of the Fourth district of Idaho, for Alturas county, against certain parties, including one O. R. Young, the husband of respondent, upon an express contract for the payment of money, and, at the time of commencing said action, caused a writ of attachment to be issued. An alias writ was issued, directed to the sheriff of Shoshone county, under and by virtue of which said sheriff levied upon certain mining property in said Shoshone county, which property appears upon the records of said county in the name of respondent, the wife of said defendant O. R. Young, and, upon the record, purports to have been conveyed to said respondent, Helen L. Young, by one A. P. Horton, "in consideration of friendship and esteem.' The respondent, at the time of said conveyance, was engaged as a teacher in the public schools of Shoshone county, and was the wife of the said O. R. Young, "earning her own living and support." Said alias writ of attachment was, by the sheriff of said Shoshone county, levied upon the interest of respondent in said mining property, as appears by the following return of the said sheriff, indorsed upon said writ, and recorded in the records of said Shoshone county, as provided by statute: "To the Recorder of Shoshone County, State of Idaho: You will please take notice that under and by virtue of a writ of attachment Issued in the within-entitled action, out of, and under the seal of, the district court of the 4th judicial district of the state of Idaho, in and for the county of Alturas, of which writ the within is a true copy, I have levied upon all the right, title, and interest of O. R. Young and Nellie Young, his wife, as community property of said husband and wife, and all right, title, and interest of O. R. Young, in and to that certain lode mining claim situate in Evolution mining district, Shoshone county, state of Idaho, known as the 'Coeur d'Alene Nellie'; the same standing of record, in Shoshone county aforesaid, in the name of Nellie Young, wife of said O. R. Young." (Dated and signed by sheriff of Shoshone county.) Appellants recovered judgment in said action, and caused execution to be issued thereon, which execution was directed to the sheriff of Shoshone county, and was by him levied upon the said mining property of the respondent, as appears by the following indorsement and return of said sheriff, filed in the recorder's office of said Shoshone county: "Sheriff's Notice of Levy and Sale. Under and by virtue of a writ of execution, of which the foregoing is substantially a true copy, I have this day levied on, and will on Monday, the 19th day of December, A. D. 1892, between the hours of 1 and 4 p. m. of that day, in front of the district courthouse in the town of Murray, Shoshone county, Idaho, sell at public auction to the highest and best bidder for cash, lawful money of the United States, all the right, title, and interest of O. R. Young and Nellie Young, his wife, as community prop erty of said husband and wife, and all the right, title, and interest of O. R. Young, the same standing of record in Shoshone county, aforesaid, in the name of Nellie Young, wife of said O. R. Young, of, in, and to those two certain lode mining claims known, located, and recorded, respectively, as the 'Coeur d'Alene Nellie' and the 'Emma,' situated in Evolution mining district, Shoshone county, state of Idaho. Dated this 25th day of November, 1892." (Signed by the sheriff of said Shoshone county.) On the 9th day of December, 1892, the respondent filed her complaint in the district court for Shoshone county (First district of Idaho), wherein she sets forth her title to the said mining property, the manner of her acquisition thereof, and that the same is her separate property, and prays that the said writs of attachment and execution may be dissolved and vacated, and that the said sheriff be enjoined from proceeding to sell said property under said writ of execution, and for further relief, etc. On the 19th day of December, 1892, the judgment theretofore recovered by appellants against O. R. Young et al. in the district court for the Fourth judicial district, for Alturas county, was reversed by the supreme court of Idaho, and the cause remanded for a new trial. On February 4, 1893, respondent filed, by leave of court, a supplemental complaint, setting up the fact of such reversal of said judgment. No further proceedings appear to have been taken in said original suit. On August 21, 1893, appellants filed demurrer to complaint of respondent upon the following grounds: "(1) Because the said complaint does not set forth facts sufficient to constitute a cause of action against this defendant. (2) Because there is a misjoinder of parties defendant herein. (3) Because there is no equity in the said complaint." This demurrer of appellants was overruled by the district court, and, the defendants declining to answer, judgment for costs was rendered in favor of plaintiff, and it is from such judgment that this appeal is taken. It is claimed by the appellants that the levy of the attachment and execution created no cloud upon the title of respondent, for the reason that it is alleged that the deed from Horton to the respondent is one of gift, and not of purchase, which, under the statutes of Idaho, would make the property conveyed thereby the separate estate of the respondent. Concede this, and yet this very fact is controverted by the notice of levy of the attachment, and the notice of levy and sale under the execution, both of which are by the statute of Idaho made matters of record in the county where the property is situated. The interest of respondent is levied upon as community property. It is advertised to be sold as community property. "Equity interferes to remove clouds upon the titles, because they embarrass the owner of the property clouded, and tend to impede his free sale and disposition of it." 2 Am. & Eng. Enc. Law, p. 298, note 1, and cases cited therein. This rule is peculiarly applicable to the kind of property involved in this action, to wit, mining property. All dealings in this kind of property must, of necessity, be, to a great extent, speculative, so far as permanency, character, and value are concerned. Science has not yet developed any sure rule or criterion by which the extent, character, and value of a mine can be accurately determined in advance. Upon all these matters the purchaser or dealer must take his chances, aided by all the means afforded by science and experience; but upon the question of title he may, and therefore invariably insists upon "making assurance doubly sure." And it is a matter of such uniform experience as to be almost the history of mining transactions that a clear abstract of title is considered a sine qua non in all sales and purchases of mining property. The record created by the appellants through the levy of the attachment and execution would inevitably create such a cloud upon the title of respondent's property as would greatly impede and embarrass, if not defeat, the disposition thereof by the owner. It is claimed by appellants that respondent has a clear and adequate remedy under the provisions of section 4538, Rev. St. Idaho, providing for an action to quiet title. In answer to this contention, counsel for the respondent insists that such an action would be upon the equity side of the court, and that the proceedings in this case are virtually brought under said section, and that the relief prayed for by injunction is only an incident. We are inclined to accept this theory of counsel for the respondent. Section 4539, Rev. St., is as follows: "If the defendant in such action disclaim in his answer any interest or estate in the property, or suffer judgment to be taken against him without answer, the plaintiff cannot recover costs." No answer was filed in this case. The argument of the demurrer was heard on February 14, 1894, on the part of plaintiff, and submitted, there being no appearance on the part of defendants. On June 13, 1894, demurrer was overruled, and default and decree ordered entered. Assuming this to have been, as is claimed by respondent, an action based upon section 4538, Rev. St., no costs should have been adjudged against the defendants. There is evidently a mistake in the decree in this case. By the terms of the decree, the defendants are enjoined from executing their C. R. SHAW LUMBER CO. v. MANVILLE. (Supreme Court of Idaho. Feb. 27, 1895.) SALE-STATUTE OF FRAUDS-GENERAL OR SPECIAL VERDICT. 1. S. was a dealer in lumber, etc. M., desiring to purchase certain tanks, to be used in mining operations, applied to S. therefor, and, on being informed that said articles were not kept by S., requested him to procure them for him from some house in Oregon or California; giving S. a description and specifications of the articles required, to be delivered free on board cars at Boise City, Idaho. S. ordered the articles from a house in Portland, Or.; and, M. not being at home on their arrival, S. stored them in the warehouse of N. On M.'s return, S. no'tified him of the arrival of the goods, at the same time exhibiting to him the bill of lading thereof, and informing him where he had stored them. M. said "he guessed it was all right," and, declining to examine the goods, told S. he would remove them in a few days, and pay the balance due on them, and paid S. $100 on the purchase price. Held not to be a sale, within section 6009, Rev. St. Idaho. 2. In an action for the recovery of money only, it is within the discretion of the jury to find a general or a special verdict. Rev. St. Idaho, § 4397. (Syllabus by the Court.) Appeal from district court, Ada county; Edward Nugent, Judge. Action by the C. R. Shaw Lumber Company against J. S. D. Manville. Judgment for judgments. The respondent was not a party plaintiff, and defendant appeals. Modified. to the suits in which the judgments were rendered, and the decree should be limited to enjoining the defendants against enforcing their judgments against the respondent, or her property described in the complaint. To this extent the decree of the district court is modified; and, further, that no costs should be taxed against the defendants in the district court. Samuel H. Hays and Henry Z. Johnson, for appellant. J. R. Wester, for respondent. HUSTON, J. Shaw, a lumber dealer at Boise City, was applied to by Manville, defendant, for certain tanks, to be used in mining operations. Shaw, not being able to furnish either the tanks, or the materials for shall consider those only which were urged upon the hearing, and which seem to us important in the decision of the case. As stated by the appellant in his brief: "The main questions involved, which go to the merits of the case, are: (1) This being an action for goods sold and delivered, has a sufficient delivery been shown, to maintain the action? (2) Was there a valid sale, under the statute of frauds (Rev. St. § 6009, subd. 4)? (3) Was there a sale to appellant, or to the Idaho Gold-Extraction Company?" As to the first question, as we have already intimated, if we were to be governed by the strict rules applicable to common-law pleadings we might be constrained to hold otherwise, but, under the liberal provisions of our Code, while the complaint is almost inexcusably faulty, we think it is sufficient, in that it states the general fact of indebtedness, and for what such indebtedness was incurred, to wit, "For goods, wares, and merchandise sold and delivered." making the same, suggested to Manville that he (Shaw) could procure the same for him (the defendant) from Oregon or California, and thereupon received a statement from Manville giving a description of the character and dimensions of the required tanks. Shaw sent the memorandum to a house in Portland, and received in reply a statement fixing the prices at which the tanks would be furnished to him. Shaw submitted this statement to Manville, and Manville requested him to telegraph for the tanks, which he did. Upon the arrival of the tanks, Shaw went to the house of Manville, and, not finding him at home, informed his (Manville's) wife that the tanks had arrived, and was informed by said wife that her husband wished to have the tanks stored until his return. Thereupon Shaw had the tanks stored in the warehouse of one Nourse. A few days after, Manville called upon Shaw, who informed him that the tanks had arrived, and that he could look at them. Manville replied that he "guessed they were all right," and thereupon stated that he was not quite prepared to remove them, and gave Shaw his individual check for $100 in part payment of the price of the tanks. The plaintiff brought an action for the value of said tanks, less the $100 paid. The complaint is for goods, wares, and merchandise sold and delivered, or rather for the balance due therefor. The answer is a general denial. The complaint is latitudinous, and the answer technical. The issues would have been more satisfactorily presented had the pleaders given more recognition to the statutes, in framing and presenting them. Subdivision 2, § 4168, Rev. St. Idaho, provides that the complaint shall contain "a statement of the facts constituting the cause of action in ordinary and concise language." The complaint in this case does not comply with either the letter or spirited the property, and that the vendee, by of this statute. It is a general allegation of indebtedness for a balance due the plaintiff from the defendant for goods, wares, and merchandise sold and delivered. This is simplifying pleadings, no doubt, but not upon the lines contemplated by the Code. Instead of narrowing the issues to be tried, it amplifies them, and extends opportunity for endless technical objections, all of which are taken advantage of by the defendant. We might feel constrained to enter upon a consideration of the various questions raised and discussed upon the pleadings in this case, were we not admonished by the provisions of our statutes. See sections 4, 4207. The cause was tried by the court with a jury, and resulted in a verdict for plaintiff. Motion for a new trial was made and overruled, and from the judgment upon the verdict, and the order overruling the motion for a new trial, this appeal is taken. The record contains a statement settled and allowed by the district judge. The exceptions which appear in the record are multitudinous, to a degree of exhaustion. We Was there a valid sale, under the provisions of subdivision 4, § 6009, Rev. St.? This contention calls for the consideration of questions as multitudinous as they are various. In the intricacies of commercial transactions, it is inevitable that circumstances will arise which require careful analysis before any such rule of law can be said to be applicable. Almost every phase of contract has been subjected to the crucial test involved in the exception above stated. It is unnecessary for us to consider, even were it practicable, all of the cases cited for and against the contention of the defendant. The rule enunciated in Wood on Statute of Frauds (page 578) in relation to this class of sales is as follows: "It must be shown that the acts of the vendor and vendee have concurred; that is, that the vendor has deliver some decisive act, has accepted it, and waived all right of objection thereto." The contract in this case was one of daily occurrence in this country. The plaintiff was a dealer in lumber, and, incident thereto, in the manufacture and sale of doors, sash, and blinds. The defendant was engaged in mining, wherein he was introducing some new process or processes for the reduction of ores, etc. The defendant required, in the carrying on of his business, a certain quantity or number of wooden tanks, of certain dimensions, and required to be made of a certain kind of lumber. He applies to the plaintiff, who informs him that he does not deal in the article, nor in the kind of lumber required therefor, but at the same time informs defendant that he can procure them for him from a firm in California or Oregon who manufacture and deal in that class of goods, and therefore shows to defendant a descriptive catalogue of the kind of goods required, and defendant selects from such catalogue a certain number of tanks, therein described, and also others of different dimensions from any described in the catalogue, and requests plaintiff to ascertain by correspondence for what price the same can be procured. In compliance with this request of defendant, plaintiff sent to a house in Portland, Or., engaged in the manufacture and sale of said articles, and procured from said firm a statement, in detail, of the prices for which they would furnish the various tanks required by defendant "free on board cars at Boise City." This letter containing said statement was by the plaintiff exhibited to defendant, and, being satisfactory to him, the plaintiff, by his direction and at his request, ordered said articles from the Portland house, in accordance with the terms and conditions contained in the letter of said house to plaintiff. On the arrival of the goods, plaintiff went to the house of defendant, and informed his wife (defendant being absent from home) that said tanks had arrived, and was informed by defendant's wife that he (defendant) was not ready to receive the tanks, but would like to have the plaintiff "store them away for a week or two, until he could take them"; and thereupon plaintiff stored the tanks in the warehouse of one Nourse, as he (plaintiff) alleges, for the defendant. A short time thereafter, defendant called upon plaintiff, and plaintiff informed him what disposition he had made of the goods, and defendant expressed himself entirely satisfied therewith. Plaintiff at the same time exhibited to defendant the bill or shipping memorandum of the goods, and an opportunity was given defendant to examine them; but he declined to do so, saying "he guessed they were all right," and that he would remove them in a short time, at the same time paying to plaintiff $100 on the purchase price of the tanks. The plaintiff, in this whole transaction, seems to have been, to some extent, the mere agent of the defendant. It is true, plaintiff became liable to the manufacturer for the goods, but they were ordered by the defendant, upon his specifications and directions, and for prices and upon terms submitted to him and assented to by him; and when they arrived at Boise City, on board cars, they became and were the property of the defendant, and from that time he was responsible for them, at their agreed price, to plaintiff. The plaintiff had done everything he was to do under the agreement between himself and defendant, and had given notice to defendant thereof. The defendant had accepted the goods, and made a part payment therefor. Goddard v. Binney, 115 Mass. 450, and cases there cited; Wood, St. Frauds, p. 553, § 304, and cases cited. To undertake to reconcile the innumerable decisions upon this statute "were a task as rash as ridiculous." We shall have done all that is required of us when we have made such an application of the rule prescribed by our statute, to the facts presented by the record, as is required, v.39p.no.6-36 "with a view to effect its object, and to promote justice." The third proposition presented by appellant is: "(3) Was there a sale to appellant, or to the Idaho Gold-Extraction Company?" It is contended by the appellant that he made the contract for the purchase of the tanks in question, with defendant, for and as the representative of the Idaho Gold-Extraction Company. The evidence upon this question is somewhat conflicting, though we think the preponderance is greatly in favor of the contention of the plaintiff that the contract and sale were made by the defendant wholly upon his own behalf, and not as the agent, manager, or other representative of the Idaho Gold-Extraction Company, or any one else. We are not convinced, from the record, of the correctness of the finding of the jury upon this question. We should feel compelled, under the evidence as shown by the record, to recognize the verdict, under the well-established rule that when the evidence is conflicting the appellate court will not disturb the verdict. The objection of appellant that the verdict of the jury was general, and not special, as stipulated by the parties, is not tenable. The Statute (Rev. St. § 4397) provides: "In an action for the recovery of money only or specific real property, the jury in their discretion may render a general or a special verdict. In all other cases the court may direct a jury to find a special verdict," etc. This was an action for the recovery of money only. Neither the court, by instructions, nor counsel, by stipulation, could enforce the finding of a special verdict by the jury. Appellant objects that the verdict is excessive. We are not aided much, either by the briefs or oral argument of counsel, on this proposition, and we have been compelled to go to the record for information upon this question. From a careful examination of the evidence, we are constrained to hold that the verdict is excessive, to the amount of $47. The plaintiff testifies that the value of the four larger tanks was $140 each, but the memorandum from which and upon which the order was based puts the price at $130 each. We think the latter should control, and the judgment will therefore be modified to the extent of $47, being the difference between the sum stated by the plaintiff and that stated in the memorandum from which the order was made, and the interest on such sum. The judgment of the district court is modified by the deduction of $47, and the cause is remanded to the district court, with directions to enter judgment in accordance with this opinion; costs of this appeal to be taxed equally against respondent and appellant. MORGAN, C. J., and SULLIVAN, J., con cur. 562 (4 Idaho, 351) CITY OF BOISE CITY v. ARTESIAN HOT & COLD WATER CO.1 (Supreme Court of Idaho. Feb. 23, 1895.) WATER COMPANIES-SPECIFIC PERFORMANCECONSTITUTIONAL LAW. 1. A complaint alleging the organization and operation of a water company under sections 2711, 2712, Rev. St., and praying for decree of court compelling said company to furnish water for fire purposes free to the city of its location, must set forth substantially the ordinance or contract with such city permitting such company to furnish water, and regulating the manner thereof, if any such ordinance or contract is in existence. 2. The clause of section 2711 requiring a water company, receiving and accepting the privileges conferred by the statute, to furnish the city or town water for fire purposes and other great necessities free, held to be constitutional. Sullivan, J., dissenting. (Syllabus by the Court.) Appeal from district court, Ada county; Edward Nugent, Judge. Action by Boise City against the Artesian Hot & Cold Water Company. From a judgment for defendant, plaintiff appeals. Affirmed. Plaintiff alleges: Corporate existence of both plaintiff and defendant. That defendant became incorporated on or about March 27, 1891, and a short time thereafter commenced doing business. That the purpose for which said corporation was formed was to furnish water to the inhabitants of Boise City for domestic and family use, and to supply plaintiff with water for municipal purposes, as for fire and sanitary uses. That the defendant has laid its water mains and pipes through the streets of Boise City, and is now using and operating said mains and pipes for conducting and furnishing water for pay to the inhabitants of Boise City for do mestic and family uses. That plaintiff, for protection against fire, has placed pipes and fire hydrants, to the number of 55, in convenlent places throughout the city, and connected the same to the water mains by means of pipes, so that water may be secured through the same for the use of the city in case of fire and other great necessities. That de fendant has, by means of its connection with the pipes, supplied and is supplying, through its water mains and pipes, water to said hydrants for fire purposes and other great necessities, and that the plaintiff has paid the defendant for said water the sum of $1,375 per annum. Plaintiff now refuses to pay the defendant any further sum for water for fire purposes and other great necessities, and alleges that plaintiff is entitled to said water free of charge. That, by reason of the refusal on the part of the plaintiff to pay said defendant for said water furnished for fire purposes, the defendant has threatened and is threatening to immediately shut off said supply, and threatens, if not paid, to disconnect the pipes in the fire hydrants of the 1 For opinion on rehearing. see 39 Pac. 566. plaintiff; and, if permitted so to do, the defendant will leave the plaintiff without adequate means to protect the said city in case of fire; and if said threats be carried into execution it will cause irreparable injury and damage to plaintiff. That plaintiff is without remedy at law, and prays that the defendant and its agents be restrained from interfering in any way with the pipes and connections of said hydrants with the water mains and pipes of the defendant, and that the defendant be restrained from cutting off or in any way interfering with the water supply furnished by defendant to the plaintiff for said fire purposes; and that, pending this action, the said defendant be so restrained; and for other and further relief, etc. Defendant demurred to the complaint, stat ing, as cause, that complaint does not state facts sufficient to constitute a cause of action. Demurrer was sustained by the dis trict court, plaintiff given leave to amend. but declined to do so, and from the order sustaining demurrer and entering default appeals to this court. S. L. Tipton and W. E. Borah, for appellant. Johnson & Johnson and George Ainslie, for respondent. MORGAN, C. J. (after stating the facts). The date given as the time when this corporation was organized and commenced business was at a time when the statute (sections 2710-2712, Rev. St. Idaho) was in force, and therefore the said corporation is subject to the provisions thereof. Section 2712 provides that any corporation created under the provisions of that title, for the purposes named, subject to the reasonable direction of the city or town authorities as to the mode and manner of using such right of way, may use so much of the streets, ways, and alleys in any town or city as may be necessary for laying pipes for conducting water into such town or city, or through or into any part thereof. Section 2711 provides that all corporations formed to supply water to cities or towns must furnish pure, fresh water to the inhabitants thereof for family use, so long as the supply permits, at reasonable rates, and without distinction of persons, upon proper demand therefor, and must furnish water to the extent of their means, in case of fire or other great necessity, free of charge. This section also provides a means of fixing the rates to be charged by the corporation for water furnished the inhabitants, which is that the city shall appoint two commissioners, two be selected by the water company, and, in case the four cannot agree, a fifth shall be selected by these four, or in case of disagreement the probate judge shall appoint a fifth. With these provisions in view, and with the facts as above alleged, which by the demurrer are admitted to be true, this court is asked to compel said water company to furnish water to said city for |