together with the appurtenances thereto belonging, situate in the town of Helena.

In accordance with that agreement appellants paid respondent $1,000, and executed and delivered to J. H. Shober , to be held as an escrow two promissory notes secured by a mortgage upon the premises for the sum of $6,500. Respondent made and executed a deed to said premises to appellants and delivered the same to the said Shober to be held as in escrow. The whole agreement was to be consummated on the 3d day of May, 1869. At that time appellants were to pay respondent $5,500 in addition to the $1,000 already paid. The deed was to be delivered to them, the mortgage and notes to be delivered to respondent. If the appellants failed to comply with their portion of the agreement they were to forfeit to respondent the $1,000 already paid, as liquidated damages. That appellants were to hold possession of the premises from the said 5th day of April until the said 3d day of May. Appellants were on the said 3d day of May willing and ready to pay the respondent the sum of $5,500, and in all respects to comply with the terms of their agreement. The buildings on said premises were worth the sum of $6,500. Respondent was unable to comply with his portion of the agreement, for the reason that on the 28th day of April these buildings were destroyed by fire, and respondent was unable to deliver the premises as they were on the day of agreement. Appellants claim judgment for the $1,000 paid respondent."

The respondent filed a general demurrer to the complaint, setting forth that it did not state facts sufficient to constitute a cause of action. The court sustained the demurrer. The appellants appeal to this court, assigning as error this ruling of the court below.

The question presented in this case is, could the appellants, when it became impossible for the respondent, without any fault of his, to deliver the premises with all the buildings thereon, as they were at the time of the agreement to them on the 5th day of May, rescind the agreement? There is no allegation that the respondent could not con

vey to them a good and valid title to the lot. There is none that the buildings were the chief inducement to the agreement, and a prayer that the contract be rescinded for that reason. The appellants seem to have considered that the destruction of these buildings entitled them to rescind the contract.

If the buildings had been damaged without the fault of respondent, to the extent of $5, so that he could not have delivered the premises to appellants in the same condition they were at the date of the agreement, in principle the same reasons would exist for rescinding the agreement as exists in this case. If any other rule prevailed, the right to rescind an agreement would depend upon the amount of damages done the premises bargained for, and it would devolve upon the court to decide when a sufficient amount of damages had been done, premises bargained for, to warrant a contracting party to rescind the agreement. We have been unable to find any authority, and do not believe that any exists, to the effect that where an appurtenance to real estate, which was not the chief inducement to the purchase of the same, has been damaged, or even destroyed, without any fault of the vendor, so that he could not deliver the premises on the day they were to be delivered to the vendee in the same condition they were on the day the agreement was made, the vendee would have the right to rescind the agreement altogether.

Believing that such is not the law, we find no error in the ruling of the court below.

It is true, if the premises were respondent's at the time of the fire, the loss of the buildings would be his, and the appellants might have their value deducted from the amount they were to pay him for the premises; or, if the buildings were the chief inducement for the purchase of the premises, perhaps a court of equity would, for this reason, order the agreement rescinded and canceled. But, to allow a vendee to rescind an agreement for the purchase of real estate, for a damage to an appurtenance thereto, without any fault of the vendor, which could be compen

sated for in money, would be going farther than we think we would be warranted. For the same reason we see no reason why the vendor might not rescind the agreement. He is without fault, and the obligations of an agreement are mutual; hence, if one could rescind, why not the other. Yet who doubts that the vendees in this case might have maintained an action for a specific performance of this agreement, had they performed, or offered to perform, their part of the agreement, and could have had the value of the building deducted from the amount to be paid for the premises.

These being the views of the court in this case, the judg ment of the court below is affirmed.

Exceptions overruled.

GRANT, respondent, v. SPENCER et al., appellants.

STATUTORY CONSTRUCTION

- act relating to grounds for refusing new trial is directory. Section 196 of the civil practice act, requiring the court to state in writing the grounds on which a new trial is refused, is directory. The failure of the court to state such grounds in this case did not injure the appellants.

PROMISSORY NOTE-1 -notice of non-payment not waived by presence of indorser. The presence of one of the indorsers of a note, when the holder presents it to the maker at maturity for payment, does not waive a regular notice of its non-payment to the indorsers.

Appeal from the First District, Madison County.

ON April 28, 1868, Grant commenced this action in the district court against three defendants, on the following instrument:

"$700 Gold.

VIRGINIA CITY, M. T., October 1, 1867. On the 1st day of March, 1868, for value received, I promise to pay Spencer, Harrison & Co., or order, the sum of $700 in good gold dust or United States currency, at cur

rent rates, with interest from date until paid, at the rate of five (5) per cent per month.

[Stamp.]

Indorsements:

J. B. CHAPIN."

"We hereby transfer the within note to J. M. Grant, Virginia City, M. T., December 7, 1867.

SPENCER, HARRISON & CO."

The payments indorsed thereon amounted to $392.50. A jury trial was waived and the case was tried by the court, HOSMER, J., in June, 1868, and judgment was rendered for plaintiff for $698, which was to bear interest at the rate of 5 per cent per month until paid. The defendant's motion for a new trial was not heard until May, 1869, when the court, WARREN, J., overruled the same, without stating in writing the grounds therefor, and defendants appealed.

The statute of Montana, relating to indorsers on promissory notes, is as follows:

"Indorsers of * * promissory notes shall be contingently liable only, until after they shall have been notified of the presentation and non-payment thereof, at maturity, by the person or persons primarily liable for their payment."

"In order to make the contingent liability of any indorser of any *** promissory note absolute, it shall be necessary for the holders of the paper to cause it to be presented at the place where, by its terms, it is payable, if any place of payment be therein or thereon specified, and if no place of payment be specified, then to the person himself who is primarily liable for the payment; and, if payment thereof, on such presentation at maturity, be neglected or refused, to cause a written or printed, or partly written and partly printed, notice of such presentation, demand and non-payment, briefly describing the note, to be served immediately thereafter upon the indorser, unless the same shall be protested in the usual manner by a notary public; in which case the official certificate of protest of such officer, made on the day VOL. I.-18.

* * *

of protest, inclosed in letter form, and deposited, post-paid, in the post-office, directed to such indorser at his usual place of residence, will charge him in the same manner."

During the argument of the case, the respondent remitted all interest on the judgment, in excess of ten per centum per

annum.

The other facts are stated in the opinion.

H. N. BLAKE, for appellants.

The court should have stated in writing the grounds on which the new trial was refused. Civ. Pr. Act, 1867, § 196. The statement shows the following facts: That no false representations were made to respondent by appellants concerning the note; that respondent neglected to collect the same from the maker, because he was obtaining five per cent per month interest; that respondent bought the note on his own judgment, and that the note was not protested until two months after maturity.

The pleadings of the parties treat the instrument sued on as a negotiable promissory note. Complaint and answer. The appellants were indorsers upon the note and entitled to notice of the presentation and non-payment thereof at maturity by the maker. Acts 1865, 343, §§ 5, 6.

The instrument sued on possesses all the elements of a negotiable promissory note. The amount to be paid on the note is fixed in it, and also by the statute. 1 Pars. on Notes & Bills, 30, ch. 3; Acts 1865, 338, § 1.

The rate of interest on the judgment should be ten per centum per annum. Griffith v. Hershfield, ante, 66.

DAVIS & THOROUGHMAN, for respondent.

No brief on file.

SYMES, J. This was an action on a promissory note holder against indorsers - tried at the Madison county district court in June, 1868, before the court, and judgment given for plaintiff for amount due on note. Motion for new trial overruled, and case brought up on statement for new trial and order overruling same.