claiming as riparian owners as heretofore stated. In addition to the judgment lien of the bank the mortgages heretofore referred to aggregated, with interest, about $15,000, all prior to the judgment lien. Part of the lands were meadow lands, but floods during the three springs preceding the sale had greatly injured crops, and much of the land was foul with fox tail and mustard. Considering these facts, and the further fact that the lands bought by Brewster and the investment company were sold some time later for scarcely more than the purchase price, and that, too, after the dispute as to riparian claims had been settled in favor of the lands, we are forced to conclude as in the other sales that the price was not inadequate.

The foregoing conclusions call for an affirmance of all that part of the decree appealed from by the plaintiffs.

The remaining questions relate to the quitclaim deed made by plaintiffs to defendant Connell January 3, 1897, and by Richmond and wife to Marshall and to Connell after the sale to Marshall. The record shows that after the sale to Marshall had been confirmed by the court and the sheriff's deeds issued to him in November, 1896, and he had conveyed to the bank, or J. C. Ainsworth as its representative, the bank was anxious to get its money out of the lands bought, but could make no disposition of them without first procuring the inchoate right of dower of plaintiff's wife, who had not been a defendant in the judgment under which it had sold and purchased the lands through Marshall, its cashier, or barring such right by foreclosure of the mortgages against the lands. Defendant Connell was sent to negotiate for her right, and after considerable delay a quitclaim deed was made to him by plaintiffs of all their lands that had been sold, and at the same time they assigned to him their interest in the suit then pending against the trustees and other defendants heretofore referred to, he at the time paying Nodine $1,000, which he claims was for the deed, but plaintiff claims it was for the assignment of their interest in the suit. An agreement was also signed by Connell and plaintiffs' son that one-half of the results of the suit should go to the son, and this plaintiff testifies was for the benefit of plaintiffs, so that in effect the assignment was only for one-half of the results of the suit. The testimony of Connell and two other witnesses who were present, one of whom was wholly disinterested, is to the effect that the deed was procured to secure the inchoate dower interests of Mrs. Nodine and enable his bank to get its money out of the Nodine lands, while plaintiffs claim that the deed was an after consideration to the assignment of their interests in the suit and to assist Connell in prosecuting the suit, but both deed and assignment were signed at the same time. In view of the fact disclosed by the

record that Nodine had theretofore assigned the same interest in the lawsuit to a lawyer for the same purpose he assigned to Connell, and without other consideration than that of a promise to prosecute the suit, we think the contention of Connell, supported, as it is, by the evidence of a disinterested witness, the more reasonable that the quitclaim deed was given for a consideration and for the purpose claimed by him for the bank, and that the assignment of the interest in the lawsuit was for the purpose of having it prosecuted by him, especially does this appear reasonable in view of the fact that, so far as his bank and Marshall were cerned, a motion to strike out parts of the complaint in the suit had been allowed and they were virtually out of the case. Such being the case, the deed should stand, and, the plaintiffs having thereby parted with whatever interest they might then have had in the land, they could not now question the deeds made by Richmond and wife, whose interests had been sold under the executions.

As heretofore stated, the decree against Starr was entered upon an amended complaint not served upon him, and under section 100, B. & C. Comp. and Goodale v. Coffee, 24 Or. 356, 33 Pac. 990, this was error. It follows that the decree must be modified as to the decree against Starr and the defendants Marshall, Connell, and the Ainsworth Bank, and a decree entered here dismissing the suit as to them, and affirming the decree in all other respects and awarding costs to the defendants.

(12 Idaho, 624),

HARRISON et al. v. RUSSELL & CO. (Supreme Court of Idaho. Nov. 19, 1906.) 1. SALE WARRANTY OF PROPERTY SOLD TIME FOR TESTING MACHINERY-NOTICE OF DEFECTS-WAIVER.

Where the contract of sale of a threshing machine contains a warranty that is limited and conditioned by the following provision, "Continued possession or use of machinery for six days shall be conclusive evidence that the warranty is fulfilled to the full satisfaction of the undersigned who agree thereafter to make no further claim on Russell & Co. under warranty," the "possession" therein mentioned is held to mean a possession coupled with a possibility or opportunity of using or testing the property for the uses and purposes to which it is to be applied.

[Ed. Note. For cases in point, see Cent. Dig. vol. 43, Sales, § 794.]

2. SAME-CONTRACT-WAIVER OF PROVISIONS. A provision in a contract, that "no promises whether of agent, employé, or of attorney, in respect to the payments, and security, or the working of the machinery named, will be considered binding unless made in writing, ratified by the home or branch office," does not prevent the company's agent waiving written notice by going to the place where the machinery is being operated and taking charge of the machinery and working on it with a view to putting it in a condition so that it will comply with the warranty.

[Ed. Note.-For cases in point, see Cent. Dig.. vol. 43, Sales, §§ 806 810.]

3. SAME-NOTICE OF DEFECTS.

The purpose of notice to the vendor of defects in the machinery under a contract of warranty such as in this case is to enable a vendor to send its agent or employé to the property and put it in running order and remedy defects, and when that purpose has once been served, and the agent or employé has actually gone and taken charge of the property and undertaken to put it in running order, the purpose of notice is served. and it becomes immaterial whether any notice has been given at all.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 43. Sales, §§ 806-810.]

(Syllabus by the Court.)

Appeal from District Court, Latah County; Edgar C. Steele. Judge.

Action by J. T. Harrison and others against Russell & Co. Judgment for defendant, and plaintiffs appeal. Reversed and remanded.

S. S. Denning and A. H. Oversmith, for appellants. Forney & Moore, for respondent.

AILSHIE. J. The appellants commenced this action to have three certain promissory notes previously executed by them and delivered to the respondent surrendered and canceled, and for the recovery of the sum of $250 previously paid on the notes, and to recover the further sum of $106.30 for work and labor performed and supplies furnished respondent in connection with the transaction for which the notes were given. The respondent, defendant in the lower court, answered, denying the allegations of plaintiffs' alleged cause of action, and alleged that there was due and owing on the three several notes the sum of $1.042.82, and prayed judgment for that sum, together with $100 attorney fees, interest, and costs of the action. It appears that on the 7th day of August, 1900, the appellants executed and delivered to the respondent their three certain promissory notes for the purchase price of a thresher outfit which they had purchased on the day previous from the defendant company. The company gave plaintiffs a contract warranting the property sold, which warranty is as follows: "That the above articles are to be of the Russell & Co.'s manufacture, and warranted by them to be of good material, well made, and, with proper management. capable of doing as good work as similar articles of other manufacturers. If said machinery, or any part thereof, shall fail to fill this warranty, written notice shall be given Russell & Co.. Massillon, Ohio, and to the party through whom the machinery was purchased, stating wherein it fails to fill the warranty and time, opportunity, and friendly assistance given to reach the machinery and remedy the defects. If the defective machinery cannot then be made to fill the warranty, it shall be returned by the undersigned to the place where received, and another furnished on the same terms of warranty, or money and notes to the amount represented by the defective machinery shall be return87 P.-50

ed, and no further claim be made on Russell & Co. Continued possession or use of the machinery for six (6) days shall be conclusive evidence that the warranty is fulfilled to the full satisfaction of the undersigned, who agree thereafter to make no further claim on Russell & Co. under warranty."

The Harrisons received the property from defendant's warehouse at Palouse City on the 6th day of August and removed it thence to their premises, and on the 11th day of August commenced to use and operate the machine. They do not claim to have given the defendant or its local agent any notice as to defects in the property within six days after receiving the property from their warehouse, but they do claim to have given the notices required in the warranty within six days after commencing to use the machine. As soon as the plaintiffs admitted to the trial court that no written notice had been given within six days after receiving the property, the judge informed their counsel that they had by that act waived the benefit of the warranty, and that they could in no event hold the defendant under the warranty. Plaintiffs' counsel thereupon offered to prove that written notice had been sent to the company at Massillon, Ohio, on the fifth day after commencing to use the machine, and that they also gave notice to the local agent: that the local agent. subsequent to the receipt of such notice, sent experts to the plaintiffs' premises, and also came in person, and undertook to put the machine in such order as to make it run; that plaintiffs talked with the local agent over the telephone and told him that the machine would not run, and that they were going to return it, and the agent requested them not to return it, and also requested them not to give any written notice, that they did not want the notice. and that they would make the machine run or give them another machine, and that if they failed to furnish them another machine that would run he would give them back their notes. It seems from the evidence and proffered evidence that at least five or six different agents and expert employés of the defendant company went from time to time to the plaintiffs' premises and examined and worked on this machinery and endeavored to put it in running order, and from time to time requested the plaintiffs to retain the property and assured them that they would make it run or furnish another machine: that after a time they did take this machine back and furnish them another machine, which apparently was no better. The transaction ran along in this manner (according to the statements of plaintiffs' counsel and the offers that he made as to proofs) until the season of 1902, when he was requested by the agent to go to Endicott, Wash., and get another machine they had there called the "Buck." Plaintiffs went to Endicott and got the machine and returned the second ma

chine they had received from the agent to his warehouse and executed new notes for the Buck machine. The plaintiffs say that the agent promised them at that time that he would have the old notes that were given for the first machine returned to him, and would cancel them and wipe out the old contract entirely. The district court refused to admit this evidence offered by the plaintiffs, and thereupon the defendant proved the execution and delivery of the notes and the balance due thereon, after which the court peremptorily instructed the jury to compute the amount due with legal interest and bring in a verdict accordingly in favor of the defendant. A verdict was returned in favor of the defendant for the sum of $1,107.75. Plaintiffs moved for a new trial, which was denied, and they thereupon appealed from the order and judgment.

The appellants complain of the action of the trial court in refusing to admit evidence tending to show that they had no opportunity to use the machine for some days after they received it at the warehouse, and that the "possession" mentioned in the warranty was intended to be one coupled with a possibility or opportunity of use. They also claim that the court should have allowed them to show that the defendant, by the action and conduct of its agents, waived the literal and formal compliance with the requirement for giving them notice, and that all of the plaintiffs' evidence along those lines tending to show the waiver and the agreements from time to time to make the property good if the plaintiffs would retain it and try to operate it, and also the agree ment for exchange of the machine for the last machine secured, was admissible and should have been allowed. The respondent contends that the case of Murphy v. Russell & Co., 8 Idaho, 133, 67 Pac. 421, fully justifies the action and ruling of the trial court and is decisive of this case. In that case the purchasers had held the machine from July 14th to July 31st. They had used it a part of the time during that period, and during the meanwhile no complaint had been made to the company or its agent, and they do not appear to have served any written notice of defects, as required by the contract. On the other hand, the company never took charge of the property or sent any agent to repair the property or put it in running order; nor did they do any act or thing which in any way tended to show a waiver of the notice. It will at once be seen that the facts of this case are widely different from the facts of the case at bar. It is true that the warranty that was there considered was identical with the warranty in this case. It is also true that there are some things said in that opinion which, if taken alone and independent of the facts in the case, would appear to support the position taken by respondent here. It should be borne in

mind, however, that the language there used is directly referable to the particular facts of the case then under discussion and should be read and considered in the light of these facts. Our careful examination of that case satisfies us that the principle involved and the points there determined are not decisive of the case now under consideration.

The warranty provides that "continued possession or use of the machinery for six (6) days shall be conclusive evidence that the warranty is fulfilled to the full satisfaction of the undersigned," etc. This language should be read and construed in the light of the purposes for which it was used and the circumstances under which it was employed. Now, it certainly could not have been the fair intention of either of the parties that the purchasers should for the purposes of this warranty be considered in "possession" of the property until such time as they might have the property at a place where it would be possible to use it for the purpose of threshing grain. The company and its agents, when selling this property to plaintiffs, undoubtedly learned their place of residence and the community in which they expected to work and operate the property. It certainly could not be said that the six-day period began to run at the time of the receipt of the machinery from the warehouse, if, as a matter of fact, the purchasers would have had to transport the machinery 75 or 100 miles across a mountainous region in order to reach the community where they lived and expected to do threshing. In that case we do not think the contracting parties would have understood or intended that the "possession" referred to in the warranty should commence until at least a possibility or opportunity of using the property should arise. While there are vast grain producing prairies throughout this state, it is frequently necessary to traverse extensive mountain regions to reach many of these agricultural communities, and we must treat the contracts of business men as having been made in the light of natural conditions and with a view of becoming valid and operative and of mutual benefit to each of the contracting parties. A construction that would hold the "possession" of the machinery in this warranty to commence, in every case, at the time the machinery was received at the depot or warehouse, would convert the contract of warranty into simply a waiver of warranty and give the purchaser no benefit whatever. Evidence, therefore, tending to prove a state of facts similar to or within the line of that suggested above, is clearly admissible and should be allowed in such a case.

Respondent contends that the agent could not waive any condition of the contract or warranty for or on behalf of the company, and in support of that argument calls our attention to the following clause in the con

tract: "As the condition hereof, it is fully understood and agreed: That this order is given subject to the acceptance of Russell & Co., and that no promises, whether of agent, of employé or of attorney, in respect to the payments, and security, or the working of the machinery named, will be considered binding unless made in writing, ratified by the home or branch office." Now, it can scarcely be said that a waiver of notice or promise to make continued effort to put the machinery in such condition that it would do the work for which it was sold, or a promise that in case they were not successful they would substitute a new machine, would fall within the prohibition of the foregoing clause of the contract. The only purpose of notice is to enable the vendor to examine the machinery and remedy any defects and put it in running order. When that purpose has been served, and the company's agents have taken charge of and examined and worked on the machinery, it becomes immaterial whether any notice at all has been given. Mass. Loan & Trust Co. v. Welch (Minn.) 49 N. W. 740; Davis v. Robinson (Iowa) 25 N. W. 282; Nichols & Shepard Co. v. Wiedemann (Minn.) 75 N. W. 208; Aultman-Taylor Co. v. Frazier (Kan. App.) 47 Pac. 156; Baker v. Nichols & Shepard Co. (Okl.) 65 Pac. 100. If, on the other hand, it should be contended that this clause was an attempt to restrict and limit the future power and authority of the corporation to modify its contract or waive any privilege given it under the contract through its duly constituted agents and attorneys, then and in that case it would come in conflict with the almost uniform current of authority which holds such stipulations invalid and of no binding force or effect. Baker v. Nichols & Shepard Co. (Okl.) 65 Pac. 100; Nichols & Shepard Co. v. Wiedemann (Minn.) 75 N. W. 208; Trust Co. v. Welch, 49 N. W. 740, 47 Minn. 183; Lamberton v. Insurance Co., 39 N. W. 76, 39 Minn. 129, 1 L. R. A. 222; Knickerbocker Insurance Co. v. Norton, 96 U. S. 234, 24 L. Ed. 689.

We have no way of knowing from this record what the appellants, the purchasers of this machinery, can in fact prove with reference to these several transactions; but it is to be presumed for our present purposes that they had evidence to establish, or at least tending to establish, some of the facts which their counsel offered to prove in the trial court, and for that reason a new trial must be granted in order to give them an opportunity of submitting these facts to the jury. In the view we take of the case, plaintiffs should be allowed to submit to the jury any competent evidence they may have tending to establish the fact that notice was waived, and also the fact, if it exists, that it was impossible for them to use or test the machinery for any given length of time. after they received it at the defendant's

warehouse. and, if the plaintiffs furnish prima facie evidence tending to establish these facts, then they would be entitled to show the further transactions between them and the defendant's agents, and their promises and agreements with reference to the repairs and work upon the machinery in order to make it run, and the exchange of machinery and the like in connection therewith. Counsel for defendant objected to evidence of the acts and statements of the agents on the ground that plaintiffs had not proven the authority of the agents to bind the company. Whatever the original authority of the agent may have been, it would seem clear that his acts were ratified and confirmed by the company subsequently furnishing the purchasers another machine through the agency and medium of this salesman. They appear to have taken the first machine back and delivered a second machine under the original contract, and this case arises over the delivery of the third or Buck machine; plaintiffs claiming that it was furnished in place of the second and to make good the original contract. It is also argued by respondent that plaintiffs are estopped on the grounds that they continued to make payments on the notes given for the purchase price of the machinery. When all the evidence in the case is heard, this objection may or may not be well taken. If payments were made from time to time under the belief and with the promise and agreement that the machinery would be put in running order and made to do the work for which it was purchased, and such agreement was in fact never complied with, and no further waiver is shown by the purchasers, it would not amount to an estoppel against them; otherwise it might do so. Evidence of their dealings will determine that question.

The judgment is reversed, and the cause remanded, with directions to the trial court to grant a new trial and admit in evidence the plaintiffs' further offer tending to establish the facts above suggested. Costs awarded in favor of appellants.

STOCKSLAGER, C. J., and SULLIVAN, J.,

concur.

(12 Idaho, 618)

ANDRINO v. YATES. (Supreme Court of Idaho. Nov. 17, 1906.) 1. HABEAS CORPUS-GUARDIANSHIP OF MINOR CHILD-RIGHT OF PARENT-RELINQUISHMENT OF-WELFARE OF CHILD-EXAMINATION OF CHILD.

The right to the guardianship of a minor cannot be tried upon habeas corpus. [Ed. Note. For cases in point, see Cent. Dig. vol. 25, Habeas Corpus, § 14.]

2. SAME-CUSTODY OF MINOR.

This proceeding was not for the purpose of setting the child free, but to determine whether the plaintiff was entitled to its custody.

3. SAME-DISCRETION OF COURT.

The jurisdiction of the question of the custody of a child under a writ of habeas corpus is of an equitable nature and courts have large discretion in the matter.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 25. Habeas Corpus, § 84.]

4. GUARDIAN AND WARD-RIGHTS OF PARENT.

Under the provisions of section 5774, Rev. St. 1887, the parent is entitled to the guardianship of his minor child when he is competent to transact his own business, and not otherwise unsuitable as guardian.

[Ed. Note. For cases in point, see Cent. Dig. vol. 25, Guardian and Ward, § 25.]

5. HABEAS CORPUS-ABANDONMENT OF RIGHT. The legal right to the custody of a minor may be abandoned or forfeited by the acts or conduct of the parent, and in such case he is equitably estopped from asserting such legal right.

[Ed. Note. For cases in point, see Cent. Dig. vol. 25. Habeas Corpus, § 84.]

6. SAME--BEST INTERESTS OF MINOR.

Where the legal right of the parent is not clear, the best interest of the child will govern the decision of the court.

[Ed. Note. For cases in point, see Cent. Dig. vol. 25. Habeas Corpus, § 84.]

7. SAME EVIDENCE.

When it appears that a child has resided with its aunt from the time it was about 2% years old until it is nearly 12 years of age without having seen its mother, and that conditions are such and made so by the acts of the parent that the care and custody of the child cannot be changed without endangering the happiness and welfare of the child. the parent has become in the language of section 5774. Rev. St. 1887, "unsuitable" for possession of the child. 8. SAME-WELFARE OF CHILD.

In such cases the welfare of the child is the main consideration for the court. 9. SAME-PROCEDURE.

In cases of doubt and difficulty the court may examine the minor when it is of sufficient age and discretion, as to its wishes and desires in the matter: not that its wishes must control in the matter but that the court might more wisely arrive at a just conclusion in the case. (Syllabus by the Court.)

Application by Julia F. Andrino for writ of habeas corpus against Sarah E. Yates to determine the right to the custody of a minor child. Application denied, and child

manded.

re

Fogg, Nugent & Casady, for plaintiff. L. Vineyard and E. M. Griffith, for defendant.

SULLIVAN, J. This is an application for a writ of habeas corpus by the mother to obtain possesion of her daughter now about 12 years of age. The facts of the case are substantially as follows: It appears that the petitioner intermarried with one Thomas Stewart in the state of Oregon in the year 1893 or 1894; that after said marriage they lived near Jacksonville in said state; that on the 25th day of February, 1895, the child, Pheobe M. Stewart, was born; that the married life of the petitioner and her said husband was not congenial, and when the child was about eight months old the petitioner left her said husband taking the child with her, and left It with an aged couple residing at Medford,

Jackson county, state of Oregon. The child remained there until about the month of November, 1897, about two years, when it was delivered by its father to the daughter of Mrs. Yates, to be delivered to the defendant in this proceeding, who was the sister of the said Stewart, where the child remained until the present time. The father died about a year after the child was placed in the hands of Mrs. Yates. It appears from the record that the petitioner, after leaving the child with the aged couple referred to, went to California, and remained at different places in that state for some time; she thereafter went to Nevada, and was there married to a butcher. It also appears that her married life with the butcher was not congenial, and she left him and returned to California. Afterward, she left California and went to Tombstone, Ariz., where, about a year prior to this time, she married her present husband, Barney Andrino. It appears that Andrino is engaged in the saloon business, and has a home in said town and is worth about $7,000; that he has a pleasant home in that place. It also appears that from the time the child was left with the aged couple in Oregon, the petitioner wrote to them very seldom, and sent them about $10 to pay for the care, clothing, and nurture of the child; that the child was not quite three years old when it was placed in the care of Mrs. Yates by its father; that Mrs. Yates has taken care of it from that time to this; that during those eight or nine years six or seven letters were received from the petitioner by the daughter of Mrs. Yates, in which she inquired about the child and said that she wanted to keep track of it, but did not want to take it from Mrs. Yates. During that time the petitioner did not send any money, clothing, or presents of any kind to the child. It further appears that the petitioner has no means of her own with which to pay for the care and schooling of the child. It also appears that her husband, Andrino, would be pleased to have his wife take the child, and that he would furnish the means for its support, clothing, and schooling. The child is now nearly 12 years of age, has become very much attached to its aunt, Mrs. Yates; that it does not wish to go with its mother, but desires to remain with its aunt. It also appears from the record that the probate court of Idaho county issued letters of guardianship, whereby Mrs. Yates was appointed guardian of said child. However, the application for letters of guardianship was not made until about the month of July, 1906, and after Mrs. Yates was convinced that the petitioner was going to make an effort to get possession of the child. Some technical questions have been raised in this case with regard to collateral attacks on orders or judgments of the probate court in guardianship matters, but, as we view it, it is not necessary for us to pass upon those questions. It is contended by counsel for plaintiff under the provisions of section 5774, Rev. St.