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ture, a few other "chips and whetstones" of balance to be paid within 30 days, and the like character, and a very few thousand dol: $1,000 to be deposited immediately in a named

bank. Defendant owned only one lot on the lars in real money beguiled from the pockets

west side of State street, and the plat in the of men like Leiter and Connell who were recorder's office showed this lot to be 55x165 deceived into believing that they were in- feet, but the abstract books and records of deeds vesting in a real bank and are now awake

showed that defendant had title by warranty

deed to only 5312 feet, and that it had a quitto the actual facts poorer in pocket, but im

claim deed to 12 feet, which 11 feet were in mensely richer in experience.

the adverse possession of other parties. PlainThe decree of the court below will be tiff deposited $1,000 with the bank, and remodified so that plaintiff receive of defendant

ceived a receipt from it, stating that it was on

account of the purchase price of property deRalston the sum of $24,200, with interest at

scribed as a lot 55x165 feet, and that the prop6 per cent. per annum from May 2, 1908, and erty was to be conveyed by warranty deed upon the costs and disbursements of this court and payment of the balance of the purchase price, of the circuit court

but this agreement by the bank was neither authorized nor ratified by defendant. It did not

appear that plaintiff ever examined the plat in JAKIN, J., took no part in the considera- the recorder's office, or the abstract books or tion of this case.

records of deeds or the property itself, or that he saw K. and G. for information, but it did appear that he saw a "real estate man's plat"

which showed the property to be 55x165 feet, TYNG v. CONSTANT-LORAINE INV. CO. before or after paying the $1,000. It did not (No. 2655.)

appear where the bank got its information as to

the size of the lot. There was other evidence (Supreme Court of Utah. Jan. 3, 1916.) justifying a finding that plaintiff understood

that 55 feet were to be conveyed by warranty 1. CORPORATIONS C426_OFFICERS-RATIFI deed. Heid, that while the bank's receipt was CATION OF ACTS BY CORPORATION. .

not evidence of the terms of the contract, it was R., in reply to a telegram from plaintiff's competent evidence to show how plaintiff underbroker, wired an offer to accept $1,000 for a stood the ambiguity in the contract as to the 30-day option to purchase certain property at number of feet which was to be conveyed by a specified price, such $1,000 to be deposited to warranty deed, it having been seen and relied his credit immediately in a named bank, and on by him. such deposit was made by plaintiff. R. was [Ed. Note.-For other cases, see Vendor and president of the defendant corporation, and ti-Purchaser, Cent. Dig. 88 132–135; Dec. Dig. tle to the property was in defendant, and it 80.) made and forwarded to the bank a deed to the

5. VENDOR AND PURCHASER OM 80CONSTRUCproperty. Held, that it thereby ratified the transaction and became bound by whatever

TION OF CONTRACT-EVIDENCE.

There was no sufficient evidence to justify contract was made by R.

a finding that defendant agreed to convey 55 TED. Note. For other cases, see Corporations, feet by a warranty deed, or that it meant or Cent. Dig. $$ 1596, 1702-1704, 1707, 1708, 1710

intended to convey any other or different proper1716; Dec. Dig. 426.)

ty than was owned by it, and the court there2. APPEAL AND ERBOB 1195_LAW OF THE fore erred in submitting the question in an acCASE-NEW TRIAL.

tion to recover back the payment made, as to In an action to recover back a payment on whether it agreed to convey 55 feet by warranty a contract for the sale of land on the ground deed. that defendant did not have title to all of the (Ed. Note.-For other cases, see Vendor and land agreed to be conveyed, the Supreme Court Purchaser, Cent. Dig. 88 132-135; Dec. Dig. held that defendant had neither authorized norm80.] ratified an agreement by a bank with which the

VENDOR AND PURCHASER

2-PERFORMpayment was deposited by defendant's direction, with respect to the terms of the sale, and that ANCE BY VENDOR-TENDER OF DEED. telegrams passing between defendant's president

If plaintiff understood and regarded the and plaintiff's broker evidenced the terms of the contract as an agreement to convey whatever contract. Held, that whether right or wrong,

property defendant owned on the west side of this holding was the law of the case, and was

State Street, defendant performed its agreebinding on a retrial on the same evidence.

ment by tendering a deed warranting title to [Ed. Note.-For other cases, see Appeal and

531/2 feet, and quitclaiming as to 142 feet, and

was under no obligation to return the payment Error, Cent. Dig. 83 4661-4665; Dec. Dig. Om

made. 1195.)

[Ed. Note.--For other cases, see Vendor and 3. EVIDENCE 460—PAROL EVIDENCE TO RE- Purchaser, Cent. Dig. 88 304, 305; Dec. Dig. MOVE AMBIGUITY.

C152.] Where telegrams concerning an option for the sale of real estate described the real estate 17. VENDOR AND PURCHASER 334 FAILURE as "property west side State street," the descrip- OF MINDS TO MEET – RECOVERY OF PAYtion was ambiguous, and extrinsic evidence was

MENTS. competent to aid the ambiguity.

If plaintiff understood the ambiguous con[Ed. Note. For other cases, see Evidence,

tract as an agreement to convey 55 feet by warCent. Dig. 88 2115–2128; Dec. Dig. 460.)

ranty deed, there was no meeting of the minds,

and no contract, and he was entitled to recover 4. VENDOR AND PURCHASER C80 - CON

the amount paid. STRUCTION OF CONTRACT-EVIDENCE.

[Ed. Note.-For other cases, see Vendor and Plaintiff's broker wired defendant, asking Purchaser for its price on property described as “west side

t, asking Purchaser, Cent. Dig. 88 959-980; Dec. Dig.

334.] State" and defendant, after some intervening telegrams in which the broker was referred to 8. VENDOR AND PURCHASEB 341-ACTIONS K, and G. for exact information, wired the bro- -EVIDENCE. ker that it would accept $1,000 for a 30-day The evidence was not so conclusive that option on "property west side State street," the plaintiff understood the contract as an agreement to convey 55 feet by warranty deed to the taxes for 1907. The receipt or writing entitle him to a directed verdict.

further recited that: [Ed. Note.-For other cases, see Vendor and “This deposit is made with the National Bank Purchaser, Cent. Dig. 88 1008-1017; Dec. Dig. |

of the Republic and accepted by them Om 341.)

under

authority of the following telegram from R. A. 9. EVIDENCE Oma 244-DECLARATIONS OF AGENT Rowan: 'Los Angeles, California, Sept. 6-7, -ADMISSIBILITY.

1907. Thomas E. Rowan, Salt Lake, Utah In an action to recover a payment on a Will accept one thousand for thirty days option contract for the purchase of land on the ground for property west side State street. Price fifty that defendant did not have title to all of the thousand subject to twenty thousand mortgages land agreed to be conveyed, defendant contend Balance thirty thousand to be paid in cash on or ed that the contract was made by its president before thirty days from date, Taxes to be propersonally and not by it. Plaintiff was permit rated. One thousand to be deposited to my ted to testify that after a former trial resulting credit immediately with National Bank of Re. in defendant's favor, he had an interview with public, they to notify me by wire. R. A. defendant's president, in which he offered to Rowan.'" discuss the case "man to man" and "settle this

It then is alleged that the Equity Investbetween ourselves," that defendant's president declined to discuss the case, saying that "the ment Company, in paying the money and takjury says it is mine, and I guess it is mine," ing the receipt, acted for the plaintiff and and offered to flip a penny to see who would that he understood and believed that the de take the amount involved. He also testified that nothing was said as to whether his suit lay

fendant was the owner and in possession of against defendant or the president. Held, that 55x165 feet, and that it legally could convey this was not admissible to contradict defendant's that much ground by warranty deed, and claim that if any one was liable it was its presi- / that the

1- that the Equity Investment Company, immedent and not it, or to show its reason for withholding the money, as the president by virtue of diately upon paying the money, made over his office had no authority to make admissions and assigned the bank's receipt or writing to against defendant as to past events.

the plaintiff. It further is alleged that on [Ed. Note.-For other cases, see Evidence, the 9th of October, 1907, and within the opCent. Dig. 88 916-936; Dec. Dig. Om 244.)

tion period, the plaintiff tendered the sum of Appeal from District Court, Salt Lake $29,000 and demanded a warranty deed, but County; F. C. Loofbourow, Judge.

that the defendant tendered a warranty deed Action by Charles Tyng against the Con- for only 5342x165 feet and a quitclaim for stant-Loraine Investment Company. Judg. 11x165 feet. This the plaintiff declined to ment for plaintiff, and defendant appeals. accept and averred that the defendant was Reversed and remanded.

the owner and in possession of only 5342x165 See, also, 37 Utah, 304, 108 Pac. 1109. feet, and that it, at no time, was the owner

Howat. Macmillan & Nebeker, of Salt Lake or in possession of the 112x165 feet, which, City, for appellant. Pierce, Critchlow & Bar- as is a verred, was possessed and held adrette, of Salt Lake City, for respondent. versely by another, by reason of which the

defendant, at no time, could grant or convey STRAUP, C. J. The substance of the com- any interest therein, but of which the plainplaint is, that the defendant, a resident cor- tit had no knowledge until after the pay. poration of California doing a real estate ment of the $1,000. It further is alleged that business, was, subject to a $20,000 mortgage, the deed tendered by the defendant "was not "the record owner, as appeared from the plat in conformity with the terms of said opbooks and other records in the office of the tion on offer or agreement to sell" as evicounty recorder of Salt Lake county, Utah,"denced by the bank's receipt and writing; of particularly described real property, a lot that upon the defendant's failure to give a 55x165 feet, on the west side of State street, warranty deed for the whole of the 55 feet, in the city of Salt Lake; that the defendant, the plaintiff demanded a return of the $1,000 on the 9th of September, 1907, gave the theretofore paid, which was refused. Hence Equity Investment Company, a Utah corpo- the plaintiff prayed judgment for $1,000 and ration doing a real estate business in Salt interest. Lake City, an option to purchase the proper. The case was tried to a jury who rendered ty subject to the mortgage, for $30,000, $1,000 a verdict in plaintiff's favor in accordance cash, and $29,000 on or before 30 days there with the prayer of the complaint. The deafter, and that in pursuance thereof, the fendant appeals and urges that the court Equity Investment Company, for the crediterred in refusing to direct a verdict, to of the defendant, deposited with the National charge the jury as requested, in misdirecting Bank of the Republic at Salt Lake City, the jury, and in permitting answers to be $1,000, and took the bank's receipt therefor, made to certain questions propounded to the which, so far as material, acknowledged pay-plaintiff as a witness. ment of the $1,000 "on account of the pur- As shown by the records in the recorder's chase price" of the property described in the office of Salt Lake County, one Colgate, in complaint, a lot 55x165 feet, and recited the 1903, by warranty deed, conveyed the lot, further payment of $29,000, to be made with-55x165 feet, to one Halloran. In June, 1905, in 30 days thereafter, when the property was Halloran, by warranty deed, conveyed 535 to be deeded by warranty deed, free from x165 feet, and by quitclaim 14x165 feet, to all incumbrances, except the mortgage, and R. A. Rowan of Los Angeles. In December, 1905, Rowan, by warranty deed, conveyed | R. A. Rowan, the next day replied: 53x165 feet, and by quitclaim 142x165 feet “Will accept one thousand for thirty days' to the defendant, and in July, 1908. the option for property west side State street, price defendant, by R. A. Rowan, its president, gage. Balance thirty thousand to be paid in

fifty thousand, subject to twenty-thousand mortand P. D. Rowan, its secretary, by warran-cash on or before thirty days from date." Taxes ty, conveyed 5342x165 feet, and by quit- to be prorated. One thousand to be deposited daim xec foot to one Snelle Salt | to my credit immediately with the National

Bank of the Republic; they to notify me by Lake City. The plat in the recorder's of-wire." fice shows the lot to be as conveyed by

Upon payment of $1,000 to the Equity Colgate to Halloran, 55x165 feet. When

Company by the plaintiff, that company, on thereafter it was conveyed by Halloran

the 9th of September, deposited the $1,000 and Rowan, 5342 by warranty and 112 by

with the National Bank of the Republic to quitclaim, the plat continued to show the lot

the credit of R. A. Rowan, whereupon the to be 55x165 feet, and showed the necessary

bank gave the Equity Company the receipt substitutions of names of grantees. The re

and writing heretofore referred to, and in corder testified that when conveyances are

which it is stated that the lot, described as made either by warranty or quitclaim, no

55x165 feet, was to be conveyed by warranty change as to the description or dimension of

to the Equity Company on the further paythe lot conveyed is made on the plat, but

ment of $29,000 within 30 days thereafter. that the grantee's name merely would be

Up to this point the name of the defendant changed. He further testified that:

nowhere appeared in any of the telegrams, "Colgate having given a warranty deed to all of the 55 feet, we don't question whether he

The writings, or negotiations. The receipt itowned it or not; so that the plat itself would self is signed alone by the bank, and on its not reveal whether the man or the corporation face purports to be signed on authority of in whose name the property stood held title by the telegram from R. A. to T. E. Rowan. warranty or quitclaim deed; in order to ascertain that it would be necessary to go to the It, however, 18 shown that R. A. Rowan deeds themselves or to the abstracts. We have then was the president of the defendant and an abstract book of all the transactions; a mere that it did some business in Salt Lake City, glance at that abstract book will show whether it is a quitclaim deed or what it is,"

buying, selling, and renting real estate, had

a bank account with the National Bank of —and that the record of deeds showed the

the Republic in the name of R. A. Rowan, character of title acquired and held by the

and that at the time of the negotiations, and defendant. Thus, the plat in the recorder's

for nearly 2 years prior thereto, it, and not office indicated that the defendant was the

Rowan, was the owner of the property, and owner of a lot 55x165 feet; but whether by

through R. A. Rowan as its president, and warranty or quitclaim deed would not there

another as its secretary, about a year therebe disclosed. The abstract book and records

after, conveyed the property to Snell. It of deeds, however, readily disclosed the de

further is made to appear that R. A. Rowan, fendant's title, and the number of feet of

on the 20th of September, 1907, sent to the ground 5342 feet it had by warranty and 149

National Bank of the Republic a deed from by quitclaim, the same as was conveyed to

the defendant, conveying the lot to the Eqit by Rowan and by Halloran to Rowan.

uity Company, 5312 feet by warranty and 113 Some time prior to September 4, 1907, the

feet by quitclaim, to be delivered on payplaintiff informed the Equity Investment

ment of $29,000 on or before the 9th of Company that he was desirous of purchasing

October, 1907. The plaintiff, on the 9th, tenproperty on the west side of State street, be

dered $29,000 to the bank who, in return, tween Second and Third South, and in the

tendered the deed forwarded to it. The block where the property in question is lo

| plaintiff declined to accept that and demandcated. In pursuance of that, one T. E. Row

ed a warranty deed to 55 feet. The bank an, a real estate agent at Salt Lake City, but

was unable to make a tender of such a deed, not related to the Rowans at Los Angeles,

whereupon the plaintiff demanded repaynor in any manner connected with the de

ment of the $1,000. Here we thus have the fendant, on September 4, 1907, wired R. W.

propositions concerning which the parties Rowan at Los Angeles:

disagree. By the defendant it is contended “Advise cash price west side State, taxes prorated, whether leased."

that whatever agreement was entered into R. W. Rowan, the next day replied:

was made between the plaintiff and R. A. “Will accept fifty thousand.

Rowan and not between the plaintiff and the

Property now mortgaged for twenty thousand at five per cent.

defendant, and that in all events the defendLeases very short. See Kelsey and Gillespie for ant had tendered a deed to the whole of the exact information. Several people now figuring property owned by it and to all of the gi und on this property. Doubtless will be sold, as fig. | ure named is ten thousand less than its present

it, or Rowan, by the terms of the option, had value."

agreed to convey. By the plaintiff it is conThe same day, T. E. Rowan wired R. A. I tended that the

tended that the contracting parties were Rowan:

himself and the defendant, and that by the “Responsible party offers one thousand for

terms of the option the defendant bad agreed thirty days' option, recommend."

to give a warranty deed to 55x165 feet, and hence in fulfillment of the contract was re- 1 grams. The serious question is: What conquired to convey by warranty that much tract in such respect was made? As has been ground.

seen, we, on the former trial, held that neiThe case was here on a former appeal. ther Rowan nor the defendant authorized the 37 Utah, 304, 108 Pac. 1109. On that trial bank to make a contract to convey 55x165 the plaintiff was let to the jury and permit feet by warranty, or to make any agreement ted to recover on the theory that the receipt with respect to the terms of the option, or or writing given by the bank to the Equity that either ratified the writing which the Company, wherein it was recited that 55x165 bank gave in such particular. We also held feet were to be conveyed by warranty, evi that the telegrams which passed between denced the terms of the option, and that the Thomas E. Rowan and R. A. Rowan evibank was authorized by the defendant to denced the terms of the option. Whether give such a writing, or, that it, with full right or wrong, our holding as to that is the knowledge that such a writing had been law in the case and was binding on a retrial given by the bank, had ratified it. On that on the same evidence. The evidence as to appeal we held that there was no evidence the bank's authority to give the writing, or to justify findings that the defendant had as to the defendant's ratification thereof, is authorized the making of such a contract, the same on this as on the other trial. And or that it had ratified it, and hence that the so was it regarded by the trial court, and case was submitted to the jury on a theory for that reason were all questions as to such unsupported by evidence. We thus reversed authority and ratification withheld from the the judgment and remanded the case for a jury. The writing which the bank gave can new trial. Our views as to that are given therefore not be looked to for the terms of in our former opinion. On the retrial, while the option. For that we must look elsethe receipt or writing given by the bank was where, primarily to the telegrams. In them put in evidence, the court, nevertheless, we have the offer, acceptance, and terms of charged the jury that there was no evidence the option. Everything therein expressed is to show that the defendant had either au- sufficiently definite and certain, except the thorized or ratified the writing, and that description of the property. The description hence the recital in the receipt, to convey stated in the telegrams is, "property west 55x165 feet by warranty deed, was not bind- side State street." That, of course, is aming on the defendant. Thus on the retrial biguous. It was competent to aid the ambithe case was withheld from the jury on such guity by extrinsic evidence, which the parties theory. It was submitted on the theory of were permitted to do. The further question whether the defendant, independently of that is: Was the ambiguity sufficiently aided to writing, had agreed to convey by warranty ascertain the intention of the parties as ex55 feet, or only the ground and title tendered pressed by them in the contract? It is clearby it, 5312 by warranty and 142 by quitclaim, ly enough shown just where the lot is, and The court also charged that to find for the that the defendant owned but one lot on the plaintiff the jury were required to find that west side of State street. By extrinsic evihe “in good faith, made the payment to the dence it also is made to appear that the plat defendant of $1,000 as an acceptance of the in the recorder's office showed the lot to be offer contained in the telegrams, and that 55x165 feet. It, however, is just as clearly the defendant company wrongfully failed to made to appear by the abstract books and perform its part of the contract resulting records of deeds that the title which the from said transactions."

defendant had by warranty deed was only to [1-4] A point is made that there is no evi 5312 feet and 142 feet by quitclaim. It also dence to show that R. A. Rowan, in sending is made to appear that on the 1% feet stood the telegrams, or in anything that he did, a wall of an old two-story house adversely acted for the defendant, or that the $1,000 possessed and held by another. To aid the which was paid to the bank was deposited to ambiguity, "property west side State street," the credit of the defendant, or for its benefit, we do not think the plat in the recorder's or that it received the money, it, in such office was alone conclusive as to what was respect, being contended that Rowan acted intended by the parties. That, of course, was for himself, and that the money was deposit some evidence of their intention, and some ed to his credit and for his benefit. While evidence as to what they meant by the laneverything was done in the name of R. A. guage, "property west side State street." Rowan, except the making of the deed which | But the abstract book and the records of was in the defendant's name, still there is deeds also were evidence for the same pursufficient evidence to justify findings that pose. It is not shown that the plaintiff, beRowan acted for the defendant, and that it fore he paid the $1,000, saw the plat in the received the money deposited in the bank. recorder's office, or the abstract books or At any rate, the defendant, by making and records of deeds, or even examined the propforwarding the deed to the bank, ratified the erty to ascertain its frontage, or that he transaction to convey whatever west side saw Kelsey and Gillespie for information as State street property was owned by it, upon was stated in one of the telegrams he could

"regular real estate man's plat" which show., ambiguity, "property west side State street," ed the property to be 55x165 feet, just as is about as doubtful as it was before. indicated by the plat in the recorder's of- [5-8] Upon the record we deduce these fice. But it is not made to appear that he propositions: Since the writing given by the even saw that before he paid the $1,000. 'So bank was neither authorized nor ratified, far as disclosed by the record it is not made there is no sufficient evidence to justify a to appear just what information as to the finding that the defendant had agreed to conexact number of feet in the lot the plaintiff vey 55 feet by warranty, or that it, by the had prior to, or at the time of, the payment ambiguous phrase, meant, or intended, to of the $1,000, except as recited in the writ-convey any other or different property than ing given by the bank that the lot was 55x165 was owned and tendered by it. Hence the feet, and that a warranty deed was to be court erred in submitting the case to the jury given for that much ground. Nor is it made on the theory that the defendant had agreed to appear from what source the bank got to convey 55 feet by warranty and in binding information as to the number of feet of the jury as was done, that to render a verground to be conveyed or what induced it to dict for the plaintiff the jury was required give a receipt calling for 55 feet. Certain to find that the defendant had agreed to conit is the telegram pointed to by it in its re vey 55 feet by warranty. As to the plaintiff's ceipt as authority to accept the money, gave understanding of the ambiguity, and in what it no such authority, and, indeed, gave it sense he regarded the contract, there are two no authority to make or specify any of the views: One is, that he understood and re terms of the option to purchase. And we garded it in the sense that the defendant unthink the bank, by the recital of the telegram derstood it and as tendering by its convey. in hæc verba, disclosed just what authority ance, whatever property was owned by it on it had, that of a mere depositary. After the the west side of State street. If so, then the payment of the $1,000, and when the abstract minds of the parties met; then did the deof title was examined by plaintiff's counsel, fendant tender a deed in accordance with it was discovered that the defendant bad the agreement: and the

the agreement; and then was there no breach title by warranty to only 5342 feet and a and no obligation to return the $1,000. The quitclaim to 142 feet. Then it was that he other view is, that the plaintiff understood and his counsel visited the premises and the ambiguity to mean a conveyance by warfound the wall of the house on the 116 feet. ranty of 55 feet. If so, then the minds of There, however, is evidence to justify a find the parties did not meet; then was there no ing that the plaintiff believed and understood contract; and then was the plaintiff entitled that the defendant was to convey 55 feet by to a return of the $1,000 paid by him, not on warranty deed. That is supported by the the theory of any breach of contract, but bank's receipt which, while not competent, of money bad and received. And for that because unauthorized, to show the terms of reason was the defendant not entitled to a the option, nevertheless, as it was seen and direction of a verdict. On such view—the relied on by the plaintiff when the $1,000 view that the minds of the parties had not was paid, was competent with other matters met as to what was agreed to be sold and to show how he regarded the ambiguity and

conveyed, and, therefore, if the jury so found understood the contract as to the number of the facts, the plaintiff was entitled to a refeet which, by its terms, was to be conveyed turn of the $1,000—the plaintiff asked to go by warranty. But since it is not made to ap- to the jury; and, as appears by his requests, pear that the defendant or Rowan, its presi

that was the only view on which he asked dent, had, prior to plaintiff's refusal of the

a submission of the case. The court refused defendant's tender, knowledge of the terms

the requests or to submit the case on such of the bank's receipt calling for a convey

theory; but, as has been seen, submitted it ance of 55 feet by warranty, the receipt was

on the theory alone of whether the parties, not evidence to show either the terms of

independently of the recitals in the bank's the contract or in what sense the defendant understood them with respect to the ambigu

| receipt, and especially as evidenced by the

telegrams, had entered into an agreement ity. We also think there is other evidence to

| to convey 55 feet by warranty, or only 5312 justify a finding that the plaintiff, by the ambiguity, believed and understood that 55

feet by warranty and 142 feet by quitclaim. feet of ground was to be conveyed by war

Notwithstanding there are no cross-assign

ments, and no request or motion in the court ranty. On the other hand, there is evidence to show that, had he, before he paid the $1,

below on behalf of the plaintiff to direct a 000, inspected the records to ascertain what

verdict in his favor, he, nevertheless, in de"property west side State street. the de. fense of the verdict and judgment, urges an fendant had, the exact number of feet which aflirmance, on the theory embodied in his it owned and was capable of conveying by refused requests. Since this is a law case in warranty could have been ascertained, and which our power to review-except jurisdicthus he could have known just what the de- tional matters—is restricted to assignments fendant meant by the phrase, "property west of error, and where we may not, as in equity, side State street." Thus, when the extrinsic look into the evidence to determine the cor

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