delivered the opinion of the court.
It is contended that errors were committed in striking out the third defense and in sustaining a demurrer to the second. The defendant’s counsel argue that the third defense was in the nature of a plea of former adjudication by the tribunal having jurisdiction thereof, and that the statement of facts in the •second defense was sufficient.to defeat the action, for the reason that the breach of the contract assigned in the complaint was .superinduced by the plaintiff’s voluntary act. We will first consider the third defense.
1. A rule of the General Land Office of the "United States, in force when the alleged adjudication of the mineral character ■of the base was rendered, required that all applications for the •selection of indemnity-school lands should be so presented that the tract chosen might be connected with a specific part of the *122public domain as the basis of the selection: Circular of July 23, 1885, 4 Land Dee. Dep. Int. 79. When the selection of indemnity school lands has been approved and certified, the title thereto vests in the state, if the general government is the owner of the premises (Tenner v. O’Neill, 15 Land Dec. Dep. Int. 559), and as a corollary from this legal principle it must necessarily follow that the base offered in exchange by the selection is exhausted by the approval. As the alleged adjudication of the validity .of the base specified is equivalent to a statement of the approval of an indemnity selection in lieu thereof, the real property lost to the state in section 16 or 36, by reason of its mineral character, could not again be used for that purpose, and, this being so, that part of the answer stricken out did not state facts sufficient to constitute a defense to the action if the United States was the owner in fee of the indemnity school land chosen. The averment to which the motion was directed does not negative such ownership.
2. The defect in the pleading, however, should have been attacked by demurrer, but, as no injury could have resulted from the course pursued, the error, if any; was not prejudicial.
3. The second defense averred that, while the selection of indemnity school lands was pending before the proper tribunal, the Governor of Oregon, at plaintiff’s request, withdrew such choice and waived the state’s right thereto, thus preventing a favorable decision on the application. If the defendant was prevented from making as complete a defense as he might have otherwise done, if the demurrer had not been sustained, the judgment should be reversed. Evidence of the request for a relinquishment of the right of the state to the indemnity school lands was received on the assumption that the issue as to the validity of the base made it material, and, this being so, we do not think any prejudice resulted from the mode of trial adopted.
4. It is contended that error was committed in permitting testimony to be introduced, over objection and exception, tending to show that after the contract relied upon was executed dhe defendant made distinct promises to repay plaintiff the money *123which he had received. It was alleged in the complaint that the defendant agreed to repay the money in case the base which he furnished should prove invalid; and, this averment having been denied in the answer, the testimony so objected to was pertinent as tending to establish the terms of the contract relied upon for a recovery: Manary v. Runyon, 43 Or. 495 (73 Pac. 1028).
5. The plaintiff as a witness in his own behalf was asked on cross-examination if the contract sued upon was not made with the State of Oregon to enable him illegally to obtain from it the land selected as indemnity; but, an objection to the inquiry having been sustained and an exception allowed, it is insisted that an error was 'thereby committed. The statute limits the quantity of land that can be purchased from the state by any person, and requires him to make affidavit as to certain facts respecting his qualification as a condition precedent to the right to secure a title to such lands: B. & O. Comp. § 3302. The transcript shows that the persons to whom the state was to convey the lands selected were related by marriage to the plaintiff, but we do not think it can be inferred from an examination of Ins testimony, which has been sent up, that he had entered into a contract with them to violate the law, and, unless such deduction reasonably follows from the direct examination of the' witness, no error is committed in refusing to permit him to be cross-examined on the subject: Pacific Livestock Co. v. Gentry, 38 Or. 275 (61 Pac. 422, 65 Pac. 597).
It is maintained that error was committed in refusing to permit the defendant’s counsel to cross-examine the plaintiff and his father-in-law, Dr. W. A. Cusick, as to the interest of either in the cause of action, or to the money sought to be recovered herein. As no testimony was given by these witnesses on that subject in their direct examination and no issue made in relation thereto, no error was committed as alleged.
6. It is claimed that the court erred in refusing, to allow the defendant to testify as to whether or not the plaintiff had ever requested him to supply other base than that which he furnished. The answer alleged that, if the base which was supplied should *124fail or be invalid, the defendant would try to substitute other base therefor, which averment was denied in the reply. The burden of proving the defendant’s theory in this respect was therefore imposed upon him, and it became his duty to make such endeavor, and it was not incumbent upon the plaintiff to demand other base when that which he procured failed.
7. It is insisted that an error was committed in denying a motion for a judgment of nonsuit. The transcript shows that the State of Oregon, on March 10, 1900, filed in the local land office at Oregon City, list No. 380, whereby it selected, certain indemnity school lands in lieu of the premises used as bases therefor, a description of which is set out in the complaint. Pursuant to a stipulation of the parties, there were offered in -evidence copies of letters written by the Commissioner of the General Land Office at Washington, D. C., or by his assistant, to the local land officers in Oregon, relating to the lands referred to herein as base, and copies of notices given in obedience to directions contained in such letters, addressed to agents of the State of Oregon having charge of its lands. These letters relate to the rejection of indemnity selections of school lands in consequence of the failure of the state to prove that the premises alleged as mineral were of that character. The letters referred to specified the time, usually 60 days after notice thereof, in which to supply such evidence, or to appeal from the order, in default of which the selection, which had been suspended, would be canceled without further notice. The premises so rejected for the reason stated, the lists in which the lands were included, and the time of giving the notices to the agents of the state are as follows: The N. of the N. E. ¿, the. S. and a deficit of 14.55 acres in the N. W. J of section 36, in township 12 S., of range 39 E. of the Willamette Meridian, list No. 287; November 15, 1897. A deficit in the S. E. of section 36, in township 8 S., of range-34 E., list No. 114; November 6, 1895. A deficit in section 16, in township 8 S., of range 35-J E., list No. 99; December 13, 1897.’ The E. -J of section 16, in township 8 S., of range 35|- E., list No. 280, the schedule involved herein; Oc*125tober 17, 1902. And the N. E. J of section 36, in township 12 S., of range 39 E., list No. 380; February 9, 1904. The rejection last noted states that the premises therein described had been adjudged mineral April 12, 1897.
The decision thus set aside is evidenced by a copy of a letter-from the Commissioner of the General Office, of the date last mentioned, addressed to the register and receiver of the local office at La Grande, which states that their conclusion on the application of the State of Oregon to prove that certain lands in school sections were mineral, whereby they determined that all of section 36, in township 12 S., of range 39 E., was of that character, was affirmed. This letter does not refer to any list of lands that had been selected by the state as indemnity under a separate and distinct number, nor was the land so described therein that the tract selected might be connected with a specific subdivision of a section as the basis of selection as required by circulars issued by the Secretary of the Interior: 4 Land Dec. Dep. Int. 79; 24 Land Dec. Dep. Int. 548. Though the rule res judicata is applicable to final decisions rendered by the Land Department of the Dnited States when called in question by the same parties upon a subsequent application for the identical public land pursuant to the law theretofore invoked (Southern Pac. R. Co. v. Burlingame, 5 Land Dec. Dep. Int. 415; Blodgett v. Central Pac. R. Co. 6 Land Dec. Dep. Int. 309), irregularicy of proceeding warrants the Commissioner of the General Land Office in reviewing the decision of his predecessor: Graham v. Hastings, etc., Ry. Co. 1 Land Dee. Dep. Int. 362.
8. The decision of April 12, 1897, which was relied upon in t'he third defense, having been set aside by a successor in office-June 13, 1903, in rejecting a part of indemnity selection No. 380, it must be taken for granted that the prior adjudication was considered irregular probably on the ground of a failure-to comply with the rules prescribed by the Secretary of the Interior as hereinbefore indicated. When the indemnity school selection involved herein and evidenced by list No. 380 was filed,, it had been determined by the proper tribunal, as to all the land. *126specified in that schedule as mineral, that the state had failed to prove such character of the premises, except as to the N. E. 1- of section 36, in township 12 S., of range 34 E., and as to the land last mentioned the -same conclusion was reached June 13, 1903, in setting aside a former adjudication in relation thereto, but no notice of the suspension or of the right to appeal from the order was given the agent of the state until February 9, 1904, and prior to the expiration of the time limited the Governor relinquished the state’s claim thereto. The plaintiff’s money was paid to the defendant in consideration of securing a title from the State of Oregon for the indemnity school lands selected, as described in list No. 380, to obtain which the base mentioned, as an equivalent therefor, must have been valid, and, as the contract was entire, a failure of any part of the base was such a breach of the conditions of the agreement as to warrant a relinquishment of the state’s right to the only apparent valid base before the expiration of the 60 days allowed in which to offer further proof of its.mineral character. No error was committed in denying the motion for a judgment of nonsuit.
The decisions adverted to permitted the State of Oregon to ■submit further evidence of the mineral character of such lands within a stated time, or to appeal from the orders; but, failing to do either, the adjudications would become final. Oswald West, an agent of the state, whose duty it was to supervise these1 matters, having been called as plaintiff’s witness, was permitted, over objection and exception, to testify that no further evidence had been offered as required, nor had any appeal been taken. As this agent was competent and his testimony material, no ■error was committed in admitting it.
Other alleged errors are assigned; but, deeming them imma-
terial, the judgment is affirmed.
Affirmed.