R. A. Rowan, the next day replied: "Will accept one thousand for thirty days' option for property west side State street, price fifty thousand, subject to twenty-thousand mortgage. Balance thirty thousand to be paid in cash on or before thirty days from date. Taxes to be prorated. One thousand to be deposited Bank of the Republic; they to notify me by to my credit_immediately with the National 1905, Rowan, by warranty deed, conveyed changed. He further testified that: "Colgate having given a warranty deed to all of the 55 feet, we don't question whether he owned it or not; so that the plat itself would not reveal whether the man or the corporation in whose name the property stood held title by warranty or quitclaim deed; in order to ascertain that it would be necessary to go to the deeds themselves or to the abstracts. We have an abstract book of all the transactions; a mere glance at that abstract book will show whether Some time prior to September 4, 1907, the plaintiff informed the Equity Investment Company that he was desirous of purchasing property on the west side of State street, between Second and Third South, and in the block where the property in question is located. In pursuance of that, one T. E. Rowan, a real estate agent at Salt Lake City, but not related to the Rowans at Los Angeles, nor in any manner connected with the defendant, on September 4, 1907, wired R. W. Rowan at Los Angeles: Upon payment of $1,000 to the Equity Company by the plaintiff, that company, on the 9th of September, deposited the $1,000 with the National Bank of the Republic to the credit of R. A. Rowan, whereupon the bank gave the Equity Company the receipt and writing heretofore referred to, and in which it is stated that the lot, described as 55x165 feet, was to be conveyed by warranty to the Equity Company on the further payment of $29,000 within 30 days thereafter. Up to this point the name of the defendant nowhere appeared in any of the telegrams, The receipt itwritings, or negotiations. self is signed alone by the bank, and on its face purports to be signed on authority of the telegram from R. A. to T. E. Rowan. It, however, is shown that R. A. Rowan then was the president of the defendant and that it did some business in Salt Lake City, buying, selling, and renting real estate, had It a bank account with the National Bank of the Republic in the name of R. A. Rowan, and that at the time of the negotiations, and for nearly 2 years prior thereto, it, and not Rowan, was the owner of the property, and through R. A. Rowan as its president, and another as its secretary, about a year thereafter, conveyed the property to Snell. further is made to appear that R. A. Rowan, on the 20th of September, 1907, sent to the National Bank of the Republic a deed from the defendant, conveying the lot to the Equity Company, 53% feet by warranty and 11⁄2 feet by quitclaim, to be delivered on payment of $29,000 on or before the 9th of October, 1907. The plaintiff, on the 9th, tendered $29,000 to the bank who, in return, tendered the deed forwarded to it. plaintiff declined to accept that and demanded a warranty deed to 55 feet. The bank was unable to make a tender of such a deed, The whereupon the plaintiff demanded repayment of the $1,000. Here we thus have the propositions concerning which the parties disagree. By the defendant it is contended "Advise cash price west side State, taxes pro- that whatever agreement was entered into rated, whether leased." R. W. Rowan, the next day replied: "Will accept fifty thousand. Property now mortgaged for twenty thousand at five per cent. Leases very short. See Kelsey and Gillespie for exact information. Several people now figuring on this property. Doubtless will be sold, as figure named is ten thousand less than its present was made between the plaintiff and R. A. Rowan and not between the plaintiff and the defendant, and that in all events the defendant had tendered a deed to the whole of the property owned by it and to all of the ground it, or Rowan, by the terms of the option, had agreed to convey. By the plaintiff it is conThe same day, T. E. Rowan wired R. A. 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 had agreed thirty days' option, recommend." to give a warranty deed to 55x165 feet, and value." hence in fulfillment of the contract was re- | grams. The serious question is: What con tract in such respect was made? As has been seen, we, on the former trial, held that neither Rowan nor the defendant authorized the bank to make a contract to convey 55x165 feet by warranty, or to make any agreement with respect to the terms of the option, or that either ratified the writing which the bank gave in such particular. We also held that the telegrams which passed between Thomas E. Rowan and R. A. Rowan evidenced the terms of the option. Whether right or wrong, our holding as to that is the law in the case and was binding on a retrial on the same evidence. The evidence as to the bank's authority to give the writing, or as to the defendant's ratification thereof, is the same on this as on the other trial. And so was it regarded by the trial court, and for that reason were all questions as to such authority and ratification withheld from the jury. The writing which the bank gave can therefore not be looked to for the terms of the option. For that we must look elsewhere, primarily to the telegrams. In them we have the offer, acceptance, and terms of the option. Everything therein expressed is sufficiently definite and certain, except the description of the property. The description stated in the telegrams is, "property west The case was here on a former appeal. 37 Utah, 304, 108 Pac. 1109. On that trial the plaintiff was let to the jury and permitted to recover on the theory that the receipt or writing given by the bank to the Equity Company, wherein it was recited that 55x165 feet were to be conveyed by warranty, evidenced the terms of the option, and that the bank was authorized by the defendant to give such a writing, or, that it, with full knowledge that such a writing had been given by the bank, had ratified it. On that appeal we held that there was no evidence to justify findings that the defendant had authorized the making of such a contract, or that it had ratified it, and hence that the case was submitted to the jury on a theory unsupported by evidence. We thus reversed the judgment and remanded the case for a new trial. Our views as to that are given in our former opinion. On the retrial, while the receipt or writing given by the bank was put in evidence, the court, nevertheless, charged the jury that there was no evidence to show that the defendant had either authorized or ratified the writing, and that hence the recital in the receipt, to convey 55x165 feet by warranty deed, was not bind-side State street." That, of course, is aming on the defendant. Thus on the retrial the case was withheld from the jury on such theory. It was submitted on the theory of whether the defendant, independently of that writing, had agreed to convey by warranty 55 feet, or only the ground and title tendered by it, 532 by warranty and 11⁄2 by quitclaim. The court also charged that to find for the plaintiff the jury were required to find that he "in good faith, made the payment to the defendant of $1,000 as an acceptance of the offer contained in the telegrams, and that the defendant company wrongfully failed to perform its part of the contract resulting from said transactions." [1-4] A point is made that there is no evidence to show that R. A. Rowan, in sending the telegrams, or in anything that he did, acted for the defendant, or that the $1,000 which was paid to the bank was deposited to the credit of the defendant, or for its benefit, or that it received the money, it, in such respect, being contended that Rowan acted for himself, and that the money was deposited to his credit and for his benefit. While everything was done in the name of R. A. Rowan, except the making of the deed which was in the defendant's name, still there is sufficient evidence to justify findings that Rowan acted for the defendant, and that it received the money deposited in the bank. At any rate, the defendant, by making and forwarding the deed to the bank, ratified the transaction to convey whatever west side State street property was owned by it, upon payments being made as specified in the tele biguous. It was competent to aid the ambiguity by extrinsic evidence, which the parties were permitted to do. The further question is: Was the ambiguity sufficiently aided to ascertain the intention of the parties as expressed by them in the contract? It is clearly enough shown just where the lot is, and that the defendant owned but one lot on the west side of State street. By extrinsiċ evidence it also is made to appear that the plat in the recorder's office showed the lot to be 55x165 feet. It, however, is just as clearly made to appear by the abstract books and records of deeds that the title which the defendant had by warranty deed was only to 53% feet and 12 feet by quitclaim. It also is made to appear that on the 1% feet stood a wall of an old two-story house adversely possessed and held by another. To aid the ambiguity, "property west side State street," we do not think the plat in the recorder's office was alone conclusive as to what was intended by the parties. That, of course, was some evidence of their intention, and some evidence as to what they meant by the language, "property west side State street." But the abstract book and the records of deeds also were evidence for the same purpose. It is not shown that the plaintiff, before he paid the $1,000, saw the plat in the recorder's office, or the abstract books or records of deeds, or even examined the property to ascertain its frontage, or that he saw Kelsey and Gillespie for information as was stated in one of the telegrams he could do for "exact information." He did see a "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 reterms 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 conveyin 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 had the agreement; and then was there no breach title by warranty to only 532 feet and a and no obligation to return the $1,000. The quitclaim to 1% 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 1% 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 had 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 conveyance of 55 feet by warranty, the receipt was not evidence to show either the terms of the contract or in what sense the defendant understood them with respect to the ambiguity. We also think there is other evidence to justify a finding that the plaintiff, by the ambiguity, believed and understood that 55 feet of ground was to be conveyed by warranty. On the other hand, there is evidence to show that, had he, before he paid the $1,000, inspected the records to ascertain what "property west side State street," the defendant had, the exact number of feet which it owned and was capable of conveying by warranty could have been ascertained, and thus he could have known just what the defendant meant by the phrase, "property west side State street." Thus, when the extrinsic theory; but, as has been seen, submitted it on the theory alone of whether the parties, independently of the recitals in the bank's receipt, and especially as evidenced by the telegrams, had entered into an agreement to convey 55 feet by warranty, or only 531⁄2 feet by warranty and 11⁄2 feet by quitclaim. Notwithstanding there are no cross-assignments, and no request or motion in the court below on behalf of the plaintiff to direct a verdict in his favor, he, nevertheless, in defense of the verdict and judgment, urges an affirmance, on the theory embodied in his refused requests. Since this is a law case in which our power to review-except jurisdictional matters-is restricted to assignments of error, and where we may not, as in equity, look into the evidence to determine the cor no motion nor request to direct a verdict in | conversation, was said as to whether "your plaintiff's favor, nor even any assignment lawsuit lay against" the defendant or Rowan, presenting the rulings refusing his request, and over further objections was permitted to our power to affirm the judgment on the theo- answer that "nothing was said." ry of money had and received is doubtful, even though on a review of the evidence it should appear that such a direction, had it been asked, would have been justified. But looking into the record as we have, we, as already indicated, are of the opinion that the evidence is not so conclusive as to have entitled the plaintiff to such a direction had such a request been asked or motion made. So too, apparently, was the case regarded by the plaintiff himself, and hence asked for no such direction as matter of law, but for a submission as matter of fact. Thus is it apparent that to now affirm the judgment on the theory urged would be to infringe upon the right to trial by jury and to uphold the judgment upon a wholly different theory from that on which the case was submitted. The judgment, therefore, must be reversed, and the case again remanded for a new trial. [9] There is another point presented. The plaintiff, over the defendant's objection, was permitted to testify to a conversation he had in California with R. A. Rowan nearly a year after the commencement of the action, and after a trial of the cause resulting in a verdict in the defendant's favor. The This testimony was permitted on the theory, putting it in the language of plaintiff's counsel, that "any observations of the president of this company upon the matters in issue between the plaintiff and the defendant are competent testimony whether it be admissions against interest or what it may be," and of an implied admission to dispute the defendant's claim, that if any one was liable to the plaintiff, the liability was Rowan's and not the defendant's. It is quite clear no authority was shown on behalf of Rowan to then make admissions against the defendant as to past events. No such authority can be implied from the fact that he was an agent or officer of the defendant. 3 Clark and Marshall, Private Corporations, § 727; Meyers v. Railroad, 36 Utah, 307, 104 Pac. 736, 21 Ann. Cas. 1229; Idaho v. Insurance Company, 8 Utah, 41, 29 Pac. 826, 17 L. R. A. 586. Here it also is urged that the evidence was material as bearing on "the question of a demand of the money and as showing the reason why the same was withheld by the defendant." That but involves the same principle, binding the principal by the admission of an assumed agent, not made in the course of a transaction or in the course of any business then being conducted for and on behalf of the principal, but wholly as to past events, without even a showing that any agency at all then existed between the defendant and Rowan. It further is argued that the testimony was harmless. Because it so slightly tended to prove what was claim plaintiff, in such respect, testified that in November, 1908, while visiting in California, he entered Rowan's office, and, on being presented to him, Rowan said: "You are the fellow who is suing me," and after inviting him to his room asked what he could do for him. The plaintiff replied: "I just happened to be passing, and looked up here and saw your windows, and seeing that I had a law-ed for it, it does not appear to be very harmful. Still, the testimony, in some slight desuit with you I thought I would come up gree, affords a basis of just such arguments and discuss it man to man. I thought possibly I could show you I was right or wrong, fendant's "observations on the matters in as are made concerning it, to show the deand we might settle this between ourselves." issue," and showing "a demand of the money Rowan, after calling for the correspondence and the reason why it was withheld by the in his office, and looking over it, said: "Tyng, defendant." To that extent it may have I don't know as I want to discuss this done harm; at least it is hard to say it did no harm. It involved not only matters of incompetency, but also of irrelevancy; an apparent fairness on the part of the plaintiff to adjust his controversy out of court, "man to man," and the defendant's willingness to hazard its claim or defense on a "flip of a penny." The testimony probably was not so harmful as to alone require a reversal of the judgment. thing with you. The jury says it is mine, and I guess it is mine. Come on, let's go out and see, the town." As they were leaving, Rowan said: "Tyng, I will flip a penny with you to see who takes the $1,000." Tyng said: "Rowan, I am a pretty good gambler, but I never yet flipped a penny for a thousand dollars." Rowan thereupon said: "That $1,000 is mine. If you had called the bluff, I probably would have backed down." Plaintiff testified that thereupon they left, and that he was shown the town by Rowan, and that "we were two pretty good friends; that is all there was about it." Then the plaintiff was asked what, if anything, in that But for the reasons heretofore given, to gether with this, the judgment is reversed and the case remanded for a new trial. Costs to appellant. FRICK and MCCARTY, JJ., concur. TION. Comp. Laws 1907, § 2561, as amended by Laws 1909, c. 63, provides, relative to the ap portionment of the property and franchises of railroad and other companies operating in more than one county for purposes of taxation, that the state board of equalization shall before the fourth Monday in June transmit to the county auditor of each county a statement showing the property assessed and its assessed value, as fixed and apportioned to such county. Section 2562 provides that on the second Monday in August the board of county commissioners of each county must enter an order stating and declaring the property assessed by the state board, and that such board shall apportion the assessed valuation of the property and franchises of railroad companies so apportioned to the county to the several city, town, or other lesser taxing districts in the county. Section 2588, as amended by Laws 1909, c. 63, requires the state board, before the last Monday in July, to determine the rate of state tax, and section 2593, as amended by Laws 1915, c. 111, requires the board of county commissioners of each county to fix the rate of county taxes between the last Monday in July and the second Monday in August. Held that, where the state board by mistake apportioned to a county railroad property which it afterwards became satisfied was located in and should have been apportioned to a different county, it had jurisdiction, at any time before the second Monday in August, to correct the error and make the apportionment to the proper county.1 [Ed. Note. For other cases, see Taxation, Cent. Dig. § 472; Dec. Dig. 299.] 299 2. TAXATION APPORTIONMENT BY STATE BOARD OF EQUALIZATION-REVIEW BY CERTIORARI. Where, owing to the topography of the country and the somewhat uncertain legislative description of the boundary line between R. and S. counties, the precise location of such line was doubtful, its location was a question of fact, and, where the state board of equalization acted in good faith and in accordance with its best judgment in determining where the boundary line was located and in apportioning railroad property in S. county for taxation which it was claimed was situated in R. county, it did not exceed its jurisdiction so as to make its acts subject to a writ of certiorari, even though it was afterwards determined by a higher authority that the property was in R. county. [Ed. Note.-For other cases, see Taxation, Cent. Dig. § 472; Dec. Dig. 299.] 4. TAXATION ~~299 APPORTIONMENT BY STATE BOARD OF EQUALIZATION CONCLU SIVENESS. The state board of equalization's determination, in apportioning railroad property for taxation, as to the location of the boundary line between adjoining counties must at some time become conclusive for the current year, and that time arrives when all of the apportionments, including those to lesser taxing units. have been made and the taxes have been levied for the year.2 Cent. Dig. § 472; Dec. Dig. 299.] [Ed. Note.-For other cases, see Taxation, 5. TAXATION 299 APPORTIONMENT BY STATE BOARD OF EQUALIZATION-REVIEW BY CERTIORARI. Where an application for a writ of certiorari to review the action of the state board of equalization in apportioning to S. county for taxation railroad property claimed to be located in R. county was not applied for until after the second Monday in August, the date on which apportionments were required to be made by the county commissioners of the several counties of the state to the lesser taxing units, and the board did not clearly exceed its powers or jurisdiction, a peremptory writ would not be granted, in view of the disturbance of apportionments and tax levies in S. county and the mischievous consequences which would result.3 [Ed. Note.-For other cases, see Taxation, Cent. Dig. § 472; Dec. Dig. 299.] Certiorari by Rich County against William Bailey and others, constituting the State Board of Equalization of the State of Utah. Writ quashed, and application dismissed. Howat, Macmillan & Nebeker, of Salt Lake City, for plaintiff. P. H. Neeley, of Coalville, and A. R. Barnes, Atty. Gen., for de fendants. FRICK, J. On the 11th day of August, 1915, one W. T. Rex, as chairman of the board of county commissioners of Rich county, filed an application in this court in behalf of said county praying for a writ of certiorari. In the application he prayed that William Bailey, John Watson, Harden Bennion, and Amos G. Gabbot, constituting the state board of equalization of Utah, hereinafter called defendants, be required by this court to show cause why said defendants should not annul certain acts or proceedings relating to the apportionment of certain railroad property, which proceedings, it was alleged, are illegal. In said application, after stating the necessary matters of inducement, it was, in substance, alleged that the Union Pacific Railroad Company, hereinafter called Company, owned and operated a certain line of railroad through certain counties of this state, and that a portion of such railroad is in Rich county and is subject to taxation therein; that on the 16th day of February, 1915, said company filed with said defend Juab County v. Bailey, 44 Utah, 377, 140 Pac. 764. Juab County v. Bailey, 44 Utah, 377, 140 Pac. 764; Crosby v. Probate Court, 3 Utah, 53, 5 Pac. 552. |