Volume 9 — Utah Reports

Hon. Charles S. Zane, judge. The opinion states the facts, except the folio tying: The sections of the Code of Civil Procedure which are applicable are as follows: Sec. 3227, 2 Comp. Laws, 1888. The counter-claim must be one in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action: 1.

<p>Trust.— Resulting Trust. — Fiduciary Relation. — Where aboard of education, contracted with a contractor for the building of a school-house and the contractor made a contract with a subcontractor for part of the work, and the course of dealing- was for board of education to pay the contractor for work as it. was done, and thereupon the contractor paid his sub-contractor, and the sub-contractor invariably deposited the money paid to him in a certain bank of which the secretary of board of education was cashier; held, that there was no fiduciary relation ,of any kind existing between the bank and the holders of checks drawn by the sub-contractor.</p> <p>Id. — Id.—Fund.—A trust must be created either by contract of the parties or by operation of law, and no resulting trust claimed to be founded upon a fiduciary relation can arise where no fiduciary relation exists.</p> <p>Id. — Id.—Statement op Case. — Where a sub-contractor received payments upon contract from his contractor, who received payments upon his contract from a board of education, whose secretary was the cashier of a certain bank, wherein the subcontractor was in the habit of depositing payments made to himself and of drawing checks against such deposits to pay his laborers, and said sub-contractor upon receiving his last payment deposited it in the bank, and issued checks-against it, which were assigned to plaintiff, but before said checks were ¡presented for payment the sub-contractor assigned his contract rand the money in the bank to the bank, and thereupon the bank .refused payment of the checks; held, that no trust existed or .-arose by operation of law so as to make the deposit of the -.sub-contractor a trust fund for the payment of the checks.</p>

judgment, and from an order refusing a new trial, of the district court of the first district, Hon. John W. Blackburn, judge. The opinion states the facts.

James A. Miner, judge. The opinion states the facts,. except the following: On tbe trial in the commissioner’s court, defendant obtained judgment and plaintiff appealed. Upon the trial in the district court plaintiff obtained judgment. The •action was brought by the general guardian in the commissioner’s court, but before the trial in the district court a .guardian ad litem was appointed by the court.

Appeals from judgments of the district court of the third district and from orders refusing new trials. Hon. Charles S. Zane, judge.

<p>Appeal from a judgment upon demurrer of the district court of the third district, Hon. Thomas J. Anderson, judge. The opinion states the facts.</p>

Hon. John W. Blackburn, judge. The record shows the following facts: The complaint was upon two promissory notes alleged to have been executed by defendant Reed and defendant Cropper, and alleged to have been endorsed prior to execution and delivery by defendants Holbrook and Duggins. Protest and notice of non-payment upon presentment were also alleged.

Hon. Charles S. Zane, judge. The opinion state the facts, except that there be several appeals involving this question, all the judges sat together. Section 17 of the organic act and section 1891 of the Eevised Statutes of the United States extend the.Constitution over the Territory of Utah.

Charles S. Zane, judge. The opinion states the facts, but the following section of the statute may be of interest: Sec. 1'5. “Upon the filing of the firstly described statement and service of a copy thereof upon the owner, or upon the filing of the secondly described statement and service of a copy thereof upon the owner by any such sub-contractor, the payment to the contractor of so much money as is claimed to be due or to become due in any such statement for such work or…

Charles S. Zane, judge. The opinion states the facts except that the question ruled upon was raised for the first time in the appellate court, and that the notice of motion did contain á specification of a large number of errors besides insufficiency of the evidence. The statement should have been disregarded and it was error to grant a new trial thereon.

Charles S. Zane, judge. The opinion .states the facts. Two objections to the decree are made: (1) The plaintiff had ceased to hare any interest in the litigation and could t not prosecute it further. The statute is express that the .suit must be prosecuted in the name of the real party in interest. Sec. 3160, 2 Comp. Laws, 1888; Webster v. Ilitch-•cocTc, 11 Mich. 56; Brewer y. Dodge, 28 Mich. 366; Per Joins y. Perkins, 16 Mich. 62; Sedgwick y. Cleveland.

James A. Miner, judge. The opinion states the facts. As to the accounts the instrument referred to in the ■findings was an absolute transfer, because the accounts were dioses in action, but as to the remaining personal property it was a chattel -'mortgage. The effect of the instrument is to be determined by the laws of Michigan.

James A. Miner, judge. The deed of Barry to Fisk was a deed poll signed by Barry alone and not by Fisk. It recited the mortgage “ which said second party hereby assumes and agrees to pay” Tbe stipulation in the deed is for the benefit simply of the grantor, in the deed and is revocable by him at any time.

Hon. Charles S. Zane, judge. The opinion states the facts. The title was not marketable, because not free from litigation, palpable defects, grave doubts and not fairly deducible of record. Turner v. McDonald, 76 Cal. 181; Sheehy v. Miles, 93 Cal. 288; Reynolds v. Borel, 86 Cal. 538; Martin v. Judd, 81 Ill. 488; Richmond v. Gray, 3 Allen 25; Sturtevant v. Jones, 14 Allen 523; Smith v. Taylor, 82 Cal. 538.

Petition and judgment thereon for a writ of mandate of the district court of the first district, Hon. James A. Miner, judge. The opinion states the facts, except the following: Section 242, 1 Comp.

Charles S. Zane, judge. The whole correspondence shown in evidence between deceased and plaintiff was as follows: Dec. 31, 1889, Mrs. McKibben to Haarstick: “As I think I may wish to dispose of the Miss. Valley Trans.

James A. Miner, judge. The opinion states the facts except that .this is the same case as reported in 8 Utah, 349; a rehearing was granted and this subjoined opinion delivered upon the rehearing.

Charles S. Zane, judge. This cause was originally tried before the court with a jury and judgment found in favor of the defendant. The plaintiff appealed and the judgment was reversed, and the opinion is found in Jones v. Galigher, 3 Utah, 54. Thereupon the cause was tried again before Hon. William H. Dickson as referee. An appeal was thereupon taken to the supreme court of the Territory.

Hon. Charles S. Zane, judge. The opinion states the facts. The instruction should have been given that the plaintiff should have stopped before venturing on the track. 2 Borer on Bailways, pp. 1061-1065; 2 Wood's Bailway Law, pp. 1301-1332 and notes; Patterson's Bailway and Accident Law, p. 168, note 4; 2 Shearman and Bedfield on Negligence, sec. 476, notes; Wilds v. Railway Go., 24 N. Y. 430, 440; Railway Go. v. Adams, 6 Pac. Bep. 529; Railway Go. v. Houston, 95 IT.

<p>Appeal from a judgment of the district court of the first district and from an order refusing a new trial, Hon. John W. Blackburn, judge. The opinion states the facts.</p>

Hon. James A. Miner, judge. The opinion states the facts. The following facts are uncontroverted: From Lake Station to Terrace ivas only about twenty-five miles. The train left Lake Station about 10 A. M. and arrived at Terrace about 1 P. M. Hall, Gaisford and Woods went out on the platform only a few minutes before the accident.

Motion to dismiss an appeal from the district court of the fourth district. Hon. James A. Miner, judge. The opinion states the facts.

John W. Blackburn, judge. The opinion states the facts, except that there was no bill of exceptions ever taken or filed and the only record before the court was the order in the district court which was as follows: “This cause came on for hearing on the petition of George Smith, to be appointed administrator in this case and the court, now being fully advised therein, orders that said petition be denied, and the court after hearing suggestions as to the appointment of an…

Thomas J. Anderson, judge. The opinion states the facts. The testimony of the making of the station and the drifting back from the manway to the tunnel was incompetent even though it tended to show what was the situation after the accident. Railroad Co. v. Hawthorne, 144 IJ.

Jámes A. Miner, judge.' The opinion states the facts except the following: There was no bill of exceptions taken or statement upon motion for new trial made in the district court.

John W. Blackburn, judge. The opinion states the facts-except the following: Section 3361, 2 Comp.

Cross-Appeals from a judgment of the district court of the third district and from an order refusing a new trial, Hon. Thomas J. Anderson, judge. The opinion states the facts.

<p>Mines and Mining. — Notice of Location. — Description.—A notice of location which describes the ground in such a way as to be incapable of location is insufficient, affirming Darger v. Le Sieur, 8 Utah, 160.</p>

Charles S. Zane, judge. The opinion states the facts except the following section of' the statute: A new trial may be granted on account of the misconduct of the jury, and whenever one or more of the jurors have been induced to abide a resort to the determination of chance, such misconduct may be proven by the affidavit of a juror. Section 3400, 2 Comp. Laws of 1888. The statute impliedly excludes all other cases of proving ¡misconduct of jury by a juror’s affidavit.

<p>Appeal from a judgment of conviction of the district court of the first district, Hon. John W. Blackburn, judge. The opinion states the facts.</p>

Hon. Charles S. Zane, judge. The opinion states the facts except the following sections of the statute: Sec. 3750, 2 Comp. Laws of 1888: The right of any person declared elected may be contested for any of the following grounds: 1. For malconduct on the part of the board of judges or any member thereof. 2. Non-elegibility of the person elected. 3.

<p>Kailuoads. —Ejection op Passenger. —Stopping Place. — Under the laws of Utah Territory, a railroad company can put off a passenger, who refuses to pay double fare as required by the rules of the company, because such passenger has purchased no ticket, only at a passenger station, affirming Nichols v. Railway Co., 7 Utah, 510.</p> <p>Damages. — Ejection oe Passenger. — Amount.—A verdict of $50 damages in favor of a passenger, who has been ejected from a train for refusal to pay-fare, at a place where there was no station, and had been in consequence compelled to walk three and a half miles to her home, is not excessive.</p>

<p>Appeal from a judgment and from an order refusing a new trial of the district court of the fourth district, Hon. James A. Miner, judge. The opinion states the facts.</p>

Charles S. Zane, judge. The opinion states the facts except the following: The court instructed the jury that there was no evidence of any fraud in the assignment. The bill of sale attempted to be introduced was made four days before the assignment by Webb and Olsen to William H. Eoy. A chattel mortgage was also executed to said Eoy on the same day. This evidence was objected to as immaterial and incompetent.

<p>RailROads. — Killing Stock. — Negligence.—Where the evidence in an action for hilling stock showed that at a point where there were gates in the fences along the right of way, plaintiff's servants were driving certain animals across the track at a level place where they were within plain view of the engineer for half a mile, and the train came along at the rate of 35 or 40 miles an hour and no whistle was sounded, and that plaintiff’s servants knew the train was due, and that the engineer of the train applied his air brake as soon as he saw the animals, held that the evidence being conflicting the questions of negligence and contributory negligence were properly left to the jury.</p> <p>Id.’ — Id.—Id.—Contributory Negligence. — Where in a suit for killing stock, the evidence showed that at the point on the track where the mule was killed the fence along the railroad was down in certain places, and that the cattle guards were so filled up, that stock could pass over them, that the mule was killed probably when it was running along the track in front of the train, and that high grass was allowed to grow along the right of way, although there was evidence to show that the fence had been in good condition previous to the day of the injury, but had been broken down by throwing ties upon it, held that the evidence should have been submitted to the jury under proper instructions.</p> <p>Action. — Real Party in Interest. — Assignment for Collection. — An assignment of a chose absolute in its terms, so that by virtue thereof the whole apparent legal title passes to the assignee constitutes the assignee the real party in interest for the purposes of an action, although the assignment was solely for the purpose of bringing a suit, and the assignee was to pay to the assignor ■ everything realized from the suit after deducting expenses.</p>

<p>Appeal from a judgment of the district court of the third district, and from an order refusing a new trial, Hon. Charles S. Zane, judge. ' The opinion states the facts.</p>

<p>’ Negligence. — Contributory Negligence. — Injury at Crossing. —The question whether or not a wayfarer in crossing a railway track, where he was injured, exercised reasonable care in venturing upon the track, is one to be decided by the jury with reference to all the circumstances under proper instructions from the court, and whenever a given state of facts is such that reasonable men would fairly differ upon the question as to whether there was negligence or not, the question of negligence should be submitted to the jury.</p> <p>Railroads. — Accident at Crossing. — Instructions.—Where the court instructed the jury that they should take into consideration the location of the tracks and all other facts in evidence in order to arrive at a conclusion as to negligence or contributory negligence, it was not error to refuse an instruction that plaintiff could not recover for any injury resulting to him from any conditions of the place of the accident known to the plaintiff, or from the ordinary nature of the business carried on by the defendant there.</p> <p>Trial. — Instructions.—Particular Phase op Case. — Where a request to charge is couched too much upon the weight of the testimony, and confines the jury to the particular circumstances narrated, without notice of others that may be of importance, and selects one prominent fact or circumstance as controlling the case to the exclusion of all others, it should be refused.</p> <p>Damages. — Special Damages — Immaterial Error. — Where the court instructed the jury that they should allow for the harness upon team injured, but there was no claim for such damages in the complaint, and no complaint was made at the time of such instruction, and there was no evidence upon the point, because the same was stricken out on motion of the defendant, held that the instruction was harmless and not reversible error.</p>

James A. Miner, judge. The opinion states the facts, except the following: The allegations as to the filing of objections were as follows: “That on March 29, 1892, at 9:55 o’clock A. m., certain persons protested against the levy of this special tax, and afterwards and before action was taken upon that petition, certain other owners of property objected in writing to the levy of such special tax, and that the whole number of feet owned by those persons first protesting, and…

James A. Miner, judge. The opinion states the facts, except that the plaintiffs offered evidence that defendant Henderson was a principal, in that he was interested in tl^e land, which .evidence was excluded. The contract was a receipt attached on the back of the bond.

Charles S. Zane, judge. The opinion states the facts except the following: The appeal was from the judgment, and hence was on the judgment roll alone. The evidence was incorporated in the record, but was not made part thereof by any bill of exceptions or statement upon motion for new trial.

Charles S. Zane, judge. The opinion states the facts except the following: The findings of the court were to the effect (1) that the Church of JeSus Christ of Latter-Day Saints was from 1855 until March 3, 1887, a corporation, and on the last date dissolved; that said church having first taken possession of certain real estate called the “Temple Block” in 1848, was in possession of the same from that time until March 3, 1887, and acquired title to the same under the townsite…

<p>Appeal from a judgment of the district court of the third district, Hon. Charles S. Zane, judge. The opinion states the facts.</p> <p>Same counsel as in case before.</p>

<p>Some counsel as in case before.</p>

<p>Same counsel as in case before.</p>

<p>Dismissal of Appeal. — Justice’s Court. — Rule of Court. — An order of the district court dismissing an appeal from a justice’s court, for failure to docket the same within thirty days after receipt of the papers by the clerk of the distr.ct court, will not be reversed on appeal unless a c'ear a' use of judicial discretion he shown, and the fact that the attorneys for appellant did not know of the rule, and that on the same day the appeal was dismissed they appeared in court and offered payment of the docket fees, is not a sufficient showing.</p>

John W. Blackburn, judge. The opinion states the facts, except that the facts as stated infra in respondents brief are found in the abstract. The record showed that the list of 200 names was exhausted. They cited as to the question of impaneling the jury. Mossean v. Veeder, 2 Or. 113; Judge v. State, 8 Ga. 173; Be Pont v. McAdoiu, 6 Mont., 226; Williams v. Comm., 91 Pa. St. 493, 12 Am. and Eng. Encye. 340-2. The miner was a fellow-servant. ■ Railway Go. v. Baugh, 13 Sup. Ct.

James A. Miner, judge. The opinion states the facts, except that the appeal was taken upon the judgment roll consisting of the complaint, answer, supplemental answer, ver diet, judgment and bill of exceptions settled January 14, 1893, nunc pro tunc as of December 22, 1892.

James A. Miner, judge. The opinion states the facts. The former two actions, one at law upon the note, the other in equity upon the mortgage, are by our code consolidated into one action, and a mortgagee may bring suit and have judgment docketed for the full amount due. Then he can proceed to sell the property and apply the proceeds thereof upon the judgment, and no proceedings are necessary to ascertain the deficiency.

James A. Miner, judge. The opinion states the facts except the following: The complaint was upon two causes of action. First, money had and received in the sum of $750; second, money had and received in the sum of $1,025. The answer denied the first cause of action. As to the second cause of' action, the answer alleged that defendant and plaintiff were co-partners in buying a certain piece of real estate, purchase price to be $5,636.80, one half to be paid by each.

James A. Miner, judge. The opinion states the facts except the following: The case came up on the judgment roll and bill of exceptions; no motion for a new trial was made. The bill of exceptions was dated April 21, 1893, and made nunc pro tunc as of February 8, 1893. The trial was had and judgment rendered January 27, 1893. Notice of appeal was served May 6, 1893. The motion was made at the trial, as shown by the bill of exceptions, to exclude the deposition.

George W. Bartch, judge. The opinion states the facts. In this case the findings show that the construction across the defendant’s lot was done' in 1881, and that large quantities of coal and other material were shipped over the road daily to parts of the city lying east of the premises; that the defendant, the Salt Lake & Fort Douglas Bailway Co., in 1890, had issued a series of bonds which were outstanding and unpaid, and that during the construction of the road plaintiff…

granting a new trial of the district court of the third district, Hon. Charles S. Zane, judge. The opinion states the facts. The brokers did furnish a purchaser, and the parties did agree. The purchasers offered a contract in the bond, which when signed and acted upon, became operative and could be specifically enforced. • Schroeder v. Gemeinder, 10 Nev. 363; Hall v. Center, 40 Cal. 63; La Rue v. Groezinger, 84 Cal. 289; Johnson v. Trip, 33 Fed.

<p>Appeal from a judgment of the district court of the third district and from an order refusing a new trial, Hon. Charles S. Zane, judge. The opinion states the facts.</p>

Charles S. Zane, judge. The opinion states the facts, except that the third instruction referred to in the opinion was as follows: “Even if the plaintiff was on the caboose in bad faith, without having paid his fare, or trying to beat his way, in violation of the rules of the company and knew it, still if lie was injured by defendant's agents recklessly running cars against the caboose, when they had reason to know that plaintiff might be injured thereby, that wotild amount…

Appeals from a judgment of the district court of the first district and from an order refusing a new trial, Hon. James A. Miner, judge. The facts are stated 'in the opinion of the court.

Charles S. Zane, judge. The opinion states the facts except the following: Rules 3 and 4 of the supreme court are as follows: “If the transcript be not filed within the time prescribed or allowed [thirty days after the appeal -has been perfected, unless further time is given by the supreme court or a justice thereof] the appeal may be dismissed on motion,” etc. “ On such motion there shall be presented to the court the certificate of the clerk of the court below, under the…

Charles S. Zane, judge. The opinion states the facts. The ringing of the bell was intended solely as a warning to human beings and not to cattle, which are not supposed to be endowed with reason so as to understand its meaning. Fisher v. Raihoay Co., 126 Pa. St. 293; Atkinson v. Water Works Co., L. E. 2 Exch. 441. There is no legal presumption that an omission of signals or running at excessive speed is the cause of an injury to cattle killed at a crossing.

Charles S. Zane/ judge. The opinion states the facts except the following: The complaint alleged that on October 13, 1890, the plaintiffs as copartners under the name of Wimmer Sisters, owned a stock of millinery goods, worth $1,000; that defendants being at the same time copartners, in the same kind of business, by deceit and fraud through their agent Louis Simon, took possession of said goods and converted them to their own use, to plaintiff’s damage in the sum of $1,000;…

James, A. Miner, judge. The following is a full statement, of the record: The indictment by apt words charged the larceny by Nellie Berlin from Lena Wright of $100.

Ceoss-Appeals from a judgment of the district court of the fourth district and from an order refusing a new trial, Hon. James A. Miner, judge. The opinion states the facts, but the following details are noticed.

<p>Appeal. — Instructions.—Failure to Except. — Where it appears from the record that no exception was taken either to the chai’ge as given or to the refusal to give instructions requested, no error can be assigned thereon.</p> <p>Trial. — Refusal of Witness to Answer. — Evidence.— Semble that where a witness contumaciously refused to answer a material question, he may not only be punished as for contempt, but it is the duty of the court to strike out all the witness’ testimony.</p> <p>Trial. — Evidence.—Deposition.—Refusal to Answer. — Where a witness, being examined for taking his deposition, refuses to answer a material question, it is not error for the court to exclude the whole deposition.</p> <p>Banks. — Protest for Non-Payment of Check. — Damages.—Where it appears that the appellant forbade payment of his own check, because indorsed by a person in a bank, who was not cashier, but who had authority to sign the cashier’s name, and in consequence the check was protested; held, that no damages could be recovered therefor.</p>

<p>Appeal from a judgment of the district court of the fourth district and from an order refusing a new trial, Hon. John W. Blackburn, judge. The opinion states the facts.</p>

' Appeal from a judgment of . the district court of the-third district and from an order refusing a new trial., Hon. George M. Bartch, judge.

John W. Blackburn, judge. , On tbe question of admitting • the testimony of other horses shying, they cited 1 Greenleaf on Evidence, 52-448; Parker v. Portland, 31 Am. Rep.'262; Kidder v. Dunsiable, 11 Gray, 342; Aldrich v. Pelham, 1 Gray, 510. They charged that the court was biased, as shown by its rulings, and evidenced certain passages in the brief, but since the court did not consider them worthy of notice, they are not inserted.

refusing a new trial,. Hon. Charles S. Zane, judge.' Neither the court nor the counsel notice the statute quoted in paragraph 5 of the syllabus. The cause was referred to and tried before Hon. J. W-Harris as referee, who reported findings that were confirmed by the court.

Charles S. Zane, judge. The following further facts are stated in addition to what is stated in the opinion: The suit of L. A. Scott Elliot v. George 0. Whitmore and another was instituted to adjudicate water rights in a certain stream. The cause was tried before Hon. H. P. Henderson and a decree rendered adjudging defendants to be the owners of all the waters of the stream. This decree was reversed on appeal and reported at 8 Utah, 253.

<p>Appeal from an order retaxing costs of the district court of the fourth district, Hon. James A. Miner, judge.</p>

George W. Bartch, judge. The findings showed by the.articles of agreement that the stock was fully paid up, and that no assessment should be levied until the working capital provided for had been exhausted, and that the private property of corporators should not be liable for corporate debts. The sole assignment of error was the assessment was invalid because the treasury stock was not exhausted.

James A. Miner, judge. The complaint was in ejectment for the recovery of a tract of land fully described containing 4£ acres. The answer denied every allegation of the complaint except possession.

Appeal írom a decree of the district court of the second district and from an order refusing a ■ new trial, Hon. T. J. Anderson, judge. The transcript in this case was in a remarkable condition.

H. W. Smith, judge. They claimed that they had made out a case of excusable negligence under sec. 3256, Compiled Laws of 1888.

<p>Appeal from a judgment of the district court of the third district and from- an order refusing a new trial, Hon. Charles S. Zane, judge. The opinion states the facts.</p>

Charles S. Zane, judge. The appeal was taken only by the defendant Salt Lake City. The abstract in this case did not show that the requests to charge were incorporated in the statement, nor that the charge of the court was incorporated therein, nor that any assignment of errors was contained therein.

James A. Miner, judge. The opinion states the facts, ■except the following: These calls were not made, so far as the record shows, in accordance with section 2375 of Compiled Laws of 1888, noticed in Gary v. Mining Go., supra. That article provides for calls by the board of directors, but the call is ■denominated an assessment.