a matter of law, declare what probative force or effect shall be given to any particular act or circumstance where the evidence is conflicting or where conflicting inferences may be deduced from certain facts. If courts did this it would constitute an invasion of the province of the jury, which, as the trier of fact, is the sole judge of what, if any, weight shall be given to any particular fact or circumstance which is produced in evidence before them. In this connection we remark that the suggestion that in the absence of a statute the courts of Texas have declared that recorded marks and brands con ject, was adopted March 11, 1886. 1 Comp. Laws Utah 1888, p. 779. Section 11 of that act was in the following words: "In any trial under the provisions of this act, the proof of the brands and marks shall be deemed sufficient to identify all classes of live stock mentioned in this act, and shall be prima facie evidence of ownership of such stock." 1 Comp. Laws Utah 1888, p. 782. (Italics ours.) This act was slightly amended in 1897. Laws Utah 1897, p. 47. The law upon the subject of marks and brands was considerably abridged when the R. S. Utah 1898, were adopted, as appears from chapter 2 of title 2 of that revision, which supersed-stitute prima facie evidence of ownership is ed and constituted all the law upon that clearly erroneous. The statute law of Texas subject from and after January 1, 1898. In upon the subject is as follows: The first act the R. S. Utah 1898, the section with refer- concerning marks and brands in force in ence to what effect recorded marks or brands that state is found at page 315 of Oldham shall have was entirely omitted. The law & White's Digest Laws of Texas, published upon this subject as found in the R. S. Utah in 1859. 1898, was subsequently carried into Comp. Laws Utah 1907, and constitutes sections 36 to 47 of that compilation. The law, therefore, as now in force in this state, and which was in force when the cause of action in question arose, not only does not provide what, if any, effect shall be given to recorded marks or brands, but the very provision which did provide that recorded marks and brands should constitute prima facie evidence of ownership has been entirely eliminated, and for more than 12 years has not been a part of the law of this state upon that subject. In view, therefore, that at one time there was a statute in force in this state Article 1407 as found in the work just referred to, and which is a part of the law still in force in Texas, reads as follows: "No brands, except such as are recorded by the officers named in this act, shall be recog nized in law as any evidence of ownership of the cattle, horses, or mules upon which the same may be used." This section was carried into R. S. Texas 1879, as article 4561. In connection with the article above quoted there was also another article or section. In the latter article (4574) it was in effect provided that no person shall be permitted to treat any animal as an estray which was marked or branded with a registered mark or brand. Construing these two sections towhich provided what evidentiary effect should gether, the Court of Civil Appeals of Texas, be given to recorded marks and brands, held that in view of the section just mentionin the case of Schneider v. Fowler, supra, which statute has been repealed, or, at least, ed it was intended that a recorded mark or eliminated from the law upon the subject, brand should constitute prima facie evidence we think it should be assumed that the Leg-of ownership. The Supreme Court of Texas, islature had a purpose in view in bringing about such a change in the law respecting marks and brands. In other words, we think no other inference is permissible than the one that the Legislature of this state, by eliminating the section we have quoted, intended to make the evidentiary effect of recorded marks and brands precisely the same as that given to any other mark or brand that an owner of live stock might apply to his stock as marks of identification, and in order to give such marks and brands as great a practical effect as possible the Legislature prohibited the duplication and use of record-4958, which are the same as articles 4561 ed marks and brands by any one except the owner thereof. It is reasonably clear, therefore, that the Legislature did not intend that any mark or brand, whether recorded or not, should be deemed prima facie evidence of ownership after the law was changed as aforesaid. [2] While the legislative power may, within certain limits, declare what prima facie shall be deemed sufficient evidence for the purpose of establishing a given fact, yet the courts, in the absence of a statute, cannot, as It is in passing upon this question in De Garca v. and 4574 aforesaid. It will thus be seen that while the statute of Texas did not, perhaps, in express terms make registered marks or brands prima facie evidence of ownership, yet, by the construction that the courts of Texas placed thereon, such was its effect. The courts of Texas, therefore, did not, elther in substance or effect, hold that courts, in the absence of a statute, may declare that the mere production of the record of marks or brands makes the record thereof prima facie evidence of ownership. In a later Texas case, Alexander v. State, 24 Tex. App. 126, 5 S. W. 840, which was decided several years after the other Texas cases to which we have referred, it was held that the statute of Texas "does not make it (the recording of the brand) prima facie proof of ownership, nor attach to it any particular weight, or even expressly declare it admissible evidence. It is like any other, evidence of ownership, and having been admitted in evidence, is for the consideration of the jury, like any other evidence." It should be noted that no mention is made in this case of the prior Texas cases, and hence it must be assumed that the prior Texas cases, one of which was decided by the Supreme Court of Texas, the court of last resort, were overlooked by the court de ciding the latter case. this is for the jury and not for the court to pass upon. The judgment is reversed and the cause remanded to the district court, with directions to grant a new trial and to proceed with the case in accordance with the views herein expressed. Appellants to recover costs. MCCARTY, J., concurs. result reversing the judgment. However, I STRAUP, J. (concurring.) I concur in the am of the opinion that the appellants ought not to have costs. Under the statute (Comp. Laws 1907, § 3344) "costs on appeal are in the discretion of the court (1) when a new trial is ordered," or "(2) when a judgment is modified." At the outset all that was involved in this case was the value and right of possession of four common sheep alleged in the in the answer $3.50 each. The jury, by their complaint to be of the value of $6 each, and verdict, awarded three sheep to the plaintiffs and one to the defendants. The defendants, But whatever effect be given to the Texas cases, in this state, as we have pointed out, the statute which provided that the record or a mark or brand should constitute prima facie evidence of ownership was eliminated from the law upon that subject. This fact, to our minds, is a strong circumstance, and may be considered as proof that the Leg-not to vindicate or have settled any legal islature did not deem it wise to longer place any particular legal effect upon marks and brands whether recorded or not, but deemed it best that all marks and brands may be received and considered as evidence for the purpose of identification and as some evidence of ownership, as stated in the cases referred to, supra, but should not be declared prima facie evidence which, standing alone, should be sufficient to require an adverse claimant of animals to assume the burden of proof upon the question of ownership. No doubt various reasons could be assigned why the Legislature may have thought a provision fixing the probative effect of a recorded mark or brand unwise, but it is not deemed either wise or profitable to speculate upon such reasons. What has been said practically disposes of the objections urged against the other instructions. principle involved in the case, but to defend a mere pecuniary interest alleged by them to be worth only $10.50, prosecuted this appeal on a transcript consisting of 325 pages, brief of 16 pages, a cost, including fees, of a printed abstract of 64 pages and a printed something like $150. Though the defendants had the right to prosecute the appeal without any reference to the amount claimed or involved, yet when the amount involved is so greatly disproportionate to the costs, and when compared with them is almost insignificant, it would seem that something else besides defending or protecting a mere monetary interest prompted the appeal. awarding of costs being here discretionary, I think neither party should be given costs. 1. The (39 Utah, 343) ANDERSON v. CLAYTON et al. (Supreme Court of Utah. July 12, 1911.) PARTNERSHIP (§ 290*)-DISSOLUTION-NO TICE-FAILURE TO GIVE. Where the public was not given notice in any way of the dissolution of a firm, though the remaining partner was directed to give such ist as to third persons dealing with the firm. notice, the partnership relation continued to ex [Ed. Note.-For other cases, see Partnership, Cent. Dig. § 651; Dec. Dig. § 290.*] 2. PARTNERSHIP (§ 139*)-LIABILITIES AS TO THIRD PERSONS-MANAGING PARTNER. [3] The court, in submitting a case to a jury in which the effect of recorded or unrecorded marks or brands is involved, should not single out any particular mark or brand and tell the jury what its effect as evidence is, but should submit to them all the marks and brands, whether recorded or not, and tell them to consider all of them in connection with all the other evidence of ownership and of identification, if any, and give such marks and brands such weight and effect as in their judgment under all the circumstances they deem them entitled to. The jury may be told that they should determine the weight or effect to be given to any mark or brand from all the facts and circumstances. If so considered, the jury may no doubt find that a particular mark or brand has more weight than another, and may in their judgment be sufficient to establish ownership, but •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes the scope of the partnership business bound the A contract by the managing partner within other partner, though he had no actual knowledge thereof. [Ed. Note. For other cases, see Partnership, Cent. Dig. §§ 206-211, 213; Dec. Dig. § 139.*1 3. SPECIFIC PERFORMANCE (§ 121*)-ACTIONSSUFFICIENCY OF EVIDENCE-APPROVAL OF CONTRACT. In an action for specific performance of an agreement to convey land on another's approval of the contract, evidence held to show that such other approved the contract by another contract made by himself and wife. [Ed. Note.-For other cases, see Specific Per formance, Dec. Dig. § 121.*] 1. APPEAL AND ERROR (§ 1172*). A part of a judgment of which none of the parties complained will not be disturbed on appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4555-4561; Dec. Dig. 8 1172.*] Appeal from District Court, Salt Lake County; C. W. Morse, Judge. that both of them had knowledge and notice of plaintiff's interest. The Claytons, Cummings, Clayton & Co., Lawver, and Goddard were all made defendants. The relief prayed for against the Claytons was to require them to convey the property to the plaintiff; that, as against the plaintiff, the defendants Lawver and Goddard be adjudged to have no title or interest in or to the property; and that, in the event a conveyance could not be had, plaintiff be given a judgment in the sum of $2,500 damages. To this complaint the Claytons filed an answer admitting their ownership of the property, the agreement made by them to Action by Parley Anderson against Nephi W. Clayton and others. From a decree for defendants, plaintiff appeals. Reversed and sell and convey the property to Lawver, and remanded in part, with directions. Evans & Evans, for appellant. Young & Snow, for appellees Clayton. Stewart, Stewart & Alexander, for appellees Lawver and Goddard. ment with Lawver to sell and convey the property to him, and that the agreement had been assigned to Goddard; alleging the value of the property to be $3,000; and denying all other allegations of the complaint. By way of counterclaim and cross-complaint they set forth their written agreement, by the terms of which Clayton had agreed to sell and convey the property to them for the sum of $1,900; alleged that they had made a tender of the purchase price, a demand for a conveyance clear of the incumbrance created by an agreement in writing from the Claytons to the plaintiff, by the terms of which they had agreed to convey the property to plaintiff, and a refusal of the Claytons to give a conveyance clear of such incumbrance. The relief prayed for by them was a conveyance from the Claytons to Goddard, and, if that could not be had, a judgment against them in the sum of $1,050. the assignment thereof to Goddard; denying all other allegations of the complaint; and pleading the statute of frauds-"that said alleged contract for the sale of said land as mentioned in plaintiff's complaint, nor any note or memorandum thereof in writing, was STRAUP, J. The appellant, plaintiff be ever.subscribed by defendants or either of low, alleged in his complaint that the de- them, or by the lawful agent thereunto aufendant Nephi W. Clayton, at the time of and thorized in writing by these defendants or prior to the alleged grievances, was the own- either of them." The defendants Lawver er of certain described real estate of the val- and Goddard answered, also admitting that ue of $2,500 at the commencement of this the Claytons were the owners of the propaction; that Clayton and the defendant Cum-erty, that Clayton had entered into an agreemings were copartners in business engaged in buying, selling, and dealing in real estate under the firm name of "Clayton & Co."; that on the 15th day of August, 1905, Clayton & Co., by Cummings, executed and delivered to the plaintiff a writing as follows: "Salt Lake City, Utah, Aug. 15, 1905. Received of Parley Anderson the sum of four hundred and fifty (450) dollars as part purchase price, to wit, twelve hundred and fifty (1,250) on lot two (2), block one hundred and forty-five, plat 'D,' Salt Lake City survey, subject to the approval of the owner, N. W. Clayton. The balance of the purchase price, eight hundred dollars, to be paid on or before July 1st, 1906, with seven per cent. interest from date until paid. It is understood and agreed that the said N. W. Clayton shall furnish an abstract of title and warranty deed to said lot when the balance of said purchase price shall have been paid. If the title to said lot should prove unmarketable then the Upon a trial of the issues to the court, money now paid shall be returned to said findings were made that on the 15th day of Parley Anderson. Clayton & Co., Per M. L. August, 1905, "the defendant Cummings” exC., Agent." It was further alleged that the ecuted and delivered to the plaintiff the memdefendants N. W. Clayton and Sybella W. orandum or writing set forth in plaintiff's Clayton, his wife, subsequently ratified and complaint; that the Claytons had no knowladopted the writing or agreement; that the edge or notice of the memorandum until aftplaintiff had performed all of the conditions er the commencement of this action, and of the agreement on his part to be performed; "never ratified or adopted the terms or conthat the Claytons refused to convey the prop-ditions thereof"; that "the plaintiff has not erty to plaintiff on his demand; that the Claytons, on the 8th day of March, 1907, by an instrument in writing, also agreed to sell and convey the property to the defendant Lawver for the sum of $1,900, who assigned his interest to the defendant Goddard; and performed his part of said memorandum or agreement"; that on the 8th day of March, 1907, the defendant N. W. Clayton executed and delivered to Lawver an instrument in writing, by the terms of which Clayton agreed to sell and convey the property to *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes Lawver, as set forth in his counterclaim, make a statement of the business up to July and cross-complaint; that Lawver assigned 1st. His statement was not satisfactory, and the agreement to Goddard; that Goddard on I asked him to terminate the parnership that day tendered to the Claytons the amount and pay all the debts then existing, and that of money agreed to be paid by that agree- if he would do so he could have all that he ment, and demanded a deed; that Goddard could make out of it. He agreed to it and refused to accept the deed tendered to him said he would attend to it immediately. I by Clayton "for the reason that the said told him to take the signs off the windows. lands were not then free and clear of incum- He said he would attend to the giving of nobrance, inasmuch as the said memorandum tice of dissolution. I don't know whether he or agreement mentioned in the plaintiff's did these things or not. I left that all to complaint and executed and delivered to the him. I did nothing further towards dissolvplaintiff by said M. L. Cummings constituted ing the partnership or terminating it than an incumbrance or cloud upon the title to the statements made by me to Cummings. the said lands; that the said memorandum * * I suppose that, as far as the public then and there constituted and created a were concerned who would deal or might deal cloud and incumbrance upon the title to said with the company, it was still Clayton & Co. lands"; that the real estate at the time of after my talk with Cummings, so far as any the tender was of the value of $2,800; and steps I took to give notice of dissolution. I that Goddard, by reason of the refusal of the was in Salt Lake during 1905, but left for Claytons to deliver to him a deed clear of Europe in January, 1906, returning to Salt the incumbrance mentioned, was damaged in Lake in March, 1907." the sum of $900. Upon these findings the court stated conclusions dismissing plaintiff's complaint, dismissing the action as against Sybella W. Clayton, and holding that the defendant Goddard was entitled to a decree against N. W. Clayton requiring him to convey the property to Goddard, "and if specific performance becomes impossible by reason of the refusal of Sybella W. Clayton, the wife of N. W. Clayton, to join in the deed, then the said Goddard is entitled to a judgment against said N. W. Clayton in the sum of $900 with interest"; and "that the plaintiff is not entitled to recover judgment against the defendants or either of them and is not entitled to any relief prayed for in plaintiff's complaint." A judgment was entered accordingly, from which the plaintiff has prosecuted this appeal, assailing the findings and conclusions as being unsupported by and against the evidence. The undisputed evidence shows that the defendants N. W. Clayton and M. L. Cummings were partners in business under the firm name of Clayton & Co. engaged in the business of buying and selling and dealing in real estate. Clayton himself testified that: "Among other things, I was engaged in the real estate business with M. L. Cummings. We formed a copartnership early in April, 1905, and opened an office at No. 153 South Main street, and put up signs indicating the name of the firm and the business we would engage in. The firm name was Clayton & Co. Mr. Cummings was in active charge of the business, being the managing partner. I would sometimes go in to advise with him. The copartnership was formed for the purpose of dealing in, buying, and selling real estate, the real estate business. Cummings was the one who entered into the contracts and who did the business of the company." He further testified that he, in July, 1905, on a return trip from New York, "become suspicious of Cummings, and required him to * The evidence, without dispute, shows that no notice of dissolution of the partnership was given, or that any further or other steps were taken to terminate it. The evidence, also without dispute, shows that on the 15th day of August, 1905, Clayton & Co., by M. L. Cummings, executed and delivered to the plaintiff the memorandum or writing set forth in his complaint. Against this undisputed evidence the court found the memorandum was made by M. L. Cummings, and not by Clayton & Co. The evidence, also without dispute, shows that three days thereafter, and on the 18th day of August, Nephi W. Clayton and his wife, Sybella W. Clayton, executed and delivered the following instrument in writing: "This agreement, made this 18th day of August, A. D. 1905, between Nephi W. Clayton and Sybella W. Clayton (his wife), of Salt Lake City, county of Salt Lake, and state of Utah, parties of the first part, and Parley Anderson of the county of Tooele, state of Utah, party of the second part, witnesseth: That, in consideration of the sum of four hundred and fifty dollars, in hand paid by the second party to the first parties, the receipt whereof is acknowledged, the said first parties agree that upon the payment by the second party on or before the first day of July, 1906, of the further sum of eight hundred dollars, they will convey to the second party, or assigns, by warranty deed conveying good and marketable title and releasing dower, all that parcel of land situate in the city and county of Salt Lake, state of Utah, described as follows: All of lot two (2), block one hundred and forty-five (145), Plat 'D,' Salt Lake City survey. Said sum of eight hundred dollars to be paid in the following manner, to wit, * * upon the delivery and acceptance of deed to said lot, on or before said first day of July, 1906. With interest at the rate of seven per cent. (7%) per annum on all deferred payments from the date of this contract and all taxes after 1905. The first parties agree to furnish to the second party, | which was acknowledged by both Clayton or his assigns at their own expense, on or be- and his wife, was made by plaintiff by check fore the first day of September, 1905, an payable to the order of "Clayton & Co." Beabstract of title to said premises continued tween the time of that payment and the 1st to date hereof. But in case said second day of July, 1906, he paid the balance of party or his assigns fail to make said pay- the purchase price, $800, together with the ment within the time above limited this interest thereon, to Clayton & Co., or to agreement becomes of no effect, and the mon- Cummings, the active manager of the firm; ey now paid is forfeited to said first party. the last payment being on the 3d day of FebWitness our hands and seals the day and ruary, 1906, when he paid $549.75. After year aforesaid. Nephi W. Clayton. [Seal.] all such payments had been made and a Sybella W. Clayton. [Seal.] In presence of: final receipt given acknowledging payment M. L. Cummings." in full, and after Clayton had returned from Europe, plaintiff's brother, who, at Salt Lake city, was looking after his brother's interest in his absence, telephoned Clayton and Plaintiff's brother asked him for a deed. testified: "I called him up by phone and asked him to fix the matter up. He said he had no dealings with me at all. I told him I was taking care of my brother's interest; but he said he had no dealings with me at all. I asked for a deed; but he wouldn't This instrument was acknowledged on the date of its execution before "M. L. Cummings, Notary Public," and on the 25th day of November, 1905, was recorded. Again, in the findings of the court no mention is made of this agreement, nor is any reference made to it, notwithstanding its execution and delivery was undisputed and was testified to by Clayton himself. * Cum give it to me. I made the demand for a deed shortly after Clayton's return from Europe. Clayton also testified that he had no knowledge or notice of the memorandum or agreement executed on the 15th day of August I don't know the exact date, but it was and set forth in plaintiff's complaint until after the commencement of this action, and after July, 1906." That the plaintiff paid the that he had not "prior to the 15th day of entire purchase price called for by his conAugust, 1905, authorized Cummings to sell tract is beyond dispute. But he paid it to Clayton & Co., or to Cummings, the managany property for him." He, however, did not testify that he had not authorized him ing partner of the firm; some checks being on that day, or thereafter, to sell the prop- payable to the order of Clayton & Co., otherty in question. To the contrary, he testified instance, gave a receipt signed "M. L. Cumers to the order of Cummings, who, in each that: "I had been trying to sell that proper-mings," or "M. L. Cummings, Agent." The ty for many years for $1,100. mings asked me what I would take for it. I told him $1,100 net. He says, 'How long will you give me?' I told him, "To-day.' He returned in the afternoon with $450 in cash, and asked me if I would sign a contract for the balance, which was $800 to be paid on or before a certain date with interest. I told him, 'Yes, I was going away and needed the money.'" Clayton further testified that he and his wife thereupon executed and delivered the instrument in writing dated August 18th, by the terms of which they acknowledged the receipt of $450 from the plaintiff and agreed to sell and convey the property to him upon a further payment of $800 on or before July 1, 1906, and thereby agreed to sell and convey the property to the plaintiff upon the same terms and conditions stated and specified in the agreement made by Clayton & Co. to the plaintiff on the 15th day of August. Yet, notwithstanding the making of such agreeinent by the Claytons three days after the execution of the writing by Clayton & Co., and their agreement, over their own signatures, to sell and convey the property to the plaintiff on exactly the same terms and conditions stated in the writing of Clayton & Co., the court found that the Claytons "never ratified or adopted the terms or conditions" stated or specified in the memorandum made by Clayton & Co. evidence, however, further shows, as testified to by both Clayton and Cummings, that Clayton actually received only $300, which was paid to him out of the first payment, and that $150 of that payment was deducted for a commission, and that no part of the $800 was actually received by him; and there lies the nub of the whole matter, giving rise to this lawsuit. Why the moneys paid by plaintiff to Clayton & Co., or to Cummings, were not paid to Clayton, is not made to appear, except that in July, 1905, Cummings' report to Clayton was not satisfactory, and the latter desired to have the partnership terminated. But it is not made to appear that Clayton ever made any demand on Cummings, or on Clayton & Co., for the money received from the plaintiff, or that Clayton tried to collect it from him or from the company, or that Cummings misappropriated or converted the money, or that he or the company was unable to pay it. The evidence further shows, as found by the court, that on March 8, 1907, the defendant N. W. Clayton, alone, and not his wife, entered into a contract in writing with Lawver, by the terms of which he agreed to sell and convey the property to him for the sum of $1,900, and that that agreement was assigned on the same day to Goddard, and that Goddard, on that day, made a tender of the purchase price and demanded a deed. The first payment of $450, the receipt of Goddard testified that, when he made the |