In the possession of said land, appropri- | ated 200 inches of the water of said Geertson creek; that said appropriation was the first made of the waters of said creek; that at frequent times during the three years prior to the commencement of this suit the defendants had, without plaintiff's consent, diverted the waters from said creek to such an extent as to wholly deprive plaintiff of the water so appropriated by him,-and demands that defendants be restrained from in any manner interfering with plaintiff's right to the use of the water of said creek so claimed and diverted by him. Upon the application of Delos Simons, one of the original defendants, the court ordered James Beattie, John McGuigan, and the Wah Sing Mining Company to be brought in as parties defendant; and thereupon the plaintiff was permitted to and did file his supplemental complaint, alleging that said defendants Beattie, McGuigan, and the Wah Sing Mining Company had diverted a large amount of the water of said Geertson creek, without the consent of plaintiff, to his damage, and demanded that they be perpetually restrained from interfering with the rights of plaintiff to the use of said water. The defendants, except the Wah Sing Mining Company, answered, and by cross-complaint allege their right to the use of water from said creek under divers appropriations. The cause was tried to the court without a jury, and the court filed its decision in writing, and judgment was entered thereon. This appeal was taken from the judgment. The appellant specifies two errors, and demands that the case be reversed and remanded for a new trial. The respondents consent to a reversal. All parties seem anxious for a new trial. The first specification of error is, in substance, that the findings of fact do not conform to the issues made by the pleadings. Upon an inspection of the findings of fact, we observe that they contain many findings upon issues not made by the pleadings, and that they do not find on all of the material issues made by the pleadings.

The second error assigned is "that the Judgment herein entered is against law, for the reason that said judgment does not decree or adjudge any priority of rights to the waters in controversy." The pleadings put in issue the rights of the parties to the use of the waters of said creek, according to the priority of appropriation. The court should have determined the rights of the parties upon that issue, and entered judgment accordingly. Findings of fact and conclusions of law similar to those entered in the case at bar were commented on at some length by this court in its opinion rendered at this term in the case of Kirk v. Bartholomew, 29 Pac. Rep. 40. The law, as therein laid down, governing that case, is also applicable to the case at bar, so far as it applies to the issues to be determined and the judgment to be entered. Under the pleadings the court below must determine the date of each appropriation through which the several parties claim their rights, the amount of water appropriated

1. The act of the legislature entitled "An act to establish and maintain a system of free schools" (see Sess. Laws 1890-91, p. 131) did not repeal chapter 11, tit. 3, of the Political Code, so far as it re-enacted the provisions of said chapter, but merely continued the re-enacted provisions in force.

2. The act entitled "An act to authorize independent school-districts to issue bonds to redeem, fund, or refund their indebtedness, and to provide and improve school houses and grounds and furniture and fixtures," which act was approved March 6, 1891, (see Sess. Laws 1890-91, p. 129,) and the act above referred to, became a law on same day, are contemporaneous legislation, are not in conflict, and should be construed together. (Syllabus by the Court.)

Appeal from district court, Latah county; W. G. PIPER, Judge.

Action by R. H. Barton against Moscow Independent School-District No. 5 of Latah county to restrain the issuance, sale, and delivery of certain bonds. From an order refusing to grant an injunction, plaintiff appeals. Affirmed.

Mitchell & West, for appellant. Forney & Tillinghast, for respondent.

action

SULLIVAN, C. J. This is an brought to obtain an injunction to restrain the issuance, sale, and delivery of $25,000 of bonds, the proceeds of which are to be used in erecting and furnishing a school-house in the Moscow independent school-district No. 5 of Latah county. The court below denied the motion for an injunction, from which order this appeal was taken. An act was passed by the legislature of the state of Idaho at its first session entitled "An act to authorize independent school-districts to issue bonds to redeem, fund, or refund their indebtedness, and to provide and to improve school houses and grounds and furniture and fixtures," which act was approved March 6, 1891. Sess. Laws Idaho 1890-91, p. 129. Said legislature, at said first session, also passed an act entitled "An act to establish and maintain a system of free schools," which act became a law, over the veto of the governor, on the said 6th day of March, 1891. Sess. Laws Idaho 1890-91, p. 131. We have not been able to ascertain which of said acts be

"ame a law first, nor do we consider it necessary to determine that question. Said first-mentioned act provides as follows: "Be it enacted by the legislature of the state of Idaho, that there be added to chapter eleven of title three of the Political Code the following sections." Then follow three sections, directing the procedure to govern the board of trustees of independent school-districts in the issuance of bonds "to redeem, fund, or refund their indebtedness, and to provide and improve school houses and grounds and furniture and fixtures." The second act above referred to provides a plan for the establishment and maintenance of a system of free schools, and contains, among others, the provisions of said chapter 11, tit. 3, of the Political Code, almost verbatim. The word "territory" is changed to "state," and a very few other words are changed; but the scope and meaning of the provisions of said chapter remain substantially the same as before the passage of said act.

It is contended by the appellant that section 65 of the last act above referred to repeals all of the provisions of said chapter 11, tit. 3, of the Political Code, and that said first-mentioned act is an amendment of said chapter 11, and for that reason it is also repealed by said section 65, which section is as follows: "Title (3) three of the Political Code, and all acts and parts of acts inconsistent with this act, are hereby repealed." Title 3 of the Political Code was "Public Schools. Said title contains 11 chapters. The eleventh chapter thereof provides for establishing independent school-districts, and none of its provisions are inconsistent with said act containing said section 65. The provisions of said chapter 11 were reenacted by said second-mentioned act almost verbatim, and are contained in said act from sections 57 to 64, inclusive. We think that by the re-enactment of the provisions of said chapter 11 the intention was to continue in force the uninterrupted operation of said provisions, and that such re-enactment was not, in a proper sense, a repeal thereof, but that. the new act was a mere continuing in force of the provisions of the former act. State v. Wish, (Neb.) 19 N. W. Rep. 686. Sutherland, in his work on Statutory Construction, (section 133,) says: "The portions of the amended sections which are merely copied, without change, are not considered as repealed, and again re-enacted, but to have been the law all along;" and in section 134, Id., he says: "When there is an express repeal of an existing statute, and a re-enactment of it at the same time, or a repeal and a re-enactment of a portion of it, the re-enactment neutralizes the repeal, so far as the old law is continued in force. Offices are not lost, corporate existence is not ended, * by such repeal and re-enactment of the law on which they respectively depend." In Sheftels v. Tabert, (Wis.) 1 N. W. Rep. 161, the court says: "The rule of construction applicable to acts which revise and consolidate another act or acts is that, when the revised and consolidated act reenacts in the same words the provisions

* *

of the act or acts so revised and consolidated, such revision and consolidation shall be taken to be a continuation of the former acts, although such former acts may be expressly repealed by such revised and consolidated act." To the same effect is Association v. Benshimol, 130 Mass. 325; also Wright v. Oakley, 5 Metc. (Mass.) 400; Capron v. Stout, 11 Nev. 304; SteamShip Co. v. Joliffe, 2 Wall. 450. It merely supersedes said chapter 11 by re-enacting the provisions thereof, and thus continues the same in force. The repealing clause of the act which became a law over the veto of the governor clearly indicates that it was not the intention of the legislature to repeal the provisions of said chapter. It repeals only the title of title 3 of the Political Code, and re-enacts the provisions of said chapter, giving it a new title. The act of March 6, 1891, authorizing independent school-districts to issue bonds, is designated as an amendment to chapter 11, tit. 3, of the Political Code; but it has a title of its own, and is complete in itself. Said act of March 3, 1891, which was passed over the veto of the governor, reenacts all of the provisions of said chapter 11, tit. 3, and is specific in repealing the title only to said chapter, and all acts and parts of acts inconsistent with said act. Both of these acts became a law upon the same day, the one by the governor's approval, and the other over his veto. was,

It

unquestionably, contemporaneous legislation, and, as there is no conflict or repugnancy between said acts. both should be permitted to stand. End. Interp. St. §§ 159. 222; Smith v. People, 47 N. Y. 330; Pond v. Maddox, 38 Cal. 572; State v. Babcock, (Neb.) 36 N. W. Rep. 348; Com. v. Kenneson, 143 Mass. 418, 9 Ñ. E. Rep. 761. The order of the court below, refusing to grant an injunction, should be sustained, and it is so ordered, with costs of this appeal in favor of the respondent. HUSTON and MORGAN, JJ., concur.

(3 Idaho [Hasb.] 274) JACOBS V. SHENON.

(Supreme Court of Idaho. Feb. 1, 1892.) REAL-ESTATE BROKER-ACTION FOR COMMISSIONS -PLEADING-WRITTEN CONTRACT-PRIOR PAROL

AGREEMENT EVIDENCE.

1. A broker claiming commissions upon an agreement which provides that the party of the first part offers to sell certain mining property at the price of $175,000, and to pay the parties of the second part $12,000 for services rendered in selling or placing said property upon terms acceptable to the party of the first part, must allege, in direct and positive terms, that the party of the second part did render services which resulted in the sale thereof, or that he produced a party ready, willing, and able to purchase said property upon the terms named; otherwise it is insufficient.

2. The broker must follow such allegation with proof that such services were rendered by him, in order to recover.

3. A contract having been reduced to writing and signed by the parties, concluded all the parties thereto at the date thereof; and any contracts made between the same parties prior to that, relating to the same subject-matter, and all conversations and agreements of whatever kind had between them prior to that date, are by law conclusively presumed to be merged in the final contract.

4. No conversations or agreements had or made prior to that time, tending to vary or dispute the provisions of the writing, are proper considerations for the jury, and could not be given in evidence.

(Syllabus by the Court.)

Appeal from district court, Alturas county; C. O. STOCKSLAGER, Judge.

Action by Martin H. Jacobs against Philip Shenon to recover commissions for selling mines. Verdict and judgment for plaintiff. Defendant appeals. Reversed.

R. P. Quarles, Texas Angel, and Smith & Smith, for appellant. Frank E. Ensign, for respondent.

MORGAN, J. The plaintiff alleges that, on the 7th day of June, 1889, the defendant entered into an agreement with E. S. Chase and William Tate Taylor, by which the said defendant agreed to and with said Chase and Taylor that he would pay them the sum of $12,000 for services rendered by said Chase and Taylor, in selling the property known as the "Shenon' group of mines, situated in Bannock mining district, in Beaverhead county, Mont., and placing the same in a manner acceptable to the said defendant; and said agreement further provided that the said sum should be paid to the said Chase and Taylor in the following manner, to-wit: That, at each payment made to said defendant by the purchaser or purchasers of said mining property, said Chase and Taylor should be paid by the defendant their pro rata 'share thereof, until the whole of the said sum should be paid to them. That the said mining property, in the sale and placing of which said services were rendered by the said Chase and Taylor, has been sold, and the purchase money therefor has been paid to the said defendant, and that the whole amount of the said sum of $12,000 has become due and payable to the said Chase and Taylor, one-half thereof to each. That, however it may appear upon its face, as a matter of fact the said agreement is and was not a joint agreement, as the services rendered as the consideration of said agreement were rendered before the date of the agreement, or its execution by defendant, by said Chase and Taylor, and were not performed jointly or in co-operation, and the amount due under said agreement to each of them, to-wit, the sum of $6,000, was due for separate, distinct, and independent services. That the said William Tate Taylor is now and was at the commencement of this suit a non-resident of this state, and a resident of the state of Montana, and has had, since the commencement of this action, no interest in said agreement; and that, prior to the commencement of this action, the amount due him under said contract had been paid by the said defendant. That on the 1st day of September, 1890, there was due to said E. S. Chase, from the said defendant, on said agreement, the sum of $6,000, after deducting therefrom the sum of $35, which sum of $35 the plaintiff admits to have been paid by the said defendant to the said Chase, on said agreement, on the 10th day of August, 1889. That on the 1st day of September, 1890, the said E. S. Chase sold

and assigned his interest in said agreement to the plaintiff. That no part of said $6,000 had been paid, except the sum of $35, as before stated; and there is now due thereon from the said defendant to plaintiff the sum of $5,963, and interest at the rate of 10 per cent. Prays judgment for the above sum and interest.

To this complaint the defendant filed a demurrer alleging, among others, the fol. lowing causes, to-wit: (1) The complaint does not show or allege that E. S. Chase and William Tate Taylor had ever rendered any services in selling or placing the said property mentioned in the complaint, either before the date of the alleged agreement, or at any time. (2) It does not allege or show that the sale or piacing of the property, alleged in said complaint to have been made, was made before the date of the alleged agreement, or in consequence of any services rendered by said Chase and Taylor. (3) It does not allege or show that the property was placed or sold in a manner acceptable to the defendant. (4) It does not state whether the alleged agreement was verbal or in writing. This demurrer was filed June 16, 1891. On the same day the defendant filed his answer, and admits that, on the 7th day of June, 1889, he entered into an agreement with the said Taylor and Chase, touching the sale and placing by them of the mining property mentioned by them in said complaint; but he denies that he agreed in said agreement to pay the said Taylor and Chase the sum of $12,000, or any other sum, in consideration of services rendered, prior to said date, by them or either of them, in placing or selling the said property, or any part thereof. Denies that said Chase and Taylor, or either of them, had; on the said 7th day of June, 1889, sold said property, or any part thereof, in any manner. Avers that said agreement is a joint agreement. Denies that the consideration for said agreement is or was services rendered by said Taylor and Chase prior to the date of said agreement, and denies, specifically, each of the allegations of the complaint, except that he admits that said property has been sold; but he denies that said property was sold by the said Chase and Taylor, or either of them, or that they sold any part of said property, or that they, or either of them, were the procuring cause for said sale, and avers, upon information and belief, that, prior to said sale, the said Chase, in bad faith towards this defendant, used his influence trying to prevent said sale by false and slanderous statements. That at the time of the execution of said agreement it was distinctly understood and agreed that said promise to pay said Chase and Taylor the said sum of $12,000 was upon the condition that they, the said Chase and Taylor, should place and sell the said mining property at the price of $175,000, upon terms and in manner as should be acceptable to defendant. That said consideration for said promise has wholly failed. The answer contained other alleged defenses not necessary to be bere stated. On July 15th, the day the verdict was returned and the judgment rendered, the plaintiff, by leave of the court, filed an

amendment to his amended complaint, alleging that the plaintiff, conspiring with the said William Tate Taylor, induced the latter, in order to defraud the said Chase, to sign a release to and for the said defendant, of and from the indebtedness arising from said contract, with the intention to wrong and defraud said Chase. The demurrer to the complaint was overruled, and exception taken by defendant. Trial was had before the court and a jury, resulting in a verdict for the plaintiff and against the defendant for the sum of $5,107.86, and legal interest from the filing of the complaint. Judgment was entered on the said verdict on July 15, 1891. Defendant moved for a new trial, which being denied, an appeal was taken to this court.

The contract upon which this suit is brought was introduced in evidence, is in writing, and is as follows: "This agreement made and entered into this 7th day of June, 1889, by and between Phil Shenon, of Beaverhead county, Montana territory, party of the first part, and Wm. Tate Taylor and E. S. Chase, of said Beaverhead county, parties of the second part, witnesseth: That the party of the first part offers to sell certain mining property and appurtenances in Bannock mining district, county and territory aforesaid, for the sum of one hundred and seventy-five thousand dollars; and of which amount said party of the first part agrees to pay said parties of the second part the sum of twelve thousand dollars, in consideration of services rendered in selling and placing said property on such terms and conditions as may be accepted by said party of the first part. And it is further agreed by said parties hereto that the said sum of twelve thousand dollars shall be paid pro rata, as per purchase price, in cash and stock, if the sale be made, at such time as payments may be made on such sale to the party of the first part. Witnesseth our hands and seals day here first above written. WM. TATE TAYLOR. PHIL SHENON. E. S. CHASE." It will be seen that the complaint contains no allegation that the said Chase and Taylor, or either of them, ever, at any time, rendered any services, in selling or placing the property described in the complaint; nor does it show that the property was sold or placed by reason of, or in consequence of, any services rendered by said Taylor and Chase, or either of them, at any time. The only allegation from which the court might infer that services had been rendered by the parties Chase and Taylor are the following words, "That the said mining property, in the sale and placing of which the said services were rendered," and again as follows: "Plaintiff alleges, on information and belief, that, however it may appear upon its face, as a matter of fact the said agreement is and was not a joint agreement, as the services rendered as the consideration for said agreement were rendered before the date of the agreement, or its execution by defendant, by said Chase and Taylor, and were not performed jointly or in co-operation; and the amount due under said agreement to each

of them, to-wit, the sum of $6,000, was due for separate, distinct, and independent services." The foregoing is not an allegation that services were rendered. The allegation that said Chase and Taylor sold or placed said mine for the price named, or were the procuring cause of its being so sold or placed, must be direct, certain, and positive, and cannot be left to inference. No fact material to recovery, as this is, can be left to inference. 1 Estee, Pl. Pr. § 196; Moore v. Besse, 30 Cal. 572. Without allegations of such services the complaint is fatally defective. The demurrer thereto should have been sustained.

The contract, as above set forth, is plain, unambiguous, and certain in its language, this agreement made by and between Phil Shenon, party of the first part, and Taylor and Chase, parties of the second part. The party of the first part offers to sell, and agrees to pay to the said parties of the second part. Whenever an obligation is undertaken by two or more, or a right given to two or more, it is the presumption of law that it is a joint obligation or right. Words of joinder are not necessary, but words of severance are. 1 Pars. Cont. c. 2, § 1, p. 11. The contract on the part of Chase and Taylor, the parties of the second part, was joint. But it is alleged in the complaint that, prior to the commencement of the action, the amount due Taylor had been fully paid, and that he had no interest in said contract at the time of the commencement of the action. This gave Chase, or his assignee, the right to sue in his own name. Hawes, Parties, § 94, and cases there cited.

The contract was also to be performed in futuro. It states: "The party of the first part offers to sell." The property had not then been sold, and, so far as this contract is concerned, it is the same as if it had never before been offered for sale. It is, then, now offered for sale at the price of $175,000, and the effect of the further provision is that if the said Chase and Taylor shall succeed in selling and placing said property, at said price, and on such terms and conditions as may be accepted by said Shenon, the party of the first part, then said defendant is to pay said Chase and Taylor the sum of $12,000, in consideration of said services; and the converse would be equally true, that if the said Chase and Taylor should not succeed in selling and placing said property according to conditions, nor in introducing or procuring parties who were ready and willing and offered to pay such price, upon terms and conditions that were acceptable, then nothing would be due them under this contract. This contract having been reduced to writing, and signed by the parties on the 7th day of June, 1889, concluded all the parties thereto at that date; and any contracts made between the parties prior to that date, relating to the subject-matter, and all conversations and agreements of whatever kind had between them prior to that date, are by law conclusively presumed to be merged in this contract. No conversations or agreements bad or made before that time, tending to dispute or vary the contract,

were proper considerations for the jury, and could not be given in evidence. There is no evidence in the record of any agreement or contract made by the parties subsequent to the signing of this contract, varying the terms thereof. It therefore stands unchanged.

The above construction of the contract, and the statement of the law relating thereto, it seems to the court, clearly indicates what is and what is not proper evidence.

Mrs. E. S. Chase was permitted to testify, over the objection of defendant, that Mr. Taylor said it would make no difference when the mine was sold, or if it was to those parties, or some others; that the contract would still hold good, and that it was for services rendered; presumably meaning that it would make no difference whether the property was sold to parties procured by Chase and Taylor, or to parties procured by others, as the theory of the plaintiff was that the contract was given for services rendered before its mak ing. This evidence was improper, and should have been excluded. One party to a contract cannot, in the absence of the other party, be permitted to give his own construction thereto, varying its terms, and have such construction go to the jury to affect their verdict. If received for the purpose of impeaching the testimony of Taylor, it was improper, as no foundation had been laid therefor. Mr. Taylor was not interrogated with reference to this conversation. The testimony shows that the property was not sold or placed by Taylor and Chase, or either of them, and that they, nor either of them, were the procuring cause of such sale. Taylor swears that he and Chase tried to sell the property, but failed. Again: "Failing to sell the property, I surrendered my copy of the agreement to Shenon." "Mr. Chase and myself tried to sell the property to Mr. E. Probert. Mr. Probert did not buy. We also offered it to William Beck and B. F. White, but failed to sell it." Mr. Chase proposed to bring a purchasing party from Hailey, Idaho, but no party came. And again, Taylor states: "We were to receive $12,000 in money and stock if we sold the property. If we did not sell the property we were to receive no compensation." These statements were reiterated upon cross-examination. Mr. Shenon, the defendant, testifies: "I never paid Mr. Chase anything on this contract. This credit of $35 on the contract is not any credit of any payment of mine on the same." "I sold the mines mentioned in the contract, which plaintiff has sued on, to J. Stewart-Wallace through Messrs. Casey, Hammer & Huston, as my agents. Taylor did not have anything to do or assist in any way in this sale, nor did Mr. Chase assist in any way on this sale. At the time the contract of June 7th was entered into, they, Chase and Taylor, claimed to be in possession of a purchasing party who might purchase my property in the event of the Butte parties failing to do so. At that time there was a bond pending with the Butte parties, but there was no deal made until December 17, 1889. The Butte parties were represented by J.

Stewart-Wallace, to whom I sold. I sold the mining property for $150,000,-$100,000 payable in money, and $50,000 payable in stock." Witness Chase claims that the services had been rendered which were the consideration for this contract, before the making of the contract; but the evidence shows that the negotiations for the sale were continued for six months after that time, and the sale was not consummated until December, 1889. It is not such a contract as would be made for services already rendered and completed, but is such a contract as would be agreed upon were the parties Chase and Taylor then undertaking to make the sale. The testimony of Taylor and Shenon that no services were rendered, either by Chase or Taylor, in the sale finally made by Casey, Hammer & Huston, is not contradicted by any testimony in the case, except Chase, and he does not claim that they or either of them did anything after the mak ing of the contract of June 7, 1889.

As appears by this record, the court is forced to the conclusion that there is no evidence therein that would enable the plaintiff to recover. The issues in this case are pointedly laid down, and the law relating thereto briefly and clearly given, in Mechem on Agency, section 965. (1) What did the broker undertake to do? (2) Has he completed that undertaking within the time and upon the terms stipulated? (3) If not, is the default attributable to his own act, or to the interference of the principal? If, upon such an inquiry, it be determined that the broker has performed, within the time and upon the terms agreed upon, he is entitled to his commissions. If he has not, he is not so entitled, unless the performance was prevented by the principal, under circumstance which gave him no right then and so to prevent it. If particular terms and conditions are stipulated for, the performance must be in accordance with those terms, and no performance upon other terms will suffice, unless accepted by the principal. It cannot be seriously contended that Chase and Taylor, or either of them, sold said property, or procured a purchaser ready, willing, and able to purchase the same, at the price named in the contract, and upon terms that were acceptable to the defendant, or upon any terms.

We come now to the consideration of the instructions. The following instructions requested on the part of the plaintiff were given by the court, and excepted to by the defendant. "No. 3. The jury are instructed that, even if they should believe from the evidence that E. S. Chase and William Tate Taylor were copartners and joint owners in the contract sued on in this cause, a release by Taylor would' not bind Chase if the jury believed, from the evidence, that the said Taylor was guilty of practising a fraud upon Chase in executing the release, or executed the release in bad faith to Chase, or executed the release by a fraudulent connivance or collusion with Shenon, the defendant." There is no evidence in the record that Taylor practiced a fraud upon Chase, or executed the release in bad faith, nor of