Opinion of the Court.

visions shall be controlled by the provisions of said act of twenty-third May, eighteen hundred and forty-four, and the rules and regulations of the Commissioner of the General Land Office." 13 Stat. 94, c. 99.

The Supreme Court of Colorado said: "Under the acts of Congress above mentioned, and the provisions of the act of the territorial legislature in aid thereof, the probate judge holding the title to the town site in trust for the beneficiaries, was authorized to convey the lots and parcels of land therein to those entitled to the same. This was a general jurisdiction over the subject matter, analogous to the jurisdiction of the Land Department of the government over the issuing of patents to lands subject to entry under the land laws of the United States. Being invested with title and jurisdiction, probate judge Downing conveyed the lot in controversy to John Hughes, from whom appellee Horner deraigned title more than seven years prior to the conveyance by his successor, Judge Kingsley, to the appellant Chever. If, then, the deed from Judge Downing to Hughes is regular upon its face, and purports to have been executed in pursuance of the authority vested in the grantor, it is not open to attack in this collateral proceeding for defects or omissions in the initiatory proceedings." And it was accordingly held, as the deed was of that character, that the presumption was that the proper initiatory steps had been taken in conformity with

law.

We cannot perceive that any title, right or privilege was specially set up and claimed by Chever under the acts of Congress, and that the decision of the state court was against such title, right or privilege. The decision proceeded upon the proper construction of a territorial law prescribing rules and regulations for the execution of the trust in question, and enacted in pursuance of the acts of Congress. And the rulings in regard to the deeds issued by the probate judges were rulings not involving the denial of a title, right or privilege specially set up under the acts of Congress, by Chever as against Horner, but compliance with requirements of the territorial act. The question was whether, under the law of

Syllabus.

Colorado, the title which had passed from the United States to the probate judge, passed from Judge Downing to Hughes or from Judge Kingsley to Chever. There was no pretence that the proceedings prescribed by the territorial act were not in due execution of the trust imposed by the town-site acts, and the conclusion reached was based purely upon the local law. Both parties admitted the title of the probate judge, and the real controversy related to the transfer of that title to one party or the other. Under these circumstances the writ of error cannot be sustained, and it must be

Dismissed.

VAN STONE v. STILLWELL & BIERCE MANUFACTURING COMPANY.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MISSOURI.

No. 113. Submitted November 25, 1891.- Decided December 21, 1891.

In regard to bills of exceptions Federal courts are independent of any statute or practice prevailing in the courts of the State in which the trial was had.

Under the pleadings as framed and the issues as made up in this case the court was bound to admit evidence.

In the absence of a specification wherein evidence offered was improper or irrelevant this court is bound to presume that it was properly admitted. A matter resting in the discretion of the trial court is not assignable for error here.

The overruling of a motion for a new trial in the court below cannot be assigned for error.

A general exception to the charge of the court as a whole cannot be considered here.

A mechanics' lien is a creature of statute, not created by contract, but by statute, for the use of the materials, work and labor furnished under the contract, and the contract is presumably entered into in view of the

statute.

It is settled law in Missouri that a contractor does not waive his right to file a mechanics' lien by receiving from the owner of the building a promissory note for the amount due, payable at a time beyond the expiration of the period within which he is required to file his lien; but,

Statement of the Case.

within the period within which suit must be commenced to enforce the lien, the taking of the note merely suspends the right of action. The plaintiff agreed to construct a flour mill for the defendant, the work to be done at a specified day. After the expiration of that day defendant wrote to plaintiff that the mill was satisfactory, but that the corn-rolls did not work to his satisfaction, and that when they were made to do satisfactory work he should be ready to pay for the entire work. This was completed and accepted within about two months. Held, that this amounted to an agreement to pay if the completion was done within a reasonable time, and that this was a question for the jury to determine under proper instructions from the court.

THE Court stated the case as follows:

This was an action under a statute of Missouri to have a mechanics' lien declared and enforced against certain described property, consisting of a mill and grounds, situated in Marshall in that State. It was originally brought in one of the state courts by the Stillwell and Bierce Manufacturing Company, an Ohio corporation, claiming under an assignment from one Fred. J. Schupp, against the plaintiff in error, C. H. Van Stone, and was subsequently removed into the Federal court, on the ground of diverse citizenship of the parties.

The amended petition, framed under the code practice of the State, contained three counts. The first was a declaration on a written contract between Schupp and Van Stone, dated January 16, 1885, by the terms of which the former agreed to construct in the elevator building of the latter, in Marshall, a flouring mill, on the improved roller process, with a capacity of making from fifty to seventy-five barrels of flour a day and of grinding from three hundred to four hundred bushels of corn into meal in a day of twenty-four hours. The contract further stipulated that the mill should be constructed in a good and workman-like manner, and, when completed, should be up to the standard of other mills, and particularly a certain mill known as the Aulville mill, at Aulville in that State, and should be satisfactory to one Frank Summerville, whose opinion in that respect was to be binding on both parties to the contract; and that the materials used in its construction, with the exception of such as were on the premises, should be furnished by Schupp,

VOL. CXLII-9

Statement of the Case.

who was also to be at all the expense of such construction, the mill to be completed and ready for use before August 1, 1885. The price agreed upon for the construction of the mill was $8200, $500 to be paid April 1, 1885, $500, May 1, 1885, $1200, upon the delivery of the mill, and for the remainder, $6000, Van Stone was to give to Schupp his three equal promissory notes of $2000 each, due in one, two and three years, respectively, with interest at 7 per cent per annum, payable annually, and which were to be "well secured" on real estate, the sufficiency of such security to be determined by one William H. Wood, Esq., of Marshall, or, in the event of his failure to act, by J. H. Cordell of the same city.

The petition further alleged that Schupp complied fully with the terms of the above contract, except as to the time when the mill was to be completed, the machinery for grinding corn not working satisfactorily at that time, but that, upon this point, the defendant by an instrument in writing waived his right to demand a full compliance, and agreed to pay for the entire work when that portion of it was completed, at the same time accepting all that part of the work intended for making flour; and that afterwards, to wit, on the 16th of October, 1885, the mill was completed to the satisfaction of said Summerville and was accepted by the defendant, and was turned over to him, he waiving all exceptions on account of its not having been completed within the time specified in the contract, and at various stated times previous thereto having paid thereon a total sum of $3044.12. It was then alleged that the defendant failed and refused to pay the remainder due on the contract, or to execute his notes therefor, as agreed upon, whereupon Schupp took such proceedings under the Missouri statute as entitled him to a mechanics' lien on the mill and the grounds on which it was situated, for the balance due him on the contract, to wit, $5392.53; and that Schupp, afterwards, for a valuable consideration, assigned and transferred to the plaintiff all his accounts against the defendant arising out of the contract, or in anywise connected with it, including said mechanics' lien, wherefore plaintiff became entitled to recover from the defendant said sum of $5392.53, with interest, etc.,

Statement of the Case.

and also to a mechanics' lien upon the property referred to; for which amount it prayed judgment and asked that the same be made a lien upon the property aforesaid, as provided by law.

The second count was in the nature of a count in assumpsit for labor performed, materials furnished, money paid out, expended, etc., etc., and sought a recovery against the defendant for the value of the work and labor performed and material furnished by Schupp in the construction of a mill for the defendant, in a like amount as in the first count stated, and asked an enforcement of a mechanics' lien upon the mill property, as was done in the first count.

The third count was for extra labor and materials furnished by Schupp in building a mill under a contract with the defendant, and like relief was asked.

The answer admitted the contract declared upon in the first count, but denied every other allegation of the petition, especially those respecting the performance by Schupp of his part of the contract, and the waiver by defendant as to the time of the completion of the mill; and claimed damages for the failure of Schupp to complete the mill within the time specified in the contract, in excess of the amount claimed by the plaintiff to be due thereon.

A replication was filed, and the case proceeded to trial before the court and a jury, resulting in a verdict and judgment in favor of the plaintiff for the sum of $5898.85, including interest, which judgment was made a lien upon the mill property, under the provisions of the state statute. To reverse that judgment this writ of error was sued out.

There was no assignment of errors annexed to and sent up with the record, as provided by Rev. Stat. § 997, but in the brief of counsel for plaintiff in error the following assignment

occurs:

66

"(1) The court erred in admitting any evidence in the case. (2) The court erred in submitting the case to the jury, and entering up a judgment upon the verdict.

"(3) The court erred in refusing to sustain the demurrer to the evidence offered by plaintiff in error.