1. White Pine Shortage.-Defendants claim there is a considerable shortage of the 25,000,000 feet white pine estimate or representation. The option contained a gross price of $462,820, which was reduced some $40,000 at the execution of the contract. All statements, oral agreements, and differences must have merged in the written contract at the execution thereof. It was a contract in gross as to the property and timber, except as to logs cut and timber then manufactured for a gross sum of $419,445. The clause following the real estate description, "also all timber standing upon the real estate described in the list hereto annexed," does not designate any particular kind or quantity of timber sold, but all the timber standing on the real estate. Under defendants' theory we would be obliged to read something into the contract which is not there or we would be obliged to reform it. A reformation of the contract is not at issue here. The defendants had nearly completed the cruise at the time of the execution of the contract. If they were not satisfied with the showing of the cruise, it would have been a simple matter to have inserted a guaranty of 25,000,000 feet white pine, with an abatement clause as to price for a less quantity, as they did with the real estate, if such was the agreement.

In urging their case here learned counsel assume and invite the court to hold that the sole inducement for the trade on the part of plaintiff was that there was 25,000,000 feet of white pine stumpage, and that if the representation, if it be so called, is not sustained, that they are to be relieved of the burden of the contract. But the law must take a broader view of the transaction. It will consider the motive of the plaintiff as well as the motive of the defendants. Plaintiff had an established property. In a sense it was not a severable property. It was deeply in debt. We take it from the whole record that its object was to secure enough money or available credit through the intervention of a sale to relieve itself of its pressing necessities and a burden which might overcome it in the end. This is evidenced by the fact that there was but $10,000 in money to be paid to the plaintiff in the transaction. And giving consideration to the situation and purpose of the plaintiff as well as the situation and purpose of the defendants, and considering the whole transaction in the light of the option and the written contract which was made at a time when defendants knew, or might have known, through their own agents, the exact amount of white pine, it follows that defendants cannot recover without disregarding established rules of law and principles of equity which have come to be as inflexible as the law.

The judgment of the court below follows

write into it the qualification that this is the engagement of the parties only in the event that it is found hereafter that there is in fact 25,000,000 feet of white pine upon the land.

[2] We do not understand that courts can relieve a party to an improvident contract without reforming it upon some proper ground of reformation. It was not alleged that there was any fraudulent design or mutual mistake, or that defendant had no means of protecting himself from a misrepresentation, if made, or that the property was far distant and for that reason could not be investigated, or that plaintiff discouraged an independent investigation, or that defendant had no technical knowledge of the business of cruising lands, or any other ground that has heretofore been recognized as sufficient to sustain a rescission or reformation either in part or in whole.

The defendants were bright young men, and the father of one of the defendants had brought an attorney from Helena, Mont., to protect their interests. An attorney from Spokane represented both parties in drafting the contract, which had been redrafted three times before execution. Even though the 25,000,000 feet white pine representation induced the purchase, it is plain that defendants did not rely upon plaintiff's representation because they made an independent investigation by sending their cruiser to cruise the timber who had nearly completed the cruise at the time of the execution of the contract. In Shores v. Hutchinson, 69 Wash. 329, 125 Pac. 142, the court said:

"It is also manifest that the appellants cannot be heard to say that they relied upon any representations made by the respondents or their agents. They entered upon an independent investigation, and there is no evidence that they were prevented from pursuing it by any act of the respondents or of their agents."

Defendants had knowledge that the white pine would run far short of the 25,000,000 feet estimate previous to the execution of the contract, according to their cruiser's report, and cannot now complain that the guaranty of such quantity, under a stipulated system of measurement, was not incorporated in the contract. Cruisers' estimates are often unreliable, varying from 10 to 50 per cent., and cannot be considered as binding without such agreement. Evidently defendants were satisfied with the contract as it was drawn, when they signed it. At least they must be held to have been so satisfied.

[3] Where there is a sale in gross-that is to say, where the contract considered the property as a whole without any attempt to consider its elements, but for a total pricerelief will not be granted for shortage where the purchaser has investigated and estimated the property before sale.

[4] We cannot hold that the defendants relied on plaintiff's representation under the

and estimation of the property, although we should hold a misrepresentation had been made. The representation must be relied on, for otherwise it does not deceive, and hence does not constitute fraud. Sullivan v. Pierce, 125 Fed. 104, 60 C. C. A. 148.

[5] The trial court's finding No. 12, relating to value of white pine timber stumpage, and finding No. 13, to white pine shortage, were unnecessary for the judgment rendered and may be considered stricken.

2. 1913 Foss Contract.-Plaintiff alleges that the defendants refused to proceed with the 1913 contract after June 1, 1914, and that the plaintiff was therefore compelled to and did continue to carry out such contract, and that in so doing it was damaged. The trial court allowed them $1,523.20, being the aggregate of the commission item of $1,139.45 and the insurance item of $383.75. We think this was error. In any event, if the defendants had proceeded under the contract this amount under the contract would have been charged to the plaintiff finally. Thus it will be seen that the court erred in its finding No. 6 and in finding No. 20, debiting defendants with $1,523.20 damages on the 1913 Foss contract, and crediting them with "drop in grade of lumber inventory covered by 1913 contract, $2,683.64," which items should be stricken, there being nothing to support them. 3. 1914 Foss Contract.-We find, in referring to the contract, par. 2, that lumber and logs are excepted from the $419,445, and that a separate and distinct price was provided, and the trial court correctly found the logs to be of the value of $16,098.44, and that Foss & Co. had advanced to plaintiff $17,203.90, with interest, on these logs. Defendants in assuming this obligation are therefore entitled to a credit of $1,105.46, and a difference of $65.81 interest against plaintiff, or making a debit of $16,098.44 and a credit of $17,269.71. Defendants claim that these logs were included with the other property, and that $17,203.90, with $65.81 interest on Foss indebtedness, should be considered as a part of the $345,000 indebtedness mentioned in the contract; but we do not think so. This indebtedness was to be paid by the lumber sawed from the logs, while the $345,000 indebtedness was to be paid in money. This, however, is immaterial as to the outcome, if we conclude to give a money judgment in entirety.

4. Drop in Grade and Price of Lumber. There was in plaintiff's yard at the time the contract was made a quantity of fir and larch lumber on which no advances had been made, and against which there was no other lien except the general lien of all of plaintiff's indebtedness. This lumber was purchased by defendants to be inventoried and to be paid for at such price as plaintiff had agreed to sell like lumber to the Lakeside Lumber Company, less freight and 50 cents per thousand handling charges. Defendants' main

they claim that it ought to have been graded as No. 3 and better, instead of No. 1, 2, and 3, because the lumber was all intermingled in the piles, and that they would have to sell it as No. 3; but we believe that separation can easily be made at the time of shipment, and think the trial court was right on this proposition. This brings us to plaintiff's appeal.

Its assignments of error are (1) that the amount of judgment should be $97,828.26 and interest; (2) that plaintiff is entitled to a money judgment for the amount found payable at once, instead of a judgment providing that a part thereof shall be payable in the future, and evidenced by obligations of the defendants of the form set out in the judgment. What we have already, said will dispose of the first assignment, and we will therefore proceed with the second. The contract provided that from the purchase price shall be deducted the debts of the vendor existing, not to exceed $345,000, also $10,000 paid by vendees, and for the balance of the purchase price the vendor shall receive preferred stock of the corporation to be formed by vendees, with interest at 8 per cent., principal to be paid at the end of 10 years, etc. No time was provided when this stock security was to be delivered. The trial court found that it was intended that this preferred stock was to constitute an absolute promise to pay such sum on March 6, 1924, with interest from March 6, 1914, at 8 per cent. per annum, payable annually out of the net profits of the business of the defendant corporation, and that no dividends should be paid on the common stock until this obligation had been fully paid. The defendants failed and refused to deliver any preferred stock or any evidence of indebtedness as provided in the contract.

[6-8] Where property is sold, to be paid for at a future time, no suit can, as a general rule, be brought on the promise to pay until the time stipulated; but where the purchaser agrees to give security for the deferred payment, and fails to do so, a suit may be maintained for the breach of the agreement to give the security; and in such action the damages are the value of the security agreed upon, prima facie, and amount of the sum to be secured. Rinehart v. Olwine, 5 Watts & S. (Pa.) 157; Hanna v. Mills, 21 Wend. (N. Y.) 90, 34 Am. Dec. 216; Barron v. Mullin, 21 Minn. 374.

[9, 10] For the breach of an agreement to execute a promissory note payable in the future, damages may be recovered presently, and the amount for which the note was to be given will be the prima facie measure of such damages. Manufacturing Co. v. Klarquist, 47 Minn. 344, 50 N. W. 243; Deering v. Johnson, 86 Minn. 172, 90 N. W. 363; Bowman v. Branson, 111 Mo. 343, 19 S. W. 634.

We are of opinion that plaintiff was entitled to a money judgment in entirety. We

$452,538 59 The written contract of conveyance provided that the evidence of indebtedness should bear interest at the rate of 8 per cent. per annum from the 6th day of March, 1914. The plaintiff will recover judgment for $92,732.32, with interest at the rate of 8 per cent. per annum from March 6, 1914, until paid.

For the foregoing reasons the cause is remanded to the trial court for modification in conformity herewith. It is so ordered.

Neither party will recover costs in this

court.

(31 Idaho, 633)

WEISER RIVER FRUIT ASS'N V.

FELTHAM.

(Supreme Court of Idaho. June 22, 1918. On Suggestion of Diminution of the Record and Petition for Rehearing, Oct. 2, 1918. Rehearing Denied Oct. 22, 1918.) 1. APPEAL AND Error

384(1)—UNDERTAK

ING-SUPERSEDEAS-SUFFICIENCY.

An undertaking, stating that its purpose is to stay execution on appeal, and following Revised Codes, § 4810, which provides for undertaking for that purpose, will not be construed to include the $300 undertaking on appeal required by Revised Codes, §§ 4808, 4809. 2. APPEAL AND ERROR 395-APPEAL UNDERTAKING-PERFECTION OF APPEAL.

When the undertaking provided for by Rev. Codes, 4808, 4809, is not filed as therein provided, nor waived by the adverse party in writing, "the appeal is ineffectual for any purpose."

question as to whether such lump sum is to be regarded as a penalty or liquidated damages generally is determined by the intention of the parties to the contract. Where the question is not urged by either of the litigants, an appellate court will not, on its own motion, construe the contract, where it is one in which the parties might have agreed upon the lump sum as liquidated damages.

5. BREACH OF WARRANTY-FINDING of Jury -EFFECT ON DEFENSES.

The W. Fruit Association brought an action upon a written contract, wherein the quality of the article sold was guaranteed to be of certain grades. F. defended upon the ground of breach of warranty. The jury found there was no breach of warranty. Held, that all defenses and counterclaims for damages for breach of warranty fail. 6. EVIDENCE 222(2)—ADMISSION-EXAMINATION OF GOODS BOUGHT.

Where respondent and appellant entered into a written contract for the sale of apples described therein, and appellant at the trial contended that there was a breach of warranty as to the quality and grade of the apples, testimony on the part of respondent that appellant examined the apples before the execution of the contract, and expressed himself as satisfied with their condition, was properly admitted as tending to prove an admission on the part of appellant.

Appeal from District Court, Washington County; Ed. L. Bryan, Judge.

Action by the Weiser River Fruit Association against Lot L. Feltham. Judgment for plaintiff, and defendant appeals. Affirmed.

Lot L. Feltham, of Clarkston, Wash., and Harris & Smith, of Weiser, for appellant. Frank D. Ryan, of Weiser, for respondent.

BUDGE, C. J. This action was brought to recover the purchase price of apples sold by respondent to appellant under a written conhad been deposited by appellant with the tract, and to recover the sum of $1,000 which First National Bank of Weiser, to be forfeited as liquidated damages in the event he should fail to take the apples contracted for or to pay for them. Respondent recovered judgment for $1,908.65. This appeal is from the judgment.

[1] There is no written waiver of the undertaking on appeal in the record, nor does the record contain a certificate of the clerk that an undertaking on appeal in due form was filed, as required by Rev. Codes, 8 4821. The record on appeal must show that an undertaking on appeal in due form has been properly filed, or that the same has been waived in writing, or the appeal will be dis

3. PLEADING 362(2)-TERMS-MERGER IN WRITTEN CONTRACT.

It is not error for the trial court to strike from an affirmative answer matter reciting negotiations between parties prior to the execution of a written contract, and matter explanatory of the terms thereof, in the absence of ambiguity.

Pac. 173. The only undertaking appearing in the record, after reciting the recovery of the judgment and that appellant "has approvides as folpealed therefrom, lows:

"And whereas, the said appellant claims a stay of proceedings and is desirous of staying the execution of said judgment so appealed

When a deposit is made of a lump sum, to be paid in case of breach of the contract, the

Supreme Court of the state of Idaho: Now, therefore, in consideration of the premises and of such appeal, we, the undersigned, do hereby jointly and severally undertake and promise, and do acknowledge ourselves jointly and sev