Bowe v. Stilwell

ERICK, C. J. This is the second appeal of this case. The former appeal was from a judgment of nonsuit, which was reversed. (Rowe v. Palmer, 36 Utah, 214, 102 Pac. 1007, 24 L. R. A. [N. S.], 226.) The evidence adduced on behalf of the plaintiff in this action, the respondent here, with the exception of making clear some of the matters referred to in our former opinion, is substantially the same as it was on the former hearing. In view of this, we refer the reader to our former — 378 — opinion for a statement of the facts, where they are stated in detail. The evidence adduced on behalf of appellant in its effect was limited to disputing or denying the statements made by respondent and her witnesses. In view of this a ocn-flict arose, which, in view of what was said in our former opinion, was proper to submit tO' a jury. The court, in submitting the case to the jury, followed the law as laid down by us in the former opinion. The trial'resulted in a verdict and judgment m favor of respondent, and the appellant prosecutes this appeal. It is contended that the court erred in refusing appellant’s request, in which the jury were directed to return a verdict in his favor. If our conclusions on the former appeal are sound, and we think they are, then the court committed no error in submitting the case to the jury upon the whole evidence. If there is any difference in the evidence adduced on behalf of respondent, it was stronger in its details on the last than it was on the former trial, and the mere fact that appellant denied or disputed a large portion or nearly all of respondent’s evidence would not authorize the court to take the case from the jury. Another assignment relates to. the giving of and refusing to give certain instructions to the jury. The first exception relates to the giving of two instructions, in which the court instructed the jury that in determining appellant’s liability they should consider all the facts and circumstances as they were made to appear from the evidence. In connection with this statement, the court told the jury just what would constitute a conversion of personal property, and under what circumstances they might find a person guilty of conversion, in accordance with the law laid down in the former opinion. Counsel for appellant in effect concedes that, if there was no error in submitting the case to the jury, then no serious error was committed in giving the two instructions just referred to, since all the argument' that he offers upon the latter point is that what he had said in his brief upon the alleged error in submitting the-case to the jury should be considered upon the latter point. In this connection counsel says: — 379 — “It (the court) bad no right to submit the appellant’s acts with reference to the leasing of the building as in any wav' tending to show an aiding, by him, of Mrs. Palmer, in detaining the goods, or as tending to show any connivance by him with her.” In other words, it is, in effect, contended that the jury should not be permitted to consider all the facts and circumstances, including all that was said and done by appellant, in determining bis liability. If the court bad told the jury what, if any, effect any particular act, conduct, or statement of appellant, or of any of the witnesses should receive at the bands of the jury in determining the appellant’s liability, it no doubt would have been error. So would it' have been error, under the circumstances, to withdraw from the jury any fact or circumstance in evidence which in any way tended to implicate or excuse appellant with respect to the acts which respondent contended amounted to a conversion of her property. We are unable to perceive bow it was error to submit all the facts and circumstances to the jury, as was done, including those connected with the leasing of the premises in which respondent’s property was when the alleged conversion took place. The next assignment relates to the refusal of the court- to give an entire request of appellant’s just as it was- offered. All that is said by counsel in bis brief relative to this assignment is as follows: “the court, having refused the second instruction asked for by the appellant, should certainly have given the latter part of the fourth instruction asked by him. That instruction simply asked the court to construe the receipt given for the one month’s rent. It is'too plain for argument that it is always the duty of courts to construe written contracts.” The “second instruction” referred 1 to is the request to direct a verdict for appellant. the court gave a large portion of the instruction requested, but refused to give it as a whole. That part of the instruction which was refused related merely to the legal effect that should be given to the receipt given to respondent for the first month’s rent, which appellant bad received from, her under the conditions stated in our former opinion. the — 380 — portion refused, after setting forth the receipt in full, proceeds as follows: “That this receipt did not authorize the plaintiff to enter into the occupancy of the second floor of the Tanner Block, in the city, or to retain possession thereof, and if you find that she (respondent) did enter into the occupancy of said building and moved into the same (the property described in the complaint), or any of it, such placing of the property in the building would not render the defendant 0. J. Stilwell liable to her for the same in any manner whatsoever. Even if you should find from the evidence that the owner of the building subsequently rented or leased the same to the defendant Annie Palmer, and that said Annie Palmer thereafter wrongfully detained said property, or some of it, from the custody of the plaintiff.” It is sufficient to say in this connection that the case was neither tried nor submitted to the jury upon the theory that the receipt in question gave respondent any special rights. Neither did respondent take possession of the building by virtue of the receipt. According to her testimony, which the jury had a right to believe, she obtained the keys to the building from appellant and went into possession of it before the receipt was given. The receipt, therefore, was evidence merely of the payment of the first month’s rent for the building. Appellant admits the payment of the money; admits that he received and got it and remitted the same to the owner of the building as rent. .Moreover, there was evidence to the effect that a lease had been received by appellant, in which the building was leased to respondent; that appellant, without her permission, erased her name from the lease and substituted Mrs. Palmer’s name in the place of respondent’s therein, and then delivered the lease to Mrs. Palmer. Kespondent testified to having seen the original lease in which the change was made, and she also testified that appellant admitted to her that he had made the change of names. True, appellant denied this; but whether he or respondent told the truth in this regard, was for the jury to say. .In addition to all this counsel for appellant offered n request, which the court gave just as requested, in which the jury were told in plain terms just what facts they — 381 — would bave to find in order to bold appellant liable for conversion. In tbe charge just referred to, as well as in others, the jury were told that they must find certain facts to exist, before they were authorized to find against appellant. In view of the affirmative statements contained in those instructions, it was not necessary, even if it be conceded that it was proper, to tell the jury what, if any, effect should be given to any particular portion of the evidence. We think it was proper for the jury to consider all the facts and circumstances together, just as the court told them to do. Another assignment relates to the refusal of the court to give another request offered by appellant. In counsel’s brief, however, not one word is said with respect 2 to this assignment; and hence it must be deemed abandoned. It is also urged that the court erred in admitting in evidence two exhibits offered by respondent as a part of her case. Both of those exhibits axe set forth in the former opinion. In one of them respondent was given the refusal to rent the building in question for the space of three days at thirty-five dollars per month, and the other was a receipt for thirty-five dollars for one month’s rent for the building in question, subject to the approval of the owner. We thinlc that in view of the other evidence these exhibits were properly admitted as part of the transaction between respondent and appellant. The action was not based, nor did respondent’s right to recover rest, upon either one or the other of those exhibits; but her rights were made dependent upon all the acts and conduct of appellant, as they were connected with and formed a part of the whole transaction constituting the conversion in question. The case is one in which the facts are somewhat complicated, to say the least; and the circumstances are such that different minds might well arrive at different conclusions with respect to what the ultimate result should be. Moreover, the circumstances of the ease are such that, although it be tried any number of times, there still would be some ground, perhaps, for claiming that some errors, at least technical ones, had occurred during the trial. — 382 — Tbe case has been pending in court for ten years. Judgment was first obtained against appellant by default, which was set aside, and lie was permitted to defend. The case was then tried and judgment of nonsuit granted in his favor, which, on the former appeal, was set aside. The case was then tried on the merits, and the jury, under what we conceive to be a full and fair charge, found against appellant. No one disputes the fact that respondent’s loss was much greater than the jury awarded her. After waiting for ten years, she at last obtained a. judgment for much less than the value of the property she had lost. Upon the other hand, it may be that the jury erred in their judgment; but if that be error it is one that we cannot correct, in view that there is sufficient evidence to .sustain their findings. Th'e judgment, in our opinion, should be, and it accordingly is, affirmed, with costs to respondent.