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after the verdict had been read to the jury

(13 Ariz. 418) and they were asked if it was their verdict BANK OF ARIZONA V. THOMAS HAVand had replied that it was, the court dis

ERTY CO. charged the jury from further consideration (Supreme Court of Arizona. March 27, 1911.) of the case. Thereafter, and before the jury 1. MECHANICS' LIENS ($ 205*)-ASSIGNMENT had left the box, the defendants' counsel mov OF LIEN-CONSTRUCTION OF CONTRACT. ed for the discharge of the defendants. This Plaintiff, the holder of a mechanic's lien in was denied by the court on the ground that the sum of $14,306, to foreclose which a suit it was then too late to resubmit the verdict was pending and defendant, the holder of a

mortgage on the property, entered into a confor correction; the jury having been dis- tract providing that defendant would purchase charged from the case. Thereafter the de- "the plaintiff's said demand and claim of lien," fendants moved in arrest of judgment, and plaintiff to prosecute his suit to judgment and

assign the judgment obtained to defendant, for this motion was also denied. As the ver-which defendant would pay plaintiff $9,313.90, dict was insufficient, judgment should not being the amount claimed by plaintiff less $4,have been entered thereon, but we do not 922.10, the value of certain boilers and heating agree with counsel that the defendants have ing, which boilers and heating apparatus plain

apparatus used in the construction of the buildbeen in jeopardy and are entitled to be dis- tiff should be at liberty to remove from the charged. Such seems to be the rule in Cal- | building if it could be done without injury. ifornia and Oregon under a similar state of ment in the sum of $12,429.22, and obtained a

Plaintiff prosecuted the suit and recovered judgfacts, but it is not the general rule. In all decree of foreclosure. Held, that a contention the cases heretofore cited in this opinion, ex- that the contract was conditional, in that it cept the California and Oregon cases, the was not to be operative unless the boilers could courts hold that, as such a verdict is insuf- that the amount of the judgment showed that

be removed without injury to the building, and ficient to support a judgment of conviction, this condition had not been performed, could a judgment entered thereon must be set aside not be sustained, since the contract imported and a new trial granted. [7] The general, should be in any particular amount, and hence

no agreement or guaranty that the judgment and we conceive the correct, rule is that defendant was not excused from performance. where the verdict is so uncertain that the [Ed. Note.-For other cases, see Mechanics' court is unable to tell what the intent of the Liens, Dec. Dig. § 205.*] jury was, and the matter is brought before 2. MECHANICS' LIENS ($ 205*)-ASSIGNMENT the appellate court on appeal by the defend

OF LIEN-CONSTRUCTION OF CONTRACT.

Such agreement for the transfer of the meant, he cannot by such verdict be held to chanic's lien claim having been made at a time have been in jeopardy and therefore enti- when the parties to the agreement were uncertled to his discharge, but that the judgment tain

as to the right of priority between the lien is not a bar to a further prosecution. 12 cused from performance by the fact that the

claim and the mortgage, defendant was not exCyc. 262, note 31; Waddle v. State, 112 Tenn. judgment foreclosing the lien decreed that it 556, 82 S. W. 827.

was inferior to the mortgage. It is also urged that the indictment does

[Ed. Note.-For other cases, see Mechanics'

Liens, Dec. Dig. $ 205.*] not state an offense under the statute, either under section 481 or section 489. This 3. APPEAL AND ERROR (8 1002*)-REVIEW

QUESTIONS OF FACT. latter section, taken from Missouri, so far

A verdict based on conflicting evidence will as its provisions which we have discussed not be disturbed on appeal. are concerned, is intended to reach a class [Ed. Note.-For other cases, see Appeal and of offenders sometimes known as "confidence Error,, Cent. Dig. $8 3935-3937; Dec. Dig. 8

1002.*] men," who, with intent to cheat and defraud, obtain through some false representation, 4. APPEAL AND ERROR ($1060*)-HARMLESS

ERROR-IMPROPER ARGUMENT OF COUNSEL. trick, or deception the money of their vic Where the authority of certain attorneys tim whose confidence has first been secured to represent defendant in respect to a contract through some false representation or decep-sel in argument that such authority might per:

was in issue, a statement by plaintiff's countion. It provides for a class of false repre- haps have been proved by letters that passed sentations not included in section 481, which between defendant and the attorney, and that deals with the subject of ordinary false rep- plaintiff had tried to get these letters, but deresentations. State v. Pickett, 174 Mo. 663, upon the ground that they were privileged com

fendant's counsel had refused to produce them 74 S. W. 844. We think the indictment, munications between attorney and client, and though somewhat inartificially drawn, suffi. the court so ruled, and that plaintiff was comciently charges facts to bring it within the pelled to resort to other evidence, though per

haps improper, was not reversible error. requirements of section 489. State v. Wilson,

[Ed. Note.-For other cases, see Appeal and 223 Mo. 156, 122 S. W. 701.

Error, Cent. Dig. § 4135; Dec. Dig. § 1060.*) The verdict in the case being insufficient to 5. TRIAL (& 133*)—IMPROPER ARGUMENT-IN

verdict and judgment are set aside, and the Where plaintiffs demanded the production case is remanded to the district court for a neys, in order to prove the agency of the attor

of letters written by defendant to their attornew trial.

neys in respect to the contract involved in the action, and defendant's counsel refused to pro

duce the letters on the ground that they were CAMPBELL and DOE, JJ., concur. privileged communications, and such refusal *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

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was sustained by the court, a statement by , construction, and completion of the said Noplaintiff's counsel in argument that such let ble Building, and for which the plaintiff ters would perhaps have proved such agency, and that defendant's counsel had refused to proclaimed a lien upon said building and the lots duce them on the ground that they were privi- of land upon which the same is situated, and leged, and that the court so held, and that plain which said boilers, heating apparatus, and tiff was compelled to resort to other evidence, tools the plaintiff should be at liberty to rethough improper, was not prejudicial, where the court instructed that no inference could be move from the said Noble Building, if the drawn by the jury from the exclusion of the same could be done without injury thereto; letters that they contained any evidence that that thereupon the plaintiff then and there would tend to establish agency.

[Ed. Note.-For other cases, see Trial, Cent. did promise and agree with the defendant Dig. § 316; Dec. Dig. § 133.*]

to sell to the said defendant its said demand

against the said John Noble and its said Appeal from District Court, Maricopa Coun- claim for lien upon said premises, and did ty; Edward Kent, Judge.

promise and agree to prosecute the said acAction by the Thomas Haverty Company |tion, and agree to assign said judgment reagainst the Bank of Arizona. From a judg- covered therein to this defendant.” The comment for plaintiff, defendant appeals. Af- plaint then alleges prosecution of said action firmed.

by the plaintiff, recovery of judgment therein Robert E. Morrison and Kibbey, Bennett & in the sum of $12,429.22, together with a foreBennett, for appellant. Alexander & Christy closure of the lien, the offer of plaintiff to and Alfred Franklin, for appellee.

assign the said judgment to the defendant,

the refusal of the defendant to accept same DOAN, J. On March 18, 1910, the appel- or pay therefor, and the tender of such aslee, as plaintiff, brought suit against the ap-signment in court. Defendant demurred genpellant in the district court of Maricopa coun-erally to the complaint, entered a general ty, and alleged in its complaint that in Feb- denial, and alleged failure to perform by ruary, 1908, plaintiff had a claim against one reason of the amount of•the judgment being John Noble in the sum of $14,306 for ma- $12,429.22, and the fact that the lien estabterials and labor furnished in the construc- lished by the judgment was decreed to be tion of the Noble Building in Phænix, Ariz., subject to the defendant's mortgage as which claim was secured by a lien thereto- prior lien. The case was tried to a jury, fore perfected on the building and the lots on which returned a verdict in favor of the which the same was situated, and by suit in- plaintiff for $9,313.90, in accordance with stituted on such claim in March, 1908, in the which verdict the court rendered judgment district court of Maricopa county; that at for that amount against the defendant in the time of the institution of said action favor of the plaintiff. From this judgment IIugo Richards held a mortgage upon the and the denial of a motion for a new trial, said premises; that the loan secured by said the defendant has appealed. mortgage was made by the Bank of Arizona, It is assigned as error: the appellant herein, and that the note and First. “That the court overruled the appelmortgage were taken in the name of Hugo lant's demurrer to the complaint because upRichards for the use and benefit of the said on the facts stated in the complaint the albank, as the real party in interest; that leged contract by which it was claimed the while the said action was pending, about the appellant agreed to purchase the judgment 30th day of November, 1908, the defendant thereafter to be obtained by the appellee (the bank offered to purchase “the plaintiff's said Haverty Company) was wholly without condeinand and claim for lien therefor, and sideration, that the consideration therefor promised that if the plaintiff would agree to had wholly failed, and that appellee had not sell to the said defendant its said demand performed its part of the alleged agreement." and claim for lien, and would promise and [1] The argument in support of this assignagree to prosecute its said suit thereon to ment is made entirely upon the ground of judgment, and would promise and agree to failure of consideration. It is conceded that thereafter assign the same to the said de the mutual promises were each the considfendant, that it, the said defendant, would eration for the other, but it is claimed that buy the plaintiff's said demand and claim of there was a failure of consideration by realien of the said plaintiff, and would pay to son of the judgment recovered in the case the plaintiff therefor the sum of $9,313.90 at being $12,429.22. Appellant urges in support the time of the assignment of said judgment of this assignment the argument that the conto the defendant; the said sum of $9,313.90 tract alleged in the complaint was a condibeing then the amount claimed by said plain-tional one, that, if certain boilers could be tiff as a lien upon the said Noble Building, removed from the building, the claim was to less the sum of $4,992.10, the said sum of be reduced to $9.313.90, and if so reduced $4,992.10 being the value of two certain boil the judgment secured on said claim should ers and a certain heating apparatus and cer- be assigned to the bank. The extract from tain tools furnished and delivered by the the complaint, supra, alleges that the offer plaintiff and used in and toward the erection. on the part of the defendant was to pay $9,

313.90 for the $14,306 “demanded and claim of strong & Lewis, or either of them, to enter lien therefor," and that, if the boilers, heating into an agreement to purchase the Haverty apparatus, and tools which represented the claim.” This issue was presented by the other $4,992.10 could be removed from the court to the jury as a question of fact, and building without injury thereto, the plaintiff they were fully instructed by the court that, was at liberty to remove them; the inference unless the agency of Armstrong & Lewis or being that, unless such removal could be made the ratification by the defendant bank of this without injury to the building, they would re-deal by them with the Haverty Company was main therein. The argument in support of established to their satisfaction by the prethe failure of consideration is refuted by the ponderance of the evidence, they should find language of the allegation in the complaint for the defendant. [3] The verdict of the that if the plaintiff should "prosecute its said jury on this issue based upon the conflicting suit thereon to judgment and would promise evidence in the case will not be disturbed by and agree thereafter to assign the same to the this court. (c) “That the evidence was not said defendant," there being no agreement or sufficient to prove that the alleged agreement guaranty as to the exact amount of the judg- had in fact been entered into because some of ment, other than that it should be the judg. its terms had not been assented to." Here ment recovered in that case.

again the jury have differed with the appel[2] Second. (a) “That the evidence showed lant as to the sufficiency of the evidence, that the appellee had not performed its part after having heard it from the witnesses and of the alleged agreement in that it obtained a having been fully instructed relative thereto judgment for $12,429.22, instead of $9,313.90, by the court. as the alleged agreement provides, and that Third. "That the court erred in overruling the judgment recovered by the Haverty Com appellant's motion for a new trial because pany (appellee) established the lien thereof as of the improper comments by counsel for inferior and subordinate to that of Hugo Rich- the appellee in his argument to the jury, in ards, the representative of the bank (appel- the statement that 'the facts that Armstrong lant), instead of, as it was claimed by appel- & Lewis, attorneys for the defendant, had lant to be, superior to that of Richards (the authority to enter into this agreement (meanbank).” Again, the appellant ignores the ing the agreement set up in the complaint) plain language of the alleged agreement, and from their client (meaning the defendant bases its assignment upon a provision that herein) might perhaps be proved by letters is not included in its terms, and cannot be that may have passed between them. We inferred therefrom. The alleged agreement (meaning the plaintiff) tried to get these (above cited) does not provide for a judgment letters, but they (meaning the counsel for for $9,313.90, or any other definite sum. defendant) refused to produce them upon the Neither does it provide that the lien thereof ground that they were privileged because should be decreed to be superior to that of they were communications between attorney Richards. The deal seems to have been made and client, and the court so ruled. We there because of the uncertainty as to the priority fore have to resort to other evidence, as to of the lien. It was contended by counsel for the conduct of the parties,' etc." the bank that the lien was inferior to that of [4] The language of counsel, while the proRichards, and by counsel for the Haverty priety of it might be questioned, does not, Company that it was superior thereto. Nei- we think, constitute reversible error. It ther party appeared to be confident of the might be entitled to be considered as an excorrectness of his position. This uncertainty planation by counsel to the jury of their resulted in the compromise by which the Hav- failure to establish agency by the best evierty Company would receive a sum less than dence. The appointment of an agent or the its full claim, and the chance of being able direct statement of the principal authorizing to remove and retain the material represent the agent to act as such constitutes the best ing part of the balance, and the bank would evidence, and ordinarily, if obtainable, can avoid the danger of having to pay more than be introduced in evidence to show agency. the cost of that part of the materials fur- In this case, Armstrong & Lewis, who are nished that it could use to advantage under claimed to have been the agents of the bank, the modified plans for completion of the build- were the attorneys of the bank in the litigaing they were then acquiring under fore- tion relative to the entire subject-matter here closure proceedings. If the counsel for the in issue. The trial court had excluded cerbank had felt certain that the lien of the tain letters which counsel for appellee conclaim was superior to the mortgage lien, they tended contained authority to Armstrong & would probably have been willing to pay the Lewis to act as the bank's agents, and counface value of the claim. If counsel for the sel evidently was undertaking to explain to Haverty Company bad felt certain of the the jury why he had to rely upon circumstanpriority of the lien over that of the mortgage, tial rather than direct evidence of agency. they would not have sold it nor agreed to [5] The instructions of the court on this subsell it for less than the full face thereof, ject were very clear and explicit to the effect $14,306. (b) "That the verdict of the jury is that no inference could be drawn by the junot supported by the evidence, in this: that ry from the exclusion of the letters that they the evidence fails to show the agency of Arm-contained any evidence that would tend to

establish agency, but that their exclusion as to the amount of property is conclusive, and was simply upon the theory that they con- a finding that the taxable nroperty in the old tained privileged communications between county was less than $3,000,000 threw it into

the second class. client and counsel which rendered them in [Ed. Note. For other cases, see Counties, admissible.

Dec. Dig. & 16.*] Fourth. "That the court erred in overrul-2. SCHOOLS AND SCHOOL DISTRICTS ($ 48*)ing appellant's motion for a new trial upon OFFICERS-REMOVAL. the ground that the court had denied ap vided, thus becoming one of the second class,

Where a county of the first class was dipellant's motion that the court direct the ju the office of county school superintendent was ry to return a verdict for appellant upon the vacated, the statute providing that the probate conclusion of the evidence offered by ap- judge in a county of the second class shall perpellee."

form the duties of such superintendent, and

hence the former county superintendent cannot Fifth. “That the court erred in denying hold that office and draw compensation, but appellant's motion upon the conclusion of must deliver his records to the probate judge. the introduction of all the evidence in the [Ed. Note.-For other cases.. see Schools and case to direct the jury to return a verdict School Districts, Dec. Dig. $ 48.*] for the appellant."

Campbell, J., dissenting. These two assignments may be considered

Petition by T. S. Bunch, as Probate Judge together, and are untenable, as the record for peremptory writ of mandamus to comdiscloses sufficient evidence to warrant the pel J. A. Woods, as county school superinsubmission of the case to the jury to deter-tendent of Graham county, to deliver over mine the facts, and likewise sufficient evi- the records of that office. Writ issued. dence to support the verdict of the jury for the plaintiff in the amount claimed. It is A. G. McAlister, for petitioner. Stratton not necessary to cite the evidence, or even & Lynch, for respondent. extracts from it, but it will suffice to say that the testimony of Christy is sufficient to PER CURIAM. The law provides that the establish the transaction claimed with Arm- classification of counties shall be dependent strong & Lewis, and his testimony, with that upon the amount of taxable property as deof other witnesses, established facts tending termined by the county board of equalization to show the agency of Armstrong & Lewis (Civ. Code 1901, par. 2608). By the terms of and the recognition of such agency by the the act creating Greenlee county (Laws 1909, bank.

c. 21), it was provided that the boards of Sixth. “That the court erred in admitting supervisors of Grabam and Greenlee couuties in evidence the declarations of Thomas Arm-should meet and determine the proportional strong and E. W. Lewis as to their agency part of such equalized valuation lying withfor the appellant to make the agreement in the exterior boundaries of Grabam and sued on."

Greenlee counties, respectively. As it is esThe declarations in question occurred in sential that the class to which each of said the course of negotiations between the par counties belongs should be determined, and ties and were not admitted to prove agency, no other means for the determination of that but for the purpose of showing the contract fact exists, the determination of such boards between the parties, if Armstrong and Lewis of supervisors so made must be taken as had authority to make it on behalf of the ap- conclusive; and as, under such determination, pellant.

the county of Grabam was reduced to a counNo error appearing in the record, the judg- ty of the second class, the duties of the counment of the lower court is affirmed.

ty school superintendent devolved upon the

probate judge from and after the date of CAMPBELL and DOE, JJ., concur. LEW- such determination, and the right of the inIS, J., being disqualified, took no part in the cumbent of the office of county school superconsideration of this case.

intendent to compensation thereupon ceased.

The condition is the same as if in the August (13 Ariz. 318)

following an election of an officer for two BUNCH, Probate Judge, v. WOODS, County years in a given county the board of superSchool Superintendent.

visors ascertained that by the equalized as(Supreme Court of Arizona. March 25, 1911.) sessed valuation such county had dropped 1. Counties (8 16*)–CLASSIFICATION-DETER- from a county of the first class to a county MINATION.

of the second class. In such a case we have Where the act creating a new county out held that thereafter the salary of such officer of an established one provided that the super- is not the salary of such officer in a firstvisors of the two counties should determine the class county, but the reduced salary of such proportion of the taxable property in each county according to the equalized valuation (Laws officer in a second-class county. The same 1909, c. 21), and the law provides that the clas- rule applies here. By law, when a county sification of the counties shall be dependent becomes a second-class county, the office of upon the amount of taxable property as determined by the board of equalization (Civ. Code county school superintendent is no longer an 1901, par. 2608), a finding by the supervisors I independent office, but the duties are per

formed by the probate judge (Civ. Code 1901, , ticable to guard it, the defendant would be par. 1054). The board having by authority guilty of negligence, 'is correct.

(Ed. Note.–For other cases, see Master and of the Legislature ascertained the relative proportion of Graham and Greenlee counties Servant, Cent. Dig. $8 228-231; Dec. Dig. g

121.*] of the equalized assessed valuation as made in 1910, and it appearing that Graham coun- Department 1. Appeal from Superior Court, ty has less than a $3,000,000 valuation, Gra- | Whatcom County; Ed. E. Hardin, Judge. ham county has become a county of the sec

Action by Charles F. Kreymborg against ond class, and no longer has an independent Horton Thurston and others. From a judgcounty school superintendent, since his du- ment for plaintiff, defendants appeal. Afties have devolved upon the probate judge.firmed. We do not perceive that the provisions of the

Newman & Howard and Hurlbut & Neal, so-called enabling act operate to continue the for appellants. Romaine & Abrams, for rerespondent in office under the facts as pre- spondent. sented. The right of the county school superintend

PER CURIAM. ent to such office has therefore ceased, and the respondent, while in the employment of

On September 29, 1909, the writ should issue as prayed for.

the appellants, working in a shingle mill KENT, C. J., and DOAN and DOE, JJ., hand by bringing his arm in contact with a

owned and operated by them, lost his left concur. CAMPBELL, J., dissents.

cut-off saw installed in the mill as a part

of its operative machinery. This action was (63 Wash. 219)

brought to recover for the injury suffered. KREYMBORG V. THURSTON et al.

In his complaint the respondent set forth

separately two causes of action, the one bas(Supreme Court of Washington. April 19, 1911.)

ed on a charge of liability under the state 1. MASTER AND SERVANT (8 289*)-INJURIES

factory act (Rem. & Bal. Code, $ 6587), and TO SERVANT-CONTRIBUTORY NEGLIGENCE- | the other on the common-law liability of the QUESTION FOR JURY.

appellants. Issue was taken on the allegaWhere plaintiff got into a conveyor in a tions of the complaint, and on the trial, at sawmill and attempted to remove accumulated debris with his feet, held, under the evidence, the conclusion of the respondent's case in that the questions whether he acted without chief, the appellants moved for a nonsuit instructions, and whether the act was so haz- as to both causes of action. The motion ardons in its nature that it was not to be supposed that an ordinarily prudent person would

was sustained as to the cause of action undertake it, were for the jury.

founded on the common-law liability, but (Ed. Note. For other cases, see Master and was denied as to the cause of action foundServant, Cent. Dig. 88 1089–1132; Dec. Dig. ed on the state factory act. At the conclu$289.*]

sion of the entire case the appellants moved 2. MASTER AND SERVANT (8 297*)—VERDICT for a directed verdict. This motion was SPECIAL INTERROGATORIES.

In an action for injuries to a servant, the denied, and the cause submitted to the jury, answered by the jury: "Was plaintiff's act in in the sum of $4,000. From the judgment following interrogatories were submitted to and who returned a verdict for the respondent stepping into the conveyor near to the cut-off saw and attempting to loosen refuse with his entered on the verdict, this appeal was taken. feet a very dangerous act?'' Answer: “Yes ; The evidence on the part of the respondfrom the fact that the cut-off saw was not prop- ent tended to show that he was not a reguerly guarded." "Was the method employed in getting into the conveyor and attempting to lar employé of the mill; that for some time loosen refuse with his feet a safe method ?" prior to the day of the accident he had been Answer: "Yes; provided cut-off saw had been working for the appellants in the timber, properly guarded.' Held, that the answers are not contrary to a general verdict for plaintiff, getting out shingle bolts, and that on the in that they imported a finding that plaintiff morning of the accident the weather was was guilty of contributory negligence, as the stormy, and it had been decided that the fact that the act performed by the plaintiff was dangerous does not of itself convict him of con

timbermen should not be sent into the woods tributory negligence, since to do so he must have on that day. After this decision had been known of the danger, or it must have been so reached, the respondent went down to the obvious that a person of ordinary prudence mill, thinking he might find a boat in which would not have attempted the act.

[Ed. Note. For other cases, see Master and he could row himself across the bay lying Servant. Cent. Dig. $8 1195–1198; Dec. Dig. between the mill and the city of Blaine. As 297.*)

he reached the mill, one of his employers 3. MASTER AND SERVANT (8 121*)-INJURIES met him, told him that the mill crew was TO SERVANT-STATUTES-FACTORY ACT.

In an action for injuries to a servant in short-handed on that day, and asked him a sawmill, the ground of recovery being a vio- if he would not help them out. That he lation of the factory act (Rem. & Bal. Code, $consented, and was told to go into the mill 6587), providing that any one operating a mill to a man named Wilder, who would tell where machinery is used shall maintain guards him what to do. for saws, etc., an instruction, that if the saw

That he found Wilder complained of was unguarded, and it was prac- | in that part of the mill where shingle blocks *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

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