was the duty of the defendant to only employ such workmen as were reliable and safe in the work in which they were engaged. This is undoubtedly true, but no one testifies that they ever knew Holstroem to be under the influence of liquor when engaged in work for the defendant. It is also urged by counsel for respondent that Holstroem and Zienke, the plaintiff, were not fellow servants, and hence the rule applying to fellow servants cannot be invoked in this case. We cannot agree with this contention. We think the testimony of plaintiff plainly shows that they were fellow servants, each employed in the capacity of bridge carpenter by Foreman McAuliffe. Plaintiff testified that Holstroem stated to him at the time of the accident that the brake on the hand car was defective. A careful inspection of plaintiff's amended complaint fails to disclose any allegation of defective machinery, or a defective brake on the hand car; plaintiff basing his right to recover on the carelessness and negligence of Holstroem, who he alleges was incompetent, careless, and negligent in handling the hand car, and in the discharge of his duties in same capacity over him in the employ of the defendant.

The first question is, was Holstroem a fellow servant with plaintiff, or did he occupy a position in the employ of the company in any way superior to the plaintiff? We think the evidence is conclusive that they were fellow servants employed as bridge carpenters by defendant, and we need not look beyond the testimony of the plaintiff to arrive at this conclusion. If they were fellow servants, can the plaintiff recover in this action? In Donnelly v. Bridge Co. (Cal.) 49 Pac. 559, the court says that the superintendent and the injured workman, as to the act causing the injury, were fellow servants. In Brunell v. Railroad Co. (Or.) 56 Pac. 129, the supreme court of Oregon, in a well-considered opinion by Mr. Justice Moore, says (syllabus): "A railroad company is not bound to keep a signal to warn the men on a hand car of the situation of the section men on the track." That the plaintiff assumed all ordinary risks incident to the work in which he was engaged, we think there can be no serious question. See Drake v. Railway Co., 2 Idaho, 453, 21 Pac. 560. syllabus says: "Where a fireman upon a locomotive engine in discharge of his duty, with full knowledge of the nature and extent of the dangers of the service he is engaged in, or having the means of being informed of such facts and conditions by the exercise of ordinary care, voluntarily assumes such risks, and is thereby injured, and the employer is guilty of no laches or misconduct unknown to the servant, which, with ordinary care, he might have known, he cannot recover for such injury." The learned judge in whose court this case was tried below recognized this rule in his

The

or

(Supreme Court of Idaho. Nov. 26, 1901.) SALE OF REALTY-ORAL AGREEMENT -ENFORCEMENT.

1. An oral agreement, where there is part performance, for the sale of real estate, may be enforced under section 6008 of the Revised Statutes of this state.

2. Valuable improvements placed upon real estate under an oral agreement to purchase removes the bar of the statute of frauds, and the purchaser may enforce his contract in a court of equity.

(Syllabus by the Court.)

Appeal from district court, Latah county; E. C. Steele, Judge.

Action by E. T. Barton against S. T. Dunlap. From a judgment and order overruling a motion for a new trial, defendant appeals. Reversed.

Orland & Smith, for appellant. Forney & Moore, for respondent.

STOCKSLAGER, J. This case is here on appeal from the district court of Latah county. The appeal is based upon an order overruling a motion for a new trial, and also from the judgment. The complaint alleges that since the 5th day of June, 1897, plaintiff has been and now is the owner in fee and entitled to the possession of lot numbered 17, block 5, of the town of Juliaetta, said county and state, together with hereditaments, etc., thereunto belonging; that defendant now is, and for a long time has been, asserting and claiming an estate or interest in said premises adverse to the plaintiff, the exact nature of which claim of the defendant is unknown to plaintiff; that said claim is without right, either in law or equity; that the defendant has no right or title to or interest in said property, or any part or portion thereof; that on the 7th day of June, 1898, plaintiff demanded of defendant possession of said premises; that said defend. ant refused to deliver possession, and still refuses to so deliver the possession thereof, and has used and occupied the same without

consent of plaintiff, and against his will; that the reasonable value of the use of said premises is reasonably worth $25 per month, no part of which has been paid, etc. Then prays that the defendant be required to set forth the nature of his claim; that plaintiff be deemed to be the owner, in fee simple, of said premises, and that his title thereto, be quieted as against any and all claims of the defendant, etc.; that the defendant be ordered to deliver possession of said premises to the plaintiff, and be forever enjoined and debarred from asserting any claim to said lands or premises; that plaintiff have judgment for the sum of $400 rental for said premises from July 7, 1898, to time of commencement of this suit, for costs of suit, etc. Defendant answered, admitting that he is in the possession of the property in controversy, and has been since the year 1895; admits the demand and refusal to surrender possession to plaintiff. The other allegations of the complaint are denied. By his cross complaint he avers that he is entitled to a deed from plaintiff to the lot in dispute, by reason of a purchase from the Juliaetta Townsite Company, and payment in full therefor; and a prayer for equitable relief. All averments of the cross complaint, by a stipulation made in open court, are to be treated as denied. By the record it is shown that a jury was waived and trial had. Plaintiff introduced deed from Rupert Schupfer and wife to E. T. Barton, dated June 5, 1899, which included the lot in controversy. E. T. Barton testified he was acquainted with the property and the rental value; it was worth $25 per month. On cross-examination said he was the owner of the property in controversy, was not acquainted with the rental value of property in Juliaetta to any great extent. "I don't know what store buildings rent for. I don't know what the rental value of buildings or property in Juliaetta is. I have talked with a number there who told me what they were paying. This property is used as a livery stable. There is a building upon it. Do not know the size of the building." Plaintiff then rested. Being called by defendant, the same witness testified: "Q. Mr. Barton, who was in possession of that lot at the time that this deed from Mr. Schupfer to you was made? A. I think Mr. Dunlap was. The Court: The defendant? A. The defendant. Did not know who erected the livery barn on the lot; believe that Mr. Dunlap (defendant) did,-had been told so. Have talked with Dunlap with reference to it since getting the deed. I knew when I got the deed that Dunlap was in possession and running the livery barn. Mr. Schupfer told me so. Mr. Schupfer was the party from whom I got the lots. Quite a large number deeded to me at the same time. Don't know how many. Mr. Schupfer did not tell me at the time he deeded it to me that Dunlap owned the lot. He told me that Mr. Dunlap 66 P.-53

had a barn on the property, but that he (Schupfer) had never received any money under the contract that the property was to be sold under, and he didn't hesitate to give me a warranty deed for the property. He did not tell me that Dunlap paid for the lot. At the time these lots were deeded to me, on the 5th of June, I did not become the owner under this deed of all the property mentioned in it. There was an understanding that I was to deed certain parts of it to other parties. The names of the parties are Geo. Langdon, I. C. Hattabaugh, George Webber, Charles Snyder, Frank White, Spottswood & Veatch. I do not think of any more besides myself. Potter was not one. I think the consideration paid was $150 at time deed was delivered. The way these lots came to be deeded to me was that it was adjusted by those that had interests in it it would be deeded to me and afterwards we would divide up among ourselves the best way we could. Mr. Schupfer claimed these lots prior to this time." In answer to question as to whether anyone else claimed an interest in these lots, and attention being directed to whether Webber et al., said he did not know, but believed they had through the Juliaetta Townsite Company. He was not a member of that company. At the time the deed was given does not think there was a bond or contract between Schupfer and the townsite company. Had been a bond, but thinks it was forfeited. Rupert Schupfer testified property in controversy is part of his homestead. "In 1891 I contracted with I. C. Hattabaugh for the Juliaetta townsite. It included this lot 17. It was in writing. I looked for the contract last night but couldn't find it. The bond was surrendered up to me when I gave that deed there. The consideration for the deed was, I turned over those lots there that were not deeded, and received $150 in cash, and kept the property which was not deeded over, which was included in the bond to the value of $150, and got back the bond with the money. There was a certain amount due me on the property that of course there was not property enough to pay me for, and there was no real sale for property, and we came to an agreement that I would take that and make a deed to the property, which I did. It settled up the transaction. Had a conversation with Mr. Barton with reference to this property at or about the time of making this deed with reference to this lot in controversy. We talked it over about Dunlap claiming he bought the lot from Fred Hallett and claimed that he had paid for it, and of course he knew Dunlap had a barn on it. I told Barton that Dunlap claimed Of course I didn't see Dunlap pay the money. I believe he has paid it. The Court: Did you tell Barton you believed he had paid it, or just your belief? Just tell what you told Barton. A. I don't know for certain. I thought it was understood. The

conversation I had with Barton was before I delivered the deed. Don't know the exact date that Dunlap bought the lot. Fred Hallett was a member of the townsite company. He transacted the business of this syndicate or association in Juliaetta. Geo. Bratton used to sell lots for the townsite company before Hallett came down there. There is a livery stable on this lot. I know the value of the improvements placed upon the lot. I should judge in the neighborhood of $600 improvements placed there by defendant, Dunlap, about 4 or 5 years ago. No improvements on the lot excepting those placed there by Dunlap. I know Dunlap claimed to have bought the lot in about 1895. In selling lots Mr. Hallett generally presented me with a bond for a deed to acknowledge and turn over to him. What the lot was paid for I would make out deed. I think Mr. Berryman was the first one to tell me of the sale of this lot to Dunlap. He was selling lots on commission for the townsite company. Mr. Dunlap has demanded a deed from me I think 3 or 4 years ago." On cross-examination testified: "He knew Geo. Langdon. Had conversation with him just before making deed to Barton. Langdon said the townsite company was trying to straighten the matter out; that the company had gone under. There was $1,500 due me at that time. Did not ask me if I would make an arrangement with him so he could form a pool, or get some parties to take the balance. Barton and I had the bond when we checked up the description in this deed before it was signed. The bond was not turned over to me then. I got the bond when I received the money from Mr. Langdon, when I gave the deed. Barton had the bond when we were checking up. When I received the bond it was assigned by Hattabaugh as trustee to Ed Barton. I did not tell Barton that Mr. Dunlap had never paid me for the lot, and that I felt at perfect liberty to give a warranty deed. I told him Dunlap claimed he paid Hallett in lumber and livery hire. Under the arrangement I had with Hallett or this townsite company, I think Hallett did have authority to take lumber or livery hire for the lots. It was not mentioned in the bond that I could give bonds when sales were made on time to the purchasers from the townsite company. should deed the property as I received the money. I believe they called Mr. Hallett the secretary of the townsite company. The reason I had not given Mr. Dunlap a deed was that the money had not been turned over to me." S. T. Dunlap (defendant) testified: "In spring of 1895 bought lot from Mr. Hallett or townsite company. He was the agent. Was to pay $100 in lumber inside of a year; paid $37.50 in lumber when it was demanded; paid the rest in livery hire, as they asked me. A month before the time expired I informed them that the lumber was ready and I wanted the deed. They said they did

I

not want the lumber at the present time, they would take livery hire for balance. (Paper identified as receipt, to wit: Lewiston, Idaho, June 28, 1897. Received of S. T. Dunlap one hundred and 00/100 dollars in lumber for lot on Main street for livery barn. No. Juliaetta Townsite Co., by Fred W. Hallett.) Receipt was not given at time of payment, given after I was notified that I didn't own the lot. Took possession May 1895. When I went to Juliaetta to look for a location Mr. Berryman and Mr. Schupfer were with me. Schupfer told me if I would take lot 17 he would give a clear title. I took the lot for $100. Berryman told me that when I paid for the lot I would get deed from Schupfer. When I was ready I went to Hallett and asked for a deed, and he said he would get it for me. The improvements I put upon this lot cost $750. I had no written contract with Hallett or Berryman. I know that Hallett was agent when I bought the lot. Hallett was representing the townsite company. Don't know that it was in any other capacity than agent. Have had conversations with members of the townsite company with reference to this lot,-with Webber, Hattabaugh, Langdon, Mr. White; that is all I remember. I talked with them several times about it. Have paid the taxes on the property since 1895." On cross-examination said: "I gave the property in for assessment in 1896 and every year since.” Godfret Webber testified: "Was acquainted with all the parties. Mr. Hallett was a member of the Juliaetta Townsite Company. Don't know whether it was Fred Hallett or Hallett & Sons. Fred Hallett was a son of J. M. Hallett. Always considered a member of Hallett & Sons. He was a member of the firm. I heard a number of times that Dunlap had bought the lot some time after the company had been organized, but I couldn't say how much he had paid for it. From 1892 to 1896 Hallett was secretary, and for a time the agent, of the townsite company at Juliaetta. He had all charge of sales. The deed was made to Barton in trust. (This answer was stricken out by the court, on motion of counsel for plaintiff.) (Page 4 of the minutes of the meetings of the Juliaetta Townsite Company were read as follows: May 25, 1892. Special meeting of the Juliaetta Townsite Company held in the office of J. N. Hallett & Sons. Present: P. Tillinghast, J. L. Hallett & Sons, Spottswood & Veatch, I. C. Hattabaugh, M. J. Shields, G. Webber, Geo. Langdon. J. L. Hallett elected chairman. Minutes of previous meeting read and approved. In regard to a local agent for the townsite company at Juliaetta it was moved and seconded that Fred N. Hallett be elected to transact business for the company at that place. Carried. Fred Hallett, Secretary.) I have always considered Barton a member of this company." On cross-examination said: "I have never talked with Fred Hallett about this. Have nev

er been able to see him. In the drawing I drew for Snyder, and drew the lot for him." Schupfer, recalled, testified: "In conversation with Barton he said that the company was simply taking the property over from me. The way I had it. Just acting in my place, and he would, of course, see how they would settle it up. Make Fred Hallett pay for the lot if they could make him to." Frank L. White testified: "Was a member of the townsite company. Said at a meeting of the townsite company prior to the settling with Mr. Schupfer some one spoke of Dunlap's having paid Hallett. The understanding was, as I understood it, that Dunlap should have his title to the lot. That was my remembrance of it. Can't state exact words."

Upon these pleadings and evidence, the court rendered a judgment in favor of the plaintiff, quieting his title in and to the said premises against all claims and demands of the defendant, and further decreeing that the expenditures and improvements made and erected upon said premises by the defendant, in the sum of $600, be offset by the value of the use and occupation of said premises by the defendant, the claim of the plaintiff therefor being of the value of $400; also decreeing costs to respondent. To this judgment and decree the appellant excepted, and assigns a number of errors, and brings the case here on a bill of exceptions settled and allowed on the 1st day of September, 1900, and also on appeal from the judgment. The facts, as disclosed by this record, briefly stated, are: That, Schupfer homesteaded a tract of land in Latah county. A company, consisting of a number of men, organized themselves into a company known as "the Juliaetta Townsite Company," and contracted to buy the land from Schupfer, agreeing to pay therefor $8,000. The townsite was platted, and the defendant, Dunlap, contracted to purchase lot 17, block 5. This was in the year 1895. He soon began the construction of a livery barn upon said lot, which, when completed, was estimated to be of the value of from $600 to $750, and by the learned judge who tried the case below of the value of $600. A large number of lots were sold, but not sufficient to pay Schupfer the amount of his bond. When sales were made the money was to be paid to Schupfer, who was to execute and deliver the deeds, and retain 85 cents out of each dollar he received to apply on the debt due him from the townsite company. One Fred Hallett was the secretary and agent of the townsite company. Defendant bought his lot from Berryman, whom he says was subagent for Mr. Hallett, and agreed to pay $100 for the lot within one year from the date of purchase. He paid $37.50 in lumber, and the balance in livery hire, and demanded his deed within the life of his contract. The property was assessed to defendant from 1895, and he raid all taxes assessed thereon up to the

time of the trial. The payment of the con. sideration to Hallett for this lot was shown to have been in lumber and livery hire, and evidenced by a receipt. Within a short time after the lots were placed upon the market, a majority that were ever sold were disposed of. A settlement for the $1,500 due Schupfer was effected by some of the members of the townsite company, they to pay him $150, and he take certain lots remaining unsold. The money was paid to Schupfer, and he executed his warranty deed to plaintiff for all lots not deeded or taken by him, including the lot in controversy. A drawing was had to divide the lots between the members of the townsite company, and the lot in dispute fell to one Snyder, but by a trade, without the knowledge of said Snyder, who was represented at said drawing by G. Webber, plaintiff became the owner of the lot. Plaintiff knew that defendant occupied the lot with a livery stable and was claiming and demanding title to it, and was so informed when he took the deed from Schupfer. When Schupfer objected to making a warranty deed to the lot on account of the claim of defendant, he was informed by plaintiff it was all right,-that they only desired to make Hallett pay the company for the lot.

Now, with this record before us, does the plaintiff come into a court of equity with clean hands? And can the judgment of the lower court be upheld? If so we must say to the defendant: It is true you have paid the $100 you contracted to pay as the purchase price of the lot to the agent of the townsite company, it is true you have paid all taxes assessed against said property, it is true you have erected a livery barn on the lot costing you from $600 to $750, but you did not pay in money and get your deed from Schupfer, and the property has now passed into the hands of a party who knew of your claim and improvements you had made upon the lot. It is true you have been in the open, notorious, and undisputed possession of the property from May, 1895, until this action was commenced, in 1898, with promises from the representatives of the townsite company that you should have your deed, but notwithstanding all this you shall not have your deed. If we apply the old rule of equity to the plaintiff in this case, "He who sceks equity must do equity," in what position do we find him? When he gets his deed from Schupfer, either for himself or as the representative of the townsite company, and it matters not which, he is informed by Schupfer of the claim of defendant to this lot; finds him in possession of the lot with valuable improvements thereon, and claiming the right of title thereto. In the drawing resorted to this lot falls to another member of the townsite company, represented by Webber. Plaintiff exchanges the lots drawn by himself with Webber without the knowledge or consent of Snyder, and then asks the court to eject the defendant, give him the

The

improvements placed upon the lot by the defendant at a cost of $600 to $750, in good faith, believing that he had fulfilled his contract and was entitled to his deed. To uphold the contention of plaintiff and the judgment of the trial court would not be equity if we apply the rule above referred to. plaintiff is not entitled to relief, and the only question is, what relief is the defendant entitled to under the pleadings and evidence? The evidence shows that the contract of purchase was a verbal one between defendant and the agent of the townsite company, and that while it was for the sale of real estate there was part performance of the contract, and may be enforced by the defendant. See section 6008, Rev. St. Idaho. 3 Pom. Eq. Jur. § 1409, says: "It would be a virtual fraud for the defendants, after permitting the acts of part performance, to interpose the statute [meaning the statute of frauds] as a bar to the plaintiff's remedial right. The acts of part performance therefore, in order to satisfy this principle, must be done in pursuance of the contract, and must alter the relations of the parties. The most important acts which constitute a sufficient part performance are actual possession, permanent and valuable improvements, and these two combined." In Day v. Cohn, 65 Cal. 508, 4 Pac. 511, it is said: "A subsequent purchaser from the vendor, with notice of the agreement on the part of the grantor to convey the title, holds the same in trust for the vendee, and is bound to convey it to him upon payment of the balance of the purchase money due by the agreement." The same rule is enunciated in Love v. Watkins, 40 Cal. 548, 6 Am. Rep. 624; Murray v. Jayne, 8 Barb. 613; Bigelow v. Armes, 108 U. S. 10, 1 Sup. Ct. 83, 27 L. Ed. 631; Calanchini v. Branstetter, 84 Cal. 249, 24 Pac. 149. Respondent in his brief says: "The equitable relief of Schupfer's performance of contract is not a matter of right, strictly speaking, but rests in the sound discretion of the court, upon an impartial view of all the circumstances surrounding the matters in controversy,"-and cites Vincent v. Larson, 1 Idaho, 241, and a number of other authorities upholding this contention. We have no fault to find with this position, or the authorities cited, and that is the rule we are attempting to apply to this case. Every witness connected in any way with the Juliaetta Townsite Company who has testified in this case seems to have known of the defendant's possession and claim of right. as well as the improvements placed upon the lot in question, and the plaintiff was not an exception, as he testifies he knew defendant was in possession, had improvements upon the lot, and was informed, by Schupfer, at the time he delivered the deed, of defendant's claim. The findings in this case should have been in favor of the defendant, and judgment and decree that defendant is the owner of and entitled to the possession of

said lot and a deed from the respondent therefor.

The judgment is reversed, and cause remanded for further proceedings in accordance with this opinion, with costs to the appellant.

QUARLES, C. J., and SULLIVAN, J., con

cur.

(26 Mont. 157)

KING v. LINCOLN. (Supreme Court of Montana. Dec. 9, 1901.)

NEW TRIAL STATEMENT - SUFFICIENCY OF EVIDENCE-ACCOUNT STATED-JURY -BOUND BY CHARGE.

est.

1. Where the only specification in the statement for a new trial is that the evidence is insufficient to support the verdict "in finding for the plaintiff in the sum of $95.70, with interand that the "verdict is contrary to the evidence," there is a failure to comply with the requirement of Code Civ. Proc. § 1173, that when the motion is for insufficiency of evidence the statement shall specify the particulars in which such evidence is alleged to be insufficient.

2. A jury is bound by the law given by the court, whether correct or not.

3. In an action to recover on an account stated, the court charged that "an account stated is a document or writing which exhibits the state of account between parties, and the balance owing from one to the other, * and should be something more than a mere memorandum; it should show on its face that it was intended to be a final settlement up to date; and this should be expressed with clearness and certainty." There was evidence that the parties sat at a table and talked over their several claims, and that plaintiff's clerk took down the amounts, and figured out the balance, which he showed the parties, and that they assented thereto, but no written statement, other than such memorandum, was made, and a disagreement followed. Held, that a finding that there was an account stated was contrary to law, as given by the court.

Appeal from district court, Fergus county; Dudley Du Bose, Judge.

Action by Joseph King against Alvin Lincoln. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.

F. E. Stranahan and W. M. Blackford, for appellant.

BRANTLY, C. J. Action upon an account stated. The complaint alleges that on September 29, 1897, at the city of Chicago, Ill., an account was stated between the plaintiff and the defendant, and that there was found due from defendant to plaintiff a balance of $95.70, no part of which has been paid. Judgment is demanded for this sum, with interest from the date of settlement.

The defendant makes specific denial of all these averments, except his failure to pay the alleged balance, and then avers affirmatively that in August, 1897, he and plaintiff entered into an agreement whereby they associated themselves together for the purpose of rounding up cattle owned by them,