and perjuries. The promise was for a lease of more than three years, and hence, under the statute, it cannot be sustained. Nevertheless, an action for the breach of this parol agreement was well brought; but what should be the measure of damages? Not the difference between the price to be paid and the actual value of the lease; in other words, the value of the bargain. For since the case of Hertzog v. Hertzog, 10 Ca. 418, which overruled Jack v. McKee, 9 Barr. 235, and the cases which followed it, no such rule can be applied. On the other hand, we have in Thompson v. Shepler, 22 P. F. S. 160, and Sauser v. Steinmetz, 36 Legal Intell. 85, this rule stated as the proper measure of damages for the breach of parol leases and sales of lands; that is to say, the money paid and the expenses incurred on the faith of the contract but if no money has been paid or expenses incurred, the damages are nominal.

In the case in hand there was no money paid, neither was there any expense incurred on account of the land proposed to be leased. But it is urged, that without this promise the plaintiffs would not have put down the well upon the five acre lease. Let this be admitted; what then? They would have lost, according to their own showing, a bargain of $8,000. What kind of damages are these; they put down a well at a cost of $10,000, for which they got $18,000? What nonsense to talk about damages for the breach of an oral contract which led to such a result as this. But let us suppose the well to have been put down on the faith of a parol lease, and the result had as above stated, on a breach of the contract by entry of the landlord and ouster of the tenants, what would be the damages recoverable by the lessees? Nothing save the expenses they had incurred in the prosecution of the work. But as these are paid and overpaid from the land itself, they can get nothing more, for they have suffered no loss. There seems, indeed, to be a constant disposition on part of courts to revert to the exploded doctrine of Jack v. McKee, to impinge upon the statute in giving to the plaintiff some compensation for the loss of a good bargain. But this must not be allowed. Injury enough has resulted from that doctrine to demonstrate the wisdom of a strict adherence to the statute, and, it is to be hoped, that the ruling of Jack v. McKee will never again find a place in the jurisprudence of Pennsylvania. Manifestly, here is an attempt to get back upon the forbidden ground; an attempt to compensate the plaintiffs, at least in part, for the loss of a good bargain; otherwise; how could the court have permitted the plaintiffs to recover when they have suffered no loss? But we cannot thus permit the force and va

lidity of a valuable statute to be frittered away, and that upon equities and hardships which are purely fictitious. The plaintiffs have suffered neither loss nor wrong. They not only made money by their contract, but, as to the parol agreement, they knew it was binding on neither party. Had their operation on the lease proved a failure, McCafferty certainly could not have compelled them to sink a well on the other lot; neither could he have recovered damages for their refusal to do so. There being thus a total want of mutuality in the alleged contract, and the plaintiffs having suffered no pecuniary loss, they had no standing, either in law or equity, to recover any but nominal damages.

The judgment is reversed, and a venire facias de novo is awarded.

ANDREWS v. BURDICK. MECHANICS LIEN-BUILDING CONTRACT-ALTERATION OF INSTRUMENT.

(Iowa Supreme Court. June 15, 1883.)

Where a contract is entered into for the completion of a building by a specified date, payment to be made therefor when completed, and the building is not completed until some time after the uate fixed, a subcontractor who furnished material before the time specified for the completion of the building, and filed, within thirty days from the time the material was furnished, a mechanic's lien therefor after the date specified for completion, but before completion and before payment made by the owner, who, on the day the lien was filed, and before written notice thereof was served by the subcontractor upon him, but with verbal notice of the lien, paid the contractor in full, afterwards on the same day the written notice being served on him, the subcontractor is entitled to a lien. If the owner had no knowledge of the subcontractor's lien, the payment would defeat the lien. If he had such knowledge, the lien may be enforced.

A material unauthorized alteration of an instrument, without notice will not necessarily invalidate it. When such alteration is made by a stranger without an evil purpose through mistake, and it may be with certainty restored to its original condition, it will not be invalid as between the original parties, or when the interest of a stranger is brought in question.

Section 3173 of the code, limiting appeals to cases where more than $100 is involved unless certified to the supreme court, may be construed as applicable to chancery cases without giving it anffect which would be in conflict with section four of article five of the constitution, or inconsistent with section 2742 of

the code, which provides generally for the trial de novo of chancery cases on appeal; and a case so certified is to be decided upon the questions certified, and not de novo.

"An interest in real property is not involved in an action to enforce a mechanic's lien; and a case involving less than $100 may be certified to the supreme court under code, 3173.

The want of an assignment of error cannot be urged as a ground for dismissing an appeal, under section 3184 of the code, after a case has been heard upon the merits.

ADAMS, J., dissents as to the denial of the right of trial de novo.

Appeal from Palo Alto District Court.

Action in chancery to enforce a mechanic's lien in favor of a subcontractor. Judgment. was entered against the contractors, but the

nishing material in which to file his lien, and serve written notice thereof?"

2. The first question presents, briefly stated, the case of payment, by the owner of the building to the contractor, before the expiration of thirty days after the materials were furnished by the subcontractor, and before service of the written notice required by the statute of the filing of the claim and statement for a lien by the subcontractor, with knowledge that the subcontractor had furnished the materials.

3. The statute secures to a subcontractor a lien for materials or labors. Chapter 100, Acts Sixteenth General Assembly, § 7, (Miller's Code, § 2134; McLain's St. 599,) provides that "to preserve his lien as against the owner, and to prevent payment by the latter to the principal contractors or to intermediate subcontractors, but for no other purpose, the subcontractors must, within the thirty days, as provided in section six, serve upon such owner, his agent or trustee, a written notice of the filing of said claim." The notice referred to, which is provided for by section six, must be given within thirty days after the date upon which the last of the materials was furnished. It will be observed that the lien of the sub-contractor may exist for thirty days without the written notice; if such written notice be not given within that time the lien ceases. The provision is explicit, and no exception is found in the statute which will discharge the lien within the thirty days. But this court, liberally construing the statute so as to protect the owner, who, in good faith, paid the contractor in accord with the agreement between them, held that such payment, made without knowledge on the part of the contractor of the claim of the subcontractor, would defeat the lien of the latter. Stewart v. Wright, 52 Iowa, 335. The decision is based upon the right of the parties to the contract to make payment as provided therein, and the doctrine that the subcontractor must take notice of the contract between the owner and the contractor, and that his rights are subordinate thereto. The want of knowledge by the owner of the claim of the subcontractor is explicitly stated and recognized as a controlling element in the case.

In harmony with the foregoing case, Winter v. Hudson, 54 Iowa, 336, holds that payment by the owner in accord with the terms of his contract with the contractor, with knowledge of the claim of the subcontractor, will not defeat the lien of the latter. These cases are in point, and following them we answer the first question certified by the court below, by saying, that upon the facts which it presents, the

subcontractor is entitled to the lien which he seeks in this action to enforce. The fact

stated in the first question, that the building was not completed within the time prescribed in the contract, cannot change the result when payment is made with knowledge by the contractor of the subcontractor's claim.

4. The real point presented in the second and third questions, it seems to us, is this; Upon the facts stated, was the time of payment, under the contract, changed, so that the payment made on the third day of July was before the money unpaid upon the building and the price of the extras were due? -the inquiry appearing to be, whether the time of completion and acceptance of the building, as fixed by the contract, was the time of payment for the building and extras. We think the delay in the work, with the acquiescence of the owner, delayed the time of payment until the work was done and accepted, and as no time was fixed for payment for the extras, the price thereof became due when the building was completed and accepted. But we fail to perceive the importance of the question in connection with the facts of the case. The claim and statement of the subcontractors were filed, and written notice, required by the statute, was given within thirty days after the materials were furnished. The payment was made after the filing, but before the written notice, and upon the completion and acceptance of the building, when, in any view, the money must have been due. It follows that, if the owners had no knowledge of the subcontractor's claim, the payment defeats their lien; if they had such knowledge, the lien may be enforced.

5. The fourth and fifth questions do not present the case of an alteration of an instrument which would affect its validity. A material unauthorized alteration of an instrument, without more, will not, in all cases, wholly invalidate it. If the alteration be material and unauthorized, yet made by a stranger without an evil purpose, through mistake or the like, and it may be, with certainty, restored to its original condition, it will not be invalid as between the original parties, and surely will not be when the interest of a stranger is brought in question under it. We cannot, therefore, in reply to the question, say that the contract was affected by the alterations recited in the questions. Upon referring to the facts of the case, as disclosed by the abstract, which we are not required to do in answering the questions, it will be found that the alteration figuring in the case was the addition of words in pencil, and it is not shown by whom it was made. The evidence of one of the parties to the contract, who would be affected by the alteration, shows that it accords, precisely, with

the contract the parties made, and that they performed the contract as it reads, with the alterations, and acknowledged that they considered themselves bound so to perform it. No objection on the ground of the alteration seems to have been raised by the parties to the contract at any time or in any form. Surely, in a chancery case, where no prejudice results or can result to any one from an alteration of the character just described, which is brought in question by one not a party to the instrument, the alteration cannot be regarded as a thing affecting prejudicially the rights of parties or strangers to the instrument.

6. The plaintiffs claim that the case is not to be decided upon the questions certified by the judge of the district court, but must be tried de novo; insisting that the provision of code, § 3173, limiting appeals to cases when more than $100 are involved, unless certified to this court, cannot be construed to apply to chancery cases without giving it an effect which would be in conflict with section 4, art. 5, of the constitution, which bestows upon the court appellate jurisdiction in cases in chancery, and constitutes it a court for the correction of errors at law. The point made by counsel is that the statute, if applied to suits in chancery, would give this court jurisdiction to correct errors in chancery cases, as in actions at law. It cannot be doubted that under this constitutional provision it is competent for the legislature to regulate appeals in chan, ery and impose restrictions thereon in cases ot involving an amount specified. Such regulations and restrictions may be applied to law cases. There can be no reasons given why chancery suits may not be subject to the like provisions. Appeals, then, in chancery cases may be restricted, as in code, §3173; that is, the legislature may provide that cases which involve amounts less than $100 shall not be brought to this court for trial de novo, and there is no constitutional piovision prohibiting the legislature to provide for the trial of chancery cases in this court upon questions of law certified by the court below. The statute under consideration is, therefore, not unconstitutioual when applied to chancery actions. Nor is it inconsistent with code, 8 2742, which provides generally for the trial de novo of chancery cases on appeal, being a limitation and restriction upon that section excluding from its provisions cases involving less than $100. In this view both sections stand.

7. The restrictions of code, § 3173, do not extend to " any cause in which is involved any interest in real property." This action is to enforce a mechanic's lien. Is an interest in real estate involved therein? The right of plaintiff to the lien and to its enforcement is

involved in the action. Is this right an "interest in real estate ?" It is not a jus in rem or a jus in re,—a right to the property in question, but is a right to a remedy against the property whereby the real estate is subjected by the specific lien to the payment of plaintiffs' claim. See 1 Story, Eq. § 506; Connard v. Atlantic Ins. Co. 1 Pet. 386, (443); Meany v. Head, 1 Mason, 319. An interest in real estate is something more than a right to a remedy against it. The word "interest," as used in the section of the code just cited, means share, portion, part. See Webst. Dict. When applied to land it means the estate, right, or title held in or to it. See Bouv. Dict.; Co. Lit. 245-6. A lien, special or general, is not, therefore, an interest in lands. An action to enforce it is not within the exception to the limitations upon appeals found in code, §

3173.

8. The abstract before us fails to present an assignment of errors. All the questions involved in the case have been argued by counsel of the respective parties, defendants' counsel presenting a printed argument, in which they discuss all points made by the other side. But at its close they make the objection that no assignment of errors was made by plaintiffs. The statute provides that when errors are not assigned within the time prescribed, "the appelle may have the appeal dismissed, or the judgment or order affirmed, unless good cause for the failure be shown by affidavit." Code. § 3184. This statute does not contemplate that the case shall be tried in the ordinary way, upon the merits, and the want of an assignment of errors be finally urged as a ground of disposition of the case, thus unnecessarily consuming the time of the court and imposing costs upon the other party. Like all other objections, this one may be waived by the silence and acquiescence of the parties. It ought to be regarded as waived in this case. We are not to be understood as holding that the court may not require an assignment of errors, notwithstanding the waiver of the parties. The court may, upon its own motion, enforce the rule requiring the assignment, though waived by the parties. The question we do not desire to decide whether an assignment of error is necessary in chancery cases wherein questions are certified under code, § 3173. We have considered all questions discussed by counsel, and reach the conclusion that the decree of the district court ought to be reversed.

ADAMS, J., dissenting. I think that where an action in equity is tried below, upon its merits, and is in such a condition that upon appeal a final decree could be entered in this court, the action is triable de novo in this court, if at all. Code, § 2742.