(13 Ariz. 418)

BANK OF ARIZONA v. THOMAS HAV-
ERTY CO.

(Supreme Court of Arizona. March 27, 1911.)
1. MECHANICS' LIENS (§ 205*)-ASSIGNMENT

OF LIEN-CONSTRUCTION OF CONTRACT.

Plaintiff, the holder of a mechanic's lien in the sum of $14,306, to foreclose which a suit mortgage on the property, entered into a conwas pending, and defendant, the holder of a tract providing that defendant would purchase "the plaintiff's said demand and claim of lien," plaintiff to prosecute his suit to judgment and assign the judgment obtained to defendant, for

after the verdict had been read to the jury and they were asked if it was their verdict and had replied that it was, the court discharged the jury from further consideration of the case. Thereafter, and before the jury had left the box, the defendants' counsel moved for the discharge of the defendants. This was denied by the court on the ground that it was then too late to resubmit the verdict for correction; the jury having been discharged from the case. Thereafter the defendants moved in arrest of judgment, and this motion was also denied. As the ver-which defendant would pay plaintiff $9,313.90, dict was insufficient, judgment should not have been entered thereon, but we do not agree with counsel that the defendants have been in jeopardy and are entitled to be discharged. Such seems to be the rule in California and Oregon under a similar state of facts, but it is not the general rule. In all the cases heretofore cited in this opinion, except the California and Oregon cases, the courts hold that, as such a verdict is insufficient to support a judgment of,conviction, a judgment entered thereon must be set aside and a new trial granted. [7] The general, and we conceive the correct, rule is that where the verdict is so uncertain that the court is unable to tell what the intent of the jury was, and the matter is brought before the appellate court on appeal by the defendant, he cannot by such verdict be held to have been in jeopardy and therefore entitled to his discharge, but that the judgment is not a bar to a further prosecution. 12 Cyc. 262, note 31; Waddle v. State, 112 Tenn. 556, 82 S. W. 827.

being the amount claimed by plaintiff less $4,-
922.10, the value of certain boilers and heating
ing, which boilers and heating apparatus plain-
apparatus used in the construction of the build-
tiff should be at liberty to remove from the
building if it could be done without injury.
ment in the sum of $12,429.22, and obtained a
Plaintiff prosecuted the suit and recovered judg-
decree of foreclosure. Held, that a contention
that the contract was conditional, in that it
be removed without injury to the building, and
was not to be operative unless the boilers could
that the amount of the judgment showed that
this condition had not been performed, could
not be sustained, since the contract imported
should be in any particular amount, and hence
no agreement or guaranty that the judgment
defendant was not excused from performance.
[Ed. Note. For other cases, see Mechanics'
Liens, Dec. Dig. § 205.*]

2. MECHANICS' LIENS (§ 205*)-ASSIGNMENT
OF LIEN-CONSTRUCTION OF CONTRACT.
Such agreement for the transfer of the me-
chanic's lien claim having been made at a time
when the parties to the agreement were uncer-
tain as to the right of priority between the lien
claim and the mortgage, defendant was not ex-
cused from performance by the fact that the
judgment foreclosing the lien decreed that it
was inferior to the mortgage.

[Ed. Note. For other cases, see Mechanics' Liens, Dec. Dig. § 205.*]

3. APPEAL AND ERROR (§ 1002*)-REVIEWQUESTIONS of Fact.

A verdict based on conflicting evidence will not be disturbed on appeal.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. 8 1002.*]

4. APPEAL AND ERROR (§ 1060*)-HARMLESS ERROR-IMPROPER ARGUMENT OF COUNSEL.

It is also urged that the indictment does not state an offense under the statute, either under section 481 or section 489. This latter section, taken from Missouri, so far as its provisions which we have discussed are concerned, is intended to reach a class of offenders sometimes known as "confidence men," who, with intent to cheat and defraud, obtain through some false representation, 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- was in issue, a statement by plaintiff's counsel in argument that such authority might pertion. 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-fendant's counsel had refused to produce them plaintiff had tried to get these letters, but deresentations. State v. Pickett, 174 Mo. 663, upon the ground that they were privileged com74 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 perhaps improper, was not reversible error. requirements of section 489. State v. Wilson, 223 Mo. 156, 122 S. W. 701.

The verdict in the case being insufficient to sustain the judgment of conviction, the verdict and judgment are set aside, and the case is remanded to the district court for a new trial.

CAMPBELL and DOE, JJ., concur.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. § 1060.*] 5. TRIAL (§ 133*)-IMPROPER ARGUMENT-INSTRUCTIONS BY COURT.

of letters written by defendant to their attorWhere plaintiffs demanded the production neys, in order to prove the agency of the attorneys in respect to the contract involved in the action, and defendant's counsel refused to produce the letters on the ground that they were 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

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, claimed a lien upon said building and the lots and that defendant's counsel had refused to produce 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. did promise and agree with the defendant

[Ed. Note. For other cases, see Trial, Cent. 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. Afplaint then alleges prosecution of said action firmed. by the plaintiff, recovery of judgment therein in the sum of $12,429.22, together with a foreclosure of the lien, the offer of plaintiff to assign the said judgment to the defendant, the refusal of the defendant to accept same

Robert E. Morrison and Kibbey, Bennett & Bennett, for appellant. Alexander & Christy and Alfred Franklin, for appellee.

It is assigned as error:

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 Phoenix, Ariz., subject to the defendant's mortgage as a 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 Hugo 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, 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 condemand 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 apparatus, and tools which represented the other $4,992.10 could be removed from the building without injury thereto, the plaintiff was at liberty to remove them; the inference being that, unless such removal could be made without injury to the building, they would remain therein. The argument in support of the failure of consideration is refuted by the language of the allegation in the complaint that if the plaintiff should “prosecute its said suit thereon to judgment and would promise and agree thereafter to assign the same to the said defendant," there being no agreement or guaranty as to the exact amount of the judgment, other than that it should be the judg ment recovered in that case.

into an agreement to purchase the Haverty claim." This issue was presented by the court to the jury as a question of fact, and they were fully instructed by the court that, unless the agency of Armstrong & Lewis or the ratification by the defendant bank of this deal by them with the Haverty Company was established to their satisfaction by the preponderance of the evidence, they should find for the defendant. [3] The verdict of the jury on this issue based upon the conflicting evidence in the case will not be disturbed by this court. (c) "That the evidence was not sufficient to prove that the alleged agreement had in fact been entered into because some of its terms had not been assented to." Here again the jury have differed with the appellant as to the sufficiency of the evidence, after having heard it from the witnesses and having been fully instructed relative thereto by the court.

[2] Second. (a) "That the evidence showed that the appellee had not performed its part of the alleged agreement in that it obtained a judgment for $12,429.22, instead of $9,313.90, as the alleged agreement provides, and that the judgment recovered by the Haverty Company (appellee) established the lien thereof as inferior and subordinate to that of Hugo Richards, the representative of the bank (appellant), instead of, as it was claimed by appellant to be, superior to that of Richards (the bank)." Again, the appellant ignores the plain language of the alleged agreement, and bases its assignment upon a provision that is not included in its terms, and cannot be inferred therefrom. The alleged agreement (above cited) does not provide for a judgment for $9,313.90, or any other definite sum. Neither does it provide that the lien thereof should be decreed to be superior to that of Richards. The deal seems to have been made because of the uncertainty as to the priority of the lien. It was contended by counsel for the bank that the lien was inferior to that of Richards, and by counsel for the Haverty Company that it was superior thereto. Neither party appeared to be confident of the correctness of his position. This uncertainty resulted in the compromise by which the Haverty Company would receive a sum less than its full claim, and the chance of being able to remove and retain the material represent ing part of the balance, and the bank would avoid the danger of having to pay more than the cost of that part of the materials furnished that it could use to advantage under the modified plans for completion of the building they were then acquiring under foreclosure proceedings. If the counsel for the bank had felt certain that the lien of the claim was superior to the mortgage lien, they would probably have been willing to pay the face value of the claim. If counsel for the Haverty Company had felt certain of the priority of the lien over that of the mortgage, they would not have sold it nor agreed to sell it for less than the full face thereof, $14,306. (b) "That the verdict of the jury is not supported by the evidence, in this: that the evidence fails to show the agency of Arm

Third. "That the court erred in overruling appellant's motion for a new trial because of the improper comments by counsel for the appellee in his argument to the jury, in the statement that 'the facts that Armstrong & Lewis, attorneys for the defendant, had authority to enter into this agreement (meaning the agreement set up in the complaint) from their client (meaning the defendant herein) might perhaps be proved by letters that may have passed between them. We (meaning the plaintiff) tried to get these letters, but they (meaning the counsel for defendant) refused to produce them upon the ground that they were privileged because they were communications between attorney and client, and the court so ruled. We therefore have to resort to other evidence, as to the conduct of the parties,' etc."

It

[4] The language of counsel, while the propriety of it might be questioned, does not, we think, constitute reversible error. might be entitled to be considered as an explanation by counsel to the jury of their failure to establish agency by the best evidence. The appointment of an agent or the direct statement of the principal authorizing the agent to act as such constitutes the best evidence, and ordinarily, if obtainable, can be introduced in evidence to show agency. In this case, Armstrong & Lewis, who are claimed to have been the agents of the bank, were the attorneys of the bank in the litigation relative to the entire subject-matter here in issue. The trial court had excluded certain letters which counsel for appellee contended contained authority to Armstrong & Lewis to act as the bank's agents, and counsel evidently was undertaking to explain to the jury why he had to rely upon circumstantial rather than direct evidence of agency. [5] The instructions of the court on this subject were very clear and explicit to the effect that no inference could be drawn by the jury from the exclusion of the letters that they 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 roperty 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 appellant's motion that the court direct the jury to return a verdict for appellant upon the conclusion of the evidence offered by appellee."

Fifth. "That the court erred in denying appellant's motion upon the conclusion of the introduction of all the evidence in the

case to direct the jury to return a verdict for the appellant."

vided, thus becoming one of the second class,
the office of county school superintendent was
vacated, the statute providing that the probate
judge in a county of the second class shall per-
form the duties of such superintendent, and
hence the former county superintendent cannot
hold that office and draw compensation, but
must deliver his records to the probate judge.
[Ed. Note. For other cases, see Schools and
School Districts, Dec. Dig. § 48.*]
Campbell, J., dissenting.

Where a county of the first class was di

These two assignments may be considered together, and are untenable, as the record discloses sufficient evidence to warrant the submission of the case to the jury to determine the facts, and likewise sufficient evidence to support the verdict of the jury for the plaintiff in the amount claimed. It is 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 establish the transaction claimed with Armstrong & Lewis, and his testimony, with that of other witnesses, established facts tending to show the agency of Armstrong & Lewis and the recognition of such agency by the bank.

Petition by T. S. Bunch, as Probate Judge for peremptory writ of mandamus to compel J. A. Woods, as county school superintendent of Graham county, to deliver over the records of that office. Writ issued.

A. G. McAlister, for petitioner. Stratton

Sixth. "That the court erred in admitting in evidence the declarations of Thomas Armstrong and E. W. Lewis as to their agency for the appellant to make the agreement sued on."

The declarations in question occurred in the course of negotiations between the parties and were not admitted to prove agency, but for the purpose of showing the contract between the parties, if Armstrong and Lewis had authority to make it on behalf of the appellant.

No error appearing in the record, the judg

ment of the lower court is affirmed.

PER CURIAM. The law provides that the classification of counties shall be dependent upon the amount of taxable property as determined by the county board of equalization (Civ. Code 1901, par. 2608). By the terms of the act creating Greenlee county (Laws 1909, c. 21), it was provided that the boards of supervisors of Graham and Greenlee counties should meet and determine the proportional part of such equalized valuation lying within the exterior boundaries of Graham and Greenlee counties, respectively. As it is essential that the class to which each of said counties belongs should be determined, and no other means for the determination of that fact exists, the determination of such boards of supervisors so made must be taken as conclusive; and as, under such determination, the county of Grabam was reduced to a county of the second class, the duties of the county school superintendent devolved upon the probate judge from and after the date of such determination, and the right of the in

CAMPBELL and DOE, JJ., concur. LEWIS, J., being disqualified, took no part in the cumbent of the office of county school superconsideration of this case.

(13 Ariz. 318)

BUNCH, Probate Judge, v. WOODS, County
School Superintendent.

(Supreme Court of Arizona. March 25, 1911.)
1. COUNTIES (§ 16*)-CLASSIFICATION-Deter-
MINATION.

Where the act creating a new county out of an established one provided that the supervisors of the two counties should determine the proportion of the taxable property in each county according to the equalized valuation (Laws 1909, c. 21), and the law provides that the classification of the counties shall be dependent upon the amount of taxable property as determined by the board of equalization (Civ. Code 1901. par. 2608), a finding by the supervisors

intendent to compensation thereupon ceased. The condition is the same as if in the August following an election of an officer for two years in a given county the board of supervisors ascertained that by the equalized assessed valuation such county had dropped from a county of the first class to a county of the second class. In such a case we have held that thereafter the salary of such officer is not the salary of such officer in a firstclass county, but the reduced salary of such officer in a second-class county. The same rule applies here. By law, when a county becomes a second-class county, the office of county school superintendent is no longer an independent office, but the duties are per

KENT, C. J., and DOAN and DOE, JJ., hand by bringing his arm in contact with a concur. CAMPBELL, J., dissents.

3. MASTER AND SERVANT (§ 121*)-INJURIES TO SERVANT-STATUTES-FACTORY ACT. In an action for injuries to a servant in a sawmill, the ground of recovery being a violation of the factory act (Rem. & Bal. Code, & 6587), providing that any one operating a mill where machinery is used shall maintain guards for saws, etc., an instruction, that if the saw 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