Messrs. Sutherland & McBride, for appellant. BOREMAN, J.: On the 7th day of March, 1879, the defendants (respondents) and the plaintiff (appellant) had an agreement drawn up, wherein the defendants and one William C. Rydalch were named as the parties of the first part, and the plaintiff was named as the party of the second part. The agreement was signed by the defendants and by the plaintiff. Rydalch was not present and did not sign it. In this shape it was left with one Thomas Williams. Rydalch's name was never thereafter signed to it. The purport of the agreement was that the parties of the first part agreed to sell to the party of the second part a certain piece or parcel of land, the consideration being $2,000. The consideration was to be paid in live-stock, at specified rates of value, and to be delivered at a specified place, and if any of the stock, not exceeding $500 in value, should not be delivered by the 1st of September, 1879, the party of the second part was to give a note for such unpaid sum, drawing six per cent. interest per annum. Stock to the value of $1,568 was delivered within the time, leaving the sum of $432 unpaid on the 1st of September, 1879, and to be paid thereafter, and for which a note was, under the contract, to be given. According to the findings not excepted to, the sum last named was never paid or tendered to be paid. not having reached any settlement or conclusion as regards the further performance of the agreement, the plaintiff on the 6th of May, 1885, gave notice to the defendants that the contract was rescinded, and that he had vacated the premises which he had held possession of from the time of making the contract, and he demanded a repayment to him of $1,600, and interest thereon, in all amounting to $2,500. The reason stated in the notice for the rescission was that the defendant had failed to convey or caused to be conveyed to the plaintiff the land in question. On the same day a deed, dated 15th April, 1885, and signed by the defendants and by Rydalch, was shown to the plaintiff, and The parties he declined to receive it, because it was not acknowledged, and for other reasons. Subsequently, on the 20th day of May or of June, 1885, the same deed, with notary's seal to the acknowledgment, was tendered to him, but it was also declined, on the ground that it was too late, as he had removed from the land and rented another place, and the contract had been rescinded. Thereafter, in September following, the plaintiff instituted this action. Trial being had before the court, a jury having been waived, judgment was rendered for the defendants. A motion for a new trial having been made and overruled, the plaintiff has appealed to this court from the judgment and from the order overruling the motion for a new trial. The plaintiff assigns as error the making of the third, fourth and fifth findings of fact, as being unsupported by the evidence. We have examined the evidence with care, and find that there was a substantial conflict of evidence on each of the points set forth in the findings. If we should take the evidence in behalf of the plaintiff alone, then of course the findings would be wrong, but this cannot be done. We must take the evidence introduced upon both sides, and then upon the well settled rule (often recognized in this court) if there is a substantial conflict of evidence, this court will not disturb the decision of the court below upon the assumption that it is not supported by the evidence. It is the policy of the law to leave questions of fact very much in the hands of juries, or of the court sitting as a jury, and unless the appellate court can see that the facts proven are very strongly against the verdict or decision, and there is no substantial conflict, it is not justified in holding that there is not evidence to support such verdict or decision. The appellant alleges that the lower court erred in holding that the plaintiff did not, on the facts of the case, rescind the contract. The appellant in his brief lays. down the rule to be that "while the law requires consent on both sides to a rescission of a contract, the conduct of the defaulting party may and is often such as only requires the concurrence of the other in order to a rescission. In such a case, only one party takes affirmative action, but it is because the acts of the other imply an abandonment of the contract." We believe that this language, with the assumption that the rescinding party is not in fault, presents the correct rule. Let us apply it to the facts in the case at bar. There is no proof of the express consent of the defendants to the rescission. The question arises, then, whether the conduct of the alleged defaulting party implies an abandonment of the contract on their part. This is not an exception to any finding of fact, but an exception to the the conclusion of law that "the plaintiff is not entitled to recover." That conclusion is based upon the findings of fact, and the findings of fact are supported by the evidence, as we have already seen. To ascertain therefore, whether the holding that the plaintiff did not rescind is correct or not, we cannot go behind the findings, but must take them. as a basis. In looking into the findings, we ascertain that the defendants were always ready and willing to perform their part of the contract, and had not abandoned it, and that the plaintiff was in default in not having performed his part of the contract. There was therefore no abandonment of the contract by the defendants, and there was no "consent on both sides to a rescission." It is alleged as error that the court below failed to find on the allegation as to the surrender of the premises. The contract of sale was silent as to the possession of the vendee, and, as a consequence, he was not entitled to the possession. Burnett v, Caldwell, 9 Wall., 290. There was therefore no necessity for a finding upon that point. If he was not entitled to the possession until a completion of the contract, his possession and his subsequent surrender of possession could not effect the question as to the rights of the parties. It is alleged as error also that there was no finding as to the truth of the affirmative matter set up in the answer. It is assigned for error also that the court admitted evidence as to the value, and decrease in value, of the premises, and as to waste. These alleged errors belong to the same class. The court below in its findings and decision, seems to have taken no account of the affirmative matter in the answer, nor of the waste, nor of the value, nor decrease in value, of the premises. The errors of the court, if such existed, were harmless to the plaintiff. They did not work to his injury or damage. If such errors existed and could have worked to the detriment of the plaintiff, they would be ground for reversal, but where they clearly could not have done so, they would not authorize a reversal. It is assigned for error that the court below admitted defendant Wrathal to testify that he was still ready to deliver the deed, and that he was willing that it should be delivered. No point is made on this alleged error in the argument set forth in the brief of the appellant, and we do not deem it material. It was not improper that the defendant should say that he was willing that the deed should be delivered. It tended to show good faith in now being willing to carry out the contract. It is finally assigned as error that the court below permitted John Rydalch to testify as to a conversation he had with one Anderson, who had charge of sheep belonging to plaintiff. The testimony was that Anderson stated that he did not have any sheep of the plaintiff of the kind described. The evidence was of very little importance. The plaintiff had sold the sheep which he had on the previous day offered to defendant Rich. The court found that the plaintiff never offered to make payment of the balance of $432, which it was claimed the plaintiff offered these sheep to pay, and this finding of the court is not excepted to. If there was any error therefore it was wholly immaterial. We see no reason for a reversal of the decision of the court below, and we can see no harm to result to the plaintiff, as the defendants claim to stand ready to complete the contract. The order and judgment of the court below are affirmed. ZANE, C. J., and HENDERSON, J., concurred. THE PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT, . MAURICE MCGRATH, APPELLANT. CRIMINAL LAW.-LARCENY, SUBJECT OF.-A phonographic report of testimony taken upon a trial and having no intrinsic value except for such report may be the subject of larceny as personal property. ID.--LARCENY.-VALUE OF PROPERTY STOLEN. Such phonographic report having no market value, its value to the person who can use the testimony is the proper standard of value. ID.—REMARKS OF COUNSEL.---Counsel for prosecution in addressing the jury stated that the testimony of two witnesses as to a certain fact stood uncontradicted; and that it was in defendant's power to explain it, but did not say how defendant could explain it, held, that as these statements merely claimed that uncontradicted witnesses told the truth, that they did not suggest any inference against defendant for his failure to testify. ID. STATEMENTS OF DEFENDANT.-Statements that appear to have been voluntary, made to officer, may be admitted in evidence. APPEAL from a judgment of the district court of the first district and from an order refusing a new trial. The opinion states the facts. Mr. George Sutherland, (Messrs. Hoge & Burmester with him on the brief) for appellant. Mr. Ogden Hiles and Mr. James N. Kimball, for respondent. ZANE, C. J.: The defendant was accused by indictment in the first district court of the crime of grand larceny, and convicted. The indictment charged that the crime was committed by taking from Alma H. Winn, during the trial of the case of Bullion, Beck and Champion Mining Company v. Eureka Hill Mining Company, 11 of his books, containing a phonographic report of the testimony of witnesses examined. on the trial. It appears from the evidence in the record that the loss of the notes necessitated the retaking of the |