BISSELL, J., (after stating the facts.) The rights of these parties are to be ascertained and settled by the terms of the contract entered into between Mark Bice, the appellant, and Benoni S. Greathouse, and the course of dealing between the several parties and Hover & Co., the appellees. It would not profit the profession to set out the contract, for it is not within the range of probabilities that any similar instrument will be submitted to the courts for construction and adjudication during the probable continuance of the legal profession. It will be deemed enough to state generally the conclusions at which the court has arrived concerning its proper interpretation. It consists of 15 paragraphs. Some of them, taken alone, would seem to make the contract one of sale of a stock of goods, and the transfer of the rights of Dr. Bice in the premises. Eliminating these provisions, and considering others alone, and it contains many of the elements of a contract of lease. The remaining provisions very clearly establish the contract to be one of a hiring. As a whole, it can scarcely be said to permit an interpretation which shall adjudge the agreement to be one of sale. The title to the drugs, to the fixtures, and whatever was connected with the store did not pass absolutely to Greathouse, but remained the property of Dr. Bice, and at the end of a year could be retransferred to him, or turned over into his possession, and, to the extent to which they were then in esse, would fully satisfy Greathouse's promise in regard to them. Evidently, this circumstance very conclusively demonstrates that in no proper and legal sense was there a sale of the property. It is likewise plain that it lacked many of the elements that are always to be found in a contract of lease. While the term appeared to be certain, and for a year, in fact it was only at the will of Dr. Bice, and subject to a performance of all the conditions with reference to the conductof the business by Greathouse. There was no specific rent reserved, nor can it be ascertained from the terms of the contract whether Bice was in reality the landlord leasing to Greathouse, or whether Bice himself was a tenant who sought to sublet the property, and whatever leasehold rights may have been attached to it, to the subtenant, Greathouse. In many other ways, were it necessary, it could be demonstrated that the agreement lacked many things ordinarily found in a lease, and essential to the creation of such an interest. When these difficulties are considered, and resort is had to two other provisions contained in the contract, it becomes evident that the only legitimate construction to be put upon the convention is that which determines it to be a contract of hiring. The first paragraph provides that Greathouse shall work and operate to the best of his ability the store referred to. The eleventh paragraph compels him to surrender possession whenever he shall contract debts in the purchase of goods beyond a specific sum, and also whenever he is found incapable from any cause to carry on the business without injury to it. By the fourteenth paragraph, they agree that Greathouse shall receive as a salary for doing the work incident to the management of the business a sum coequal with the profits, less certain deductions which were specifically provided for. It is our conclusion, then, that the contract, in reality, was one whereby Dr. Bice turned over the business to Greathouse, who was to run it in the interest of the doctor, at a definite wage, which would be determined by the success or failure of the enterprise. If this be true, the business remained the doctor's, and he would be liable for whatever indebtedness might be incurred in the purchase of goods and in its general transactions, unless he relieved himself from that liability by a definite notice to the persons with whom the store commonly dealt, or, in some way known to the law, such information was brought home to the vendors of the goods as would render it inequitable for them to hold the doctor liable for what they sold. The whole history of the transaction negatives any such conclusion. For upwards of a year prior to the time Greathouse was put in possession the store had been run either by the doctor himself, or under the name of Watson & Co.; and during all this time he held himself out as personally responsible for whatever supplies the store might procure, and he paid the bills as they accrued and matured. During this time he had been dealing with the appellees, Hover & Co., and buying and paying for the goods furnished by them. When Greathouse went into possession, he continued purchasing goods for the store, which was thereafter run in the name of the "O. K. Drug Store" in place of "Watson & Co.," which had been the previous form of its title. There is some controversy as to what information was given to Hover & Co., and whether they received notice that Greathouse was to be solely responsible for his purchases. Whatever might be our conclusion upon the record as to what the facts were, the verdict of the jury in favor of the appellees clearly settles all these controverted questions of fact against the appellant, Bice. Under our well-settled rule we cannot interfere with that finding and verdict, so long as it rests upon conflicting testimony which would warrant the jury to reach the conclusion. Without the aid of the rule, we should be disinclined to interfere, since it seems to be in full accord with the fair preponderance the testimony. According to the contract, and its fair legal result, the goods were really purchased by Greathouse as the agent of Dr. Bice. The attempt to change the condition of affairs, and to relieve Bice from the responsibility for subsequent purchases, was not successful, and he must be held liable both because of the legal agency and by reason of the course of the dealings antecedently had between the parties, and because the circumstances of the subsequent transactions were such as to warrant Hover & Co. in assuming and believing that Greathouse was Bice's agent. As to them, he was held out as such. They relied upon the responsibility of the supposed principal, who did nothing to relieve himself from liability, and he cannot complain when he is called on to pay for the goods. sory notes given for nursery stock. The case being an appeal from a justice of the peace, there were no written pleadings. The notes were put in evidence, and the plaintiff rested. The defendant was sworn, and gave testimony, and produced eight or ten witnesses, who also testified; but as to what they testified, and what the nature of the defense was, we are wholly uninformed. There is no bill of exceptions contained in the transcript sent up. The case was tried to the court, and resulted in a judgment of $100 and costs against the plaintiff for labor, loss of growth of the trees, damages, etc. From this we presume,-and it rests entirely in presumption,- the suit being between the original parties, that the defense was want of consideration, and that the defendant's judgment against the plaintiff was based upon the breach of some warranty, re signed, but their consideration is impossible, for want of data. It is ably urged in argument that the court erred in allowing parol evidence to overcome the absolute agreement to pay, contained in the notes. Judging from the result, we conclude such was not the course pursued, but that the defense was want of consideration, which is always available to a defendant while the note remains the property of the payee. The legal presumption always being in favor of the regularity and correctness of judgments, -with no means of knowing upon what the judgment for damages against the plaintiff was predicated, or what the evidence in support of it was,-the presumption must prevail in regard to its validity. The judgment must be affirmed. The appellant insists that the case should be reversed because of the inaccuracy of some of the instructions given by the court. To demonstrate the incorrectness of this contention would render it necessary to set out the instructions in detail, and review the entire evidence in the case. It is not deemed expedient to go to this extent. It is enough to state the conclusions of the court concerning the matters complained of. It might possibly be true that the instructions would be the subject of legitimate criticism if the hy-sulting in damage. Several errors are aspothesis assumed by counsel, that the contract between Greathouse and Bice was one of lease, was conceded. It will he observed that the court has already construed that contract to be one of employment. Under these circumstances, what the court said with reference to the change of possession in the property, the course of dealing between the parties, and the action which ought to have been taken by Bice in notifying Hover & Co. of the change, accurately expressed the law applicable to this controversy. This is likewise true of the instruction which told the jury what Hover & Co.'s duty was as to the inquiries which they ought to have made. Taking the instructions together, they put the case fairly before the jury, and could not have misled them as to any legal propositions on which they were entitled to legal information from the court. This disposes of these assignments of error, without reference to the attempt to save the exception in the record. Wherever an exception is necessary, and it appears as an addition to the bill prepared by the officers of the court, it ought not to be by a pencil insertion, as in this case; for it is too liable to erasure, change, and destruction. form should be permanent, and without the possibility of alteration. The record presents no errors which will permit this court to disturb the judgment, and it will accordingly be affirmed. (2 Colo. App. 157) The SIOUX CITY NURSERY & SEED 30. v. CARL- (Court of Appeals of Colorado. May 9, 1892. APPEAL-RECORD-PRESUMPTION. in the absence of pleadings or evidence, a judgment for defendant for damages in an action on a note will be presumed to be valid. Error to Otero county court; C. M BOMGARDNER, Judge. Action by the Sioux City Nursery & Seed Company against T. W. Carlton on a note. Judgment for defendant. Plaintiff brings error. Affirmed. A. F. Thompson, for plaintiff in error. Lucius P. Marsh, for defendant in error. REED, J. Plaintiff in error was plaintiff below, and brought suit on two promis (12 Mont. 242) O'DONNELL v. BENNETT et al. 1. A verdict which has some evidence to support it, and which the trial court refuses to set aside, will not be disturbed on appeal. 2. Under Laws 16th Sess. p. 168, providing that if, during a trial, where a jury has been drawn, it shall become necessary to summon additional jurors, such jurors may be summoned by open venire, a court is not obliged, before calling a case, to await the return of a portion of the regular panel, who may be out deliberating upon a case which has been previously tried, but a special venire may be issued. Dupont v. McAdow, 9 Pac. Rep. 925, 6 Mont. 227, distinguished. 3. The fact that a witness testifies differently from that to which he was expected to testify, does not entitle a party to a new trial upon the ground of accident and surprise, where the information that he would so testify was obtained before the trial, and the party was then as fully prepared to attack the testimony of the witness as he would have been on another trial. Appeal from district court, Silver Bow county; W. Y. PEMBERTON, Judge. Action by Charles O'Donnell against Nelson Bennett and others. From a judgment in his favor, but for an amount which it was claimed was too small, plaintiff appeals. Affirmed. Chas. O'Donnell, pro se. Geo. Haldorn and F. T. McBride, for respondents. A for consideration, but will take it as a fact that plaintiff was working for these defendants. The questions, then, for consideration are simple. The plaintiff testified, and supported his testimony by that of others, that he had cut and hauled 469,000 feet of logs, as set up in the complaint. On the other hand, E. E. Congdon, the agent and general manager for the defendants, testified that the amount cut and hauled by plaintiff was 246,112 feet. Congdon denied that this was done for the defendants, but we consider now only his testimony as to the amount. His testimony was supported by that of Bocarde. It is observed that 246,112 feet, at $4.75 per thousand, amounts to $1,169.03. We again find in the testimony of Congdon that the defendants paid O'Donnell, on Bocarde's order, $1,060.73, and that, with other payments made to O'Donnell, the total amount of credits was $1,169.03, which is the same amount as that obtained by multiplying the number of thousand feet which Congdon and Bocarde said he cut by $4.75 per thousand. Therefore, on this point, there is a direct and substantial conflict in the testimony. The verdict of the jury was for a larger sum than was shown by defendants to be due the plaintiff, even upon the theory that the defendants were the employers, and a smaller sum than was claimed by plaintiff. There was also a claim by plaintiff for $23 for hay and grain. Now, in this condition of the evidence, there is certainly evidence to support the verdict, and by that we mean evidence to support the finding of the jury that there was no more due to the plaintiff than they found, and a verdict in that condition, which the district court refused to set aside, will not be disturbed by this court. DE WITT, J. This action is one by plaintiff against the defendants, seeking to recover for cutting and hauling logs. question has arisen as to whether the action was upon a special contract or upon quantum meruit. Entertaining the view that we take of the case, a discussion of that matter does not seem to be required. The plaintiff alleges that he cut and hauled for the defendants 469,000 feet of logs at the price of $4.75 per thousand, amounting in all to $2,227.75; that of this amount the defendants have paid him $1,341.61, leaving a balance due of $886.14. The defense set up in the answer is that plaintiff did not cut or haul any logs for defendants, either for an agreed price or otherwise. The defense made upon the trial was that whatever work the plaintiff did, this work was done for one Thomas Bocarde. The situation, as the defendants claim, was that Bocarde was running a sawmill. That he was indebted to the defendants in a considerable sum. That defendants had a chattel mortgage on Bocarde's sawmill plant, to secure this sum; and that defendants, in order that Bocarde might operate his mill, and so make money to pay his debt to them, stood behind him to such extent as sureties, in this. that they guarantied persons dealing with Bocarde, and that plaintiff had his contract with Bocarde for hauling and delivering logs, and that defendants' only relation to the transaction was to guaranty plaintiff's pay from Bocarde, and that they actually paid him on orders issued by Bocarde. The plaintiff's position, on the other hand, was that Bocarde was simply a foreman or boss or manager for the defendants. On these lines the case was tried. The jury gave a verdict for plaintiff for $50, and also that two notes of $70 each, with accrued interest, given by plaintiff to defendants, (not connected with this transaction, however,) should be delivered up and canceled. Thus the verdict was for plaintiff for $50 and the cancellation of these notes. The plaintiff moved for a new trial. He took the ground that, although the verdict was nominally in his favor to the extent of this $50 and the notes mentioned, yet that it should have been for a larger amount, and therefore he was aggrieved in the verdict. There was a large amount of testimony, which was brought here in a voluminous record, as to whether it was a fact that plaintiff was working for the defendants or working for Bocarde. The fact that a jury found for the plaintiff in any sum is evidence that, if the verdict were a logical one, by necessity the jury must have found that plaintiff was working for defendants. That finding-that is, being a finding implied by the general verdict-jury law, and among other provisions enhas not been attacked. Defendants did not move for a new trial, and plaintiff, of course, does not attack that finding, because it is the only view of the case upon which he could recover at all. It is not necessary to inquire what view the court would have taken if a motion for a new trial had been made on the ground that the verdict was not supported by the eviJence in this respect. As the case is now before us, we have not that proposition The appellant also raises another point. It appears that when this case was called for trial a portion of the regular panel of jurors had been impaneled in a case tried just previous to this one, and upon the call of this case those jury men were out, deliberating upon a verdict in the case upon which they were sitting. The plaintiff demanded the full panel from which to select a jury for the trial of this case, claiming that he was entitled to have the names of these absent jurors also in the box to draw from. The court, however, issued a special venire for 12 jurors. The plaintiff bases his exception in this behalf upon the cases of Kennon v. Gilmer, 4 Mont. 433, 2 Pac. Rep. 21; Wykoff v. Loeber, 5 Mont. 535, 6 Pac. Rep. 363; and Dupont v. McAdow, 6 Mont. 227,9 Pac. Rep. 925. But since the decision of those cases the legislature on March 14, 1889, (Laws 16th Sess. p. 168,) amended the acted as follows: If during the progress above. In a busy term of court, when one trial follows another at once, if each trial must await the return into court of the jury that may be out deliberating upon a case, the court would find itself without occupation, often for long periods of time. It is apparent that this is the condition of affairs that was intended to be remedied by the legislation above quoted. We are of opinion that the forced absence of jurors, as appeared to be the case when this trial was opened, was just such a necessity as this statute was intended to remedy, and that the district court committed no error in issuing the special venire. The notice of motion for a new trial also states one of the grounds as accident and surprise and newly-discovered evidence. The appellant has not called our attention to this matter in his brief, and barely mentions it upon the argument. It is apparent that he did not rely strongly upon this point. It is entirely clear that the alleged newly-discovered evidence, even if it could be called such, is simply cumulative. The allegation of accident and surprise consists simply in this: that one witness testified contrary to that which plaintiff expected. That this witness so testified is set up in the affidavits of plaintiff and Jack Ryan and W. H. Reed. All of these affiants were within reach of the plaintiff on the trial, and their alleged information that this witness would testify to a different state of facts than that which he did was obtained before the trial. If the plaintiff could successfully, or at all, attack the testimony of a witness on a new trial, he was just as fully prepared to do it on the former trial of the case. This is not such accident and surprise as will warrant a court in granting a new trial. In accordance with the views above expressed, the judgment of the distict court, and the order denying a new trial, are affirmed. BLAKE, C. J., and HARWOOD, J, concur. (4 Wash. 199) PRIGNON v. DAUSSAT et al. (Supreme Court of Washington. April 30, 1892.) DELIVERY OF DEED-VALIDITY-CONSIDERATION— FRAUDULENT CONVEYANCE. 1. Where a grantee drafts a deed, and sends it to the grantor to sign, with instructions to have it recorded, the grantee thereby constitutes the recorder her agent, and a delivery by the grantor to the recorder is valid. 2. Where land is conveyed to an intended wife, "in consideration of the promise of the said party of the second part to marry" the grantor, the deed is supported by a sufficient consideration, though the original promises were not in writing, since the grantee is bound by the recitals in the deed. 3. The fact that after the conveyance, but before marriage, the grantee discovers that the deed was made by the grantor in fraud of his creditors, does not affect her title. Appeal from superior court, Skagit county; HENRY MCBRIDE, Judge. Action by Josephine Prignon against L. P. Daussat and Augustine Carran to set aside a deed alleged to have been made in fraud of creditors. Judgment for defendants. Plaintiff appeals. Affirmed. Tustin, Gearin & Crews, for appellant. Brady & Schaefer, for respondents. HOYT, J. This action was brought by appellant to set aside a deed made by the respondent L. P. Daussat to the other respondent. It is conceded that the grantee had no knowledge that the grantor was indebted to any one until long after the execution and recording of the deed, and that the deed in her hands, if otherwise supported, cannot be affected by any fraudulent intent which may have moved the grantor to the making of the same. Appellant, however, attacks the deed upon two gounds: First, that it was never delivered to the grantee; and, second, that it was purely voluntary, being supported by no consideration whatever. As to the first question, the conceded facts show that, in accordance with a prior arrangement with the grantor, the grantee caused the deed to be prepared, and sent to the grantor, with instructions for him to execute the same, and have it recorded immediately. Under these circumstances, was the delivery to the auditor for record a delivery to the grantee? Many cases have been cited by the appellant to show that a delivery to a third person, without the knowledge or direction of the grantee, is not a good delivery, and for the purposes of this case this may be conceded to be the law. We have examined all the cases cited by the appellant, and fail to find a single one among them that goes further than we have above indicated. In the case at bar, however, there was not only a delivery by the grantor to the auditor under such circumstances as clearly showed his intent to give the instrument force, but such delivery was in compliance with the prior instructions of the grantee, and under these circumstances, for the purposes of such delivery, the auditor became the agent of the grantee, and a delivery to him gave the deed full force. As to the next question, the facts shown by the record are that long prior to the making of the deed in question negotiations had been in progress between the parties thereto looking to a marriage between them. More than a year before such execution the grantor in said deed had asked of the grantee her hand in marriage, but the grantee had refused at that time to enter into a contract in relation thereto, on account of the want of visible means of support for a family in the hands of the grantor. Some time after this, by reason of the death of a relative, the grantor became the prospective owner of property, including that in question; and upon his suggestion of this fact to grantee, and an agreement on his part that as soon as his title to the land in question was perfected he would deed it to her, she consented to enter into a contract of marriage with him, and did enter into such contract. Some time after this, the grantor's title having been perfected, he wrote the grantee to that effect, and inclosed to her the probate proceedings showing title in him. Whereupon she at once took the papers to her attor ney, and caused to be prepared a draft of a deed which she sent the grantor, with instructions for the execution and delivery as hereinbefore stated. At that time, as we have seen by the conceded facts above stated, the grantee in said deed had no knowledge whatever of any circumstances which would make the execution of such deed on the part of the grantor fraudulent as to him, and the sole question is as to whether or not, as between the parties thereto, there was any consideration for the execution of said deed. That the contract of marriage is a good consideration for a deed made on account thereof is unquestioned. Such a contract has been held not only to be a good consideration, but a valuable consideration of the highest nature. Two objections, however, are raised by appellant as against this marriage contract as a consideration for the deed: (1) That it was not in writing, and therefore void under the statute of frauds; and (2) that, be-. fore the marriage relation was entered into in pursuance of said contract, knowledge of the fraudulent intent of the grantor was brought home to the grantee. As to the first objection, we may concede it to be as contended for by appellant, and yet, as we view the facts, the circumstances of this case do not bring it within the objection urged. As we view it, this contract of marriage was in fact reduced to writing. It is true that it was not so reduced as to bring it strictly within the rule for the execution of such contracts, but we think it came substantially within such rule; for while it is true that there was no memorandum of agreement signed by the party to be charged, yet we think there was a sufficient recital of such contract in the deed to show a written contract; and that under the circumstances under which said deed was prepared, and sent by the grantee to the grantor for execution, she became bound by such recital. This, we think, would be true if the provision in relation to such contract was a recital pure and simple, as, under the circumstances above stated, we think a court should hold the grantee bound by all the recitals in the deed. But the statement relating to said contract in this deed is more than a simple recital. It is stated as a part of the consideration for the deed, and is substantially as follows: "For and in consideration of the love and affection which the said party of the first part has and bears unto the said party of the second part, as also for the better maintenance, support, protection, and livelihood of the said party of the second part, and in consideration of the promise of the said party of the second part to marry him, said party of the first part does by these presents give." That this memorandum clearly evidenced an agreement of mar riage on her part in consideration of making the deed on his part is beyond question; and, if such memoranduni had been signed by her, there could be no doubt but that the statute of frauds had been complied with; and, as we have seen that her relations to such statement were such as to make it equally binding upon her as though she had signed it, it follows that there is a sufficient statement When of the consideration for said deed. this deed was delivered, then it was supported by sufficient consideration, and was binding, not only as between the parties thereto, but as to all the world. Was the fact that the grantee therein became aware of the fraudulent intent of the grantor before she had actually com. plied with her contract of marriage by the consummation thereof sufficient to avoid the deed? No case has been cited going to this extent; on the contrary, several cases have been cited which seem clearly to establish a contrary doctrine. See Smith v. Allen, 5 Allen, 456, in which it was decided that, though the marriage was prevented by the death of the grantor, yet the deed remained good in the hands of the grantee. What is the consideration for a deed made under such circumstances? We think it is the agreement to marry, and that if the agreement is entered into in good faith, and under such circumstances as to bind the party, and the deed is executed in consideration thereof, the transaction is complete, and the deed will be unaffected by anything that may happen thereafter. If the grantee refuse to carry out her contract, the grantor has his remedy, the same as he would for the violation of any other executory agreement. It would not do to hold that the grantee should, without fault on her part, be deprived of the benefits of her contract. For some nonths, and in principle it may as well have been for some years, the grantee had been bound by her agreement to marry, entered into in perfect good faith and for a valua ble and proper consideration. To hold that because she afterwards learned of some fact that showed a fraudulent intent on the part of the grantor she should be deprived of the benefits of a contract which during its existence, if she at all observed the proprieties of the relation thereby established, practically prevented her from taking any steps looking to the formation of a marriage relation as between herself and any other party, would, to our minds, be unjust in the highest degree. Naturally, during the continuance of this contract, the associations between the parties were very intimate, and the affections may have become so involved that to break off the relation would destroy the happiness, and perhaps the health, of the parties thereto. If the argument of appellant were to prevail, the innocent party must refuse to carry out a contract upon which her heart has become fixed, or enter into the same without any such safeguard as her prudence had thought it necessary to provide for. It is impossible to place the parties in the condition they were in before the execution of the deed; and, as the innocent party cannot be put in statu quo, she cannot be compelled to surrender the fruits of her bargain. But it is not necessary to enlarge upon the question. As we view the law, it is the contract to marry, and not the marriage itself, which is the consideration which supports the deed; and this being so, if at the time the deed is made the contract to marry for which it is given is a binding one between the par |