FLORENCE MANUFACTURING COMPANY v. PACIFIC EXPRESS COMPANY.

No. 2037. Decided August 26, 1909 (103 Pac. 966). JUDGMENT-TRIAL-SUBMISSION ON AGREED STATEMENT OF FACTSFINDINGS. Where the findings in a case submitted on an agreed statement of facts are not within the stipulation, and the findings and the stipulation are not responsive to the pleadings, the judgment on the findings is without support, and must be reversed. (Page 348.)

APPEAL from District Court, Third District; Hon. T. D. Lewis, Judge.

Action by the Florence Manufacturing Company against the Pacific Express Company.

Judgment for plaintiff. Defendant appealed.

REVERSED AND REMANDED FOR NEW TRIAL.

P. L. Williams, George H. Smith and John. G. Willis for appellant.

W. R. Hutchinson for respondent.

STRAUP, C. J.

The plaintiff brought this action to recover the value of merchandise alleged to have been lost in transit. The plaintiff alleged that it, at Florence, Mass., delivered two boxes of merchandise of the value of $398.20 to the American Express company, a common carrier of goods, to be transported to the consignee at Salt Lake City; that the goods were carried to Omaha, Neb., where they were transferred and delivered to the defendant, also a common carrier of goods; and "that the defendant did not safely carry and deliver said goods, but, on the contrary, so negligently conducted and misbehaved in regard to the same as such carrier that the said merchandise was wholly destroyed and lost."

The defendant denied all the material allegations of the complaint, and alleged that the goods were delivered to and accepted by the American Express Company for transportation upon a special written contract by the terms of which it was stipulated and agreed, among other things, that the carrier should not be liable for any loss or damage to the property exceeding the sum of fifty dollars unless the true value thereof was stated in the contract of shipment, and unless a claim of loss was presented in writing within ninety days after shipment, and that the stipulations contained in the contract extended and inured to the benefit of connecting carriers. The defendant also alleged that no valuation was placed on the merchandise by the plaintiff when it was delivered for shipment, and that no claim of loss was presented within ninety days after shipment. The case was submitted to the court upon an agreed statement of facts upon which the court made findings and rendered a judgment in favor of the plaintiff for the sum demanded in the complaint.

The findings do not show, nor is it sufficiently shown by the agreed stipulation of facts, whether the merchandise was shipped in pursuance to the special contract of shipment alleged in the defendant's answer. Neither the stipulation nor the findings show whether a valuation was placed upon the goods by the plaintiff when they were delivered for shipment, or whether a claim of loss was presented. The agreed statement of facts shows that the "shipment was destroyed while in transit" in the state of Wyoming, but by whom, or through whose default, or in what manner, or from what cause, is not stipulated or disclosed. The findings show that the defendant "failed and neglected to safely carry the goods, and permitted and caused them to be wholly destroyed." But the findings in such respect cannot be broader than the stipulation of facts upon which the case was submitted to the court as to all the issuable facts. Counsel in making the stipulation of facts and in causing findings to be made were quite precise and definite in stipulating and causing to be found the corporate ex

istence, capacity, and business of the parties, and various other things, upon which there was no issue, but failed to stipulate with respect to many of the material and issuable facts. The findings as made are not even within the stipulation, nor are they, nor is the stipulation, responsive to the pleadings.

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The judgment is therefore without support, and must be reversed and the case remanded for a new trial. It is so ordered, with costs to appellant.

FRICK and MCCARTY, JJ., concur.

VOLKER-SCOWCROFT LUMBER COMPANY et al. v. VANCE et al.

No. 2028. Decided August 26, 1909 (103 Pac. 970).

1. MECHANICS' LIENS-ENFORCEMENT

RIGHT TO PERSONAL JUDG

MENT UPON FAILURE OF LIEN. Prior to the Code, a personal judgment apart from the granting of equitable relief could not be rendered in an equitable action, but under the reformed procedure a personal judgment can be given in an action to foreclose a mechanic's lien when the lien fails, in view of Const. art. 8, section 19, providing that there shall be but one form of civil action, and law and equity may be administered in the same action, and Comp. Laws 1907, section 2961, providing that plaintiff may unite in the same complaint several causes of action, legal or equitable, or both, where they arose out of (1) the same transaction, or transactions connected with the same subject of action; or (2) contract, express or implied, etc. (Page 353.)

2. MECHANICS' LIENS-ENFORCEMENT-PERSONAL JUDGMENT AGAINST OWNER-FAILURE TO DEMAND. Under Comp. Laws 1907, section 2960, providing that the complaint must contain a demand of the relief which plaintiff claims, it is not error to refuse a personal judgment in mechanic's lien foreclosure proceedings, upon failure of the lien, where plaintiff did not demand a personal judgment in the complaint, and neither plaintiff, nor other lien claimants, in any manner asked for a personal judgment in any of the proceedings before the case was finally submitted; the only relief demanded being the awarding of a lien and sale of the premises and a deficiency judgment after sale. (Page 355.)

3. MECHANICS' LIENS-ENFORCEMENT-PERSONAL JUDGMENT AGAINST OWNER. Where the owner contracted for the construction of a building on her premises, the contractor agreeing to furnish all material and labor, and the owner to pay him the full contract price, and materialmen sold and delivered materials to the contractor to be used in the building, they were not entitled to a personal judgment against the owner in mechanic's lien foreclosure proceedings upon failure of the lien. (Page 356.)

4. PLEADING-JOINDER OF LEGAL AND EQUITABLE ACTIONS UNDER CODE-STATEMENT OF CAUSE OF ACTION. Whatever liability is to be given the reformed system of procedure permitting a union by plaintiff of legal and equitable primary rights and remedies in one suit, the complaint must contain all the necessary facts for both grounds for relief. (Page 356.)

5. HOMESTEAD CONSTRUCTION OF STATUTE. Whatever liability should be given the construction of homestead exemption laws, they should not be so construed as to give the debtor the power by his own acts to deprive others of rights previously obtained in his property. (Page 359.)

6. HOMESTEAD PROPERTY CONSTITUTING. Under the Constitution providing that a homestead may consist of one or more parcels of land, together with the appurtenances and improvements, and the statute providing that a homestead may consist of lands which may be in one or more localities, a dwelling house upon the land claimed to be exempt and a residence therein are not necessary to render a homestead exempt from execution, but an exemption may be claimed in any lands of the debtor, and a selection of a homestead made at any time before sale.1 (Page 359.)

7. MECHANICS' LIENS-RIGHT TO LIEN. It appearing that only the two lots are necessary for the convenient use and occupation of the building constructed thereon, and for which the material was furnished, the materialmen would in no event be entitled to a mechanic's lien on any other lots of the owner, under Comp. Laws 1907, section 1379, giving such a lien upon so much of the land upon which the building is constructed as may be necessary for the convenient use and occupation of the building. (Page 359.)

8. MECHANICS' LIENS RIGHT TO LIEN HOMESTEAD. Where the owner of two lots had a dwelling erected thereon, if she selected and claimed the lots as her homestead, and the value of the lots with the improvements did not exceed the amount to

1Kimball v. Lewis, 17 Utah 381, 53 Pac. 1037; Kimball v. Salisbury, 19 Utah 161, 56 Pac. 973.

which she was entitled as a homestead exemption, persons furnishing materials for the dwelling were not entitled to a lien on the lots, unless when the material was furnished the owner owned other lands separate from the lots which, independently of them, constituted her homestead, and equalled the value of her homestead exemption. (Page 360.)

9. STIPULATIONS-EFFECT. If a stipulation offered in evidence was intended to be only evidential for the purpose alone of the particular proceeding then pending, and as to which it was made merely to save time, and for convenience to avoid calling witnesses, it should be regarded only as evidentiary, and not conclusive of the facts therein recited; but, if it was intended as a stipulation of ultimate facts in the cause, and applicable alike to all proceedings and trials thereof, it should be regarded as conclusive as to all such facts, unless upon sufficient grounds it be shown to the court why either or both of the parties ought to be relieved from its effects or be allowed to withdraw it. (Page 361.)

APPEAL from District Court, Second District; Hon. J. A. Howell, Judge.

Action by the Volker-Scowcroft Lumber Company against Mary Flinder Vance and another to foreclose a meterialman's lien in which Halverson Bros., appeared, claiming a lien for material and labor.

Judgment of dismissal. Plaintiff and Halverson Bros. appealed.

REVERSED AND REMANDED.

Former Appeal, 32 Utah 74.

Halverson & Pratt for appellant.

J. D. Skeen for respondent.

APPELLANTS' POINTS.

To the effect that a subsequent selection of homestead cannot affect existing liens, we cite the following: Tuttle v.