concurring. — I concur in the decision and in the opinion. Furthermore, I take this opportunity to say that, in so far as this decision, and also the decisions in Sankey v. St. Mary’s Female Academy, supra, and Palmer v. Israel, 13 Mont. 209, are inconsistent with some of the expressions occurring in Heaney v. Butte & M. C. Co., 10 Mont. 590, the Heaney case must be modified in these respects. That *236case was briefed and argued on one side only, and the court was careful to say that the case was decided on its own peculiar facts. I am not even now prepared to say that the particular facts of that case did not justify the result of the decision; but I do fully concede that the language of the opinion, in any of its implications contrary to the three cases which I have above named, must be, as I have said, modified to conform to the doctrine of said three cases.