NEW MEXICO & S. P. R. CO. v. MADDEN. (Supreme Court of New Mexico. Aug. 23, 1893.)

JUDGMENT ENTRY-JOINT DEFENDANTS APPEAL BY ONE OF SEVERAL DEFENDANTS.

1. Where an action in tort against two railroad companies jointly, in which both defendants pleaded, is prosecuted to judgment without severance or dismissal as to either, the judgment is against both, though the entry thereof is as against "defendant" in the singular number, and in the title of the case indorsed thereon one of the defendants is referred to only by "et al."

2. Where, in an action in tort against two defendants, judgment is rendered against both jointly, one may bring error to review the same without joining therein the codefendant.

Error to district court, Bernalillo county; William D. Lee, Judge.

Action in tort by James H. Madden against the New Mexico & Southern Pacific Railroad Company and another. Plaintiff had judgment, and the defendant the New Mexico & Southern Pacific Railroad Company brought error, which plaintiff now moves to quash. Motion denied, and judgment directed.

Henry L. Waldo, for plaintiff in error. H. L. Warren, for defendant in error.

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FALL, J. This is upon error from Bernalillo county, and the cause is submitted upon motion of defendant in error to quash the writ, and also upon the merits. The motion to quash is based upon the ground that the suit was against both plaintiff in error and the Atchison, Topekа & Santa Fe Railroad, while the cause was submitted and judgment really rendered only against the latter, or the Atchison, Topeka & Santa Fe Railroad Company. It is also contended that, if the judgment was against both, then, without notice of severance, both should have sued out writ. The record is confused. The action was against both parties mentioned, and each pleaded. The cause bered 2,691, and upon the record is at times indorsed "James H. Madden vs. New Mex. & Southern Pac. R. R. Co.;" at other times, "N. M. & S. P. R. R. Co. et al.;" again, "Madden vs. A. T. & S. F. R. R. Co.," etc. No severance was had, and no dismissal entered. The jury "find for the plaintiff," and the first judgment is against the "defendant" in the cause No. 2,691, indorsed "James H. Madden vs. New Mexico & Southern Pacific Railroad Co. et al.;" and afterwards appears another judgment against the "defendants," the entry being indorsed "James H. Madden vs. New Mexico & Southern Pacific Railroad Co. and the A. T. & S. F. R. R. Co., No. 2,691." Motions are made, and instruc-1 tions asked, sometimes in the name of the defendant, and again of defendants. From a careful examination of the record, it would appear that the cause proceeded against both defendants to judgment. When singular appears, it can be construed as plural, and vice versa. Section 1851, Comp. Laws N. M.

This being an action of tort, judgment might be rendered against both or either party, and either party, upon proper proceeding, is entitled to review, while the other may pursue the course dictated by his own judgment. The judgment being against the plaintiff in error, writ properly sued out, and no notice of severance necessary, motion to quash writ is overruled. 1 Black, Judgm. § 207, and cases cited.

Plaintiff in error assigns several causes of error relying upon the refusal of the court to instruct the jury to return a verdict for the defendant below, and shows here that there was a variance between the declaration and proof,-it is claimed a fatal variance. It is also claimed that there was no proof whatever to sustain a verdict against this plaintiff in error. This last construction is borne out by the record, as there does not appear to be a particle of proof to support the declaration against the plaintiff in error. This being the case, it is not necessary for us to go further, and consider in this cause the other points presented. Proof having failed, plaintiff was entitled to have the jury instructed to return a verdict for it 1 Black, Judgm. § 207, and cases cited. But plaintiff in error claims that, if the judgment as to it is reversed or set aside, the judgment against its codefendant should also be reversed. To this we cannot agree. Defendant sued out writ of error. If its codefendant desired a reversal, it should have asked for it; while if the judgment against it is not good, because indorsed "A. T. & S. F. R. R. Co.," instead of "Atchison, Topeka & Santa Fe Railroad Company," as is contended, then there is nothing for us to re

verse.

Defendant in error asks in a supplemental motion that we may reform the judgment as to the Atchison, Topeka & Santa Fe Railroad Company. That defendant is not yet in this court. It would appear from the instructions given that the court only regarded this case as against the Atchison, Topeka & Santa Fe Railroad Company, and, indeed, there was a suggestion in the oral argument that the cause had been dismissed as to the plaintiff here. This, as stated before, does not appear upon the record, and, for the reasons given, the cause will be remanded, with instructions to the court below to set aside the judgment as to the New Mexico & Southern Pacific Railroad Company.

O'BRIEN, C. J., and FREEMAN and SEEDS, JJ., concur,

BUNTZ et al. v. LUCERO. (Supreme Court of New Mexico. Aug. 23, 1893.)

WRIT OF ERROR-DISMISSAL-EXCEPTIONS TO DENYING NEW TRIAL.

As a motion for a new trial is addressed to the discretion of the court, where the only

assignment of error is the overruling of such motion, the writ of error may properly be dismissed.

Error to district court, Dona Ana county; John R. McFie, Judge.

Action in ejectment between Annie D. Buntz and another and Barbero Lucero. From the judgment rendered, Buntz and another bring error. Affirmed.

E. C. Wade, for plaintiffs in error. S. B. Newcomb, for defendant in error.

error.

LEE, J. This was a suit in ejectment, and was brought to this court by a writ of The only matter brought up by bill of exceptions is the evidence, which is voluminous. There were no errors assigned at the commencement of this term, and the defendant in error moved for a dismissal of the writ of error for that reason. On the fourth day of the term the plaintiff in error filed the following as an assignment of error: "Now comes the above plaintiffs in error by E. C. Wade, their attorney, and makes the following assignment of errors in the above-entitled cause: First, the court erred in overruling the motion for a new trial." Section 2189 of the Compiled Laws provides that “on appeals and writs of error the appellant and plaintiff in error shall assign error on or before the first day of the term to which the cause is returnable. In default of such assignment of error, the appeal or writ of error may be dismissed, and the judgment affirmed, unless good cause for such failure be shown." Considering the assignment of error in this case as having been filed in time, it would be entirely insufficient, under the rulings of this court, as it has been held that a motion for a new trial is a motion addressed to the sound discretion of the court, and the decision of the court in granting or refusing it alone is not the proper subject of a bill of exceptions. Coleman v. Bell, 4 N. M. 46, 12 Pac. Rep. 657. Therefore, there being no assignment of error in this case which the court would consider, the motion to dismiss the writ of error might be sustained. But, having carefully examined the entire record, and not having been able to discover any error that would justify a reversal, we think the judgment below should be affirmed, which is accordingly ordered.

O'BRIEN, C. J., and SEEDS, FALL, and FREEMAN, JJ., concur.

COUGHRAN et al. v. BIGELOW et al. (Supreme Court of Utah. Aug. 31, 1893.) CONTRACT OF SALE-BOND FOR CONVEYANCE-INCONSISTENT PROVISIONS-RIGHTS OF VENDEE.

1. Where it appears from a contract for the sale of land that the parties have in fact agreed that by failure to make certain deferred payments at the specified times the vendee shall

lose the benefit of his purchase, the courts will grant him no relief.

2. Where a bond is given for the performance by a vendor of a contemporaneous contract of sale, which is referred to in, and so made a part of, the recitals of the bond, stipulations in such contract as to the times of making payments and of delivery of the conveyance will control repugnant provisions in the condition of the bond.

3. The liability of a surety is not to be extended by implication.

Appeal from district court, Weber county; James A. Miner, Justice.

Action by Eugene W. Coughran and Nathan H. Cottrell against Henry C. Bigelow and H. P. Henderson. From a judgment for defendants, plaintiffs appeal. Affirmed.

Dey & Street and Bennett, Marshall & Bradley, for appellants. Brown & Henderson, for respondents.

BARTCH, J. This action was brought to recover the penalty in a bond which was given as a guaranty for the faithful performance of a contract to convey real estate. The respondents were sureties on the bond. When the evidence of the plaintiffs was introduced the defendants moved for a nonsuit, which motion was sustained over the objec tion of plaintiffs, who thereafter moved for a new trial, and, this motion being overruled, they prosecuted their appeal in this court.

The contract in question, among other things, specified that the purchase price for the land was $10,000, of which $3,333 was paid down, $3,334 was to be paid October 1, 1890, and $3,333 on April 1, 1891, and then further provides as follows: "And, in case any payments are not made as above provided, the amount paid herein is forfeited, and this receipt is from that time void and inoperative; and when the payments are made as above provided the land to be conveyed to said Eugene W. Coughran and Nathan H. Cottrell, or their assigns, with good title free from incumbrances." This is a unilateral contract, and according to its terms it was incumbent upon the vendees to pay the whole amount of the purchase price before they could demand performance on the part of the vendors; the vendees, however, having the right to demand and receive the deed from the vendors simultane ously with the making of the last payment, which was to be made on the 1st day of April, 1891. The contract contains a forfeiture clause, and to prevent a forfeiture on the part of the vendees it was necessary for them to make the several payments as therein provided. Time, therefore, was material and of the essence of the contract, and, if the payments were not made on the days specified, a right of forfeiture immediately accrued to the vendors, which they could enforce or not, at their pleasure; but if they afterwards received the payment the right of forfeiture, as to them, was gone. Where

It appears from the contract that the parties have in fact agreed that if the vendee shall fail to make the payments as and at the times therein specified, he shall lose the benefit of his purchase, the courts will grant him no relief. Martin v. Morgan, 87 Cal. 203, 25 Pac. Rep. 350. The contract in this case, standing alone, presents no difficulty of construction. Its provisions are simple, and the intentions of the parties appeared clear and unequivocal, an apparent difficulty arising only when, in connection therewith, it is attempted to reconcile the provision of the bond which was given as a guaranty for the faithful performance of the contract on the part of the vendors. The condition of the bond provides as follows: "The condition of the above obligation is such that the above-bounden E. A. Reed and H. H. Henderson, on or before the first day of October next, or in case of their death before that time, if the heirs of the said E. A. Reed and H. H. Henderson, within three months after their decease, shall and do, upon the reasonable request of the said Eugene W. Coughran and Nathan H. Cottrell, their heirs or assigns, make, execute, and deliver, or cause so to be made, a good and sufficient warranty deed in fee simple, free from all incumbrance, and with the usual covenants of warranty." And, after giving a description of the property, it further specifies: "Provided, the said Eugene W. Coughran and Nathan H. Cottrell comply with their part of the contract this day made and delivered to them by the said E. A. Reed and H. H. Henderson, and a copy of which is hereto attached, then the above obligation to be void; else to remain in full force and virtue." This obligation refers to the performance of the contract already made and entered into by the parties, and may be rendered null and void either by the vendees failing to make the payments as provided, or, if the payments are so made, by the vendors conveying the property as provided. Under the contract the vendors were not required to make conveyance until the last payment was made on April 1, 1891. Here the payments were made a condition precedent. Under the condition in the bond conveyance was to be made on or before the 1st day of October, 1890. Here the payments were made a condition subsequent, and yet the condition of the bond requires the vendees to perform their part of the contract. These provisions are repugnant to each other, and this has raised the question as to whether the parties to the transaction are controlled by the conditions of the bond, or by the contract, or whether the two instruments form but one contract. Both instruments were executed and delivered on the same day; the contract first, and then the bond, which refers to the contract. Both refer to the same transaction, to the same subject-matter. They are therefore presumed to evidence but a single contract, and should be construed together, and the intent of the

The bond was given to secure the performance of the contract, refers to it, and this makes the contract a part of it,-a part of the preamble of the condition of the bond,— and it must therefore be construed the same as though the contract was copied into its preamble. Locke v. McVean, 33 Mich. 473. If, then, the contract became a part of the preamble, it must serve to explain the condition of the bond. The contract had been made as a result of the transaction between the parties, and it is but fair to presume that the time of the payments and of the delivery of the deed was therein specified in accordance with the intention of the parties. This view is strengthened by the fact, apparent upon the face of both the contract and the bond, that there is no provision whatever for security for future payments of purchase money, and from this fact it is quite reasonable to infer that no such payments were contemplated by the parties, and that they intended them to be made before the delivery of the deed. This view also renders consistent the reference in the bond to the contract, for why should they refer to the contract in reference to the payments if in fact it did not express the intention of the parties in that particular? Obviously the contract was intended and regarded as the real agreement between the parties, and the repugnant clause was inserted into the bond by mistakes or inadvertence. But, if there should be some doubt as to this view, still, as the contract was referred to, and thereby became a part of the recital in the preamble of the bond, it will control. In a bond the recital is conclusive that the parties admitted the facts therein recited, and they must be presumed to have knowledge of the contents of instruments to which reference is made. If there be fault, it is that of the party who accepts an instrument containing a reference to another which does not correctly represent the intentions of the parties to the transaction. Bell v. Bruen, 1 How. 169; 2 Amer. & Eng. Enc. Law, 464; Coles v. Hulme, 8 Barn. & C. 568; Sawyer v. Hammatt, 15 Me. 40. It follows that the guarantors were liable only for the faithfuì performance of the stipulations contained in the contract to be performed by the vendors upon the performance by the vendees of their undertakings. It being a unilateral contract, containing a forfeiture clause, and time being material, their liability was complete whenever the vendees had strictly performed their part of the contract, and the vendors had made default. No consideration moved as to them, and they are not bound beyond the exact terms of their guaranty. They would be liable solely because of their promise, and would be under no moral obligation to pay the penalty of their bond, outside of the precise terms of the contract. It is a well-settled rule of law that in cases of the kind un

der consideration the undertaking of the guarantor must be strictly construed, and beyond the exact words of his agreement he is neither liable by implication nor by construction. His liability is strictissimi juris. In Miller v. Stewart, 9 Wheat. 680, Mr. Justice Story, delivering the opinion of the court, said: "Nothing can be clearer, both upon principle and authority, than the doctrine that the liability of a surety is not to be extended, by implication, beyond the terms of the contract. To the extent, and in the manner, and under the circumstances pointed out in his obligation, he is bound, and no further. It is not sufficient that he may sustain no injury by a change in the contract, or that it may even be for his benefit. He has a right to stand upon the very terms of his contract; and if he does not assent to any variation of it, and a variation is made, it is fatal." 1 Brandt, Sur. § 93; 2 Pars. Cont. 16; Insurance Co. v. Johnson, 120 Ill. 622, 12 N. E. Rep. 205; Dobbin v. Bradley, 17 Wend. 422; Birckhead v. Brown, 5 Hill, 634; Bank v. Kaufman, 93 N. Y. 273. In conformity with the doctrine thus expressed, the contract between the vendors and vendees in this case fixed the liability of the guarantors, and the failure of the vendees to make their payment on the 1st day of October, 1890, as stipulated in the contract, operated as a discharge of the guarantors from their liability; and their obligation, in the absence of a waiver, was at end. acceptance of the money by the vendors afterwards, though it would be a waiver as to them, could produce no such effect on the part of the guarantors. Nor is the number of days intervening material in such case. Time was of the essence of the contract, and the failure to pay on the day stipulated was fatal. Pars. Cont. § 361; Walrath v. Thompson, 6 Hill, 540; Cunningham v. Wrenn, 23 I. 64. It is not deemed important to the decision of this case to consider the other points raised in the record. We think the motion for the nonsult was properly sustained. The judgment is affirmed.

ZANE, C. J., and SMITH, J., concur.

The

ARMSTRONG et al. v. OGDEN CITY et al. (Supreme Court of Utah. Aug. 31, 1893.) MUNICIPAL CORPORATIONS-PUBLIC IMPROVEMENTS -ASSESSMENTS—INJUNCTION.

1. Under Comp. Laws 1888, § 1800, requiring that the city council give notice of intention to levy taxes for public improvements, naming the purpose, describing the improve ment, the district to be affected, and the estimated cost, and designating the time for hearing objections, a notice that the council intends to "pave and macadamize Twenty

Fifth street, from the west line of W. avenue to the west line of V. avenue," which shall be known as "Paving District No. 2;" that the "boundaries of the district are lines running 150 feet back and parallel with the outer lines of each side of the streets, on each and every

block, and for the full length thereof;" that the estimated cost is a certain sum; that local taxes will be levied on the real estate in the district for the benefits; and that it will hear objections on a certain day at a given hour,-is sufficient.

2. Since the statute requiring notice by the common council of intention to levy taxes for improvements provides that if written objections, signed by one-half the property owners, be not filed at or before the time fixed for the hearing, the city council shall be deemed to have acquired jurisdiction to order the improvement, a complaint to enjoin a levy of taxes for an improvement, which alleges that objections were filed by such a number of property owners, is not demurrable, since the demurrer admits the allegation, and in such case the council could have no jurisdiction to order the improvement.

Appeal from district court, Weber county; James A. Miner, Justice.

Suit by J. C. Armstrong and others against Ogden city and others to restrain the levy of a tax for local improvements. A demurrer to the complaint was sustained, and plaintiffs appeal. Reversed.

Brown & Henderson and H. H. Henderson, for appellants. James N. Kimball, for respondents.

ZANE, C. J.

This is an appeal from an order of the court below sustaining a general demurrer to plaintiffs' complaint, in which numerous facts are alleged, and a prayer for an injunction restraining the levy of a tax for paving Twenty-Fifth street, in district No. 2, in Ogden city, and from a judgment of the court against the plaintiffs after they had elected to stand on their complaint. The plaintiffs claim that the facts stated in the notice of intention to levy the tax were insufficient to authorize the levy. It is as follows: "Notice of intention of the city council of Ogden city of creating a district for paving, and of paving and macadamizing the streets therein, and to defray the expenses of such improvement by local assessment. The city council of Ogden city, in the territory of Utah, gives notice that it intends to make the following improvements, to wit: Pave and macadamize the following streets: Twenty-Fifth street, from the west line of Washington avenue to the west line of Wall avenue. This shall be known as 'Paving District No. 2.' The boundaries of the district to be affected and benefited are lines running 150 feet back, and parallel with the outer lines of each side of the streets on each and every block, and for the full length thereof, therein. The estimated cost of such improvement is $40,000.00. For the payment of the costs and expenses thereof, the city council intends to levy local taxes upon the real estate lying and being within said paving district to the extent of the benefits to such property by reason of such improvements. The city council will, on March 29, 1892, at 10 A. M., hear objections in writing from any and all persons interested in said local assessments. By order of the city council. T. P. Bryan, City Re

corder." The statute requiring the notice and prescribing the statements it shall contain is as follows: "In all cases before the levy of any taxes for any improvements provided for in this act, the city council shall give notice of intention to levy said taxes, naming the purpose for which the taxes are to be levied, which notice shall be published at least twenty days in a newspaper published within such city. Such notice shall describe the improvements so proposed, the boundaries of the district to be affected or benefited by such improvements, the estimated cost of such improvements and designate the time set for such hearing. If at or before the time so fixed written objections to such improvements, signed by the owners of one-half of the front feet abutting upon that portion of the street, lane, avenue or alley to be so improved, be not filed with the recorder, the city council shall be deemed to have acquired jurisdiction to order the making of such improvements." Comp. Laws 1888, § 1800. In the notice set forth in the complaint, the intention to levy the tax is expressed, and the purpose of the tax, the description of the improvements proposed, the boundaries of the district, the estimated cost, and the time set for such hearing, are all given with sufficient certainty.

The plaintiffs also alleged in their complaint that the owners of one-half of the front feet abutting on the street named filed with the recorder written objections to the improvements in question before the time designated in the notice for hearing objections to them. The demurrer admitted this allegation. The filing of such objections, in writing, as alleged, signed by the owners of one-half of the front feet abutting on the street, deprived the city council of jurisdiction to order the improvements. We are of the opinion that the court erred in sustaining the demurrer to the plaintiffs' complaint, and in entering judgment against the plaintiffs.

The judgment and order appealed from are reversed, and the cause is remanded, with costs to plaintiffs.

BARTCH, J., concurs.

SMITH et al. v. SIPPERLY et al., (GRAY et al., Interveners.)1

Aug. 30, 1893.)

(Supreme Court of Utah. ASSIGNMENT FOR BENEFIT OF CREDITORS - FRAUD -PREFERENCES.

1. An assignment by an insolvent merchant, who has been doing business solely on capital borrowed from his relatives, who knew of his insolvency, in which such relatives are preferred, is fraudulent in fact as to his other creditors, who were ignorant of the circumstances. Webb v. Armistead, 26 Fed. Rep. 70, followed.

2. An assignment for the benefit of creditors which contains a preference which is fraudalent in fact, is void in toto. Crawford v. Neal, 12 Sup. Ct. Rep. 759, 144 U. S. 598, followed.

'Rehearing denied.

Appeal from district court, Salt Lake county; T. J. Anderson, Justice.

Attachment suits by John O. Smith and others against A. F. Sipperly and others, in which M. J. Gray and others intervened. From a judgment for plaintiffs, interveners appeal. Affirmed.

John W. Judd, for appellants. Dey & Street, for respondents.

SMITH, J. A. F. Sipperly and H. S. Lee were, prior to January 13, 1892, partners doing business as merchants at Salt Lake City, and on the above date made an assignment for the benefit of their creditors of all of their property to F. W. Ross. The written assignment, which appears in the record, after creating a class of first preferred creditors, which is denominated "Schedule A," contains the following clause: "And whereas, the said A. F. Sipperly is indebted to Mrs. A. F. Sipperly by note dated the 10th day of March, 1887, for $4,800.00, and to Mrs. E. J. Walling of South Cambridge, New York, by note of fourteen hundred dollars, ($1,400.00;) and whereas, the above said H. S. Lee is indebted to H. A. Lee by note in the sum of two thousand dollars, ($2,000.00:) These last-named three debts shall hereafter be known in this conveyance as 'Schedule B.'" Then follows a long list of creditors of the firm, who are classed as "Schedule C." The writing provides that the assignee shall pay the debts in the following order: First, Schedule A in full; next, Schedule B in full; next, Schedule C in full; and the surplus, if any, to the assignors. Schedule A amounts to about $3,000. Schedule B, as above shown, amounted to $8,200, without interest. Schedule C amounted to about $22,000. Only $11,000 was realized from the property assigned. A number of the creditors named in Schedule C renounced the assignment so far as their claims were concerned, and attached the property of Sipperly & Co. in the hands of Ross, the assignee. Ross defended, and the creditors in Schedules A and B intervened. Ross was afterwards by agreement appointed receiver by the court, and as such sold the property, and holds the proceeds to be disposed of by the judgment of the court. The court found, among other things, the following facts: That Mrs. A. F. Sipperly was the wife, and Mrs. E. J. Walling was the aunt, of the assignor A. F. Sipperly; that H. A. Lee was the son of the assignor H. S. Lee; that the firm of Sipperly & Co., and both members thereof, were insolvent, and had each and all been insolvent since the time they first began business in 1887; that the money due to the parties named in Schedule B was the only capital employed by said firm in said business, and was loaned by said creditors to the members of the firm, to be used as such capital, with full knowledge of the insolvency of the firm and the members thereof;