Volume 61 — Utah Reports

Application by Herman L. Broton for compensation for injuries under the Industrial Act, opposed by the John O’Connor Company, employer and the Maryland Casualty Company, insurer. To review the Commission’s action in denying compensation, plaintiff brings certiorari.

<p>1. Appeal and Error — Where Evidence not Certieied in Form op Bill oe Exceptions, Ruling on Dependant’s Motion por Non-Suit not Reviewed on Appeal. Where the evidence has not been certified in the form of a bill of exceptions, ruling on defendant’s motion for a nonsuit cannot be reviewed on appeal.</p> <p>2. Appeal and Error — Trial—Repusal to Submit Special Questions to Jury not Reviewed, Unless Clear Abuse op Court’s Discretion. Whether special questions shall be submitted to the jury is largely within the trial court’s discretion, and, unless there is a clear abuse shown, the refusal to so submit will not be reviewed on appeal.</p> <p>3. Trial — Refusal op Instruction Covered by Given Instruction not Prejudicial. Where the substance of a requested instruction which was refused was given in the court’s general instructions, there was no prejudicial error.</p> <p>4. Trial — Addition op Costs to Verdict not Indication of Prejudice op Jury. Where in finding for plaintiff the jury added to the form of the verdict submitted to them “and also costs of court,” the additional words were surplusage, and merely gave to plaintiff that which he was entitled to as of right, and did not indicate prejudice against defendant.</p> <p>5. Money Received — Complaint Sufficient to Support Judgment for Money Received. Where a complaint alleged that defendant agreed tó obtain for plaintiff a grazing permit to graze cattle in a national forest, and that $200 was paid by plaintiff to defendant for that purpose, and that defendant failed to obtain the permit, and plaintiff was unable to obtain such grazing permit, and that prior to commencement of the action, plaintiff demanded of defendant a return of the $200, which defendant refused, it was sufficient to support a judgment for money received.</p>

<p>Appeal from the District Court, Third District, Salt Lake County; M. L. Ritchie, Judge.</p> <p>N. C. Peterson was convicted of embezzlement, and he appeals.</p>

<p>Appeal from District Court, Third District, Salt Lake County; M. L. Ritchie, Judge.</p> <p>Action by John B. Burbidge, administrator of the estate of Peter Peterson, deceased, against the Utah Light & Traction Company. From a judgment in favor, of defendant, plaintiff appeals.</p>

Application by Castle Dale City for a writ of mandate to Dilwortb Woolley, as Judge of the District Court of Emery County, to reinstate and assume jurisdiction of an appeal from a judgment of tbe city justice’s court for defendant Roy Miller, in an action for violation of a city ordinance.

Action for • injunction by Joseph Barboglio and others against A. E. Gibson and others, County Commissioners of Carbon County, and another. From a judgment for plaintiffs against defendant Utah Terminal Railway Company, it appeals.

<p>Appeal from District Court, Third.-District, Salt Lake County; Ephraim Hanson, Judge.</p> <p>Action by Mina L. Jimpson against George B. Chandler and the Bingham Coal & Lumber Company. From a judgment for plaintiff against defendant Bingham Coal & Lumber Company, it appeals.</p>

<p>Proceedings by Bryan.. D. Roberts for compensation under the Workmen’s Compensation Act for injuries sustained while in the employ of Lars Frandsen. On writ of review by the employer to annul an order of the Industrial Commission awarding compensation.</p>

<p>Appeal from District Court, Third District, Salt Lake County; Ephraim Mamón, Judge.</p> <p>Action by Elizabeth J. O’Brien against C. M. Alston and another. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Fifth District, Millard County; Wm. F. Knox, Judge.</p> <p>Action by Charles G. Y. Higgins, as guardian ad litem of Clisby Benjamin Robison, a minor, against the Fillmore Commercial & Sayings Bank. From an order dismissing the complaint, plaintiff appeals.</p>

<p>Appeal from District Court, Fifth District, Millard County; Wm. F. Knox, Judge.</p> <p>Action by Franklin Leon Robison against tbe Fillmore Commercial & Savings Bank. From an order dismissing the complaint, plaintiff appeals.</p>

<p>1. Appeal and Error — Findings op Tbial Court When Supported by Substantial Proof are Binding Upon Supreme Court. Where there is some substantial proof in the record to support the findings of the trial court in a law action, they are binding on the Supreme Court.</p> <p>2. Appeal and Error — Holding on Appeal as to Measure up Damages Held Law of Case on Subsequent Appeal. Where, in an action for damages for defendant’s failure to deliver capital stock purchased by plaintiff at the time stipulated in the contract of purchase, the measure of damages has been laid down on a prior appeal as being the difference between the market price at the time the stock should have been delivered and the market price at the date of actual delivery, such holding becomes the law of the case on a subsequent appeal.</p> <p>3. Corporations — Contention that Purchaser oe Stock not Delivered in Time Had Failed to Show Absence oe Increase oe Market Price Since Date of Delivery Held Without Merit. In an action for damages for defendant corporation’s failure to deliver capital stock purchased by plaintiff at the time stipulated in the contract of purchase, where defendant by its answer did not tender the issue' of increased value of the stock after the date of delivery, and no evidence was offered by either party respecting that particular question, the contention that plaintiff failed to show that the market price of the stock had not increased since the date of delivery was without merit.</p>

<p>1. Sales — Commendatory Expressions as to Salability of Vapor Stoves Held not to Constitute Waebanties. That a seller of certain vapor stoves told one who purchased for resale that the stoves would “sell like hot cakes,” and made other commendatory statements, did not constitute a warranty enforceable either as a defense or as an independent cause of action, hut was merely dealer’s talk.</p> <p>2. Sales — Remedy fob Selleb’s Failure to Assist Ptjeci-iaser in Making Resales not Rescission but Action fob Damages. "Where defendant purchased from "plaintiff certain vapor stoves and heaters for resale, and plaintiff promised to assist defendant in selling the stoves during the season, but failed to do so, defendant’s remedy was not rescission, but an action for damages either independently or by way of counterclaim; performance of such promise not being a condition precedent to plaintiff’s right to recover the purchase price.</p> <p>3. Pleading — Refusal to Allow Amended Counteeclaim as Stating no Cause of Action Held Error. In an action by a seller of certain vapor stoves and heaters for the price, a proposed amended counterclaim based on the seller’s failure to assist the purchaser in making resale of the stoves, alleging notice to the seller of the breach of his promise as required by Comp. Laws 1917, § 5158, held to state a cause of action, and should have been allowed1</p>

Proceedings under the Workmen’s Compensation Act by Thomas Fisher, opposed by Salt Lake City, employer. An award of compensation was allowed by the Industrial Commission, and the employer brings certiorari.

Mandamus by Dave Levy against the District Court of Salt Lake County and otters to require the named defendant to reinstate an appeal and assume jurisdiction of an action wherein plaintiff was one of the parties defendants.

<p>1. CORPORATIONS-SALES-CORPORATION HELD TO HAVE RATIFIED Purchase by Local Manager and Accepted Goods. Under Comp. Laws 1917, § 5157, as to acceptance by buyer of goods, purchase of stoves ordered by defendant’s local manager was ratified, and the stoves accepted, where defendant advertised and conducted a sale, selling some of the stoves so ordered, executed a trade acceptance for them, made partial payment, and recognized its obligation by letter.</p> <p>2. Corporations — Company Held to Have had Knowledge oe a Purchase by its Agent. Where it is undisputed that, about six weeks after the manager of a company’s branch store bought oil stoves, its general manager wrote the seller, advising its salesman not to receive any more orders without confirmation from its main office, through- which all hills are paid, from which a remittance for stoves had theretofore been made, and from which, also, the hill for freight and a hill for advertising the stoves sold was paid, it must he held to have been aware of the purchase.</p> <p>3. Sales — Breach of Contract by Seller in Failure to Furnish Demonstrator to Aid in Resale will not Defeat Right to Recover Purchase Price. Failure of seller of oil stoves to furnish a demonstration to aid in their sale as agreed by seller will not defeat seller’s right to recover the purchase price, though the buyer may counterclaim for damages from the seller’s failure to perform its agreement; the agreement being an independent one.1</p>

H. Erickson, .Judge. Eiler Freece was convicted of violation of a city ordinance, and appealed to the district court. From an order sustaining demurrer to the complaint, the city appeals.

Charles E. Foxley, an attorney and counsellor at law having been convicted of embezzlement, a certified copy of the record was transmitted by the clerk of court to the Supreme Court.