controversy Grant had made other purchases | arrived, or, without his fault, are injured on from the plaintiff, but none of them had been the way."

shipped in a pool car, and all of them had The rule thus stated is recognized by the been consigned directly to him at Dillon.

Counsel for defendant have made several assignments of error in their brief, but it will not be necessary to notice them in detail. The substantive question raised and submitted is whether the court erred in directing a verdict for the plaintiff.

courts generally. If, however, the seller deviates from the contract in a substantial particular, as, for illustration, by delivering goods other than those ordered (Mette & Kanne Distilling Co. v. Lowrey, supra), or by directing them to a point at which the purchaser does not receive goods (American Standard Jewelry Co. v. Witherington, 81 Ark. 134, 98 S. W. 695), or when they are

[1] The rule is well established by the decisions of this court that when, in a case being tried to a jury, the evidence is undisput-purchased for delivery at a point named, by ed and furnishes the basis for but one reasonable conclusion, the only question for determination is one of law, and that the court may direct the jury to render a verdict in favor of the party entitled to it. Consolidated, etc., Min. Co. v. Struthers, 41 Mont. 565, 111 Pac. 152; Milwaukee Land Co. v. Ruesink, 50 Mont. 489, 148 Pac. 396.

failing to deliver them at that point (Heert v. Ridenour-Raymond Grocery Co., 48 Colo. 42, 108 Pac. 968, 139 Am. St. Rep. 259), or by delivery to a carrier other than the one selected by the purchaser (Woodbine Children's Clothing Co. v. Goldnamer, 134 Ky. 538, 121 S. W. 444, 20 Ann. Cas. 1026), or when the purchaser has directed them to be consigned to a particular person, by consigning them to some other person (Wood

these cases is delivery to the carrier delivery to the purchaser so as to vest title in him, unless, being informed of the deviation, the purchaser assents to it. The only

[2] As to the facts set out in the foregoing statement there is no material controversy. Neither is there any controversy that the ruff v. Noyes, 15 Conn. 335), in none of plaintiff made verbal demand upon the defendant for delivery of the whisky and tendered to it the freight from Louisville to Butte at the carload rate. There is some conflict in the statements of the witnesses, how-inference permissible from the undisputed ever, as to whether the tender was made im- facts is that Grant purchased the whisky mediately before or immediately after the for consignment to himself at Dillon in the action was commenced. As will be point- usual way. The contract was silent as to ed out later, in view of the position assumed how the consignment should be made. by the defendant as to its rights in the Plaintiff was free to select the carrier to premises, it is immaterial whether demand which it made delivery; but it was bound and tender were made at all. The determin- by its promise implied by the circumstances ing question to be decided is: In whom was to make the consignment to Grant at Dillon. the title to the whisky vested when the ac- Instead of doing this, it chose the pool car tion was commenced? Counsel for defend- arrangement, and made the consignment to ant assuming that by delivery to the car- the defendant, to be by it reconsigned to rier at Louisville through the Kentucky Dis- Grant. This was evidently for its own bentilleries & Warehouse Company for shipment efit, viz. to gain the advantage of the lower to Grant plaintiff fully performed its obliga- rate of freight in order to make good its tion under the contract, they insist that the guaranty to Grant that the price to him at title at once vested in Grant, and hence that Dillon should not exceed $2.59 per gallon. plaintiff cannot maintain this action. To sus- Grant was therefore not vested with the titain their position they invoke the rule that tle, and was clearly within his rights in the delivery of goods by a seller to a carrier refusing to recognize defendant as his agent for shipment to the purchaser, in the absence for any purpose, though, as shown by its of circumstances indicating a contrary in- letter of February 18th to plaintiff acknowltention, is sufficient evidence of delivery to edging receipt of shipment and its notice to vest title in the purchaser. They say that Grant, defendant assumed to hold the shipunder this rule the carrier becomes the agent ment for the latter pending a settlement of of the purchaser to accept delivery for him, its claim against him. and that by delivery to the carrier the seller relinquishes all control over the shipment to the purchaser. The rule is elementary. Mette & Kanne Distilling Co. v. Lowrey, 39 Mont. 124, 101 Pac. 966; Willman Mercantile Co. v. Fussy, 15 Mont. 511, 39 Pac. 738, 48 Am. St. Rep. 698; 1 Mechem on Sales, § 739. In his work on Sales, Mr. Mechem, in section 739, says:

Counsel contends that in any event it was the exclusive province of the jury to determine the ownership of the whisky under appropriate instructions. Under the uncontroverted evidence, this became a question of law for the court.

[3-5] Counsel contend also that the court erred in failing to submit to the jury the question whether demand for possession was "The effect of the delivery to the carrier un-made by plaintiff before the action was comder proper circumstances is thus not only to menced, and whether a tender was made of transfer the title, but also to fix ordinarily the the freight. There is some conflict in the time and place at which the title passes. With the title go the risk and liability, and the seller testimony as to whether formal written de

oral consent in open court, entered in the minWhere the right to a jury trial is waived by utes pursuant to Rev. Laws, § 5226, setting aside such waiver rests in the trial court's discretion.

9. JURY

TING ASIDE.

28(17)-WAIVER OF RIGHT-SET

menced: but there is no controversy that | 7. APPEAL AND ERROR 1010 (1)—REVIEWverbal demand was made by one of plaintiff's FINDINGS. attorneys. This was sufficient. But, aside will not be disturbed, where no passion or prejA finding supported by substantial evidence from this, the defendant, assuming that udice on the trial court's part is indicated." Grant was the owner of the whisky, claim-8. JURY 28(17)—WAIVING RIGHT TO-SETed the right to hold it for the purpose of TING ASIDE. forcing Grant to adjudicate a claim due to 1t. At the trial it asserted title in Grant in order to defeat recovery by the plaintiff; in other words, it controverted plaintiff's title on the merits. Under these circumstances a demand was not necessary. Bennett Bros. Co. v. Tam, 24 Mont. 457, 62 Pac. 780; 34 Cyc. 1410. Neither, for the same reason, was tender necessary. Mr. Stromberg, the president of defendant, testified in effect that it was the purpose to hold the whisky for Grant in order to enforce a settlement of defendant's claim, notwithstanding a demand and tender had been made. A tender would therefore have been futile. The law does not require a useless thing. Stanford v. Coram, 26 Mont. 285, 67 Pac. 1005; Cassidy v. Slemmons & Booth, 41 Mont. 426, 109 Pac. 976.

DE REMER v. ANDERSON. (No. 2227.) (Supreme Court of Nevada. Jan. 14, 1918.) 1. LANDLORD AND TENANT -EFFECT.

88(3)-RECEIPT

A rental receipt for a period longer than that named in the lease is only evidence of money paid, and does not establish a new consideration necessary to a modification of the lease. 2. LANDLORD AND TENANT 88(3)-MODI

FYING LEASE-CONSIDERATION.

Evidence that lessee worked the demised premises from the date of the lease, although the landlord's horses were pastured on it for several weeks from such date, held not to establish a consideration for an agreement extending the lease two weeks.

3. EVIDENCE 460(4) — LEASE-PAROL EVI

DENCE.

Land covered by a lease may be identified by parol evidence, but such evidence cannot supply an entire absence of description. 4. REFORMATION OF INSTRUMENTS FORMING CONTRACT-FRAUD.

in refusing to set aside a waiver of jury trial The trial court did not abuse its discretion made in open court, where the application was not made until the trial.

Coleman, J., dissenting.

Appeal from District Court, Washoe County; R. C. Stoddard, Judge.

Unlawful detainer action by Mary De Remer against Charles J. Anderson. Judgment for plaintiff, and defendant appeals. Affirmed.

J. M. Frame and M. B. Moore, both of Reno, for appellant. A. A. Heer, of Reno, for respondent.

MCCARRAN, C. J. This was an action for unlawful detainer. It appears that on the 14th day of March, 1914, a lease was entered into between the appellant and respondent here, pursuant to which instrument appellant took possession of the premises, a part of which is involved in this controversy. The lease on the premises contained, among other things, the following provisions:

"That the said party of the first part, for and in consideration of the amount herein mentioned and the terms and conditions hereinafter stated, hereby leases and lets to the said party of the second part all of her home ranch, the same consisting of about 60 acres of land and lying south of Reno, in Washoe county, Nevada, on the Virginia road to the Corcoran ditch, and extending on the south from the Haynes ranch northditch. This lease is to be in force and effect erly to what is known as the South Side drain and to extend for one year from the date hereof, or to and including the 14th day of March,

1915.

"It is understood and agreed that this lease is extended for another four years or from the 14th day of March, 1919, on the south 10 14th day of March, 1915, to and including the acres, more or less, which said south 10 acres extends from the Haynes ranch north to the 47-RE-irrigating ditch used by Menke. The said party of the second part is to pay for the use of the said land herein leased for the first year, or until the 14th day of March, 1915, the price and sum of $375 in cash. Said $375 is to be paid as follows: $100 on or before April 10, 1914, and $275 on or before the 1st day of November, 1914.

A written contract, in which an omission occurs through fraud or mistake, will not be reformed, in order to decree specific performance. 5. EVIDENCE 450(4)-DESCRIPTION-"ANY PART."

A lease authorizing the lessee to purchase "any part" of certain premises held too indefinite to be aided by parol evidence, and to afford the lessee no defense in a forcible entry and detainer action.

6. VENDOR AND PURCHASER TION-SUFFICIENCY.

57-DESCRIP

An option contract must so describe the property that it can be identified from the instrument itself, although parol evidence is admissible to show the description's application.

the parties hereto that the said second party is "It is understood and agreed by and between to pay for the use of the south 10 acres for the term of four years and extending from March 14, 1915, until March 14, 1919, the price and sum of $150 per year. Said sum and amount is to be paid $75 on or before the 10th day of April, and $75 on or before the 1st day of November, of each and every year during the life of said lease.

"It is understood and agreed by and between

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the parties hereto that said first party hereby | 1st day of April of that year, could only gives and grants to the second party an option be pursuant to a valid agreement or conor right to purchase all or any part of the land tract by which the terms of the old conherein leased which lies south of the fence on the south side of the orchard running due west tract were extended. from the Virginia road to the Corcoran ditch, and extending southerly to the Haynes ranch and containing 20 acres more or less. This option or right to purchase is for the term of five years from date hereof, or to and including the 14th day of March, 1919. "It is further understood that, if the said party of the second part does at any time during the life of this option elect to exercise his right of option and to purchase the said property or any part thereof, he may do so by paying therefor the price and sum of $300 per acre cash, or such as he elects to purchase during the life of the option."

It will be noted that that which is designated in the lease as the south 10 acres, being demised to the appellant by the terms of the lease for a period of five years, or until March 14, 1919, is not involved in this controversy.

Appellant here contends that the action was prematurely commenced in the court be low, inasmuch as it was instituted prior to the 1st day of April, 1915. In this respect appellant contends that the time within which appellant should have possession of the premises pursuant to the terms of the lease was extended by the mutual agreement of the parties, and that this is evidenced by the receipt of October 29, 1914, containing the words "to the first of April, 1915." The record as it is before us as to all matters of fact presents sharp conflicts in the evidence. Respondent here, in testifying in the trial court, denied the existence of the receipt of October 29th in the form in which it was presented; that is, containing the words "to the first of April, 1915." She admitted having signed the receipt, but contended that at the time of the placing of her signature to the instrument it terminated with the words "one year."

[2] It is the contention of appellant that the retention of possession by respondent of the leased premises for a period of time after the making of the lease, to wit, from the 14th day of March to the 1st day of April, 1914, and the deprivation to appellant of the possession of the premises for that period, constituted the consideration by reason of which the lease was extended, as evidenced by the receipt from the 14th day of March 1915, to the 1st day of April. This contention of appellant, if it were supported by the evidence, might have some stability, for it is a rule eminently recognized that a consideration emanating from some injury or inconvenience to the one party, or from some benefit to the other, is a valuable consideration (Conover v. Stillwell, 34 N. J. Law, 54; Story on Contracts, § 429; Parsons on Contracts, 431); but the element of inconvenience or injury to the one party or the convenience to the other, when the same is controverted, is a matter of fact, to be determined as any other element. Such may be inquired into, and, if the inconvenience to the one or the convenience to the other is not supported by the proof, the element of consideration based upon such facts falls. Conover v. Stillwell, supra.

The evidence in this case bearing upon the question of the inconvenience to appellant, affected by his failure to secure possession of the premises between the 14th day of March, 1914, and the 1st day of April, of that year, is, to say the least, unsatis factory. It was testified by the respondent and by the witness Brewington that appellant had immediate possession of the premises on and after the 14th day of March, 1914. In fact, the appellant himself testifies to his having put a man to work on the premises, and nothing is presented by the record which would indicate that the respondent did anything the nature of which would be to deprive appellant from taking possession. It is claimed that during the interim between the 14th day of March and the 1st day of April, 1914, certain horses were pastured on the premises, and that respondent had collected the pasturage for the same. If this be true, it constitutes a separate matter, involving a right and a remedy of which appellant could have availed himself. Everything being considered, we are unable to find wherein the action for unlawful detainer was prematurely instituted.

[1] Primarily it may be said that the receipt here in question was but an evidence of money paid by appellant and received by respondent. It in no wise referred to the lease pursuant to which the money was paid, nor did it set up or establish new or dif ferent consideration sufficient to validate a new contract, or one varying the terms of the old. This latter was a prime essential. Robinson v. Hyer, 35 Fla. 544, 17 South. 745. The holding over by the appellant lies south of the fence on the south side of

[3-6] It is the contention of appellant that, inasmuch as the lease pursuant to which he obtained possession of the premises granted him an option or right to purchase "all or any part of the land * * leased which

patent, parol proof cannot be permitted to show what was intended."

Continuing, the court says:

In

"In this case the lots agreed to be conveyed could not be ascertained or identified, and, as a specific performance of a contract the province matter of fact, had no existence. * of the court is to enforce the contract which the parties have made, and not to make a contract for them and then enforce it."

In the case of Reed v. Lowe, 8 Utah, 39, 29 Pac. 740, the agreement pursuant to which specific performance was sought to be enforced read thus:

"Also do I sell to N. K. Ardahl a part of my. lot on the bench, size 6x10 rods deep, to be taken either way from my house, for the sum of $75 per rod, or, if it is taken 6x20 rods, for the sum of $100 per rod; in either case on the fol

the right to exercise such option or right to purchase at any time within five years, or to and including the 14th day of March, 1919, and he having elected to purchase a certain designated tract included within the premises described and containing 5.21 acres, and having tendered the purchase price thereof pursuant to the terms of the lease, it was error for the trial court to refuse to allow appellant to prove that he was put into possession of that portion of the land sued for. Further, it is contended in this respect that, inasmuch as the judgment for rental was based upon an acreage including this 5.21 acres so selected, the judgment to that extent was excessive, and the rental fixed exorbitant. In this respect respondent argues, and we think correctly, that, had ap-lowing agreement," etc. pellant in view of the terms of the lease, The court, in passing upon the matter, sought to purchase all of the tract of land, held, in conformity with the general rule, the expression "all or any part," as set that a description is regarded as sufficiently forth in the lease, might have been a suffi- definite and certain when it contains a refcient description; but, inasmuch as appel-erence from which it can be made certain. lant elected to purchase only a fractional The description there was held to contain portion of the tract of land, to wit, 5.21 no reference from which definiteness could be acres arbitrarily selected by him, the lan- established. The contract was held void for guage of the lease constituted no description uncertainty. That case is an expression of whatever. It is a doctrine well established with reference to the introduction of oral evidence explanatory of ambiguities in written instruments of a nature such as the one involved here that, where there is a descrip: tion of some sort, which description may be made intelligibly definite by evidence aliunde, parol evidence may be introduced to identify the land or premises in the contemplation of the makers of the instrument. But the rule is universal that courts will not, for the purpose of decreeing a specific performance, reform a written contract in a case of omission through fraud or mistake. It is doubtful or ambiguous terms only that may be clarified by evidence aliunde. But the entire absence of terms of description or definition will not be supplied by parol evidence. Crockett v. Green, 3 Del.

Ch. 466.

The case of Rampke v. Beuhler, 203 Ill. 384, 67 N. E. 796, affords an illustration of an application of the rule which we deem applicable here. There the agreement between the parties read:

"Claus Eggers and Ester Eggers herein agree to deed to William Beuhler, of Harvey, Cook county, Illinois, four lots, 25 feet by 150 feet deep, in either section 8 or 9, town 36 north, range 14 east of the third principal meridian, in Cook county, Illinois, for his assistance in case of Mohr et al. v. Eggers et al., to be on the road north side of said land."

the rule that parol evidence is not admissible to supply that which is lacking in the contract by reason of which the indefiniteness resulted.

In the case of Knight v. Alexander, 42 Or. 521, 71 Pac. 657, the description in the agreement was 100 acres of land off the west end of a certain tract of land lying along Lake Labish. There the court, while reviewing many cases applicable to the question here, said:

"Courts do not permit parol evidence to be given to describe the property intended to be included in the contract, and then apply such description to the terms thereof."

To the same effect are the cases of Omaha Loan & Trust Co. v. Goodman, 62 Neb. 197, 86 N. W. 1082, and Nippolt v. Kammon, 39 Minn. 372, 40 N. W. 266, and Wiegert v. Franck, 56 Mich. 200, 22 N. W. 303.

Following the rule of the admissibility of parol evidence under such circumstances as laid down by courts and chancellors in so many instances, the trial court in this instance ruled correctly in excluding evidence bearing upon the selection of a 5.21-acre tract contended by appellant to be excluded from the effect of this suit.

As we have already intimated, had the appellant exercised the option to purchase the entire tract involved in this controversy, and in so exercising had complied with the terms of the lease, a different question would be in

The court, in reviewing the question of law applicable to the admissibility of parol | volved. The term "any part," used in the evidence for the purpose of establishing the tract of land, said:

"A description of land may be sufficient if a surveyor can locate it with or without the aid of extrinsic evidence, and where a sufficient description is given, parol evidence may be resorted to to locate the premises, but where

lease, having no fixity as to amount, position, boundary, or form, was so indefinite that parol evidence could not, under the rule, be resorted to for its establishment.

We are referred by appellant to the case of Schroeder v. Gemeinder, 10 Nev. 355. There

referred approvingly to the decision of the performing certain conditions he should, at the I Supreme Court of California in the case of end of three years, become entitled to a conDe Rutte v. Muldrow, 16 Cal. 513, wherein veyance "of 42 acres off the west half of that court had before it a controversy in said 10 acres, to be selected by the plaintiff." which was involved an instrument of lease The court, in dealing with the specific quescontaining the provision: tion, said:

"That the said Muldrow shall have the privilege of purchasing any part of said land during the continuation of this lease, at its value in preference to any other persons."

"There is no uncertainty as to the manner in which the selection is required to be made, nor do we see any lack of power in a court of equity to compel the selection to be made."

It will be observed that neither the SchroedIt will be noted that by the cross-complaint er Case nor the De Rutte-Muldrow Case is of in that case the defendant sought to compel assistance to us in determining the question the plaintiff to do that which by his contract here involved. Indeed, it may be said that he had agreed to do, namely, to select the numneither of these cases holds contrary to the ber of acres designated. In the matter at view we have heretofore expressed in con- bar the party to make the selection is unformity with the authorities cited. In nei- named and unindicated. Were the terms and ther of these cases does the court attempt to conditions of the contract between the parties discuss the validity of the contract from the here at all analogous to those referred to by standpoint of uncertainty as to the premises the court of California in the Fleishmandescribed. In the Schroeder Case the prem- Woods Case, we would have no hesitancy in ises were specifically and definitely fixed by concurring in the rule there asserted. Whatdescription, while in the Muldrow Case the ever may be said as to the doctrine laid down controversy turned on the right of the lessee in Fleishman v. Woods, supra, the correct to purchase any part of the premises when rule, and that which is in conformity with such part had been designated and offered for the great weight of authority, is to be found sale to third parties. The case rather turn- in the case of Eaton v. Wilkins, 163 Cal. 742, ed on the right of one to make such contract. 127 Pac. 71, where the Supreme Court of The question of definiteness of the premises | California, speaking through Mr. Justice involved was not before the court, as we Melvin, said: read the decision.

"The description in the contract must be sufficient to bind interested parties, and cannot be made to depend for its very existence upon the subsequent action of one of them."

Our attention has been directed to the case

of Repetto v. Baylor, 61 N. J. Eq. 501, 48 Atl. 774. The case was there brought before the chancellor on motion to dismiss under rule. On such motion it was held that the facts alleged in the bill of complaint were to be taken as true. In the light of this rule the court held that specific performance would be required; but the contract as set forth, to

The uncertainty existing with reference to the option sought to be established by the lease here in question exists not only with reference to the description and amount of the land to be selected, but equally so with reference to the manner of selection or as to who was to make such selection. Appellant contends that by this language the meaning conveyed was that he alone had the right to make the selection as to the part which he would elect to purchase. But the language used fails to affirm this contention. It might with equal propriety be claimed by respond-gether with the allegations of the bill in ent that she should make the selection, and under such circumstances would it be contended that appellant was bound to purchase the part selected by respondent for sale at the price stipulated? The appellant is not designated as the party to make the selection any more than is the respondent. The in-making the contract the vendee, by the vendefiniteness as to this phase has more than one aspect.

Our attention has been directed to the case of Fleishman v. Woods, 135 Cal. 256, 67 Pac. 276, wherein the Supreme Court of California dealt with the question here presented, and we deem that case worthy of comment, only for the purposes, however, of differentiation. In that case Fleishman brought his action to quiet title to a certain 10-acre tract of land. At a subsequent date the defendant, Woods, filed a cross-complaint praying for the specific performance of a certain contract relating thereto. This contract, made the basis of the cross-complaint, was entered into between the plaintiff, Fleishman, and a third

equity, established an agreement between the parties whereby the vendor was to convey 138 lots, "the same to be chosen and designated by the said R., and said lots to remain as now marked upon map made by Morris Hillman," etc.; further, that at the time of

dor's direction, marked on the map designated the 138 lots referred to in the contract. In that case the contract entered by the parties, together with the map setting forth the marked selections, became a part of the bill in equity, and the court said:

"In the contract and map exhibited in the amended bill it appears that certain ascertained that there was an agreement of both that, in lots were originally selected by both parties, and case any of them had been previously sold, one party should choose an equal number from those Here was an exact designation of a number indicated in the same blocks to take their places. of lots, and an agreement whereby, in case any selected could not be conveyed for want of title, one party only should choose enough other lots from defined limits to fill the number. The minds of the parties had come to a final agree