Volume 13 — Arizona Reports

<p>1. New Trial — Motion—Time of Filing. — Where the motion for new-trial was filed more than five days after rendition of judgment, it was properly denied.</p> <p>2. Appeal and Error — Proceedings Below — Motion for New Trial— Necessity. — Failure to make a timely motion for new trial waived all errors not fundamental, so that questions involved in such errors cannot be considered on appeal.</p>

<p>APPEAL from a judgment of tlie District Court of the Fourth Judicial District, in and for the County of Yavapai. Richard E. Sloan, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Indictment and Information — Sufficiency of Accusation — Statutory Offenses. — An indictment charging the keeping of a disorderly house, specifying the time and location of the house, and charging the offense conjunctively in the language of Penal Code of 1901, section 287, making it a misdemeanor to keep a disorderly house, or any house of public resort whereby the peace, comfort, or deeeney of the immediate neighborhood is habitually disturbed, is sufficient.</p> <p>2. Criminal Law — Witnesses—Conduct of Trial — Duty of Judge.— The duty of a trial judge, particularly in criminal cases, is more than that of an umpire, and he must see that justice is done to both parties, and hence when satisfied that the facts are not being elicited by questions of counsel, and witnesses show a disposition to evade direct answers, it is not only his right, but his duty, to so question a witness as to bring out the points not made clear by counsel’s examination, he having in that respect a wide discretion, the exercise of which will not be reviewed in the absence of abuse, but such examination must not show bias or prejudice, or impress the jury with the belief that the judge is taking sides.</p>

<p>1. Criminal Law — Change of Venue — Grounds—Prejudice—Discretion. — An application for a change of venue for an alleged prejudice against defendant in the community rests largely in the discretion of the trial court.</p> <p>2. Same — Instructions—Credibility of Accused. — In a prosecution for homicide, the court charged that defendant had offered himself as a witness in his own behalf, as he was entitled to do, and that the jury should consider his testimony as any other witness, but that, in determining the credit to be giv.en thereto, they should consider his very great interest in the result, the effect of a verdict on him, and determine how far, if at all, such interest might color his testimony; that, if his statements carried with them belief in tbeir truth, the jury should receive and act on them, and, if not, they might rejeet them. Held, that while such charge was not error, the instruction was undesirable, and should not be given.</p> <p>3. Same — Appeal and Error — Invited Error. — Where, in a prosecution against a peaee officer for homieide in killing deceased while attempting to arrest him, defendant requested an instruction that on the day in question deceased was in the aetual commission of a misdemeanor in the presence of accused, which the court gave, accused could not claim on appeal that deceased was committing a felony.</p> <p>4. Homicide — Action of Peace Officer — Separate Transactions.— Where defendant, a peace officer, having been unsuccessful in his attempt to arrest deceased in the street at the time of deceased’s commission of a misdemeanor, returned later armed to effect the arrest, and a conflict then occurred in which defendant shot deceased, the transaction was not continuous, and defendant’s liability for the homicide depended on the circumstances surrounding the transaction at the time of the killing, rather than when decedent committed the misdemeanor.</p> <p>5. Same — Excusable Homicide — Arrest — Misdemeanor — Rights of Officer. — In arresting a man for a misdemeanor, an officer may not use unnecessary bodily barm or kill tbe person he is arresting, even though he may escape, but it is tbe duty of the officer to get other persons to assist him, and later on to overcome the accused person’s resistance and place him under arrest, the officer being authorized to inflict death or great bodily harm only to save his own life or to prevent great bodily harm to himself in the accused’s resistance of arrest.</p> <p>6. Criminal Law — Instructions—Review as a Whole. — Instructions in a criminal case must be considered as a whole.</p> <p>NOTE. — As to homicide in effecting arrest, see note to State v. Phillips (Iowa), 67 L. B. A. 297.</p>

<p>Criminal Law — Appeal—Disposition of Cause — Absence of Briefs and Assignments of Error. — Where, on appeal, there is submitted a transcript of the testimony, the judgment-roll, and the transcript of the record in the lower court, but no assignment of errors or briefs from either party, and the indictment is sufficient, the evidence is sufficient to support the judgment, and the court’s charge correctly enunciates the law, the judgment will be affirmed.</p>

<p>1. Criminal Law — Evidence—Opinion Evidence. — In a murder trial, witnesses who had hunted and killed large animals, and had observed the character of the wounds inflicted by the bullets on entering and • leaving the bodies of the animals, were properly permitted to testify that from an examination of the wounds of deceased it was their opinion that the bullets entered the back of his head and came out near the eye.</p> <p>2. Homicide — Self-defense — Questions fob Jury. — In a murder trial the weight to be given accused’s statement on surrendering himself to custody that he acted iu self-defense was for the jury, and the court properly left it to them to say whether in the light of the other evidence produced by the prosecution it tended to establish justification or excuse.</p> <p>3. Criminal Law — Instructions.—In a criminal ease, the charge of the eourt must be considered in its entirety.</p> <p>4. Homicide — Instructions—Self-defense'—Evidence.—In a murder trial, where the sole issue was whether accused acted in self-defense, the court instructed that accused was presumed to be innocent until proven guilty beyond a reasonable doubt; that the burden was on the prosecution to make out all the faets constituting the crime charged beyond a reasonable doubt, and that, if doubt exists as to a material fact, accused is entitled to an acquittal; that, if the evidence leaves any reasonable doubt of guilt, the jury must acquit; and that, “if you entertain a reasonable doubt after considering all the facts and circumstances proven in this case whether defendant was justified in taking the life of deceased, then you should acquit him.” Held, that accused was not prejudiced by the failure to couple such instructions with an instruction that the burden assumed by accused was only to the extent of raising in the minds of the jury a reasonable doubt as to whether he was justified in killing deceased.</p>

<p>1. Indictment and Information — Language of Statute — Sufficiency. — Where the charging part of an indictment is in the language of the statute, it is sufficient.</p> <p>2. Malicious Mischief — Injury to Pipe-line — Instructions. — In a prosecution for maliciously injuring a pipe-line, it was not error to refuse to charge that before the jury could convict they must find that a material injury to the pipe-line was effected by the defendant, where the court in the general charge instructed the jury that the act done by defendant must have rendered the pipe-line ineffective in whole or in part, before they could convict, since to render the pipe-line ineffective was to cause a material injury.</p>

Fletcher M. Doan, Judge. STATEMENT BY THE COURT. The defendant S. J. Williams was indicted by the grand jury of Cochise county for the offense of willfully, unlawfully, knowingly and feloniously, and with intent to cheat and defraud one Frank Byrd of the sum of sixty dollars, by making, signing and delivering to said Frank Byrd, a certain false and bogus check upon the First National Bank of Douglas, Arizona.

<p>1. Carriers — Passengers—Care Required. — A railroad company must exercise the highest degree of care practicable in carrying passengers.</p> <p>2. Same — Same — Injuries — Action — Presumption — Negligence.— Where a passenger is injured by derailment or collision of a train, there is a presumption of negligence by the company, requiring evidence to rebut it.</p> <p>3. Same — Same—Same—Allegations of Negligence Sufficiency.— An allegation that, while plaintiff was a passenger on defendant’s train, the car in which she was was thrown from the traek and dragged along on its side, averred facts raising a presumption of negligence by the company.</p> <p>4. Same — Same — Same—Instructions—Requests—Burden of Proof. In an action for injuries to a railroad passenger by the derailment of a coach, it is not reversible error tb refuse to instruct that negligence was the gist of the action, and plaintiff had the burden of proving it by a preponderance of the evidence, where the court charged that defendant was not required to show want of negligence, but plaintiff must establish her case by a preponderance of the evidence, and, unless she showed by a preponderance that she was injured by defendant’s negligence, the verdict should be for it.</p> <p>5. Trial — Instructions—Requests—Instructions Already Given.— It is not prejudicial error to refuse an instruction, where the court has elsewhere correctly instructed substantially as requested.</p> <p>6i Same — Same—Trial—Error Cured by Subsequent Instructions.— In a passenger’s action for injuries, the court charged that, in considering its instruction “that the plaintiff must establish her ease by a preponderance of the evidence, you should keep in mind that rule I have given you of the presumption of negligence from the evidence showing that an accident occurred,” and further instructed that the jury must put the facts and circumstances proved by defendant into the scale against the presumption of negligence, and in determining the weight to be given the facts proved should apply the rule that the burden is upon plaintiff, and if, on the whole, the scale does not preponderate against defendant’s proof, plaintiff has not made out her ease. Seld, that defendant could not have been prejudiced by the quoted part of the charge in view of that following.</p> <p>7. Same — Same—Province of Jury — Weight of Evidence. — The court cannot instruct as to the weight the jury should give to any part of the evidence.</p> <p>8. Appeal and Error — Verdict—Conclusiveness—If there is substantial evidence to support jury findings, the supreme court will not pass upon the weight of the evidence or the credibility of the witnesses.</p> <p>NOTE. — As -to presumption of negligence from injury to passenger, see note to Barnonski v. Nelson (Mich.), 15 L. R. A. 35.</p>

<p>1. Public Lands — Patents—Jurisdiction of Land Office. — The land office is a quasi judicial tribunal, and, in the absence of specific provisions to the contrary, it has exclusive jurisdiction of questions involved on an application for a patent to public lands, and its jurisdiction may be stayed only by the filing of an adverse claim as provided by Eevised Statutes,-section 2326 (U. S. Comp. Stats. 1901, p. 1430).</p> <p>2. Same — Same—Same.—Pending final action by the land office as to title to public lands, neither the state nor federal courts will entertain actions relating thereto, except where there exists a necessity of preserving peace or of determining controversies arising out of temporary rights in public lands.</p> <p>3. Same — Same—Same.—Eevised Statutes, section 2326 (U. S. Comp. Stats. 1901, p. 1430), providing for the filing of an adverse claim pending publication of the notice of application for a patent to public lands and requiring the adverse claimant to sue to determine the right of possession, etc., authorizes the courts to determine suits in aid of an adverse, in the exercise of their general jurisdiction, but one who fails to file an adverse claim cannot invoke the jurisdiction of the court pending final action by the land office on an application for a patent.</p>

John H. Campbell, Judge. STATEMENT BY THE COURT. The appellant was arrested in the county of Santa Cruz in the second judicial district of Arizona, upon a complaint charging him with being a Chinese person unlawfully in the United States.

<p>1. Corporations — Promoters—Liability.—Where promoters of a corporation seeretly issue stock to themselves without consideration, their liability to the corporation and other stockholders arises, if at all, out of breaeh of fiduciary relations whieh the promoters occupy toward existing stockholders.</p> <p>2. Same — Same—Same.—Promoters of a corporation occupy a fiduciary position, and they cannot obtain an undue advantage over other stockholders, and they may not obtain any profit to themselves without a full disclosure to the other stockholders.</p> <p>3. Same — Same—Same.—Neither the stockholders who participate as promoters in fraudulent transactions to their profit, nor their transferees, may complain thereof, but the corporation, acting for other existing stockholders, not participating in and without knowledge of the wrong, may enforce their rights.</p> <p>4. Same — Same—Same.—Promoters of a corporation who secretly issued stock to themselves without consideration cannot escape liability therefor on the ground that when the stock was issued the corporation had no assets to make the stock valuable, since shares of stock represent a right and interest in the management and profits of a corporation as well as in its assets.</p> <p>5. Same — Same—Same.—The gratuitous issue of corporate stoek without consideration to promoters of the corporation or to those occupying such a fiduciary relation is a fraud on existing stockholders, and is invalid where issued without their knowledge and assent.</p> <p>6. Same — Same—Same.—Where the question is whether promoters of a corporation while maintaining fiduciary relations to the stockholders made profits from secret dealings with the corporation, the burden is on the promoters to show that the transaction was fair, open, and conducted in the utmost good faith.</p> <p>7. Same — Same — Same.— Where promoters of a corporation issued stock to themselves without consideration, pursuant to a seeret agreement, the court, in the absence of evidence, could find that a stockholder, who resided in a foreign country and never attended any meeting of the corporation, had no knowledge of the fraud.</p> <p>8. Same — Same—Same.—The aet of the promoters of a corporation in issuing stock to themselves without consideration pursuant to a secret agreement is a fraud on the corporation, which it can have remedied in equity, provided it did not assent thereto.</p> <p>9. Same — Same—Same.—Where the promoters of a corporation procured the issuance to themselves of corporate stock without consideration under a secret agreement when there was no authority for the issuance of stock by any persons formally acting as a board of directors, and when the corporation was under the control of the promoters, the corporation did not assent to the issuance of the stock, unless all the existing stockholders assented to the transaction.</p> <p>10. Same — Same—Same.—The fact that one stockholder had no knowledge of the secret agreement between the promoters for the issuance to themselves of stock without consideration, and that he never assented to it, fixed the want of assent of all existing stockholders, so that the corporation could sue in equity for the fraud of the promoters, notwithstanding the transfer before suit by sueh stockholder of his stock to the corporation.</p> <p>11. Courts — Controlling Decisions. — The decision of the federal supreme court as to the rights of future stockholders of a corporation and the liability of promoters to them fixes the law in the territory of Arizona.</p> <p>12. Appeal and Error — Harmless Error — Erroneous Admission op Evidence. — The error in admitting immaterial testimony in a cause tried before the court is not ground for reversal.</p> <p>13. Corporations — Fraud op Promoters — Actions—Evidence.—Where, in a suit by a corporation against its promoters for the-cancellation of stock issued to themselves without consideration, under a secret agreement, the evidence showed that the promoters never acquired any interest in specified property, or in options thereon, and that the stock was not issued in consideration of any interest that they had in the options or the property, and that all money paid for the options or transfers and for the development of the property were paid out of the proceeds of sales of stock made to the public, evidence of the value of the services of one of the promoters in examining such property was properly excluded as immaterial.</p> <p>14. Appeal and Error — Findings — Conclusiveness. — A finding supported by substantial evidence will not be disturbed on appeal, though the preponderance of the evidence is against the finding.</p> <p>NOTE. — As to duties aud liabilities of promoters to the corporation and its members, see note to Yale Gas Stove Co. v. Wilcox (Conn.), 25 L. R. A. 90.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District, in and for the County of Pima. John •H. Campbell, Judge.</p>

<p>APPEAL from a judgment of the District Court of the Second Judicial District of the Territory of Arizona, in and for the County of Cochise. Fletcher M. Doan, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal and Error — Orders Appealable. — An order sustaining a demurrer to a petition for certiorari, unaccompanied by any application for leave to amend, or final order denying the petition, or any final judgment, does not determine the ease, and, under Civil Code of 1901, paragraphs 441, 1214, 1493, permitting appeals from final judgments, no appeal lies from the order.</p>

Fletcher M. Doan, Judge. Appellant was indicted for a violation of section 2, chapter 92,, Acts of the Twenty-fifth Legislative Assembly, entitled: “An act to prohibit gambling in the territory of Arizona,” in that he permitted to be played in a room maintained for gambling a game of poker with cards for money.

<p>APPEAL from a judgment of the District Court of the Fourth Judicial District, in and for the County of Yavapai. Richard E. Sloan, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the Fifth Judicial District, in and for the County of Gila. Frederick S. Nave, Judge.</p> <p>The facts are stated in the opinion.</p>

Eichard E. Sloan, Judge. The Santa Fe, Prescott and Phoenix Eailway Company filed a cross-complaint in this suit in the district court, seeking to have its lien established for charges for transportation of ore to the smelting company. A general demurrer to the complaint was sustained, and from judgment entered thereon the railway company has appealed.

<p>APPEAL from a judgment of the District Court of the First Judicial District, in and for Yuma County. Edward Kent, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District, in and for Pima County. John M. Campbell, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Contracts- — Construction—Words.—In determining the meaning of a word in a contract, it should not be separated from its context, nor considered apart from other provisions which may throw light upon its meaning, but the contract should be viewed as an entirety.</p> <p>2. Same — Same—Particular Words — “Reinvest.”—A corporation was involved financially, its property having been sold under execution, and the time for redemption being about to expire. Plaintiffs owned four-sevenths of the capital stock, and defendants three-sevenths. To give defendants a controlling interest, the parties contracted that plaintiffs should transfer their interest to defendants, with the exception of 279,500 shares, which were to be retained, defendants to have two years in which to comply with the contract, and should they fail to so comply, the “interest” of plaintiffs should reinvest in them in the same proportion as they held and were possessed of at the signing of the agreement. Held, that upon default of defendants, in view of the fact that the word “reinvest” implies a previous divestiture and the use of the phrase “in the same proportion and ratio as they were held and possessed of,” whereas plaintiffs never had possession of the corporate property as such, plaintiffs were entitled to recover their interest conveyed in the stock only, and not in the property of the corporation.</p> <p>3. Same — Breach—Damages—Proximate and Remote Consequences. The proximate damage resulting from breach of the contract was the loss of the value of the stock to be returned, and, plaintiffs having retained 279,500 shares of their four-sevenths interest, loss in value of sueh shares was a remote and indirect result of the breaeh, not sueh as the other parties must have contemplated; and plaintiffs’ measure of damages for breaeh of the contract was the loss of value only of the stock to be returned.</p> <p>4. Evidence — Value op Corporate Stock. — In the absence of any other evidence of value, the par value is presumptively the value of corporate stock, but evidence of the insolvency of the corporation, the value of its property, and its liabilities, is admissible to show the value of its stock.</p> <p>5. Appeal and Error — Review-Right Result by Wrong Method.— Where the result is right, though the method of reaching it is wrong, and though the jury may have found their verdict on an ineorrect theory of the case, the error is harmless, and the judgment will not be reversed.</p> <p>6. Same — Review—Construction of Pleading. — Where the construction placed upon a complaint by the trial court accords with the evidence introduced and the instructions given, the supreme court will adopt such construction.</p> <p>7. Same — Reservation in Lower Court of Grounds of Review — New Theory on Appeal. — A party cannot on appeal abandon the theory of the case to which he has assented upon the trial and substitute another.</p> <p>8. Evidence — Admissions of Counsel — Effect. — On trial, as bearing upon the issue involved, admissions of counsel may be the ground of the court’s procedure equally as if established by clearest proof, but mere unguarded expressions of counsel or ambiguous statements may not be the basis of the court’s action.</p> <p>9. Trial — Admissions of Counsel — Construction.—In an action for breach of contract, whereby plaintiffs conveyed their four-sevenths interest in a corporation less an amount of stock retained, statements of defendants’ counsel that the suit was simply to recover the value of four-sevenths of the stock of the corporation, and not the value of the stock retained, were merely an admission of counsel’s view of the theory of plaintiffs’ claim as set forth in their complaint, and not an admission of the theory or fact that, if plaintiffs were entitled to damages, the extent thereof should be the value of four-sevenths of the capital stoek.</p> <p>10. Appeal and Error — Disposition of Cause — -Affirmance upon Condition of Remittitur. — Where the evidence and the verdict afford the supreme court a basis for the computation of the correct sum to be awarded plaintiffs, but an excessive amount has been allowed, the supreme court may render judgment for plaintiff on condition that remittitur be made under Civil Code of 1901, paragraph 1588, providing that, if a judgment be for excessive damages, and is removed to the supreme court, the successful party may remit the excess, and judgment may be rendered for the proper amount.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District, in and for Yuma County. John H. Campbell, Judge.</p>

<p>Appeal and Error — Affirmance by Divided Court. — A judgment will be affirmed on appeal, on equal division of the court.</p>

<p>1. Libel and Slander — Words Libelous Per Se. — Defamatory words, to be libelous per se, must be such, that the court can presume as a matter of law that they will tend to disgrace the party complaining, or hold him up to public hatred, contempt, or ridicule, or cause him to be shunned or avoided, and to accuse one of being deficient in some quality which the law does not require him, as a good citizen, to possess, is not libelous per se.</p> <p>2. Same — Same.—Words not libelous per se may be made to appear actionable by the averring of sueh extrinsic facts as will show that they were intended to be libelous, and were- so understood, which averments must be applied to plaintiff by a proper colloquium, with the intended and understood meaning correctly set out in the innuendo, and connected with the circumstances set forth in the complaint, thereby defining the true meaning, intended by the use of the words.</p> <p>3. Same — Libelous Publication. — A newspaper publication stating that the council of a city adopted an ordinance prepared by the city attorney, imposing a monthly license tax on keepers of houses of ill-fame, and averring that the ordinance is vague in its limitations, and that the city attorney forgot to add to the ordinance the provision repealing a section of the Penal Code of the territory, is not per se libelous of the city attorney, and the complaint complaining of the article must set out in the charging part the facts that will render the article actionable.</p>

<p>APPEAL from a judgment of the District Court of the Fourth Judicial District, in and. for Yavapai County. Edward M. Doe, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Clerks or Courts — Compensation.—If the territorial legislature has authority to regulate the collection of delinquent taxes, and require the services of the clerk of the district court in connection therewith, it may compel him to perform such services without compensation from the county or territory, by providing for collection of his fees as costs, as is done by Acts 1903, No. 92.</p> <p>2. Same — Pees op Clerks op Territorial Courts. — If the subject of compensation to a clerk of the territorial district court for services rendered in collecting delinquent taxes is regulated exclusively by federal laws, the fees reeovei’able for such services are those fixed by such laws, and not those fixed by the territorial legislature (Acts 1903, No. 92).</p>

<p>APPEAL from a judgment of the District Court of the Fifth Judicial District, in and for Graham County. Ernest W. Lewis, Judge.</p> <p>The facts are stated in the -opinion.</p>

<p>APPEAL from a judgment of the District Court of the Third Judicial District, in and for Maricopa County. Edward Kent, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Mines and Minerals — Mining Claims — Assessment Work-Keeper. — A locator of a mining claim placed thereon engines, ears, tools, etc. The last^aetual work on the mine was done in July, 1903. From that time to Mareh 29th following he made efforts to resume work, but did not succeed. During that time he necessarily employed a watchman to preserve the personal property on the mine, which property was needed for the resumption of work. Held, that ' the expense in employing the watchman was properly a part of the assessment work during the year 1904.</p> <p>2. Appeal and Error — Findings—Conclusiveness.—A finding of the trial court on the evidence is conclusive on appeal.</p>

Frederick S. Nave, Judge. The appellant, as court reporter for the fifth judicial district, incurred certain expenses in attending sessions of the district court in Graham county, away from his official residence, his accounts for which were approved by the district judge, and allowed by the board of supervisors of Graham county, except as to such portions as were for board and lodging at the place of holding court, which was disallowed.

<p>Lis Pendens — Constructive Notice — Amendment op Pleading.— Under Civil Code of 1901, paragraph 1318, providing for the filing of a lis pendens, and that from the time of filing sueh notice a purchaser or encumbrancer of the property affected thereby shall be held to have constructive notice of the pendency and claims therein made, makes the recording of the lis pendens constructive notice of all that is claimed in the action, regardless of whether such claims are sufficiently pleaded; and henee a lis pendens filed in a partition Suit dates from the complaint, though it is thereafter amended so as to include the necessary allegation of the value of the property.</p>

<p>1. Corporations — Contracts—Liability of Officers. — Where a stockholder and officer of a corporation dealt with laborers in his capacity as agent of the corporation, the corporation was alone liable for the work performed.</p> <p>2. Guaranty — Offer and Acceptance. — The owner of mining claims gave an option to purchase, the same, which was transferred by the holder to a corporation, which took possession, located adjoining claims, and employed men to develop the claims. The owner knew that the men did work on claims included in the option, and assured the laborers that in his opinion the mines were good for the money, and stated that if the corporation did not pay, the men should not lose their money, even if he had to sell or work the mine or have someone else work it, but he did not promise expressly to pay the wages of any of the men to whom he talked, and no one of the men testified' that the work was continued in reliance on the statement made by the owner. The continuance of the work was a benefit to the owner and his property. Held, that the owner was not personally. liable to the men for the work performed.</p> <p>3. Mines and Minerals — Mining Claims — Options.—A contract to convey mining claims for a specified sum in cash and specified payments in one and two years, stipulating that the purchaser or his assigns may take possession of the claims and develop them during the life of the agreement, and that the purchaser agrees to abide by the terms of the agreement, and in default of any of the payments to surrender the property to the owner and forfeit all moneys paid and expended, is a mere option to purchase, for the purchaser is left to his election within the life of the agreement to purchase or to forfeit his rights.</p> <p>4. Same — Claims op Laborers — Liens. — Where an owner of mining property gives an option to another, who enters and works it, employing laborers to perform the work, no indebtedness is established in favor of the miners against the owner, and no lien is fastened on his interest in the property, because the work is not performed aby virtue of any employment from the owner, and the holder of the option is neither a vendee nor an agent of the owner.</p> <p>5. Same — Sale op Mining Property — Contracts—Construction.—In agreements for the sale of mining property, time is of the essence.</p> <p>6. Same — Same—Same—Same.—A contract to convey mining'claims on the payment of part of the price in cash and the balance in two installments on specified dates makes time of the essence, and a failure , of the assignee of the purchaser to pay the balance due on the dates fixed relieves the owner of any obligation to convey, and the right of the assignee is terminated.</p> <p>7. Same — Liens op Laborers. — Where the assignee of an option to purchase mining claims entered on the claims and employed miners to work them, and his option expired on the failure to pay the purchase price on the dates stipulated in the contract, the laborers could not thereafter acquire any lien against the property for the labor performed.</p> <p>8. Appeal and Error — Questions Reviewable — Immaterial Questions. — Where the trial court arrived at the correct result, that it gave a wrong reason therefor was immaterial.</p>

<p>1. Carriers — “Private Carriers.” — A common carrier may become a “private carrier,” when, as a matter of accommodation or special engagement, it undertakes to earry something which it is not its business to carry.</p> <p>2. Same — Common or Private Carrier — Tests—“Common Carrier.”— The tests whether a carrier is a “cemmon carrier” are: First, he must be engaged in the business of carrying goods for others as a public employee, and so hold himself out; second, he must undertake to carry goods of the kind to which his business is confined; third, he must undertake to carry by the methods by whieh his business is conducted and over his established roads; fourth, transportation must be for hire; and, fifth, an aetion must lie against him if he refused without reason to carry sueh goods for those willing to comply with his terms.</p> <p>3. Same — Special Contracts- — Contractors—Construction—“Point.” Under a contract providing that a carrier would return the outfit of a railroad contractor to point of shipment from any point on the carrier’s line, the word “point” would be construed to mean a station or point where the carrier was doing its regular business as a common carrier.</p> <p>4. Same — Private Carriers — Contractor’s Outfit-UDestruction of Goods. — Under a contract providing that a carrier would return the outfit of a railroad contractor- to point of shipment from any point on the carrier’s line, where a loss occurred at a place whieh was between two regular stations on the carrier’s line, the carrier could not escape liability on the theory that he was a private carrier, in that the outfit had been picked up at a place whieh was beyond any station of the carrier, where, after the goods arrived at a station, they were billed through to point of destination, as any other goods, though at the contract rate.</p> <p>5. Same — Same—Carriage of Contractor’s Outfit — Reduced Rates.— Where a common carrier agrees with a contractor for an extension to carry at a reduced rate to and from the place of construction the necessary grading outfit, supplies, etc., loss to be at contractor’s risk, and the goods which were actually carried were the goods commonly carried by it and for which it had a tariff rate, and the movement of the train on which the goods were was directed like other trains, it is a common carrier as to sueh goods, and not a private earner, and hence is liable for destruction of the goods caused by its negligence.</p> <p>6. Same — Limitation of Liability. — A common carrier may, by an agreement to that effect, based on proper consideration, limit its liability for loss of or damage to goods of a shipper, exeept sueh as may be caused by its own negligence.</p> <p>7. Same — Loss of Goods — Burden of Proof. — In an action for loss by fire of goods in transportation, loss to be at shipper’s risk, the burden is on the shipper to show that the fire was caused by the negligence of the carrier.</p> <p>8. Trial — Question for Jury — Undisputed Evidence. — Where evidence, though undisputed, might be differently construed and considered by different conscientious intelligent men in determining , the ultimate fact of negligence, it is for the jury.</p> <p>9. Carriers — Loss of Goods — Question for Jury. — In an aetion for destruction of goods by fire, whether the carrier was negligent in leaving the shipment at an out of the way station, where there was neither station agent nor water, no inhabitants, and no one to look after the safety of the ears containing it, held, for the jury.</p> <p>10. Same — Bates — Interstate Commerce — Bailroad Contractors.— Where an agreement for a reduced rate for the shipment of a railroad contractor’s outfit is included in the specifications and contract, under which a contractor was the successful bidder, his action for damages for loss of goods shipped cannot be defeated because he was given a preference in rates under the interstate commerce law, since such right was expressly recognized by the commerce commission in an administrative ruling.</p> <p>NOTE. — As to right of common carrier to limit common-law liability by contract in the absence of negligence, see note to Little Rock & S. F. R. Co. v. Cravens (Ark.), 18 L. R. A. 527.</p>

Fletcher M. Doan, Judge. This is a special statutory proceeding, brought under Act No. 92 of the Laws of 1903 of the territory of Arizona to enforce a lien for territorial and county taxes for the year 1901 upon the property described in the complaint, amounting, with interest and costs, to the sum of $120,039.35, on the eighth day of June, 1904, together with interest thereon at the rate of ten per cent per annum until paid, and the further sum of four per cent of the…

<p>APPEAL from a judgment of the District Court of the Fourth Judicial District, in and for Yavapai County. Richard E. Sloan, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Waters and Watercourses — Appropriation—Right to Construct Dam. — One who had a prior appropriation of surplus and flood waters in a gulch or wash could construct a dam above a subsequent appropriator, and impound so much of the water falling above it as he required for beneficial purposes, but must maintain the dam so as to permit such water as, he does not require to pass to the lower appropriator, and so construct the dam as not to endanger the dam of the other appropriator.</p> <p>2. Same — Same—Rights op Appropriator. — Where a prior appropriate of surplus and flood waters in a gulch had previously maintained a dam below a subsequent appropriator, which dam had been destroyed, and, at the time the subsequent appropriator had initiated his rights, was making no use of the water flowing to the lower dam, and had not reconstructed the dam at the time his action was brought to be decreed entitled to all the water in the gulch, and though, from the evidence, it could not be said that he had abandoned his rights to use the water at the lower dam, yet a further failure to use it might entail such result, the court could not practically fix a time within which he should resume its use or suffer its loss, and adjust the parties’ rights growing out of the prior appropriation of water to be impounded by his lower dam, because of the many circumstances that might arise in connection with the rebuilding and maintenance of the dam.</p> <p>3. Same — Same—Same.-—The mere notice of appropriation of waters does not make the appropriation effectual, but the appropriator must make use of the water within a reasonable time, and will then be protected only to the extent that he makes a beneficial use thereof.</p> <p>4. Sam:e — Pollution of Water — Injunction.—An appropriator making no use of water below another appropriator’s dam is not entitled to an injunction restraining the other from polluting the water by allowing sheep to go into it.</p> <p>5. Injunction — Wrongful Injunction — Recovery by Cross-complaint. — Damages from the issuance of a temporary injunction cannot be recovered in the injunction suit by cross-complaint.</p> <p>NOTE. — As to rights of prior- appropriator of water, see note to Isaacs v. Barber (Wash.), 30 L. R. A. 665.</p>

<p>APPLICATION for mandamus by J. T. Toland against tbe board of supervisors of Coebise county, to compel the issuance of a liquor license.</p>

<p>1. Appeal and Error — Transcript of Reporter’s Notes — Substitution for Abstract. — The transcript of the reporter’s notes does not serve the purpose of the printed abstract on appeal, required by supreme court rule 1 (71 Pac. vi).</p> <p>2. Same — Dismissal of Appeal — Absence of Abstract and Sufficient Assignments. — In absence of a- printed abstract required by supreme court rule 1 (71 Pae. vi), and sufficient assignments of error, an appeal will be dismissed.</p>

<p>1. Statutes — Construction.—The court in construing a statute should aim to give it a sensible construction, and such as will effectuate the legislative intent, and, if possible, avoid an absurd conclusion, and avoid making the statute invalid.</p> <p>Same — Bonds—Elections—Qualified Voters — “Taxpayer of the District.” — Civil Code of 1901, paragraph 2182, authorizing in any school district the submission to the “taxpayers of the district” the question of the issuance of bonds, when read, as it must be, in connection with paragraph 2185, providing that the election shall be held, except as otherwise provided in the title, in conformity with the general election laws, and in connection with paragraph 2186, providing that the money for the redemption of the bonds shall be raised by-taxation on the taxable property in the district, and in connection with paragraph 2176, making every adult person, who is a citizen of the United States, and who has been a resident of a school district for thirty days, and who is a parent or guardian of a child of school age residing in the district, or who has paid a tax during the preceding year, entitled to vote at any school district election, etc., is not ambiguous and uncertain for failing to provide whether taxpayers include only residents of the district, or nonresidents who are taxpayers, and the persons qualified to vote at such an election are those possessing the qualifications prescribed in paragraph 2176, and 'the phrase “taxpayer of the district” is limited to those who pay taxes on property within the district, and the paragraph so construed is not in conflict with the organic act (U. S. Rev. Stats. 1878, sec. 1860), relating to the qualifications of voters.</p> <p>3. Same — Notice of Election — Statutory Requirements. — A substantial compliance with the statute prescribing the notice of an election is all that is required.</p> <p>4. Same — Elections — Notice — Sufficiency. — Where notices of an election in a Bchool district were posted in three public places in the district, and by publication once a week for three weeks in a newspaper, there was a substantial compliance with Civil Code of 1901, paragraph 2183, providing that an election shall be called by posting notices in three public places, and by publieati -u in a newspaper not less than once a week for three successive, wpeks; and the fact that there was a defective publication in another newspaper did not affect the validity of the election.</p> <p>5. Same — Same—Statutes.—Civil Code of 1901, paragraph 2184, authorizing the board of supervisors to give notice of a school district bond election, which notice shall contain the hours during the day, not less than six, in which the polls will be open, authorizes the board to designate the hours during the day on which the election shall be held, without regard to the general election laws, or to the law relating to the elections of school trustees.</p> <p>6. Pleading — Construction of Allegations — “More Than One.” — An . allegation, in a pleading contesting the validity of an election in a school district, authorizing the issuance of bonds, that “more than one” person voted in favor of the bonds who was not a taxpayer of the district, is tantamount to an allegation that two votes were cast by persons who were not taxpayers of the district.</p> <p>7. Elections — “Votes Cast.” — Blank ballots are not “votes cast.”</p> <p>8. Same — Contests—Spoiled Votes. — A complaint, in a suit to contest the validity of a school district election, authorizing the issuance of bonds, whieh alleges the number of votes cast, of which four were “spoiled,” requires the deduction of the spoiled ballots in determining the number of votes east for and against the issuance of bonds, for the word “spoiled” in the complaint must be construed in the light of Civil Code of 1901, paragraph 2340, providing that spoiled ballots returned by a voter shall be canceled.</p>

E. W. Lewis, Judge. A written contract was entered into in which the Clifton Northern Railroad Company, a corporation, and Dell M. Potter were recited to he the parties of the first part, and Shannon Copper Company the party of the second part.

Doan, Judge. In the District Court, Second Judicial District. Wong Lee Foo, a Chinese person, was ordered deported by an order of a United States commissioner. An appeal from the order of deportation was taken to the judge of the district court of the second judicial district. Pending the appeal the appellant applied for and was admitted to bail by an order of the judge of the district court. From such order admitting to bail an appeal has been taken by the United States,

John H. Campbell, Judge. The appellant, a person of Chinese descent, was arrested and brought before tbe district judge of the first judicial district, charged with being unlawfully in the United States. ■The judge referred the case to the United States court commissioner to take testimony and report to him.

<p>APPEAL from a judgment of the District Court of the First Judicial District, in and for Yuma County. John II. Campbell, Judge.</p>

<p>APPEAL from a judgment of tlie District Court of tlie Second Judicial District, in and for Cochise County. Fletcher M. Doan, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Mines and Minerals — Adverse Claims — Description op Property. In ejectment to recover a mining claim, the complaint, alleging ownership of tbe claim, subject to tbe paramount title of tbe United-States, properly describing it by name, giving the mining district, tbe county and territory where located, and tbe book and page where tbe location notice thereof is recorded in tbe office of tbe county recorder, sufficiently describes tbe claim, under tbe express provisions of Civil Code of 1901, paragraph 3249.</p> <p>2. Same — Same—Same.—A general description being' sufficient, such a description is not defective because portions of tbe claim alleged to be unlawfully withheld are described as “lots 1 and 3 in bloek B and lot 3 in block A” of tbe claim, though there be no such legal subdivisions of a mining claim.</p> <p>3. Same — Same—Same.—Where premises are known by a particular name or designation, they may be sufficiently described by such name or designation in a complaint in ejectment.</p> <p>4. Same — Same.—Where one has made a valid location on public land after discovery of mineral thereon, mere trespassers, making no claim to the ground under the public land laws, cannot oust him from possession by showing that the land is more valuable for some purpose other than mining.</p>

<p>APPEAL from a judgment of the District Court of the Third Judicial District, in and for Maricopa County. Edward Kent, Judge.</p>

<p>APPEAL from a judgment of the District Court of the Fifth Judicial District, in and for Graham County. E. W. Lewis, Judge.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District, in and for Pima County. John H. Campbell, Judge.</p>

<p>1. Master and Servant — Injuries—Actions—Jury Questions — Assumption of Rise. — In an action against a railroad company for injuries to a chainman by the velocipede on which he was riding jumping the track, claimed to have been caused by a defective wheel, whether the defects in the wheel were plainly observable, so that plaintiff assumed the risk, held a question for the jury.</p> <p>2. Same — Assumption of Risk- — Obvious or Latent Defects. — An employee does not assume the risk of injury from defects in appliances which he could have discovered by the exercise of ordinary care, but only assumes the risk from defects which were known to him or plainly observable.</p> <p>3. Same — Injuries to Servant — Knowledge of Danger — Evidence.— In a railroad employee’s action for injuries claimed to have been caused by a defect in a velocipede wheel, causing it to jump the track, evidence of a statement as to the condition of the wheel, made a short time before tbe aeeident by the operator of the velocipede, was properly excluded, where it was not shown with reasonable certainty that plaintiff heard such remark, though plaintiff and the speaker were near each other when the remark was made.</p> <p>4. New Trial — Grounds—Excessive Damages — Remission—Power of Court. — Where there have been no reversible errors of law, and it appears that an excessive verdict for plaintiff in a personal injury action resulted from too liberal views held by the jury as to the damages sustained, rather than from prejudice or passion, the court may remit such part of the verdict as it deems excessive instead of granting a new trial, but where it appears that the verdict resulted from prejudice or passion, a new trial should be granted.</p> <p>5. Appeal and Error — Discretion op Trial Court — Court’s Reducing Yerdict. — Unless it clearly appears from the court record that an excessive verdict in a personal injury action resulted from prejudice or passion, rather than an undue liberality exereised by the jury in awarding damages, the trial court’s action in remitting a part of the verdict instead of granting a new trial will not be disturbed.</p>

<p>APPEAL from a judgment of the District Court of the Fourth Judicial District, in and for Yavapai County. Richard E. Sloan, Judge.</p> <p>On rehearing.</p>

PETITION for a peremptory writ of mandamus to compel the issuance of a license to petitioner to sell spirituous liquor . within the limits of the city of Phoenix.

<p>i. Appeal and Error — Disposition op Cause — Affirmance upon Condition op Remittitur. — Id a proper ease, a judgment may be affirmed on condition of remittitur, and otherwise reversed for new trial.</p>

<p>1. Sales — Delay in Delivery — Damages.—A delay of fifteen days in delivering wagons sold for freighting purposes will not warrant damages suffered through the increased cost of hauling the freight, in the absence of a showing that facts were brought to the seller’s attention which would have put him on notice that such damages might result from changed hauling conditions.</p> <p>2. Trial — Instructions—Bequests.—Where, in an action for the price of wagons sold, defendant claimed damages for delay in delivery, and requested instructions on substantial damages, but none on nominal damages, there was no error in not submitting the issue of nominal damages.</p> <p>3. Appeal and Error — Presentation op Grounds op Beview — Theory op Trial. — An assignment presenting a different theory of the ease than that presented on the trial will not be considered on appeal.</p>

<p>APPEAL from a judgment of the District Court of the Second Judicial District, in and for Santa Cruz County. Fletcher M. Doan, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the Fourth Judicial District, in and for Yavapai County. Edward M. Doe, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Criminal Law — Evidence—Presumptions—“Conclusive Presumption” — “Rebuttable Presumption.” — A “conclusive presumption” of law is an inference which mnst he drawn from the proof of given facts, which no evidence may overthrow; while a “rebuttable presumption” of law is an inference which obtains until overthrown by proof.</p> <p>2. Same — Instructions—Withdrawal op Evidence. — A charge that a. presumption of law arises from facts stated is erroneous, especially where there is no suggestion that the presumption is rebuttable.</p> <p>3. Same — Evidence—-Instructions.—Where, on a trial for rape on a female under the age of consent, the evidence for the prosecution was wholly circumstantial, and accused denied the act, an instruction that, from the facts established by the prosecution, the jury must conclusively presume the ultimate fact was prejudicial to accused, because taking from the jury the right to draw inferences they deemed warranted by the evidence, and because it excluded consideration of the testimony of accused.</p> <p>4. Same — Trial—Instruction.—An instruction that a series of facts raises a presumption of law or fact that an ultimate fact exists is misleading, where the finding of the ultimate fact is for the jury; the law being only that such series of facts, found beyond a reasonable doubt, will warrant the jury in drawing a particular inference, which, weighed in the light of the evidence, will justify a finding of the ultimate fact.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District, in and for Pima County. John H. Campbell, Judge.</p>

<p>1. Homicide — “Murder”—Indictment—Sufficiency.—In view of Penal Code of 1901, section 172, defining “murder” as the unlawful killing of a human being with malice aforethought, an indictment sufficiently charges murder by alleging faets showing the unlawful killing of a human being with malice aforethought, without alleging faets bringing it within one of the statutory degrees of murder; it being for the jury to determine the degree.</p> <p>2. Same — Murder—Assault to Murder. — In view of Penal Code of 1901, section 172, defining murder as the unlawful killing of a human being with malice aforethought, an indictment charging that aeeused unlawfully,' willfully, feloniously, and of his deliberately premeditated malice aforethought made an assault with a loaded revolver upon R., “a human being, with the intent, then and there, willfully, unlawfully, feloniously, and of his deliberately premeditated malice aforethought to kill and murder him, the said R.,” sufficiently alleged the crime of assault with intent to murder.</p> <p>3. Criminal Law- — New Trial — Newly Discovered Evidence — Cumulative Evidence. — Where, in a prosecution for assault with intent to murder a police officer, the evidence showed that the officer and accused had had a prior altercation just before the shooting occurred, in which each used vile epithets to the other, and the only issue was as to who was the aggressor in the shooting which followed, an affidavit that the officer shortly before the shooting applied a vile epithet to accused, and said that he would get him yet during the night, was merely cumulative, and not such newly discovered evidence as-would authorize a new trial.</p>

<p>APPEAL from a judgment of the District Court of the Fifth Judicial District, in and for Graham County. Fletcher M. Doan, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>PETITION for writ of mandamus.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the Second Judicial District, in and for Pima County. John H. Campbell, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Mines and Minerals — Location—Eights Acquired — Eights Under Occupancy Without Location. — Where the person in possession and occupancy of mineral lands does not claim government title under the land laws, his rights are those of a mere licensee of the government, and he must give way at the instance of one who makes a valid entry of the land under the public land laws; but, until a valid entry is made, only the government can complain of his occupancy.</p> <p>2. Mines and Minerals — Location and Acquisition of Claims — Discovery. — It is essential, under Revised Statutes of the United States, sections 2329, 2339 (U. S. Comp. Stats. 1991, p. 1432), to the validity of a mining claim that the ground be mineral in character, and that a discovery of mineral within the eonfines of the claim be made.</p> <p>3. Mines and Minerals — Location and Acquisition of Claims— Relocation. — A claim of mining lands under a relocation is an implied admission of the validity of the location, but one who has attempted a relocation and then expressly renounced any claim under it, but who yet claims an interest in some other right which would entitle him to show that he never attempted such relocation, is preeluded from showing that the original locator never made a location, but is, in fact, perpetrating a fraud upon the government.</p> <p>4. Mines and Minerals — Location—Action to Determine Rights.— In an action by parties under a location of mineral lands against a party claiming some interest by occupancy and possession, evidence by the defendant tending to prove that the ground is.nonmineral, that no discovery was made, that no location, notices were posted by plaintiffs within the boundaries of their claims, and that defendant’s grantor was in actual possession at the time plaintiffs attempted to make their location, is admissible.</p> <p>NOTE. — Ear a note treating at length the question of location of a mining claim, see 7 L. R. A., N. S., 763.</p>

<p>APPEAL from a judgment of the District Court of the Fifth Judicial District, in and for Graham County. E. W. Lewis, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the Second Judicial District, in and for Cochise County. Fletcher M. Doan, Judge.</p> <p>■The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the Fourth Judicial District, in and for Yavapai County. Edward M. Doe, Judge.</p> <p>The facts are stated in the opinion.</p>

John H. Campbell, Judge. STATEMENT BY THE COURT. Appellant is the owner of certain lots in the city of Tucson, upon which are a residence and outbuilding constructed of adobe. After appellant’s ownership had continued for some fifteen or twenty years, the appellee constructed its roadbed on the west side of appellant’s property, and at a distance of about seventy-five feet from his buildings.

Edward Kent, Judge. STATEMENT BY COURT. In June, 1893, the Board of Medical Examiners of Arizona issued -a license authorizing appellant to practice medicine in this territory.

<p>Pleading — Amendments—New Cause os' Action — Limitations.— Where the original complaint does not state facts constituting a cause of action as against a general demurrer, an amendment may be filed after the period of limitations has beeome complete, if the facts alleged in the original complaint are sufficient, when read in view of the amendment, to show that the amendment merely perfects an imperfect cause of action alleged in the original complaint, and does not state a new or different cause of action.</p>

Edward Kent, Judge. STATEMENT BY THE COURT. This action was commenced by the appellant, Anna M. McCord, in December, 1909, in the district court of Maricopa county, against Mary Emma McCord, the appellee, to recover a community interest in certain property in Phoenix, Arizona, which the appellant claimed as the surviving widow of Myron H. McCord, who died in April, 1908. The ease was tried to the court without a jury.

<p>States — Admission of Territory — Officers.—County assessors, being-county officers, as provided by Revised Statutes of 1901, paragraph 1050, are included in the provision of the enabling act (Act Cong. June 20, 1910, c. 310, 36 Stat. 571), that incumbent county officers shall hold office until issuance of the President’s proclamation of' statehood.</p>

<p>'APPEAL from a judgment of the District Court of the Eirst Judicial District. John H. Campbell, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the Eirst Judicial District, in and for Pima County. John H. Campbell, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. INDICTMENT AND INFORMATION — PLACB OF OFFENSE.-An indictment charging the commission of murder in a certain county need not state in what particular portion of the county the crime was committed.</p> <p>2. Criminal Law — Continuance—Absent Witnesses — Affidavits— Sufficiency. — A continuance in a criminal case on the ground of absent witnesses was properly refused, where the affidavits supporting the motion stated no facts from whieh the court could determine either "whether the testimony of the witnesses was material or whether there was any reasonable probability that the attendance of such witnesses might be secured at a subsequent term.</p>

<p>.L Mechanics’ Liens — Assignment oe Lien — Construction op Contract. — Plaintiff, the holder of a mechanic’s lien in the sum of $14,306, to foreclose which a suit was pending, and defendant, the holder of a mortgage on the property, entered into a contract providing that defendant would purchase “the plaintiff’s said demand and claim of lien,” plaintiff to prosecute his suit to judgment and assign the judgment obtained to defendant, for which defendant would pay plaintiff $9,313.90, being the amount claimed by plaintiff less $4,922.10, the value of certain boilers and heating apparatus used in the construction of the building, which boilers and heating apparatus plaintiff should be at liberty to remove from the building if it could be done without injury. Plaintiff prosecuted the suit and recovered judgment in the sum of $12,429.22, and obtained a deeree of foreclosure. Held, that a contention that the contract was conditional, in that it was not to be operative unless the boilers could be removed without injury to the building, and that the amount of the judgment showed that this condition had not been performed, could not be sustained, since the contract imported no agreement or guaranty that the judgment should be in any particular amount, and hence defendant was not excused from performance.</p> <p>2. Same — Same—Same.—Such agreement for the transfer of the mechanic’s lien claim having been made at a time when the parties to the agreement were uncertain as to the right of priority between the lien claim and the mortgage, defendant was not excused from performance by the fact that the judgment foreclosing the lien decreed that it was inferior to the mortgage.</p> <p>3. Appeal and Error — Keview—Questions op Pact. — A verdict based on conflicting evidence will not be disturbed on appeal.</p> <p>4. Same — Harmless Error — Improper Argument op Counsel. — Where the authority of certain attorneys to represent defendant in respect to a contract was in issue, a statement by plaintiff’s counsel in argument that such authority might perhaps have been proved by letters that passed between defendant and the attorney, and that plaintiff had tried to get these letters, but defendant’s counsel had refused to produce them upon the ground that they were privileged communications between attorney and client, and the court so ruled, and that plaintiff was compelled to resort to other evidence, though perhaps improper, was not reversible error.</p> <p>5. Trial — Improper Argument — Instructions by Court. — Where plaintiffs demanded the production of letters written by defendant to their attorneys, in order to prove the agency of the attorneys in respect to the contract involved in the action, and defendant’s counsel refused to produce the letters on the ground that they were privileged communications, and such refusal was sustained by the court, a statement by plaintiff’s counsel in argument that such letters would perhaps have proved such agency, and that defendant’s counsel had refused to produce them on the ground that they were privileged, and that the court so held, and that plaintiff was compelled to resort to other evidence, though improper, was not prejudicial, where the court instructed that no inference could be drawn by the jury from the exclusion of the letters that they contained any evidence that would tend to establish agency.</p>

<p>APPEAL from a judgment of the District Court of the Fifth Judicial District, in and for Graham County. E. W. Lewis, Judge.</p>

<p>APPEAL from a judgment of the District Court of the Fifth Judicial District, in and for Graham Oounty. E. W. Lewis, Judg’e.</p> <p>The facts are stated in the opinion.</p>

<p>ERROR from a judgment of the District Court of the First Judicial District, in and for Pima County. John H. Campbell, Judge.</p> <p>The facts are stated in opinion.</p>