Volume 58 — Utah Reports

<p>1. Taxation — Court in Action fob Taxes Paid Under Protest Should Have Confined Inquiry to Pacts Befoee Assessor and Board. In an action against a county to recover taxes paid under protest, pursuant to Comp. Laws 1917, § 6094, hy a cattle owner; the court exceeded its power in attempting to determine from independent evidence the number of cattle the assessor should have assessed and the hoard of equalization should have affirmed and permitted to be placed on the tax rolls against the owner for the year involved; the court should have confined its inquiry to the facts and circumstances as they were made to appear to the assessor and the board of equalization, and therefrom determined whether the assessment was maliciously, arbitrarily, unlawfully, or fraudulently made, or whether, if the owner was assessed for an excessive number of cattle and horses, the excess was a mere error of judgment of the assessor and board.</p> <p>2. Taxation — Assessor Justified in Availing Himself of any Reliable Information as to Numbers of Cattle Owned by Taxpayer. In view of the fact that cattle and horses of an owner were not so located that the assessor could count them because they were scattered over a vast territory through the hills, mountains, and public domain of the county, the assessor was justified in availing himself of any reliable source of information as to the number of the cattle which seemed trustworthy to him.</p> <p>3. TaxatioN — Evidence Insufficient to Sustain Finding oe Fraud ob Malice in Assessment oe Number oe Cattle. In an action by the owner of cattle to recover taxes paid thereon under protest pursuant to Comp. Laws 1917, § 6094, evidence held, insufficient to justify any finding of fraud or malice on the part of the assessor and the board of equalization of the county in assessing the owner with 1,500 head of cattle.</p> <p>4. Taxation — Assessment not Invalid Unless Assessor, Acted Unlawfully, Maliciously, ob Fraudulently, Without Which Court Cannot Give Relief. Where it is contended the assessor overvalued the property of a taxpayer, or assessed a greater number of head of cattle to him than he should have, the question is not merely whether such was the fact, but whether the assessor acted maliciously, unlawfully, or fraudulently in making the assessment; if the assessor’s act was a mere error of judgment, the courts cannot give relief.1</p> <p>5. Taxation — Courts Cannot Give Relief Against Board oe Equalization Except fob Unlawful oe Fraudulent Act. Where the taxpayer may have any error in the number of cattle assessed to him corrected by making application to the board of equalization, the question is whether such board in refusing to correct the error, if one was in fact made; acted unlawfully, maliciously, or fraudulently; if its act was a mere error of judgment, the courts are powerless to give relief.2</p>

<p>1. Replevin — Nonsuit Propebly Gbanted as to Dependants not in Possession. In an action to recover the' possession or value of an animal described, the court properly granted motion for nonsuit as to two of the three defendants, neither of whom was in possession of the animal at the date of bringing suit.</p> <p>2. Replevin — 'Demand Against Rightful Possessor Necessaey Beeoee Suit. When any one comes rightfully into possession of personal property belonging to another, before the latter may institute action to recover possession of such property or its value, a demand upon the former for its return is necessary, unless the subsequent conduct of the defendant is such that it is apparent that the demand, if made, would have been unavailing.1</p> <p>3. Replevin — No Demand Necessaey 'Against Wrongful Pos-sessoe. Where a party comes into possession of property wrongfully and without right, no demand is necessary before instituting an action against him to recover possession.</p> <p>4. Replevin — Demand Held not Necessary Condition to Replevin Against Defendant Denying Plaintiff’s Right. In an action to recover the possession or value of an animal, where defendant by his answer denied ownership in plaintiff, and denied that, he wrongfully or forcibly obtained possession of the animal, or that he wrongfully or unlawfully retained such possession, it was apparent that any demand by plaintiff would have been useless, and such demand was not a necessary condition precedent to his right to bring action.</p> <p>5. Animals — Statute Authorizing Distraint Strictly Construed. The authority under Comp. Laws 1917, §§ 58-61, to distrain trespassing animals and to deliver them to the poundkeeper to be sold in satisfaction of the distrainer’s claim is a summary means of enforcing a legal right in contravention of the general rule of law that the owner of private property cannot be deprived thereof, except on judicial proceedings regularly had in a court of justice, so that the statute must be strictly followed.</p> <p>6. Animals — Poundkeeper’s Sale Unlawful, Unless Statute" in Followed. If plaintiff’s animal was trespassing on defendant’s premises, defendant had a right to distrain it, and to deliver it to the poundkeeper, but, unless the other provisions of the statute were complied with, the possession of the pound-keeper and his attempted sale of the animal to satisfy the damages claimed constituted a trespass, and rendered such possession wrongful, not only as to him, but as to the purchaser at the sale.</p>

<p>1. Criminal Law — Complaint in Justice Court tor. Disturbins Peace Held Sueeicient. Under Comp. Laws 1917, § 9420, declaring that the complaint in justice court shall set forth the offense charged with such particulars as to enable defendant to understand the character of the offense, a complaint charging that defendant did commit the crime of disturbing the peace by using profane and insulting language in the presence of, etc., is sufficient to charge the offense of disturbing the peace, denounced by section 8227, although not stating whether the language was mild or boisterous, and proceedings based on the complaint are not void.</p> <p>2. False Impeisonment — Judgment on Vague Complaint Held not Void Rendering Abkest Illegal. Where the complaint charging a breach of the peace was good as against general demurrer, though defendant may have been entitled to compel the prosecution to specify details, proceedings and judgment based thereon are not absolutely void so as to afford no justification for the arrest.</p> <p>3. Judgment — Collateeal Attack on Judgment oe Conviction Held Unwarranted Where Complaint Was Good as Against Demurrer. Where the complaint filed in justice court charging defendant with breach of the peace stated an offense and was good as against general demurrer, judgment based thereon cannot be collaterally attacked and an action for false imprisonment maintained on the theory that the judgment of imprisonment was a nullity.</p>

W. Agee, Judge. Suit by John Turnbull against Otto Meek and others. From judgment for plaintiff, the named defendant and another appeal, and plaintiff cross-appeals.

<p>1. Counties — Wokd “Taxes” in Constitutional Debt Limitation Provision Means Revenue. In Const, art. 14, § 3, providing that, unless authorized by a vote of the electors, no debt in excess of the “taxes” for the current year shall be created by any county, the word “taxes” means all revenue, including that which is uncollected.1</p> <p>2. Counties — Debts oe One Yeab May Be Paid Out oe Next Year’s Taxes. Const, art. 14, § 3, limiting current indebtedness of counties, goes only to the question of the amount, and not of the time of payment, and, if the amount of indebtedness is limited to the revenue of the current year, the Constitution does not prohibit the payment of a debt incurred in one year out of the next year’s taxes.2</p> <p>3. Counties — Act Embowering County Commissioners to Bob-row Money eor Current Expenses Held Constitutional. Comp. Laws 1917, § 1364, as amended in 1921, empowering commissioners, for the purpose of meeting current county expenses and .the expense? incurred in the building and maintaining in the county of state roads, to borrow money and issue therefor negotiable notes or bonds, does not violate Const, art. 14, § 3.</p> <p>4. Constitutional Law — Constitution Sole Restriction on Legislature. What the Constitution does not prohibit the Legislature may do.</p> <p>5. Constitutional Law — Unconstitutionality oe Statute Must Be Clear. Before an act of the Legislature can be held -unconstitutional, its invalidity must be clear and free from doubt.</p>

<p>1. Railroads — Fencing in City Requieed Unless Excused. A railroad company is not excused from compliance with the requirement of Comp. Laws 1917, § 1253, to fence its property, by the fact that its line at the point in question is within an incorporated city, unless the place is one where it is unreasonable or improper for the road to be fenced because of other uses ■ thereof.1</p> <p>2. Railroads — Fencing in City Held not Excused. Evidence that at the place plaintiff’s horses were struck by a railroad train the railroad, though within an incorporated city, was not laid out along a street opened for travel and had not crossed such street within a mile of the place of the accident, does not show that the railroad was excused from fencing its track at that point, though it claimed that its track was laid out under its franchise along a street.</p> <p>3. Railroads — Owner or Houses Running at Large Held not Guilty oe Contributory Negligenoe. An owner living in the outlying portions of an incorporated city where the streets had not been open for public travel, so that the community was in effect a rural community, does not violate a city ordinance prohibiting stock from running at large upon any street or public place within the city, and his act in turning the horses out to graze is not contributory negligence which prevents recovery for their death on a railroad track which was not fenced.</p>

<p>1. Carriers — Where Carrier Disposed oe Shipment Damaged by Delay, Rule oe Consignee’s Duty to Accept Inapplicable. Where the carrier, at the shipper’s request, accepted the duty of disposing of a shipment of peaches damaged by delay, the rule of the consignee’s duty to accept delivery of a damaged shipment subject to his claim for damages was inapplicable.</p> <p>2. Carriers — Measure oe Damages to Shipment Injured by Delay Stated. Where plaintiff shipper had sold to the consignee the peaches shipped at the place of shipment, he was entitled to recover as damages for delay injuring the peaches the difference between the price for which he had sold the peaches, which was their market value at the place of shipment, with freight, loading, and war tax added, and their market value in their damaged condition at destination when he was notified of their nonacceptance by the consignee.</p> <p>3. Carriers — Extent of Damage to Delayed Shipment of Peaches for Jury. In action against carrier for damages by delay in shipment of peaches, the extent of the damages held, for the-jury.</p>

<p>1. Municipal Corporations — Negligence in Passing to Opposite Side op Street at Excessive Speed Without Warning Held Shown. In motorcycle driver’s action for injuries sustained in collision with automobile, in which it was claimed that the automobile, approaching the motorcycle from opposite direction on opposite side of street, crossed street directly in the path of the motorcycle at an excessive rate of speed without warning to motorcycle driver, evidence held to sustain finding that automobile driver was negligent.</p> <p>2. Municipal Corporations — Evidence Held not to Show Motorcycle Driver Injured in Colusión was Negligent. In action for injuries to motorcycle driver in collision with automobile coming from opposite direction on opposite side of street, in which it was claimed that the automobile crossed the street in the path of the motorcycle at an excessive rate of speed and without warning to motorcycle driver, evidence, held to sustain finding that the motorcycle driver was not negligent.</p> <p>3. NegligeNce — Care Required in Emeegency. Where one is confronted with threatened danger and is suddenly, in an emergency not created by himself, called upon to determine on his course of action, he is not held to the same care and degree of caution that he might be under different circumstanees.1</p> <p>4. Appeal and Error — Findings on Conflicting Evidence Supported by Substantial Evidence not Reviewable. Findings of court on conflicting evidence, where there is substantial evidence to support them, will not be reviewed on appeal.</p>

<p>Appeal from District Court, Fourth District, Utah County; A. B. Morgcm, Judge.</p> <p>Action by Christopher A. Ferguson, administrator of the estate of Ann Robertson, deceased, against Iíeber T. Robertson. Judgment for defendant, and plaintiff appeals.</p>

N. Hayes, Judge. Action by John B. Skewes against W. J. Bliss, contesting the election of defendant as sheriff. From a judgment ousting defendant and declaring the office vacated he appeals.

Proceeding under the Workmen’s Compensation Act by A. E. Harvey, as administrator of the estate of David Murphy, deceased, for compensation for injuries sustained by David Murphy, opposed by the Heiselt Construction Company, employer, and the iBtna Life Insurance Company, insurer. Award of Industrial Commission for claimant, and the employer and insurance carrier bring an original action to review the proceedings of the Industrial Commission.

<p>Appeal from District Court, First District, Cache County; J. D. Gall, Judge.</p> <p>Action by Lorenzo F. Smith against Robert Sheffield. Verdict and judgment for plaintiff, and the defendant appeals.</p>

<p>Appeal from. District Court, Fourth District, Utah County; A. B. Morgan, Judge.</p> <p>Action by Rhoda Y. Nash against the Alpine Irrigation Company and others. From judgment for plaintiff, defendants appeal.</p>

<p>1. Waters and Water Courses — Appropriator May Change Point oe Diversion to Tributary. One who has made a valid appropriation of a portion of the waters of a river has a right to change his point of diversion to a stream constituting a tributary to such river at any subsequent time unless he thereby interferes with a prior appropriator on such stream.</p> <p>2. Appeal and Error — Where Findings are Indefinite, are not Sustained by Evidence, and do not Support Conclusions, Judgment will be Reversed. In an action to quiet title to the waters of a creek involving the issue whether the plaintiff or the defendants had priority to the use of water, where the findings of the court are indefinite as to who first appropriated the water, and where such findings are not supported by the evidence and do not support the conclusions of the court, the judgment will be reversed.</p> <p>3. Waters and Water Courses- — Owner Presumed not to Have Acquired Title to Water by Adverse Use. The presumption is against the acquisition of title to water by adverse use both as to parties on the upper portions of a stream and as to parties below.</p> <p>4. Waters and Water Courses — Adverse Use Must be as to Water Needed by Prior Appropriator. Use of water for irrigation purposes to give one a title thereto by adverse use as against a prior appropriator must have been use of water needed by such prior appropriator, since, if prior appropriator did not need the water, lie had no right to interfere with others’ use thereof.1</p> <p>5. WATERS AND WATER COOKSES-PARTY WHO CLAIMS TITLE TO Adverse Use has Burden oe Peooe. The burden is on the party who claims title by adverse use to establish the fact that the use was adverse.2</p> <p>6. Waters and Water Courses — Diversion Made by One Ditch Cannot be Tacked on to that oe Another so as to Make Appropriation Contemporaneous. Where appropriations are made at different points of diversion on a stream and by means of different ditches, the diversion made by each ditch is of necessity an independent appropriation, and the appropriation made by one ditch cannot be tacked on to that of another so as to make the appropriation contemporaneous, but, where one ditch is abandoned after appropriation is made, the same right may be transferred to another ditch subsequently made without losing its priority.</p> <p>7. Costs — Divided Equally Where Judgment is Reversed and Cause Remanded Because oe Indeeiniteness oe Findings. Where the Supreme Court is required to reverse judgment and remand the cause on appeal because of the indefiniteness of the findings and failure of the findings to support the court’s conclusions, the cost of appeal will be divided equally between the appellant and respondent.</p>

.Appeal from District Court, Second District, Davis County; A. E. Pratt, Judge. Certiorari by William Higgs and another against Christopher Burton, administrator, and Frank L. Layton, justice of the peace, to review the proeedings in case of Hyrum Stewart against plaintiffs. Judgment for plaintiffs, and defendants appeal.

<p>1. Tkial — (findings Must Be Responsive to Issue 'Created by Pleadings. Generally findings must be responsive to and within the issues created by the pleadings.1</p> <p>2. Tkial — 'Finding as to Terms op Contract Held Responsive to Issues. Where both plaintiffs and defendant pleaded that an oral contract for the purchase and sale of land had been entered into, but materially differed as to the terms and conditions of the contract, and where both prayed for equitable relief, court’s finding that a contract different from that pleaded by either plaintiffs or defendant was entered into helé not objectionable as against contention that it was not responsive to the issues since in such case the court was called upon to determine the legal status of the parties under the contract.</p> <p>3. Joint Tenancy — Purchasers of Application to Purchase Land from the State Held to Become Joist Owners. Where plaintiffs and defendant agreed to purhase an application to purchase from the state a certain number of acres and to divide the land in a specified manner, and where plaintiffs advanced to defendant a certain sum of money to make such purchase, they became after purchase thereof, joint owners regardless of whether in entering into the agreement they contemplated acquiring a joint ownership in the lands.</p> <p>4. Specific Performance — Defendant Who Purchased Land to be Divided Between Plaintiffs' and Defendant Under Agreement Requiring Plaintiffs to Pay for Their Share Held Entitled to Specific Performance. Where plaintiffs and' defendant agreed to purchase land from the state and to divide the land in a specified manner, and where plaintiffs advanced only a portion of the amount necessary to purchase their share of the land, the defendant, on purchase of the land, was entitled to a decree requiring plaintiffs to specifically perform their part of the contract by payment of their pro rata share of the purchase price.</p>

<p>Appeal from District Court, Second District, Weber. County; A. W. Agee, Judge.</p> <p>Action by tbe Warren Irrigation Company against Ray Charlton and others. Judgment for plaintiff, and defendants appeal.</p>

Application by Jesse Y. Rockefeller, as employer, against the Industrial Commission of Utah to annul an order entered by the Commission requiring 'the employer to pay Thelma A. Wilson compensation for the death of Darrell E. Wilson, employé.

<p>Appeal from District Court, Fifth. District, Millard County ; D. H. Morris, Judge.</p> <p>Action by C. H. Castle against the Delta Land & Water Company and others. From a judgment of dismissal, plaintiff appeals.</p>

W. Stringfellow, Judge. Action by William Forsyth and another against the Selma Mines Company and others. From a judgment for plaintiffs, demurrer to the answer having been sustained, and defendants having refused to amend, defendants appeal.

<p>1. TRADE-MARKS AND TRADE-NAMES-NOT TRANSEEBAELE INDEPENDENT oe Business or Enterprise. A trade-mark is not transferable except in connection with, some business or enterprise in which it is used, and a mere bill of sale to a trade-mark as such transfers no title.</p> <p>2. Teade-Maeks and Trade-Names — Evidence Hem» to Show that Plaintiff Seeking Injunction was not Entitled to Use a Tkade-Maek. In suit to enjoin the use o£ a trade-mark, evidence held to sustain a finding that defendant, and not plaintiff, was the owner.</p> <p>3. Teade-Maeks and Trade-Names — Right to Damages Follows Deoeee of Infeingement. A trade-mark being property, and subject to protection as such, the right of its owner to damages follows a decree finding infringement.</p> <p>4. Trade-Marks and Trade-Names — “Profits” of the Infringer Measure Owner’s Damages. The account of profits to be decreed on a finding of infringement means the net profits the infringer has actually realized, whether the owner would have made more or less on similar sales.</p> <p>5. Tbade-Marks and Trade-Names — Owner’s Assertion of His Right Held not Barred bt Daches. "Where agreement of sale of one of defendant’s mills to plaintiff was entered June 4, 1918, when plaintiff took possession, and conveyance was made August 27, and plaintiff filed complaint against defendant for infringement of trade-mark on May 30, 1919, in which suit defendant’s counterclaim for plaintiff’s unauthorized use, asserting ownership, was filed June 23, 1919, there was no .laches on defendant’s part barring his right.</p> <p>6. Trade-Marks and Trade-Names — Infringer’s Liability to Account Held to Date from Owner’s Counterclaim Apprising Infringer of Ownership. Where defendant sold to plaintiff one of its flour mills, and also some sacks with defendant’s trade-mark thereon, plaintiff, on filing suit against defendant to enjoin the use of the trade-mark, must be deemed to have been apprised of defendant’s ownership by his counterclaim, so that defendant’s right to an accounting for profits from plaintiff’s sales dated from such filing.</p> <p>7. Trade-Marks and Trade-Names — Deed to Flour Mill Held not to Transfer Owner’s Trade-Mark; “Appurtenances, Rights and Privileges Thereto Belonging.” A clause in a deed conveying a flour mill, one of a number owned by grantor, reading, “together with the milling plant upon said premises, and all buildings, equipment, tools, appurtenances, rights, and privileges thereto belonging” did not transfer the owner’s trademark to flour; the phrase “appurtenances, rights, and privileges thereto belonging” being an ordinary term of conveyances, and well understood, includes all those appurtenances, etc., which are used in direct connection with the realty conveyed.</p> <p>8. Teade-Marks and Trade-Names — No Transfer by Imbrication Without Saxe of Good Wixx of Business. On a conveyance of property there is no transfer of a trade-mark by implication unless there is a transfer or sale of the business or good will of an enterprise.</p> <p>9. Teade-Marks and Trade-Names — Transfer of Trade-Mark for Limited Territory Must be by Aoreement to that Effect. "While a trade-mark may be acquired for limited territory merely, there must, to accomplish that result, he an agreement or understanding to that effect between the parties.</p> <p>10. Appeal and Error — -Plaintiff not Entitled to Assert New Basis-of Title on Appeal. In a suit by plaintiff to enjoin use of a trade-mark by defendant on theory that he acquired title to the property on purchasing one of defendant’s mills, he could not assert a new basis of right on appeal on the theory that he had acquired the trade-mark for a limited territory merely.</p>

<p>Application for writ of review by the United States Fuel Company against the Utah Power & Light Company and the Public Utilities Commission of Utah, with which were also heard separate applications by the Utah Copper Company, by the Standard Coal Company, by the Union Portland Cement Company, by the Ogden Portland Cement Company, by the Oregon Short Line Railroad Company, by the Utah-Idaho Central Railroad, by the Bamberger Electric Railroad, by the Utah Steel Corporation, by the Silver King Coalition Mines Company, by the Judge Mining & Smelting Company, by the Utah Metal & Tunnel Company, by the Salt Lake & Utah Railroad Company, by the Salt Lake Terminal Company, by the Utah Hotel Company, by the Deseret News, and by Salt Lake City and others against the same defendants.</p>

<p>1 Statutes — Ambiguous Words Should be Read in Bight of Conditions and Necessities they were Intended to Meet and Purposes Sought to be Attained. When there is doubt regarding the true meaning of certain words in a statute, they should be read in tjie light of the conditions and necessities which they were intended to meet, and the purposes sought to be attained thereby.</p> <p>2. Statutes — Sense in which Words are Intended to be Used Furnishes the Rule oe Interpretation as Collected from Context. The sense in which general words, or any words, are intended to be used in a statute, furnishes the rule of interpretation, which is to be collected from the context, and a narrower or more extended meaning given according to the intention indicated.</p> <p>3. Public Service Commissions — “Adequate Consideration,” as Used in Act Excepting Contracts oe Utility Previously Made, Means Consideration Preventing. Beneficiary from Receiving Preferences. Under Comp. Daws 1917, § 4787, of the Public Utilities Act, providing that nothing in the act shall prevent the carrying out of contracts for public utility service, pre- ■ viously made, “founded upon adequate consideration,” and lawful when made, by “adequate consideration” is meant such a consideration as, when all the elements which enter into the transaction are considered, would prevent the beneficiary under the contract from receiving 'a substantial preference or advantage over the public or other utility in the matter of rates or charges for the services rendered.</p> <p>4. -Electricity — Consideration for Fixed Rate Contract to Furnish Current Held not “Adequate” witiiin Utilities Act. Consideration paid a power and light company by a smelting company for contract to supply the smelting company with current at a fixed rate or price held, not adequate within Comp. Daws 1917, § 4787, providing that nothing in the Public Utilities Act shall prevent the carrying out of contracts for free or reduced public utility service previously made founded on adequate consideration.</p> <p>5. CONSTITUTIONAL LAW — 'REGULATION OE RATES EOR UTILITIES DOES not Impair Obligation oe Contracts. The regulation of rates for public utilities is a governmental function coming directly within the police power of the state, so that the establishing or modifying of rates though contractual does not violate the constitutional provisions against the passage of any law impairing the obligation of contracts (Const. Utah, art. 1, § 18; Const. U. S. art. 1, § 10).1</p> <p>6. Public Service Commissions — -State has not Surrendered Right to Regulate Rate oe Public Utilities. Neither the Utah Constitution nor any statute contains a surrender by the state of its right to regulate the rates of public utilities at any time, and there is no difference in respect of such regulation between rates fixed in so-called franchise ordinances and those fixed in ordinary contracts.</p>

Proceeding by R. J. Hancock and another, under the Workmen’s Compensation Act (Comp. Laws 1917, title 49), to obtain compensation for the death of a son. There was an award denying compensation, and the applicants bring an original proceeding to have the findings of the Industrial Commission annulled.

<p>Appeal from District Court, Second - District, Weber County; A. E. Pratt, Judge.</p> <p>Action by Solomon C. Stephens, Jr., against Luella Doxey. Judgment for defendant, and plaintiff appeals.</p>

E. Crockett, Secretary of. State, and others, as state- officers and as Judges of the Third Judicial District, against Mark Tuttle, State Auditor. Plaintiffs interposed a general demurrer to the answer.

<p>Appeal from District Court, Third District, Salt Lake County; Wilson McCarthy, Judge.</p> <p>. Action by the Home Brewing Company of Chicago Heights against the American Chemical & Ozokerite Company. Judgment for plaintiff, and defendant appeals.</p>

E. Pratt, Judge. Action by Gertrude S. Hutton against Frank A. Dodge for alimony and other equitable relief after divorce decreed in another action. Judgment for plaintiff, and defendant appeals.

<p>1. PHYSICIANS AND SURGEONS-INSTRUCTION ON PATIENT’S CONTRIBUTORY Negligence Held not Sufficiently Specific. Ip a minor’s action for malpractice in improper treatment of skin disease, where the defense was contributory negligence in not following instructions, a general instruction on such defense held not sufficiently specific, as it should have instructed, but did not instruct, that in determining the question of contributory negligence the jury should consider all the facts and circumstances in evidence respecting the patient’s age, experience, or want thereof, and his knowledge or want of knowledge respecting his disease and condition, and the instructions that he received, if any, from his physician.</p> <p>2. Trial — Statute Requiring Instructions Applicable to the Case Forbids Abstract Instructions. While Comp. Laws 1917, § 6802, requiring instructions applicable to the case, does not require instructions on every point that may be raised in a case, unless requested by proper requests - at the proper time, yet it does mean that the court may not merely give the jury abstract propositions of law.</p> <p>3. Trial — Exception to Instruction Held Sufficient as to Instruction too Abstract. Under Comp. Laws 1917, § 6806, as to exceptions, if an instruction covers one general subject, and, if considered as a whole, fails to correctly reflect the law “applicable to the case,” as required by section 6802, an exception to such an instruction is sufficient, although there may be phrases, or even sentences, in the instruction, which are unobjectionable.</p> <p>4. Physicians and Surgeons — Failure to Instruct Patient is Negligence. It is incumbent on a physician to give such instructions as are proper and necessary to enable the patient or his nurses and attendants to act intelligently in the treatment of tlie case, and a failure to do so is negligence, which will render him liable for injury resulting therefrom.</p> <p>5. Physicians and Surgeons — 'Nonliability for Mistakes is Confined to Honest Mistakes. A physician and surgeon is not excusable for every mistake, but only for his honest mistakes, and when founded on some reasonable doubt, and if he makes a mistake by reason of undue inadvertence, or for lack of diligence or attention, however carefully and skillfully he may have diagnosed and treated the case, he nevertheless cannot be excused for such a mistake, if it results in injury to his patient.</p>

<p>Vendor and Purchaser — Evidence Held not to Show Fraudulent Representation Inducing Purchase oe Land. In purchaser’s suit to rescind farm land purchase for fraudulent representations as to the land and as to water rights, evidence held to support judgment for defendants.1</p>

<p>1. CniMiim. Law — ‘Jury not Required to Accept Defendant's Explanation or Testimony of his Witnesses as to Possession of Stolen Property. Though a jury may not arbitrarily ignore or disregard credible evidence, it need not blindly accept every statement that one who is accused of larceny may make in his own exculpation in explanation of his possession of recently stolen property, and may refuse to give credence to such statements or to those of defendant’s witnesses, if, in view of all the facts and circumstances, they seem unreasonable or not well founded in fact.1</p> <p>2. Larceny — iG-uilt of Defendant in Whose Possession Stolen Car had been Found Held for Jury. In prosecution for automobile theft, in which defendant claimed to have purchased ■the car, which had been found in his possession, the question of defendant’s guilt held for the jury.</p>

E. Pratt, Judge. Action by Kathryn P. Jaques, against Henry A. Jaques. A decree was rendered granting plaintiff a divorce and awarding custody of infant children to defendant’s mother. Plaintiff’s motion to modify the decree in respect to custody of children denied, and plaintiffs appeals.

B. Wight, Judge. . Henry Rickenberg was charged with having unlawful possession of intoxicating liquor. From a judgment dismissing the case, the State appeals.

Action by Edward IT. Watson against George T. O’Dell and others to recover a commission for procuring a purchaser for the property of an irrigation company. Judgment for defendants, and plaintiff: appeals.

<p>Appeal from District Court, Third’ District, Salt Labe County; H. M. Stephens, Judge.</p> <p>C. C.’ Thompson Was convicted of indecent assault, and he appeals.</p>

District, Carbon County; Delworth Wooley, Judge. Application of R. W. Crockett for a writ of mandamus against the Board of Education of Carbon County School District and. others to compel the defendants to publish the annual statement required by statute. From a judgment granting’ the writ of mandamus prayed for, defendants appeal.

Proceedings under tbe Workmen’s Compensation Law by tbe Industrial Commission in connection witb the death of William Q. Lindsay, employee, opposed by Inter-Urban Construction Company, employer, and tbe Ocean Accident & Guarantee Corporation, Limited, insurance carrier. ' An award was made requiring payment into tbe state insurance fund, and tbe employer and insurance carrier bring certio-rari.

Proceedings under tbe Workmen’s Compensation Law by tbe father and mother of Asa H. Hancock, employé, deceased, against Salt Lake City to recover compensation for - decedent’s death. The Industrial Commission of Utah made an award, and the City brings certiorari.

C. Evans, Judge. Action by Joseph Hinkins against the United States Fuel Company. Motion by plaintiff for an order vacating and setting aside satisfaction of a judgment in his favor was denied, and he appeals.

H. Morris, Judge. Alice Harris, Eugene Harris, and others were indicted for murder and Eugene Harris was convicted of murder in the second degree. The others were acquitted, and Eugene Harris appeals.

<p>1. Appeal and Error — Trial Court’s Findings Held Conclusive on Appeal. Trial court’s findings on conflicting evidence on the issue of fraud held binding on the Supreme Court.</p> <p>2. Corporations — Consideration por Note Held in Issue Rendering it Necessary to Find Thereon. Where in an action on a note the answer set up that the sole consideration for the note was a certificate of stock purporting to he signed by the president and secretary of the corporation, but not so executed and signed, in addition to an answer alleging fraudulent representations inducing the execution of the note, the consideration was a material issue rendering it error for the trial court to fail to find thereon.i</p> <p>3. Appeal and Error — Failure to Find on an Issue PIeld Prejudicial Error. Where in a suit on a note the answer alleged that it was induced by false representations, and also alleged that the note was executed in payment of a certificate of stock of a corporation, and that it purported to be signed by the president and secretary of such corporation, but was not in fact so signed and executed, the issue thereby presented was so material that failure to find thereon required reversal and was not within Comp. Laws 1917, §§ 6622, 6968, authorizing disregard of errors and' exceptions not affecting a substantial right.2</p> <p>4.' Appeal and Error — Court Mat Remand eor New Trial Instead o3? New Findings Where the Trial Judge is Out oe Office. Though Comp. Laws 1917, § 6995, would authorize the Supreme Court to remand a case to the district court to make findings on an issue upon which none were made, notwithstanding the trial judge was no longer in office, yet the court may in its discretion remand the cause for the hearing of further evidence and new trial in such case where there was a sharp1 conflict in the evidence, and the Supreme Court deems it best that the court Whose duty it is to make the findings should hear the witnesses.</p> <p>5. Corporations — Obligor Held not Barred bt Laches from Setting up Fraudulent Representations and Denying Consideration op Note por Stock. Where a note for stock was in the hands of the original payee, and, though executed in March, 1918, due seven months thereafter, was not sued on until June, 1919, the obligor was not barred by laches from setting up fraudulent representations and denying the consideration where he alleged that he only recently ascertained the facts; the payee not being prejudiced.</p>

<p>Municipal Corporations — In Action fob Injuries from Unguarded Ditch, Negligence and Contributory Negligence Held for Jury. In action against a street paving contractor for injuries received when plaintiff was riding as invited guest in an automobile, which at night ran into a trench in a street'Which had been dug and left unguarded and unlighted by defendant, held, that defendant’s negligence, as respects the sufficiency of the barrier guarding the trench, and also plaintiff’s contributory negligence, were for the jury.</p>

D. Gall, Judge. Iu the matter of the estate of Ann H. Burt. From an order approving the executor’s account fixing his compensation and counsel fees and from an order naming an administrator to succeed the executor resigning, contestant appeals.

<p>1. Witnesses — Cross-Examination of Plaintiff’s Witness not Beyond Proper Bounds. In a hank’s action on a note assigned to it by its predecessor, cross-examination of plaintiff’s witness, the cashier of the predecessor bank, that he wrote the note on his own initiative, that defendant signed it at his request for accommodation, etc., held, not beyond proper bounds.1</p> <p>2. Appeal and Error — Cross-Examination of Plaintiff’s Witness not Prejudicial. In a bank’s action on a note assigned to it by its predecessor, cross-examination of plaintiff’s witness, the cashier of the predecessor bank, eliciting testimony that he prepared the note himself, and that defendant had signed it at his request, if beyond proper bounds, held not prejudicial to plaintiff bank.</p> <p>3. Evidence — Terms of Written Instrument May not be Varied by Parol, but Fraud or Condition May be Shown. As between the parties thereto, the terms of a written instrument may not be varied in any particular by parol evidence, but if a written instrument is delivered on an express condition, and is not to be effective until the condition is fulfilled, the condition on which it was delivered, or, in case of fraud, etc., as between the parties and those having notice, may be shown by parol, such showing not varying the terms of the instrument.2</p> <p>4. Bills and Notes — Delivery on Condition Maker Should not be Held Liable Thereon a Defense. It is a valid defense to the enforcement of a note against the maker by a party to whom it was delivered that the note was without consideration, and was delivered on condition the maker should not he held liable thereon.</p> <p>5. Banks and Banking — Cashier in Full Control Could Accept Note on Condition Maker Should not be Held Liable. The cashier of a bank, clothed with more power than cashiers ordinarily have, being in active control of all the bank’s business, exercising and possessing full power to act in all matters, could bind the bank by accepting a note executed by the maker to the bank on condition he should not be held liable thereon, and in suit by the bank’s successor against the maker on such note, such agreement made by the predecessor bank’s cashier constitutes a defense.</p> <p>6. Bills' and Notes — Bank Must Take' Note to Predecessor as Affected by Conditional Agreement of Predecessor’s Cashier. A bank suing on a note given by the maker to its predecessor bank under an agreement of its cashier that the note would not be used or enforced must take such note precisely as the cashier of the predecessor bank took it, that is, with the conditional agreement in force, and must do so or not take it at all.</p>

Application of George E. Bain to the Industrial Commission of Utah for compensation for alleged injury in his employment by the Charles Dee Printing Company was denied, and he brings certiorari.

<p>Drains — Interest not Considered Kelative to Amount oe Bonds Issuable tor Improvements. Interest to accrue on bonds is no part thereof, within Comp. Laws 1917, § 2071, authorizing a drainage district for purpose of improvements to issue bonds to the amount of benefits assessed.</p>

<p>Drains — Supervisors op Drainage District Cannot Dispose op Bonds to Contractor por Less than the Sale Price Fixed by Statute. Although. Laws 1919, c. 41, authorizing the organization of drainage districts, provided for the issuance of bonds which should not he sold for less than 90 per. cent, of the par value, further provides that in case no hid is made and accepted the hoard of supervisors may use the bonds for construction of any ditches or drains, the hoard cannot, being unable to sell bonds at 90 per cent, of the par value, arrange that .the contractor should for work done receive bonds at 80, and for work to be done should accept unsold bonds and notes with the understanding that, if he was unable to dispose of the bonds for sufficient to pay for the work, the district should be liable on the notes, etc., for that would entirely evade the purpose of the statute not to -permit sale of the bonds for less than 90 per cent, of the par value.</p>

Original proceedings by Charles Leva against the Utah Fuel Company and the Industrial Commission of Utah, to review an order of the Commission denying the claim of petitioner against the fuel company.

B. Wight, Judge. Habeas corpus proceedings by C. Harris against Joseph E. Burbidge, Chief of Police of Salt Lake City, Utah. Judgment denying writ and remanding plaintiff to custody of defendant, and plaintiff appeals.

<p>1. Municipal Corporations — Statute Authorizing Interest-Bearing Interim: Waebants eob Improvement Contractors is Constitutional. The amendments to Comp-. Laws Utah 1917, §§ 676, 695, by Laws 1921, c. 15, § 1, and to Comp. Laws 1917, § 746, by Laws 1921, c. 16, § 1, so as to authorize the issuance to contractors for municipal improvements of interim warrants to the extent of 90 per cent, of the appraised value of the completed work, which, warrants shall bear interest at 6 per cent., are constitutional.</p> <p>2. Mtttjtotpat. Corporations — Application or Statute Authorizing Intebim Warrants to Improvement Contracts Under Construction is not Unconstitutional; “Estimate.” The application of Laws 1921, c. 15, § 1, and chapter 16, § 1, amending the existing laws relating to local improvements in municipalities, so as to authorize the issuance to contractors of interim warrants for the work as it progresses, which shall bear interest, to be included in the final levy, to a contract on which the work had been begun before the statute was enacted, is not unconstitutional, as violating rights of the taxpayers, though thereby the cost of the improvement is made to exceed the estimate, since the use of the word “estimate” precludes accuracy, and indicates a rough or approximate calculation only, and the taxpayers have no right to have the improvement constructed within the estimate.</p>

Proceedings for compensation under tbe Workmen’s Compensation Act by Thomas H. Moray, the employé, opposed by the Mountain States Telephone & Telegraph Company, the employer. Compensation was awarded by the Industrial Commission, and the employé applies for review of its findings and decision for insufficiency of compensation.

Christensen, Judge. Action by A. D. Van Wagoner against J. W. Whitmore, administrator of the estate of George C. Whitmore, deceased and another in which the State of Utah, by its State Board, of Land Commissioners, intervened. Judgment for plaintiff, and defendants appeal.

B. Morgan, Judge. Action by Elias A. Gee, administrator of the estate of George Baum, deceased, and others, against Jacob A. Baum, administrator of the estate of Sarah E. Baum and others. Judgment for plaintiffs, and defendants appeal.

<p>Appeal from District Court, Third District, Salt Lake County; W. H. Bramel, Judge.</p> <p>Action by Lucas Bozicevich against the Kenilworth Mercantile Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Second District, Davis County ; A. E. Pratt, Judge.</p> <p>Action by'George Romney, Jr., against James A. Lynch, doing business as the Lynch Construction Company. Judgment for defendant, and plaintiff appeals.</p>

Proceedings under the Industrial Act by Arvid Erickson for compensation for injuries while employed by the North Beck Mining Company, employer, and others. Award for employee by the Industrial Commission of Utah, and the employer and others bring certiorari.

Proceedings by Ezra Eames to prohibit and restrain the Board of County Commissioners of Cache County from proceeding further in attempting the organization of an irrigation district.

<p>Appeal from District Court, Second District, Weber County; A. E. Pratt, Judge.</p> <p>Action by Lettie Marshall against Altba B. Zinn and .others. Judgment for defendants, and plaintiff appeals.</p>

<p>Application by Henry W. Everts, Jr., a minor, by Henry W. Everts, Sr., bis guardian, for a writ of mandamus against George -S. Barker, as Judge of the District Court of Weber County.</p>

<p>1. Corporations — Provisions op Constitution and Statutes are Part oe the Articles op Incorporation. Provisions contained in the state Constitution and statutes are as much a part of the articles of incorporation as though they were expressly copied therein, and are to be construed together; the Constitution and statutes controlling in case of conflict with the articles of incorporation.1</p> <p>2. Corporations — Amendment to Permit Assessment on Stock Authorized Without Consent op all Stockholders; “Personal or Individual Liability.” Where statute (fciomp. Laws 1917, § 886) provided that the liability of the holder of full-paid capital stock for assessments should not be changed without the consent of all the stockholders, and was amended (Session Laws 1903, c. 94), to provide that the personal or individual liability of the holder of such stock for assessments shall not be changed without such consent, the intention was to prohibit the collection of assessments against the stockholders personally or individually, and was not to prevent amendments of the articles of incorporation to provide for a levy of assessment against the stock owned by the stockholder, since “personal or individual liability” refers to a liability which is personal, and which may be enforced by an ordinary action against the individual in which a judgment may be obtained and satisfied out of any nonexempt property such individual may own.2</p> <p>3. Corporations — Statute Construed as- Applying to Calls eou Unpaid Subscriptions. Comp. Laws 1917, § 919, providing that the board of directors may proceed by action to recover an assessment against delinquent stock, is limited to the collection of calls for unpaid subscriptions and does not authorize a personal action to collect assessments against fully paid stock.3</p>

<p>1. CARRIERS — EVIDENCE HELD TO SUPPORT SHIPPER’S ALLEGATION that Sheep Died prom Alkaline Water Furnished by Carrier. In an action for death of part of a shipment of sheep evidence that the sheep were allowed by the carrier to drink alkaline water, that such water often kills sheep, and that théy died from drinking it, held to constitute prima facie proof of the complaint, as against motion for nonsuit.</p> <p>2. Carriers — -'Carrier Furnishing Unwholesome Water to Sheep Carried Liable. Where the carrier undertakes to rest and • water sheep carried under an interstate shipment, as required by the federal law, it must furnish wholesome water, and if it does not, and the sheep die from drinking unwholesome water, the carrier is liable.</p> <p>3. Carriers — Want op Knowledge no Defense for Furnishing Umwhoijssome Water to Sheep Carried. Where slieep carried in an interstate shipment died from drinking alkaline water furnished by the carrier, it was no defense, in an action against the carrier that it had no knowledge that the water was unwholesome; it being the carrier’s duty, under federal law, to furnish wholesome water.</p> <p>4. Cakbiebs — Value op Sheep Dying En Route Sufficiently Shown as Against Motion fob Nonsuit. In a shipper’s action for damages for sheep killed during transportation by drinking poisonous water, the value of the sheep held, sufficiently proven, as against motion for a nonsuit, although testimony of value at an intermediate point merely and not at destination, was given (citing Dee v. Ban Pedro, L. A. é 8. L. B. Co., 50 Utah, 167, 167 Pac. 246).</p> <p>5. Cabbiebs — Measuee op Damages poe Sheep Dying Dueing Shipment is Market Value at Destination. Where part of a shipment of sheep died from drinking poisonous water furnished by the carrier en route, the measure of damages was the market value at destination.</p> <p>6. Appeal and Error — Appellate Court will not Weigh Evidence. The weight of testimony, including that of expert witnesses, is wholly a subject for the jury’s determination, and it is not within the province of an appellate court to pass on the evidence and say that the opinion of the jury was wrong.</p> <p>7. Cabbiebs — Burden on Shipper to Prove Carrier's Negligence. In a shipper’s action for the death of sheep from drinking poisonous water furnished by the carrier, the burden was on plaintiff to show defendant’s negligence.</p> <p>8. Cabbiebs — Evidence Held to Show Carrier had Constructive Notice that Water Furnished Sheep was Unwholesome. In a shipper’s action for the loss of sheep through drinking alkaline water furnished by the carrier, evidence held to show that the condition of the water had existed so long that notice of its unwholesomeness was imputed to the carrier.</p> <p>9. Carriers — Shipping Contract Inadmissible Under Pleadings to Show Shipper’s Contributory Negligence. In a shipper’s action for the loss of sheep through drinking unwholesome water in a yard furnished by defendant, it was not error to exclude the shipping contract to show that the shipper himself undertook to unload the sheep and that he was guilty of contributory negligence; no such defense nor any special contract having been pleaded.</p> <p>10. Appeal and Error — ¿Ruling Excluding Evidence not Excepted to not Reversible Error. A ruling excluding evidence is not reversible error where no exception was taken thereto.</p>

<p>Appeal from District Court, Third District, Salt Lake County; P. G. Evcms, Judge.</p> <p>Action by Carl R. Lund against Salt Labe County. Judg’ment of dismissal, and plaintiff appeals.</p>

<p>1. CRIMINAL Law — Review of Decision op District Court on Appeal prom Justice’s Court. The Supreme Court on appeal from a judgment of the district court in a criminal case which originated in justice’s court may not review errors, except those which relate to or assail th'e validity of the act under which defendant was convicted.</p> <p>2. Statutes — Must Operate Uniformly. All laws shall operate uniformly wherever uniform laws can be enacted.</p> <p>3. Statutes — Statute Requiring Tax on Trading Stamps Invalid as Attempting Unauthorized 'Classification Because not Applying to Merchants Issuing Their Own Stamps. The Trading Stamp Act, levying a tax on trading stamps of merchants obtaining them from third persons, but not on stamps of merchants issuing their own stamps, is discriminatory in attempting an unauthorized classification.!</p>

Original petition by tbe Utab Association of Life Underwriters against tbe Mountain States Life Insurance Company and Insurance Commissioner of Utab, for certiorari to tbe Insurance Commissioner.

<p>1. Landlord and Tenant — Landlord Cannot Recover Rent not Due at Time oe Surrender and Acceptance. Where tenant surrenders and landlord accepts premises during the term of the lease, the landlord cannot recover rent not due and payable at the time of the surrender.</p> <p>2. Landlord and Tenant — Landlord not Entitled to Rent eor Portion oe Year Prior to Surrender, Where Rent for Year was not Due on Surrender. Where tenant surrendered and landlord accepted premises during the last year of the term, but before the rent for such year became due, the landlord could not recover rent for that portion of the year prior to the surrender of premises.</p> <p>3. Landlord AND Tenant — Lessee Held not Liable on Rent Note on Subbender Beeobe Maturity. Where premises were surrendered to and accepted by landlord during the last year of the term before the note given by lessee at time of execution of lease for the rent for such last year became due, the lessee was not liable on note, having been released therefrom by surrender and acceptance of premises before it became due.</p> <p>4. Landlord and Tenant — Answer Held to Plead Tenant’s Release from Liability for Rent, and not Failure of Consideration fob Note. In action on note for rent for 'last year of term, answer alleging that the premises were surrendered to and accepted by the landlord before the end of the term, and before any rent for the last year of the term was due and payable, and that by reason thereof “the consideration for said note failed,” held to plead lessee’s release from liability for rent for such last year, and not to plead failure of consideration as' a defense; the quoted words being merely a legal conclusion.</p> <p>5. Pleading — Statement that Consideration Failed a Legal . Conclusion. In action on note, statement in answer that “the consideration for said note failed” held to state a mere legal conclusion.</p> <p>6. Landlord and Tenant — ‘Facts Held to Establish Surrender and Acceptance. Where lessee during last year of term, told lessor that he was going to have trouble in making the farm pay, and lessor replied, “Well, if you can’t make it, move off,” and lessee on lessor’s refusal to reduce the rent, remarked, “I will move off,” and lessor replied, “Very well, it is up to you,” followed by surrender and a reletting by lessor to third party, there was surrender and acceptance.</p> <p>7. Landlord and Tenant — Landlord, Taking- Unconditional Possession after Abandonment, Cannot Recover Rent. Where a tenant abandons premises, and the landlord unconditionally goes into possession thereof and treats them as though the tenancy had expired, there is a surrender, precluding landlord from recovering rent or suing for damages, since, if he desires to reserve the right to recover rent, he must recognize the tenant’s rights in the premises for the unexpired term, and sue him for damages on his breach of covenant to pay rent.</p> <p>8. Evidence — Judicial Notice Taken of Dormant and Growing Seasons with Respect to Use of Land for Agricultural Purposes. The court will take judicial notice of the fact that, with respect to farm lands used for agricultural purposes, there is a dormant and growing season in each year, and that in Utah the principal growing season is between April and October; in some years a little earlier, and in others a little later.</p> <p>9. Appeal and Erbob — On ' Reversing Judgment fob Plaintiff, Action Obdebed Dismissed Whebe Facts were Undisputed. Where, on undisputed facts, plaintiff is not entitled to recover, and the result depends on a legal question, the Supreme Court, in reversing judgment for plaintiff, will order district court to dismiss the action.</p> <p>Gideon, J., dissenting.</p>

Proceeding under the Workmen’s Compensation Act by Marie Como, to recover compensation for the death of her husband, Frank Como, employee, opposed by the Spring Canyon Coal Company, employer, and the State Insurance Fund. Compensation was awarded, and the employer and the State Insurance Fund bring a writ of review.

<p>Appeal from District Court, Third. District, Salt Lake County; W. H. Brcrnel, Judge.</p> <p>•Action by Louise Odell Richards against the Standard Accident Insurance Company. Judgment for plaintiff, and defendant appeals.</p>