Hecla Gold Mining Co. v. Gisborn

HaRT, Dist. J. This action was brought in Salt Lake County to recover for certain water in Tooele County, alleged to have been sold and delivered to defendant. The case was tried by the court without a jury on April 23, 1898, and a judgment entered for plaintiff for the sum of $360 and costs. The first error assigned by the defendant in his appeal to this court is that the trial court had no jurisdiction to try the case. The court below, in some three findings, decides that the defendant agreed to pay the plaintiff said sum of $360, at Salt Lake City, Salt Lake County, Utah. The written agreement, or memorandum of agreement, in evidence, does not specify the place of payment, but plaintiff did not rely upon this writing as the agreement, but relied upon an oral agreement, the principal terms of which were embodied in the writing. While there is some controversy as to whether the contract was entered into in Salt Lake County or Tooele County, there is evidence that the contract was made at Salt Lake County, where the parties resided, and that the payment was to be made at that place according to the terms of the contract, and [73] that demand was made and refusal given at Salt Lake County. Under the decisions of this court, although the agreement was entered into in Tooele County, for the sale and delivery of water in that county, yet if the purchase price was payable, under the terms „of the contract, in Salt Lake County, and the demand and refusal there made and given, the latter county is the one in which the cause of action arose and in which the suit should be commenced. Konold v. Railway Co., 16 Utah, 151; Deseret Irr. Co. v. McIntyre, 16 Utah, 398; Brown v. Bach, 17 Utah, 435; Condon v. Leipsiger, 17 Utah, 498; Overland Gold Min. Co. v. McMaster 19 Utah, 177; 56 Pac., 977; Mosby v. Gisborn, 17 Utah, 257. Besides, the contention of the defense that the findings of the court are not sustained by the evidence can not be considered, for the reason that the bill of exceptions does not purport to give all the evidence before the trial court upon the points in dispute. Where the bill of exceptions does not purport to set forth the substance of all the evidence adduced at the trial upon the points in issue, it will be presumed upon appeal that there was sufficient proof to support the findings and decision of the trial court. Cochrane v. Bussche, 7 Utah, 233; Warner v. Accident Ass'n, 8 Utah, 431; Railway Co. v. Amos, 54 Ark., 158; Laughlin v. Main, 63 Iowa, 580; Beatty v. O'Connor, 106 Ind., 81; Thompson v. Winnebago Co., 48 Iowa, 155; Antisdel v. C. & N. W. Ry. Co., 26 Wis., 145; Alridge v. Alridge, 120 N. Y., 614; Shugart v. Miles, 125 Ind., 454; Evansville S. & N. Ry. Co. v. Lavender, (Ind.) 34 N. E., 109; Southern Suspender Co. v. Von Borries, 91 Ala., 507. Other assignments of error are that the trial court erred in not granting a continuance to the defendant, and in not granting defendant’s motion for a new trial. Neither of [74] these objections can properly be passed upon here. The bill of exceptions does not contain the affidavits for continuance, nor are the same identified by the court as having been used upon the motion for continuance. The affidavits and orders upon the motion for new trial are not embodied in the bill of exceptions. The only identification of the affidavits is the certificate of the clerk. The ruling of the court on the motion for new trial is not embodied in the bill of exceptions. It is attempted to be brought to the notice of this court upon the clerk’s certificate of the minutes of the court. Sec. 3302, Eev. Stat. Utah, 1898, enacts that “the judgment roll and bill of exceptions, if there be one, shall constitute the record on appeal to the Supreme Court.” It does not appear that the order overruling defendant’s motion for a new trial would become a part of the judgment roll as defined by Sec. 3197, Eev. Stat., 1898. Unless the record affirmatively shows that the order denying the motion for a new trial'was made in the absence of the defendant, or under such other circumstances that it would be deemed excepted to under Sec. 3283, Eev. Stat., 1898, the ruling should be preserved in the bill of exceptions in order to be considered by this court. A certified copy of a minute entry in the record by the clerk of such an order is not of itself sufficient. Reever v. White, 8 Utah, 188; Lowell v. Parkinson, 4 Utah, 64; Evans v. Jones, 10 Utah, 183; Perego v. Dodge, 9 Utah, 6, and cases cited; U. S. v. Duggins, 11 Utah, 430; Nelson v. Brixen, 7 Utah, 454; Anderson Pressed Brick Co. v. Dubois, 10 Utah, 60; Ingerman v. Moore, 90 Cal., 410; Gila R. I. Co. v. Wolfley (Ariz.), 24 Pac., 257; Harris v. People, 130 Ill., 457; Wilson v. Nilson, 44 Ill. App., 209; State v. Harvey, 105 Mo., 316; McClarkin v. Ewing, 42 Ill., 283; Gill v. People, 42 Ill., 321; [75] Clark v. Kane, 37 Mo. App., 258; Dawley v. Hovious, 23 Cal., 103; People v. Empire M. Co., 33 Cal., 171; Harper v. Minor, 27 Cal., 107; More v. Del Valle, 28 Cal., 174; Abbott v. Douglass, 28 Cal., 299; Sutherland v. Putnam (Ariz.), 24 Pac., 323. The only remaining question which we deem it necessary to discuss is whether defendant’s motion for a non-suit on the ground that the contract sued upon is materially different from the contract proven, was rightfully overruled. The complaint, in brief, alleges that between the 25th day of September and the 31st day of October, 1895, that certain persons, plaintiff’s assignors, sold and delivered to the defendant at his request water from the Hecla Shaft at Mercur, Tooele County, Utah, for which defendant promised to pay them $432, etc. In support of this complaint the plaintiff offered evidence of an express contract for the sale and delivery of the water in question at the price of $12 per day to be paid by the de-fendent, that the water was furnished as agreed for 30 days, and of a demand made upon him for payment of the amount due. The defense contends that the complaint alleges an implied contract, while the proof is of- an express contract. The complaint does not allege simply an indebtedness by sale and delivery to defendant at his request, but alleges, in addition to a sale and delivery by request, a promise by the defendant to pay an amount specified. An implied promise to pay would arise as a matter of law from a sale and delivery by request. The promise to pay alleged in the complaint should be understood and taken to be an express promise. Kilpatrick-Koch Dry Goods Co. v. Box, 13 Utah, 494; Estee’s PL (4th Ed.), Secs. 685, 704; Kraner v. Halsey (Cal.), 22 Pac., 1137; 2 Ene. PI. & Pr., 1005. But even though the complaint should be considered as [76] alleging an implied contract, it does not follow that defendant was prejudiced by the proof of an express contract. Under the provisions of Sec. 3001, Rev. Stat., 1898, “No variance between the allegations in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits.” Holman v. Pleasant Grove, 8 Utah, 82; Culmer v. Clift, 14 Utah, 289; Ashton v. Shepard, 120 Ind., 69; Reddick v. Kessling, 129 Ind., 128; Place v. Minster, 65 N. Y., 89; Sussdorf v. Schmidt, 55 N. Y., 319. Other objections made by the appellant have been considered by the court, but as there appears to be no reversible error in the record, the order should be that the judgment be affirmed, with costs. JBaRTOh, O. J., and Miner, J., concur.