quired by the decree of this court to convey to said plaintiff all right, title, and interest he may have acquired in said real estate, and for cost of suit.

The answer denies every material allegation contained in the complaint.

Upon the trial before the court without a jury, there were some six or seven witnesses upon one side and the other, besides the deceased plaintiff and the defendant. The findings of facts and conclusions of law by the court are as follows:

"1. That on the fifth day of July, 1882, and for a long time. prior thereto, the plaintiff had been the owner in fee simple, and in possession and entitled to the possession, of the following-described tract of land as set forth in the complaint, to wit: Being a part of lot five (5), in block fifty-three (53), of Plat A, of Salt Lake City survey, bounded and described as follows. (Here follows a description of the land.)

"2. That at the date aforesaid the defendant sustained towards the plaintiff the relation of son to mother; that the plaintiff was seventy years of age; that the plaintiff reposed great confidence and trust in the defendant, who had been. theretofore attending to business for her, and in former years they had lived together even after the defendant became of

age.

"3. That on the said fifth day of July, 1882, the defendant procured from the plaintiff an absolute deed of said described tract of land, which deed was afterwards, on the tenth day of July, 1882, recorded in the office of the county recorder of Salt Lake county, Utah, in book F of deeds and transfers, pages 575 and 576.

"4. That at the time of the execution of said deed, plaintiff did not know that it was a deed of her property in question, but believed it to be a life lease of property belonging to the defendant, upon which she was agreeing to assist in building a home; that prior to the time of the execution of said deed there had been negotiations between the said plaintiff and the said defendant, to the effect that the plaintiff should assist defendant with money to build a house upon lands of his own, and that after such negotiations had taken place she directed defendant to prepare the proper papers; that defendant, instead of preparing the papers directed by plaintiff, prepared

a warranty deed of the land in question, and procured the signature of the plaintiff thereto; that the same was not read to the plaintiff, and she did not know the contents thereof; that there was no consideration for the same passed between the parties, and that the plaintiff signed the same under the belief that it was a paper relative to a life lease to her of the said land of the defendant upon which said building was to be erected; that the signature of the plaintiff to the said deed was procured by the fraud of the defendant; that the defendant never has attempted to build any such house as was contemplated by the agreement for the life lease.

"5. That the plaintiff, since the execution of the said deed, has remained in the possession and control of the property in question; that prior to the commencement of this suit the plaintiff caused demand to be made upon the defendant that he reconvey the property to her.

CONCLUSION OF LAW.

"I find as conclusion of law that said deed set forth in the complaint, from the plaintiff to the defendant, for the land aforesaid, was procured by fraud, and that the same should be canceled and set aside; that the plaintiff is entitled to the possession of and title to the said land and premises; that the plaintiff is entitled to a decree that the said defendant do, within five days after demand upon him, execute and deliver to the plaintiff a deed duly acknowledged of the aforesaid premises; that in case of his failure so to do, such order and decree shall stand as a cancellation of the said deed from the plaintiff to the defendant; that the same is canceled, set aside, and declared null and void; that the plaintiff is entitled to recover of the defendant her costs in this behalf expended, and judgment is hereby ordered accordingly."

The law presumes that every person who puts his name to and executes a deed knows the contents of the instrument to which he puts his seal, and before some magistrate acknowledges with solemnity the instrument as his act and deed; and that he knows the legal effect of it. But in a case where it is charged that a deed is executed by reason of false and fraudulent representations, as to its contents, and that it was falsely read to him, and that by reason of such representa

tions and reading he executed it in ignorance of its contents, then the validity of such deed may be inquired into, and impeached by oral testimony; and if it is sufficient in strength to carry conviction to the mind of the jury, or of the court sitting as a jury, of the truth of the charge, the effect may be that the solemn deed of the party be annulled and held for naught: Eaton v. Eaton, 37 N. J. L. 108.

This principle of law is universally recognized, and is necessary to protect the unwary, weak, or ignorant from the cupidity of the unscrupulous sharper, whose efforts to enrich himself at the loss or ruin of others is restrained only by want of opportunity and a wholesome sense of the power or efficacy of the law, to protect and avenge the injuries, redress his wrongs, and punish the guilty.

We are all of the opinion that the court below could upon the testimony before it find for the plaintiff upon all of the issues, and that the record shows no error, and therefore the judgment of the district court is affirmed.

HUNTER, C. J., and EMERSON, J., concurred.

BENITES v. HAMPTON ET AL.

ACCOUNT STATED, WHAT CONSTITUTES-EFFECT OF.-Where the parties to an account, after an examination of it have expressly agreed upon a certain sum of money as the balance justly due from one to the other, then such account becomes an account stated, the effect of which is to establish prima facie the accuracy of the balance found due without other proof, and an action thereon is not founded upon the original items of the account, but upon the balance ascertained by the mutual accounting of the parties.

ID.-IMPLIED FROM CIRCUMSTANCES.-It is not necessary in establishing an account stated to show an examination of and an agreed balance due upon the account, but where it is presented for payment by one party thereto to the other, who, when a reasonable time has elapsed after its receipt, makes no objection thereto, it may be legitimately presumed that he was satisfied with the account as presented, which presumption takes the place of an express assent thereto, and the same becomes an account stated. Such presentation may be by mail. Under such circumstances, however, the person sought to be charged must in terms be a party to the account, or the grounds upon which it is sought to hold him as a debtor should be clearly made known to him and a demand for payment made, otherwise no presumption arises from his silence in relation thereto.

UTAH REPTS, VOL. III-24

ID. CIRCUMSTANCES INSUFFICIENT TO ESTABLISH AN ACCOUNT STATED.Plaintiff sued three defendants, Bicknell, Morrisson, and Hampton, as constituting the partnership firm of Bricknell, Morrisson & Co., upon account stated. H. only answered. B. and M. had been partners up to July 1, 1875, when H. entered the firm, agreeing to become responsible with B. & M. for all debts then existing. The account offered in evidence was headed "Bicknell & Morrisson, in account with L. Benites," and contained a large number of items, some charged up before and some after H. entered the firm, showing a balance of one thousand six hundred and sixty-three dollars and seventy cents; one item was as follows: "June 30, 1875, to balance on settlement, charged to Bicknell, Morrisson, and Hampton, three hundred and fifty dollars and twenty-nine cents." It did not appear that B., M. & H. were B., M. & Co. Plaintiff caused the account thus made out to be sent through the post-office at Stockton, Utah, to H., who resided at Frisco, Utah, but without any accompanying letter of explanation or other statement as to why the account was sent to H. H. admitted receiving the account, said he had neglected to write to plaintiff about it, and claimed a credit not appearing in the account. The distance between Stockton and Frisco was not shown, nor the frequency of or length of time usually required to transport the mails between those places, nor did the record disclose when the action was begun: held, the account was not established as an account stated, and the trial court did not err in excluding it from evidence when offered as such.

APPEAL from the third district. The opinion states the facts.

E. D. Hoge and Arthur Brown, for the appellant.

No brief on file.

Marshall & Royle, for the respondent.

The variance between the allegations and the proofs in this cause was necessarily fatal: 1 Greenl. Ev., secs. 63, 66, and note; Addington v. Magan, 2 Eng. L. & Eq. 327.

The items of the account, as well as any and all claims, for goods, wares, and merchandise," became merged in the account stated: 2 Greenl. Ev., sec. 127; 13 Cal. 427; 4 Wis. 220; 33 Cal. 694; 1 Utah, 317..

TWISS, J.:

The complaint alleges that the defendants, between the thirtieth day of June, 1875, and the thirty-first day of August, 1876, were partners, doing business under the firm name of Bicknell, Morrisson & Co. "That on the thirty

first day of August, 1876, the said defendants, as partners, were indebted to plaintiff on a balance of account for goods, wares, and merchandise, before that time sold and delivered, in the sum of one thousand six hundred and sixty-three dollars and seventy cents; that being so indebted, as aforesaid, there was an account stated by and between plaintiff and defendants on the thirteenth day of August, A. D. 1878, and upon which statement a balance of one thousand six hundred and sixtythree dollars and seventy cents was found to be due plaintiff from defendants; that the defendants agreed to pay to the plaintiff the said balance; that no part of the same has been paid." And prays judgment for one thousand six hundred and sixty-three dollars and seventy cents.

The separate answer of defendant Hampton is an admission of the partnership of the defendants, as alleged in the complaint; but is a denial of all the other material allegations of the complaint. The other defendants made no an

swer.

There was evidence from which the jury might well find that Bicknell & Morrisson were partners from about the first day of January to the first day of July in 1875, in the business of burning lime and charcoal; that on or about the last-named day, they caused an inventory of their partnership assets and a statement of their partnership debts to be made, and sold to Hampton one half of their partnership property; in consideration of which he agreed to become responsible for, and did make himself responsible for, and assumed the payment of, one half of the partnership debts of Bicknell & Morrisson existing at that time, and that the plaintiff was a large creditor; that from the first day of July, 1875, to the thirty-first day of,August, 1876, the defendants were partners, Bricknell and Morrison each owning onequarter part interest, and Hampton an interest of one half in the partnership assets or property. That on the thirteenth day of August, 1878, Hampton lived at Frisco, Beaver county, in the territory of Utah, which was his post-office address; that the plaintiff Benites lived at Stockton in this territory, and on the last-named day caused the account which he claims in his complaint to be "an account stated by and between the plaintiff and the defendants," the balance of