braith v. Lunsford, 1 L. R. A. 522, and note, 87 Tenn. 89, 9 S. W. 365; Dickerson v. Colgrove, 100 U. S. 578, 25 L. ed. 618; Henshaw v. Bissell, 18 Wall. 255, 21 L. ed. 835; Continental Nat. Bank v. National Bank, 50 N. Y. 575; 2 Pom. Eq. Jur. 265.

That White did not execute a formal assignment of this contract to respondent is wholly immaterial, as equity regards that as done which ought to be done.

it is this brief that respondent seeks to have stricken from the files.

Respondent has furnished us with a great many authorities to the effect that a failure on the part of the appellant to assign errors is fatal to the appeal, and that in such a case the appellate court cannot, and will not, examine the transcript for the purpose of ascertaining whether or not error has been committed. Purdy v. Steel, 1 Idaho,

Equity will treat the person in whose favor the act should be performed as clothed with the same interest, and entitled to the same rights, as if the act were actually performed.

16 Cyc. Law & Proc. pp. 135, 136; Sourwine v. Supreme Lodge K. of P. 12 Ind. App. 447, 54 Am. St. Rep. 532, 40 N. E. 646; Junction R. Co. v. Ruggles, 7 Ohio St. 1; Remington v. Higgins, 54 Cal. 620; Randall v. White, 84 Ind. 509; Ames v. Richardson, 29 Minn. 330, 13 N. W. 137; Mattes v. Frankel, 157 N. Y. 603, 68 Am. St. Rep. 804, 52 N. E. 585; Young v. Stamp-| fler, 27 Wash. 350, 67 Pac. 721; 1 Pom. Eq. Jur. § 365; Broom, Legal Maxims, 279.

Ailshie, J., delivered the opinion of the

court:

A motion was made in this case to strike from the files the "supplemental brief of appellant," upon the grounds that the same was filed without permission of court having been obtained, and for the further reason that there is no authority in law, or any rule of this court, for the filing of a supplemental brief. It appears that within the time prescribed by the rules of this court the appellant served his brief upon the respondent, but the original brief filed by appellant contains no enumeration of errors relied on for a reversal of the judg ment. The original brief, however, discuss es errors complained of, and refers to the page and folio of the transcript containing the same. Appellant made a motion for a new trial in the lower court, and his statement on motion for new trial contains specific assignments of error covering nine pages of the transcript, and are directed at both the insufficiency of the evidence to justify the findings, decision, and judgment of the trial court, as well as errors of law occurring at the trial in the admission and exclusion of evidence. After the service of the original brief, and prior to the calling of the case for oral argument, appellant prepared, served, and filed what he termed a "supplemental brief of appellant," in which he specifically enumerates the errors relied on for a reversal of the judgment; and

the court below will be treated as waived, unless the matters so excepted to are assigned as error in this court;" and from the opinion in that case it seems that no assignment of error was ever made, either in the trial court on motion for a new trial, or contained in the statement, or enumerated in the brief in this court. United States v. Tidball, 3 Ariz. 384, 29 Pac. 385; Putnam v. Putnam, 3 Ariz. 182, 24 Pac. 320; and Charouleau v. Shields (Ariz.) 76 Pac. 821, are all from the Arizona supreme court, and rest upon the peculiar statutes of that territory. An examination of these cases discloses the fact that there is a statute in Arizona requiring the assignment of errors to be filed with the clerk of the trial court prior to the printing of the transcript,. and the supreme court has held that such statute is mandatory. Haas v. Pueblo County, 5 Colo. 125, holds that a failure to file any assignment of errors in the appellate court, either at the time of filing the transcript or thereafter, is fatal, and that the appeal will be dismissed. There a court rule requires the appellant to assign errors at the time of filing the transcript of record, and provides that the appeal or writ of error will be dismissed for failure to do so. Rehberg v. Greiser, 24 Mont. 487, 62 Pac. 820, 63 Pac. 41, is from the supreme court of Montana, and is a case where the appeal was dismissed for failure to set out any specification of errors, and is founded on 6 of this court (22 Mont. xxx., 57 Pac. vi.) ; a rule very similar to paragraph 1 of rule but the court there held that the filing of such an enumeration of errors was not jurisdictional, and in the course of the opinion referred to the fact that in other cases the court had disallowed motions to dismiss for such failure. It was held, however, that the particular case then under consideration did not present such facts as would justify them in disallowing the motion. Brovelli v. Bianchi, 136 Cal. 612, 69 Pac. 416, simply holds that upon an appeal from an order denying a motion for a new trial, where "the evidence is not pointed out in the brief of appellant, and no suggestion made as to the respects wherein the evidence fails to support the findings," the court "will not endeavor to discover the

cannot be reviewed on an appeal from an order refusing a new trial, unless it was excepted to on the trial, and specified as error in the statement or bill of exceptions." The numerous other authorities cited by respondent on this point are practically to the same effect as those just reviewed. It does not appear from these authorities that the courts are inclined to refuse to examine a case on appeal where the errors have been assigned and specified in the statement on motion for new trial and are contained in the transcript on appeal, even though they are not specifically enumerated in the brief. In this case, however, appellant has substantially complied with the rule in filing his supplemental brief, enumerating the errors, prior to the case being called for argument in this court.

Respondent also contends that the appeal from the order denying the motion for a new trial cannot be considered in this court. on the ground that it has not been urged or assigned as error on appeal. Sec'ion 4427, Rev. Stat. 1887, allows an aggrieved party an exception as a matter of law to an order denying his motion for a new trial; and, since the appellant had assigned his errors in the statement and bill of exceptions used on the hearing of the motion, and had pointed out the insufficiency of the evidence to support certain findings as well as the errors of law committed at the trial. he is entitled now, upon his appeal from such order, to have those assignments of error examined and considered in this court. It is true that some of the courts, to whose decisions counsel have called our attention, have established a contrary rule; but our appellate practice is cumbersome enough at best, and we are not inclined to place such a construction on the statute and hold to such a technical observance of the rules of this court as will make appeals any more difficult of prosecution than they are at present. For the foregoing reason3, resnondent's motion will be denied, and the case will be examined on its merits.

tory of the dealings and transactions between the plaintiff, Whitney, Willard White (defendant's grantor), and I. R. Beery (the grantor to both the plaintiff and White). The contract out of which all subsequent troubles seem to have grown was entered into on the 7th day of September, 1899, between the plaintiff, Whitney, and Willard White, and is as follows:

"This agreement witnesseth:

Whereas, W. G. Whitney and Willard White having acquired a dam, log storage and power site on the Payette river, at a point called the Black Rock Canyon about 6 miles above the town of Emmett, in Canyon county, Idaho, and,

Whereas, it is proposed to secure sufficient funds with which to erect a dam at said site, about 30 feet in height with a view to creating a large water power to be used in sawing lumber, elevating water upon both sides of the Payette river, for the purpose of irrigation, and for generting electric power to be utilized for railway and such other purposes as may be found feasible.

Now, therefore, in consideration of the premises, each of the parties hereto agrees to give his best efforts to the immediate accomplishment of the above-mentioned project, and does agree that the parties hereto are to own an equal interest in such undertaking, share and share alike.

It is further agreed that, in the event the said White shall fail to raise su'licient funds to construct said dam, or fails to make such progress as shall be satisfactory to said Whitney within one year from the date hereof, the said White agrees to assign all his right. title, and interest in the same to said Whitney.

Witness our bands and seals this 7th day of September, 1899. Witnessed by: Ben I. Bloch.

W. Garret Whitney. Willard White.

According to the testimony, White, in pursuance of the terms of the contract of September 7th, went east for the purpose of raising money and procuring a contract for the proposed dam site, and on the 26th day of December of the same year entered into a contract with J. R. Beery, of Minneapolis, Minn., as follows:

Between I. R. Beery, of Minneapolis, Minnesota, the party of the first part, and Willard White of Boise, Idaho, party of the second part,

Witnesseth, that the said party of the first part for and in consideration of the covenants and agreements on the part of the said party of the second part hereinafter contained, agrees to sell and convey unto the said party of the second part, and the said second party agrees to buy, all those certain lots, pieces, and parcels of land, situate in the counties of Canyon and Boisé. in the state of Idaho, and more particularly described as follows, to wit: Lots one (1), two (2), three (3), five (5), and six (6) of Section twenty-two (22), Township seven (7) North, Range one (1) West, B. M., for the sum of $6,000.

And the said party of the second part in consideration of the premises agrees to pay to the said party of the first part the sum of $6,000, to wit:

One thousand dollars in cash on or before February 1st, 1900, and $5,000 in firstmortgage bonds in a corporation to be formed for the purpose of developing a power plant at a point upon the above-described property known as the Black Rock Canyon. said bonds to be issued upon said property and upon such improvements as shall be placed thereon.

And the said party of the second part agrees to pay all state and county taxes or assessments of whatsoever nature which are now or may become due on the premises above described.

In the event of failure to comply with the terms hereof by the said party of the second part, the said party of the first part shall be relieved from all obligations in law or equity to convey said prop erty, and the said party of the second part shall forfeit all right thereto at the option of the party of the first part. And the said party of the first part, on receiving such payment at the time and in the manner above mentioned, agrees to execute and deliver to the said party of the second part or to his assigns a good and sufficient deed for the conveying and assuring to the said party of the second part the title to the above-described premises free and clear of encumbrances other than the taxes hereinbefore mentioned. And it is understood that the aforesaid stipulations are to apply to and bind the heirs, executors, administrators, and assigns of the respective parties, and that the said party of the second pirt is to have immediate possession of said premises.

In witness whereof, the said parties have

I. R. Beery, Willard White.

Thereafter, and on the 25th day of January, 1900, I. R. Beery and wife made and executed their warranty deed to the entire tract of land and premises described in the complaint in this action, and in such deed named Willard White as the grantee, and on the date of its execution the deed was placed in the hands of the grantee, White, at the city of Minneapolis, and was therefter by White brought back to the state of Idaho, and has ever since been in White's possession and control. As to whether or not the deed of January 25th was ever actually delivered within the contemplation of law is a vital question in this case.

The next important step in the course of these transactions occurred on April 25, 1900, when Beery and White entered into a new agreement, which by its terms provided that it should take the place of the former agreement, of date December 26th. The important part of the agreement of April 25th, and that which has any special bearing upon the matters in controversy in this action, is as follows:

Witnesseth, that whereas, I. R. Beery, party of the first part, is the equitable owner of the real property hereinafter described, while Willard White, party of the second part, holds the legal title thereto by virtue of a deed heretofore executed by the said I. R. Beery, and wife, under an agreement heretofore entered into by and between said Beery and said White, and

Whereas, it is desired by the parties to enter into a new and different agreement at this time in relation thereto,

Now, therefore, for and in consideration of the mutual covenants hereinafter contained, and to be by said parties paid, kept, and performed, it is agreed: That said Willard White has this day become the owner, absolute, of the equitable as well as the legal title to a one-half interest, undivided, in the property hereinafter described, for the consideration of seven hundred and fifty dollars ($750.00), $150 of which said gross sum has this day been paid, the receipt whereof by said Beery is hereby acknowledged; $100 is to be paid on or before May 15th, 1900, and the remainder of said sum of $750, to wit, $500, is to be paid on or before January 1st, 1901.

Thereafter, and on the 13th day of May, 1901, the plaintiff, Whitney, secured from Beery a quitclaim deed to the lands and premises in controversy, the title to which

At the trial the court permitted the plaintiff to introduce the testimony of I. R. Beery and other witnesses, showing a parol agreement and understanding had between White and Beery at the time of the execution of the deed of January 25th, and by the terms of which agreement it is contended that the deed of January 25th was delivered upon conditions thereafter to be performed and complied with by the grantee, White, and on the failure to perform which no title should pass under the deed. The defendant objected to the introduction of this class of testimony, upon the grounds that the complaint alleges that the deed was placed in the hands of White with the understanding that the same should take effect and pass title from Beery to White only upon a compliance by White with the terms and conditions of the contract of December 26th, and that to permit parol testimony would be to contradict a written contract, and for the further reason that parol evidence is not admissible for the purpose of showing the terms and conditions under which a deed, absolute on its face, was delivered into the possession of White. The substance of the evidence given on this point is fairly stated by the grantor. Beery, in his testimony, as follows: "Mr. White first visited me about the 26th of December, 1899, when this contract was executed. Then he returned on the 25th of January, at the time we made the deed. At this time I executed and delivered to him this deed, placed it in his possession personally at the time he was in Minneapolis, and he carried it back to Idaho. I placed it in his hands so that the matter could be closed up promptly in connection with the transferring of the property to the corporation that was contemplated; these bonds were to be paid, and an issue of bonds on this property and power plant and ditches, etc., contemplated. I was to be paid when the matter was consummated and the bonds ready to be issued. The deed was placed in his hands to facilitate the matter, and so that we all could save time. He could pay me when he used the deed, just as though I sent the deed to him to hold. It was a

The deed of January 25th from Beery to White was without any condition or reservation whatever expressed on the face of the instrument, and, so far as can be gathered from the indenture itself, it is absolute. It is admitted that this deed was delivered by the grantor into the personal and manual possession and control of the grantee, and passed completely from the control and direction of the grantor. The contention made by plaintiff on this point is about as follows: That, under the agreement of December 26th, White was expected to form a corporation for the construction of a big dam on the Payette river, with its site upon the lands in controversy, for the purposes of power and irrigation, and that, as soon as the corporation should be organized, the title to this property should be conveyed to such corporation, and thereupon Beery should be paid the sum of $1,000, and delivered $5,000 worth of first-mortgage bonds to be issued by such corporation in full payment for the property. And the plaintiff contends that the deed of January 25th was executed and delivered under the terms and conditions. of the agreement of December 26th, and that it was mutually understood and agreed between the grantor and grantee at the timethat the corporation should be formed, and that accordingly this deed was delivered to White in order to facilitate the transaction, and enable White to immediately convey the property to the corporation and perfect the title, and qualify the corporation to issue the bonds in payment of the balance of the purchase price. As above observed, this deed was delivered to the grantee, and contained upon its face no conditions whatever precedent to the vesting of title. Appellant insists that the facts disclosed in this case show an absolute delivery of the deed, and that parol evidence was inadmissible to attach any condition to the vesting of title under such a deed.

It is a well-settled principle of law that a deed cannot be delivered by the grantor to the grantee therein named to be held by the grantee in escrow. If such thing be done, the result is that title vests at once in the grantee. The holder of an escrow must be a third party, who for such purpose becomes the agent of both the grantor and grantee, In 13 Cyc. Law & Proc. p. 564, the writer of the text says: "A deed cannot be delivered as an escrow to the grantee, and a delivery which purports to be such will operate as an absolute one. This rule, however, applies only to those deeds which are upon their face complete contracts requiring nothing but delivery to make them