delivered the opinion of the court.

1. Without passing on the various other questions raised on the appeal, we are satisfied that plaintiff is not entitled to relief as against these defendants. The evidence shows conclusively that Austin Price, son of W. C. Price, was desirous of securing a homestead location; that plaintiff informed him that he knew of a claim near Notus, Idaho, which the then occupant would relinquish to him for $600; that W. C. Price, the father of Austin, agreed to advance the money for that purpose, providing there should be no contest filed by April 9, 1908; and that in pursuance of that agreement he deposited with defendant bank the sum of $600, which was received and placed in the general funds of the bank, and a cashier’s check for the amount placed in the safe in an envelope containing this indorsement, signed by defendant Price:

“I, Mr. Price, deposit $600 with the United States National Bank, to pay for homestead relinquishment No. 8552, entry of S. W. 4 of section 9 in T. 5 N. of range 4 west under sec. 2290. Providing there is no contest filed by Apr. 9, 1908, against said claim. W. C. Price.” '

Defendant and his son, Austin, went to look at the land, and the next day Austin Price, accompanied by plaintiff, went to Boise City, had an attorney prepare his homestead application, and, in company with plaintiff, went to the land office, where the application was sworn to, and, together with the relinquishment, delivered to the register, who then informed them that one Andrews had filed a contest against the claim of Palmer, whose relinquishment they had just filed. Thereupon Price, at *380the suggestion of plaintiff, demanded the return of the relinquishment and application, which were refused by the register. Price then left the land office, in company with plaintiff, without paying' the fees upon his application, and they returned to Middleton, but W. C. Price had gone to Parma. Austin Price followed him to that place, leaving plaintiff at Middleton. Plaintiff sought Andrews and induced him to withdraw his contest. He then returned to Boise and filed Andrews’ relinquishment, and paid the filing fee of $16 on Austin Price’s application, taking the land office’s receipt therefor, which he subsequently gave to Austin Price. This was completed on the 9th of April. On the same day plaintiff and Austin Price took the train at Caldwell, and at Parma met W. C. Price, who repudiated the whole transaction. The day before this defendant Price, on being informed by his son of the contest, told him he would not have anything more to do with the matter, and they agreed to drop it. But this was not communicated to plaintiff, although defendant claims he notified him over the phone on the 8th of April that he would have nothing further to do with the matter.

Defendant Price had no interest in the land, and could have none without a violation of the laws of the United States. His position in regard to the matter was analogous to that of surety or guarantor for payment of a sum of money to become due upon a consideration passing from plaintiff to his son. He was entitled to stand upon the strict letter of his contract. If no contest was filed by April 9th, he was required to pay the money. If one was filed by that date, he had a right to refuse to do so. When, on April 8th, he found that a contest had been filed, he was released from liability unless he chose to waive the default, which he certainly did not do. Whether or not Austin Price voluntarily assented to the filing of the application and took possession of the land *381can make no possible difference, as he was not an agent with authority to bind his father.

2. There was considerable testimony on the part of the Prices tending to show that plaintiff had taken advantage of their intimate friendship and church relations to deceive them into entering into this contract in the first instance, but this is strenuously denied by plaintiff, and in our view of the case is not necessary to its decision. Whatever remedy plaintiff may have against Austin Price for services renedered in the matter of procuring his homestead he is precluded by the very terms of the deposit from enforcing any claim against the fund so created or against W. C. Price.

Under the circumstances, however, we will not require plaintiff to pay the costs. There will be a decree dismissing this suit; each party bearing his own costs.