to render in acquiring certain coal lands in the vicinity of Kenilworth, Carbon County, Utah, to respondents and others; that he did assist the respondent Henry Wade in organizing the alleged "companies" to handle said lands; that he did, when necessary, extend credit to said Wade; and that he did recommend said coal lands to the company that was organized. When he had complied with all of these conditions, or was relieved therefrom by respondents, he was entitled to receive the alleged 1000 shares of stock. We have carefully gone through all of the evidence contained in the bill of exceptions, and we can find none that supports or tends to support the allegations that the respondents and others acquired the "certain property in the vicinity of Kenilworth, Carbon County, Utah," referred to in the complaint as coal lands. Since the lands which respondents and "othters" were to be assisted in acquiring were specified as "certain" lands only in the complaint, it does not follow that ap pellant and respondents did not have particular lands in mind when the alleged contract was made. That they had in mind particular coal lands clearly appears from appellant's own evidence; but nowhere are those lands identified, nor is it made to appear, directly or indirectly, that appellant assisted respondents or the others to acquire the certain lands referred to in the alleged contract, or that the respondents or the others mentioned, or the company which appellant testified was organized, acquired the coal lands referred to in the alleged contract. True there is some evidence that a portion of certain coal lands lying in four different sections was acquired by the company that appellant says was organized; but whether the lands in those four sections were all of the lands the parties to the alleged contract had in mind, or whether the same was a large or small part thereof, the evidence does not disclose. Indeed, what little evidence there is upon this point is so vague, indefinite, and uncertain that a finding that the appellant had complied with the terms of his alleged contract in this regard would have to be based entirely upon conjecture.

It may not be improper to call attention to the fact that in the amended complaint, which appellant claims reflected the evidence, it is alleged that only a part of the lands mentioned in the alleged contract was acquired by the company that appellant says was organized. But neither in the amended complaint nor in the evidence is any reason assigned why only a part of the lands referred to in the alleged contract was in fact taken over by said company. The burden of proof was upon the appellant to show that he had substantially at least complied with the terms of the alleged contract. In case he failed in this, in view of the denials contained in the respondents' answer, he could not recover. We are clearly of the opinion that in this regard the appellant failed to show that he had complied with the terms and conditions of the alleged contract. Nor is there any proof whatever that any stock was ever issued by the Western Coal & Coke Company, which is the company that appellant testified was organized, nor that the Independent Coal & Coke Company, of whose stock appellant claims the 1000 shares, was the successor of, or had any relation to, or was in any manner connected with, the first company which appellant asserts he assisted to organize. Nor is there any evidence in the bill of exceptions that any stock was ever issued to the respondents, or to either of them, or that they were entitled to any, or that they had received any, in either of the companies mentioned. It may be that the very lands upon which respondents based their right to receive stock in the company which was to be organized as claimed by appellant, and upon which they made the alleged promise to give him 1000 shares of stock, were through his fault not made a part of the lands taken by the company that he asserts he helped to organize. If this be true, and for aught that appears from the evidence it may be true, the appellant must fail in his claim. If respondents had a right to appellant's assistance in acquiring any of the lands referred to in the alleged contract, then they had a right to demand his aid to acquire all of them; and unless they waived this right, or unless they were satisfied with

only a partial performance of the terms of the alleged contract, appellant cannot recover against them. As we have already pointed out, appellant does not claim that all of the lands referred to in the alleged contract, were actually acquired by any one. Nor does he explain why he did not render assistance in acquiring all of them, nor that he was released from doing so.

2

In view of the foregoing, the refusal of the district court to permit the amended complaint to be filed, although it were held erroneous, yet such error could not have prejudiced any substantial right of appellant. Nor did the court err in sustaining the motion for nonsuit and dismissing the action. If appellant has in fact complied with the terms of the alleged contract, the facts are al! within his own knowledge, and there is nothing disclosed why he cannot produce the necessary evidence in support of his claims. The judgment in this case is no bar to another action. Appellant should produce his evidence in support of his allegations if he has any, before respondents are required to go forward.

The judgment is affirmed, with costs to respondents.

MCCARTY, J., coucurs.

STRAUP, J. (concurring).

I am of the same opinion. I also think that in other particulars the allegations of the complaint, and the evidence in respect thereto, relating to the terms of the contract, a performance by the plaintiff, and a breach of the defendant, are so uncertain and incomplete that the essentials of a contract between the parties, or a performance by the one and a breach of the other, cannot be ascertained. What in these particulars was uncertain and indefinite in the complaint was not aided, but bewildered, by the evidence. Ellis v. Newbrough et al., 6 N. M. 181, 27 Pac. 491.

WESTMINSTER INVESTMENT COMPANY v.
McCURTAIN.

No. 2217. Decided September 27, 1911. On Application for Rehearing, November 7, 1911 (118 Pac. 564).

1. TRIAL-ISSUES OF FACT AND LAW-FINDINGS OF FACT-JUDGMENT. In replevin for an automobile, defendant pleaded that the machine had been delivered to him for repair, and that the value of the repairs was $281, and that he had a lien for such amount conferred by Comp. Laws 1907, section 1404, and was entitled to the possession until his lien was satisfied. The court found as facts only that plaintiff was the owner of the machine; that its value was $750; that defendant wrongfully withheld it after demand; that plaintiff had been damaged by the detention in the sum of ten dollars; that all the allegations of plaintiff's complaint and reply were true; and that all the allegations and denials of defendant's answer and cross-complaint were untrue. Held, that such findings were mere conclusions, and insufficient to dispose of defendant's affirmative defense, and insufficient to sustain a judgment for plaintiff. (Page 546.)

ON APPLICATION FOR REHEARING.

2. APPEAL AND ERROR-EQUITY SUIT-SCOPE OF REVIEW-FINDINGS ON APPEAL. Under Comp. Laws 1907, sections 2968, 2969, providing that an answer may contain a statement of any new matter constituting a defense or counterclaim, and defining a counterclaim, where plaintiff brought replevin for an automobile and defendant denied plaintiff's right to possession, claiming a lien for repairs, the case thereby became an equitable one, so that on appeal the Supreme Court could make findings in accordance with the evidence and direct what judgment should be entered, or might remand the cause with directions to make findings of fact and conclusions of law in accordance with its directions. (Page 550.)

3. LIENS-LABORER'S LIEN-REPAIRS ON PERSONAL PROPERTY. Comp. Laws 1907, section 1404, provides that any person who shall repair or bestow labor on any personal property at the request of the owner shall have a lien thereon for his labor and for any materials furnished in making such repair. Held, that, where plaintiff's agent took plaintiff's automobile to a garage for repairs, believing that the repairs would be made by S., but the repairs were made by defendant, S. testifying that he had no interest therein, the implied contract to pay defendant for the repairs was sufficient to sustain defendant's lien; no express contract for the repairs being necessary. (Page 554.)

APPEAL from District Court, Third District; Hon. C. W.

Morse, Judge.

Replevin by the Westminster Investment Company against Frank McCurtain.

Judgment for plaintiff. Defendant appeals.

REVERSED AND REMANDED WITH DIRECTIONS.

M. M. Warner for appellant.

Gustin, Gillette, Davis & Brayton for respondent.
FRICK, J.

Respondent, a corporation, brought this action in claim and delivery to recover the possession of its automobile which it alleged appellant wrongfully detained from it. The complaint is in the usual form in such cases. Appellant filed an answer wherein he admitted respondent's corporate capacity, and that it was the owner of the automobile, and coupled therewith he added a general denial of all other allegations contained in the complaint. He further answered, and, as an affirmative defense, he, in substance, averred that the respondent on a day named by him had delivered the automobile in question to him as a mechanic to have the same repaired; that he (appellant) had received said automobile as such mechanic, and that he, at the request of respondent, had furnished certain material and had bestowed labor upon said automobile to repair the same and that he did repair the same, and that said material and labor so furnished and bestowed in repairing said automobile was of the reasonable value of $281; that appellant had notified respondent that he had completed the repairs on said automobile, and that the material furnished and labor bestowed by appellant upon the same were of the value of $281, and that he claimed a lien on said automobile for said amount; that no part of said amount had been paid to him; and that by reason of the premises he claimed a lien on said automobile as aforesaid and prayed judgment awarding him possession thereof. Respondent in

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