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that he was not lawfully in the box car, inal suit for the acts or misdeeds of his agent, could it be said that he was not lawfully in unless, indeed, he has authorized or co-operthe caboose? He was there with the knowl- | ated in those acts or misdeeds, yet he is held edge of the conductor who had charge of the liable to third persons in a civil suit for the train. If this was an extra train, on which frauds, deceits, concealments, misrepresentapassengers were not allowed to ride, it was tions, torts, negligences, and other malfeathe conductor's duty to inform him, and re- sances or misfeasances, and omissions of duquest him to leave in accordance with the ty of his agent in the course of his employregulations of the defendant; and, if plain- | ment, although the principal did not authortiff had disregarded such request, the con- ize or justify or participate in, or indeed ductor could have lawfully removed him, us- know of, such misconduct, or even if he foring no more force than was necessary for bade the acts or disapproved of them." The that purpose. The conductor failing to do learned author, in the same section, states this, it must be presumed that the plaintiff the reason upon which the law is founded as was rightfully there. A railroad company follows: "In all cases the rule applies, 're has a right to designate which of its freight spondeat superior,' and it is founded upon trains shall carry passengers, and which shall | public policy and convenience; for in no other not. It has a right to make regulations, anil way could there be any safety to third per when so made, they are binding on its serv- sons in their dealings, either directly with ants. Those riding on its trains are not pre- the principal, or indirectly with him, through sumed to know them. If its servants neglect the instrumentality of agents. In every such or violate them, and, because of such neglect case the principal holds out his agent as or violation, injury results to strangers, the competent and fit to be trusted; and there company will be liable. It employs its serv- by, in effect, he warrants his fidelity and ants, and has the power of removal, and the good conduct in all matters within the scope law is that the principal is bound by the acts of his agency.” The same doctrine is laid of his agents. His liability does not necessa- down by Mechem in his work on Agency, rily arise because of any contract or privity | (section 734.) The conductor of the train in between him and the party injured, nor is it question was the agent of the defendant. affected by any relation existing between the If the plaintiff was wrongfully, on the train, parties. It is true, in many instances such it was his duty to so inform him, and reliability is founded on contract, as where a move him therefrom, which removal, so far traveler, by stage coach, is injured through as the evidence shows, would have aroided the negligence of the driver, or where the the injury. His neglect in doing this is the owner of a public conveyance undertakes to neglect of his principal. In this view of the carry persons or property, and injury results case, the plaintiff was lawfully on the train, through the negligence of his agents. Here and the court did not err in its application an action will lie against the owner founded of the law, as presented in the above instrue on contract. Then there are numerous other tion. Where a company has adopted the sys. cases where an action will lie against the tem of carrying passengers on part of its principal for injury, caused by the negligence freight trains, and a person, in good faith, of his servant, wholly irrespective of any goes on one which is not allowed to carry contract; as where one is Jawfully on the

passengers, not knowing it to be such a train, highway, and a servant carelessly drives a and is allowed to remain there by the agent vehicle against him, and injures him. And, of the company, he will be entitled to all the generally, the master is liable for the negli- rights and remedies of a person lawfully on gence of his servant so long as the servant such a train which does carry passengers. It acts within the scope of his employment; is the duty of the company to carry him and this, irrespective of any contract, ex- safely. Every person riding in a railroad car press or implied. The maxim "respondeat is presumed to be there lawfully, and the superior” applies to the class of cases like burden is upon the carrier to show affirmathe one under consideration. It makes the tively that he was a trespasser. Railroad acts of the agent the acts of the principal, Co. v. Derby, 14 How. 468; Railroad Co. v. and upon this depends the safety of third Books, 57 Pa. St. 339; Whitehead v. Railway persons in their dealings with agents. It is Co., 99 Mo. 263, 11 S. W. Rep. 751; Lucas v. founded on public policy and convenience. Railway Co., 33 Wis. 41; Railroad Co. y. To determine the liability of the principal for Muhling, 30 Ill. 9; Bretherton v. Wood, 3 the negligent act of his agent, it is necessary Brod. & B. 54. to inquire, not as to whether the agent was Under the evidence, as disclosed by the authorized to do the act from which the in- record in this case, the third instruction, on jury resulted, or whether the act was done in the question of gross negligence, was properviolation of the principal's instructions or ly given to the jury. The evidence shows regulations, but as to whether the act was that, after the plaintiff's position was known done by the agent, within the scope of his to the defendant, it ran its cars against the employment. Story, in his work on Agency, caboose in such a violent manner as to throw in section 452, says: “It is a general doctrine him to the floor, and, when found, he was of law that, although the principal is not or- unconscious and severely injured. Under dinarily liable (for he sometimes is) in a crim- such circumstances, the jury had a right to pass on the question of gross negligence, for, other's negligence, the whole matter being even if the plaintiff was a trespasser, the de- for the determination of the jury, as to fendant had no right to carelessly and reck- whose negligence and want of care constilessly injure him. In any event, it was lia- tuted the proximate and direct cause of the ble for gross negligence. Railroad Co. k. injury." Wagner V. Railway Co., 97 Mo. Horst, 93 U. S. 291; Waterbury v. Railroad 512, 10 S. W. Rep. 436; Davies v. Mann, 10 Co., 17 Fed. Rep. 671; McGee v. Railway Co., Mees. & W. 545; Railroad Co. v. Still, 19 32 Mo. 208, 4 S. W. Rep. 739.

Ill. 499; Dunn V. Railway Co., 58 Me. 187; Counsel for appellant further insist that Coasting Co. v. Tolson, 139 U. S. 551, 11 the plaintiff was guilty of contributory neg. Sup. Ct. Rep. 653; Creed v. Railroad Co., 86 ligence in getting on the train and into the Pa. St. 139. caboose in question. The contributory neg. The appellant also assigned as error the ligence complained of is that the plaintiff excluding from the evidence of the state went on one of defendant's trains which ment, "I supposed he was a car repairer.” was not allowed to carry passengers. If This was made by a brakeman in giving testhis is negligence per se, then it may be timony as to seeing the plaintiff on the casaid of every person who is injured on a boose before the accident, and in assigning train that he was guilty of negligence, for his reasons for saying nothing to him. The had he not gone on the train he would not only purpose this statement could serve have been injured. The fact of the plain. would be to excuse the brakeman's own neg. tiff going into the caboose was not such an lect, which could be of no advantage to the act as would make him guilty of negligence defendant. It was therefore immaterial unless he was there after being admonished and inadmissible. There are numerous othof danger, or in disregard of his perilous er errors assigned, but we think they are position, knowing it to be such; but no such insufficient to disturb the verdict. The judgmonition or disregard appears from the evi- ment is affirmed. dence. On the contrary, the reasonable inference to be drawn therefrom is that he MINER, J., concurs. was in the caboose with the consent of the conductor and other servants of the defendant. This was a question of fact to be determined by the jury. But even if he were

TOUSEY et al. y. ETZEL et al. guilty of negligence, as claimed, this would avail the defendant nothing if, by the use

(Supreme Court of Utah. Aug. 30, 1893.) of ordinary care, after his position had been


-DISCRETION OF COURT. discovered, the injury could have been avoid

1. The commission of a broker employed ed. To hold otherwise would be to permit

to find an absolute purchaser of property at a the party who is guilty of the first negli- specified price, on terms agreeable to the seller, gence to be willfully and wantonly injured

is not earned by procuring a person who is by the other. “It is now perfectly well set

willing to execute a contract by which it is op

tional with him to make the payments specified tled that the plaintiff may recover damages therein; and, on his failure to do so, the confor an injury caused by the defendant's neg- tract becomes void, and he merely forfeits the ligence, notwithstanding the plaintiff's own

amount, if any, already paid.

2. Granting a new trial because of the innegligence exposed him to the risk of in

sufficiency of evidence is within the discretion jury, if such injury was proximately caused of the trial court, and, where no abuse of disby the defendant's omission, after becoming

cretion is apparent, the order will not be dis

turbed on appeal. aware of the plaintiff's danger, to use ordinary care for the purpose of avoiding injury

Appeal from district court, third district; to him. We know of no court of last re

C. S. Zane, Justice. sort in which this rule is any longer disput

Action by George H. Tousey and A. E. ed, although the same rule, in substance,

De Ricqles, copartners, against George A. but inaccurately stated, has been made the

Etzel, David E. Moore, John C. Weeter, and subject of strenuous controversy." 1 Shear.

Joseph Armstrong, to recover compensation & R. Neg. $ 99. In Northern Cent. Ry. Co.

as real-estate brokers. Plaintiffs bad judgState, 29 Md. 420, the court said:

ment, and from an order granting a new trial “Though the deceased may have incautious- they appeal. Affirmed. ly gotten upon the track of (lefendant's road, Marshall & Royle, for appellants. P. L. yet if he could not, at the time of the col- Williams and Loofbourow & Kahn, for re lision, by the exercise of ordinary care, have spondents. avoided the consequences of the defendant's negligence, assuming that there was such, the MINER, J. Plaintiffs brought this action right to recover exists. If, however, by or- upon a verbal contract, alleging that the dinary care, he might have avoided the con- defendants agreed with plaintiffs that if said sequences of such negligence on the part of plaintiffs would find and produce to them the defendant, he would be the author of a purchaser for the North Star mining claim, his own misfortune, and therefore no action upon terms that should be agreed upon be would lie. The obligation is mutual to use tween themselves and said purchaser, de care to avoid the consequences of each fendants would pay to the plaintiffs 10 per




cent. of the purchase money that said pur- bind themselves, heirs, administrators, or as. chaser should agree to pay as compensation signs, firmly by these presents. Sealed with for their services in the premises; that, in our seals, and dated, this 28th day of Ocpursuance of such agreement, the plaintiffs tober, A. D. 1890. The condition of the found such purchaser in Rice and Gelder; above obligation is such that if the abovethat they produced Rice and Gelder to the bounden parties of the first part shall on or defendants, and that, so brought together, before the said first day of May, 1891, make Rice and Gelder and the defendants agreed and execute to the parties of the second part upon the price and terms of sale; that the hereto, or their assigns, and deliver the same price so agreed upon was $20,000; that to the American National Bank of Salt Lake, plaintiffs' commission thereon was $2,000, in Salt Lake City, to be held in escrow, subwhich, though demanded, had not been paid. | ject to the payment of the sum of eight The defendants answered, denying the al- thousand five hundred (8,500) dollars, pay. legations in the complaint. A jury trial then able on or before the 16th day of June, was had, and a verdict rendered for the A. D. 1891,-provided the said Rice and Gelplaintiff in the sum of $2,000. The defend- der shall have on or before the first day ant entered a motion for a new trial, based of November, A. D. 1890, paid to the parupon all the statutory grounds. The prin- ties of the first part the sum of five hun. cipal ground relied upon was that the evi. dred (500) dollars, and on or before the dence was insufficient to justify the verdict. 28th day of November, A. D. 1890, paid the Upon a full hearing, the court below made further sum of four thousand five hundred an order granting the defendant a (4,500) dollars, and on or before the 1st trial, from which order appellants (plain- day of May, A. D. 1891, pay into the Amertiffs below) appeal. Several witnesses, in- ican National Bank of Salt Lake the sum cluding the plaintiffs, were sworn on their of $6,500,-subject to the delivery of certain behalf, and from such testimony it appears deeds hereinafter set forth,-a good and that plaintiffs were to find purchasers for the sufficient deed for conveying to the said property at a price of $20,000, on terms to Rice and Gelder or assigns said deed, be agreed upon by the defendants; that on suring the title free from all incumbrances, Monday night, October 27, 1890, they ef- and giving to said Rice and Gelder all right, fected a meeting between the alleged pur- title, and interest, estate, claim, and de chasers, Rice and Gelder, and the defend- mand, both in law and in equity, as well in ants, at the Continental Hotel, and that at possession as in expectancy of, in, or to that meeting they agreed upon everything that certain mining claim situated in the with respect to the sale; that said Rice and Silver Lake mining district, Utah county, Gelder agreed absolutely and unconditional territory of Utah, to wit, the mining claim ly to pay the sum of $20,000, on the follow- known as the 'North Star,' and known as ing terms: $500 cash; $4,500 on or before 'Lot No. 39' of the United States patent sur30 days; $8,500 on or before 5 months; and veys in said Silver Lake district, said the balance, of $6,500, in June. And it was claim being 600 feet wide by 1,500 feet then agreed that Gelder should put said con- long, and more particulary described by tract in writing, and have it ready to be metes and bounds in said U. S. patent sursigned by all the parties next morning at vey No. 39. Then this obligation shall be 10 o'clock. The understanding was that the void, but utherwise to be and remain in sale was to be absolute, and not merely an full force and effect. It is further agreed option on the property. In accordance with that said Rice and Gelder shall at once enter this arrangement, the parties met again on into possession of said mining claim, and the following morning, October 28, 1890, shall keep a force of men not less than four and Gelder presented the writing which he in number upon said property during the life had drawn up. Such proposed contract or existence of said bond, and shall pro reads as follows: "Know all men by these ceed to develop the same in such manner as presents, that George A. Etzel, D. E. Moore, to them may be deemed best, taking out John C. Weeter, and Joseph Armstrong, of such mineral as they may see fit, and use the county of Salt Lake, parties of the first ordinary caution in taking care of such part hereto, are held and firmly bound to mineral, but shall not remove any mineral George Arthur Rice and William Gelder, from said claim without the consent of the who are styled the parties of the second parties of the first part hereto, except such part hereto, in the sum of twenty thousand samples as may be needed to gain a knowl(20,000) dollars lawful money of the United edge of the value of the mineral extracted, States, and the further sums of money which and for such work or development or supsaid Rice and Gelder may have expended plies furnished said Rice and Gelder shall in carrying out the obligations hereinafter be responsible. Now, if said Rice and Gelset forth to be performed by said Rice and der shall fail to keep said force of men Gelder, said sums of money to be paid to at work, (unless prevented by causes which said George Arthur Rice and William Gel- they cannot control) or shall fail to pay der, their executors, administrators, or as- said sums of money at the times heretofore signs, for which payments well and truly stipulated, then this obligation shall become to be made the said parties of the first part | void, and the money paid by said Rice and

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Gelder shall become forfeit to the parties and if Rice and Gelder failed to keep four of the first part." The plaintiffs testify that men at work at the mine, or failed to pay this contract was read over to the defend- said sums of money at the time stipulated, ants, and they expressed their satisfaction then the whole obligation was to become with it, except they wanted to have it void, and the money paid by Rice and Gelpresented to their attorney before signing der, if any, should become forfeited to the it, to see if it was legal and right. On the parties of the first part. From the proposed other hand, the defendants gave testimony agreement, it is difficult to see wherein Rice tending to show that, when such contract and Gelder agreed to make the purchase, or was read over, two of them expressed their wherein they became bound to purchase the disapproval of it, and desired to show it to mine, pay any money therefor, or do any. their attorney, and, upon doing so, found and thing that would amount to a moving conwere advised that it was not a contract of sideration for the promise they sought to purchase and sale; that it was simply an obtain and enforce against the other party option contract without mutuality; that it as a basis of plaintiff's action; and while did not bind Rice and Gelder to pay any. it may be true that where an owner of land thing, but did bind the defendants to con- gives another, for a sufficient consideration, vey. The defendants refused to accept the an option or privilege to purchase the land contract as the one agreed upon. Rice and within any given time, in writing, with full Gelder did not propose to give any other, knowledge of the facts, he is bound, and whereupon the matter was abandoned, and the other party is not, such contract may be thereupon this action was brought to recov- enforced in equity at the instance of the er the amount of commission claimed to be party holding the option, as held in John. due the plaintiffs.

ston v. Trippe, 33 Fed. Rep. 536. Yet this The principal question to be determined principle cannot be held to apply to the case is, did the plaintiffs produce a purchaser or at bar, where no consideration is paid or purchasers able, ready, and willing to pur- agreed to be paid as a consideration for the chase the property upon the terms agreed option, and where no mutuality exists beupon by the defendants and Rice and Gel- tween the parties whatever. By the terms der? If they did, then they were entitled of this proposed agreement, Rice and Gelder to their commission, and to recover, even did not agree to buy the mine. They did though the vendors refused to go on and per- not agree to pay for the mine. They made fect the sale, and even though they could no payment on the mine. They did not not give a good title to the mine agreed to be agree to work the mine, except at their opsold. Phelps v. Prusch, 83 Cal. 626, 23 Pac. tion. They made no promise to do any. Rep. 1111; McGavock v. Woodlief, 20 How. thing that they did not wish to do, but did 221. Plaintiffs claim, and the testimony contract that they should not be bound to shows, that the terms agreed upon were an fulfill any part of the agreement; and, if absolute sale of the property for $20,000,- they failed to pay the money or to work the $.300 to be paid down in cash; $4,500 on or mine on their part, then the contract should before 30 days; $8,500 on before 5 be wholly void. The contract was so caremonths; and the balance, $6,500, in June. fully worded as to protect Rice and Gelder The contract of sale which Rice and Gelder from any loss or liability at their option, and sought to have executed as a fulfillment of at the same time to hold the defendants to such agreement differs widely from the full responsibility at their option, but withterms of the agreement made, and cannot be out any consideration whatever moving to considered or treated as an acceptance or ful- them for their agreement. Supposing the fillment of it. An offer on the part of the contract had been signed by the parties on purchasers to sign that contract, and no October 28, 1890, and immediately thereaft. other, could not be construed as placing er, before any money was paid, Rice and them in the position of purchasers who were Gelder should have seen fit to repudiate it, able, ready, and willing to purchase upon would the defendants have any means left the terms agreed upon, and thereby place them to collect the $20,000, or any part of it, the plaintiffs in a position whereby they under such contract? We think not. The could claim that they had performed their contract gave the purchasers power to rencontract, and were therefore entitled to their der it absolutely void by failing to carry commission. By the terms of the proposed out its terms. All they had to do was to contract, no present consideration moved refuse to do the work or pay the money, from Rice and Gelder to the defendants. and the contract was at an end. A proposal The $500 agreed to be paid down in cash to accept, or an acceptance upon terms varywas by the terms of such writing made pay- ing from those offered, is a rejection of the able at the option of the purchasers on offer. Bank v. Hall, 101 U. S. 43. But it is November 1st. The further payments were not necessary to discuss this part of the to be made only at the option of Rice and case further. It is apparent that the conGelder, and the contract or option was to tract, as embraced in the proposed agreebecome void if Rice and Gelder did not make ment which Rice and Gelder sought to obthe payments, or if the defendants failed to tain from the defendants--and the only confurnish and convey the title to the mine; tract which they proposed to make-was not


an acceptance of the offer of sale as made Appeal from district court, third district; by the defendants on the previous Satur- C. S. Zane, Justice. day evening. There was no consideration Action by Joseph Baumgarten against moving from Rice and Gelder to the defend- Frank Hoffman for the price of a suit of ants sufficient to support their promise to clothes. Verdict for plaintiff. From an orconvey the mine, and the agreement, if der overruling defendant's motion for a new made, lacked that element of mutuality trial, defendant appeals. Affirmed. which is necessary to authorize a court of

M. M. Kaighn, for appellant. Grant H equity to decree a specific performance; that

Smith, for respondent is, as Rice and Gelder were not compelled by their contract to take or pay for the mine,

MINER, J. This action was brought to the defendants . could not be compelled to carry out their agreement. This element of

recover the price of a suit of clothes. The

testimony upon the trial was conflicting. mutuality must exist to justify the enforce

Plaintiff claims that the suit was ordered ment of specific performance. It is true

at the price of $45, and was to be ready that there are exceptions to this rule, but

for delivery on the 4th day of July; that they do not arise in this case. See Fry,

on the 3d day of July, about 3 o'clock in Spec. Perf. § 286; Wat. Spec. Perf. $8 196

the afternoon, defendant came to his shop, 291; Marble Co. v. Ripley, 10 Wall. 339; Law

and was informed the clothes would be renson v. Butler, 1 Schoales & L. 13; But

ready for delivery about 5 or 6 o'clock that ler v. Thomson, 92 U. S. 412; Clason v.

evening. Defendant wished the clothes sent Bailey, 14 Johns. 484; Van Doren v. Rob

to his room, so he could use them next day, inson, 16 N. J. Eq. 256; Hawralty V. War

and plaintiff declined to send them to his ren, 18 N. J. Eq. 124.

room unless first paid for, but said he would It is claimed, however, that on the fol.

keep the store open so that the clothing lowing morning the defendants accepted the

could be had that evening. Defendant did proposed written agreement as embodying

not call for them at any time. A month or the agreement previously entered into, and

so later, plaintiff asked defendant why he that they verbally agreed to its terms, and

did not come and get the clothes, and he therefore the terms of sale were agreed up

replied that he had not got any money at on, so as to justify a recovery in this ac

present, but would call as soon as he got tion. As to what took place when the pro

the money. The goods were not called for, posed agreement was submitted for the con

and after the expiration of two years, and sideration of the parties on the following

after altering it over at some expense, the morning the witnesses all differ. Their tes

suit was sold for $25. The defendant introtimony is conflicting and contradictory. One duced evidence tending to contradict this of the grounds set out in the motion for a

testimony. The jury found a verdict for new trial was the insufficiency of the evi

the plaintiff in the sum of $20. The de dence to justify the verdict. It does not

fendant moved for a new trial, founding his appear on what ground the order for a new

motion upon the insufficiency of the evidence trial was granted. If it was granted on the

to justify the verdict, and upon newly-dis. ground of insufficiency of the evidence to

covered evidence, based upon the affidarit justify the verdict,--as we presume it was,- of one B. B. Quinn, wherein he states that it is well settled that a motion for a new

he purchased this suit from respondent, and trial on such ground is addressed to the

paid $15 for it. The plaintiff made a coun. sound legal discretion of the trial court, and

ter showing, wherein it appears that the that such an order will not be reversed on

pantaloons made for appellant were altered appeal, unless it appears that there has been

over, and, together with a coat and vest manifest abuse of such discretion. Newton v.

made for Mr. Vincent, were sold to Quinn Brown, 2 Utah, 126; Davis v. Railway Co., for $15, and that deductions were made from 3 Utah, 218, 2 Pac. Rep. 521; White v. Rail- the price of the goods. The motion was road Co., (Utah) 29 Pac. Rep. 1030; Pierce overruled, and defendant appeals from the v. Schaden, 55 Cal. 407. We can discover

order overruling his motion for a new trial, no abuse of discretion in the trial court in and from the judgment. making the order for a new trial. The order The testimony offered on the trial was of the district court in granting a new trial conflicting. The jury found the issues for is affirmed, with costs.

the plaintiff. There was sufficient evidence

to justify the verdict, and the judgment BARTCH and SMITH, JJ., concur.

should not be disturbed on that ground. Nor do we think the newly-discovered evidence was of such a pature as to seriously affect

the result if it had been known at the time, BAUMGARTEN V. HOFFMAN.

and admitted. The facts stated in the affi(Supreme Court of Utah. Aug. 30, 1893.)

davit of Quinn are not inconsistent with NEW TRIAL-NEWLY-DISCOVERED EVIDENCE.

those stated in the affidavit of Baumgarten, A new trial should not be granted on

and the latter clearly explains the former, the ground of newly-discovered evidence unless Buch evidence is very clear and satisfactory,

and tends to sustain the testimony given on and likely to affect the result.

the trial where respondent claims a loss of

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