delivered the opinion of the court.
1. The contention is made by appellant that the complaint does not state a cause of action. Eespondent argues that this contention presents a question which cannot be determined upon this appeal. The sufficiency of a pleading will not ordinarily be examined on the motion for a new trial, nor on appeal from an order disposing of it, because the motion presents for review only rulings made during the progress of the trial. Eulings made prior to trial are reviewable on appeal from the judgment. (Scherrer v. Hale, 9 Mont. 63, 22 Pac. 151; Powder River Cattle Co. v. Commissioners of Custer Co., 9 Mont. 145, 22 Pac. 383.) An exception to this rule is recognized, however, when the sufficiency of the pleading is challenged during the progress of the trial by objection to the introduction of evidence on the ground of want of substantial allegations therein, or other appropriate method. (Campbell v. Great Falls, 27 Mont. 37, 69 Pac. 114; Alpers v. Hunt, 86 Cal. 78, 21 Am. St. Rep. 17, 24 Pac. 846, 9 L. R. A. 483; Hayne on New Trial and Appeal, sec. 1; Spelling on New Trial and Appellate Practice, sec. 388.) At the outset of the trial of this case appellant objected to the introduction of evidence by the plaintiff on the ground that the complaint does not state a cause of action; the court overruled the objection; the appellant brings himself within the recognized exception, and is entitled to the judgment of this court upon the correctness of this ruling.
The complaint presents a double aspect. In the first portion of it plaintiff seeks to recover on an express contract, under the terms of which there is alleged to be due him the sum •of $37.50 per month since February 1, 1899. He also asks *510to be declared the owner of one-half of the saloon building. Then follow allegations setting forth, as ground for additional recovery, the occupation and use by defendant of the other portions of the common property without consent of the plaintiff. Two causes of action are therefore blended, whereas they should have been separately stated. (Code of Civil Proc., sec. 672.) No objection was made to the pleadings on this ground, however, and this feature of it may be passed without further notice.
The objections upon which appellant relies are, that there is alleged no agreement by defendant to pay rent, nor any statement of facts from which it appears that defendant has ousted the plaintiff, or has assumed and exercised exclusive ownership over, or has destroyed, lessened in value, or otherwise injured the common property so as to give the plaintiff any ground of action, and that no demand for an accounting is alleged.
The respondent in his brief designates this action as one in equity for an accounting. This designation does not determine its character. This must be determined by the kind of relief to which the allegations show him to be entitled. Passing for a moment the allegations touching the express contract with reference to the saloon building, the question arises: Under what circumstances may one cotenant maintain an action against one or more of his cotenants for an accounting for the use and occupation of the real estate owned in common ?
The rule at the common law was that, where one cotenant occupied the common property and took the whole profit, the other had no cause of action against him unless the acts of the occupant amounted to an ouster of his companion, or unless the occupant held under an agreement by which he became bailiff for the other as to his share. In the one case, ejectment lay in favor of the ousted cotenant to admit him into joint possession;, in the other, he had his action of account for his share of the rents and profits, just as against a bailiff in charge of an estate which the plaintiff owned in the entirety. The lack of any suitable means of redress, when one cotenant had received *511more than his share- of the rents and profits, led to the enactment of the statute of Anne (4 & 5 Anne, c. XYI.) Under its provisions, one cotenant became the bailiff of the other by receiving more than his share, and could be called to account; but, as interpreted by the courts of England, he could be held to account only when he received more than his share from another person. When he occupied and cultivated the land himself, the products were held to be the fruits of his own industry, and he could not be made to account for any part of them. (Henderson v. Eason, 1 Eng. Rul. Cas. 449.) In other respects the common-law rule remained unchanged, and no action lay in favor of the cotenant not in possession, except when ousted, or when his cotenant held as bailiff. The reason for the rule was that each cotenant was entitled to the occupation of the premises. So long as the one did not exclude the other, he was free to possess and enjoy as he pleased, because his possession was but an exercise of a legal right. He could not be deprived of this legal right by the caprice or indolence of his cotenant. This the law did not tolerate, but rather lent support to the notion that when the one refused to occupy and enjoy he thereby, for the time, at least, relinquished all right to the other. (Hopkins v. Noyes, 4 Mont. 550, 2 Pac. 280; Mullins v. Butte Hardware Co., 25 Mont. 525, 87 Am. St. Rep. 430, 65 Pac. 1004; Butte & Boston Con. M. Co. v. Montana Ore Pur. Co., 25 Mont. 41, 63 Pac. 825; Hamby v. Wall, 48 Ark. 135, 3 Am. St. Rep. 218, 2 S. W. 705; Reynolds v. Wilmeth, 45 Iowa, 693; Pico v. Columbet, 12 Cal. 414, 73 Am. Dec. 550; Israel v. Israel, 30 Md. 120, 96 Am. Dec. 571; Everts v. Beach, 31 Mich. 136, 18 Am. Rep. 169; Hause v. Hause, 29 Minn. 252, 13 N. W. 43; Humphries v. Davis, 100 Ind. 369; Ereeman on Cotenancy and Partition, sec. 258.)
Neither the statute of Anne nor the common-law rule is in force in this state. Section 2 of the Act of the territorial legislature of' February 8, 1865 (Bannack Statutes 1864-65, p. 454), materially modified the rights and relations of cotenants inter sese, and this section, with slight modifications as to rem-*512«dies, was- incorporated into the Code of Civil Procedure of 1895 as section 592. Amendments in the form of limitations and provisos were made to it by Act of the legislature of 1899 (Session Laws 1899, p. 134) ; but, as these affect the substantial rights of the parties touching the common property, a consideration of them is not now pertinent, since the cotenancy here involved was created prior to their passage. (Butte & Boston Con. M. Co. v. Mont. Ore Pur. Co., 25 Mont. 41, 63 Pac. 825.) They have no application.
The question is whether the allegations of the complaint now under, consideration state a case from any view of the law. The statute declares: “Sec. 592. If any person shall assume and exercise exclusive ownership over, or take away, destroy, lessen in value or otherwise injure or abuse any property held in joint tenancy or tenancy in common, the party aggrieved shall have his action for the injury in the same manner as he would have if such joint tenancy or tenancy in common did not exist.” This section has been considered several times by this court, and its application to cotenancies in mining property determined. (Anaconda Copper M. Co. v. Butte & Boston M. Co., 17 Mont. 519, 43 Pac. 924; Red Mountain Con. M. Co. v. Esler, 18 Mont. 174, 44 Pac. 523; Connole et al. v. Boston & Mont. Con. C. & S. M. Co., 20 Mont. 523, 52 Pac. 263; Harrigan v. Lynch, 21 Mont. 36, 52 Pac. 642; Butte & Boston Con. M. Co. v. Montana Ore Pur. Co., 24 Mont. 125, 60 Pac. 1039; Butte & Boston Con. M. Co. v. Montana Ore Pur. Co., 25 Mont. 41, 63 Pac. 825.) In the first three and the last one of these cases the court considered the character of the remedies which one cotenant of a mining claim could successfully invoke against another who was engaged in working it under circumstances showing the assumption and exercise of exclusive ownership amounting to an ouster, and held that the remedy of injunction was appropriate.
In Harrigan v. Lynch it was held that injunction would lie to prevent one eotenant from working the common property without the consent of the other, where he was removing ore *513and using the proceeds of it to pay obligations incurred in his operations, without reference to whether the operations were profitable or enhanced the value of the claim, thus distinctly recognizing the rule that the statute renders it unlawful for one cotenant in mining property to occupy and work it, though the circumstances do not tend to show an ouster; in other words, the nonconsenting cotenant is entitled, if he so wishes, to have the property stand in its entirety until such time as there may be a partition among the parties entitled. In the last case the history, scope and purpose of the Act of 1865 was considered and determined, and the general effect of it stated. After giving a history of the legislation, and pointing out its evident purpose, this court said: “In view of this plain purpose declared in unmistakable terms in the Act, in view of the fact that this purpose could be accomplished only by modifying the relations incident to cotenancy and creating new rights in the cotenants, and in view of the avowed object of the statute as declared in its title, the conclusion cannot be escaped that the legislative assembly clearly intended by this awkwardly worded section to alter substantially the rights of cotenants, make violations of those rights constitute legal injuries, and designate the appropriate remedies for such injuries.” And again: “We are of the opinion that the purpose of this section was to destroy those characteristics of tenancies in common wherein they mainly differ from holdings in severalty, leaving the necessity for voluntary or judicial partition as the chief remnant of the distinguishing features of this species of ownership; in other words, the first and second sections, which concern ‘Joint Eights,’ practically convert a joint tenancy into a tenancy in common, and then convert tenancy in common into an estate with many (whether with all, we need not decide) of the rights and privileges incident to several ownership, and giving the actions of trespass and trover for their protection.”
The effect of this change worked by the statute in the common law is further stated as follows: “For one cotenant without the consent of the other to mine and remove ore from the *514common property is an unauthorized taking away and lessening in value of the property within the meaning of the act of 1865; it is a permanent injury thereto (Murray et al. v. Haverty et al., 70 Ill. 318; Harrigan v. Lynch, 21 Mont. 36, 52 Pac. 642), and the principle declared in the act of 1865, at least as respects cotenancies in quartz and placer mining-claims, is that the common property shall remain an entirety until partition, and that no one of the owners may, without the-consent of the other owners, work it or lessen its value by mining and removing the ore deposits.”
Mining property differs from farm and city property in the.important particular that the former is consumed by the appropriate use of it. Nevertheless, at the common law, open mines could be worked by one cotenant, who would reserve the-proceeds to himself as the fruits of his own industry, without being subject to be called to account by his cotenant, so long as-he did nothing amounting to an ouster or unlawful destruction of the common property. In other words, the result of these decisions is that that which was lawful for one cotenant to do with respect to mining property at the common law was,, by the provisions of the act of 1865, rendered unlawful, so that his cotenant, not consenting to his act, can call him to account in the appropriate form of action; section 592, supra, having-wrought no change except as to remedies, the scope and effect of it are the same. If this be the proper construction of the act so far as it affects mining property — and we do not see how the conclusion of this court in this regard could ' have been avoided — it results that, wherever one cotenant assumes and exercises acts of exclusive ownership over agricultural or city-property, the same rule applies, for, to the extent that he uses the entire property as his own, to the same extent does he use the interest of his cotenant as his own.
So that, if one cotenant of a farm or of a city lot should enter into possession of it and enjoy it as his own property, he-can be held accountable by his cotenant for the mere use and occupation of it; and for a much stronger reason would the-*515occupying cotenant become liable to an accounting at tbe suit of the nonoccupying cotenant where tbe former rents out tbe property to tenants and collects and appropriates tbe revenues from it to bis own use. In sucb case tbe use of tbe property by tbe one of tbe cotenants would be tbe assumption and tbe exercise of tbe exclusive ownership over it, and bis cotenant would be a party aggrieved within tbe meaning of tbe statute. For, what was lawful use of tbe common property at tbe common law in tbe case of mining property having been made unlawful by tbe statute, what was lawful use of farm or city property must be, by tbe same rule, deemed to be unlawful.
Tbe general effect of tbe statute, then, is that, though one cotenant may not be guilty of a trespass when be enters upon tbe common property in order to protect and preserve it, yet if be occupies and uses it, or any part of it, as bis own without tbe consent of bis cotenant, be so far assumes and exercises exclusive ownership over it that be may be held to account in tbe proper action by bis cotenant; and thus tbe necessity for voluntary or judicial partition is left as not tbe chief, but tbe only, distinguishing feature of this species of ownership, except, perhaps, tbe duties and liabilities of tbe cotenants with reference to tbe protection and preservation of tbe common title. So that an action for tbe reasonable value of tbe occupation and use may therefore be maintained by one cotenant against tbe other, at least as to the net profits resulting from sucb occupation, whether they be tbe result of rents received from third persons bolding under one cotenant, or from profitable use by tbe cotenant himself. Tbe occupant becomes tbe bailiff for bis cotenant, and may be charged as sucb.
Tbe complaint contains no allegation of a demand for a general accounting and a refusal by defendant. This is a necessary allegation. Without it, tbe action cannot be sustained as one for an accounting. (Wetzstein v. Boston & Mon. Con. C. & S. M. Co., 28 Mont. 451, 72 Pac. 865.) Tbe statute does not prescribe tbe form, of action which may be resorted to, but leaves tbe plaintiff to select tbe one most appro*516priate. Whatever that may be, the allegations of the complaint must fulfill the requirements of the rules of pleading applicable. While this is true, there is sufficient substantial allegation to sustain the action for the recovery of rents due under the contract alleged with reference to the saloon building-
Tenants in common may contract with reference to the use of the common property. This is particularly the case under the statute, since their respective interests partake in great measure of the nature of estates in severalty. The" exclusive use by one is a sufficient consideration to support his promise to pay rent at a stipulated rate. The objections to the introduction of evidence being general, and not directed to any particular allegation or paragraph of the pleading, the action of the court in overruling them was correct.
That the action is one at law is manifest, since it proceeds upon a contract and seeks recovery for a breach. In so far as the prayer asks for an adjudication of the interests of the parties in the building itself, relief may not be had in this action; for, while the result of a judgment in plaintiff’s favor for a breach of the contract would indirectly adjudicate these interests, an action in ejectment would be required to determine them directly.
2. Contention is made that the court erred to the prejudice of the defendant in giving and refusing instructions. Respondent insists that the instructions may not be examined because the case is one in equity, and invokes the rule that error in giving or refusing instructions is not ground for reversal. What has heretofore been said disposes of respondent’s contention. Appellant was entitled to a trial by jury as a matter of right, and the alleged errors touching the instructions are properly before this court for review. Furthermore, the cause was tried in the district court as one at law, a general verdict was had, and judgment entered thereon. It is too late now for respondent to change his ground and insist upon a different theory of the case from that upon which it proceeded in *517the trial court. (Talbott v. Butte City Water Co., 29 Mont. 17, 73 Pac. 1111, and cases cited.)
IJpon the burden of proof touching the contract, the district court instructed the jury as follows: “You are instructed that in defendant’s answer he denies the allegation of plaintiff’s complaint that the saloon building in controversy in this action was erected and constructed by him at a cost not to exceed $500, and ‘avers that said building was erected and constructed at a cost to defendant of $1,000 or thereabouts.’ In this connection, you are instructed that the burden of proof is upon the defendant to establish the cost of said building, and to establish it by satisfactory evidence, as he is in possession of a knowledge of the amount of the cost of said building; and if weaker or less satisfactory evidence than the defendant could have offered is offered in this case, and if it appears that stronger or more satisfactory evidence was within his power, and could have been offered had he so desired, you are instructed to view the weaker evidence with distrust.”
The burden was upon the plaintiff to establish the contract as well as the breach of it. Otherwise he could not recover. It therefore devolved upon him, after prima facie proof of the contract, to show that the building cost not to exceed the sum stated, or such other sum, though greater, as had already been discharged by the rents already accrued at the rate of $20 per month; in other words, the answer put in issue the allegations of the complaint, and the burden was on the plaintiff to show that the defendant had been reimbursed for one-half of the cost of construction by the plaintiff’s share of the accrued rents. This was necessary, otherwise no breach of the contract was shown. "When this appeared by prima facie proof, the burden shifted to the defendant to rebut it. This he might do by evidence tending to show that no such contract was made, or that the building cost more than the plaintiff’s evidence tended to show, and that the. plaintiff was therefore entitled to recover nothing, because the defendant had not yet been reimbursed; or, further, that, though something might be due under the *518contract, still it was much less than the sum claimed. An equipoise in the evidence upon any of these points would have been to defendant’s advantage.
The instruction, therefore, is open to the criticism made by appellant as being prejudicial. It virtually said to the jury: “If the evidence satisfies you that the plaintiff and defendant entered into the contract alleged, the plaintiff is entitled to recover the amount claimed, unless the defendant satisfies you by a clear preponderance of the evidence that the building cost more than the amount alleged by plaintiff”; whereas the plaintiff could not recover without making at least prima facie proof of each material allegation of his pleading. Whether the circumstances were such as to warrant the direction to the jury to distrust defendant’s evidence, on the ground that he had not presented other and more satisfactory evidence than he did, is a question not before us, as no criticism is offered on that ground. For the error in this instruction, a new trial must be granted.
It will not be necessary to examine in detail the other instructions given or refused. WTiat has already been said disposes of the contention of the parties with reference to them. It may be said generally that some of those given speak of the property in controversy as though the title to the whole lot of land were in dispute, whereas the only issues properly before the court were as to the right to recover on the contract. TJpon another trial these references should-be omitted, as they are likely to confuse the jury by directing attention to a matter assumed to be at issue in the case, whereas in fact it is not. That plaintiff and defendant were tenants in common was not in dispute.
3. Many errors are assigned upon rulings of the court in admitting and excluding evidence. We shall notice only two of these. On cross-examination of the plaintiff, counsel for defendant asked him if the contract with reference to the saloon building, or any note or memorandum of it, was in writing. ITpon objection, the evidence sought was excluded. The ap*519parent purpose of the question was to bring out evidence showing that the contract was oral, and therefore void under the provisions of sections 2340, 2342 and 2185 of the Civil Code. This point is made by appellant, and also the point that, even if the provisions of the statute do not apply, the question was proper as reflecting light upon the real controversy, and that the right of cross-examination was by the ruling unnecessarily restricted. The question was not at all pertinent, unless the ■evidence was intended to show that the contract was within the statute. It did not upon any other theory seek evidence that would in any wise contradict or impeach the plaintiff or shed any light upon the issues before the court. Its pertinency depends upon whether the contract, if oral, falls within the rule of the sections cited.
Sections 2340 and 2342 have no application. The first has reference to contracts for the sale of personal property. Under the contract alleged, there was no agreement for the sale of the building. It was an agreement by the defendant to erect the building upon the joint property, at the cost of both co-tenants, in consideration for which he was not to account until reimbursed from the proceeds of the rent at the stipulated rate, whereupon he was to account to the plaintiff for his share. Tor a like reason, section 2342 has no application. There was no contract for the sale of land, nor for any interest therein.
Section 2185 declares that “an agreement that by its terms is not to be performed within a year from the making thereof is invalid,” unless it be in writing and subscribed by the party to be charged, or his agent. (Subdivision 1.) It also declares that “an agreement for the leasing for a longer period than one year” is invalid, unless it is executed with like formalities. (Subdivision 5.) Subdivision 1, supra, is applicable to those contracts only which by their terms are not to be performed within one year by either of the parties. Therefore, where a contract may be performed by one of the parties within one year, the statute does not apply, especially so where the performance has been fully carried out. Though there is *520some difference in the views of the courts upon this point, the rule is supported by the weight of authority, both in this country and in England. “The meaning of the section is that no action shall be brought to recover damages in respect of the nonperformance of such contracts as are referred to in it; its design was to prevent the setting up, by means of fraud and perjury, of contracts or promises by parol, upon which parties might otherwise have been charged for their whole lives, and for that purpose it requires that certain contracts, shall be evidenced only by the solemnity of writing, and has no application to actions founded upon an executed consideration.” (Wood on the Statute of Erauds, sec. 279.) The text is supported by the following cases: Donellan v. Read, 3 Barn. & Adol. 899; 37 Eng. Rev. Rep. 588; Boydell v. Drummond, 11 East, 142; Dougherty v. Rosenberg, 62 Cal. 32; Horner and Congdon Executors v. Frazier, 65 Md. 1, 4 Atl. 133; Sherman v. Champlain Transp. Co., 31 Vt. 162; Sugett’s Admr. v. Cason’s Admr., 26 Mo. 221; Smalley v. Greene, 52 Iowa, 241, 35 Am. Rep. 267, 3 N. W. 78; Zabel v. Schroeder, 35 Tex. 308; Perkins v. Clay, 54 N. H. 518; Crocker v. Higgins, 7 Conn. 342; Chittington v. Fowler, 2 Root (Conn.), 387; Pinney v. Pinney, 2 Root (Conn.), 191; Berry v. Doremus, 30 N. J. L. 399; Holloway v. Hampton, 1 Mon. 415; Wolke v. Fleming, 103 Ind. 105. 53 Am. Rep. 495, 2 N. E. 325; McClellan v. Sanford, 26 Wis. 595.
The complaint alleges, not directly, indeed, but in substance, a full and immediate performance on the part of the plaintiff by his surrender to the defendant of the entire control of the property, with all revenues to be derived from it, until the stipulated rent should pay for the erection of the building together with the use of the property in the meantime by the defendant for the purposes of revenue under’ the agreement. The exclusive use and control is admitted by the defendant. Under these circumstances, the inquiry whether the contract was in writing was wholly an immaterial one.
Nor does subdivision 5 of the Act apply. The arrangement *521between tbe parties did not amount to a contract for a leasing by the one party to the other. The purpose of the contract was to make profitable property which up to the time of the agreement had yielded little or no revenue. While the arrangement did not preclude the defendant from occupying the building himself and conducting a business therein, yet it seems clear that it was the intention of the parties, as manifested by plaintiff’s allegations, that after its erection it should be rented to other persons, and the revenue derived therefrom, after the defendant had been fully reimbursed, equally divided between the parties, the question to be decided being, had the defendant on his part violated the agreement for failure to pay plaintiff his share ?
Rehearing denied July 29, 1905.The court admitted, over the objection of the defendant, evidence of the reasonable value of the portion of the lot occupied by defendant’s residence. Under the view airead v stated as to the sufficiency of the complaint to state a cause of action for an accounting, this was error.
4. Considerable parts of the briefs are devoted to a discussion of the insufficiency of the evidence. It is not necessary or proper to discuss this phase of the case, beyond stating that there is no conflict touching defendant’s control and use of part of the alleged property. The entire controversy turns upon whether there was a breach of the contract. The defendant contends that he was occupying it under an agreement by which he was to pay the plaintiff $10 per month for the use of all of the lot except the portion occupied by the plaintiff, this portion the plaintiff being allowed to occupy without accounting for any rent. The evidence on this issue is in conflict, and the court was justified in submitting it to the jury.
The court should have granted a new trial. Accordingly, the order is reversed, and the cause is remanded with directions that a new trial be granted.
Reversed and remanded.
Mr. Justice Milburn and Mr. Justice Holloway concur.