what this was for, he answered: "That $263.40 was profit to me. It is true that there is one question in the record which called for a conclusion merely, wherein counsel asked respondent whether or not the buildings as completed were of the reasonable value of $877, and respondent answered in the affirmative. While a conclusion may, under certain circumstances, constitute sufficient evidence to support a finding and judgment, this cannot be so in cases. like the one at bar, where the facts established at the trial are clearly contrary to the conclusion relied upon. If respondent had based his right of recovery upon the contract, and he had shown such a compliance with its terms and conditions as we have before stated to be sufficient in the absence of established fraud or misrepresentation, he would have been entitled to recover the full contract price, and the question of profit or loss would have been entirely immaterial; but he did not choose to rely upon his contract, but sought to recover as upon quantum meruit, for the reasonable value for what he had done for appellant. This being so, he is limited in his recovery to the reasonable value, as he proved it to be. When he had done this, then there was a balance of $263.40, for which he had done nothing at all which he called profit. To this so-called profit he was not legally entitled. If the evidence had shown that the reasonable value was equal to the contract price, then the respondent could have recovered the full amount. Again, if, as in some cases, there had been no proof of reasonable value, except the price fixed in the contract, that would be taken as the reasonable value; but the respondent could not sue as upon quantum meruit, for reasonable value, and then recover the profits he would have made upon the contract regardless of the reasonable value of what he had done. In suing as upon quantum meruit he waived the profits, if any, arising out of the contract, and was limited to the reasonable value, although such value was less than the contract price. In such a case the plaintiff surrenders his advantage to the defendant, in that the plaintiff may recover less than the contract price; but the defendant can

not be required to pay more than that price for the thing specified in the contract, and may himself be heard upon the question of reasonable value. The only ground upon which respondent based his claim for the $263.40 is that as adjuster for the insurance company he figured the loss to appellant at about $877, and that the insurance company paid her that amount for the damage to the buildings by fire. He claimed that he had replaced and repaired the buildings. Hence he was entitled to the insurance money, and the jury gave it to him, regardless of the proof as to reasonable value. The mere fact that the appellant may not in good conscience have been entitled to the amount of insurance money she received for the damages to the buildings by the fire is not a valid reason why respondent should recover it, back from her. Besides this there is $96 figured to fill some openings in the new building, which by direction of the appellant were not filled; but as this was at her request, and as there were other matters which to some extent at least compensated for this, we would not be inclined to review the findings of the jury in this regard, even though we had power to do so. Upon the excessive allowance of the $263.40 we are, however, compelled to pass judgment. There is absolutely no evidence to support the verdict for this amount. Indeed, the evidence is clearly to the contrary. The verdict and judgment to this extent therefore have no support.

In view of the whole record, we have concluded not to grant a new trial of the case unconditionally. In this respect we have concluded to do now what the trial court should have done in passing on the motion for a new trial, namely, to have required the respondent to remit from the amount of the judgment the sum of $263.40, and, in case he refused to do so, to have granted a new trial.

It is therefore ordered that, in case the respondent shall file with the clerk of this court, within twenty days after notice of this decision, his consent to remit from the judgment the sum of $263.40, as of the date the judgment was entered, the judgment will stand affirmed. Otherwise the

judgment is reversed, and the cause remanded to the district court, with directions to grant a new trial. Either way, appellant to recover costs on appeal.

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

RAPHAEL v. WASATCH & J. V. R. CO. et al.

No. 1925. Decided May 27, 1908 (95 Pac. 1008).

APPEAL AND ERROR-RECORD-NECESSITY OF BILL OF EXCEPTIONS.Where a judgment finding one guilty of contempt was based upon both oral and documentary evidence, but there is no bill of exceptions making such evidence a part of the record, there is nothing before the Supreme Court for review, except the findings, order, and judgment of the court in the contempt proceedings; and these, being regular, will be presumed to be supported by the evidence upon which they were based.

APPEAL from District Court, Third District; C. W. Morse, Judge.

Action by Russell Sage Raphael against the Wasatch & Jordan Valley Railroad Company and the Union Trust Company of the City of New York, individually and as trustees, and others. From a judgment finding Joseph Martin, plaintiff's attorney in the action, guilty of contempt, said attorney appeals.

AFFIRMED.

Joseph Martin in pro. per.

Van Cott, Allison & Riter for respondents.

34 Utah-7

FRICK, J.

On September 23, 1907, Hon. C. W. Morse, one of the district judges of Salt Lake county, duly made and caused to be entered an order appointing one Chester Martin receiver in the above-entitled action, with power, among other things, to sell certain property. Thereafter, and on the same day, the judge aforesaid by a supplemental order vacated and set aside the order of appointment made as aforesaid. Thereafter Joseph Martin, Esq., the attorney for the plaintiff in the above-entitled cause, in disregard of the supplemental order vacating the original order appointing the receiver, proceeded to execute the original order by advertising the property authorized to be sold under the original order for sale, and by otherwise exercising the authority conferred upon the receiver by such original order, all of which was seemingly done on behalf of the receiver. Such interference being made to appear, the said C. W. Morse, as judge of the district court, and from whom the original order and also the supplemental order of vacation emanated, cited the said Joseph Martin to appear before said district court and show cause, if any he had, why he should not be punished as for contempt of court. A hearing was had, at which quite a number of witnesses were sworn and testified, and documentary evidence was also introduced in support of the alleged contempt, and also in favor of Mr. Martin's contentions. The court, in passing upon all the evidence, found that the acts of Mr. Martin were without justification, and adjudged him guilty of contempt. The judge, however, imposed no other penalty upon Mr. Martin, except that he pay the costs of the contempt proceedings, and he was restrained from taking any further action under the original order. Mr. Martin now presents what he calls a record of the contempt proceedings for review on appeal.

From the foregoing it appears that the district court based its order and judgment in the contempt proceedings upon both oral and documentary evidence. No bill of exceptions making this evidence a part of the record was ever

settled or allowed. Therefore there is nothing before this court for review, except the findings, order, and judgment of the court in the contempt proceedings. All these are reg ular, and are presumed to be supported by the evidence upon which they are based. Under the finding of the court appellant was clearly in contempt, and the judgment of the court to that effect was therefore the only one that could be rendered.

There being no error made apparent from the record, the judgment of this court is likewise inevitable, which is that the order and judgment of the district court be, and the same hereby is, affirmed, at appellant's costs.

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

STATE ex rel. DAVIS v. CUTLER et al.

No. 1927. Decided May 28, 1908 (95 Pac. 1071).

Un

1. COURTS-ESTABLISHMENT-STENOGRAPHERS-EMPLOYMENT. der Comp. Laws 1907, sections 721, 722, authorizing the judges of the district court to contract with and employ competent persons as court stenographers at a rate not to exceed $8 for each sitting of court, and that such stenographers shall be paid not to exceed ten cents a mile for each mile actually traveled in the performance of their part of the contract, a district judge has power to contract to pay a stenographer for mileage at the rate of ten cents a mile without reference to amount actually paid for such travel.

2. SAME STATUTES.-Laws 1907, p. 172, c. 123, making appropriations for payment of per diem mileage of court stenographers, and limiting reimbursement for mileage to the amount actually paid out, was not intended to apply to contracts for the payment of stenographers' mileage at the rate of ten cents per mile executed by judges of the district court, as authorized by Comp. Laws 1907, sections 721, 722.

3. STATUTES-AMENDMENT-TITLE.-Though a general appropriation bill is exempted from the general constitutional provision requiring all bills to contain but one subject, which must be clearly expressed in the title, a general law may not be amended, modified, or repealed by a general appropriation act contain