Utah State Nat. Bank v. Livingston

• Decision Date: 22 August 1929
• Docket Number: 4714
• Court: Utah Supreme Court
• Parties: UTAH STATE NAT. BANK v. LIVINGSTON

280 P. 327

74 Utah 456

UTAH STATE NAT. BANK v. LIVINGSTON

No. 4714

Supreme Court of Utah

August 22, 1929

Appeal from District Court, Third District, Salt Lake County Ephraim Hanson, Judge.

Action by the Utah State National Bank against D. H. Livingston. From a judgment for the defendant, plaintiff appeals.

AFFIRMED.

Henry D. Moyle, of Salt Lake City, for appellant.

Soule &amp Spaulding, of Salt Lake City, for respondent.

WOOLLEY District Judge. CHERRY, C. J., and STRAUP, ELIAS HANSEN, and FOLLAND, JJ., concur. EPHRAIM HANSON, J., being disqualified, did not participate.

OPINION

WOOLLEY, District Judge.

This is an action upon a promissory note, brought originally against D. H. Livingston and L. B. McCornick, in which there is a defense of payment. The case has been tried three times in the district court, and this is its second appearance on appeal in this court. At the first trial the jury returned a verdict in favor of defendants, but the trial court, upon plaintiff's motion, set aside the verdict and granted a new trial. At the second trial the court directed the jury to return a verdict in favor of the plaintiff because the judge thought there was no evidence of payment, which was done, and the defendants appealed. This court reversed the judgment and remanded the cause for a new trial. Utah State National Bank v. Livingston, 254 P. 781. Thereupon McCornick made a settlement with plaintiff so far as he was concerned. The case then went to trial against Livingston alone. The verdict of the jury was in favor of defendant. From the judgment entered on this verdict, plaintiff appeals.

The assignments of error relate (1) to the claim that the court erred in refusing to direct a verdict in favor of plaintiff because there was no evidence to take the case to the jury upon the issue of payment; (2) to the refusal of the court to give certain requested instructions to the jury; and (3) to rulings by the trial court upon objections to certain questions propounded to witnesses during the course of the trial.

The main contention of appellant seems to be that there is no evidence to go to the jury upon the issue of payment. More than half of the brief is devoted to a discussion of that proposition, and it was the burden of the oral argument. But that question is not open upon this appeal. The evidence relating to the matter of payment was substantially the same as upon the second trial. On the former appeal this court reviewed the evidence, found it to be conflicting, and held that it was sufficient to take the case to the jury upon the issue of payment. The opinion of this court on the former appeal settled the question of law as to the sufficiency of the evidence and laid down the law of the case, which was binding on the lower court at the third trial and is binding on this court now, Chadwick v. Beneficial Life Ins. Co., 56 Utah 480, 191 P. 240; Thompson v. Reynolds, 59 Utah 416, 204 P. 516; Robison v. Fillmore, C. & S. Bank, 61 Utah 398, 213 P. 790; Huntsman v. Huntsman, 61 Utah 376, 213 P. 179. The verdict of the jury settles the question of fact.

In regard to the instructions we perceive no error. It is not claimed that the court misdirected the jury in any respect. But it is claimed that the court should have given certain requests which were refused entirely, and should have given without change or modification certain others which were given with modifications. The court, in the instructions after telling the jury what the case was about, set out clearly and briefly the claims of the parties; told the jury that there was but one issue to be determined, namely, whether or not the parties had agreed that this note was to be paid by the transfer of the stocks in question; that the burden was...