heifer to John L. Sturr of the property of Dobbins, at the same time he sold the two heifers to Sturr of the property of Haight, was clearly admissible because the sale of the three heifers constituted but one transaction. State v. Graves, 21 N. M. 556, 564, 157 Pac. 160. It is true that proof of the discovery of the Dobbins heifer on the Durfee ranch in and of itself does not prove the sale of the Dobbins heifer, but there is proof in the record showing that appellant sold three heifers to Sturr at one time, and that one of these was the Dobbins heifer. The evidence being admissible in the first instance the point made by appellant is without foundation to support it. [3] 3. On the cross-examination of appellant he was asked if it was not a fact that he had concealed these cattle in a canyon, and had branded them with a circle P, and that they had broken out of the canyon, and that he was at a designated place at a certain time to ascertain whether the Haight heifers had returned to their owner. Over the objection of appellant's counsel the appellant made answer to the question, but it was not responsive to the question. In the state's rebuttal evidence was introduced tending to show that on September 10, 1915, seven days after Haight discovered that the two heifers claimed by him were not in his herd, the Haight heifers were seen about four miles from the Riddle ranch branded half circle P on the left shoulder. Objection was made to this proof by the appellant on the grounds: (1) That the proof should have been offered in the state's case in chief, which "should have been put in the beginning in order to give the defendant an opportunity to deny that by testimony"; and (2) that the two heifers referred to by the witness are not and could not be the two heifers in question in this case. The witness identified the cattle that he had seen in September as the two Haight heifers, so the last objection made by the appellant need not be considered. The evidence was admitted by the court on the mistaken belief that it rebutted matters testified to by the appellant. Appellant insists that such testimony was improperly admitted, and that it was highly prejudicial to him. The practice of branding a maverick in an unknown or unrecorded brand, which is so formed as to be easily altered, and then permitting the animal to run at large on the open range until all thought of suspicion is past, and then altering the brand upon the animal to conform to the brand of the person practicing this form of deception, is not uncommon in a cattle country, and constitutes a highly systematic attempt to become possessed of the property of another. Such evidence is unquestionably of high probative value, especially in cases like this, where the half circle P brand is so similar to the circle R brand of appellant. That such evidence tends to prejudice the appellant is also unquestioned, but the question is whether the trial court erred in admitting it. It was not proper evidence in rebuttal, but should have been offered by the state in its case in chief. The order of proof, however, is largely discretionary with the trial court, and when no injury results, the party cannot complain. In 1 Thompson on Trials, 354, it is said: "The admission or exclusion of evidence not strictly in rebuttal is discretionary with the court, and not reviewable except where grossly abused." See, also, Chamberlayne on Evd. par. 367, and 12 Cyc. 557. In Lacey v. Woodward, 5 N. M. 583, 587, 25 Pac. 785, 786, the court said: Court of the United States in the Philadelphia "The rule is thus laid down by the Supreme & Trenton Railroad Co. v. James Stimpson, 14 Pet. 448 [10 L. Ed. 535]: The mode of conductand the times when it is to be introduced, are ing trials, the order of introducing evidence, matters properly belonging to the practice of circuit courts, with which the Supreme Court ought not to interfere.' The district courts possess this discretion as fully as other judicial tribunals." No injury resulted to appellant on account of the admission of this evidence out of order. He produced a witness in surrebuttal, who testified that he had also seen these two heifers about September 10, 1915, and that they were branded circle R, not half circle P. Thus appellant was in no way prevented by the court from meeting fully the issues of fact tendered by the state in rebuttal. For the reasons stated, the judgment of the trial court will be affirmed; and it is so ordered. Where a contract contains mutual promises to pay money or perform some other act, and the time for performance for one party is to, or may, arrive before the time for performance by the other, the latter promise is an independent obligation, and nonperformance thereof merely raises a cause of action in the promisee, and it to recover for a breach of the promise made does not defeat the right of the party making to him. Contract construed, and agreement held to be independent. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Independent Covenant.] Appeal from District Court, Curry County; Richardson, Judge. Equitable action by B. G. Glaser against For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Wm. U. Dannelley. Judgment for plaintiff, I first payment on said property above described, and defendant appeals. Affirmed. Patton & Bratton, of Clovis, and H. S. Bowman, of Santa Fé, for appellant. Rowells & Reese, of Clovis, for appellee. the sum of five hundred dollars, same to be ROBERTS, J. This is an equitable action brought by the appellee, B. G. Glaser, to cancel a contract entered into between himself and the appellant, Wm. U. Dannelley, and to compel the restitution by the said Dannelley of the sum of $500, paid by Glaser to Dannelley to apply in part payment for the purchase of a 40-acre tract of land located in Curry county, N. M., and for the redelivery to Glaser of a note for $500, given in payment of the balance due upon the purchase price of the said lands, and for $700 damages claimed to have been suffered by the appellee. The case was tried to the court without a jury, special interrogatories of fact and law were propounded to the court, and judgment was entered by the court against the appellant, decreeing that the said contract be canceled, that the sum of $500 paid by the appellee to the appellant be returned, together with the said note above mentioned. The court founded to treat such contract as at an end, and that no damages were due the plaintiff. At the time of the making of the contract hereinafter referred to, appellant was the owner of the real estate therein contracted to be sold to appellee. The principal part of the negotiations, leading up to the making of the contract were conducted, on behalf of the appellant, by agents employed by him to sell the land referred to. Appellant lived near the land and was well acquainted with the people living and owning land in the vicinity of the tract contracted to be sold. Appellee was a stranger, living in an adjoining state. He desired the land and the leases in question for a cattle range. The agreement, reduced to writing, was as follows: "Know All Men by These Presents, that this contract and agreement, made and entered in this the 18th day of August, 1915, by and between Wm. U. Dannelley, of Curry county, New Mexico, party of the first part, and B. G. Glaser, of Lubbock county, Texas, party of the second part, witnesseth: That for and in consideration of the sum of one thousand and no/100 dollars, to be paid by the said second party to said first party as hereinafter specified and set forth, and the performance of the other covenants and conditions hereinafter mentioned by said first party, the said party of the first part has this day sold to second party the following described property, lying, situate, and being in Curry county, New Mexico, as follows, to wit: The N. W. 4 of the S. W. 4, section 27, township 4 north, range 35 east N. M. P. M., containing 40 acres of land, more or less, as the case may be, together with four miles of threewire fence and one-half mile of one-wire fence post on said four-mile to go with wire. The said first party further covenants and agrees to obtain for the said second party a three-section lease on land in the vicinity of said 40 acres, these leases to be for one year from January 1, 1916, the said second party to pay for said leases; and it is further agreed that said second party will deposit with this contract in The first payment of $500 was made direct to appellant; the note was executed and deposited with the bank, and likewise the warranty deed, as required by the contract. Appellant failed to tender the leases provided for to appellee by the 1st of January, 1916, and on the 5th day of that month appellee notified appellant in writing that, because of his failure to so tender such leases, he elect demanded the return of the sum of $500 so paid by him. Thereafter appellant tendered leases, and some question is made as to land covered by them; but the view we take of the case makes such question of no moment, as it has no place in the case, if the covenant on the part of appellant to procure such leases was independent of the agreement on the part of appellee to pay for the same. In other words, if the payment by appellee of the rentals for the leased lands was not a condition precedent to their procurement and delivery by appellant, clearly the judgment of the district court must be affirmed, regardless of the merits of the other questions presented, for it is conceded that appellant did not tender performance of this part of the contract within the time stipulated, and time was made the essence of the contract. In this case the point arose in this manner: At the close of plaintiff's case, defendant interposed a motion for a verdict upon two grounds: (1) That the complaint did not show that the plaintiff (appellee) had performed, or offered to perform, the conditions in the contract upon which was dependent the procuring of the leases by the appellant; and (2) that the complaint contained no allegation, and there was no proof, to the effect that appellant renounced or repudiated the contract or the terms thereof. It is the contention of the appellant that the written contract between the plaintiff and the defendant imposed upon the plaintiff the performance of certain conditions which were concurrent and dependent, and which, therefore, required from the plaintiff performance thereof, or a tender of performance, before said condition in question is involved in that part of the contract which provides: "The said first party further covenants and agrees to obtain for the said second party a three-section lease on land in the vicinity of said 40 acres, these leases to be for one year from January 1, 1916, the said second party to pay for said leases." If the appellant is correct in this contention, clearly the court was in error in not sustaining his motion, for neither the complaint nor the proof showed a tender of the lease money by appellee. If the acts to be performed by the parties to this contract relative to the leased lands are dependent and concurrent, neither party would be entitled to an action against the other without the averment of performance or the tender of performance on his part. If, however, the procuring of the leases is a condition precedent to the appellee's covenant to pay the rentals of the leased lands, then he is entitled to maintain his action for rescission of the contract, because of the failure of appellant to perform within the time stipulated; time having been made of the essence of the contract. This, on the assumption that the action for rescission would lie for this breach, which was not questioned by appellant in the court below, if the covenant is independent. In Loud v. Pomona L. & W. Co., 153 U. S. 564, 14 Sup. Ct. 928, 38 L. Ed. 822, the Supreme Court of the United States discusses at great length the question of dependent and independent covenants. It is said: "Almost all the old cases and many of the modern ones on this subject are decided upon distinctions so nice and technical that it is very difficult, if not impractical, to deduce from them any certain rule as to what agreements are independent or dependent. The judges in these cases seem to have founded their construction on artificial and subtle distinctions, without regarding the intention and meaning of the parties or the good sense of the case. But the modern rule is that stipulations are to be construed to be dependent or independent, according to the intention of the parties and the good sense of the case.' See, also, Todd v. Summers, 2 Grat. (43 Va.) 167, 44 Am. Dec. 379. In 2 Elliott on Contracts, § 1547, the author says: "Where a contract contains mutual promises to pay money or perform some other act, and the time for performance by one party is to, or may, arrive before the time for performance by the other, the latter promise is an independent obligation, and nonperformance thereof merely raises a cause of action in the promisee, and it to recover for a breach of the promise made does not defeat the right of the party making to him." Hence the question to be determined is whether appellant was required to perform, viz. secure the leases, before appellee was to pay the money for the same. At the time the contract was entered into, so far as the record here discloses, the parties did not know what the rental price for the lands would be. Appellant was to procure them, because he was well known in the community, and it was thought he would be able to get them at a less price than could appellee. The time within which they were to be procured was stipulated. The contract was silent as to whether the rent money should be paid to appellant, or direct to the owners of the land. In advance of the procuring of the leases appellee could not well tender performance, because he would not know the amount he would be required to pay. We believe the covenants were independent, and so construe the contract; hence it follows that the court properly overruled the motion. "The question whether covenants are dependent or independent must be determined in each case upon the proper construction to be placed on the language employed by the parties to express their agreement. If the language is clear and unambiguous, it must be taken according to its plain meaning as expressive of the intention of the parties, and under settled principles of judicial decision should not be controlled by the supposed inconvenience or hardship that may follow such construction. If parties think proper, they may agree that the right of one to maintain an action against another shall be conditional or dependent upon the plaintiff's performance of covenants entered into on his part. On the other hand, they may agree that the performance by one shall be a condition precedent to the performance by the other. The so ordered. question in each case is: Which intent is disclosed by the language employed in the contract?" In the learned note of Serjeant Williams to the early case of Pordage v. Cole, 1 Saund. 320, it is said that: "If a day be appointed for payment of money, or part of it, or for doing any other act, and the day is to happen, or may happen, before the thing which is the consideration of the money, or other act, is to be performed, an action may be brought for the money, or for not doing such other act before performance; for it appears the party relies upon his remedy, and did not intend to make the performance a condition precedent; and so it is where no time is fixed for performance of that which is the consideration of the money or other act." The judgment will be affirmed; and it is HANNA, C. J., and PARKER, J., concur. (51 Utah, 312) BARTHOLOMEW v. PICKETT. (No. 3022.) (Supreme Court of Utah. Dec. 31, 1917.) APPEAL AND ERROR 1008(1)—REVIEW— 1. FINDINGS OF LOWER COURT. Where, in case the record were alone looked to, diferent minds might arrive at different conclusions respecting the ultimate facts, the Supreme Court should not interfere with the lower court's finding.1 Holmes v. Judge, 31 Utah, 269, 87 Pac. 1009; Moyer v. Langton, 37 Utah, 9, 106 Pac. 509; Rydalch v. Anderson, 37 Utah, 99, 107 Pac. 25; Young v. Hyland, 37 Utah, 229, 108 Pac. 1124; Binford v. Eccles, 41 Utah, 453, 126 Pac. 333; Christensen v. In 6 R. C. L. page 860, the rule is stated Beutler, 42 Utah, 392, 131 Pac. 666; Tanner v. Stratas follows: ton, 44 Utah, 253, 139 Pac. 940; Warren v. Mazzuchi, 45 Utah, 612, 148 Pac. 360. Fo: other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 170 P.-5 2. APPEAL AND ERROR 1054(1)-REVERSAL | year 1914; -SUFFICIENCY OF COMPETENT EVIDENCE TO SUSTAIN FINDINGS. When a case is tried by the court without a jury, judgment will not be reversed for the admission of incompetent evidence, if there is sufficient competent evidence to sustain the findings.2 Appeal from District Court, San Pete County; A. H. Christensen, Judge. Action by G. M. Bartholomew against C. H. Pickett. From a judgment for defendant, plaintiff appeals. Judgment affirmed. Lewis Larson, of Manti, for appellant. Delworth Woolley, of Manti, for respondent. FRICK, C. J. Plaintiff brought this action to recover for an alleged trespass by the defendant on lands of which plaintiff alleged he was the owner. The plaintiff fully described the lands in question and set forth the time and nature of the alleged trespass. He prayed for damages, and that the defendant be enjoined from further trespassing on the lands in question. The defendant, in his answer, denied that plaintiff was the owner of the lands described in his complaint; denied the alleged trespass, and that plaintiff was damaged. The defendant also set forth a counterclaim in which he alleged that he was the owner of the lands on which the alleged trespass was committed. The defendant fully set forth the facts showing that the lands in question belonged to him by reason of an established boundary line marked by an old fence line which was put up by the plaintiff between plaintiff's and defendant's lands in dispute. The defendant prayed judgment that the title to the land in dispute be quieted in him, and that he recover damages, etc. The case was tried to the court without a jury. The court, after making the necessary formal findings, found that plaintiff was the owner of the land described in his complaint with the exception of a certain parcel, which is specially described by metes and bounds in the findings, and which parcel the court found belonged to the defendant for the following reasons: * "That the said tract of land so owned by the defendant lies to the west of and adjoining the tract of land owned by the plaintiff, * and the east boundary line of defendant's said land is the same as the west boundary line of the plaintiff's said land; and that the boundary line between the premises owned by the plaintiff and used and occupied by him ** # * and the said tract of land owned, used, and occupied by this defendant and his predecessors in interest is marked and indicated on the ground by an old fence line and a ditch, * which said fence line was established by the predecessors in interest of this defendant and the plaintiff, and was accepted, agreed to, and acquiesced in, as and for the boundary line between the said land of the plaintiff and the said land of the defendant, by the plaintiff and the predecessors in interest of the defendant, for a continuous period of more than 25 years prior to the Leland v. Bourne, 41 Utah, 125, 125 Pac. 652; Spratt v. Paulson, 161 Pac. 1120. and that this defendant and his predecessors in interest have for a pe- The court then found the facts with respect to the alleged acts of trespass in favor of the defendant, and also found, as conclusions of law, that the plaintiff is not entitled to any relief; that the defendant is entitled to a decree quieting the title to the parcel of land in question in him, and that the old fence line constitutes the boundary line between plaintiff's and defendant's land. The plaintiff appeals, and assails the findings of fact on the ground that they are not supported by the evidence, and further contends that the judgment is contrary to law. While it is true that the evidence in support of the court's findings is not as strong as it could be, yet there is ample evidence to sustain every material fact found by the court. In fact, in our view, the weight of the evidence is in favor of the court's findings. There is no dispute that a fence was constructed by the plaintiff at the place where the court fixed the boundary line many years ago. Upon the question of whether that fence was constructed by the plaintiff as the boundary line of his land or not the evidence is in conflict. If the court believed the evidence of the defendant and his witnesses upon that question, which it had the right to do, then again there is ample evidence to sustain the court's findings and to bring this case within the rule laid down by this court respecting boundary lines in the following cases: Holmes v. Judge, 31 Utah, 269, 87 Pac. 1009; Moyer v. Langton, 37 Utah, 9, 106 Pac. 509; Rydalch v. Anderson, 37 Utah, 99, 107 Pac. 25; Young v. Hyland, 37 Utah, 229, 108 Pac. 1124; Binford v. Eccles, 41 Utah, 453, 126 Pac. 333; Christensen v. Beutler, 42 Utah, 392, 131 Pac. 666; Tanner v. Stratton, 44 Utah, 253, 139 Pac. 940; Warren v. Maz zuchi, 45 Utah, 612, 148 Pac. 360. [1] The most that can be said is that in case the record were alone looked to different minds might arrive at different conclusions respecting the ultimate facts. That, however, is one of the prime reasons why we should not interfere with the lower court's findings. That court had the advantage of hearing and seeing the witnesses, and hence could better judge of the weight that should be given to their testimony. The assignment that the findings are not sustained by the evidence, and that the judgment is contrary granting a rehearing was made in February of the present year. The cause was reargued during the May term of this year, and this opinion will be the opinion in the case in lieu of the majority opinion rendered at a former term. to law in that regard, can therefore not pre-firming the judgment of the lower court. vail. Thereafter a petition for a rehearing was [2] The only other assignment relates to filed on behalf of the appellant and an order the admission of alleged incompetent evidence introduced on the part of the defendant. While we do not agree with counsel's contention that the evidence was incompetent (Leland v. Bourne, 41 Utah, 125, 125 Pac. 652), yet if we did agree with him it would not change the result, since the question here raised comes within the rule laid down in Spratt v. Paulson, 161 Pac. 1120, where the rule is stated in the first headnote in the following words: "When a cause is tried by the court without a jury, the judgment will not be reversed for the admission of incompetent evidence if there is sufficient competent evidence to sustain the finding." The judgment of the lower court should be, and it accordingly is, affirmed, with costs. MCCARTY, CORFMAN, THURMAN, and GIDEON, JJ., concur. (51 Utah, 246) The respondent entered a plea of guilty to the offense of attempted robbery in the district court of Salt Lake county on September 23, 1914, and thereupon sentence was pronounced against him that he be "confined in the state prison in and for the state of Utah for a period of nine months." On that judgment the respondent was committed and delivered to the warden of the state prison for confinement. After nine months had expired, to wit, on July 3, 1915, the respondent as petitioner made application to the district court of Salt Lake county for a writ of habeas corpus, and upon a hearing on that application the writ was granted and the prisoner ordered released. From that order the matter is brought to this court on ap MUTART v. PRATT, Warden of State Prison. peal. (No. 2829.) (Supreme Court of Utah. Dec. 19, 1917.) The appellant defends his right to retain the custody of the defendant under the provisions of chapter 100, Laws Utah 1913, com1. STATUTES 118(4)-TITLE-SUFFICIENCY. Laws 1913, c. 100, entitled "An act to pro-monly known as the indeterminate sentence vide for the indeterminate sentence of persons law. The first and second sections of that convicted of crime," does not violate Const. act, the only ones material here, are as folart. 6, § 23, restricting acts to one subject to be clearly expressed in the title, although it impliedly supersedes certain portions of the Penal Code.1 - lows: "Section 1. Whenever any person is convicted of any felony or crime committed after the 2. CONSTITUTIONAL LAW 52 DISTRIBU-taking effect of this act punishable by imprisTION OF POWERS INDETERMINATE SEN-onment in the state prison, except treason or TENCE LAW. murder in any of the degrees thereof, the court in imposing sentence shall not fix a definite term of imprisonment but shall sentence every such person to the state prison, as the nature of the case may require, and every such sentence shall be without limit as to time, but imprisonment under such sentence shall not exceed the maximum term provided by law for the offense for which such person shall be con Indeterminate sentence law (Laws 1913, c. 100) does not violate Const. art. 5, § 1, prohibiting one department of the government from encroaching on the powers of another, because transferring the power of fixing duration of sentences from trial courts to an executive body. 3. CRIMINAL LAW 1206(1), 1208(9)-INDE TERMINATE SENTENCE-POWER OF COURT. Under indeterminate sentence law (Laws 1913, c. 100), § 2, providing that persons sentenced for a definite period shall nevertheless be subject to its provisions, a trial court cannot fix the length or degree of punishment. McCarty, J., dissenting. victed," etc. "Sec. 2. If, through mistake or otherwise, any of time for any offense other than treason or person shall be sentenced for a definite period murder in any of the degrees thereof, such sentence shall not be void, but the prisoner shall be deemed to be sentenced nevertheless as provided and required by the terms of this act, Appeal from District Court, Salt Lake and he shall be entitled to all the benefits and County; F. C. Loofbourow, Judge. Habeas corpus by Sheldon Mutart against Arthur Pratt, Warden of the Utah State Prison. Judgment for relator, and defendant appeals. Reversed, with directions to dismiss the writ. A. R. Barnes, of Salt Lake City, for appellant. Ray Van Cott, of Salt Lake City, for respondent. subject to the liabilities of this act in the samo manner and to the same extent as if sentence had been pronounced in the terms and manner required thereby." The respondent attacks the constitutionality of that act on two grounds: (1) That the purpose of the act is not sufficiently set out in its caption, and because it repeals many sections and parts of sections without direct reference thereto but by implication only; (2) that it deprives the trial judge of GIDEON, J. This cause was argued at judicial discretion to determine the length the October, 1915, term of this court, and a of sentence, within statutory limitations, décision was thereafter rendered by a ma- that should be imposed, and places that jujority of the court, as it then existed, af- dicial function in an executive board. These For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 1 State v. Third Dist. Court, 36 Utah, 90, 104 Pac. 750. |