Dunyon v. Scranton Mg. & S. Co., 50 Utah 609

yet it was not required to do unreasonable things. This action was commenced within a few days after the order of suspension of the work at the mine for the winter was made. In my opinion that order, standing alone as it does, did not constitute an act whereby the defendant made it impossible for the conditions on which plaintiff was to be paid his deferred salary to happen, and hence did not constitute a breach of the contract. The action was therefore prematurely brought and should not prevail. While it is true that defendant did not interpose a formal plea of abatement on the ground that the action was prematurely brought, yet it constantly insisted that plaintiff was not entitled to payment, and now insists that the judgment in his favor is erroneous. For the reasons stated it is clearly erroneous. In my opinion it is, however, not erroneous for the reasons advanced in Mr. Justice GIDEON'S opinion.

While the judgment should be reversed, it should, however, be reversed for the reasons I have stated, and the cause should be remanded to the district court of Salt Lake County, with directions to dismiss the action, but to do so without prejudice to a future action so that plaintiff may enforce payment of the deferred portion of his salary in case the defendant has made it impossible for it to comply with the conditions upon which it was to be paid.

INDEX

ACCORD AND SATISFACTION.

PART PAYMENT. Where defendants had in writing acknowledged
indebtedness in the sum of $676, to plaintiff, such indebtedness could
not be discharged by a subsequent writing providing that, in con-
sideration of the surrender of the statement of indebtedness, one
defendant would pay $50, and by payment of such sum. Gray v.
Bullen, 270.

ACTION.

1. "CAUSE OF ACTION"-ELEMENTS. An action involves a primary right
and a primary duty, a breach of such right and duty, a remedial
right and a remedial duty, and the remedy or relief, while a cause
of action consists merely of the primary right, the primary duty, and
the breach thereof. Felt City Townsite Co. v. Felt Inv. Co., 364.

2. SPLITTING CAUSES OF ACTION-BREACHES OF CONTRACT. Though
there are many breaches of a single contract, they may not be split
up into several causes of action. Felt City Townsite Co. v. Felt Inv.
Co., 364.

3. PLEADING-JOINDER OF CAUSES-SEPARATE STATEMENT. In action
by vendee of townsite lots for breaches of contract by corporate
vendor, cause of action against other defendants for appropriating
certain proceeds of sales held obnoxious to Comp. Laws 1907, section
2961, as to uniting causes of action not affecting all parties to the
action. Felt City Townsite Co. v. Felt Inv. Co., 364.

4. JOINDER OF CAUSES-PARTIES AND INTERESTS INVOLVED. Complaint
in stockholders' action held to improperly join causes of action in
favor of the corporation against its officers with causes of action
against the corporation to enjoin and set aside assessments on the
stock. Blake v. Boston Development Co., 347.

5. NATURE AND FORM-EQUITABLE RELIEF. Party is not entitled to
have action dismissed merely because relief adversary is entitled to
may be equitable rather than legal. Mills v. Gray, 224.

6. PURPOSE OF INSTITUTION-ENFORCEMENT OF LEGAL RIGHTS. Courts
are instituted to enforce legal rights, as contradistinguished from
moral obligations, and where legal right is in one against whom
moral obligation is asserted, legal right prevails. Mills v. Gray, 224.

ADVERSE POSSESSION.

1. NECESSITY OF OCCUPATION, USE AND INCLOSURE. Whether or not tax
deed was color of title, defendant held to have acquired no title to
land outside of his inclosure, where no part was inclosed, occupied,
or used. Pacific Land & Water Co. v. Hartsough, 581.

2. ELEMENTS OF ADVERSE POSSESSION. Where land was inclosed, cultivated, and used and in actual open and adverse possession of defendant and his predecessors, who for seven successive years paid the taxes, title held acquired by adverse possession. Pacific Land & Water Co. v. Hartsough, 581.

ALTERATION OF INSTRUMENTS.

1. PLEADING ANSWER-SUFFICIENCY. In action on note in which plaintiff alleged interest payments since maturity, allegations of answer held not to raise defense of alteration after alleged conditional indorsers signed. Farmers' & Stockgrowers' Bank v. Pahvant Valley Land Co., 35.

2. EVIDENCE-PRESUMPTIONS. Where stamping alleged by defendants as alteration of note set forth in plaintiff's complaint appears to be regular on its face, presumption is that stamping was properly made on note before delivery to plaintiff. Farmers' & Stockgrowers' Bank v. Pahvant Valley Land Co., 35.

3. RATIFICATION-ACTUAL KNOWLEDGE. Although party must have actual knowledge of alteration of note before payment, to constitute ratification thereof where payment is pleaded and admitted without alleging that it was made without defendants' knowledge or consent, ratification is sufficiently implied. Farmers' & Stockgrowers' Bank v. Pahvant Valley Land Co., 35.

4. PLEADING STATUTE. General rule of pleading alteration of a written instrument under Code requires that, where instrument is declared upon in its altered form, answer should be general denial of all material allegations of complaint or specific denial of execution of instrument or a specific statement of facts relied upon in defense. Farmers' & Stockgrowers' Bank v. Pahvant Valley Land Co., 35.

APPEAL AND ERROR.

1. DISMISSAL GROUNDS. That bill of exceptions was not settled in time is not ground for dismissal of appeal. McEwan v. Anderson, 317.

2. SAME SAME. Appeal will be dismissed, the trial clerk certifying that no notice of or undertaking on appeal has been filed there, and no assignment of errors, abstracts, or briefs having been served or filed by appellant, though the transcript has been on file in the appellate court for nearly a year. McEwan v. Anderson, 317.

3. UNDERTAKING ON APPEAL. Undertaking held sufficient as one on appeal under Comp. Laws 1907, section 3306, though its terms are broad enough to also constitute it undertaking to stay execution under section 3307. Peale v. Clark, 83.

4. REVERSAL OF JUDGMENT ON DEMURRER-DISPOSITION OF CASE. Judgment will not be entered or directed for defendant on merits on reversal of judgment sustaining special demurrer in the nature of abatement to counter-claim, unless it clearly appears demurrer was frivolous or that no defense can be made. Peale v. Clark, 83.

5. QUESTIONS NOT RAISED Below-DEFENSES. If there was any reason why plaintiff should not have prevailed in his action at law to recover his share of the proceeds of the partnership business, it was

the duty of defendant to plead it as a defense, and, not having done so, he cannot complain on appeal. Mills v. Gray, 224.

6. HARMLESS ERROR-FINDINGS OF FACT. In partner's action against another to recover share in proceeds of shipment of ores belonging to partnership, mere fact that findings were expanded beyond issues was not prejudicial to defendant. Mills v. Gray, 224.

7. REVERSAL-HARMLESS ERROR. If defendant is not prejudiced in a substantial right, judgment for plaintiff cannot be reversed for mere technical errors. Mills v. Gray, 224.

8. FORMER APPEAL-REVERSAL-NECESSITY OF SUBSTANTIAL ERROR. After two appeals had been taken and four juries had found for plaintiff, judgment in his favor will not be interfered with unless defendant has been prejudiced in some substantial right. Tyng v. Constant-Loraine Inv. Co., 1.

9. JUDGMENTS APPEALABLE. A decree ordering a defendant to deliver to administratrix property conveyed to him intestate and account for interests he may have collected on notes, mortgages, etc., was a final and appealable judgment, notwithstanding the provision for an accounting. Wheelwright v. Roman, 10.

10. REVIEW-DISPOSITION OF CAUSE. Where it was more convenient to make and enter conclusions of law and judgment in district court, Supreme Court will do no more than indicate and direct what findings, conclusions of law, and judgments shall be, and remand. Wheelwright v. Roman, 10.

11. REVIEW-EQUITY CASE. In appeal in equity case, Supreme Court can review testimony to determine facts and equities of parties, though its views conflict with trial court's findings. Lake Shore Duck Club v. Lake View Duck Club, 76.

12. VARIANCE BETWEEN FINDINGS AND CONCLUSIONS. Where conclusions of law are palpably at variance with findings as to amount of plaintiff's recovery, Supreme Court, on plaintiff's appeal, will order lower court to set aside erroneous conclusions of law and to substitute conclusions entitling plaintiff to judgment in accordance with express findings, also to enter judgment. Parrott Bros. Co. v. Ogden City, 512.

13. REVIEW-FINDINGS OF FACT. Findings supported by a fair preponderance of the evidence will not be disturbed on appeal. Allen v. Allen, 104.

14. FINDINGS OF COURT-REVIEW. In law case findings of trial court, if supported by some substantial evidence, cannot be disturbed. In re Frandsen's Will, 156.

15. REVIEW-FINDINGS OF FACT. Supreme Court in law case cannot interfere with findings and judgment where there is ample evidence to support findings. Beesley v. Boardman, 149.

16. SAME SAME. Supreme Court in equity case cannot interfere with findings of fact where evidence on controlling question is not only in sharp conflict but justifies findings. Beesley v. Boardman, 149.

17. REVIEW-FINDINGS OF JURY. In law case Supreme Court has no right to interfere with jury's findings on any substantial evidence,

but cannot permit judgment to stand unless based on findings based on some substantial evidence. In re Hansen's Will, 207.

18. DIRECTION OF JUDGMENT. In law case, Supreme Court is loth to direct judgment on appeal, except in cases involving law questions only, but, though questions of fact may be invited, if each party has had fair opportunity to present case, courts should not permit litigation to proceed merely to satisfy litigious spirit. In re Hansen's Will, 207.

19. REVIEW-APPEAL FROM JUDGMENT ON PLEADINGS EVIDENCE. In suit to collect on note and to foreclose mortgage security on realty, letter of defendant's counsel, asking an extension of time for payment, though admitted without objection, would be disregarded on appeal from judgment for plaintiff on pleadings. Brewer v. Romney, 236.

20. REVIEW FINDINGS. Findings of fact and judgment in an equity case will not be disturbed where great weight of the evidence supports them. Spanish Fork City v. Jarvis, 275.

21. REVIEW-FINDINGS. Where the evidence is not presented for review, findings of fact will be presumed fully sustained by the evidence. Headlund v. Daniels, 381.

22. OPINION OF TRIAL COURT-CONSIDERATION. Where opinion of trial court is settled in bill of exceptions and is made a part of record, appellate court may look to it to ascertain court's reasons for its decision, but such reasons are without any judicial effect. Headlund v. Daniels, 381.

23. ABANDONED ALLEGATIONS. Where no evidence is introduced to support allegation in complaint of damages too speculative to be basis of action, and no finding is made thereon, defendant is not prejudiced thereby. Alder v. Crosier, 437.

24. HARMLESS ERROR-AMOUNT OF DAMAGES. Where amount of damages assessed in action for fraud is less than that testified to by any one, there is no prejudice to losing party. Alder v. Crosier, 437.

25. REVIEW-FINDINGS OF FACT. Findings of fact depending on the credibility of witnesses are binding on appeal. James v. Jensen, 485.

26. HARMLESS ERROR-ADMISSION.

The only question involved being the identity of a steer, which the court found on sufficient evidence belonged to plaintiff, any error in over-ruling objection of a question to him calling for a conclusion was harmless. James v. Jensen, 485.

27. HARMLESS ERROR. In action for damage to shipment of horses, error in overruling defendant railroad's motion for nonsuit on ground there was no proof of terms of contract of transportation was rendered harmless by defendant's introducing contract in evidence. Dee v. San Pedro, L. A. & S. L. R. Co., 167.

28. SAME EVIDENCE. In action against railroad for damages to shipment of horses, where jury did not allow for any one horse more than value agreed upon in contract, road was not prejudiced by ruling permitting proof of value at destination instead of at shipping point, as provided. Dee v. San Pedro, L. A. & S. L. R. Co., 167.