Volume 50 — Utah Reports

<p>1. Vendor and Purchaser — Option—Meeting op Minds — Recovery op Payment. If minds of parties executing option agreement failed to meet upon question of amount of land to be conveyed plaintiff could recover from defendant amount paid thereunder. (Page 8.)</p> <p>2. Appeal and Error — Former Appeal — Reversal—Necessity op Substantial Error. After two appeals had previously been taken and four juries had passed on the facts and found in plaintiff’s favor, judgment will not be interfered with unless defendant has been prejudiced in some substantial right during progress of trial or in submission of case to jury. (Page 9.)</p>

<p>1. TRUSTS — Resulting Trusts — Payment of Consideration for Conveyance to Another. Where a wife held title to property real and personal of which her husband was the sole owner, part of which had been inherited by the husband and conveyed to the wife, and part of which had been purchased with his money and title taken in her name, for business convenience and for lawful purposes, and the wife by unequivocal acts and conduct clearly indicated that she always recognized the rights of her husband and that the equitable title to the property was in him and made deeds to him of such property, the property was held by her in trust for the husband. (Page 14.)</p> <p>2. Trusts — Resulting Trusts — Husband's Property Held by Wife. Where a wife held title to the sole property real and personal of her husband in trust for his benefit and made deeds and assignments of mortgages to the husband which were not registered and of which she retained possession, and all members of the family including a daughter, who delivered such deeds and assignments to the husband after the death of the wife, understood that the property was held for the sole benefit of the husband, whether or not the deeds -were sufficiently delivered at time of execution, the property after her death belonged to the husband. (Page 16.)</p> <p>3. Appeal and Error — Judgments Appealable. A decree ordering a defendant to deliver to administratrix property real and personal conveyed to him by the intestate and account to her for the interest he may have collected on the notes, mortgages, etc., was a final and appealable judgment, since the provision for an accounting did not affect the finality of the judgment. (Page 21.)</p> <p>4. Judgment — Prayer for General Relief — Relief Awarded. Where a husband was sued by the administratrix of his wife for property conveyed to him by instruments executed by intestate of which he received possession after her death, although the answer contained a prayer for general relief only, defendant was entitled to such specific relief as the pleadings and the evidence authorized. (Page 21.)</p> <p>5. Appeal and Error — Review—Disposition of Cause. Where it was more convenient to make and enter conclusions of law and judgment in the district court, the Supreme Court will do no more than indicate and direct what the findings, conclusions of law, and judgments shall be, and remand. (Page 22.)</p>

Geo. G. Armstrong, Judge. Action by J. J. Tanner against Henry Johnson. From a judgment of nonsuit and from an order denying his motion for a new trial, plaintiff appeals.

<p>1. Bills and Notes — Issues, Proof, and Variance. Answer held sufficient to permit proof that note sued on was delivered upon condition, and that there was want and failure of consideration. (Page 31.)</p> <p>2. Evidence — Condition Precedent to Execution of Note. Under the Negotiable Instruments Act (Laws 1899, e. 83), as between original parties, defendant could prove allegations of his answer that note sued on was delivered upon condition. (Page 32.)</p> <p>3. Bills and Notes — Defense—Want or Failure of Consideration. .In payee’s action on a note, evidence was admissible to substantiate answer alleging want and failure of consideration in view of Comp. Laws 1907, section 1580, allowing such defense, as against any person except a holder in due course. (Page 32.)</p> <p>4. CORPORATIONS — Subscriptions—•Validity—Profits from Corporate Stock. Agreement that plaintiff would look to profits from stock in payment for such stock purchased for himself and defendant in consideration of defendant managing the business was neither illegal nor unreasonable. (Page 33.)</p> <p>5. Bills and Notes — Want of Consideration. If plaintiff agreed to look to profits of stock in payment for such stock purchased for himself and defendant in consideration that defendant manage the business, he had no personal claim against defendant, and there was no consideration for a note given by defendant to secure such payment. (Page 33.)</p> <p>6. Contracts — Additional Agreement — Necessity of New Consideration. Where a party is already bound to do a particular thing and refuses to perform until the other party enters into a new agreement, the latter is not binding in the absence of a new consideration. (Page 34.)</p>

<p>1. Bills and Notes — Conditional Indoksement — Validity. Indorsement of a note before delivery to payee may be conditional.1 (Page 41.)</p> <p>2. Bills and Notes — Conditional Indorsement — Validity. Where the indorsement of a note before delivery is conditional, such conditions, to be binding upon the payee, must be accepted by him, made with notice to him, or acknowledged on his part before or accompanying delivery (Page 41.)</p> <p>3. Bills and Notes — Defenses—Conditional Indorsement — Pleading and Proof. Where a conditional indorsement is relied on as a defense, the fact that the conditions were accepted by or made with notice to or acknowledged on the part of the payee before or accompanying delivery must be pleaded and proved with common certainty.2 (Page 41.)</p> <p>4. Alteration of Instruments — Pleading—Answer—Sufficiency. In an action on a note, allegations of the defendant guarantors in their answer that they had signed the note in blank, and that the note had subsequently been altered by means of a stamp by the words, "Notice and protest waived, and for value received payment of the within note guaranteed by," and that such stamp was placed upon the note fraudulently subsequent to the signing without knowledge of such defendants, did not sufficiently state such defense, since it is not alleged when or by whom the alleged wrongful stamping is done, and, in view of the fact that plaintiff specifically alleged interest payments by the defendants since the maturity of the note, it was material for the defendants to allege in their answer that the alteration complained of was made not only without defendants’ consent or knowledge, but with privity or knowledge on the part of the plaintiff before delivery, and that defendants had not since ratified the alteration. (Page 42.)</p> <p>5. Alteration of Instruments — Evidencie—Presumptions. Where a stamping complained of by defendants as an alteration of a note set forth in plaintiff’s complaint appears to be regular on its face, without erasures, interlineations, or improper action indicating that it was not fully authorized, the presumption is that the stamping was properly made on the note before the delivery to the plaintiff. (Page 43.)</p> <p>6. Alteration op Instruments — Ratification—Actual Knowledge. Although a party must have actual knowledge of the alteration of a note before payment to constitute a ratification thereof, where payment is pleaded in the complaint and admitted in the answer without alleging that it was made without defendant’s knowledge or consent, ratification is sufficiently implied. (Page 43.)</p> <p>7. Alteration op Instruments — Pleading—Statute. The general rule of pleading alteration of a written instrument under the Code requires that, where the instrument is declared upon in its altered form, the answer should, be in the form of a general denial of all the material allegations of the complaint, or a specific denial of the execution of the instruments sued on, or a specific statement of the facts relied upon a defense. (Page 44.)</p>

<p>1. TRUSTS — Constructive Trusts — Following Trust Property. A trust will not be impressed upon funds or property in the hands of the alleged trustee where the original trust property or trust fund cannot be traced or identified either in its original or substituted form. (Page 47.)</p> <p>2. Trusts — Constructive Trusts — Pleading. A complaint, setting up the receipt of funds by alleged trustee for investment, the investment of such money, the mingling and confusion thereof with private funds of the trustee, and that such trust property cannot be traced or segregated, held to preclude plaintiff from establishing trust. (Page 48.)</p>

<p>Appeal from District Court, First District; Hon. J. D. Call, Judge.</p> <p>Action by S. W. Kent and others against John D. Kent and others.</p> <p>Judgment for defendants. Plaintiffs appeal.</p>

<p>1. Judgment — Bes Adjudicata — Question eor Jury. It is proper for the court to determine the question of res adjudicata as a question of law where there is no dispute regarding the effect of matters or controversies in either the former or the instant action. (Page 54.)</p> <p>2. Judgment — Conclusiveness—Bes Adjudicata. Plaintiff seeks to recover upon a negotiable note given in consideration of a crusher and motor. In a prior action in which this defendant was a party, plaintiff sought to foreclose a chattel mortgage lien on said crusher and motor, and in such action the court found that the plaintiff had no right, title, or interest to the crusher or motor, and quieted defendant’s title thereto. TLeld that, as plaintiff was required to allege and prove consideration as an essential element of his cause of action, the former action is res adjudicata of the question of his ownership of the only consideration for the note, and is sufficient to dispose of his claim in this action; it not being necessary that the form of both actions be the same if the question directly involved in the first action is also' directly involved in the second. (Page 54.)</p> <p>3. Judgment — Conclusiveness—Res Adjudicata. The fact that the finding in the former action quieting title to the crusher and motor in the defendant went beyond the allegations of defendant’s answer in the instant case is immaterial, and in no way affects the question of res adjudicata. (Page 56.)</p> <p>4. Judgment — Conclusiveness—Res Adjudicata. As defendant’s counterclaim in the instant case for an amount paid on the note was necessarily connected with the same transaction on which the plaintiff based his first cause of action as well as the present, his right to recover on the counterclaim is now barred by his failure to raise it in the former action. (Page 56.)</p> <p>5. Judgment — Costs on Appeal. Under Comp. Laws 1907, section 2970, providing that, if a defendant omit to set up a counterclaim, neither' he nor his assignee can maintain an action against the plaintiff therefor, plaintiff is now barred from recovering on his counterclaim by his failure to set it up in the former action entirely apart from the question of res adjudicata. (Page 56.)</p> <p>C. Costs — Costs on Appeal. Where on appeal a plaintiff succeeds in modifying a judgment against him on defendant’s counterclaim, but practically plaintiff’s whole record and brief are devoted to combating a ruling of the court against him which was affirmed, costs should be awarded to neither party. (Page 57.)</p>

<p>1. Municipal Corporations — Rent for Property Leased by City— Eviction by Ordinance. Where premises belonging to a city were leased for the purpose of conducting a bathing resort, with the provision that a portion of the premises might be leased or sublet for saloon or bar purposes, and subsequently, pursuant to Laws 1911, c. 106, an ordinance was passed by the city by which the carrying on of the saloon business on such premises was prohibited, the mere fact that the saloon business was prohibited did not constitute an eviction, and the defendant was not thereby released from paying rent, and was not entitled to any abatement thereof, since if the lessee desired to protect itself against the payment of rent in case the right to maintain a bar on the premises should be prohibited it should have provided for that emergency in the lease. (Page 64.)</p> <p>2. Municipal Corporations — Rent por Property Leased by City— Eviction. While the city in entering into the lease did so as proprietor of the property, and is governed by the same law and rules as other proprietors, in passing and enforcing the ordinance, pursuant to the provisions of Laws 1911, c. 106, it acted entirely in a governmental capacity, and as an arm of the state government, and had no more right to disregard the provisions of that chapter than a private citizen, and is not liable for the consequences of such governmental act. (Page 64.)</p> <p>3. Municipal Corporations — Lease by City — Statute. If a city should guarantee its lessee the right to continue the saloon business in violation of Laws 1911, c. 106, providing that licenses permitting the sale of intoxicating liquors should not be issued outside the limits of the business district of a city or town, and requiring cities to pass ordinances fixing such limits for the purposes of the act, the lease would be void, since municipal corporations have no power to make contracts which would embarrass or control their legislative powers and duties. (Page 65.) '</p> <p>4. Landlord and Tenant — Rent—Partial Eviction. Generally a tenant may not hold possession of premises, and then sue for an abatement of rent on the theory of partial eviction. (Page 66.)</p>

F. G. Loofbourow, Judge. Action by Fred Miller Brewing Company against Joseph Gaudio and others. The action was prosecuted against defendant C. H. Denhalter alone, the other defendants not being served with process. Judgment for defendant. Plaintiff appeals.

<p>1. CORPORATIONS — Issue op Certificates — Wrongful Refusal— Pleading. A complaint alleging that plaintiff’s intestate subscribed for stock in defendant corporation, fully paid therefor by delivering to it a quitclaim deed, and that defendant on demand refused to issue or deliver stock certificate to plaintiff’s intestate, or to plaintiff as her administrator, states a cause of action, though it does not allege specifically that plaintiff’s intestate was entitled to stock, or character and amount of consideration paid therefor, or that she was entitled to certificate demanded, where it alleges facts from which conclusion as to existence of these essential elements is irresistible. Page 72.)</p> <p>2. Corporations — Issue of Certificate — Wrongful Refusal— Action. An action for damages will lie for the wrongful withholding by a corporation of a stock certificate, in view of Comp. Laws 1907, section 530, recognizing the use of stock certificates as muni-ments of title, and the form of action is immaterial, if complaint shows plaintiff entitled to any remedy legal or equitable.1 (Page 73.)</p> <p>3. Executors and Administrators — Collection of Assets — Power to Sue. Under Comp. Laws 1907, sections 3912, 3915, relating to collection of assets, an administrator may demand of corporation stock to which intestate was entitled, or bring action for damages for its failure to issue stock. (Page 75.)</p>

<p>1. Appeal and Error — Review—Equity Case. On appeal in an equity case, the Supreme Court has power to review the testimony to determine the facts and the equities of the parties, though its views conflict with the trial court’s findings. (Page 79.)</p> <p>2. Waters and Water Courses — Appropriation op Water — Irrisation por Wild Eowl — Statute. Under Comp. Laws 1907, section 1288x6, as amended by Laws 1909, c. 62, and section 1288x16, as amended by Laws 1915, e. 83, providing that any person, etc., to acquire the right to use any public water in the state, shall take certain steps, etc., an appropriation of water cannot be made for the irrigation of unsurveyed, uninclosed, unoccupied public domain of the United States for the sole production of food for wild water fowl, since to effect a valid appropriation of water the beneficial use must be one that inures to the exclusive benefit of the appropriator subject to Ms complete control. (Page 80.)</p> <p>3. WATERS AND WATER COURSES — APPROPRIATION OF WATER APART FROM Land. Water may be appropriated and used on the public domain, and such a right acquired thereby as will be recognized and sustained, though the appropriator never acquires title to the land; his right to the water will he upheld even after he is dispossessed of the land on which it was used, but in such cases some sort of possessory right, good as against everybody but the government, must exist in favor of the appropriator. (Page 81.)</p>

F. C. Loofbourow, - Judge. Action by R. H. Peale against H. P. Clark. Judgment for plaintiff on demurrer to counterclaim. Defendant appeals. RESPONDENT’S POINTS It is settled almost everywhere, that the counterclaim which is available to a defendant must be between him and the plaintiff (C. L. U. 2969) and not between him and plaintiff and others, as in this case: (34 Cyc. pp. 712, section k. 715, section 2. Loundes v. Bank (Conn.), 66 Atl. 514).

<p>Taxation — InheRitance Taxes — Computation-—Statutes—Construction. Under Comp. Laws 1907, section 1220x, as amended by Laws 1915, c. 98, as to the assessment of inheritance taxes, an estate worth in excess of $25,000 must be assessed 3 per cent, upon the difference between $10,000 and $25,000 or $15,000, and 5 per cent, upon the balance, and not 3 per cent, in gross upon the entire estate, though after the deduction of the $10,000 exemption, the balance of the estate is not worth in excess of $25,000.</p>

J. D. Call, Judge. Action by the Board of Education of Cache County School District and Joseph Campbell, Treasurer thereof, against George S. Daines. Judgment in part for defendant. Plaintiffs appeal. appellant’s POINTS It is true that repeals by implication are not favored, but where there is a positive repugnancy between the provisions of two statutes the former in point of time is repealed by implication to the extent of such repugnancy.

J. D. CaM, Judge. Action by Joseph S. Allen against Henry H. Allen. Judgment for plaintiff.

<p>1. Constitutional Law — Validity of Statutes. The court will not declare a statute unconstitutional and void because of unjust and oppressive provisions, or because it is supposed to violate the natural, social, or political rights of the citizen, unless such injustice is prohibited or the rights are guaranteed by the Constitution. (Page 119.)</p> <p>2. Constitutional Law — Judicial Functions — Policy or Expediency op Statute. In construing a statute when its validity is attacked on constitutional grounds, the courts will not consider questions of policy or expediency. (Page 119.)</p> <p>3. Constitutional Law — Legislative Powers. Except where the Constitution has imposed limits upon the legislative power, it is absolute, whether it operates according to natural justice or not. (Page 119.)</p> <p>4. Constitutional Law — Presumptions in Pavor op Constitutionality. All reasonable doubts as to the constitutionality of a statute must be resolved in its favor.1 (Page 119.)</p> <p>5. Constitutional Law — Mechanics' Liens 313 — Due Process op Law — Contractors ' Bonds. Laws 1915, e. 91, requiring the owner of land desiring to make a contract for construction of a building for a price exceeding $500 to obtain a bond payable to the owner in a sum equal to the contract price conditioned for faithful performance of the contract, and payment of accounts for labor and material, is not unconstitutional as depriving the landowner of due process of law. (Page 122.)</p>

<p>Master and Servant — “Fellow Servant.” Two miners working on different levels in a mine are not working at the same place, and are not “fellow servants” within Comp. Laws 1907, section 1343, providing that all persons who are engaged in the service of the same employer and working together at the same time and place, etc., are fellow servants.1</p>

N. J. Harris, Judge. Action by J. W. Burton against Peter A. Mattson and Mrs. Mabel Mattson, his wife. From an order dismissing the action on the demurrer to the amended complaint, plaintiff appeals.

<p>1. Railroads — Persons on Track — Duty of Train Operators. The operators of a train have a right to assume that a person of mature years, sound of body and mind, who is walking on the track, on a bright day, with an unobstructed view, toward the rapidly approaching train, which on his entering on the track was more than a mile away, will see and hear, as is his duty, the approaching train, and will be timely in removing himself to- a place of safety. (Page 146.)</p> <p>2. Negligence — Contributory Negligence — Question for Court. Where there is but one reasonable inference to be drawn from the facts and circumstances disclosed by the testimony, namely, that the accident was solely and primarily due to deceased’s contributory negligence, without opportunity on defendant’s part, in time to have avoided the accident, contributory negligence becomes a question for the court, and is not within the province of a jury.1 (Page 148.)</p>

<p>Appeal from District Court, Fourth District; Hon. A. B. Morgan, Judge.</p> <p>Action by John W. Beesley against Thomas Boardman.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

<p>1. Waters and Water Courses — Natural Streams — Conveyance or Bight. In view of Comp. Laws 1907, section 1288x32, a deed to land in statutory form, without reservation of the water, conveys whatever right the grantor has to the water appurtenant to the land. (Page 153.)</p> <p>2. Waters and Water Courses — Surface Streams — Bight to Use— Prescription. Where a landowner has acquired the right to use- all of the water of a stream, it is unnecessary, in a suit to establish his right, to determine the exact quantity in second feet or acre feet which he was entitled to use.1 (Page 154.)</p>

A. E. Christensen, Judge. In the matter of the probate of the wills of Karen Frandsen, Deceased. Decree refusing probate. The proponent of two of the wills appeals.

J. A. Howell, Judge. Action by Claude M. Dee against tbe San Pedro, Los An-geles and Salt Lake Railroad Company, a corporation. Judgment for plaintiff. Defendant appeals. appellant’s points It is manifest that this assignment was merely for the purpose of endeavoring to give the Weber County Court jurisdiction.

<p>Original quo warranto proceedings by the State on the relation of Dan B. Shields, against George S. Barker.</p>

<p>Appeal from District Court, Third District; Eon. Geo. G. Armstrong, Judge.</p> <p>Action by the Tracy Loan & Trust Company against the Merchants’ Bank and another.</p> <p>Judgment for plaintiff. Defendant named appeals.</p>

<p>Appeal from District Court, Third District; Hon. M. L. Ritchie, Judge.</p> <p>Application of Ernest N. MacGregor for probate of will, of Peter Hanson.</p> <p>From judgment denying probate, the proponent appeals.</p>

Joshua Greemoood, Judge. Action by David Mills against Abner Gray. Judgment for plaintiff. Defendant appeals. APPELLANT’S POINTS.

George F. Goodwin, Judge. Action by Mrs. A. J. Brewer against Walter Romney and another. Judgment for plaintiff on the complaint and answer. Motion for new trial denied. Defendants appeal.

<p>1. Corporations — Insolvent Corporation — Trust Fund Theory — Applicability. The doctrine that the assets of an insolvent corporation constitute a trust fund in equity for the payment of creditors pro rata and without preference is inapplicable in this state, without statute authorizing its application.1 (Page 248.)</p> <p>2. Corporations — Defunct Corporation — Preference of Creditors. Where a corporation has forfeited its charter for nonpayment of the annual corporation tax under Laws 1909, c. 106, section 5, relating to forfeiture, and providing that in case of forfeiture all the assets of the defaulting corporation shall be held in trust by the directors, and the samo proceedings had as are applicable to insolvent corporations, it may in good faith in winding up its affairs make preferences among its creditors so long as not interfered with in a proper equitable proceeding to subject its property to payment of creditors. (Page 249.)</p> <p>3. Corporations — Powers of Presidenta-Notes and Mortgages. Where the president who was also the general manager of the corporation was authorized under its by-laws to transact its general business, his power to execute a note and mortgage and the legality of his acts will not be questioned, especially where he acts in good faith and , there is no fraud.2 (Page 250.)</p> <p>4. Corporations — Creditors’ Suits. The plaintiff could not, without offering to restore the money paid, invoke the aid of equity to havo declared illegal the foreclosure of a mortgage of a defunct corporation assigned to a creditor who paid money therefor for the use of the creditors of the corporation, especially where the creditor was an actual loser by thp transaction. (Page 250.)</p>

<p>Appeal and Error — Presumptions—Favoring Trial Court — Support op Findings by Testimony. In the absence of any testimony, if the findings are supported by the pleadings, the Supreme Court assumes that there was testimony to support the trial court’s findings.</p>

<p>Appeal from District Court, Fifth District; Hon. Joshua Greenwood, Judge.</p> <p>Action by Charles E. Norton against M. S. Mclninch.</p>

<p>Appeal from District Court, Sixth District; Hon. Joseph H. Erickson, Judge.</p> <p>Action by Pricilla Roper against A. J. Crosier and others.</p> <p>Judgment for plaintiff. Certain defendants appeal.</p>

<p>Appeal from District Court, Third District; Hon. Geo. G. Armstrong, Judge.</p> <p>Action by William Gray against H. Bullen and others, doing business as the Dreamland Leasing Company of Utah.</p> <p>Judgment for defendants. Plaintiff appeals.</p>

<p>Appeal and Error — Review—Findings. Findings of fact by the trial court in an equity case will not be disturbed where the great weight of the evidence supports them.1</p>

<p>Appeal from District Court, First District; Hon. J. D. Call, Judge.</p> <p>Action by Walter White against the Utab Condensed Milk Company.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

<p>Original application by the Board of Education of Salt Lake City for a writ of mandamus against Lafayette Hanchett and others, commissioners of Salt Lake County, and others.</p>

<p>1. Master and Servant — Pleading—Complaint—-Sufficiency. A servant’s complaint alleging defendant’s corporate capacity, its ownership of the mine, the employment of plaintiff, his place of work, the location of the shaft in which the cage was operated, its relation to plaintiff’s place of work, the purpose of the cage, how it was operated by the engineer, the employment of the engineer, his duties in respect to the cage and the persons being carried therein, the carelessness of defendant company in failing to employ a competent engineer; and, finally, the carelessness and negligence of both the engineer and the company in operating the cage while attempting to convey plaintiff to his place of work, together with the consequent injury to him and his claim for damages — is sufficient. (Page 298.)</p> <p>2. Master and Servant — Injuries to Servant — Vice Principal. An engineer whose duty was to operate a mine hoist carrying miners to and from a lower level was, as to such miners, a vice principal, for whose acts the operator was liable. (Page 299.)</p> <p>3. Master and Servant — Injuries to Servant — Pleading. It is not objectionable to charge both the mine owner and a hoist operator with negligence in injuring a minor by dropping the hoist, the hoist operator being a vice principal. (Page 299.)</p> <p>4. Master and Servant — Injuries to Servant — Fellow Servant. An engineer whose duty was to operate a mine hoist carrying miners to and from a lower level was not, as to a miner injured by the negligent dropping of the cage, a fellow servant. (Page 299.)</p> <p>5. Master and Servant — Question for Jury — Happenings of Accident. (Pago 299.) Though it is not strictly a ease of res ipsa lo-quitur, it is negligence as a matter of law for an engineer operating an electrically operated hoist cage in a mine to forget to set the clutch when he releases the brake whereby the cage was suffered to drop by its own weight, and the weight of its cargo, a vertical depth of 110 feet to the injury of a minor therein. (Page 299.)</p> <p>6. Damages — Aggravation. Where the servant's broken leg was set, but in his delirium the east was broken, and the bones could not be reset without loss of the leg, and a new east was put on without the bones being in apposition, the amount awarded the servant should not be diminished because of anything the physicians did or failed to do. (Pago 301.)</p>

N. J. Harris, Judge. Action by the Badger Coal & Lumber Company against N. C. Olsen and wife and another, wherein Emil H. Jacob intervened. From the degree rendered, defendant T. P. Terry appeals.

<p>Appeal from District Court, Fourth District; Hon. A. B. Morgan, Judge.</p> <p>Condemnation proceedings by John H. MeEwan and others against Johanna C. J. Anderson.</p> <p>From the judgment defendant appeals.</p>

G. W. Morse, Judge. Action by the Stndebaker Bros. Company of Utah against William Anderson and another. Judgment for defendants. Plaintiff appeals. appellant’s points Our contention is that no warranty of condition was ever pleaded or proved by the defendants.

J. D. Call, Judge. Action by Joseph B. Kent and others against the Ogden, Logan & Idaho Railway Company. Judgment for plaintiffs. Defendant appeals. APPELLANT ’S POINTS The pleader must allege in his complaint the acts or omissions of .the defendant upon which he bases his right to recovery, and show that they occurred through or by the negligence of the defendant. It is not sufficient that the acts alone be stated, or that a general statement of negligence be alleged.

<p>1. Schools and School Districts — Construction or Building — Requirement or Bond — Liability. Though Laws 1909, c. 68, section 1, provides that any person, contracting with the state, or any village or school district, for the construction of any public.building, or for any public work pr improvements, or for repairs upon any public building or improvement, shall be required, before commencing such work, to execute a penal bond for the faithful performance of said contract, and that such contractor or contractors shall promptly make payment to all persons supplying labor and material in the prosecution of the work under such contract, a school district is not liable to parties supplying labor and material for failure to require the bond. (Page 345.)</p> <p>2. Schools and School Districts — Construction or Buildings- — Requirement or Bond — Liability. Under such statute the boards of trustees are not personally liable for failure to require the bond. (Page 345.)</p>

<p>1. ActioN — Joinder of Causes — Parties and Interests Involved. In an action by stockholders against a corporation and its officers and directors, the complaint alleged various illegal and wrongful acts by the officers and directors, whereby V., who, it was alleged, controlled and dominated the corporation and its business affairs, had acquired its property and stock and a note executed, by the corporation in his favor, and that they had levied a number of illegal assessments on the stock of the corporation. It prayed for an injunction against the sale of the stock to pay one of such assessments, and that all of the assessments be set aside and annulled, and that the officers and directors make a full and complete accounting of all the assets and stock of the corporation, and that the note in question be surrendered, canceled, and annulled. Held, that the complaint improperly joined causes of action in favor of the corporation against the officers and directors and causes of action in favor of plaintiff against the corporation, since, notwithstanding the alleged control of V. over the corporation’s officers and directors, the causes of action to annul and enjoin the assessments were causes of action in plaintiff’s favor against the corporation, while the causes of action based on the wrongful acts of the officers and directors were causes of action in its favor, though enforced by the stockholders on its behalf. (Pago 353.)</p> <p>2. Pleading — Separate Statement — Distinct Causes of Action in One Court. The complaint also improperly joined in a single statement separate and distinct causes of action in favor of plaintiffs and against the corporation, as each assessment was a completed transaction, and if wrongful a separate and distinct cause of action, and the corporation was entitled to have each assessment stated separately in order that it might interpose any defenses it might have. (Page 353.)</p> <p>3. Pleading — Separate Statement of Causes. In an action by a corporation or its stockholders against its officers who have been derelict, mismanaged its affairs, and wrongfully appropriated its property, wrongful acts charged against the same individuals may, as a rule, be incorporated in one statement in the complaint regardless of how numerous or how involved the alleged wrongs may be, as the wrong consists in appropriating the property rights of the corporation, and that wrong constitutes but one cause of action. (Page 356.)</p>

<p>Appeal from District Court, Third District; Hon. C. W. Morse, Judge.</p> <p>Action by Alice E. Moyle against Salt Lake City.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from District Court, Third District; Hon. F. C. Loofbourow, Judge.</p> <p>Action by the Felt City Townsite Company against the Felt Investment Company and others.</p> <p>Judgment dismissing the action. Plaintiff appeals.</p>

<p>1. Appeal and Error — Review—Findings. Where the evidence is not presented for review, findings of fact by the trial court must be presumed to be fully sustained by the evidence. (Page 387.)</p> <p>2. Appeal and Error — Opinion op Trial Court — Consideration. Where the opinion of the trial court is settled in the bill of exceptions and is made a part of the record, the appellate court may look to it to ascertain the trial court’s reasons for its decision, but such reasons do not amount to a judicial finding, and are without any judicial effect.1 (Page 387.)</p> <p>3. Contracts — Architects—Commissions—Excess Cost. In an action by plaintiff, an architect, for commissions claimed, the court found that his plans and specifications for the remodeling of a theater were used, that plaintiff did not agree that the cost should not exceed a stipulated sum, but plaintiff told defendant after preparing preliminary plans that the cost should not exceed $30,000, that the building when completed in accordance with the plans thereafter prepared and submitted cost in excess of $77,000, but the excessive cost was not by reason of the carelessness, negligence, or incompetence of plaintiff, and that defendant was not damaged on account of any representations by plaintiff. Held that, there being a further finding that the contract between defendant and plaintiff which provided for payment of commissions was made in good faith and without any fraudulent representations or purpose, plaintiff was entitled to recover commission not being for the excess in cost of the building.1 (Page 388.)</p> <p>4. Judgment — Entry—Provisions, 'i'ho provisions of Comp. Laws 1907, section 3181, subd. 6, are directory and not mandatory, and hence the failure of plaintiff to demand entry of judgment within six months after the court rendered its oral decision does not preclude the court from thereafter entering judgment for plaintiff. (Page 389.)</p>

<p>Insurance — Mutual Benefit Association — Designation op Beneficiary — Validity. Where the laws of a union paying a death benefit required designation of beneficiary to be in writing and witnessed, a designation in writing of the mother of deceased, but unwitnessed when accepted by union, was valid, and-the wife of the member whom he subsequently married was not entitled to the' fund under a provision that in the absence of designation the wife should be the beneficiary.</p>

A. H. Christensen, Judge. Condemnation proceedings by the Ketcham Coal Company against the Pleasant Valley Coal Company, the Denver & Rio Grande Railroad Company and the Guaranty Trust Company. Judgment allowing partial condemnation only. Plaintiff appeals.

<p>1. Witnesses — Befreshing Becollection — Discretion. Whether a written memorandum may be referred to by a witness, for the purpose of reviving a present recollection, or as a record of a past recollection, is a matter largely within the discretion of the trial court. (Page 427.)</p> <p>2. Witnesses — Befreshing Becollection. An instrument in writing becomes a record of a past recollection merely, when it fails to revive a present recollection of the facts to which it relates, and in such case the witness must be able to state positively that he knows it was made at a certain time, and that when made it was true. (Page 427.)</p> <p>3. Witnesses — Befreshing Becollection — Discretion. The court did not abuse its discretion in permitting plaintiff, a farmer, while testifying as to the acreage and various kinds of crops grown on certain land for certain years, to refresh his present recollection by reference to a memorandum made by him, three years after the crop was grown, in part from his recollection and in part from accounts kept in a diary during the years the crops were grown, where the witness testified to a large majority of the items without referring to the instrument and stated that he believed he could testify to all, if given sufficient time, making it apparent that the instrument was of the kind used for reviving a present recollection rather than a record of a past recollection which must have been made at or about the time of the event to -which it relates. (Page 431.)</p> <p>4. Nuisance — Poisonous Gas — Injury to Animals — Evidence— Sufficiency. In an action for damages to live stock and crops alleged to have been caused by the operation by defendant of a smelter emitting poisonous gases, evidence held insufficient to show that the death or sickness of the animals was caused by the alleged operation.1 (Page 433.)</p> <p>5. TRIAL — Instructions—Applicability to 'Evidence — Damages. The court erred in refusing to withdraw from the jury consideration of damages on account of squash and truck garden damaged or destroyed, where there was no evidence of the cost of harvesting the same. (Page 434.)</p> <p>6. Trial — Instructions—Applicability to Evidence — Daiaws. Where the net damage to the grapevines for the years alleged in plaintiff’s complaint could not be ascertained from the evidence, the court erred in not withdrawing from the jury consideration of damages to the same. (Page 435.)</p>

<p>1. CORPORATIONS — Directors op Corporations — Fraud—Statements as to Solvency. A complaint against the directors of a corporation, personally for deceit in representing financial condition of corporation when they appointed plaintiff an agent, alleging that representations were made, to influence plaintiff’s conduct, were relied on and were untrue, and the resulting damage, states a cause of action. (Page 440.)</p> <p>2. Corporations — Directors—Fraud—Damages—Pleading. In an action for deceit in hiring plaintiff by a corporation which soon went out of business, part of a complaint alleging damages by reason of loss of profits that plaintiff would otherwise have made detracts nothing from plaintiff’s right to recover for loss of time induced by false representations. (Page 440.)</p> <p>3. Corporations — Statements op Officers of Corporation — -Hiring Agents — Fraud—-Evidence. In an action for deceit, evidence held to sustain a finding that a president of an insolvent corporation was guilty of deceit in hiring an agent rendering him liable personally to- the agent for damages for loss of time. (Page 440.)</p> <p>4. Corporations — Deceit by Directors of Insolvent Corporation— Hiring Agent — Evidence. That the president, a director, of a corporation in hiring an agent misrepresented the corporation by reference to literature, did not render other directors of the corporation personally liable for deceit to such agent, in the absence of evidence that they knew of the literature, or had anything to do with its issuance. (Page 441.)</p> <p>5. Damages — Speculative or Problematical — Certainty. Income of an agent dependent upon his ability to induce people to buy land contracts is too problematical and speculative tó be a basis of damages for wrongful termination of the agency. (Page 442.)</p> <p>6. Appeal and Error — Abandoned Allegations. Where no evidence is introduced to support an allegation in a complaint of damages too speculative to be a basis of action, and no finding is made thereon, there is nothing to review. (Page 442.)</p> <p>7. Fraud — Contracts of Hiring — Measure of Damages. Where one is deceived into a contract on a commission basis, the damages for the deceit are not measured by the contract, but by reasonable value of his services. (Page 442.)</p> <p>8. Appeal and Error — Harmless Error — Amount of Damages. Where the amount of damages assessed in an action for fraud is less than that testified to by any one, there is no prejudice to losing party. (Page 443.)</p>

A. B. Morgan, Judge. Action by R. Jones and others against J. W. Williamson and others. Judgment for plaintiffs. Defendants appeal. STATEMENT OF FACTS. This is an action for the rescission of a contract and for the recovery of damages for the breach thereof, and for the cancellation of certain promissory notes executed by the plaintiff, except D. N. Murdock, at the time of and in connection with the malting of the contract.

<p>1. OkiMinal Law — Sentence—Entering Judgment of Record-Statute. In view of Comp. Laws 1907, section 5080, providing that neither departure from the form or mode prescribed by the Code of Criminal Procedure in respect to any pleading or proceeding, nor any error or mistake therein shall render it invalid, unless it actually prejudiced defendant in respect to a substantial right, under Comp. ' Laws 1907, section 5154, providing that, after a plea or verdict of guilty, the court must appoint a time for rendering judgment, which must not be more than two days nor less than six hours after the verdict is rendered, unless defendant waives the postponement, or the judgment is arrested, or new trial granted, and that, unless such postponement is demanded, it shall be deemed to be waived, in a prosecution in a municipal court for the crime of drunkenness, where sentence of defendant after his plea of guilty was rendered September 21st, but not entered of record until September 27th, by its failure to enter the judgment of record as soon as practicable after sentencing defendant, as it should have done, the court did not lose jurisdiction of the case, and the sentence did not become illegal. (Page 452.)</p> <p>2. Drunkards — Offense—Prohibition Law. By the Prohibition Law (Sess. Laws 1917, c. 2) section 21, providing that any person who shall, in any street or alley, public place, store, restaurant, hotel lobby or parlor, or in or upon any passenger coach, street car, or upon any other vehicle commonly used for the transportation of passengers, or in or about' any depot, platform, waiting station, or room, or at any public gathering, drink any intoxicating liquors of any kind, or shall be drunk or intoxicated, shall be deemed guilty of a misdemeanor, drunkenness and intoxication by the use of intoxicating liquors are criminal, wherever and whenever they may occur at any place in the state. (Page 453.)</p>

N. J. Harris, Judge. Action by Thomas A. Whalen, administrator, against the Union Pfcific Coal Company. Judgment for plaintiff. Defendant appeals. STATEMENT OE FACTS This is an action by Thomas A. Whalen, as administrator of the estate of Pero Vueovich, against the Union Pacific Coal Company, a Wyoming corporation, hereinafter referred to as company, to recover damages for the death of Vueovich alleged to have been caused by the negligence of the company.

<p>3. Trade Unions — Expulsion op Member — Rights. An expelled member of an unincorporated association of electric railway employees was only entitled to a hearing in accordance with the laws and rules of the association. (Page 481.)</p> <p>2. Trade Unions — Expulsion op Member — Necessity op Notice. The expulsion of a member of trade association without notice or opportunity to be heard is void. (Page 481.)</p> <p>3. Trade Unions — Expulsion op Member — Review by Court. Where plaintiff was not expelled from a trade association nor condemned without a hearing, but his appeal after being denied admission to one local order upon transfer from another was not taken up owing to member’s honest opinion that he was not entitled to appeal, the court will not review and annul officers’ acts relating to plaintiff. (Page 482.)</p> <p>4. Trade Unions — Acts op Oppicers — Review by Court. Courts are not authorized to review rulings of regular constituted officers of a trade association, relating to its internal affairs, and hence would not interpret constitutional provision, it being the officers’ duty to construe such provisions, and the fact that different officers arrived at different conclusions was immaterial. (Page 484.)</p> <p>5. Trade Unions — Reinstatement of Expelled Member — -Action Against Union. Mandamus will not lie to compel reinstatement of an expelled member of a trade association where, owing to nonresi-dence of defendants, the decree could not be enforced. (Page 485.)</p>

<p>1. Replevin — Complaint—Ownership and Risht oe Possession. The complaint in replevin, alleging in the present tense ownership and right of possession, is sufficient, and allows proof of such ownership and right as of the time of commencement of the action; though action is commenced, as allowed by Comp. Laws 1907, section 2938, by filing complaint, and filing is a few days after the verification; that being the form of allegation provided by section. 3046 for the affidavit thereby required in such an action.1 (Page 487.)</p> <p>2. Appeal and Error — Review—Findings op Fact. Findings of fact depending on the credibility of witnesses and the weight given evidence are binding on appeal. (Page 493.)</p> <p>3. Appeal and Error — Harmless Error — Admission of.Evidence. The only question involved being the identity of a steer, which the cour-t found on sufficient evidence belonged to plaintiff, any error in overruling objection of a question to him calling for a conclusion was harmless. (Page 493.)</p>

<p>1. Waters and Water Courses — Prescriptive Rights — Period oe Use oe Water — Sufficiency oe Evidence. In suit over the right to use waters of a spring, evidence held to show that there was only a certain part of each year within which defendant had used and could use the waters from the spring for irrigation. (Page 498.)</p> <p>2. Waters and Water Courses — Prescriptive Right — Extent— Prevention oe Use by Another. Defendant, having a prescriptive right to use the waters of a spring for irrigation from May to August, cannot prevent plaintiff from using the surplus water not needed by defendant. (Page 500.)</p> <p>3. Waters and Water Courses — Prescriptive Rights — Beneficial Use. Though defendant had a prior and paramount prescriptive right to use waters of a spring for irrigation as against plaintiff, she had no right to the waters except as she put them to a beneficial use. (Page 500.)</p> <p>4. Waters and Water Courses — Appropriation—Quantity. Though the prior appropriator of water acquires the right to use it, he does not obtain title to any specific water, merely acquiring the right to the use of a specific quantity of water for a limited time in each year or during the whole of the year; though the owner has acquired a prior right to the use of water, yet if he does not use it during a portion of the vear. or if he cannot make it available by reason of natural conditions, he cannot prevent another from using the water while he cannot use it or make it available for use. (Page 501.)</p> <p>5. Waters and Water Courses — Appropriation—-Bight to Water— Sufficiency op Evidence. In suit involving the waters of a creek, evidence held to support the findings of the court that defendants and an intervener were entitled to the use of all the waters. (Page 501.)</p>

<p>1. WATERS AND WATER COURSES — DIVERSION—DAMAGES—■SUFFICIENCY OF Evidence. On counterclaim for damages from plaintiff's diversion of water, used by defendants to irrigate their lands, evidence held sufficient to support the findings of the jury that defendants sustained damages in the sum of $266. (Page 508.)</p> <p>On Petition for Rehearing</p> <p>2. Waters and Water Courses — Appropriation—Diversion—Instruction. The suit regarding the waters of a creek, wherein defendants claimed damages by plaintiff’s diversion, an instruction that defendants were entitled to use without molestation sufficient of the waters of the creek to mature whatever crops they had growing on their land watered from the creek, so if the jury found that plaintiff interfered with defendant’s use of the water by diverting it, and deprived defendants of their right to use it, defendants would be entitled to whatever damages the preponderance of the evidence showed they sustained by the diversion, did not submit any true or correct rule by which the damages could have been determined. (Page 512.)</p>

<p>1. Judgment — Conclusions of Law and Findings. Where, had the court rendered judgment .in accordance with its findings, the judgment for plaintiff would have been for $1,742.98, rather than for $671.50, with interest, for which judgment was rendered, the court’s conclusions of law, palpably at variance with the findings, and its failure to render judgment in accordance with its findings were error; the conclusions of law must be predicated upon and find their support in the findings, and the judgment must follow the conclusions of law. (Page 514.)</p> <p>2. Appeal and Error — Variance between Findings and Conclusions oe Law- — Disposition oe Case. Where the conclusions of law are palpably at variance with the findings as to the amount of plaintiff’s recovery, the Supreme Court, on plaintiff’s appeal, will order the lower court to set aside its erroneous conclusions of law and to substitute conclusions entitling, plaintiff to a judgment in accordance with the express findings of fact, also to enter sueh judgment. (Page 514.)</p>

<p>1. Landlord and Tenant — Renting on Shares — Actions—Pleading. In an action instituted August 6th, the complaint alleged an oral agreement between plaintiff and his tenant for the division of a crop of wheat; that defendant on the 5th and 6th days of August threshed 2,382% bushels of wheat; that as it was threshed plaintiff was the owner and entitled to the immediate possession of one-fourth thereof; that on such days he demanded one-fourth of the grain which was all similar in kind and capable of division; that defendant wrongfully obtained possession thereof, and unlawfully continued in possession, and wrongfully detained the grain; that before the commencement of the action, and on August 5th and 6th plaintiff demanded 596 bushels, or one-fourth of the crop; and that defendant unlawfully withheld and detained all of the crop. Seld, that the complaint sufficiently showed plaintiff’s right to and immediate possession of the property at the time of the institution of the action. (Page 518.)</p> <p>2. Evidence- — Parol Evidence — Subsequent Agreements. Where a lease provided as to the years 1912 to 1916, inclusive, that the lessee should plow and crop the whole farm every alternate year, that he should have the whole of the first and second crops harvested in the years 1912 and 1914, and that out of the third crop to be grown and harvested in 1916 he should pay a rental equal to one-fourth of the crop, proof of a subsequent parol agreement that a crop should be grown in 1915, and divided between the parties, did not vary or contradict the terms of the written lease, but was an additional agreement respecting a crop not contemplated by the lease. (Page 519.)</p> <p>3. Landlord and Tenant — Renting on Shares — Lease—Consideration for Modification. If any consideration for such parol contract other than the mutual promises of the parties was required, the right given the tenant to cultivate the premises and harvest the crop during 1915 constituted a consideration therefor. (Page 519.)</p> <p>4. Appeal and Error — Harmless Error — Instructions. O. leased a farm to defendant to be plowed and cropped every alternate year, the first two crops to belong to defendant and the third, to be grown and harvested in 1916, to be divided. O. sold the farm to plaintiff, and plaintiff sued for possession of a part of a crop grown in 1915, asserting a parol contract for the raising of such crop and a division thereof. The court charged that the jury were to determine the action under the terms of the lease, and that if they found that its terms were ambiguous, then the construction as placed thereon by plaintiff and defendant was to control. Held, that while this instruction may have been outside the issues, it was not prejudicial error, where practically all the testimony bore on the question of whether there was such a parol agreement as plaintiff alleged, there was sufficient evidence on this point to support a verdict for plaintiff, and the court further charged that the jury’s duty was to determine the ownership of one-fourth of the crop harvested in 1915, and that if they found such ownership to be in plaintiff, their verdict should be for him. (Page 520.)</p>

<p>Appeal from. District Court, Third District; Hon. M. L. Ritchie, Judge.</p> <p>Action by Victor Olsen against the Triangle Mining Co., a corporation.</p> <p>Judgment for defendant. Plaintiff appeals.</p>

O. W. Morse, Judge. Action by the Utah Association of Credit Men against R. N. McConnell. Judgment for plaintiff.

<p>Appeal from District Court, Third District; Hon. F. 0. Loofbourow, Judge.</p> <p>Action by Konstantinos Makris against Nicolaos Melis and others.</p> <p>Judgment dismissing complaint. Plaintiff appeals.</p>

N. J. Harris, Judge. Action by John F. Lombard against the Columbia National Life Insurance Company. Judgment for plaintiff. Defendant appeals. appellant’s points It is impossible to lay down any inflexible rule by which it can be determined what evidence shall be sufficient to establish agency in any given case. That is a question which must be determined in view of the facts in each particular ease.

<p>1. Public Lands — Entry—Assignment—Validity. Act Cong. March 28, 1908, c. 112, section 2, 35 Stat. 52 (U. S. Comp. St. 1916, section 4682), providing that no assignment of entry should be allowed except-to a person qualified to make entry, does not invalidate the contract of an entryman to convey the land upon which he entered, after due proofs were completed. (Page 570.)</p> <p>2. Pleading — Motions—Judgment on Pleadings — Effect as Demurrer. While a defendant’s motion for judgment on the pleadings is not strictly proper, such motion may be treated as a general demurrer. (Page 570.)</p> <p>3. Vendor and Purchaser — Recovery of Money Paid — Pleading. In suit for money deposited to secure payment by the vendee of land under the entryman’s agreement to sell it as soon as proofs were completed, unless it appeared in the agreement or on the face of the complaint that plaintiff was not qualified to make an entry of land, the complaint was not subject to general demurrer. (Page 570.)</p> <p>4. Vendor and Purchaser — Failure of Consideration — Right to Recover. Where defendant agreed to convey land entered by Mm to plaintiff when proofs were completed, and to deposit a share of an irrigation company to insure plaintiff’s being able to secure water, there was no basis for contention that plaintiff purchased the water share outright, when defendant, through his own fault, failed to complete the entry. (Page 571.)</p> <p>5. Vendor and Purchaser — Recovery of Price — Form of Remedy. Under Comp. Laws 1907, section 3498, providing there can be but one action for recovery of any debt secured by mortgage, which action must be in accordance with this chapter, and further providing for the sale of the mortgaged property, where plaintiff agreed to buy land and paid half of the price which defendant secured by depositing in escrow a share in an irrigation company, and defendant who had entered the land failed to complete the entry, plaintiff’s remedy to recover the money paid, was by foreclosure on the share in escrow, and not by action for damage for breach of contract.1 (Page 572.)</p> <p>6. Appeal and Error — Determination—Necessity of Remand. Though judgment of the trial court was right as to the amount, it cannot be affirmed without remand where plaintiff adopted the wrong form of action, by suing for damages instead of proceeding to foreclose his lien for the debt on stock standing in plaintiff’s name in escrow in a bank. (Page 572.)</p>

<p>1. Trial — Instructions—Questions for Jury. Where the court granted motion for nonsuit in an action by an automobile passenger against a railroad on counts alleging negligent dangerous speed and failure to give warning, it was error thereafter in the charge to submit such questions to the jury. (Page 579.)</p> <p>2. Negligence — Injuries to Travelers — Joint Adventure — Imputed Negligence. Where the undisputed evidence showed that plaintiff and the owner of an automobile agreed upon a trip in which they were to share expenses equally, and the automobile was struck by a train, it was error to instruct that plaintiff was a passenger, but he was a joint adventurer, and as such the negligence of the owner of the car in driving it upon the track was imputed to him.1 (Page 579.)</p>

J. D. Call, Judge. Action by Pacific Land & Water Company against Albert E. Hartsough. From a decree for plaintiff for part of the relief sought, defendant appeals; and from so much of the decree as is in favor of the plaintiff brings a cross appeal.

<p>1. Tbial — Instructions—Province of Jury — Uncontroverted Pacts. Where in am action for the death of a mine employee it appeared without dispute that explosive gas was found in defendant’s mine on one occasion about two months prior to the death, the court properly told the jury that defendant’s mine was a mine known to generate explosive gases, instead of submitting that question to the jury. (Page 587.)</p> <p>2. Master and Servant — Duty op Inspection — Statutory Peculations. Comp. Laws 1907, section 1518, subd. 3, as amended by Laws 1913, e. 78, requiring mines known to generate explosive gases to be examined every morning, applied to a mine in which explosive gases were discovered on one occasion, whether or not they existed in the mine in sufficient quantity to make it unsafe or dangerous in the opinion of experts. (Page 589.)</p> <p>3. Trial — Refusal cot Bequests Covered by Charge Given. A requested instruction which was sufficiently covered in the court’s general charge was properly refused, especially where it stated some propositions too favorably to defendant and others too strongly against plaintiff. (Page 591.)</p> <p>4. New Trial — Excessive Damages — Remittitur Instead op New Trial. In an action for death, the amount of damages is largely within the judgment of the jury, and the mere fact that the verdict is excessive is not sufficient to show passion or prejudice so as to require a new trial instead of a remittitur of the excess. (Page 592.)</p> <p>5. Appeal and Error — New Trial — Excessive Damages. Whether a new trial should be granted for excessiveness of the damages is largely in the discretion of the distriet court, and the Supreme Court ordinarily possesses no power other than that of determining whether-the trial coui't has abused its discretion. (Page 592.)</p>

<p>1. Limitation or Actions — Statute or Limitations — Application to Municipality — Street. There is no bar by statute of limitations in Utah against a municipality, in respect to a public street within its boundaries. (Page 605.)</p> <p>2. Estoppel — Estoppel or Municipality — Land as Part or Street. Where claimants of property in a city petitioned the city council for the approval of a map whereby the ground was divided into lots and blocks, a street being represented as 66 feet in width, and the council, after investigation by the city attorney and by itself, authorized the city engineer to approve the map, and some time later the question of the claimant’s title to the land was again raised and again referred to a new city attorney, who reported to the new city council that it had no authority to set aside its former action and was estopped from so doing, and plaintiff lent money on mortgage on the land, and subsequently the city assessed her thereon for taxes, the city was estopped to claim as a publie street premises lying without the sixty-six-foot width of the street shown on the map. (Page 607.)</p> <p>3. Municipal Corporations — Actions Against — Presentment op Claim — Statute. Plaintiff, before suing defendant city to quiet title to premises claimed by the city as part of a street, for damages, and for injunctive relief, was not required to present her claim for damages to the city council, as provided in Comp. Laws 1907, sections 312, 313, the statute not applying where the principal relief sought is equitable, and the damage prayed merely incidental.1 (Page 607.)</p>

<p>1. Master and Servant — Contract of 'Employment — Construction— Intent op Parties. In determining whether a contract of employment was contingent as to the amount of compensation, or definite as to the amount and only conditional as to the time of payment, the controlling question is the intent of the parties at the time of making the contract as gathered from the language used, the situation of the parties, and the subject-matter of the contract. (Page 613.)</p> <p>2. Corporations — Officers—Compensation—Construction of Agreement. Plaintiff, a stockholder and director of a mining company whose other officers were residents of Pennsylvania, was employed as manager at a salary of $350 a month. At a time when the mine was not paying expenses, and the other officers were advancing the money for its operations, the president wrote plaintiff that he must "look to you for help in deferred payment on a portion of your salary of say $150,” and that this back payment should not be exacted by plaintiff or another employee until all interest was paid and enough accumulated to meet current expenses. Plaintiff in reply stated that he and such other employee were willing to accept the proposition as to salaries as they had every confidence in the outcome of the property. In a prior letter he had stated that he was satisfied they had a big property, that it meant much to him to make it a dividend payer, and that he would stake Ms reputation on the outcome. After such correspondence he was paid $200 each month, and $150 was carried and credited to Mm. The corporation for more than a year thereafter did everything in its power to develop ore in paying quantities, and only suspended operations when it became impossible to longer advance the necessary money. Held, that it was the intention that the withheld salary should not be paid until and unless sufficient ore was found to pay the interest on the indebtedness and to meet the current expenses, and the corporation having made an honest and reasonable effort to carry out its part of the agreement without finding ore in paying quantities, plaintiff was not entitled to recover the additional part of his salary.1 (Page 613.)</p> <p>FRICK, C. J., dissenting in part.</p>