Tyng v. Constant-Loraine Inv. Co., 50 Utah 1

the minds of the parties did not meet; then was there no contract; and then was the plaintiff entitled to a return of the $1,000 paid by him, not on the theory of any breach of contract, but of money had and received. And for that reason was the defendant not entitled to a direction of a verdict. On such view-the view that the minds of the parties had not met as to what was agreed to be sold and conveyed, and therefore, if the jury so found the facts, the plaintiff was entitled to a return of the $1,000-the plaintiff asked to go to the jury; and, as appears by his requests, that was the only view on which he asked a submission of the case. The court refused the requests or to submit the case on such 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 532 feet by warranty and 12 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 correctness of the judgment, and as there was no motion nor request to direct a verdict in plaintiff's favor, nor even any assignment presenting the rulings refusing his request, our power to affirm the judgment on the theory 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.''

1

Upon the last trial the district court submitted the issue to the jury as suggested in the foregoing opinion, and the jury found that issue in favor of the plaintiff. The jury having found that the minds of the parties did not meet upon the question of the number of feet that were included in the telegrams referred to, the defendant company, as suggested in the opinion on the second appeal, had no right to retain plaintiff's $1,000. Notwithstanding

Appeal from Salt Lake County, Third District

that issue has finally been settled by the jury in plaintiff's favor, the defendant, on its present appeal, nevertheless, again presents all the questions argued on the former appeals, with others added. Barring the assignments relating to the admission and exclusion of evidence, and a few other unimportant ones, all the questions now argued have been disposed of on the two former appeals, and no good purpose could be subserved in rearguing those questions here. If, as the jury found, the minds of the parties did not meet upon some essential elements, then it must follow that no contract was entered into by the parties, and hence the defendant retains the $1,000 of plaintiff's money without right or authority of law. That is practically all that is left of this case.

2

The court fully and fairly submitted all questions of fact to the jury, and, in view that four juries (the first verdict was set aside by the trial court) have now passed on the facts, and all have found in favor of the plaintiff, the litigation should not be prolonged unless the defendant has been prejudiced in some substantial right during the progress of the trial or in the submission of the case to the jury. It is, however, due to defendant's counsel to say that many of their assignments, and a large part of their argument, are based upon the theory that there was an enforceable contract or agreement entered into between the parties. In view that such theory is not the correct one, the exceptions to the instructions and the assignments relating to the refusal of the court to charge as requested are without merit.

Nor are the assignments relating to the admission and exclusion of evidence meritorious. Without going into further detail, it must suffice to say that a careful examination of the record discloses nothing which would authorize us to interfere with the judgment in favor of the plaintiff a third time.

The judgment is therefore affirmed, with costs to the plaintiff.

MCCARTY and CORFMAN, JJ., concur.

Wheelwright v. Roman, 50 Utah 10

WHEELWRIGHT v. ROMAN

No. 2996. Decided May 8, 1917. (165 Pac., 513.)

FOR

1. TRUSTS-RESULTING TRUSTS-PAYMENT OF CONSIDERATION CONVEYANCE TO ANOTHER. Where a wife held title to property real and personal of which her husband was the sole owner, part of which had been inherited by the husband and conveyed to the wife, and part of which had been purchased with his money and title taken in her name, for business convenience and for lawful purposes, and the wife by unequivocal acts and conduct clearly indicated that she always recognized the rights of her husband and that the equitable title to the property was in him and made deeds to him of such property, the property was held by her in trust for the husband. (Page 14.)

2. TRUSTS-RESULTING TRUSTS-HUSBAND'S PROPERTY HELD BY WIFE. Where a wife held title to the sole property real and personal of her husband in trust for his benefit and made deeds and assignments of mortgages to the husband which were not registered and of which she retained possession, and all members of the family including a daughter, who delivered such deeds and assignments to the husband after the death of the wife, understood that the property was held for the sole benefit of the husband, whether or not the deeds were sufficiently delivered at time of execution, the property after her death belonged to the husband. (Page 16.)

3. APPEAL AND ERROR-JUDGMENTS APPEALABLE. A decree ordering a defendant to deliver to administratrix property real and personal conveyed to him by the intestate and account to her for the interest he may have collected on the notes, mortgages, etc., was a final and appealable judgment, since the provision for an accounting did not affect the finality of the judgment. (Page 21.)

4. JUDGMENT-PRAYER FOR GENERAL RELIEF RELIEF AWARDED. Where a husband was sued by the administratrix of his wife for property conveyed to him by instruments executed by intestate of which he received possession after her death, although the answer contained a prayer for general relief only, defendant was entitled to such specific relief as the pleadings and the evidence authorized. (Page 21.)

5. APPEAL AND ERROR-REVIEW-DISPOSITION OF CAUSE. Where it was more convenient to make and enter conclusions of law and judgment in the district court, the Supreme Court will do no more than indicate and direct what the findings, conclusions of law, and judgments shall be, and remand. (Page 22.)

Appeal from Weber County, Second District

Appeal from District Court, Second District; Hon. N J. Harris, Judge.

Action by Mary M. Wheelwright, as administratrix of the estate of Gertrude Roman, deceased, against Daniel B. Roman. Judgment for plaintiff. Defendant appeals.

REVERSED and REMANDED, with directions.

Joseph Chez for appellant.

Geo. Halverson & A. E. Pratt for respondent.

FRICK, C. J.

The plaintiff, as the administratrix of the estate of Gertrude Roman, deceased, brought this action in equity against the defendant. The purpose of the action was to require the defendant to assign to the plaintiff, as administratrix of said estate, certain notes and mortgages which she alleged were the property of the deceased at the time of her death; to require him to account for the interest he collected on said notes and mortgages; to cancel the deeds to certain real estate, which were made by the deceased in her lifetime, in which the latter conveyed to the defendant the real estate therein described, and which plaintiff alleged, in her complaint, were not delivered to, but were wrongfully obtained by, the defendant; and that such real estate be declared the property of said estate. Plaintiff also prayed for general relief.

The defendant, in his answer to the complaint, set forth the facts concerning the ownership of said real estate and said notes and mortgages in detail. He, among other things, in substance alleged that the title to the real estate described in said deeds was placed in the name of the deceased for a special purpose, and that she held the same in trust for his use and benefit; that the notes and mortgages mentioned in the complaint were made in the name of the deceased for convenience merely, and all of said notes, and mortgages were duly assigned to the defendant by said deceased during her lifetime; that the deceased in her lifetime also made the deeds to the real estate referred to in the complaint and delivered the same

Wheelwright v. Roman, 50 Utah 10

to the defendant. He also specially alleged that he furnished the whole consideration or purchase price for the real estate described in said deeds and for the notes and mortgages described in the complaint, and that the deceased held all of said notes and mortgages, together with said real estate, in trust for the defendant and for his use and benefit. The defendant prayed judgment that the plaintiff take nothing by her complaint, and for general relief.

The pleadings are very long and go into great detail with respect to the transactions involved, but we think the foregoing, when supplemented by the statement of facts which follows, will sufficiently indicate the nature and purpose of the action and the defenses set up by the defendant, and also sufficiently indicate the issues involved.

There is little, if any, conflict in the evidence, and the questions to be determined are largely questions of law rather than fact.

The substance of the evidence is to the effect that Gertrude Roman, the deceased, was the wife of the defendant; that she died intestate in Weber County, Utah, on May 1, 1910; that the plaintiff was appointed administratrix of the decedent's estate on December 8, 1913; that this action was commenced September 1, 1914; that the deceased and the defendant lived together as husband and wife for many years and had reared a family of six children, five of whom were living at the time of trial in Ogden City, Utah; that in June, 1888, the father of the defendant before the former's death conveyed to the latter by warranty deed a portion of the real estate described in the complaint; that the defendant, thereafter, in 1889, sold a part of said real estate, and thereafter, with the proceeds thereof, purchased other parcels of the real estate described in the complaint; that in October, 1896, the defendant, without consideration, conveyed a part of the property which was conveyed to him by his father to the deceased; that in August, 1894, the defendant purchased, with his own money, other parcels of the real estate described in the complaint, all of which were also conveyed to the deceased without consideration as aforesaid; that thereafter, on the 13th day of May, 1899, the