the cattle 280 tons of hay owned by himself, for which Quincy agreed to pay him $4.50 per ton, amounting to $1,260. (2) That defendants Auld, McCorkle, and Hall were about to take the cattle from his possession by virtue of two chattel mortgages given by Quincy to Auld. (3) That the mortgages were not recorded in Saguache county at the dates the cattle were delivered to him. (4) That at the time of receiving the cattle he had no notice, constructive or otherwise, of the existence of the mortgages. (5) That the taking away of the cattle would deprive him of his lien as agistor, etc. Prayed an ex parte injunction, and asking that his lien be declared superior to any other lien, etc. On March 18th an injunction was granted on a bond of $400, and summons and writ of injunction served the same day upon McCorkle and Hall. There was no service upon Quincy or Auld. On April 6th, Auld, McCorkle, and Hall answered, denying that the cattle were ever intrusted to the plaintiff for the purpose of feeding, pasturing, and keeping, or for any purpose; that plaintiff had kept and pastured the cattle as an agistor or in any capacity; that plaintiff fed any hay to the cattle, or that the hay was the property of the plaintiff; admitted that the cattle were pastured upon the land described, etc. For a second defense, set up that Quincy wished to purchase cattle upon time; exhibited, as inducement, the articles of partnership between Travis, Reed, and himself; that the purchase price of the cattle was agreed upon; that McCorkle went with Quincy to plaintiff's lands, and examined them, with a view of ascertaining the relation of the parties to the agreement, and their ability to care for the cattle; that plaintiff declared himself a member of the partnership, and represented that all the lands, and the hay upon them, were to be used exclusively for keeping the cattle; that, relying upon the representations made, the cattle were sold, notes taken, secured by chattel mortgages, which also embraced the hay, which had been sold by the plaintiff to Quincy; that the plaintiff had actual and constructive notice of the mortgages, and that they were duly recorded; that, immediately upon placing the cattle on the premises, cattle and hay were given up to the charge and possession of Quincy, and that during all the time Quincy had open, exclusive, and undisputed possession; that plaintiff had no possession nor rights, except under the contract, etc.; that in February and March, 1893, plaintiff, in violation of his contract, did claim an agistor's lien upon the cattle, and threatened to hold them as against the mortgages; alleged the suing out of the attachment against Quincy and the levy; and admitted the taking of the possession under the chattel mortgages. On March 27, 1893, the court overruled a motion to dissolve the injunction, but increased the bond to $2,500. Afterwards, by stipula

tion of parties, the injunction was dissolved upon payment by defendants into court of $1,534.40, and the giving of a bond in the sum of $1,400, for the benefit of the plaintiff, in case he obtained final judgment. Subsequently a trial was had to the court, resulting in the following finding and judgment: "Wherefore it is ordered by the court that plaintiff's lien as agistor be, and is hereby, decreed a superior lien to lien of defendants' mortgages, or any other lien of defendants; and the court having found that there is due and owing plaintiff by defendants Auld and McCorkle the sum of $1,721.70, by reason of the premises,-therefore it is ordered and adjudged by court that plaintiff do have and recover from said defendants Auld and McCorkle the sum of $1,721.70, with costs, and that the $1,534.40 deposited by defendants with clerk hereof be applied to satisfaction of said judgment; and the bond of defendants given to secure any judgment in this cause is declared in full force and effect,"-from which an appeal was prosecuted to this court.

John S. Mosby, Jr., and F. W. Lineau, for appellants. Chas. D. Jones, McIntire & McDonald, and Emerson J. Short, for appellee.

REED, J. (after stating the facts). Our statute giving a lien to an agistor is as follows (2 Mills' Ann. St. § 2854; Gen. St. § 2118; Amended Acts 1889, 232): "Any ranchman, farmer, agistor, herder of cattle, tavern keeper, livery-stable keeper, or other person to whom any horses, mules, asses, cattle, sheep or hogs shall be intrusted for the purpose of feeding, herding, pasturing, keeping or ranching, shall have a lien upon such horses, mules, asses, cattle, sheep or hogs, for the amount that may be due for such feeding, herding, pasturing, keeping or ranening, and for all costs incurred in enforcing such lien." The suit was brought under this section of the statute to secure and enforce a lien upon the cattle for the food consumed. "'Agistment' is where a person takes in and feeds or depastures horses, cattle, or similar animals upon the land for reward." The lien for agistment is purely statutory; no lien existed at common law. Chit. Cont. 435; 1 Smith, Lead. Cas. 222; Jackson v. Cummins, 5 Mees. & W. 341; Smith v. Cook, 1 Q. B. Div. 79. The agistor had no lien except by special agreement. Goodrich v. Willard, 7 Gray, 183; Miller v. Marston, 35 Me. 155; Grinnell v. Cook, 3 Hill, 485. The language of our statute giving the lien is: "The person to whom any ⚫ cat

sive, that he may maintain trespass or trover against a wrongdoer for any injury to their possession (Story, Bailm. § 443; Sutton v. Buck, 2 Taunt. 309; Rooth v. Wilson, 1 Barn. & Ald. 59; Burton v. Hughes, 2 Bing. 173); and is only responsible for ordinary negligence (Jones, Bailm. 91, 92; McCarthy v. Wolfe, 40 Mo. 520). The complaint makes a case clearly within the law of agistment, entitling, if sustained by evidence, the plaintiff to the lien: That, from October 21st and 28th until December 3d, Travis, as agistor, had pastured the cattle; "that from and after the last date, and until March 17, 1893," at the special instance and request of said Quincy, he (Travis) fed hay owned by him to said cattle, etc. By the second paragraph of the contract above cited, it is obvious that the plaintiff leased to the partnership, of which he was a member, the real estate described, with all the rights and easements pertaining and as shown by a subsequent paragraph for the term of five years. Such leasing was exclusive of any individual right or possession of the plaintiff. By the terms of the contract, Quincy was to manage the partnership affairs, and, for the partnership, to enter into the possession and exercise sole control of the leased premises. ant to the contract of partnership, a few days after its execution, Quincy purchased from the defendants Auld and McCorkle the cattle, 1,047 in number, received the possession of them, placed them upon the land leased from the plaintiff, and during all the time, until possession was taken by defendants Auld and McCorkle, had exclusive custody, management, and control of them, under the provisions of the contract. It is alleged in the complaint that the cattle were intrusted to him (plaintiff) by Quincy, and that he fed the hay to them at the special instance and request of Quincy. Such being the allegation, even if established by the evidence, we are at a loss to understand how a judgment and decree could be entered against Auld and McCorkle, who had never delivered cattle into his possession, intrusted him with hay, nor made any contract for feed or care.

Pursu

It is evident from the contract, and all the evidence in the case, that the three tracts of land were devoted to partnership uses by the plaintiff. Quincy was to buy cattle at market rates, and manage the entire business, the third partner to furnish the money for current expenses. Cattle were to be pastured upon the leased premises, fed when necessary, and marketed. The cost of purchase of cattle, cost of caring for them, and feed, aside from the pasturage from the leased land, were to be deducted from the amount realized, and the profits arising from the transactions divided equally between the three partners. The contract did not provide that Quincy should purchase the cattle for cash. The evidence of plaintiff shows that he understood that the

cattle were to be purchased upon credit, and at the time the cattle were delivered knew that they were purchased upon credit by Quincy. Consequently, until rescission of the contract of partnership, or until the title of the partnership was divested by default in payment of purchase money, the cattle were the property of the firm, and in its possession, and under the management of Quincy, who was, by the terms of the contract, invested with the care and control. Hence we find the plaintiff attempting to assert an agistor's lien against his own property, as well as that of his partners, for pasturage he had conveyed to the firm as his contribution to the capital stock, and for hay sold and delivered to the firm, onethird of which, upon settlement, was chargeable to him, and the other two-thirds to be paid by his partners.

This brief statement shows the impossibility of maintaining a lien, where the requirements are-First, that the cattle should be the property of another, in which the agistor had no rights of ownership; second, that the stock was delivered for the purposes of the agistment, under a contract of hire, with an agreement to pay for the food and care. The contention of plaintiff is that, by failure of Quincy to perform his part of the agreement, he had a right to and did rescind the contract of partnership, and that it was void. If such were the fact, how could it affect Auld and McCorkle, who had dealt with the partnership in good faith, sold and delivered the cattle to the firm, and who had no notice of dissolution, nor protests? In other words, how could a lien be enforced against the property of Auld and McCorkle by reason of the failure of Quincy to perform his agreements with his partners? The plaintiff contends that he rescinded the contracts of the purchase of the cattle and the partnership ab initioFirst, because chattel mortgages were given without his knowledge, to secure the purchase price; second, because Quincy had purchased the cattle above the market price. These contentions may be briefly answered. First, they were matters with which Auld and McCorkle had no connection, and of which they had no knowledge. He testified to his lack of knowledge, but from his testimony it is impossible to determine when he first had knowledge of their existence. The mortgages were recorded very shortly after their execution. He testified that he had no knowledge before they were filed for record. Again, that he had actual knowledge by a letter from the recorder of January 20th, and had heard of them before that time; again, knew they had mortgages about the 1st of March. There is much evidence from which it might be inferred that he had knowledge about the time of the purchase. But inference is unnecessary; he by his own evidence fixes the date sufficiently early for the purposes of this case.

As a purchaser, it was his duty to know at the time of the transaction. If he failed to know by reason of his own negligence, the responsibility rests upon himself. There

is no attempt to charge any of the parties with concealing the fact from him. Whether he knew or not could not affect the rights or property of Auld and McCorkle, and as his share was in the profits, after payments of purchase, it seems a matter of no legal importance whether the purchase price was secured by chattel mortgage or in any other way; the price was to be paid at maturity of notes. As to the supposed rescission of the contract, either in purchase of the cattle from Auld and McCorkle or the contract of partnership,-as it seems very uncertain which is claimed to have been rescinded,— the testimony of plaintiff was peculiar as a basis for rescission. Although the cattle were purchased by Quincy, and delivered to the firm, upon the ranch, he did not know the price of the cattle until a week after their delivery; that he said nothing to McCorkle at that time; did not know that he had any interest in the cattle, and did not know Quincy bought them from him. In view of another part of the testimony, these statements are rather startling. Before the sale McCorkle visited the ranch, and examined pasturage and hay, which were shown by the plaintiff. The object of such investigation must have been stated, if not apparent, to ascertain if there was an adequate supply of food, so that his security for the purchase money would not be jeopardized. These circumstances must have conveyed, to any man of ordinary intelligence, the facts: First, that the cattle were to be purchased upon credit; and, second, that the seller would rely upon the cattle as security. He also testified that he did not ask Quincy or McCorkle the price paid; that he did not know the price on November 1st, when requested to sign the notes; did not figure from them the price, because he knew they were too high; that he knew the price before or at the time the second lot were delivered, which was October 28th, as Quincy had told him. Comment upon these two statements is unnecessary. He also testified that, upon learning the price of the stock, he (mentally) repudiated the contract of partnership; did not accept the cattle as partnership property, but for the purpose of pasturage; but did not inform either Quincy or McCorkle of his repudiation or intention until some time in February, allowing his partners to continue the feeding and care of the cattle and expenditure of money until that date, under the partnership contract he had repudiated at its inception in October. After the food was consumed, and it became evident that his supposed speculation was a failure, he gave notice of his rescission, and attempted to shift his position, and become an agistor instead of a partner. It is a well-settled rule

of law that, when a party has an election to rescind an entire contract, he must rescind it wholly or in no part. He cannot consider it void for one purpose, and at the same time in force for the purposes of recovering damages. 2 Chit. Cont. 1089; Miner V. Bradley, 22 Pick. 457; Voorhees v. Earl, 2 Hill, 292; Junkins v. Simpson, 14 Me. 364; Coolidge v. Brigham, 1 Metc. (Mass.) 550. If a party, having the right to rescind a contract, does any act which amounts to an admission of the existence of the contract, he cannot afterwards elect to treat it as void. Brinley v. Tibbetts, 7 Greenl. 70; Lindsey v. Gordon, 13 Me. 60; Barry v. Palmer, 19 Me. 303; Lawrence v. Dale, 3 Johns. Cas. 23; Massen v. Bovet, 1 Denio, 69; Selway v. Fogg, 5 Mees. & W. 83. It is shown by all the evidence, including that of plaintiff, that although knowing the price paid for the cattle in the latter part of October, and mentally resolving to rescind at that time, he gave no notice of any such intention, and acted under the contract, carried out its provisions, and recognized it as binding and obligatory until some time in February following. Another well-settled rule of law is that one party to a contract cannot rescind, when both cannot be placed in the identical situation which they occupied when the contract was made. Where this cannot be done, there can be no rescission, and the party must proceed for damages for failure to perform. 2 Chit. Cont. 1092. There is practically no limit to the number of cases, English and American, asserting the proposition. It at once be comes apparent that it was impossible in February to place the parties in statu quo as of October previous. It is also an equally well-settled rule of law that when a party, by reason of fraud or failure of the other party to perform, has the right of rescission, he must exercise it at once, as soon as the fraud comes to his knowledge or the default occurs. 2 Pars. Cont. 797; Central Bank v. Pindar, 46 Barb. 467; Burge v. Railroad Co., 32 Iowa, 101; Zuck v. MeClure, 98 Pa. St. 541; Wilson v. Morse, 52 Wis. 240, 9 N. W. 1. A party cannot play "fast and loose" at the same time, await results, and then make his election.

As to the 280 tons of hay fed to the cat tle, plaintiff's testimony shows it to have been measured up and turned over to Quincy at an agreed price of $4.50 per ton, to be fed to the cattle pursuant to an agreement. He became creditor of the firm. The hay amounted to $1,260, two-thirds of which, or $840, should have been paid by his partners; but he testified that he, in the first instance, required money from his partners, and they advanced him $1,000, a sum exceeding the two-thirds of the value of the hay furnished. The finding and judgment of the district court cannot be sustained The allegations in the complaint are not only not sustained by any evidence in the

fenses which the defendants had a right to make, if they were made in good faith. The action of the court in striking them out can, therefore, not be upheld, unless it was made in some manner to appear that they were sham. A sham answer is one which, upon its face, states a sufficient defense, but which is false in fact, and is pleaded in bad faith, and as an impediment to justice. As it is sufficient in form, and there is nothing upon its face determinative of its character, this must appear from matters aliunde. Evidence of some kind outside of itself must be produced, from which it clearly appears that the pleading is sham; but, when such showing is made, it becomes the duty of the court to strike it out. Duffield v. Railroad Co. (Colo. App.) 36 Pac. 622.

These defenses are apparently legitimate. The good faith of the pleader is presumed. It was not attempted, by any showing, to impress upon them a character different from that which they appeared to bear; and nothing is disclosed by the record which justifies the court in striking them out.

The third defense is an entirety. The portion which was stricken out and that which remains are dependent upon each other. The first, isolated from the second, contains nothing that is relevant to the case, and is meaningless; and the second is unintelligible without the first. The defense, as a whole, suggests an important question of law, concerning which the authorities differ widely; and, if counsel disputed the soundness of the legal proposition upon which it was evidently based, he should have demurred to the whole defense. He cannot be permitted arbitrarily to split into two parts a defense which, if it is insufficient at all, is insufficient as a whole, and have one portion stricken out, leaving the fragmentary and incomplete-and therefore irrelevant and meaningless-remainder to stand as the answer in the case. Such a proceeding is a perversion of the uses for which a motion is designed. The question which counsel seeks to raise, and of which he asks a determination, cannot be raised by that method. To bring any question before us for adjudication, the prescribed practice must be followed. The judgment will be reversed. Reversed.

one-third the rental value of the buildings per month. Plaintiff alleged nonpayment of the sums due from the firm business, and those due by special agreement, and a refusal by defendants to account for collections or to allow plaintiff access to the books, and prayed for a sale, partition, and accounting. Held, that there was no misjoinder of causes of action, and that the complaint was sufficient as a bill for a discovery, accounting, and winding up of the partnership affairs.

2. Where the continuing partners agree to pay the withdrawing member his proportion of the firm assets, he is entitled to an accounting, on their failure to do so.

3. An allegation that, "at an attempt at an accounting made at the time of dissolution, it was estimated" that the bills receivable and property of a firm were of a certain value, is not an allegation of a statement or account stated.

4. Where partnership buildings are on government land, the court will not decree a partition of the possessory rights in the land at the suit of one partner for a dissolution and an accounting, but will decree a sale of the buildings and a division of the proceeds.

Error to district court, Las Animas county. Action by B. Tarabino against R. Nicoli and another for an accounting and winding up of a partnership. From an order sustaining a demurrer to the complaint, and a judgment dismissing the action, plaintiff brings error. Reversed.

S. S. Wallace, for plaintiff in error. Northcutt & Franks and James McKeough, for de fendants in error.

the suit.

"The

REED, J. The question to be determined is whether the court erred in sustaining a demurrer to the complaint and dismissing The complaint is not copied into the abstract, but counsel kindly refer us to the record, saying: "The complaint is not lengthy, being only a little over five pages of typewritten matter, and counsel especially asks this court to read the amended complaint and demurrer, as well as this abstract of the record;" and, after giving us in the abstract two printed pages of synopsis of it or commentary in regard to it, say: foregoing is a succinct statement of the facts stated in the amended complaint." As the sufficiency of the complaint was the only question decided in the lower court, and to be reviewed here, it would have been more satisfactory, and in harmony with the practice, to have printed the complaint in the abstract, and his conclusions in regard to it in his printed argument. No decision can be intelligible without giving a full copy of the complaint. It is as follows: "The plaintiff, by way of amending his complaint, alleges: (1) That on or about the 1st day of September, A. D. 1889, the plaintiff and defendants formed a partnership for the purpose of conducting a mercantile business under the name and style of R. Nicoli; plaintiff and G. Aiollo, the defendant of that name, being silent partners in said firm. (2) That, under and pursuant to the agreement forming said copartnership, the parties hereto and plaintiff were each to contribute one