Statement of the Case.

and payments to be made as follows: On or before Oct. 15th, 1883, four thousand (4,000) bushels; on or before Oct. 15th, 1884, four thousand (4,000) bushels; and on or before Oct. 15th, 1885, four thousand (4,000) bushels; the owner of this note to furnish sacks for said wheat."

3. A chattel mortgage from Clark to Ankeny to secure the payment of the wheat note.

Under this agreement, Clark entered into possession of the land and continued in possession of it until the fall of 1886.

In performance of this contract, Clark, in December, 1883, delivered to Ankeny 4167 bushels of wheat, and in September, 1885, he delivered 8600 bushels, making 767 bushels more than the contract called for. Ankeny accepted this wheat in fulfilment of the contract.

After the delivery of the wheat to Ankeny, Clark demanded a deed for the land. This Ankeny neglected to give, putting Clark off from time to time upon one pretext or another, until Clark, becoming impatient, finally insisted either upon a deed to the land or payment for his wheat. Clark was then referred by Ankeny to the latter's attorneys, who informed him that he could have a warranty deed to the quarter on the even section and a quitclaim deed to the quarter on the odd section, or the railroad land, as it was called, and they further informed him that if the Northern Pacific Railroad Company should not get title to the odd section and he should be obliged to procure title from the government, Ankeny would pay the necessary expenses of obtaining title in that way. This does not seem to have satisfied Clark, and on November 16, 1886, he served upon Ankeny the following notice:

"WALLA WALLA, W. T., Nov. 16, 1886. "Levi Ankeny Esq., Walla Walla, W. T.

"DEAR SIR: I have performed my part of the contract in the purchase of the land described in your bond to me. I have learned that you have no title to one hundred and sixty acres of it. You have refused to give me anything more than a quit-claim deed to this part of the land. I cannot accept

Argument for Plaintiff in Error.

such a deed. It was not what the contract called for. Unless within five days from this date you convey a perfect title to me to the whole of the land described in the bond by a good and sufficient conveyance I will, at the end of that time, abandon this land and surrender the possession to you and look to you for such compensation as the law allows me on account of violation of the contract.

"Resp❜y,

V. B. CLARK."

Ankeny seems to have paid no attention to this notice, and Clark, several days thereafter, taking a witness with him, went to Ankeny's bank and formally surrendered possession of the land to Ankeny. Clark then abandoned possession of the land and has not occupied it since.

Subsequently to all this, and on the 19th day of March, 1887, Clark brought this action in the District Court of the First District to recover from Ankeny the value of 12,767 bushels of wheat delivered under the contract. The case was tried before a jury, who, upon the direction of the court, brought in a verdict for the plaintiff, and judgment was given upon the verdict.

The defendant took the case in error to the Supreme Court of the Territory of Washington, which affirmed the judgment of the District Court. The case is now before this court on error to the Supreme Court of the Territory of Washington.

Mr. John H. Mitchell for plaintiff in error.

I. The plaintiff must recover, if he recover at all, upon the cause of action stated in the complaint. He cannot in his reply be permitted to introduce a new cause of action and recover upon that. Brown v. McCune, 5 Sandford Sup. Ct. (N. Y.) 224; Campbell v. Mellen, 61 Wisconsin, 612; Durbin v. Fisk, 16 Ohio St. 533; Duponti v. Mussy, 4 Wash. C. C. 128; Burnheimer v. Marshall, 2 Minnesota, 78; Hatch v. Coddington, 32 Minnesota, 92; Hite v. Wells, 17 Illinois, 88; McConnel v. Kibbe, 29 Illinois, 483; Burdell v. Denig, 15 Fed. Rep. 397. The cause of action stated in the complaint is

Argument for Plaintiff in Error.

assumpsit for the recovery of the reasonable value of certain wheat alleged to have been sold and delivered to defendant by plaintiff, while the cause of action stated in the reply is the alleged breach of a specific contract. The evidence to support the theory of the reply would have been inadmissible to sustain the averments in the complaint, and vice versa. Distler v. Dabney, 23 N. W. Rep. 335.

II. The plaintiff must plead and prove a rescission of the contract, or such facts as entitle him to treat it as rescinded. Riddell v. Blake, 4 California, 264; Thayer v. White, 3 California, 228; O'Rielly v. King, 28 How. Pr. 408; Shultz v. Christman, 6 Mo. App. 338; Clay v. Hart, 49 Texas, 433. In this action he has done neither.

III. In order to rescind a contract for the sale of land on the ground that the vendor cannot perform it because he has no title to the land, it is necessary for the vendee to aver and show an outstanding paramount title in another; Thayer v. White, 3 California, 228; Riddell v. Blake, 4 California, 264. There is no averment in the pleadings of a paramount title in the United States, or in any other person; nor is there any evidence to support such an averment, had it been made.

IV. The Supreme Court of the territory, it will be observed, based its ruling on the doctrine laid down by this court, first, in the case of Railway Co. v. Prescott, 16 Wall. 603, approved in Railway Co. v. McShane, 22 Wall. 444, 462, and adhered to in Northern Pacific Railroad v. Traill County, 115 U. S. 600.

All that can possibly be claimed for the principle enunciated in these cases, and all ever intended by this court, it is respectfully submitted, is simply this: that until the company has complied with the provisions of the above proviso and paid into the Treasury of the United States the cost of surveying, selecting and conveying the lands claimed, the United States may withhold the evidence of a legal title already vested in virtue of a present grant, in order to protect its lien for the cost of surveying, selecting and conveying the lands, and that in such case, until patent does issue, the lands shall not be subject to state or territorial taxation.

Argument for Plaintiff in Error.

But the rule does not affect a case like this, where it appears affirmatively that the lands have been earned by the construction of the road and its acceptance, and that the party derives title through a deed from the railroad company, and it is not shown that the costs of survey have not been paid.

V. The legal title of the United States to the public lands may pass as well by an act of Congress in the words of a present grant as by a patent; and the act granting lands to the Northern Pacific Railroad Company is a grant in præsenti; Wilcox v. Jackson, 13 Pet. 498; Rutherford v. Greene, 2 Wheat. 196; Stoddard v. Chambers, 2 How. 284; Meegan v. Boyle, 19 How. 130; Railroad Co. v. Smith, 9 Wall. 95; Schulenberg v. Harriman, 21 Wall. 44; Langdeau v. Hanes, 21 Wall. 521; Leavenworth, Lawrence & Galveston Railroad v. United States, 92 U. S. 733; Barney v. Dolph, 97 U. S. 652; Simmons v. Wagner, 101 U. S. 260; Van Wyck v. Knevals, 106 U. S. 360; Kansas Pac. Railway v. Dunmeyer, 113 U. S. 629; Walden v. Knevals, 114 U. S. 373; St. Paul & Pac. Railroad v. Northern Pacific Railroad, 139 U. S. 1; Wisconsin Central Railroad v. Price County, 133 U. S. 496; United States v. Missouri, Kansas &c. Railway, 141 U. S. 358; Deseret Salt Co. v. Tarpey, 142 U. S. 241; Sioux City &c. Land Co. v. Griffey, 143 U. S. 32; New Orleans Pacific Railway v. Parker, 143 U. S. 42.

VI. The pleadings are destitute of any allegation as to the rescission of the contract, and no rescission by agreement is proven. The evidence is conflicting, but plaintiff's evidence, if uncontradicted, would not establish an agreement to rescind. Dial v. Crain, 10 Texas, 444; Pratt v. Morrow, 45 Missouri, 404; S. C. 100 Am. Dec. 301; Thurston v. Ludwig, 6 Ohio St. 1; S. C. 67 Am. Dec. 328. In any event, the question as to whether plaintiff had complied with his part of the contract, as also whether there was a rescission of the same, were questions of fact for the jury under the instructions of the court, and it was grave error in the court in directing a verdict for plaintiff. VII. Plaintiff paid the wheat on the contract for the purchase of the land. He received possession of the land from the defendant under the same contract. It is also admitted

Opinion of the Court.

that the use of the land while held by the plaintiff under the contract was of the value of $2127. If the plaintiff is entitled in this action to rescind the contract, or treat it as rescinded, and recover the value of the wheat paid on the contract, he should deduct the value of that which he received under it. Moyer v. Shoemaker, 5 Barb. 319; McIndoe v. Morman, 26 Wisconsin, 588; Baston v. Clifford, 68 Illinois, 67; Cobb v. Hatfield, 46 N. Y. 533; Burg v. Cedar Rapids and Missouri Railroad, 32 Iowa, 101; Masson v. Bovet, 1 Denio, 69; S. C. 43 Am. Dec. 651; Fratt v. Fiske, 17 California, 380.

Mr. John B. Allen for defendant in error.

MR. JUSTICE SHIRAS, after stating the case, delivered the opinion of the court.

Numerous errors have been assigned to the rulings of the court below. The first has to do with a question of pleading. The plaintiff declares in assumpsit for the value of a certain. amount of wheat by the plaintiff sold and delivered to the defendant. To this the defendant answered, setting up the execution of a so-called wheat note and a chattel mortgage to secure it, and alleging that "all the wheat delivered to defendant by plaintiff was delivered and received as payment on said note and not otherwise." In this answer no mention was made of any contract for the sale of land. The plaintiff, by way of replication, made a full statement of the contract for the sale of the land, alleging performance on his part, and default on the part of the defendant. He averred that after he, the plaintiff, had so performed said contract by the delivery of the wheat to the defendant, he duly demanded that defendant should convey the land to the plaintiff, as by his bond he had undertaken to do; that the defendant neglected and refused so to do, and still neglected and refused to grant and convey said land to the plaintiff by any good and sufficient deed, and that said defendant had no title to one parcel of the land described in the bond, and that since the making of the contract defendant was not the owner or seized in fee or