Volume 17 — Utah Reports

H. Ro-lapp, Judge. Action by John Kirwin against Roxana Pidcock and others for partition. A demurrer to the answer was sustained, and defendants appeal. The full construction of this deed, it seems to us, is not to make a present conveyance of a right to a home to Roxana Pidcock, but rather to save out of the terms of the deed an interest measured by the duration of life or the widowhood of Roxana Pidcock.

<p>Mandamus from Supbeme Court — Will Issue to Trial Court, When.</p> <p>When, the supreme court finds certain facts from the evidence, states conclusions of law applicable to them, reverses the decree of the lower court, and remands the case, with directions to that court to make its findings and conclusions conform to j the findings and conclusions of the supreme court, and the lower court fails to obey such directions, a writ of mandamus will issue from the supreme court, requiring it to do so, and to enter a decree thereon.</p>

Payment of sum due the assignee is a badge of fraud, 'and it was error not to have so Ueated it. Giikerson v. Hamilton, Fed. Cas. No. 5424; Burrill on Assignments, sec. 145. If all creditors reject the trust, the assignee has but a naked power which the grantor may revoke. Smith v. Keating, 6 Man.

Appeal irom district court. Fifth district; E. Y. Higgins, Judge. Suit by James Whittaker against Joshua Greenwood, Caroline Black, and Burnham, Hanna, Munger & Co., a corporation, to quiet title. There was a decree for defendants, and plaintiff appeals. If no Us pendens he filed, the party acquiring an interest or claim pendente Me stands wholly unaffected hy the suit. If he has any rights, which, but for the suit, he could set up, he may still maintain those rights.

<p>Assault — Evidence—Exclamations op Speotatoe — Appeal—Exceptions — INSTRUCTIONS.</p> <p>1. In an action for assault and battery the exclamation during the affray of a disinterested onlooker, when not so instinctive as to be the events speaking through the exclamation, and when amounting to no more than a mere opinion as to whether the assault was wrongful, — the very point to be decided by the jury, — is incompetent, and its admittance in evidence, unrestricted, is prejudicial error.</p> <p>2. An exception upon the ground of the insufficiency of the pleadings and the testimony to authorize an instruction upon the question of pecuniary damages is too general, under Comp. Laws 1888, § 3893, to authorize the consideration, upon appeal, of a particular defect in the instruction not indicated by the exception.</p> <p>3. An instruction that the plaintiff, a colored man, has the same rights, and is entitled to the same protection of the law, that a white person would have, held to be proper.</p> <p>4. An instruction that “an assault is an attempt, coupled with an ability, to commit a violent injury upon the person of another,” is erroneous. The attempt must be unlawful.</p>

Action by the Deseret National Bank oí Salt Lake City against W. S. Burton and others. Judgment for plaintiff,- and defendants appeal, defendant, Henry Dinwoodey, alone perfecting his appeal. The expression that one of the courts has made and is quoted by counsel for appellant that, “that the allegation must be satisfactorily proven as if admitted is not the rule.

H. Rolapp, Judge. William W. Crossman and the Rocky Mountain Bell Telephone Company were found guilty of violating an ordinance of Ogden City. On appeal to the district court, judgment was rendered for defendants, and the city appeals.

H. Rolapp, Judge. In the matter of the estate of Louise Farmer, deceased, R. C. Mitchell, administrator, filed a petition praying that the estate be set apart to the minor children. Fred J. Kiesel & Co. filed a petition asking that it be applied on their claim. From an order denying the petition of the latter, they appeal.

Action by William Fullerton against Ledyard M. Bailey, administrator with the will annexed of the estate of James Boggs, deceased, and others. A demurrer to the complaint was sustained, and plaintiff: appeals. Two notes were given by the testator on September 30, 1890, one maturing September 30, 1891, and the other on September 30,1892. He died November 18, 1893, and the statute of limitations as to both notes was in motion long before his death.

H. Rolapp, Judge. Action by William Hayes against'the Southern Pacific Company. From a judgment for defendant, plaintiff an-peals. Introduction of the evidence of the experiment was inadmissible. Oam. v. Piper, 120 Mass. 188; Mdt v. Gutter, 127 Mass. 523; State v. Justus (Or.) 8 Pac. Rep. 337; By. v. Mugg, 31 N. E. 565-6; By. v. Champion, 32 N. E. 875; Libby v. Seherman, 34 N. E. 803; Moore v. By., 61 N, W. 992.

<p>1. Statutory Time for' Filia'g-.'De&ision — Directory''Merely.</p> <p>Section 3379, Comp. Laws'1888, providing that, “upon a trial of a question of fact by the court, its decision must be given in writing and -filed with the clerk within thirty days after the cause is submitted for. decision,” respecting the time of filing • . the decision, ’is directory merely; and a court, therefore has.the right to file its findings of fact, conclusions of law, an'd decision after the expiration óf -the-time designated by the statute.</p> <p>2. Findings of Fact — Conclusions' of Law and Decision — Amendments of.</p> <p>Where, in an action,--questions raised in the cross complaint were of equitable cognizanoe,.-.and amendments to the findings and decision were made at-the hearing, of the motion for a new trial, when the court yet had jurisdiction of the cause, and the amendments were not prejudicial to the rights of the appellants, the action of the court in making the amendments will not be regarded as reversible error.</p> <p>3. Verbal Contract — Specific Performance.</p> <p>' Where a claimant of government lands offers to give land to another on condition that the donee shall erect buildings thereon, and the purpose of the donor is the enhancing of the value of his adjoining -property, and the donor puts .the donee into possession thereof, who then erects, buildings in accordance with, the oral contract in performance thereof, such contract is. thereby taken out of the statute of frauds, and a court of equity will enforce specific performance of the parol agreement on the part of the donor after he has secured the patent for the land.</p>

Action by Priscilla Murphy against Oscar W. Moyle, executor of the will of Jesse J. Murphy, deceased. From a judgment for plaintiff, defendant appeals. But if the decree provides that it should be paid during her minority it would be understood to cease with the death of the father, because then his obligations to provide for his children ceased. Field v. Field, 66 Howard Practice 346.

Appealed from district court, Weber county; H. H. Eolapp, Judge. Action by the People’s Building; Loan & Savings Association against Otis E. Fowble and others. From a judgment for plaintiff, defendants appeal.

N. Cherry, Judge. Assumpsit by A. H. Raleigh against Salt Lake City for money had and received.

Action by George F. Ekodes against Mary A. Clute and others. From a judgment for plaintiff, defendants appeal. This was an action to foreclose a mechanic’s lien on certain premises, to recover a balance of money which the plaintiff claims is due him from the defendants for labor and material furnished iíjfche construction of the house on the premises.

Suit by Edward T. Singer against the Salt Lake City Copper Manufacturing Company, Abraham Hanauer, Stephen A. Harrison, and others. Held: and tbe burden of proof is on tbe one alleging tbe contrary. Leavitt v. Oxford, etc. Go., 3 Utah 265; 3 Tbomp. Cor. 3926-27, 3934; 1 Cook Stock, sec. 600; Ghouteau Lns. Go. v. Holmes, 30 A. E. 807; Hardin v. Ia., etc. Go., 43 N. W. 543; 1 Mor. Cor., sec. 532. Tbe Hanauer trust deed is void under tbe circumstances. 1 Mor.

Proceedings by the state, on the relation of Morgan Richards, Jr., state auditor, against Francis Armstrong and others, county board of equalization of Salt Lake county, for a writ of prohibition. Where a state constitution provides a general class of property which may be exempted such as charities, property devoted to educational and ele-emosynary purposes, etc., the legislature can make no exemptions outside of such specified classes. Ghespealce, etc., It.

M. McCarty, Judge. Thomas J. Blue was convicted of embezzlement, and appeals. Held: that while evidence of general character is admissible in a criminal prosecution it is entitled to little weight unless where the fact is dubious or the testimony presumptive. State v. Wells, 1 Am. Dec. 211; State v. Barth, 60 Am. Bep. 496; State v. Northrup, 30 Am. Bep. 408; Dupree v. State, 73 Am.

<p>1. Mining Claim — Suit to Determine Bight of Possession to— Findings of Fact — Amendment of.</p> <p>Where findings of fact are amended by the court while a motion for a new trial of the cause is pending, and the amendments are responsive to issues presented by the pleadings, and are supported by, and fair deductions from, the evidence, the action of the court in making the amendments will be regarded as authorized and justified.</p> <p>3. Mining Claim — Bight of Possession — Location of — What Constitutes.</p> <p>In a suit to determine the right of possession of a mining claim, it is incumbent upon the locator to show, not only a location upon ground in due form of law, but also to show that the location was made upon a vein or lode of quartz or other rock in place, bearing mineral, with the discovery or knowledge on the part of the locator, before the location was made, of the existence of mineral there.</p> <p>3. Id. — Statutory Law — Vein Discovery.</p> <p>Under section 3330, Rev. St. U. S., the locator of a mining claim is not required to be the original discoverer of the vein or lode. If, at the time of making the location, there is the discovery of a vein or lode of quartz or other rock in place, and knowledge on the part of the locator of mineral there, the locator is entitled to make his location, even though the discovery was first made by some one other than the locator.</p> <p>4. Id. — Vein—Lode—Application of — Mineralized Matter.</p> <p>In practical mining, the terms “vein” and “lode” apply to all deposits of mineralized matter within any zone or belt of mineralized rock separated from the neighboring rock by well-defined boundaries, and the discoverer of such a deposit may locate it as a vein or lode. In this sense these terms were employed in the several acts of congress relating to mining locations.</p> <p>5. Statutory Construction — Deposit of Mineral Matter — Subject oj Location.</p> <p>Under the acts of congress of July 26, 1866, and May 10, 1872, any deposit of mineral matter, or indication of a vein or lode, found in a mineralized zone or belt, within defined boundaries, which a person is willing to spend his time and money to follow, in expectation of finding ore, is the subject of a valid location; and, when metallic vein matter appears at the surface, a valid location of a ledge, deep in the ground, to which such vein matter leads, may be made.</p> <p>6. Statute of Limitations.</p> <p>A party who wishes to rely upon the statute of limitations in a suit to determine the right of possession of a mining claim must plead it.</p>

N. Cherry, Judge. . Action by the Utah Commercial & Savings Bank against Isaac Trumbo. Held: and without notice to the defendant, sold and delivered the note to James Jennings, the cashier, and a director of the plaintiff, and a brother of the mortgagors, for the sum of $1,000, when the collat eral and the property covered by the mortgage was worth $20,000, and that the purchaser at the time of sale was aware of the fraud,…

<p>1. Agreement to Convey Land — Failure to Deed — Consideration Paid — Fight to Recover.</p> <p>On January 4, 1893, defendant Gisborn agreed in writing to convey certain real estate to plaintiff upon the payment by the latter on that day of $250, on the 9th day of the month $750; on the 1st day of the following February $9,000, and on the 1st day of the following October $65,000, postponed by agreement to the 1st day of January, 1894. The plaintiff made the first payment when due. Gisborn at no time had the title, and did not tender a deed to the land, nor did plaintiff tender the last payment when due. Held, that plaintiff had the right to rescind the contract upon the failure of Gisborn to tender a sufficient deed when the last payment became due, and to recover the $10,000 paid on the promise the law implied, upon the part of Gisborn, to repay it.</p> <p>2. Contract to Convey Land-Implied Promise to Repay Advances.</p> <p>Upon a failure to convey land according to a written contract, without any provision to repay advance made, an implied promise to do so arises.</p> <p>S. Actions on Implied, Contracts — Barred After Two Years.</p> <p>Upon a failure to convey land or to make a sufficient tender according to contract, a right of action accrues to recover payments made on the day after the failure; and, the contract being implied, the action is barred if not brought within two years thereafter, by section 3145, Comp. Laws 1888.</p>

Appeal 'from district court, Salt Lake county; Ogden Hiles, Judge. Action by Samuel McIntyre against the Ajax Mining-Company and others. From a judgment dismissing the action, plaintiff appeals.

<p>1. Accord and Satisfaction.</p> <p>Plaintiff agreed to accept a conveyance of certain land, and a release of a trust deed thereon, and a mortgage on other land, as an accord and satisfaction of a note held against defendants. Held, that the conveyance and mortgage, without a release of the trust deed, did not amount to such accord and satisfaction.</p> <p>2. An Agreement as Satisfaction, or its Execution as Satisfaction-Distinction.</p> <p>When an agreement is accepted as a satisfaction of a note, there is an accord and satisfaction. When its execution is to be accepted as satisfaction, there can be no accord and satisfaction without performance.</p> <p>3. Opinion as to Value — No Grounds of Recovery.</p> <p>A vendor of property may express his opinion to the vendee as to its value, and, if honestly mistaken, such representation will not justify an action or authorize a rescission of the contract by the vendee in case he is deceived.</p> <p>4. Opinions — When Ground of Recovery, or Justification for Rescission of Contract.</p> <p>The vendor of land making representations as to its value which, as a reasonable man, he should not have believed, and they are a part of a scheme to induce the purchase, and the vendee has no opportunity for examination, and is inexperienced, and relies upon them, and sustains damage, he may elect to rescind the contract, or sue to recover damages, in consequence of the fraud.</p> <p>5. Plea of Accord and Satisfaction — Evidence in Response.</p> <p>The note sued upon being in plaintiff’s hands, and the defendants having set up an agreement, conveyance, and mortgage to show satisfaction, the plaintiff might prove in response that the agreement was obtained, and the deed and mortgage accepted, upon false representations, and that she had rescinded the agreement, and offered to return the deed, and had released the mortgage; without setting up the facts in a replication.</p> <p>( Syllabus by the Court.)</p>

II. Rolapp, Judge. Suit by John Manning and another against Joseph Fife and another for an .injunction. From a decree dismissing the bill, plaintiffs appeal.

Action by Walker Brothers against Simon Bamberger, W. S. Fugate, and another. From the decree rendered, defendants Bamberger and Fugate appeal. The contract claimed by Walker, Jr., is within the statute of frauds, and is void because in parol. Grimes v. Van Vechten, 20 Mich. 410,- Hindman v, Lincoln, 124 U. S. 55) Allard v. Grezart, 61 N. Y. 1; Shindler v. Houston, 1 N. Y. 261; s. c. 42 Am.

N. Cherry, Judge. Action by Theodore G. Steinke, receiver of the Cass County Bank, against C. F. Loofbourow, to recover upon his liability as a stockholder. From a judgment dismissing the action, plaintiff appeals. We see no reason why the receiver, when once appointed, no matter at whose instance he may be appointed, may not collect the stock liability.

Mosby, by his guardian ad litem, S. W. Mosby, against Matthew T. Grisborn and others, to annul a decree. Plaintiff’s petition was dismissed, and he appeals.

Action by Georgia Foote against the Utah Commercial & Savings Bank, impleaded with another. From a judgment for plaintiff, the bank appeals. The amount of proof required to sbow tbat a deed absolute is a trust or a mortgage is proof beyond all reasonable controversy. Chambers v. Emery, 13 TJtab 378; Ewing v. Keith, 52 Pac. Eep. 4.

Y. Hig-gius, judge. Action by Michael W. Harrington against the Eureka Hill Mining Company. Plaintiff had judgment, and defendant appeals. The judge should always direct the attention of the jury to a hypothetical state of facts, which they may or may not find from the evidence to be true. He should never frame his instructions so as to assume a disputed state of facts as proven.

<p>Mechanic’s Lien — Notice—Statutory Requirements.</p> <p>Where a mechanic’s lien is filed, and it does not appear from the notice that the material was furnished for the construction of thesbuilding in question, or that any portion of the material was used in the construction or purchased for the purpose of constructing the building referred to in the notice of lien, and that, except inferentially, the notice contains no statement of the terms, time given, and conditions of the contract, the statute has not been complied with; and these essential aver-ments, having been omitted in the notice, cannot be supplied by averments in the complaint, or by extrinsic evidence.</p>

Suit by M. J. Gray against Henry Denhalter and others. From a decree directing Alfred Crebbin 'to pay John W. Judd $1,000, and, upon failure to do so, that certain premises be resold, Crebbin appeals.

Action by George H. Snelgrove against Rachel Earl and others. Judgment for plaintiff, and defendant Rachel Earl appeals. If these facts had been found upon, it would necessarily have appeared affirmatively that appellant was not negligent; that she used due care and that a person of ordinary prudence would not have taken any greater precautions than she took.

Suit by William C. Staines against Robert Burton and another, executors of the will of William Carter Staines, deceased. From a decree for defendants, plaintiff appeals.

V. Higgins, Judge. Action by E. G. Wilson against John T. Sullivan for conversion. Plaintiff bad judgment, and defendant appeals. It bas been held that an assignment by a firm which contains preferences or exacts releases, must assign all the individual as well as partnership property.

H. Hart, Judge. Action by D. P. Tarpey against Andrew Madsen. Judgment for defendant, and plaintiff appeals. Then the title passed from the United States to the railroad company, as of the date of the grant, i. e., July 1, 1862.

L. Ritchie, Judge. Suit by Hiram Teager against Emma S.' Woodruff and others for an injunction. From a judgment of dismissal, plaintiff appeals. The use of the ditch in question by the plaintiff, openly, peaceably, uninterruptedly and continuously, for a period of seven years, under a claim of right, and to the knowledge of the defendants, established a vested right or easement to the ditch in the plaintiff.

N. Dusen-berry, Judge. James McKee was convicted of larceny, and appeals. No brief filed. These are mostly cases in which a variance was claimed to exist between the information and the proof, and the courts have uniformly held that wherever, from the whole record, it could be ascertained that the offense proven and the offense charged was the same, the variance as to. the party injured was immaterial. People v. Aris, 26 Pac.

Action by Elias S. Kimball and Luella W. Kimball against Orange J. Salisbury and Thomas P. Lewis. From a decree for defendants, plaintiffs appeal. It is not necessary that the exemptionist own the land in which he actually resides to make land used in connection with his residence a part of the homestead.

<p>Appeal from district court, Salt Lake county, W. N. Dusenberry, Judge.</p> <p>Action by Charles Burgess against the Salt Lake City Bailroad Company. From a judgment for plaintiff, defendant appeals.</p>

Petition by Hannah Christensen for a widow’s allowance in the estate of Herman J. Christensen, deceased. From an order denying relief, petitioner appeals. To allow such an act validity destroys vested rights and turns a legislative into a judicial body. This court has recognized marriage as conferring rights. Higbee v. Higbee, 4 Utah 19; Holmes v. Holmes, 4 Barb. 295.

<p>1. Constitutional Laio — Venue—Jurisdiction.</p> <p>Under the constitution (article 8, § 5), all actions, civil and criminal, must be commenced and tried in the county in which the causes arise, unless a change of venue be taken, after suit brought in the proper county, in such cases as may be provided by legislative enactment.</p> <p>2. Same — Promissory Note.</p> <p>Where a promissory note is executed and delivered in one county, made payable in another, and a failure of payment occurs, the cause of action arises in the county in which the instrument is made payable, and suit must be brought there.</p> <p>3. Promissory Note — Time and Place of Payment.</p> <p>The time and place of payment in a promissory note are material stipulations in the contract.</p> <p>4. Cause of Action — When Arising.</p> <p>Whenever a breach of contract occurs, whether by commission or omission, the cause of action arises; and when the contract Is to be performed at a place stipulated, the act of omission, which is the groundwork of the complaint, will be regarded as having occurred at that place.</p> <p>5. Statute — Invalidity of.</p> <p>Chapter 93, Sess. Laws 1896, in so far as it authorizes the bringing of an action upon a contract in a county where the defendant resides, when such contract, by stipulation therein, is to be performed in another, is in conflict with section 5 of article 8 of the constitution, and is void.</p>

Action by the Crescent Mining' Company against the Silver King Mining Company. Judgment for defendant. Plaintiff appeals. This prescriptive period of seven years is fixed by law. But, we understand, it is contended on the other side that this statute, by the general principles of law, ought to be confined to natural water courses. But that is not the law.

H. Ro-lapp, judge. Action by the Farrand & Yotey Organ Company against the Board of Church Extension of the Methodist Episcopal XDhurch. Plaintiff had judgment, and defendant appeals. The court erred in denying the nonsuit. Andrews v. Ins. Go., 92 N. Y. 596; Brown v, Parsons, 10 Utah 223; Armstrong v. Cache L. & 0. Go.

H. Hart, Judge. Joseph W. Halford was convicted of rape, and appeals. The law is well settled that before a conviction can be had for rape it must appear that the woman raped resisted with all her strength. It must be a bona fide resistance, not a pretence of reluctance. There must be some evidence of struggle if the woman has her senses, and if not overpowered or completely terrified.

<p>Appeal from district court Sevier county; E. V. Higgins, Judge.</p> <p>Action by William G. C. Morrison against Minor Winn. There was a decree for defendant, and plaintiff appealed.</p>

<p>The effect of the evidence in this case is the same as that in the case of the State of Utah v. James J. McKee, 17 Utah —. The opinion in that case is decisive of this.</p>

A. G-. Norrell, Judge. Action by E. W. Reese, administrator of the estate of Meredith Reese, deceased, against the Morgan Silver Mining Company. From a judgment for plaintiff, defendant appeals. That the defendant was guilty of negligence, see Butte v. Coal Co., 47 Pac. Rep. 77. It is error to instruct the jury that what is contributory negligence in one may not be in another. See 11 Ency. Plead. 131.

The contract was made at Salt Lake City, the escrow was deposited at Salt Lake City, the tender and refusal were made at Salt Lake City, the breach of the contract occurred in Salt Lake county.

Warren N. Dusenberry, Judge. Action by John S. Lewis against the Rio Grande Western Railway Company, in ejectment, for a strip of land used by defendant company as a right of way. Judgment for plaintiff for the recovery of the land, and a certain sum for mesne profits. Defendant appeals. The construction of a railroad is one act, though covering a period of time, providing the work is prosecuted in good faith and with reasonable diligence.

A. N. Cherry, Judge. Application of plaintiff for a writ of mandamus against defendant as city auditor of Salt Lake City to compel him to draw his warrant for salary due the petitioner and his assignors. From a judgment denying the writ, plaintiff appeals. The question here presented has already been fully settled by the express language of this court. Pratt v. Swan, 52 Pac. Eep. 1092.