Bunce v. Pace

• Decision Date: 28 November 1922
• Docket Number: 3798
• Citation: 210 P. 984,61 Utah 74
• Court: Utah Supreme Court
• Parties: BUNCE v. PACE

210 P. 984

61 Utah 74

BUNCE v. PACE

No. 3798

Supreme Court of Utah

November 28, 1922

Appeal from District Court, Fourth District, Duchesne County; Elias Hansen, Judge.

Action by Joseph D. Bunce against Harvey A. Pace. From a judgment for plaintiff, defendant appeals.

AFFIRMED.

Charles J. Wahlquist, of Myton, for appellant.

Thos W. O'Donnell, of Vernal, for respondent.

FRICK J. CORFMAN, C. J., and WEBER, GIDEON, and THURMAN, JJ concur.

OPINION

FRICK, J.

The plaintiff in his complaint, in substance alleged that on the 19th day of February, 1917, plaintiff purchased from the defendant certain cattle at an agreed price not material here; that in addition to the purchase price plaintiff paid to the defendant the sum of $ 200, for which sum of money he, the defendant, "agreed to obtain and secure for the plaintiff a permit to graze the said cattle so purchased on the Ashley National Forest," and that said sum of $ 200 "was paid by plaintiff to the defendant for the sole purpose of obtaining a grazing permit on the said United States forest as above described." The plaintiff then alleged that the defendant failed to obtain said grazing permit, and that plaintiff was unable to obtain such grazing permit for the use of the cattle aforesaid; that prior to the commencement of this action demand was made upon the defendant to repay said sum of $ 200 to the plaintiff, which the defendant refused to do, except that the defendant paid to the plaintiff the sum of $ 10 thereon. Plaintiff prayed judgment for $ 190 and for costs. The defendant demurred to the complaint both generally and specially. The demurrers were overruled, and the defendant answered the complaint, in effect denying all the material allegations therein contained. A trial to a jury resulted in a verdict in favor of the plaintiff for the sum of $ 190. Judgment was duly entered upon the verdict, from which the defendant prosecutes this appeal. The appeal is upon the judgment roll.

At the conclusion of plaintiff's evidence the defendant interposed a motion for nonsuit, which was denied. He now assigns the ruling of the court as error. In view that the evidence has not been certified to this court in the form of a bill of exceptions, we cannot review this assignment, and it must therefore fail.

In addition to the foregoing assignment the defendant has also assigned the following errors: (1) That the court erred in overruling the demurrers, both general and special; (2) that the court erred in denying defendant's motion for a new trial for the following reasons: (a) That the jury allowed excessive damages "appearing to have been given under the influence of passion and prejudice"; and (b) that the court erred in refusing to instruct the jury as requested by the defendant's requests numbered 2 and 3, and which are set forth in the record.

There are additional assignments why the court erred in overruling the motion for a new trial, but, in view of the record, those alleged errors are utterly immaterial, and hence we refrain from referring to them further.

Defendant's request No. 2 contains certain questions which he desired to have submitted to the jury to be answered by them. We have frequently held that whether special questions shall be submitted to the jury for answer or not is...