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of the Fourth district of Idaho, for Alturas erty of said husband and wife, and all the county, against certain parties, including one right, title, and interest of 0. R. Young, the 0. R. Young, the husband of respondent, up- same standing of record in Shoshone county, on an express contract for the payment of aforesaid, in the name of Nellie Young, wife money, and, at the time of commencing said of said O. R. Young, of, in, and to those two action, caused a writ of attachment to be is- certain lode mining claims known, located, sued. An alias writ was issued, directed to and recorded, respectively, as the "Coeur the sheriff of Shoshone county, under and by d'Alene Nellie' and the 'Emma,' situated in virtue of which said sheriff levied upon cer- Evolution mining district, Shoshone county, tain mining property in said Shoshone coun- state of Idaho. Dated this 25th day of Noty, which property appears upon the records vember, 1892." (Signed by the sheriff of of said county in the name of respondent, said Shoshone county.) On the 9th day of the wife of said defendant 0. R. Young, December, 1892, the respondent filed her comand, upon the record, purports to have been plaint in the district court for Shoshone counconveyed to said respondent, Helen L. ty (First district of Idaho), wherein she sets Young, by one A. P. Horton, “in considera- forth her title to the said mining property, tion of friendship and esteem." The respond- the manner of her acquisition thereof, and ent, at the time of said conveyance, was en- that the same is her separate property, and gaged as a teacher in the public schools of prays that the said writs of attachment and Shoshone county, and was the wife of the execution may be dissolved and vacated, and said 0. R. Young, “earning her own living that the said sheriff be enjoined from proand support.” Said alias writ of attachment ceeding to sell said property under said writ was, by the sheriff of said Shoshone county, of execution, and for further relief, etc. On levied upon the interest of respondent in said the 19th day of December, 1892, the judgment mining property, as appears by the following theretofore recovered by appellants against return of the said sheriff, indorsed upon said 0. R. Young et al. in the district court for writ, and recorded in the records of said the Fourth judicial district, for Alturas counShoshone county, as provided by statute: ty, was reversed by the supreme court of “To the Recorder of Shoshone County, State Idaho, and the cause remanded for a new of Idaho: You will please take notice that trial. On February 4, 1893, respondent filed, under and by virtue of a writ of attachment by leave of court, a supplemental complaint, issued in the within-entitled action, out of, setting up the fact of such reversal of said and under the seal of, the district court of | judgment. No further proceedings appear to the 4th judicial district of the state of Idaho, have been taken in said original suit. On in and for the county of Alturas, of which August 21, 1893, appellants filed demurrer to writ the within is a true copy, I have levied complaint of respondent upon the following upon all the right, title, and interest of 0. R. grounds: "(1) Because the said complaint Young and Nellie Young, his wife, as com- does not set forth facts sufficient to constimunity property of said husband and wife, tute a cause of action against this defendant. and all right, title, and interest of O. R. (2) Because there is a misjoinder of parties Young, in and to that certain lode mining defendant herein. (3) Because there is no claim situate in Evolution mining district, equity in the said complaint.” This demurShoshone county, state of Idaho, known as rer of appellants was overruled by the disthe 'Coeur d'Alene Nellie'; the same standing trict court, and, the defendants declining to of record, in Shoshone county aforesaid, in answer, judgment for costs was rendered in the name of Nellie Young, wife of said O. R. favor of plaintiff', and it is from such judg. Young.” (Dated and signed by sheriff of ment that this appeal is taken. Shoshone county.) Appellants recovered It is claimed by the appellants that the judgment in said action, and caused execu- levy of the attachment and execution created tion to be issued thereon, which execution no cloud upon the title of respondent, for was directed to the sheriff of Shoshone coun. the reason that it is alleged that the deed ty, and was by him levied upon the said min- from Horton to the respondent is one of gift, ing property of the respondent, as appears and not of purchase, which, under the statby the following indorsement and return of utes of Idaho, would make the property consaid sheriff, filed in the recorder's oflice of veyed thereby the separate estate of the resaid Shoshone county: "Sheriff's Notice of spondent. Concede this, and yet this very Levy and Sale. Under and by virtue of a fact is controverted by the notice of levy writ of execution, of which the foregoing is of the attachment, and the notice of levy substantially a true copy, I have this day and sale under the execution, both of which levied on, and will on Monday, the 19th day are by the statute of Idaho made matters of of December, A. D. 1892, between the hours record in the county where the property is of 1 and 4 p. m. of that day, in front of the situated. The interest of respondent is levdistrict courthouse in the town of Murray, ied upon as community property. It is adShoshone county, Idaho, sell at public auc

vertised to be sold as community property. tion to the highest and best bidder for cash, | "Equity interferes to remove clouds upon the lawful money of the United States, all the titles, because they embarrass the owner of right, title, and interest of 0. R. Young and the property clouded, and tend to impede Nellie Young, his wife, as community prop- his free sale and disposition of it." 2 Am.

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& Eng. Enc. Law, p. 298, note 1, and cases We have not discussed the questions raised cited therein. This rule is peculiarly appli- by the appellants as to misjoinder of parcable to the kind of property involved in this ties, and the question of the jurisdiction of action, to wit, mining property. All dealings the district court for Shoshone county, as in this kind of property must, of necessity, we do not see any merit in the points raised. be, to a great extent, speculative, so far as Even the authorities cited by appellants seem permanency, character, and value are con- to be conclusive against their position. The cerned. Science has not yet developed any. order of the district court overruling the desure rule or criterion by which the extent, murrer is sustained, and the decree of the character, and value of a mine can be ac- district court is directed to be amended in curately determined in advance. Upon all accordance with this opinion, Costs to apthese matters the purchaser or dealer must pellants. take his chances, aided by all the means afforded by science and experience; but upon MORGAN, C. J., and SULLIVAN, J., conthe question of title he may, and therefore cur. invariably insists upon “making assurance

On Rehearing. doubly sure." And it is a matter of such uni

(March 5, 1895.) form experience as to be almost the history of mining transactions that a clear abstract HUSTON, J. We have given the petition of title is considered a sine qua non in all for a rehearing, and the authorities cited sales and purchases of mining property. The

therein, a careful examination. There is record created by the appellants through the

nothing new presented, nor, in our view, levy of the attachment and execution would aught that should prompt us to change the inevitably create such a cloud upon the title

decision already rendered. of respondent's property as would greatly impede and embarrass, if not defeat, the dis- MORGAN, C. J., and SULLIVAN, J., conposition thereof by the owner.

cur. It is claimed by appellants that respondent has a clear and adequate remedy under the

(4 Idaho, 369) provisions of section 4538, Rev. St. Idaho, providing for an action to quiet title. In an

C. R. SHAW LUMBER CO. V. MANVILLE. swer to this contention, counsel for the re

(Supreme Court of Idaho. Feb. 27, 1895.) spondent insists that such an action would SALE-STATUTE OF FRAUDS-GENERAL OR SPECIAL

VERDICT. be upon the equity side of the court, and that the proceedings in this case are virtually

1. S. was a dealer in lumber, etc. M., de

siring to purchase certain tanks, to be used in brought under said section, and that the re

mining operations, applied to S. therefor, and, lief prayed for by injunction is only an in- on being informed that said articles were not cident. We are inclined to accept this theory

kept by S., requested him to procure them for

him from some house in Oregon or California; of counsel for the respondent.

giving S. a description and specifications of the Section 4539, Rev. St., is as follows: “If the articles required, to be delivered free on board defendant in such action disclaim in his an- cars at Boise City, Idaho. S. ordered the artiswer any interest or estate in the property,

cles from a house in Portland, Or.; and, M, not

being at home on their arrival, S. stored them or suffer judgment to be taken against him in the warehouse of N. On M.'s return, S. no. without answer, the plaintiff cannot recover 'tified him of the arrival of the goods, at the same costs." No answer was filed in this case.

time exhibiting to him the bill of lading there, The argument of the demurrer was heard on

of, and informing him where he had stored

them. M. said “he guessed it was all right," February 14, 1894, on the part of plaintiff, and, declining to examine the goods, told S. he and submitted, there being no appearance on

would remove them in a few days, and pay the the part of defendants. On June 13, 1894, de

balance due on them, and paid S. $100 on the

purchase price. Held not to be a sale, within murrer was overruled, and default and de

section 6009, Rev. St. Idaho. cree ordered entered. Assuming this to have 2. In an action for the recovery of money been, as is claimed by respondent, an action

nly, it is within the discretion of the jury to

find a general or a special verdict. Rev. St. based upon section 4538, Rev. St., no costs

Idaho, $ 4397. should have been adjudged against the de- (Syllabus by the Court.) fendants. There is evidently a mistake in the decree

Appeal from district court, Ada county;

Edward Nugent, Judge. in this case. By the terms of the decree, the

Action by the C. R. Shaw Lumber Compadefendants are enjoined from executing their

ny against J. S. D. Manville. Judgment for judgments. The respondent was not a party to the suits in which the judgments were

plaintiff, and defendant appeals. Modified. rendered, and the decree should be limited to Samuel H. Hays and Henry Z. Johnson, for enjoining the defendants against enforcing appellant. J. R. Wester, for respondent. their judgments against the respondent, or her property described in the complaint. To HUSTON, J. Shaw, a lumber dealer at this extent the decree of the district court is Boise City, was applied to by Manville, demodified; and, further, that no costs should fendant, for certain tanks, to be used in be taxed against the defendants in the dis- mining operations. Shaw, not being able to trict court

furnish either the tanks, or the materials for making the same, suggested to Manville that shall consider those only which were urged he (Shaw) could procure the same for him upon the hearing, and which seem to us im(the defendant) from Oregon or California, portant in the decision of the case. As statand thereupon received a statement from ed by the appellant in his brief: “The main Síanville giving a description of the charac- questions involved, which go to the merits ter and dimensions of the required tanks. of the case, are: (1) This being an action Shaw sent the memorandum to a house in for goods sold and delivered, has a sufficient Portland, and received in reply a statement delivery been shown, to maintain the action? fixing the prices at which the tanks would (2) Was there a valid sale, under the statute be furnished to him. Shaw submitted this of frauds (Rev. St. $ 6009, subd. 4)? (3) statement to Manville, and Manville request- Was there a sale to appellant, or to the ed him to telegraph for the tanks, which he Idaho Gold-Extraction Company?" did. Upon the arrival of the tanks, Shaw As to the first question, as we have al. went to the house of Manville, and, not find- ready intimated, if we were to be governed ing him at home, informed his (Manville's) by the strict rules applicable to common-law wife that the tanks had arrived, and was in- pleadings we might be constrained to hold formed by said wife that her husband wished otherwise, but, under the liberal provisions to have the tanks stored until his return. of our Code, while the complaint is almost Thereupon Shaw had the tanks stored in the inexcusably faulty, we think it is sufficient, warehouse of one Nourse. A few days after, in that it states the general fact of indebted. Manville called upon Shaw, who informed ness, and for what such indebtedness was in. him that the tanks had arrived, and that he curred, to wit, “For goods, wares, and mercould look at them. Manville replied that chandise sold and delivered." he "guessed they were all right," and there- Was there a valid sale, under the proupon stated that he was not quite prepared to visions of subdivision 4, $ 6009, Rev. St.? remove them, and gave Shaw his individual This contention calls for the consideration of check for $100 in part payment of the price questions as multitudinous as they are variof the tanks. The plaintiff brought an action ous. In the intricacies of commercial transfor the value of said tanks, less the $100 actions, it is inevitable that circumstances paid. The complaint is for goods, wares, will arise which require careful analysis beand merchandise sold and delivered, or rather fore any such rule of law can be said to be for the balance due therefor. The answer applicable. Almost every phase of contract is a general denial. The complaint is lati- has been subjected to the crucial test intudinous, and the answer technical. The is- volved in the exception above stated. It is sues would have been more satisfactorily unnecessary for us to consider, even were it presented had the pleaders given more rec- practicable, all of the cases cited for and ognition to the statutes, in framing and pre- against the contention of the defendant. The senting them. Subdivision 2, $ 4168, Rev. St. rule enunciated in Wood on Statute of Idaho, provides that the complaint shall con- Frauds (page 578) in relation to this class of tain "a statement of the facts constituting sales is as follows: "It must be shown that the cause of action in ordinary and concise the acts of the vendor and vendee have conlanguage." The complaint in this case does curred; that is, that the vendor has delivernot comply with either the letter or spirit ed the property, and that the vendee, by of this statute. It is a general allegation of some decisive act, has accepted it, and wair. indebtedness for a balance due the plaintiff ed all right of objection thereto." The confrom the defendant for goods, wares, and tract in this case was one of daily occurrence merchandise sold and delivered. This is sim- in this country. The plaintiff was a dealer plifying pleadings, no doubt, but not upon in lumber, and, incident thereto, in the manthe lines contemplated by the Code. Instead ufacture and sale of doors, sash, and blinds. of narrowing the issues to be tried, it am- The defendant was engaged in mining, plifies them, and extends opportunity for end

wherein he was introducing some new proless technical objections, all of which are cess or processes for the reduction of ores, taken advantage of by the defendant. We etc. The defendant required, in the carry. might feel constrained to enter upon a con- ing on of his business, a certain quantity or sideration of the various questions raised and number of wooden tanks, of certain dimendiscussed upon the pleadings in this case, sions, and required to be made of a certain were we not admonished by the provisions kind of lumber. He applies to the plaintiff, of our statutes. See sections 4, 4207. The who informs him that he does not deal in the cause was tried by the court with a jury, article, nor in the kind of lumber required and resulted in a verdict for plaintiff'. Mo- therefor, but at the same time informs detion for a new trial was made and overruled,

fendant that he can procure them for him and from the judgment upon the verdict, and from a firm in California or Oregon who the order overruling the motion for a new manufacture and deal in that class of goods, trial, this appeal is taken.

and therefore shows to defendant a descripThe record contains a statement settled tive catalogue of the kind of goods required, and allowed by the district judge. The ex- and defendant selects from such catalogue a ceptions which appear in the record are mul- certain number of tanks, therein described, titudinous, to a degree of exhaustion. We and also others of different dimensions from

the

any described in the catalogue, and requests "with a view to effect its object, and to proplaintiff to ascertain by correspondence for mote justice." what price the same can be procured. In The third proposition presented by appelcompliance with this request of defendant, lant is: “(3) Was there a sale to appellant, plaintiff sent to a house in Portland, Or., or to the Idaho Gold-Extraction Company?" engaged in the manufacture and sale of said It is contended by the appellant that he made articles, and procured from said firm a state- the contract for the purchase of the tanks in ment, in detail, of the prices for which they question, with defendant, for and as the repwould furnish the various tanks required by resentative of the Idaho Gold-Extraction defendant “free on board cars at Boise City.” | Company. The evidence upon this question This letter containing said statement was by is somewhat conflicting, though we think the the plaintiff exhibited to defendant, and, be- preponderance is greatly in favor of the coning satisfactory to him, the plaintiff, by his tention of the plaintiff that the contract and direction and at his request, ordered said ar- sale were made by the defendant wholly upticles from the Portland house, in accordance on his own behalf, and not as the agent, with the terms and conditions contained in manager, or other representative of the Idathe letter of said house to plaintiff. On the ho Gold-Extraction Company, or any one else. arrival of the goods, plaintiff went to the We are not convinced, from the record, of house of defendant, and informed his wife the correctness of the finding of the jury up(defendant being absent from home) that said on this question. We should feel compelled, tanks had arrived, and was informed by de- under the evidence as shown by the record, fendant's wife that he (defendant) was not to recognize the verdict, under the well-esready to receive the tanks, but would like to tablished rule that when the evidence is conhave the plaintiff "store them away for a flicting the appellate court will not disturb week or two, until he could take them"; and the verdict. thereupon plaintiff stored the tanks in the The objection of appellant that the verdict warehouse of one Nourse, as he (plaintiff) of the jury was general, and not special, as alleges, for the defendant. A short time stipulated by the parties, is not tenable. The thereafter, defendant called upon plaintiff, Statute (Rev. St. § 4397) provides: "In an and plaintiff informed him what disposition action for the recovery of money only or spehe had made of the goods, and defendant ex- cific real property, the jury in their discrepressed himself entirely satisfied therewith. tion may render a general or a special verPlaintiff at the same time exhibited to de- dict. In all other cases the court may direct fendant the bill or shipping memorandum of a jury to find a special verdict," etc. This the goods, and an opportunity was given de- was an action for the recovery of money fendant to examine them; but he declined only. Neither the court, by instructions, nor to do so, saying "he guessed they were all counsel, by stipulation, could enforce the right,” and that he would remove them in a finding of a special verdict by the jury. short time, at the same time paying to plain- Appellant objects that the verdict is extiff $100 on the purchase price of the tanks. cessive. We are not aided much, either by The plaintiff, in this whole transaction, seems the briefs or oral argument of counsel, on to have been, to some extent, the mere agent this proposition, and we have been compelled of the defendant. It is true, plaintiff be- to go to the record for information upon this

liable to the manufacturer for the question. From a careful examination of goods, but they were ordered by the defend- the evidence, we are constrained to hold that ant, upon his specifications and directions, the verdict is excessive, to the amount of and for prices and upon terms submitted to $47. The plaintiff testifies that the value of him and assented to by him; and when they the four larger tanks was $140 each, but the arrived at Boise City, on board cars, they memorandum from which and upon which became and were the property of the de- the order was based puts the price at $130 fendant, and from that time he was responsi- each. We think the latter should control, ble for them, at their agreed price, to plain and the judgment will therefore be modified tiff. The plaintiff had done everything he to the extent of $47, being the difference bewas to do under the agreement between him- tween the sum stated by the plaintiff and self and defendant, and had given notice to that stated in the memorandum from which defendant thereof. The defendant had ac- the order was made, and the interest on such cepted the goods, and made a part payment

The judgment of the district court therefor. Goddard v. Binney, 115 Mass. 450, is modified by the deduction of $47, and the and cases there cited; Wood, St. Frauds, p. cause is remanded to the district court, with 553, 8 301, and cases cited. To undertake to directions to enter judgment in accordance reconcile the innumerable decisions upon this with this opinion; costs of this appeal to be statute “were a task as rash as ridiculous." taxed equally against respondent and appelWe shall have done all that is required of us

lant. when we have made such an application of the rule prescribed by our statute, to the

MORGAN, C. J., and SULLIVAN, J., confacts presented by the record, as is required,

came

sum.

v.39p.no.6436

cur.

plaintill; 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 de fendant 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 district 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.

(4 Idaho, 351) CITY OF BOISE CITY V. ARTESIAN HOT

& COLD WATER CO.' (Supreme Court of Idaho. Feb. 23, 1895.) WATER COMPANIES-Specifio PerrORMANCE

ConstitUTIONAL LAW. 1. A complaint alleging he organization and operation of a water company under sections 2711, 2712, Rev. St., and praying for de cree of court compelling said company to fur. nish 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 nater 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. Alfirmed.

Plaintiff alleges: Corporate existence of both plaintiff and defendant. That defend. ant 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 hy. drants 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 bas 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.

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 rigbt 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, & fifth shall be selected by these four, or in case of disagreement the probate judge shall appoint a tisth. 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

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