Mader v. Taylor-Romney-Armstrong Co.

• Decision Date: 17 June 1897
• Docket Number: 749
• Citation: 15 Utah 161,49 P. 255
• Parties: CHARLES MADER, APPELLANT, v. TAYLOR, ROMNEY & ARMSTRONG, RESPONDENTS. CHARLES MADER, APPELLANT, v. SALT LAKE BUILDING & MANUFACTURING CO., RESPONDENT
• Court: Utah Supreme Court

49 P. 255

15 Utah 161

CHARLES MADER, APPELLANT, v. TAYLOR, ROMNEY & ARMSTRONG, RESPONDENTS.

CHARLES MADER, APPELLANT, v. SALT LAKE BUILDING & MANUFACTURING CO., RESPONDENT

No. 749

Supreme Court of Utah

June 17, 1897

Appeal from the Third district court, Salt Lake county. Hon. John A Street, Judge.

Action by Charles Mader for money had and received against the Taylor-Romney-Armstrong Company and by the same against the Salt Lake Building and Manufacturing Company. Judgment for defendants. Plaintiff appeals.

Affirmed.

J. M Thomas, W. A. Byers, and J. M. Bowman, for appellant.

Bennett Harkness, Howat & Bradley, for respondents.

HART, District Judge. ZANE, C. J., and MINER, J., concur.

OPINION

HART, District Judge:

These two causes, being dependent upon the same facts, were by consent tried together by the court without a jury. The findings were in favor of the defendants, and the actions dismissed at plaintiff's cost. A motion for a new trial was made and denied, and an appeal taken from the judgment and order to this court. While an appeal will not lie to this court from an order denying a motion for a new trial, under section 9, art. 8, of the constitution of Utah, yet on appeal from the judgment the errors committed by the trial court in denying motion for new trial may be reviewed, when properly embodied in a bill of exceptions, or otherwise properly preserved in the record, as decided in this court at this term in the case of White v. Pease, 15 Utah 170, 49 P. 416. Both cases at bar will be treated as one in this opinion.

This is a simple action for money had and received, and corresponds with the old common-law action of indebitatus assumpsit. It is an action at law, and not a suit in equity. 1 Am. & Eng. Enc. Law, p. 882; 2 Enc. Pl. & Prac. pp. 888-1016.

Appellant's assignment of errors in his statement on motion for new trial is as follows: "(1) That the court erred in its findings of fact when it found that Visser gave his notes because the Cary-Lombard Company could not give notes, when the evidence showed the notes were given to enable Mader to show that Beggs & Co. owned the claim for $ 703, and to settle with his partner; when it found the Beggs yard had been turned over to the exchange, when the evidence showed it to have been turned over to the dealers. (2) That the court erred in its conclusions of law when it found that Mader had no interest in the excess money paid to the defendants, when the evidence showed the money belonged to Mader, which fact was known to the defendants when they received it. (3) That the court erred in rendering judgment against plaintiff and in favor of defendants, when the evidence showed that the Cary-Lombard Company did not claim the money, but that it belonged to Mader." Appellant probably intended to assign and rely upon the insufficiency of the evidence to justify the decision, but it is very doubtful if he has brought himself within the requirements of section 3402, subd. 3, of the Complied Laws of Utah of 1888, which provides: "When the notice of motion designates as the ground of the motion the insufficiency of the evidence to justify the verdict or other decision, the statement shall specify the particulars in which evidence is alleged to be insufficient. When the notice designates as the ground of the motion errors in law occurring at the trial, and excepted to by the moving party, the statement shall specify the particular errors upon which the party will rely. If no such specifications be made, the statement shall be disregarded on the hearing of the motion." This court has before indicated that the provisions of this statute were intended to be enforced. Slater v. Railway Co., 8 Utah 178, 30 P. 493; Sterling v. Parsons, 9 Utah 81, 33 P. 245; Bankhead v. Railroad Co., 2 Utah 507; Canal Co. v. Edwards, 9 Utah 477, 35 P. 487. If the insufficiency of the evidence in any particular is relied on, it is easy to say so, and not designate it as error of the court,--error in law. In the case of Smith v. Christian, 47 Cal. 18, under a statute like our own, the court declined to consider errors assigned in a manner similar to the foregoing. But, treating the assignment of errors in this case as though made in compliance with the statute, we fail to find any reversible error in the record. Briefly stated, the findings of fact are as follows: (1) That in 1891 some 14 firms of lumber dealers of Salt Lake City including these defendants, composed a voluntary association known as the Salt Lake Lumberman's Exchange, and that during its existence one W. G. Donnell was its secretary. (2) That in that year negotiations were made by said exchange to purchase the lumber and stock in trade of George Beggs & Co., a partnership, at the price of $ 10,652, and that it was finally mutually agreed between said dealers who were members of said exchange and George Beggs & Co. that said dealers would purchase the stock in trade and other personal property of George Beggs & Co.; each dealer to take a certain percentage of the same, which was allotted to each by a committee appointed by said dealers, said allotment being as follows: Salt Lake Building & Manufacturing Co., 6.83 per cent.; Cary-Lombard Lumber Co., 7.08 per cent.; Taylor-Romney-Armstrong Co., 11.06 per cent.; Parker & Depue, 6.66 per cent.; Morrison, Merrill & Co., 9.53 per cent.; Mason & Co., 12.20 per cent.; and others,--making a total of 100 per cent. That of said $ 10,652 there was paid in cash by said dealers the sum of $ 643.88, according to said percentages, and the remaining $ 10,008 was to be in notes by each of said dealers according to the allotted percentages. (3) That in pursuance of this agreement each of said dealers, except the Cary-Lombard Lumber Company, on or about the 15th day of November, 1891, gave his promissory note to George Beggs & Co. in the proportion agreed, and that at the same time one E. A. Visser, the manager of Cary-Lombard Lumber Company, gave his promissory notes to George Beggs & Co., aggregating $ 703, which was the amount allotted the Cary-Lombard Lumber Company, less its cash allotment, which it paid; said Visser giving his notes for the reason that the Cary-Lombard Lumber Company was a corporation, and by its charter was prevented from signing any notes. That all of said notes have been paid except the notes of said Visser, no part of which...