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that he was not lawfully in the box car, could it be said that he was not lawfully in the caboose? He was there with the knowledge of the conductor who had charge of the train. If this was an extra train, on which passengers were not allowed to ride, it was the conductor's duty to inform him, and request him to leave in accordance with the regulations of the defendant; and, if plaintiff had disregarded such request, the conductor could have lawfully removed him, using no more force than was necessary for that purpose. The conductor failing to do this, it must be presumed that the plaintiff was rightfully there. A railroad company has a right to designate which of its freight trains shall carry passengers, and which shall not. It has a right to make regulations, and when so made, they are binding on its servants. Those riding on its trains are not presumed to know them. If its servants neglect or violate them, and, because of such neglect or violation, injury results to strangers, the company will be liable. It employs its servants, and has the power of removal, and the law is that the principal is bound by the acts of his agents. His liability does not necessarily arise because of any contract or privity between him and the party injured, nor is it affected by any relation existing between the parties. It is true, in many instances such liability is founded on contract, as where a traveler, by stage coach, is injured through the negligence of the driver, or where the owner of a public conveyance undertakes to carry persons or property, and injury results through the negligence of his agents. Here an action will lie against the owner founded on contract. Then there are numerous other cases where an action will lie against the principal for injury, caused by the negligence of his servant, wholly irrespective of any contract; as where one is lawfully on the highway, and a servant carelessly drives a vehicle against him, and injures him. And, generally, the master is liable for the negligence of his servant so long as the servant acts within the scope of his employment; and this, irrespective of any contract, express or implied. The maxim "respondeat superior" applies to the class of cases like the one under consideration. It makes the acts of the agent the acts of the principal, and upon this depends the safety of third persons in their dealings with agents. It is founded on public policy and convenience. To determine the liability of the principal for the negligent act of his agent, it is necessary to inquire, not as to whether the agent was authorized to do the act from which the injury resulted, or whether the act was done in violation of the principal's instructions or regulations, but as to whether the act was done by the agent, within the scope of his employment. Story, in his work on Agency, in section 452, says: "It is a general doctrine of law that, although the principal is not ordinarily liable (for he sometimes is) in a crim

inal suit for the acts or misdeeds of his agent, unless, indeed, he has authorized or co-oper ated in those acts or misdeeds, yet he is held liable to third persons in a civil suit for the frauds, deceits, concealments, misrepresentations, torts, negligences, and other malfeasances or misfeasances, and omissions of duty of his agent in the course of his employment, although the principal did not authorize or justify or participate in, or indeed know of, such misconduct, or even if he forbade the acts or disapproved of them." The learned author, in the same section, states the reason upon which the law is founded as follows: "In all cases the rule applies, 'respondeat superior,' and it is founded upon public policy and convenience; for in no other way could there be any safety to third persons in their dealings, either directly with the principal, or indirectly with him, through the instrumentality of agents. In every such case the principal holds out his agent as competent and fit to be trusted; and thereby, in effect, he warrants his fidelity and good conduct in all matters within the scope of his agency." The same doctrine is laid down by Mechem in his work on Agency, (section 734.) The conductor of the train in question was the agent of the defendant. If the plaintiff was wrongfully, on the train, it was his duty to so inform him, and remove him therefrom, which removal, so far as the evidence shows, would have avoided the injury. His neglect in doing this is the neglect of his principal. In this view of the case, the plaintiff was lawfully on the train, and the court did not err in its application of the law, as presented in the above instruc tion. Where a company has adopted the system of carrying passengers on part of its freight trains, and a person, in good faith, goes on one which is not allowed to carry passengers, not knowing it to be such a train, and is allowed to remain there by the agent of the company, he will be entitled to all the rights and remedies of a person lawfully on such a train which does carry passengers. It is the duty of the company to carry him safely. Every person riding in a railroad car is presumed to be there lawfully, and the burden is upon the carrier to show affirmatively that he was a trespasser. Railroad Co. v. Derby, 14 How. 468; Railroad Co. v. Books, 57 Pa. St. 339; Whitehead v. Railway Co., 99 Mo. 263, 11 S. W. Rep. 751; Lucas v. Railway Co., 33 Wis. 41; Railroad Co. v. Muhling, 30 Ill. 9; Bretherton v. Wood, 3 Brod. & B. 54.

Under the evidence, as disclosed by the record in this case, the third instruction, on the question of gross negligence, was properly given to the jury. The evidence shows that, after the plaintiff's position was known to the defendant, it ran its cars against the caboose in such a violent manner as to throw him to the floor, and, when found, he was unconscious and severely injured. Under such circumstances, the jury had a right to

pass on the question of gross negligence, for, even if the plaintiff was a trespasser, the defendant had no right to carelessly and recklessly injure him. In any event, it was liable for gross negligence. Railroad Co. v. Horst, 93 U. S. 291; Waterbury v. Railroad Co., 17 Fed. Rep. 671; McGee v. Railway Co., 92 Mo. 208, 4 S. W. Rep. 739.

Counsel for appellant further insist that the plaintiff was guilty of contributory negligence in getting on the train and into the caboose in question. The contributory negligence complained of is that the plaintiff went on one of defendant's trains which was not allowed to carry passengers. If this is negligence per se, then it may be said of every person who is injured on a train that he was guilty of negligence, for had he not gone on the train he would not have been injured. The fact of the plaintiff going into the caboose was not such an act as would make him guilty of negligence unless he was there after being admonished of danger, or in disregard of his perilous position, knowing it to be such; but no such monition or disregard appears from the evidence. On the contrary, the reasonable inference to be drawn therefrom is that he 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 guilty of negligence, as claimed, this would avail the defendant nothing if, by the use of ordinary care, after his position had been discovered, the injury could have been avoided. To hold otherwise would be to permit the party who is guilty of the first negligence to be willfully and wantonly injured by the other. "It is now perfectly well settled that the plaintiff may recover damages for an injury caused by the defendant's negligence, notwithstanding the plaintiff's own negligence exposed him to the risk of injury, if such injury was proximately caused by the defendant's omission, after becoming aware of the plaintiff's danger, to use ordinary care for the purpose of avoiding injury to him. We know of no court of last resort in which this rule is any longer disputed, although the same rule, in substance, but inaccurately stated, has been made the subject of strenuous controversy." 1 Shear. & R. Neg. § 99. In Northern Cent. Ry. Co. State, 29 Md. 420, the court said: "Though the deceased may have incautiously gotten upon the track of defendant's road, yet if he could not, at the time of the collision, by the exercise of ordinary care, have avoided the consequences of the defendant's negligence, assuming that there was such, the right to recover exists. If, however, by ordinary care, he might have avoided the consequences of such negligence on the part of the defendant, he would be the author of his own misfortune, and therefore no action would lie. The obligation is mutual to use care to avoid the consequences of each

V.

other's negligence, the whole matter being for the determination of the jury, as to whose negligence and want of care constituted the proximate and direct cause of the injury." Wagner v. Railway Co., 97 Mo. 512, 10 S. W. Rep. 486; Davies v. Mann, 10 Mees. & W. 545; Railroad Co. v. Still, 19 Ill. 499; Dunn v. Railway Co., 58 Me. 187; Coasting Co. v. Tolson, 139 U. S. 551, 11 Sup. Ct. Rep. 653; Creed v. Railroad Co., 86 Pa. St. 139.

The appellant also assigned as error the excluding from the evidence of the statement, "I supposed he was a car repairer." This was made by a brakeman in giving testimony as to seeing the plaintiff on the caboose before the accident, and in assigning his reasons for saying nothing to him. The only purpose this statement could serve would be to excuse the brakeman's own neglect, which could be of no advantage to the defendant. It was therefore immaterial and inadmissible. There are numerous other errors assigned, but we think they are insufficient to disturb the verdict. The judgment is affirmed.

MINER, J., concurs.

TOUSEY et al. v. ETZEL et al. (Supreme Court of Utah. Aug. 30, 1893.) REAL-ESTATE BROKERS-COMMISSIONS-NEW TRIAL -DISCRETION OF COURT.

1. The commission of a broker employed to find an absolute purchaser of property at a specified price, on terms agreeable to the seller, is not earned by procuring a person who is willing to execute a contract by which it is optional with him to make the payments specified therein; and, on his failure to do so, the contract becomes void, and he merely forfeits the amount, if any, already paid.

2. Granting a new trial because of the insufficiency of evidence is within the discretion of the trial court, and, where no abuse of discretion is apparent, the order will not be disturbed on appeal.

Appeal from district court, third district; C. S. Zane, Justice.

Action by George H. Tousey and A. E. De Ricqles, copartners, against George A. Etzel, David E. Moore, John C. Weeter, and Joseph Armstrong, to recover compensation as real-estate brokers. Plaintiffs had judgment, and from an order granting a new trial they appeal. Affirmed.

Marshall & Royle, for appellants. P. L. Williams and Loofbourow & Kahn, for respondents.

MINER, J. Plaintiffs brought this action upon a verbal contract, alleging that the defendants agreed with plaintiffs that if said plaintiffs would find and produce to them a purchaser for the North Star mining claim, upon terms that should be agreed upon between themselves and said purchaser, defendants would pay to the plaintiffs 10 per

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cent. of the purchase money that said purchaser should agree to pay as compensation for their services in the premises; that, in pursuance of such agreement, the plaintiffs found such purchaser in Rice and Gelder; that they produced Rice and Gelder to the defendants, and that, so brought together, Rice and Gelder and the defendants agreed upon the price and terms of sale; that the price so agreed upon was $20,000; that plaintiffs' commission thereon was $2,000, which, though demanded, had not been paid. The defendants answered, denying the allegations in the complaint. A jury trial then was had, and a verdict rendered for the plaintiff in the sum of $2,000. The defendant entered a motion for a new trial, based upon all the statutory grounds. The principal ground relied upon was that the evidence was insufficient to justify the verdict. Upon a full hearing, the court below made an order granting the defendant a new trial, from which order appellants (plaintiffs below) appeal. Several witnesses, including the plaintiffs, were sworn on their behalf, and from such testimony it appears that plaintiffs were to find purchasers for the property at a price of $20,000, on terms to be agreed upon by the defendants; that on Monday night, October 27, 1890, they effected a meeting between the alleged purchasers, Rice and Gelder, and the defendants, at the Continental Hotel, and that at that meeting they agreed upon everything with respect to the sale; that said Rice and Gelder agreed absolutely and unconditionally to pay the sum of $20,000, on the following terms: $500 cash; $4,500 on or before 30 days; $8,500 on or before 5 months; and the balance, of $6,500, in June. And it was then agreed that Gelder should put said contract in writing, and have it ready to be signed by all the parties next morning at 10 o'clock. The understanding was that the sale was to be absolute, and not merely an option on the property. In accordance with this arrangement, the parties met again on the following morning, October 28, 1890, and Gelder presented the writing which he had drawn up. Such proposed contract reads as follows: "Know all men by these presents, that George A. Etzel, D. E. Moore, John C. Weeter, and Joseph Armstrong, of the county of Salt Lake, parties of the first part hereto, are held and firmly bound to George Arthur Rice and William Gelder, who are styled the parties of the second part hereto, in the sum of twenty thousand (20,000) dollars lawful money of the United States, and the further sums of money which said Rice and Gelder may have expended in carrying out the obligations hereinafter set forth to be performed by said Rice and Gelder, said sums of money to be paid to said George Arthur Rice and William Gelder, their executors, administrators, or assigns, for which payments well and truly to be made the said parties of the first part

bind themselves, heirs, administrators, or assigns, firmly by these presents. Sealed with our seals, and dated, this 28th day of October, A. D. 1890. The condition of the above obligation is such that if the abovebounden parties of the first part shall on or before the said first day of May, 1891, make and execute to the parties of the second part hereto, or their assigns, and deliver the same to the American National Bank of Salt Lake, in Salt Lake City, to be held in escrow, subject to the payment of the sum of eight thousand five hundred (8,500) dollars, payable on or before the 16th day of June, A. D. 1891,-provided the said Rice and Gelder shall have on or before the first day of November, A. D. 1890, paid to the parties of the first part the sum of five hundred (500) dollars, and on or before the 28th day of November, A. D. 1890, paid the further sum of four thousand five hundred (4,500) dollars, and on or before the 1st day of May, A. D. 1891, pay into the American National Bank of Salt Lake the sum of $6,500,-subject to the delivery of certain deeds hereinafter set forth,-a good and sufficient deed for conveying to the said Rice and Gelder or assigns said deed, assuring the title free from all incumbrances, and giving to said Rice and Gelder all right, title, and interest, estate, claim, and demand, both in law and in equity, as well in possession as in expectancy of, in, or to that certain mining claim situated in the Silver Lake mining district, Utah county. territory of Utah, to wit, the mining claim known as the 'North Star,' and known as 'Lot No. 39' of the United States patent surveys in said Silver Lake district, said claim being 600 feet wide by 1,500 feet long, and more particulary described by metes and bounds in said U. S. patent survey No. 39. Then this obligation shall be void, but otherwise to be and remain in full force and effect. It is further agreed that said Rice and Gelder shall at once enter into possession of said mining claim, and shall keep a force of men not less than four in number upon said property during the life or existence of said bond, and shall proceed to develop the same in such manner as to them may be deemed best, taking out such mineral as they may see fit, and use ordinary caution in taking care of such mineral, but shall not remove any mineral from said claim without the consent of the parties of the first part hereto, except such samples as may be needed to gain a knowledge of the value of the mineral extracted, and for such work or development or sup plies furnished said Rice and Gelder shall be responsible. Now, if said Rice and Gelder shall fail to keep said force of men at work, (unless prevented by causes which they cannot control,) or shall fail to pay said sums of money at the times heretofore stipulated, then this obligation shall become void, and the money paid by said Rice and

Gelder shall become forfeit to the parties of the first part." The plaintiffs testify that this contract was read over to the defendants, and they expressed their satisfaction with it, except they wanted to have it presented to their attorney before signing it, to see if it was legal and right. On the other hand, the defendants gave testimony tending to show that, when such contract was read over, two of them expressed their disapproval of it, and desired to show it to their attorney, and, upon doing so, found and were advised that it was not a contract of purchase and sale; that it was simply an option contract without mutuality; that it did not bind Rice and Gelder to pay anything, but did bind the defendants to convey. The defendants refused to accept the contract as the one agreed upon. Rice and Gelder did not propose to give any other, whereupon the matter was abandoned, and thereupon this action was brought to recover the amount of commission claimed to be due the plaintiffs.

The principal question to be determined is, did the plaintiffs produce a purchaser or purchasers able, ready, and willing to purchase the property upon the terms agreed upon by the defendants and Rice and Gelder? If they did, then they were entitled to their commission, and to recover, even though the vendors refused to go on and perfect the sale, and even though they could not give a good title to the mine agreed to be sold. Phelps v. Prusch, 83 Cal. 626, 23 Pac. Rep. 1111; McGavock v. Woodlief, 20 How. 221. Plaintiffs claim, and the testimony shows, that the terms agreed upon were an absolute sale of the property for $20,000,$500 to be paid down in cash; $4,500 on or before 30 days; $8,500 on or before 5 months; and the balance, $6,500, in June. The contract of sale which Rice and Gelder sought to have executed as a fulfillment of such agreement differs widely from the terms of the agreement made, and cannot be considered or treated as an acceptance or fulfillment of it. An offer on the part of the purchasers to sign that contract, and no other, could not be construed as placing them in the position of purchasers who were able, ready, and willing to purchase upon the terms agreed upon, and thereby place the plaintiffs in a position whereby they could claim that they had performed their contract, and were therefore entitled to their commission. By the terms of the proposed contract, no present consideration moved from Rice and Gelder to the defendants. The $500 agreed to be paid down in cash was by the terms of such writing made payable at the option of the purchasers on November 1st. The further payments were to be made only at the option of Rice and Gelder, and the contract or option was to become void if Rice and Gelder did not make the payments, or if the defendants failed to furnish and convey the title to the mine;

and if Rice and Gelder failed to keep four men at work at the mine, or failed to pay said sums of money at the time stipulated, then the whole obligation was to become void, and the money paid by Rice and Gelder, if any, should become forfeited to the parties of the first part. From the proposed agreement, it is difficult to see wherein Rice and Gelder agreed to make the purchase, or wherein they became bound to purchase the mine, pay any money therefor, or do anything that would amount to a moving consideration for the promise they sought to obtain and enforce against the other party as a basis of plaintiff's action; and while it may be true that where an owner of land gives another, for a sufficient consideration, an option or privilege to purchase the land within any given time, in writing, with full knowledge of the facts, he is bound, and the other party is not, such contract may be enforced in equity at the instance of the party holding the option, as held in Johnston v. Trippe, 33 Fed. Rep. 536. Yet this principle cannot be held to apply to the case at bar, where no consideration is paid or agreed to be paid as a consideration for the option, and where no mutuality exists between the parties whatever. By the terms of this proposed agreement, Rice and Gelder did not agree to buy the mine. They did not agree to pay for the mine. They made no payment on the mine. They did not agree to work the mine, except at their option. They made no promise to do any thing that they did not wish to do, but did contract that they should not be bound to fulfill any part of the agreement; and, if they failed to pay the money or to work the mine on their part, then the contract should be wholly void. The contract was so carefully worded as to protect Rice and Gelder from any loss or liability at their option, and at the same time to hold the defendants to full responsibility at their option, but without any consideration whatever moving to them for their agreement. Supposing the contract had been signed by the parties on October 28, 1890, and immediately thereafter, before any money was paid, Rice and Gelder should have seen fit to repudiate it, would the defendants have any means left them to collect the $20,000, or any part of it, under such contract? We think not. The contract gave the purchasers power to render it absolutely void by failing to carry out its terms. All they had to do was to refuse to do the work or pay the money, and the contract was at an end. A proposal to accept, or an acceptance upon terms varying from those offered, is a rejection of the offer. Bank v. Hall, 101 U. S. 43. But it is not necessary to discuss this part of the case further. It is apparent that the contract, as embraced in the proposed agreement which Rice and Gelder sought to obtain from the defendants-and the only contract which they proposed to make-was not

an acceptance of the offer of sale as made by the defendants on the previous Saturday evening. There was no consideration moving from Rice and Gelder to the defendants sufficient to support their promise to convey the mine, and the agreement, if made, lacked that element of mutuality which is necessary to authorize a court of equity to decree a specific performance; that is, as Rice and Gelder were not compelled by their contract to take or pay for the mine, the defendants, could not be compelled to carry out their agreement. This element of mutuality must exist to justify the enforcement of specific performance. It is true that there are exceptions to this rule, but they do not arise in this case. See Fry, Spec. Perf. § 286; Wat. Spec. Perf. §§ 196291; Marble Co. v. Ripley, 10 Wall. 339; Lawrenson v. Butler, 1 Schoales & L. 13; Butler v. Thomson, 92 U. S. 412; Clason v. Bailey, 14 Johns. 484; Van Doren v. Robinson, 16 N. J. Eq. 256; Hawralty v. Warren, 18 N. J. Eq. 124.

It is claimed, however, that on the following morning the defendants accepted the proposed written agreement as embodying the agreement previously entered into, and that they verbally agreed to its terms, and therefore the terms of sale were agreed upon, so as to justify a recovery in this action. As to what took place when the proposed agreement was submitted for the consideration of the parties on the following morning the witnesses all differ. Their testimony is conflicting and contradictory. One of the grounds set out in the motion for a new trial was the insufficiency of the evidence to justify the verdict. It does not appear on what ground the order for a new trial was granted. If it was granted on the ground of insufficiency of the evidence to justify the verdict,-as we presume it was,it is well settled that a motion for a new trial on such ground is addressed to the sound legal discretion of the trial court, and that such an order will not be reversed on appeal, unless it appears that there has been manifest abuse of such discretion. Newton v. Brown, 2 Utah, 126; Davis v. Railway Co., 3 Utah, 218, 2 Pac. Rep. 521; White v. Railroad Co., (Utah,) 29 Pac. Rep. 1030; Pierce v. Schaden, 55 Cal. 407. We can discover no abuse of discretion in the trial court in making the order for a new trial. The order of the district court in granting a new trial is affirmed, with costs.

BARTCH and SMITH, JJ., concur.

BAUMGARTEN v. HOFFMAN. (Supreme Court of Utah. Aug. 30, 1893.) NEW TRIAL-NEWLY-DISCOVERED EVIDENCE.

A new trial should not be granted on the ground of newly-discovered evidence unless such evidence is very clear and satisfactory, and likely to affect the result.

Appeal from district court, third district; C. S. Zane, Justice.

Action by Joseph Baumgarten against Frank Hoffman for the price of a suit of clothes. Verdict for plaintiff. From an or der overruling defendant's motion for a new trial, defendant appeals. Affirmed.

M. M. Kaighn, for appellant. Grant H Smith, for respondent.

MINER, J. This action was brought to recover the price of a suit of clothes. The testimony upon the trial was conflicting. Plaintiff claims that the suit was ordered at the price of $45, and was to be ready for delivery on the 4th day of July; that on the 3d day of July, about 3 o'clock in the afternoon, defendant came to his shop, and was informed the clothes would be ready for delivery about 5 or 6 o'clock that evening. Defendant wished the clothes sent to his room, so he could use them next day, and plaintiff declined to send them to his room unless first paid for, but said he would keep the store open so that the clothing could be had that evening. Defendant did not call for them at any time. A month or so later, plaintiff asked defendant why he did not come and get the clothes, and he replied that he had not got any money at present, but would call as soon as he got the money. The goods were not called for, and after the expiration of two years, and after altering it over at some expense, the suit was sold for $25. The defendant introduced evidence tending to contradict this testimony. The jury found a verdict for the plaintiff in the sum of $20. The defendant moved for a new trial, founding his motion upon the insufficiency of the evidence to justify the verdict, and upon newly-discovered evidence, based upon the affidavit of one B. B. Quinn, wherein he states that he purchased this suit from respondent, and paid $45 for it. The plaintiff made a counter showing, wherein it appears that the pantaloons made for appellant were altered over, and, together with a coat and vest made for Mr. Vincent, were sold to Quinn for $45, and that deductions were made from the price of the goods. The motion was overruled, and defendant appeals from the order overruling his motion for a new trial, and from the judgment.

The testimony offered on the trial was conflicting. The jury found the issues for the plaintiff. There was sufficient evidence to justify the verdict, and the judgment should not be disturbed on that ground. Nor do we think the newly-discovered evidence was of such a nature as to seriously affect the result if it had been known at the time, and admitted. The facts stated in the affi davit of Quinn are not inconsistent with those stated in the affidavit of Baumgarten, and the latter clearly explains the former, and tends to sustain the testimony given on the trial where respondent claims a loss of

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