dertook to safely and carefully ship and deliver to the plaintiff at Seattle, without loss or damage, his household goods, furniture, and effects, for the agreed price of $160, which was paid in advance as full and complete payment of all charges for cartage, storage, and reloading at Chicago, railway freightage from Chicago to Seattle, and including, also, all charges for unloading, storing, and delivering the goods to the plaintiff by the Bekins Moving & Storage Company, in Seattle, which latter company the defendant represented to plaintiff was the defendant's agent in Seattle for such purpose; that the said Seattle agent would, without additional charges, deliver the goods to plaintiff at any point in Seattle within the radius of any reasonable distance therein, on demand by plaintiff of the agent at any time within four days after notice of the arrival of the goods in Seattle; that the goods were received and accepted by the defendant upon the above agreement and terms, and upon no other or further condition whatever; that, notwithstanding the agreement, the defendant so carelessly handled the goods while within its possession and control, and during transit, and while in the possession and control of plaintiff's Seattle agent, that it failed to deliver them without damage, but that they were damaged to the extent of $248.10. A second cause of action alleges that the defendant's Seattle agent, the Bekins Moving & Storage Company, exacted from the plaintiff the payment of the additional sum of $57.50 for cartage and storage in Seattle before it would deliver the goods at the plaintiff's residence in Seattle, although demand for their delivery was made upon the day of their arrival in Seattle. It is averred that the amount was paid under protest and in order that the plaintiff might secure the possession of his goods for immediate household necessities. Recovery of the amount so alleged to have been paid is sought, and judgment is demanded for the aggregate sum of the above items. The answer denies the material parts of the complaint, and under such issues the cause was tried by the court without a jury, and resulted in a judgment for plaintiff in the sum of $210 on the first cause of action, and in the further sum of $57.15 on the second cause of action. The defendant has appealed. tract was in all essential particulars the same as set forth in the complaint, and that respondent was entitled to recover the amount of damage done to the goods, and also to recover back the cartage and storage exacted from him in Seattle by appellant's agent. We shall not disturb the findings. The contract was, therefore, a straight undertaking to deliver to respondent in Seattle the goods in question without damage, and to cart them to his home, which was shown to have been within reasonable distance, without further charges. Under such a contract it was immaterial whether appellant was a mere forwarder, or a forwarder and distributor. It undertook to do a special thing, and it was obligated, like any other person, to carry out its undertaking without regard to what name it may use in designating its business. In this respect the case is similar to cause No. 7,532, Lee v. Fidelity Storage & Transfer Company (just decided by this court) 98 Pac. 658, and what was there said with reference to a similar contract made by one engaged in a similar business is applicable here. It is assigned that the court erred in refusing to allow appellant to show what the railroad rates were for shipping secondhand household goods from Chicago to Seattle, for the purpose of showing the probability of what the contract between the parties was. We think such evidence was too remote and uncertain for that purpose. It certainly was immaterial for any other purpose under the issues, and, when the possibility of sharp competition in rates between forwarding and shipping companies is considered, it will be seen that the offered evidence might not have thrown any light upon what the real contract was, and it might have been actually misleading. The judgment is justified by the record, both as to the right of recovery and as to the amount of damages; and it is therefore affirmed. FULLERTON, CROW, and DUNBAR, JJ., concur. (51 Wash. 221) STAMATY v. PAPPADAMITRIU et ux. (Supreme Court of Washington. Dec. 15, 1908.) 1. MONEY LENT (§ 7*)—ACTION-ISSUESs—BurDEN OF PROOF. Where a complaint alleged that plaintiff lent defendants money to be paid back on demand, and the answer denied the allegation, but affirmatively alleged that the sum was paid for another purpose, such allegation, while it that it was to be repaid on demand, but was in admitted the receipt of the sum, did not admit The court made findings of facts and conclusions of law, and the assignments of error are mainly based upon these. The evidence sharply conflicts as to the true nature of the contract; but respondent and his wife each positively testified in support of the contract as alleged in the complaint. Both were pres-effect a denial of the allegation of the coment when the agreement was made in Chicago, and the record discloses no reason why plaint, and the burden was on plaintiff to prove that the sum was to be repaid on demand, and not on defendants to prove the contrary. [Ed. Note. For other cases, see Money Lent, Cent. Dig. § 11; Dec. Dig. § 7.*] the trial court should have discredited their testimony. The court found that the con•For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes 2. PLEADING (§ 399*)-FAILURE OF PROOF. Defendants having opened the case on the court's view that the burden of proof was on them, and introduced evidence negativing plaintiff's theory as to the purpose for which the money sued for as a loan was paid, it was error to give judgment for plaintiff at the conclusion of defendants' proof, in the absence of any proof on plaintiff's part to support the issue tendered by the complaint. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 1339-1342; Dec. Dig. § 399.*] Appeal from Superior Court, King County; Mitchell Gilliam, Judge. Action by S. J. Stamaty against Athos Pappadamitriu and wife. Judgment for plaintiff, and defendants appeal. Reversed and remanded, with instructions to grant a new trial. ed. The testimony submitted by the appellants all negatived the theory of a loan, and supported the view that the money was paid upon a contract to purchase land which respondent afterwards refused to carry out. There was therefore no testimony whatever in support of the theory of the complaint that the money was loaned to be paid back on demand, and that a demand for payment had for that reason been made. It is the theory of respondent that the action may be treated as one for money had and received; but the respondent offered no proof which would justify the court in treating the complaint as amended to conform to such an issue as arising from the evidence. The appellants moved for a new trial, on the ground, Baxter & Wilson, for appellants. Cutts & among others, that the evidence was insuffiDorety, for respondent. HADLEY, C. J. This is an action to recover the sum of $500, alleged to have been loaned by the plaintiff to the defendants for the benefit of the community existing be tween the latter. It is alleged that the defendants promised to pay back the sum to the plaintiff on demand. The answer denies the complaint, but affirmatively alleges that the $500 referred to in the complaint was paid to the defendants by the plaintiff as part of the purchase price of $2,000 for four acres of land, and that the plaintiff has refused to carry out the terms of the agreement. The plaintiff denies this aflirmative statement in the answer. The cause was tried by the court without a jury, and resulted in a judgment for the plaintiff for the $500 with interest. The defendants have appealed. The issue tendered by the respondent was that he loaned the $500 to be paid back on demand, and although this was denied by the appellants, yet inasmuch as the latter admitted the receipt of $500, but alleged that it was for another purpose, the court held that the burden was upon the appellants to show that the money was not received as a loan. We think the burden was properly upon the respondent to prove the allegations of his complaint. These allegations were denied, and that made proof in support of them necessary. The affirmative allegation of the answer was, in effect, a denial of the cient to justify the judgment. We think the motion should have been granted on this ground. Without regard to the order of proof adopted by the court, we think the judgment must be reversed for the other reason stated. The cause having been tried by the court, we should probably not find the matter of the order of proof prejudicial to the extent of constituting reversible error within itself if the evidence of both parties had been fully placed before the court. We do think, however, that the judgment cannot be sustained, in the absence of any proof to support the issue as tendered by the complaint. It is therefore reversed, and the cause remanded, with instructions to grant the motion for a new trial. FULLERTON, CROW, and DUNBAR, JJ., concur. (15 Idaho, 462) CRONAN v. DISTRICT COURT OF FIRST (Supreme Court of Idaho. Nov. 25, 1908.) sented upon a typewritten complaint or petiIn original proceedings in this court, pretion, the successful party is not entitled to recover 75 cents per page allowed by the rules of this court for printing transcripts, as it is the duty of the plaintiff in such proceedings to present his complaint or petition in some proper or legible form, and the rule in regard to printing the transcript does not apply in such cases. [Ed. Note. For other cases, see Costs, Cent. Dig. § 660; Dec. Dig. § 190.*] 2. COSTS ($ 181*)-ORIGINAL PROCEEDINGS IN SUPREME COURT-ITEMS-DOCUMENTARY EV- The successful party is not entitled to recover for the fee paid the clerk of the district court for certifying certain papers that he desires to attach to his complaint or petition, at least until after opposing counsel has denied the correctness of such copies. truth of the averments of the complaint. The statement that appellants had received at the hands of respondent $500 for the particularly specified purpose in no sense tended to establish an obligation to return it on demand, which was the fact the respondent undertook to prove when he called the appellants into court. Following the court's view as to the order of proof, the appellants opened the case with the introduction of their testimony, and at the conclusion thereof the respondent offered no testimony, but moved It has been the custom in this court to refor judgment in his favor, which was grant-ceive typewritten briefs in all original proceedFor other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes [Ed. Note. For other cases, see Costs, Cent. Dig. § 713; Dec. Dig. § 181.*] 3. COSTS (§ 190*)-ORIGINAL PROCEEDINGS IN SUPREME COURT-BRIEFS. necessary, and said item will not be allowed. The next item is $14 paid to the court reporter for the transcript of the testimony of a witness, who testified on the hearing of the motion to vacate the order appointing the receiver. That was not a necessary disbursement, and is not allowed. The plaintiff in this proceeding could have alleged what the testimony of the witness was, and it was not necessary to procure a transcript of the reporter's notes for that purpose. At common law costs were not recoverable eo nomine. Costs can therefore be recovered only in cases where there is statutory authority therefor. The power to impose costs must then be found in some statute, or some rule of court in which the Legislature had given the power in general terms to the court to make rules and orders in regard thereto. 11 Cyc. 24. The cost items above disallowed are not provided for by statute or rule of court; hence cannot be recovered. The conclusion we therefore reach is that the item of $31.30 must be allowed and taxed as costs, and all of the other items of said cost bill are disallowed. Costs of this proceeding awarded to de 14 00 AILSHIE, C. J., concurs. STEWART, J. I dissent from that part of the opinion of the majority of this court, which holds that the item of $30 for printing a 40-page brief was not a necessary item of costs and disbursements, and which the plainRev. St. 1887, provides that "parties to actiff cannot have taxed as costs. Section 4900, tions or proceedings are entitled to costs and disbursements, as hereinafter provided." Section 4901, Rev. St. 1887, provides: "Costs are allowed of course to the plaintiff, upon a judgment in his favor, in the following (4) In a special proceed cases: * The petition for the writ contained about 175 pages of typewritten matter, and was charged for in said memorandum of costs at the rate of 75 cents per page, the compensation allowed by the rules of this court for printed transcripts. It is the duty of the plaintiff, in an original proceeding in this court, to present his complaint or petition in a proper and legible form and the rule providing for the printing of transcripts does not apply to original proceedings brought in this court. Therefore the item of the cost bill for $131.25 must be stricken therefrom. and not allowed. The second item of the cost bill is for fees paid the clerk of the district court for certifying the record, $10. This should not be allowed, for the reasoning." These statutes do not provide for the that in such proceedings as the one at bar. allowance of costs and disbursements in the the party presenting them may make a copy district court only, but do provide for the alof any record or paper and attach it and lowance of costs and disbursements generalmake it a part of such pleading without hav-ly. The allowance of costs, according to the ing the certificate of the proper officer there- statute, is governed entirely by the character to, and if the defendant thereafter denies of the action, and is not limited to the court that such a paper is a true copy, then the in which the action is brought. In my opincertificate of the proper officer may be pre-ion it was the intention of the statute to alsented. That item must not be allowed. The low costs in special proceedings, whether third item is for $31.30, fees paid clerk of such proceedings be instituted in the district the Supreme Court. That item is not con. or Supreme Court. The Supreme Court, havtested, and is a proper item to be allowed. ing jurisdiction in certain special proceed. The next item is for $30 for printing a 40-ings, and the statute providing that costs page brief. It has been the custom in this should be allowed in such proceedings, seems court to receive typewritten briefs in all to me to authorize costs in such proceedings, original proceedings. That being true, this whether brought in the district or Supreme was not a necessary item of cost and dis- Court. bursement, as this court would have received a typewritten brief in the place of the printed one, and the printing of the brief was not Judgment was rendered in this case for the plaintiff, and under the statute he was entitled to his costs. Section 4912, Rev. St. For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes 1887, provides: "The party in whose favor | proceeding. LEIBERG et al. (15 Idaho, 279) (Supreme Court of Idaho. Nov. 14, 1908 Rehearing Denied Dec. 21, 1908.) 1. VENDOR AND PURCHASER (§ 73*)-CONTRACT -MODIFICATION. contract for the sale of real property, and the Where time is made of the essence of a contract fixes the time and place of payment, the fact that a partial payment is made and accepted at a place other than that fixed by the contract will not constitute a modification of said contract as to the time and place of future payments. [Ed. Note.-For other cases, see Vendor and Purchaser, Dec. Dig. § 73.*] 2. VENDOR AND PURCHASER (§ 73*) — CONSTRUCTION OF CONTRACT-TIME AND PLACE. For these reasons, I dissent the judgment is rendered, and who claims his from the majority opinion upon this particucosts, must deliver to the clerk within five lar question. days after the verdict or notice of the decision of the court or referee, a memorandum of the items of his costs and necessary disbursements in the action or proceeding." PRAIRIE DEVELOPMENT CO., Limited, v. This the plaintiff did in this case, and made affidavit to the item, that he necessarily expended in said proceeding the sum of $30 for printing his brief. The majority opinion says, "It has been the custom in this court to receive typewritten briefs in all original proceedings," and that it was not necessary for the plaintiff to print his brief. In my judgment this is no reason at all. This court has not adopted any rule which informed the plaintiff, or plaintiffs generally, that the printing of briefs was not a necessary or proper disbursement in presenting plaintiff's case in an original proceeding. If it is necessary, in order to present a case in an intelligible, clear, and proper manner upon an appeal, to print a brief, why does the same necessity not exist in an original proceeding? Often the questions presented in an original proceeding are of the most importance, and in comparison to the questions presented upon appeal, are of equal importance. The statute contemplates that in an original proceeding the plaintiff shall recover his costs. and when the plaintiff presents to this court an affidavit showing the necessity of the expense incurred by printing his brief, in order to present the case in a proper manner, before the court should disallow such claim, it should appear, either by the statute or a rule of this court, that such is not a legal charge as costs. The statute does not prohibit the allowance of such a charge as costs, but, upon the contrary, evidently contemplates that such charge shall be allowed. The rules of this court do not prohibit the taxation of such item as costs, and when counsel have in good faith prepared their case by having [Ed. Note. For other cases, see Specific Pertheir briefs printed, in my judgment it is un-formance, Cent. Dig. §§ 387-395; Dec. Dig § 121.*] fair and an arbitrary rule which says it was not necessary, and denies the right to have such expenditure taxed as costs where plaintiff recovers a judgment. Special proceedings have been brought in this court in many instances in which printed briefs have been submitted, and at no time has this court ever intimated or declared that such expenditure was an unnecessary expense. If this expense is unnecessary, then this court should so declare by a proper rule, and specify that typewritten briefs might be submitted in all original proceedings; and, until the court does so declare, where counsel have deemed it necessary to present their case to print the brief, and have acted in good faith and within proper limitations as to costs, in my judgment the same should be allowed as a proper item of costs in such Where time is made of the essence of a contract for the sale of real property, and the vendor extends the time within which a partial payment may be made, such fact alone will not amount to a modification of said contract as to future payments, or waive the conditions in said contract as to the time and place of future pay ments. [Ed. Note. For other cases, see Vendor and Purchaser, Dec. Dig. § 73.*] 3. VENDOR AND PURCHASER (§ 82*)-MODIFICATION OF CONTRACT-SUBSEQUENT AGREE MENT-EVIDENCE-SUFFICIENCY. A written contract for the sale of real property may be modified by a subsequent oral 4. SPECIFIC PERFORMANCE (§ 121*)—EVIDENCE formance of a contract, such contract and the Where one seeks to enforce specific perterms thereof should be established by clear and satisfactory evidence. 5. SPECIFIC PERFORMANCE (§ 133*)—APPEAL— REVIEW-QUESTIONS OF FACT. In an action for specific performance of a contract, the rule that a case will not be reversed where there is a substantial conflict of evidence must be taken and considered with that other rule that, to enforce specific performance, the evidence must establish such contract and the terms thereof clearly and satisfactorily. formance, Dec. Dig. § 133.*] [Ed. Note. For other cases, see Specific Per 6. SPECIFIC PERFORMANCE (§ 133*)-APPEALREVIEW-QUESTIONS OF FACT. A substantial conflict of evidence does not necessarily arise out of the fact that there is some evidence to support a contract in an action for specific performance; for in such action the contract and its terms must be established by clear and satisfactory evidence, and the conflict must be substantial in the light of this rule. [Ed. Note. For other cases, see Specific Performance, Dec. Dig. § 133.*] *For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes Where there has been a part performance of a contract to sell real property, and partial payments have been made, and a forfeiture of all that has been paid is insisted upon, a court of equity will turn to the party insisting upon such forfeiture, and inquire whether his conduct was responsible for or led the vendee to refrain from complying with the provisions of said contract, which resulted in the default. [Ed. Note. For other cases, see Vendor and Purchaser, Dec. Dig. § 186.*] 8. VENDOR AND PURCHASER (§ 186*)-FORFEITURE-RIGHT TO DECLARE. 7. VENDOR AND PURCHASER (§ 186*)-FOR- | a fraction containing about seven acres and FEITURE-RIGHT TO DECLARE. lying to the north of and adjoining the above described lands and the water rights on Ves ta creek, Cat creek, and Barker creek. "(2) The party of the second part, for their heirs, executors, administrators and assigns, agree to buy of the party of the firs part said above-described lands and to pay the party of the first part for the same the sum of ($41,000.00) forty-one thousand and no-100 dollars in the manner following, to wit: Five hundred and no-100 dollars on delivery of this contract and the remainder, forty thousand five hundred dollars, to be paid in four payments as follows, to wit: nine thousand five hundred dollars on or before May 1st, 1906; eleven thousand dollars on or before May 1st, 1909; ten thousand dollars on or before May 1st, 1911; ten thousand dollars on or before May 1st, 1913; deferred payments to bear 6 per cent. interest per annum, all payments to be made at the office of Traders' National Bank, Spokane, with interest thereon at the rate of 6 per cent. per annum from date until due, and thereafter on the whole sum remaining due or unpaid in each year interest at 6 per cent. per annum until paid; interest all payable annually, and said party of the second part shall also pay and discharge all taxes and assessments imposed on said premises Where there has been a part performance of a contract, and the failure of full performance was not the fault of the vendor, but was the result of the acts and solicitations of the vendee, and the conduct of the vendor in no way induced or misled the vendee, the mere fact that the vendor and vendee were negotiating with reference to the subject of said contract would not relieve the vendee from complying with the terms of said contract. [Ed. Note. For other cases, see Vendor and Purchaser, Dec. Dig. § 186.*] 9. VENDOR AND PURCHASER (§ 101*) -FORFEITURE-NOTICE OF INTENT TO DECLARE NECESSITY. Where time is made of the essence of a contract for the sale of real property, the vendor will not be required to notify the vendee of his intention to declare a forfeiture, unless payments be made in accordance with the provisions of said contract before said vendor can insist upon and enforce a forfeiture of said con tract. [Ed. Note. For other cases, see Vendor and from and after the date hereof, whether orPurchaser, Dec. Dig. § 101.*] (Syllabus by the Court.) Appeal from District Court, Kootenai County; W. W. Woods, Judge. Specific performance by the Prairie Development Company, Limited, against John B. Leiberg and others. Judgment for plain tiff, and defendants appeal. Reversed. dinary, extraordinary, or for revenue purposes, within three months from the first day on which the same become due and payable, including all taxes for the year 1906 and all taxes thereafter. "(3) Forthwith, after the full payment of said purchase money, taxes and interest, as aforesaid, time being the essence of this con tract, the party of the first part agrees to John P. Gray, for appellants. Frank T. execute or cause to be executed to the party Post, for respondent. STEWART, J. This is an action for the specific performance .of the following contract: "This contract, made and entered into this 26th day of December, A. D. one thousand nine hundred and five, by and between Mrs. Carrie E. Leiberg and John B. Leiberg, of the first part, and J. Grier Long, "Trustee,' of the second part, witnesseth as follows to wit: of the second part a good and sufficient warranty deed for said described premises, to be delivered on the surrender of this duplicate contract. It is further agreed and understood that the first party shall have the right and privilege of executing to the said second party a deed to said above-described lands at any time before the final payment shall have been made, and that the said second party shall then and there cause to be properly executed to said first party notes and mortgage for the unpaid balance of purchase money, the same to be secured by first mortgage on said premises. "(1) The party of the first part, for their heirs, executors and administrators, agree to sell to the party of the second part all those certain pieces or parcels of land situate in the county of Kootenai and state of Idaho known and described as follows to wit: All of section (17) seventeen. All of section (3) three and the southwest quarter of the northwest quarter and lots numbered one, two, three and four of section (2) two; all of the above land is in township fifty-three north, of range two west, of Boise Meridian in Idaho; also *For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes "(4) It is expressly agreed that time is of the essence of this contract, and in case of default by the party of the second part, their heirs or assigns, in any of the conditions above stipulated to be performed by them, then and in that case this contract shall become void and the party of the second part shall have forfeited their rights hereunder and any payments that shall have been made shall become forfeited to the party of the |