Volume 38 — Idaho Reports

lion. O. R. Baum, Judge. Motion to dismiss appeal. An agreement to waive all rights of appeal is held to prevent the appellate court from hearing such cause. (2 Page on the Law of Contracts, sec. 720, p. 1239; 3 C. J. 660, Appeal and. Error, see. 533; Curry v. Bacilar ach Quality Shops, 271 Pa. 236, 114 Atl. 818, 117 Atl. 435; Boyd v. Crary, 35 Ind. 363; Miller v. Machlet, 13 Ind. 217; 20 Ency. PI. & Pr. 636, 637; 2 Ency.

Petition for writ of habeas corpus. The term “sabotage” as used in the Idaho criminal syndicalism law is restricted to such meaning or meanings only as constitute unlawful acts, viz., damage or destruction of property. The rule “noscitur a sociis” requires such construction.

<p>Petition for writ of habeas corpus.</p>

Hon. Raymond L. Givens, Judge. Agreed case as to proper penalty for delinquent irrigation district assessments. This ease is governed by C. S., see. 4390, relating to irrigation districts, originally enacted in 1903, and reenacted as part of the Compiled Statutes in 1919.

<p>Constitutional Daw — Municipal CORPORATIONS — Power to Define Boundaries — Detachment of Lands from Municipality — Legislative and Judicial Functions — Delegation of Powers — Judicial Discretion.</p> <p>1. The power to establish municipal corporations and to enlarge and contract their boundaries is legislative.</p> <p>2. It is a judicial function to hear a cause pending between adverse parties, to apply the law to the facts, and to make and render a judgment determining the rights of the parties.</p> <p>3. Upon the finding by the court of the existence of the facts required by the statute for the detachment of agricultural lands from a municipality, the law makes it the duty of the court to render judgment detaching the lands.</p> <p>4. A statute, directing the district court to render judgment detaching agricultural lands from a municipality upon the ascertainment by the court of the existence of the facts specified in the statute to be found before the judgment can be rendered, does not constitute a grant of legislative power to the court.</p> <p>5. Article 4, chapter 169, title 32, of the Compiled Statutes, providing that upon the ascertainment of the existence of the facts therein mentioned, the district court shall render judgment detaching agricultural lands from a municipality, vests the court with no other discretion than to determine the existence of the facts, and does not constitute a delegation of a legislative power to a judicial officer.</p> <p>6. A judgment of the district court detaching land from a municipality will be reversed where the evidence is not sufficient ' to establish the existence of all the facts required by the statute to exist in order to justify the rendition of the judgment.</p>

<p>APPEAL from tbe District Court of tbe Eleventh Judicial District, for Cassia County. Hon. T. Bailey Lee, Judge.</p> <p>Action in unlawful detainer. Judgment for plaintiff.</p> <p>"Where the evidence discloses part performance by all the parties to the agreement, it removes the bar of the statute of frauds, and may be enforced in a court of equity. (Deeds v. Stephens, 8 Ida. 514, 69 Pae. 534; Ferguson v. Blood, 152 Fed. 98, 82 C. C. A. 482; Armstrong v. Henderson, 16 Ida. 566, 102 Pac. 361; Idaho Fruit & L. Go. v. Great Western Electric etc. Go., 18 Ida. 1, 107 Pac. 989; Smith v. Stanfield, 29 Ida. 192, 158 Pac. 239, C. S., see. 7975; Fleming v. Baker, 12 Ida. 346, 85 Pac. 1092; Francis v. Green, 7 Ida. 668, 65 Pac. 362; Barton v. Dunlap, 8 Ida 82, 66 Pac. 832.)</p> <p>Where one of the parties has fully executed his part of the contract, the memorandum does not need to be signed by both parties, and, in fact, under our statute, no written memorandum is then required. (Houser v. Hobart, 22 Ida. 735, 127 Pac. 997, 43 L. R. A., N. S., 410; Luckhart v. Ogden, 30 Cal. 548'.)</p> <p>Tenants who enter into possession under a void lease become tenants from year to year from the time of their entry. (Goudert v. Cohn, 118 N. Y. 309, 16 Am. St. 761, 23 N. E. 298, 7 L. R. A. 69.)</p> <p>That the plaintiff had knowledge of said lease, and had thereafter received and accepted the benefits of such lease,, would constitute estoppel. (16 Cyc. 787; Byer v. Oesting, 119 Cal. 564, 51 Pac. 857; Fremont County v. Warner, 7 Ida. 367, 63 Pac. 106.)</p> <p>Agreement on essential facts is binding contract for lease though formal contract is still to be prepared. (Levin v. Saroff, 54 Cal. App. 285, 201 Pac. 961.)</p> <p>“It is essential to the creation of a valid lease that it contain a definite agreement as to the extent and boundary of the property leased; a definite and agreed term; a definite and agreed price of rental and the time and manner of payment.” (Levin v. Saroff, 54 Cal. App. 285, 201 Pac. 961; Jones on Landlord and Tenant, p. 170, see. 137A; Cochrane v. Justice Min. Co., 16 Colo. 415, 26 Pac. 780; Boston Clothing Co. v. Solberg, 28 Wash. 262, 68 Pac. 715.)</p> <p>A memorandum signed by an owner agreeing to lease his premises held too uncertain to constitute a contract. (Wine-baugh v. Gay, 27 Cal. App. 603, 150 Pac. 1003; Dillingham v. Dahlgren, 52 Cal. App. 322, 198 Pac. 832.)</p> <p>Defendant’s exhibit No. 2 did not constitute a valid contract for a lease between the defendant and Butler, for there were mutual covenants to be performed by each party and the same was not signed by the defendant Jacobs, and there is no mutuality between the parties. (Houser v. Hobart, 22 Ida. 735, 127 Pac. 997, 43 L. R. A., N. S., 410; Kerr v. Finch, 25 Ida. 32, 135 Pac. 1165; Seder v. Grand Lodge, 35 Ida. 277, 206 Pac. 1052.)</p> <p>It was too indefinite and uncertain to constitute a valid contract, taking the same out of the statute of frauds. (Gault v. Stormont, 51 Mich. 636, 17 N. W. 214; Ebert v. Cullen, 165 Mich. 75, 130 N. W. 185, 33 L. R. A., N. S., 84.)</p> <p>“A contract that is incomplete, uncertain or indefinite in its material terms will not be specifically enforced in equity.” (Pomeroy’s Eq. Remedies, 4th ed., sec. 764; Los Angeles etc. Co-operative Assn. v. Phillips, 56 Cal. 539; Klein v. Markarian, 175 Cal. 37, 165 Pae. 346.)</p>