*1 1926.] McNally. Bank Hombdale v. First Points Decided. right judg- had abandoned. The the reservoir instruc- reversed, with court therefore

ment of the-lower appellant. Costs in favor of judgment enter tions appellant. awarded to Budge Tay- E. Lee, Lee,

"William and Wm. lor, JJ., concur. 1926.)

(April 28, Corporation, Appellant, HOMEDALE, BANK FIRST OF Respondent. McNALLY, v. A. W.

[246 Pleadings Justices Peace — Justices’ Courts —Demurrer— Paper Assignment — Effect Bills and Notes Worthless Payment —Failure of Consideration. as justice appeal from Where district court on ruled 1. court complaint plaintiff, sustained, demurrer to should have been complaint. S., was entitled to file amended view of C. see. plead- S., 7072, great liberality Under C. see. is allowed 2. justices’ ings courts. portion justice action on note in 3. Where open action, it is states cause of demurrer. Complaint justice court, alleging in action on note in execu- 4. copy with delivery setting of note and out of the note tion plaintiff was owner and that note was due and allegations that against general although demurrer, unpaid, held' sufficient uncertainty portions or demurrer for motion to strike allegations might relative to surrender of note to de- lie as to certificate, which can- had been for consideration land fendant return worthless, subsequent with and was demand celed note. assigned -by certificate, maker of note in Where land sale 5. assign- canceled payment thereof, was worthless because before

ment, consideration, note was still there was failure of total enforceable. ok Homedale

Argument Appellant. Assignment land sale certificate as consideration of worthless payment. insufficient to constitute maker of note is for return to *2 Judicial APPEAL from District Court of the Seventh Judge. Bryan, Canyon County. Ed. L. District, Hon. for Judgment defendant. for Action note. on Reversed. Appellant.

S. Dunlap, Ben discharged by surrender will maker of a note not be or mis- fraud, duress or a cancelation which result of is the Nat. 223; 23 take. Cal. Marshall, v. {Banks Manufacturers’ Rep. 376; Am. Blod- 438, Bank 129 Mass. 37 Thompson, v. gett 334.) 731, 73 Dec. Bickford, 30 Am. v. Yt.

Respondent’s liability complaint the note on Marshall, against him. v. {Banks stated a cause of action supra; Blodgett supra.) Bickford, v. possession money, which party one his

“Whenever has another, good belongs law equity conscience repay Pel- promise upon part it.” v. {Milner raises a 594, 574.) 166 Pae. ham, 30 Ida. paid fact may under a mistake of be re-

“Money out good payable conscience covered, if was not due or 37 Gilmore, 544, Ida. ought returned.” v. 217 {Rohn 457, 78; 22 83 Am. Hicks, Cal. Dec. 602; Keller v. Pac. Sup. 16 385, 1148, 163 U. 41 Richards, S. Ct. Meyer v. Benjamin Sales, ed., 600-607; 4th Am. sees. 199; L. ed. 29, 54; 24 L. ed. Donaldson, 94 U. S. Flandrow v. TJtley v. Note. Publisher’s L. 16 K. O. 376. See 2. 21 C. L. K 514. 3. See R. C. L. 1337. 3 4. See J., Notes, 798, p. 574, New; n. 80 8 O. sec. see. Bills and See 1057, n. 1365, p. J., 368, 242, p. n. 94. Contracts, C. sec. 13 228, p. 616, 23; 236, Peace, n. sec. 35 see. Justices p. 95 4; 560, 834, n. 625, 12; 532, p. 815, see. Now.

p. n. sec. n. op 445 v. Johnson, Commissioner. Opinion of the Court — Sheldon, 511; 42 N. E. Wood v. 129, N. Hammond, 148> Y. Clabrough’s Gregory v. Rep. 523; 36 Am. 42 L. J.N. Nat. 72; Prowvnsky Second 475, 62 Pac. v. 129 Cal. Exrs., 784, sec. p. 2 358; L., 1003, 12 R. R. C. 265 Fed. It. Bank, 386, 113 Delaware, 185 N. Y. 38; Hathaway County v. S., 273; Thresher A.,R. N. 909, N. 13 L. Am. E. St. 419.) v. 52 Cal. Lopez, Pac. supported

Upon judgment which is appeal, a findings pleadings (Davis Devan- reversed. v. will be 500.) 7 Ida. ney, Griffiths, Respondent.

Walter in law facts which There are no stated stated and there no facts constitute actionable fraud will are which constitute a mistake as a would such undoing completed equity would correct acts (Moffett, Hodgkins City parties. <&Clarke E. Co. *3 Rochester, 319; 28, 91 Fed. 33 New York C. C. Ins. Life Eastman, Iowa, 613, 134 & 120 Am. Co. v. Chittenden St. 96, S., 13 Ann. Gas. 112 N. W. 11 R N. 444, 408, A., L. 21 233; 167-170.) L. R. C. originally action, is an

JOHNSON, Commissioner. This justice Owyhee county in the in instituted court at Homedale by respondent from appellant, the on a recover appellant in favor by the latter of for the note February $190, 21, 1922, of dated principal sum and due convenience For we shall re- October hereafter parties fer the as and defendant. justice court the filed de-

The a ground on the the murrer did not state facts action, of to constitute a cause which sufficient demurrer was change The defendant also for overruled. moved a of venue “protest which was denied. also filed what He is termed a objection cause jus- and answer.” The tried was judgment in favor tice and was entered for appealed sum $285.77. of The defendant from said ‘‘ judgment court, being to the the appeal district upon taken Johnson,

Opinion, Commissioner. of the Court — stipulation signed was questions law and fact.” A of both agreeing cause attorneys parties both for judicial dis- should be transferred trial third judicial Owyhee the seventh dis- county and for trict county. Canyon This done on account in and trict approved by the of witnesses and was the convenience signed judicial who an order judge district third tried court transferring case. The cause was judgment jury, rendered favor of de- without judgment plain- $35. From this fixed at fendant and costs appeals. tiff justice in the court was originally filed as pleadings remained same as

never and the amended, findings justice conclu- its court. The court filed findings fact, closing paragraph of court’s sions. The follows: “That defendant’s demurrer VII, numbered is as plaintiff’s complaint sustained, and that should have Why the judgment should be entered.” for defendant finding apparent fact ruling made this from the record. appeals provides party sec. that: “When S., questions questions or on fact,

the district court on fact, made, no need ac- both law statement be but the anew in court.” tion must tried district be Hagood, case of in the Chase v. Ida. This court conclusion, following language: “As used the provides appeal probate statute taken from where fact, justice’s court on both law court to the district court, novo in latter shall be a trial de and either there objections party excep shall entitled to and all anything court, lower we cannot tions taken in the consider proceedings district to the in the court.’’ anteñor ^[1] If the district by this *4 finding that the demurrer intending have sustained was been rule on the should to plaintiff to demurrer, then the file an amended was entitled complaint.

[2] Great liberality is allowed in pleadings in justices’ provides pleadings justices’ that courts. sec. S., ok Homedale Opinion Johnson, of the Commissioner. Court — required but any particular form, be in courts “are not person understanding such a must be as to of common enable to know wbat intended.” this standard it is Measured any not difficult was intended. In understand what presented event the defendant his demurrer should have ruling and had a from intro- the court advance the complaint allege duction of cor- evidence. The the does porate plaintiff. alleges existence of the It that “the de- fendant, made, executed, for value received, and delivered plaintiff note,” the follows certain and allegation copy this with alleges a note. also that It plaintiff now the lawful of said owner and holder note, unpaid due, owing and that is now the same and alleges plaintiff. defendant also forty It that dollars a reasonable sum to plaintiff attorney be allowed fees, prays judgment.

[3] If any portion of the states cause action it is not open to a demurrer. ^[4] other matters alleged are not with care usually exercised proceedings, district court but apparent clearly that the defendant maturity before the assigned the note plaintiff delivered to the sale land agreed certificate which the state to sell certain described Owyhee county; lands at that the time defendant assignment his wife said the said certificate had been nonpayment canceled the state land board for payments principal deferred thereon, and interest and was entirely worthless and all valueless, of which was well known to defendant; plaintiff believing certificate valid certificate and accepted contract sale same delivered to the defendant note; within a days acceptance few after assignment of said delivery the note defendant, to the dis covered that said certificate was valueless and had canceled, and immediately upon made demand defendant for note, return of said and offered to deliver back to defendant certificate; ready is now willing deliver to said certificate and make *5 McNally. Bank First ok Homedale v.

Opinion Johnson, of the Commissioner. Court — assignment may requested required that be or thereof said defendant. alleged

It will not be observed that that the it plaintiff upon demand, but failed return the to the note to stated, allege, the specifically does as heretofore of holder “that the lawful is now owner and the said note.”

A de- motion of or a portions complaint, the to strike might murrer but we complaint, lie to uncertainty, said against believe as demurrer. sufficient it allegations the along The evidence lines the complaint, that at the defendant denied he knew but assigned had time he to it the certificate that acknowledged receiv- already He, however, been canceled. ing proper of the a letter under date from the officer state 1922, payment on 1, notifying him “unless of March that within is made land sale certificate above mentioned day draft, sixty days March, either from the first money postal express or check, check, or certified cashier’s bond, application order, unless inclosed properly and returned this defendant bond, legis- passed Bill No. with House as accordance 1, 1921, commis- board land lature on March state rights your said land forfeited will declare sioners provided by Sec. your annulled, and contract certificate Compiled Idaho.” Statutes letter, April 29th, on to this as follows: replied He the land I hold I “Your letter about that No. got enough improvements justify I a little have think begin pay crop payment. When the wont time on -the get pay. I cant see where the their State is water under cultivation a cost got this land all well that I have granery. sign I a bond for barn would not house $1100 Harry paid to do for me I wouldn’t ask them so any won & land McGregor what had done on cash for he $2200 bought hoping you that I from can see man that payment. fit to extend McNALLY, W.

“Yours, Idaho.” “Homedale, áií) op Opinion Johnson, Commissioner. Court — acknowledged following receiving also He letter state, May dated 1st: your “In reply 30th, a matter April letter of improvements amount land you put have Department *6 covered this is certificates, sale but compelled payment to follow the law and that is that the year on January sale certificates becomes due on 1st each subject days. But, are 60 ac- to cancelation after on two, past count of year the financial condition or Legislature provided Department bill permit a to to carry payment until a 1st, 1922, providing November given protect bond payment. you to such For reason that can payment the necessity making see or ex- either ecuting bond, otherwise, we must consider the certificate delinquent after date.”

On August 3, 1922, the commissioners state board of land canceled sale, defendant’s certificate of notice can- August celation was mailed to defendant on 1922. There requested is no that go evidence was plaintiff’s bank or that the officers of the bank ever him transfer sale, asked certificate of which was held security note, them payment note, any August event the bank but he went to due, several months his before note became and offered to assign payment certificate to the bank of his note. did inform bank He not certificate can- was celed and claims that he did at that not know time it had been canceled. He also claims that some conversation payments bank about occurred in the the deferred he but he had did not show the letters received from the state anything say having or officers about received any such plaintiff letters. That the officers of bank did not know canceled, had that the certificate not and did out find had undisputed said certificate been canceled un- is, therefore, denied. The evidence clear that the defendant plaintiff received from the in exchange his note for a worth- piece paper. less

42 Idaho — ^[29] op Opinion Johnson, Commissioner. of the Court — ^[5] The land certificate when canceled was no longer of Its consideration It null void. force effect. purpose for failed. cannot be used for the wholly has It a cer similitude of which issued. It is but worthless it no value whatever. sale and has tificate payment nothing of the defendant’s whatever in received from the note. There a total of consideration failure in fact seller did of such certificate since the buying supposed it receive a valid certificate of sale piece paper. only but of worthless clearly principle announced This case comes within the Pelham, Ida. this court in the Milner v. case ease, “The Budge, Pac. 574. In that stated: principle founda- very at involved is the one which lies prima- gmsi-contraetual obligations, based tion of all and is upon questions good When- rily equity conscience. possession equity which in money has in party ever one his belongs another, law raises a good conscience part promise upon repay it.” *7 Again, in 37 Ida. case of Rohn v. 544. Gilmore. paid money under a mistake Pac. this court held that may payable recovered if it and of fact be not due good ought to be returned. conscience ^[6] The status of defendant has not changed assignment sale, certificate of since had no by the he assigned, and he not could therefore did interest No is prejudice. claim made that position to alter his gift amake to the plaintiff bank intended to except note note. No defense is offered of the turning piece payment, over of a worthless and claim of pay is a sufficient consideration constitute a paper not ment. supreme California in the case Banks v.

The if held note sur- Marshall, Cal. supposition up mistake, under the rendered yet fully paid the defendant is still fully paid, if not liable balance due. Farrar Parrish. 1926.]

Points Decided. support findings, evidence does not conclusions The judgment judgment reasons stated. should therefore be reversed. Budge JJ., concur. Lee, Givens,

William Taylor, JJ., Wm. did Lee not sit. E. foregoing hereby adopted

PER CURIAM.-—The opinion court, judgment trial court reversed, appellant. with costs awarded

(April 29, 1926.) MINNIE A. HENRY W. FARRAR LYSLE FARRAR, FARRAR,

D. Executors of JONATHAN the Estate of Respondents, FARRAR, Deceased, D. v. WM. W. PAR PARRISH, PEARL Wife, Appel RISH and E. His lants; E. F. TWIN WALTON and FALLS BANK & Respondents. CO., Corporation, TRUST Appeal Assignment -— — Error and' of Error not Considered Con- flicting Pleading—Mortgages-—Contract Evidence — to Trans- Property fer Real —Part Performance of Voidable Contract— Novation—Estoppel. Consideration — Assignment orally error not 1. discussed nor in brief and citing appeal. authorities will not be no considered on Testimony of witness as cancelation 2. one and surrender competent for sale of contract of real estate is support evidence to though finding, trial court’s two contradicted witnesses. Allegations complaint, denied, stand as admitted. purchaser unacknowledged 4. Where pur- instrument *8 porting purchase transfer of land, contract later surrender rights contract, under agreement with subsequent pur- might original take deed direet vendor, chaser was con- mortgage assignee original purchaser sideration. fox agreement, due on assuring balance subsequent pur- title to performance chaser of contract.