6. EVIDENCE ~397(1)

RULE.

PAROL EVIDENCE

Anderson Grocer Co., 193 Mo. App. 236, 182 | considered; but neither formal parts nor isolatS. W. 1036; Benjamin on Sales (6th Ed.) § ed averments of fact will be deemed controlling 256. The above authorities are all upon the as against the case substantially made by the question of sufficient compliance with the general character of the facts alleged. statutes of fraud as to memorandum in writ- 5. PLEADING 34(1)-CONSTRUCTION. ing to comply with such statutes. If such Where a complaint contains words which, signatures are good in such cases, they ought if properly arranged, may state two causes of for the same reasons to be good upon such a action, it will be construed as stating the one contract as this. Moreover, the vendor would principally intended. not be permitted by this court, if attempt had been made on its part to avoid this contract of conditional sale, to have denied his signature. It would have been enforced against him. Neither he nor the vendee could dispute they signed this instrument. It was signed by both parties and filed under our conditional sale recording statute. If it was therefore good as to both parties and was entitled to be filed under our statute, it was good as to third parties when so executed and filed, and respondent as an innocent third party cannot complain of lack of notice under the recording act or of having been misled. For these reasons I am compelled to dissent.

(21 Ariz. 77)

SONORA BANK & TRUST CO. v. COMPA-
NIA AGRICOLA DEL RIO MAYO, S. A.
(No. 1619.)

(Supreme Court of Arizona. Dec. 16, 1919.)
1. JUDGMENT 250-CONFORMITY TO PLEAD-

ING NECESSARY.

It is a fundamental rule of the code system of pleading, as well as at common law, that the judgment must follow the pleadings; a litigant cannot proceed upon one cause of action in his complaint, and recover upon a distinct cause of action.

2. JUDGMENT 250-IN ACTION ON CONTRACT

NOT IN CONFORMITY TO PLEADING.

In action against bank for breach of its contract of sale of Mexican silver money in consideration of plaintiff depositor's gold balance with it, where the bank's answer conceded there was a contract for sale of Mexican money, but claimed that the money sold was Mexican bank bills, and not Mexican silver, it was error to give judgment against the bank for the amount of plaintiff's deposit, on the theory that there was no meeting of minds and no contract of sale; no equitable rights being claimed or equitable remedy invoked, as by demand for reformation of the contract, and neither party disaffirming the contract.

3. JUDGMENT 249-RECOVERY ON DIFFERENT THEORY FROM THAT ON WHICH COMPLAINT PROCEEDS.

Where a complaint proceeds on one theory, recovery cannot be allowed on another. 4. PLEADING

CONTROLLING
PLAINT.

34(1) - FORMAL PARTS NOT IN CONSTRUCTION OF COM

In construing a complaint to determine on what theory it is drawn, all averments will be

inadmissible to explain, vary, alter, or add to The general rule is that parol evidence is the terms of a written contract.

7. CUSTOMS AND USAGES 15(2)—EVIDENCE

OF CUSTOM TO EXPLAIN CONTRACT ADMISSI-
BLE.

Where a depositor, who had a gold balance in a United States bank, contracted with the bank to have the same credited in Mexican term "moneda Mexicana" and "pesos plata," etc., money or silver pesos, and the parties used the in communications which were written in Spanish, held that, where the depositor contended that he was sold actual silver money, and the bank that he was to be paid in Mexican bank bills, evidence of the customs of brokers in such exchanges is admissible, on the theory that parties who contracted on a subject concerning which known usages prevail by implication incorporate them into their contract.

Appeal from Superior Court, Santa Cruz County; S. L. Pattee, Judge.

Action by the Compania Agricola del Rio Mayo, S. A., against the Sonora Bank & Trust Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Compania Agricola del Rio Mayo, S. A., a Mexican corporation, engaged in agricultural business, and hereinafter designated as "the Company," brought suit in the Superior Court of Santa Cruz county, Ariz., against the Sonora Bank & Trust Company, a banking corporation, of Nogales, Ariz., hereinafter designated as "the Bank," for the sum of $150,287.75, in Mexican silver dollars, with interest, or the equivalent in lawful money of the United States. On September 12, 1914, the Company had on deposit with the Bank, at Nogales, Ariz., a large amount of money, part of which was in Mexican money and part in American money. The amount of American money so on deposit was $40,577.69. On September 12, 1914, the Company telegraphed the Bank as follows:

"Telegraph us at what rate you can credit us in Mexican money our gold balance."

To this telegram the Bank replied by telegraph, on September 14, 1914:

"We will credit your gold balance in silver at twenty-seven. Immediate acceptance."

Ariz.)

SONORA B. & T. CO. v. COMPANIA AGRICOLA DEL RIO MAYO, S. A. 639

(185 P.)

On receipt of the bank's reply, just quoted, the Company again telegraphed the Bank on September 15, 1914:

"Your telegram to-day. We understand twenty-seven cents gold for each silver peso. We accept this rate and please credit us in silver the equivalent of forty thousand five hundred seventy-seven dollars sixty-nine cents, which is our balance."

This last telegram the Bank received on September 15, 1914, and on the following day wrote to the Company as follows:

which we sold you our dollars, as it is expressly stated in your telegram of September 14, confirmed in letter by mail, and our telegram of said date.

"If for some reason you cannot pay our drafts in Mexican silver pesos, you must credit us with the difference between the value of the bills in which you make the payment of our drafts and the Mexican silver pesos which we have on deposit with you. In other words, you must not charge us your payments in bank we have in your possession, and with the corbills at par with coins of Mexican silver, which responding discount. We believe that, upon your revising the telegrams and letters above

our drafts in the manner we have done. Await-
ing your answer, we remain,
"Yours very truly,

"Compania Agricola del Rio Mayo,
"Miguel C. Urrea."

"Nogales, Arizona, September 16, 1914. "Compania Agricola del Rio Mayo, Alamos-mentioned, you will see that we cannot but make Dears Sirs and Friends: We received the following telegram from you yesterday: 'Your telegram to-day. We understand twenty-seven cents gold for each silver peso. We accept this rate and please credit us in silver the equivalent of forty thousand five hundred seventy-seven dollars sixty-nine cents, which is our balance.' formal demand upon the Bank for $150,287.75, On February 25, 1916, the Company made And in conformity with your instructions we have credited you the amount of $150,287.75, Mexican silver pesos (dollars), which demand Mex., which at the rate of 27 çents agreed the Bank refused. The complaint alleges upon, equals to $40,577.69 gold, which we have that the letters and telegrams quoted consticharged you, and we advise you that the bal-tuted a contract and agreement between the ance in your favor in gold is not that sum, but the sum of $41,327.69, but we suppose it consists in that there must be some of your drafts not yet presented.

"Your truly, Sonora Bank & Trust Co., "C. Rivera, Cashier."

About December 1, 1914, the Company is sued to Mr. German Bley its check against the Bank for the sum of $450, payable in Mexican silver pesos, or in bank bills of the Banco de Sonora. This check the Bank refused to pay, and stated its reasons for refusing in a letter of December 3, 1914, as follows:

"Nogales, Arizona, December 3, 1914. "Compania Agricola del Rio Mayo, Alamos, Sonora Dear Sirs and Friends: To-day there has been presented for payment by Mr. German Bley, of this city, your draft against us No. M7, for the amount of $450, with the annotation that it is payable in 'Mexican silver pesos, or in bank bills of the Banco de Sonora,' and we beg to call your attention to the fact that your drafts against us are payable in bank bills, without specifying as to what kind of paper, and which pray take notice. Always at your orders, we remain,

"Yours very truly,

"Sonora Bank & Trust Co.,

"W. C. Winegar, A. Sec."

On December 21, 1914, the Company answered this letter as follows:

"Alamos, December 21, 1914. "Sonora Bank & Trust Co., Nogales, Arizona -Dear Sirs: We have received your favor of the 3d inst., in which you advise us that our drafts against you are payable in Mexican bank bills, without specifying kind of paper. response we beg to say that we do not accept that our drafts against you are payable in bank bills, as our deposit with you is: Mexican silver pesos, which is the kind of money for

In

parties, and that by the terms of the contract and agreement the Company had sold and conveyed to the Bank the sum of $40,577.69, lawful money of the United States, in exchange for $150,287.75, Mexican silver dollars or pesos, and prayed for judgment for $150,287.75, Mexican silver pesos (dollars), and interest, or its equivalent in American money, and for such other and further relief as might be proper in the premises.

The bank filed an answer, admitting the deposit of gold, or American money, at a time prior to the contract, and sending and receiving the telegrams and letters as alleged, but denied liability for the payment of Mexican silver pesos (dollars), and contended that the letters and telegrams constituted an exchange of American money into Mexican bank bills, and in support of this allegation alleged that by the custom and usage prevailing in Mexico and on the border between the United States and Mexico, in September, 1914, the terms "moneda Mexicana," "plata," "pesos," "pesos plata," meant bank bills or paper money, and that such custom and usage was known to both the Company and the bank at the time the telegrams and letters were exchanged, and that the bank was ready and willing to pay to the Company, or its order, $150,287.75, pesos (dollars), in Mexican bank bills.

The Company filed a reply, denying such custom and usage, and denying that said terms meant bank bills.

The case was tried by the court without a jury, and much conflicting testimony was introduced as to the meaning of the terms "moneda Mexicana," "plata," "pesos plata," and "billettes de banco." The court filed written findings of fact, in which it found that the minds of the parties never met as to

the agreement, and that no contract of ex- silver dollars, coupled with an averment change had been entered into between them. that the contract was for the purchase and Based upon this finding of fact, the court sale of Mexican bank bills. The bank had found that the parties effected nothing by the right to expect that upon the trial such their attempted contract of exchange, and issue, and that only, would be tried. The that the deposit of the Company remained Bank was under no obligation to prepare to intact in the Bank, having been neither in- meet the other and distinct issue that the creased nor diminished by the attempted ex- Company had on deposit with it the sum of change. The court thereupon entered judg- $40,577.69, lawful money of the United States, ment that the Company recover from the which upon demand the Bank had refused to Bank the amount of the original deposit, $40,- pay to the Company, and yet upon this dis577.69, in lawful money of the United States, tinct and separate issue the court gave judgtogether with various items of interest. The ment in favor of the Company and against Bank appealed. The Company also appealed. | the Bank for said sum of $40,577.69, upon the Duffy & Purdum, of Nogales, and Arm- theory that the minds of the parties never strong & Lewis and R. Wm. Kramer, all of met, and that there was no contract of sale Phoenix, for appellant. and purchase between the parties. The ComBarry & Barry, of Nogales, and S. L. King-pany, having based its claim and tried the an, of Tucson, for appellee.

(185 P.)

implication, incorporate them into their agreements, if nothing is said to the contrary. Robinson v. United States, 13 Wall. 363, 20 L. Ed. 653. See, also, Collender v. Dinsmore, 55 N. Y. 200, 14 Am. Rep. 224; Walls v. Bailey, 49 N. Y. 470, 10 Am. Rep. 407.

A reference to the record will disclose that the evidence offered by the Bank and admitted by the trial court, as to custom and usage, consisted of the testimony of men who were and had been for many years in the banking business and money brokerage circles on the border and in Mexico. As we have inti

Ry. Co. v. Hurley, 4 Ariz. 258, 36 Pac. 216. ( concerning which known usages prevail, by The issue joined between the parties was on an alleged express contract. The complaint presents squarely an action at law. No equitable rights are claimed, and no equitable remedy is invoked. No demand was made by either party for a reformation of the contract sued on, nor was the contract disaffirmed by either party. We do not see how the court could disregard the alleged contract and enter a judgment against the Bank on the theory that the relation of banker and depositor existed, without departing widely from the pleadings. 31 Cyc. 673. [6, 7] In the cross-appeal taken by the Com-mated, we think the evidence was properly pany, complaint is made of several rulings of the trial court adverse to the Company's contentions. The final disposition of the case renders it unnecessary really to discuss these contentions, but since that upon a new trial one of these questions will probably arise again, we have concluded to dispose of the assignment upon that question. The assignment referred to is that the court erred in admitting parol evidence of custom and usage to explain the meaning of the language used in the telegrams and letters that passed between the parties. Spanish was the The judgment rendered was outside the language used in the original telegrams and issues joined, and therefore a new trial must letters. The translations of these letters and be had. It follows that the judgment must telegrams as they appear in the record were be, and it is, hereby reversed, and the cause admitted by the parties to be correct. In remanded to the trial court, with directions these telegrams and letters such words and to grant a new trial to the Bank, and take phrases as "moneda Mexicana," "plata," such further proceedings as may be proper "Mex.," "peso," "pesos plata," and "billettes and not inconsistent with this opinion.

received. It did not tend to contradict or vary the contract, but to define and elucidate technical mercantile terms employed therein. The proofs tended to show that the terms "Mex.," "moneda Mexicana," "peso," "plata," "pesos plata," and "billettes de banco," as used in the alleged contract, are not to be understood in the strict sense as meaning Mexican coin silver dollars, but that such terms, by custom and usage along the border and in Mexico, should be construed to mean Mexican bank bills.

CUNNINGHAM, C. J., and ROSS, J., con

de banco" appear. We understand the
objection to the evidence explaining the
meanings of these words and phrases is based cur.
upon the contention that the language used
in the communications was clear and plain,
and hence that resort could not be had to
parol testimony to place a construction upon
the terms; that the words and phrases had
plain, ordinary, and popular meaning, and (Supreme Court of Arizona.
should have been construed by the court
without the aid of parol testimony.

(21 Ariz. 87)

RED ROVER COPPER CO. v. HILLIS. (No. 1716.)

Dec. 16, 1919.)

1. NEW TRIAL 119-MOTION AFTER 10 DAYS FROM JUDGMENT TOO LATE.

The general rule unquestionably is that Motion for new trial made after expiration parol evidence is inadmissible to explain, of the 10 days from rendition of judgment prevary, alter, or add to the terms of a written scribed by Civ. Code 1913, par. 590, serves to contract in an action at law. This rule, how-invoke no duty of the trial court to consider ever, is very flexible, and has many excep- the motion on its merits.

COM

tions, and in the multitude of exceptions 2. MASTER AND SERVANT 258(8)
much confusion has arisen. The authorities
upon the subject are in hopeless conflict. We
are, however, of the opinion that the facts
of the instant case present one of the well-
defined exceptions to the general rule.

PLAINT BY MINER NEED NOT NEGATIVE STAT-
UTORY EXCEPTIONS.

A complaint of servant, under Civ. Code 1913, pars. 4075(h), 4077(a), alleging injury from falling into unguarded mine shaft, need not negative the statutory exceptions to the duty to guard the shaft; they being matters of defense.

Parol testimony of a custom or usage, tending to establish the sense in which certain words or mercantile terms are used in a contract, and elucidating the terms used, is admissible for the purpose of ascertaining the intention of the parties. This is on the Overruling of special demurrer was proper theory that parties who contract on à subject, where portions of the complaint sought to be

3. PLEADING 204(2)-DEMURRER TO COM

PLAINT GOOD IN PART.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
185 P.-41

eliminated by it were not all subject to the ob- made in order to invoke the court's action jections urged.

5. APPEAL AND ERROR 1067-HARMLESS ERROR IN FAILING TO MARK REQUEST RE

thereon are mandatory, and a failure to make such motion within the time allowed has the effect of waiving all errors remediable by means of the motion for a new trial. No er

In personal injury case, defendant's' request-ror was committed by the court in striking the ed instruction held properly refused where it motion. Such order is one made in obedience required the jury to indulge presumptions from to the said statute (paragraph 590, supra). circumstances rather than to draw inferences See Daggs v. Howard Sheep Co., 16 Ariz. 283, therefrom and find facts. 145 Pac. 140, and cases cited. The motion for a new trial made after the time limit expires serves to invoke no duty of the trial court to consider the motion on its merits. [2] The appellant complains of the order overruling its special demurrer to paragraphs 4 and 5 of the complaint. The demurrer is based upon the failure of the complaint to negative an exception in the statute involved. The demurrer alleges:

FUSED.

Where appellant's requested instruction was erroneous, and there was no dispute that the trial court refused it, appellant was not injured because the court failed to mark it "Refused," as provided by Civ. Code 1913, par. 516.

Appeal from Superior Court, Maricopa County; Frank H. Lyman, Judge.

Action by Edward H. Hillis against the Red Rover Copper Company. From order striking out motion for new trial and from judgment for plaintiff, defendant appeals.

Affirmed.

Action to recover damages for personal injuries suffered by the appellee, resulting from the negligence of the appellant. The verdict was returned and judgment rendered thereon on the 8th day of October, 1918. A motion for a new trial was filed October 19, 1918. On December 16, 1918, the court refused to consider the merits of the motion for a new trial and ordered the same stricken from the files, upon the grounds and for the reason that the motion for a new trial was not made within 10 days after the rendition of the judgment.

The notice of appeal given on December 16, 1918, is as follows:

"Now the defendant in open court gives notice of appeal to the Supreme Court of the state of Arizona from the order striking out the mo

tion for a new trial and from the judgment of the court entered herein and from the whole

thereof."

F. Louis Zimmerman, of Phoenix, for appellant.

F. H. Swenson, of Phoenix, for appellee.

CUNNINGHAM, C. J. (after stating the facts as above). [1] By express provision of paragraph 590, R. S. A. 1913, the motion for a new trial must be made within 10 days after the rendition of the judgment. Unless the motion for a new trial is made before the expiration of such prescribed period, the lower court is not required to act upon such motion, and an order striking the motion is conclusive evidence that the trial court declines to consider it.

The terms of the statute (paragraph 590, supra) as to the limit of time within which a motion for a new trial is required to be

the

That "there is no allegation in said complaint; that the defendant corporation was not engaged in one of the exceptions to the rule, which plaintiff pleads in his complaint under title 34, c. 3, §§ 4075(h), 4077(a), of the Civil Code of Arizona 1913.

The complaint, in paragraph 4, sets forth the statutory requirements that—

"At all shaft stations a gate or a guard rail must be provided and kept in place across the shaft, except when cage, skip, or bucket is being loaded, but this prohibition shall not forbid the temporary removal of the gate or rail for the purpose of repairs or other operations, if proper precaution to prevent danger to persons is taken."

Paragraph 5 of the complaint charges that the defendant company"wholly failed and neglected to provide a gate the said station in the said mine or to provide or guard rail at the entrance to the shaft at a reasonable light at the said station of the said mine of the defendant in accordance with the provisions of the statutes of Arizona as above set forth, or to provide any gate or guard rail or protection at the entrance to the shaft from said station or to provide any light whatever for said station.

The facts pleaded in the complaint set forth that the plaintiff, in the course of his duties and as he had a right to do, entered upon the unlighted and unguarded station, and, stepping on a piece of small pipe left on the floor of the station, the pipe, rolling under his foot, caused him to stumble in the dark and fall into the shaft, and thereby he was seriously injured.

The question raised is whether plaintiff failed to state a cause of action because he failed to allege that the cage, skip, or bucket