[7] In reaching our conclusion we need not assert that we are altogether free from doubt; but doubt is not sufficient to overturn an act of the Legislature. In the case of a statute assailed as unconstitutional, we stand committed to the rule that no such enactment will be pronounced invalid unless its nullity is made manifest beyond a reasonable doubt. Spratt v. Helena Power, etc., Co., 37 Mont. 60, 94 Pac. 631; State ex rel. Hay v. Alderson, supra. In respect of the act before us we cannot say that this has been done; on the contrary, our views incline us to hold that it is a valid exercise of the legislative power, and that the bonds proposed to be issued pursuant to its provisions will become legal charges against the nate without $30,000 of this money being in- | holding himself out as an attorney at law vested or expended, and the anomalous situa- by advertisement and otherwise, and practiction would be presented that taxes would be collected to pay $500,000 indebtedness when as ing the profession of an attorney and couna matter of fact only $30,000 of indebtedness selor at law in said town of Troy and county had been contracted." of Lincoln, without first having been admitted to do so by this court," and asking that a citation issue under the seal of this court, requiring the said White to appear and show cause why he should not be punished as for a contempt. The petition was supported by the affidavits of B. F. Maiden and Graham Fletcher, attorneys and counselors at law residing, respectively, at Libby and Troy in Lincoln county, the former being also the county attorney, and George E. Davis, a justice of the peace residing at Troy. In response to a citation directing him to appear and show cause why he should not be punished, the respondent filed an answer, which denied certain of the material allegations in the affidavits, admitted others, and then pleaded in avoidance that, before he appeared in the district court, he had obtained permission to do so from Hon. T. A. Thompson, the presiding judge. The court thereupon appointed James M. Blackford, Esq., an attorney and counselor at law residing at Libby, to hear the evidence submitted and to report the same with his findings of fact to state. The demurrer to the complaint is therefore sustained, and, as we are advised that the relators cannot plead to further effect, a de cree of dismissal must be entered. So ordered. BRANTLY, C. J., and HOLLOWAY, J., this court. This has been done, and the mat concur. (54 Mont. 476) In re WHITE. (No. 4151.) (Supreme Court of Montana. March 11, 1918.) 1. ATTORNEY AND CLIENT 11-PRACTICING LAW-WHAT CONSTITUTES. One who advertised himself as a lawyer and appeared in the district court with the court's permission as an attorney in two cases, was practicing law within Laws 1917, c. 90, 1, defining "practicing law," and in so doing without having been admitted to practice he was guilty of contempt of court. 2. ATTORNEY AND CLIENT LAW-WHAT CONSTITUTES. 11-PRACTICING Where one who had not been admitted as a member of the bar received permission of the district judge to appear in cases for a short time pending his admission to the bar and did try cases, he was in contempt, under Rev. Codes, § 6388, since permission may be granted to a nonresident attorney of another state to appear and conduct a particular case, but not to appear generally, under Laws 1911, c. 13, § 1, so that the judge's permission, though in palliation of the offense, is no excuse. On petition by the Attorney General, H. P. White was cited to show cause why he should not be punished as for a contempt for prac ticing law without first having been admitted to the bar. Respondent adjudged in contempt. BRANTLY, C. J. On December 4, 1917, the Attorney General of the state filed with the clerk of this court a petition, reciting that H. P. White, the respondent, a resident of the town of Troy in Lincoln county, "is ter is now submitted for decision. The referee found the charges contained in the petition and affidavits fully established by the evidence, and reported: That during the year 1917 the respondent, not having been admitted to practice law in the state of Montana or in any other state, appeared as an attorney of record in the district court of Lincoln county in two causes, numbered, respectively, 400 and 409, by filing papers therein in behalf of defendants; that during the same time he advertised himself as a lawyer in the local newspaper in Troy, on letter heads used by him in his correspondence and by a sign displayed in front of his office which he maintained in the town of Troy; that he appeared in the district court on two different occasions, representing defendants in the causes mentioned, but that, before doing so, he had obtained the permission of the presiding judge; that such permission had been granted by reason of the fact that the presiding judge assumed that the respondent had been regularly admitted to practice law in the state of Idaho, and therefore might by courtesy be granted the privilege to practice until he could be admitted by this court; and that thereafter the respondent also attempted to represent a defendant in a criminal cause entitled, "State of Montana v. Charles Dixon," but that upon objection of county attorney B. F. Maiden, the presiding judge refused to permit him to appear for that purpose, and thereupon he refrained from any further appearance in the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes district court of that or any other county. (88 Or. 150) The referee further found that the respond- ELLIOTT CONTRACTING CO. v. CITY OF ent did not, by any direct misrepresentation, PORTLAND. mislead the presiding judge into the assump-(Supreme Court of Oregon. March 26, 1918.) tion that he had been admitted to practice in 1. EVIDENCE 419(12) - CONTRACT Idaho. [1] It cannot be questioned that in engaging in the activities he did respondent was engaged in practicing law in the district court of Lincoln county. Laws 1917, c. 90, §1; In re Bailey, 50 Mont. 365, 146 Paċ. 1101, Ann. Cas. 1917B, 1198. Neither can it be questioned that in thus engaging in the practice he was guilty of contempt of this court. After full and careful consideration of the provisions of the statute on the subject, this was so decided in the Bailey Case, supra. We are entirely satisfied with the conclusion therein reached, and will not enter upon an examination of the subject again, STRUCTION-CONSIDERATION. CONPlaintiff, who agreed to furnish materials and construct pavement, and also to "pay to the city for so much base course stone now in TRACT-CONSTRUCTION. 352 CON Such contract bound the city only to furnish such rock as was on the drive, and not to furnish a certain amount. 3. CONTRACTS 108(2) LIC POLICY. - LEGALITY — PUB It is not contrary to public policy for a city contractor to agree that the determination of the materials used shall be left to the city engithe completion of the work and the amount of neer. 4. CONTRACTS 153-CONSTRUCTION. All of a contract must be taken together as the standard the parties have devised for the control of their relations. CONTRACTS 10(2)—MUTUALITY. Where contractor agreed to furnish materials and construct pavement, and to pay for stone on the drive which belonged to the city, for which work the city was to pay a certain amount, the contract was not unilateral, but was mutually obligatory. [2] The respondent assumes that the permission granted him by Judge Thompson to practice until he should be regularly admitted by order of this court ought to absolve him entirely from the charge of contempt, and hence that he should not be subject to punishment. It is sufficient answer to this suggestion to call attention to the fact that a district judge is entirely without authority to grant any one the privilege of appear-5. ing in the court over which he presides, to represent a client, unless he is a nonresident of this state, and has been admitted to prac tice in the highest courts of the state in which he resides, and then only upon motion of a member of the bar of this state. Permission may be granted such an attorney to appear and conduct a particular case, but not to practice generally for any length of time. Laws of 1911, p. 17, § 1. While, therefore, the error into which Judge Thompson fell in grant-termine the amount of materials used, and the ing respondent temporary permission to practice may be taken in palliation of the offense, it cannot be alleged as an excuse. It was respondent's duty to ascertain what his rights were; especially so as he was assuming to act as an officer of the law and thus to possess the qualifications necessary to protect and enforce rights of such persons as would 6. MUNICIPAL CORPORATIONS 358(3) -AC TIONS-PLEADINGS-SUFFICIENCY. Where a contractor agreed to furnish materials and complete paving, and further agreed that the city engineer should by certificate de engineer made such determination, the contractor could not recover a larger sum in the absence of allegations and proof of the engineer's fraudulent conduct or willful disregard of fair computation. Department 1. Appeal from Circuit Court, Multnomah County; W. N. Gatens, Judge. Action by the Elliott Contracting Company, a corporation, against the City of Portland. Judgment for plaintig in part, and defendant appeals. Reversed. By an agreement attached to its complaint and made part thereof the plaintiff, as contractor, convenanted with the city of Portland that the contractor, for the consideration hereinafter named, does hereby agree to furnish all material and perform all of the labor necessary or required for the construction and full completion of the macadam pavement and all neces sary trenches for storm water drains on that portion of the Hillside Parkway from Hamilton avenue entrance to Sheridan street, in full compliance with the plans and specifications therefor, which plans and specifications are identified by the signatures of the parties and are hereby made a part of this agreement except where said specifications are modified by this contract in which case this contract shall prevail and to complete said improvement and all work thereon in a skillful and workmanlike manner, and to the satisfaction of the council of said city, on or before the 1st day of June, 1914, at and for the unit prices following, to wit: Excavation other than in trenches: Solid rock Common Trench excavation: Solid rock Common Macadam pavement: culation the said officer of the defendant refused and neglected to allow plaintiff any of the sums herein specified on any of the items as herein set forth, and that the estimate and calculation of the said officer upon which sum was paid to plaintiff, as herein alleged, was erroneous, incorrect, and untrue in the particulars herein specified, and in that the officer representing $2.50 per cubic yard the defendant refused to rectify or correct the same. That thereafter the plaintiff attempted to have the said matter rectified by the city council of the city of Portland, but the said city council failed, neglected, and refused, and still fails, neglects, and refuses to allow this plaintiff for any of the items herein specified or to pay the plaintiff therefor." .40 66 66 66 .$2.50 .40 46 64 66 44 Materials, labor entire..$.50 "It is further understood and agreed by the contractor that it will pay to the city out of any money that may become due for the computed work embraced herein, for so much base course stone now in stock piles on the drive as may be incorporated into the pavement at the rate of $1.00 per cubic yard." The defendant's general demurrer to the complaint was overruled. It is unnecessary to recite the text or substance of the answer or reply because the sole contention of the city on this appeal is that the complaint does not state facts sufficient to constitute a cause The plans and specifications referred to in of action. The case was referred to a referee, the excerpt above set out are not in the rec-who reported findings of fact and conclusions ord before us. Whether they authorized the of law to the effect that the plaintiff was encity engineer to change the grade or excava- titled to recover $1,220.10, with costs and distion or any other detail is not made to ap-bursements. This conclusion was adopted by pear. The contract also contained this provi- the court, and judgment entered accordingly, from which defendant appeals. sion: "The city engineer of said city shall decide all questions which may arise between the parties hereto relative to the true intent and meaning of any of the provisions or stipulations contained in this contract, or the amount, quantities, character or classification of the work performed by the contractor under this contract, and his decision thereon shall be final and binding upon the contractor, subject only to modification or reversal by the council of said city." L. E. Latourette, of Portland (W. P. La Roche and Stanley Myers, both of Portland, on the briefs), for appellant. J. J. Fitzgerald, of Portland (Logan & Smith, of Portland, on the briefs), for respondent. BURNETT, J. (after stating the facts as above). [1] The argument against the comThe plaintiff alleges that it purchased from plaint is that the pleader does not state that the city 2,906 cubic yards of base course rock the engineer was actuated by fraud, or had at an agreed price of $1 per yard, but that the excluded items due the plaintiff to such an city wrongfully overcharged the plaintiff with extent as to indicate bad faith. In the first 3,814 cubic yards, the amount of such over-place we note that not all of the contract is charge being $908. It is further stated in the complaint that: "Defendant city as part of the consideration of said contract agreed to furnish plaintiff rock necessary for the base course of the said roadway at the agreed price of $1 per cubic yard for the construction thereof, and estimated that it had on hand approximately 5,000 cubic yards of such material; that the defendant city furnished to this plaintiff only 2,906 cubic yards of such base rock, and no more; the said city failed, neglected, and refused to furnish the balance of said base rock to plaintiff." It is further alleged in substance that the city engineer modified the plans and specifications so that plaintiff was compelled to purchase more base course rock than would otherwise have been required, amounting to an excess of $1,004.25. The plaintiff also claims for an overplus of second course rock, screenings, sand, and detritus, $3,330, and extra excavation from ditches $1,500, all of which, with the item of $908, amounts to $6,742.25, for which it demands judgment. The pleading concludes with this allegation: "That after the completion and performance of the said contract on behalf of plaintiff, the defendant, through the officer designated in said contract, inspected and accepted the work of this plaintiff and pretended to estimate and calelate the amount which plaintiff was entitled to recover therefor, but in the estimate and cal before us in that the terms of the specifica tions alluded to are not stated. Aside from that the exhibit attached to the complaint embodies the stipulation of the parties. It is said in that pleading that as part of the consideration of the contract the defendant agreed to furnish certain rock at a certain rate. This allegation cannot affect the actual stipulation which speaks for itself and is to be considered as containing all the terms of the contract. cannot import into the agreement any addiL. O. L. § 713. The plaintiff tional stipulation on the pretense that it is merely inquiring into the consideration. The provision which it would thus add is contractual in its nature and not merely monetary. The rule is thus stated in Sutherlin v. Bloomer, 50 Or. 398, 93 Pac. 135: contract consists of certain acts to be performed, "The consideration specified in the written and the authorities are practically unanimous in holding that, where the statement in the written instrument as to the consideration is of a consists of a specific and direct promise by one of tractual nature, as where the consideration conthe parties to perform certain acts, it cannot be changed or modified by parol or extrinsic evidence." See, also, Muir v. Morris, 80 Or. 378, 154 Pac. 117, 157 Pac. 785. [2] Referring to the agreement itself, it is plain that the city did not agree to furnish any particular amount of base course stone, but only so much as might be in the stock piles on the drive and should be incorporated into the pavement. At the very beginning of the instrument the plaintiff contracted to furnish all material and perform all the labor necessary, and the agreement of the city to put in whatever was in the pile adjacent to the way was a mere exception to the general duty imposed upon the contractor. As stated, the job was to be paid for on the unit principle, which would require a measuring of the work after its completion. It consisted of excavation and pavement for which the contractor was to be compensated according to certain fixed rates. This involved a determination of the amount, quantity, character, and classification of the work performed by the contractor, as completed. While it might be improvident for the plaintiff to agree that the measurement of its work should be left to the defendant's officer, we are not aware of any law preventing it from making such a stipulation. [3] It is not contrary to public policy, and if it chose thus to put itself at the mercy, so to speak, of the other contracting party's servant, it had a right to do so. It is analogous to instances where one person agrees to construct a certain piece of work to the satisfaction of the owner. It has been decided many times that in such cases the owner must be satisfied, except that he cannot withhold his satisfaction arbitrarily or fraudulently. The principle is thus stated in 9 Cyc. 620: "And as there is assuredly no law which prevents a person from making contracts of this kind, if he chooses, the courts should not hesitate to enforce them. The agreement is in short not to make or do a thing which the promisor ought to be satisfied with, but to make or do a thing which he is satisfied with. Such a contract may be one-sided in being dependent upon the caprice of one of the parties; it may be an unwise contract to make; but if it is entered into voluntarily, the promisee is bound, and can have no right to ask a court to alter its terms in his favor." [4] Some Illinois cases, not of the court of last resort, were cited by the plaintiff in support of its contention that the provision relating to the duty of the engineer in measuring the work lacks mutuality, and hence is void. A clause of the opinion of Mr. Chief Justice Ailshie in Nelson Bennett Co. v. Twin Falls Land & Water Co., 14 Idaho, 5, 93 Pac. 789, arguendo, is also noted, but in our judgment they are not expressive of the correct rule. The true doctrine is that all the contract must be taken together as the standard the parties have devised for the control of their relations to each other. There being nothing unlawful about it, they have a right to stipulate that either one of them or a third person shall bind the other by his deci [5] The contractor voluntarily undertook to work with the condition in question included in the agreement. It is not by the mark to say that the contract is unilateral. Almost every agreement contains terms which are to be performed only by one party, and not by the other. In a sense the covenants of one are not binding upon the other; but the contract is none the less mutually obligatory when considered, as it should be, in all its parts. The city agreed that its officer should decide all questions. It thus constituted that official its agent for that purpose, and hence would be bound by his action under the principle of "Qui facit per alium, facit per se." On the other hand, the plaintiff undertook the performance of the work on that condition, and cannot now be heard to complain in the absence of allegations tending to impeach the award on the ground of fraud or such reckless disregard of fair dealing as would amount to fraud. [6] The complaint really proceeds on the theory that the condition giving authority to the city engineer is a valid one, and complains of its violation; but it does not pretend to say that the officer did not rightly compute the number of cubic yards of excavation or the number of square yards of pavement in compliance with the stipulation for the payment of unit prices. Neither does it impute to the officer any fraudulent conduct or willful disregard of fair computation. In the absence of such allegations, the parties must be bound by the decision of the tribunal which they themselves have erected. Besides all this, the plain object of the complaint is by means of an action at law to set aside the award of the engineer acting as arbiter. That this cannot be so done was decided in Fire Association v. Allesina, 45 Or. 154, 77 Pac. 123, which ruling was approved in Cohn v. Wemme, 47 Or. 146, 81 Pac. 981, 8 Ann. Cas. 508, holding that the remedy lies in equity. That the contract is not unilateral or void is decided in Boston Store v. Schleuter, 88 Ark. 213, 114 S. W. 242, and Young v. Stein, 152 Mich. 310, 116 N. W. 195, 17 L. R. A. (N. S.) 231, 125 Am. St. Rep. 412. That the decision of the engineer is binding in the absence of fraud is determined in Dennis v. Willamina, 80 Or. 486, 157 Pac. 799. The same principle is laid down in Gerdetz v. Central Oregon Irr. Co., 83 Or. 576, 163 Pac. 980. See, also, Lanier v. Little Rock Cooperage Co., 88 Ark. 557, 115 S. W. 401, and Hatfield Special School District v. Knight, 112 Ark. 83, 164 S. W. 1137. It being competent for the parties to make a contract of the kind stated, leaving to the engineer the duty of measuring the amount of work done, and there being no allegation in the complaint sufficient to impeach the award thus made, that pleading does not state facts sufficient to constitute a cause of action. sustained, for which reason the judgment of the defendant, and that plaintiff Hazel Moythe circuit court is reversed. er was at all times ready, able, and willing to execute the deed as the wife of Moyer. MCBRIDE, C. J., and BENSON and HAR- The death of Moyer, the appointment of the RIS, JJ., concur. (88 Or. 509) ELMORE et al. v. STEPHENS-RUSSELL CO.* (Supreme Court of Oregon. March 26, 1918.) 1. ESTOPPEL 118-ESTOPPEL IN PAIS -EVIDENCE-SUFFICIENCY. In suit for specific performance of contract to purchase land, evidence held insufficient to support plea of estoppel in pais against defendant to refuse performance. 2. SPECIFIC PERFORMANCE REMEDY. 26-RIGHT TO Where plaintiff's intestate contracted to convey land to defendant, which was chiefly valuable for its timber, which was destroyed by forest fire, no payments having been made on the price and defendant never having had possession, plaintiff, as administrator, could not have specific performance of the contract. Department 1. Appeal from Circuit Court, Linn County; William Galloway, Judge. Suit by W. P. Elmore, as administrator of the estate of H. B. Moyer, deceased, and others against the Stephens-Russell Company, a corporation. Decree for plaintiffs, and defendant appeals. Reversed, and suit dismissed. This is a suit to compel the specific performance of a contract to purchase land. Plaintiffs are the administrator and the heirs at law of H. B. Moyer, deceased. The substance of the complaint is to the effect that on August 9, 1907, H. B. Moyer and the defendant corporation entered into a written contract as follows: "For and in consideration of the sum of one dollar ($1.00) to me in hand paid by the Stephens-Russell Company, a corporation, I hereby covenant and agree to sell and convey unto said Stephens-Russell Company all of the S. 1⁄2 of S. E. 4 of section 31 and S. E. 14 of Sec. 32, T. 14 S., R. 1 East, W. M., containing 240 acres, situated in the county of Linn and state of Oregon, for the sum of eight thousand five hundred dollars ($8,500.00) as soon as the title to said property can be perfected and all liens and incumbrances against same cleared away, and upon same being so cleared away I hereby agree to make, execute, acknowledge and deliver to said Stephens-Russell Company a good and sufficient deed containing general covenants of warranty and convey said property to said Stephens-Russell Company free from incum brances. 1907. "In witness whereof, I have hereunto set my hand and seal this ninth day of August, A. D. H. B. Moyer [Seal.] "The Stephens-Russell Company accepts same upon said terms and conditions. "Dated Portland, Oregon, August 9, 1907. "Stephens-Russell Company, "By C. S. Russell, Agent." That all the conditions of the contract were fully performed by Moyer prior to his death, which occurred on March 11, 1913, and said Moyer was at all times thereafter and until his death ready, able, and willing to convey said lands by a good and sufficient deed in all respects complying with the contract to administrator, and other formal facts are For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |