Opinion of the Court-Sullivan, C. J.

must serve notice of appeal upon all adverse parties to the judgment or decree. But upon reading the decisions of this court, it will be noted that in all the cases there was an appeal taken to reverse or modify the judgment of the court below, but in the case before the court, the action of the appellant is not an appeal from the judgment or decree of the court below, nor does the appellant seek to reverse or modify the decree or judgment of the court below, but it is simply an appeal from the order and judgment of the court below denying and overruling the motion of appellant to set aside the sheriff's sale, and affects no one except the purchaser at the sheriff's sale. (Mills v. Smiley, 9 Ida. 325-327, 76 Pac. 783).

Wyman & Wyman, for Respondent.

Both Wallace, the mortgagor, and O'Donnell, who acquired an interest in the property subsequent to the mortgage, are adverse parties to the appellants here and should have been served with notice. Wallace is vitally interested. There is now no deficiency judgment against him. Should appellant succeed, such a deficiency judgment will probably result. O'Donnell is perfectly satisfied with the decree and the amount found to be due from him. On a resale he might be seriously injured. He is opposed to a reversal of the order appealed from. Both he and Wallace are entitled to their day in court on this appeal. (Diamond Bank v. Van Meter, 18 Ida. 243, 108 Pac. 1042, 21 Ann. Cas. 1273; Coffin v. Edgington, 2 Ida. 627, 23 Pac. 80, is to the same effect; Titiman v. Alamance Min. Co., 9 Ida. 240, 74 Pac. 529; Baker v. Drews, 9 Ida. 276, 74 Pac. 1130; Reed v. Stewart, 12 Ida. 699, 87 Pac. 1002, 1152.)

SULLIVAN, C. J.-This action was brought to foreclose a mortgage on real estate given by the defendant Wallace to the plaintiff Miller. Subsequent to the giving of the mortgage and prior to the commencement of the action, certain parties acquired an interest in the premises and were made. parties defendant. A decree of foreclosure was entered and a sale thereunder had.

Opinion of the Court-Sullivan, C. J.

After the giving of said mortgage, the premises had been subdivided and the sale was made in separate parcels. The property sold for enough, so that there remained no deficiency. One of the defendants, Roberts, after the sale, moved to set the sale aside. This motion was overruled and the appeal is from the order denying the motion. He served his notice of appeal on the plaintiff Miller, but not on any of his co-defendants, and the appeal now comes up on the motion of plaintiff Miller to dismiss the appeal on the ground that the notice of appeal was not served on all of the adverse parties.

The record shows that the property sold for sufficient to satisfy the mortgage and costs. The decree of foreclosure provided for a deficiency judgment against Wallace, provided the property did not sell for sufficient to pay the mortgage debt with interest and costs. Thus it is shown that Wallace is vitally interested in the matter and may be injuriously affected provided the sale is set aside and a new sale made. If on a resale the property should not sell for sufficient to pay said indebtedness and costs, a deficiency judgment would be entered up against Wallace. The defendant O'Donnell might also be adversely affected by the setting aside of said sale.

On an appeal either from the judgment or an order, the notice of appeal must be served on all parties to the action, or their attorneys, who might be affected by a reversal or modification of the judgment or order. (See sec. 4808, Rev. Codes.) In the case of Diamond Bank v. Van Meter, 18 Ida. 243, 108 Pac. 1042, 21 Ann. Cas. 1273, many of the decisions of this court upon the point under consideration are cited.

The notice of appeal not having been served upon all of the parties who might be affected by a reversal of the order appealed from, the motion must be sustained and the appeal dismissed, and it is so ordered. Costs awarded to the respondent.

Truitt, J., concurs.

Opinion of the Court-Sullivan, C. J.

(October 15, 1914.)

McCONNON & CO., a Corporation, Appellant, v. G. R. HODGE et al., Respondents.

[143 Pac. 522.]

VERDICT-INSUFFICIENCY OF EVIDENCE.

1. The evidence held not sufficient to sustain the verdict.

APPEAL from the District Court of the Second Judicial District for Latah County. Hon. Edgar C. Steele, Judge.

Action to recover for goods, wares and merchandise. Judgment for defendants. Reversed.

Wm. E. Lee, for Appellant, cites no authorities.

William M. Morgan, for Respondents.

It is the universal rule that a contract may be discharged by agreement between the parties. (9 Cyc. 593.)

SULLIVAN, C. J.-This is an action brought to recover the value of certain goods alleged to have been sold to the respondent Hodge, Hughes and Clark, being sureties for the payment of the price of said goods.

The cause was tried by the court with a jury and a verdict rendered in favor of the defendant Hodge for the sum of $94.72 and costs, and in favor of Hughes and Clark for their costs incurred in the trial of the case. The appeal is from the judgment and is based on the insufficiency of the evidence to sustain the verdict.

It appears from the record that the appellant corporation is engaged in the manufacture of spices, flavoring extracts, etc.; that the sale of such products is made to individuals at wholesale prices, and the individuals sell and dispose of the articles in territories assigned to them.

On or about October 12, 1911, the respondent Hodge, desiring to purchase certain goods from the appellant, entered

Opinion of the Court-Sullivan, C. J.

into a written contract with the appellant, the respondents Clark and Hughes signing said contract as guarantors, to the effect that Hodge would pay for the goods purchased. After said contract was signed and delivered, the appellant shipped certain goods to respondent Hodge on his order and he made a number of payments on said goods prior to the 29th of April, 1912, on which date the appellant was notified by Hodge's wife that Hodge had left the country and was not attending to business.

On May 15, 1912, one Norrup, an employee of appellant, visited Moscow for the purpose of trying to adjust or put upon a business basis the business of said Hodge. The record shows that he tried to adjust matters and in doing so an offer was made to sell the business to one Rush. The plan was to have Hodge turn over the remainder of the goods he held and also the accounts still due for goods, to Rush, who was then to enter into a contract with the appellant, and guarantor Clark was to sign the contract as guarantor for Rush. Norrup, Hodge and Rush invoiced the goods and accounts and the goods were turned over to Norrup for Rush, but when the matter was presented again to Clark, he refused to sign as guarantor for Rush. Thereupon the goods were turned back to Hodge, who continued to make certain sales from the goods; but Hodge was not conducting the business satisfactorily to appellant, and appellant demanded payment of the balance due from Hodge and his guarantors. Payment was refused and this action was brought in April, 1913.

The respondents pleaded a counterclaim, alleging that Hodge and Norrup effected a settlement in which Norrup agreed to pay Hodge $105 for his interest in said goods. Upon the issues thus made the case was tried before the court with a jury and a general verdict was rendered in. favor of the respondents, including a judgment in favor of Hodge in the sum of $94.72. The respondents' contention was that there had been a settlement between Hodge and Norrup, whereby the guarantors had been released and the appellant had agreed to pay plaintiff $105.

Opinion of the Court-Sullivan, C. J.

It appears from the record that Rush had been recommended by Hodge as an agent or salesman for the appellant, and he had discussed with Clark and Hodge the matter of taking over Hodge's business and the balance of the goods remaining in his hands. It also appears that the respondent Clark and the appellant were not satisfied with the action. of Hodge, and Clark was anxious to get the goods into the hands of some person who would attend to the business. Certain negotiations were carried on between Rush, Norrup, Hodge and Clark which the respondents insist constituted a settlement between appellant and Hodge.

On the trial Hodge testified on his direct examination that he sold his interest in said goods for $60 to the appellant, through Norrup, its agent; that thereupon they proceeded to invoice the goods, and Hodge testified that when he told his wife what he was getting, "she put up a kick" and said he was not getting enough, and thereupon Norrup agreed to pay the freight on the goods "on top of the $60," and that the freight agreed upon was $35.00. He also testified that Norrup said to him that if a new contract were accepted by the company, Rush would be given credit for the amount of goods Hodge had on hand. He also testified that he had never demanded the payment of the $105, or of any other sum, which he claimed was the contract price of the sale through Norrup. The testimony of respondent Hodge was quite contradictory.

Rush testified that it was his understanding that he was to pay Hodge the freight provided that he (Rush) took the goods. A letter written by Hodge to the appellant the day after the goods had been returned to him, to wit, May 16, 1912, clearly shows the understanding that he had of the transaction and acts that took place on the previous day. He states, among other things, in said letter, as follows:

"I received yours of the 11th yesterday and will say that Mr. A. J. Norrup has just been here, he said you sent him here to try to close a contract with Mr. Joseph Rush not knowing I was here ready to go to work . . . . and I agreed to turn the whole thing over to Mr. Rush providing Mr.