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and its loss the loss of anticipated profits of a speculative character, not recoverable in an action at law, and yet an injury sustained by Mosier's wrong. Taking the allegations of the petition alone, as the trial court was compelled to do in determining the merits of the demurrer, it cannot be said that an action for the value of the property conveyed was a plain legal remedy by which to obtain adequate compensation for the injuries sustained. The contract in this case was an executory one, and the inability or refusal of the vendee to comply with his executory agreement, as disclosed by the petition, was amply sufficient to give the court equitable jurisdiction, although the specific allegation of a lack of an adequate remedy at law was not made; and this irrespective of any question of fraud. We fully agree with the views of Justice Maxwell, as expressed in Willard v. Ford, 16 Neb. 543, 20 N. W. 859, a case parallel to the one at bar: "It would be a reproach upon the law if a party could secure the title to real estate in consideration, in whole or in part, that he would erect certain buildings thereon, and, upon receiving a conveyance, refuse to perform his agreement. The law favors good faith and fair dealing. This required the defendant to erect the building in question, according to his agreement, or, in case of his failure to do so within a reasonable time, to submit to a cancellation of his deed. In a contract of this kind, the court will look at the entire transaction, and grant or withhold relief as the circumstances of the case may seem to require."

Nor do we think notice of disaffirmance of the contract was necessary to be pleaded, since under the facts in this case no such notice was necessary to be given. Some of the authorities go to the extent of holding that no notice whatever is required to be given, other than the institution of the suit, and all unite in upholding the doctrine that where, in a purchase and sale of real estate, the vendee has so acted as to create the reasonable belief on the part of the vendor that he has forsaken his contract, and no longer considers himself obligated by it, the vendor may rescind without notice to the vendee of his intention to do so. Herbert v. Stanford, 12 Ind. 503; Knappen v. Freeman, 47 Minn. 491, 50 N. W. 533; Kirby v. Harrison, 2 Ohio St. 326, 59 Am. Dec. 677. Under the terms of the contract between the parties in this case, Mosier was bound to move his stock to the lots conveyed to him on or before July 1, 1902, or the contract became null and void. If he desired to acquire full and complete title to the property, which then rested in him merely in form, it was his duty to procure his loan, erect his building, and move his stock of goods before the expiration of the time specified by the contract, as he had obligated himself to do, or, upon his failure to perform the condition subsequent imposed

upon him, to suffer his title to be defeated, and the conveyance to him to become wholly inoperative, and of no effect as a transfer of any interest in the lots conveyed. He was bound by his contract, and bound to know that, when the time for performance on his part had expired, no equity existed in his favor, nor any right to insist on notice of disaffirmance of a contract which he himself had disregarded, except in so far as it benefited him. As was well stated in the case of Kennedy v. Embry, 72 Tex. 387, 10 S. W. 88: "Where there has been no attempt to perform any part of a contract for the sale of a. tract of land, and the time for performance has expired, no equities exist in favor of the vendee, and the vendor may rescind, without notice to the vendee of intention to do so.

If the vendee has actually abandoned the contract, or has so acted as to create the reasonable belief on the part of the vendor that he has abandoned it, the vendor may rescind, without notice of his intention, notwithstanding part performance by the vendee. When there has been no attempt to perform any part of the contract, and the time for performance has expired, * * * the vendor may rescind, without notice to the vendee of his intention to do so, and convey the land to another. ***" And this we think the better rule, and one sustained by the weight of authority. So that, in this case, under the facts pleaded, we cannot say that the trial court erred in holding the petition sufficient, when attacked for this reason.

Nor does the plaintiff in error the First National Bank of Walter occupy any better position than its grantor, Mosier, by reason of its deed from him. At the time it attempted to purchase an interest in the property the suit seeking the cancellation of its grantor's deed had been pending more than two years, and it will be held to have had constructive and presumptive notice of Mrs. Walter's rights at the time it purchased. Under the facts in this case, as against the plaintiff in error Mosier, Mrs. Walter is entitled to a decree canceling the deed from her to Mosier and a reconveyance of the premises, and as against the purchaser, the bank, its purchasing under circumstances reasonably sufficient to apprise it of Mrs. Walter's equities entitles her to a reconveyance against it. Reid v. Burns, 13 Ohio St. 49.

The remaining errors assigned arise out of the giving of certain instructions and the refusal of the court below to allow certain special interrogatories to be submitted to the jury. We have carefully examined the instructions in this case, having in mind the propositions contended for by the plaintiffs in error, and cannot see wherein the court erred in giving them. They are as favorable as the defendants below could expect, and correctly state the law governing the case. As to the special questions refused by the court, the first and

second asked the jury to find upon a point already admitted by the defendants in their answers, the execution of the written contract, it not having been denied under oath; and, moreover, this point was fully covered in the general instructions. The fifth and eighth questions submitted and refused referred to the intentions of Mosier in procuring the loan and the attempts he made to comply with his contract. All this might have been important to be considered, if the court had submitted to the jury the question of fraud; but, not having done so, it is immaterial what Mosier's intentions were. so long as thy were not carried out. The ninth and tenth questions refer to the consideration for the conveyance of the lots by Mrs. Walter and to the matter of a tender back of what she received. Inasmuch as the court correctly says in his general instructions that the consideration for the deed was that Mosier should move his stock, no tender was necessary, as there was nothing to tender, and, none being required, no questions were necessary to be answered in that regard by the jury. The eleventh question asks the jury to find whether or not the representations made by Mosier to procure the deed sooner than the contract called for were made "intentionally, knowingly, and fraudulently"; but of the refusal of this interrogatory the plaintiffs

in error cannot complain, since the jury were instructed that, from the evidence submitted, no actual fraud could be found as against the plaintiff in error Mosier. Moreover, in such a proceeding as the one at bar, the submission or rejection of interrogatories is entirely within the discretion of the court. When clothed with equity jurisdiction, it lies within the power of a court to reject all findings returned by a jury and make such of its own as it sees fit, or it may adopt as its own tl.e answers of the jury, or such portions of them as it may deem proper. In equitable proceedings, a jury is not a matter of right, nor can a party, in such case, require of the court that any questions or interrogatories be submitted to a jury for its determination. A jury, if used at all, sits in merely an advisory capacity, and as such its verdict and findings are to be treated.

From a reading of the entire record, we are convinced that no injustice will be done either of the plaintiffs in error by an affirmance of the judgment of the court below, and that regard for the rights of the defendant in error requires that this be done. There being no reversible error in the record, for the reasons above given, the judgment of the trial court is affirmed. All the Justices concurring, except GILLETTE, J., who tried the case below, not sitting.

(12 Idaho, 749)

In re NEIL.

(Supreme Court of Idaho. Dec. 14, 1906.) 1. CRIMINAL LAW-APPEAL-CERTIFICATE OF PROBABLE CAUSE.

Paragraph 3 of rule 27 (32 Pac. v) of the rules of the Supreme Court requires that one who applies to a justice of the Supreme Court for a certificate of probable cause under section 8048. Rev. St. 1887. shall have first made application to the district judge who tried the case or show good reason why he has failed to do so. and shall give five days' notice to the county attorney or Attorney General of his intention to make such application. 2. SAME-PROBABLE CAUSE.

The phrase "probable cause for th. ppeal" used in section 8048, Rev. St. 1887. oes not mean that there is probable reason to suppose the judgment will be reversed, but, rather, means that the appellant has assigned or specified grounds on which he expects to rely that are open to doubt or honest difference of opinion, and over which rational, reasonable, and honest discussion may arise.-that the appeal must present some debatable question, and is not merely frivolous and vexatious.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15. Criminal Law, § 2730.]

3. SAME RIGHT OF ACCUSED-STAY OF PUNISHMENT.

The right of appeal by a defendant in a criminal case is absolute, and in no respect dependent on his guilt or innocence, and where he is availing himself of this remedy with any degree of good faith, and not as a pretext for delay, it would be manifestly unjust to inflict upon him the punishment while he is having the validity of the judgment judicially determined. [Ed. Note. For cases in point, see Cent. Dig. vol. 15, Criminal Law, §§ 2728, 2731.] 4. BAIL-APPEAL FROM CONVICTION.

The right of admission to bail after conviction of a felony does not necessarily follow the right to have a certificate of probable cause issue.

(Syllabus by the Court.)

Application of Frank Neil for certificate of probable cause. Granted.

Batch & Bagley, for applicant. J. J. Guheen, Atty. Gen., and Edwin Snow, for the State.

AILSHIE, J. In this matter an application was made to Mr. Justice SULLIVAN and the writer hereof at chambers, under section 8048, Rev. St. 1887, for a certificate of probable cause. After hearing the matter. it appeared that a certificate of probable cause should issue, and it was accordingly granted. Since there seems to be considerable uncertainty and doubt among the members of the bar, as well as the trial judges of the state, as to the correct practice in the matter of applications for certificates of probable cause, and some of the trial judges appearing to have declined to issue such certificates in any case of conviction in their respective courts, it has appeared necessary that we file an opinion in this case announcing the rule of law as well as of practice to be followed in this state. The applicant, Frank Neil, was convicted and sentenced to serve a term of 10 years in the state penitentiary. He thereupon moved for a new trial, which was de

87 P.-56

nied, and then appealed to the Supreme Court from the judgment and order. He at once applied to the district judge, IIon. Alfred Budge, for a certificate of probable cause. under the provisions of section S018, Rev. St. 1887, and his application was denied. It appears, however, from the showing made by petitioner, that the judge fixed the amount of the bond that defendant would be required to give in the event the Supreme Court, or a justice thereof, should issue a certificate of probable cause. The application was made here in conformity with paragraph 3 of rule 27 of the Supreme Court, which is as follows: "No application made to a justice of this court under section 8048, Rev. St., for a certificate of probable cause will be considered until the application has first been made to the judge who tried the case, or good reason for a failure to do so shown by affidavit. and in such cases the party intending to apply for certificate shall give at least five days' notice of his intention to make such application by service of notice thereof, either upon the county attorney who tried the cause, or the Attorney General." The Assistant Attorney General stated at the hearing that he was of the opinion that this was a case in which a certificate should properly issue, and that he would not resist the application.

Section 8048 of the Rev. St. 1887, under which the application is made, provides as follows: "An appeal to the Supreme Court from a judgment of conviction, stays the execution of the judgment in all capital cases. and in all other cases, upon filing with the clerk of the court in which the conviction was had, a certificate of the judge of such court, or of a justice of the Supreme Court. that. in his opinion, there is probable cause for the appeal, but not otherwise." The meaning of the words "probable cause for the appeal" is the evident subject of dispute and controversy when such applications are made to the trial judges. The provision of our statute is the same as section 1243 of the Penal Code of California. (4 Deering. $ 1243.) The California statute has received very full and careful consideration by the Supreme Court of that state, and in Re Adams, 81 Cal. 163, 22 Pac. 547, Chief Justice Beatty has so clearly defined the meaning of these words that we quote him at length as follows: "It would seem that. notwithstanding what has been said by this court respecting this and cognate provisions of the statute, the opinion must obtain to some extent that the expression 'probable cause for the appeal' is the equivalent of 'probable ground for the reversal of the judgment.' and, consequently, that the superior judge who has overruled the defendant's motion in arrest of judgment, or for a new trial, cannot, without stultifying himself, grant a certificate of probable cause. If it were true that there is no probable cause for an appeal except in a case where

the judgment is probably erroneous, it would necessarily involve self-stultification for a judge, who, by denying a new trial, and pronouncing sentence, has solemnly affirmed his belief in the validity of the judgment, to make a certificate implying that in his opinion the judgment ought to be reversed. The palpable absurdity of such a proceeding sufficiently demonstrates that the Legislature could never have intended to require itdemonstrates, in other words, that the certificate which the superior judges are required to grant in proper cases cannot have the meaning supposed. What, then, is meant by the expression 'probable cause for the appeal'? We answer, as we have answered heretofore, it means only that there is presented a case that is debatable; a case that is not clearly and palpably frivolous and vexatious; a case upon which there may be an honest difference of opinion. People v. Valencia, 45 Cal. 305; Ex parte Hoge, 48 Cal. 6. This is all that is required. It matters not that the judge before whom the prisoner has been tried may be satisfied that his conviction is in every respect regular and valid (which, indeed, must always be the case before there can arise any necessity for an appeal); he is, nevertheless, bound to grant a certificate of probable cause, and stay the execution pending the appeal, unless the case is so clear as to admit of no rational doubt or serious discussion."

If, as intimated by the California court, the issuance of a certificate of probable cause were equivalent to saying that the judgment will probably be reversed, the statute authorizing such a certificate would become entirely meaningless and useless. If a trial judge believes that there is any reason why the judgment should be reversed, or a new trial granted, it is made his duty to grant a new trial without entailing upon the defendant the necessity, burden, and expense of an appeal. The fact that he denies a new trial is of itself a judicial determination, so far as his court is concerned, that there exists no good reason why the judgment should be reversed or a new trial granted. But section 8048 has no reference to such a condition either in point of law or fact. That statute must undoubtedly mean that if the appellant has assigned any error or specified any ground on which he expects to rely on appeal concerning which a doubt may exist or over which an honest difference or a reasonable discussion may arise, then and in that case a certificate should issue. The trial judge must of necessity in every case believe that the verdict and judgment will be sustained; otherwise he would set them aside and grant a new trial. On the other hand, where it is clearly evident that the appeal is frivolous, as, for example, where the appellant has assigned no error and specified no ground recognized by law for granting a new trial, or in arrest of judgment, a certificate should not

issue. In such case there would be no question presented over which an honest and fair difference of opinion could arise as to its merits. Another reason suggests itself in this connection. Both the Constitution and statute guaranty to him the right of appeal from any judgment of conviction rendered and entered against him. Const. art. 5, § 9, and section 8042, Rev. St. 1887. This right of appeal is in no respect dependent upon the guilt or innocence of the defendant. One guilty beyond all question of doubt is guarantied the same right of appeal as if he were absolutely innocent. If innocent, and he should appeal and his innocence be finally established, it would be a grave and manifest injustice to have inflicted upon him the punishment prescribed by the judgment during the very time that he was prosecuting his appeal and establishing his innocence. On the contrary, even if he is guilty beyond the question of a doubt, the state can suffer no injury on account of the execution of the judgment having been stayed, pending the final determination of his case on appeal. If not admitted to bail, he is in the meanwhile held in custody of the sheriff of the county where he committed the offense, and the term of his punishment will begin to run from the final determination of his case and his surrender to the warden of the penitentiary. In the meanwhile he will have served in the county jail during the period his appeal has been pending, and he will still have to serve the full period of his sentence. idea seems to have prevailed in some degree without any foundation in law therefor, that the issuance of a certificate of probable cause carries with it as a matter of course the admission to bail. This notion is entirely erroneous. The admission to bail is a matter entirely separate and independent from the issuance of a certificate of probable cause. While the defendant could not be admitted to bail prior to the issuance of such a certificate, on the other hand, a certificate may and should properly issue in many cases where the defendant should not be admitted to bail. Section 8104, Rev. St. 1887. Indeed, it is true that, in many cases that have come to this court, certificates of probable cause have been granted, and the defendant has been refused admission to bail. In such cases he is held in custody in the county jail until his case is finally determined on appeal. In those instances the defendant takes his chances of having to serve that period in the county jail in addition to and over and above the period designated in the sentence and judgment against him. If he hasn't reasonable hopes of securing a reversal of the judgment, he will seldom take the chances of procuring such a certificate. As touching the various phases of this matter, see People v. Lane, 96 Cal. 596, 31 Pac. 580; People v. Durrant, 119 Cal. 54, 50 Pac. 1070; People v. Gallanar, 144 Cal. 656, 79 Pac. 378.

The

Kan.)

WATER, LIGHT & GAS CO v. HUTCHINSON INTERURBAN RY. CO.

This matter has been considered by the court sitting with a full bench, and is fully concurred in by STOCKSLAGER, C. J., and SULLIVAN, J.

(74 Kan. 661)

WATER, LIGHT & GAS CO. v. HUTCHIN-
SON INTERURBAN RY. CO. et al.
(Supreme Court of Kansas. Nov. 10, 1906.
Rehearing Denied Dec. 8, 1906.)

1. MUNICIPAL CORPORATIONS-RAILROAD AID
-ISSUE OF BONDS.

Chapter 67, p. 96, of the Laws of 1886 (sections 5907 to 5912, Gen. St. 1901), does not authorize a city of the first or second class to vote aid and issue bonds to purchase lands for a right of way, depot grounds, and terminal facilities to a railroad company whose entire line is confined within the corporate limits of such city.

2. SAME-ACTION BY TAXPAYER-INJUNCTION.
Under chapter 334, p. 550, of the Laws of
1905, a taxpayer may enjoin any board or
body from entering into any contract or doing
any act, not authorized by law, which might
result in the creation of any public burden.
[Ed. Note. For cases in point, see Cent. Dig.
vol. 36, Municipal Corporations, § 2162.]
(Syllabus by the Court.)

Error from District Court, Reno County;
P. J. Galle, Judge.

Action by the Water, Light & Gas Company against the Hutchinson Interurban Railway Company and others. Judgment for defendants, and plaintiff brings error. Reversed.

H. Whiteside, Geo. A. Vandeveer, F. L. Martin, and Fairchild & Lewis, for plaintiff in error. Prigg & Williams and A. C. Malloy, for defendants in error.

GREENE, J. This is a proceeding to re• verse an order of the district court of Reno county, refusing to grant an injunction restraining the mayor and council of the city of Hutchinson from issuing $20,000 of the city's bonds to the Hutchinson Interurban Railway Company. The material allegations of the petition are that the plaintiff is a large real estate owner and taxpayer in the city of Hutchinson; that the city of Hutchinson is a city of the second class; that the defendant is a railroad corporation organized and existing under and by virtue of the laws of the state of Kansas, with its principal place of business in the city of Hutchinson; that a petition, signed by more than two-fifths of the resident taxpayers of the city of Hutchinson, was presented to the mayor and council of such city, January 18, 1906. requesting the mayor and council to submit at a special election to the qualified voters of the city a proposition to extend aid to the amount of $20.000 to said corporation, to be used in the purchase of its right of way, depot grounds, and terminal facilities, and to issue its bonds therefor. An election was called, at which a majority of those voting voted in favor of extending the aid and issuing the bonds. The plaintiff applied to the district court of Reno

883 county for an injunction restraining the mayor and council from issuing such bonds, which was denied, and it prosecutes this proceeding.

Plaintiff in error contends that the petition presented to the mayor and council, asking the city to vote aid and issue the bonds to the corporation, did not bring the petitioner within the statute authorizing cities of the first and second classes to aid in the construction of railroads or to extend aid in purchasing a right of way, depot grounds, or terminal facilities. The petition reads: "The conditions upon which said bonds shall be voted and issued are: That the IIutchinson Interurban Railway Company shall construct and build a line of railroad, standard gauge, propelled by electric current or other mechanical power, including all necessary side tracks and switches, preparatory to running the cars thereon, from a point on Seventeenth street, in said city, and over Main street, Fourth avenue, and Avenue A, to the distance now occupied by the Hutchinson Street Railway Company. Said bonds to be delivered to the Hutchinson Interurban Railway Company as soon as the track is laid upon said streets, provided said track is laid and cars running thereon on or before the first day of September, 1906, delays by litigation and unavoidable casualties excepted." The objection to this petition is that it describes the railroad for which aid was requested to be a line wholly within the city. It may also be mentioned that the ordinance. calling the election and making it obligatory on the mayor and council to issue the bonds when the railroad company had complied with the conditions expressed in the petition, followed the exact language of the petition in this respect. The aid was attempted to be secured under the provisions of the act of February 26, 1886, being sections 5907 to 5912 of the General Statutes of 1901. grant of authority to cities of the first and second classes to aid railroad companies in securing and paying for land for a right of way, depot grounds, and terminal facilities is found in section 5907, which provides that: "When a petition in writing, signed by at least two-fifths of the resident tax payers of any incorporated city of the first or second class, shall be presented to the mayor and council of such city, asking that a vote be taken and an election held upon the question of aiding any railroad company constructing or proposing to construct its line of railroad into or through said city, in securing and paying for land for right of way, depot grounds, and terminal facilities, the mayor and council of such city shall cause an election to be held to determine whether such city shall aid such railroad company in securing and paying for lands for right of way, depot grounds and terminal facilities." It will be observed that such cities are only authorized to grant aid for such purposes to

The

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