does not allege that plaintiff was the owner of and entitled to the possession of the property therein described at the time the action was commenced. Defendant answered, and a trial was had to a jury which resulted in a verdict in favor of plaintiff. From the judgment rendered on the verdict, defendant appeals.

When the case came on for trial, defendant objected to the introduction of any evidence by plaintiff on the ground "that the complaint does not state facts sufficient to constitute a cause of action." The action of the court in overruling the objection is assigned as error. It is contended that the complaint is fatally defective because it contains no allegation of ownership or right of possession in plaintiff at the time the action was commenced. This same question was before this court in the case of Savings Bank v. Peterson, 30 Utah 475, 86 Pac. 414, 116 Am. St. Rep. 862. In that case the allegations of ownership and right of possession in plaintiff of the property involved, and the wrongful taking and detention of it by defendant, were substantially the same as the corresponding allegations in the complaint before us. In that case, as here, there was no allegation that the plaintiff was entitled to the possession of the property at the time the suit was commenced. In the course of the opinion Mr. Justice Straup, speaking for the court, says:

1

"In a suit to recover personal property the complaint must show the ultimate fact that the plaintiff was the owner or entitled to the possession at the time of the commencement of the action; and it is not sufficient to merely aver that he was the owner or entitled to possession at some period prior to that time."

The rule as there announced is supported by the weight of authority. In 18 Ency. Pl. & Pr. 536, the rule is stated as follows:

"Since the gist of the action of replevin is the right of possession, the declaration or complaint must contain an averment that the plaintiff is the owner of the property, or that the title is in him, or that the right of possession is in him at the commencement of the suit."

Under the rule as declared in the case of Savings Bank v. Peterson, supra, which seems to be in harmony with the current of authority, the complaint in the case at bar is insufficient, and the court erred in admitting evidence in support of the allegation therein contained.

Appellant also complains of and assigns as error certain instructions given by the court to the jury, but we do not think these assignments contain sufficient merit to warrant a discussion of the points therein raised.

The judgment is reversed, with directions to the trial court to permit the parties to amend their pleadings, should they so desire, costs of this appeal to be taxed against respondent.

STRAUP, C. J., and FRICK, J., concur.

RYAN v. CURLEW IRRIGATION & RESERVOIR COMPANY.

No. 1995. Decided September 16, 1909 (104 Pac. 218).

1. CONTRACTS-BUILDING CONTRACTS-STIPULATIONS-CONSTRUCTION. A stipulation in a building contract, specifying the manner of the construction and the amount and quality of the materials, that a third person should be referee in all cases arising under the contract, and that if the superintendent of the contractee should question the work, the contractor should stop the work until the question had been settled by the referee, whose decision should be binding, was a cautionary stipulation inserted for the benefit of the contractee, and it was not a stipulation whereby the whole matter as to whether the work and materials were of the kind and quality named in the contract, and whether the construction was to the satisfaction of a person agreed on by the parties. (Page 387.)

2. CONTRACTS - - CONSTRUCTION.

The court in construing a contract must construe and apply together all the provisions thereof, and each provision must, if possible, be given effect. (Page 388.)

3. CONTRACTS-BUILDING CONTRACT-STIPULATIONS-WAIVER. Where neither party to a building contract paid any attention to the clause providing for a referee, to whom should be referred any disputes, and both parties treated the matter as if no such clause existed, though the parties had disputes, both parties waived the clause by mutual consent, and it could not be enforced against one in favor of the other. (Page 389.)

4. CONTRACTS-BUILDING CONTRACTS-ACCEPTANCE OF WORK. A building contract, specifying the manner of doing the work, and providing that on its completion a person named may accept it, does not authorize such person to bind the contractee by an acceptance of work not done in accordance with the contract, or to place an erroneous construction on the contract, and bind the parties, or either of them, thereby. (Page 390.)

5. CONTRACTS BUILDING CONTRACTS PERFORMANCE EVIDENCE. That the person representing the contractee in a building contract made no objections while the work was in progress, and did not submit any matter to the referee named, to whom questions should be referred, as to whether the work or material was in accordance with the contract was only evidence more or less strong that the work and material were in accordance with the contract. (Page 390.)

6. CONTRACTS - BUILDING CONTRACTS

PERFORMANCE EVIDENCE.

Where a building contract provided that the work should be done in accordance with the specifications under the supervision of the superintendent, but did not provide that he should be the sole judge of whether the contract had been complied with, or that his acceptance should be conclusive on that point, the acceptance of the work by the superintendent was only evidence tending to show that the work and material were in accordance with the contract. (Page 390.)

7. CONTRACTS-BUILDING CONTRACTS-RECOVERY. A contractor suing on the contract cannot recover unless he shows that he has substantially complied with it. (Page 391.)

8. CONTRACTS-BUILDING CONTRACTS-WAIVER OF BREACH. That the contractee in a building contract specifying the manner of doing the work made no objections as the work proceeded did not preclude him from asserting, when sued for the contract price, that the work had not been done in accordance with the contract. (Page 392.)

9. TRIAL

INSTRUCTIONS-EXCEPTIONS-SUFFICIENCY.

Exceptions to

an instruction as a whole cannot be considered, where the whole instruction is not bad. (Page 393.)

10. TRIAL-INSTRUCTIONS

- EXCEPTIONS SUFFICIENCY. Exceptions aimed at excerpts of instructions are unavailing where the instructions, when considered as a whole, are correct. (Page 393.)

APPEAL from District Court, First District; Hon. W. W. Maughan, Judge.

Action by Edward Ryan against the Curlew Irrigation and Reservoir Company.

Judgment for defendant. Plaintiff appealed.

AFFIRMED.

S. T. Corn and A. Howat for appellant.

Fred J. Holton and J. D. Call for respondent.

RESPONDENT'S POINTS.

The owner of the real property who has employed another to erect a structure on his land does not, by taking possession and applying the structure to the uses for which it was built preclude himself from insisting that the builder has not properly fulfilled his contract. The results cannot be separated from the necessary consequences of ownership and as he cannot without prejudice to himself reject them or refuse to retain them the law does not imply any promise of his acceptance of them. This being so it matters not whether at the time he is or is not aware of the defects. (Mohry v. Reed, 40 Mo. App. 99; Steret v. Fulton, 31 Mo. 59.) Each material as it is placed in the work becomes annexed to the soil and therefore the property of the owner. As the erection is his by annexation to the soil he may suffer it to stand and there is no rule of law against his using it without prejudicing his rights. (Smith v. Bray, 17 N. Y. 173, 72 Am. Dec. 442; 16 Cyc. 29; Cannon v. Hunt, 113 Ga. 501; Mallard v. Moody, 31 S. E. 45; Wartz v. Metcalf, 23 Ky. L. R. 2189, 66 S. W. 824; Lewis

v. Slack, 27 Mo. App. 119; Glacius v. Black, 50 N. Y. 145, 10 Am. Rep. 449; Leverone v. Arancio, 179 Mass. 439; Fitzgerald v. Moran, 141 N. Y. 419; 36 N. E. 508.) The superintendent and company had a right to test the dam and ascertain whether or not it was fit for the purpose for which it was intended. The reservoir and dam site belonged to the company. The fee was in it. It had paid $388 more than it should, not counting the 25 per cent it had a right to withhold. Ryan had abandoned the work and refused

to return.

FRICK, J.

On the 20th day of June, 1905, appellant and respondent entered into a contract by the terms of which appellant agreed to construct and complete a certain dam in Box Elder county, Utah, for the respondent. The contract, among other provisions, contained the following:

"The party of the second part [appellant] hereby undertakes and agrees to furnish the necessary labor and materials, including tools, implements and appliances, required, and to build and complete in a workmanlike manner an earthen dam and concrete tunnel across the creek mentioned above for the party of the first part [respondent], in the manner and under the condition and according to the specifications hereinafter set forth, and the plans for said work prepared by the engineer of the party of the first part."

The contract specially provided when the work was to be commenced and when completed; the dimensions of the dam and the manner of its construction, together with the kind and quality of the materials to be used. In short the contract in terms provided what the contractor should do, and how the work should be done in constructing the dam. The contract also provided that payments to the contractor "are to be made on the 20th day of each month upon the report of the superintendent for the party of the first part." In this way seventy-five per cent. of the work done and material furnished by the contractor was to be paid monthly,

36 Utah-25