a maker and principal debtor is his real and actual engagement. He signed the note as a maker. By the terms of the instrument, he is absolutely required to pay it. The statute in such case makes him an actual principal and renders him primarily liable, though in fact he received, with the knowledge of the holder, no part of the consideration, and only signed the note for the purpose of lending his name to another. Having signed the note as an apparent maker and principal debtor, he cannot thereafter be heard to assert the contrary so as to affect his liability on the instrument. Section 119 deals, not with the discharge of parties, but with the discharge of the instrument. Of course, if the instrument is discharged, all parties are discharged, whether primarily or secondarily liable. If it was meant that a binding agreement to extend the time of payment should discharge a person, whether primarily or secondarily liable, and is included, as is contended, in the general language of subdivision 4 of section 119, then there was no occasion to insert the provision in section 120 making it a ground of discharge as to a person secondarily liable. Being so inserted strongly indicates that it was the intention to make it a ground to discharge a person only secondarily liable, and not a person primarily liable. While an agreement" binding on the holder to extend the time of payment was generally held sufficient to discharge a surety, yet it did not discharge the instrument, nor the principal debtor. It was not such an act as will discharge the instrument itself within the meaning of subdivision 4 of section 119.

Being of the opinion that the appellant is primarily liable on the instrument, and that the facts alleged in the answer and found by the court do not constitute a discharge of the instrument, it follows that the judgment of the court below must be affirmed, with costs.

It is so ordered.

MCCARTY, C. J., and FRICK, J., concur.

34 Utah-20

PRYE v. KALBAUGH et al.

No. 1861. Decided April 7, 1908 (97 Pac. 331).

1. WORK AND LABOR-ACTION FOR SERVICES-COMPLAINT. A complaint in an action for services in digging a well, which alleges that plaintiff, at the request of defendant, performed work in drilling a well for which services defendant became indebted to plaintiff in a specified sum, that the services were reasonably worth such sum, and that defendant had not paid the same or any part thereof, except a specified sum, states a cause of action.

2. SAME-EVIDENCE-INSTRUCTIONS. Where, in an action for digging a well, plaintiff showed that he agreed to dig a well and obtain water for $250, provided no rock formation was encountered, and that, when a rock formation was encountered, it was agreed that he should proceed with the work and should be paid a reasonable compensation in addition to the $250, and defendant showed that the agreement required plaintiff to dig a well and supply a sufficient quantity of water for $250, or receive no pay, an instruction that plaintiff to recover must show that he obtained a sufficient supply of water, unless it was found that the agreement was afterwards modified, and that if there was a contract under which plaintiff agreed to dig the well for defendant at a stipulated price, and that after the work had been commenced the parties altered the contract, plaintiff was entitled to recover reasonable value for his work subsequently performed, unless he stipulated to perform the work on condition that he was to be paid only on success, fairly stated the law applicable to the theories of the parties.

3. CONTRACTS-MODIFICATION-CONSIDERATION.

Where the original contract is executory on both sides, either in whole or in part, and the parties in forming a new contract waived or released any liability created by the original contract, such waiver is a consideration for the promise, of the party whose liability is thus released.

4. APPEAL AND ERROR-DISCRETION OF TRIAL COURT-SPECIAL VERDICTS SUBMISSION OF ISSUES. Under Revised Statutes 1898, section 3163, providing that the court may direct the jury to find a special verdict on all or any of the issues, etc., it is within the discretion of the court to submit or refuse to submit particular questions of fact, and error cannot be imputed to it without a showing of an abuse of discretion.1

1 Genter v. Min. Co., 23 Utah 165, 64 Pac. 362; Mangum v. Min. Co., 15 Utah 534, 50 Pac. 834.

5. TRIAL-DISCRETION OF COURT-SUBMISSION OF SPECIAL ISSUES. Where, in an action for digging a well, the issue was whether the contract bound plaintiff to dig a well and obtain a sufficient supply of water for $250, or receive no compensation, or whether the contract bound him to dig a well for $250, provided no rock formation was encountered, and that, when a rock formation was encountered, a new agreement was entered into providing for additional compensation, the refusal of the court to submit to the jury issues whether plaintiff agreed that he would get water to supply defendant or receive no pay or whether plaintiff obtained a sufficient supply of water, etc., was not an abuse of the trial court's discretion.

6. TRIAL-ARGUMENT OF COUNSEL. Where, in an action for digging a well, the court, on objection to the argument of counsel for plaintiff that plaintiff was simple-minded, and not able to cope with men of stronger intelligence, that plaintiff and defendant were not on an equal footing, that the plaintiff in his simple-mindedness believed that defendant would pay him for the work he had done, etc., ruled that such remarks were to be considered by the jury merely as counsel's conclusions as to what the evidence proved and could not be considered as statement of facts, etc., the refusal to grant a new trial for misconduct of the counsel was not erroneous.

7.

NEW TRIAL-CONDITIONS ON DENIAL-PERFORMANCE.

The court

on hearing a motion for new trial made an order granting a new trial unless within ten days after service of notice of the decision on plaintiff he agreed to remit a part of the verdict and consented that judgment might be entered for a specified amount and costs. Two days later plaintiff filed with the clerk a remittitur in accordance with the order. On the same day an order was made entering a judgment for the specified amount and costs, and denying the motion for new trial. Held, that a motion by defendant subsequently filed, asking that the original order be made absolute, and that a new trial be granted because plaintiff had not served a copy of the remittitur, was properly denied.

APPEAL. from District Court, Third District; M. L. Ritchie, Judge.

Action by John Prye against Perry Kalbaugh and others. judgment for plaintiff against defendant Perry Kalbaugh, the latter appeals.

From

a

AFFIRMED.

C. W. Collins for appellant.

Culbert L. Olson for respondent.

APPELLANT'S POINTS.

Where under the evidence only one verdict could be rendered, it is hard for counsel to so far overstep the bounds as to cause a reversal, but where the evidence is close he is held strictly within bounds. Some of the following cases show a reversal for much less infraction than in the case at bar. (Brown v. Swineford, 44 Wis. 282, 28 Am. Rep. 582; Coe v. Van Why [Colo.], 80 Pac. 894; Lindsay v. Pettigrew [S. D.], 52 N. W. 873; Huckell v. McCoy.[Kan.], 15 Pac. 870; Railway v. Cooper [Tex.], 8 S. W. 68.)

Where there is a condition precedent to liability—strict compliance required. (9 Cyc. 615, 699, 760, 761, 782; Orman v. Ryan [Colo.], 55 Pac. 168; McIntire v. Mining Co. [Utah], 60 Pac. 552; Bishop on Contracts, secs. 586, 1422.)

The sixteenth error is the total failure of the evidence in that the complaint charges liability, if any, as agents, while the only evidence was against appellants as principals, there was no evidence tending to show liability as agents of the Bingham Consolidated Mining & Smelting Company, and therefore the verdict cannot stand. (R. S. 1898, sec. 3003, and cases cited; Peay v. Salt Lake City [Utah], 40 Pac. 206; Clark v. Sherman [Wash.], 32 Pac. 771; Miller v. Hallack [Colo.], 13 Pac. 541; Clark v. Ellithorpe [Kan.], 51 Pac. 940; Mondrou v. Goux, 51 Cal. 151; Sigourney v. Zellerbeck, 55 Cal. 431; Hart v. Carsley Mfg. Co. [Ill.], 77 N. E. 897.)

RESPONDENT'S POINTS.

Great latitude is always allowed in appealing to the jury to consider all possible facts and conclusions in support of the side upon which argument is made. It is the privilege of counsel on both sides. (Tucker v. Hunniker, 41 N. H. 323; Baker v. Madison, 62 Wis. 147; Dowell v. Wilcox, 64

Ia. 724; Baltishill v. Humphreys, 64 Mich. 514; People v. Hopt, 4 Utah 247, 120 U. S. 430; People v. Hite, 8 Utah 461; U. S. v. Musser, 4 Utah 153.)

In civil cases it is not alone sufficient to show that even grossly improper language and argument has been used by counsel, but it must further appear that the jury was influenced by such improper remarks, and in the absence of such showing they will not warrant a new trial. (Buscher v. Scully, 107 Ind. 246; Railway v. Croskell, 6 Tex. Civ App. 160; Tucker v. Cole, 54 Wis. 539.)

STRAUP, J.

This is an action brought by plaintiff against Perry Kalbaugh, Kalbaugh Company, and the Bingham Consolidated Mining & Smelting Company, a corporation, defendants, to recover a money judgment for services alleged to have been rendered in digging a well. The case was tried to the court and a jury. Plaintiff had judgment against the defendant Perry Kalbaugh, who prosecutes this appeal. In the complaint it was alleged that the defendant Perry Kalbaugh was engaged in developing and operating rock quarries; that he sometimes carried on the business in the name of Kalbaugh Company, a partnership consisting of himself and others unknown to the plaintiff; that in operating the quarries they were acting as agents for the Bingham Consolidated Mining & Smelting Company, a corporation; that between the 4th day of October and the 21st day of January, 1905, plaintiff, at the request of the defendants, performed work, labor, and services in drilling, digging through and removing rock and dirt and in doing other similar services for defendants at defendants' rock quarries in Parley's Canyon, Salt Lake county, Utah, for which services defendants became indebted to plaintiff in the sum of $794.62; that the labor and services were reasonably worth that amount; and that the defendants had not paid the sum or any part thereof except the sum of $71. No demurrer was interposed to the complaint. The defendant Perry Kalbaugh answered, alleging that he was engaged in the quarry business at the