damages, to-wit, one for failure to pay the amount claimed for doing the dead work, and another for either converting the ore already knocked down, or failing to pay for it, as upon an implied contract. The verdict shows on its face that the jury allowed $120.91 for the ore, the amount proven by the defendants. This leaves $435 for work and labor performed before the ore was encountered. Plaintiff testified that this work was reasonably worth $448. The jury, for some reason, deducted $13 from the amount.

2. It is contended that the amended complaint contains three [1] causes of action which are not separately stated; but this point was not advanced in the court below.

3. But it is said that the two last causes of action are improperly joined, for the reason that the second claim, or cause of action, is founded in tort, and the third is founded in contract. It was [2] the privilege of the plaintiff, however, to waive the tort and sue upon an implied contract to pay for the ore which confessedly belonged to him. This he evidently attempted to do, and, as the cause has been tried on its merits, we shall not too closely scrutinize [3] his pleading. It was the duty of the court below at every stage of the action to disregard any error or defect in the pleadings or proceedings which did not affect the substantial rights of the parties, and no judgment should be reversed or affected by reason of such error or defect. (Rev. Codes, sec. 6593.) The record is in a very unsatisfactory condition; but we think, in view of the fact that the jury gave credit to the plaintiff's testimony, that substantial justice has been done.

The judgment and order are affirmed.

Affirmed.

MR. CHIEF JUSTICE BRANTLY and MR. JUSTICE HOLLOWAY concur.

PASHA, RESPONDENT, v. BOHART, APPELLANT.

(No. 3,071.)

(Submitted February 13, 1912. Decided February 24, 1912.)

[122 Pac. 284.]

Contracts of Sale-Credit-Breach of Condition-Evidence"Bankable" Note-Definition-Appeal and Error-Review— Presumptions.

Appeal and Error-Review-Presumptions.

1. On appeal from a judgment for plaintiff, every disputed fact must be held to have been resolved in his favor.

Sales-Credit-Breach of Condition.

Same

Same

Same

2. Where property is sold and delivered on an agreement that credit will be extended if a bankable note is given as security, on nonperformance of this condition, the buyer is at once liable for the price.

Credit-Performance of Condition.

3. Under an agreement to sell property on credit provided a bankable note is given as security, the note must be bankable without the payee becoming personally liable for its payment.

Credit-Evidence.

4. Evidence held to show that a note offered by a buyer was not bankable, and hence that the seller might recover before the expiration of the term of credit.

Credit-Evidence.

5. In an action by a seller who had agreed to extend credit to a buyer if he would give a bankable note as security, the former may testify that the banks of the place where both he and the buyer did business refused to buy the note offered by the buyer. Same-Credit-"Bankable Note."

6. A bankable note is one receivable as cash by a bank, and a note that banks will not buy is not bankable, regardless of the bank's reasons for refusing to buy, or the high character of the paper.

Appeal from District Court, Gallatin County; W. R. C. Stewart, Judge.

ACTION by R. J. Pasha against S. E. Bohart. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Affirmed.

Mr. John A. Luce submitted a brief in behalf of Appellant, and argued the cause orally.

The burden was upon the plaintiff to allege and show that the defendant had not complied with the terms of sale. Before the

amount could become due or payable in any event in cash, it was necessary to show that the term of the credit had elapsed. (Tatum v. Ackerman, 148 Cal. 357, 113 Am. St. Rep. 276, 7 Ann. Cas. 541, 3 L. R. A., n. s., 908, 83 Pac. 151.) This was a sale at auction, and in such a case the title to the property does not pass until there has been a compliance with the terms of the sale. (4 Cyc. 1048.) Where personal property or real property is sold at public auction and the purchaser refuses to comply with his bid, the vendor may maintain an action against him for damages. (4 Cyc. 1050.) And he may resell the property at the bidder's risk and recover the difference between the price received at the resale and the amount bid, together with the reasonable expenses of the resale. (4 Cyc. 1051; 3 Am. & Eng. Ency. of Law, 2d ed.. 503, 504; Mount v. Brown, 33 Miss. 566, 69 Am. Dec. 362.)

No action for the purchase price for goods sold and delivered could be brought until the expiration of the credit. Nor would the failure to give the notes be a basis for such an action. The only action would be an action for damages. (Manton v. Gammon, 7 Ill. App. 201; Girard v. Taggart, 5 Serg. & R. 19, 9 Am. Dec. 327; Hall v. Hunter, 4 G. Greene (Iowa), 539; Hunneman v. Grafton, 10 Met. (Mass.) 454; Gibbs v. Blanchard, 15 Mich. 292; Crawford v. Avery, 35 Miss. 205; Dodge v. Waterman, 36 N. H. 186; Hanna v. Mills, 21 Wend. (N. Y.) 90, 34 Am. Dec. 216; Yale v. Coddington, 21 Wend. (N. Y.) 175; James v. Adams, 16 W. Va. 245; Mount v. Brown, supra; O'Connor v. Dingley, 26 Cal. 12; Allen v. Ford, 19 Pick. (Mass.) 217; Eddy v. Stafford, 18 Vt. 235.) If the condition under which the property was delivered to Bohart was that he should give a note with good security, then the contract was executory and the title did not pass. Where title has not passed and the contract is still executory, it is usually held that the remedy by an action for damages is exclusive and that an action for the agreed price cannot be maintained. (Brand v. Henderson, 107 Ill. 141; Indianapolis etc. R. Co. v. McGuire, 62 Ind. 140; John Deere Plow Co. v. Gorman, 9 Kan. App. 675, 59 Pac.

177; Hallwood Cash Register Co. v. Lufkin, 179 Mass. 143, 60 N. E. 473; Tufts v. Weinfeld, 88 Wis. 647, 60 N. W. 992.) No reason appeared why Mr. Cox and Mr. Brown were not subpoenaed as witnesses. The court allowed these declarations of third parties, not supported by their oath, to be introduced, and this was the only evidence on the part of the plaintiff as to whether or not the note of Mr. Bohart was bankable. Defendant had the right to cross-examine these witnesses and to have them testify under oath. The objection should have. been sustained and the evidence excluded. (Yellowstone Park R. R. Co. v. Bridger Coal Co., 34 Mont. 545, 115 Am. St. Rep. 546, 9 Ann. Cas. 470, 87 Pac. 963; 16 Cyc. 1192-1194, and cases cited.)

Mr. George Y. Patten, for Respondent, submitted a brief. and argued the cause orally.

Counsel for appellant contends that respondent had the burden of showing that the note tendered by appellant was not a bankable note, and, in support thereof, cites the general rule that the party having the affirmative of an issue has the burden of proof. The rule is not applicable here. Respondent had the burden of proving the indebtedness alleged, but it was incumbent upon appellant to show that he had complied with the condition under which he was to have credit. Where the seller refuses to accept a note for the price pursuant to the terms of sale, the onus is on the purchaser to show that the surety should have been approved and the note accepted. (4 Cyc. 1050; Mills v. Hunt, 20 Wend. (N. Y.) 431; Sweeney v. Vaughan, 94 Tenn. 434, 29 S. W. 903.)

It is perhaps true that at common law, under the old forms, respondent's action would have been for damages for failure. to give the note, under which the measure of damages would have been the contract price. In other words, the same result would have been reached as in the present action for the purchase price. (24 Am. & Eng. Ency. of Law, 1123, 1124; 35 Cyc. 528, 529.) But under our Codes, as interpreted by this

court, forms of action have been abolished, and if, upon any view, the plaintiff is entitled to relief, the pleading will be sustained. (Raymond v. Blancgrass, 36 Mont. 449, 15 L. R. A., n. s., 976, 93 Pac. 648; Logan v. Billings N. Ry. Co., 40 Mont. 467, 107 Pac. 416; Wheeler v. Harrah, 14 Or. 325, 12 Pac. 500.)

Where goods are sold at auction on condition that the purchaser give in payment there for an approved note, and the purchaser refuses to give the note on delivery of the goods, the auctioneer may reclaim the goods or treat the sale as an absolute one without credit, and immediately sue for the price. (Corlies v. Gardner, 2 N. Y. Sup. Ct. (2 Hall) 374.)

We recognize and concede the general rule that hearsay testimony is inadmissible. However, we contend that the testimony of cashiers Cox and Brown falls under an exception to the rule, and does not violate it, and so was properly admitted. An unsworn statement may not only furnish substantial evidence, but show relevant facts; it may constitute part of a transaction or occurrence, or it may go further and in itself achieve a legal result. For instance, testimony showing demand and refusal, denial or disclaimer cannot be said to be hearsay, although the witness is permitted to state the answer given by another person to the demand. (16 Cyc. 1189, 1192.) A case squarely in point is that of Wallace v. Bernheim, 63 Ark. 108, 37 S. W. 712. To contest the claim of an offer by a deceased party to make a settlement of an alleged debt the testimony of the son of the deceased was held to be admissible to show that his father, upon such alleged debt being mentioned to him, denied its existence. (Passmore v. Passmore, 60 Mich. 463, 27 N. W. 601.) Statements to a commercial agency to show fraud of a purchaser on credit were held to be admissible in Cowen v. Bloomberg, 69 N. J. L. 462, 55 Atl. 36. A letter of an attorney to an insurance company was held to be admissible to show denial of liability rendering proof of loss unnecessary in Aetna Ins. Co. v. Fitze, 34 Tex. Civ. App. 214, 78 S. W. 370; Depew v. Depew (Pa.), 4 Atl. 728.