Volume 16 — Idaho Reports

Honorable Ed. L. Bryan, Judge of the Seventh Judicial District, Presiding. Original proceedings for writ of mandate to compel the appellant to deliver certain water to respondent. Judgment for respondent. The delivery of water cannot be required by mandamus .unless the plaintiff clearly shows that the defendant has the water to make the delivery. Both our constitution and statutes require that the canal owner shall respect the rights of prior users of water.

Hon. Fremont Wood, Judge. Appeal from a judgment and order of tbe district court reversing an order of the board of commissioners of Ada county, refusing the payment of a bill for services rendered jurors. The compensation of jurors is purely statutory.

Hon. Fremont Wood, Judge. Action to recover an interest in certain town lots in Boise City. Judgment for defendants. The facts as agreed upon show that the defendants and their grantors and predecessors in interest were guilty of fraud, which is termed and designated in equity “constructive fraud.” In all such cases of purchase with notice courts of equity will hold t'he purchaser a trustee for the benefit of the person whose rights he has thus sought to defraud or defeat.

Hon. Ed. L. Bryan, Judge. Action of plaintiff for damages for breach of covenants of a deed of warranty. Judgment for plaintiff and defendant appealed. In an action for a breach of the covenant of warranty, or quiet enjoyment where there has been a total loss of the land to the grantee, the measure of damages in the absence of fraud is the consideration money paid, with interest.

Hon. Ed. L. Bryan, Judge. Action by plaintiff for a writ of mandate.

An original proceeding in tbis court for a recommendatory judgment. There is no question but what the judgment of the district court against the trustees of the Albion State Normal school, though invalid, was a judgment against the state of Idaho.

Hon. Fremont Wood, Judge. An action in which attachment and garnishee process is issued. Judgment for defendant. The courts have frequently held that the garnishee may be In default for answer within the time provided; yet under such circumstances the garnishee is entitled to the relief usually allowed where a party is in default for pleading. (9 Eney. of Law, 830; Talladega Merc.

Hon. Ed. L. Bryan, Judge. Action to recover damages for the killing of a colt. Judgment for the plaintiff. Where defendant’s engineer testifies that he used all possible diligence, and is not contradicted or impeached, a verdict for the plaintiff will not stand. (C. B. & Q. Co. v. Roberts, 35 Colo. 498, 84 Pac. 68; Kansas City etc. Ry. Co. v. King, 66 Ark. 439, 51 S. W. 319; Ala. & V. Ry. v. Stacy (Miss.), 35 So. 137; Southern Ry.

Original application for a writ of prohibition. The taking of the possession of property pending the action is a “taking” within the meaning of sec. 14, art. 1 of the constitution. . (Authorities cited in opinion.) Under the above provision of the constitution, compensation must be paid before a “taking” is authorized.

Hon. Fremont Wood, Judge. Action by the plaintiff for the specific performance of an executory contract for the sale of real estate. Judgment for defendant and plaintiff appealed. “An agreement for the sale of lands, under the statute of frauds, will be held sufficient, as to its description of the land to be conveyed, if it so discloses a particular piece or tract of land that it can be identified, located or found.

• APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Fremont Wood, Judge. Action in ejectment to recover for the city a portion of Idaho street.

<p>APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Ed. L. Bryan, presiding Judge.</p> <p>Action to recover on a contract for the rental of water. Judgment for the defendant.</p> <p>“The element of coercion being essential, a mere protest or notice will not change the character of the payment or confer of itself a right of recovery.” (Harvey v. Girard Nat. Bank, 119 Pa. 212, 13 Atl. 202.) The rule is that if the demand is illegal, and the party can save himself and his property in no other way, he may pay under protest and recover back. But if other means are open to him — if a day in court is accorded to him — he must resort to such means. (De La Cuesta v. Im. Co., 136 Pa. 62, 658, 20 Atl. 505, 9 L. R. A. 631.) Where contractual relations existed, and one of the parties thereto refused to perform unless a new contract was entered into, such new contract would not be void for duress. (Domenico v. Alaska Packers’ Assn., 112 Fed. 554.)</p> <p>“Duress as between parties occupying no relation of confidence or of control by reason of position, employment or undue influence, can rarely be imputed, without showing some degree of fear, or threats involving in some degree a species of fraud.” (Eadie v. Slimmon, 26 N. Y. 9, 82 Am. Dec. 395.) “The settlement of an honest controversy between two parties is a good and sufficient consideration to support a contract of settlement.” (Galuska v. Sherman, 105 Wis. 263, 81 N. W. 495, 47 L. R. A. 420.)</p> <p>The facts alleged are sufficient, if proved, to constitute a case of duress, which is recognized by the courts, and de-' fendant was not required under the circumstances to appeal to the courts for redress at the times the contracts were executed. (9 Cye. 450.) A contract thus exacted is not freely and fairly entered into. (Atchison, T. & 8. F. Go. v. Dill, 48 Kan. 210, 29 Pac. 148; Westlake & Button v. St. Louis, 77 Mo. 47, 46 Am. Rep. 4; Galusha v. Sherman, 105 Wis. 263, 81 N. W. 495, 47 L. R. A. 417; Fargusson v. Wmslow, 34 Minn. 384, 25 N. W. 942, and cases cited.) “Payments or concessions exacted from the owner of property unlawfully withheld, in order to. obtain possession thereof, where the detention is accompanied by immediate hardship or irreparable injury, may be avoided on the ground of compulsion, although not amounting to technical duress.” (Weber v. Kirkendall, 44 Neb. 766, 63 N. W. 35; Joannin v. Ogilvie, 49 Minn. 564, 32 Am. St. 581, 52 N. W. 217, 16 L. R. A. 376; 30 Cyc. 1311.)</p>

Hon. William W. Woods, Judge. Action for debt. Judgment for plaintiffs. Appeal to district court. Motion to dismiss on grounds that appeal was not perfected in time and that undertaking was void. Motion sustained and judgment' of dismissal entered.

Hon. William W. Woods, Judge. Action to recover balance due for certain weighing scales. Motion of plaintiff for judgment on the pleadings denied and judgment entered for defendant. Where a party does business with a corporation in its corporate name, and the contract is executed, so far as the corporation is concerned, he is estopped from denying the incorporation of the company. (First Gong. Church v. Grand Rapids School Fum. Co., 15 Colo.

Hon. Edgar C. Steele, Judge. Action by the plaintiff against defendant for debt. Attachment issued. Eliza J. Runkel, claimant of the property attached, asked leave to intervene. Application denied, from which she appeals.

<p>APPEAL from tbe District Court of the Second Judicial District, in and for the County of Nez Perce. Hon. Edgar C. Steele, Judge.</p> <p>Claims against the estate of a deceased person. This appeal is taken from a judgment of the district court dismissing an appeal from the probate to the district court.</p> <p>The Idaho statutes on administration were taken from California and the supreme court of California, in Be Estate of Schroeder, 46 Cal. 305, stated (July, 1873): “Our probate system is derived mainly from Texas, and in most respects is identical with it. (Eülebrant v. Burton, 17 Tex. 138.)”</p> <p>“We have repeatedly decided that the approval of a claim by the probate court, after it was allowed by the executor of administrator, is a quasi judgment, which cannot, at a subsequent term, be set aside by the probate court.” (Moore v. Hillebramt, 14 Tex. 312, 65 Am. Dec. 118, and cases cited; Estate of McKinley, 49 Cal. 152.)</p> <p>The indorsement by the probate judge hardly rises above an act of administration, or above the act of the administrator in indorsing his allowance. These acts, while of a discretionary nature, are administrative, acts not different from the acts of auditors and auditing boards of private and municipal corporations and states and counties. When such bodies and persons act their action is final, and they have no power to vacate it or reject it. It is considered, therefore, that the parties should not be put to a bootless trial or rehearing before a tribunal whose rehearing would not result in a determination that would settle some of the issues or that would be any more binding than the original determination. Such rejection would burden intolerably the method of realizing on such claims. (2 Am. & Eng. Eney. of Law, 2d ed., 1004; Hitchcock v. Genessee Probate Judge, 99 Mich. 128, 57 N. W. 1097; In re Hudson, 63 Cal. 454.)</p> <p>The action of indorsing allowances on the claims is not an action of the probate court, but of the judge thereof only, and he, as such judge only, acting in vacation, is not the court of record and of general jurisdiction referred to in our constitution. He is an instrument of that court. When these claims are required to be passed upon on hearing of an account in which they are listed, the statute requires that the hearing be held in term time of the court, and by the court and not by the judge. The final hearing cannot be had before the judge, upon the validity of these claims, but must be had before the tribunal in term time. This distinction has been applied to various inferior officers and tribunals. (State v. Case, 14 Mont. 520, 37 Pae. 97; Corthell v. Mead, 19 Colo. 386, 35 Pac. 741; Weimmer v. Sutherland, 74 Cal. 341, 15 Pac. 849; Simon v. Justice’s Court, 127 Cal. 45, 59 Pac. 296.)</p> <p>On the hearing of appeals from the probate court the hearing in the district court is confined to the issues made in the probate court; new issues cannot be made in the district court. (In re Estate of McVay, 14 Ida. 69, 93 Pac. 31.)</p> <p>It has been uniformly held that an appeal from an order of the court of the character of those before us cannot be sustained unless the orders are specifically enumerated in the statute. (In re Kelly’s Estate, 31 Mont. 356, 78 Pac. 579, 79 Pac. 244; In re Wallcerly’s Estate, 94 Cal. 352, 29 Pae. 719; In re Tuohy’s Estate, 23 Mont. 305, 58 Pae. 722; In re Kelly’s Estate, 31 Mont. 356, 78 Pac. 579, 79 Pac. 244.) The right of appeal is statutory and unknown to the common law. It cannot be extended in cases not within the statute. (General Custer Min. Co. v. Van Camp, 2 Ida. 40, 3 Pae. 22; Pierson v. State Board of Land Com., 14 Ida. 159, 93 Pac. 775.)</p> <p>While these claims had been allowed and ranked as the acknowledged debts of the estate, still they have not been finally adjudicated, and could not be ordered paid until thé final settlement of the estate when, if still ranking as acknowledged debts of the estate, the court should order them paid, and upon refusal thereof the claimant would have the right to appeal therefrom to the district court under subd. 7 of sec. 4831, which is evidently directly responsive to'sec. 5610 in such cases. (In re McDougald’s Estate, 143 Cal. 476, 77 Pae. 444; In re Williams’ Estate (Cal.), 32 Pac. 241.)</p> <p>The orders from which these appeals were attempted to be made from the probate court to the district court are not among those enumerated in sec. 4831, which embraces all the orders from which an appeal may be taken to the district court from the probate court. (In re Kelly’s Estate, rnpra; In re Barber’s Estate, 26 Mont. 279, 67 Pae. 941; In re Cahill’s Estate, 142 Cal. 628, 76 Pae. 383; In re Wittmeier’s Estate, 118 Cal. 255, 50 Pac. 393; In re Estate of Lutz, Sr., 67 Cal. 457, 8 Pae. 39; In re Williams’ Estate (Cal.), 32 Pac. 241; In re Walberly’s Estate, 94 Cal. 352, 29 Pae. 719.)</p> <p>The only appeal that can be made is from the order settling the account, and no appeal lies from the order vacating the allowance of the claims, although it be held that the contest is a part of the proceeding in settlement of the account. {Horn v. Volcano. Water Co., 18 Cal. 141; Estate of Paige, 12 Ida. 410, 86 Pac. 273.) The order made on April 4, 1908, was' a final order settling the account of the administrator, from which an appeal might have been taken, notwithstanding the fact that these contested claims, although held to be a part of the account, were expressely reserved therein for future action. {Thompson v. Dean, 7 Wall. 342, 19 L. ed. 94; Forgay v. Conrad, 6 How. 204, 12 L. ed. 404.) If these allowed claims.were a part of the administrator’s account, they were merely incidental thereto, and an independent appeal cannot be taken from the order vacating their allowance, but in order to have them reviewed by the appellate court, the appeal must be taken from the order settling the account. {Hutchinson v. Otis, Wilcox & Co., 190 U. S. 556, 23 Sup. Ct. 778, 47 L. ed. 1179.)</p> <p>Separate appeals cannot be taken from the different orders in settling an account pertaining to the claims against .an estate, either by the administrator or by the claimants, but only one appeal may be taken, and that must be from the order settling the account. {Matter of Maxwell, 26 N. Y. Supp. 216.)</p> <p>Every creditor and every heir of this estate has a right to contest these claims, and should this contest, made by these heirs who are not all of the heirs in this estate, be treated as a part of the settlement of the account of this administrator, then the creditors and these other heirs would be deprived of their right to contest these claims, without any hearing, or their day in court, since the settlement of the account is final against them. (Sec. 5602, Rev. Codes.) And they were not made parties to the contest proceeding and had no legal notice of it. {Babcock v. Maxwell, 21 Mont. 507, 54 Pac. 943 ; 18 Cyc. 1190, and eases cited under note 80.)</p>

Hon. Alfred Budge, Judge. Action by the plaintiff to quiet his title to certain water rights and privileges, and to enjoin and restrain the defendant from levying and collecting certain assessments against his lands, and to recover assessments paid under protest. Judgment for the defendant and plaintiff appeals.

Original application for a writ of mandate. A vacancy may exist when an office is created and no one has been appointed to fill it, and an existing office without an incumbent is vacant, whether it be a new or an old one. {People v. Opel, 188 111. 194, 58 N. E. 996; In re Collins, 16 Misc.

Hon. William W. Woods, Judge. Proceeding to dissolve attachment. Application denied. If the words of the affidavit are in substantial compliance with the terms of the statute, that will be sufficient, but where language other than that of the statute is used in the affidavit, it should be clear and substantially equivalent to that used by the statute. (3 Eney.

<p>An original proceeding in this court for a writ of mandate.</p> <p>A decision made by a court in the regular course of the consideration of a case is not to be regarded as dictum merely because the case might have been disposed of on a different ground, or because there is some other point in the case which disposes of the whole controversy. (Florida B. B. Go. v. ■Schutte, 103 U. S. 118, 26 L. ed. 327; Kane v. McGown, 55 Mo. 181; Clark v. Thomas, 51 Tenn. 419, 421.)</p> <p>The legislature, subsequent to the decision in McBee v. Brady, 15 Ida. 761, 100 Pac. 97, passed Senate Joint Resolu-.. tion No. 6, which proposed the resubmission to the people at the nest general election of the question whether art. 18, see. 6, of the constitution should be so amended as to authorize the assessors to employ clerical assistance. Thus it appears that the decision of this court in the McBee ease has been acquiesced in and acted upon by the legislature, a co-ordinate department of the state government. This fact, we contend, invokes the application of the doctrine of stare decisis. (Fisher v. Horicon Iron Mfg. Go., 10 Wis. 351.)</p>

Hon. Edgar C. Steele, Judge. Action to vacate and set aside judgments rendered against a corporation and to annul the election of directors and president, and for an accounting by the secretary. Judgment for defendants. Plaintiffs appeal. In a clear case of hypothecation, the pledgor may vote. (Ex parte Willcochs, 7 Cow. 402, 17 Am. Dec. 525; State ex rel. Reed v. Smith, 15 Or. 98, 14 Pac. 814, 15 Pac. 137, 386; Bretuster v. Hartley, 37 Cal. 15, 99 Am.

Hon. William W. W'oods, Judge. Action by plaintiff to enjoin and restrain defendant from maintaining a boom in Coeur d’Alene Lake, along the shore line and immediately in front of her property. Judgment for plaintiff and defendant appealed. Appellant would have a right to the use of the waters in front of the land of respondent for useful or beneficial purposes, so long as the use by obstruction merely impairs or renders more difficult the navigation, without destroying it.

Hon. William W. Woods, Judge. Action in assumpsit by a trustee in bankruptcy for the amount received by the defendant from the wrongful sale of property of the bankrupt estate. Judgment for plaintiff and defendant appealed. If it is claimed this action is brought under sec. 67, subd.

<p>APPEAL from the District Court of the Second Judicial District, for Nez Perce County. Hon. Edgar C. Steele, Judge.</p> <p>Action to recover on a claim against the estate of a deceased person which had been presented to and rejected by the administrator. Judgment for the plaintiff.</p> <p>The “proper court” mentioned in see. 5468 is the probate court and not the district court; the district court has no original jurisdiction of claims presented to an administrator of an estate of a deceased person for payment, but the probate court has exclusive original jurisdiction in such matters. (Clark v. Bossier, 10 Ida. 348, 78 Pac. 358; Abrams v. White, 11 Ida. 497, 83 Pac. 602; In re McVay’s. Estate, 14 Ida. 56, 93 Pac. 28.)</p> <p>It is conclusively determined in the McVay case that the district court has no original jurisdiction of any probate matters, although they may involve equitable rights.' (See, also, Clark v. Peck, 79 Vt. 275, 65 Atl. 14.)</p> <p>The question of jurisdiction of the- district court is expressly decided against appellant’s contention in the case of Bradwell v. Wilson, 158 111. 346, 42 N. E. 145. The constitutional provisions of Illinois in regard to probate jurisdiction are the same almost verbatim as those of the state of • Idaho.</p> <p>The following authorities seem from their citations to hold the same doctrine as announced in the Illinois case: Greene v. Bay, 1 Dem. (N. Y.) 45, 50; Tucker v. Tucker, 4 Keyes, 136; Bowie v. Ghiselin, 30 Md. 553; Horner’s Prohate Laws (111.) 1881, sec. 201, citing Rosenthal v. Magee, 41 111. 370; Wells v. Miller, 45 111. 33; Judy v. Kelley, 11 111. 211, 50 Am. Dec. 455.</p>

Hon. W. W. Woods, Judge. An action to establish the plaintiff’s right as a stockholder in the defendant corporation. Judgment for defendant. Plaintiff appeals. The only state constitution which has a provision concerning the liability of stockholders exactly like that of Idaho is that of Missouri, as amended in 1870.

<p>Verdict of Jury — Sufficiency of Evidence — Power of Officers of Corporation to Contract — Payment for Goods Sold — Relevancy of Matters Plead — Motion to Strike.</p> <p>1. Under tbe provisions of see. 4824, Rev. Stat., as amended by Laws of 1907, p. 483, the verdict of a jury will not be set aside where there is substantial evidence to support such verdict.</p> <p>2. Béld, evidence in this case examined and held to support the verdict.</p> <p>3. The vice-president of a corporation, acting as president and general manager of such corporation, has authority to sell the stoek in trade of such corporation in the ordinary course of business of such corporation, and to receive and to accept in payment therefor cash, or accounts against any other person.</p> <p>4. Where a corporation, through its vice-president, acting as president and general manager, submits a bid for furnishing the manufactured articles of sueh corporation, and a contract is awarded to such bidder in excess of a bid submitted by another bidder, with the understanding and agreement made between the purchaser and the vice-president of such corporation, that sueh bid will be accepted, on condition that the corporation accept as part payment-therefor an account held by the purchaser against the president of said corporation, and such contract is fulfilled by furnishing the goods so sold and partial payment is received therefor, such corporation cannot question the authority of such vice-president to make such contract, in a suit to recover the balance due after such partial payment has been made.</p> <p>5. Where there is no limitation upon the power of a vice-president of a corporation, acting as president and general manager, in the by-laws or articles of incorporation of said company, the court will presume that such officer has authority to dispose of the articles manufactured by said corporation in the ordinary course of trade, and accept in payment therefor cash or an account against an officer of said corporation held, by the purchaser.</p> <p>6. The power of the vice-president and general manager to sell the stock in trade of a corporation implies the power to accept payment therefor, and the power to sell and accept payment implies the power to determine the nature and character of such payment.</p> <p>7. Where the vice-president, acting as president and general manager of a business corporation, makes sales of the stock in trade of such corporation, in the ordinary course of business,. such corporation will not be permitted to escape a liability upon the contract made by such officer making sueh a sale, upon the ground that the same was made without the knowledge or concurrence of said corporation.</p> <p>8. Where the vice-president, acting as president and general manager of a corporation, deems it to the advantage of such corporation, in order to sell its manufactured goods, that an account due from the president to the purchaser of sueh goods shall be accepted as part payment for the purchase price of said goods, sueh officer will be presumed to have authority to make the same.</p> <p>9. An affirmative defense is not insufficient because it does not allege an agreement in writing to pay the debt of another, where the facts plead as a defense are not plead for the purpose of showing an agreement to answer for the debt or default of another.</p> <p>10. The subject matter of a plea is not sbam, irrelevant or redundant because it states the facts more in detail than required under the statute to constitute a cause of action or defense.</p> <p>11. Where some parts of the matter attempted to be stricken out from a pleading upon the ground that the same is sham, redundant and irrelevant, are intermingled with facts which are relevant and proper, it is not error to overrule said motion, as it is necessary to separate, in the motion, the particular parts claimed to be sham, irrelevant and redundant from those which are relevant and proper.</p> <p>(Syllabus by the court.)</p>

Hon. Edgar C. Steele, Judge. Action by the plaintiff for damages occasioned by trespass on real estate.

Hon. W. W. Woods, Judge. An action to recover damages for the killing of plaintiff’s minor child. Judgment for plaintiff. Defendant appeals. The duty of a traveler in approaching and attempting to cross a railroad crossing is to stop, look and listen. And if his duty is omitted the traveler is guilty of negligence per se, and the court is bound to instruct the jury as a matter of law that a verdict be returned in favor of the defendant company.

<p>APPEAL from the District Court of the Fourth Judicial District, for Blaine County. Hon. E. A. Walters, Judge.</p> <p>Prosecution for misdemeanor. Judgment for the defendant and the state appeals.</p> <p>We believe Toncray v. Budge} 14 Ida. 621, 95 Pae. 26, t5 be decisive of the question as to the power of district courts to hear and determine misdemeanors of all grades, but we cite a few additional authorities to show that the jurisdiction of the district courts and of the courts of justices of the peace is concurrent in this class of misdemeanors. Sec. 8, art. 1 of the first constitution of the state of California provided that no persons could be held to answer for a capital or otherwise infamous crime (except in cases of impeachment, and in cases of petit larceny, under the regulation of the legislature) unless on presentment or indictment of a grand jury. This section and sec. 682 of the Penal Code were construed in Ex parte McCarthy, 53 Cal. 412. Also see Green v. Sup. Court, 78 Cal. 55'6, 21 Pac. 309; Ex parte Dolan, 128 Cal. 460, 60 Pac. 1095; State v. Considine, 16 Wash. 358, 47 Pac. 756; In re Carillo, 66 Cal. 3, 4 Pae. 695; 11 Cye. 982-985; 12 Cyc. 199; People v. Maxon, 1 Ida. 330; People v. Du Bell, 1 Ida. 44.</p> <p>Misdemeanors of petty grades are punishable in justices’ courts without indictment. (People v. Maxon, 1 Ida. 338.) A justice of the peace has no authority to decline to try a misdemeanor and bind the accused over to circuit court for trial. Even though such court has concurrent jurisdiction, it is the justice’s duty to try the case. (1 Bishop’s Crim. Proc., sec. 32; Thomm v. State, 35 Ark. 327; Brown v. State, 105 Ala. 117, 16 So. 929; State v. Sargent, 71 Minn. 28, 73 N. W. 626; Darling v. Hubhell, 9 Conn. 350; Ex parte Donnelly, 30 Kan. 191, 1 Pac. 648.)</p>

<p>Original application for a writ of mandate to compel the state engineer to issue to tbe plaintiff a certificate certifying that the works of the plaintiff power company have been completed as required by law.</p> <p>Inasmuch as this petitioner does not divert nor propose to divert any water from the natural bed- of the stream, does not rent, sell or distribute the same, and does' not and cannot interfere with the right of any person who, either heretofore has diverted and appropriated, or who may hereafter divert and appropriate, any of said waters, but only to enjoy the incidental and usufructuary benefits thereof, as they flow over its own land, the permit of the state engineer is a superfluity, and if he takes a fee he gives nothing in return.</p> <p>The state had no occasion, neither did it undertake, by this act, to interfere with the incidental use which this petitioner seeks to make of the running waters of Snake river as they pass over its land. Petitioner has the most undoubted right to a power privilege, which “consists of the difference of level between the surface where the stream first touches his land and the surface where it leaves it.” (Angelí on "Watercourses, 7th ed., sec. 95, and cases there cited.)</p> <p>If a person against whom a mandamus is prayed is invested with judicial power, or acts in a deliberative capacity, or has the power and right of deciding, the writ will not lie except to compel him to proceed to the discharge of his duty by deciding according to the best of his judgment. {Ex parte Shaucties, 66 Ala. 134; Towle v. State, 3 Fla. 202.) Plaintiff has a plain, speedy and adequate remedy at law if the state engineer has wrongfully refused to grant license. (See. 3265, Rev. Codes.)</p>

Hon. Fremont Wood, Judge. An action to establish plaintiff’s right to the use of water under a contract made with the defendant. Judgment establishing such right. Both plaintiff and defendant appeal.

Hon. Ed. L. Bryan, Judge. Application to the probate court by the step-grandfather of two minor children for the appointment of himself as guardian of such children, to which application the father of the children enters a protest and applies to be himself appointed. Judgment in favor of the- grandfather.

Hon. Edward A. Walters, Judge. An action to foreclose a mechanic’s and materialman’s lien. Judgment for defendant. Plaintiff appeals. That “insufficiency in evidence to justify judgment”; that “judgment is against the evidence”; that “judgment is against law,” — are not grounds on which a new trial can be granted. (Sec. 4439, Rev. Codes, 1909; Curtis v. Walling, 2 Ida. 416, 18 Pac. 54; Martin v. Matfield, 49 Cal. 42.)

<p>APPEAL from the District Court of the Sixth Judicial District, for Biugham County. Hon. J. M. Stevens, Judge.</p> <p>An action to recover attorney’s fees. Judgment for plaintiff in the probate eourt. Appeal to the district court. Judgment of probate court affirmed, from which judgment defendant appeals.</p> <p>The demurrer and motion being on file at the time respondent applied for judgment, we were not in default, and under such conditions no judgment could properly be entered. (Hestres v. Clements, 21 Cal. 425; 23 Cyc. 750, 751; Mitchell v. Campbell (Or.), 13 Pac. 190; McMurtry v. State, 26 N. W. 915; Tregambo v. Mining Co., .57 Cal. 501; Oliphant v. Whitney, 84 Cal. 25; Warford v. Temple (Ky.), 73 S. W. 1023; Knaebel v. Slaughter (N. M.), 35 Pac. 198; Railroad Co. v. Nicholls (Colo.), 6 Pac. 512;' Chivington v. Col. Springs (Colo.), 14 Pac. 212.) A judgment so entered is premature, and should be reversed. (Hestres v. Clements, supra; Steele v. Moss, supra; Tregambo v. Mining Co., supra.)</p>

Hon.( Fremont Wood, Judge. Action by plaintiff to recover a balance on contract for sale of goods. Judgment for the defendant and plaintiff appeals.

Hon. J. M. Stevens, Judge. An action by the plaintiff to enjoin and restrain defendants from shutting off and interfering with the flow of the stream at Watson slough, in Bingham county. Judgment for plaintiff and defendants appeal.

<p>APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Fremont Wood, Judge.</p> <p>An action to recover debt. Judgment for plaintiff. Defendant appeals.</p> <p>“When from the entire evidence different minds might honestly reach different conclusions as to the sale and acceptance of the property claimed to have been sold, the sale and acceptance are questions for the jury, and their verdict will not be disturbed.” {Coffin v. Bradbury, 3 Ida. 770, '95 Am. St. 37, 35 Pac. 715; Rapple v. Hughes, 10 Ida. 338, 77 Pae. 722; O’Fwrrell v. McClure, 5 Kan. App. 880, 47 Pac. 160.)</p> <p>What was the intention of the parties is a question for the jury, to be determined under proper instructions from the court. (24 Am. & Eng. Enc. Law, 2d ed., 1047, 1048; Hatch v. Standard Oil Co., 100 U. S. 131, 25 L. ed. 554; Hathaway v. East Tenn. R. Co., 29 Fed. 489; McClung v. Kelley, 21 .Iowa, 508; Cay wood v. Timmons, 31 Kan. 394, 2 Pac. 566; Dyer v. Libby, 61 Me. 45; Wigton v. Bowley, 130 Mass. 254; Blodgett v. Hovey, 91 Mich. 571, 52 N. W. 149; Lobdell v. Horton, 71 Mich. 681, 40 N. W. 28; Glass v. Gelvin, 80 Mo. 297; Kelsea v. Haines, 41 N. H. 253; Kent Iron etc. Co. v. Norbeck, 150 Pa. 559, 24 Atl. 737; Hood v. Bloch, 29 W. Va. 244, 11 S. E. 910.)</p> <p>The court below took the whole case from the jury, and instructed the jury that there was no sale, and that the property- and the whole thereof remained the property -of the defendant, and wholly at his risk. This was certainly error. (Holley v. St. Louis B. S. & Cole By. Co., 34 Mo.' App. 202; Wabash, St. L. & P. By. Co. v. Shryock, 9 111. App. 323; Graff v. Finch, 58 111. 379, 11 Am. Rep. 85; Prowers v. Noveles, 42 Colo. 442, 94 Pac. 347.)</p> <p>Delivery under a contract of sale is not necessary to pass the title to personal property, as between the parties. (Webster v. Granger, 78 111. 230; Newcomb v. Cabell, 73 Ky. (10 Bush) 460; Kling v. Fries, 33 Mich. 275; Frazier v. Fredericks, 24 N. J. L. 162; Olyphant v. Baker, 5 Denio, 379; Hooben v. Bidwell, 16 Ohio, 509, 47 Am. Dec. 386; 43 Cent. Dig. 727; 24 Am. & Eng. Enc. Law, 2d ed., 1068; Benjamin on Sales, 6th Am. ed., secs. 674, 675.)</p> <p>“If the seller has done all that is required of him, and the buyer, through neglect and carelessness, allows the goods to remain in the seller’s hands, the seller is absolved from all liability for injury resulting therefrom.” (Wood v. Tassell, 6 Q. B. 234, 51 Eng. Com. L. 234; 24 Am. & Eng. Ene. Law, 2d ed., 1051; Sweeney v. Owsley, 53 Ky. (14 B. Mon.) 413.)</p> <p>Where the buyer of merchandise refused to accept the delivery, the seller wishing to affirm the sale, and recover the price, must show that he tendered the delivery of the chattels at the time and place stipulated in the agreement. (Benton v. Bidault, 6 La. Ann. 30; McIntyre v. Kline, 30 Miss. 361, 64 Am. Dee. 163; Blunter v. Wetsell, 84 N. Y. 549, 38 Am. Rep. 544; Mackie v. Egan, 6 Misc. Rep. 95, 26 N. Y. Supp. 13.) A seller of personal property may, upon the purchaser’s wrongfully refusing to receive it on due tender thereof, set it aside for the purchaser, and maintain an action for the full purchase price. (Crown Vinegar & Spice Co..v. Wehrs, 59 Mo. App. 493.)</p> <p>“When the agreement for sale is of a thing not specified, as of an article to manufacture or of a certain quantity of goods in general, without a specific identification of them or an ‘appropriation’ of them to the contract, as it is technically termed, the contract is an executory agreement and the property does not pass.” (Benjamin on Sales, see. 462; Mechem on Sales, secs. 721, 723; 21 Am. & Eng. Enc. of Law, 1054; McLaughlin v. Piatti, 27 Cal. 451; Garuthers v. McGarvcy, 41 Cal. 16.)</p> <p>“When the vendor has not transferred to the buyer the property in the goods which are the subject of the contract, .... as where the agreement is for the sale of goods not specific, or of specific goods which are not in a deliverable state, or which are to be weighed or measured before delivery, his only action against the buyer is for damages for nonacceptance.” (Benjamin on Sales, see. 1117; Mechera on Sales, see. 1689.)</p> <p>The only possible question for consideration, and which will determine whether or not the instructions of the court were correct, is the question of whether or not there was a subsequent appropriation that would pass the title to the hay. (Benjamin on Sales, secs. 488, 489; Mechem on Sales, see. 729.)</p>

<p>APPEAL from tbe District Court of tbe Third Judicial District, for Ada County. Hon. Fremont Wood, Judge.</p> <p>An action in claim and delivery. Defendant demurred. Demurrer sustained. Judgment of dismissal. Plaintiff appeals.</p> <p>A mortgagee to whom delivery of tbe mortgaged goods has been made can maintain an action in claim and delivery for tbe wrongful taking by a third party. (O’Neill v. Whit-comb, 3 Ida. 624, 32 Pac. 1133; First Nat. Bank v. Steers, 9 Ida. 519, 108 Am. St. 174, 75 Pac. 225; Cunningham v. Stoner, 10 Ida. 549, 79 Pac. 228.) The recording act is a substitute for possession, and by implication permits the mortgagor to dispose of the goods, providing an accounting be made to the mortgagee. (Rev. Codes, sec. 3408; Lewiston Nat. Bank v. Martin, 2 Ida. 734, 23 Pac. 920; Wells, Fargo & Co. v. Alturas Com. Co., 6 Ida. 506, 56 Pae. 165.)</p> <p>Taking possession is not the acceptance of a preference, but the assertion of a previously acquired right. (Moiuer v. McCarthy, 79 Yt. 142, 118 Am. St. 942, 64 Atl. 578, 7 L. R. A., N. S., 418; Burill v. Whitcomb, 100 Me. 286, 109 Am. St. 498, 61 Atl. 678, 1 L. .R. A., N. S., 451; Thompson v. Fairbanks, 196 U. S. 516, 25 Sup. Ct. 306, 49 L. ed. 577.) Taking possession of the property by the mortgagee will cure any minor defects, and make. his rights superior to any acquired by the subsequent levy of creditors. (Ryan v. Rogers, 14 Ida. 309, 94 Pae. 427; Garrison v. Street & Harper etc. Co. (Okla.), 97 Pac. 978; Cameron v. Marvin, 26 Kan. 612; Gagnon v. Brown, 47 Kan. 83, 27 Pae. 104; Ridgely v. First Nat. Bank, 75 Fed. 808; 1 Cobbey on Chattel Mortgages, 498; Dayton v. Savings Bank, 23 Kan. 421; Nash v. Norment, 5 Mo. App. 545; Frank v. Miner, 50 Til. 444.)</p> <p>“Possession of a stock of merchandise by the mortgagor, with power to sell and retail the same, without requiring the proceeds to be applied to the payment of the debt due the mortgagee, is void as to attaching creditors of the mortgagor.” (Lewiston National Bank v. Martin, 2 Ida. 734, 23 Pac. 920; Ryan v. Rogers, 14 Ida. 309, at p. 318, 94 Pac. 427; Hammond on Chattel Mortgages,, p. 168; Place v. Langworthy, 13 Wis. 629, at 633, 80 Ám. Dec. 758; Blakeslee v. Rossman, 43 Wis. 118.)</p> <p>The allegation of possession of the stock of merchandise by the appellant does not cure the defect in the mortgage. Appellant either took the alleged possession, by virtue of and under authority of the mortgage, or as an independent transaction. If as an independent transaction, it was a transfer for credit of the entire business or trade of the mortgagor without notice to creditors, and was clearly void. (Rev. Codes, sec. 332-335; Sampson v. Brandon Grocery Go., 127 Ga. 454, 56 S. E. 488, construing statute identical with ours.)</p> <p>“If the mortgagee took immediate and actual possession of the property in the absence of any contract concurrent or subsequent to the mortgage, conferring any greater authority than that contained in the mortgage, he cannot claim by virtue of such possession, because the covenants of the mortgage show that he was not entitled to such possession. Under such a mortgage the mortgagee cannot claim the right of possession as against the sheriff who has attached the property as that of the mortgagor.” (Meyer v. Gorham, 5 Cal. 322.)</p>

Hon. George H. Stewart, Judge. Action by plaintiff to have the rights and priorities of the several appropriators of water from Boise… Held: after reviewing its former decisions and the provisions of our statute in regard to new trials, that it was the appellant’s duty to have the statement settled in a reasonable time in the manner provided by statute, and, in the absence of a showing, fully explain the long delay in having a motion for a new trial heard and determined…

<p>APPEAL from the District Court of the Seventh Judicial District, for the County of Washington. Hon. Ed. L. Bryan, Judge.</p> <p>Action by plaintiff in ejectment and to quiet its title to certain real estate. Judgment for defendant and plaintiff moved to vacate and set aside the judgment. Motion granted and judgment vacated and set aside, and a new trial granted.</p> <p>No proceedings by an administrator can pass title to land which has not been proved up on. (Sec. 2296, U. S. Rev. Stat.; Chapman v. Price, 32 Kan. 446, 4 Pae. 807; Baldwin v. Boyd, 18 Neb. 444, 25 N. W. 580; Jean v. Dee, 5 Wash. 580, 32 Pac. 460; Towner v. Rodegeb, 33 Wash. 153, 99 Am. St. 936, 74 Pac. 50; Dawson v. Mayall, 45 Minn. 408, 48 N. W. 12; Rogers v. Clemmons, 26 Kan. 522; Wittenbroch v. Wheadon, 128 Cal. 150, 79 Am. St. 32, 60 Pae. 664; Gjerstadengen v. Van Duzen, 7 N. D. 612, 66 Am. St. 679, 76 N. W. 233; Hall v. Russell, 101 U. S. 503, 25 L. ed. 829; De Mars v. Hickey, 13 Wyo. 37Í, 80 Pae. 521.</p> <p>The neglect of an attorney to plead a proper and valid defense, whereby a judgment is erroneously obtained against the client, furnishes no ground for relief against the judgment. {Donovcm v. Miller, 12 Ida. 600, 88 Pac. 82, 9 L. E. A., N. S., 524.)</p> <p>An agreement of counsel in reference to proceedings in a cause will not be set aside on petition by reason of mistake, when the only evidence adduced in support of the petition is the affidavit of the moving party, based on hearsay, and the facts therein alleged are denied by the affidavit of the adverse party from personal knowledge. {Charles v. Miller, 36 Ala. 141; Johnson v. Wright, 19 G-a. 509; Van Horn v. B. C. & N. By. Go., 69 Iowa, 239, 28 N. W. 541; Con. Steel & Wire Co. v. Burnham, 8 Okl. 514, 58 Pac. 654.) If there had been any mistake, neglect or surprise, the plaintiff is now barred by its own laches from any relief in this action. {McMurran v. Meek, 47 Minn. 245, 49 N. W. 983; 23 Cyc. 909; Clark v. Parry, 17 Colo. 56, 28 Pae. 329; Knauler v. Watson, 50 Kan. 702, 32 Pac. 349; Coast Land Co. v. Oregon Pac. Col. Co., 44 Or. 483, 75 Pac. 884; Ellis v. Bonner, 7 Tex. Civ. App. 539, 27 S. W. 687; McClymond v. Hollé, 84 Minn. 329, 87 Am. St. 354, 87 N. W. 838.)</p> <p>The law gives a court a right to vacate a judgment only where it has been entered against a party through his mistake, inadvertence, surprise or excusable neglect, and it is necessary for a party moving to vacate a judgment to show that the same occurred through mistake, inadvertence or excusable neglect. {Beck v. Lanin, 15 Ida. 363, 97 Pac. 1028;. Holzeman & Co. n. Hennelerry, 11 Ida. 428, 83 Pae. 499; Western Loan Co. etc. n. Smith, 12 Ida. 94, 85 Pac. 1084.)</p> <p>The determination of the trial court in the exercise of its discretion will not be disturbed on appeal unless there is an abuse of such discretion. {Hollamd Bank v. Lieuallen, 6 Ida. 127, 53 Pac. 398.) And before it will be disturbed it must affirmatively appear that such court erred. {Hastings n. Cunningham, 35 Cal. 550'; Holland Bank n. Lieuallen, supra; Twin Spgs. Placer Co. v. Upper Boise H. Go., 6 Ida. 687, 59 Pac. 535; Eolzemam, v. Eenneberry, 111 Ida. 428, 83 Pac. 497; Bailey v. Taajfe, 29 Cal. 422; Western Loan Co. v. Smith, 12 Ida. 94, 85 Pac. 1084.)</p> <p>“If the newly discovered evidence brings to light some new fact bearing upon the main question, and it would be likely to change the result, a new trial should be granted.” (.Flannagan v. Newberg, 1 Ida. 78.) The court has power to relieve a party from the facts of a stipulation which admits a fact which is not true. (Richardson v. Musser, 54 Cal. 196; Ward v. Clay, 82 Cal. 502, 23 Pac. 50, 227; Welsh v. Noyes, 10 Colo. 133, 14 Pac. 317; Beaumont Pasture Co. v. Preston, 65 Tex. 448; Ish v. Crane, 13 Ohio St. 580; 20 Enc. PI. & Pr. 662.)</p>

Hon. Alfred Budge, Judge. Action in probate court for debt. Judgment for plaintiff by default. Defendant appealed to the district court, where the judgment was affirmed, from which judgment defendant appealed to this court.

Hon. J. M. Stevens, Judge. Action to recover for damages resulting from the taking ■by the game warden from the appellant of forty-nine elk scalps and one antelope scalp. Judgment for the defendant. Our statute gives the game warden no authority to confiscate the plaintiff’s property.

Hon. J. M. Stevens, Judge. An action to quiet title. Judgment for plaintiff. Defendants appeal. This agreement was entered into prior to patent, — in fact prior to entry, — and it contemplated mutual advantage to the various possessory claimants by stipulating that conveyances should be executed after patent. Under the eonditions in this case, snch an agreement is not forbidden by or against the policy of the law.

Hon. Ed. L. Bryan, Judge. An action to enjoin and restrain the defendant irrigation district ■ from collecting an annual tax levy made by said district. Judgment for plaintiff. Being within the district, the question of whether or not ■the lands would be benefited by irrigation, and were capable of irrigation from a common source, and the same system of works, was submitted to the board of county commissioners under the law.

Hon. Edward L. Bryan, Judge. An action by the sheriff to recover money expended in payment of guards to guard a prisoner while under arrest. Defendant demurred. Demurrer sustained and judgment of dismissal entered. Plaintiff appeals. “Public officers have not only the powers expressly conferred upon them by law, but they also possess by necessary implication such powers as are requisite to enable them to discharge the official duties devolved upon them.” (23 Am. & Eng. Ency.

Lion. Edward A. Walters, Judge. Action to have holder of legal title to land declared trustee. Demurrer to complaint sustained. The statute makes the cultivation of one-sixteenth part of the land within one year after notice mandatory and the same could not be excused by the state land board or any of its agents. (Lewis’ Sutherland Stat.

Hon. J. M. Stevens, Judge. Action by minority stockholders of the Taylor & Goshen Canal Company to collect a debt due their corporation from the Idaho Canal and Improvement Company, Ltd. Judgment for plaintiffs for use and benefit of Taylor & Goshen Company. Both defendant corporations appeal.

Hon. Fremont Wood, Judge. Action by an administratrix to recover for alleged damages sustained by reason of the falling of a flag-pole and injuring the plaintiff’s intestate so that he died.

Hon William W. Woods, Judge. Action to recover damages for a breach of promise to marry. Judgment for the plaintiff. When Hahn v. Kelly, 34 Cal. 391, 94 Am. Held: since an amendment, that those papers are a part of the judgement roll. {Kahn v. Matthai, 115 Cal. 689, 47 Pac. 698; Savings. Brnik v. Goodsell, 137 Cal. 420, 70 Pae. 299; Parson v. Weis, 144 Cal. 410, 77 Pae. 1007.) If from the record it appears that the court had. not jurisdiction, its action is void.

Hon. Edward A. Walters, Judge. Appeal from a judgment affirming the action of a board of county commissioners in allowing the claim of a water-master for his services. While this court has held in.

Hon. Ed. L. Bryan, Judge. Action to recover on a promissory note. Judgment by nonsuit for defendants. Craig was the proper party plaintiff, because by the assignment he became the “holder” of the note, and was authorized to sue by statute, sec. 3508.. (Smith v. Bayer, 46 Or. 143, 114 Am.

Original proceedings in this court for writ of prohibition. Demurrer and motion filed to the petition. Said act assumes to confer judicial functions upon an administrative officer in violation of see. 2, art. 5, of the constitution, in that the state engineer is empowered to hear, try and determine a question involving the right of private property and to enter an order depriving the owner or claimant thereof.

Hon. Alfred Budge, Judge. Action against the maker and indorsers of a promissory note ifor the balance due thereon. Judgment for plaintiff and the indorsers appealed. Notice to the indorsers is absolutely necessary to charge them, otherwise they are discharged. (Sess. Laws 1903, p. 395, sec. 89; Rockfield v. First Nat. Bank, 77 Ohio St. 311, 83 N. E. 392, 14 L. R. A., N. S., 842, 847, and notes appended.) And there is no question but what these defendants are indorsers.

Original application in this court for writ of habeas corpus. Demurrer to the petition.

Original action praying for a writ of review to review the action of the Hon. Alfred Budge, Judge of the fifth judicial district, in appointing a receiver.

Hon. Edward A. Walters, Judge. Action to recover damages for alleged failure to comply with a contract concerning the sale of real estate. Judgment for plaintiff. When a person acts and contracts avowedly as the agent of another, who is known as the principal, his acts and contracts, within the scope of his authority, are considered the acts and contracts of the principal, and involve no personal liability on the part of the agent. (1 Am. & Eng.

Hon. Fremont Wood, Judge. An action to contest the election to the office of county superintendent of schools. Judgment for contestant. Contestee appeals. Sec. 5026, and those sections following it, providing for. the institution and conduct of contests of election, belong to the law of procedure solely, and cannot be construed as prescribing disqualifications of persons to hold office.

Hon. Ed. L. Bryan, Judge. Action by the plaintiff for damages caused by defendant company running over and killing plaintiff's intestate husband. Judgment for the plaintiff and defendant appealed.