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It, and had put it up in the loft. He claimed he (the plaintiff] went into their [defendthat it had been loaned to him by one Wil- ant's) employment about the 1st of Novemkersen, whom he had casually met traveling ber, 1890, and remained there until the 1st from Nevada to Utah; that Wilkersen loan- of February, 1891. Attorney for defense ed it to him upon the street a few days pre (interrupting): Last of January. The Court: vious to the time of his arrest, and, so far According to the plaintiff's claim he reas the evidence showed, had never called mained there until the last of February, for it. It was shown to be stolen property 1891." . This was a statement by the trial beyond a question. It also appeared in evi- court of the position taken by plaintifi. The dence that the defendant had been convict- court did not state this as a fact proved. ed of grand larceny at a previous time, which The jury was not misled. must have been considered by the jury in It is claimed that the court erred in char. weighing his testimony. Under these facts, ging the jury that “the defendant company which are stated as fairly for the defendant admits the employment, and also acknowlas the record will warrant, it would have edges that they owe him for these two been strange if the jury bad found otherwise months, in their correspondence." The than they did. We think the evidence was plaintiff testified that he worked for defend. ample to support the verdict; that the con- ant the full month of February. Plaintiff viction was right; and that the judgment was allowed to introduce his exhibits withand order denying a new trial should be out objection. These exhibits were letters affirmed; and it is so ordered.

received from the superintendent of the de

fendant company, in which the employment MERRITT, C. J., and KING, J., concur. is admitted, and in which the full salary is

allowed. Defendant claims on the appeal

that these letters were written with a view (11 Utah, 46)

to a compromise. No objection was made COOPER v. DENVER & R. G. R. CO. to this introduction of the exhibit on this

(Supreme Court of Utah. Jan. 28, 1895.) ground. Furthermore, there is no evidence INSTRUCTIONS - PROVINCE OF JURY REVIEW ON in the record tending to contradict the state

APPEAL-QUESTION NOT RAISED BELOW. ments of the court contained in this charge

1. In an action for salary, where the plain- to the jury. It is also claimed that the tiff introduced letters from defendant in which the employment was admitted and the plain

plaintiff was responsible for the shortage in tiff's claim allowed, the court may charge that

the office. This fact was controverted. defendant admitted the employment and ac- Plaintiff had two superiors over him. He knowledged the debt.

acted under their direction. He was not 2. An objection that letters sought to be introduced in evidence were written with a

responsible for the business methods of the view to a compromise cannot be first made on office. The record shows that he performed appeal.

his duties faithfully. At least the jury King, J., dissenting.

thought so. The evidence was conflicting. Appeal from district court, Salt Lake coun- The jury decided this issue for the plainty; before Justice George W. Bartch.

tiff. This court will not disturb the deci. Action by William A. Cooper against the sion. We see no error in the record. The Denver & Rio Grande Railroad Company. judgment of the lower court is atfirmed with There was a verdict for plaintiff, and from

costs. an order denying a new trial defendant appeals. Affirmed.

SMITH, J., concurs. Bennett, Marshall & Bradley, for appellant. Frank Pierce, for respondent.

KING, J. (dissenting). With the opinion

submitted in this case by my brothers I do MERRITT, C. J. In this case the plaintifr not fully agree.

One of the principal points sued to recover a balance due him for salary of controversy at the trial was whether or while in the employment of the defendant not during the month of February, 1891, the in its express business in Salt Lake City. plaintiff was in the defendant's employ. The defendant claimed that plaintiff was This issue was sharply presented by the not employed during the month of February, pleadings. In his direct examination, plain1891, and also set up a counterclaim against tiff testified that he worked in the express the plaintiff, alleging that shortage office for the defendant during the months amounting to $414.91 occurred in the com- of November, December, January, and Feb pany's Salt Lake office while plaintiff was ruary, but upon cross-examination he stated in its employment, through the negligence that he "transferred his office" and "turned of the plaintiff. The jury rendered a ver over the duties" thereof to his successor on dict for plaintiff for the full amount of his the 31st day of January. Placing the conclaim. A motion for a new trial was made struction upon plaintiff's entire testimony and overruled. From the order overruling that is most favorable to his contention, it the motion for a new trial, defendant ap- is still a question of great uncertainty, and peals.

cannot easily be determined, whether his The defendant claims that the court erred services extended over the month of Februin charging the jury that "it appears that ary. The only other evidence offered whicb

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in any manner tended to establish plaintiff's | 1 Thomp. Trials, $ 1098. "The most auclaim that he rendered services during Feb- thentic documents, when offered for such ruary consisted of two letters purporting to purpose, become no more than mere letters have been written by the manager of de- or a written correspondence, which, when fendant's express company, and which were offered in evidence to prove a fact, are aladdressed to plaintiff. These communica- ways to be interpreted by the jury." Primm tions pointed out plaintiff's incompetency, v. Harem, 27 Mo. 211. I think the court and detailed the losses occurring in the office erred in not permitting the jury to pass upunder his superintendence, and the manner in on the disputed question whether plaintiff which they occurred. But the paramount was employed during February, and in inpurpose seems to have been to secure a com- terpreting the letters collaterally in evidence. promise, and an adjustment of the amount Defendant's counterclaim was fairly submitwhich it was conceded plaintiff's office was ted to the jury, who found for the plaintiff, short. And, though this language occurs in and with the opinion of the majority of the one of the letters: “As there seems to be court upon this point I concur. In view of some question as to allowing your salary for the fact that what I deem an error could, the month of February, we conclude to al- in any event, prejudice the defendant only low same, and apply it upon your shortage; to the extent of one month's salary, to wit, therefore $79.50 was deducted from the $80, I think the order of the court should be amount charged in this office, leaving that the plaintiff consent to a remission of $238.76,"—still it cannot be construed as a this amount, or, if he declines, that a new clear and unqualified admission that plain

trial be granted. tiff was actually engaged in defendant's service during that month; and the inference is fairly deducible from it, and all that

(11 Utah, 51) is contained in the letters, that a compro

HAIGHT v. PEARSON. mise was sought, and a balance of the short- (Supreme Court of Utah. Jan. 30, 1895.) age account desired. The trial court, with EXECUTORS-PURCHASE OF HEIR'S INTEREST-CONthis evidence before it, charged the jury

STRUCTIVE TRUST. that “the defendant company admits the

1. Since Comp. Laws, $ 4196, providing that

no executor shall purchase any of the estate employment, and also acknowledges that they

which he represents, does not apply to the purowe him for these two months in their cor- chase by him of an heir's interest in the estate, respondence." In view of the fact that this such purchase is valid. defendant denied specifically the employ.

2. Where an attorney, employed by plain

tiff to buy certain land for him, purchased the ment during February, and the uncertain land for himself, with bis own money, by repand doubtful testimony of plaintiff upon that resenting that the purchase was for plaintiff, point, and also the further fact that what

upon tender to the attorney of the purchase

money and compensation for his services, an ever statements found in the letters were

enforceable trust resulted in plaintiff's favor. susceptible of different constructions, and could easily have been interpreted to mean

Appeal from district court, Salt Lake counthat defendant desired to adjust and com

ty; before Justice C. S. Zane.

Action by Hector W. Haight against promise an unsettled balance, and for that

Charles E. Pearson to have an interest purpose was willing to concede the salary

bought by defendant in tlie estate of which for one month, it seems to me that an issue

plaintiff was the executor declared to be of fact was clearly presented, which ought

held in trust for plaintiff. From a judgment to have been submitted to the jury. The in

for plaintiff, defendant appeals. Affirmed. structions of the court withdrew this question from the jury, and, in effect, directed T, J. Anderson and M. M. Kaighn, for apthem to find the issue in favor of the plain-pellant. John M. Zane and G. F. Putnam, tiff. But if it be conceded that a positive for respondent. and unequivocal admission of employment for February can be wrung from the letters SMITH, J. The facts disclosed by the recabove referred to, it seems to me that even ord are that plaintiff is the executor of Hecthen the jury should have passed upon the tor C. Haight, and is one of his heirs; that question, and, under proper instructions, de. Alma D. Haight was a brother of plaintiff, termined what the letters did admit. The and also an heir of Hector C. Haight; that letters were clearly not dispositive instru- the estate of Hector C. Haight was in proments, and the rule is that: “Where a writ- cess of settlement in the probate court; that ing thus put in evidence is not a dispositive defendant, Charles E. Pearson, was an atinstrument, but is merely offered for the torney at law, who had long been acquainted purpose of showing an extrinsic fact, it will

with plaintiff, and had often been employed be for the jury to say what inference of by him; that Alma D. Haight was desirous fact is to be drawn from it. The reason of selling his interest in his father's estate, is that the question which arises in such a but would only sell to some one interested in case is not the proper interpretation of a the estate,-that is, to some other brother or writing which disposes of the rights of sister; that plaintiff employed the defendant the parties, but what effect the writing to purchase the interest of Alma D. Haight, shall have as evidence of a collateral fact.” and defendant accepted this employment;

* to pre

that subsequently defendant bought the in-| rule. The executor has no authority, as such, terest of said Alma D. Haight, and paid his to sell the interest of an heir in the estate. own money therefor, but at the time of the Such interest is not in any sense property of purchase, in order to induce Alma D. Haight | the estate; it is the property of the beir, and to sell, the defendant represented and said he alone can sell it. Owing to the advantage to him that he (defendant) was buying the that might be taken of heirs by executors or property for plaintiff; that in a short time administrators, if we were called upon to thereafter the plaintiff tendered defendant pass upon such a sale where the heir was the amount of the purchase price, together claiming that he had been overreached or with ample compensation for his services, | wronged, we should scrutinize the matter, but defendant refused to accept either sum, and, if unfair in its terms, would not hesiand claimed that he personally owned the in- tate to set such contract aside, but not be. terest of Alma D. Haight in the estate of cause it was in violation of the statute cited. Hector C. Haight, he having taken the con- In other words, these sales by an heir to an veyance in his own name from Alma D. executor are not within the statute at all. Haight. The plaintiff brings this suit, claim- | If they are fair in themselves, they should be ing that defendant holds the title to the in- | upheld the same as other contracts. Now, terest of Alma D. Haight in trust for plain- as to the second point made by appellant, he tiff. The defendant answered, and, after relies upon the provisions of section 2831 of denying portions of the complaint, he set up the Compiled Laws, which provides: “No esthat plaintiff was executor of the estate of tate or interest in real property, other than Hector C. Haight, and incapable, for that rea- leases for a term, not exceeding one year, son, to purchase any interest in the estate. nor any trust or power, over or concerning it, The court made findings substantially as or in any manner relating thereto, can be cre stated above, but failed to find in the affirm-ated, granted, assigned, surrendered or deative issue set up in the answer. Judg- | clared, otherwise than by operation of law, ment was entered for the plaintiff as prayed, or a conveyance in writing,” etc. Identically and defendant appeals on the judgment roll. the same language is found in section 3916.

The first error assigned is that the court Section 3917 provides: “The preceding secfailed to find on the affirmative issue in the tion must not be construed answer, as the fact therein alleged, to wit: vent any trust from arising or being extin“That plaintiff was the executor of Hector C. guished by implication or operation of law," Haight, deceased, was admitted to be true etc. It is conceded by respondent that his on the argument. We have treated it as an only claim is that there is in this case a trust established fact in the case, and shall decide by implication or operation of law; in other the case on this assumption." Upon the words, that the defendant, by his fraudulent facts so stated, the defendant raises two ques- conduct, has created a trust, as some authors tions: First. The plaintiff was incapable of term it, “ex maleficio," in favor of the plain. purchasing an interest in the estate, because tiff. On behalf of appellant it is contended he was executor. Being incompetent to pur- that such trust by implication never arises chase himself, he could not have another pur- except where the fraud of one party has prochase in trust for him, and cannot, therefore, duced a pecuniary loss to the other. In other enforce any trust. Second. The defendant words, that courts of equity will not sit to purchased with his own money; and while declare a trust against a litigant, simply be. it is true that he agreed, both with plaintiff cause he has lied. This suggestion has much and the vendor, that he would purchase and apparent force; but when we come to inveshold for plaintiff, still this agreement was tigate it, and apply the proper rule to the oral, and void under the statute of frauds facts of this case, there is no real difficulty. Upon the first point defendant relies on sec- The defendant was an attorney at law; one tion 4196, p. 513, 2 Comp. Laws Utah, which who was especially charged with the confiprovides: "No executor * * * must di-dence of others, and who had been accustomrectly or indirectly, purchase any property of ed to accept employment from plaintiff, and the estate he represents, nor must he be in- in this matter accepted the employment of terested in any sale.” This section was con- plaintiff, and agreed to perform the services strued by this court in the case of Ayres v. desired, to wit, purchase this interest for Jack, 7 Utah, 249, 26 Pac. 300, where it was plaintiff, from his brother, Alma D. Haight. held, in substance, that sales under it were It is not found that plaintiff paid him any. not void, but voidable only, when the pur- thing in advance, but he was bound to pay chase was the interest of an heir, We are defendant for the services he might render, of opinion that this statute simply declares, and it is found that he had tendered full in the case of executors and administrators, compensation before bringing this suit. In that which was, long before the statutes, a addition to this, he was only able to buy rule in equity, to wit: “that contracts in from Alma D. Haight by representing that which a trustee both buys and sells to him. | he was acting and buying for the plaintiff. self are void.” But a contract to purchase Under these circumstances, we are of opinthe interest of an heir in an estate by an ex- ion that the plaintiff can compel him to de. ecutor does not come within the letter or liver the title to the interest purchased, just spirit of either the statute or this equitable as he agreed to. Notwithstanding our stat

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utes above cited, we hold that this case pre charge" is too general, and will not be considsents a trust arising constructively and by ered, if any portion of the charge is correct. operation of law. Browne, St. Frauds, pp. 103, points embraced in the requests to charge, it is

4. Where a charge, as a whole, covers the 104, speaking of this character of case, says: not error to refuse the requests, though tech"Upon similar principles, if one falsely rep- nically good. resent himself to be purchasing for anotier,

5. In the absence of statutory provision, the

court, in its discretion, may allow the jury to and by that means * * * get the land at

take the written charges into the jury room. a cheaper rate, he shall be held a trustee for 6. Local climatic conditions should be conhim in whose behalf he pretended to act.

sidered in determining the liability of a city for * * If, on the other hand, the grant was

failure to exercise care in removing snow and

ice from the sidewalk. made on the faith of a promise, and induced thereby, the breach of the promise is fraud,

Appeal from district court, Salt Lake counand, as such, has been made ground of equi- ty; before Justice George W. Bartch. table relief; and this doctrine has been ex

Action by Edward P. Scoville against Salt tended to cover those cases where the prom

Lake City. From a judgment for plaintiff, ise which induced the conveyance was to con

and an order denying a new trial, defendant vey to a third person, who has been held to appeals. Affirmed. be thereby enabled to compel a conveyance E. D. Hoge and Ed. F. Coad, for appellant. to himself from the grantee.” This rule is Powers & Straup and Denton & McNally, for supported by the cases of Cipperly v. Cip- respondent. perly, 4 Thomp. & C. 342, and Faust v. Haas, 73 Pa. St. 295. See, also, Cook v. Cook, 69 MERRITT, C. J. This action was brought Pa. St. 413; Dennis v. McCagg, 32 Ill. 429; | by respondent against the appellant to recovSweet v. Jacocks, 6 Paige, 355,-in all of er damages for an injury sustained by his which cases an analogous rule is announced. child, a boy aged 18 months, at the time of : We are more inclined to enforce this rule the accident, near the Western Union Telestrictly against the defendant because he is graph Office, in Salt Lake City, on the east an attorney at law. It is urged that the em- side of Main street. Ice had been allowed to ployment in this case was of such a charac- accumulate on the sidewalk, caused by the ter that his relations as attorney for plaintiff freezing of water which came down a conin no way affected it.

We cannot agree to ductor and a waste pipe leading from a sink, this. At the present day, in the various re- and was allowed to flow out and over the lations of business men, attorneys are con- sidewalk. The conductor had been there a sulted and employed in every transaction, long time, and the water flowing from thence and in none oftener than in superintending would freeze and thaw as the weather was and in making purchases and sales of prop- cold or warm. The conductor was about four erty for their clients. In this case it is ex- inches in diameter, made of tin, and was pressly found that defendant was so employ- | used to carry off the rain or snow as it melted, and that he acted pursuant to that em- ed from the roof of the building adjoining ployment. He disclosed his employment to the walk. The sidewalk at this place was the person from whom he purchased, and also sloping or slanting to the south, and could only purchase on condition that he was also towards the curb, making it all the more buying for plaintiff. We think, under such

dangerous and slippery when the water froze. circumstances, that it is a sound rule, both At the time of the accident, the ice covered of law and morals, that requires defendant

a space of two or three feet wide across the to do exactly what he agreed to do when he sidewalk diagonally towards the curb, and accepted the plaintiff's employment. We are

was from one to fifteen inches thick, measurof opinion that the judgment of the court be

ing from the curb up to the mouth of the low was right, and it is affirmed.

conductor. At the time of the accident, a

slight snow was and had been falling for MERRITT, C. J., and BARTCH and KING, several hours, which in a large measure covJJ., concur.

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 (11 Utah, 60)

the sidewalk at a usual gait, carrying the SCOVILLE V. SALT LAKE CITY. child in her arms, and, when she reached (Supreme Court of Utah. Feb. 23, 1895.)

this place covered with ice, slipped and fell ACTION AGAINST City-ICE OY SIDEWALK-NOTICE

as she walked upon it. In falling, the child To City-PRACTICE OX APPEAL.

was thrown with considerable force to the 1. Where a city allows ice, in a rounded

walk, striking with its back on the sidewalk, and uneven condition, formed by accumulations from which the child received an inguinal of water artificially led from the tops of build

rupture. ings, to remain across the sidewalk of a street much used for travel, it is liable to one injured

At the conclusion of the testimony for the thereby while properly using the walk.

respondent, appellant moved the court for a 2. Whether the fact that ice has been ac- nonsuit, and the motion was denied, and apcumulating on a sidewalk for some time consti

pellant rested the case without introducing tutes notice to the city of the dangerous condition of the walk is a question for the jury.

or offering any evidence. After argument 3. An exception to "each paragraph of the l by counsel, the court charged the jury, and

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they retired to consider of their verdict. termine whether that constituted sufficient Later they returned into court for further in- notice. Howe v. City of Lowell, 101 Mass. struction, and the court, in open court, and in 99; Sheel v. City of Appleton, 49 Wis. 125, the presence of counsel for the respective par- 5 N. W. 27; Gaylord v. City of New Britain. ties, further charged the jury. The whole 58 Conn. 398, 20 Atl. 365. This defect and charge, as given in open court, was, at the accumulation of ice was on the most-traveled request of the jury, sent to their room in walk in the city. The question of notice is not writing. The jury rendered a verdict in fa- alone determined from the length of time a devor of the respondent. Appellant's motion fect his existed, but also from the nature and for a new trial was denied, and this appeal character of the defect, the extent of the travis prosecuted from the order refusing a new el, and whether it is in a populous or sparselytrial, and from the judgment.

settled part of the city. Besides, there is, in The errors assigned and relied on are: First. this case, evidence tending to show actual noThe evidence was insufficient to sustain the tice to the city. The question as to whether verdict or any verdict for respondent, and the acts and conduct of appellant, and the appellant's motion for a nonsuit should have facts, as shown by the evidence, constitute been granted. Second. The court erred in negligence was one for the jury to pass upon. refusing to give the requests of appellant. Bowers v. Railroad Co., 4 Utah, 215, 7 Pac. Third. The court erred in permitting its writ- | 251. The court, therefore, did not err in subten charges to be sent to the jury.

mitting the case to the jury. That the ice in question was not the result The charge of the court correctly stated the of snow or rain falling or dripping from.eaves, law in the premises, and all the requests of and not from any natural cause, but was appellant were substantially given in the caused from water discharged on the side- | charge of the court. Appellant, however, is · walk by means of a conductor used to car- not in a position to avail itself of any error ry water from the roof of the building, and, in the charge of the court, should there be too, by a defective one, and from a waste any, for it has not properly made and saved pipe, is clear from the evidence. The ice its exceptions. The only exceptions taken by was the result of an artificial, and not nat- appellant are: “In this case we desire to ural, cause. There is no evidence at all to have an exception to each paragraph of the sustain appellant's contention that the ice charge of the court; also save our exceptions was the result of the prevailing weather, and to the refusal of the court to give the instrucnot one witness in the case so testified. tions asked for by the defendant." This • Where a corporation permits the discharge court has held that such exceptions are too of water from adjoining houses to be ob- general, both or an exception to the charge structed, or permits the water to be dischar- as given and for the requests refused. Marks ged on its walk by some artificial means, and v. Tompkins, 7 Utah, 421, 27 Pac. 6. General there allowed to freeze, in such case its own exceptions to all the instructions are of no act of wrongdoing contributes to the ac- effect, and will not be considered if any porcumulation of the dangerous ice, and the cor- tion of the charge is correct. Exceptions poration will be held liable. Here the ice is must be specific to the particular instructhe result of an artificial, not of a natural, tions. Nelson v. Brixen, 7 Utah, 454, 27 cause. Where a municipal corporation has Pac. 578; Cooper v. Schlesinger, 111 U. S. permitted ice and snow to accumulate and 148, 4 Sup. Ct. 360; Railway Co. v. Jurey, remain upon sidewalks of a large city in the 111 U. S. 581, 4 Sup. Ct. 566. An exception business part thereof for an unreasonable to each and every part of the charge is too time, in a rounded, uneven, and dangerous general. It has been too frequently decideil condition, and an injury occurs by reason in this court to require authorities to sustain thereof to one who is properly using the walk, the proposition that where the charge gives the municipality is liable. Elliott, Roads & the substance of the requests for instructions, S. p. 459; Collins v. Council Bluffs, 32 Iowa, or where the charge as a whole covers the 324; McLaughlin v. City of Corry, 77 Pa. questions embraced in the requests, it is not St. 109; Luther v. Worcester, 97 Mass. 266; error to refuse the requests, even though techMorse v. Boston, 109 Mass. 446. In this case nically good in law. In such case the court the evidence shows that there was ice at the is not bound to use the language of counsel, point mentioned on the sidewalk all winter, but may use its own. This has uniformly and this ice was there accumulating from De been the practice in this territory, and is cember to January 7th, the time of the in- sustained by the supreme court of the Unit. jury.

ed States. People v. Chadwick, 7 Utah, 141, The question of notice to appellant was one 142, 25 Pac. 737; Cunningham v. Railway of fact for the jury to determine, and not a Co., 4 Utah, 206, 7 Pac. 79); People v. Olsen, question for the court. Elliott, Roads & S. 4 Utah, 413, 11 Pac. 577; People v. Hampp. 461; Dill. Mun. Corp. § 1026. In Wis- ton, 4 Utal, 258, 9 Pac. 508; Clampitt v. consin, where a defect in a sidewalk existed Kerr, 1 Utah, 247; Railroad Co. v. Horst, one day, and in Massachusetts, where a de 93 U. S. 291; Laber v. Cooper, 7 Wall. 565. fect in a highway existed 13 hours, and in The court did not err in permitting the Connecticut, a few hours from frozen water, jury to take to their room the charge of the it was held that it was for the jury to de- ! court after it was reduced to writiug. All

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