wert would have been to compel her to make | from the judgment and the order denying a deed to the premises, and this she had al- a new trial. ready tendered before her sale to Wade, and the same was refused by plaintiff. Plaintiff cannot come into court, after refusing the only conveyance defendant could make, and compel her to do the very thing which she had previously offered to do, and which plaintiff had refused to allow her to do. Johnson v. Fuller, 55 Minn. 269, 56 N. W. 813; Allen v. Treat, 48 Wash. 552, 94 Pac. 102; Weir Investment Co. v. Scattergood, 42 Colo. 54, 94 Pac. 19.

2

you don't stop me, I will go on and fulfill, Camas Prairie State Bank v. Newman, 15 my contract. If you stop me, you Idaho, 719, 99 Pac. 833, 21 L. R. A. (N. S.) have to notify me according to law or you 703; Later v. Haywood, 15 Idaho, 716, 99 will never get the grain,' and he did notify Pac. 828, and the decisions of this court me before harvest not to deliver it. * *therein cited; also section 4824, Rev. Codes. When I got notified by Sheppard not to deliver the grain to Eaves, I sat down and wrote Eaves a letter, and he answered me back. He says: 'Marker, go to the Clearwater Grain Company and get my third of the sacks.' Sheppard wanted me to go to Kettenbachs and get sacks for him. So there I was between two fires, and I studied the matter over a little, went to Alvords and asked him what I should do. * * * I bought the sacks myself at Kettenbachs. The grain was put in my sacks. I was paid for the sacks. Mr. Mitchell paid me for them. Mr. Mitchell was acting for Mr. Sheppard. * ** I never, in fact, delivered any grain to Eaves. I didn't have time. I put it in my sacks. As a

The plaintiff could not recover in this case unless the grain had first been delivered to him by his tenant, and, as there is a substantial conflict in the evidence upon the question of delivery of the grain to the plaintiff, the verdict of the jury will not be disturbed. It is true the jury found a verdict in favor of the plaintiff as against Sheppard, but there is no appeal on the part of Sheppard, and the verdict and judgment must stand as to him. And, had Sheppard appealed, the verdict and judgment would have been sustained as to him because of the rule that, where there is a substantial conflict in the evidence, the verdict will not be disturbed.

STEWART and AILSHIE, JJ., concur.

This disposes of this appeal in favor of matter of fact, I didn't deliver it to either respondents. The judgment is therefore afone of the parties." The plaintiff testified firmed, with costs in favor of respondents. in his own behalf, and, in commenting on the testimony above quoted, testified: "Mr. Marker's testimony is that he refused to put that grain in my sacks. He didn't object to it. He said, 'I have furnished the sacks,' and I authorized him to get the sacks. He didn't do it-went on and got his own sacks. No, sir; I didn't pay him for the sacks. He didn't ask for pay. I didn't get any grain." The plaintiff also testified as follows: "I saw the grain. I saw it piled out by itself. * * How I know he piled it out for me he showed it to me, and

told me I could take it.

WESSLING v. NYE, State Controller. (Sac. 1,700.)

(Supreme Court of California. Nov. 18, 1909.) 1. STATES (§ 119*)-PUBLIC FUNDS-APPROPRIATIONS-GIFTS TO INDIVIDUAL.

Dig. § 118; Dec. Dig. § 119.*1 +

While under Const. art. 4, § 7, providing that each house of the Legislature shall judge of the qualifications and elections of its mem** He told bers, any expense lawfully incurred by either me he had furnished the sacks himself, so house in the exercise of this power would be a there would be no claim from Sheppard or legitimate charge on its contingent fund, the anybody about the sacks. * * He told Legislature cannot reimburse one who has expended money in the preparation of a contest me when I talked about it there should not which is not prosecuted before it or any of its be a sack of grain hauled out of the field committees, there being in such case no conby either party until it was settled who the tractual relation between the Legislature and those to whom the compensation is due, and owner was." The above-quoted testimony such reimbursement would violate Const. art. 4, clearly shows that the grain was not deliv-§ 31, prohibiting the making of any gift of pubered, or, at least, that there was a direct lic money to individuals by the Legislature. conflict in the testimony as to the delivery [Ed. Note. For other cases, see States, Cent. of the grain by Marker to Eaves, the plaintiff. Marker, a disinterested witness, testified positively that he did not deliver the grain to Eaves, but, on the contrary, put it into the sacks paid for by Sheppard, and the plaintiff himself testified that Marker informed him that "there should not be a sack of grain hauled out of the field by either party until it was settled who the owner was." Eaves testified that the grain was delivered to him, and Marker that it was not; thus making a direct conflict in the testimony as to the delivery. Under the well-established rule of this court, a judgment will not be reversed on account of the insufficiency of the evidence when there is a substantial conflict therein. Church v. Van Housen, 15 Idaho, 249, 97 Pac. 36;

2. ELECTIONS (§ 307*)-CONTESTS-EXPENSES. Under Pol. Code, § 280, the fees of officers of a contested election case must be paid by the for duties performed in the preliminary steps contesting parties.

[Ed. Note.-For other cases, see Elections, Dec. Dig. § 307.*]

In Bank. Appeal from Superior Court, Sacramento County; C. N. Post, Judge.

Mandamus by John Wessling against A. B. Nye, Controller of the State of California. Demurrer to the petition was sustained, and plaintiff appeals. Affirmed.

Henry N. Beatty, Thos. E Curran, and Francis Dunn, for appellant. U. S. Webb, Atty. Gen., and R. C. Van Fleet, Deputy Atty. Gen., for respondent.

the assembly? In answering this interrogatory it is not necessary to determine whether or not upon a trial of a contested election before the assembly that body might order the payment of the fees of witnesses whose testimony as certified by the commissioners should be used in that proceeding, the personal expenses of the contestee, or the fees of attorneys who might have prepared and presented the case of the contestee, either before the commissioners or the assembly; although it is earnestly submitted by the Attorney General that a legislative committee has no power to employ an attorney, but must seek any required legal advice from his office.

MELVIN, J. Appellant was elected a member of the assembly of the state of California, and his right to a seat in that body was contested by one Pfaeffle. The election took place on the 6th of November, 1906. The petitioner received his certificate of election from the registrar of voters of the city and county of San Francisco on November 26, 1906, and Pfaeffle's contest was filed on December 25th of the same year. Testimony with reference to the rights of the parties to the contest was thereafter given before two justices of the peace who had been appointed commissioners according to the requirements of section 275 of the Political Code, and their certificates, with the depositions of the witnesses, having been duly returned through the Secretary of State to the assembly, that body, on March 1, 1907, dismissed the contest on the ground that it had not been inaugurated within the period set by the stat-lation between the attorney for Mr. Wessute of limitations. Section 274, Pol. Code. ling and the assembly had arisen. In the abThereafter, the assembly, by resolution, di- sence of such contractual relation, we think rected the controller to draw his warrant on there was no legal liability upon the assemthe treasurer for the sum of $394, payable to bly to pay for his services, and that any atMr. Wessling out of the contingent fund of tempt to do so must fail because of the prothe assembly, for expenses incurred for at-hibition against gifts of public funds. Const. torney's fees, witnesses' fees, mileage, and Cal. art. 4, § 31; Powell v. Phelan, 138 Cal. incidental expenses in said election contest. 273, 72 Pac. 335. The same principles apply The controller refused to draw such warrant, with equal force to the items of personal exand this appellant petitioned the superior penses and witnesses' fees. court for a writ of mandate to compel compliance with the aforesaid resolution. Respondent's demurrer to the petition was sustained, and this is an appeal from that judgment.

It sufficiently appears upon the face of the petition here considered that no proceedings were had before the assembly or any one of its committees. Therefore no contractual re

It may be that the Legislature might by statute provide for the payment by a county, or by the state, of costs in certain election contests. Such laws have existed in other states. See In re Contested Election of O'Neil, 98 Pa. 461. Our Legislature, however, has passed no such law, but, on the contrary, has provided that the fees of officers for duties performed in the preliminary stages of a contested election case shall be paid by the contesting parties. Pol. Code, § 280. And we do not see how any implied duty for reimbursement of a contestee arises from the Constitution, or from the statutes that merely prescribe the procedure in election contests.

The judgment is affirmed.

We concur: HENSHAW, J.; LORIGAN,
SHAW, J.; ANGELLOTTI, J.

It is conceded by appellant that there is no direct statutory authority for the payment by either branch of the Legislature of the expenses of an election contest; but he insists that the power of the assembly to judge of the qualifications of those asserting the right to membership in that house carries with it the implied authority to expend any sum of money reasonably necessary to the determination of conflicting claims to a seat in that branch of the Legislature. Section 7 of article 4 of the Constitution provides that: "Each house shall choose its officers and judge of the qualifications, elections and returns of its members." In our opinion, any J.; expense lawfully incurred by either house in the exercise of the power thus given by the Constitution would be a legitimate charge to be paid out of its contingent fund; but it is here brought to our attention that this contest was not tried before the assembly. That body merely and properly dismissed the proceeding because it had not been instituted within the prescribed time after the issuance of the certificate of election. The real question presented to us is this: May the assembly reimburse one who has paid witnesses' and attorney's fees, costs, and personal expenses, in the preparation for a contest which is not prosecuted before

WRIGHT v. SONOMA COUNTY. (S. F. 4,996.) (Supreme Court of California. Nov. 19, 1909.) 1. WATERS AND WATER COURSES (§ 158*)SALE OF WATER-OFFER TO SELL.

the use of water by defendant, a notice by plainWhere there was no assent by plaintiff to tiff forbidding the use of the water, and demanding a certain sum for every day the notice was violated, was not a proposition to sell water at that rate.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 186; Dec. Dig. § 158.*]

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 186; Dec. Dig. 8 158.*]

3. CONTRACTS (§ 346*)-ACTION ON EXPRESS CONTRACT-VARIANCE.

Where plaintiff relied wholly on an alleged express contract, he cannot recover on a quantum meruit; no contract being proved.

[Ed. Note. For other cases, see Contracts, Cent. Dig. § 1748; Dec. Dig. § 346.*]

ter."

2. WATERS AND WATER COURSES (§ 158*)-| notified such road commissioner in writing SALE OF WATER-ACCEPTANCE OF PROPOSAL. that he was forbidden to take any water from Where plaintiff notified defendant not to take water from his premises, and that he said well, and that, in case he disregarded would demand a certain sum for every day the such notice, the owners "hereby demand" notice was violated, and afterwards obtained a $50 per day for each and every day on which decree restraining defendant from taking the he removed water in violation of the notice, water, the taking of water after the notice was not an acceptance of a proposition to sell at a "as compensation for the taking of said waspecified price. The well was bored and the water used for sprinkling purposes, with the knowledge of the board of supervisors of Sonoma county solely under the bona fide claim that the county had the lawful right to so take and use the water. On June 20, 1903, plaintiff commenced an action in the superior court of Sonoma county to obtain a decree enjoining said road commissioner from taking said water. On September 22, 1903, the superior court rendered judgment in said cause that plaintiff take nothing by his action. An appeal was taken by plaintiff from said judgment to the Supreme Court, and on May 11, 1904, the Supreme Court rendered a decision holding that defendant had no right to take or use said water, and directing the entry of judgment by the lower court in favor of plaintiff. Wright v. Austin, 143 Cal. 236, 76 Pac. 1023, 65 L. R. A. 949, 101 Am. St. Rep. 97. The road commissioner and law officers of the county had knowledge of this decision within a few days after the opinion was filed, but the remittitur from the Supreme Court was not returned and filed in the clerk's office of Sonoma county until July 11, 1904. There is no claim that any water was taken subsequent to July 12, 1904.

In Bank. Appeal from Superior Court, Sonoma County; Albert G. Burnett, Judge. Action by Sampson B. Wright against the County of Sonoma. From a judgment for defendant, and an order denying a new trial, plaintiff appeals. Affirmed.

Transferred from Court of Appeal to Supreme Court in 7 Cal. App. 567, 96 Pac. 333. T. J. Butts, for appellant. Clarence F. Lea and G. W. Hoyle, for respondent.

ANGELLOTTI, J. This is an appeal by plaintiff from a judgment for defendant and from an order denying his motion for a new trial, in an action to recover the sum of $8,600 for water taken by defendant, by one of its road commissioners, for the purpose of sprinkling a public highway, from a well bored by it in said public highway.

It appears too clear for question that there was no express contract between the parties for the use of this water. There was never any assent on the part of plaintiff to the use by defendant of such water on any terms, and all water taken was taken against the will, and without the consent, of plaintiff. The notice given by plaintiff and his co-owners expressly forbade the use of the water at all. The provision therein to the effect that the owners demand $50 for each and every day on which the notice to refrain from taking water is violated cannot be construed as a proposition to sell water at that rate. It amounted to no more than a notice of the amount of damage that the owners would claim for the taking of the water without their consent. And the taking of the water by defendant under the circumstances shown, even after the decision of the Supreme Court in regard to the relative rights of the parties became known to it, cannot be held to show any acceptance by it of the proposition to sell the water for a specified price. The cases cited by learned counsel for plaintiff in this regard are all cases in which the conduct of the party was such as to afford reasonable evidence of his consent to a proposition theretofore made.

The plaintiff is the life tenant of the land traversed by that portion of said highway on which said well is situated, subject to such rights therein as are possessed by defendant and the public by reason of the fact that the same constitutes a public highway. Defendant took and used water for sprinkling said highway from June 10, 1903, to October 8, 1903, 120 days—and on 52 days, from May 10, 1904, to July 12, 1904. Plaintiff's claim is based solely on the theory that there was an express contract for the payment by defendant to plaintiff of the sum of $50 for each day on which water was taken by it from said well; there being no allegation in the complaint as to the reasonable value of the water taken, or any allegation of damage to plaintiff by reason of such taking. In view of the findings based on evidence without conflict, there can be no dispute as to the facts material on the issue of express contract, and those facts completely disprove the theory of any such contract. About May 27, 1903, defendant's road commissioner commenced the construction of said well, and, the same having been completed, commenced to take water therefrom for the purpose of sprinkling said highway, all without the consent of plaintiff. Plaintiff and others interested in the land, thereupon, on June 10, 1903,

So far as any right to compensation for water actually taken is concerned, which is