(227 P.)

spondent contends that the judgment of non- The rule is well established that a motion suit should be sustained is that, since re- for a nonsuit upon the ground that the proof spondent is a Carey Act construction com- fails to establish any negligence on the part pany, and was granted, by statute, a right of of the defendant, that there is an entire way for its canals and ditches while it main- absence of sufficient proof to establish liatains its system, it has all the "incidents" bility on the part of the defendant, or that of ownership of such right of way; that the the evidence shows conclusively that the statute does not require it to fence its right plaintiff is guilty of contributory negligence, of way, and that in failing to fence the right without specifying wherein the evidence fails of way (the gulch) it violated no duty to to establish any negligence or wherein and appellant; and that it is not a case where in what particular there is an entire abit maintains a dangerous agency upon the sence of sufficient proof to establish liabilland of another, but is one that it maintains ity or in failing to point out in what particupon its own lands. We find that it is ulars the plaintiff was guilty of contributory not necessary to pass upon this contention. negligence, is too general to be considered It is not in issue. There is no allegation and should be overruled. 38 Cyc. 1552, and that respondent is a Carey Act company. cases therein cited. The rule announced It is fundamental that an appellate court by this court in the case of Idaho Mercanwill not consider any question not put in tile Co. v. Kalanquin, 7 Idaho, 295, 62 Pac. issue by the pleadings. This court will 925, is in harmony with the rule above statnot take judicial notice of the existence of ed, wherein this court held: any Carey Act company or corporation. C. S. § 7933. And, while we will take judicial notice of a statute giving a Carey Act construction company a right of way over Carey Act lands, there is no evidence that the land upon which this gulch is situate was such-the court observing: land when the system was constructed. The complaint alleges and the answer admits that the lands belong to appellant. In fact, respondent alleged that

BUDGE, J. (concurring specially). At the close of appellant's testimony respondent made the following motion for nonsuit:

"We move for a nonsuit of this case for the reason that the complaint herein fails to state a cause of action; for the further reason that the proof fails to establish any negligence on the part of the defendant, and there is an entire absence of sufficient or any proof to establish any liability on the part of the defendant; for the further reason that the evidence shows conclusively that the plaintiff herein is guilty of such negligence, if there is any negligence in the case whatever, he is guilty of such negligence of contributory negligence as will preclude his recovery."

C. S. § 6830, specifies the` grounds upon which an action may be dismissed or a judgment of nonsuit entered, and the insufficiency of the complaint to state a cause of action is not one of the grounds specified in such statute. Ludwig v. Ellis, 22 Idaho, 475, 126 Pac. 769; Strong v. Western Union Telegraph Co., 18 Idaho, 389, 407, 109 Pac. 910, 30 L. R. A. (N. S.) 409, Ann. Cas. 1912A, 55.

"A motion for a nonsuit must specify particularly the point relied upon for such nonsuit, and thus call the attention of the court and opposing party to the grounds of the motion,"

"The reason of the rule is obvious. If the attention of the court and opposing party is called to the specific point relied upon, opportunity might be then and there given for the removal of the objection relied upon for the nonsuit, and the objection removed."

In the case of Barlow v. Salt Lake & U. R. Co., 57 Utah, 312, 194 Pac. 665, it is held that:

"A motion for a nonsuit should be specific. and a motion stating that the evidence fails to show negligence or carelessness is too general to be considered."

In re Soale, 31 Cal. App. 144, 159 Pac. 1065, we find the rule stated as follows:

"Motion for nonsuit, if in general terms, failing to specify any particular defect in the evidence, should be disregarded."

Also, in Security Inv. Co. of San Bernardino v. Bartram, 54 Cal. App. 540, 202 Pac. 337, it is held:

"A motion for a nonsuit on the ground 'that plaintiff has wholly failed to prove his case' is insufficient, as it does not call attention to the particular matters relied on."

It will be observed from a reading of the motion that the statements made therein are mere conclusions, and in order for this court to determine the correctness of the conclusions so stated it would be necessary to examine the entire record to ascertain whether the same are correct, and this we are not called upon to do."

The motion for nonsuit should have been overruled for the reasons herein given.

their certain promissory note in the sum of $1,700. Under date of August 10, 1920, the Andersons delivered to respondent their check in the sum of $1,934, which included payment of the note. This check was not paid at the bank because of lack of funds, and on October 5, 1920, Parley Anderson, one of the parties to the contract, together with other persons, delivered to respondent his note in the sum of $1,973, and respondent de

LLOYD v. ANDERSON et al. (No. 3988.) (Supreme Court of Idaho. June 2, 1924.) 1. Appeal and error 1066, 1067-Charge on question not at issue, together with failure to instruct on material issues supported by substantial evidence, held reversible error. The giving of an instruction upon a question not made an issue by the pleadings, and concerning which there is no substantial evidence, together with the failure to give an in-livered to appellant the following memoranstruction upon material issues in support of which substantial evidence is admitted, constitutes reversible error.

2. Vendor and purchaser 105(1)—Vendor in executory land contract, retaking possession for breach, cannot thereafter recover on note for deferred payment in absence of agreement.

A vendor in an executory contract for the sale of land, who retakes possession of the property because of a breach of the contract for a failure to make the payments therein provided for, cannot thereafter recover on a note given for a deferred payment, in the ab'sence of evidence that he repossessed the property in pursuance of an agreement that the note would be paid.

dum:

"Oct. 5,-20. "Re'd of J. P. Anderson and Sons note for $1,973 in return or renewal of note signed by Anderson Bros. in June for $1,900. "C. E. Lloyd and J. A. Smoot."

Qn December 21, 1920, respondent commenced his action to recover from appellants on the note given in October. Appellants, in their answer, admitted the execution and delivery of the note, but, as an affirmative defense, they pleaded the contract for the sale of the land, and alleged that the note sued on was delivered to respondent in conformity with the provisions of the contract that appellants would execute and deliver their

Appeal from District Court, Bannock Coun promissory notes for any or all deferred payty; O. R. Baum, Judge.

Action by C. E. Lloyd against Parley Anderson and others. From a judgment for plaintiff, defendants appeal. Reversed. Peterson & Coffin, of Pocatello, and C. H. Darling, of Boise, for appellants.

Budge & Merrill, of Pocatello, for respond

ent.

WM. E. LEE, J. On April 17, 1920, respondent and Parley and Ricy Anderson entered into a contract in writing, in which respondent agreed to sell, and the Andersons agreed to purchase, certain real property in Grace for $27,000. The payment of $500 was“ admitted by the contract, which provided for a payment of $1,500 on May 1, 1920, $200 on the first day of each month thereafter, $1,000 on November 15, 1920, and $1,000 on November 15th of each year thereafter, until the entire purchase price was paid. It was further provided that in case the Andersons failed to comply with the terms of the contract, respondent could "take possession of the said property and hold all payments made by second parties as rental and liquidated damages," or "declare the entire sum due and payable and proceed to collect the entire remaining payments.” The contract contained also the following:

Second parties, at any time that they are requested by first parties, will execute and deliver to first parties their promissory notes for any or all deferred payments.”

In June, 1920, Parley and Ricy Anderson, at the request of respondent, delivered to him

ments upon the request of respondent. They further alleged the provision of the contract hereinbefore quoted, under which two remedies were available to respondent in the event of failure to pay the installments of the purchase price, and they alleged that respondent elected to retake possession of the premises, and that they were therefore not liable for the payment of the note or for any other deferred payments. The cause was tried to the court and a jury. The verdict was for respondent, and judgment was made and entered in his favor. The appeal is from the judgment.

[1] The court refused to give certain instructions requested by appellants, and gave an instruction to the effect that the jury should return a verdict for respondent, irrespective of what the note was taken for, if the property was taken back by respondent in pursuance of an agreement between the parties that the note would be paid. The refusal to give the requested instructions and the giving of the foregoing instruction are assigned as error.

Appellants make a number of objections to the instruction referred to. They say that any agreement to pay the note at the time the property was taken back would be nudum pactum and could not be enforced, that the instruction was further erroneous for the reason that there was no allegation of any agreement at the time the premises were tak en back that the note would be paid, and that there was no evidence of such an agreement. Appellants do not cite any authorities in support of, nor do they argue, the first two of

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

,(227 P.)

their objections. The complaint did not allege any such agreement, and, if there is no evidence of the agreement, it was error for the court to give the instruction in question. Smith v. Graham, 30 Idaho, 132, 164 Pac. 354; Gwin v. Gwin, 5 Idaho, 271, 48 Pac. 295; Johnson v. Fraser, 2 Idaho (Hasb.) 404, 18 Pac. 48; Henry v. Jones, 1 Idaho, 48. See, also, 14 R. C. L. 784, § 50. Respondent had introduced his note in evidence. Appellants had produced evidence to the effect that the note in question was given as a renewal of another note that had been given at the request of respondent for deferred payments, and that respondent had repossessed the premises. In his rebuttal, respondent testified as to what took place at the time he took possession of the premises, and it is argued by his counsel that this evidence shows an agreement that respondent would repossess the premises and that appellants would pay the note in question. Appellants contend that there is no evidence of any such agreement. If there was no substantial evidence of such an agreement, the court was not justified in instructing the jury upon the question of the effect of such an agreement.

The only evidence that we have been referred to by respondent, and that we have been able to find from a careful examination of the transcript, which in any manner bears on the question, is the following testimony of respondent, given in answer to a question on

[2] In view of the defense to the action and the evidence on behalf of appellants, having instructed the jury to the effect that, upon the failure to make any of the payments provided for in the contract, there were two remedies open to respondent, either of which he could pursue-first, he could declare the unpaid installments immediately due and proceed to collect them; or, second, he could repossess the property and retain all payments theretofore made the trial court should have submitted to the jury, by proper instructions, the questions of whether the note, which was the basis of the action, was given, at respondent's request, for a deferred installment, and whether respondent exercised the remedy of repossessing himself of the property under the provisions of the contract. "The old gentleman. He learned that I was If the note was given for a deferred installin town and came up from Gentile Valley to ment of the purchase price of the property, see me. I said, "The boys are not keeping up and respondent repossessed himself of the their contract, and we must, if this garage is property because of a breach of the contract occupied by you folks, insist that the payments are kept up.' We talked matters over, and I to make the payments provided therein, he is said, "There is only one thing for you folks to not entitled to recover (Croup v. Humboldt do as I view it, and that is to pay up this note, Quartz & Placer Mining Co., 87 Wash. 248, and I will assist you all I can by only charging 151 Pac. 493; Ward v. Warren, 44 Or. 102, 74 you from the time that you took that building Pac. 482; Waite v. Stanley, 88 Vt. 407, 92 until you delivered it, the interest on the mon- Atl. 633, L. R. A. 1916C, 886, and note; Seey on the $27,000, taxes and insurance,' and curity State Bank v. Krach, 36 N. D. 115, I said, 'If there is any difference I will give 161 N. W. 568; Roney v. Halvorsen Co., 29 you credit for it, but pay up your note and IN. D. 13, 149 N. W. 688; Steiner v. Baker, will give you credit for any difference, and I will take the building back.' That was on the condition that they make this settlement."

direct examination:

On cross-examination, respondent testified as follows:

"After they could not pay their payments, and I could see that they couldn't, and I says, "There is only one thing for you folks to do, and that is to pay this note, or we will have 227 P.-3

111 Ala. 374, 19 South. 976; Mays v. Sanders [Tex. Civ. App.] 36 S. W. 108), in the absence of evidence of any agreement to pay the note in pursuance of which the property was taken back.

Judgment reversed; costs to appellants. MCCARTHY, C. J., and WILLIAM A. LEE, J., concur.

3. Trial 163-Motion for nonsuit stating that person wholly fails to show liability of defendant too general for consideration. A motion for nonsuit should be specific, and R. B. Ayers, of Emmett, for appellant. a motion stating that the proof wholly fails to A. H. Conner, Atty. Gen., and James L. show any liability on the part of the defendant Boone, Asst. Atty. Gen., for the State.

MCCARTHY, C. J., and WILLIAM A. LEE firmed. and WM. E. LEE, JJ., concur.

C. Redmon Moon, of St. Anthony, and MERRILL et al. v. FREMONT ABSTRACT Thos. B. Hargis, of Ashton, for respondents.

BUDGE, J. This action was brought by re(Supreme Court of Idaho. May 29, 1924.) spondents to recover damages from appel1. Abstracts of title 3-Right of action lant on account of its alleged negligence in against abstracter for failure to show mort- the preparation of an abstract of title to cergage not limited to action on statutory bond. tain real property whereby an instrument A party purchasing real property has a was omitted from the same. The amended right to rely upon an abstract of title cover-complaint, which is unverified, alleges that For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(227 P.)

the parties to the contract, that there was no privity of contract between respondents and appellant, neither can the action be converted into an action in tort, since the duty to make the abstract correctly was created solely by contract and its breach is therefore merely a breach of contract. The general rule would seem to be that the liability or an abstracter in the absence of statute depends upon the privity of contract, so that the abstracter furnishing an abstract to one person is not held liable to another, using the same, for omis sions or negligence, where the abstracter had no notice or knowledge that the abstract was for anyone other than the person ordering it. Unless, therefore, there is a statutory liability and the rule of the common law has been abrogated respondents were without a remedy against appellant. The precise question presented by the demurrer has never been before this court, so far as we are informed or have been able to ascertain from such investigation as we have been able to make.

on October 29, 1917, appellant made, compil- is contractual and therefore binding only on ed, and delivered to one J. F. Burnham, at his request, an abstract of title covering certain property in Fremont county, certified to date, and through mistake and fraud omitted therefrom a mortgage upon such property given by J. F. Burnham and wife to the Consolidated Wagon & Machine Company, which on August 30, 1920, amounted to $495.15, and which was duly recorded in Fremont county on. April 19, 1915. On March 4, 1918, respondents purchased the property covered by the said abstract, relying thereon. Subsequently, by warranty deed they conveyed the property to one H. E. Bowman. Thereafter and under the terms of the warranty deed to Bowman, respondents were compelled to and did pay and satisfy the said mortgage. Demand was thereupon made upon appellant for reimbursement, which was refused. Whereupon this action was brought to recover from appellant the amount expended in satisfaction of the mortgage. A general and special demurrer was filed to the amended complaint, but the record fails to disclose the action taken by the court thereon. To the amended complaint appellant answered denying each and every allegation contained therein. Upon the issues thus framed the cause was tried to the court sitting without a jury. No findings of fact or conclusions of law appear in the record, and it will be presumed that the same were waived. Judgment was rendered in favor of respondents in the sum of $544.21 with interest and costs, from which judgment this appeal is taken.

Appellant specifies as error the action of the court in overruling its demurrer to the amended complaint. The record is silent as to the action of the court upon the demurrer. In the case of Glavin v. Salmon River Canal Co., Ltd., 226 Pac. 739, this court held:

"Where the record is silent as to the action of the court upon a demurrer, the demurrer will be deemed to have been waived."

To the same effect, see Diamond Coal Co. v. Cook, 61 Pac. 578;1 Burns v. Stolze, 111 Wash. 392; 191 Pac. 642.

C. S. § 2262, provides that

"It shall be a misdemeanor for any person or persons to engage in the business of compiling abstracts of title to real estate, in the state of Idaho, and demand and receive pay for the same, without first filing in the office of the probate judge of the county in which such business is conducted a bond to the state of Idaho, in the penal sum of $10,000, with not less than three sureties, residents of the county, conditioned for the payment by such abstracters of any or all damages that may accrue to any party or parties, by reason of any error, deficiency or mistake in any abstract or certificate of title, made and issued by such person or persons."

[1] Under the authorities the rule would seem to be that under statutes requiring abstracters to give bond for payment of any damages to any party through error made by the abstracter, the latter is liable to a purchaser of the premises, the abstract of title to which is prepared by the abstracter and such abstract certified to as including all conveyances, liens, incumbrances, and judgments covering the property which are of record in the county where the land is situated, without regard to who paid for the abstract or ordered it, but who suffered injury by reason of the omissions, errors, or mistakes made by the abstracter therein. It is well settled that an abstracter is liable for damages resulting from errors or defects in an abstract furnished by him, which are attributable to a lack of proper care or skill in the performance of his duties but he is not liable as a guarantor or insurer. 1 Corpus Juris, p. 368, § 11. It will be noticed from the provisions

It therefore follows that this assignment of error is not properly here for consideration; but since both parties, in their briefs, have treated the demurrer as though overruled, we have concluded to dispose of the question of the sufficiency of the complaint. It is the contention of appellant that the complaint fails to state a cause of action, in that it affirmatively appears therefrom that the abstract of title was furnished at the request of Burnham, the original owner of the property, and that the abstracter's liability, if any, for damages arising from his negligence or want of due care in making, compiling, and certifying to the abstract of title, of C. S. § 2262, supra, that any abstracter

who demands and receives pay for an ab.

1 Reported in full in the Pacific Reporter; reported as a memorandum decision without opin-stract shall file a bond in the sum of $10,000 ion in 129 Cal. xviii. with not less than three sureties conditioned