Opinion of the Court-Stockslager, J.

ordered entered for the sum of $1,591.08. This is for the indebtedness represented in the fourth, fifth, sixth, and seventh causes of action set out in plaintiff's complaint. The court found (thirteenth) that upon the eighteenth day of September, 1896, defendant Grignon made, executed, and delivered to plaintiff three promissory notes, one of said notes being in the sum of $3,000, and two of said notes being each in the sum of $1,000, and all of said notes being payable to plaintiff, drawing interest, etc., payable in sixty days; that each of said notes was dated August 17, 1896, instead of September 18, 1896, the day upon which they were executed and delivered; that no consideration passed from the plaintiff, or any one in plaintiff's behalf, to defendants as a firm, or to defendant Coughanour, for the said promissory notes, or either or any of them. That said three notes are the identical notes sued on in the first, second, and third causes of action, etc. That said Coughanour was not informed in regard to the execution or delivery of said notes, or either or any of them, and had no knowledge thereof, or in regard to the execution or delivery of said notes, until after the commencement of this action, and did not at any time authorize or empower defendant Grignon to incur any liability of any kind whatsoever with plaintiff in excess of the sum of $6,000.

From the foregoing finding of facts the court finds the following conclusions of law. That the notes sued upon in the first, second, and third causes of action in plaintiff's complaint were given without consideration, and without authority from defendant Coughanour, and that said defendant cannot be held therefor. Under the facts, as disclosed by the record in this case, can this finding of fact and conclusion of law be sustained? The copartnership of the defendants is not disputed. The authority of the defendant Grignon to transact the business for the firm is not questioned. The execution of the notes, and their delivery to the appellant by defendant Grignon, are not questioned. That a credit of $6,000 was authorized by defendant Coughanour is shown by his testimony. That he (Coughanour) asked for extensions of the indebtedness, and sent money to pay interest from time to time, is disclosed by the record. That as late as August 2, 1895, he wrote Mr. Clark,

Opinion of the Court-Stockslager, J.

cashier of appellant, offering to give security due February. 1896, on such indebtedness. That property of the firm of Grignon & Coughanour was sold in the foreclosure suits in Blue Earth county, Minnesota, and proceeds of such sales, amounting to $1,627.82, applied on payment of said indebtedness as found by the trial court. That the amount claimed by plaintiff is the amount due from the defendants after giving such credits. we think is fairly deducible from the records. That the mortgage on the property in Minnesota, and the sale of the same, and the credit of the proceeds of such sale, were for the benefit of the firm of Grignon & Coughanour, and the judgment in no way affected the defendant Coughanour, excepting his partnership property in that state. We do not think the findings of fact and conclusion of law can be sustained. That defendant Grignon had the authority to execute and deliver the notes, see Lindley on Partnership, 287; Barber v. Van Horn, 54 Kan. 33, 36 Pac. 1070; Rich v. Davis, 4 Cal. 23; Pierce v. Jackson, 21 Cal. 636; Gray v. Ward, 18 Ill. 32; Morse v. Hagenah, 68 Wis. 603, 32 N. W. 634; Kelton v. Leonard, 54 Vt. 230; Davis v. Cook, 14 Nev. 265. That the judgment rendered in Minnesota on the same indebtedness sued on here is not a bar, see Knatz v. Wise, 16 Mont. 555, 41 Pac. 711; Lewis v. Clarkin, 18 Cal. 399; Atlantic etc. Ry. Co. v. Laird, 164 U. S. 393, 17 Sup. Ct. Rep. 120, 41 L. ed. 485; Bonesteel v. Todd, 9 Mich. 371, 80 Am. Dec. 90; Larison v. Hager (C. C.), 44 Fed. 49. That there was a consideration for the notes sued on in the first, second, and third causes of action, see Rasin v. Thomas, 88 N. C. 149; Shields v. Whitaker, 82 N. C. 516; Saunders v. Bates, 54 Neb. 209, 74 N. W. 578; Perrin v. Royal, 42 Ind. 132; Woodbridge v. Skinner, 15 Conn. 306; Murphy v. Carey, 89 Hun, 106, 34 N. Y. Supp. 1038; Bank v. Watt, ante, p. 510, 64 Pac. 223. We think a careful review of the record in this case discloses the fact that the credit extended to Grignon & Coughanour by appellant bank never exceeded the limit of $6,000, as fixed by defendant Coughanour. It is true that Coughanour testifies that, in addition to the indebtedness to the bank, he sent about $8,000 to his partner, Grignon, but it nowhere appears that any part of this money was ever paid to the

Points decided.

bank to liquidate the indebtedness of the firm of Grignon & Coughanour, or that said money was sent by Coughanour to his partner for that purpose or with such instructions; hence, even if the contention of respondent that the credit should be limited to that amount is correct—and we do not want to be understood as agreeing with this contention-the findings and conclusions of the trial court could not be upheld. In view of the foregoing conclusions, the judgment of the lower court is reversed, and remanded for further proceedings in harmony with our conclusions.

Quarles, C. J., and Sullivan, J., concur.

PETITION FOR REHEARING.

(June 20, 1901.)

Per CURIAM.-The petition for a rehearing in this case shows no good reason why the same should be granted. A rehearing is denied.

CONTRACT-SPECIFIC

(May 27, 1901.)

DALY v. JOSSLYN.

[65 Pac. 442.]

PERFORMANCE-PERSONAL

OBLIGATION.-A con

tract agreeing that the claimants to the water of a certain stream should own and use them equally, one-third each, and that a party thereto violating the same should pay the party injured the sum of $1,000, one of the parties sold the land to which his water right was appurtenant, to J., who did not assume the obligations of said contract. He'd, that specific performance of said contract could not be decreed.

SPECIAL FINDINGS IN EQUITY CASE-INSTRUCTIONS TO THE JURY— REVIEW ON APPEAL.-Where special findings are submitted to a jury, under instructions of the court, in an equity case, the correctness of such instructions will not be reviewed upon appeal. Affirming Kelly v. Perrault, 5 Idaho, 221, 48 Pac. 45, affirmed. Idaho, Vol. 7-42

Argument for Appellant.

EVIDENCE-DECLARATIONS

OF OWNER IN POSSESSION.--Declarations

made by the owner, while in possession, adversely to his title is admissible in evidence against himself, and those claiming under him.

(Syllabus by the court.)

APPEAL from District Court, Blaine County.

Lyttleton Price, for Appellant.

The finding of the trial court is that he, Kimbrough, had only constructive notice by the record. That being a purchaser in good faith, for value, without notice of the contract, he is not bound by its terms. This raises at once the question of the nature of the contract and whether its record gave constructive notice of its contents. Constructive notice of the contents of recorded instruments is purely a creature of the statute. (Rev. Stats. sec. 3000.) This is in form an equitable action. Applying the rule in equity to the facts here, the action is barred. There was always an active acquiescence in the use of the water by Kimbrough as far as Goble was concerned. He knew Kimbrough was using it. He did not deny his right to use it. He asked several times, as a favor, that it be turned down to him. He bought and in other ways secured water from other sources; and he even rented the Galbraith land to secure what water might otherwise have been taken upon it for the avowed purpose of getting it for use on the Goble land. When asked at the trial why he did so, and why he did not demand his right to the third of Seaman's creek, here claimed by him, he does not answer the question. Here was an executory contract stipulating that a certain thing should be done by all the parties to it. It undoubtedly contemplated that it should be done soon. It was not the duty of any one of the parties to do it; neither one was under any obligation to the others to put it into effect. The evidence established full acquiescence. It further establishes laches in asserting any rights under the agreement. (Peters v. Delaplaine, 49 N. Y. 362; Wood on Limitations, 157, 163; Fletcher v. Peck, 6 Cranch, 136.) Section 2023 of the Revised Statutes of Idaho, provides what instruments may be recorded. It omits executory

contracts.

Argument for Respondents.

The record of an executory contract does not impart notice of its contents. (Wade on Law of Notice, sec. 122; Messic v. Sunderland, 6 Cal. 297; Washburn v. Burnham, 63 N. Y. 135.)

R. F. Buller and E. F. Ensign, for Respondents.

Where the transcript does not contain all of the evidence introduced at the trial in an equity case the appellate court will not resolve itself into a trial court and review the evidence. This seems to be a well-settled rule of equity practice which prevails in all of the states as well as in England. (Ragains v. Geiser, 10 Okla. 544, 63 Pac. 687; Riborado v. Quang Pang! Min. Co., 2 Idaho, 144, 6 Pac. 125; Cochrane v. Bussche, 7 Utah, 233, 26 Pac. 294; Enos v. Wilcox, 3 Wash. 44, 28 Pac. 364; M. K. & T. R. R. Co. v. Williamson, 58 Kan. 814, 49 Pac. 157; Hardwick v. Rutter, 5 Kan. App. 692, 49 Pac. 98; Territory v. Roberts, 9 Mont. 12, 22 Pac. 132; Roy v. Union Merc. Co., 3 Wyo. 417, 26 Pac. 996.) Where the bill of exceptions contains no specification of the particulars wherein a finding is not justified by the evidence, the finding must be deemed conclusive. (Hurlburt v. Spaulding, 93 Cal. 55, 28 Pac. 795; Hartman v. Rogers, 69 Cal. 643, 11 Pac. 581; City v. Pacific Bk., 89 Cal. 23, 26 Pac. 615, 835; Bass v. Buker, 6 Mont. 442, 12 Pac. 722; Idaho Rev. Stats., sec. 4441, subd. 4.) A written agreement as to a water right, acknowledged and recorded, is valid against all the world, and even a parol agreement partly performed gives a right to specific performance in favor of any grantee of the land intended to be irrigated by such water. (Idaho Rev. Stats., secs. 2024, 2825, 2990, 3000-3002; Stowell v. Tucker, ante, p. 312, 62 Pac. 1033; Pallette v. Murphy, 131 Cal. 192, 63 Pac. 366-367; Male v. Leflang, ante, p. 348, 63 Pac. 108.) In order to establish title by limitation, open, notorious, continued, uninterrupted, hostile, adverse possession for the statutory period must be shown. (Hurd v. McClellan, 1 Colo. App. 327, 29 Pac. 181; Wimer v. Simmons, 27 Or. 1, 39 Pac. 6, 50 Am. St. Rep. 685, and cases cited; Bath v. Valdez (Cal.), 7 Pac. 487; In re Grider, 81 Cal. 571, 22 Pac. 908; Kerns v. Dean, 77 Cal. 555, 19 Pac. 817; Rix v. Horstman,