the payment of the note by a mortgage upon its property. October 12, 1887, the mortgage in question was executed and delivered pursuant to that agreement; but it was dated July 21, 1887, to correspond with the date of the note. It was filed for record with the county recorder of Eureka county, on October 13, 1887. Some time in December, 1887, the defendant Sweeney, as sheriff, and the other defendants, as creditors of the Star Mining Company, attached and took possession of a portion of the property described in the complaint, and it was subsequently sold under an execution issued upon a judgment obtained in that action. In this action, judgment was given for the plaintiff for a portion of the property, and defendants appeal from the judgment, and from an order overruling a motion for new trial.

There are a number of papers, including the findings, contained in the record which has finally reached this court, which the respondent moves to strike out, as not properly included in the record on appeal. They are not contained in the statement on motion for new trial, nor are they certified as having been used or referred to on the hearing of the motion, and most of them are entirely immaterial. It has been decided so many times that the findings are not before the court unless included in the statement for new trial that there can now be no question upon the point, unless, as contended by appellants, the rule has been changed by St. 1895, p. 58, in the act regulating appeals. But, in regard to that act, it seems only to be necessary to call attention to the language used in Holmes v. Mining Co., 22 Nev. - 41 Pac. 762. We then said: "It is not improper to call attention to the fact that the statute mentioned has in no wise altered the method of presenting questions to the supreme court. Wherever a motion for new trial or a statement on appeal was previously necessary to their proper presentation, it is still necessary. The only difference is that, instead of having to present a transcript of the papers to be used on the appeal, the originals may now be certified up." The motion to strike out will therefore be granted.

1. A copy of the mortgage is attached to, and made part of, the complaint, and appellants' counsel contends that it is insufficient in several particulars, and that, therefore, the complaint does not state facts sufficient to entitle the plaintiff to a judgment for the possession of the property. The first objec

tion is that the property is insufficiently described. Upon that point the mortgage reads as follows: "That said mortgagor mortgages to the said mortgagee all that certain personal property situated and described as follows, to wit: two work mules, one gig, one two-horse wagon," etc. Here follows an enumeration of a large number of articles, after which the description concludes as follows: "All of said property is at the town of Sherwood or Union, in Union mining district, in

either Elko county or Eureka county, in the state of Nevada, and on or near the boundary line between said counties. Also all other property of a personal nature belonging to said mortgagor which is situated in either of said counties." It appears that some of the property for which the plaintiff recovered judgment was not specifically described in the mortgage, and was only covered by the general clause of "all other property of a personal nature belonging to said mortgagor which is situated in either of said counties." We think, however, that this was sufficient. It would often be impossible to so describe personal property that a mere inspection of a mortgage would indicate to one unacquainted with the circumstances surrounding the parties what was covered by it, and, bowing to the necessity of the case, the rule has been established that it is unnecessary to do SO. The fact that the description was general, instead of specific, is no valid objection of itself. Veazie v. Somerby, 5 Allen, 280; Thurber v. Minturn, 62 How. Prac. 27. If a description is such as to enable third par ties who have examined the records, and made such inquiries as the instrument itself suggests, to identify the property covered thereby, it is sufficient. 1 Cobbey, Chat. Mortg. 161. Tested by these rules, this mortgage is not invalid. It covered all property of a personal nature then belonging to the company, in either of those counties. This suggested the proper inquiry. The ascertainment of the facts concerning the company's ownership of any particular article at once determined whether it was covered by the mortgage. This was sufficient.

2. The mortgage was not invalid because not recorded in Elko county. If not recorded there, it would not affect property there situated, but this would be no reason why it should also be invalid in Eureka county, where it was recorded.

3. The statute does not require that the affidavit attached to the mortgage, when made by some one in behalf of the parties, shall state that fact. The complaint alleges, and the answer does not deny, that the affidavit of G. F. Talbot was made in behalf of the mortgagee. That is all that the law requires. Other objections are suggested to the complaint, but we are of the opinion that they are not well taken, and it is unnecessary to notice them further.

4. There was no misjoinder of parties defendant, and the judgment against all of the defendants was proper. Johnson, Remington, and Foley were attaching creditors of the Star Mining Company; and, if they did not authorize the seizure of the property in the first instance, it is perfectly clear that they subsequently ratified it. Their agent, in the management of the suit, attended the execution sale, directed how the property should be sold, and bought in a portion of it for those defendants. This made them jointly liable with the sheriff for the trespass. Freem.

5. There was no objection to the introduction of the mortgage in evidence. This constituted a waiver of the claim that its execution by the company had not been sufficiently proven. Sharon v. Minnock, 6 Nev. 380; Langworthy v. Coleman, 18 Nev. 441, 5 Pac. 65.

6. Nor do we think that the fact that the mortgage, although agreed upon when the note was given and the money borrowed, was not executed until after the note fell due, renders it invalid as to these defendants. It is not shown that the company's indebtedness to the defendants was incurred between those dates; and, for aught that appears, it may have wholly accrued prior to July 21, or subsequent to October 13, 1887. It is clear that the debt secured by the mortgage was an honest one, and it is neither alleged nor proven that the delay was the result of any agreement or arrangement to keep it from the knowledge of the public, and thereby give the company a credit it would not otherwise have had, nor that it had this effect. Although bearing an earlier date, and although previously agreed upon, it was not a valid mortgage until acknowledged and sworn to and delivered, which the official certificates and other evidence show was not done until October 12th, the day before it was recorded. Had other creditors before that time obtained a mortgage or levied upon the property, their lien would certainly have been prior to the plaintiff's mortgage. The delay simply gave them additional opportunity to secure themselves, and we see no reason for holding that it invalidates the mortgage.

7. The plaintiff did not lose his lien by his failure to take possession of the property before its seizure by defendants. Our statute providing for chattel mortgages, as amended (St. 1887, p. 66), contains no requirement that the mortgagee must take possession of the property within any particular time. In that respect such a mortgage does not seem to differ from one upon real estate. In fact, the principal purpose of the amendment mentioned seems to have been to abrogate the time limitation previously existing upon such mortgages, and to assimilate them to real-estate mortgages. Such a mortgage is merely security for the payment of a debt (Shoecraft v. Beard, 20 Nev. 182, 19 Pac. 246); and although, under the principles applicable to them, the mortgagee is entitled to the possession of the property upon default being made, there is nothing that requires him to take it at any particular time, nor that, in the absence of fraud, makes his delay in so doing fatal to his claim. Such is the conclusion announced by other courts under similar statutes, and we see no reason to doubt its correctness. Wescoat v. Crawford (S. C.) 22 S. E. 792, 801; Spraights v. Hawley, 39 N. Y. 441; Jones, Chat. Mortg. § 369. In Mitcham v.

Schuessler, 98 Ala. 635, 638, 13 South. 617, the court said: "Indulgence for an unrea sonable time after the law day of a mortgage is a circumstance which the jury may consider, in connection with other facts, in determining the bona fides of a mortgage in its inception, or as to whether the secured debt has been satisfied. But if the mortgage is bona fide, and the debt secured has not been paid, no indulgence to the mortgagor, although the effect of such indulgence be to protect the debtor in the possession and enjoyment of the property, will affect the validity of the mortgage security. In such cases the only remedy of the mortgagor is to redeem, and his creditors can secure no rights." Cases where the contrary has been held seem to have been decided under statutes differing from ours.

No errors appearing, the judgment and order will be affirmed. It is so ordered.

BONNIFIELD and BELKNAP, JJ., con

cur.

(18 Mont. 259)

RAY et al. v. COWAN et al. (Supreme Court of Montana. May 4, 1896.) APPEAL GRANTING OF NEW TRIAL-REVIEW.

Where there is a substantial conflict in the evidence, the action of the trial court in granting a new trial will not be reversed.

Appeal from district court, Silver Bow county; J. J. McHatton, Judge.

Action by Nathaniel C. Ray and Frank M. Leonard against John F. Cowan and James A. Talbott. Plaintiffs appeal from an order granting a new trial. Affirmed.

Plaintiffs, who are partners, bring this suit to recover of the defendants commission for the sale of stock owned by defendants in the Silver Bow Hydraulic Mining Company. Plaintiffs allege that they were employed to effect a sale of defendants' stock in said company; that they did effect a sale thereof, for $100,000 cash and 1,000 shares of the capital stock of a water company to be thereafter organized by the purchasers of said stock and others; that defendants agreed to pay them a reasonable compensation for making such sale; and that their services in the premises were reasonably worth $10,000. The answer denies all the allegations of the complaint, and alleges affirmatively that about the 1st of March, 1890, the plaintiffs were civil engineers, and that they (defendants) employed the plaintiff Ray to go east from Butte, to use his endeavors to effect a sale of their stock in said company to J. A. Cowan and others, for the sum of $150,000 in cash; that they agreed to pay said Ray such compensation as was reasonable for civil engineers for the time he was absent on such business, and his expenses; that it was then agreed that said Ray should receive such compensation as a civil engineer whether such sale was made or not, and that it was

no part of the contract that Ray should receive any commission whatever on said sale should it be perfected; that Ray's services as an engineer were reasonably worth $15 per day for the time he was absent on said business, and his expenses. Defendants allege that they paid Ray $150, and consent that plaintiffs may take judgment for $415, the balance they claim is due for time and expenses of Ray while engaged in said business. The case was tried with a jury. verdict was rendered in favor of plaintiffs for $5,000. The defendants made their motion for a new trial. This motion was sustained, and a new trial granted by the court. From the order granting a new trial, plaintiffs appeal.

A

Corbett & Wellcome, for appellants. Forbis & Forbis, for respondents.

PEMBERTON, C. J. (after stating the facts). Counsel for appellants contend that the court below erred in granting the motion for a new trial. It is contended that there is no substantial conflict in the evidence, and that, therefore, the granting of the new trial was an abuse of judicial discretion on the part of the district court. This is the only error assigned. This assignment renders it necessary to determine whether or not there is a substantial conflict in the testimony as to what was the contract between the parties concerning the compensation plaintiff Ray was to receive for his services in relation to effecting a sale of the stock of defendants mentioned in the statement. The complaint alleges that the plaintiffs were to receive reasonable compensation for effecting the sale of the stock. The testimony of plaintiff Ray as to what the contract was is substantially as follows: "While out beyond the Germania Mine, making some surveys, Mr. Cowan and Frank Leonard drove out, and Mr. Cowan asked me if I could go to Chicago that night, in connection with this business. I told him I was busy, and told him I did not think I could go. He urged me rather, and said there was no one else who could go, and I finally consented. As we started to come up town, Mr. Cowan said he thought it was no more than right that we should have some understanding as to what it was going to cost them, and asked me what I was going to charge them. I told them that I could not say exactly; that I did not know whether I could do them any good, or whether I could do anything; and that it would depend entirely upon what I could do for them. * I think I added, 'I won't rob you.'" This testimony is corroborated by witness Hughes. On the other side, it appears that the plaintiffs are, and at the time of the contract were, civil engineers; that they had done work as such for defendants for $15 per day, and expenses. Carter, a witness for the defendants, who was interested with them in the

stock, and who was probably the first person who spoke to Ray about going east for defendants, testified that his proposition to Ray was that he (Ray) should go east for the defendants, "the same as if he had gone out in the field." Cowan (defendant) testifies: "When I first engaged Ray to go east, he [Ray] said he could not afford to go and leave his work. I told him that we did not ask him to go for nothing, that we would pay him his time and expenses, and he then finally consented to go." Defendant Talbott testifies: "The understanding entered into at that time between us as to what Mr. Ray was going east for, and upon what terms, was this: He was to go east to take the profile of the work, and explain to these promoters what the cost would be of fetching that water in, and that we were to pay him his expenses and for his time. * * Mr. Ray said he did not like to go, but he would go if we wanted him to, and would have to have expenses and time." It appears from the record that the knowledge Ray had of the water ditches, sources, and amount of water, capacity of the ditches, and the condition and value thereof, belonging to defendants, was acquired while Ray was in their employ as engineer. Ray, it is admitted, was to be paid his expenses and for his time whether the sale was effected or not. It also appears from the evidence that negotiations were pending between the defendants and the purchasers of the stock before Ray was employed to go east to see them (the purchasers) in the interest of defendants, and that these negotiations had not been suspended.

We think there is a substantial conflict in the evidence as to what was the contract between the parties. The fact that Ray was to be paid his expenses and for his time whether a sale of the stock was made or not tends strongly, we think, to support the theory that Ray was not employed as a broker, but as a civil engineer, to go east to explain to the contemplated purchasers such matters and things in connection with the water ditches of the defendants as only a civil engineer could know, and which knowledge Ray acquired while in the employ of the defendants. The counsel for the appellants contend that Ray's testimony as to what the contract was is not disputed. It is not perhaps disputed in totidem verbis; nor is the testimony of the defendants as to what the contract was so disputed. But the testimony of plaintiff tends to show a contract as to Ray's compensation. The testimony of the defendants tends to show a substantially different one. We think this condition of the evidence develops and constitutes a conflict as much as if every syllable thereof had been specifically contradicted.

Having determined that there is a substantial conflict in the evidence, and failing to discover any abuse of discretion in the ac tion of the court in granting a new trial,

credited with $15.80 on this account; but it clearly appears, from the evidence, that the sash pulleys and carpet strips furnished by the mill company were knowingly accepted and actually used by her, and that the failure to make such deduction was not fraudulent or intentional. It was simply an honest mistake as to the value of the materials furnished, and would not invalidate the lien in any case, and certainly not in a case like this, where the lien is sought to be enforced against the person to whom the materials were actually furnished, and with whom the claimant contracted. Rowland v. Harmon, 24 Or. 529, 34 Pac. 357; 2 Jones, Liens, 1408.

It is also claimed that the lien is defective because it does not state the name of the person to whom the materials were furnished. The notice of lien states, and the complaint alleges, that the materials were furnished and delivered to Mrs. Elwert at her special instance and request. The evidence shows that they were furnished on her personal account, and were ordered either by herself or her foreman or agent in charge of the work, and were delivered at the building, and received and used therein. Under these circumstances, she was properly named in the lien notice as the person to whom the materials were furnished, and it was not necessary to state the name of the agent who ordered each article, or to whom it was actually delivered. Where a lien is claimed against the property of one person, for materials furnished to and on account of another, the law requires the notice of the lien to state the name of the person to whom they were furnished; but, where a lien is sought against the property of a person with whom the contract was made, and to whom the materials were furnished, it is sufficient to give the name of the owner as the person to whom they were furnished, although, in fact, they may have been ordered or received by an agent or employé of such owner. In such case, the act of the agent is the act of the principal.

It is next contended that it does not appear, from the evidence, that the material for which the lien is claimed was actually used in the building liened. Conceding, but without deciding, that, under the mechanic's lien law of this state, materials furnished for the building must be actually used in its construction, alteration, or repair, in order to become the foundation of a lien upon it, we think the evidence in this case is sufficient to support the findings of the trial court sustaining the lien. It, perhaps, does not affirmatively and specifically appear that each and every separate article furnished to be used in the building was actually so used; but it does appear that, upon the appellant's order, they were delivered at the building for that purpose, were received by her, and, as to the greater part of them, used in the building. And there is nothing to

contradict this, or even tending to show that any of the materials so delivered were used elsewhere, or for any other purpose, or that they did not, in fact, go into the building. The proof is therefore as complete and specific upon this point as it could well be, unless the lien claimant is required to have some person present during the construction of the building to keep a daily and hourly record of the materials used; and this the law does not require. "To require direct and positive testimony," says Mr. Justice Brewer, "that, as to each specific article de livered, it was in fact used in the buildings, would make the mechanic's lien law more of a burden and a trap than a blessing and a help. When materials are contracted for use in a proposed building, when they are delivered in pursuance of such contract, and when the building is in fact completed, and there is no testimony tending to raise even a suspicion that the materials therefor were elsewhere obtained, or that those contracted for were not used therein, and especially when some of the materials are shown to have actually entered into its construction, it is fair to conclude and say that such materials did in fact go into the building, and that the seller has a mechanic's lien there for." Rice v. Hodge, 26 Kan. 170. Under these circumstances, the proof is amply sufficient to support the lien, even under the rule of law contended for by the defendant.

The contention is also made that the articles charged for by the fixture company as extras are in fact included in the special contract between the company and the appellant. This contract is in writing, and was signed by Mrs. Elwert and the fixture company, in the presence of Carrie M. Elwert and G. H. Vore, and is an agreement to furnish the mill work for said building for a certain sum, in ac cordance with certain plans and specifications, which were delivered to the mill company at the time the contract was made, and upon which its manager, Mr. Lambert, made the estimate of the value of the work required. The plaintiff offered in evidence what it claims to be the specifications delivered to it at the time the contract was made, and under which the work was to be performed, while the appellant offered in evidence what she claims to be a copy thereof. These two specifications are materially and substantially different. Those offered by the appellant, and which she claims are the specifications for the work agreed to be furnished by the mill company, call for much more work than plaintiff's copy. The court below found that the specifications offered by the mill company were the true ones and that the work charged as extra was not included therein; and this finding is, in our opinion, fully sustained by the evidence. The appellant lays much stress upon the fact that the specifications offered by her appear to have been signed by the East Portland Mill & Fixture Company, by H. M. Lambert; but