that the plaintiff discovered such claims and that they were located on the 24th day of September, 1907, by Cahoon in his name and in the names of the defendants Curley, Romney, and Ashton Fire Brick & Tile Company as owners of an undivided one-fourth interest, and that they on the 26th day of November, by a conveyance in writing, conveyed the claims to the defendant Western Clay Products Company, with knowledge "of plaintiff's J. M. Thomas, for appellant. C. S. Patter- rights in and to the claims." The location son, for respondent. STRAUP, J. The decision of Liebhardt v. Lawrence, 120 Pac. 215, in the original opinion and on petition for a rehearing controls and disposes of this case. The judgment of the court below is therefore reversed and vacated, and the cause remanded to the trial court, with directions to reinstate the complaint, to set aside the former judg ment obtained by the defendant against the plaintiff, quieting the title to the property in the defendant, to permit the plaintiff to plead to the merits, and to hear, determine, and adjudge whether the plaintiff or the defendant is the owner and entitled to the property, and to quiet the title in him who may so be found and adjudged to be the owner and entitled to its possession. Costs to appellant. FRICK, C. J., and MCCARTY, J., concur. MCCLOSKIE v. CAHOON et al. (Supreme Court of Utah. Jan. 2, 1912.) TRUSTS (§ 44*)-ESTABLISHMENT EVIDENCE. Evidence in a suit to have it adjudged that defendants held in trust for plaintiff an undivided interest in certain fire clay claims, located in their names, held insufficient to show the parol agreement as to discovery and location, under which this was claimed. [Ed. Note.-For other cases, see Trusts, Dec. Dig. § 44.*] Appeal from District Court, Fourth District; J. E. Booth, Judge. Action by John McCloskie against John P. Cahoon and others. Judgment for defend ants. Plaintiff appeals. Affirmed. M. M. Kellogg and A. L. Booth, for appellant. Van Cott, Allison & Riter and J. W. N. Whitecotton, for respondents. of the claims by Cahoon and his codefendants, and the conveyance of them to the Western Clay Products Company were admitted. The other allegations were denied. Upon a trial and findings by the court a judgment was rendered in favor of defendants. The plaintiff appeals and assails the findings. This appeal is without merit. The plaintiff by his own evidence failed to even show the alleged contract or understanding, or that he was to have any interest in the claims. The nearest testimony given by him in that regard was that after the claims were located he had a conversation with Cahoon in which the plaintiff said to him, "Do you remember telling me if I found you good clay you would make it right with me?" and that Cahoon replied, "Well, now, we had considerable talk about clay, and I believe I did say that; but I wouldn't positively say I did, or would not say I did not say that," and that another told the plaintiff that Cahoon said, after the location of the claims, that he would see that the plaintiff "was not left out," but that "Cahoon made him no such promise." The judgment should be affirmed, with costs. It is so ordered. FRICK, C. J., and MCCARTY, J., concur. Jan. 4, 1912.) ENGERT v. CHADWICK. Plaintiff in Colorado where any agreed rate of interest may be charged loaned defendant $100 and received from him within less than a year $157, principal and interest. Plaintiff then caused defendant to give a new note for $240 with interest at the rate of 1 per cent. per month, on which defendant, between May 31 and October 23, 1909, paid plaintiff the further sum of $90, defendant at the time of suit brought having paid in all on account of the loan $278.10. Held, that the second note, based on an unconscionable consideration, was against public policy and good morals and unenforceable in Utah. STRAUP, J. This is an action in equity to have adjudged that the defendant Western Clay Products Company holds in trust for the plaintiff an undivided one-half interest in certain claims containing deposits of fire clay. In his complaint the plaintiff alleged that on the 6th day of August, 1907, he and the defendant John P. Cahoon entered into an oral agreement by the terms of which it was agreed that Cahoon should furnish the plaintiff with supplies and outfits to explore and discover unlocated claims of such deposits, and that upon such discovery and location the plaintiff and the defendant Action by J. H. Engert against G. N. Chadshould have an undivided one-half interest wick. Judgment for plaintiff, and defendin and to the claims. It was further alleged ant appeals. Reversed, with instructions. [Ed. Note. For other cases, see Usury, Cent. Dig. §§ 140, 141; Dec. Dig. § 67.*] Appeal from District Court, Salt Lake County; Geo. G. Armstrong, Judge. D. B. Kimball and Van Cott, Allison & Riter, for appellant. Thomas F. Ashworth, for respondent. STRAUP, J. This is a suit on a promissory note for the sum of $240 executed and delivered in Salt Lake City, on the 19th day of April, 1909, payable on demand to the plaintiff by the defendant with interest at the rate of 1 per cent. per month from date. It was alleged in the complaint that $90 had been paid on the note, in payments of $15 each, from and including May 31st to and including October 23, 1909. Judgment was prayed for the sum of $162.45, with interest at the rate of 1 per cent. per month from the date of the note, $25 attorney's fee, and costs. Among other defenses the defendant pleaded want of consideration. The court found that the note was given "for a good and a valuable consideration;" and that there was due and unpaid on the note the sum of $150 as principal, and $21 as interest, making a total of $171. Judgment was given plaintiff for such sum, together with an attorney's fee in the sum of $25, and for future interest at the rate of 1 per cent. per month. The defendant appeals. The execution and delivery of the note grew out of the following undisputed and admitted transactions: On the 17th day of March, 1904, the defendant, at Grand Junction, Colo., borrowed from the plaintiff the sum of $50. The defendant gave his demand note for the sum of $80 payable in installments of $13.35 each. The note reads: "On demand after date for value received I promise to pay to the order of myself $13.35 until the amount of $80.10 has been paid in full with interest at per cent. per after maturity." This note was indorsed by the defendant. Then, on the 19th day of May, 1904, the defendant, also at Grand Junction, borrowed from the plaintiff $50 more, and gave another note for the sum of $60 payable on demand with interest at the rate of ten per cent. per month until paid. The plaintiff himself testified that be tween the 20th day of April, 1904, and the 17th day of November, 1904, he received from the defendant the sum of $106.10 in installments, two in the sum of $13.35 each, three in the sum of $18.35 each, and one in the sum of $24.35. Of this amount the plaintiff applied $50 on the principal of the first note, $30.10 "discount" and $26.00 as interest on the second note. Under such an application of the payments the plaintiff received $30.10 interest-he called it discountfor the use of $50 for eight months. Then, between the 17th day of June, 1904, and the 27th day of February, 1909, the plaintiff received other payments from the defendant in the sum of $82 in installments-some $5 each, some $10 each, and some $11 each. These he applied on the second note as part payments of interest on that note. The in terest on the second note, for $60 at 10 per cent. per month from its date, March 19, 1904, until and including the February interest payment of 1909, was $342. Of that amount, as the plaintiff "figured" it, the defendant had only paid the sums of $82 and $26, or a total sum of only $108, leaving a balance of interest unpaid on the second note in the sum of $234. Two months after the interest payment of February, 1909, and after two more interest payments of $6.00 each were due and unpaid, the plaintiff sought the defendant and caused him to give his note, the note sued on, for the sum of $240.00 with interest at the rate of one per cent. per month. Upon these, and no other transactions, was the consideration of this note founded. On this note the defendant, between the 31st day of May and the 23rd day of October, 1909, paid the plaintiff the further sum of $90.00. Upon plaintiff's own testimony it is indisputably shown that the defendant, for the use and upon a loan of $100.00, paid the plaintiff within less than a year after the loan was made, the sum of $157.00 principal and interest, a rate of interest greater than 50 per cent. per annum, and all told paid the plaintiff on account of such loan the sum of $278.10. Yet the court gave plaintiff $171 more upon a basis of a rate of interest of 120 per cent. per annum, up to the time when the last note was made. This, presumably on the theory that a contract is a contract, and that under the law of Colorado, where the two first notes were given, no rate of interest, however great and unconscionable, agreed upon between the parties was there expressly forbidden by any statute. Hence, the court assumed that it was required to take and administer the contract as it found it, and considered that the defendant's remedy, if he had any, was in equity upon proper allegations of fraud or mutual mistake, or other allegations conferring equity jurisdiction and calling for equitable relief. But the leading elements of a contract-the assent, the consideration, the legality of it-may always be inquired into by the law court. The court here found that there was a good and valuable consideration for this note. There was no consideration for it, unless it shall be said that allowing the plaintiff $30 interest for the use of $50 for eight months, 10 per cent. per month, or 120 per cent. per annum, interest on the second loan of $50, an unjust, and unreasonable, and an unconscionable rate-a self-destructive consideration— was a good consideration. Such a consideration, in law, is no consideration for the giving of the note sued on. It is against public policy and good morals to hold otherwise and to countenance such transactions, and to enforce the note founded upon them. This court, heretofore, in a number of cases, in some of them less flagrant than this, in unmistakable terms refused to countenance and to permit the enforcement of such contracts. We think it is about time that these rulings be observed and followed. having strayed that distance from where they Law, Cent. Dig. § 1059; Dec. Dig. § 472.*] their habits may, on a prosecution for theft of cattle, claimed by defendant to have been found at a certain place, testify as to the habits, conduct, and actions of cattle under certain Upon the undisputed evidence and as tes-conditions, to show the improbability of their tified to by the plaintiff himself he received from the defendant for a loan of $100 the sum of $157, principal and interest, in less than one year after the loan was made. That is a rate of interest greater than 50 per cent. per annum. From whatever viewpoint the case may possibly be considered, the payment of that sum certainly discharged all of the defendant's obligations to the plaintiff, unless the plaintiff shall be permitted to stick to the very letter "of his bond," which we will not let him do. Neither in law nor in equity, upon the undisputed evidence adduced by himself, has he any just claim to hold any of the moneys so confessedly received by him from the defendant thereafter. There is Do legal consideration for his having so received it. In law he holds it for the use of the defendant and subject to his demand. He ought both in law and good morals to be made to pay it back on the defendant's de mand. The judgment of this court therefore is that the judgment of the court below be and the same is reversed and vacated, the cause remanded to the lower court with directions to permit the defendant, upon his application, to file a counterclaim in the cause against the plaintiff to recover from him all moneys paid by him to the plaintiff over and above the payment of $157, which is the sum of $121, and upon the evidence already adduced to make findings on the issues presented by the complaint, and the counter claim if one is filed, in favor of the defendant. and to enter a judgment on the counterclaim in favor of the defendant and against the plaintiff in the sum of $121 and costs, and to dismiss the complaint on merits. It is so ordered. Costs of this appeal to appellant. Error in an indictment, in the spelling of "feloniously," with a "b" in place of the "n," not being one which could have misled, amendment may be allowed after the swearing of the jury, without subsequent rearraignment of defendant. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 8 613; Dec. Dig. § 261.*] 2. CRIMINAL LAW (§_472*) — OPINION EVI DENCE HABITS OF CATTLE. Reception of immaterial evidence is not ordinarily ground for reversal. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 88 3137-3143; Dec. Dig. § 1169.*] 4. CRIMINAL LAW (§ 387*)-NEGATIVE EVI DENCE. cattle claimed by the state to have been driven Testimony, on a prosecution for theft of from a distance, and by defendant to have been found near his place, that witness had not seen any cattle of that brand running in the vicinity of where he and defendant lived is competent and material. [Ed. Note. For other cases, see Criminal Law, Dec. Dig. § 387.*] 5. CRIMINAL LAW (§ 472*) - OPINION EVIDENCE HABITS OF ANIMALS. Unbranded calves belonging to K., having been found in defendant's corral, and their mothers outside his pasture, and he having claimed to have found them 12 miles from where they were, on a certain stream, a few days before, and to have put them in the pasture to keep for K., and that they got out twice, so he put the calves in the corral, it was not error to admit the testimony that when sucking calves are taken from their mothers and confined in a corral the mothers will stay in the vicinity thereof; and that if cows with calves are located on water they generally stay in a smaller scope of territory, unless they are moved by somebody. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1059; Dec. Dig. § 472.*] 6. CRIMINAL LAW (§ 829*)—INSTRUCTIONS— REPETITION REFUSAL OF INSTRUCTIONS COVERED BY THOSE GIVEN IS PROPER. Refusal of instructions covered by those given is proper. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.*] 7. LARCENY (§ 55*)-EVIDENCE-SUFFICIENCY. Evidence on a prosecution for larceny of cattle held sufficient to sustain a conviction. [Ed. Note. For other cases, see Larceny, Dec. Dig. § 55.*] Appeal from District Court, Custer County; Sydney Sanner, Judge. R. H. Foley was convicted and denied a new trial, and appeals. Affirmed. Geo. W. Farr, for appellant. Albert J. Galen, Atty. Gen., and W. S. Towner, Asst. Atty. Gen., for the State. SMITH, J. Defendant was convicted of the crime of grand larceny in the district court of Custer county. He appeals from the judgment, and also from an order denying his motion for a new trial. The following is a summary of the testiUnder Rev. Codes, § 7887, making compe-mony: Frank Van testified for the state: tent one's opinion of a question of science, art, "Defendant was at my place on the 8th day or trade, when he is skilled therein, persons qualifying as having knowledge of cattle and of November, 1909. He asked me if I knew •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes some of his cattle, and I told him I knew of 1 steer about the mouth of Little Whitney creek, where it runs into the main Whitney creek. He started in that direction. At the time I saw his steer on Whitney creek, there were 20 or 30 of Kempton's cattle in the bunch. I noticed 4 cows with unbranded calves; 3 of the calves were red and 1 was black. The black calf was following a black COW. They go about 5 or 6 miles around there where they used to run on Whitney creek. I had seen them 3 times before that on Whitney creek, about a week before Foley went up there. I have paid some attention to the habits of cattle. I have been raising them for 10 years. A young steer will stray over more territory mostly than a cow with a calf; cows with calves ranging on water will run over a small territory. I saw these 4 cows running on Whitney creek the day before defendant was at my place. I saw them again on the 11th down around Foley's ranch and the fence; they were the same bunch I saw on Whitney creek. They had no calves with them when I saw them at Foley's fence. I went back with Harrison and Rhode the next morning, and we found these 4 cows at the same place. We took them to Foley's house, and turned the calves out to the cows, and I saw them suck. They were the same cows and calves that I saw on Whitney creek. Those cows and calves would have to cross the Milwaukee Railroad to get to Foley's ranch. They would have to go about 2 miles around to cross; they couldn't go straight. The Cabin creek brakes are about 4 miles from Foley's place. I never saw these 4 cows up in that country; never saw any of the Kempton cattle up in that country. Foley's is about 12 miles from Whitney creek. The cattle looked gaunted up." of the node brand of Kempton's cattle in the vicinity where I and defendant live for the last year or two." Rhode testified: "On November 12th or 13th, Harrison, Van, and I went to defendant's ranch. We found some calves in a corral, and saw some cows in the pasture and some that were out; 4 head outside belonged to Kempton. They did not have any calves with them. We drove them down to the corral, and 4 out of 9 calves went to sucking the cows. We found these 4 cows about a mile from the house. There were 40 or 50 head of cows in the pasture. Harrison told defendant that he had some calves in the corral that didn't belong to him, and he said he knew he had. He said he had some of Kempton's cattle in there, and that he figured on notifying Kempton. He said he put them in there to keep the cows from drifting until he could notify Kempton. He told us he got them on the cedar brakes on Cabin creek." Johnson testified that in November, or along the latter part of October, he saw three unbranded calves of Kempton's at the forks of Big Whitney creek and Little Whitney creek; one of the mothers was a black muley cow. Aronson gave similar testimony. The defendant Foley testified that in September, 1909, he met Asa Kempton, when the Kempton outfit was shipping cattle, and told him "if he saw any of my cattle down there, to hold them for me, and I would hold his, if I found them on my range; and he said, 'All right.' I was to hold his cattle on Pine creek, and he mine on Whitney and Fallon creeks." After his conversation with Van, he went to Whitney creek and brought one steer home. The next day he rode to the Cabin creek brakes and found four of Kempton's cattle with unbranded calves and took them home with him to hold them for Kempton, believing that he had authority from Asa Kempton. He took them to his Harrison testified: "Rhode and Van went with me to the defendant's ranch on November 13th. We found 4 of Kempton's cows three or four hundred yards below Foley's pasture; took them up to the house and turn-ranch, and put them in the pasture but they ed them into a corral with 9 calves. Four of the calves went to the cows and sucked them. The calves were not branded; there was 1 black calf went to the black cow, and 2 freckled-faced calves and 1 deep red. The cows were outside of the fence when we saw them. I saw the defendant, and he said he had authority to gather these cows and calves, and that he got them on the head of Cabin creek brakes. He said the Kemptons had given him authority. The Cabin creek brakes are 5 to 8 miles east of Foley's. The junction of Whitney and Little Whitney creeks is between 12 and 15 miles from defendant's ranch. I would judge it to be between 22 and 25 miles from Cabin creek to where Little Whitney flows into Whitney creek." Fisher testified: "Defendant lives about 2 miles from me. I have never seen any got out twice, so he put the calves in the corral. The next morning he "wrote Kempton a letter, notifying him that I had some of his cattle, but never had time to mail it. It stormed that day, and I didn't go to town, and I thought I would wait until the next day, but about 6 or 7 o'clock in the morning Harrison came." He told Harrison that the cattle belonged to Kempton, and that he attempted to notify Kempton. Deckert, his brother-in-law, Pat Foley, his brother, and Pat's wife, and Mr. Folk were present when the letter was written. A letter was introduced in evidence. Folk testified that when defendant brought the cows and calves home he said they belonged to Kempton, and that he was going to put them in the corral and keep them for him. He saw the cattle a number of times during the 12th, but did not know that they got out of the pasture, if they did get out. I was, in effect, decided adversely to the deHe saw Foley write a letter on the 12th. fendant's contention in the case of State v. Foley intended to mail the letter that day, Keeland, 39 Mont. 506, 104 Pac. 513. but it was storming, and he did not go to town. [3, 4] 3. It is contended that the court erred in permitting the witness Fisher to answer whether he had seen any cattle of the node brand running in the vicinity where he and the defendant lived, for the reason that Pat Foley testified that defendant said the Cows and calves belonged to Kempton. He saw the cows in the pasture "only the day he put them back in again." Witness saw the matter was immaterial. The reception the letter to Kempton. Mrs. Pat Foley's of immaterial testimony is not ordinarily testimony was in substance the same as that ground for reversal of a cause. But we of her husband. think this testimony, while negative in character was competent and material. Bruhns testified that he heard the conversation between defendant and Asa Kempton [5] 4. The witness J. B. Kempton was allowsubstantially as narrated by the defendant. ed to testify, over objection, that when suckDeckert testified that defendant said the ing calves are taken from their mothers and calves in the corral belonged to Kempton. confined in a corral the mothers will stay He also testified to seeing defendant write in the vicinity of the corral. We find no erthe letter; witness read the letter. ror in the action of the court in admitting Asa Kempton denied that he ever had any this testimony. The witness was also allowsuch conversation or agreement with defend-ed to testify, and properly we think, that if ant as that testified to by him and Bruhns. cows with calves are located on water they He said he was not acquainted with defend- generally stay "in a smaller scope of territoant and did not know his cattle brand; nel- ry, unless they are moved by somebody." ther did he know where his cattle ranged. [1] 1. The information upon which the defendant was arraigned charged that he did "felobiously steal." etc. At the beginning of the trial, after the jury had been sworn, the state asked leave to amend by inserting the letter "n" in place of the letter "b." Over defendant's objection, the amendment was allowed. There was no error in this ruling. "Felobiously," as written, was evidently a clerical or typist's error. The let ter "b" was inadvertently written in place of the letter "n." It was a mere error in spelling. No one could have been misled thereby. It was not necessary to rearraign the defendant after the amendment was made. State v. Lu Sing, 34 Mont. 31, 85 Pac. 521. [2] 2. Complaint is made that the state was permitted, over objection, to inquire of witnesses as to the habits, conduct, and actions of cattle under certain conditions. We find no error in the rulings. The witnesses bad qualified as men having knowledge of cattle and their habits. Defendant had said, and afterwards testified, that he got the cattle between the Cabin creek brakes and Riley's spring, while the theory of the state was that they were the same cattle that three witnesses had seen on Whitney creek, several miles distant. It was proper for the state to prove, if it could, the improbability of cattle straying to that distance from the place where they were seen but a few days prior thereto. A man unfamiliar with the habits of cattle might not be able to determine how far they will wander. Therefore it was entirely proper to elicit the information from those who understood their habits in that regard.. The opinion of a witness respecting a question of science, art, or trade, when he is skilled therein, is competent evi [6] 5. Error is assigned upon the refusal of the court to give three certain instructions, to the effect (1) that it devolved upon the state to prove, beyond a reasonable doubt, that defendant took, stole, and carried away the calves described in the information, with intent to convert them permanently to his own use; and (2) if the jury found that when he first took the calves into his possession he did not intend to steal them he would not be guilty of larceny. The court refused to give the instructions, for the reason that the substance thereof had been covered by other instructions. We think the court was correct. The jurors were charged that, before a conviction could be had, they must find, beyond a reasonable doubt, (a) that there was in fact a larceny committed; (b) that the property taken was the precise property described in the information; (c) that such taking was felonious—that is, with intent to steal; (d) that the defendant willfully accomplished such taking; (e) that the property taken belonged to the Kempton Land & Live Stock Company, as charged; and (f) that the defendant was presumed to be innocent until proven guilty beyond a reasonable doubt. The court also charged the jury that, unless the defendant at the time he took the animals did in fact then intend to steal the same, he could not be convicted, even though he may thereafter have formed an intent to steal or appropriate the same to his own use. We think these instructions fully covered the matter. [7] 6. After reading the evidence, we have no doubt of its sufficiency to justify the verdict. The judgment and order are affirmed. BRANTLY, C. J., and HOLLOWAY, J., |