to procure a review of such an order, except by an appeal from the judgment itself, so the appeal from the order striking the motion from the files was a nullity. Respondent moved, in the district court, to dismiss the appeal. The motion was granted upon the ground that the motion to vacate and set aside the default and judgment, filed August 3d, having been stricken from the files on August 7th, and appellant having thereafter, on the same day, renewed the motion, abandoned that made on August 3d, and that the one of August 7th, having been filed more than ten days after the entry of judgment, was not in time as required by section 4674, Rev. Codes, which provides: The court may also, on such terms as may be just, and on payment of costs, relieve a narty from a judgment by default taken against him by his mistake, inadvertence, surprise, or excusable neglect; but the application for such relief must be made within ten days after the entry of the judgment, and upon an affidavit showing good cause therefor." judgment as required by section 4839, Rev. Codes, which is as follows: "When a party appeals to the district court on questions of law alone, unless the question arises upon the pleadings or files in the action, or appears from the docket of the court, he must, within ten days from the rendition of the judgment, prepare a statement of the case, and file the same with the justice or judge. The the party intends to rely on the appeal, and statement must contain the grounds upon which so much of the evidence as may be necessary to explain the grounds and no more. * * In this case the motion to vacate and set aside the default and judgment, the affidavits in support thereof, the motion to strike, the grounds thereof, and the order of the probate court thereon were all contained in the files of the action and the docket certified by the probate judge to the district court. A statement of the case, as provided for in section 4839, supra, was therefore unnecessary. [5, 6] The action of the district court in dismissing the appeal upon the grounds stated in the judgment was erroneous. AppelThis appeal is from the judgment of dis-lant's act of refiling his motion after the ex missal. [2] The appeal from the judgment of the probate court must be deemed to have been taken upon questions of law alone, although the notice thereof recites that it was taken upon questions both of law and fact. Section 4695, Rev. Codes, as amended by section 4, c. 194, Sess. Laws 1911, p. 652, is as follows: "When, in an action arising upon contract for the recovery of money or damages only, the defendant fails to appear and answer or demur at the time specified in the summons, or within one hour thereafter, the court must, upon the application of the plaintiff, enter the default of the defendant, and immediately thereafter enter judgment against the defendant for the amount specified in the summons, including costs. * It appears that respondent's action was based upon a contract for the payment of money so that, appellant having defaulted, proof of the claim was not necessary. There was no issue of fact presented to the probate court and, upon appeal, the district court acquired jurisdiction to review only the issues of law presented thereby. Smith v. Clyne, 15 Idaho, 254, 97 Pac. 40. [3, 4] Section 4844, Rev. Codes, provides: "Upon an appeal on questions of law alone, the district court may review all orders affecting the judgment appealed from, and may set aside, or confirm, or modify, any or all of the proceedings subsequent to, and dependent upon, such judgment, and may, if necessary or proper, order a new trial in the district court. The order of the probate court sustaining respondent's motion to strike appellant's motion from the files was such an order as is contemplated by section 4844, supra, and the proceedings in that court, subsequent to the entry of judgment, are reviewable by the district court upon appeal therefrom upon questions of law. Respondent insists that the appeal to the district court was ineffectual because no statement of the case was piration of ten days subsequent to the entry of judgment was a nullity, and he stands in the same position he would have occupied had he done nothing, after his motion was stricken, other than to perfect an appeal from the judgment upon questions of law. This brings us to the question: Was appellant's motion, filed on August 3d, erroneously stricken? If it were not we would not reverse the action of the district court in dis missing the appeal, even though it is based upon mistaken grounds, for section 4231, Rev. Codes, directs: disregard any error or defect in the pleadings "The court must, in every stage of an action, tial rights of the parties and no judgment shall or proceedings which does not affect the substanbe reversed or affected by reason of such error or defect." Empire Mill Co. v. District Court, 27 Idaho, 383, 149 Pac. 499; Schultz v. Rose Lake Lumber Co., 27 Idaho, 528, and cases therein cited on pages 533 and 534, 149 Pac. 726; Cady v. Keller, 28 Idaho, 368, 154 Pac. 629. The motion was stricken on the ground that proper notice thereof had not been given to respondent. That ground, if well founded in fact, was sufficient to have justified the probate court in requiring appellant to give proper notice, but it did not constitute any reason for striking the motion from the files, and the action of the probate court in so doing constitutes reversible error. We are not unmindful that the merits of the motion to vacate and set aside the default and judgment has not been passed upon by the probate court, and we are fully aware that such a motion is addressed to the sound discretion of the tribunal in which it is made; but in view of the facts presented by this record, and particularly in view of the affidavit made by the probate judge, it would be an abuse of discretion for him to deny this motion, and it is therefore a proper case in which to direct the action to be taken [7] There has been no trial of the facts of this case in the probate court and a trial thereof, in the first instance, cannot be had in the district court upon appeal, but it must be remanded to the tribunal in which it originated. Smith v. Clyne, supra; Zimmerman v. Bradford-Kennedy Co., 14 Idaho, 681, 95 Pac. 825; Gaiser v. Steele, 25 Idaho, 412, 137 Pac. 889; Smith v. Superior Court, 2 Cal. App. 529, 84 Pac. 54. The judgment of the district court is reversed, with directions to reverse the judgment of the probate court, and to direct the probate court to overrule the motion to strike, and to sustain the motion, filed on August 3, 1915, to vacate the default, and set aside the judgment, to permit appellant to file his answer, and to try the case upon its merits. Costs are awarded to appellant. BUDGE, C. J., and RICE, J., concur. JENSEN v. McCONNELL BROS. et al. (Supreme Court of Idaho. Dec. 6, 1917.) 1. EVIDENCE 441(11) PAROL EVIDENCEEXCEPTION TO CONTRACT. The payor of a promissory note complains to the payee of partial failure of consideration, and thereafter, before the maturity of the note, enters into a written agreement with payee, whereby the time for payment of the note is extended, and which agreement contains the following stipulation: "In consideration of the foregoing extension of time for the payment of the said note, the party of the second part, as a copartnership and each and both firm members thereof both as copartners and individually, does and do hereby expressly waive, satisfy, cancel, relinquish, discharge, and surrender each, any, and all claims, offsets, setoffs, counterclaims, choses in action, causes of action, debts, remedies, or rights to money. property, damages, or legal or equitable relief that it, they, or either of them, has or have against the party of the first part at the date of this agreement or at any time heretofore." Held, that in the absence of proof of imposition, fraud, duress, undue influence, mutual mistake, or of unilateral mistake fostered by misrepresentation, the payor of such note may not prove an exception to such contract by parol, and it is error to admit oral evidence varying the legal effect of such contract. 2. CONTRACTS 93(1) — MISTAKE NEGLI GENCE. - A party will not be relieved from the terms of a written contract on the ground of mistake due to his negligence, when it was within his power to have a stipulation inserted in the agreement which would have protected him fully. He is bound to assume any risk he might have provided against in the contract. 3. DIRECTION OF VERDICT JUDGMENT. Held, that the trial court erred in refusing to instruct the jury to return a verdict for appellant, and in refusing to set aside the verdict of the jury, and in entering a judgment for respondents. J. P. Reed, of Emmett, and Jackson & Walters, of Caldwell, for appellant. Finley Monroe, of Emmett, and Scatterday & Van Duyn, of Caldwell, for respondents. BUDGE, C. J. This is an action on a promissory note. Respondents admit the giving of the note, but deny that it has not been paid, and allege that it was given as a part of the consideration for the purchase of certain land and a water right, and in their cross-complaint allege in substance: That on or about the 31st day of May, 1911, they purchased from appellant certain lands and a water right; and as an inducement thereto appellant verbally represented to respondents that there was a good and sufficient water right for the irrigation of 250 acres of the land; that respondents relied upon the representations and purchased the land and water right; that appellant failed and neglected to furnish any water right, and respondents were compelled to, and did, purchase a water right for the irrigation of 250 acres, paying therefor $1,500, which was alleged to be the amount of the damage; that at the time of giving the promissory note it was mutually verbally understood and agreed that there was to be a settlement of the question of water right when the note became due. The answer to the cross-complaint put in issue the allegations thereof and, in addition to certain affirmative matter, not material here, alleged that in November, 1912, when one of the notes became due, respondents began making complaints with reference to the water right mentioned in the cross-complaint. For the purpose of finally settling all disputes between the parties, a written contract was entered into on the 29th of November, 1912, wherein appellant agreed to extend the time of payment of the note then due for the period of one year. [1] This agreement contains the following stipulation: "In consideration of the foregoing extension of time for the payment of the said note, the party of the second part, as a copartnership and each and both firm members thereof both as copartners and individually, does and do hereby expressly waive, satisfy, cancel, relinquish, discharge, and surrender each, any, and all claims, offsets, set-offs, counterclaims, choses in action, causes of action, debts, remedies, or rights to money, property, damages, or legal or equitable relief that it, they, or either of them, has or have against the party of the first part at the date of this agreement or at any time heretofore." The cause was tried to a jury, who returned a verdict for respondents on their Appeal from District Court, Canyon Coun- cross-complaint, and judgment was entered ty; Ed. L. Bryan, Judge. thereon. This appeal is from the judgment. Numer-ed, and the refusal of the trial court to inous errors are assigned in appellant's brief, struct the jury to return a verdict for apbut it will be unnecessary to discuss all of pellant, and the refusal to set aside the verthem, as a determination of the eighth, ninth, dict, and the subsequent action of the court tenth, and eleventh assignments will neces- in entering judgment for respondents, were sarily dispose of the case. These are, in sub- erroneous. stance: That the court erred in refusing to instruct the jury to return a verdict for plaintiff; in refusing to set aside the verdict, and in entering judgment for respondents; and that the evidence is insufficient to support the verdict or the judgment. MORGAN and RICE, JJ., concur. In this case it will be necessary for the trial court to determine what is a reasonable attorney's fee to be allowed appellant, and thereafter enter judgment as prayed for in appellant's complaint. Exchange State Bank v. Taber, 26 Idaho, 723, 145 Pac. 1090. The whole case turns upon the effect to be The judgment is reversed, and the cause given the written agreement of November 29, is remanded, with instructions to the trial 1912, pleaded in the answer to the cross-court to cause proceedings to be had in accomplaint. The material part of this agree- cordance with the views herein expressed. ment has been quoted above. It is clear Costs are awarded to appellant. that, if it is to be construed and given the effect that the broad and inclusive scope of its terms would seem to demand, it effectually closes every avenue of defense which respondents may have had prior to the date of its execution, or which may be in any manner brought within the issues sought to be raised by their answer and cross-complaint; but it is contended by respondents that the agreement does not express the real intention of the parties, that it was never intended to include any waiver of their alleged claim with reference to the water right, and upon this theory they were permitted to introduce oral evidence to that effect, over the objection of the appellant. The trial court, proceeding upon the theory that such evidence was admissible, and evidently regarding the weight and sufficiency thereof as matter peculiarly within the province of the jury, overruled the motion for an instructed verdict, refused to set aside the verdict, and gave respondents judgment. But, in the absence of proof of imposition, fraud, duress, undue influence, mutual mistake, or of unilateral mistake fostered by misrepresentation, the true rule, both upon principle and as settled by the great weight of authority, is that: "Where a release is contractual and general in its terms and there is no limitation by way of recital or otherwise, the releasor may not prove an exception by parol. * * Elliott on Contracts, vol. 3, § 2061, p. 248; 17 Cyc. 621, 10 R. C. L. 1021. [2] Nor will one be relieved from the terms of a contract on the ground of mistake due to his negligence when it was within his power to have a stipulation inserted in the agreement which would have fully protected him. He is bound to assume any risk he might have provided against in the contract. Elliott on Contracts, vol. 1, § 110, p. 192. [3] Respondents do not dispute the execution of this contract. In fact, the respondent who signed it testified that he read the instrument before signing it. It follows that, under the rule above stated, the oral evidence referred to should have been exclud BROWN v. HARDIN. (Supreme Court of Idaho. Dec. 11, 1917.) 1. APPEAL AND ERROR 171(3)-THEORY OF CASE. Where both parties to an action try their case upon the same theory as to the issue tendered by the pleadings, they are bound by the theory so adopted. 2. APPEAL AND ERROR CONFLICTING EVIDENCE. 1002 — VERDICT Where conflicting evidence upon an issue has been submitted to a jury, the verdict based thereon will not be disturbed. 3. APPEAL AND ERROR ERROR-INSTRUCTION. 1064(1)—HARMLESS Where the jury has returned a verdict for the defendant upon a counterclaim, and where it cannot be determined from the record whether the verdict was based upon a correct theory of the trial court, such instruction is prejudicial the case or an erroneous instruction delivered by error. Appeal from District Court, Twin Falls County; Wm. A. Babcock, Judge. Action by W. H. Brown against John W. Hardin, with counterclaim by defendant. Judgment for defendant, and plaintiff appeals. Reversed, and a new trial ordered. Porter & Smith, of Twin Falls, for appellant. Longley & Walters and Taylor Cummins, all of Twin Falls, for respondent. RICE, J. This action was instituted by appellant to recover the balance upon two promissory notes executed by the respondent in favor of Reeves & Co., a corporation of Columbus, Ind., as part payment for a certain threshing engine. The notes had been indorsed by Reeves & Co. to the Northville State Bank of Northville, S. D., and by the bank indorsed to the appellant herein. The notes in question were secured by a chattel mortgage executed by the respondent upon the engine, as well as some additional personal property. The respondent admits the execution of the notes. As an affirmative defense to appellant's action he alleged that on or about the 20th day of March, 1910, he, being desirous of leaving the state of South Dakota and of disposing of his holdings therein, entered into an agreement with the bank, the then owner and holder of the notes and chattel mortgage above referred to, to the effect that the threshing engine was to be left with one E. H. Wilson, of Northville, S. D., and by him sold with the approval of the bank, and so much of the proceeds of the sale as would be sufficient to cover the amount due on the notes should be delivered to the bank, and the notes of respondent above referred to should be canceled and released, and the surplus of such sale, if any, should be paid to respondent, that thereafter Wilson sold the threshing engine and other property to one John Larson for a sum greatly in excess of the amount due upon the notes referred to, and that Larson executed his notes for the purchase price, and secured the same by a chattel mortgage upon the threshing engine and other personal property, and also executed a real estate mortgage upon a quarter section of land in South Dakota to secure the notes, and that the notes and mortgage made as aforesaid by Larson were accepted by the bank in full settlement of any and all indebtedness the respondent owed to it on account of the two notes sued upon in this action, and upon the further express agreement and promise that all sums to be realized upon the notes and mortgage of Larson in excess of the indebtedness of respondent to the bank would be paid by it to him. Respondent further alleged that the bank wrongfully and fraudulently converted and appropriated the notes and mortgage made by Larson to its own use, and thereafter and without any process of law made a pretended foreclosure of the mortgage originally given by respondent on the threshing engine, the foreclosure being made by a person without any authority of law and not clothed with power so to do, and that by reason of the premises respondent was deprived of his property without due process of law. The respondent, under a pleading which he denominated a cross-complaint, also alleged that the appellant unlawfully and fraudulently converted and appropriated the Larson notes and mortgage. spondent for the excess so collected over his indebtedness to the bank. [1] The cause was tried upon the theory that the counterclaim alleged an agreement on the part of the bank to accept the proceeds of the sale of the property by Wilson, whether such proceeds should be cash or notes or other securities, and to pay to respondent the excess of the proceeds, if any, over the indebtedness due the bank by the respondent. The briefs of both the appellant and respondent agree upon this point. In the brief of appellant we find the following: "Defendant claims that one G. H. Brown, an officer of said bank, agreed for the bank that such sale was to be with the approval of the bank, and that the bank accepted the proceeds of such sale in full settlement of the defendant's notes and would render to defendant any overplus." Respondent in his brief states appellant's contention as follows: "Appellant claims that the only agreement made by the bank with respondent was that the proceeds of the sale made by Wilson Bros. were to be applied on the indebtedness of respondent to the bank on the notes in suit." Both parties having tried the cause upon the same theory as to the issue tendered by the pleadings, they are bound by the theory so adopted. 4 C. J. 662; Fouch v. Bates, 18 Idaho, 374, 110 Pac. 265. Under that theory any question of the conversion either of the Larson notes or the threshing outfit by the bank or the appellant is eliminated from the case. We [2] On the issue upon which the case was tried the evidence was conflicting. would not be justified in setting aside the verdict on any assignments of error on the part of the appellant specifying insufficiency of the evidence. [3] The following instruction was given by the court at the request of the respondent, and is assigned as error: believe from the evidence that the notes and "You are instructed by the court that, if you mortgages made by John Larson for the purchase price of the threshing rig in question were delivered by [to] the Northville State Bank or to the plaintiff in this action under an agreement that they should be accepted by the bank in payment of Hardin's notes, and not be taken as collateral security for the payment of the notes sued upon by the plaintiff, then the plainmortgage on the threshing rig in question, and tiff had no authority to foreclose the Reeves such foreclosure and the taking possession of the property covered by such mortgage was without authority, and amounts to a conversion for which the plaintiff is liable to the defendant, and the defendant may recover the value of the property at the time of its conversion.' It will be observed that the affirmative pleadings of the respondent are not consistent. Having alleged the sale of the threshing rig to Larson and the extinguishment of his own debt to the bank by the proceeds of the sale, the respondent could not thereafter claim an interest in the property sold or reThe instruction is erroneous. It proceeds cover for injury to himself resulting from upon the theory that the property had althe foreclosure of a chattel mortgage there-ready been sold to Larson, and if the proon. Neither could the bank agree to take ceeds of the sale had extinguished the intitle to the Larson notes and pay to respond- debtedness of the respondent, the foreclosure ent the difference between such notes and would be an invasion of the rights of Larthe indebtedness due the bank from respond- son, and not of respondent, and the appellant ent, and at the same time agree to collect would be liable to Larson, and not to re VOLUNTARY cannot be said that the giving of this in- 5. CRIMINAL LAW 531(3) in this case to show that the confessions of the the jury that they must acquit the defendant, The judgment is reversed, and a new trial is ordered. Costs are awarded to appellant. The justice of the peace who sat as committing magistrate in this case was appointed as such justice for Buhl precinct No. 2, but on the date of his appointment and on the date of the preliminary hearing he was a resident of Buhl precinct No. 1, and at all times held his court therein. Held, that while it may be true, under section 3885, Rev. Codes, that he was not eligible to the office of justice of the peace of the precinct for which he was appointed, and hence could not be regarded as an officer de jure, still under the facts shown by the record he was an officer de facto, and as such his jurisdiction and official acts were as valid as to the public and third parties as though he were qualified and eligible in every respect. 2. CRIMINAL LAW 628 (3)-INDORSEMENT OF NAME OF WITNESS-TIME. Where the trial court permitted the indorsement of the name of a witness on the information the day the case was called for trial, but it does not appear that defendants' counsel requested a continuance or claimed surprise, or that defendants were in any way prejudiced, and it further appears that the matter in regard to which such witness testified occurred more than a month after the information was filed, no error was committed. 3. CRIMINAL LAW 1153(4)-WITNESSES Permission to counsel for the state in a criminal case to ask leading questions of witnesses, aside from the cases provided for by statute, rests largely in the discretion of the trial court, and does not constitute reversible error in the absence of an abuse of such discretion. 4. CRIMINAL LAW 404(3)-EVIDENCE-EXHIBITS-SUFFICIENCY OF IDENTIFICATION. Held, that the exhibits in this case were sufficiently identified upon the trial to justify their admission. TIONS. instructions when such instructions are given by Error cannot be predicated on the refusal of the court in a different form, but substantially as requested. 8. CRIMINAL LAW 825(3) — INSTRUCTION CIRCUMSTANTIAL EVIDENCE-COMPLAINT. When there is no request on the part of defendants' counsel for an instruction defining circumstantial evidence, an instruction as given by the court cannot be attacked on the ground that it does not include such definition, when the instruction correctly states the law as far as it goes, applicable to the facts in evidence. 9. CRIMINAL LAW 1172(1)—INSTRUCTION— JURY'S DUTY TO AGREE-HARMLESS ERROR. In instruction No. 11 the court instructed the jury: "No juror from mere pride of opinion hastily formed or expressed should refuse to agree; nor on the other hand should he surrender any conscientious views founded on the evidence. The jury should, therefore, lay aside pride of opinion and judgment, examine any differences of opinion there may be among them, in a spirit of fairness and candor, reason together and talk over such differences, and harmonize them, if possible, so that this case may be disposed of." Held, that while the giving of such instruction was not justified, it cannot be regarded as prejudicial to the defendants or as constituting reversible error, under the circumstances of this case. 10. CRIMINAL LAW 1172(1)-HARMLESS ERROR-INSTRUCTIONS-REASONABLE DOUBT. Instruction on reasonable doubt considered, and held, that while said instruction contained unnecessary matter, it was not prejudicial to the defendants, and the giving of it did not constitute error. Appeal from District Court, Twin Falls County; Wm. A. Babcock, Judge. George Nolan and Percy Heath were convicted of grand larceny, and they appeal. Affirmed. Longley & Walters and Taylor Cummins, all of Twin Falls, for appellants. John E. Davies, Pros. Atty., of Twin Falls, T. A. Walters, Atty. Gen., and Edwin Snow and Laurel E. Elam, both of Boise, for the State. BUDGE, C. J. The appellants, George Nolan and Percy Heath, were jointly informed against, together with Ralph Cunningham and Harry Hartwell, for the crime of grand larceny; it being alleged therein that the defendants "on or about the 21st day of June, 1914, at the county of Twin Falls, state of Idaho, did then and there willfully, unlawfully, and feloniously take, steal, drive, and carry away one black polled Angus heifer of the value of $100, and of the per |