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that the respondents undertook to deliver a lot of good, sound, and merchantable logs, mixed promiscuously with a large proportion of rotten and unmerchantable ones. This they could not do, as by the terms of the contract they were required to deliver a certain quality of logs unincumbered with a large number of other logs not receivable under the contract. Appellants having taken the precaution to contract for good, sound, and merchantable logs, should not have been subjected to any considerable expense and trouble in separating the good logs from the bad ones.

But it is insisted by respondents that no injury resulted to appellants from the refusal of this instruction, for the reason that it was afterwards substantially given in the instruction that followed. That instruction is to the effect that while appellants are not bound to scale, receive, or pay for any logs not good, sound, or merchantable, the fact that some of that quality may have been put in floating water by respondents, did not excuse the appellants from their agreement to receive and pay for such as were good, sound, and merchantable. So much of the instruction is not objectionable, but the clause which follows is. It is in these words: "But if it would be impossible to separate them, or if it could not be done without great expense, it would excuse them." In our opinion, this instruction fails to embrace the substance of the one asked for and refused. The court further instructed the jury as follows: "The parties to this action have reduced their contract to writing -all the terms of the contract must be sought in the written agreement. The construction of the contract is a matter of law for the court. An issue is made in the pleading as to when the contract price for any logs became due and payable. This issue must be decided by the court. It depends altogether upon the construction of the written. contract. I now instruct you that by the terms of the contract, the purchase price of all logs delivered under the contract became due immediately upon their delivery at the boom of defendants. Defendants agreed to receive and pay for all good, sound, merchantable logs delivered to them at the boom by plaintiffs, four dollars and twenty-five

Opinion of the Court-Prim, J.

cents per thousand feet. This price they agreed to pay when the logs were delivered at the boom." To this instruction appellants excepted, and assign it as error.

It is insisted by the appellants that this contract is entire and not severable; that it should be construed to mean that respondents were to furnish one million feet of logs. within the year, at the rate of four dollars and twenty-five cents per thousand feet, and to keep a sufficient number on hand to keep the mill running-payment to be made on its fulfillment and not on the delivery of each one hundred thousand feet.

As to whether this contract is entire or severable is a question of construction, which depends upon the intention of the parties, to be ascertained from the language employed and the subject-matter of the contract. If the part to be performed by one party consists of several distinct and separate items, and the price to be paid by the other is apportioned to each item to be performed, or is left to be implied by law, such a contract will generally be held to be severable. And the same rule holds where the price to be paid is clearly and distinctly apportioned to different parts of what is to be performed. (2 Parsons on Contracts, 517.)

Adopting this rule of construction, we have reached the conclusion that the contract is severable and not entire. While the whole number of logs to be delivered was one

illion of feet at a certain price per thousand, yet they were to be delivered in quantities of one hundred thousand feet at a time, and the contract being silent as to the time. of payment, it will be implied that they were to be paid fo: when delivered.

Error having been committed in the refusal of the court to instruct, as asked by the appellants, the judgment is reversed and the cause remanded to the court below for a new trial.

Opinion of the Court--Boise, J.

JAMES A. CAUTHORN, RESPONDENT, V. SOL KING AND M. H. BELL, APPELLANTS.

JOINT WRONG-DOERS-GENERAL VERDICT.-Where, in an action for a wrongful conversion of property against two defendants, both answer, and a general verdict is rendered, it is a verdict against both defendants, and judgment should be given against both. But if, in such case, judgment is rendered against one only, it is error. If the defendant against whom the judgment is rendered appeals from the justice's court where the judg ment was rendered, to the circuit court, and on the trial had in the circuit court both defendants appear and defend, the circuit court has jurisdiction to render judgment against both defendants on a verdict of guilty against both.

PLEADINGS, AFFIDAVITS NOT ADMITTED TO EXPLAIN.-In order to determine the issues to be tried in an action, the court can only look to the pleadings, which cannot be enlarged or explained by affidavits.

APPEAL from Benton County. The facts are stated in the opinion.

F. A. Chenoweth, for appellants.

R. S. Strahan and J. W. Rayburn, for respondent.

By the Court, BOISE, J.:

The complaint alleges that appellants, in April, 1878, had in their possession fifty-five and thirty-five sixtieths bushels of wheat belonging to respondent, of the value of one dollar per bushel, and that appellants wrongfully and unlawfully converted it to their own use.

The answer denies all the allegations of the complaint, and alleges further that the transaction complained of arose between appellants and one Jerry E. Henkle, who had stored wheat with appellants, and by accident and mistake had got the warehouse receipt of appellants for fifty-five and thirty-five sixtieths bushels too much, and that said Henkle transferred said receipt to respondent, and that respondent brought suit thereon before W. H. Johnson, justice of the peace. The reply denied the mistake. The real issue was as to whether there was a mistake, or whether appellants had the wheat of respondent. The issue was tried before a jury, who rendered the following verdict: "We,

Opinion of the Court-Boise, J.

the jury, find for the plaintiff the sum of forty-four dollars and twenty-four cents."

• Judgment was rendered against the defendant Bell, alone. From this judgment Bell appealed to the circuit court. It is claimed by the appellants that King did not answer, and that Bell alone appeared in the case in the justice's court. But on examining the answer, it appears to be the answer of both defendants, and is signed by F. A. Chenoweth and E. Holgate, attorneys for defendants. With this answer on file, no judgment could be taken against the defendant, King, without a trial, and it is a mistake of fact by appellants to now assert that there was no issue to try between the plaintiff and King. As the case stands on the pleadings, it was necessary for the plaintiff to make out his case, and it being a case of tort, he could have a verdict against both defendants, or either of them, as the proof should warrant. The parties had answered tegether, and the trial necessarily proceeded against both, and as the jury found a general verdict, it was a verdict against both. If the evidence did not implicate both in the wrong complained of, then the verdict should have been against the guilty party alone, and the other party should have been found not guilty of the wrong charged in the complaint.

The record shows that on the trial "E. Holgate and F. A. Chenoweth appeared for Bell and filed answer," but that answer is, in form, by both defendants. The attorneys, Chenoweth and Holgate, signed the answer as attorneys of defendants, and on the back of said answer is indorsed, "Chenoweth & Holgate, defendants' attorneys." To determine what the issue was that was before the court for trial, we must be controlled by the pleadings, and in this case they show that both defendants appeared and answered, and it is clear that the verdict in the justice's court was against both defendants, and that the plaintiff was entitled to a judgment against both. The judgment, however, was rendered against Bell alone, and was, therefore, erroneous, whether entered on the motion of plaintiff or not. And from this judgment either party could appeal to the circuit court. The defendant Bell appealed, and the cause came

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on for trial in the circuit court on the issues as presented by the pleadings in the justice's court. (Civ. Code, 221, sec. 533.) King was as much a defendant in these pleadings as Bell.

It is claimed by the appellants that Bell being the only party to the judgment appealed from, King was not brought into the circuit court by the appeal; that he was no party to it, and that he was not compelled to appear in the circuit court, and did not appear, and is not bound by its judgment against him. On looking into the record we find that when the cause was tried in the circuit court, the "defendants and appellants, by their attorneys, Messrs. Chenoweth & Holgate," appeared and proceeded with the trial, which resulted in a general verdict for the plaintiff. This record must be taken as true, and shows that the defendant King did appear in the circuit court; and we think he waived any want of notice of the appeal and submitted himself to the jurisdiction of the court for the trial of the issues presented in the pleadings; and this does away with the appellant's objection that King was not properly in court to assert his rights. It is not, therefore, necessary to decide in what position he would have been had he not appeared and defended the action in the circuit court. It is true that Bell appeared alone to make the motion for a judgment, notwithstanding the verdict, and excepts to the ruling of the court on that motion; and it also appears in the bill of exceptions that both Bell and King appeared and excepted to the entry of the judgment on the verdict in the circuit court, which is the subject of this appeal. In the bill of exceptions is this language: "Defendant M. H. Bell excepts to the decision of said court in overruling said motion for judgment in favor of said defendant, notwithstanding the verdict; and defendants, King and Bell, except to the decision or order directing judgment to be rendered in said action against Sol King and M. H. Bell."

It therefore appears, not only by the record of the trial, but by the appellant's bill of exceptions, that King appeared in court after the verdict was rendered and objected to the entry of judgment thereon. We think that this record