— The plaintiff commenced this action in the lower court to recover on two causes of action. By his first cause of action he alleged the sale and delivery to the defendants of four hundred and forty thousand eight hundred and fifteen feet of white pine, tamarack and cedar sawlogs, for which defendants promised and agreed to pay the sum of $1,569.12; that the defendants have failed, neglected and refused to pay any part thereof save and except the sum of $517.32 ,• that there is still due and owing to plaintiff from defendants the sum of $1,051.80. By the second cause of action plaintiff alleged that on about June 20,1903, he entered into a contract with the defendants whereby he agreed to drive four hundred and forty thousand eight hundred and fifteen feet of sawlogs from a point on Dolan creek in Kootenai county to Clark’s Fork river at the mouth of Dolan creek, for the sum of fifty cents per thousand feet, and that the defendants agreed to furnish and put in a boom in Clark’s Fork river to hold and protect the logs to be driven by plaintiff. And plaintiff alleges that he commenced to drive the logs, but that defendants failed, neglected and refused to prepare and put in the boom, and that by reason thereof plaintiff was put to extra labor, expense and trouble in the performance of the contract on his part, and that such extra labor, expense and trouble was to his damage in the sum of $75, and that the defendants had failed and refused to pay the plaintiff for his services in driving the logs in the amount of $220.40, and prayed judgment for the total sum of $1,347.20. Defendants’ answer consisted of denials. In answer to the first cause of action defendants deny “that plaintiff did, on or about the 1st day of June, 1903, or at any other time, sell or deliver to the defendants the four hundred and forty thousand eight hundred and fifteen feet of white pine, tamarack or cedar sawlogs mentioned in the complaint of the plaintiff.” Denies that they promised to pay plaintiff the sum of $1,569.12, or any sum; *549deny tbe reasonable value of tbe logs; deny that they paid tbe plaintiff anything on the contract. The defendants closed their answer to plaintiff’s first cause of action -with the following paragraph: “Defendant further answering avers that on or about June 1, 1903, the plaintiff did negotiate with the defendant for the sale of certain sawlogs, but that during said negotiation the defendant discovered that said logs were not the property of the plaintiff, but that they had been removed from land not owned by the -plaintiff, and without the permission of the owner thereof, and forthwith did defendant cease all negotiations and refuse to make any contract pertaining to said logs, and refused to accept said logs under any condition whatever; that during the pendency of the above-named negotiations and subsequent thereto, and independent thereof, the plaintiff secured credit of the defendant in the amount of $517.32.” The answer to plaintiff’s second cause of action consists of specific denials. Defendants then plead a counterclaim against plaintiff for the sum of $517.32. The case went to trial upon the issues thus made before the court without a jury. The court in its decision found in favor of the plaintiff and against the defendants on all the issues, and ordered judgment in favor of the plaintiff for the sum of $1,347.20, and judgment was thereupon entered accordingly. During the progress of the trial the defendants offered to introduce evidence tending to show that the logs for which plaintiff was seeking to recover the purchase price were cut by plaintiff from unsurveyed government lands, and that the title to the logs was not in the plaintiff at the time, but was in the United States government. To this offer the attorney for the plaintiff objected on the grounds that such question had not been made an issue by the pleadings in the case. The court, in ruling on the objection, said: “The question of title to these logs is not in issue here in the pleadings.” After this ruling by the court it was agreed between counsel for the respective parties that the defendants might introduce such evidence as they had tending to show failure of title in plaintiff to the property which he claimed to have sold, and that the competency and admissibility of *550such evidence as might be introduced should be argued by counsel in making their final argument of the case to the court. Under this agreement some evidence was introduced tending to show that the logs had been cut from a forty-acre tract of land which had been surveyed, but the survey had not yet been accepted by the government. • It was also shown that one Tom Dolan, from whom plaintiff bought the timber, had occupied the land as a “squatter” under claim as a homestead since about 1891, and that he had some twenty acres cleared and in orchard, meadows, gardens, etc. After the close of the evidence defendants asked leave to make an amendment to their answer, which was granted by the court, and the amendment was as follows: “Defendants admit that they did negotiate for the purchase of said logs, but specially averring shows the court that during the pendency of said negotiations plaintiff stated that he would secure said logs from all liens and encumbrances and claims of any persons, and that he was to guarantee the title to the said logs. Defendant specially denies that plaintiff had title to said logs by reason of the fact that said logs were cut from unsurveyed lands. ’ ’ The only serious contention made by the appellants in this court for a reversal of the judgment is stated by appellant’s counsel in his brief as follows: “The main point upon which appellants rely is the fact that respondent had no title to the logs described in the complaint, the same having been cut from land belonging to the United States government, and even had there been a contract made and entered into by and between respondent and appellants, whereby said logs were actually sold and delivered to appellants, such contract would have been contrary to public policy and therefore void, and could not be enforced by the courts, and no valid judgment could be rendered thereon.” Respondent contends, however, that there was no issue made in the lower court by the pleadings as to illegality of the contract nor as to failure of plaintiff’s title to the property which he claims to have sold to defendants.
The only issue made by the pleadings was: On the first cause of action a denial of the sale and delivery of the prop*551erty. Indeed, if tested by the strict rules of pleading, it is extremely doubtful if upon the first cause of action the plaintiff would not have been entitled to a judgment on the pleadings. As to the second cause of action the only issue was as to the making and entering into the contract, defendants denying that they entered into such contract. No issue was presented either by the original or amended answer as to the illegality of the contract or failure of title. It is true that the defendants inserted in their answer a paragraph as a reason why they did .not enter into the contract alleged by plaintiff that plaintiff had no title to the property. But it would clearly make no difference what reasons defendants had for not entering into the contract, if, indeed, they did not contract. Their reasons for not doing so were entirely immaterial, were no part of their defense, and evidence to that effect was clearly inadmissible. By the answer in this ease the plaintiff was notified that the only issue to be tried was the execution of the contracts alleged and the delivery of the property. Under these allegations no reasonable person could have been expected to prepare for trial upon the issue of illegal contract or failure of title in plaintiff to the property about which he had contracted. How could he be expected to meet the issue of illegal contract when the defendant denied that there had been any contract at all? We think the district judge was clearly correct when he held that want of title and illegality of contract were not an issue in the case. The answer of the defendants furnished the plaintiff with no information as to the nature of the defense which is being urged in this court. “If the defendants did not enter into the contract and receive the property as alleged by the plaintiff, then they were not liable and it would make no difference to them whether he owned the property or ever had the property. If they did enter into the contract as alleged by him, and received the property, then their answer did not present the issue upon which they expected to successfully defend against the plaintiff’s cause of action, and they should not be heard to substitute a new defense upon appeal.” The contention as made in this court would be *552in the nature of a confession and avoidance. In section 3355 of Estee’s Pleadings, fourth edition, it is said: “All matters in confession and avoidance showing that the contract sued upon was void or voidable in point of law must be affirmatively pleaded. It seems that illegality in a contract sued on, though shown by the testimony, cannot avail the defendant, unless it is alleged in the pleadings; and that an allegation in the answer that the contract was illegal, coupled with an enumeration in the same paragraph of specific grounds of illegality, does not entitle the defendant to prove any grounds of illegality not so specified.” This text seems to be supported by Finley v. Quirk, 9 Minn. 194, 86 Am. Dec. 93; Buchel v. Evans, 21 Or. 315, 28 Pac. 67; Jameson v. Coldwell, 23 Or. 144, 31 Pac. 279; Lyts v. Keevey, 5 Wash. 609, 32 Pac. 534; Heffron v. Pollard, 73 Tex. 96, 15 Am. St. Rep. 771, 11 S. W. 165; 1 Chitty’s Pleadings, 16th Am. ed., 506; Bliss on Code Pleadings, see. 330. “We conclude that the question argued by plaintiff on this appeal was not made an issue by the pleadings in the ease, and is not, therefore, properly before this court for our consideration.” It is fair to observe here that counsel who presents this appeal on behalf of defendants appears not to have been in the case until after judgment was entered against the defendants in the lower court. In fact, the original answer appears to have been drawn by one of the defendants and the amendments thereto by other counsel who appeared for defendants on the trial of the case in the lower court. For the reasons above stated the judgment will be affirmed, and it is so ordered. Costs awarded to respondent.
(January 9, 1906.) Sullivan, J., concurs.