Volume 54 — Utah Reports

Certiorari by John Greenwood against W. H. Bramel, as' Judge of the District Court of Salt Lake County, and Annie Warenski, to review an.order denying petitioner’s motion to dismiss an appeal from justice’s court.

W. H. Bramel, Judge. Action by the Big Cottonwood Tanner Ditch Company against Vincent Shurtliff and another. From judgment entered against the plaintiff after remitti-tur from the Supreme Court in a previous appeal, plaintiff appeals.

C. W. Morse, Judge. Action by Salt Lake City and another against the Salt Lake City Water & Electrical Power Company and others. From a judgment in favor of the plaintiff the Utah & Salt Lake Canal Company and against the defendant the South Jordan Canal Company, the latter appeals.

Geo. F. Goodwin, Judge. ^ Action by Orson P. Rumel, administrator, against Alfred Solomon and Joseph F. Smith, trustee. Defendant Joseph F. Smith, trustee, filed special and general demurrer, and upon plaintiff’s refusal to plead further after court had sustained general demurrer, court dismissed action as to such defendant, and from the judgment plaintiff appeals.

<p>1. Master and Servant — Injury to Employé — Action for Damages —Proof. Where there are several or a number of causes that may have brought about employe’s injury, for some of which the employer is responsible and for some of which he is not responsible, it is not for the jury to guess between such causes when there is no satisfactory foundation in the evidence for its conclusion. (Page 41.)</p> <p>2. Master and Servant — Safe Place to Work — Mines—Duty of Employé. Mine operator’s duty to employé working in tunnel in which there was a main and side track was to have tracks so far apart that car passing on main track would not strike empty car on side track, jerking it out of position, and knocking employé against wall of tunnel. (Page 42.)</p> <p>3. Master and Servant — Injury to Employé — Accident in Mine Tunnel — Safe Place to Work. Where main and side tracks in mine tunnel were so close together that from tilting of track or of car, because of rock falling on track, or by moving of main track under weight of alleged car, or the spreading of the rails of such track, the loaded car would interfere with empty car on side track, jury was justified in holding that mine operator was negligent. (Page 43.)</p> <p>4. Master and Servant — Accident in Mine Tunnel — Liability of Mine Operators. ■ In action for employe’s death in mine tunnel, where' negligence relied on was the proximity of side track to main track, causing loaded car on main track to interfere with empty car on side track, knocking deceased employé against the tunnel wall, plaintiffs could recover though interference of the one car with the other may have been caused by any one of different causes, where none of such causes would have produced accident but for mine operator’s negligence in having tracks too close together. (Page 43.)</p> <p>5. Negligence — Action for Damages — Degree of Proof. Plaintiff in negligence action is required to introduce merely such evidence as will raise a fair presumption of negligence on the part of the defendant and of resulting injury to himself, circumstantial evidence being sufficient. (Page 44.)</p> <p>6. Master and Servant — Mine Tunnel Accident — Safe Place to Work — Jury Question. In an action for death of employe in mine tunnel after being knocked against wall by empty car standing on side track, struck by loaded car being driven on main track, whether the employer was negligent in laying the two tracks too close together was a jury question. (Page 45.)</p> <p>7. Negligence — Juey Question. Where the question of negligence is doubtful, it is for the jury. (Page 45.)</p> <p>8. EvideNce — Degree of Proof — Inferences. A jury ordinarily may not infer or presume a particiilar fact from another fact or series of facts, and make such inferences or presumption the basis of the ultimate fact to he found, or the basis of any other fact which is essential to a verdict in favor of the plaintiff. (Page 45.)</p> <p>9. Master and Servant — Injury to Miner — Sake Place to Work— • Sufficiency of Evidence. In action for death of employe in mine tunnel from being thrown against wall by empty car on side track, on said car being struck by loaded car on main track, evidence held to justify inference that the main and side tracks were laid too close together. (Page 48.)</p> <p>10. Appeal and Error — Trial—Granting of Nonsuit — Permission to Reopen Case — Discretion. Whether; plaintiff will be permitted to reopen case after nonsuit has been granted is within the sound legal discretion of the trial court, and such discretion will not be revised in absence of abuse. (Page 48.)</p>

<p>1. Taxation — Uniformity. Under Const, art. 13, sections 2, 3, and Comp. Laws 1907, sections 2507, 2508, 2509, 2511, 2505, subd. 5, taxation should be uniform upon all property within the jurisdiction of the authority levying the tax. (Page 57.)</p> <p>2. Taxation — Injunction—Adoption of Wrong Peincipi.es of Taxation. The intentional and willful adoption of wrong principles, standards, or methods in assessing property for taxes, resulting in inequality, nonuniformity, and discrimination to the injury of the taxpayer, entitles him to injunctive relief unless he otherwise has a plain, speedy, and adequate remedy. (Page 58.)</p> <p>3. Evidence — Hearsay—Report op Commissioners. In action to enjoin collection of a tax on hank stock, a report prepared by “Commissioners of Revenue and Taxation,” appointed in pursuance of an act of Legislature, which report purported to contain a summary of information collected by the .board as to the values at which property had been assessed in various counties in previous years, was properly excluded as hearsay; the act not providing that the report should be accepted as evidence, and the commissioners not being called as witnesses to verify the report. (Page 59.)</p> <p>4. Taxation — Bank Stock — Deductions. Under Comp. Laws 1907, section 2509, as to deductions, in assessing bank stock, on account of real estate, there should be deducted' from the value of the stock such a sum as is in the same proportion to the value as the assessed value of the real estate hears to the combined amount of the capital stock, surplus, reserve, and undivided profits of the bank. (Page 60.)</p> <p>5. Taxation — Bank Stock — Deductions. Under Comp. Laws 1907, sections 2507, 2508, 2509, 2511, 2505, subd. 5, deduction of percentage from value of bank stock to equalize assessment thereof with assessment of other property is to be made after deduction for assessed value of real estate. (Page 61.)</p> <p>6. Taxation — Bank Stock — Basis of Valuation. Under Comp. Laws 1907, section 2505, subd. 5, the market value, and not the “asset value," should be taken as the basis for assessment of bank shares.1 (Page 63.)</p> <p>7. Taxation — Injunction—Burden of Proving Discrimination. In action by bank to enjoin collection of tax on its shares because of discriminatory assessment, it has the burden of establishing its complaint by a preponderance of the evidence. (Page 69.)</p> <p>8. Taxation' — Injunction—Discrimination—Evidence. In action by bank to enjoin collection of tax on its shares, evidence held not to show intention or design by assessor or board of equalization to discriminate against plaintiff and other banks, or their stockholders, by the adoption of wrong principles, standards, or methods, or in any other respect. (Page 69.)</p> <p>9. Taxation — Discriminations—-Remedies. Discriminations in assessment resulting from mistake, inadvertence, and miscalculations, or error of judgment, must be remedied in some other form of proceeding than an action to restrain collection of the tax based on such assessment. (Page 69.)</p> <p>10. Taxation — Determination of Board of Equalization. Under Comp. Laws 1907, section- 2683, action of board of equalization in determining the assessed valuation of bank stock, after hearing, held final, and not reviewable in action by the bank to restrain collection of the tax based on such assessment.2 (Page 70.)</p> <p>11. Taxation — Enjoining Collection — Grounds. While Comp. Laws 1907, section 2683, recognizes the right to injunction when the tax or any part thereof sought to be enjoined is illegal, or is not authorized by law, the remedy should not be invoked except in clear cases, based upon unquestioned facts, coming within the clear terms, letter, and spirit of the statute.3 (Page 70.)</p>

J. D. Gall, Judge. In the matter of the estate of Wig-E-Giteh. From an order setting aside an appraisement and appointing other appraisers, the State Treasurer appeals.

J. D. Call, Judge, In the matter of the estate of one Brown deceased. From an order of the district court setting aside an ap-praisement and appointing other appraisers, the State Treasurer, on behalf of the state, appeals.

H. N. Hayes, Judge. Action by C. J. A. Lindquist and others against Marie S. Clayton and others. 1 Judgment for plaintiffs. Defendants appeal. APPELLANT’S POINTS.

<p>DivoRCE — Application to Vacate Findings — Effect on Time of Taking Effect of Decree. In view of Comp. Laws 1917, sections 3002, 6828, application or motion, made within six months after entry of divorce decree, to vacate findings for decree in divorce suit and to enter judgment in favor of movant, suspends all proceedings until court’s disposition of such application or motion, and divorce does not become absolute until six months after such disposition.1</p>

<p>Judgment — Constuuction—Nonsuit—Rbeebence to Findings. Decree that “plaintiffs take nothing by their complaint, that the same be and hereby is dismissed,” rendered pursuant to conclusions of law finding defendants “entitled to an order of nonsuit,” was ,a judgment of nonsuit, and not a decision of the case on its merits.</p>

<p>1. Partnership — Copartnership Agreement- — Construction Articles of copartnership providing for establishment of store, and in connection therewith an employment office to supply labor to certain power company, and providing that partner, who prior to creation of partnership had agreement with the power company to furnish all foreign labor required by such company, “is to act as the treasurer of said copartnership and to furnish all foreign labor on said construction work, for which he is to receive in full payment thereof one-third of the net profits of said copartnership,” construed so that compensation received for- labor furnished the company according to the partner’s agreement with the company t)®<same a part of the partnership income. (Page 91.)</p> <p>2. CONTRACTS — Province of Court — Construction of Contract. Where 'written agreement expresses the intent of the parties in plain and unambiguous language, it is the duty of the court to give effect to that language, unless the party executing the agreement was induced to do so by fraud or misrepresentations of some kind. (Page 92.)</p> <p>3. Partnership — Rights of Partners — Secret Agreement. A partner will not be permitted to take advantage of any secret agreement to receive a private or personal gain for the work or business carried on by a partnership. (Page 92.)</p>

<p>1. Appeal and Error — Former Decision as Law op Case. In action for damages from waters overflowing a ditch, evidence on second trial held, substantially the same as that on the first trial, so that decision on the first appeal, that evidence was sufficient to authorize a finding for plaintiff, was decisive on second appeal, that findings for plaintiffs was warranted. (Page 95.)</p> <p>2. Waters and Water Courses — Duty to Repair Ditch — Instruction. In action for damages to realty from waters overflowing a ditch, instructions as to duty of one constructing, and assuming to control and regulate, a ditch to keep it in repair, held to correctly state the law. (Page 96.)</p> <p>3. Appeal and Error — Former Appeal — Law op Case. The pleadings on the second trial being precisely the same as those on the first, and the evidence on both trials being substantially the same, it must he held on the second appeal that instructions of the trial court on the second trial, conforming to pleadings and evidence and to rulings on the former appeal, correctly stated the law of the case. (Page 98.)</p> <p>4. Waters and Water Courses — Irrigation—-Damages. Where street ditch, when originally constructed, was within the limits of defendant city, that limits were subsequently changed would not affect defendant’s liability for damages due to water overflowing ditch because of failure to keep it free from obstructions, the acts in constructing and maintaining the ditch being authorized by Comp. Laws 1917, sections 570x15, 570x17, 570x18, and not ultra vires. (Page 98.)</p> <p>5. Appeal and Error — Depense Not Pleaded — Availability. A defense not pleaded by defendant appellant is not available on appeal. (Page 99.)</p> <p>6. Appeal and Error — Second Appeal — Binding Eppect of Prior Appeal. Being bound to yield to the doctrine of law of the case as declared on the former appeal, it is immaterial what the view of the Supreme Court on second appeal would be respecting appellant’s liability. (Page 99.)</p>

<p>1. Bras and Notes — Action on Note — Accounting for Security. Although note purchased hy plaintiff was overdue at time of purchase, so that he was not a holder in due course, in action on the noté he could not he required to account for stock given to secure it, where he never had the stock in his possession, and did not know of its existence. (Page 103;)</p> <p>2. Appeal and Error — Motion for New Trial Not Argued — Review. Though motion for new trial was not argued, where grounds upon which it was made are stated in the brief and relied upon by appellant the Supreme Court will waive the rule and give the motion due consideration. (Page 105.)</p> <p>3. New Trial — Newly Discovered Evidence — Diligence. If defendant did not use due diligence required hy statute to procure proposed newly discovered evidence, his motion for new trial should not prevail, no matter how material the testimony may have been on a new trial. (Page 106.)</p> <p>4. New Trial — Newly Discovered Evidence — Diligence. Defendant held not to have used due diligence to discover and produce alleged newly discovered evidence disclosed hy affidavit supporting his motion for new trial. (Page 107.)</p> <p>5. Appeal and Error — Order Denying New Trial — Review. The court on appeal will not reverse order denying motion for new trial unless trial court abused its discretion. (Page 107.)</p>

<p>1. Highways — Public Service Commission — “Public Highways.” In a proceeding hy the Public Utilities Commission to enjoin the operation of an automobile stage line by one not granted a certificate of convenience and necessity, it is not incumbent upon the commission, in order to make out a prima facie case, . to introduce testimony to show dedication of roads in question under Comp. Daws 1917, section 2801, nor filing by county commissioners of a plat under section 2808, nor to do more than show their general use by the public -for travel, in view of section 4782, subds. 13, 14, 28, and sections 4798 and 5845; “public highways,” within the meaning of the legislative act creating the Public Utilities Commission, being used in its broadest sense to include any way in general use by the public. (Page 114.)</p> <p>2. Pleading — Admission in Answer — Estoppel. In a proceeding by the Public Utilities Commission to enjoin the operation of an automobile stage on alleged highways by one without a permit, defendant, having by his answer claimed right to use such highways by virtue of issuance to another, of a certificate of convenience and necessity, in effect admitted the roads to be legal highways, and is estopped from claiming them to be otherwise. (Page 118.)</p>

<p>1. Corporations — Disposition of Corporate Property — Ratified Sams by Directors — Statute. Under Comp. Daws 1907, section 322 (Comp. Laws 1917, section 869), the proviso of which is not limited to mining companies, all corporations in Utah through their directors and on confirmation by a vote of a majority of stockholders may dispose of the corporation property, when such disposition is not provided for in the articles of incorporation; when the articles of incorporation provide the property may be sold by the directors or by the stockholders, sales so made will be binding on the corporation. (Page 124.)</p> <p>2. Corporations — Railing Corporations — Disposition of Property. Failing or unsuccessful corporations may sell and dispose of their property, providing the transactions are not in fraud of the rights of creditors. (Page 124.)</p> <p>3. Corporations — Failing Corporations — Duty of Directors and Stockholders — Transfer of Assets. Where irrigation company was in failing condition and in danger of losing its water filings and other rights, it was not only within power of directors and majority stockholders to make arrangement with third person involving transfer of company’s property to a corporation organized by him, which would save something to the stockholders, but it was their duty so to do. (Page 126.)</p> <p>4. Corporations — Deed'to Company Not Formed. A deed executed by one company to another before the incorporation of the grantee company was not for that reason invalid.1 (Page 128.)</p> <p>5. Corporations — Stockholders’ Meeting — Form of Notice — Waiver of Right -to Object. Stockholders who, pursuant to notice, were present in person or by proxies at a meeting called to ratify a sale of the assets of the company by the directors, are not in a position to object to the form of notice of the meeting. 2 (Page 128.)</p>

<p>Appeal and error — Assignment op Error — Sufficiency of Evidence —Presentation of Question. Assignment, as error, of insufficiency of evidence to support decree, findings of fact and conclusions of law not being assailed, presents no question for the determination of the .Supreme Court.1</p>

<p>Sales — Sale to Brokerage Company — Contract—Right to Commission. Where plaintiff brokerage company offered to buy peaches of defendant, who offered to sell at price per basket, and plaintiff replied that if peaches were No. l’s defendant could book another company 20 cars, contract of sale between parties resulted, it being immaterial to whom peaches were deliyered, and by whom actually paid for, so that plaintiff could not recover commissions as on a brokerage transaction.1</p>

<p>Appeal from the District Court of Salt Lake County, Third District; Hon. Wm. H. Bramel, Judge.</p> <p>Action by the Utah Association of Credit Men against the Board of Education of Millard County School District.</p> <p>From judgment for partial relief only, plaintiff appeals.</p>

<p>1. Fixtures — Between Buyes, and Seller oe Chattels — Removal. Although under Const, art. 14, section 3, and Comp. Laws 1907, section 1875, a contract tor the installation oí fixtures in a schoolhouse entered into with a school district which has exceeded its constitutional debt limit is void, the seller is entitled to rescind and remove such fixtures as can be removed without materially injuring the building; the ordinary rule as to fixtures not applying. (Page 147.)</p> <p>2. Schools and School Districts — Unauthorized Contract — Recovery oe Goods by Seller — Refunding of Money Paid. One who has furnished fixtures to a school district, which has exceeded its constitutional debt limit, in rescinding the contract, will not in equity be required to refund any money which was paid, where there are many articles some of which can be removed from the schoolhouse, Without material injury to the building, and others not. (Page 151.)</p> <p>3. Schools and School Districts — Unauthorized Contracts— Remedies of Seller — Removal of Fixtures. A seller of schoolhouse fixtures to a school district which has exceeded its constitutional debt limit will, under direction of a court of equity, be permitted to remove such of the fixtures as can be removed materially without injuring the building, to an amount necessary to compensate him for the unpaid purchase price with interest. (Page 151.)</p>

J. D. Gall, Judge. Suit by Margaret Arbon against John Blyth. Judgment for plaintiff. Defendant appeals. APPELLANT’S POINTS. When the court instructed the jury to return a verdict for “pecuniary loss,” and then instructed that she was entitled to damages for “disappointment for such reasonable expectations of an advantageous settlement in life, as she suffered, ’ ’ it erred to the injury of the defendant. Goolidge v. Neat, 129 Mass. 146-149; V. 8.

Third District; Ron. R. B. Porter, Judge. Action by Frank G. Blake, an infant, by T. W. Blake, his guardian ad litem, against C. D. Harding. Verdict and judgment for defendant. Plaintiff appeals.' APPELLANT’S POINTS. When it is said the infant cannot disaffirm if the contract was fair and reasonable at time of making is to assert that he can only disaffirm for fraud or mistake, wlpch places him squarely on the plane of an adult, and deprives him of his privilege of infancy.

B. B. Porter, Judge. Petition for letters of administration on the estate of Mary J. Wolcott, deceased, by Martin Mahnkin, and petition by Mrs. Hazel Brodbeck for letters testamentary. From an order appointing Mahnkin administrator,- Brod-beck appeals.

Appeal frpm the District Court of Salt Lake County, Third District; Hon. Wm. H. Bramel, Judge. Action by Mike Macky against the Bingham New Haven Copper & Gold Mining Company. Judgment of dismissal. Plaintiff appeals. appellant’s points.

H. Bramel, Judge. Action by Charlotte Weyant and others against the Utah Savings & Trust Company. From the judgment rendered, defendant appeals. The probate proceedings and the decree rendered therein are in rem, and are conclusive against the whole world, and cannot be impeached or opened by another court, or in or by any other action, but only by appropriate application in the same proceeding, or upon appeal. Sohler v. Sohler, 135 Oal. 323, 67 Pac. 282, 87 Am.

<p>1. SA1.ES — FAILURE TO DELIVER AMOUNT CONTRACTED-REMEDIES OE Vendee. Where a vendor contracts to deliver a specified amount of goods or material, and the full amount is not delivered, the vendee is at liberty to refuse to accept the part tendered, or, having accepted a part, is at liberty to return that and refuse to accept less than the entire amount specified; hut, after having received and retained a part of the amount, a vendee will not be permitted to refuse to pay for the goods so delivered and retained, because of failure of vendor to deliver full amount contracted for, especially where value and usefulness of goods actually delivered and received are in no way deteriorated or affected by failure to deliver the full amount. (Page 220.)</p> <p>2. Sales — Pleading—Demurrer. Where complaint, in action for contract price of wool delivered, set out contract, which provided for delivery of a specific amount of wool at so much per pound, and, after stating the delivery of a smaller amount, alleged “that the defendant accepted the said wool and agreed to pay for the same according to agreement,” plaintiff was en-' titled to recover for the goods actually delivered, and a demurrer to the complaint was properly overruled. (Page 220.)</p> <p>3. Contracts — Pereormanoe—Questions eor Court. Where the facts are undisputed, the question of whether or not they constitute a performance or breach of contract, is one of law for the court.1 (Page 222.)</p> <p>4. Sales — Failure to Deliver Amount of Goods Contracted — Justification. WThere one undertook to sell about 80,000 pounds, of wool, to be clipped from 750 ewes and 250 lambs, it was no legal excuse or justification for failure to deliver the amount of wool cut from such number of sheep that during the winter a great many sheep died by reason of the severe weather and the inability of the owners to obtain necessary food for them.2 (Page 222.)</p> <p>5. Sales — Failure to Deliver Amount of Goods Contracted— Effect of Acceptance by Vendee — Rights of Vendee. Although a vendee, who accepted and retained part of the goods mentioned in a contract, could not avoid paying for same on ground that vendor failed to deliver amount specified in contract, he was entitled to damages by reason of failure to deliver the entire amount; the value of such goods having increased between date of contract and date of delivery. (Page 223.)</p> <p>6. Evidence — (Privileged Communications — Offers to Compromise. (Where a controversy arose between a vendor and vendee of wool as to amount due vendor, who failed to deliver entire amount specified, and vendee offered to pay vendor certain amount in effort to compromise, fact that such offer was made was not admissible in evidence, in an action by vendor for purchase price of wool delivered. (Page 224.)</p>

P. G. Evans, Judge. Action by Simon G-rieve, special administrator of tbe estate of Helen R. A. Grieve, deceased, against Mark A. Howard. Judgment dismissing complaint. Plaintiff appeals. APPELLANT’S POINTS. The Court erred in sustaining the objections of defendant’s counsel to the testimony of Simon Grieve as to conversations had with the deceased; or as to matters equally within the knowledge of the witness and said deceased. Miller v. Livingston, 31 Utah, 415.

<p>1. Divorce — Extreme Cruelty Justifying Decree — Evidence. Finding of trial court that acts of cruelty of defendant wife complained of were the irresponsible acts of an insane mind held not so clearly against the weight of the evidence as to justify the Supreme Court in substituting another finding therefor, in view of Comp. Laws 1917, section 2995, subd. 8, according plaintiff a complete remedy. (Page 248.)</p> <p>2. Divorce — Insane Persons — Defenses—Insanity. Divorce may be had from an insane defendant for a cause of action which accrued during defendant’s sanity. (Page 248.)</p> <p>3. Appeal and Error — Findings—Review. In a law case the Supreme Court is bound by the trial court’s finding where there is any substantial evidence in support thereof. (Page 249.)</p> <p>4. Appeal and Error — Findings—Review in Equity Cases. In equity cases plaintiff is entitled to the judgment of the Supreme Court on the evidence, and, if trial court’s finding is clearly against the evidence, it is the duty of .the Supreme Court to make or direct findings in accordance with the evidence. (Page 249.)</p> <p>5. Divorce — Discretion 'of Chancellor. While ordinarily, if the ’ complaining party makes out a case under the statute, the court should grant a divorce, yet there may be conditions and circumstances under which the chancellor should exercise a' sound discretion in granting or withholding relief and in determining the extent thereof. (Page 249.)</p>

<p>1. Appeal and Error — Findings—Evidence. Findings of tlie trial court supported by substantial evidence are conclusive upon appeal. (Page 254.)</p> <p>2. Execution- — 'Wrongful Execution — Damages. Where property in which plaintiff owned a part interest was wrongfully sold under execution, plaintiff may recover the reasonable value of his interest, although such value exceeded what he paid for it. (Page 255.)</p> <p>3. Execution — Wrongful Sale — Recovery of Damages. An action to recover property or the value thereof, because wrongfully sold under execution, is properly treated as one for damages only, where plaintiff did not attempt to obtain possession by filing necessary affidavit, etc. (Page 255.)</p> <p>4. Execution — Wrongful Execution1 — Persons Liable. In action .for wrongful execution sale, recovery may be had against the sheriff who sold the property and execution purchaser, as well as the judgment creditor. (Page 256.)</p> <p>5. Evidence — Secondary Evidence — Copy oe Execution — Foundation. In action for wrongful execution sale, a copy of the execution is inadmissible, where no foundation was laid for the receiving of secondary evidence. (Page 257.)</p> <p>6. Evidence — Judgment—Method oe Proving. Under Comp. Laws 1917, section 7088, providing that judicial records may he proved by the original or a certified copy, a judgment must he proved by producing the judgment docket or a certified copy of the entry therein.1 (Page 257.)</p> <p>7. Evidence — -Judgment—'Certified Copy. Under Comp. Laws 1917, section 7088, requiring judicial records to be proved by the original or certified copy, a judgment cannot be proved by the original findings of fact, conclusions of law, and decree, unless certified to be a copy of the entry in the judgment docket. (Page 257.)</p> <p>8. Appeal and Error — Assignment of Error — Necessity. Where an answer containing a plea of justification was not entirely lacking in substance, and no assignment of error was filed regarding it, that portion of the answer cannot be reviewed upon appeal. (Page 259.)</p> <p>9. Appeal and Error — Cross-Assignment—Necessity. Respondent’s contention that a finding was unsupported by evidence cannot be reviewed, where no cross-assignment was filed. (Page 259.)</p>

<p>Appeal from the District Court of Sevier County, Sixth District; KonjK. N. Kayes, Judge.</p> <p>Action by Joseph Swetin against J. E. Magleby and Joseph F. Peterson.</p> <p>Judgment for plaintiff. Defendants appeal.</p>

Stephens, Judge. Action by William G. Sharp and others, as executors of the will of John Sharp, Sr., deceased, against John N. Sharp and others, executors of the will of John Sharp, Jr., deceased, and others, in which defendants filed a counterclaim. Judgment for plaintiffs, and dismissal of defendants’ counterclaim and defendants appeal.

<p>1. 'Criminal Daw1 — New Trial — Time for Filing Motion — Court’s Discretion to Extend. Although Comp. Laws 1917, sections 6619, 7023, give district court discretionary power to allow motion for new trial to he made in civil cases and filed after the time limited hy the Code, section 9200 limits application for new trial in a criminal cause to written notice served within five days after verdict, and in such cases the court is without discretion to extend such time beyond such limit, procedure in criminal cases being limited to that prescribed in the Code by section 8547, notwithstanding section 7892 provides that penal statutes shall be liberally construed. (Page 278.)</p> <p>2. Criminal Law — Appeal—Time op Nones — Entry op Judgment. ■ Where a verdict of guilty was rendered May 17, 1918, and judgment upon the verdict was not rendered and entered until the 21st of the following September, and qn the same day defendant served and filed his notice of appeal to the Supreme Court, the notice was in time, being within two months after the entry of judgment appealed from, in view of Comp. Laws 194-7, section 9209. (Page 279.)</p> <p>3. Criminal Law — Larceny—Ownership os Property — Conflicting Testimony — Conclusiveness oe Jury’s Findings. In a prosecution for grand larceny, although evidence of state’s and defendant’s witnesses was in direct conflict upon the issue of ownership, held that there was evidence sufficient to justify conviction, and the Supreme Court has no power to disturb the jury’s finding thereon. (Page 280.)</p> <p>4. Criminal Law — Intent or Motive — Defendant’s Belief of His Ownership. In a prosecution for larceny of a steer, the court’s refusal to permit the defendant to testify as to his intent and belief in possessing and claiming the animal as his own property was clearly error, in view of Comp. Laws 1917, section 7908, providing that “in every crime or public offense there must exist a union or joint operation of act and intent, or criminal negligence” since motive or purpose was an issue.1 (Page 282.)</p> <p>5. Criminal Law — Exclusion of Evidence — Harmless Error. Although the court erroneously refused to permit the defendant to answer questions relating to his honest belief that the animal he was accused of stealing was his own property, yet where he was permitted to testify at great length to his acts and conduct toward the animal and circumstances of its possession, his reasons for claiming ownership, its appearance, condition, and causes therefor, and his intent and purpose, the error was not prejudicial, and is not reversible. (Page 283.)</p> <p>6. Criminal Law — -Appeal—Objection That Jury was Not Properly Admonished — -Objection Made too Late. Where the only objection made by counsel in a larceny trial was acquiesced in hy the court, and the sheriff ordered to carry the court’s instructions to the jury, who had gone to view the steer in question, that they should merely view it, and not throw it and examine it closely, the contention that they were not properly admonished came too late. (Page 284.)</p> <p>7. CKtMiNAL Law — Instettction—Evidence—Sufficiency. An instruction in the language of Comp. Laws 1917, section 8285, defining larceny and making unsatisfactorily explained possession of recently stolen property prima facie evidence of guilt, would warrant a reversal of conviction had the jury not been warned that mere possession and unsatisfactory explanation were alone insufficient evidence to warrant a conviction.2 (Page 286.)</p>

<p>Coubts — Rules'of Decisión — 'Decisions of Another State — Constitutionality of Statute. A well-considered decision of the court of another state that the Workmen’s Compensation Act of that state does not conflict with the state or federal Constitution, if not binding, is so persuasive that those questions are not to he reconsidered in an action for personal injuries to an employé received in the other state.</p>

Harold M. Stephens, Judge.' Action by T. J. Sullivan against tbe Evans-Morris-Whitney Company. Judgment for plaintiff. Defendant appeals. appellant’s points. It is well settled that one dealing with an agent is bound, at his peril, to ascertain the extent of the agent’s authority and is chargeable with knowledge thereof. Baker v. Seaward, 127 Pac.

<p>1. Landlord and Tenant — Commencement oe Term — Subsequent Execution oe Lease. Where the terms of a lease were agreed upon, the lease written, and the tenant went into possession, but the signing of the lease was delayed until- the landlord could acquire title to property included therein, the liabilities of the tenant dated from the agreement, not from the execution of the lease. (Page 307.)</p> <p>2. Appeal and Error — Harmless Error — Exclusion oe Evidence— Assumption. Error in excluding evidence of defendant’s breach of the terms of a lease prior to a certain date is prejudicial, though evidence as to breaches subsequent to that date did not show actual damage. (Page 308.)</p> <p>3. Appeal and Error — Assignment oe Error — Abandonment. An assignment of error not discussed in the brief nor in the oral argument is deemed abandoned.1 (Page 308.)</p>

<p>1. HusbaND and Wife — Sepabate Maintenance. In an action by a wife for separate maintenance, evidence held, to sustain a finding that plaintiff lived separate and apart from the defendant without her fault. (Page 311.)</p> <p>2. Husband and Wife — Separate Maintenance — Grounds for. If the conduct of a husband toward his wife is such as to legally entitle her to live separate and apart from him, she is entitled to separate maintenance, regardless of whether or not the husband deserted her, or whether he refused to maintain her.1 (Page 312.).,</p> <p>3. Husband and Wife — Separate Maintenance — Alimony—Restraint Upon Alienation of Property. In suits by wife for separate maintenance, where alimony is allowable, in order to insure its payment, equity will enjoin the_husband from alienating or incumbering his property without leave of court, under Comp. Laws 1917, sections 3000, 3011-3013. (Page 312.)</p> <p>4. Husband and Wife — 'Separate Maintenance — Attorney’s Pees. In an action by a wife for separate maintenance, trial court was empowered, either independently, or by' Comp. Laws 1917, sections 2998, 3010, 3011, either before or at the conclusion of the trial, to allow her attorney’s fees. (Page 312.)</p> <p>6. Husband and Wife — Separate Maintenance — Attorney's Pees —Reasonableness—Judicial Knowledge. In an action for separate maintenance, the trial court had the right to consult its own experience and knowledge, without taking testimony as to what was a reasonable attorney’s fee in the particular case. (Page 312.)</p> <p>On Application for Rehearing.</p> <p>6. Husband and Wife — Separate Maintenance — Restraining Defendant Prom Disposing of Property. A judgment for plaintiff, in an action by a wife for separate maintenance, will not be modified on appeal, although it unnecessarily restrains defendant from disposing of any part of his property; it being assumed that the trial court, which retains jurisdiction of the case, will, upon due application and a proper showing, qualify its decree at any time in such' manner as the circumstances of the parties and condition may in justice require. (Page 313.)</p>

<p>1. Payment — -Evidence—-Peesumption. In an action for the amount of a rejected claim against a decedent’s estate for a debt contracted thirty-five years before, a finding that the debt had been paid is justified by some competent evidence that- ^ decedent worked for plaintiff to pay off the debt, and by the strong presumption of payment arising from such a lapse of time. (Page 316.)</p> <p>2. Limitation or Actions — Waiveb of Bab — Failuee to plead. Under Comp. Laws 1917, section 7654, providing that no claim must be allowed by the executor or by the judge which is barred by limitations, the administrator must plead the statute in bar, and his failure to do so is not a waiver of the defenses.1 (Page 317.)'</p> <p>3. Limitation of Actions — Part Payment — Evidence. Oral testimony by plaintiff and his wife that decedent had agreed to care for the graves of plaintiff’s children, the value of the services to be applied on the payment of his account with them, is not sufficient proof of part payment to take out of the statute of limitations under Comp. Laws 1917, sections 6467, 6489, a debt incurred thirty-five years before, which the debtor had been able to pay in the meantime. (Page 318.)</p>

A. B. Morgan, Judge. Suit by E. A. Walton, as special administrator of the estate of Flora M. Broadhead, deceased, against Elmer Broadhead, as administrator of the estate of Robert Broadhead, deceased. Judgment for defendant. Plaintiff appeals.

Louis Brown, Judge. Action by David Larson, by Laura Richardson, his guardian ad litem, against the Calder’s Park Company. Judgment for plaintiff, and defendant appeals. APPELLANT’S POINTS. The general rule is that there is no implied warranty on the part of a landlord that leased premises are in a safe condition, or Uiat he will keep the premises repaired or in a safe condition. Jones, Landlord and Tenant, section 574.

D. Gall, Judge. s • Action by Anton Kohler against Abraham Lundberg and others. From a judgment in favor of plaintiff, defendants appeal. APPELLANT’S POINTS.

C. Evans, Judge. Action by G. A. Anderson against Signe Anderson Cer-cone, to quiet title to land and for other equitable relief. Judgment for plaintiff, and defendant appeals.

B. Morgan, Judge. Action to ■ quiet title by the Antelope Shearing Corral against Consolidated Wagon & Machine Company, and Reuben Wilkins, Sheriff of Duchesne County. From a judgment for defendant company and a dismissal of the complaint, plaintiff appeals.

E. Brarnel, Judge. . Action by Marguerite Emelle against Salt Lake City. From a judgment for defendant, plaintiff appeals. APPELLANT’S POINTS. By a long line of decisions it has been held that where the evidence is not brought up in the record, the court cannot determine any question depending on the construction of the evidence. Morgan v. Bankers Trust Company, 115 Pae. 1047; 2nd Dec. Dig. Ap. & Er., section 671 (3) ; 2nd Dec. Dig.

<p>1. Appeal and Error — Review—Findings on Conflicting Testimony. The Supreme Court is not justified in interfering with findings made upon conflicting testimony, unless clearly against the weight of the evidence.1 (Page 384.)</p> <p>2. Waters and Water Courses — Appropriation—Right Acquired. An irrigation company and a city had no right to interfere with the use of water hy a property owner, and no right without the owner’s consent to divert waters from a spring appropriated by the owner’s predecessor, even though they had supplied the owner with other water from this spring or from some other source. (Page 385.)</p> <p>3. Waters and Water Courses — Water Litigation — Costs. Where a landowner had a right to a certain amount of waters of a spring in litigation and was not wrong in his objections to the actions of plaintiff’s in the suit into which he was brought by other parties, all the costs of plaintiffs should not be taxed against him, though the decree is partly adverse to him. (Pago 385.)</p>

G. Evans, Judge. Action by Yicenti Arrascada and others, by Joel Nibley, their guardian ad litem, and Carmen Arrascada, against the Silver King Coalition Mines Company, and others. From judgment against the named defendant, it appeals. APPELLANT’S POINTS. The law recognizes absolute safety is unattainable, and that employers are not insurers of the safety of their employes, and that employers are liable for the consequences, not of danger, but only of their negligence.

H. Bramel, Judge. Actions by the New York Jobbing House against the Sterling Fire Insurance Company and others. Cases consolidated, and, from a judgment for plaintiff, defendants appeal. APPELLANT’S POINTS. Courts have frequently found it necessary in the interests of justice to disregard an apparent conflict of evidence where the only evidence giving rise to a conflict is evidence which is in conflict with undisputed physical facts, natural laws and human experience.

<p>1. Carbiers — '“Public Utility” — What are — Supervision. In view of Comp. Laws 1917, section 4782, subds. 6, 13, 14, and 28, as well as section 4798, defendant, who operated an automobile for hire, carrying passengers over no designated route, and allowing them to select the designation, held to be operating a “public utility” within section 4818, and so falls within the jurisdiction of the Public Utilities Commission. (Page 412.)</p> <p>2. Cabsiebs — Public Uttiities Act — Operation op Automobile for Hire. That defendant obtained a license from the secretary of state to operate an automobile, and was also granted a license by a town to carry passengers for hire, does not afford him any protection, where he operated utility contrary to the provisions of Public Utilities Act; and so, where defendant unlawfully interfered with a licensed automobile stage line, he is liable. (Page 414.)</p> <p>3. Carriers — Public Utilities Act — Operation ' oe Automobile. The granting of a certificate of convenience and necessity by the Public Utilities Commission to the operator of an automobile stage line not only confers authority to operate the stage line, but, in view of Comp. Laws 1917, section 4840, relating to ■ actions for damages by persons who may be injured by the acts or omissions of any public utility, such certificate affords protection to the holder against any one interfering with the right conferred, which is in the nature of a limited franchise. (Page 414.)</p> <p>4. Carriers — Public Utilities Act — Interference—What Constitutes. Though defendant in the operation of his automobile for hire was operating a public utility, yet, as his business was practically that of a taxicab driver, and he had no established route, he will not be enjoined from carrying passengers to destinations at points served by an automobile stage line, having a certificate from the Public Utilities Commission. (Page 419.)</p>

G. Evans, Judge. Action by G. E. Lundy against Guy Cappuecio in which there was a judgment for plaintiff. Thereafter James H. Ball and another, interveners and as attorneys for plaintiff, caused execution to be issued upon the judgment, and a levy was made on property belonging to defendant.

<p>1. Appeal and Error — Harmless Ebrob — Evidence. In action on contract to purchase cattle, any error in admitting testimony concerning transactions of parties prior to date of hill of sale held not prejudicial in view of subsequent acts of parties and findings of jury. (Page 435.)</p> <p>2. Appeal and Error — Harmless Ebror — Statute. Under direct provisions of Comp. Laws 1917, sections 6622 and 6968, Supreme Court will not reverse judgment except for prejudicial error.1 (Page 435.)</p> <p>3. Tbial — Instructions. Refusing requested instructions to find for defendant if he tendered plaintiff a check in satisfaction of all demands and plaintiff accepted it and cashed check, etc., held not erroneous in view of instructions given on that issue. .(Page 436.)</p> <p>4. Appeal and Errok — Harmless Ebeob — Instructions. Where defendant claimed he had settled a controversy by payment to plaintiff, any error in submitting to jury question whether a bona fide dispute existed is not prejudicial to defendant, since jury, by verdict for plaintiff, must have found that money was not in full payment. (Page 436.)</p> <p>5. ALTERATION OF INSTRUMENTS-EVIDENCE-SUFFICIENCY. Alteration of a written bill of sale need not be established beyond a reasonable doubt.2 (Page 437.)</p> <p>6. Trial — Instructions—Sufficiency. Trial court should concisely state issues to jury, and not merely read the pleadings verbatim. (Page 440.)</p> <p>7. Appeal and Error — Harmless Error — Instructions. Trial court’s ebror in simply reading pleadings to jury, and not concisely stating issues in his own language, held not prejudicial, where issues were simple, and substantially all allegations in both complaint 'and answer were controverted.3 (Page 440.)</p>

<p>Appeal from District Court, Second District, Weber County; J. D. Gall, Judge.</p> <p>Action by Maud Cbadwiefe against the Beneficial Life Insurance Company. Judgment for defendant on a directed verdict, and plaintiff appeals.</p>

E. Morris, Judge. Action brought by A. Wooton, plaintiff, against the Dragon Consolidated Mining Company, a corporation, defendant, to recover damages for personal injuries. Verdict for plaintiff. Defendant appeals. APPELLANT’S POINTS. Actions of this character are based upon the existence of a status; unless the relation of master and servant existed between plaintiff and defendant on August 3, 1916, plaintiff has no claim for damages against defendant.

<p>Constitutional Law — Amendments — “Entered” on Journals. Under Const, article 23, 'section ,1, providing that proposed amendments to the Constitution shall be entered on the journals of the two houses, it is not necessary to enter a proposed amendment upon the journals in full, hut entry of an identifying reference is sufficient; “entered” not necessarily meaning to copy or to transcribe. v</p>

<p>1. Pueadiitg — Complaint—Instotpioibnoy—Delay in Raising Objection. The objection that the pleadings of plaintiff do not state facts sufficient to constitute a cause of action may be raised in any stage of the proceedings. (Page 485.)</p> <p>2. FRAUDULENT CONVEYANCES-CREDITOR’S BILL-EXHAUSTION OF Legal Remedies. In a suit to set aside a conveyance on the ground that it was fraudulent as to creditors as well as in the case of a creditor’s bill, the complaint or bill should on its face show that legal remedies have been exhausted. (Page 485.)</p> <p>3. Fraudulent Conveyances — Pleadings—Sufficiency. The com plaint, in an action to quiet title, alleged ownership in plaintiff, and that defendant without right claimed an interest in the property, and the reply filed to defendant’s answer, setting up that he took under a deed from the owner of the property, admitted execution of deed, but alleged that the grantor was indebted to plaintiff, that the deed was without adequate consideration, and was made to defraud creditors. Held that the reply and complaint taken together did not state a cause of action, for they did not show exhaustion of legal remedies, or that the grantor had no other property out of which plaintiff could satisfy its claim; the mere fact that a debtor makes a voluntary conveyance to a third person not vesting title in his creditors. (Page 485.)</p> <p>On Application for Rehearing.</p> <p>4. Pleading — Reply—Eefect. Under Comp. Laws 1917, section 6590, relating to replies, a reply filed in an action to quiet title which was in the nature of a confession and avoidance, cannot be disregarded, and plaintiff may be denied relief, where the pleadings, including the reply show that he has no cause of action, though the complaint itself stated a cause of action. (Page 490.)</p>

<p>Original application by W. A. Leatham against William-Reger and others for writ of mandamus.</p>

<p>Appeal from District Court, Third District, Salt Lake County; P. G. Evans, Judge.</p> <p>Action by Pat Kennedy against J. E. Burbidge. Judgment for defendant, and plaintiff appeals, ,</p>

D. Call, Judge. Action in claim and delivery by John Androvitch against Thomas S. Fowler, begun in the city court and appealed by defendant to the district court. From a judgment there for defendant, plaintiff appeals.

D. Gall, Judge. Action by Max Freedman, by his guardian ad litem, Bessie Freedman, against Denhalter Bottling Company. From ue-nial of a motion to nonsuit and an order affirming a judgment against defendant in the city court, defendant appeals.

<p>1. Appeal and Error — Dismissal —Noncompliance with Rules. Though appellant did not file abstract of record within 15 1 days after filing the transcript, or within any time given therefor, and no assignments were set forth in the printed abstract, and the date of filing the papers was wholly omitted, h§ld that, though the omissions were in violation of rules 6, 10, and 26 (33 Utah, vii, viii, xiii, 97 Pac. viii, x), and caused inconvenience to respondent’s counsel, yet, as the omissions did not in any wise prejudice respondent and the court had jurisdiction, the appeal will not be dismissed. (Page 523.)</p> <p>2. Appeal and Error — Review—Assignments of Error. To authorize a review of the evidence, an assignment as to sufficiency must specify the particulars wherein it is insufficient.1 (Page 523.)</p> <p>3. Damages — Peesonal Injuries. Where a boy 19 years of age suffered injuries, which included the breaking of bones in a foot, the displacement of his kneecap, injuries to his hearing, spine, kidneys, and back, and his foot was still stiff at the time of trial, held that an award of $4,800 cannot be deemed excessive, or the result of passion and prejudice. (Page 524.)</p> <p>4. Appeal and Error — Record—Argument op Counsel. An assignment of error, complaining that counsel for plaintiff in a personal injury action had referred to “the insurance company in the case,” held not reviewable, where the expression, if used, was withdrawn, and no objection was taken or exception filed. (Page 524.)</p>

E. Pratt, Judge. Action by C. F. Roberson and others against William H. Draney and others. Judgment for plaintiffs reversed by Supreme Court, and action dismissed, with costs to defendants ; and, from judgment taxing costs, plaintiffs appeal.

<p>Appeal from District Court, Sixth District, Garfield County ; H. N. Hayes, Judge.</p> <p>Ira B. Church was convicted of grand larceny, and he appeals.</p>

G. Evans, Judge. Application for writ of certiorari by the J. P. Fowler Manufacturing Company against the City Court of Salt Lake City and Thomas R. Cutler, Jr. From a judgment dismissing the writ, applicant appeals.

<p>1. Husband and Wife — Living Sep abate and Apap.i — Party at Fault. Finding that plairtiff wife and defendant husband have lived separate and apart without the fault of the plaintiff is not sustained in view of the undisputed evidence that plaintiff sold the home provided by defendant and in use by the family without consulting defendant and took up her abode elsewhere. (Page 548.)</p> <p>2. Husband and Wife — Separate Maintenance — Husband’s Failure to Provide Necessaries — Evidence. In suit for separate maintenance, finding that defendant husband had, without any excuse, failed to provide for plaintiff the common necessaries of life, and that plaintiff has no means of support, held not sustained by the facts proven. (Page 549.)</p> <p>3. Husband and Wife — Separate Maintenance — Establishing New Domicile — Right of Wife. Defendant husband had the right to fix the place of the family domicile, and plaintiff wife by changing suitably and properly established domicile without husband’s consent forfeited her right to require defendant to provide her separate support and maintenance elsewhere. (Page 549.)</p>

D. Call, Judge. Action by Willis H. Boothe, wherein Willis H. Boothe, Jr., executor of the’last will and testament of Willis H. Boothe, was substituted as plaintiff, against E. M. Wyatt and Olive Wyatt, his wife, and H. W. Wyatt and Mattie Wyatt, his wife. From judgment dismissing the complaint, plaintiff appeals.

<p>1. Innkeepers — Police Power — Power to Resulate Restaurants. In view of Comp. Laws 1917, section 570x38, conferring power upon cities to license, tax, and regulate restaurants, hotels, etc., and section 570x87, authorizing cities to pass ordinances necessary to preserve the morals, etc., a city is not without power to pass an ordinance reasonably regulating the business of conducting restaurants. (Page 560.)</p> <p>2. MUNICIPAL CORPORATIONS-REGULATION OF OCCUPATIONS-“REGULATE” — Meaning. The power of a city to “regulate” a particular calling or business as conferred by statute (Comp. Daws 1917, section 570x38) implies the right to prescribe and enforce all such proper and reasonable rules and reghlations as may be deemed necessary and wholesome in conducting such business in a proper and orderly manner (citing Words and Phrases, First and Second Series, Regulate.) (Page 560.)</p> <p>3. Municipal Corporations — Police Power — Regulation of Business — Reasonableness. An ordinance regulating a business must be reasonable, and its provisions cannot be oppressive nor an arbitrary interference with the business or calling which is regulated. (Page'562.)</p> <p>4. Innkeepers — Police Power — Regulation of Restaurants — Reasonableness. An ordinance prohibiting., the maintenance of booths exceeding certain specified dimensions in restaurants and public eating places, being designed to prevent persons inclined to violate both law and good morals from gathering in such places, is not an unreasonable interference with a legitimate business. (Page 562.)</p> <p>5. Municipal Corporations — Ordinances—'Validity—'Presumption. Where there is nothing on the face of an ordinance regulating the size of booths in restaurants to show it is unreasonable, that it is unwarranted interference with a proper business, or that the conditions in the city are not such as to require regulation, it will be presumed that the city authorities were warranted in passing the ordinance. (Page 562.)</p>

C. Evans, Judge. Action by the Salt Lake Electric Supply Company against Con West and the Board of Education of Salt Lake City, wherein the United States Fidelity & Guaranty Company intervened. From a judgment sustaining a demurrer to the complaint in intervention and dismissing the complaint, in-tervener appeals. appellant’s points.

<p>1. Cobpobations — Assignment or Cebtibtcate to Bbokeb ros Sale Cabbies Title. Where the holder of a certificate of corporation stock which was held under a pool agreement, after expiration of the period of the pool, assigned the certificate, held that, though the assignment was to a broker for the purpose of enabling him to sell the shares and was without consideration, it passed to him the legal title. (Page 580.)</p> <p>2. Corporations — On Abssigcnment or Stock Assignee Mat Compel Issuance or Certificate. Though an assignment oí corporate stock by an instrumnet which passed the legal title was without consideration and for the purpose oí enabling the assignee to sell the stock, he may sue the corporation. for refusing to issue certificates, he being for the purpose of the action the real party in interest, within Comp. Laws 1917, section 6495, the assignment protecting the corporation from further action t>y the true owner.1 (Page 580.)</p> <p>3. Corporations — Whether Refusal to Issue New Certificates to Assignee Constitutes Conversion. The refusal of a corporation to issue stock certificates to one entitled thereto may or may not constitute conversion, depending upon the character of the excuse the corporation has for not issuing the stock.2 (Page 583.)</p> <p>4. Corporations — Whether Guilty of Conversion in Refusing to Issue Certificate for Jury. Whether a corporation was guilty of conversion in refusing to issue stock to one entitled thereto, held, under the evidence, for the jury. (Page 583.)</p> <p>5. Evidence — Reports of Curb Transactions in Corporate Stock Hearsay. In an action against a mining corporation for refusing to issue stock certificates to one entitled thereto, reports ■ of curb transactions in such stock held, hearsay, in the absence of any information as to the manner in which the reports were made up, and hence the admission of such evidence on the issue of damages was error. (Page 585.)</p> <p>On Application for Rehearing.</p> <p>6. Corporations — Refusal to Issue Stock to Assignee Authorizes at Least Nominal Damages. The fact that a corporation converted stock by refusing to issue the same to one entitled thereto is sufficient to sustain an award of at least nominal damages in favor of the injured party. (Page 587.)</p> <p>7. Appeal and Error — Insufficiency of Evidf.nce Not Assigned as Error Not Renewable. In an action against a corporation for damages for refusal to issue certificates of stock to one entitled thereto, where the corporation, on appeal from an adverse judgment, did not assign the insufficiency of the evidence of damages, that question cannot be considered. (Page 587.)</p> <p>8. Repeat, and Error — Amendment to Assisnments of Erkob on Motion for Rehearing Denied. Where respondent’s brief stated that the appellant corporation,, which had wrongfully refused to issue certificates of stock to respondent, had not assigned as error the' insufficiency of the evidence of damages, held, that, on motion for rehearing, the appellant corporation was not entitled to have granted its application for leave to then amend its assignment of errors, so as to include an assignment of error as to the insufficiency of evidence.3 (Page 588.)</p>

H. Bramel, Judge. Action by the International Smelting Company against Tooele County to recover taxes paid under protest. From judgment for plaintiff, defendant appeals.

W. Agee, Judge. Action by tbe Pingree National Bank of Ogden, Utah, against Weber County and Joseph E. Storey. Judgment for plaintiff against the first-named defendant, and it appeals and plaintiff assigns cross-errors.

<p>1. Cabriees — Cajreiage of Live: Stock — Negligence—Delay. ' If at the time of uloading sheep there was an unreasonable delay by the acts of defendant carrier, it was liable if damage resulted from such negligence, when the sheep were unloaded too late in the day and so were chilledT it having been its duty to place the cars in proper position for unloading with reasonable promptness. (Page 609.)</p> <p>2. CABRIEBS-CARRIAGE OF LIVE STOCK — ACTION FOB INJURIES-BURDEN of Proof. Sheep shipped over the line of defendant carrier having arrived at destination in good condition, and having been in good condition when unloaded, the burden of proof, on the charge that there was unreasonable delay in putting the cars in position for unloading, so that the sheep were unloaded too late in the day and were chilled, was on plaintiff shipper. (Page 609.)</p> <p>3. Cabriebs — Carriage of Live Stock — Proximate Cause — Burden of Proof. In an action against a carrier for damages to sheep from delay in placing cars in position for unloading, the burden was on shipper to prove the carrier’s negligence in delaying the unloading too late in the day, so that the sheep were chilled, was the proximate cause of their loss. (Page 609.)</p> <p>4. Carriers — Carriage of Live Stock-^Negligenoe — -Proximate Cause — Evidence. In an action against a carrier of sheep for' injuries from delay in placing the cars in position for unloading, so that the sheep were chilled, evidence heló, insufficient to show negligence of the carrier, and to show that any negligence was the proximate cause of the damage. (Page 610.)</p>