Volume 62 — Utah Reports

<p>1. EXECUTORS AND ADMINISTRATORS — APPLICATION OR MEMORANDUM. op Agreement Between Decedent and Brokers not an Instrument on Which Claim Founded Required to be Presented with Claim. Under Comp. Laws, 1917, § 7649, providing that, if a claim against an estate be founded on a bond, hill, note, or other instrument, a copy of such instrument must accompany the claim), held that, where defendant, in an action for recovery of broker’s commission, died, and claim was made to his administrator without attaching thereto the written application or memorandum of agreement, the plaintiffs were not thereby precluded from recovery; such instrument not being the foundation of plaintiffs’ claim, but merely evidence thereof.</p> <p>2. Executors astd Administrators — Where Defendant Dies, Plaintiff not Required to Present Claim to Administrator Within 90 Days. Under Comp. Laws Utah 1917, § 7657, requiring that, when an action is pending at the death of defendant plaintiff must present his claim to decedent’s representative as in other cases, and under section 7653, providing that, when a claim is rejected, the holder must bring action thereon within three months, and under section 6513, providing that an action does not abate on the death of a party, and providing for its continuance by or against his representative, held,, that the failure of plaintiffs on the death of defendant to present within three months their claim against his estate was not a bar to the prosecution of the action, nor reason for not receiving the claim in evidence.</p> <p>3. Evidence — Testimony -of Member of Loan Committee as to Information Received from Another Member Hearsay, and no Part of Res Gestae, in Brokers’ Action Against Borrower for Commission. In an action by brokers for an agreed commission for obtaining a loan, testimony by 'a member of the loan committee of the bank which made the loan that he made inquiry, and was told by another member of the committee that plaintiffs’ agent brought the loan to the bank, was inadmissible as hearsay, and was no part of the res geste.1</p> <p>4. Evidence — Admission of Part of Conversation not Entitling Adversary to Introduce Hearsay Testimony. Hearsay statements of a third person are not admissible, entitling adverse party to the whole of a conversation, where a part of the conversation has been given.</p> <p>5. Appeal and Error — Admission of Hearsay Testimony Harmless Error Where Fact Proved by Competent Testimony. In an action for brokers’ commission in obtaining a loan, where the fact that plaintiffs’ agent introduced the defendant to the bank which made the loan was abundantly proved by competent evidence, the admissibility of .hearsay testimony by one of the members of the loan committee of such bank was harmless error. 2</p>

<p>1. Jury — Right to Jury Trial in Action or Unlawful Detainer Held not Waived Because Jury Fee was not Paid at Time op Demand. Under Comp. Laws 1917, § 6782, entitling either party in unlawful detainer to a jury trial on demand and payment of the required fee at that time, where counsel, when setting the case for trial, announced that defendant desired a jury trial and that the fee would he paid at the time of trial, to which neither the court nor plaintiff’s counsel objected, held, that there had been no waiver of defendant’s right.</p> <p>2. Mandamus — Litigant not Entirely Blameless Held not Entitled to Costs in Proceeding to Enforce Right to Jury Trial. Where plaintiff, seeking a writ of mandate requiring the granting to him of a jury trial in another action of unlawful detainer then pending against him, was not wholly excusable in his failure to pay the required fee at the time of making his demand, held, that he was not entitled to recover costs.</p>

<p>Schools and School Districts — Board of Education's Power IN ESTIMATING LOCAL TAX LEVY IN FIRST AND SECOND CLASS Cities Held Such as to Make it the Ministerial Duty of County Officers to Levy Amount Certified. Const, art. 10, § 6, and Comp. Laws 1917, § 4660, providing for control by the board of education of the public school system in first and second class cities separate and apart from the counties in which they are located, and section 4704, as amended by Laws .1923, c. 43, peremptorily requiring the county taxing officers to levy such per cent, of the assessed valuation of the city as shall raise the amount required and certified by the board, invests the board with such paramount power as to estimating revenue which may be expected from sources other than local taxation and determining the levy necessary that it becomes the ministerial duty of the county officers to levy the amount certified if within the maximum limit provided by section 4704, and they have no power to revise the estimate made and suggest additional sources of prospective revenue, though amounts derived from other sources cannot be accurately ascertained, and the required amount will thereby be supplied.</p>

<p>1. BvideNce — Oral Testimony not Available to Vary ob ConTRAdict Tebms oe Weitten Instbument. Oral testimony is not available to vary or contradict the terms of a written instrument.</p> <p>2. Evidence — In Action on Note Between Original Parties, Parol Evidence is Admissible to Show Want oe Partial Failure oe Consideration, Fraud, and Conditional Delivery. In actions upon notes between the original parties thereto, parol evidence is admissible to show want of consideration, or partial failure of consideration, or fraud in procuring the execution of the note, or a delivery with a condition precedent without the performance of ¿which the note never became a binding obligation, since such testimony does not vary or contradict the terms of a written instrument, but tends to establish the fact that no contract between the parties had ever existed.</p> <p>3. Bills and Notes — Facts Held to Show Conditional Delivery oe Note. Where purchaser of- mining property organized a corporation to take over the property, and presented a person, wiho had helped him to procure the property, with a certificate of stock for his services, stating that he would carry all obligations arising out of the issuance of the stock until the sale thereof or the property should realize a profit, and induced such person to sign a note, purporting to be in payment of the stock, by representation that he would attach a contract to the note containing such agreement to carry the obligations until realization of profit, there was merely a conditional delivery of the note, under Comp. Laws 1917, § 4045.1</p> <p>4„, Appeal and Error — Findings with Substantial Competent Evidence to Support Them are Conclusive. In an action on a note, the court’s findings are -conclusive on appeal if there, is any competent evidence in the record to support them, the action being a law action.</p> <p>5. Bills and Notes — Evidence Held to Sustain Finding as to Conditional Delivery. In an action on a note in which the defendant claimed that there had been merely a conditional delivery in that plaintiff had agreed to attach thereto a contract requiring plaintiff to carry all the obligations arising out of the issuance of corporate stock to defendant which the note purported to be in payment of, until the sale of the stock or property of the corporation should realize a profit for the defendant, evidence held to sustain finding that the plaintiff agreed to attach such contract to the note.</p>

<p>Waters and Water Courses — Oil Refining Company Could Buy Water in Artesian District Prom Some of Owners and Use Water Beyond Limits of District Without Injury to the Other Owners. An oil refining company could purchase from the owners of lots in an artesian district their rights to the water owned by them, and conduct the water to its oil refinery beyond the limits of such district, provided that in so doing it did not interfere with the right of other owners to receive water in proportion to their surface area, since the purchase and use of such water did not injure the rights of such other owiners.†</p>

<p>1. Exceptions, Bill of — Not Stricken Merely Because Piled by Party Who Has Taken no Appeal. Under Comp. Laws 1917, § 6969, the right to have settled and allowed a hill of exceptions is not limited to the party who appeals, and the fact that a hill of exceptions was filed by a party who has taken no appeal is not grounds for striking it.1</p> <p>2. Appeal and Error — Judgment Cannot be Reversed Unless Invasion or Disregard of Substantial Rights Shown. Under the statute a judgment may not he reversed unless substantial rights of the. complaining party have been invaded or disregarded.</p> <p>3. CORPORATIONS-LICENSES — AGREEMENT TO TAKE STOCK HELD NOT “Subscription,” but Purchase Void Under Blue Sky Law. An agreement to “subscribe” for part of increase issue of preferred stock to be issued by a then going mortgage company, held a purchase, and not a “subscription,” which is ordinarily an agreement for stock in a prospective corporation, and as a sale, void under Blue Sky Law,' as amended by Laws 1921, c. 131, the corporation having no license.</p> <p>4. Licenses — Drastic Penalties Prescribed not Grounds for Relaxing Strictness of Blue Sky Law. The drastic penalties and harsh consequences for violations of the Blue Sky Law, as amended by Laws 1921, c. 131, do not authorize the courts to adopt a liberal construction or except transactions from the purview of that statute when clearly within both the spirit and letter.</p> <p>5. Appeal and Error — Mere Absence of Cross-appeal not Grounds for Striking Assignment of Cross-errors. The fact that an appellee w¡ho has assigned cross-errors has not taken a cross-appeal is not grounds for striking his assignment of cross-errors, though some of. them may be such as cannot be considered.2</p> <p>6. Costs — Appellee Held not Entitled to Recover Costs ‘of Preparing Unnecessary Printed Abstract and Half of Bill of Exceptions. Where an appellee, without taking a cross-appeal, had settled and allowed a bill of exceptions containing much unnecessary evidence, and filed an additional abstract, nearly all of which was unnecessary to a consideration of appellant’s case, held, that he was entitled to tax costs only for 25 pages of his original brief, a supplemental brief, and one-half of the bill of exceptions.</p>

<p>1. Taxation — Invalidity or Tax Must be Distinctly Alleged to Recover Payment Under Protest. To recover back a tax paid under protest, the complaint must distinctly allege facts rendering the tax illegal, since it is presumed valid.</p> <p>2. Taxation — Situs or Property Determines its Taxability in any Certain County. Under Const, art. 13, § 10, making property taxable within the territorial limits where owned or used, and Comp. Laws 1917, § 5875, requiring assessment in the county, city, etc., where situated, and section 5923, as amended by laws 1919, c. 114, providing for equal apportionment for property, situated in more than one county, the situs of property determines its taxability in any certain county.</p> <p>3. Taxation — Percolating Waters Collected by Mining Operations Held Taxable as Personal Property oe Mine Owner. Where mining operations caused diffused and percolating waters to be collected in a definite body, the corpus of the waters became personal property of the mine owner taxable as such.1</p> <p>4. Taxation — Water Developed by Mining Operations and Piped to Another County Taxable Tiieeein. Where mining operations caused percolating waters to gather in one place from which it was being piped out to another mining company in another county, such water was deemed a fixed object, as far as it could be identified, and taxable in the county into which it was being piped.</p> <p>5. Taxation — Peoeebty Taxed by Two Counties is Presumed to be Situated in Both. Property taxed in two counties is presumed to be situated in both, since taxes are presumed valid and to be supported by the necessary facts to make them so, in view of Const, art. 13, § 10, and Comp. Laws 1917, §§ 5875, 5923, as amended by Laws 1919, c. 114, collectively requiring taxation of property at its situs.</p> <p>6. Taxation — Presumption of Validity Must be Overcome by Specific Allegations. In an action to recover taxes on mining property paid under protest, the presumption that the property was situated in the county was not overcome by a mere allegation that water was delivered to and received by mining company situated in another named county, since such presumption must be overcome by clearly and positively alleging that the property was not subject to taxation in the named county.</p> <p>7. Taxation — Assessment of Water Rights Separate from Mining Property Held Constitutional. Const, art. 13, § 4, providing for assessment of metalliferous mines by acreage and net proceeds and appurtenant property at full value, does not prevent assessment of water rights separately from the mine, since it does not prescribe any form of assessment, especially as the result to the mine owner is identical in either case.</p> <p>8. Taxation — Water Being Piped from' One Mining Company to Another Held Assessable to First Mine. Where water collected in plaintiff’s mine was being piped to another mining company in another county, under a contract, the water rights were assessable as appurtenant to the first mine not being appurtenant to the receiving mine since the receiving owner did not have title to the rights.</p> <p>9. Waters and Water Courses — Appurtenance to Other Property. To make water rights appurtenant to other property, there must be unity of title and right to use in the same person.</p> <p>10. Taxation — Water Right of Mine Piping the Water to Another Mine Held Taxable. Under Const, art. 13, § 2, making all property not exempt subject to taxation according to its value, and section 4, making the value of any surface use made of mining property assessable at full value, water rights owned by one mine and piped to another mine, whether appurtenant to the first mine or mining property at all, are taxable.</p> <p>11. TAXATION — AlXEGATION THAT WATER RlfiHTS OF OTHER MINE Owners aee not Assessed , Separate from Their Mines Held not to Show Discrimination. In an action to recover taxes paid on water rights under protest, complaint alleging that similar rights were not assessed to other owners separately and apart from their mines fails to show discrimination, since it does not allege that other owners are not assessed and taxed on such rights.</p>

A. Iverson, Judge. Suit by tbe Kenyon Hotel Company and others against the Oregon Short Line Railroad Company and others. Judgment for defendants, and plaintiffs appeal.

Original proceedings by Matt Vukelich against the Industrial Commission of Utah, the Judge Mining & Smelting Company and .¿Etna Life Insurance Company, to review an order of the Commission making an insufficient award of compensation to plaintiff under the Workmen’s Compensation Act (Comp. Laws 1917, §§ 3061-3165).

F. Knox, Judge. Action by the Fillmore Commercial & Savings Bank against James A. Kelly, as guardian of the estate of Franklin Leon Robison, a minor, and Franklin Leon Robison. From judgment for plaintiff, second named defendant appeals.

<p>Appeal from District Court, Fifth District, Millard County ; Wm. F. Knox, Judge.</p>