Mar ter belongs to the crown. In re Hull & Selby Railway, 5 Mees. & W. 327. By the American Revolution the people of each state acquired the absolute right to all their navigable waters and the soil under them. tin v. Waddell, 16 Pet. 367, 10 L. Ed. 997. In Wood v. Fowler, supra, Mr. Justice Brewer, in speaking of the Kansas river, which was held to be a navigable stream, said: "The title to the soil being in the state, and the stream being a public highway, obviously the ownership of the ice would rest in the general public, or in the state as the representative of that public. The riparian proprietor would have no more title to the ice than he would to the fish." Page 690. When the river encroached on the Peuker land, carrying away parts of Canter's fractional tracts, the title of the latter to the submerged lands was gone. So was the title of Peuker in that part of his 40 acres which the current had eaten away, and which was submerged by the waters. When the alluvion began to form, it had a line of contact of about 700 feet on the land of plaintiff in error, and also attached itself to the irregular shore line of what was left of lots 1 and 2. The plaintiff in error is not entitled to all the made land, but only to an equitable proportion of it. There are not facts sufficient presented by the record for the establishing of a rule which will determine to just what proportion of the alluvion the parties are entitled. This should be settled by the court below on equitable grounds. Gould, Waters (3d Ed.) §§ 162-165; Johnston v. Jones, 1 Black, 209, 17 L. Ed. 117. The judgment of the court below will be reversed, and a new trial granted. All the justices concurring. In bank. On rehearing. Affirmed. BEATTY, C. J. I dissent from the order denying a rehearing. The appellants claimed that the issues raised by their answer were properly triable by jury. When the cause was first entered upon the trial calendar of the superior court, there was a controversy between plaintiffs and defendants as to whether it was a court or jury case; and that court, holding with the plaintiffs, marked it as a court case. In that condition it remained on the calendar until, previous cases being disposed of, it was called for trial. The appellants did not then ask for a continuance, but they renewed their demand for a jury trial, supporting their demand by an argument in which they attempted to show that the nature of the issues to be tried entitled them to a jury. Noth ing was said about the deposit of a jury fee, and it is perfectly manifest from the record that the rule of the superior court in respect to that matter was never considered as having any bearing upon the point to be decided. The ruling of the court denying a jury trial was based simply and solely upon the ground that the defendants were not entitled to a jury, and, this ruling being made, it would have been a perfectly vain and useless act to deposit or tender the jury fee. The rule merely requires the jury fee to be deposited by the party demanding a jury before the commencement of the trial, and, if a jury trial is denied in advance, the rule can have no operation. Besides, the party making the demand has all the time before the commencement of the trial to make his deposit. Here, when the demand was made, there was no jury in attendance, and the trial by the court, to which the defendants were forced, began and ended before it was possible for a jury trial to have commenced. For these reasons I think the failure of defendants to deposit or offer the jury fee is no answer to their position. It is quite as clear that they did not waive their right to a jury by any of the proceedings referred to in the department opinion. There can be no waiver of a jury except in one of the three modes enumerated in section 631 of the Code of Civil Procedure. Swasey v. Adair, 88 Cal. 183, 25 Pac. 1119; Biggs v. Lloyd, 70 Cal. 449, 11 Pac. 831. If these conclusions are correct, the appeal has been disposed of by an erroneous decision of the only point considered in the opinion of the department, and the serious and important question in the case the question decided in the superior court, and the question most elaborately argued by counsel here -is left untouched. I think it called for a decision, and that the appeal should not have been disposed of without a decision. BEATTY, C. J. I dissent from the order denying a rehearing. A county, within the meaning of section 14 of article 1 of the constitution, is either a municipal corporation, or it is not a corporation at all; and in either case it is entitled, in condemning a right of way, to set off benefits against damages. Moran v. Ross, 79 Cal. 159, 21 Pac. 547; Moran v. Ross, 79 Cal. 549, 21 Pac. 958. In my opinion, a county is a municipal corporation, within the meaning of this clause of the constitution; and the decision in People v. McFadden, 81 Cal. 489, 22 Pac. 851, that it is not a municipal corporation, within the meaning of another provision (1. e. the prohibition of the creation of municipal corporations by special laws), is not inconsistent with this view. The term "municipal corporation" has a broad sense and a restricted sense, and it is used in these different senses in the two clauses of the constitution. In one it comprehends counties, and in the other it does not. (131 Cal. 132) MCCLAIN v. HUTTON et al. (Sac. 712.) CONTINENTAL BLDG. ASS'N v. SAME. (Supreme Court of California. Jan. 11, 1901.) In bank. On motion to modify judgment. Granted. For former opinions, see 61 Pac. 273, and 63 Pac. 182. PER CURIAM. In the judgment of the court in bank in this case it was directed that the costs should be allotted one-half to the appeals of Mrs. Hutton, and one-half to those of the Continental Building & Loan Association,-the former to be paid by the respondents, including the appellant Chandler, In amounts proportionate to their respective claims; the latter by the respondents, excluding the appellant Chandler, in the same proportions. L. H. Holt should also have been excluded with Chandler. The judgment is therefore modified in this respect, and Mrs. Hutton will be allowed to recover the costs allotted to her, in the proportions stated, against the respondent cross complainants named in her notice of appeal; and the Continental Building & Loan Association, the costs allotted to it against the respondent cross complainants named in its notices of appeal, with the exception of the cross complainants Chandler and Holt, as to whom its appeal has, in effect, failed. (131 Cal. 369) LAVENSON v. WISE. (S. F. 1,451.) (Supreme Court of California. Jan. 14, 1901.) CONTRACTS-EXECUTION SIGNING ATTOR NEY AND CLIENT-FEES-QUAN- 1. A writing signed by an attorney, reciting the receipt by him of a certain note from defendant for collection on contingent fee, was binding on the attorney, though not signed by defendant. 2. Where an attorney received a note for collection on contingent fee and assurance that there was no defense, but, on the obligors setting up fraud, the attorney went to trial without further agreement, and afterwards prepared a transcript for appeal, he could not recover on a quantum meruit for his services; the trial not having occurred until long after the answer was filed, and the attorney having had knowledge of the defense and the amount of work involved. Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco; J. C. B. Hebbard, Judge. Action by J. H. Lavenson against J. H. Wise. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed. D. H. Whittemore, for appellant. Joseph Rothchild, for respondent. CHIPMAN, C. Action for services as attorney at law rendered defendant by Joseph Rothchild, Esq., plaintiff's assignor. Defendant denied the alleged indebtedness, and, as a separate answer, alleged that the firm of Christy & Wise, composed of John H. Wise (defendant) and Harry E. Wise, was the owner of a promissory note for $9,760, made by one James Murphy and one E. Smalley; that said Rothchild represented to said firm that he could collect the money due on said note, whereupon it was agreed between Rothchild and Christy & Wise that said firm should pay said Rothchild $50, which was then paid, and "should, when the money due on said note was collected, and only out of the proceeds of the collection of said note, and not otherwise, further pay said Rothchild the sum of $500, as fee in and for the collection of the money due on said note, by suit or otherwise"; that Rothchild commenced suit on said note, but failed to collect the same, or any part thereof, and has abandoned all attempt to collect the said note; that said unsuccessful attempt to collect said note was the only service performed by said Rothchild for said firm or for defendant. The cause was tried by a jury, and plaintiff had a verdict for $1,000. The appeal is from the judgment and from the order denying motion for new trial. The evidence of plaintiff tended to show that plaintiff's assignor performed services in relation to the collection of the note referred to in the answer which were of the value of $1,000; also services in relation to an accounting between Wise and Murphy and Smalley, or the "Yellowstone Saloon," as the place is called, the sale of one-half interest in which was the consideration for the note; also services in relation to the sale of certain goods by Wise to Wise and Murphy. Some evidence was given as to the amount of work done by Rothchild in relation to the accounting, and in the matter of the sale of goods by Wise to Murphy and Smalley. Mr. Rothchild testified that his services in each of the two latter matters were reasonably worth $250, and this is undisputed by the evidence, as is also his estimate of the value of his services, to wit, $1,000, for bringing the suit on the note. The principal question in controversy arises in regard to the agreement to collect the note. The testimony tended to show that when he undertook the business it was with the understanding that it was an ordinary case on promissory note, to which there was no valid defense, and that Mr. Rothchild was employed because he had information about Murphy's business and property, from which he was assured he could collect the Judgment when obtained. I think it fairly inferable · from the evidence that, when the agreement presently to be stated was entered into, Rothchild understood from what Wise told him, or led him to believe, that the case would not be litigated. With this understanding Rothchild signed and gave to Wise the following paper: "San Francisco, Dec. 9th, 1895. Received of Mr. John H. Wise a note for nine thousand seven hundred and sixty ($9,760.00) dollars, dated April 15th, 1895, payable six months after date, with interest thereon at the rate of 8 per cent. per annum. Said John H. Wise to pay upon demand the sum of fifty ($50.00) dollars for court costs and the sum of five hundred ($500.00) dollars as a fee upon collection of the same. [Signed] Joseph Rothchild." On December 14, 1895, Mr. Rothchild filed a complaint in the action on the note referred to in the receipt, and on January 11, 1896, the defendants in that action filed an answer. The note was payable to D. H. Whittemore, or order, indorsed to Christy & Wise by Whittemore, and by them indorsed to John H. Wise, who brought the action and is defendant here. The answer admitted the execution of the note, but alleged that it was without consideration, and that Wise took it with full knowledge of that fact; that the consideration was a half interest in the Yellowstone saloon, its fixtures and stock of merchandise, which Christy & Wise had agreed to sell and transfer to Murphy and Smalley, the makers of the note; that Christy & Wise neglected and refused to make the transfer of the saloon, and on November 8, 1895, Murphy and Smalley notified Christy & Wise that they had rescinded said contract of purchase, and declined to pay said note; that it was agreed between Christy & Wise and Murphy and Smalley that the note was to be paid from the income of the saloon, and not otherwise, of which Christy & Wise had full knowledge; that John H. and Harry E. Wise falsely represented to the makers of the note at the time of said purchase that the daily receipts of the saloon were $100 per day, whereas they were but $35 per day, and that one McCallum, who they represented was an experienced saloon keeper, had agreed to buy the other half of the saloon, and could bring in much business, etc.,-all of which was alleged to be false. Other false and fraudulent representations were set up in the answer, on account of which, and the failure on the part of Christy & Wise to keep their contract, Murphy and Smalley had, in November, 1895, rescinded, and notified Christy & Wise that they would not pay said note. The trial of that action commenced on December 10, 1896, and lasted several days, and on February 25, 1897, the court made its findings in favor of defendants in the action, and judgment followed for defendants. The evidence is that Wise directed Rothchild to take an appeal to the supreme court, and the latter gave the usual notice, and prepared the transcript, comprising 340 pages of typewritten matter. Wise paid the reporter for this work. Plaintiff testified: "I then made a demand on Mr. Wise for five hundred dollars in that matter, and he declined to pay it, and I never received a cent." Rothchild's connection with the case then ceased, and what became of the appeal is not disclosed. It appears without conflict that upon the filing of the answer to the suit on the promissory note Rothchild had knowledge of the nature of the defense set up. An assistant in his office devoted several days to looking up questions of law likely to arise under the issues presented by the answer. The case was not tried for nearly a year after issue of fact was joined. There is no question but that Rothchild knew, or had reason to know, that the defense set up to the note would defeat payment if it prevailed, and that, in any event, it meant litigation, which he had not contemplated when he entered into the agreement with Wise. He testified: "I had a conversation with Mr. J. H. Wise about it [the answer] and he told me it was not true. These things could be disproved; they could not prove it." He testified that he received the note "on the terms set out in the receipt" and continued in the case until after the trial; that after the trial "I asked him [Wise] what he proposed to do about it, and he said he would take the case to the supreme court. Q. You had not said a word about changing this agreement? A. Not a word at all. Q. After you had re ceived that transcript, and put him to that expense, that was the first time you suggested that you would not go on with the case? A. I did nothing of the kind. I told him to pay the $500. Q. Was that the first intimation that you gave that you were not going on? A. After the trial. I never bothered him during the trial, because I did not have time. Q. You never bothered him during the year 1896? A. Not at all. Q. You never bothered him for a month after the trial, did you? A. Oh, I do not know the time. Some time after the trial I asked him for $500, and he declined to pay it. Q. That was the first time there was any change in the terms of the agreement? A. I do not know what you mean by 'change.' The first time I ever asked him for money was after the trial. I signed an agreement to do certain things. He never agreed to do anything. Q. Didn't you receive the note on these terms? A. I suppose so; yes. Q. Well, was not that the agreement? A. I do not know. I do not see how you can pin a man down to an agreement if he [Wise] did not sign it. I was willing to trust him. I did not ask him for any writing. I was willing to take it that way. The receipt merely recites the terms, and Mr. Wise had a doubt about the propriety of turning over a $9,000 note, and I had to satisfy him that I was perfectly responsible." At another part of his testimony he testified: "I went on because John H. Wise told me these allegations [referring to the answer] were not true. He could prove they were not true." Again, he testified: "Q. Now, Mr. Rothchild, did you inform Mr. Wise in any way that you would not go on with the case on these terms? A. No, sir. Q. You never told him that, did you? A. No, sir. Q. You went on through the year 1896? A. Yes. Q. Under this agreement? A. Yes. Q. You tried the case under this agreement? A. No, I did not. Q. Did you tell him that you would not continue under the agreement? A. No, sir. Q. Did you ask him for any other agreement? A. No, sir. Q. Did you ever speak to him on any occasion about another agreement? A. I could not do it, because I was in the middle of a trial. I never knew the true state of the facts." Mr. Rothchild seems to have been of the impression that his receipt to Wise was not a contract because Wise did not sign it. This is an erroneous view of the receipt. It was an agreement on Mr. Rothchild's part to take the case on the terms proposed by him, and Wise became bound by it when he delivered the note to Rothchild under that agreement. It was not necessary for Wise to sign it. He acted under it, and this was sufficient to bind him. The serious question is: Could Mr. Rothchild go forward under his contract, and try the case, after he knew it was to be seriously litigated, and might be defeated, without informing Mr. Wise that this new phase of the matter would involve labor not previously contemplated, and that he would require a larger contingent fee, or would require some fee in the event of failure to obtain judgment? Upon the face of the agreement the fee was contingent. That agreement was not changed by Mr. Rothchild, nor attempted to be changed, until after the trial and judgment had gone against his client. Mr. Rothchild did nothing and said nothing which would lead Mr. Wise to suppose that any change was to be made in the contract of employment. It is true, Wise told him the allegations of the answer were untrue, and he could prove them to be so, and that the defendants in that action could not prove what they had alleged. Mr. Wise may have so thought and so believed, and, whether he did or not, it was Mr. Rothchild's duty to inform him that the answer so changed the matter from its original aspect that a new agreement would have to be made as to his compensation. Saying nothing and doing nothing to indicate an unwillingness to continue as he had begun, Mr. Rothchild must be held to have continued under the only agreement then existing between the parties. Upon this phase of the case there is no conflict in the evidence. By his own testimony, we think, Mr. Rothchild has shown that he ought not to have recovered for services in the case brought against Murphy and Smalley. In the conversation wlrich preceded the signing of the receipt there was nothing said about paying any fee in the event the suit was litigated. It was assumed by both parties that it would not be litigated. But there is nothing in the evidence which would warrant the assumption that Wise willfully or fraudulently deceived Rothchild in this regard; and, if he did so, still, as soon as the fact came to Rothchild's knowledge (as it did when he was served with the answer), he should have promptly rescinded, or demanded some different arrangement. He could not proceed with the case as though the contract was still in force, with a mental reservation that he would repudiate it, or rescind it .after the trial, should his client be cast in the suit. To justify such a course would be to allow fraud to be met by fraud, and this the law will not allow. Respondent contends with much confidence that he should recover in this action because recovery on the note was prevented by Wise. The facts on which this claim rests were all brought to Mr. Rothchild's attention in the answer of Murphy and Smalley to Wise's suit against them, and in the course of the preparation for trial. Even though Wise gave him every assurance that he could overcome this defense, it did not change the fact that the contract of employment still bound Mr. Rothchild, and continued to do so until modified, superseded by another, or rescinded. Mr. Rothchild had good cause for rescinding the contract, or for refusing to proceed under it, but it was too late to rescind after it had been performed. Under the facts in the case as they now appear, we are unable to discover any ground upon which the present action on quantum meruit can rest as to the matter of the suit against Murphy and Smalley. The verdict was general, and we cannot, therefore, determine what part of the $1,000 awarded plaintiff was for services other than those in the matter last above mentioned. The cause should be remanded for a new trial, and we advise that the judgment and order be reversed. We concur: COOPER, C.; SMITH, C. PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order are reversed, and the cause remanded for a new trial. (25 Mont. 4) TALBOTT v. HEINZE. (Supreme Court of Montana. Jan. 21, 1901.) BILLS AND NOTES-FAILURE OF CONSIDERATION CONTEMPORANEOUS CONTRACTS TIME AS ESSENCE EVIDENCE-FAILURE OF PROOF-ALLEGATIONS AND PROOF-CORRE SPONDENCE. 1. A note sued on was given in consideration of the written contracts of the payee, made a few days before the date of the note, that he would, on or before a certain day, purchase or procure a purchaser for the maker's interests in certain mines at a stated price, and that, if he failed so to do, the maker would be absolved from all liability to convey such interests. Held, that these contracts were admissible, under Civ. Code, § 2207, as relating to the same matters as the note in suit between the same parties, and as parts of substantially one transaction. 2. Where a note was given in consideration of the payee's written promise to pay a stated amount for the maker's interest in certain mines before a stated time, such time being expressly declared to be of the essence of the agreement, or that otherwise the maker would be released from all liability to convey such interests, failure to show that the interests were sold within the prescribed time and for the stated price, or a waiver of such conditions, was fatal to a suit on the note. 3. Where a note sued on was payable only on the sale of the maker's interests in certain mines according to the terms of certain contracts made with the payee, an offer to prove that, after a sale of such interests, which did not occur until the time expressly limited by the contracts had expired, the maker had acknowledged the note, and promised to pay it, was an effort to prove a different contract, and inadmissible. Appeal from district court, Silverbow county; John Lindsay, Judge. Action by James A. Talbott against F. Augustus Heinze, as administrator of the estate of James Larkin, deceased. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. Affirmed. Geo. A. Clark, for appellant. C. P. Drennan, for respondent. PIGOTT, J. The subject of this action, as alleged in the complaint, is a supposed contract or promissory note payable upon condition, of which the following is a copy: "Butte City, Montana. October 1st, 1891. For value received, I promise to pay to Robert C. Burton the sum of five thousand dollars upon sale of the Snohomish or Tramway mines, said mines being in Summit Valley mining district, Silverbow county, Montana, and under bond to said Robert C. Burton. James Larkin. James A. Cummings, Witness." The plaintiff, as assignee of the note, sued to recover the amount thereof, the complaint stating that on the 4th day of May, 1893, Larkin sold and conveyed the Snohomish and Tramway mines to the Butte & Boston Mining Company; that thereafter Larkin was judicially declared to be of unsound mind, and the defendant Largey was appointed guardian of his person and estate; that on the 12th day of May, 1896, the plaintiff presented to the guardian his claims against Larkin upon the note, which claim the guardian rejected by omitting to take action thereon within 10 days after its presentation; and that no part of the note has been paid. The defendants, in their answer, denied that Larkin executed or delivered the note, and alleged that, if Larkin made the note, the only consideration for it was an agreement on the part of Burton, the payee, to sell for Larkin his interest in the 63 P.-40 Tramway mine for the sum of $65,000, and by such sale to obtain for Larkin that sum on or before the 10th day of May, 1892, and to sell for him his interest in the Snohomish mine for the sum of $25,000, and upon such sale to obtain for him that sum on or before the day last mentioned; that Burton never effected such sale of the interest of Larkin in either the Tramway or Snohomish lode claim, and never obtained for him the price of $65,000 for his interest in the Tramway nor the sum of $25,000 for his interest in the Snohomish mine; that Burton wholly failed to comply with the terms of his agreement to effect a sale of the lode claims, whereby the consideration of the note wholly failed, and the note is without consideration. The answer contained another defense, which need not be stated. In reply the plaintiff denied that the consideration of the note was, in whole or in part, an agreement of Burton to sell for Larkin his interest in the Tramway mine for $65,000, and by the sale to obtain for Larkin that sum on or before the 10th day of May, 1892, or any other day, and to sell and obtain for Larkin the price of $25,000 for his interest in the Snohomish lode claim on or before May 10, 1892, or any other date. He denied that the only or any part of the consideration for the note was an agreement of Burton to sell and obtain for Larkin any fixed sum for both or either of the mines, or on or before any date. There was a verdict and judgment for the defendants. The plaintiff appeals from an order refusing a new trial and from the judgment. Since the taking of the appeal, Larkin, and Largey, his guardian, have died, and F. Augustus Heinze, as administrator of the estate of Larkin, has been substituted in their stead as the defendant and respondent. Although 23 alleged errors are specified, the consideration of two of them suffices to raise a question the answer to which will obviate the necessity of determining any other point. It is conceded that prior to May 4, 1893, Larkin was the owner of an undivided two-thirds interest in the Tramway lode claim and of an undivided onehalf interest in the Snohomish lode claim, the remaining interests being then owned by one McNamara. Burton, who was called as a witness for the plaintiff, testified that "the foundation for the giving of the note in suit" was the written leases and contracts hereinafter described, dated September 26, 1891, entered into between Larkin and himself in respect of the Snohomish and Tramway lode claims. Before these contracts were made, Burton asked Larkin to sign the note, which Larkin agreed to do; Burton further testifying that the note was intended "as a part of my commission for effecting a sale of the property under bond." The "bond" of which he speaks consists of the two contracts of September 26, 1891. It further appeared that a sale of his interest in the Snohomish and Tramway lode claims |