It, and had put it up in the loft. He claimed that it had been loaned to him by one Wilkersen, whom he had casually met traveling from Nevada to Utah; that Wilkersen loaned it to him upon the street a few days previous to the time of his arrest, and, so far as the evidence showed, had never called for it. It was shown to be stolen property beyond a question. It also appeared in evidence that the defendant had been convicted of grand larceny at a previous time, which must have been considered by the jury in weighing his testimony. Under these facts, which are stated as fairly for the defendant as the record will warrant, it would have been strange if the jury had found otherwise than they did. We think the evidence was ample to support the verdict; that the conviction was right; and that the judgment and order denying a new trial should be affirmed; and it is so ordered.

MERRITT, C. J., and KING, J., concur.

MERRITT, C. J. In this case the plaintiff sued to recover a balance due him for salary while in the employment of the defendant in its express business in Salt Lake City. | The defendant claimed that plaintiff was not employed during the month of February, 1891, and also set up a counterclaim against the plaintiff, alleging that a shortage amounting to $444.91 occurred in the company's Salt Lake office while plaintiff was in its employment, through the negligence of the plaintiff. The jury rendered a ver dict for plaintiff for the full amount of his claim. A motion for a new trial was made and overruled. From the order overruling the motion for a new trial, defendant appeals.

The defendant claims that the court erred in charging the jury that "it appears that

he [the plaintiff] went into their [defendant's] employment about the 1st of November, 1890, and remained there until the 1st of February, 1891. Attorney for defense (interrupting): Last of January. The Court: According to the plaintiff's claim he remained there until the last of February, 1891." This was a statement by the trial court of the position taken by plaintiff. The court did not state this as a fact proved. The jury was not misled.

It is claimed that the court erred in charging the jury that "the defendant company admits the employment, and also acknowledges that they owe him for these two months, in their correspondence." The plaintiff testified that he worked for defendant the full month of February. Plaintiff was allowed to introduce his exhibits without objection. These exhibits were letters received from the superintendent of the defendant company, in which the employment is admitted, and in which the full salary is allowed. Defendant claims on the appeal that these letters were written with a view to a compromise. No objection was made to this introduction of the exhibit on this ground. Furthermore, there is no evidence in the record tending to contradict the statements of the court contained in this charge to the jury. It is also claimed that the plaintiff was responsible for the shortage in the office. This fact was controverted. Plaintiff had two superiors over him. He acted under their direction. He was not responsible for the business methods of the office. The record shows that he performed his duties faithfully. At least the jury thought so. The evidence was conflicting. The jury decided this issue for the plaintiff. This court will not disturb the deci sion. We see no error in the record. The judgment of the lower court is affirmed with costs.

SMITH, J., concurs.

KING, J. (dissenting). With the opinion submitted in this case by my brothers I do not fully agree. One of the principal points of controversy at the trial was whether or not during the month of February, 1891, the plaintiff was in the defendant's employ. This issue was sharply presented by the pleadings. In his direct examination, plaintiff testified that he worked in the express office for the defendant during the months of November, December, January, and February, but upon cross-examination he stated that he "transferred his office" and "turned over the duties" thereof to his successor on the 31st day of January. Placing the construction upon plaintiff's entire testimony that is most favorable to his contention, it is still a question of great uncertainty, and cannot easily be determined, whether his services extended over the month of February. The only other evidence offered which

in any manner tended to establish plaintiff's claim that he rendered services during February consisted of two letters purporting to have been written by the manager of defendant's express company, and which were addressed to plaintiff. These communications pointed out plaintiff's incompetency, and detailed the losses occurring in the office under his superintendence, and the manner in which they occurred. But the paramount purpose seems to have been to secure a compromise, and an adjustment of the amount which it was conceded plaintiff's office was short. And, though this language occurs in one of the letters: "As there seems to be some question as to allowing your salary for the month of February, we conclude to allow same, and apply it upon your shortage; therefore $79.50 was deducted from the amount charged in this office, leaving $238.76,"-still it cannot be construed as a clear and unqualified admission that plaintiff was actually engaged in defendant's service during that month; and the inference is fairly deducible from it, and all that is contained in the letters, that a compromise was sought, and a balance of the shortage account desired. The trial court, with this evidence before it, charged the jury that "the defendant company admits the employment, and also acknowledges that they owe him for these two months in their correspondence." In view of the fact that this defendant denied specifically the employment during February, and the uncertain and doubtful testimony of plaintiff upon that point, and also the further fact that whatever statements found in the letters were susceptible of different constructions, and could easily have been interpreted to mean that defendant desired to adjust and compromise an unsettled balance, and for that

1 Thomp. Trials, § 1098. "The most authentic documents, when offered for such purpose, become no more than mere letters or a written correspondence, which, when offered in evidence to prove a fact, are always to be interpreted by the jury." Primm v. Harem, 27 Mo. 211. I think the court erred in not permitting the jury to pass upon the disputed question whether plaintiff was employed during February, and in interpreting the letters collaterally in evidence. Defendant's counterclaim was fairly submitted to the jury, who found for the plaintiff, and with the opinion of the majority of the court upon this point I concur. In view of the fact that what I deem an error could, in any event, prejudice the defendant only to the extent of one month's salary, to wit, $80, I think the order of the court should be that the plaintiff consent to a remission of this amount, or, if he declines, that a new trial be granted.

(11 Utah, 51)

HAIGHT v. PEARSON. (Supreme Court of Utah. Jan. 30, 1895.) EXECUTORS-PURCHASE OF HEIR'S INTEREST-CONSTRUCTIVE TRUST.

1. Since Comp. Laws, § 4196, providing that no executor shall purchase any of the estate which he represents, does not apply to the purchase by him of an heir's interest in the estate, such purchase is valid.

2. Where an attorney, employed by plaintiff to buy certain land for him, purchased the land for himself, with his own money, by representing that the purchase was for plaintiff, upon tender to the attorney of the purchase money and compensation for his services, an enforceable trust resulted in plaintiff's favor.

Appeal from district court, Salt Lake county; before Justice C. S. Zane.

Action by Hector W. Haight against Charles E. Pearson to have an interest

for one month, it seems to me that an issue of fact was clearly presented, which ought to have been submitted to the jury. The instructions of the court withdrew this question from the jury, and, in effect, directed them to find the issue in favor of the plaintiff. But if it be conceded that a positive and unequivocal admission of employment for February can be wrung from the letters above referred to, it seems to me that even then the jury should have passed upon the question, and, under proper instructions, determined what the letters did admit. The letters were clearly not dispositive instruments, and the rule is that: "Where a writing thus put in evidence is not a dispositive instrument, but is merely offered for the purpose of showing an extrinsic fact, it will be for the jury to say what inference of fact is to be drawn from it. The reason is that the question which arises in such a case is not the proper interpretation of a writing which disposes of the rights of the parties, but what effect the writing shall have as evidence of a collateral fact."

plaintiff was the executor declared to be held in trust for plaintiff. From a judgment for plaintiff, defendant appeals. Affirmed.

T. J. Anderson and M. M. Kaighn, for appellant. John M. Zane and G. F. Putnam, for respondent.

SMITH, J. The facts disclosed by the record are that plaintiff is the executor of Hector C. Haight, and is one of his heirs; that Alma D. Haight was a brother of plaintiff, and also an heir of Hector C. Haight; that the estate of Hector C. Haight was in process of settlement in the probate court; that defendant, Charles E. Pearson, was an attorney at law, who had long been acquainted with plaintiff, and had often been employed by him; that Alma D. Haight was desirous of selling his interest in his father's estate, but would only sell to some one interested in the estate, that is, to some other brother or sister; that plaintiff employed the defendant to purchase the interest of Alma D. Haight, and defendant accepted this employment;

*

utes above cited, we hold that this case presents a trust arising constructively and by operation of law. Browne, St. Frauds, pp. 103, 104, speaking of this character of case, says: "Upon similar principles, if one falsely represent himself to be purchasing for another, and by that means get the land at a cheaper rate, he shall be held a trustee for him in whose behalf he pretended to act. * ** If, on the other hand, the grant was made on the faith of a promise, and induced thereby, the breach of the promise is fraud, and, as such, has been made ground of equitable relief; and this doctrine has been extended to cover those cases where the promise which induced the conveyance was to convey to a third person, who has been held to be thereby enabled to compel a conveyance to himself from the grantee." This rule is supported by the cases of Cipperly v. Cipperly, 4 Thomp. & C. 342, and Faust v. Haas, 73 Pa. St. 295. See, also, Cook v. Cook, 69 Pa. St. 443; Dennis v. McCagg, 32 Ill. 429; Sweet v. Jacocks, 6 Paige, 355,-in all of which cases an analogous rule is announced. We are more inclined to enforce this rule strictly against the defendant because he is an attorney at law. It is urged that the employment in this case was of such a character that his relations as attorney for plaintiff in no way affected it. We cannot agree to this. At the present day, in the various relations of business men, attorneys are consulted and employed in every transaction, and in none oftener than in superintending and in making purchases and sales of property for their clients. In this case it is expressly found that defendant was so employed, and that he acted pursuant to that employment. He disclosed his employment to the person from whom he purchased, and could only purchase on condition that he was buying for plaintiff. We think, under such circumstances, that it is a sound rule, both of law and morals, that requires defendant to do exactly what he agreed to do when he accepted the plaintiff's employment. We are of opinion that the judgment of the court below was right, and it is affirmed.

charge" is too general, and will not be considered, if any portion of the charge is correct.

4. Where a charge, as a whole, covers the points embraced in the requests to charge, it is not error to refuse the requests, though technically good.

5. In the absence of statutory provision, the court, in its discretion, may allow the jury to take the written charges into the jury room.

6. Local climatic conditions should be considered in determining the liability of a city for failure to exercise care in removing snow and ice from the sidewalk.

Appeal from district court, Salt Lake county; before Justice George W. Bartch.

Action by Edward P. Scoville against Salt Lake City. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Affirmed.

E. D. Hoge and Ed. F. Coad, for appellant. Powers & Straup and Denton & McNally, for respondent.

MERRITT, C. J. This action was brought by respondent against the appellant to recover damages for an injury sustained by his child, a boy aged 18 months, at the time of the accident, near the Western Union Telegraph Office, in Salt Lake City, on the east side of Main street. Ice had been allowed to accumulate on the sidewalk, caused by the freezing of water which came down a conductor and a waste pipe leading from a sink, and was allowed to flow out and over the sidewalk. The conductor had been there a long time, and the water flowing from thence would freeze and thaw as the weather was cold or warm. The conductor was about four inches in diameter, made of tin, and was used to carry off the rain or snow as it melted from the roof of the building adjoining the walk. The sidewalk at this place was also sloping or slanting to the south, and also towards the curb, making it all the more dangerous and slippery when the water froze. At the time of the accident, the ice covered a space of two or three feet wide across the sidewalk diagonally towards the curb, and was from one to fifteen inches thick, measuring from the curb up to the mouth of the conductor. At the time of the accident, a slight snow was and had been falling for

(11 Utah, 60)

SCOVILLE v. SALT LAKE CITY. (Supreme Court of Utah.

Feb. 23, 1895.) ACTION AGAINST CITY-ICE ON SIDEWALK-NOTICE TO CITY-PRACTICE ON APPEAL.

1. Where a city allows ice, in a rounded and uneven condition, formed by accumulations of water artificially led from the tops of buildings, to remain across the sidewalk of a street much used for travel, it is liable to one injured thereby while properly using the walk.

2. Whether the fact that ice has been accumulating on a sidewalk for some time constitutes notice to the city of the dangerous condition of the walk is a question for the jury.

3. An exception to "each paragraph of the v.39P.no.4-31

ered and obscured the ice. On the 7th day of January, 1892, in the afternoon, about 5 o'clock, respondent's wife was walking along the sidewalk at a usual gait, carrying the child in her arms, and, when she reached this place covered with ice, slipped and fell as she walked upon it. In falling, the child was thrown with considerable force to the walk, striking with its back on the sidewalk, from which the child received an inguinal rupture.

At the conclusion of the testimony for the respondent, appellant moved the court for a nonsuit, and the motion was denied, and appellant rested the case without introducing or offering any evidence. After argument by counsel, the court charged the jury, and

The errors assigned and relied on are: First. The evidence was insufficient to sustain the verdict or any verdict for respondent, and appellant's motion for a nonsuit should have been granted. Second. The court erred in refusing to give the requests of appellant. Third. The court erred in permitting its written charges to be sent to the jury.

That the ice in question was not the result of snow or rain falling or dripping from.eaves, and not from any natural cause, but was caused from water discharged on the sidewalk by means of a conductor used to carry water from the roof of the building, and, too, by a defective one, and from a waste pipe, is clear from the evidence. The ice was the result of an artificial, and not a natural, cause. There is no evidence at all to sustain appellant's contention that the ice was the result of the prevailing weather, and not one witness in the case so testified. • Where a corporation permits the discharge of water from adjoining houses to be obstructed, or permits the water to be discharged on its walk by some artificial means, and there allowed to freeze, in such case its own act of wrongdoing contributes to the accumulation of the dangerous ice, and the corporation will be held liable. Here the ice is the result of an artificial, not of a natural, cause. Where a municipal corporation has permitted ice and snow to accumulate and remain upon sidewalks of a large city in the business part thereof for an unreasonable time, in a rounded, uneven, and dangerous condition, and an injury occurs by reason thereof to one who is properly using the walk, the municipality is liable. Elliott, Roads & S. p. 459; Collins v. Council Bluffs, 32 Iowa, 324; McLaughlin v. City of Corry, 77 Pa. St. 109; Luther v. Worcester, 97 Mass. 268; Morse v. Boston, 109 Mass. 446. In this case the evidence shows that there was ice at the point mentioned on the sidewalk all winter, and this ice was there accumulating from December to January 7th, the time of the injury.

The question of notice to appellant was one of fact for the jury to determine, and not a question for the court. Elliott, Roads & S. p. 461; Dill. Mun. Corp. § 1026. In Wisconsin, where a defect in a sidewalk existed one day, and in Massachusetts, where a defect in a highway existed 13 hours, and in Connecticut, a few hours from frozen water, it was held that it was for the jury to de

notice. Howe v. City of Lowell, 101 Mass. 99; Sheel v. City of Appleton, 49 Wis. 125, 5 N. W. 27; Gaylord v. City of New Britain. 58 Conn. 398, 20 Atl. 365. This defect and accumulation of ice was on the most-traveled walk in the city. The question of notice is not alone determined from the length of time a defect his existed, but also from the nature and character of the defect, the extent of the travel, and whether it is in a populous or sparselysettled part of the city. Besides, there is, in this case, evidence tending to show actual notice to the city. The question as to whether the acts and conduct of appellant, and the facts, as shown by the evidence, constitute negligence was one for the jury to pass upon. Bowers v. Railroad Co., 4 Utah, 215, 7 Pac. 251. The court, therefore, did not err in submitting the case to the jury.

The charge of the court correctly stated the law in the premises, and all the requests of appellant were substantially given in the charge of the court. Appellant, however, is not in a position to avail itself of any error in the charge of the court, should there be any, for it has not properly made and saved its exceptions. The only exceptions taken by appellant are: "In this case we desire to have an exception to each paragraph of the charge of the court; also save our exceptions to the refusal of the court to give the instructions asked for by the defendant." This court has held that such exceptions are too general, both for an exception to the charge as given and for the requests refused. Marks v. Tompkins, 7 Utah, 421, 27 Pac. 6. General exceptions to all the instructions are of no effect, and will not be considered if any portion of the charge is correct. Exceptions must be specific to the particular instructions. Nelson v. Brixen, 7 Utah, 454, 27 Pac. 578; Cooper v. Schlesinger, 111 U. S. 148, 4 Sup. Ct. 360; Railway Co. v. Jurey, 111 U. S. 584, 4 Sup. Ct. 566. An exception to each and every part of the charge is too general. It has been too frequently decided in this court to require authorities to sustain the proposition that where the charge gives the substance of the requests for instructions, or where the charge as a whole covers the questions embraced in the requests, it is not error to refuse the requests, even though technically good in law. In such case the court is not bound to use the language of counsel, but may use its own. This has uniformly been the practice in this territory, and is sustained by the supreme court of the United States. People v. Chadwick, 7 Utah, 141, 142, 25 Pac. 737; Cunningham v. Railway Co., 4 Utah, 206, 7 Pac. 795; People v. Olsen, 4 Utah, 413, 11 Pac. 577; People v. Hampton, 4 Utah, 258, 9 Pac. 508; Clampitt v. Kerr, 1 Utah, 247; Railroad Co. v. Horst, 93 U. S. 291; Laber v. Cooper, 7 Wall. 565.

The court did not err in permitting the jury to take to their room the charge of the court after it was reduced to writing. All