upon other questions, this court being reversed upon the question of statute of limitations: Vide 15 Otto, 640. The petition in error puts in issue in this court several questions respecting the admission of testimony and the instructions of the court to the jury.

The defendant in error raises for consideration here, in his brief, the fact that the motion for a new trial in the court below was not filed in time, and submits it to the consideration of this court. The case was

tried in the court below, and a verdict rendered on the fifteenth of December, 1876, against the defendant, and in favor of the plaintiff: Vide page 60 of the printed record. The motion for a new trial was filed on the sixteenth of February, 1877, or a period of more than sixty days thereafter. The reasoning, authorities cited, and conclusion reached in Kent v. Upton, Assignee, 1 West Coast Rep. 700, this day decided, apply to, and should govern, we think, in the decision of this case. The records are slightly different. In this case we find the following journal entry in the record before us, page 55:

"November term, 1876. Monday, December 18, 1876. Clark W. Upton, Assignee in Bankruptcy of the Great Western Insurance Company, v. Daniel McLaughlin.

"On application of Thomas J. Street, Esq., of counsel for defendant, it is ordered that the time for filing a motion to set aside the verdict and grant a new trial herein, be extended until the end of the present term of the court."

Preceding this, but no part of the journal entry, is this statement: "And thereafter the court, on the request of the defendant, and for good cause shown, made the following order in said case." It looks as if this was inserted to cure the plainly invalid order of December 16, 1876. Does it do so? Plainly, we think not. The most that can be said of it, we think, is, that it is to be treated and considered as if embraced in the body of the order of December 16, 1876. If this be conceded, it is still liable to the objection that it was purely ex parte; but it may be claimed that it should have been excepted to. If this be insisted on, the answer is, that by the compiled laws of Wyoming the party excepting must do so at the time the decision was made: Vide, sec. 300, c. 13, p. 71. How could this be done if the party were not present in court either in person or by counsel? and there is no pretense in the order that both parties were present. But there is another journal entry that it may be claimed cures this. It is the journal entry made on the thirty-first of March, 1877, when the bill of exceptions was allowed. It is in that order recited, both parties being in court by their attorneys, that the defendants present their bill of exceptions, which is agreed upon by both parties to this suit. The answer to this is, that it states only that what is set forth is true. Giving to this all the weight it is entitled to, it results that nothing more is to be inferred than that such a journal entry was by the court made orally and ex parte, and for what the court, upon an ex parte hearing, deemed good cause, in spite of the fact that by sections 308 and 309 a motion for a new trial can only be on written grounds.

Nor is the defendant in error to be deemed to have waived any of his rights by appearing and arguing the motion for a new trial. The defendant in error, it is true, might have moved to dismiss the motion, because not filed in time; but there is nothing statutory requiring this. He may have relied upon this very fact in the argument of his motion in the court below; and that court may have considered and acted on

the fact that the motion on written grounds was not filed in time, and may have, upon reflection, come to the conclusion, as it should have done, that it had no authority to grant any such ex parte order as it attempted to do by its order of December 16, 1876, although there is nothing to show this. But it is unnecessary in any common-law order for the court to give its reasons, though it sometimes happens that a trial court will say, for reasons stated in writing, and filed with the papers, it reaches a given conclusion.

39

There is nothing in this record to show that the order of December 16, 1876, was a consent order, or to show that the defendant had been or would be unavoidably prevented from filing his written motion within the statutory time. There is nothing to show that the party asking for this oral and ex parte order was unavoidably prevented. These are strong words, and, as we have said before, they are mandatory words. To dispense with the requirement of being "unavoidably prevented,' something more is required than the mere will of the judge, or the wishes of one party to the suit. In this record these two things alone can be relied on. Surely it could not have taken sixty days to prepare and present such a motion as the one filed with the transcript in this case. The extension of time granted on the sixteenth of December, 1876, being, as the record shows, ex parte, does not relax the rigor of the statute, although purporting to be for good cause shown, does not bind the defendant in error, or preclude him from relying on the plain letter of the law in this court, as it ought to have availed him in the court below. In reaching this conclusion we are aware that we are reversing an opinion rendered by this court at its March term, 1879, but in our opinion the conclusion reached is so manifestly erroneous that we deem it a bounden duty to do so. That opinion, which must have been hastily reached and rendered, says that whether the oral motion of December 16, 1876, was treated as jurisdictional or merely a conditional limitation of the discretion of the district court, or whether the statute is to be treated as directory, the motion to dismiss on either ground should be denied, that motion having been then made.

In the views heretofore given in this case in this opinion and in that of Kent v. Upton, Assignee, 1 West Coast Rep. 700, we have by reasoning and authority shown that the statutes of this territory regulating the granting of new trials are neither matters of discretion nor directory statutes, and further, we hold that every motion for a new trial must be upon written grounds, and that any party coming in after his right to file his motion for a new trial has expired must do so upon written grounds filed at the time of coming in, and then showing how and in what manner he has been unavoidably prevented. This being true, it follows that the question is a jurisdictional one; but jurisdictional as to this court, and not as to the lower court. A party can only bring his writ of error or appeal here as the statutes allow. When the statutes are followed as they are written, this court acquires jurisdiction. When they are not followed, this court lacks jurisdiction. And no consent of parties, nor ex parte unauthorized order of a nisi prius judge, can give it jurisdiction. Whenever that act is made to appear in any stage of the case from the record, it is not only the right but the duty of this court to release its hold improperly obtained; because the steps necessary to be taken in the lower court to give us jurisdiction here not having been taken, and imparting to the judgment of the court below the verity it is always entitled to until error is

shown in it or the proceedings by which it was obtained, it is our duty to affirm it, there being no error before us here to examine. We do not look into the record. Let the judgment be affirmed.

PARKS, J., concurred.

BLAIR, J., dissented.

HALLACK ET AL. V. BRESNAHEN.

Filed November, 1883.

WRIT OF ERROR MAY BE DISMISSED WHERE NO ABSTACT OF THE RECORD IS FILED as required by the rules of the supreme court.

REFUSAL, DURING THE TRIAL, OF AN AMENDMENT TO AN ANSWER setting up a new defense is not error when the defendant fails to affirmatively show that he did not know of such defense before.

A FINDING WILL NOT BE DISTURBED when the evidence is conflicting.

BUILDING CONTRACT-LIABILITY OF CONTRACTOR UNDER.-When a party contracts to build a house of suitable materials and in a workmanlike manner, and violates his contract, the party injured may either refuse to pay the contract price of the building to the amount to which he is damaged, or he may pay for and take possession of the building and then sue and recover of the builder the amount of his damages. Such recovery may be had whether the breach of the contract was known at the time of payment or not.

SUCH PAYMENT IS NOT A WAIVER OF THE RIGHT OF ACTION for failure to perform the contract so as to discharge the contractor or his sureties.

AN ESTOPPEL CAN NOT BE FOUNDED UPON WORDS, ACTS, OR SILENCE, unless they were intended to lead the party who seeks to set up the estoppel to act upon them, and he did so act to his injury.

ERROR to the district court for Albany county. The opinion states the facts.

C. N. Potter and Decker & Yonley, for the plaintiffs in error.

Corlett & Rosendale, for the defendant in error.

PARKS, J. In this case the defendant in error filed his motion to dismiss the writ of error, and supported it by a number of points, arguments, and authorities. The third point made and insisted on is that the plaintiff in error did not file with the clerk of this court printed abstracts of the record at the time, in the manner, and in the form required by law.

The statute of this territory provides that the rules of practice of this court shall be as binding upon the several courts and the parties practicing and having business therein as though the same were enactments of the legislative authority of this territory. One of the rules of this court requires "that the plaintiff in error shall deliver to the clerk fourteen printed copies of an abstract of so much of the record as is necessary for a full understanding of all the questions presented to this court for decision," and "if the defendant in error shall deem the abstract of the appellant or plaintiff in error imperfect, he may, within twenty days after the delivery of said copies to the clerk, deliver to the latter fourteen printed copies of such further or additional abstracts as he shall deem necessary to a full understanding of the questions presented to this court for decision."

The abstract here made imperative is not the transcript, which is a full copy of the record, but an epitome, abridgment, or compendium, in which is condensed the substance of the record so as to enable the court,

in the language of a learned judge, to extract the controversy in the case from the mass of matter unconnected with it without performing hours of labor which ought to have been done by the counsel for appellant under the rule which is so reasonable in itself and so necessary, and indeed indispensable, to the progress of the court in the discharge of its duty."

Perhaps there never was a case in this court that more clearly illustrates the utility of this rule and the necessity of its enforcement than the present one. The transcript consists of four hundred and forty-two pages, and the errors assigned were originally seventy. No abstract has been filed, and as the case stands the court is obliged to examine this entire record. The supreme courts of Indiana, Illinois, Missouri, California, and other states often dismiss cases for similar violations of their rules. In the Buckley cases, in 60 Illinois, the court say, among other things: "Appellant in each case has failed to prepare and file an abstract of the record, but there has been filed in each case a printed index to the transcript. We presume the attorney was aware of the rules of the court, and has intentionally disregarded them. As the cases have not been prepared as required by the rule, we decline to consider them, and affirm the judgments." And so we should be obliged to dispose of this case had it not been continued with the express understanding that it should be heard and decided upon its merits.

The case is fairly stated by both parties, and is substantially as follows: The defendant in error brought an action against the plaintiff's in error upon a bond given by them to the defendant in error in the sum of five thousand dollars, conditioned that if the firm of Dawson & Hawes, who had made a contract with the defendant in error to erect, build, and complete a two-story brick building for him, should well and truly perform said contract in all things, according to the specifications, the bond should be void, otherwise in force.

The petition in the case alleged the making of said building contract, and the bond to secure the performance of the contract, and that said Dawson & Hawes proceeded to erect said building, but failed to comply with the terms of the contract under which the building was to be erected, in that they built the walls of the cellar of said building of half-burned casing brick, and laid up the walls of the building with bank-sand mortar, whereas, by the terms of the contract, said cellar walls were to be built of arch hard-burned brick, and the walls were to be laid up with fresh lime and sharp-sand mortar.

The petition further alleged, that in consequence of the failure of said Dawson & Hawes to erect said building in the manner required by their contract in the particulars before stated, it fell down, became entirely ruined, to the damage of the plaintiff five thousand dollars, for which he asks judgment. In due time Hallack Bros. made answer in the case, setting up six defenses. Dawson & Hawes were not served with process, and did not make any appearance in the case.

The defendants, Hallack Bros., made, in substance, the following defenses:

1. They admitted the contract between Dawson & Hawes and the plaintiff in the action, Mr. Bresnahen, for the construction of the building, and also admitted the execution of the bond conditioned for the performance of the contract; they further admitted the allegations of the petition in respect to the character of the brick which were to be used in the con

struction of the cellar walls and the character of the mortar to be used in laying up the walls, as fixed by the terms of the building contract; they also admitted that Dawson & Hawes did construct the said building, but deny that they failed to comply with the terms of said building contract in the respect set out in the petition; they admit that the building fell down, but deny that it fell in consequence of the failure of Dawson & Hawes to comply with the terms of their contract; they deny that any furniture or other property of the plaintiff was injured by the fall of the building.

2. The second defense set up by the defendant is, in substance, that the plaintiffs, when the building was in course of construction, made the payments therefor as provided by the contract, and when the building was completed that he accepted the same as completed under the contract, and remained in the same until it fell, without notice to Hallack Bros. of any objection on account of any supposed failure on the part of Dawson & Hawes to perform their contract. It is further alleged in this defense that by the construction contract disputes on account of imperfect construction of the building were to be settled by arbitration, wherefore it is further alleged that the plaintiff waived his right to a strict performance of the contract, and by his acquiescence deprived the defendants Hallack Bros. of their indemnity as sureties, and of their opportunity to have any disagreement between Bresnahen and Dawson & Hawes adjusted by arbitration.

3. The third defense is substantially the same as the second, except that it is alleged that the plaintiff paid the several sums to be paid by him under the contract, including the last payment, without insisting that said building was not completed according to the contract, although at the time of making the last payment it is alleged that the plaintiff well knew of the defects in the building of which he complains in his petition, from which it is concluded that plaintiff accepted the building and waived strict performance, etc.

4. The fourth defense alleges that after the completion of the building, differences arose between Dawson & Hawes and the plaintiff as to the manner in which said contract had been performed, which were submitted to arbitration, pursuant to the contract, an award made thereon, and performed, from which it is concluded and averred that there was an accord and satisfaction as to all such matters of difference in respect to the construction of said building.

5. The fifth defense is, in substance, that at all times from the completion of the building until shortly before the commencement of this action, the said Dawson & Hawes each were solvent, but since and before the bringing of this action, became insolvent, wherefore the defendants say that by virtue of the several acts of the plaintiff as aforesaid, the defendants were led to suppose that plaintiff had waived or settled his objections to the want of strict performance of the building contract, and that Hallack Bros. were thereby prevented from seeking their indemnity against said Dawson & Hawes before the accruing of their several insolv

ency.

6. Hallack Bros., as a sixth defense, aver that after the making of said building contract, and during the construction of the building, the plaintiff, without the consent of Hallack Bros., agreed with Dawson & Hawes that the work of the construction of said building should be otherwise than as prescribed by the specifications of the contract, and that