Opinion of the Court-Bonham, C. J. ing the work. To hold otherwise would be to say that plaintiffs, without any fault of theirs, should lose one half of the price of their labor as agreed upon. (Hale v. Trout, 35 Cal. 229.) It was urged by counsel for appellant that it would not be just to allow plaintiffs to recover the same price for the first one hundred yards of the tunnel as for the second and third one hundred yards, for the reason that the construction of the first one hundred yards would be less difficult and expensive than the second and third. It is an answer to this that there was no issue made by the pleadings as to the relative cost of the different parts of the tunnel; the contract makes no distinction in this respect, and the court we think could not make any. The second and third instructions refused by the court are as follows: 2. "By the terms of that contract, upon the completion of the first one hundred feet of the tunnel, but one half of the price became due, to wit, three hundred and thirty-three dollars and thirty-three cents." 3. "The remainder of the price for said one hundred feet did not and cannot become due until the first cargo of coal can be shipped." In view of the conclusion already arrived at as to the just measure of damages in a case like this, the correctness of the court in refusing to give the last two instructions we think is sufficiently apparent. Other instructions, embraced in the bill of exceptions, requested to be given by counsel for appellant and refused by the court, we do not deem it necessary to take time to here set forth or refer to further than to say that we think they come clearly within the purview of the rules by which those already enumerated were properly refused. The following instruction was given by the court, to which counsel for appellant excepted, and which is assigned as error, to wit: "There has been something said by counsel in this argument about the form of the action in this case. Under our statute, the distinction heretofore existing between forms of Opinion of the Court-Bonham, C. J. actions at law is abolished, and all that is required is that the complaint shall contain a plain and concise statement of the facts constituting the plaintiff's cause of action; and in this case, if you believe from the evidence that the plaintiffs complied with the contract mentioned in the pleadings in running the first one hundred feet of the tunnel, and that the defendant first violated the contract so as to render it impossible for the plaintiffs to comply with it in further prosecuting the work, then they have a right to recover in this action for the value of the work they have done, and that value must be ascertained from the evidence." The concluding portion of this instruction we think was technically incorrect, for the reason that this is not an action by plaintiffs to recover the value of their services rendered, as upon a quantum meruit, but is an action to recover the price agreed to be paid by the terms of the contract between the parties. It does not appear from the bill of exceptions that there was any testimony given at the trial as to the reasonable value of the services of plaintiffs, and it was not necessary, under the pleadings, that any should have been given to entitle them to recover, if the jury found that the contract was broken by the defendant. The court might properly have said to the jury, "If you find from the evidence that the terms of the contract, set up in the complaint, were violated by defendant on its part, so as to prevent plaintiffs from going on and completing the tunnel in question, then you will find for the plaintiffs in the sum of four hundred and forty-six dollars and sixty-six cents, as claimed by them." The jury must have found that the contract was broken by defendant in order to have found for the plaintiffs in any sum; and as they only returned a verdict for four hundred and forty-six dollars and sixty-six cents, the error complained of could not have operated to the prejudice of any substantial right of appellant. The judgment of the court below should be affirmed. 5 518 17 48 Statement of Facts. 17 49 21* 446 5 518 46 180 THOMAS B. ENGLISH AND LA FAYETTE G. ENG- SPONDENTS. DECREE AGAINST INFANT, WHEN BINDING.-In a suit where the court has complete jurisdiction of the subject and of the parties, a decree against infant defendants, where there is no evidence of fraud or collusion, is as valid and effectual as if taken against adults. GUARDIAN AD LITEM-POWER OF, TO BIND INFANT PARTY BY ADMISSIONS. — Under the statutes of this State, a guardian ad litem has full power to bind an infant defendant by admissions, even to the confession of judgment. PAROL DEMURRER-DOCTRINE OF, NOT RECOGNIZED IN THIS STATE.-The doctrine of "parol demurrer "is not recognized in this State. APPEAL from Marion County. In 1858, Levin N. English, one of the defendants, as guardian of the plaintiffs, who were minors, made sale of certain real property described in the complaint, of which O. G. Savage, another of the defendants, became the purchaser. At the February term, 1873, of the Circuit Court for Marion County, Oregon, O. G. Savage brought suit against the plaintiffs to quiet his title to the premises, alleging that the guardian's sale before referred to had been conducted in substantial conformity with the law; that the bond required of the guardian by 2 10, chapter 51, Miscellaneous Laws, had been duly given, but that said bond had been lost or destroyed, and that its absence from the record of the proceedings constituted a cloud upon his (Savage's) title. In that suit G. W. Lawson was appointed guardian ad litem for the infant defendants (plaintiffs here), and filed an answer admitting the allegations of the complaint. There was a decree in accordance with the prayer of the complaint. The present suit was brought to set aside the guardian's sale above referred to, and also the decree of the Circuit Court of February, 1873. It is claimed in the complaint that the guardian's sale was void because the guardian did not give the bond required by 2 10, chapter 51, of the Miscellaneous Laws, and that the decree of the Circuit Opinion of the Court-Burnett, J. Court quieting the title of Savage was also void because it was obtained by fraud and collusion. The answer denies all the material allegations of the complaint, and sets up as a separate defense the payment of the purchase-money by the defendant Savage at the guardian's sale, and also certain expenditures made for permanent improvements upon the premises in question, and asks to have the same charged as a lien upon the land in case the sale is set aside. The decree of the court below was that the sale, and also the decree of 1873, be set aside as void, and that the purchasemoney and money expended for improvements by defendant Savage be made a lien upon the land, as prayed in the answer. From this decree the plaintiffs appealed to this Court. Knight & Lord, for Appellants. R. P. Boise and W. W. Thayer, for Respondents. By the Court, BURNETT, J.: Upon the first point appellant's counsel seem to rely with confidence on the case of Cooper v. Sunderland (3 Iowa, 114). In that case an objection was made to a guardian's sale, under a statute similar to ours, on the ground that it did not appear that the guardian took the oath required by the statute before fixing on the time and place of the sale; and the court says, in passing on the case made: “There is no evidence, either in the record or in the papers, nor is any brought to our knowledge aliunde, that this oath was taken. The guardian makes a report of her sale but does not state it. There is a judgment confirming the sale, but this goes no farther than to say (in allusion to the report), 'which, having been examined by the court here, and the court having been fully advised of and concerning the premises, it is ordered,' etc. * The above record * * does not answer the call of the statute." It will be seen that there is a material difference between the Iowa case and the one at bar. Here the judgment of confirmation recites that: "And it further appearing to the court that said sale had been legally made and fairly con Opinion of the Court--Burnett, J. ducted," which--in addition to the following part of the order granting the license to sell the real estate in question, to wit, "It is therefore ordered by the court that upon the said guardian filing a good and sufficient bond and taking the oath by law required, that license issue to said guardian to sell the real estate described in his petition, "--shows a different record altogether from that in the case last referred to. There is also the evidence of J. C. Peebles, county judge, G. W. Lawson, Seth Hammer, and O. G. Savage, that tends to establish the fact that a bond was given. True, this oral evidence is contradicted by the witnesses for the plaintiff, and conceding that oral evidence can be admitted to impeach the record made by the County Court in this case, and that the question depended upon the recollection of the witnesses as testified to by them, the matter would no doubt be in a state of uncertainty. In the case of Blackman v. Bauman (28 Wis. 611), the record itself showed affirmatively that the statute had not been complied with, for the oath of the guardian found in the record was made on the day of the sale, and not before fixing on the time and place of the sale, as required. In the case of Manton v. Purdy et al. (11 Minn. 400), the objection to the sale was founded on an insufficient notice of the sale; and as the notice itself was with the papers and was considered a part of the record, it showed on its face that it did not comply with the statute. The case in 2 Sawyer is similar to the one in 3 Iowa, and in the case in 38 Maine it was one of the agreed facts that no bond had been filed. But the view we have taken of the case makes it unnecessary for us to decide whether the record of the County Court, together with the evidence offered in connection with it, establishes the fact that the guardian did give the bond required by the statute before the sale was made; for we think the whole matter was settled by the Circuit Court in the decree made March 12, 1873. The court had full and complete jurisdiction of the case and of the parties, and there is no evidence to sustain the allegation of fraud and collusion between the guardian ad litem, in that case, and O. G. Savage. It was insisted that |