Volume 32 — Utah Reports

<p>Appeal from District Court, Third District; T. D. Lewis, Judge.</p> <p>Action by the Dillon Implement Company against G-. R. Cleaveland and another. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Appeal — Pbejudice—Statutes.—Under Revised Statutes 1898, section 4975, providing that the court, on appeal, must give judgment without regard to technical errors or defects not affecting the substantial rights of the parties, judgment will not be reversed for error which resulted in no prejudice to the appellant.</p> <p>2. Same. — Where defendant made no claim to any part of a mining claim within the boundaries thereof not included within an alleged conflicting area, it was not prejudiced by a judgment quieting plaintiff’s title to the ground within the lines of the claim outside the conflicting area.</p>

D. Lewis, Judge. Action by Dolly McCasliland against P. S. Keogh, and another. Prom a judgment of nonsuit of the district court of Salt Lake county on appeal from the city court of Salt Lake City, plaintiff appeals. APPELLANT'S POINTS. Pull performance by plaintiff removes the case from the operation of the statute. (29 Enc. Law, p. 811, note 8.

<p>1. Witnesses — Redirect Examination. — Plaintiff sued for damages caused by a blowing up of explosives stored by defendant in violation of an ordinance. A former salesman for defendant testified for plaintiff that three or four days before the accident he saw about 2,000 explosives in defendant’s vault. On cross-examination he stated that they were being sold daily, and he did not know how many had been sold between the time he saw them and the accident. Held, that on redirect examination witness could be asked if defendant would have likely sold 2,000 or 3,000 explosives within two or three days.</p> <p>2. Explosives — Negligence — Stoking Dangebous Explosives —- Action — Admissibility of Evidence. — Where plaintiff sued for damages caused by a blowing up of explosives kept by defendant in a.n open vault in violation of an ordinance prohibiting the storage within the city of any substance of greater explosive power than ordinary gunpowder, except that certain caps might be stored, when kept separate from all other explosives and in a vault, plaintiff should show the comparative explosive power of fulminate of mercury, a component part of the caps, and ordinary gunpowder.</p> <p>3. Damages — Injuey to Household Goods — Evidence as to Cost.— Though the cost of household goods destroyed or damaged cannot be an independent basis for the recovery of damages, it may be considered in connection with testimony as to their actual value.1</p> <p>4. Explosives — Negligence — Stoking Dangerous Explosives — Violation of Ordinance — Negligence Per Se. — The violation of an ordinance regulating the storage of dangerous explosives, designed for the safety of life, limb, and property, constitutes negligence per se.2</p> <p>5. Same — Structure Not a Vault or Safe. — A brick structure entirely open on one side cannot be a vault or safe, within the meaning of an ordinance regulating the storage of dangerous explosives.</p>

D. Lewis, Judge. Action by F. P. Smith against J. H. Bowman and others. Plaintiff appeals from the judgment.

L. Ritchie, Judge. Actiou by Frank Gitzhoffen against the Sisters of the Holy Cross Hospital Association. From a judgment in favor of defendant, plaintiff appeals. appellant's points. According to all of the authorities a charitable institution is liable for personal negligence-in selecting or retaining its nurses or ’other servants if their negligence’ results in injury to patients.

L. Ritchie, Judge. Action by Raphael Cottrell against Alexander Pickering. Prom a judgment for plaintiff, defendant appeals. appellant's POINTS. To recover in ejectment the plaintiff must show title in • himself. To do this he must either connect himself with a government title or show that he, and the defendant in the action, claim title from a common source.

A. Howell, Judge. Action by the Volker-Scowcroft Lumber Company against Mary Flinders Vanee and another. From a judgment for plaintiff, defendant Mary Flinders Vance appeals. APPELLANT'S POINTS. It is true in a marital sense that the husband is the head of the family, but if the family domicile is owned by the wife she is the head of the family for the purpose of protecting-the exemption.

L. Ritcbie, Judge. Action by D. R. Morrison against the San Pedro, Los Angeles & Salt Lake Railroad Company and others. Prom a judgment for plaintiff against the named defendant, it appeals. APPELLANT'S POINTS. We contend that the man Branen, in any light in which the evidence in this case' can be considered, was a fellow servant of the plaintiff, and that the court should have so instructed the jury as requested by the appellant in its sixth request.

<p>1. PleadiNg — Amendment—Changing Cause oe Action. — Amendment of complaint, in an action for injury to stock while being carried on defendant’s line, changing the destination of the stock from the end of defendant’s line, as alleged in the original complaint, to a place beyond, is not a change of cause of action, and its allowance is not error; the damages being confined to the injuries occurring on defendant’s line. 1</p> <p>2. Damages — Intebest—Unliquidated Damages. — Damages for injury to a shipment while in transit is the amount of loss, with interest, from the time of delivery; the fact that the damages are unliquidated not being by itself reason for not allowing interest, hut it is enough that the damages are to be computed as of a fixed time and according to fixed rules of evidence as to value. 2</p>

Armstrong, Judge. Action by Don Farnsworth against the Union Pacific Coal Company. Judgment for plaintiff. Defendant appeals. RESPONDENT'S POINTS. We contend that if the appellant proposes to rely in any case, at law or in equity, upon the claimed insufficiency of the evidence to justify the verdict, he must embody in his bill of exceptions a specification of the particulars in which the evidence is alleged to be insufficient. (Rule 26, Sup-. Ct. Utah, Sess.

<p>1. FRAUDS, Statute of — Memorandum—Signature by ' One Party Only. A memorandum of an offer to sell seed,- subscribed by the seller only, is sufficient to satisfy the statute of frauds, requiring a memorandum of a contract to be made in writing and subscribed by the party to he charged, as to the party subscribing it, and against whom the action is brought.</p> <p>2. Sales — Consideration — Mutual Promises. Where an offer in writing to sell seed is accepted by another, the law implies from such acceptance a promise to receive and pay for the seed, and such promise is sufficient to support the offer to sell.</p> <p>3. Contracts — Actions for Breach — -Complaint—Sufficiency. An allegation in an action for the breach of a contract, that a certain written contract was “entered into” is sufficient to admit proof that a memorandum thereof was delivered.</p> <p>4. Same. An allegation in an action for the breach of a contract, that the parties “entered into” a certain written contract is sufficient to admit proof of a parol acceptance by plaintiffs of an offer made in writing by defendants.</p> <p>9. Sales' — Breach oe Contract — 'Complaint. Jn an action for the breach of a contract to sell seed, it was .alleged that ten days or less after the making of the contract was a reasonable time within which to deliver the seed, and that the buyers made several demands for the seed; the last of which was about three weeks subsequent to the offer. Held, that an acceptance of the offer to sell might be shown under the allegations of demand; and it being a question for the jury whether the acceptance was made within a reasonable time, and whether the sellers had had a reasonable time to deliver after acceptance, the complaint was sufficient on demurrer.</p> <p>McCARTY, C. J., dissenting in part.</p>

Obidester, Judge. Action by Cora Birdsall, an insane person, by Isaac Bird-sail ber guardian, against James E. Leavitt and another. .Erom a judgment for defendants, plaintiff appeals.

I. Ritchie, Judge. Action by Alice J. Kirie against Salt Lake City. Prom a judgment for plaintiff, defendant appeals. APPELLANTS POINTS. Before a suit of this kind can be maintained, a claim must be presented to the city council. The law applicable to thi3 case is to be found in Laws 1903, chap. 19, page 12. A statute requiring the presentation of a claim before suit is mandatory, and presentation is a condition precedent to maintain the action.

W. Maughan, Judge. William J. James was convicted of incest, and appeals. STATEMENT OF PACTS. The defendant was informed against in the First judicial district court, sitting at Logan, Utah, for the crime of incest.

<p>Evidence — Pabol Evidence — Lease — Meaning car Terms. Where, in a written lease, lessee, covenanted not to sublet the premises for any other purpose than for “lodge use” or “lodge purposes” without the' consent of lessor, and the premises were sublet to various lodges, which, among other things, used the premises for dancing, it was competent to show by parol, in an action to restrain the letting of the premises for dancing, the usage prevalent among the lodges of that city as to social entertainments and the giving of dances, the acts and conversations of the parties contemporaneous with the execution of the lease, their subsequent conduct, and the situation of the parties, for the purpose of explaining the meaning of the terms “lodge use” and “lodge purposes.”</p>

G. Armstrong. Proceedings by J. D. Skeen against Thomas E. Browning. From an adverse judgment, plaintiff appeals. APPELLANT'S POINTS. An office is distinct from its incumbent and exists independent of the resignation or death of the latter. (6 Cur, Law, p. 842. Dull v. Mammoth Min. Go., 28 Utah 467, 79 Pac. 1050; Patton v. Board of Health, 127 Cal. 388, 78 Am.

First District) W. W. Maugban, Judge. Action by Catherine D: Evans Wilson against Robert N. Wilson, Jr., and others. From a judgment for plaintiff, both parties appeal. APPELLANT'S POINTS. A man about to marry a second time may lawfully convey to Ms cMldren by a former marriage a reasonable portion of bis property.

D. Lewis. Action by Charles Gillmor against Salt Lake City. From a judgment of dismissal, plaintiff appeals. APPELLANTS POINTS.

A. Howell Judge. Action by A. I. Stone, administrator of tbe estate of Jas. H. Winslow, deceased, against tbe Union Pacific Railroad Company. Prom a judgment for plaintiff, defendant appeals. APPELLANT'S POINTS.

<p>Appeal from District Court, Second District; J. A. Howell, Judge.</p> <p>Action by A. I. Stone, administrator of the estate of William Murray, deceased, against the Union Pacific Railroad Company. From a judgment for plaintiff, defendant appeals. • . •</p>

. Appeal from District Court, Third District; T. D. Lewis, Judge. Action by Drank Owens against the San Pedro, Los Angeles & Salt Lake Railroad Company. Prom a judgment for defendant, plaintiff appeals. APPELLANTS POINTS.

Greenwood, Judge. Action by John E. Myers against the East Bench Irrigation Company. From a judgment for plaintiff, defendant appeals. appellant's points. When a time is fixed by law for holding a term of court, it is essential to the validity of its proceedings that jurisdiction be exercised at such times. If business is transacted at a different time, such acts are null and void.

District; J. A. Howell Judge. Action by Charles A. Jones against the city of Ogden and others. From a judgment for - defendants, plaintiff apj peals. appellant's points. Notice to the police department of the existence of such obstructions constituted actual notice thereof to the city. (Denver v. Dean, 10 Col. 375, 3 Am. St. 594; Farley ?>, Mayor of New Yorlc, 152 N. T. 222, 57 Am. St. 511; Car-rington v. St. Louis, 89 3VIo. 208, 58 Am.

District; J. A. Howell, Judge. Action by the Wasatch Orchard Company against the Morgan Canning Company. From a judgment denying plaintiff relief on a counterclaim, it appeals. appellant's points. Upon the second point, where goods are sold for a particular purpose known to the parties, it is elementary that there is an implied warranty of the fitness of the goods for the particular use designated.

Action by the Eureka Hill Mining Company against the Bullion Beck & Champion Mining Company. Judgment for plaintiff. Defendant appeals. APPELLANT S POINTS. In order to entitle one to treble damages under the statute, it must be .made to appear that- the trespass was malicious, willful, wanton or the result of such gross recklessness and negligence on the part of the defendant as would be equivalent to willfulness or wantonness.

Justice I, A. Howell. Action by Sarah lane Belnap against lames Gr. Widdison and others. From a judgment for defendánts, plaintiff appeals. . • APPELLANT'S POINTS. But there is no ground for presuming acquiescence in statements, unless they are of such character as would naturally call for a response, and unless the party sought to be charged was in such a situation that he probably would have replied to them, if untrue.

L. .Kitchie, Judge. Action by Eugenia Kimball and others against Salt Lake City, a municipal corporation. Judgment for plaintiffs, and defendant appeals. APPELLANTS POINTS. In an action for damages to property by reason of an improvement by a city, there is no debt due the plaintiff until the damages are ascertained by a jury, and no interest is allowed from the time the damage was sustained.

L. Rit-chie, Judge. Action by David B. Hempstead against Salt Late City, a municipal corporation. Judgment for plaintiff, and defendant, appeals. appellant's POINTS. Tbe rule is, that, whatever specially benefits the property in question should be taken into consideration in assessing damages to the property, even if such benefits are general aS regards the public.

<p>Appeal from District Court, Third District; M. L. Ritchie, Judge.</p> <p>Action by John G-. Felt against Salt Lake City, a municipal corporation. Judgment for plaintiff, and defendant appeals.</p>

D'. Lewis. Action by Nellie Teakle, as administratrix of tbe estate of Tbomas W. Teakle, deceased, against tbe San Pedro, Los Angeles & Salt Lake Railroad Company. From a, judgment for defendant, plaintiff appeals. appellant’s points. The evidence sought to be introduced by these questions and offer was clearly competent to show that the defendant had a last chance of avoiding the accident regardless of an}’ negligence that may be imputed to the deceased.

<p>Appeal from District Court, Second District; J. A Howell, Judge.</p> <p>Proceeding by J. D. Skeen against Robert B. Paine. From a judgment for complainant, defendant appeals.</p>

W. Morse, Judge. Action by the Salt Lai» Investment Company against Jesse M. Fox. From a judgment for plaintiff, defendant-appeals. appellant's points. The findings in relation to adverse possession are not supported by the pleadings, and in this respect there is a material variance between the pleadings and findings, and such findings are nugatory and should be disregarded.

D. Lewis, Judge. Proceedings by the San Pedro, Los Angeles & Salt Lake Railroad Company against the board of education of Salt Lake City for the condemnation of land, and from the judgment for condemnation and damages plaintiff appeals.

D. Lewis, Judge. Action by P. J. Donovan against A. Hanauer; Jr. ' Prom a judgment for defendant, plaintiff appeals. APPELLANT'S POINTS. A good title, is one that can be made good without litigation, and this one was therefore sufficient. '(Moot v. Association, 157 N. Y. 201, 45 L. R A. 666; 26 Ene.

Armstrong, Judge. Action by Jennie Edgar and others against the Rio Grande Western Railway Company.- Erom a judgment for defendant, plaintiffs appeal. APPELLANT'S POINTS. If tbe facts proven are such, that reasonable men may fairly differ as to whether or not there was negligence, the question is one for the jury to consider. In support of this rule we cite the following.

Appear from District Court, Third District; O. W. Morse, Judge. Proceeding by Mrs. S. M. Riddle and another against B. B. Quinn to vacate a judgment. Defendant appeals from a judgment for plaintiffs. APPELLANT^ POINTS. The negligence and want of attention of an attorney is the negligence of the client. There was no diligence shown on the part of Wilson, but on the contrary, the record presents a case of gross neglect.

F. Chidester, Judge. Replevin by IVIargaret R. Cutler against Thomas Haycock. From an order denying defendant’s application to vacate judgment by default for plaintiff and to set aside the default, defendant appeals.

<p>Appeal from District Court, Sixth District; Jno. F. Chidester, Judge.</p> <p>Action by R. G-. Jolly, as administrator of the estate of W. J. Jolly, Sr., deceased, against Thomas Haycock. From a judgment for plaintiff by default, defendant appeals.</p>

<p>Appeal from District Court. Third District; M. L. Ritchie, Judge.</p> <p>Action by C. D. Rogers and another against the Rio Grande Western Railway Company. From a judgment for defend-ent, plaintiffs appeal.</p>

W. Morse, Judge. Action by Walter Bryant against Mart Kunkel and others. From a judgment for plaintiff, defendants appeal. APPELLANT'S POINTS. Either the affiant knew, or did not know that the defendants were non-residents. If he did not know, then the affidavit is clearly insufficient. If he did know, then the allegation on information and belief is not sufficient.

<p>Mandamus by the state, on the relation of Don' Porter, against Morris L. Ritchie, as judge of the district court, and another.</p>

L. Ritebie, Judge. Action by H. A. Nelson against tbe Keith-O’Brien Company and others. From a judgment for defendants, plaintiff appeals. APPELLANT’S POINTS.

<p>Appeal from District Court, Seventh District; Eerdinand Erickson, Judge.</p> <p>Action by Lars Christensen against Oscar Beebe, as sheriff. Erom a judgment for defendant, plaintiff appeals.</p>

Application by the state, on relation of Jacob Peart and others, for a writ of prohibition against the Third judicial district court, Salt Late county, and T. D. Lewis, judge.

<p>1. Master and Servant — Action for Injuries — Evidence—Sufficiency — Negligence of Master. Evidence, in a.n action by an employee whose hand was drawn into a mangle used in a laundry and injured, held insufficient to establish the employer’s negligence, in that it failed to warn the employee of the condition of the machinery, to instruct her as to the manner and method of covering the mangle, and notify her of the dangers connected therewith.</p> <p>2. Same — Assumption of Risk. Evidence, in an action by an employee whose hand was drawn into a mangle used in a laundry and injured, held to show that the employee’s injuries were due to dangers the risks of which were assumed by her.</p>

L. Bitchie, Judge. Action by Herbert L. Hunt against1 Charles H. Monroe on a foreign decree for maintenance rendered in a divorce suit. From a judgment for plaintiff, defendant appeals. APPELLANT^ POINTS. The plaintiff is a mere officer or agent of a court of a foreign state; a quasi guardian. As such be bas no capacity to sue in bis own name in the courts of tbis state. He is not a trustee of an express trust.

<p>1. CORPORATIONS — OFFICERS AND AGENTS — De FACTO OFFICERS. All irregularities in a corporate election, the legality thereof, as well as the legal qualifications of the officers elected, - are settled by the election as against a collateral attack.1</p> <p>2. Same — Meetings of Directors — 'Statutory Provisions. A provision in articles of incorporation that a new board of directors shall organize within a time specified after their election is directory merely.</p> <p>3. Same — Stock—Assessment—Validity. Articles of incorporation of a mining company provided that no assessment should be levied while there was treasury stock remaining in the treasury. At the time of levy of an assessment shares of such stock were undisposed of and in the treasury, but had no salable or other substantial value. Held, that the fact alone that such stock was undisposed of did not render the assessment void.2 .</p> <p>4. Same — De Facto Officers. A director who, when elected, did not hold sufficient shares of stock to qualify him for that office under the articles of incorporation, but did hold the required amount at the time an assessment was levied on the stock of the corporation by the board, was at least a de facto officer, and the assessment as against a collateral attack was valid.</p> <p>5. Same. Stockholders, who not only had means of knowledge respecting all the circumstances of an assessment on their stock,' but about' the time it was levied and before the sale of their stock to pay the assessment made an investigation of the acts of the board of directors through a competent lawyer, and could thus have arrested the consequences of the assessment had they desired to do so, cannot thereafter complain of its invalidity.3</p> <p>6. Appeal — Review—Findings of Fact — 'Conolusiveness. Findings of fact by the trial court in an equity case are conclusive, unless clearly contrary to the evidence.</p> <p>7. Corporations — Actions—Laches. Stockholders of a mining corporation, who apply to a court of equity for its interference to protect their rights against the consequences of alleged wrongful acts of the directors, must act with reasonable diligence, or present some good excuse for not having done so.</p> <p>8. Same — Evidence—Sufficiency. Evidence, in an action to enjoin, defendants from acting as the officers and board of directors of a corporation and from holding a stockholders’ meeting and from making a sale of the corporate property, held not to establish fraud in obtaining an option on the stock of plaintiff and his associates and a proxy therefor and in failing to enter into a bond and lease.</p> <p>9. Same. Evidence, in an action to enjoin defendants from acting as the officers and board of directors of a corporation and from holding a stockholders’ meeting and from making a sale of the corporate property, held not to show reasonable diligence by plaintiff to correct the wrongful acts charged.</p>

. .Appeal from District Court, Third District; C. W.. Morse, Judge. Specific performance suit by the I. X. L. Furniture & Carpet Installment House against Louis Berets and others. From a judgment dismissing the action, plaintiff appeals. APPELLANT'S POINTS.

Armstrong, Judge. . Petition by Charles W. Johnson for letters of administration on the estate of William G. Owen, deceased. Subsequently a petition was filed by Margaret Williams, praying that S. P. Armstrong be appointed administrator. An order granting letters, to Johnson was reversed on appeal (85 Pac. 277), and on remittitur Armstrong was appointed. Prom an order modifying the account of Johnson, and, as modified, approving the same, Armstrong appeals.

Application of Thomas Marioneaux for a writ of mandate against John O. Cutler, Governor, and others, constituting the state board of examiners, to compel defendants to allow petitioner’s claim as a district judge for mileage. APPELLANT'S POINTS. The Constitution declares that the subject of contemplated legislation shall be clearly expressed in the titlp. No one is required to look beyond the title to ascertain whether a bill contains a subject not expressed in the title.

<p>1. Appeal — Decisions Appealable. An appeal lies only from a judgment, and not from an order denying or granting a new trial.</p> <p>2. Judgment — When Becomes Final. A judgment is not final while a motion for a new trial made within the time allotted by law is pending and undisposed of.</p> <p>3. Appeal — Time eor Taking. An appeal from a judgment may be taken within' six months from the overruling of a motion for a new trial.</p> <p>4. New Trial — Notice oe Intention to Move — Limitation. Under Revised Statutes 1898, section 3294, providing that one intending to move for a new trial must, within five days after the verdict, or after notice of a decision if the cause were tried without a jury, serve and file a notice of such intention, and section 3330, providing that all notices must be in writing, one intending to move has a right to wait for a notice in writing of the decision from the adverse party before giving notice of intention to move for a new trial, though the movant participated in the final proceedings, objecting to the findings and the signing of a decree.1</p> <p>5. Same — Waiver. Under Revised Statutes 1898, section 3294, providing that one intending to move for a new trial must, within five days after the verdict, or after notice of the decision if the action were tried without a jury, serve and file a notice of such intention, the written notice of a decision may he waived; but, to constitute a waiver, the party must do some affirmative act pointed out in the statute as not necessary to be done until after the notiee.2</p> <p>6. Attorney and Client — Accounting — Complaint. A complaint alleging that plaintiff delivered to defendant, an attorney at law, moneys and notes valued at $3,042.80, to he loaned and collected for the use and benefit of plaintiff, and defendant neglected and refused to account to plaintiff, but had converted the moneys and proceeds to his own use, states a cause of action for an accounting.</p> <p>7. Appeal — Review — Presumptions. In the absence of a showing to the contrary, it must be presumed, on appeal from an order requiring an attorney to account to his client for notes and moneys received, that the order was properly made.</p> <p>8. Attorney and Client — Accounting. That an attorney failed to comply with an order of court requiring him to account to his client did not warrant the court in treating such failure as a confession of the plaintiff’s demand and entering a judgment against him for such an amount, in the face of his general denial and of his counterclaims,</p> <p>9. Judges — Change — Authority op Substitute to Hake Findings. Where, after the taking of evidence in an action by a client against an attorney for an accounting, and after the judge had found that plaintiff was entitled to an accounting and ordered defendant to account on a future day, and, upon defendant’s objection to the judge further proceeding in the cause, another judge was authorized to further try the case, the substitute judge could make findings on the whole case.</p> <p>10. Trial — Findings — Duty to Make. A court must find upon all the material issues,', including those raised .by counterclaims, regardless of the insufficiency of evidence to support them, or though no evidence in their support is introduced.</p> <p>11. Judgment — Necessity por Findings on Material Issues. No judgment can properly be rendered until there are findings upon all of the material issues.3</p>

W. Morse, Judge. Action by Ellen Garey and others against the St. Joe Mining Company. Held: impair the obligation of the contract between the stockholder and the corporation; but on the contrary, it is to be assumed that the stockholder entered into his engagement with the corporation in view of the fact that the legislature had reserved the right to exercise such power.” (Gardner v. Insurance Go., 9 E. I. 194, 11 Am. 238;…