(dissenting). — The title-head of section 288 of Mr. Hayne’s able work on New Trial and Appeal is: “ Where there is a substantial conflict in the evidence the Supreme Court *274will not disturb the decision of the court below.” And such has been the doctrine of this court since early in its organization. (Lincoln v. Rodgers, 1 Mont. 217; Travis v. McCormick, 1 Mont. 347; Davis v. Blume, 1 Mont. 463; Toombs v. Hornbuckle, 1 Mont. 286; Ming v. Truett, 1 Mont. 322; Kinna v. Horn, 1 Mont. 597; Orr v. Haskell, 2 Mont. 225; Knox v. Gerhauser, 3 Mont. 267; Story v. Black, 5 Mont. 26; 51 Am. Rep. 37; Beck v. Beck, 6 Mont. 285; Frank v. Murray, 7 Mont. 11; Chauvin v. Valiton, 7 Mont. 581; Kilby v. Baker, 9 Mont. 398; Landsman v. Thompson, 9 Mont. 182; Cunningham v. Quirk, 10 Mont. 462.)
The author above quoted, after stating the rule, and commenting upon the California cases, goes on to remark: “ That the reason of the rule is as stated by the learned justices above quoted admits of little doubt; and it is easily seen that this reason does not require the court to respect a verdict or decision in support of which the testimony, though direct and positive, is grossly improbable, or open to the gravest suspicion on other grounds. Such considerations may outweigh the advantage which the jury had of seeing the witnesses and observing the manner of their testifying.....But, whatever may be its precise application and limitation, the rule itself is, as above stated, as well settled as anything can be.....As above stated, where there is no substantial conflict in the testimony upon any material point, and the verdict or finding is against the evidence upon such point, it will be set aside by the Supreme Court. This is upon the presumption that the witness told the truth. But this presumption may be rebutted by the improbability of what is testified to, or by contradictions in the testimony. This was clearly stated by Baldwin, J., in Blankman v. Vallejo, 15 Cal. 645,” cited in the opinion of the majority of the court in this case, and also in Landsman v. Thompson, 9 Mont. 182. The California court said: “We do not understand that the credulity of the court must necessarily correspond with the vigor and positiveness with which a witness swears. A court may reject the most positive testimony, though the witness be not discredited by direct testimony impeaching him or contradicting his statements. The inherent improbability of a statement may deny to it all claims to credibility.”
*275The appellant, in the case at bar, seeks to apply the principle last referred to. He subscribes to the general rule stated by Mr. Hayne from the authorities, but argues that the improbability of plaintiff’s statements, and the contradictions therein, are so great that they destroy the whole force of his testimony, and rob it of all weight.
The opinion of the majority of the court recites the evidence in full, so far as it appears in the record, and holds that this case falls within the exception to the rule above stated. But is the testimony of plaintiff “grossly improbable?” Is it “open to the gravest suspicions?” Is there “no substantial conflict in the testimony on the material points?” I shall examine the evidence somewhat in detail, in order to satisfy my mind upon this point.
Were plaintiff’s statements inconsistent and contradictory to such an extent that they must be disregarded? First, he testified directly as to the employment by defendant, the promise to pay, and the rendition of the services. Again, on cross-examination, he says that Goughnour told him that he had not much for him to do, and that Myron Goughnour & Co. (a concern, as we understand the record, separate from defendant) would pay him for any extra work he did. Appellant contends that this is a contradiction which destroys the credit of plaintiff’s testimony. For all that appears, it may well be that takiug care of the personal property on the island, and the island itself, and watching to see whether any one trespassed upon the island, was not “ much to do,” but defendant was the person to determine whether he needed such services, and, if he desired them performed, they may, for all that appears, have been very important and valuable to him, although they did not require much time for their performance. It cannot be held that the value of any service depends wholly upon the time required for its rendition. That defendant should bargain for a certain service, requiring, perhaps, but little time, and then be willing that his employee should do extra work for some one else, providing that it did not interfere with the labor he was to render his regular employer, does not occur to me as such an unusual and peculiar condition that the statement of its existence should brand the testimony of the witness with contradiction and *276inconsistency, so that we should conclude that the District Court had abused its discretion in refusing the new trial.
Again, is the inherent improbability of plaintiff’s testimony so great as to tax credulity? This inquiry may be answered upon the same considerations as advanced in the last paragraph. The plaintiff was the custodian of personal property on the island, and a watchman upon the island, not only of the personal property, but of the island as well. He was instructed to inform his employer if any one put up a shack on the island. It does not appear that the value of the personal property was trifling, or that it was a matter of small moment to the defendant if some one came upon the island, and seemed to initiate the appearance of taking possession of the ground. It can readily be conceived that such a matter was of the highest importance to defendant. It does not appear that it was not. It does not appear that it was so insignificant that it must be concluded that it was inherently improbable that defendant would employ a man at $30 per month for the service described.
Now, wherein is the “gross improbability” of plaintiff’s position? Wherein is “it open to the gravest suspicion?”
It is said that the testimony of plaintiff that he was employed, and that the testimony of Owen as to Goughnour’s admission that plaintiff was employed by him, are contradicted by the defendant. That is true, but plaintiff and Owen are not impeached. Their testimony, for all that appears, is as good as Goughnour’s. There is here certainly a conflict of evidence, and with a preponderance, at least in number of unimpeached witnesses, in favor of plaintiff and the verdict.
Again, it is said that plaintiff knew that the island and the personal property were the assets of the firm of Myron Goughnour & Co., and that defendant had no personal interest in the business. Plaintiff says that the cattle, which he had taken care of before his employment under the alleged contract in controversy, belonged to Myron Goughnour & Co. Defendant says that this was the fact, but defendant does not say that he told the plaintiff so, or that plaintiff knew it. Therefore, it does not appear, as far as I am able to discover, that plaintiff knew that defendant had no interest, personal or as a trustee, in the island, or the personal property thereon, subsequent to October 25,1888.
*277And it is far from being admitted by the evidence that defendant had no such interest. Whether he did or not was a disputed question of fact, according to the evidence, and it was disputed in this manner: Defendant, on his part, testified directly that he had no such interest. I am of opinion that, if a man employs another at $30 per month to take care of a rake, plow, and machinery, and to watch an island, and to give information if any one starts a building on the island, such acts are evidence that such employer has an interest in such property; and in this case those acts were testified to by plaintiff. It is contrary to my observation of humanity that a man will spend his money for an object in which he has no interest. I speak of this evidence at this point only as evidence that defendant did have an interest in the personal property and the island. It has been assumed that there was no evidence of such interest. Therefore, it is not an uncontroverted fact in the case, as I am enabled to view it, that defendant had no interest in the property. It comes to this: Defendant testified that he had no interest. Plaintiff testified to facts which, in the ordinary course of human nature, were evidence that he had an interest. Proof of acts is stronger than asseveration. That is what this conflict was. If defendant says one thing, and his acts are shown which prove another, his conduct is more convincing than his words. Of course, he denies this alleged conduct on his part. But that simply brings us back to a conflict in the evidence, a conflict between unimpeached witnesses, a conflict which the jury resolved in favor of plaintiff.
On the ground that it is admitted that defendant had no interest in the personal property and the island, the majority of the court concludes that there was no way in which plaintiff’s services could be of any benefit to defendant, and that, under those circumstances, no one would agree to pay another $30 per month; and that, therefore, plaintiff’s contention is improbable and unreasonable. But, as I have above observed, it is not admitted that defendant had no interest. It is disputed, and the ground upon which the majority base their con•clusion I cannot discover to exist.
Again, the improbability of plaintiff’s claim is found by the majority of the court in the fact, as stated, that during the em*278ployment plaintiff did not speak to defendant respecting the labor, and that their conduct is contrary to the experience of men; that it is necessary and proper that directions concerning the labor should be given by the employer, and that the servant should report from time to time touching his duties; and that such business of vital importance was never a topic of conversation, inquiry, or consultation between the parties. In these facts is found the inherent improbability of plaintiff’s claim. Let us see. What was plaintiff to do ? To take care of some inanimate personal property, an island in the river, and to report if any one commenced building on the island. What was there for the employer to give directions about? What was there for the employee to report? What were the vital matters demanding consultation? It is not as if there were varying duties for the servant. It is not as if the property were live stock, as to which the owner would desire to give orders, and receive reports as to their care, their increase, or their death or straying away, or their branding at the proper season. When the employer once gave his directions to take care of the machinery and the island, and to advise him if any one put a shack thereon, there was nothing more to be said by him, or reported by the employee, as long as the personal property remained uninjured, the island stayed in the river, and no one trespassed thereon. And, for all that appears, affairs remained in this condition. I can discover in these facts no “ gross improbability,” nothing that taxes my credulity, that I should set aside a verdict of a jury, on an appeal from an order declining to disturb it.
Again, the unreasonableness and improbability of plaintiff’s claim is found in the fact, as the majority of the court view the case, that defendant never recognized by any act the contract under which plaintiff claims; that he never paid anything on it; and, although the complaint alleges a payment of $171 on the contract, the plaintiff did not testify that the defendant had paid him any amount on the contract.
The record does not purport to contain all the evidence produced on the trial, and it therefore does not appear that plaintiff did not testify to this allegation in the complaint.
The complaint contains two counts. The first is for 291-months’ labor at $30 per month, amounting to $885. Partial *279payment is alleged of $171. The balance claimed .as due is $714, which is the gross amount, less the payment. The second count is upon a due-bill for $266.
The jury found that there was due on the due-bill $11.86, which the majority opinion observes is a finding that $254.14 had been paid thereon.
The jury did not find a lump verdict as to the two counts. Here are their words: “We, the jury, find for the plaintiff in the sum of $714 on the first count, and in the sum of $11.86 on the second count.”
What did that verdict mean as to the first count? Adopting the reasoning of the majority opinion as applied to the verdict on the second count, then, as to the first count, when the jury found an amount — $714 — equal to the total claimed by plaintiff, less the credits admitted and alleged by him, it was a finding that the credits existed, or, in other words, that the payments had been made; and, if such payments had been made on account of the contract, it was very substantial evidence in support of the verdict. But I do not adopt that reasoning or propose that argument. I only suggest it as being on the same lines as that of the majority opinion, by which that opinion concludes, from the verdict, that whatever payments were made were made on the due-bill and not on the contract. There is as much in the record to satisfy one that the jury found by their verdict that defendant had made payments on the contract, as that he had made them on the due-bill, and the one conclusion may be as legitimately drawn as the other.
But for what does this count, in any event? Admit, for the purposes of the decision, that it does not appear that any payments were made by defendant on the contract. Must we find that the existence of a contract of employment is improbable and unreasonable because the employee has not been paid anything on account of his labor? If that be good, it suggests a very simple defense to actions. But, of course, one can conceive of circumstances where, if no payments had been made an employee for a long period like twenty-nine and one-half months, a presumption might be suggested that he was not employed. But such circumstances are not here found. The plaintiff seems to have been a man of simple tastes and wants. He was living *280alone, most of the time, on an island, away from the allurements and expenses of a city. He had shelter, bed, and a pony. He boarded himself. His expenses were manifestly nominal. He went to Goughnour for $10 when he needed it. For all that appears, Goughnour was solvent, and able to pay. Nothing appears but that Goughnour was a safe custodian of plaintiff’s balance of wages, until such time as plaintiff needed them. As long as plaintifffs present wants were supplied, as it appears that they were, was it a strange thing that he should leave his wages to accumulate with his employer'? Is that contrary to the experience of men? Is it such an improbable, unreasonable, incredible state of affairs that this court must say that this cannot, in the nature of things, be true? I think not. The conditions seem to me quite natural.
I think that there can be no difference of opinion between the majority of the court and myself as to the rule, upon a review of a verdict claimed to be unsupported by the evidence, and as to the exception to the rule the doctrine is too well established. The only difficulty is that we cannot agree upon the application of the facts in this case. An analysis of them satisfies me that the case does not fall within the exception. I find a substantial conflict in the evidence between unimpeached witnesses. When I look for any “gross improbability” in plaintiff’s claim or testimony, I fail to find it. It is not, to my mind, “ open to the gravest suspicion.” The construction of the facts by the majority of the court seems to me to tread too closely upon the province of the jury, and to trench upon the doctrine of the heretofore adjudicated cases in this court.
I am of opinion that the order denying the motion for a new trial should be affirmed.