forcing that liability, and that such remedy only could be pursued, and that the courts of Illinois would not enforce a statutory liability under a Kansas statute providing a special remedy against stockholders. Following this opinion is a decree of affirmance by the supreme court of Illinois, after which comes a petition for a writ of error from this court and an allowance thereof. This completes the record.

It will be seen that there are no pleadings in the record; no evidence is returned; no exceptions to any decision of the court are to be found; no request to the court to find upon any federal question; no refusal of the court to find, and no finding upon, any such question. Thus, there is an entire absence in this whole record of any fact showing that the supreme court of Illinois, or either of the lower courts, decided any federal question whatever. The assignment of errors alleged to have been made by the Illinois supreme court is unavailable for the purpose of showing any federal question decided, where the record itself does not show that any such question was passed upon by the state court. Railway Co. v. Fitzgerald, 160 U. S. 556-575, 16 Sup. Ct. 389-393.

Where a case is brought to this court on error or appeal from a judgment of a state court, unless it appear in the record that a federal question was raised in the state court before the entry of final judgment in the case, this court is without jurisdiction. Simmerman v. Nebraska, 116 U. S. 54, 6 Sup. Ct. 333.

It has also been frequently decided that, to give this court jurisdiction on writ of error to a state court, it must appear affirmatively, not | only that a federal question was presented for decision by the state court, but that its decision was necessary to the determination of the cause, and that it was decided adversely to the party claiming a right under the federal laws or constitution, or that the judgment as rendered could not have been given without deciding it. Eustis v. Bolles, 150 U. S. 361, 14 Sup. Ct. 131; Powder Works v. Davis, 151 U. S. 389-393, 14 Sup. Ct. 350-351; Railway Co. v. Fitzgerald, 160 U. S. 556-576, 16 Sup. Ct. 389-394.

Nothing of the kind appears from this record, and the writ of error must therefore be dismissed.

(164 U. S. 261)

OLD JORDAN MINING & MILLING CO. v.
SOCIETE ANONYME DES MINES
DE LEXINGTON.
(November 30, 1896.)
No. 71.

CONTRACT-EVIDENCE-QUESTION FOR JURY. Plaintiff wrote to defendant, its co-tenant of a water ditch, suggesting that necessary repairs be made, and the ditch thereafter kept in good condition, each party paying one-half the expense. Defendant answered, approving the suggestion, and stating that it would direct its engineer to co-operate with plaintiff or his agent, and determine and report what repairs v.17s.c.-8

were needed. The ditch was examined on different occasions by the agents of the parties acting in concert, and repairs were made by plaintiff during several years, one-half the expense for the first year being paid by the defendant. Statements of the subsequent repairs were regularly sent to defendant, who acknowledged their receipt, and at no time dissented to plaintiff's action, nor disclaimed liability for its share of the expenses. Held, that the questions whether the first two letters were treated by both parties as embodying a contract relative to such repairs, and whether plaintiff was justified in believing that defendant would pay its share of the expenses, were properly submitted to the jury. 35 Pac. 492, affirmed.

In Error to the Supreme Court of the Territory of Utah.

This was an action originally brought in the district court for the Third judicial district of the territory of Utah by the Société Anonyme des Mines de Lexington, a French corporation, against the Old Jordan Mining & Milling Company, to recover one-half the expense of certain repairs made to a canal or water ditch owned by them in common.

The complaint alleged: That since the month of March, 1883, these parties had continuously been tenants in common, owning an equal, undivided interest in a certain canal, known sometimes as the "Galena," sometimes as the "Old Telegraph Canal," and sometimes the "Old Jordan Canal," together with the right of way and adjacent lands. That between the 22d of October, 1883, and November 5, 1883, they entered into a contract in writing, in which it was agreed that they would make repairs, etc., and that each should pay one-half of the expense thereof. That in the year 1884 the plaintiff made certain repairs, of the value of $993.93; in 1885, of the value of $4,025; in 1886, and until June, 1887, $4,826.95; and in 1887, from June 30th to December 31st, $500,aggregating $10,345.88, for its share of which a statement or bill of items was furnished to the defendant. That the said defendant, on the 31st of December, 1884, paid to plaintiff $496.96, its half of the amount expended in 1884, but failed to pay its half of the other expenses incurred as aforesaid, leaving a balance due of $4,675.98, for which judgment was demanded.

An answer was filed, specifically denying the several averments of the complaint; and subsequently an amendment was made, alleging that from the 1st of January, 1885, plaintiff had appropriated to its own use, without defendant's consent, all the water flowing through said ditch or canal, and that the reasonable value of that portion of the said water owned by defendant was $10 per day. The answer also made other allegations, not necessary to be considered as the case was presented to this court.

In support of the contract alleged in the complaint, plaintiff put in evidence the following letter, written by its manager to the manager of the defendant under date of Oc-. tober 24, 1883:

"Dear Sir: During my present stay in this*

city, for the purpose of investigating and inspecting our different pieces of property in this territory, my attention was particularly called to the bad state of the Jordan water ditch, which your and our companies own jointly. Considering that it is for our mutual interest to see that this property should be kept in proper shape, I beg you, in the name of your company, if you do not judge that it would be advisable, while I am here, to have an understanding regarding this matter. I suggest that the necessary repairs should be done at once, and that hereafter the ditch should be kept in good condition, both companies paying their share of the incurred expenses.

"Will you please be kind enough to give this matter your prompt attention, and favor us with an immediate reply, as I shall remain here only until the 15th of November." To this letter the defendant's manager made the following reply:

"Cleveland, O., Oct. 30th, 1883. "Mons. Eng. Renevey, l'Administrateur Délégué de Société des Mines de Lexington: Your letter of 24th inst., in regard to the necessity of entering into some arrangement for repairing and preserving the Jordan water canal, owned by your company and the one I represent, is rec'd. I agree with you that it is for our mutual interest that this property should be kept in good order, and I shall be pleased to join you in a reasonable arrangement for the purpose of protecting the property from decay, and I am very glad to find a gentleman willing to co-operate in a business way for the protection of our mutual interests. Your suggestion that the needed repairs should be done at once, and that each company pay its share of expense, and also for care for the future, is right; and I will direct Mr. Van Deusen, our engineer, to co-operate with you, or any one you may delegate, to examine the property and report what repairs are necessary, and the cost of the same. He is a very trustworthy and capable man, and I think you will find it for our mutual advantage to act under his judgment, and let him make the repairs. As neither of us are using the water at present, I would think it best to expend only so much as is necessary to prevent loss, and then, when we are ready to use the water, then we make permanent improvements. If you do not have time to go into details before you leave, will you please leave the matter in the hands of some one who will co-operate with me and Mr. Van Deusen, unless you are willing to bave him do it, and each company pay one-half the expense.

"I make this suggestion because I think Mr. Van Deusen can do the work satisfactory to both.

"Regretting that my absence from Salt Lake prevents me from a personal consultation with you, I am."

Other correspondence and evidence were introduced, which are fully set forth in the opinion of the court.

The case was tried before a jury, and a verdict rendered in favor of the plaintiff for the sum of $6,028.76, upon which a remittitur was filed of $12.35, and judgment thereupon entered in the sum of $6,016.41.

Upon appeal to the supreme court of the territory, this judgment was affirmed. 9 Utah, 483, 35 Pac. 492. Whereupon defendant sued

out a writ of error from this court.

L. T. Michener, for plaintiff in error. J. M. Wilson, for defendant in error.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.

1. As the only error urged in the court below, or noticed in its opinion, turns upon the alleged insufficiency of the proof of the contract set up in the complaint, we shall confine our consideration of the case to that point, notwithstanding that other errors are assigned in this court, and, to some extent, noticed in the brief of the plaintiff in error. We have repeatedly held that the failure to present and insist upon errors* assigned in the court below constitutes an abandonment or waiver of all the errors so assigned, not vital to the question of jurisdiction or the foundation of the right; and this court can only be called upon to consider such assignments as are pressed upon the attention, or noticed in the opinion of the court below. If the action of the court below were correct as to the errors insisted upon as ground for reversal, none others will be considered here. Railway Co. v. Warren, 137 U. S. 351, 11 Sup. Ct. 96; San Pedro & Cañon del Agua Co. v. U. S., 146 U. S. 136, 13 Sup. Ct. 94.

2. From a perusal of the correspondence set forth in the statement of facts, it will appear that plaintiff's introductory letter contained the following propositions: (1) That the company should come to an understanding with regard to the keeping of the ditch "in proper shape"; (2) that the necessary repairs should be done at once; (3) that thereafter the ditch should be kept in good condition; (4) that both companies should pay their share of expenses. In its reply the defendant agreed (1) that it was for their mutual interest that the property should be kept in good order, and that it would be pleased to join the plaintiff in any reasonable arrangement for the purpose of protecting it from decay; (2) that it approved of plaintiff's suggestion that the needed repairs should be done at once; that each company should pay its share of expenses, and also for its care in the future; (3) that it would direct Mr. Van Deusen, its engineer, to co-operate with the plaintiff, or any one that plaintiff's manager might delegate, to examine the property, and report what repairs were necessary, and the cost of the same; (4) that, as neither party was using the water at present, the writer thought it best to expend only so much as would prevent loss, and that when they were ready to use the water they would make permanent improvements; that plaintiff should

leave the matter in the hands of some one who would co-operate with the writer of the letter and Mr. Van Deusen, unless plaintiff were willing to have Mr. Van Deusen do it, and each pay one-half the expense.

Conceding, for the purposes of the case, that this correspondence, standing alone, did not contain a completed understanding for the repair of the property,-at least, beyond such repairs as were immediately necessary,-it evidently was of such a character as to lead the plaintiff to believe that any arrangement it might make with Van Deusen, the engineer, for such repairs as were necessary to prevent loss to the property, would be respected by the company.

Upon the receipt of defendant's answer, plaintiff proceeded to make certain repairs, and on September 24, 1884, addressed a letter to Van Deusen, stating that the expenses upon the canal for the eight months immediately preceding amounted to $643.85 (giving the items), and requesting him to remit one-half the amount. There was also evidence tending to show that the repairs had been made after a visit to the canal by Van Deusen and Lavagnino, an agent of the plaintiff company, when Van Deusen asked the latter to report to him what he thought would be necessary to be done, and that they agreed upon the work; that after receiving the letter of September 24, 1884, Van Deusen said that Mr. Holden, the manager of the company, would be there pretty soon; that he was acting under Holden's instructions; and that it would be best to wait until he came. On December 14, 1884, plaintiff wrote to Holden, the manager of the company, stating that the total expenditure for the year had been $993.93, and that the officers of his company desired to ask his cooperation "towards making, next spring, substantial repairs on the canal, so as to bring it up to usefulness," and also "towards making all titles about the canal clear, and to proceed against trespassers." On December 31st defendant paid one-half of the bill for that year, but made no comments upon the propositions contained in the plaintiff's letter.

There was also evidence tending to show that in the spring of 1885 Mr. Lavagnino examined the canal with Mr. Van Deusen, in order to ascertain what repairs were absolutely necessary and urgent. As Mr. Lavagnino says: "We made an estimate. He told me that he would send the estimate to his company, and I would send the same estimate to my company. These estimates were made because we were waiting for Mr. Holden. Mr. Van Deusen said that, according to the instructions he had last year, he would have no objection, but that I remembered what Mr. Holden said last year, that he paid the bill, and that he didn't care to take any responsibility, but he would let Mr. Holden do it himself. * * He was telling me all the time that he would be here very soon. This conversation was in the latter part of March, 1885."

On August 27, 1885, Lavagnino addressed Holden a note calling his attention to the canal, stating that in the spring he had Van Deusen with him along the canal to see what repairs were indispensable, in order to risk a little water in it, and to prevent a total ruin of it; that the expenses run at about $2,000,-and saying that he would be able to present him a statement, and hoped that he would approve the same in behalf of the defendant. He also expressed the wish that he would like to have Mr. Holden inspect the canal, to satisfy himself that he had done the most-needed things for its protection, and to get his opinion "about the probable expenses for keeping up the canal to even its present low condition, and to define in a sure way how far you think it right for the Old Jordan company to stand the French company by."

On September 1st he sent him a statement of what he had paid during the last six months, amounting to $2,204.23, and asking for its proper contribution from the Old Jordan Company.

Here, at least, was a distinct and unequivocal notice that repairs had been made, and that the plaintiff looked to defendant for a proportion of the cost. In view of their previous correspondence, defendant could have had no doubt that such repairs were made upon the faith of the letters that had passed between them, and, if it did not intend to be bound, it was its duty to repudiate the bill at once, and give notice that the repairs were unauthorized. Instead of this, however, Mr. Holden on September 2d promptly acknowledged the receipt of the statement; said that the owners were expected early in the month, and desired them to examine the canal with him, and decide the matter, both for the present and for, future expenditures; and suggesting that, as tenants in common, it was best for them "to* agree upon some line of policy by which either party should be allowed to expend money on the property, and thus bind the other to payments."

On November 19th he wrote to him again, desiring him to make a complete statement of the expenditures made during the last year, which had been necessary for the protection of the canal, and send them to him at Cleveland. He said that the owners had been opposed to spending any more money than was absolutely necessary for the protection of the canai; that, when the Jordan Company was ready to use it, they would make improvements and repairs; and that he was quite certain the company would be disposed to do whatever was equitable.

On February 10, 1886, Lavagnino addressed a letter to Mr. Holden, at Cleveland, inclosing a statement of the total expenditures upon the canal during 1885, which amounted to $4,025; stating that most of these expenditures had been necessary for the protection of the canal, and that the expenditures.

were either evidently Indispensable, or were considered as necessary by Mr. Van Deusen and himself.

To this Mr. Holden replied on February 16th, stating that he was pleased with the fair and candid statement made with regard to the expenditures; that he would submit them to the board for consideration, and felt sure they would be acted upon in an equitable manner. The letter further stated that the board did not desire to spend any more money than was absolutely necessary to protect the canal and save larger expenditures in the future; that if they were using the water, or contemplated its immediate use, they would have no hesitation in joining in any judicious expenditure; that "it was the hope of the management of our company that you would be willing to make such expenditures upon the canal as in your judgment would seem to be best, and that you should report the same to us from time to time; and that, when we should be ready to use the water, that we should expend for the benefit of the canal a like amount, or, in case we should find it at that time in such good repair that it were not necessary to expend as much money as you had expended, that we should then pay to you the half of these expenditures made by you, as indicated in your different letters up to the 10th inst., less, of course, at any time, the amounts which we should expend upon the canal."

The next letter was not written until July 30, 1887, and in this Mr. Lavagnino states that the expenditures upon the canal property during the year 1886 and the first half of 1887 had been $4,826.95; that, in his opinion, the work had been necessary for the protection of the canal property, and that whatever value there was in it at present was "mainly due to the perseverant attention bestowed upon it during the last four years"; and that he was willing to settle by arbitration any difference between them. He also gave a list of all the expenses put upon the canal as common property, which amounted to $10,745.88, and asked him to settle for his share of the expenses.

A further letter was written on February 6, 1888, stating that the expenses for the last half of 1887 had been $500.

A reply was made to this letter by Mr. Van Deusen on February 11, 1888, acknowledging the receipt of the statement of February 6, 1888, and asking him to forward him a completed statement of his account against the Old Jordan Company, that he might report the same to the owners, and demanded that the statements show how and where each item of expense was applied, that they might be assured that such application was made for the protection of the property only.

To this Mr. Lavagnino replied under date of February 14th, sending copies of state

ments rendered to Mr. Holden, promising to give any further details required, and requesting a settlement of the account within ten days.

This letter completed the correspondence. In this connection the court charged the jury as follows: "If you believe from a preponderance of the evidence that the contract was made as alleged, as I have stated it to you, and that the plaintiff made the repairs during the time specified, and that the repairs were necessary to the preservation and protection of the property, and that the defendant has been requested to pay, and has refused, then you should find for the plaintiff the amount of such one-half of expendi-* tures." It further charged that, if the defendant were liable under the contract, it was liable only for the reasonable and necessary expenditures to preserve and protect the property, and that such expenditures must have been made for the benefit of the common interest of both parties to preserve and protect them.

We see no reason to doubt that the case was properly submitted to the jury. In determining whether there was a binding contract between the parties arising from the letter of the plaintiff of October 24, 1883, and the answer of the defendant thereto, the jury were at liberty to consider, in connection with those letters, the subsequent correspondence and the conduct of the parties in respect to the common property, and the interpretation put upon them by the parties themselves. Not only was the canal visited and examined by the agents of both parties acting in concert, but from the beginning to the end of the correspondence there was no refusal to co-operate on the part of defendant, no disavowal of an agreement between them, nor any expression of dissent as to the propriety of what had been done towards the preservation of the property. It is true that the defendant was not making use of the canal, but its preservation from ruin was an object of as much importance to one party as to the other. The conduct and letters of the defendant were such as to justify the plaintiff in believing that the repairs that it was making to the canal were assented to and approved of by it, and it was at least a question for the jury to say whether the plaintiff was not justified in believing that the defendant would pay its proportion of them, and whether the two first letters were not treated by both as embodying the arrangement between them.

We see no error in the record of which the defendant is entitled to complain, and the judgment of the court below is therefore affirmed.

Mr. Justice PECKHAM was not present at the argument, and took no part in the decision of this case.

A

1. Where the court has authority under statute to enter judgments of peremptory nonsuit, and plaintiff's evidence is not sufficient to entitle him to a verdict, it is not error to order a nonsuit against his will.

2. Where a bond is given for the performance by a vendor of a contemporaneous contract of sale, referred to in, and so made a part of, such bond, stipulations in the contract as to the times of making payments and of delivery of the conveyance will control repugnant provisions in the condition of the bond. 34 Pac. 51, 9 Utah, 260, affirmed.

3. A vendor gave bond with sureties for the execution and delivery of a deed to the vendees on or before October 1, 1890, dependent upon performance by the vendees of their part of the contract of sale, which was made a part of the bond. By this contract payments were to be made by the vendees on October 1st, and at specified times thereafter, and the conveyance was not to be made until the whole of the purchase money was paid. Held, that failure of the vendees to make, on October 1st, the payment stipulated to be made on that date, released the sureties on the bond. 34 Pac. 51, 9 Utah, 260, affirmed.

4. Where a bond by a vendor for the execution of a deed on a certain date is made dependent on payment by the vendee of an installment of the purchase price on that date, the fact that the vendor may not be able to give such a deed as is called for by his bond does not release the vendee from the duty of making or tendering payment, if he elects to enforce the contract.

In Error to the Supreme Court of the Territory of Utah.

Eugene W. Coughran and Nathan H. Cottrell filed their amended complaint in the district court of the First judicial district of the territory of Utah on December 15, 1891, against Henry C. Bigelow and H. P. Henderson, showing that on April 26, 1890, E. A. Reed and H. H. Henderson, as principals, and the defendants as sureties, executed and delivered to the plaintiffs a bond conditioned for the performance of a contract on the part of the said principals to convey to the plaintiffs an interest in certain lands situate in Weber county, in the said territory; alleging that the said principals had failed to perform the contract, and seeking, on account of such alleged breach of the condition of the bond, to recover the amount of the penalty thereof from the defendants.

The bond was as follows:

"Know all men by these presents: That we. E. A. Reed and H. H. Henderson, principals, and H. Bigelow and H. P. Henderson, as sureties, all of the county of Weber, territory of Utah, are held and firmly bound unto Eugene W. Coughran and Nathan H. Cottrell, of Sioux Falls, South Dakota, in the sum of five thousand dollars, lawful money of the United States, to be paid to the said Eugene W. Coughran and Nathan W. Cottrell, their executors, administrators,

or assigns, for which payment, well and truly to be made, we bind ourselves, we and each of ourselves, executors and administrators, jointly and severally, firmly by these presents.

"Sealed with our seals, and dated this 26th day of April, A. D. 1890.

"The condition of the above obligation is such that the above-bounden E. A. Reed and H. H. Henderson, on or before the 1st day of October next, or in case of their death before that time, if the heirs of the said E. A. Reed and H. H. Henderson, within three months after their decease, shall and do upon the reasonable request of the said Eugene W. Coughran and Nathan H. Cottrell, their heirs or assigns, make, execute, and deliver, or cause so to be made, a good and sufficient warranty deed, in fee simple, free from all incumbrance, and with the usual covenants of warranty, of the following described premises, to wit: An undivided one-tenth of section fifteen (15), in township six (6) north, of range one (1) west, Salt Lake meridian., Weber county, Utah Territory, except a part of the southwest quarter section of said sec-* tion 15, described as follows: Beginning at the southeast corner of said southwest quarter section, and running thence west 20 rods, thence north 30 rods, thence west 20 rods, thence north 40 rods, thence east 40 rods, thence south 70 rods to the place of beginning: provided the said Eugene W. Coughran and Nathan H. Cottrell comply with their part of the contract this day made and delivered to them by the said E. A. Reed and H. H. Henderson, and a copy of which is hereto attached,-then the above obligation to be void; else to remain in full force and virtue.

"Signed in presence of

H. H. Henderson. "E. A. Reed. "H. C. Bigelow. "H. P. Henderson.

"Geo. H. Burgitt." Attached to the bond was the instrument following:

"Ogden, April 26th, 1890. "Received of Eugene W. Coughran and Nathan H. Cottrell thirty-three hundred and thirty-three dollars as part purchase price of an undivided one-tenth part of the following described lands, viz.: Section fifteen (15), in township six (6) north, of range one (1) west, Salt Lake meridian, Weber county, Utah Territory, except a part of the southwest quarter section of said section fifteen, described as follows: Beginning at the southeast corner of said southwest quarter section, and running thence west twenty rods, thence north thirty rods, thence west twenty rods, thence north forty rods, thence east forty rods, thence south seventy rods, to the place of beginning.

"The full purchase price being ten thousand dollars, to be paid as follows: $3.334 on October 1st, 1890, and $3,333 on April 1st, 1891, with interest at eight per cent. per annum on deferred payment from October 1st, 1890