1

by cheating, as applies against making land the subject of larceny. From such holding it is argued that, since real estate cannot be made the subject of a criminal charge if obtaining it by false pretenses, it likewise is not criminal if two or more conspire to obtain it by such means. The express language of the statute defining criminal conspiracy makes it a crime not only to conspire to cheat and defraud any person of any property by means which are in themselves criminal, but also "by any means which, if executed, would amount to a cheat, or to obtaining money or property by false pretenses." If, now, the information sufficiently charged that the defendant and Brittain conspired together to cheat and defraud another of any property by any means which, if executed, would amount to a cheat, or of obtaining property by false pretenses, a public offense was stated. That the object of the conspiracy related to real property can make no difference. In the case of People v. Richards, 1 Mich. 216, 51 Am. Dec. 75, it was held that "the crime of conspiracy does not depend upon the kind of property which it was the object of the conspiracy to obtain; and an indictment for conspiracy to cheat an individual out of lands lies. The intended fraud or cheat gives character to the transaction, and not the nature of the property." To the same effect is the case of State v. Bradley, 48 Conn. 535. We think the statute is also to that effect. The gist of it is a conspiracy to cheat and defraud a person of any property (1) by means which are in themselves criminal, (2) by means amounting to a cheat, (3) by means amounting to obtaining property by false pretenses. A conspiracy to cheat and defraud one of any property by any such means is denounced by the statute as a criminal conspiracy, regardless of the character of the property which was the object of the conspiracy. Nor was it essential that the means employed should in themselves be criminal. It is generally recognized that "it is not necessary, in order to constitute a conspiracy, that the acts agreed to be done should be acts which, if done, would be criminal. It is enough if the acts

2

agreed to be done although not criminal are wrongful; that is, amount to a civil wrong." (2 Bishop's Criminal Law [7th Ed.], sec. 178.) We think the demurrer was properly overruled.

3

Another assignment relates to the admission in evidence of the letters from Johnston to Horn, and the letter from the secretary of the mining company to Horn. The letter from the secretary was clearly hearsay and inadmissible. There is no evidence whatever to connect the defendant, or his co-conspirator, with the letter, or to show that it was written with their knowledge or by their procurement. Horn, at his own instance, and on his own written volition wrote to the company inquiring of the value of the stock and the condition of the company. The secretary of the company wrote him giving him the information. The admission in evidence of the letter was of course prejudicial. Without the contents of that letter there was no evidence tending to show the financial condition of the company or the character or value of its property, or the value of the stock, or that the representations made by Blake to Horn were false.

4

We are also of the opinion that the letters from Johnston to Horn were likewise inadmissible. It is not alleged, nor is it claimed, that Johnston was in any manner a party to the alleged conspiracy, or that he had any connection therewith. The claim made by the state

5

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is that these letters were not written by Johnston, but by either Blake or Brittain. We think the evidence was not sufficient to connect either of them with any of the letters, or to show that either of them wrote the letters, or that they were written with their knowledge, or at their instance, or by their procurement. The only testimony relied upon by the state in that regard is that the letter from Johnston to Horn was written on Colorado Bond typewriting paper; that Brittain had written letters on similar paper; that that kind of paper was sold in the market at Vernal; that the letter "h" contained in the typewritten letter had a peculiarity similar to the type of the letter "h"

on the Remington machine owned by Brittain. Though it may be said these circumstances were suspicious, yet the witnesses who testified to them also testified that there might be other Remington machines which had the same peculiarity, and that they did not know whether the same kind of paper was not also sold in the market at San Francisco, and other places. From what was shown the inference is not logical that such paper was only sold in the town of Vernal, or in that vicinity. While it was not essential to show Blake's or Brittain's authorship of the letters, or their connection therewith, or that they had induced or procured them to be written, by any direct evidence, yet it was essential to show some fact or circumstance which raised a logical inference as to the existence of the facts in issue and which were sought to be proved. The circumstances shown, though of a suspicious character, yet were not sufficient to raise such a logical inference, especially in the face of the positive and unimpeached testimony of Johnston that the letters were written by him wholly independently of either Blake or Brittain and not at the solicitation or request of either of them. Without the letters in evidence, especially the letter written by the secretary of the company to Horn, there is no evidence in the record tending to prove the essential allegations of the information with respect to the falsity of the representations of Blake as to the financial condition of the company or the character and value of its property, or the value of the stock.

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For these reasons the judgment of the court below is reversed, and the cause remanded for a new trial.

FRICK and MCCARTY, JJ., concur.

ROBERTS et al. v. TUTTLE et al.

No. 1999. Decided December 10, 1909 (105 Pac. 916).

1. CONTRACTS-CONSTRUCTION-INTENT OF PARTIES. Where the parties to a contract involving uncertainty as to its meaning have given it the same practical construction, that construction will generally be adhered to by the courts in giving effect to its provisions.1 (Page 629.)

2. VENDOR AND PURCHASER-CONSTRUCTION OF CONTRACT-AMOUNT OF DEFERRED PAYMENTS. Under a contract of sale providing for payment of the balance of the price "in monthly installments of twenty dollars per month with seven per cent. interest," the purchaser is required to pay only twenty dollars per month inclusive of interest, and the general rule of partial payments applies. (Page 630.)

3. VENDOR AND PURCHASER-CONSTRUCTION OF CONTRACT "GOOD AND MARKETABLE TITLE." In a contract for the sale of land made between the agent of the owner and the purchaser, the words requiring a "good and marketable title" refer to the record title, or the chain of title as shown by the public records, and not to the agent's authority from the owner to make the contract. (Page 631.)

4. PRINCIPAL AND AGENT-AUTHORITY OF AGENT-RIGHTS OF THIRD PERSONS. The purchasers of land in making the contract with the agent of the owner may assume that the agent has the authority he appears to have, and need not make investigation respecting such authority, especially where the name of the owner is not disclosed. (Page 632.)

5. PRINCIPAL AND AGENT-UNAUTHORIZED ACTS-LIABILITY OF AGENT TO THIRD PERSON. Where an agent undertakes to act for a principal without authority, or exceeds his authority, even though in good faith, he is liable to the person with whom he contracts for the damages sustained because of such want of authority.2 (Page 633.)

6. PRINCIPAL AND AGENT-UNAUTHORIZED CONTRACT BY AGENT-LIABILITY OF AGENT TO THIRD PERSON. An agent for the sale of land, who placed the purchaser in possession under a contract which he had no authority to make, is liable to the purchaser for the money paid on the purchase price, with interest thereon, the

1 Peay v. Salt Lake City, 11 Utah 342.

value of improvements made on the premises, the costs and expenses incurred in defending ejectment against him, and the loss of his bargain, which is the difference between the contract price and the market value of the property, less the value of the improvements at the time the judgment in ejectment was rendered.2 (Page 634.)

7. PRINCIPAL AND AGENT-UNAUTHORIZED CONTRACT BY AGENT-LIABILITY OF AGENT TO THIRD PERSON. Where the agent for the sale

of land placed the purchaser in possession under a contract he was unauthorized to make, and afterward induced the purchaser to borrow the amount of the deferred payments, representing that if such amount be tendered the owner would accept it, on the refusal of the owner to accept the amount and eviction of the purchaser, the agent is liable for the reasonable cost of procuring the money, but he is not liable for the amount of the judgment on eviction awarded the owner for the use of the premises. (Page 636.)

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

Action for breach of contract by Joseph H. Roberts and Hattie Roberts against Walter G. Tuttle, Sereno B. Tuttle, and Marcellus B. Woolley, doing business as Tuttle Broth

ers.

Judgment for plaintiffs for a part only of their claim. They appeal.

REVERSED.

Stephens, Smith & Porter for appellants.

Howat & Macmillan for respondents.

APPELLANTS' POINTS.

It seems to be well settled by the authorities that in case of doubt as to the intention of the parties to a contract, or any uncertainty in its terms, the interpretation which the parties, by their acts under their contract have practically given, it will have weight, and it may be controlling, and such constructions will generally be adopted by the courts in giving effect to its provisions. (Stewart v. Pierce, 89 2 Dunshee v. Geoghegan, 7 Utah 113.