clearly a matter of form merely that it hardly requires discussion. The money never was delivered to Mr. Crismon or to any one acting for him, and he never had possession of it. The money always was under the control, if not in the actual possession, of the bank clerks who acted for the bank, and thus constructively in the possession of the bank. Surely it cannot be claimed that, while respondents or one of them counted it, it was constructively in Mr. Crismon's possession. Respondents were not his agents, but were the agents of and represented the appellants. What respondents did, therefore, was simply to count the bank's money. The money was sent over by the bank, not as a loan to Mr. Crismon, but for the effect a tender might have, and the identical money was to be returned at once. Respondents might just as well have gone to the bank and with its permission entered one of its vaults and counted $14,500 of the bank's money. The legal effect would have been precisely the same. Moreover, respondents and Mr. Crismon knew that the deed was not in respondents' hands; that they had asked for an extension of time for Mr. Crismon in which to make the final payment; that the proposal made by them in his behalf had been refused and, a counter proposition had been made; that these propositions were then pending; that Fred H. Herzinger had made timely inquiry as to whether the final payment would probably be made so that a deed might be prepared; that no answer had ever been given him, except it be said that the request for more time was an answer, and, if this be held an answer, then respondents and Mr. Crismon either knew or had good reason to believe that appellants had probably been misled by the pending propositions. In the light of all of these facts, respondents, as the agents and representatives of appellants, ought to have spurned Mr. Crismon's tender, and, instead of counting the bank's money, they should have reminded him of the true state of affairs, and informed him that he, and not their clients, was in fault. There was entirely too much ceremony and circumstantiality in making this tender. There was too much care exercised in its execution to leave it without suspicion. Moreover, the reiteration of the details with

regard to it by Mr. Crismon in his letter to respondents only a few days later again shows that somehow they all were afraid that some one might question this tender. The whole affair impresses us, and it seems to us must so impress all, that this tender was a mere matter of form. When this tender is viewed in the light of all the circumstances, it would be a reproach to the law to permit a transaction so transparent to pass as current coin or to give it any legal effect whatever. Mr. Crismon is not called as a witness. No explanation of his conduct is even attempted, and respondents are willing to rest their rights upon the naked transaction as detailed in the evidence. In this regard Mr. Crismon's lack of good faith is so apparent from his subsequent acts and conduct that reasonable men cannot differ in their conclusions with regard thereto. When he was given the opportunity to obtain the property on practically, if not precisely, the same terms and conditions as stated by himself in his request for an extension of time, he refused to take it, although the undisputed evidence is that the property was then worth more than the amount he agreed to pay for it. That his subsequent acts cannot affect his nor respondents' legal rights, if they had any, as they existed on May 1, 1906, is conceded. But his subsequent acts and conduct may be looked to for the purpose of determining whether what he had done to establish these alleged rights was done in good faith, and whether such prior acts had the legal effect claimed for them. Again, in determining respondent's rights, we must not overlook the fact that, as between principal and agent, the utmost good faith is required on the part of both. While a stranger may hold the principal liable for the acts of his authorized agent, although the principal may not have been thoroughly informed with regard to the facts by the agent, that is not the law with respect to rights as between principal and agent. It is the agent's duty to keep the principal fully informed of all the facts and circumstances, and, if the agent fails to do this, the law will not permit him to obtain any advantage by reason of his own negligence or want of absolute good faith. It is no answer in this case that appellants knew of the condi

tions of the option agreement as well as respondents did. The agreement was a mere option. Mr. Crismon was not bound to make payment, unless he chose to do so. It was only fair, therefore, that when Mr. Herzinger inquired of respondents whether the payment would probably be made at the specified time, and whether the deed was required to be on hand, they at once and fully answer his inquiry. Instead of this they requested an extension of time to make the payment, and pending this matter permitted Mr. Crismon to make a tender without protest, and now rely on this tender as against their clients, and point to it as the act which made the option agreement effective, and thus gives them a legal right to their commission as for a completed sale. The good faith and legal effect of this pretended tender was the controlling issue in the case. It was the thing respondents relied upon, and which, if good, fixed the liability of their principals. When the good faith and effectiveness thereof was questioned by appellants, and the evidence produced by respondents thereon had cast a suspicion upon it, it devolved upon them to show by some competent evidence that Mr. Crismon had the money with which to make a valid tender. This they could have proved by showing that Mr. Crismon had credit at the bank, or that he had made some binding arrangement with the bank wherby the money was placed to his credit, and that he had a right to use it and had assumed some obligation with respect thereto. Under the facts as established, if the money had been forcibly taken from the bank clerks, it would have been the bank's money, and not Mr. Crismon's, and the bank, and not he, would have sustained the loss. The conclusion, therefore, is forced upon us that the undisputed facts and circumstances, and the inferences to be deduced from them, leave no room for doubt that Mr. Crismon was neither able nor ready, although he had been willing, to comply with the terms of his option agreement on May 1, 1906, when he was required to make the final payment; that the tender made by him is colorable merely, and this in legal effect left the whole matter as though no tender had been made; and that respondents, as the agents of appellants, in view of all the

circumstances, failed in their duty in not at once informing appellants with regard to the true situation when appellants inquired of them if the deed should be prepared for delivery.

From all it necessarily follows that the findings of the court are not sustained by the evidence, and that the conclusions of law are contrary to the law applicable to the facts. The judgment, therefore, cannot be sustained, and it accordingly, is reversed, and the cause remanded to the trial court with directions to grant a new trial, appellants to recover costs on appeal.

MCCARTY, C. J., and STRAUP, J., concur.

WALKER BROS. v. SKLIRIS.

No. 1938. Decided Aug. 20, 1908. On rehearing Nov. 24, 1908 (98 Pac. 114).

1. APPEAL AND ERROR-DISMISSAL-WANT OF PARTIES. An appeal will be dismissed where all those who are adversely interested in the judgment have not been made parties to the appeal.1 2. APPEAL AND ERROR-RECORD-CONCLUSIVENESS-NOTICE OF APPEAL. The Supreme Court is bound by the record as the same is certified, and, where it discloses that due service of notice of appeal was accepted by the attorneys of record of the adverse parties, it cannot be contradicted, and it is immaterial that the attorneys accepting service filed no answer and made no defense to the action in the lower court.

3. STIPULATIONS-PERSONS BOUND-STIPULATIONS AS TO SETTLEMENT -ATTORNEYS. On appeal by one defendant, a stipulation attached to the bill of exceptions, signed by appellant's counsel and also by the attorney who appeared for plaintiff and for appellant's codefendants, was binding as to such codefendants, although it did not in terms stipulate for them.

4. EXCEPTIONS, BILL OF SERVICE. Service of a bill of exceptions should be made up on the attorneys of record of the appellee, rather than upon appellee.

1 Griffin v. Southern Pac. Co., 31 Utah 296, 87 Pac. 1091.

34 Utah-23

5. APPEAL AND ERROR-RECORD-BILL OF EXCEPTIONS-STIPULATIONS CONCLUSIVENESS. Where a stipulation attached to a bill of exceptions purports to be signed by the appellee's attorney, and there is nothing in the record which shows his repudiation of either the stipulation or signature, and nothing to show that he did not sign it, unless the court should take judicial notice that the signature is not in his handwriting, it is binding on him.

6. APPEAL AND ERROR-REVIEW-QUESTIONS

OF FACT-FINDINGS. Where only questions of fact are involved, and there is competent evidence in the record in support of the court's findings, the Supreme Court will not interfere.

Where

7. PARTNERSHIP-EXISTENCE LIABILITY TO THIRD Persons. persons held themselves out as partners, they are liable to third persons as such, regardless of any partnership agreement.

8. EVIDENCE-PRELIMINARY PROOF-DETERMINATION. Whether the preliminary proof is sufficient or not to entitle account books to be offered in evidence is in the first instance to be passed on by the trial court.

9. EVIDENCE-JUDICIAL NOTICE-METHODS OF BOOKKEEPING. The court cannot take judicial knowledge of the different methods or systems of bookkeeping.

10. EVIDENCE-BOOKS OF ACCOUNT-EFFECT. Where the entries in books of account are not stated in a form which is self-explanatory, it is essential that they be explained by proper evidence.

11. BANKS AND BANKING-OVERDRAFTS EVIDENCE. In an action for an overdraft, books of account, containing certain symbols, held insufficient to establish the claims sued for, in the absence of explanatory evidence.

12. BANKS AND BANKING-Overdraft-ACTION-SUFFICIENCY OF EVIDENCE. In an action by a bank to recover an amount alleged to be due on overdrafts, evidence held insufficient to support the judgment for plaintiff.

13. EVIDENCE-RELEVANCY-MATTERS

EXPLANATORY OF EVIDENCE. Where a particular kind or class of evidence is available which in its nature is best calculated to establish the question in issue, it must be produced if required by the adverse party, and if it is not self-explanatory it should be explained to the court or jury so that it may be given such weight as it may be entitled to.