Opinion of the Court-Stewart, J. salary statute constituted an appropriation, but the legislature did not act, and there was no evidence to show intention either to repeal or suspend the operation of the salary statute. In the present case, however, the legislature has specifically provided an appropriation fixing the amount for the salary of the secretary and registrar, and has stated that such sum so fixed is in full compensation for his services for the period of two years, and by such provision suspends the operation of the statutes fixing the salaries of such officers, which was a continuous appropriation as such salary. We therefore hold in this case that sec. 1084, Rev. Codes, fixing the salary of the secretary of the board of health not to exceed $1,800 per year, and sec. 2 of chap. 191, p. 632, Sess. Laws 1911, which provides that the state registrar of vital statistics shall receive an annual salary over and above his salary of secretary of the state board of health, which shall be fixed by the state board of health and in no case shall exceed $600, and shall be paid in the same manner as salaries of other state officials are paid, were suspended by the legislature of this state, Laws 1913, p. 643, approved March 15, 1913, commencing on the first Monday of January, 1913, and ending on the first Monday of January, 1915. The demurrer is sustained and the state auditor is limited in issuing the warrant in favor of the applicant in excess of the sum of $150 per month. Sullivan, J., concurs. Ailshie, C. J., did not sit at the hearing, and took no part in the decision. Argument for Appellants. (October 18, 1913.) PETER KERR et al., Appellants, v. J. O. FINCH, Re spondent. [135 Pac. 1165.] STATUTE OF FRAUDS-CONTRACT FOR SALE OF GRAIN-MUTUALITY OF CONTRACT. 1. The statute of frauds as embodied in sec. 6009 of the Rev. Codes, and construed in Houser v. Hobart, 22 Ida. 735, 127 Pac. 997, 43 L. R. A., N. S., 410, examined and considered, and the rule announced in the Houser-Hobart case reaffirmed and followed. 2. Sec. 6009, Rev. Codes of this state, announces more than a mere rule of evidence. It is a substantive law dealing with contracts affecting personal property and commercial transactions. It deals with the origin and basis of a cause of action, and the rule of evidence it embodies is only an incident to the remedy under the statute. 3. Precedent is and should be strongly persuasive with the courts but never controlling, and when the reason for it ceases to exist, or it fails to accomplish justice, it should be disregarded. APPEAL from the District Court of the Second Judicial District for Idaho County. Hon. Edgar C. Steele, Judge. Action for breach of contract. Judgment for defendant. Plaintiff appeals. Affirmed. W. N. Scales, for Appellants. I am aware that in Houser v. Hobart, 22 Ida. 735, 127 Pac. 997, 43 L. R. A., N. S., 410, this court has decided that contracts of this kind must be signed by both parties. Other questions decided in Houser v. Hobart are not involved here, because this contract is definite and specific. It seems that with the exception of the Michigan cases and Houser v. Hobart, the authorities in England and the United States are practically all contrary to the rule announced by this court. See Murray v. Crawford, 28 L. R. A., N. S., 680, and the very exhaustive note thereunder, in which the rule Opinion of the Court-Ailshie, C. J. contended for by appellant is sustained, as the editor of the note remarks, with the almost unbroken current of authority. In 43 L. R. A., N. S., 410 (Houser v. Hobart), there is another exhaustive note supplementing the one last referred to. W. H. Casady and E. M. Griffith, for Respondent, file no brief. AILSHIE, C. J.-This case involves the validity of a contract for the sale of grain signed by the vendor only. The same question is argued in this case that was considered in Houser v. Hobart, 22 Ida. 735, 127 Pac. 997, 43 L. R. A., N. S., 410. It is urged that the construction placed by this court in that case on sec. 6009, Rev. Codes, is contrary to the overwhelming weight of authority, and we are for that reason asked to reconsider the question there passed upon. We are alive to the fact that the holding of that case is contrary to the current of authority, but we are equally satisfied that this multitude of decisions rests upon precedent alone and not upon reason. The rule of precedent relied upon, it seems to us, only accomplishes injustice and serves as an aid to duplicity, fraud and deception, and we are not disposed to lend our approval to such a rule in this state. The courts seem to have generally thought that "the party charged," as used in the statute of frauds, refers only to the defendant in an action brought on the contract, but we have not been able to so understand our statute. The language is, "the agreement is invalid, unless the same or some note or memorandum thereof, be in writing and subscribed by the party charged, or by his agent." This refers to the contract itself and says the same shall be invalid. It requires at least two parties to make a contract, and the execution of a contract by only one party does not consummate the contract. When the contract is made, neither party anticipates a lawsuit, and neither one can foresee which may possibly be plaintiff or defendant in an action arising out of the contract. Is it reasonable or logical to hold that a tentative contract, executed as required by law by one party only, many months, or even years, thereafter Idaho, Vol. 25-3 Points Decided. may be wholly repudiated by the party who may be most affected thereby and who has never at any time been bound by the contract and at the same time the other party be bound thereby? We think not. We gave two hearings to this question before announcing our conclusion in the Houser-Hobart case and reached the unqualified opinion that every consideration of reason, justice and fair dealing demanded that we hold that these contracts must be signed by every party who thereby gives his promise to do some future act and the contract is wholly executory. Precedent is strongly persuasive with this court, but not controlling, and if devoid of reason and justice, will not be followed. This statute (sec. 6009, Rev. Codes) announces more than a mere rule of evidence; it is a substantive law, dealing with contracts affecting personal property and commercial transactions. The rule of evidence it contains is merely an incident to the remedy accorded a party engaging in transactions coming within the terms of the statute. The decisions have generally, on the contrary, treated the statute as a mere rule of evidence and have dismissed it at that. We hereby reaffirm the rule adopted in Houser v. Hobart, and accordingly affirm the judgment of the trial court in following the rule there announced. Costs awarded in favor of respondent. Sullivan and Stewart, JJ., concur. (October 18, 1913.) PETER KERR et al., Appellants, v. E. N. GRAHAM, Respondent. [135 Pac. 1165.] APPEAL from the District Court of the Second Judicial District for Idaho County. Hon. Edgar C. Steele, Judge. Action for breach of contract. Judgment for defendant. Plaintiff appeals. Affirmed. Points Decided. W. N. Scales, for Appellants. W. H. Casady and E. M. Griffith, for Respondent. AILSHIE, C. J.-The same question is raised in this case that has been passed upon in Peter Kerr et al. v. Finch, ante, p. 32, 135 Pac. 1165, just decided, and the case of Houser v. Hobart, 22 Ida. 735, 127 Pac. 997, 43 L. R. A., N. S., 410. Upon the authority of those cases the judgment herein must be affirmed, and it is so ordered. Costs awarded in favor of respondent. Sullivan and Stewart, JJ., concur. (October 25, 1913.) LAWRENCE F. CONNOLLY, JOHN J. CONNOLLY, WILLIAM CONNOLLY and ELLEN F. UDELL, Plaintiffs, v. THE PROBATE COURT IN AND FOR THE COUNTY OF KOOTENAI, and Hon. BERT A. REED, Judge of Said Court, Defendants. [136 Pac. 205.] PROBATE COURT JURISDICTION OF DESCENT AND DISTRIBUTION-NONRESIDENT ALIEN HEIR-FAILURE TO CLAIM PROPERTY-RESIDENT HEIRS RIGHT TO INHERIT PROPERTY-ESCHEAT RIGHT OF SUCCESSION. 1. Held, that the probate court was without jurisdiction to sustain a motion or application for the setting aside of the decree of distribution in the Corbett estate matter, under the facts presented by the petition or motion. 2. Held, that it appears from the record that the probate court had jurisdiction to probate the estate of said Corbett and to enter a decree of distribution thereof, and that such decree not having been appealed from within the time provided by law, said decree |